Law 120: Constitutional Law

Lesson #1: The Text, Historical Background, and Functions of the U.S. Constitution
I.

Three Functions of the U.S. Constitution

A.
B.
C.

II.

First Function: Separation (and Mixing) of Powers

A.
B.

C.

D.

III.

Constitutes the national government and allocates powers among 3 branches

-Article I: legislative, Article II: executive, Article III: judicial
Defines the relationship between the federal government and the states
-concept of enumerated powers; 9th and 10th Amendments
Protects individual rights
-imposes limitations on gvt powers; Bill of Rights protects individual rights from
gvt action, both federal (5th Amendment) and state (14th, incorporation)

Much of the first 3 articles create the structure of the federal government
Why separate powers this way?
-fear of tyranny, of domination by one branch of the other branches; separation of
powers protects individual liberty
How does the Constitution attempt to maintain the separation in practice?
-checks and balances represent an infringement of separation of powers but also a
way to keep its spirit in place (vetoes, power of appointment process,
impeachment)
What are some downsides of the structure created by the Constitution?
-tension between desire to prevent harm from the federal gvt and the need for the
gvt to help
-status quo is privileged, many potential veto gates that prevent action (rider
amendments, committee system, presidential veto
-tendency toward inaction magnified by partisanship and the two-party system;
Founders didnt anticipate two party competition

Second Function: Federalism

A.

B.

C.

Definition of a federal system

-federal system: vertical separation of powers; two levels in which gvt possesses
legislative power and the authority to regulate individuals and private behavior
Why establish a national government with robust power to regulate individual
behavior? Why not just leave everything to the states?
-Articles of Confederation demonstrated need for a centralized gvt, for a unifying
authority/coercive power; Congress had no power to tax, to raise an army, to
regulated interstate commerce or the mint; no chief executive or judicial branch
-tragedy of the commons
Why not get rid of the states and leave everything to the federal government?
-idea of states as laboratories of democracy; value pluralism

D.

E.

F.

G.
H.
I.

IV.

-Madison in Federalist 51: compound gvt prevents encroachment of national gvt

and imposition of tyranny
-states, having all the power in the previous arrangement (A of C), wouldnt agree
to a system that stripped them of power
-localization of collective action problem: local problems handled locally
The Constitutions basic approach to dividing power between the 2 levels
-federal gvt: limited enumerated powers, a creature of the Constitution
-state gvt: general, plenary powers; broad authority to act/regulate
Where is that basic approach reflected in the text of the Constitution?
-Congress must justify its actions under the Constitution; is it within the scope of
Congress enumerated powers? Does it violate some other part of the
Constitution?
-10th Amendment reflects fact that federal government has specific, enumerated
powers
The role of the Supremacy Clause
-if validly enacted (within scope of Congressional power), federal law preempts
state law
Federalism and political conflict throughout American history
-Lochner era: first era of aggressive judicial review of federalism
Contemporary constitutional questions with federalism components
-medical marijuana, same sex marriage
2 questions that endure
-what is the appropriate scope of limits on federal power? on state power?
-what is the role of the federal judiciary in adjudicating that relationship?

Third Function: Protect Individual Rights

A.
B.

C.

D.

E.

Little protection of rights in the original Constitution. Where are they?

-Article IV, Sec. 2, 3: protection of rights of slave holders
Why so little protection of rights in the original Constitution? 3 reasons
-enumeration of certain rights could presume that other rights arent protected
-structure of separation of powers protects individual liberty
Origins, framing, and ratification of the Bill of Rights
-contentious process; for many states, ratification of the Constitution was
contingent on adoption of the Bill of Rights
-more a bill of limiting federal power than a bill of rights
Which rights in the Bill of Rights apply to the states?
-through incorporation, Amendments I, II, IV, V, and VI have been held to apply
to the states, as well as parts of Amendments VII and VIII
-process begun with the Civil War amendments
Which rights in the Bill of Rights apply to private conduct?
-rights in the Bill of Rights primarily target gvt action, not private conduct, but
Amendment XIII prohibits slavery except as punishment for a crime, a regulation
of private activity

-substantive due process: due process clause requires more than a hearing but,
through the word liberty in the 14th Amendment, necessitates incorporation of
certain rights
-in order for Constitution to be implicated, state actor must be involved

Lesson #2: Law Story: The Bank of the United States

(Alternative Title: An Introduction to American Constitutional Interpretation)
I.

Three Questions
A.
B.

C.

Why must the Constitution be interpreted?

Who is responsible for interpreting the Constitution?
-in McCulloch, Washington consulted his cabinet; presidents often consult OLC
-subject of debate between the three branches of federal gvt; contrast Katzenbach
v. Morgan with City of Boerne v. Flores
-political question doctrine: SCT should leave politics to Congress
What are the basic approaches to constitutional interpretation?

II.

First Question: Why must the Constitution be interpreted? At least 5 reasons

-the Constitution must be interpreted because no document is self-interpreting
-sometimes were not prepared to live with what the Constitution appears to say
(e.g. Second Amendment, fact that First Amendment only talks about Congress)
-many constitutional questions arent explicitly mentioned in the text (e.g.
McCulloch v. Maryland)
-lot of the text is written in broad, value-heavy language (what is commerce?)
-what gvt interests suffice to override provisions of the Constitution e.g.
wartime, riots, etc.?

III.

Second Question: Who is responsible for interpreting the Constitution?

A.

B.

C.
D.

The Bank in the political branches

-Bank initially created by Congress, SCT approved its existence, then Congress
ended the Bank and Andrew Jackson vetoed an attempt to resurrect it
The Bank in the U.S. Supreme Court: 2 questions
-Does Congress have the authority to establish the bank?
*Marshall says that past practice/acceptance matters (settled expectations); also,
federal gvt is compact of people, not states
-If so, is a state tax on a federal instrumentality unconstitutional?
The Bank back in the political branches
6 morals of the story

i. Courts intervention in McCulloch came after debate in Congress

ii. judicial supremacy and departmentalism: judicial branchs constitutional
interpretation is supreme v. the idea that each branch can have its own idea of
what is constitutional
iii. judicial supremacy and judicial exclusivity: even if Court gets last word on
Constitutional matters, doesnt mean that other branches constitutional
interpretations dont matter
iv. SCT may have the last constitutional word, but other branches can exercise
their powers, such as political power, to block SCT holdings
v. Courts historical role has been more to legitimate gvt action than to invalidate
vi. from the beginning, irreconcilable Constitutional differences for interpretation;
this poses problems for originalism
IV.

Third Question: What are the basic approaches to constitutional interpretation?

A.

6 modalities: text, structure, consequences, history, precedent, ethos

-textual interpretation: appeals to the text of the Constitution (e.g. Marshall
discussion omission of the word expressly)
-structural interpretation: views about theory and structure of gvt, draw
inferences about structures that the Constitution creates; looks at whole document
and the relationship between parts, not specific text (e.g. collective action problem
rationale)
-consequentialist argument: what are the general consequences of a decision?
What are the consequences of having certain actors decide certain issues?
-appeals to history: offers existence of previous decisions as justifications for
decision in a current case; can be affirming or negating influence of history
-arguments from precedent: existence of previous decisions justifies the decision
in a current case
a. past political practice: matters when judicial precedents are rare
b. judicial precedent: stronger in statutory interpretation than in Constitutional
interpretation because Congress can always change the law
-national identity/ethos: narrative story; asks if given interpretation of the
Constitution squares with who Americans are as a people; typically suppresses
other possible narratives

B.

The modalities in McCulloch

-Maryland argues that under necessary and proper, the means must be essential, indispensable
to the execution of the end; merely convenient means arent sufficient
-the government is one created by the people; its power comes from them
-Marshall: if the end is constitutional, the means to that end are themselves constitutional (i.e.
necessary), as long as they do not violate an independent constitutional principle (i.e. proper)
-structural argument: necessary and proper clause is in Article VIII, which grants powers to
Congress, not Article IX, which limits Congressional power
-Maryland: national bank lay within Marylands jurisdiction and thus was subject to Marylands
constitutional power to tax

-Congress had the power to create the bank; the power to destroy is anathema to the power to
create; the power to tax is the power to destroy-thus Marylands action in taxing the bank was
anathema to Congresss constitutionally permissible power to create the bank
-federal gvt has supremacy within its sphere of action
-in imposing a tax on the federal government, Maryland was imposing a tax on the whole of the
United States; taxation without representation
-states cant, through taxation, interfere with operations of the constitutional laws enacted by
Congress to carry into execution the powers vested in the general gvt
-NB: Marshalls dicta that laws passed by Congress under the pretext of constitutionality but
with unconstitutional purpose are themselves unconstitutional; implications for Commerce
Clause and for substantive due process/equal protection
Lesson 3: Marbury v. Madison, Judicial Review, and Democracy
I.
Introduction
-Court had held that it had a power of judicial review but had never exercised it
II.
Marbury: Facts
John Marshall served as John Adams secretary of state. When the Democratic-Republicans and
Thomas Jefferson won the election of 1800, the Federalists passed the Judiciary Act of 1800,
aimed at court-packing Federalists into the bench, for the purported purpose of relieving SCT
justices from circuit riding. Republicans repealed the Act and refused to deliver the
commissions, including Marburys for justice of the peace. They then canceled the SCTs 1802
term. By this point, Marshall was chief justice. Marbury filed a writ of mandamus, seeking the
SCT to order the delivery of his commission.
III.
Marbury: Holding
-Marbury had a right to the commission; a judicial remedy does not improperly interfere with the
executives constitutional discretion; mandamus is the appropriate remedy
-Court then rules that it doesnt have the power to hear the case and thus couldnt hear the case
under original jurisdiction, as the Senate Judiciary Act of 1789, which granted it original
jurisdiction over writs of mandamus, was unconstitutional because it expanded the SCTs
original jurisdiction created by Article III.
-the SCT could not follow Sec. 13 of the Judiciary Act because it had the power and the duty to
declare federal laws unconstitutional
-Court reached the merits question first and the jurisdiction question second because it wanted to
decide the political controversy at hand
IV.

Analysis5 Questions:
1.

2.

Should Chief Justice Marshall have recused himself?

-Under modern doctrine, clearly should have recused himself but he argued that
his presence was necessary to reach quorum.
Should the Court have reached the question whether 13 of the Judiciary Act of
1789 was unconstitutional?

3.

4.

5.

-Under modern doctrine, no: reach the merits only after deciding that the court has
jurisdiction to hear the case; Marshall reached the merits first in order to confirm
the SCTs power and to take aim at Jefferson and Madison political
masterstroke because his decision denied relief to Marbury while still criticizing
Republicans
-could have held that Marbury didnt have a right to his commission, since it
wasnt delivered, even though it was created
When may the Court review conduct of the Executive?
-at the time, no precedent for SCT review of executive action
-Marshall: for every right, there must be a remedy; no one is above the law
-distinction between political discretionary acts and non-political ministerial acts,
the latter implicating individual rights and thus allowing for judicial remedy
Read as the Court read it, was 13 of the Judiciary Act unconstitutional?
-general principle of decision that Article III sets upper limits on federal power
remains good constitutional law
Do the federal courts have the authority to declare federal laws unconstitutional?
-judicial review isnt present in the constitution; Marshall arrives at it via
structural vision of gvt whereby SCT serves as a constitutional limit to ensure
that Congress doesnt exceed its limited, enumerated powers
-if courts are asked to interpret the law, they must be able to determine its
validity; also, judges take an oath to uphold the Constitution (but lots of others
take similar oaths too)

V.
Concluding Thoughts
-SCT didnt use judicial review again until Dred Scott v. Sanford in 1856; Marbury v. Madison is
the exception, not the rule
-Court doesnt just act, it is acted upon; its legitimacy in the eyes of a wider audience matters

Lesson 4: Judicial Review in a Democratic Society

I.

