CONLAW II – CLASS NOTES

POST-CIVIL WAR AMENDMENTS AND THE “INCORPORATION” OF FUNDAMENTAL RIGHTS

1. Individual Rights Prior to the Civil War:

a. The bill of rights guarantees were originally only there to constrain the federal government
i. Barron v. Baltimore (1833): Court held that Bill of Rights only binds federal, not states

2. Post-Civil War Amendments to the Bill of Rights:

a. Bill now restrains not only the federal government but also the state government
b. Dred Scott v. Sandford (1857): very early example of substantive due process, court says that it would violate due
process to allow property to be taken away from a US citizen
i. 1st Sentence of the 14th Amendment overturns this case as it says that all persons born in the US citizens
c. Slaughter-House Cases (1873): Court narrowed their reading of the 14th Amendment by emphasizing that the Civil
War Amendments was not meant to radically expand the power of the Supreme Court to regulate the relationship
of the states to their own citizens
i. “Selective Incorporation” – Court says that Bill of Rights guarantees can be incorporated against the
states if:
1. The rights are fundamental enough
2. Enforced using due process clause
3. All except the 3rd amendment, 5th amendment grand jury indictment, 7th amendment right to jury
trial cases, 8th amendment excessive fines clause

DUE PROCESS

1. What are Economic Liberties?

a. Ability to enter into a contract
b. Ability to acquire, possess and convey property
c. 14th Amendment protects these liberties:
i. “persons cannot be deprived of life, liberty, or property without due process of law”

2. What is Due Process?

a. SCOTUS has held that the DP clauses of the 5th and 14th Amendments restrict the substance as well as the
procedures of governmental regulation.
b. Procedural: typically requires some sort of notice before the deprivation and an opportunity to challenge due process
c. Substantive: the types of fundamental rights that are so basic to individuals that the government cannot take it away
i. How do we know they’re fundamental? This is an issue, they ARE NOT written down
ii. In both instances, the Court has used the Due Process Clause to (1) protect certain unwritten,
unnumbered, due process rights protecting individuals against the states and (2) enforce the Bill of Rights
guarantees
iii. Why is it up to the judges to decide?

3. SECTION 1: Substantive Due Process and Economic Liberties

a. Calder v. Bull (1798):
i. CHASE: argues that there are fundamental rights even if they’re not written down – they come from
“natural law” – things that are so common sense that it doesn’t have to be in the constitution
1. He believes his role as a judge is to protect natural rights which are fundamental rights that
individuals possess that no legislature can take away
ii. IREDELL: disagrees because it is not the role of the judge to strike down state statutes unless there are
flaring defects – this is only the will of the democracy
1. The only role of the judge is to say whether or not the state statute is inside or outside the
written constitution
b. Lochner v. New York (1905):
i. Facts: NY Law sets maximum hours law, Lochner convicted and fined for permitting employee to work
in his bakery for more than 60 hours a week or more than 10 hours a day
ii. Holding: NY law violates substantive due process under the 14th Amendment because an employer and
employee should have the freedom to contract
1. Could say that it’s judicial activism to say that New York can’t regulate
 iii. Reasoning: 3 main reasons for the holding – why NY Law was struck down
1. The right to contract is a fundamental right
a. Per the 14th Amendment, the general right to make a contract is protected as a “liberty”
i. Included within this is the right to buy and sell labor
ii. Court doesn’t use the term “fundamental” but that seems to be the idea
2. Improper ends – redistribution and paternalism are illegitimate governmental ends
a. 10th Amendment – all the enumerated rights not given to the federal government falls
onto the states
b. State has police powers relating to the safety, health, morals and general welfare of its
people
c. Court argues that there are ulterior motives to “labor laws” like this – redistribution of
wealth
i. Limiting hours means hiring more workers for the same work
3. The “means ends” problem – question about the relationship between the ends and the means
a. Health and safety are legitimate government ends but the relationship between that and
the means that the statute uses to achieve it are too attenuated
b. There isn’t a clear relationship between hours worked and health and safety – baking is
not that dangerous a job
c. The law is not narrowly tailored to achieve a legitimate government purpose
iv. Harlan (Dissent): takes position that right to contract is not fundamental – believes that court should
typically defer
1. Democratic accountability – it’s better to let this type of decision be left up to legislature than to
judges since judges are a lot harder to overturn/ change
v. Holmes (Dissent): Economic theory shouldn’t be included as an interpretation of the constitution
vi. Why has the Court repudiated Lochner but allowed other cases?
1. “Liberty” – contracts that involve use of one’s body such as labor or the right to an abortion are
more closely related to one’s liberty than contracts involving two businesses – public vs. private
(intimate) decision making
vii. Lochner was eventually overturned for a number of reasons:
1. Court-packing deal

4. The Demise of Lochner after the New Deal

a. Nebbia v. New York (1934): case is about deferring on the means-ends relationship
i. Facts: D, the proprietor of a grocery store in Rochester, sold two quarts and a five cent loaf of bread for
eighteen cents, and was convicted of selling milk below the minimum price.
ii. Reasoning:
1. Nebbia would say that he has the right to use his property and make contracts as he sees fit
2. Uses Lochner to say that regulating the price of his private goods would be a violation of
substantive due process
3. State would argue back that, so far as due process is concerned, a state is free to adopt whatever
economic policy may reasonably be deemed to promote public welfare and to enforce that policy
by legislation adapted to its purpose
iii. Holding: The law is upheld, there is a reasonable relation to proper legislative purpose and are not
arbitrary nor discriminatory – satisfies the requirement of due process
1. This case is about deference on the means-ends relationship
2. “State may be free to adopt whatever standard”
iv. Compared to Lochner:
1. Different basis points – Lochner is first skeptical of statute while here it is initially deferential
b. West Coast Hotel Co. v. Parrish (1937):
i. Facts: upheld state minimum wage law for women, overturned Adkins
ii. Holding: the right to contract is no longer a fundamental right, redistribution and paternalism are OK
if the state wants to decide to regulate in a way that protects certain classes of workers or shifts power
from one class to another
1. This can be seen as part of the state’s policing powers to protect the general welfare of its people
iii. Reasoning: It’s inappropriate for state to take from A and give to B
c. US v. Caroline Products Co. (1938):
 i. Facts: the Court rejected a due process challenge to a federal prohibition of the interstate shipment of
“filled milk” – skimmed milk mixed with non-milk fats – as an “adulterated article of food” whose sale
constituted a “fraud upon the public.”
ii. Standard of Review: “rational basis” – the basic requirement is that a law meets rational basis review if it
is rationally related to a legitimate government purpose
1. The law will be upheld under the due process clause, commercial transactions included, if it
meets this requirement
2. The default is deference – will PRESUME a rational basis
3. Even in the absence of such aids, the existence of facts supporting the legislative judgment is to be presumed,
for regulatory legislation affecting ordinary commercial transactions is not to be pronounced unconstitutional
unless in the light of the facts made known or generally assumed it is of such a character as to preclude the
assumption that it rests upon some rational basis within the knowledge and experience of the legislators
iii. Justice Stone’s footnote: distinguishes cases which warrant greater judicial scrutiny over general
deference – 3 types of cases
1. Bill of Rights guarantees
2. Judicial intervention is more appropriate the less political processes may be trusted to even
out winners and losers over time.
3. Beginning of idea of SUSPECT CLASSES

