INTRODUCTION

Constitutional Arguments
1. Textual
2. Historical: makes con law different because in K’s and torts this
is irrelevant
3. Structural: similar to how statutes are structured in other classes
4. Doctrinal
5. Prudential: will people be upset with a particular interpretation of
the Constitution or “bad things might happen if…”
6. Moral or ethical

--Constitution is different than all other documents because it is

interpreted by everyone (voters, President, VP, Congress, State). The
Supremacy Clause declares the constitution and those acts of
Congress made in pursuance thereof shall be supreme law of the land.
Thus, the court must determine when such acts are actually in
pursuance of the constitution.
1. Problem is that our Constitution can’t cover everything… So,
what do we do?
a. If not in there then left out of Con and left to Congress or
others to deal with
b. If not in there, can’t be done…then if it is done its lawless
c. Constitution is flexible and we are being faithful to them by
adding through interpretation modernly
2. Most of the Constitutional text has nothing to do with what we
talk about in class. Why?
a. Amendments
b. Cases have swallowed them up (commerce power took
away Art. 1, Sect. 8)
c. People just don’t pay attention to the text
d. Parts are not subject to judicial scrutiny
3. Overall conclusion of the Constitution is two fold:
a. Limit national government? (separation of powers)
b. Create a national government? (before Con state
governments had a lot of/all the power)

Lincoln First Inaugural

1. Why secession is unlawful arguments:
a. Analogous to contract law: the S. is in breach of breaking
away
b. Once you establish one can secede there is no limit on
what the minority will be able to do (secession w/o end)
c. Historical: the union pre-dates the Constitution and in
effect you can’t get out of that
 d. Perpetuity is implied so you can’t read the ability to break
away into it (structural argument)
e. Policy argument of who would own the government
property upon secession
2. Arguments for why secession is constitutional (South):
a. 1776 Colonies secession from Britain
b. Popular sovereignty (same as how we broke from Articles
of Confederation by conventions and vote same as
procedure to get votes for secession)
c. S. argued they were an impressed minority, so they
deserved a remedy and secession might be the only way to
one

Remedies to Disapproval to Supreme Court Decision

1. Overrule themselves (after outcry)
2. Constitutional amendment
3. Ignore them (people did this early because people did not view
S.C. having the power it does today…early 19th century view)
4. Pick new justices to the S.C.
a. The President then picks new justices and makes it their
platform to election
5. Jurisdiction-stripping bills introduced for S.C.
**As time has progressed, #4 is used most often or #1. But, normally
not too far off popular opinion because of potential backlash to a
political party they back.

The Origins of Judicial Review

Marbury v. Madison
a. A political struggle between John Adams and the
Federalists and his successor Thomas Jefferson and the
Republican. Just before leaving office, Adams appointed a
number of new judges, including several justices of the
peace for DC.
2. Commissions for these justices of the peace had been signed by
Adams, but not yet delivered by the time he left office. The
Jefferson Administration then refused to honor the appointments
for which commissions had not actually been delivered prior to
the end of Adams’ term
a. Subject of suit: Several of the would-be justices, including
Marbury brought suit directly in the SC under the Judiciary
Act of 1789. They shought a writ of mandamus compelling
Madison (Sect. of State) to deliver their commission.
b. Three issues:
ii. Does Marbury have the right to commission?
1. Yes, the President signed the commission after
it had been approved by the State—no more
 deliberation was necessary and thus makes the
commission complete.
iii. Does the violation of that right have a remedy?
1. Yes, the essence of civil liberty demands that a
redress be available for all rights that have
been violated.
iv. If remedy is called for, is a mandamus issued from
the SC the appropriate one?
1. No, because the SC only has appellate
jurisdiction in this case and a writ of
mandamus must originate in a court with
original jurisdiction
2. MAJOR POINT: The SC has judicial review over
laws passed by the Legislative Branch, here the
Judiciary Act of 1789.
v. If the Supreme Court identifies a conflict
between a constitutional provision and a
congressional statute, the court has the
authority to declare the statute
unconstitutional and to refuse to enforce it.
c. Criticisms of Marbury
ii. The Constitution did not explicitly provide for judicial
review to decide if a given statute does in fact
conflict with the Constitution.
3. Things not subject to judicial review (just political)
a. Veto power of the President
b. Presidential Pardons: But, Congress or the Court can
challenge presidential pardons
c. Appointments
d. Foreign Policy: treaty signed by the U.S. declaring a war
e. Spending: both Congress not spending or spending being
uncons.
McCulloch v. Maryland
a. A Maryland statute imposed a tax requiring all banks chartered
outside the state to print their bank notes on stamped paper if
they established any branch or office within the state of
Maryland. Bank of US was within this definition, yet issued notes
on unstamped paper. State of Maryland brought suit against
cashier of Bank of US, McCulloch. D appeals from state court
judgment in favor of P. (be spectacle when similar things, bank
here, are treated differently)
1. Court can strike down a state law
i. The Constitution may withdraw any subject from
subjection to state taxation. States may tax only
subjects over which they are sovereign, and the
states are not sovereign over those means employed
 by Congress. Otherwise the federal government
would be dependent on the states, contrary to the
intent of the Constitution.
1. P tax on the operations of the Bank of the
United States is unconstitutional and void.
2. Maryland argued: 1) Sovereign and can tax anyone in our
state 2) Fed government not given this power to
incorporate a bank
i. Response to 1) States gave up sovereignty when
ratified the Constitution. So, national government
was created…only sovereign to extent Constitution
gives.
ii. Response to 2) government has enumerated powers
(power to regulate commerce, taxes, war, issue debt)
of which a bank is useful for.
1. The grant of such large powers implies a grant
of ample means for their execution; indeed, the
Necessary and Proper clause specifically gives
Congress the powers. (However, the more
flexible the less of a Constitution it is…)
3. Marshall makes a textual argument here because in other
places of the Constitution “necessary” was qualified by
“absolutely,” so must mean the looser “helpful, useful,
nice” instead of “essential, imperative”
Dred Scott v. Sandford
a. Only second time the SC held an act unconstitutional. Marbury
was first
b. Struck down Missouri Compromise
a. Scott (a slave) brought an action for trespass. The issue
was whether Scott was a citizen of MO for diversity
purposes—within the meaning of the Constitution and
whether Scott remained a slave after his stay in the LA
territory and Illinois?
b. Held: Scott was not a citizen within the meaning of
Constitution because African Americans were not intended
to be included in the Constitutional phrase and thus none
of the government rights apply to them.
i. Justifications:
1. It is the duty of the judicial department to say
what the law is
2. Constitution is the Supreme Law of the land
ii. Alternatives to this judicial review in the case?
1. Congress could just not listen to judicial (would
still be a check and balance because it shows
they don’t agree)
2. State legislatures could decide on the
 constitutional issues since they are sovereign
3. Use judicial review only when it affects the
judicial branch and not the entire nation
c. Why are we bound by the Constitution that was written in 1776?
a. It functionally works
b. It has evolved in a sense and in parts its more of an outline
c. Traditional argument and legitimates government
argument
d. Why is this case WRONG?
a. Moral view now v. moral view then (doesn’t give much
grounds legally to criticize S.C. decision)
b. Bad History
i. No textual provision can point to
ii. There were free blacks that were voting
iii. “slave” or “white” wasn’t in the Constitution
c. No textual support (no citizenship clause)
e. Last issue is question of whether what majority wants is
constitutional or what the Supreme Court wants is constitutional?
(S.C. because their opinions are not supposed to be swayed by
opinion)