The asserted problem with judicial review: the countermajoritarian difficulty

-Bickell: SCT can strike down the acts of a popularly-elected legislature without itself being
responsive to popular constraints; it is a deviant institution in the American democracy
II.

The nature of formal justifications for judicial review

-Article VI supremacy clause says not only that federal law is supreme but that state judges are
bound by it; does it make sense for state court judges to have to respect the Constitution but for
the SCT not to apply the Constitution in appeals from state courts on questions of federal
constitutional law?
-judicial review gives federal courts the same power as state courts to interpret constitutional
questions; however, state courts cant strike down acts of Congress

III.

Three functional justifications for judicial review

1.

2.

3.

Regulating intergovernmental and intragovernmental relations

-need for uniformity in constitutional interpretation, concern about local bias for
state law over federal law, concern about judicial independence (state judges are
often elected, while federal judges are appointed to life tenure)
Preserving fundamental values (Bickel)
-legislators are incentivized by elections to take a short-term approach, while
judges can take a long-term view and are better able to take constitutional
considerations into account
-are there fundamental values to be preserved? Should the Court be the body that
tries to preserve them?
Protecting democratic processes (Ely)
-SCT can properly act to preserve the democratic process by striking down
actions of the majority that limit the ability of discrete and insular minorities to
participate in the democratic process and thus consolidating their hold on political
power
-judicial review protects democratic limitations on discrete and insular minorities

IV.
Is judicial review a deviant institution in the American democracy? 3 no answers
a. its not the only counter-majoritarian institution in gvt: veto, filibuster, the Senate rules,
electoral college
b. SCT is responsive to public opinion: confirmed by popularly elected legislators and concerned
with the conditions of its own legitimacy, thus it wont stray too far from normal opinion
-BUT SCT could act extremely and their decision would be respected
c. legislators prefer that the SCT decide politically difficult issues
V.
The countermajoritarian difficulty and the debate over life tenure for Justices
-life tenure appears to increase the countermajoritarian difficulty and decrease electoral
responsiveness by increasing the distance between justices and the governing coalition that
nominated and confirmed them
Lesson #5: Congresss Powers to Restrict Federal Jurisdiction and Define Constitutional
Rights
General Subject: Various methods Congress may employ to express constitutional
understandings that differ from the Supreme Courts understandings of the Constitution.
I.

Firmly established methodsSome examples

A.

Statutory Repeals
-Congress can repeal a law even if SCT has upheld its constitutionality, thus
expressing their opinion on a laws constitutionality

B.

Confirmation votes

-Congress can express their views about the Constitution through the confirmation
process
C.

D.

II.

Civil rights legislation enacted under the Commerce or Spending Clause

-Congress can pass laws that give remedies to individuals or groups for rightsrelated harms, thus expressing a view on the constitutionality of such action (e.g.
Title IX)
Proposals and votes for constitutional amendments
-Congress can also propose and vote for constitutional amendments that are
contrary to the SCTs holdings (e.g. 14th and 16th Amendments and Dred Scott)

Controversial methods
A.

Jurisdiction Stripping (take Federal Courts!)

1.

2.

3.

B.

Lower federal courts

-argument is that Congress has the power to create and get rid of lower
federal courts under Article III, thus it has the power to restrict which
cases those courts can hear; the greater power includes the lesser
-Congress can express its views on constitutionality by denying courts the
power to hear issues
Appellate jurisdiction of the U.S. Supreme Court
-the exceptions and regulations clause permits Congress to make
exceptions and regulations regarding the appellate jurisdiction of the SCT
-Congress can express its views on constitutionality by denying courts the
power to hear issues
All federal courts
-harder to argue that Congress has the power to complete abolish federal
jurisdiction on an issue and leave it to the states; Justice Story: in federal
questions, there must be some appellate jurisdiction

Civil rights legislation enacted under the enforcement clauses of the Civil War
Amendments (13A, 14A, 15A)two questions:

-13th Amendment: prohibits slavery and involuntary servitude except as criminal punishment; 1
regulates private conduct in addition to state action
-14th Amendment: all persons born or naturalized in the U.S. are citizens (negates Dred Scott);
privileges and immunities, due process, equal protection rights flow therefrom
-15th Amendment: right of U.S. citizens to vote cannot be abridged on the basis of race by federal
or state gvt
-1 of the amendments are self-executing/convey private right of action; each amendment has an
enforcement clause; each serves as a constitutional hook for Congress to justify action and
express its own constitutional convictions
-Congress will have the power to enforce this amendment through appropriate legislation.

1.

May Congress target private behavior using the enforcement clauses or

may it target only state action?
a.
Civil Rights Cases, 109 U.S. 3 (1883)
-limited Congresss power to prohibit discrimination by private actors;
Civil Rights Act of 1875 broadly prohibited private discrimination, SCT
said that 1 of the 13th Amendment prohibited slavery and not racial
discrimination, Congress could only prohibit the badges and instances of
slavery
-for 14th, 1 applied only to state and federal action, so 5 couldnt target
private conduct
-currently, Congress had broad authority under 2 to regulate conduct that
goes beyond the scope of 1
b.
United States v. Morrison, 529 U.S. 598 (2000)
-SCT held that 5 didnt apply to private actors and that Congress couldnt
pass legislation that applied to private actors
-13981 let victims of sexual assault sue assailants in federal courts by
granting a federal civil cause of action: SCT holds that this targets private
action
-not clear that Congress was targeting private action; could have wanted to
encourage state actors to take rape seriously

2.

What is the scope of Congresss power under the enforcement clauses?

Specifically, is Congress limited to remedying or preventing what the
Supreme Court has identified as a constitutional violation, or does
Congress possess independent authority to interpret Section 1 of each of
the Civil War Amendments?
a.

Katzenbach v. Morgan, 384 U.S. 641 (1966)

A. Facts: Congress passed the Voting Rights Act in 1965; one of the provisions barred literacy
voting requirements for Puerto Rican natives. New York election laws held that
reading and writing English was necessary to vote. Plaintiff challenged the NY law
under 4(e) of the Voting Rights Act prohibiting discrimination, which was grounded
in the 14th Amendment. At this point in time, the SCT had not ruled on the validity of
English language requirements for suffrage.
B. Issue: Is 4(e) of the Voting Rights Act unconstitutional under the 10th Amendment as a
Congressional grab of power?
C. Holding: No, Congress can go farther than the SCTs understanding of the 14th Amendment.
D. Rationale: Congress cant go below the limits established by the 14th Amendment but can
exceed them in restricting discriminatory action and protecting rights. Under
McCulloch, 4(e) is an enactment to enforce the Equal Protection Clause, it is
plainly adapted to that end, and is consistent with the letter and spirit of the
constitution.

-in 1964, Congress passes Civil Rights Act via Commerce Clause out of concerns that SCT
would strike down statutes passed under Civil War amendments
-in 4(e), Congress says that literacy voting requirements are unconstitutional making a
constitutional judgment before the SCT has ruled
-SCT asks is legislation is appropriate; as with McCulloch, if the end is constitutional, so are
the means; Congress can go beyond 14th Amendment-its a floor, not a ceiling
b.

City of Boerne v. Flores, 521 U.S. 507 (1997)

A. Facts: A church was unable to expand under a local zoning ordinance for historic
preservation. The priest challenged the law under RFRA, alleging that the ordinance
represented a substantial burden on the free exercise of religion without a compelling
state interest. Under RFRA, strict scrutiny was applied in any case substantially
burdening religion, regardless of the intent of the applicable law. The city challenged
the constitutionality of RFRA.
B. Issue: Was RFRA within the scope of Congress power to enforce the 14th Amendment?
C. Holding: Enactment of RFRA exceeded Congresss enforcement power under 5 of the 14th
Amendment.
D. Rationale: RFRA was a Congressional direct response to the SCTs decision in Employment
Decision v. Smith, which held that an Oregon law criminalizing the use of peyote did
not violate the free exercise clause because the free exercise clause only protects
instances of intentional gvt discrimination and not laws that burden religion. RFRA
was not remedial but attempted substantive change unsupported by the legislative
record and thus, was not congruent and proportional.
The SCT holds the sole power to define substantive rights guaranteed by the 14th
Amendment. It is the Courts view of the free exercise clause that should control how
the problem is measured and, thus, the size of the remedy. Smith should apply and,
therefore, theres no unconstitutional burden on religion-separation of powers and
judicial determinism.
Test: (1) what right is at issue? What record of constitutional violations (as per SCTs
understanding) has Congress found? Is the remedy provided by Congress congruent
and proportional to the record of constitutional violations?
Lesson #6: Congressional Commerce Power (pre-1937)
I.

Introduction
A.
The text of the Commerce Clause
-Congress shall have the power to regulate commerce with foreign nations and among
the several states, and with the Indian tribes
B.

Concern over interstate commerce and the Constitutional Convention

C.

The practical significance of the Commerce Clause

10

-way for SCT to consider federalism; its treatment of Commerce Clause

legislation reflects its approach to federal-state balance
D.

4 eras
i. Early 1800s late 1800s: Commerce Clause is rarely used by Congress until
after industrialization
ii.1890 1937: SCT narrowly construes Commerce Clause and strikes down
federal legislation (Lochner court)
iii. 1937 1990s: SCT expansively construes Commerce Clause and imposes no
10th amendment limits on Congressional action (Wickard v. Filburn)
iv. 1995 present: SCT narrows scope of Commerce Clause and somewhat uses
10th amendment to limit Congress (Lopez v. Morrison)

E.
3 questions per era
i. What is commerce? Does it involve just trade or also exchange?
ii. What is the meaning of among the several states?
iii. Does the 10th amendment or some other structural principle limit the scope of
Congress power?
F.
3 reasons for an historical approach to the Commerce Clause
-change over time; impossible to understand present without understanding evolution of
Commerce Clause doctrine
II.

First Era: The commerce power from the early 1800s until around 1890
A.

Gibbons v. Ogden, 22 U.S. 1 (1824).

Facts: Ogden was issued a monopoly by the state of New York to operate a steamboat between
New York and New Jersey. Gibbons also operated a steamboat on the same route, albeit
without a license. Ogden brought suit to enjoin Gibbons from interfering with his
monopoly and Gibbons argued that he had a federal license and thus was free to operate.
The question was to Congress power to enact a law granting such a license, since a
federal license would trump a state monopoly under preemption doctrine.
1.
What is Commerce?
-Commerce is more than traffic; it is intercourse and, significantly for
Gibbons v. Ogden, includes navigation.
2.
When is commerce among the several States?
-Among means intermingled with. The completely internal commerce of a
state is outside the scope of the commerce clause but commerce between
states/interstate commerce is within the scope, including those internal concerns
which affect states generally. If interstate commerce exists within a state,
Congress can regulate it there.

11

3.
Are there independent federalism-based limits on Congress?
-For Marshall, the power to regulate is complete in itself and has no limits other
than those prescribed by the constitution. The sovereignty of congress, though
limited to specific objects, is plenary as to those objects.
-Commerce Clause legislation has to abide by other 1st amendment et al. 10th
amendment defines states rights residually and not as limits on federal action; is
superseded by Commerce Clause.
B.
After Gibbons
-almost anything to do with railroads was upheld under Gibbons v. Ogden
-in Willson v. Black-Bird Creek Marsh Co., state of Delaware authorized the plaintiff to
build a dam across a navigable waterway and the defendants broke the dam. The
defendants argued that the state law conflicted with the commerce clause. Issue:
constitutionality of state law in the absence of federal regulation. Marshall held that in the
absence of federal law or concerns, the state has the broad power to act.
-Congress rarely uses the Commerce Clause as a constitutional hook
III.