5. Minimum Rationality Review of Economic Legislation

a. Williamson v. Lee Optical Co. (1955):
i. Facts: OK statute that prohibits an optician from duplicating lenses without an eye doctor
ii. Holding: We see no constitutional reason why a State may not treat all who deal with the human eye as
members of a profession who should use no merchandizing methods for obtaining customers.
iii. Reasoning: SCOTUS reverses district court’s decision to strike down the statute
1. Federal court struck it down because it believed that relationship between eyesight was too
attenuated
2. “The day is done where this court uses the due process clause to strike down state laws …
because it does not align with a particular school of thought”
a. Directly goes against Lochnew
3. Says that court is going to defer even when state is protecting an interests

6. SECTION 2: SUBSTANTIVE DUE PROCESS AND PRIVACY

7. Cases that Survived Lochner Aftermath – cases deemed too family related
a. Meyer v. Nebraska (1923):
b. Pierce v. Society of Sisters (1925):

8. Substantive Due Process, Childbearing, and Contraception

a. Griswold v. Connecticut (1965): NOTE: Harlan is the key opinion here, not Douglas
i. Facts: two provisions of CT state law; (1) prohibits use of contraception, makes using it a criminal
offense and (2) prohibits distribution of contraceptives – aiding and abetting – makes it a criminal offense
1. Executive director of Planned Parenthood of CT and doctor that ran PP clinic are prosecuted
under these laws
2. Theory of prosecution is that they provided contraception, advice and birth control related
materials to a married woman
ii. Issue: Does the statute violate the 14th Amendment?
iii. Holding: The right of married couples to use contraception is within the fundamental right to privacy.
iv. Reasoning (Douglas Majority):
1. The Bill of Rights guarantees all imply that there is a right to privacy and within this right is the
right to use contraception
2. The right to privacy is a fundamental right
3. Court saying that it is a fundamental right means that it shifts the default
a. Ordinary default: court will typically uphold governmental regulation (as per democracy
in society)
b. In certain, rare, unusual circumstances, the court will be suspicious of laws which is
operationalized in strict scrutiny standard
i. Court is suspicious of laws involving FUNDAMENTAL rights
 ii. Means that State has to have good rationale/ justification for the law and show
how the law relates to justification that is put forth
4. Fundamental right is not all private/ intimate conduct but rather the privacy of the marital
bedroom
5. Using penumbra approach – wants to avoid Lochner by using this approach
v. Reasoning (Goldberg):
1. The ninth Amendment reads, “The enumeration in the Constitution, of certain rights, shall not
be construed to deny or disparage others retained by the people.”
a. To hold that a right so basic and fundamental and so deep-rooted in our society as the
right of privacy in marriage may be infringed because that right is not guaranteed in so
many words by the first eight amendments is to ignore the 9th Amendment and to give it
no effect whatsoever.
2. BLACK says that this is baloney – 9th and 10th Amendment usually work in tandem and using
the 9th in this way is incorrect
vi. Reasoning (Black Dissent):
vii. Reasoning (Harlan):
1. Believes that there is an inherent right to privacy within the liberty clause of 4th Amendment
2. Liberty cannot be deprived without due process of law – means that right cannot be encroached
upon without a compelling governmental interest and a showing of the connection between
that interest and the right
3. Worried about judges injecting their own opinions – method of judicial restraint – “guided by
teachings of history”
4. Marital relationships are a fundamental right because it has been protected since the start of time
5. What is the scope of that right?
viii. If Lochner was wrong, how could Griswold be right?
1. Contracts vs. determinations regarding sexual activity = public/ governmental vs. private
2. Footnote from Carolene Products – there are some systematically disadvantaged persons such as
indigent women in privacy/ private cases
3. When it comes to economic situations, it’s difficult to tell who are the systematically
disadvantaged losers
a. Lee Optical says that the court will not run to the rescue of these “losers”
ix. Narrow vs. Broad view of Griswold:
1. Narrow: marriage is a fundamental right
2. Broader: marriage privacy is a fundamental right
3. Broad: sexual/ intimate privacy is a fundamental right
b. Eisenstadt v. Baird (1972):
i. Conviction of unmarried person with contraception was overturned
ii. Equal protection clause case – as with due process clause – default standard of review is rational basis
iii. Idea that married people can get contraception but unmarried persons can’t violates the equal protection
clause
iv. Reasoning: not related to a legitimate government purpose
c. Does the right to control procreation include the right to terminate a pregnancy?
i. Griswold and Eisenstadt speak to this but Roe takes it head on

9. Substantive Due Process and Abortion

a. Roe v. Wade (1973):
i. Facts: TX law prohibits all abortions except those necessary to protect the life of the expecting mother
ii. Reasoning:
1. Court finding right to privacy under liberty – in 9th Amendment
2. Broad enough to encompass a woman’s decision of whether or not to terminate a pregnancy
3. Bodily Integrity: physical and psychological impact of carrying an unwanted baby to term
a. There is a right to control one’s body
4. Is a fetus a “person”?
a. Court says no – a person for the purpose of the 4th amendment does not include the
unborn
5. There will be no direct balancing between the fetus and the woman
6. Court is using strict scrutiny to weigh the interest of the state and the individual
a. State has 2 interests: protecting maternal health and protecting life
 7. We care about the state interests because whenever they become “compelling”
a. First vs. Second vs. Third trimesters
iii. Objections to Roe: (from left to right)
1. Roe = Lochner
a. White says that this is an exercise of raw judicial power – there’s no justification for it
based on the text of the Constitution or the history
b. Carolene Products
c. Rehnquist thinks this isn’t even matter of privacy – more of a transaction
2. What about the fetus?
3. Roe and sex equality:
iv. Roe and stare decisis:

b. Planned Parenthood of Southeastern Pa. v. Casey (1992):