The Commerce Clause

“substantially effect” is test that is always at issue in cases
Where economic activity substantially affects int. commerce,
legislation regulating that activity will be sustained.
Commercial activity, aggregate effects:
Congress may regulate even small activities that by themselves
don’t have an effect so long at the activity is commercial and part
of a general class of activities that collectively substantially effect
interstate commerce
Non-commercial activity, no aggregate effect:
if the activity is not commercial by nature, then there must be a
direct connection between the activity and interstate commerce.
Cumulative effects of activity is irrelevant. (US v. Lopez)

Gibbons v. Ogden
a. Ogden held an assignment of the exclusive right to run a
steamboat between Etown, NJ and New York City. The exclusive
right to operate steamships in NY waters had been granted by
the NY legislature. Gibbons operated boats along P’s route,
claiming that his boats were duly enrolled and licensed under US
law for carrying on the coasting trade. P sought and obtained a
state court injunction prohibiting D’s operation. The injunction
was sustained by the highest state court, and D appeals.
b. Issue: Is state regulation of commercial navigation that excludes
federally licensed operators constitutional?
 c. Held: No. The NY statute is void.
a. P admits that Congress has the power to regulate
commerce with foreign nations and among the several
states, but would limit the meaning of “commerce” to
traffic, buying and selling, or interchange of commodities,
and would exclude navigation.
b. Regulation of interstate commerce is an exclusive federal
power. So as long as the activity had some commercial
activity with another state, can regulate.
--How do we define Commerce?
a. Narrowest: buying and selling of goods
b. Broader: “intercourse” between nations (doesn’t include
things that happen entirely within the state, but this was found in
this case)
--Regulation of steamships is indivisible: it would be too confusing if
there were 2 regulations. Supremacy law would give federal the power
anyway.
--What is the limit to Commerce power? (textual “to regulate”)
a. Full power and excludes all other power to others. Thus, as long
as some link to interstate then it is allowed. (seems broad in that
Congress gets to decide commercial or not).
U.S. v. E.C. Knight
b. Although Gibbons gave a broad definition of commerce, a series
of decisions limited the definition of “commerce” to
transportation. Manufacturing and production were not
“commerce” and hence could not be regulated by Congress.
Even under the Sherman Act, the Court dismissed a suit brought
by the US to prevent creation of a sugar monopoly under this
narrower definition of “commerce”
a. Issue: Could the Sherman Act suppress a monopoly in the
manufacture of a good (98% of sugar market)?
b. Held: Cannot regulate this monopoly because
manufacturing was a local activity not subject to
congressional regulation of interstate commerce.
i. Under the Knight decision, any action against
manufacturing monopolies would need to be taken
by individual states, making such regulation
extremely difficult with regards to out-of-state
monopolies because states are prohibited from
discriminating against out-of-state goods by, among
other things, the Dormant Commerce Clause and
Article I section 10 of the U.S. Constitution. The ruling
prevailed until the end of the 1930s, when the court
took a different position on the national
government's power to regulate the economy.
c. If we look at Marshall’s view of “intercourse” then probably
 could regulate, but this narrows here.
Hammer v. Dagenhart (limits on police power)
a. Facts: Filed by a father on child’s behalf to forbid enforcement of
the act of Congress intended to prevent interstate commerce in
the products of child labor. (so children could work more)
b. Issue: Is it within the authority of Congress to regulate commerce
among the states to prohibit the transportation of good made by
children?
c. Held: The court voted to strike down a federal statute which
prohibited the interstate transport of articles produced by
companies which children younger than certain age produced.
a. In prior cases, the character of the particular objects was
the evil. The goods here were harmless and the evil was
only the employment, which is not directly related to the
interstate commerce. (related, but not enough to make it
able to be federally regulated)
b. If the court had allowed this bill, all manufacturing
intended for interstate shipment would then be under the
federal control, encroaching on state authority.
c. State government are not enumerated powers; not limited
beyond explicit regulations in the Constitution. Therefore,
States have police powers to regulate anything Congress
does not. Congress does not have “police power” (Labor
not enumerated power to Congress)
Up until now: What can Congress Regulate?
a. Manufacturing v. Commerce (Commerce only, not manufacturing
in the state)
b. Direct v. indirect (if direct on interstate commerce can regulate,
but this distinction is difficult)
c. National v. Local (can regulate national)
d. Harm v. No Harm (if goods are harmful Congress can regulate)

United States v. Darby

a. The Supreme Court held that Congress could establish and
enforce wage and hour standards for manufacture of goods for
interstate commerce. (Overruled Hammer)
b. GIVES DEFINITION OF COMMERCE CLAUSE
a. “can regulate for any purpose as long as it is
actually interstate commerce”
i. Substantially affects interstate commerce
1. Congress gets to decide this in practice (court
will give deference to this discretion)
ii. “Rational basis” to decide if substantially affects
interstate commerce:
1. Could rational person see it as substantial
2. If not irrationally applied
 c. For next 50 years, people didn’t challenge if Congress decided it
was within their power, it was.
United States v. Lopez
a. Facts: Congress made it illegal for any person to have a gun in
school zone under the Gun-Free Zones Act. Lopez brought a gun
to school and was convicted under the act. Court of Apps
reversed on grounds that Congress didn’t have power under the
CC to regulate this type of activity.
b. Issue: Can Congress prohibit possession of firearms within a
school zone?
c. Held: No. The rationale was that possessing a firearm is a
criminal act, not an economic one. Congress has authority to
regulate interstate commerce, but it must show a substantial
impact on interstate commerce of the actions it seeks to regulate
or proscribe.
a. State argued: crime hurts commerce, crime hurts
education, guns are commerce. (Not taken as true
because too remote to commerce)
d. PROBLEMS in Lopez: if it’s an economic statute, then it is held to
a rational basis standard.
a. The gun statute doesn’t say anything about interstate
commerce (congress went back and changed the statute to
add “commerce”)
b. If you go with dissent’s view, Congress can regulate
anything it wants, which goes against Federalism.
c. States are the traditional enforcers of criminal law
Gonzales v. Raich
a. California Compassionate Use Act—allows limited medical
marijuana use. P grow marijuana for personal use for medical
purposes. P claim that enforcing the Controlled Substances Act
against them violates the commerce clause, due process…
b. Majority placed heavy reliance on Lopez in this decision
c. Issue: Whether Congress’ power to regulate interstate markets
for medicinal substances encompasses the portions of those
markets that are supplied with drugs produced and consumed
locally?
d. Held: CSA is a valid exercise of federal power and Congress can
regulate marijuana even in states where it is used for medicinal
purposes.
a. Why not too remote?
i. Aggregate look, small businesses together could put
huge price affect on the market. It is closer to
economic than in Lopez. Further, it is not the entire
statute that are regulating, just small piece of
grander scheme of CSA.
b. “Can regulate purely interstate activity that is not itself
 ‘commercial’ in that it is not produced for sale, if it
concludes that failure to regulate that class of activity
would undercut the regulation of the interstate market in
that commodity.” (Wickard)—applies here
--After Lopez effect must be “significant,” commercial transactions
(even if intrastate) as long as part of a class that’s aggregate will affect
commerce will be able to be regulated