Second Era: The commerce power from around 1890 until 1937
A.
Introduction
-Congress began to use Commerce Clause as a constitutional hook, through the Sherman
Antitrust Act and the Interstate Commerce Act; SCT upholds Congressional action but
changes start to emerge
B.

The Doctrine
What is Commerce? See, e.g., United States v. E.C. Knight Co., 156
U.S. 1 (1895); Carter v. Carter Coal Co., 298 U.S. 238 (1936).
-SCT distinguishes between commerce and manufacturing to restrict Congress
power under the Commerce Clause
-(1) is the subject of congressional regulation interstate commerce? (2) are the
purposes of the regulation consistent with those delegated to Congress; (3) does
the regulation violate 10th amendment limits?
-commerce is intercourse for purposes of trade; rejects broad definition of
Marshall by arguing that states have control over part of the economic process
-Carter v. Carter Coal: distinction between direct v. indirect effect on commerce
-SCT doesnt care about collective action problems; it doesnt see constitutional
authorization for this statute
1.

When is commerce among the several States? Compare A.L.A.

Schechter Poultry Corp. v. United States, 295 U.S. 495 (1935), with
Shreveport Rate Cases, 234 U.S. 342 (1914).
-SCT distinguishes between direct and indirect causation, says it doesnt matter
how important an effect is, its the character (direct v. indirect) that matters
2.

12

-BUT in Shreveport Rate, SCT said Congress could regulate intrastate rates on
railroads that had direct effects on interstate rates
-possible to say that SCT liked industry and the railroad industry liked regulation,
as it reduced competition, while it didnt like workers (direct effects = industry,
indirect effects = workers)
3.
Are there independent federalism-based limits on Congress? Compare
Champion v. Ames (The Lottery Case), 188 U.S. 321 (1903), with Hammer
v. Dagenhart (The Child Labor Case), 247 U.S. 251 (1918).
-Champion v. Ames: Congress prohibits interstate sale of lottery tickets; SCT
endorses Congress moral stance but says that a sale between states constitutes
interstate shipments
-Hammer v. Dagenhart: Congress regulating prohibition of manufactured goods
made using child labor; SCT says that the effect is to regulate production, which
is left to states; this could mean that laws otherwise within the scope of the
commerce clause could be invalid due to their effects
-Congress concerned with unfair competition and a race to the bottom; SCT
doesnt care, says that nothing in the Constitution deals with unfair competition
C.
What, if anything, was wrong with the doctrine during this era?
-no clear constitutional basis for these commerce clause distinction (direct v. indirect,
effects on interstate commerce, commerce v. manufacturing)
Lesson #7: Congressional Commerce Power (1937-1991)
I.
Transition: Economic and Political Pressures of the Great Depression
-tremendous economic and political pressures on U.S. and on SCT: Great Depression and FDRs
court-packing plan; widely perceived need for federal legislation of national economy
II.

The Doctrine
What is Commerce? See NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1
(1937).
-statute protects rights of workers to collectively organize; in previous courts, commerce
was buying, selling, exchanging and not manufacturing or production; possible to fit
this under Lockner-era jurisprudence and emphasize the interstate operations of the steel
corp. and thus find its regulation acceptable
-now, distinction isnt that employees were engaged in production but that their actions
impacted interstate commerce; SCT concerned not with nature of activity but with its
size/impact on interstate commerce
-activities had a close and substantial relation to interstate commerce that Congress
could exercise authority over them in order to protect interstate commerce
A.

When is commerce among the several States? See Wickard v. Filburn, 317
U.S. 111 (1942); Heart of Atlanta Motel v. United States, 379 U.S. 241 (1964);
Katzenbach v. McClung, 379 U.S. 294 (1964).
-Wickard v. Filburn: Congress is trying to get farmers to limit production in order to keep
wheat prices high, allows secretary of agriculture to set quotas and penalize accordingly
B.

13

-farmer wants an injunction and a declaratory judgment that quota is counter to

Commerce Clause since he was producing wheat for personal consumption
-Congress is clearly regulating production and disregarding direct/indirect distinctions
-SCT argues aggregate impacts: if all farmers similarly situated dont enter the wheat
market, then privately produced wheat for personal consumption suppresses demand and
the national price; possible to justify under collective action problem
-deference to Congressional judgment, standard is the rational basis on which Congress
made its judgment; for a long time, Wickard is the outer limits of the Commerce Clause
-if Congress can punish inactivity, can it then require that people engage in consumption?
-the stimulation of commerce is a use of the regulatory function quite as definitely as
prohibitions or restrictions thereon
-Test: Congress may regulate any activity that Congress rationally believes has a
substantial effect on interstate commerce in the aggregate.
-Heart of Atlanta Motel: involves Commerce Clause as constitutional hook for Civil
Rights Act; prohibits discrimination in public businesses if theyre involved in interstate
commerce; doesnt use 5 of 14th Amendment due to limitations of 1883 civil rights
cases for Congress targeting private actors
-in McCulloch v. Maryland, Marshall said that use of Commerce Clause as a mere
pretext was unconstitutional
-SCT says that Congress can achieve purely moral goals if statute satisfies the Commerce
Clause; regulating commerce may not have been Congress concern, but discrimination
does produce discernable effects on interstate commerce
-rational basis test
-collective action rationale for federal gvt action in civil rights cases
-Katzenbach v. McClung: where Congress, in light of evidence in the record, has a
rational basis to regulate commerce, there is no constitutional violation
D.

Are there independent federalism-based limits on Congress? See United States v.

Darby, 312 U.S. 100 (1941).
-Congress prohibits interstate shipments of goods whose production doesnt comply with
labor standards and sets federal minimum wage and maximum hours laws
-SCT holds that Congress can regulate commerce in order to impact production;
explicitly overrules Hammer v. Dagenhart
-Congress can regulate intrastate activities that substantially affect interstate commerce
-as long as rational basis is met, there are no 10th amendment concerns; Congresss
motives dont affect constitutionality of legislation
-Congress can choose any means reasonably adapted to the ends, even if the means
involve regulation of intrastate activities
-minimum wage as a collective action problem in need of federal legislation
-10th amendment is a truism that all not retained has been surrendered
III.

What, if anything, was wrong with the doctrine during this era?

14

Lesson #8: Congressional Commerce Power (1991-Present)

I.

Introduction
A.

Changes in the Courts Composition during the Reagan & Bush I Presidencies

B.

Our 3 questions reduced to 2

i. What is commerce among the several states?
ii. Does the 10th amendment or some other structural principle limit Congress
power?

II.

Questions 1 & 2 (combined): What is Commerce . . . among the several States?

A.

United States v. Lopez, 514 U.S. 549 (1995).

Antonio Lopez charged with violating federal Gun-Free School Zones Act, which prohibited
possession of a firearm on school property and used the Commerce Clause as a hook. Lopez
challenged the federal charge as invalid under the Commerce Clause. Gvt argued that the sale
and distribution of guns implicated interstate commerce. SCT found that Congress was
regulating a noneconomic activity and thus statute was, on its face, not valid Commerce Clause
legislation. Question was one of substantial affect.
-federal gvt is one of limited and enumerated powers
-commerce: economic v. noneconomic activity; this isnt an economic activity, while Wickard
was
-not always clear what the regulated activity is or if its economic/noneconomic in nature
-Court says that such legislation is permissible if its part of a larger regulatory scheme; e.g. if
Congress had banned all guns, then this would have been permissible
-lack of evidence in legislative record that guns in school substantially affect interstate
commerce; concern about gvt regulation and slippery slope
-Lopez question: if this law stands, what fails?
Congress can regulate:
a. regulation of the channels of interstate commerce (highways, waterways) (Darby, H of ATL)
b. regulation of the instrumentalities of interstate commerce (trucks, boats)
c. regulation of activities that substantially affect interstate commerce (NLRB)
Test
i. What is the regulated activity?
ii. Is the regulated activity economic or noneconomic in nature?
B.

United States v. Morrison, 529 U.S. 598 (2000).

Congress, through VAWA, gave a federal private right of action to victims of sexual assault,
using a Commerce Clause hook. As justification, Congress cited the substantial affect that

15

violence against women has on interstate commerce. SCT held that violence against women was
neither particularly commercial in nature nor interstate in character, applying the Lopez test.
C.

Gonzales v. Raich, 545 U.S. 1 (2005).

Raich seeking a declaratory injunction prohibiting enforcement of the federal Controlled

Substances Act, which was passed using the Commerce Clause as a hook. SCT again applies
Lopez test of (1) determining the regulated activity and (2) asking if the activity is economic or
noneconomic in nature.
-the regulated activity was the intrastate production of drugs, specifically marijuana
-concern is the class of regulated activity; individual instances may be non-economic, but if the
class of activity is economic, no Commerce Clause violation
-as with Wickard, fungible goods, even when produced and distributed/handled entirely intrastate
may, in the aggregate, have substantial impacts on interstate commerce
-Congress can regulate even noneconomic local activity if that regulation is a necessary part of
a more general regulation of interstate commerce: perverse incentive for federal gvt to get
around Lopez by expanding scope of federal regulation
Lesson #9: Tenth Amendment Limits (1991-Present)
I.

What is the anti-commandeering principle?

-SCT strikes down two laws, within the Commerce Clause, as invalid on 10th amendment
grounds
-anti-commandeering principle: Congress may not use the states to enact, administer, or enforce
a federal regulatory program
A.

New York v. United States, 505 U.S. 144 (1992).

State of New York filed suit contesting validity of federal statute regulating state disposal of
nuclear waste under Commerce Clause and 10th amendment. The act provided three incentives to
states: monetary incentives, access incentives (denial of disposal access to state who fail to
comply), and take title provision (state has to take title to waste that it doesnt dispose of).
SCT is concerned with the requirement that states either legislate and regulate nuclear waste or
take title to it. Problem of disposal of nuclear waste is classic collective action problem and
clearly valid under the Commerce Clause as an example of interstate commerce.
-Congress may not commandeer states by directly compelling them to enact and enforce a
federal regulatory process; Congress has regulatory authority over individuals, not states
-Congress can attach conditions to the use of federal funds, as long as the conditions bear some
relationship to the purpose of the federal spending; Congress also, when acting under valid
Commerce Clause legislation, impose federal regulation or let states adopt federal standards
-take title provision crosses the line from encouragement to coercion

16

-Congress may not co-opt state gvt officials as agents to implement a federal program even if
state officials consent
-SCT focusing on how Congress regulates interstate commerce, not whether it can. Theres a
belief that commandeering will undermine political accountability and permit Congress to pass
the buck.
-State gvts still have to comply with federal regulations (e.g. minimum wage) but fed. gvt cant
use states to regulate individuals.
B.

Printz v. United States, 521 U.S. 898 (1997).

Brady Act required state head law enforcement officer to conduct background checks on
potential handgun buyers. Two sheriffs challenged the Act as constituting anti-commandeering
under New York. SCT holds that by requiring state gvt officials to administer and enforce a
federal statute, the law violates anti-commandeering principles.
-states retain residual sovereignty, as expressed by 10th amendment
-argument from historical precedent: it hasnt been done before
-commandeering is not just enacting a federal program but also administering and enforcing it;
no commandeering is ever permissible
-size of the financial incentive offered to states is irrelevant to commandeering; character of gvt
stipulation is what matters
II.

Evaluating anti-commandeering doctrine

A.

Why worry about commandeering?

1.
Commandeering and political accountability
-commandeering as means for federal gvt to pass buck, makes it harder for
citizens to know who to hold responsible, essential in a democracy
2.
Commandeering and state regulatory autonomy
-state power to regulate preserves state liberty and prevents tyranny by the federal
gvt; perhaps this creates a perverse incentive for federal overregulation (e.g.
banning interstate shipment of waste instead of working w/states to regulate it)
-10th amendment argument about protections for state sovereignty
3.