c. Gonzales v. Carhart (2007):
i. Facts: The surgical procedure referred to as “dilation and evacuation” or “D & E” is the usual abortion
method in the second trimester.
1. In D & E, the doctor inserts grasping forceps through the woman’s cervix and into the uterus to
grab the fetus, evacuating the fetus piece by piece until it has been completely removed.
2. The abortion procedure that was the impetus for the numerous bans on “partial-birth abortion,”
including the Act, is a variation of this standard D & E
a. In an intact D & E procedure the doctor extracts the fetus in a way conducive to pulling
out its entire body, instead of ripping it apart.
ii. Issue: Under Casey, does this Act, measured by its text in this facial attack, impose a substantial obstacle
to late-term, but previability, abortions?
iii. Holding: The Act does not on its face impose a substantial obstacle
1. The Act here departs in material ways from the statute in Stenberg.
a. It adopts the phrase “delivers a living fetus,” instead of “ ‘delivering a living unborn
child, or a substantial portion thereof.’”
b. The identification of specific anatomical landmarks requires the fetus to be delivered so
that it is partially “outside the body of the mother,” unlike the NB statute.
2. The Act expresses respect for the dignity of human life
a. The government may use its voice and its regulatory authority to show its profound
respect for the life within the woman
3. Congress determined that the abortion methods it prescribed had a “disturbing similarity to
the killing of a newborn infant,” and thus it was concerned with “drawing a bright line that
clearly distinguishes abortion and infanticide.”
a. The State has an interest in ensuring so grave a choice is well informed.
4. Congress demonstrates both sides have medical support for their position
a. The question becomes whether the Act can stand when this medical uncertainty
persists
b. The act is not invalid on its face where there is uncertainty over whether the barred
procedure is ever necessary to preserve a woman’s health, given the availability of
other abortion procedures that are considered to be safe alternatives.
5. In these circumstances the proper means to consider exceptions is by as-applied challenge
a. Can it be shown that in discrete and well-defined instances a particular condition
has or is likely to occur in which the procedure prohibited by the act must be used.
6. What are the issues with using the as-applied approach over facial approach?
a. Raises costs – health issues have to be separately litigated
b. Uncertainty – not sure what has to be shown in her particular cases and other cases
in the future
c. Defaults – shifting of the defaults, court seemed to be analyzing both sides of the
abortion debate in Casey but tone here feels different
i. Feels more deferential to government – suggesting that court will tend to
uphold abortion laws more often than not
7. Court is rejecting facial challenges because there is uncertainty – as applied
challenges remain open but this is all happening with standard D&E in the
background
a. Government has prohibited specific abortion procedure which is quite rare
 b. In this context, the government may prohibit a specific abortion procedure as long
as the standard D&E remains open as an option

d. Whole Woman’s Health v. Hellerstedt, Commissioner, Texas Dept. of State Health Services (2016):
i. Facts: Texas statute with two provisions in question (for every abortion performed within the state):
1. Admitting privileges requirement: a physician performing or inducing an abortion must, on
the date the abortion is performed or induced, have acting admitting privileges at a hospital that
is located not further than 30 miles from the location at which the abortion is performed or
induced.”
2. Surgical-center requirement: “the minimum standards for an abortion facility must be
equivalent to the minimum standards adopted under the TX health and safety code for
ambulatory surgical centers.”
ii. Issue: We must determine whether the two provisions of TX’s House Bill 2 violate the Constitution as
interpreted by Casey.
iii. Holding: We conclude that neither of these provisions confers medical benefits sufficient to justify the
burdens upon access that each imposes.
iv. Reasoning:
1. Standard: whether the benefits the law purports to advance are sufficient to justify the burdens
that the law imposes – aka do the benefits outweight\ the costs
2. Is there a constitutionally acceptable objective? How do we know
a. Undue burden test is not a rational basis
3. Purpose of admitting-privileges requirement is to help ensure that women have easy access to a
hospital should complications arise during an abortion procedure
4. The government may encourage but cannot prevent woman from getting abortion

10. Substantive Due Process and Marriange and Family Relationships

a. Marriage:
i. Loving v. Virginia (1967): there is a fundamental right to marry
1. Law banning interracial marriage is struck down – primarily on equal protection grounds
ii. Zablocki v. Redhail (1978): law providing that anyone with child support obligations must get court
approval to be arried
1. Court says right to marry is fundamental – strict scrutiny review – must have compelling
governmental interest and means must be tailored narrowly to achieve such interest
b. Household Composition and Extended Family Relationships:
i. Moore v. East Cleveland (1977):
1. Law that grandmother cannot live with two children who are cousins because they are not
“nuclear family”
2. Court strikes it down the law under substantive due process
3. Majority cites concurring opinion by Harlan in Griswold to strike down the ordinance by saying
that there is a long history and tradition of family
ii. Troxel v. Granville (2000):
1. Court says that there is a private fundamental liberty right to care and control of one’s children –
custodial rights – both procedural and substantive due process rights apply here
c. Family Relationships and the Role of Tradition:
i. Michael H. v. Gerald D (1989):
1. Facts: Case that arose from application of a CA law establishing a presumption that a child born
to the wife is legitimately a child of the marriage, a presumption rebuttable only under limited
circumstances.
a. Michael H., claiming to be the biological father of the child of Carole D. and Gerald D.,
a married couple, sought visitation and other rights with respect to the child.
b. The CA courts, rejected Michael H.’s claim of paternity even though blood tests
established a 98.07% probability that he is the father.
2. Majority (Scalia): none of Michael H.’s constitutional rights had been violated
a. In Scalia’s view, due process protection required “not merely that the interest
denominated as a liberty ‘liberty’ by ‘fundamental,’ but also that it be an interest
traditionally protected by our society.
i. “Thus, the legal issue here reduces to whether the relationship between the
persons in the situation of Michael and Victoria (the child) has been treated
 as a protected family unit under the historic practices of out society, or
whether on any other basis it has been accorded special protection.
1. We think it impossible to find that it has.
b. In a lengthy footnote, Justice Scalia defended his position that resort to “tradition”
required emphasis on the “most specific” level of generality at which the history and
tradition could be perceived.
i. WE GET THIS FROM HARLAN
ii. Basically saying that history and tradition can be used but must be very
careful and therefore must choose most specific tradition – otherwise
judges can still roam free
3. Dissent (Brennan): says that Scalia doesn’t take into consideration that tradition has changed
– must take these changes into consideration when viewing fundamental rights
a. Saying that Scalia chose a subjective methodology – chose the one that gives him
the outcome he wants