Dormant Commerce Clause

What is the dormant commerce clause for?
a. No federal statute, so what extent can states regulate?
b. Congress has the final word: they can overrule a court decision
and pass litigation
c. Dormant Commerce clause comes from common law

3 Categories of types of Dormant Commerce Clause/Equal Protection

Cases
a. Facial Discrimination: very clear that discrimination is taking
place
a. Strict scrutiny: must have a good reason to allow it (gender
bathrooms)
b. Neutral on its face, but intent to discriminate: state laws that
favor local economic interests at expense of out of state (do
reasons for passing statute add up to not being discriminatory?)
a. Strict Scrutiny
c. Disparate Impact: it just happens that certain practice skews
toward discrimination
Benefits v. Exclusions
a. If state is excluding goods from other states from your state’s
interest, it is going to be viewed very skeptically. If you give out
benefits, that is more likely to be upheld.
a. Benefits don’t impede commerce
b. Benefits impose more of the cost of the policy on your own
citizens. Exclusions put more of the cost on out-of-state.
b. Analysis
a. Has Congress passed a law on the issue?
i. If yes, then not a DDC issue but a preemption issue
b. Does the law discriminate?
i. If yes, then move on to (c)
ii. If no, then move on to (e)
c. Does the law have a legitimate local (non-economic based)
interest?
i. If yes, then move on to (d)
ii. If no, then it will likely be struck down
d. Is the law narrowly-tailored? (no other way of regulating to
get at the problem and use of least restrictive means)
 i. If yes, then could be upheld
ii. If no, then could be struck down
e. Is the law burdensome on ISC?
i. If yes, move on to (f)
ii. If no, then it will be upheld
f. Does the state have a strong (non-economic based)
interest in the law? (ie safety)
i. If yes and the state interest is not safety or health,
strong deference is given to the state interest and
the law will likely be upheld
ii. If no, then it will be struck down
Philadelphia v. New Jersey
a. Case involved a New Jersey statute prohibiting the importing of
most solid or liquid waste into the state. The law was enacted in
response to the use of New Jersey landfills for disposal of waste
from cities in PA and NY. Several NJ operators and out of state
users of the landfill sites sued to have the statute invalidated on
the ground that it discriminated against interstate commerce.
b. Held: It was a violation of the commerce clause for one state to
prohibit others from selling and transporting legitimate articles of
commerce within its borders. (said basically a “protectionist”
measure instead of resolving concerns since it isolated itself from
a problem common to many)
c. Rule: State laws that regulate commercial activity may not, on
their face or in effect, favor in-state interests over out of state
interests.
d. NJ waste is just like out of state waste so treating discriminatorily
because landfills still open to NJ waste. There is no increased
health risk and doesn’t fall under quarantine risk.
e. Dissent: (Renquist) States should be able to protect themselves
for health and safety reasons
**If pass a statute, usually under health/safety (no matter if its really
not) because these are state issues.
Kassel v. Consolidated Freight
a. Iowa’s statute banning trucks more than 60 feet in length from
using state highways was challenged by D which used 65 foot
trucks, on the grounds it violated the commerce clause.
b. Issue: May a state highway regulation offering only marginal
safety benefits be an unconstitutional burden on interstate
commerce?
c. Held: Yes, Although state regulations concerning highway safety
carry a strong presumption of validity, if the safety is marginal or
the burden on commerce is substantial, the regulations will be
invalid.
a. Doesn’t explicitly say treats in-state and out-of-state
differently because there are exceptions for border states.
 b. No factual findings for better safety
c. Border towns shouldn’t be exempt if safety is real intent,
and in state firms shouldn’t be able to get waiver for things
that benefit IA (tractors)
d. There is a gap between given reason for statute and true
intent.
a. What is the given purpose? Does it seem credible?
b. Is this the true intent of the statute? Are there exceptions
that fit in with the stated practice?
Carbone v. Town of Clarkstown
a. P was a private recycler with business in Clarkstown that sought
to ship its non-recyclable waste to cheaper waste processors out-
of-state. Clarkstown opposed the move and the company
brought suit raising unconstitutionality of Clarkstown’s “flow
control ordinance” that required solid wastes that were not
recyclable or hazardous to be deposited at a particular private
company’s transfer facility. The ordinance involved fees that
were above market rates. (Does not discriminate on its face)
b. Held: The ordinance violated the DCC because the state and
local government may not use there regulatory power to favor
local enterprise by prohibiting patronage of out-of-state
competitors or their facilities.
a. To use the facility to finance a public project it is not totally
local, even if it looks like it mostly affects in-state towns or
cities. The goal of the facility is permissible, the means of
financing it are not. There are alternatives by financing on
a bond vote.
b. If a state wants to tax itself and people are willing to pay,
that is constitutional.
DCC and Protectionist statutes
a. Protectionist statutes by state and local government almost
always are invalid. Must be substantially necessary to be upheld.
b. In determining protectionist look at:
a. Stated reason/factual basis for law/statute
b. Exceptions stated to assess its actual purpose
c. Even if not protectionist if there is substantial affect on interstate
commerce then not allowed (balance between benefit to
state/burden on ISC)
d. If federal statute that will control, then that will end the problem
and settle the issue.
West Lynn Creamery, Inc. v. Healy
a. Massachusetts adopted a milk pricing order that required every
milk dealer in the state to make a monthly “premium payment”
based on the amount of its sales. The funds generated by these
were distributed to Massachusetts dairy farmers in proportion to
their contributions to the state’s total milk production. West
 Lynn challenged the milk order. The lower courts upheld, SC
granted certiorari.
b. Issue: May a state impose a tax on all sales of a particular
product in order to subsidize in-state producers of that product?
c. Held: The impact of the order is to divert market share to dairy
farmers in Massachusetts, which hurts out-of-state farmers; thus
unconstitutional.
a. This order is to allow higher-cost in-state producers to
compete with lower-cost producers in other states.
Basically, it makes milk produced in other states more
expensive. (because its effect on in-state producers is
more than offset by the subsidy, it functions as a
protective tariff for only in-state)
b. By now, state had wised up to notice discrimination
statutes will be invalid. So, Massachusetts gives non-
discriminatory tax on everyone then a subsidy to give back
to in-state farmers (so they really aren’t paying). In form
only non-discriminatory
i. Could help farmers by just using a tax not linked to
the exact same industry, so not as obvious
Granholm v. Heald
a. Michigan and New York laws allowed in-state wineries to directly
ship alcohol to consumers but restricted the ability of out-of-state
wineries to do so. In separate cases groups sued the states and
argued the laws violated the U.S. Constitution's "dormant"
commerce clause. The dormant commerce clause prohibited
states from passing laws affecting interstate commerce,
particularly laws favoring in-state business over out-of-state
business. The states argued the laws were valid exercises of
state power under the 21st Amendment, which ended federal
Prohibition and allowed states to regulate alcohol importation. A
federal district court ruled for Michigan. The Sixth Circuit Court of
Appeals reversed and ruled the Michigan law violated the
dormant commerce clause and did not advance the core
concerns of the 21st Amendment (such as temperance). A
separate federal district court ruled against New York. The
Second Circuit Court of Appeals reversed and ruled the 21st
Amendment allowed New York's law.
b. Issue: Does a state law that allows in-state wineries to directly
ship alcohol to consumers, but restricts the ability of out-of-state
wineries to do so, violate the dormant commerce clause in light
of the 21st Amendment?
c. Held: Both states’ laws violated dormant commerce clause.
a. The statutes would flunk dormant commerce clause
without 21st amendment, which allows for regulation of
alcohol to the states (one of the few affirmative powers
 given to states).
i. No: Cases on alcohol before prohibition did not allow
to get around dormant commerce clause, so can’t be
given that power now
ii. Ct says DCC is more powerful that 21st amendment
because of case law even though it is unwritten.
(view that se have DCC so should include all goods,
including alcohol)
Federalism:
--federal and state governments co-exist. (one of the main
principles is limited, enumerated powers—powers of the federal
government are limited to those that are enumerated in the
Constitution)
--Madison is trying to make the case to support the constitution (in
Federalist papers)
--He argues that people will mostly be governed by state laws on a
day-to-day basis. Only larger issues like military will be governed by
feds.
--Since 9/11 states rights arguments have been lost to federal
government/security argument.