Commandeering and state sovereign dignity

B.
Why categorically bar commandeering?
-hard to do balancing test on what constitutes too much commandeering; if fed gvt doesnt
internalize costs of its behavior, it will overregulate
-ban on commandeering sets baseline where fed gvt has to set a price for state compliance
Lesson #10: Taxing and Spending Powers

17

I.

Introduction

A.
The text, and how constitutional lawyers refer to it
Article I, 8: Congress shall have power to lay and collect taxesand provide for the common
defense and general welfare of the United States.
-explicitly a power to tax, implicitly a power to spend
B.
Under the Articles of Confederation
-Congress had no power to tax, could only requisition/ask nicely for revenue and thus had no real
power to spend
-tax power solves a collective action problem: raising revenue for the gvt
-Constitution gives Congress plenary power to tax; amplified by the 16th amendment-Congress
has power to tax income from any source, no need for a direct tax (i.e. census-linked)
C.
Today
-pretty much unlimited power to tax
II.

Three Questions
A.
B.
C.

III.

For what purposes may Congress tax and spend?

What is the difference between a tax and a penalty for purposes of the Taxing
Clause?
May Congress condition federal funds to the states on their agreeing to comply
with requirements that Congress lacks the power to impose directly?

Question #1: For what purposes may Congress tax and spend?

A.
Madison v. Hamilton/Story
-Madison wants to limit Congress to taxing/spending in support of the enumerated powers out of
concern for federal police power; Art. I, 8 not independent source of authority (structural)
-Hamilton and Story: tax/spending power is permitted for general welfare, only limited by
violations of other enumerated powers (textual)
B.

The Constitution outside the courts

C.

United States v. Butler, 297 U.S. 1 (1936).

AAA is unconstitutional; Congress cant regulate interstate commerce with anterior purpose in
mind. SCT endorses Hamiltonian view of tax/spend power while constraining Congress
capability in this particular case.
D.

Steward Machine Co. v. Davis, 301 U.S. 548 (1937), Helvering v. Davis, 301 U.S.
619 (1937).
SCT endorses collective action rationale as basis for action under the general welfare clause.
IV.
Question #2: What is the difference between a tax and a penalty?

18

A.
Why the difference matters
-8, clause 1 gives Congress the power to tax, not the power to penalize; taxation exists for the
purposes of raising revenue, not for coercion
-if Congress can penalize through taxation, its power increases enormously and wipes out the
other enumerated powers
-after SCT abandons limits on the Commerce Clause, theres less pressure on the tax power as a
means for gvt regulation
B.
3 eras
-deference, non-deference, deference: parallels to SCTs Commerce Clause jurisprudence
B.
4 possibilities
a. effects test: does the tax dampen conduct or does it prevent it?
b. motive test: is the tax designed to be coercive or not? In the Child Labor Tax case, court
distinguishes between coercion and non-coercion based on Congressional motives.
-sin tax raises revenue but motive is coercive; mixture of effects and motive test
-motive test arises from Marshalls pretext argument embraced by Lochner court (Hammer v.
Dagenhart)
c. political process: limits on tax power must come from political process, since democracy
should constrain unfair taxation; if a tax is passed, its valid; for this to be true, part cant pass
tax on the whole (i.e. McCulloch)
d. formalist/literalist: if Congress called it a tax, its a tax; if it calls it a penalty, its a penalty
(see dissent in NFIB)
-little jurisprudence on tax v. penalty distinction because Congress, post 1937, has had wide
power under the Commerce Clause, thus no need for tax power as a constitutional hook
V.

Question #3: To what extent may Congress conditionally spend?

A.
Current law
Congress may attach conditions to federal grants if:
i. conditions are clearly stated and germane to the spending program
ii. conditions dont violate independent constitutional rights
iii. conditions arent coercive; dont constitute a penalty (no criminal sanctions, no targeting of
a particular group)
B.
Oklahoma v. U.S. Civil Service Commission, 330 U.S. 127 (1947).
SCT held that Congress has expansive authority to attach conditions to federal funds, reaffirming
Steward Machine Co. and Helvering. Federal funding increases substantially.
C.
South Dakota v. Dole, 483 U.S. 203 (1987).
Federal gvt wants to establish uniform drinking age and conditions receipt of federal highway
funds on compliance. SCT assumes that Congress may not impose a national drinking age
critical because tax/spend power is the only avenue for Congressional direct action. Rehnquist
sustains the condition and finds it clearly stated and germane, notes that compulsion may become
coercive at certain levels of funding.

19

SCT could have decided case on 21st amendment grounds but views regulation of alcohol as an
area of traditional state concern.
-general welfare clause is independent source of Congressional authority to act, outside of
enumerated powers
Lesson #11: The Constitutionality of the Patient Protection and Affordable Care Act
I.

Overview of the ACA

A.
Purposes
i. control the spiraling cost of health care
ii. increase significantly the number of Americans who have access to affordable health
care
B.
Parts
i. minimum coverage provision and setting up health care exchanges; requirement to
get insurance and shared responsibility
ii. Medicaid expansion: lack of compliance by states with the expansion permits
Sibelius to withdraw all Medicaid funding, including preexisting funding

II.

Constitutional litigation in the lower federal courts

A.
Overview
B.
General results
-no court found in favor of the ACA on the tax clause and no court struck down the Medicaid
expansion
III.

Constitutional litigation in the U.S. Supreme Court

A.

Four questions presented:

1.
2.

3.

4.

B.
IV.

Whether the federal tax Anti-Injunction Act (TAIA) bars pre-enforcement

challenges to the ACAs minimum coverage provision.
Whether the minimum coverage provision is within the scope of (a) the
Commerce Clause, (b) the Necessary & Proper Clause, or (c) the Taxing
Clause.
Whether the ACAs Medicaid expansion unconstitutionally coerces the
states, thereby exceeding the scope of Congresss conditional spending
power.
Whether the minimum coverage provision and/or the Medicaid expansion
are severable from the balance of the ACA.

The impression left after 3 days of oral argument

The Supreme Court decides

20

A. The TAIA does not bar pre-enforcement challenges to the minimum coverage
provision (9-0).
Under TAIA, individuals cannot seek an injunction of a tax but must wait until the tax is
assessed to challenge it. SCT ruled that since Congress deemed the sanction for noncompliance
with the Act a penalty and not a tax, there was no violation of TAIA.
C.

The minimum coverage provision is beyond the scope of the Commerce and
Necessary & Proper Clauses (5-4), but is within the scope of the Taxing Clause
(different 5-4).
-appearance of activity/inactivity distinction; gvt may not mandate that an individual undertake
an activity, can only regulate existing activity; if gvt can require individual to buy insurance,
Lopez question arises: what cant gvt mandate? (broccoli horrible)
-Founders gave Congress the power to regulate commerce, not compel it; ACA targets future
activity (participation in insurance market by uninsured individuals) not pre-existing activity
-counterargument is that mandatory emergency coverage means that individuals without
insurance arent inactive
-Roberts plurality: minimum coverage provision is a tax, not a penalty; look at effects and
structure of provision and not the fact that Congress called it a penalty no criminal sanctions,
fine is low enough to be non-coercive, Congress arguably wants to raise revenue and not stamp
out activity (individuals w/out insurance)
-unlike Commerce Clause, Constitution does not say that individuals can avoid taxation through
inactivity; ACA is within limits of tax power, concerns about wisdom or fairness of tax are
beyond SCTs concerns
Test: (1) exceedingly heavy burden, (2) scienter requirements, (3) who does enforcement-IRS or
someone else?
The ACAs Medicaid expansion unconstitutionally coerces the states, thereby
exceeding the scope of the conditional spending power (7-2). But the proper
remedy is not to invalidate the expansion; rather it is to prohibit the federal
government from withdrawing all pre-ACA Medicaid funding if a state declines
to participate in the expansion (5-4).
-ACA conditions all of a states Medicaid funds, including existing funds, on acceptance of the
Medicaid expansion under the ACA; states had come to rely on preexisting federal funds
-controlling opinion: (1) huge amount of money involved, (2) states were dependent on federal
program, (3) Congress used states dependence on the old Medicaid program as leverage to get
them to accept a separate and independent federal program
-interesting contrast re: coercion for tax power and for spending power: difference is the baseline
entitlement; cant coerce by giving people money but can coerce by taking it away
D.

Lesson # 12: Preemption, Dormant Commerce Principle, Privileges & Immunities Clause
I.

Introduction
A.

Transition to federalism-based limits on state regulatory power

21

B.

Two scenarios
1.
Congress has acted: preemption
2.
Congress has not acted: dormant commerce principle, Interstate Privileges
& Immunities Clause of Art. IV, 2
a. dormant commerce principle: state and local laws may not place an undue
burden on interstate commerce
b. privileges and immunities clause: states are limited as to their abilities to
discriminate against out-of-state citizens with respect to constitutional rights
and earning a livelihood
C.
Basic normative question
-how robust should judicial review of state and local laws be?
II.

Preemption

A.
Preemption defined
-valid federal law controls over state/local law on the basis of supremacy
B.
The decisive role of congressional intent
-Congressional intent determines whether preemption exists
C.
A taste of the categories of preemption
i. express preemption: federal statute itself contains a preemption clause
ii. implied preemption: statute doesnt contain a preemption clause but state law interferes with
federal goal
a. field preemption: does Congress intend to have entire field regulated by federal law (e.g.
foreign policy)?
b. conflicts preemption
-impossibility: when federal and state laws are mutually exclusive; each prohibits the other
-purposes and objectives: state law conflicts with federal laws purposes and objectives
D.
The pervasive problem in preemption cases
-Congress doesnt always make its intent clear
III.

Dormant Commerce Principle

A.
What is the dormant commerce principle?
-dormant commerce principle: state or local laws that place an undue burden on interstate
commerce are unconstitutional; inferred from Article I, 8
-dormant because Congress has not acted, thus state/local law can be unconstitutional
even in the absence of federal action
B.
Should there be a dormant commerce principle? Arguments pro and con
-no real textual argument; functional argument: dont want Congress to have to pass a
law every time state/local law violates spirit of federal statute
C.
What is the doctrinal test for the dormant commerce principle? 4 questions:
1.
Does the law discriminate against interstate commerce?
a. discriminatory on its face: laws that facially disadvantage out-of-state
residents (e.g. Michigan law prohibiting Ohioans from fishing in its waters)
b. discriminatory purpose: prima facie neutral but intended to disadvantage outof-state residents

22

c. discriminatory effects: does law disproportionately disadvantage out-ofstaters?

2.
What is the analysis if the law is not discriminatory?
-as long as it isnt preempted and doesnt violate another constitutional principle, its valid
3.
What is the analysis if the law is discriminatory?
a. discriminatory on its face: per se invalid
b. discriminatory purpose: have to show that purpose of the law is to aid gvt
and have to examine means; is there a legitimate purpose?
c. discriminatory effects: balancing test between burden on interstate commerce
and benefits of the law; if legitimate purpose exists, only clearly excessive
burdens lead to invalidity
4.
Does the law fall within an exception to the dormant commerce principle?
a.
Congressional approval
-if Congress has approved the state burden on interstate commerce, the law is ok because
Congress has acted
b.
Market participant exception
-if state isnt regulating but is acting as a market participant, burden on interstate commerce is ok
(e.g. in state v. out of state tuition, awarding gvt contracts)
IV.
Interstate Privileges and Immunities Clause of Art. IV, 2
-limits ability of states to discriminate against out-of-state residents in regard to: constitutional
rights and important economic activities
A.
Corfield v. Coryell (D. Pa. 1823) oyster case
-just because residents of a state can engage in an activity doesnt mean that out-of-state
residents can; latter have right to fundamental privileges and immunities
B.
Modern rule
-applies only if theres discrimination, not if theres an undue burden
-no exceptions for Congressional approval etc.
C.
Partial overlap with dormant commerce principle
D.
Compare with Privileges or Immunities Clause of amend. XIV, 1.
E.
What is the doctrinal test for the Privileges and Immunities Clause? 2 questions:
1.
Does the state law discriminate against out-of-state citizens with respect to
the privileges and immunities it provides its own citizens?
2.
If yes, is the discrimination necessary to achieve a substantial
governmental interest?
V.