11. Substantive Due Process, Sexuality, and Hybrid Due Process-Equal Protection Rights
a. Does substantive due process protect only negative liberty – freedom from government interference in
private decisions, such as consensual sexual behavior – or does it extend to positive liberty – the freedom to
participate fully in all societal institutions, including marriage and child rearing?
b. Bowers v. Hardwick (1986):
i. Facts: Case involving a facial challenge to a GA law that defined sodomy as “committing or
submitting to ‘any sexual act involving the sex organs of one person and the mouth or anus of
another,’” and made such an act a felony punishable by up to 20 years in prison.
1. Hardwick is bringing a facial challenge
ii. Holding: By a vote of 5-4, the Court upheld the statute as applied to “homosexual sodomy.” –
constitutional does not give a right to engage in such behavior
1. “hence invalidates the laws of the many States that still make such conduct illegal and have
done so for a very long time”
iii. Majority (White): Found that so defined, the right was not fundamental within the meaning of the
Court’s precedents under the Due Process Clause:
1. No connection between family, marriage, or procreation on the one hand and homosexual
activity on the other has been demonstrated.
2. Proscriptions against that conduct have ancient roots
c. Romer v. Evans (1996):
i. Unconstitutional to single out gay persons for conduct
ii. Equal protection case
iii. Says that Amendment II is unconstitutional because it is:
1. A denial of equal treatment for one single named group – facially unconstitutional
2. Amendment II must have been passed out of animus – animus is not a legitimate government
purpose
d. Lawrence v. Texas (2003):
i. The 4th Casey factor was: have the facts changed?
ii. Here, the court suggests that they have, the laws are on the books but the states aren’t enforcing them so
the fact has changed
1. Stare decisis discussion
iii. Dissent (Scalia): thinks the majority is taking sides in the culture wars, abandoning neutrality
1. Every time the court strikes down a piece of legislation, it’s taking a side
e. United States v. Windsor (2013):
i. Facts: 2 NY residents married in Ontario, recognized as valid marriage in NY.
1. Spayer died in 2009 and leaves entire estate to Windsor
2. Windsor now wants to claim the NY state tax exemption for spouses
3. DOMA is a federal statute – if she was in a heterosexual marriage, she would have been exempt
from taxes (about $363K)
4. So why does she have to pay the taxes?
5. Section 3 of DOMA: the word “marriage” means only a legal union between one man and one woman as
husband and wife, and the word “spouse” refers only to a person of the opposite sex who is a husband or a wife.
 6. Windsor now challenges this provision of the federal statute saying that it is unconstitutional –
wants a refund
ii. Issue: Does DOMA violate the guarantee of equal protection as applied to the Federal Government
through the Fifth Amendment?
iii. Holding: DOMA is invalid, no legitimate purposes overcome the purpose and effect to disparage and to
injure those whom the State, by its marriage laws, sought to protect in personhood and dignity
iv. Reasoning (Kennedy):
1. The State of NY has recognized this union as a valid, legal marriage
2. Have always recognized that the states, not the federal government, have power to regulate
marriage and now they suddenly want to come along and define what marriage is
a. But we should typically defer to the State’s definition of marriage
3. DOMA violates but the equal protection and the due process clause
a. 14th Amendment constrains state action
b. Equal protection are equally valid and equally binds the federal government through the
due process clause of the 5th amendment
4. The federal statute treats similarly situated people differently
a. Statute creates a classification scheme – this is unconstitutional
5. Rational basis standard of review used
6. Case not decided under the right to privacy

f. Obergefell v. Hodges (2015):

i. Issue: Is same sex marriage guaranteed by the 14th Amendment to the Constitution via liberty and/or
equal protection
ii. Argument: State statutes that ban same-sex marriage violates the equal protection and due process clauses
of the 14th Amendment
iii. Holding: Same-sex couples may exercise the right to marry, the Equal Protection Clause, like the Due
Process Clause, prohibits an unjustified infringement to the fundamental right to marry
iv. Reasoning:
1. Interpretive process: what is the court doing here in the due process analysis?
a. Looking at the institution of marriage and precedents
b. Nothing in the constitution that speaks to right of same-sex couples to get married
c. Now the question is whether or not this right is protected
d. Court is basically saying yes, if you’re defining it at a very high level of generality

EQUAL PROTECTION

1. MINIMUM RATIONALITY REVIEW OF ECONOMIC REGULATION

a. Judicial Deference to Economic Regulation
b. Should Rationality review be Stricter?

2. RACE DISCRIMINATION
a. The Unconstitutionality of Racial Segregation
i. Early interpretation of the 14th Amendment:
1. Strauder v. West Virginia (1880):
ii. “Separate but equal”
1. Plessy v. Ferguson (1896):
iii. Segregation in public education:
1. Missouri ex rel. Gaines v. Canada (1938):
2. Sweatt v. Painter (1950):
3. McLaurin v. Oklahoma State Regents (1950):

b. Brown v. Board of Education [Brown I] (1954):

i. Facts: In each of these cases, minors of the Negro race seek the aid of the courts in obtaining
admissions to the public schools of their community on a non-segregated basis.
1. In each instance, they had been denied admission to schools attended by white children
under laws requiring or permitting segregation according to race.
 ii. Issue: Does segregation of children in public schools solely on the basis of race, even though the
physical facilities and other “tangible” factors may be equal, deprive the children of the minority
group of equal educational opportunities?
iii. Holding: In the field of public education, the doctrine of “separate but equal” has not place –
separate educational facilities are inherently unequal
iv. Reasoning:
1. Importance of public education
a. State mandated racial separation denies equal educational opportunities
b. Education is NOT a fundamental right
2. Hearts and minds
a. Segregation has detrimental effect – causes feeling of inferiority as to their status in
the community
b. Stigmatizes and subordinates a racial group
c. This is based on scientific studies showing retardation of educational and mental
development
i. This evidence is somewhat sketchy
ii. Evidence is being put in to support assertion that segregation creates feeling
of inferiority
iii. Problem with this?
1. Well duh, this is what segregation is designed to do
2. What we have here is a caste system- kind of like American
apartheid
3. Doesn’t talk about feeling of superiority potentially felt by white
children

c. The Meaning and Implications of Brown v. Board

i. Extension of desegregation to the federal government: Bolling v. Sharpe (1954)
1. Court strikes down segregation in DC public schools on account of the Due Process clause
of the 5th Amendment -
ii. Segregation in other public facilities:
iii. The theory of Brown v. Board: 4 possible interpretations
1. Color-blindness: Race is never permissible basis on which to distribute public benefits or
burdens – the Constitution is colorblind
2. Caste: Race is an impermissible basis for distributing public benefits and burdens when it has
the social and psychological effect of stigmatizing or subordinating a racial group
3. White Supremacy: Segregation laws were the impermissibly tainted product of white supremacy
– all black schools might be just fine if they came about due to a predominantly black
political body
4. Integration: Brown can be seen as the court deeming integrated schools as producing better
educational results
iv. Brown and the Court’s internal drama:
v. Brown and History:
vi. Brown and sociology and psychology:
vii. Brown and the social meaning of segregation:
1. A prominent article shortly after Brown questioned whether the decision, however desirable
its outcome, was based on neutral principles, given that segregation symmetrically affected
blacks and whites alike.
2. Black responds by saying