Advantages/Disadvantages of Federalism Government

a. Advantages of National:
a. More resources (can do things states just can’t do)
b. Unified Control (Certain policies that should have one voice
—military)
c. Less corrupt (goes back to Madison, bigger pool of people
gets better people)
d. Fundamental right (everyone in country should have it)
b. Disadvantages in favor of Local:
a. More responsive (states are better because smaller and
can figure out problems)
b. Diversity (different party control local than federal,
different states can try out different things)
c. Check on federal power (one persons fundamental right is
someone else’s tyrannical abuse)

Prigg v. Pennsylvania
a. Prigg was an agent for a slave owner and asked a PA magistrate
to issue a certificate for removal of an escaped slave back to
Maryland. Federal statute provided for a federal judge or state
magistrate to issue a certificate in proper cases, but the
magistrate refused. P went ahead and removed the slave to
Maryland, he was convicted of violating a PA making it a crime to
remove a Negro from the state into slavery. (Prigg basically
captured free slaves and sold them to slavery)
 a. The statute was in place so there was procedural due
process for the free people. So, free slaves wouldn’t be
taken when wandering around the state.
b. Issue: Does Congress have exclusive power to legislate regarding
a slave owner’s right to reclaim his slave?
c. Held: Yes. The Constitution protects slave owner’s right to
reclaim a slave and says that a slave cannot be freed from
service in consequence of any state law.
a. Giving the states powers in this sector would give them the
power to destroy the rights of slave owners that the
Constitution protects
d. Rule: State have the right to enact valid police power affecting
fugitive slaves, but cannot interfere with constitutionally
protected rights proscribed by Congress (Fugitive Slave Act).
a. No uniform standard on this issue would be a problem
b. This helps ease the sharp disagreement between the
states on this topic of slavery.