Fun applications

VI.

Transition to Unit III

Lesson #13: Rise and Fall of Lochnerism: Protection of Economic Rights Since 1937
I.

Introduction
A.

The general subject

23

B.
Procedural versus substantive due process (SDP)
-procedural due process: gvt must follow certain procedures before depriving citizens of life,
liberty, or property (e.g. notice, a hearing, neutral judge)
-substantive due process: adequacy of gvt justification for depriving citizens of life, liberty, or
property (e.g. incorporation of Bill of Rights)
-demand for more process v. claim of infringement of fundamental rights/invalid charges?
C.

Two ways in which SDP has been used over the course of American history:
economic rights and autonomy/privacy

D.
Two eras we will examine
-Lochner: economic substantive due process v. modern era: no economic substantive due process
II.

What was the protection of economic rights under SDP from 1887 to 1937?

A.
4 reasons why this era is important
i. first time that federal court regularly struck down state law
ii. Courts failure to protect economic liberties post-1937 as reaction to Lochner
iii. struggle between judicial review protecting of individual liberties and avoiding Lochner evils
iv. what rights does the Constitution protect and whats the Courts role in protecting them?
B.
3 themes reflected in Lochner v. New York, 198 U.S. 45 (1905):
1.
2.
3.

Liberty of the DPC protects substantive rights, like freedom of contract

States may infringe those rights only if they have a valid police power
purpose
States may infringe those rights only if the infringement is necessary to
achieve a valid police power purpose

-SCT holds that freedom of contract is protected under the due process clause of the 14th
amendment and that maximum hours laws violate freedom of contract, thus violate due process
-legislature is concerned about unequal bargaining power leading to destruction of bakers health
-SCT: legislature may only infringe freedom of contract et al. if theres a valid police power
purpose and infringement is necessary to achieve that purpose (e.g. health, safety, welfare,
morals)
-connection between maximum hours law and bakers health is attenuated; Lopez question if
gvt can regulate this, what cant it regulate?; note that Muller v. Oregon (maximum hours for
women) is upheld on basis of womens fragility
-SCT requires that laws be tightly tailored in their means; concerned about attempts to
redistribute wealth on basis of unequal bargaining power
C.
Criticisms and Defenses of Lochner Era jurisprudence
-moral criticism: contracts dont exist in isolation; freedom of contract allows for unequal
bargaining power
-overstepping its role: Lochner court as acting in place of legislature

24

-inconsistent: contestable judgments about validity of legislations purpose (Muller, Lochner)

D.
Insurmountable pressures for doctrinal change by the mid-1930s
-high unemployment: freedom of contract seen as absurd; political pressure + intellectual
pressure of legal realism
III.

What is the protection of economic rights under the DPC since 1937? There is none.

A.
Cases signaling the end of the Lochner Era
-Morehead v. New York: SCT strikes down a minimum wage law under economic substantive
due process, arguing violation of right to freedom of contract
-West Coast Hotel: abjectly says that freedom of contract has no constitutional basis and rejects
idea of common law basis
-explicitly overrules Adkins and Morehead; equalization of bargaining power by legislature is
upheld by SCT
B.
United States v. Carolene Products, 304 U.S. 144 (1938)
-regulation of faux milk fat based on alleged negative impacts on health and consumer deception
-SCT applies rational basis review and says the law doesnt have to be necessarily related in
order to be constitutional; only need a conceivably legitimate purpose
C.

Examples of judicial abandonment:

1.

Williamson v. Lee Optical, 348 U.S. 483 (1955)

2.
Ferguson v. Skrupa, 372 U.S. 726 (1963)
-in Ferguson and Williamson, state limited who could perform eye examinations allegedly in the
name of public health but actually to advantage certain group of medical professionals
-under Lochner-era jurisprudence, this is a clear violation of freedom of contract
-SCT is incredibly deferential to legislatures regarding economic regulation; actual purpose
doesnt matter
-rational basis review: a conceivably legitimate gvt interest is sufficient to uphold a law
-Williamson does show discrimination on the basis of membership in a class but SCT holds that
rational basis review applies in the absence of a history of discrimination
Lesson #14: Analytical Framework; Rational Basis Review; Rational Basis Plus
I.
Historical overview
-equal protection didnt do much work for the first 85 years after its adoption; SCT is unwilling
to invalidate most instances of racial discrimination
II.

Introduction to classification-based equal protection analysis

A.
Two constitutional provisions concerning equal protection
-14th amendment, 1: equal protection against action by state and local gvt

25

-5th amendment: equal protection against action by federal gvt

B.

The analytical framework used in classification-based equal protection cases

1.
Examples
-initial suspicion/classification, ends/purposes of law, means
2.

3 questions in all equal protection cases involving classifications

a.
What is the classification?
-classifications arent always facially discriminatory (e.g. requirement that police officer
candidates be 57 is facially neutral but its purpose or effect could be to discriminate against
women)
b.
What is the level of judicial scrutiny? 3 levels
i. rational basis review: law must be rationally related to achieving a
legitimate governmental interest; any conceivable basis is acceptable
ii. strict scrutiny: law must be strictly necessary (narrowly tailored) to
serve a compelling governmental interest
iii. intermediate scrutiny: law must be substantially related to a
substantial governmental interest
-with rational basis, burden is on the plaintiff; with heightened scrutiny, burden is on the
defendant presumption of unconstitutionality
c.

Does the classification meet the level of scrutiny? 2 sub-questions

*NB
III.

Rational basis review

A.
B.

Introduction
Blackletter test

i. Whats the purpose/ends of the law?

ii. What are the means through which the law seeks to achieve its ends?
1.

Question 1 (ends): How do courts determine if there is a legitimate

purpose? 2 sub-questions:
a.

Do courts examine the actual purpose or any conceivable purpose?

See Railroad Retirement Board v, Fritz, 449 U.S. 166 (1980).
-courts examine any conceivable purpose; difficult to determine what the actual purpose is
b.
What constitutes a legitimate purpose?
-legislation may not be motivated by animus or a bare desire to harm; just about everything else
is ok
2.
Question 2 (means): How is it determined if a law is rationally related to
its legitimate ends?

26

-law will be upheld as long as theres a reasonable relationship between the ends/classification
and the means
a.
Underinclusiveness. See REA v. New York, 336 U.S. 106 (1949).
-underinclusiveness: not all similarly situated individuals are treated the same; law targets only
some of them; court defers to legislature, says it doesnt have to go after everything at once;
underinclusiveness can indicate a piecemeal approach
-REA v. New York: city law banning vans from displaying signs of other businesses on grounds
of public safety while allowing vans to display signs for their own business. Law is
underinclusive but SCT upholds it under piecemeal/one step at a time rationale.
b.
Overinclusiveness
-overinclusiveness: regulates people who arent similarly situated; why target all kinds of people
that dont need to be targeted; potential for judicial review
c.
Both?
-Korematsu v. U.S.: targeted all Japanese citizens (overinclusive), underinclusive for foreign
spies and saboteurs
IV.

Rational basis with bite / Rational basis plus?

A.
City of Cleburne v. Cleburne Living Center, 473 U.S. 432 (1985).
-City uses zoning laws to deny permit to group home for mentally retarded, advocates for
rational basis review with purposes of public opposition and the size/number of occupants.
District court finds as fact that the permit was denied because the occupants were mentally
retarded.
-SCT says that local opposition isnt a legitimate interest because gvt can give effect to bias and
says that size/number of occupants isnt legitimate interest because there are other similarly
situated groups whose permits have been approved (underinclusiveness).
-indicia of suspectness: political powerlessness, history of discrimination, immutability of
characteristic in question
B.

Other (very, very rare) instances

Lesson #15: Historical Background on Race and the Constitution; Adopting the Fourteenth
Amendment
I.
Introduction
-prior to the Civil War, racial discrimination and slavery was permitted without constitutional
limit in regard to civil and political rights
II.

Treatment of racial discrimination and subordination before the Civil War

A.
Text of the Constitution
a. 3/5 compromise
b. Article I, 9; Article V, 1: entrenchment of importation of slaves/slave trade

27

c. fugitive slave clause, Article IV

B.

Judicial decisions

1.
Prigg v. Pennsylvania, 41 U.S. 539 (1842)
-SCT held that fugitive slave clause trumped progressive state law
2.
Dred Scott v. Sandford, 60 U.S. 393 (1857)
-SCT held that Dred Scott wasnt a citizen and therefore couldnt invoke diversity jurisdiction;
struck down Missouri Compromise because it deprived slaveholders of property and therefore
violated the takings clause
C.
Race in the Northern states
-Northern states didnt allow slavery, it was the federal gvt that couldnt regulate slavery due to
the takings clause and its ban on uncompensated forfeiture of property
III.
Human toll of the Civil War
-slavery issue settled not through political process but by war
IV.

Framing and ratification of the Civil War Amendments (Reconstruction Amendments)

A.
Text of Section One of the Fourteenth Amendment
-states are explicitly the target of constitutional limitation; deprivation of life, liberty, or
property without due process, equal protection doctrine, universal citizenship
B.
Debates (or lack thereof) about the meaning of Section One3 points
-1: vague language not debated by Congress or the ratifying states
-provided only for civil and political equality, not for social equality
C.
The unusual procedural history of the Fourteenth Amendment
-readmission to the Union was conditional on ratification of the Civil War amendments
V.
Why this history matters3 reasons
-shows consequences of prudential reasoning (e.g. Taney trying to resolve the issue of slavery)
-chattel slavery is the issue that is most entwined with American constitutionalism
-Congress greatly exceeded its constitutional mandate in requiring ratification of the Civil War
amendments for readmission to the Union
Lesson #16: Applying the Amendment to Race Discrimination; Establishing Separate but
Equal
I.

Early application of the Fourteenth Amendment to race discrimination

A.
Strauder v. West Virginia, 100 U.S. 303 (1880)
-A black man was convicted of murder by a jury from which black were statutorily barred from
serving. In West Virginia, only whites were allowed to serve on juries. He appealed the
conviction as a denial of equal protection under the 14th amendment.

28

-SCT held that categorical barring of blacks from jury service was a violation of the equal
protection clause under the 14th amendment because it infringed a civil right, the right to jury
service
-concern that state singles out blacks and expressly denies them the opportunity to equal
participation; examines purpose and effects of the law
-SCT leaves open to states the possibility of de facto barring of blacks from juries
B.
Civil v. political rights
-majority held that the right to jury service was a civil right and thus violations of that right were
violations of the 14th amendment; dissent said that right to jury service was a political right and
thus not covered by the equal protection clause
-both majority and dissent accept the idea of civil and political rights
II.