d. Implementing Brown v. Board

i. Brown’s remedial aftermath: Brown v. Board of Education [Brown II] (1955):
1. Holding: Local public school districts must admit students to public schools on a racially
non-discriminatory basis at the earliest practicable date
a. Must make prompt and reasonable start to complying with Brown I
2. This case doesn’t make it entirely clear what schools are supposed to be doing after Brown I
ii. Eliminating the vestiges of de jure segregation:
1. Green v. County School Board (1968):
 a. Small county in VI, after Brown implemented “freedom of choice” plan in schools to
comply with mandate
b. P sues because nothing has really changed years later, black schools still 85% black
c. Issue: whether freedom of choice plan violates Brown
d. Holding: Yes – freedom of choice alone is inadequate to comply with mandate
i. Goal here is to have a unitary school system – this onus is on the schools
to ensure it happens
e. Court says that school districts have affirmative duty to eliminate race
discrimination root and branch - this would be in 6 key areas
i. Student enrolment, faculty, staff, transportation, extracurricular and
facilities

2. Swann v. Charlotte-Mecklenburg Board of Education (1971):

iii. Desegregation outside the South: Keyes v. School District (1973):

iv. Limiting interdistrict remedies: Milliken v. Bradley (1974):
v. Limiting the federal courts’ remedial powers: Missouri v. Jenkins (1990/1995)
vi. Terminating longstanding decrees: Board of Ed. V. Oklahoma City v. Dowell (1991):

e. Eliminating Other Vestiges of Segregation

f. Loving v. Virginia (1967):
g. Facial Discrimination against Racial Minorities
i. Korematsu v. United States (1944): One of the very rare cases in which a classification impsing
disadvantages based on race survived strict scrutiny
1. General Rule: Facially racially discriminatory orders – court is going to be automatically
skeptical
a. Previously the standard was presumptively constitutional
2. Reasoning:
a. The government’s order is over-inclusive because it includes anyone who would be
expected of sabotage or espionage
b. Order is under-inclusive because it only includes internment of individuals of
Japanese intent – not Germans or Italians even though they were involved in the
war
c. Narrow tailoring test – to see if the statute is addressing the specific interest
i. Already established that it is over and under inclusive
3. Dissent (Murphy): Applies a “reasonableness” standard instead of strict scrutiny
h. Racially Discriminatory Purpose and Effect
i. Racially discriminatory administration of facially neutral laws: Yick Wo v. Hopkins (1886):
1. Facts: Laundry case where persons of Chinese descent were not approved for operating
laundry in wooden buildings
a. Claimant is imprisoned for operating laundry in wooden building anyway
2. Holding: Law violates equal protection because it has been administered in a racially
discriminatory way
3. Reasoning:
a. Law itself is facially neutral
i. Washington v. Davis (1976):
i. Facts: Test for DOC Metro PD was failed by blacks at a rate of 4x more than whites
1. Black applicants that didn’t perform well now coming forward and allege that there is an
equal protection violation due to the IMPACT on blacks
ii. Holding: Evidence of discriminatory effect is important, and indeed necessary (Palmer), but primarily
as evidence of discriminatory purpose
iii. Reasoning:
1. We have evidence of impact, but is that evidence irrelevant?
2. No, it’s relevant but evidence is dispositive only if it is overwhelming of racial
discrimination
3. It is NOT dispositive here because other evidence in the case, namely that
j. The Meaning and Implications of Washington v. Davis
k. Affirmative Action After Croson and Adarand
l. Grutter v. Bollinger (2003):
i. Facts: University of Michigan law school admissions policy determines who’s going to get in based
on who shows “substantial promise for success in law school”
1. Wants to get critical mass of underrepresented minority students – blacks, Hispanics and
native Americans
2. Bakke reasoning for critical mass
ii. Holding: We hold that the Law School has a compelling interest in attaining a diverse student body
1. The Equal Protection Clause does not prohibit the Law School’s narrowly tailored use of
race in admissions decisions to further a compelling interest in obtaining the educational
benefits that flow from a diverse student body.
iii. Reasoning:
1. Racial classification here imposed by government, “must be analyzed by reviewing under
strict scrutiny”
2. Means classification is only constitutional if they are (1) narrowly tailored to (2) further
compelling governmental interests
3. Compelling governmental interest here is diversity – it is compelling because:
a. Educational mission: court deferring to educational system
b. Cross-racial understanding
c. Educational and workforce outcomes
d. Leadership claim
4. Narrow tailoring:
a. Time limited: law school says they’re going to get rid of this as soon as “practicable”
b. No workable alternative: considered all race-neutral alternatives
c. Does not unduly burden specific individuals
m. Gratz v. Bollinger (2003):
i. Facts: Points allotted to each applicant for admission to undergraduate College of Literature, Science,
and the Arts (LSA)
ii. Issue: Case is about narrow tailoring – assumes for sake of argument that there is a good compelling
interest here that flows from achieving racially diverse body
iii. Holding: We find that the University’s policy is not narrowly tailored to achieve the interest in
educational diversity that respondents claim justifies their program

n. The Meaning and Implications of Grutter and Gratz

i. Fisher v. University of Texas (2013):
1. Background: 10% plan – take top 10% from all high schools in certain area that is primarily
inhabited by minorities
a. Applicant denied admission to UT – white chick not in top 10% and now suing
b. She argued that the school was already getting enough diversity – argues that the
plan is an overreach – just racial balancing which is unconstitutional
2. Issue: Still about narrow tailoring – whether the plan is narrowly tailored enough to achieve
the goal set forth by the university
3. Dissent (Ginsburg): “Ostrich” this is obviously a race conscious plan

ii. Fisher v. University of Texas (2016):