Gregory v. Ashcroft
a. Two state judges challenged a state mandatory retirement rule
as violative of the Federal Age Discrimination in Employment Act
and 14th Amendment. (It was found that judges were under the
ADEA statute)
b. Issue: Does the Age Discrimination in Employment Act apply to
the state’s appointment of its important officials?
c. Held: No. The present case involves a state constitutional
provision through which the state establishes a qualification for
its judges. Congressional interference with this type of decision
would upset the constitutional balance of federal and state
powers. Allowed age discrimination for judges.
a. Federal Court must be certain of Congress’s intent before
find that federal law overrides this balance.
b. This is in the zone where commerce clause might be okay,
but not applied because of autonomy of state/federal
government.
Limits on Federal Government
a. Autonomy of state zone
b. Traditionally state function
c. Congress doesn’t have Commerce Clause power to regulate
state employees
d. Yes, commerce clause power, but there is an unwritten zone they
can’t go into.
U.S. Term Limits v. Thornton
a. The voters in Arkansas modified the Arkansas State Constitution
 to prohibit any person from appearing on the ballot for Congress
from that state if he or she had previously served 3 terms in the
House or two in the Senate. This provision was similar to the
term limit provision that had been adopted—either by statute or
state constitutional amendment in 22 other states.
b. Qualifications clause in Art I Sec 2 requires each member of the
house to be 25, citizen for 7 years, and resident of the state…so
it was decided in regards to this
c. Issue: Do these qualification clauses state exclusive
requirements for membership, or are they “merely minimum
requirements” that the states may supplement?
d. Held: Arkansas provision goes beyond states’ constitutional
authority. Permitting individual states to formulate diverse
qualifications for their congressional representatives would
result in a patchwork of state qualifications, undermining the
uniformity (seniority of Congress would disadvantage term limit
states) and the national character that the Framers envisioned.
a. Under 10th Amendment, only powers are given that states
“originally had” and adding qualifications was not one.
b. Further, allowing these would undermine the overall
democracy where people should be able to chose whom
they please to govern them.
c. Idea of Congress to implement term limits…would lead to
self-dealing to keep themselves in Congress. Allow them
to exclude particular people they don’t like.
e. Broad view of this case is the significance of how questionable
the once-settled view of federal authority is on the Court…only a
5-4 decision
Printz v. United States (Limits on Congressional Power to use state
officers)
a. The federal Brady Handgun Act required the United States
Attorney General to create a national system to instantly check
the background of prospective handgun purchasers. Pending
establishment of the national system, the Act also required the
chief law enforcement officer of each local jurisdiction to conduct
background checks. P and another sheriff challenged the statute
under NY v. US (limited Congress’ power to “commandeer the
legislative process of the States”)
b. Held: Congress may, similarly to NY, not compel a state or local
government’s executive branch to perform functions. Even if the
function is fairly ministerial and easy-to-perform.
a. Structure of government with States having
representatives in Senate to protect their interest, so court
shouldn’t be involved here anyway. (recognizes healthy
balance of powers)
b. If elected sheriff has to do a, b, c…interfere with what he
 was supposed to be doing when told to do d by
government.
c. Dissent: The Commerce Clause itself supports the regulation of
commerce in handguns by the Brady Act. Nothing in the
Constitution would allow a local police officer to ignore a
command contained in a federal statute enacted pursuant to an
express delegation under the Commerce Clause.
d. Dissent 2: Other countries allow state to implement many laws.
a. What extent should other countries matter?
i. None: only what happens in the US is what matters,
so no bearing on the Constitution
ii. Some relevance: countries have federalism that is
older than or as old as ours.
Separation of Powers
--Works well when different branches control each other, not one
controlling the others.
--Federalism is vertical between state and federal governments to
prevent tyranny.
--In Federalist Papers, Madison is most concerned about legislative
power because Art I is the longest and fear to run with these powers.

Congress making laws President doesn’t like:

a. What can the President do?
a. Veto
b. Recess appointments
c. President written statement (not binding in court, but can
neutralize until litigation happens)
d. Pardoning
b. What can Congress do?
a. Veto Override (limitation on veto power)
b. Impeachment
c. Pro Forma sessions (no recessing)
d. Stop funding (this will be politically troublesome outside
the executive branch)
--Executive order cannot contradict a statute.
Why should courts get involved in this type of thing? Just let
these branches fight it out?
Established now that it is not a political action, but judicial
--President cannot make laws, can only carry them out. His power is
implied, but under war time can broadly do whatever.
--Enumerated powers are in Art 2, Sec 2. But, much of
president’s power is implied. If the SC renders that a presidential
action is properly regarded as being part of the “executive” sphere,
that action will not be rendered unconstitutional because it is not
explicit in enumerated power.
The Steel Seizure Case (Youngstown Sheet v. Sawyer)
a. The steel workers, after prolonged negotiations, went on a
nationwide strike during the Korean War. President Truman
order Sawyer (D), Commerce Secretary, to seize the steel mills
and keep them running. P challenged the seizures as
unconstitutional. Congress had previously passed the Taft
Hartley act, giving the President authority to seek injunction
against such strikes, but not rejected an amendment to permit
government seizures to avoid such shutdowns.
b. Issue: May the President, acting under the aggregate of his
constitutional powers, exercise a lawmaking power independent
of Congress to protect serious national interests?
c. Held: No.
a. President’s power to issue the order must stem from an act
of Congress or from the Constitution itself. Congress
clearly gave no such power. Could not be justified under
the President’s power to see that the laws are faithfully
executed, because he was making this law.
b. Even as commander in chief the authority only runs in
“theater of war,” which the relationship here is much to
remote and not into internal matters.
d. Concurrence: placed importance on the fact that Congress had
previously, and repeatedly, explicitly rejected plant seizures as a
means of handling labor disputes.
a. 3 categories of President authority:
i. Where President acts pursuant to express or implied
authorization of Congress, in which case his authority
is at its max
ii. Where the President acts in the absence of either
congressional grant or denial of authority, making a
“zone of twilight” in which he and Congress may
have concurrent authority
iii. Where the President acts in contradiction to the
express or implied will of Congress, which can’t be
constitutionally justified.
Nixon v. United States (first SC case saying there is executive privilege
—executive privilege against the disclosure of presidential
communications made in the exercise of the executive power, based
on the doctrine of separation of powers and the inherent need to
protect the confidentiality of high-level communications)
a. The special prosecutor, acting for the US in the Watergate
investigation, sought and received a subpoena ordering
President Nixon to produce various tapes and other records
relating to presidential conversations and meetings, despite a
motion to quash and protective orders.
b. Issue: Does executive immunity give the President an absolute,
 unqualified general privilege of immunity from judicial process
under all circumstances?
c. Held: No, executive privilege is qualified, but there is such a
doctrine of executive privilege. The doctrine of separation of
powers does not preclude judicial review of a President’s claim of
privilege, because it is the duty of the courts to say what the law
is with respect to that claim of privilege, even if it varies from the
President’s.
a. The President’s need for and the public interest in
confidentiality of presidential communication is given
deference. But absent a need to protect military,
diplomatic, or national security of communications,
legitimate judicial needs may outweigh the blanket
presidential privilege.
b. Here the test leads the privilege to yield to the subpoena in
a pending criminal trial.
c. Court must evaluate claims of presidential privilege. But,
may only be when materials are “essential” to the trial that
they get admitted and are not privileged.
d. Reason for such executive privilege is so President can be candid
and not fearful of being used later. Also separation of powers so
other branches are not able to give up information of executive
branch.
Morrison v. Olson
--After this case, the rule now seems that Congress may limit the
President’s right to remove even a purely executive officer, so long as
the removal restrictions are not “of such a nature that they impede the
President’s ability to perform his constitutional duties.”
a. The Ethics in Government Act of 1978 provided for the
appointment of an “independent counsel” to investigate and
prosecute specified government officials for violations of federal
criminal law. Under the Act, the Attorney General conducts a
preliminary investigation of possible violations, and then reports
to the Special Division, a court created by the Act to choose the
SP. If the Attorney General determines that there are reasonable
grounds to believe further investigation or a prosecution is
warranted, she applies for appointment of independent counsel.
The Attorney General may remove an independent prosecutor
for “good cause, physical liability, mental incapacity, or any
other condition that substantially impairs the performance or her
duties.” Morrison was appointed to investigate allegations that
Olson had lied in testimony to Congress. D obtained a grand jury
subpoena against P. P moved to quash the subpoenas, claiming
D had no authority and the Act was unconstitutional.
b. Issue: May Congress provide for the judicial appointment of
independent counsel for purposes of investigating and
 prosecuting federal criminal offenses?
c. Held: Yes.
a. Neither the removal provisions nor the act taken as a
whole so restricted the President’s powers as to violate the
separation of powers principle. Because the Attorney
General could terminate for “good cause” the executive
branch “retains ample authority to assure that the counsel
is performing…”
b. The President retained the right to decide whether to apply
for appointment of a prosecutor, imposed on the
prosecutor the obligation to abide by Justice Department
policy, and allowed the AG to remove. So, the Executive
Branch had “sufficient control over the SP to ensure the
President is able to perform his duties. (infringes, but not
enough to take away because still benefitting). Balance
take away with still lasting power
d. Significance: Seems to herald a Court that will view even fairly
substantial interference with the President’s ability to exercise
control over the executive branch as not being violate of
separation of powers.
a. Even unclear if President has right to appoint or remove
“principal officers” like the Cabinet under Morrison
(probably doesn’t since SP is “inferior”)
i. How inferior?
1. Amount of Control (subject to removal at will)
2. Duties are narrow
e. Dissent: Scalia says all executive power is vested in the
President…this takes it away and is a problem. They did not
have good enough justification to take away from President.
Hamdi v. Runsfeld (detention of “enemy combatants” who are citizens)
a. Explored the President’s powers post 9/11, and the court held
enemy combatant is entitled to due process, including at a
minimum the right to counsel.
b. Facts: The prisoner here was an American citizen who was
captured in Afghanistan in 2001 by the Northern Alliance, a
coalition fighting alongside U.S. troops. The Alliance turned
Hamdi over to the US Military, which labeled him an “enemy
combatant” based mostly on the fact that he had been
associated with the Taliban and had surrendered his rifle to the
Alliance. The military transferred him to a naval brig in SC. The
Bush administration asserted that by designating Hamdi an
enemey combatant, the executive branch obtained the power to
hold him in confinement indefinitely, without formal charges or
proceedings.
c. Held: Eight members of the Court concluded that the U.S. did not
in fact have the power that the government contended.
 a. Must balance government’s interest in the nation’s
security against Hamdi’s interest in not being
deprived of due process
b. It was found (8 justices not in majority) that the citizen
was not given substantial due process protections to allow
him to challenge the enemy-combatant designation—at a
minimum, protections like notice of the details of the
charge, right to rebut the charge before a neutral
decisionmaker, and the right to counsel.
d. Authority to punish is through AUMF (authorization for use of
military force), but does not say you can detain.
e. 3 Requirements of Due Process (in Matthews v. Eldrige)
a. Notice
b. Neutral Decision Maker
c. Chance to Rebutt
f. Even in wartime, executive branch is not allowed to dispense
basic due process requirements when it imprisons one of its own
citizens (being a citizen is the key component here).