Establishment of the separate but equal doctrine

A.
Plessy v. Ferguson, 163 U.S. 537 (1896)
-Plessy challenges Louisiana law that stipulates that blacks may not sit in the same railway cars
as whites; statute required railroads to provide separate but equal accommodations for blacks
and whites
-Court says no 13th amendment violation: strict construction of badges/instances of slavery
-14th amendment didnt intend to abolish distinctions in the law
-SCT holds that the law cannot be used to enforce social equality and that the law, on its face,
treats everyone the same separate but equal thus no equal protection violation; enforced
segregation is constitutional
-SCT says that any idea of discrimination exists in the heads of blacks; separate is not inherently
unequal
-Harlans dissent: case involves civil rights, since it implicates public transportation; also, while
the law is facially neutral (separate but equal), its obvious purpose is discriminatory
-Harlan: the law may not be used to establish a caste system
B.
After Plessy, outside and inside the courts
-explosion of state-enforced segregation under the separate but equal doctrine
-NAACP legal defense fund begins by targeting post-secondary education
-Sweatt v. Painter: law school for blacks violates the 14th amendment because it isnt equal,
doesnt provide the same education or the same opportunities (e.g. alumni network, etc.)
-anticlassification: Equal Protection clause prohibits classifying individuals based on race
-antisubordination: its a violation of constitutional equality for gvt to reinforce the subordinate
status of historically discriminated minority groups
Lesson #17: Brown v. Board of Education
I.

Changes in American society during the 1930s, 1940s, and 1950s

A.
B.

Enhanced political and economic power of African Americans

Nazism/World War II

29

C.
II.

Cold War

The NAACPs litigation strategy during this period

A.
Schools v. segregation in other institutions
-NAACP targeted schools for their clear connections to civil and political equality
B.
Law schools and graduate schools v. public schools
-NAACP targeted law schools and graduate schools because it anticipated less resistance
-Sweatt v. Painter: law school for blacks violates the 14th amendment because it isnt equal,
doesnt provide the same education or the same opportunities (e.g. alumni network, etc.)
III.

Brown v. Board of Education

A.
The legal action before May 17, 1954
-SCT, for re-argument, asked sides to prepare briefs on historical intent behind 14th amendment
B.
Chief Justice Warrens opinion in Brown3 questions
i. Should SCT have framed question presented differently? Were these cases of separate but
equal or were they cases of separate but unequal?
ii. Did SCT properly examine the history of the 14th amendment?
iii. Did SCT adequately justify its conclusions in regard to schools that are truly equal?
-Court found that the schools in question were tangibly equal
-SCT held that separate is inherently unequal and thus segregation is a violation of the equal
protection clause of the 14th amendment
-said that history surrounding 14th amendment was inconclusive as to extent of rights that
Congress intended to grant and said that public schooling didnt exist then, so drawing inferences
from framers intent is misguided
-justifications: effects of the law (psychological evidence), face of the law (racial classification),
purpose of the law, social meaning of the law court uses anticlassification and
antisubordination rationales
-nothing in Brown v. Board that says that racial classifications are per se invalid
C.
Bolling v. Sharpe
-struck down desegregation in D.C. public schools; decided on the same day as Brown
-used the 5th amendment to say that federal segregation in public schools wasnt valid
D.
Brown and originalism
-hard to square Brown with originalism, given legislative history of Civil War amendments
IV.

The invalidation of other Jim Crow Laws

A.
What the Court did
-SCT held that segregation of public buses was unconstitutional; affirms other lower court
decisions striking down state-mandated and public discrimination

30

-why does Brown, which applied only to public education, apply in other contexts?
-possible to make an argument about the social meaning of segregation, but SCT didnt
B.
Why the Court did it that way
-concern for conditions of Courts legitimacy, didnt want to pour gas on the fire
C.
Whether what the Court did is justifiable
-legitimacy of jurisprudence v. legitimacy in the eyes of the nation, prudential concerns
V.

Massive Resistance and post-Brown desegregation cases

A.
Brown II
-said that desegregation must be implemented with all deliberate speed, state gvt dragged their
feet, didnt act, or outright opposed desegregation
B.
Massive resistance
-Wallace and the stand in the schoolhouse door, Orville Faubus, 101st Airborne, Southern
Manifesto
C.
An overview of the cases
D.
Where we are today
-Brown is unequivocally accepted but its justifications are considered suspect
Lesson #18: Origins of the Suspect Classification Doctrine
I.
Naim v. Naim, 350 U.S. 985 (1956)
-challenged Virginias anti-miscegenation statute which prohibited whites from marrying nonwhites; Virginia Supreme Court upheld the statute
-SCT had jurisdiction as granted by Congress but remanded to the Virginia Supreme Court to
reconsider under Brown; Virginia Supreme Court upheld the ban and the SCT said that there was
no substantial federal question
-SCT was acting out of a concern of going too far too fast; statesmanship v. lawlessness and
abdication of duty
-in 1964, Congress passed the Civil Rights Act, which changed the game
II.
McLaughlin v. Florida, 379 U.S. 184 (1964)
-SCT invalidates a state law that punishes interracial cohabitation more severely than intra-racial
cohabitation
III.

Loving v. Virginia, 338 U.S. 1 (1967)

A.
End of the distinction between civil and social equality
-state of Virginia argues that the ban doesnt violate the equal protection clause because it
prohibits both whites and non-whites from interracial marriage
-SCT says that it doesnt matter because racial classifications are subject to strict scrutiny
B.
Anti-classification v. anti-subordination
-Loving is primarily anti-classification but possible to argue anti-subordination based on social
meaning on the ban on interracial marriage

31

C.
Modern origin of the strict scrutiny doctrine for racial classifications
-Loving says that laws that use racial classifications are subject to strict scrutiny: law must be
strictly necessary to serve a compelling state interest
-SCT also adds an individual rights justification by saying that the ban on interracial marriage
infringes the fundamental right to marry, a modern substantive due process claim
-what triggers heightened judicial scrutiny?
i. law creates/involves a suspect classification: equal protection
ii. the law infringes on a right itself: substantive due process
Lesson #19: When Is a Decision Based on Race?
I.

Introduction

A.
General question
When is a law that is facially race neutral regarded as being race dependent?
B.
Some examples
-criminal sentencing for crack v. powder cocaine, disproportionate impact of military draft
II.
First Question: If a law is facially neutral with respect to race, does proving the existence
of a racial classification require proof of a discriminatory purpose?
A.
The law
-for a facially neutral law, proving the existence of a racial classification requires proof of a
discriminatory purpose
B.
Implications
C.
Comparison with Title VII
-for Title VII, discriminatory impact is evidence of discriminatory purpose and thus of racial
classification because Congress intended as much in passing the federal statute
D.
Example: Washington v. Davis, 426 U.S. 229 (1976)
-discriminatory purpose needs to be proven in addition to discriminatory impact in the case of a
facially race neutral law in order to trigger strict scrutiny
-in the case of facially race neutral laws, the burden is on the plaintiff and assumption is rational
basis review
-SCT declines to read disproportionate impact into the 14th amendment; racial classification
only satisfied by but/for racially discriminatory purpose; on its own disproportionate impact
isnt sufficient to trigger strict scrutiny
E.
Normative analysis: should discriminatory impact suffice to prove a racial
classification? Anti-classification v. anti-subordination perspectives
III.

Section Question: How can a racially discriminatory purpose be proven? 3 sub-questions

A.

Sub-question #1: What does purpose mean?

1.

Tort law v. criminal law definitions

2.

Personnel Administrator v. Feeney, 442 U.S. 256 (1979)

32

-purposeful intent is necessary to prove discriminatory purpose; foreseeability alone is not

enough; Congress must have acted with a purpose to produce a certain result: because of, not in
spite of a disproportionate impact on minorities
3.
Did the Court get it right?
B.
Sub-question #2: What constitutes evidence of discriminatory purpose? 3 kinds
-(1) clear impact, (2) historical background, (3) legislative context/history
-Arlington Heights: statistical proof so clear as to leave no other feasible explanation for state
action other than discrimination; a but/for standard; see Gomillion
-in the case of a facially race neutral law (no classification), where evidence exists or it is
possible to argue that gvt was motivated by another concern, law is upheld (City of Memphis v.
Greene)
C.
Sub-question #3: What is the effect of showing proof of a discriminatory purpose?
3-step process
a. plaintiff has to make a prima facia case showing that race was a motivating factor
b. if successful, burden shifts to defendant to show that they would have taken the action
anyway, without considering race
c. court must decide if defendant would have taken the same action anyway, notwithstanding
race
-if court concludes that there was a racially discriminatory purpose, then its the same as a facial
classification and, since a racially discriminatory purpose isnt a valid state interest, the law is
invalid under the equal protection clause of the 14th amendment
IV.
A Haunting Question
-Do Davis and Feeney, by requiring but/for causation regarding purpose, limit the reach of the
equality norm of the 14th amendment in the way that civil, political, and social distinctions of the
19th century did?
-under Davis and Feeney, no need to justify laws that have a disproportionate racial impact, have
to show intentional racial discrimination in order to challenge constitutionality of law
Lesson #20: Affirmative Action: From Bakke to Adarand
I.

Introduction
A.
Intensity of sentiment on both sides.
B.
General questions: How does the Court treat racial classifications intended to
benefit racial minorities? How should the Court treat such classifications?
C.
Three sub-questions:
1.

What level of scrutiny does the Court apply to racial classifications

intended to benefit racial minorities? What level should it apply?

2.

What goals for affirmative action (ends) suffice to meet the level of
scrutiny? What goals should suffice to meet it?

33

3.

What techniques of affirmative action (means) suffice to meet the level of

scrutiny? What techniques should suffice to meet it?

II.

Sub-Question 1: What level of scrutiny does the Court apply to racial classifications
intended to benefit racial minorities?
A.
The law: strict scrutiny
-strict scrutiny is applied to laws that use facial racial classifications to benefit racial and ethnic
minorities regardless of if the law is benign or not (e.g. SCT strikes down quotas, set-asides,
and point system)
1.
Regents of University of California v. Bakke: Powell said strict scrutiny
was appropriate and thus struck down the UC-Davis quota/set aside, but
upheld the Harvard program; legitimate educational interest in diversity
2.
Fullilove v. Klutznick:
3.
J.A. Croson v. City of Richmond :strict scrutiny applies to affirmative
action by state and local gvt but intermediate scrutiny applies to
affirmative action by federal gvt
4.
Metro Broadcasting v. FCC: upheld intermediate scrutiny for affirmative
action by federal gvt
5.
Adarand Constructors v. Pena: SCT applies strict scrutiny to affirmative
action by federal gvt; overrules Metro Broadcasting and implicitly
Fullilove; affirmative action through facial racial classification not
acceptable
B.

What level of scrutiny should the Court apply?

1.
Arguments for strict scrutiny
-Equal Protection clause explicitly references individuals and not groups, while affirmative
action treats individuals differently based on their membership in a group
-affirmative action negatively affects race relations and is paternalistic (anti-balkanization)
-judges shouldnt determine which minority groups qualify for affirmative action
-hard to differentiate between benign and invidious discrimination and affirmative action can
lead to reverse discrimination
2.
Arguments for intermediate scrutiny
-legislature, not the court, should determine if affirmative action is a compelling gvt interest
-anti-subordination understanding of equality: need to act to remedy past wrongs
III.

Sub-Question 2: What goals for affirmative action (ends) suffice to meet the level of
scrutiny? What goals should suffice to meet it?
A.
Remedy for past discrimination: 4 scenarios
i. using race to help proven victims who have been discriminated against by a
proven violator
ii. using remedial order against a proven violator but not proven victims (U.S. v.
Paradise)
iii. remedial effort directed at a field where discrimination has historically existed
but theres no proven specific violator or victim (okd in Fullilove, rejected in
Croson)

34

B.
C.
D.

E.

iv. effort to remedy societal discrimination in broad sense (rejected in Wygant; not
ok under strict scrutiny but permissible under intermediate scrutiny)
Role models: rejected in Wygant; goes against treating people as individuals and
not discriminating based on their status as members of a group
Increase services in minority communities: rejected in Bakke as not compelling
under strict scrutiny
Enhancing diversity: seen as acceptable in higher education, as universities
arguably have a compelling interest in diversity; however SCT is not in favor of
using facial racial classification to achieve diversity
Legitimacy/Integration: upheld to a limited extent in Bakke, Grutter

IV.