1. Court upheld the university’s plan
2. 3 things to note about Fisher II
a. Grutter is still good law – Fisher II reaffirms Grutter holding about compelling
governmental interest
b. Highlights importance of critical mass
c. Fisher I is still good law – it tightens the narrow tailoring prong, says that court won’t
defer to universities in the second step

iii. Schuette v. Coalition to Defend Affirmative Action:

o. Racial Diversity in K-12 Public Eucation

i. Parents Involved in Community Schools v. Seattle School District (2007):
1. Facts:
 2.Issue: Strict scrutiny applies, question for court is how to apply strict scrutiny standard
3.Holding:
4.Reasoning:
5.School District’s argument:
a. We think the appropriate standard of review can’t possibly be strict scrutiny
b. Schools think it’s a Brown case, P’s would argue it’s an affirmative action case
i. Depends on how one reads Brown
ii. P would read it as color-blindness
iii. D would read it as insubordination/ anti-caste reading
c. Brown said education is the foundation of good citizenship
d. There is no affirmative right to go to any particular public school – no student with
lesser credentials is being selected while someone with greater credentials is being
denied
6. This is a mixed majority-plurality opinion – Kennedy is the swing vote
7. 3C: narrow tailoring requires serious, good faith consideration of workable, race-neutral
alternatives”
a. The districts in this case have not shown that there isn’t a less race restrictive
alternative
b. This is consistent with Grutter
8. Kennedy Concurrence (in part, in judgment):
a. Districts have a compelling interest in avoiding racial isolation
b. School districts can choose to pursue this if they wish by utilizing race-conscious
measures
i. These measures are facially race-neutral – race is a factor, according to Grutter
ii. The purposes of these measures it to do away with de facto race segregation
c. Therefore, there is no need for strict scrutiny
d.
ii. The Meaning and Implications of Parents Involved
1. Parents Involved and the Court’s interpretation of Brown
2. Judicial Intervention in democratic decision-making

3. SEX DISCRIMINATION
a. The original Constitution says nothing about sex equality – all of the things were going to learn about this
have been developed through judicial decision – often in a way analogous to race
b. Discriminating on the Basis of Sex
i. Constitutional Sources of Sex Equality:
1. Bradwell v. States (1873):
2. Minor v. Happersett (1874):
ii. Deference to laws maintaining “separate spheres”:
1. Goesaert v. Cleary (1948):
iii. Heightened scrutiny under rationality review:
1. Reed v. Reed (1971):
iv. The failure to adopt strict scrutiny:
1. Frontiero v. Richardson (1973):
a. Equal Protection challenge to federal law on allowance for wives with husbands in
the armed forces
b. Rational-basis analysis – is there a rationally related compelling governmental
interest?
i. Administrative convenience – to save money
ii. This PASSES – is constitutional!
c. BRENNAN (4 votes): says that strict scrutiny should be used since gender
classification is inherently suspect
i. Frontiero Factors: Why is gender like race? 3 reasons:
1. History of legally imposed disadvantage: women were not allowed to
convey or own real property, vote, act as legal guardians of own
children, tending bar (Bradwell)
2. History of social prejudice: subjected to broad-based stereotypes of
who they are and how they’re viewed in the world – namely that
 they are inferior to men, should remain in spheres of health and
home not military or politics
3. Immutable and visible characteristic: characteristic is arbitrary, does not
bear relation to perform or contribute to society
d. Dissimilarities between race and gender:
i. Women, unlike slaves, were never held as legal chattel
ii. History of social prejudice isn’t exact – sexism has been characterized as
“paternalistic protectionism”
iii. Immutability – maybe sex is different than race due to reproductive capacity
in assessing the difference between genders, that might justify the
government classifying on that basis
iv. Representation reinforcement – “discrete and insular minorities” – maybe
women are better able to protect themselves than certain races – women as
subgroup are not discrete and insular so maybe there is a better reason to
apply a stricter standard of review
v. Convergence upon intermediate scrutiny or an “exceedingly persuasive justification”:

c. Craig v. Boren (1976):

i. Facts:
ii. Holding:
iii. Reasoning:

d. Sex Equality after Craig v. Boren:

i. Toward stricter scrutiny?
ii. All-female nursing schools: Mississippi University for Women v. Hogan (1982):
iii. Sex-based peremptory strikes: J.E.B. v. Alabama ex rel. T.B. (1994):

e. United States v. Virginia (1996):

f. Sex Equality and Sex Differences:
i. Is single sex education ever constitutional?
ii. “Real” differences?
iii. Pregnancy classifications: Geduldig v. Aiello (1974):
1. Pregnant persons are not a suspect class
2. Break down in pregnant persons and non-pregnant persons – two groups together
encompass all persons
iv. Gender-specific statutory rape laws: Michael M. v. Superior Court (1981):
1. Men and women are punished differently for statutory rape
2. Gender based differences that reflect realistic fact that sexes are not similarly situated
a. Here it’s because women carry burden of unwanted pregnancies
3. Would it survive after VMI? NO
a. Acceptance of a post hoc rationale
b. No empirical support that gender based classification supports interests
v. Exclusion of women from the military draft: Rostker v. Goldberg (1981):
1. Combat ban: women are restricted from being drafted
2. This makes men and women not similarly situated
3. Law being challenged is that President “requires the registration of males and not females” –
purpose of which was to “facilitate any eventual conscription”
4. But why would you register persons that are not eligible for combat

5. Is combat ban itself unconstitutional?

a. Women are necessary for raising children, they are more likely to be raped when
taken as prisoners of war, women are smaller and weaker than men
b. Court gives extra deference to Congress in regard to the military

vi. Discrimination against unmarried fathers: Caban v. Mohammed (1979):

1. Nguyen v. INS (2001):
a. Applied intermediate review – law is upheld as dual interests are legitimate and there
is a substantial relationship to the achievement of these interests
 2. Sessions v. Morales-Santana (2017):
a. Applied intermediate review again but the law was invalidated
b. Case is different from Nguyen – it is a child identity case
vii. The role of “real” differences:

g. Sex-Based Purpose and Effect:

i. Personnel Administrator of Mass. V. Feeney (1979):
1. Case about MA law that provides an “absolute lifetime” preference to veterans to ALL state
civil service positions – about 60% of jobs in the state
a. Applies to all veterans, male or female (including nurses), that were honorably
discharged
b. Challenger, Feeney, is a non-veteran female that deems the law denied women of
equal protection
2. Two step analysis based on race cases – gender is quasi-suspect class
a. Is the statute gender-neutral on its face?
b. Was there a gender-based discriminatory purpose that, at least in some measure,
shaped the law?