The Liberty of Contract

--Dealing with 14th Amendment “privileges and immunities” clause that
says: “no state shall make or enforce any law which shall abridge the
privileges or immunities of citizens of the United States…”
--At least some drafters of the 14th Amendment hoped that this
clause would constitute a substantial restraint on state
government action against individuals.
How do you know if right is fundamental?
a. Text: but, there are rights that are not in the text
b. Tradition: Not in text, but around for a long time and
unchallenged (right to travel)
c. Consensus: not in text, or no tradition…but now think it is

Slaughterhouse Cases:
a. Louisiana passed a law giving a monopoly on New-Orleans-area
slaughterhouses to a particular company. Butchers not included
in the monopoly claimed that the statute deprived them of the
opportunity to practice their trade, and thereby violated the 13th
and 14th Amendments. The Ps most serious argument was denial
of the privileges and immunities of Louisiana citizenship.
b. The Court rejects this argument because the 14th Amendment
distinguishes between US citizenship (merely born or
naturalized) and state citizenship (residence required).
“Fundamental” civil rights, were the domain of the states, not
the federal government. The monopoly did not violate 14th
Amendment.
c. Held: The 14th Amendment’s Privileges and Immunities Clause
 merely forbade state infringement of the rights of national
citizenship, not the rights of state citizenship.
a. Right to be a butcher is not fundamental because it can’t
be one if there is just a reason, so that is the difficulty.

--The Due Process Clause of the 14th Amendment reads as follows: “Nor
shall any State deprive any person of life, liberty, or property without
due process of law.”
--Sounds like procedural. However, the clause came to be
interpreted as a limitation upon the substantive power of state
legislatures to regulate various areas of economic and non-economic
life.
--Why?--fundamental right theory, rights which deprived
not from any constitution or legal system but simply
from the nature of things.
--Post-Slaughterhouse the SC court sustained state regulations,
but indicated its willingness to engage in substantive review in
some circumstances.
--From 1897-1937, 159 Supreme Court decisions held state
statutes as unconstitutional under Due Process and Equal Protection
Clauses.