Sub-Question 3: What techniques of affirmative action (means) suffice to meet the level
of scrutiny? What techniques should suffice to meet it?
A.
Set-asides (quotas): struck down in Bakke, permitted in Paradise as a remedy to
proven past racial discrimination; only valid, under narrow tailoring, to remedy
proven past discrimination by a proven violator
B.
Disrupting seniority systems: ruled out in Wygant; difference between hiring and
firing people to remedy past discrimination
C.
Using race as a plus factor in decisionmaking: affirmed in Grutter but problems
exist with this system from an anti-balkanization perspective
D.
Adding a set number of points to admissions scores based on minority race: struck
down in Gratz, prevents consideration of applicants as individuals
E.
What other techniques should be allowed?
-targeted outreach is likely constitutional, not contested issue (e.g. advertising to reach
minorities)
Lesson #21: Affirmative Action in Higher Education
I.

Doctrinal framework of strict scrutiny

A.
Compelling interest
-strict scrutiny: compelling government interest that is strictly necessary/narrowly tailored
B.

Narrow tailoring

1.
Stated purpose of narrow tailoring
-narrow tailoring aims out smoke out illegitimate uses of race by way of a close fit between
means and end; if law uses race but didnt need to use it to achieve purpose, it shouldnt stand
2.
Four components
i. time limit
ii. no undue burden on other races
iii. individualized consideration of applicants/individuals
iv. workable race-neutral alternatives preferred
II.

Regents of University of California v. Bakke (1978)

35

A.
Compelling interest: diversity
-Powell says that diversity isnt just based on race/ethnicity; race/ethnicity cant be used to deny
individualized consideration
-strict scrutiny applies to all racial classifications; remedial purpose is illegitimate-concerns
about reverse discrimination
B.
Narrow tailoring: individualized consideration requirement (quota v. plus)
-plans that deny individualized consideration violate narrow tailoring (quota = bad, plus = ok)
III.

Grutter and Gratz (2003)

A.
Compelling interest: the same as in Bakke or different?
-interest in obtaining a critical mass of underrepresented minority students (i.e. diversity) but
also in ensuring effective participation in civic life/leadership and in workforce
B.
Narrow tailoring: individualized consideration requirement (plus v. 20 points)
-SCT holds that 20 points doesnt fit narrow tailoring since it prevents consideration of
applicants as individuals, while use of plus factor is narrowly tailored, permitting
individualized consideration
-university only has to make a good-faith effort to consider race neutral alternatives to achieving
stated interest
IV.

Questions about Grutter and Gratz

A.
Does the Grutter Court apply strict scrutiny?
-dissent argues that majority is applying rational basis review since OConnor defers to
universitys judgment on necessity of diversity as a goal and whether this program achieves the
universitys goals
B.
Is the actual interest diversity or something else?
-arguable that UM wants diversity but also wants to maintain its status as a selective institution,
thus it wouldnt adopt Thomas suggestion of lowering standards and implementing a lottery
C.

If the compelling interest is race-conscious, why require individualized

consideration?
-if compelling interest is race conscious (diversity), why require means (admissions system) to
be race neutral?
-concerns about reverse discrimination and public perception (anti-balkanization)
Why is using race as a plus factor less constitutionally problematic than using a
racial quota or awarding minority applicants 20 points based on race?
-unclear: plus factor should prevent individualized consideration to some degree since, if its
decisive (and why would it be implemented if it wasnt), then race is being used to distinguish
among applicants
-race moderates view plus factor as less polarizing than quotas or points system
D.

36

Does the Grutter Court (that is, Justice OConnor) adopt an anticlassification
perspective, an antisubordination perspective, or a third perspective?
-anti-Balkanization: gvt may act to ensure that no racial group is so deeply marginalized as to
feel an outsider/nonparticipant so long as the gvt combats racial inequality through means that
dont unduly stimulate racial hostility and group resentment
E.

V.

Fisher v. University of Texas at Austin (2013)

A.
From Hopwood v. Texas, 78 F.3d 932 (5th Cir. 1996) to Fisher
-UT-Austin used race as a plus factor in admission until 5th Circuit struck it down in Hopwood;
university changed to a percent plan: top 10% of students from every high school in Texas were
automatic admits facially race neutral but with a race-conscious purpose; works due to rampant
racial and ethnic segregation in Texas high schools
B.
Did the Court apply Grutter or change the law? If the latter, how?
-SCT remanded and said that 5th Circuit must apply strict scrutiny; cant accept the universitys
arguments on good faith, university must demonstrate that use of race in admissions is strictly
necessary and that university has considered race-neutral alternatives
D.
Why is the 10 Percent Plan constitutionally permissible?
-facially race neutral law
Lesson #22: History; Frontiero and the ERA; Why Heightened Scrutiny?
I.

Introduction2 Questions
A.

History and Doctrine: What has been the constitutional status of women
throughout U.S. history?
-ideology of the separate spheres used to deny women the same rights accorded men; as soon as
women entered into marriage, their separate and independent status ended: domestic relations
-women barred from owning property, voting, serving on juries, bringing court cases
-SCT permitted gvt action that discriminated against women on grounds of rational review
founded on the separation of spheres (Blackwell v. Illinois) and on womens weaker status
(minimum wage laws in Adkins v. Childrens Hospital, Muller v. Oregon)
B.
Theory: What justifies subjecting sex classifications to heightened scrutiny?
-history of discrimination, traditional sex role stereotypes, immutability of characteristic and its
irrelevance to a large slice of life
II.
History; Frontiero and the ERA
-in Reed v. Reed, SCT struck down a law that preferred men over women as estate administrators
on the grounds that it was arbitrary; Court held that it was applying rational basis review, used
Equal Protection basis
A.

Highlights, outside and inside the courts (through Frontiero and the ERA)

37

-classifications based on sex are inherently suspect; Air Force that discriminated on dependent
status based on sex deserved heightened scrutiny and was struck down as arbitrary
B.
3 Morals of the Story
-recency, ideology of separate spheres, constitution outside the courts-SCT as responsive
institution
III.

Why Heightened Scrutiny?

A.
Is classification the problem?
-SCT stresses history of discrimination against women, immutability of sex as a characteristic,
Congress action as reasons to examine laws involving sex-based classifications under
intermediate scrutiny
-may not have been irrational for gvt to enact law, given traditional roles of men and women,
but SCT says that laws may not reinforce traditional sex-role stereotypes
B.
Text and history
-hard to square extension of equal protection under 1 of the 14th amendment to include sexbased classifications with the original intent of its authors
C.
Reasoning from race
-similarity: history of discrimination, immutability, political powerlessness
-differences: arguably valid reasons to discriminate on basis of sex, biological differences, racial
segregation v. sexual role differentiation
Lesson #23: What Does Intermediate Scrutiny Prohibit?
I.
What level of scrutiny is used for sex classifications, and what does it prohibit?
-intermediate scrutiny: requires exceedingly persuasive/substantial justification that the law
serves important gvt interests; administrative ease and convenience not sufficient reasons
A.
Craig v. Boren (1976)
-OK law prohibited males under 21 from buying near-beer but didnt prohibit females. Law was
challenged and OK argued that it wasnt a violation of equal protection since gvt had an interest
in safety and males made up a greater percentage of drunk drivers.
-SCT held that a generalization or stereotype, even one with some basis in empirical reality, is
subject to intermediate scrutiny: needs exceedingly persuasive justification supporting an
important gvt interest
-SCT looks to actual purpose of legislation as opposed to any conceivable purpose under rational
basis review
-Weinberger v. Wiesenfeld: SCT invalidated insurance provision of Social Security Act that gave
benefits to widows but not widowers on the grounds that it reflected archaic and overbroad
generalizations and gave force to traditional sex-role stereotypes
B.

United States v. Virginia (1995)

38

-US argued that a military colleges policy of only admitting men was unconstitutional under the
Equal Protection clause. SCT held that public military schools cannot exclude women, even if
they offer separate women-only programs unless there is an exceedingly persuasive
justification.
-burden for justification is demanding and lies entirely with the State
-Virginia reaffirms the standard of review for gender classifications requiring they be
substantially related to important govt objectives. While the benefits of single sex education as
an educational option may be an important objective, SCT held that this wasnt VMIs purpose
in excluding women.
-really about how the sex line is being used and if it serves to perpetuate traditional sex-role
stereotypes, (breadwinner v. caregiver)
-tradition isnt a sufficient justification
C.

Does separate-but-equal schooling for males and females always violate equal
protection?
-its a facial sex classification so its subject to intermediate scrutiny; an exceedingly
persuasive gvt rationale that had a substantial relation to achieving an important gvt objective
would be ok, in theory
II.

What should be the level of scrutiny for sex classifications?

A.
Arguments for strict scrutiny
-reasoning from race
B.
Arguments for intermediate scrutiny
-intermediate scrutiny makes it easier for gvt to pursue affirmative action
C.
Disagreements among feminists
Lessons #24 and #25: When Do Policies Classify on the Basis of Sex?
I.

Criteria for distinguishing gender-based and gender-neutral policies

A.

Personnel Administrator v. Feeney (1979)

1.

Two ways to prove the existence of a sex classification

a.
Facial (see, e.g., Craig v. Boren and U.S. v. Virginia)
-facial sex classification is subject to intermediate scrutiny
b.
Discriminatory purpose (see Feeney)
-facially neutral law is only subject to intermediate scrutiny if the law was passed because of its
harmful impact on women (but/for causation, similar to Washington v. Davis)
2.
What does discriminatory purpose mean under Feeney?
-SCT holds that law was passed to benefit veterans, not because it would harm women, thus
theres no evidence of discriminatory purpose; fact that women are disproportionately less likely
to be veterans isnt sufficient to establish discriminatory purpose
-SCT doesnt apply intermediate scrutiny because it holds that there was no discriminatory sexbased classification or purpose

39

-foreseeability of the consequences isnt sufficient to establish discriminatory purpose; need

but/for causation
Test:
i. Is there a facial sex classification in the law?
a. If yes, then apply intermediate scrutiny.
b. If no, then:
ii. Is there a discriminatory purpose in the law (does but/for causation exist)?
a. If no, then theres no discrimination.
b. If yes, then apply intermediate scrutiny.
-disproportionate impact isnt sufficient to reach intermediate scrutiny; Equal Protection
guarantees equal laws, not equal results
3.
B.

Is Feeneys narrow understanding of discriminatory purpose sound?

Geduldig v. Aiello (1974)

1.
Why did the Court perceive no sex classification? Was it correct?
-California law excluded disabilities incident to a normal pregnancy from a state disability
insurance scheme
-SCT: statutory distinction was between pregnant and non-pregnant individuals, as not all
women are pregnant; distinction was not between men and women, thus no sex-based
classification and no equal protection violation; no discriminatory purpose since California
argued that law was passed to ensure financial solvency of state insurance program, under
rational basis review, this is a conceivable purpose
2.
What follows if pregnancy discrimination is never sex discrimination?
-regulations on abortion are not violations of equal protection because theyre not reflective of a
sex-based classification
-discrimination on basis of pregnancy is possible: maternity leave, etc.
-possible for federal gvt to require pregnant women to get an abortion or be fired if they have
children: Struck v. Taylor-prompted Congressional action
3.
The Pregnancy Discrimination Act of 1978 (PDA)
-Congressional statute holding that, for the purposes of federal law, pregnancy-based
discrimination is sex-based discrimination
-NB: this does not apply to state gvt and to an individual right absent federal action no general
equal protection violation for pregnancy discrimination
4.
What, exactly, does Geduldig hold?
*-pregnancy-based discrimination isnt sex-based discrimination, no inherent showing of
invidious discrimination when state draws distinctions based on pregnancy
-notably, footnote a: rational basis review will be applied to pregnancy-based discrimination
except for a showing that such distinctions are a pretext for invidious sex-based discrimination

40

Is Nevada Dept of Human Resources v. Hibbs (2003) consistent with

Geduldig?
-SCT: Congress, in enforcing 14th amendment, can remedy and deter violations, thus has a
prophylactic power to proscribe facially constitutional conduct in order to prevent
unconstitutional conduct
-SCT holds that differential leave policies are the product of traditional sex-role stereotypes that
create discrimination that harms women in the workplace
-Congress remedy, the family care leave provision, is congruent and proportional to the targeted
violation (Boerne)
5.