4. DISCRIMINATION BASED ON OTHER POTENTIALLY “SUSPECT” CLASSIFICATIONS

a. Sexual Orientation

b. Alienage
i. Definition: classifications based on citizenship
1. Equal Protection clause holds that “no person shall be deprive of equal protection of the
law”
ii. Strict scrutiny of state alienage classifications:
1. Welfare benefits: Graham v. Richardson (1971):
2. Bar admission: In re Griffiths (1973):
3. Civil Service jobs: Sugarman v. Dougall (1973)

iii. The “governmental function” exception:

1. Police officers: Foley v. Connelie (1978):
2. Public school teachers: Ambach v. Norwick (1979):
3. Notaries public: Bernal v. Fainter (1984):
iv. Alienage restrictions and federal preemption: Toll v. Moreno (1982)
v. Federal restrictions on aliens:
1. Public employment: Hampton v. Mow Sun Wong (1976):
2. Medical benefits: Mathews v. Diaz (1976):

c. Disability, Age, Poverty:

d. Cleburne v. Cleburne Living Center, Inc. (1985):
i. Facts: criteria for diagnosis of retardation (1) IQ below 70, (2) impairment in significant areas of life
such as caring for self, (3) evidence that these limitations became apparent before the age of 18
1. Court below uses “quasi-suspect” class here – similar to gender and race
ii. Holding:
iii. Reasoning:
1. Could argue that lower court got it right that this is a quasi-suspect class because the
Frontiero factors are met
a. History of discrimination
b. Political powerlessness
c. Immutability of characteristics
2. The court here does not agree
a. Legislature needs to have the freedom to create laws – they might be deterred from
doing so if they are required to hold up to strict scrutiny review
b. Barn door problem: when new candidate comes through for suspect class treatment,
the court is extremely hesitant
i. Opens the door to having other classes be brought in such as aging,
disabled, mentally ill
 ii. Court gives Congress a lot of deference unless there is a really good reason
to intervene
3. The court still strikes down the permit requirement of this case using the rational
relationship standard of review – based on the facts
iv. Stevens (Concurrence):
1. The tiered system is flawed – does not fit neatly into any of the 3 types of review
2. Believes the outcome would be the same regardless of whether rational basis or strict
scrutiny is applied

e. The Cabining of Suspect Classifications

i. Age Classifications: Massachusetts Bd. Of Retirement v. Murgia (1976):
ii. Poverty and Wealth Classifications: James v. Valtierra (1971):

CONGRESS’S CIVIL RIGHTS ENFORCEMENT POWERS

1. THE CIVIL RIGHTS STATUTES OF THE RECONSTRUCTION ERA

a. The Second wave of civil rights legislation in the 1960’s:
i. STATUTES STRICTLY PROHIBITS DISCRIMINATION ON THE BASIS OF RACE

2. THE REQUIREMENT OF STATE ACTION

a. Civil Rights Cases (1883):
i. Facts:
ii. Issue: Does Congress have
iii. Holding:
iv. Reasoning:
1. State action – constitution does not apply to things done in the private realm by private
citizens
2. There is a difference between civil rights and social rights

b. The Scope and Limits of State Action After the Civil Rights Cases
i. The policies underlying the state action requirement:
1. Two purposes:
a. Federalism – importance of respecting state prerogatives to govern their own
citizens
b. Liberty – importance of a sphere of individual liberty to act free of constitutional
norms
ii. “Public function” as a basis for state action:
1. Evans v. Newton (1966):
2. Smith v. Allwright (1944):
iii. State enforcement of private agreements:

iv. Scenarios in which court have found state action:

1. Enforcement of private rights by a state official
2. Inter-dependence
a. Burton v. Wilmington Parking Authority (1961):
i. Restaurant is benefitting, in a public building, parking is convenient, and
government is benefitting from the profits (ill-gotten gains) and this is an
intermixing
ii. Restaurant basically has a sign that says “whites only” and parking garage is
flying the government/ DA flag
iii. Therefore, there is state action
iv. Best view of Burton is that when government licenses, regulates or
subsidizes an activity that is not enough to find state action unless there is
further indicia of interdependence
3. Delegation of public functions to private parties
a. Marsh v. Alabama (1946):
 i. Company town in Alabama – woman arrested for trespass when
distributing religious materials
ii. Public function: such as running a town – court says that yes, the
Constitution applies
1. Court says that state cannot hid from their public functions just by
making a town privately owned
b. White Primary Cases:
i. Scenario where court says that yes, you are delegating public function to
private entity, to run an election – who’s going to run in the primary
ii. Paradigm that the public function idea is pretty narrowly tailored
4. State encouragement of private discrimination
a. Reitman v. Mulkey (1967):
i. Argument that there is no state action because it is a private rental situation
between two parties
ii. State statute of discrimination law has been repealed – it is not affirmative
action, it is simply returning back to the baseline from before the statute
iii. This constitutes as state action because it gives discrimination express
constitutional authority from the state
5. Entwinement:
a. Brentwood Academy v. Tennessee Secondary School Athletic Ass’n (2001):
i. Factors that court assess in deciding whether or not there is entwinement:
1. 84% of Association’s member schools are public schools
2. Most of the funding came from public schools
3. Meetings held on government property
4. Schools represented by public officials

v. Scenarios in which court has REFUSED to find state action:

1. A pure omission to act
2. Mere state approval or acquiescence
3. Mere state subsidy or contract relation
4. Mere state regulation
5. Mere state conferred monopoly power

c. Shelley v. Kraemer (1948):

i. Facts: Blacks tried to purchase property subject to racially restrictive covenants – argue that
covenants were unenforceable under Equal Protection Clause
ii. Issue: Does the enforcement of a racially restrictive covenant violate the Equal Protection Clause of
the 14th Amendment?
iii. Holding:
iv. Reasoning:
1.

d. State Action after Shelley v. Kraemer

i. The scope of Shelley:
ii. Examples in state law:
iii. Significant state involvement in racially discriminatory action:
iv. State involvement through licensing:
v. State “encouragement” of private discrimination:
vi. State action in light of changing societal circumstances:

e. Jackson v. Metropolitan Edison Co. (1974):

i. Facts: Jackson’s service is terminated by Metropolitan due to nonpayment – she sues and says that
this termination violated the Constitution because there were no procedural due process protections
afforded to her before the power was turned off
ii. Issue: Did Metropolitan’s termination of Jackson’s electrical service qualify as “state action” under
the Fourteenth Amendment?
iii. Holding: No. The company is private, it has a monopoly in the area
iv. Reasoning:
 1. Jackson argues 4 factors as to why the company’s actions qualify as state action:
a. Company has a monopoly in the area
i. Partial monopoly is not determinative in considering whether it is state
action
b. Authorization - state gave tariff on service, it used state-approved procedures
i. General authorization is not enough
ii. Here court doesn’t seek specific authorization
c. Public function – providing incredibly important service
i. Court says that public function has to be one that is traditionally,
exclusively restricted to the state
1. Here, there is no history of utilities being within the exclusive
domain of the state
d. Company is so heavily regulated
i. Court argues that regulation is not enough – mere state regulation is not
enough to make private actor a state actor
1. Cites Moose Lodge and Burton
2. Court is deviating from Burton and is looking at the factors each individuals instead of
altogether like they did in Burton