Lochner v. New York

a. Lochner was convicted of permitting an employee to work for
him more than the statutory maximum of 60 hours per week. D
challenged the law as a violation of the liberty to contract
protected by the 14th Amendment.
b. Issue: may a state generally prohibit private agreements to work
more than a specified number of hours?
c. Held: No. There was an abridgement of “liberty of contract” and
therefore a violation of due process when the NY law limited the
hours which a baker could work.
a. Court did not find the readjustment of bargaining power
between bakery employees and their employees was not of
sufficiently public concern, especially in view of the
infringement on “liberty of contract.”
b. Health and safety was not taken as a rationale. Long hours
did not affect the public health and safety.
c. It has been recognized that the right to make a contract in
relation to one’s business is protected by the 14th
amendment. A state does have certain police powers that
may justify passing a law that restricts this right
d. Began the substantive due process era of the Supreme Court.
a. Themes that come from this case court uses to strike down
law for violating economic liberty
i. Freedom of contract is a right protected by the due
 process clause of 14th
ii. Government could interfere with that freedom to
contract only to serve a valid purpose related to
protecting public health, safety, morals, and general
welfare.
iii. Judiciary would carefully review any legislation that
allegedly infringed on freedom of contract to insure it
was valid.
e. Why is this case have to be wrong?
a. Liberty of contract is based on a false premise
b. Insufficient deference to legislature
c. It is a health law, and state got the facts wrong
d. Redistribution is okay (state can change or modify the
bargain different than what is going on in the market)
e. No unwritten rights (Holmes): due process clause does not
create rights, so there is no textual argument for this claim
i. If you say this, then most equal protection cases
wouldn’t be possible.
f. Labor law is okay
--Lochner got extended post-Locher to other areas. But, they did not
strike down all contractual/labor statutes.
--in 1908, restricted women hours of working because more
evidence of health detriment than bakers.
Adkins v. Children’s Hospital
a. Woman employee sued employer for not paying her in
accordance with state’s minimum wage law. DC passed law
setting the minimum wage woman and children could earn to
protect their health and welfare. P was a woman who was laid
off.
b. Issue: Is a state law setting the minimum wage a woman must
earn a valid and reasonable exercise of state’s police power?
c. Held: No, its unconstitutional. Freedom of contract is the general
rule and infringing on this can only be exercised in certain
circumstances.
a. To allow such laws would ignore all implications on
women’s freedom of contract. There is no set amount that
can be determined what equals the cost of living a woman
worker needs to maintain her good health, so compelling
interest not shown.
b. the key here is that the court didn’t believe that setting a
min. wage law for women was necessary to protect the
health, safety, morals, and general welfare of society as a
whole. Minimum wage was not a legitimate and adequate
end to protecting these goals.
d. Exceptional circumstances where the court can intercede
on contractual rights:
 a. Public interest contracts
b. Temporary emergencies
c. Statute that regulate payments (taxes)
d. Statutes fixing hours of labor (maximum hours)
e. This case here is not targeted toward a specific occupation, so
could be overly broad. Not a temporary measure, its permanent.
Seems to be more substantive than how people get paid.
f. The raising of wages are central to contracts, and there is liberty
of contract.
Has a fundamental right been identified?
a. If no, then will be able to regulate with any reason
b. If yes, then you need a compelling state interest and will be
looked at with greater scrutiny and need greater justification.
West Coast Hotel v. Parrish
a. Washington state had a law that set the minimum wage for
women. Parrish, a woman employed by West Coast Hotel,
brought suit to recover the difference between the wages paid to
her and the minimum wages set by the state. West Coast
challenged the minimum wage law as violating the Fourteenth
Amendment due process guaranties.
b. Issue: Does the minimum wage law for women violate the 14th
amendment’s due process guaranties?
c. Held: No. It is alleged that the law works a deprivation of the
freedom of contract, but “the constitution does not speak of
freedom of contract. It speaks of liberty and prohibits
deprivation of liberty without due process of law…Regulation
which is reasonable in its relation to its subject is adopted in the
interests of the community is due process.”
d. One of the first cases that seemingly repudiated the
entire principle of substantive due process and signaled
an end to the Lochner era.
a. Introduced a more relaxed and deferential standard of
review to measure the connection between legislative
means and ends.
**The change in opinion to say “no liberty of contract” was directly
after FDR court packing plan. It was politically shaped and by coercion
based on this major change.

U.S. v. Carolene Products

a. Court made it clear that presumption of constitutionality
would be applied in the case of an economic regulation subjected
to due process attack.
b. Here the Court sustained against a due process attack a federal
prohibition on the interstate shipment of “filled” milk (skimmed
mixed with non-milk fats)
a. The Court noted that Congress had acted upon findings of
 fact showing public health danger from the filled milk. But
even in the absence of explicit findings, the Court held,
“fact …is to be presumed, for regulatory legislation
affecting ordinary commercial transactions is not to be
pronounced unconstitutional unless…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.
b. RATIONAL BASIS test all you need for economic
regulation subjected to due process attack
**Modern Court has withdrawn almost completely from the business of
reviewing state legislative economic regulation for substantive due
process violations.
--Basically because as long as legislature falls within the state’s
“police power” (broadly defined to include health, safety, or
“general welfare”) only need a minimal rational relation between
the means chosen and the end being pursued.
Exceptions to Narrower in Scope review: (given some higher level of
judicial scrutiny for legislation that falls within these)
--Bill of Rights
--Political process (voting=in order to help majorities act by
protecting peaceable assembly and interference with political
organization)
--Discriminates against minorities, especially those with less
power or number
**Judicial review took a standing 8 count with “rational basis” and not
interfering with commercial regulation…BUT the footnote allowing
exceptions says that they will be back and still have the power to strike
things down.

The Right of Privacy

--9th Amendment leaves door open to possible other rights outside of
the Bill of Rights.

--Now turn to cases in which the SC has in effect given substantive due
process protection for certain non-economic rights.
--The Court has been surprisingly willing to strike down
legislation which it finds to violate important non-economic
interests.
--When non-economic there have been two scrutiny that have been
used (beyond “rational basis” for economic) when “fundamental right”
is impaired by a statute:
1. State must have a compelling interest, not merely legitimate
2. the relation between the objective and the means must be
very close, as to say necessary to achieve the end
--“fundamental” have tended to be in the related areas of sex,
marriage, child-bearing, and child-rearing.
**If non-fundamental, virtually no scrutiny at all
**If fundamental, scrutiny is so strict that few statutes impairing
it can meet the double test

Meyer v. Nebraska
a. A school teacher was prosecuted for teaching reading to a
student in German, in contravention of a state law which
prohibited teaching certain subjects in foreign languages.
Nebraska state law said that teachers could not teach any
subject in any other language other than English. Moreover, a
teacher could not teach a foreign language until the 8th grade.
b. Issue: Does the constitution permit a state to prohibit the
teaching of children in languages other than English? (NO)
a. There’s no rational basis and (2) it discriminates unlawfully
and you have a right that trumps this law (right to learn).
b. The “liberty” included right of teachers to teach, and that
of students to acquire knowledge. The Court applied what
appears to have been a “mere rationality” test (rather than
strict) but still concluded that the statute was without
reasonable relation to any end of the state.
c. The only plausible reason for this statute at the time was to
punish people in our country that shouldn’t be after WWI.
d. Fundamental Right: Establish a home and bring up children,
children to acquire knowledge, teacher to teach.
“Liberty” is defined as “not merely freedom from bodily restraint but
also the right of the indiv. to contract, to engage in any of the common
occupations of life, to acquire knowledge, to marry, establish a home
and bring up children, worship God according to own dictates, and
generally enjoy these privileges long recognized at common law as
essential to the orderly pursuit of happiness by free men.”