6.
Is Coleman v. Md. Court of Appeals (2012) consistent with Hibbs?
-SCT invalidates the self-care provision of the Family Medical Leave Act as not congruent and
proportional (Boerne), thus outside Congress power, because theres no evidence that sex-based
discrimination occurs with self-care provision
-majority looks at the self-care provision in isolation and dissent says that the purpose of the selfcare provision was to prevent pregnancy-based discrimination, thus the self-care provision is
necessary and proper for FMLA
-dissent: FMLA is open to both genders because if it were only open to women, businesses
would discriminate in favor of men, who couldnt take time off for maternity leave
II.

Pregnancy as justification for sex-differentiated treatment of men & women

A.

Michael M. v. Superior Court of Sonoma County (1981)

1.
Why does the Court uphold the sex classification?
-law that only punishes males for statutory rape contains a facial sex classification and is thus
subject to intermediate scrutiny
-Court holds that the purpose of the state is to prevent teenage pregnancy, that the state has a
compelling interest in preventing teenage pregnancy, and that a statute which only punishes
males for statutory rape is substantially related to that important interest
-majority says that if females could be prosecuted for statutory rape, they wouldnt report it
-dissent: majority didnt apply intermediate scrutiny; traditional sex-role stereotypes cant be the
basis for a state interest
2.
Does the classification reflect or reinforce traditional sex-role stereotypes?
-statute is based on the idea that since women bear the harms of sexual intercourse (i.e.
pregnancy) and men are more likely to be the aggressor, law should target men in order to deter
men from statutory rape, thus equalizing the harms of teenage pregnancy
B.

Nguyen v. INS (2001)

1.
Why does the Court uphold the sex classification?
-Statute deals with obtaining citizenship when one parent is a U.S. citizen, the couple isnt
married, and the child is born outside the United States.
i. If the mother is a U.S. citizen, child is U.S. citizen as long as the mother has lived in the U.S.
for one year.

41

ii. If the father is a U.S. citizen, child is U.S. citizen only if the father agrees in writing to
provide financial support and acknowledges paternity.
-Facial sex classification
-Law seems to be based on assumption that men are deadbeats, and that American men will be
fathering children overseas: law doesnt want to grant citizenship based on irresponsible men.
Law also seems to assume that theres a bond present between a mother and a child solely based
on child birth that isnt present by fatherhood, thus need for dad to acknowledge his role as
parent.
-Court holds that (1) theres no doubt as to the identity of the mother due to childbirth but that
there could be doubt as to the identity of the father, (2) its important that there be a real
relationship between child and parent and childbirth already signifies a relationship between
mother and child
-SCT: compelling gvt interest is in the opportunity for relationship between child and parent;
however, Kennedy cant require actual relationship because then the classification is facially sexbased, since both mother and father could have an actual relationship, thus no basis for
discrimination
2.
Does the classification reflect or reinforce traditional sex-role stereotypes?
-Yes: Love finds its highest expression in the bond between a mother and her child. Men are
characterized as deadbeats.
3.
What is this case really about?
-in several cases, SCT characterizes gendered state action as gender-neutral (Feeney, Geduldig,
Roe), thus permitting rational basis review
-while SCT refuses to treat regulation of pregnant women as gender-based state action
(Geduldig), it treats reproduction as the site of defining gender-based differences (Nguyen,
Michael M.)
Lesson #26: Antecedents; Birth of Modern Era; Theories and Critiques
I.

Introduction to fundamental rights protected under substantive due process

A.
B.
C.
D.

II.

Analytical structure in fundamental rights cases4 questions:

A.
B.
C.
D.

III.

Classification-based equal protection v. fundamental rights

Fundamental rights under substantive due process v. under equal protection
What it means for a right to be deemed fundamental
The Ninth Amendment and its role

First, is it a fundamental right?

If yes, has the government infringed the right?
If yes, is there a sufficient justification for the law?
If yes, are the means employed sufficiently related to the sufficient justification?

Theories of fundamental rights

42

A.
B.
C.
IV.

Conventional morality (ethos)

Independent moral reasoning (rights-based theories)
Critiques of each approach

Antecedents: Family Autonomy

A.

Right of parents to control their childrens upbringing

1.
2.

B.

Right to marry
1.
2.

V.

Meyer v. Nebraska (1923)

Pierce v. Society of Sisters (1925)

Loving v. Virginia (1967)

Zablocki v. Redhail (1978)

Modern Substantive Due Process: Reproductive Autonomy

A.

Right to procreate
1.
Buck v. Bell (1927)
2.
Skinner v. Oklahoma (1942)

B.

Right to purchase and use contraceptives

1.
Griswold v. Connecticut (1965)
2.
Eisenstadt v. Baird (1972)
3.
Carey v. Population Services (1977)

C.

Right to abortion (next lesson)

Lesson #27: The Abortion Dilemma: Roe v. Wade; Abortion and Equal Protection
I.

II.

Introduction
A.

Reproductive autonomy v. protection of innocent human life

B.

The scope of the right to control reproductive autonomy after Eisenstadt

The Decision in Roe v. Wade

A.

The state of the nation in 1973

B.

The difficulty of the question

C.

The 6 approaches available to the Roe Court

D.

Virtues and vulnerabilities of the various approaches

43

III.

IV.

Abortion and Equal Protection

A.

The general issue: liberty v. equality (v. both)

B.

To what extent do some abortion restrictions reflect not only concern for the fetus,
but also traditional sex-role stereotypes?

C.

How can one tell?

Roe and Backlash

A.

The backlash thesis (view of Justice Ginsburg, Justice Scalia, others)

B.

Critics of the backlash thesis (David Garrow, Reva Siegel & Linda Greenhouse)

C.

Why the issue matters

Lesson #28: Decisions After Roe

I.

After Roe: 1973-1989

A.
B.

II.

Webster v. Reproductive Health Services (1989)

A.
B.
C.

III.

What the Missouri statute did and did not do

What the Court did and did not do
The opinions written or joined by Justice OConnor and Justice Kennedy

Changes in the Courts composition: 1990-1991

A.
B.
C.

IV.

Changes in constitutional politics

Changes in the Courts composition

1990: Justice Souter replaced Justice Brennan

1991: Justice Thomas replaced Justice Marshall
The likely consequences for Roe

Planned Parenthood v. Casey (1992)

A.
B.
C.
D.
E.

What the Pennsylvania statute did and did not do

What the Court almost did but did not do
The unusual joint opinion of Justices OConnor, Kennedy, and Souter
What Casey holds
Questions about Casey:

44

1.

What is the rationale for the abortion right in Casey?

2.

Is stare decisis the best argument for the abortion right in Casey?

3.

Is abandoning strict scrutiny consistent with what the Court says about
stare decisis?

4.

Is abandoning strict scrutiny consistent with what the Court says about
legitimacy at 1430-31?

5.

Is the plurality responding to public opinion?

6.

If so, is that a good thing or a bad thing?

7.

Is the legitimacy talk at 1431 self-undermining?

8.

Is the plurality consistent in defining what is an undue burden?

9.

Is the Court consistent in applying the undue burden test?

Lesson #29: Other Restrictions, Including Bans on Partial-Birth Abortion

I.

Introduction
A.

Question: What regulations of abortion are permissible post-Roe and post-Casey?

What is the state of the law regarding specific abortion-restrictive regulations?

B.

Road map of 3-step approach to answering the question:

1.
2.
3.

II.

The Courts responses to various regulations of abortion

A.
B.
C.
D.
E.

III.

The Courts responses to various regulations of abortion

Other kinds of regulations of abortion that state legislatures have passed
The question of partial-birth abortion

24-hour waiting periods

Denial of government funding for abortion
Parental consent or notification for unmarried minors abortions
Spousal consent or notification
Casey-style informed consent requirements

Other kinds of regulations of abortion that state legislatures have passed

A.
B.

South Dakota-style informed consent requirements (see Supp. pages 332-33)

Longer waiting periods

45

C.
D.
E.
F.
G.
H.
IV.

Requirements to view a sonogram or photographs

Requirements to submit to, and possibly pay for, an ultrasound, vaginal or other
Flat-out bans pre-viability based on fetal pain rationale
TRAP laws
Requirements for MDs who perform abortions to have admitting privileges
Bans on partial-birth abortion

The question of partial-birth abortion

A.

Stenberg v. Carhart (2000)

1.
Breyers majority opinion
2.
OConnor concurrence
3.
Dissents, especially Kennedys
4.
Who is most faithful to Casey?

B.

Congresss response: The PBABA of 2003

C.

Gonzales v. Carhart (2007)

1.
Kennedys majority opinion
2.
Ginsburgs dissent
3.
Questions

Lesson #30: Same-Sex Intimacy and Discrimination Based on Sexual Orientation

I.

II.

III.

Political Origins of the Claims to Constitutional Attention

A.

Stonewall Riots (1969)

B.

Social Movement Advocacy in the 1970s and 1980s

Bowers v. Hardwick, 478 U.S. 186 (1986) (CB 1466-82)

A.

Facts and the Courts statement of the question presented

B.

The Courts reasoning

Romer v. Evans, 517 U.S. 620 (1996)

A.

What Amendment 2 did

B.

Arguments in defense of Amendment 2

C.

The Courts response

D.

5 questions

46

IV.

Lawrence v. Texas, 539 U.S. 558 (2003)

A.

Facts

B.

Kennedy majority opinion

C.

OConnor concurrence in judgment

D.

Scalia dissent

E.

9 questions

Lesson #31: Same-Sex Marriage

I.

Baehr v. Lewin, 74 Haw. 530, 557 (1993) (holding that Hawaii state laws discriminatory
definition of marriage triggered strict scrutiny under the state constitution)

II.

Congresss response: DOMA (1996)

III.

Post-DOMA developments in the states

IV.

United States v. Windsor, 133 S. Ct. 2675 (2013)

A.

Facts

B.

Question Presented

C.

Proceedings Below

D.

Questions:
1.

What is the holding? (Roberts v. Scalia)

2.

Relatedly, if you were a federal district judge, would you invalidate a state
prohibition on same-sex marriage in light of Windsor?

3.

Is the Court right that Section 3 of DOMA was motivated by a bare

congressional desire to harm gay people?

4.

What standard of review did the Court say it was applying?

5.

What standard of review did the Court apply?

6.

What standard of review should the Court have applied? Why?

47

7.

Why didnt the Court tell us whether courts should apply heightened
scrutiny to discrimination based on sexual orientation?

8.

Might the voting alignment in Hollingsworth v. Perry, 133 S. Ct. 2652

(2013), help to identify which members of the Windsor majority are most
loath to invalidate state bans on same-sex marriage at this time?

9.

Are Justices Scalia and Alito right that one can oppose same-sex marriage
without being bigoted or wanting to humiliate gay couples and their kids?

10.

Knowing what you know about the evolution of constitutional convictions

on racial and gender equality, is the answer to question #9 likely to be the
same in 1973, 2013, and 2053?

48