f. The State Action Doctrine After Jackson and Moose Lodge

i. The insufficiency of state acquiescence:
ii. The insufficiency of state regulation or subsidies:
1. Blum v. Yaretsky (1982):
a. Transfer decisions made by doctors in nursing home from better to worse care
b. Is there state action since these nursing homes receive a huge amount of money
from the government?
c. What’s the difference between when government permits something to happen
compared to when it actively does something
2. Rendell-Baker v. Kohn (1982):
a. “mere state subsidy or federal contract is not enough to create state action”
b. Also objected private function rationale here
iii. The insufficiency of state inaction:
1. Deshaney v. Winnebago County Social Services Department:
a. Divorce when Deshany (Joshua) is 1, father get custody and beats the child, social
workers come and not suspicious injuries but does nothing until Joshua is 4 years
old, father beats him so severely that he suffers permanent brain damage and is left
retarded
b. Mother and Joshua bring action claiming that State had deprived him of his liberty
in violation of due process – argument here is that there is some notion of
protection that the government should provide – substantive due process
argument
c. Court reasons that due process clause does not provide protection against private
actors – here it was the father that abused Joshua, not DSS – they cannot be held
liable for failure to protect against a private action within a home
d.
iv. Decisions finding state action to be present:
v. Other nations’ approaches to the problem of state action:

3. CONGRESSIONAL POWER TO ENFORCE CIVIL RIGHTS UNDER §5 OF THE 14TH AMENDMENT

a. How broad is Congress’ power under §5? Is it mostly remedial – aka stepping in after the Court already
determined the scope of the substantive rights – or does it actually determine the scope?
b. City of Boerne v. Flores (1997):
i. Facts: Archbishop of San Antonio sued local zoning authorities for denying a building permit for a
church – challenged by saying that his RFRA rights were violated
1. The act sounds a lot like strict scrutiny, it’s stated purposes are:
a. To restore the compelling interest test set forth in Sherbert and to guarantee its
application in all cases where free exercise of religion is substantially burdened
 b. To provide a claim or defense to persons whose religious exercise is substantially
burdened by government
ii. Issue: Is RFRA a proper exercise of Congress’s §5 powers?
iii. Holding: No. RFRA contradicts vital principles necessary to maintain separation of powers and the
federal balance.
1. Boerne stands for the notion that Congress, under §5, cannot create new rights or expand
the scope of rights, Congress can only act to prevent or remedy violations of rights
iv. Reasoning:
1. Congress is enacting RFRA because it thinks it’ “appropriate”
2. Uses rational basis
3. Congress is enacting RFRA as a means of essentially overturning Smith and overruling use of
rational basis with strict scrutiny
4. §1 of the 14th Amendment constrict state action
5. The definition of “enforced” in §5 means “remedial” – it does not mean that Congress
has the ability to expand the scope of constitutional rights
6. Court has issue here with Marbury – which said that Courts have the sole power to interpret
the Constitution, not Congress
7. Boerne Test: State must demonstrate a compelling interest and show that it has adopted the
least restrictive means of achieving that interest – means must be congruent and
proportional to the ends
a. Is there congruence?
i. Look at legislative history/ record
b. Is it proportional?
i. The law here is over-inclusive – it is out of proportion to the underlying
constitutional concerns – this is the STRICTEST standard
ii. Remedy is out of proportion
8. Congress’ remedial power is BROAD

c. The Meaning and Scope of Boerne:

i. Boerne and Marbury:
ii. Boerne and Morgan:
iii. Congruent and Proportional:
iv. Congruence and proportionality and the Voting Rights Act:
d. Shelby County v. Holder (2013):
e. The Voting Rights Act after Shelby County:
i. Implications for Section 5:
ii. Equal state sovereignty:

iii. State sovereign immunity decisions and §5 of the Fourteenth Amendment

iv. Boerne and the role of congressional findings

f. United States v. Morrison (2000):

i. Facts:
ii. Issue:
iii. Holding:
iv. Reasoning:

g. The Meaning and Scope of Morrison

FREEDOM OF SPEECH

32. First Amendment Theory; Incitement to Violence or Subversion

Brandenburg v. Ohio
946 (second full paragraph); 979 (note 5)-986

33. Fighting Words

Chaplinsky v. New Hampshire; Cohen v. California
 Text 986-991; 999-1003

34. & 35. Injury to Reputation, Sensibility, Dignity, Equality: Libel; First Amendment Limits on Libel
Beauharnais v. Illinois; New York Times v. Sullivan; Gertz v. Robert Welch, Inc.
Text 1004-1022

36. Hate Speech

R.A.V. v. City of St. Paul
Text 1035-1051

37. Hate Speech, cont.

Virginia v. Black
Text 1051-1057

SUBSTANTIVE DUE PROCESS

1. & 2. Introduction to the Bill of Rights, Post-Civil War Amendments and Incorporation; Substantive Due Process and
Economic Liberties
Lochner v. New York
Pg. 483-487

6. Substantive Due Process and Privacy: Abortion, cont.

Planned Parenthood of Southeastern Pa. v. Casey
Text 531 (note 8)-540 (through note 3)

7. Substantive Due Process and Privacy: Abortion, cont.

Gonzales v. Carhart
Whole Woman’s Health v. Hellerstedt, Commissioner, Texas Dept. of State Health Services
Text 540 (note 4)-544
Supp 3-7

9. Substantive Due Process, Sexuality, and Hybrid Due Process-Equal Protection Rights
Romer v. Evans; Lawrence v. Texas
Text 551-572

10. Substantive Due Process, Sexuality, and Hybrid Due Process-Equal Protection Rights, cont.
United States v. Windsor; Obergefell v. Hodges
Text 572-590

11. Substantive Due Process and Rights Over the Timing and Circumstances of One’s Death
Washington v. Glucksberg
Text 590-602

EQUAL PROTECTION

12. Minimum Rationality Review of Economic Regulation

Text 643-645; 648-650 (notes 2 & 3); 656-658

16. Racially Discriminatory Purpose and Effect

Washington v. Davis
Text 682-692

17. Affirmative Action and Race Preferences; Race Preferences in Employment and Contracting
 Adarand Constructors, Inc. v. Pena
Text 692 (spillover paragraph); 700-711

18. & 19. Affirmative Action After Croson and Adarand

Grutter v. Bollinger; Gratz v. Bollinger; Fisher v. University of Texas at Austin
Text 711-733 (through note 8)
Supp 9-13