Buck v. Bell
a. VA law that allows mental patients to be made sterile to prevent
further procreation and promote the health and welfare of
society. Buck was a feeble-minded person from a feeble-minded
mother in the same institution. Superintendent petitioned board
of hospital to have Buck sterilized. P argues that the statute is
void under 14th amendment by denying due process and equal
protection of law.
b. Court held that these people are not fit to procreate due to their
low mental status. It’s a way to protect our public health.
c. Issue: Why is this case wrongly decided?  The right to
procreate (along with right to establish home and family) is a
fundamental right.
d. Case is not good law because of later developments. But, should
 notice that if people think something is a good idea (like this at
the time) then there is the danger of upholding something that is
certainly wrong.
Griswold v. Connecticut
a. The first major modern-era case which used a substantive-due-
process like approach to protect a fundamental right.
b. The statute at issue was a Connecticut law which forbade the use
of contraceptives (and made this use a criminal offense); the
statute also forbade the aiding or counseling of others in their
use. Ds were the director of the local Planned Parenthood Ass
and its medical director.
c. Held: Struck down the statute based on several of the Bill or
Rights guarantees that protect the privacy interest and create a
“zone” of privacy. (which using contraceptives fell into). The
arguments that it reduced extramarital affairs, legislature (highly
Catholic) wanted to show contraceptives are bad, and to increase
population were not found “rational”
d. CT was the only state with law like this, so more likely to be
struck down because of consensus that it’s a fundamental right
by everyone else in the country.
e. If right to have children is fundamental, then shouldn’t the right
not to be also.
f. Court said there is a fundamental right to privacy so it
applies to everyone, not just married people.

Fundamental Rights (tough questions)

1. Look at what states are doing and then categorize as fundamental if
not in text.
--How many people/states have to say it’s a right?
2. If not in states fundamental right will S.C. be independent of these
popular views?
3. If Court goes against popular opinion, what are the odds that opinion
will be held up?

Roe v. Wade
a. Roe, unmarried and pregnant, sought declaratory and injunctive
relief against Wade, a county district attorney, to prevent
enforcement of TX criminal abortion statutes.
b. The court held that the fundamental right to privacy
extended to the abortion context. So, the legislature has
only a limited right to regulate and may not completely proscribe
abortions.
a. 1st Trimester: a state may not ban, or even closely regulate
 abortions. Rationale is that the mortality rate for mothers
having abortions during the first trimester is lower than the
rate for full-term pregnancies.
b. 2nd trimester: the state may protect its interest in the
mother’s health if reasonably related to the abortion
procedure can regulate.
c. 3rd trimester: the fetus become viable and state may
regulate and even proscribe, but must permit when it is
necessary to preserve the life or the health of the mother.
c. The Court held a woman’s interest in deciding this issue was
“fundamental” and could only be outweighed by compelling
state interest and the narrowly drawn state statute.
a. The compelling interest was to protect mother and viable
fetus. Viable fetus only after 3rd trimester. On historical
grounds, the Court explicitly rejected the argument that
the state had a compelling interest in the viable fetus.
d. Original explanation for these statutes was hazardous to women,
but this diminished over time. Illicit sex not a good explanation
for all abortions because it doesn’t help married especially after
Griswold.
e. Ct explains it is a right to abortion because of the fundamental
right to privacy and family decisions. It would be much
different if the fetus was different because then you are
depriving of right to life.
Planned Parenthood v. Casey
a. At issue in Casey was a PA statute which placed a number of
significant restrictions on abortions, such as woman wait 24
hours after receiving info from doctor about abortion.
b. Held: Partially overruled Roe. Important aspects of Roe,
including abortion’s status as a “fundamental right,” the
states almost inability to regulate the first trimester and in fact
the whole trimester framework were overturned.
a. States may restrict abortion so long as they do not
place “undue burden” on the woman’s right to choose.
i. So, state could regulate by a structural mechanism
by which the state expresses profound respect for
the life of the unborn, but don’t obstacle woman’s
path then upheld.
ii. Made clear that every pre-viability restriction in Roe
that had to survive strict scrutiny was rejected.
Abortion no longer a fundamental right and no longer
to be strictly scrutinized.
c. Not how stare decisis usually works
**No other fundamental right other than “abortion” (if still
fundamental) is assessed under undue burden.
--Most are under: 1. Strict scrutiny: need compelling state
 interest
2. Intermediate scrutiny: significant state interest
3. Rational Basis: a state interest

Lawrence v. Texas
a. Police officers responding to a reported weapons disturbance
entered an apartment where Lawrence resided. The officers
found D and another man engaging in a sexual act. D was
arrested and convicted of “deviate sexual intercourse with a
member of the same sex.” D claimed the statute was
unconstitutional under due process.
b. Issue: May a state ciminalize private and consensual sexual
activity between two adults of the same sex.
c. Held: No.
d. Bowers held that there was no fundamental right for
homosexuals to engage in sodomy, so the constitution did not
prevent the states from making such activity illegal.
e. Here, the issue is limited to certain sexual activity and
consequences of controlling personal relationships within the
liberty of persons to choose are relevant.
f. In recent years, society recognized the liberty of conducting
their private sex lives (Griswold even).
g. What standard of review here?
a. No rational basis for the statute, so seems to fit that it is
unconstitutional.
a. It is morally wrong by a majority of people, but this
doesn’t matter because we criminalize narcotics
and they are just harmful to one as well.
b. If you looked at it as just “intimate” then it would
be harder to find a reason for the state to regulate.
b. The issue here is that if rational basis to say that it was
wrong then is there an ability to find a basis more than
just “morally” rational?
**Most economic and social regulations are reviewed under the
traditional equal protection test, based on the existence of a rational
basis for the regulation.
--First requirement is that any statutory classification be
“rational” or based on factors that justify disparate
impact (historical, economic, social).
--Second, is that the classification rationally promote a
proper government purpose.
**But, some classification based on suspect criteria are subject to strict
scrutiny….(Race was it until the 1960s)

Equal Protection until the 1960s

Gettysburg Address
 a. After the war, the 14th Amendment was enacted for equal
protection in 1868. Congress passed a series of statutes after
that to establish certain rights.
b. Before the war, people did not really focus on the “created
equal” in the Declaration.
c. Coming out of Reconstruction:
a. Political idea of rights: all equal, can’t discriminate
b. Social: not all equal, can discriminate
Bradwell v. State
1. Myra Bradwell applied for membership in the Illinois state bar in
accordance with a state statute that permitted any adult of good
character and with sufficient training to be admitted. Because
she was a woman, however, the Illinois State Bar denied her
admission, noting that the "strife" of the bar would surely destroy
femininity. Bradwell appealed the decision to the United States
Supreme Court, arguing that her right to practice law was
protected by the Privileges or Immunities clause of the
Fourteenth Amendment.
2. An 8-1 ruling upheld the Illinois court ruling and made it clear
that a right to a job was not covered under the privileges and
immunities clause. (Compared to Slaughterhouse cases)
Bradwell also argued that since she was born in Vermont, Illinois
couldn’t regulate as that would be interstate discrimination.
However, under the newly enacted 14th Amendment you become
a citizen of the state where you reside, is what the court said.
3. Concurrence focuses more on the sex of Bradwell and that any
civil profession is for men. (This is the typical view on women’s
rights at the time (1872).
a. Flaw here is that Bradwell’s rights get lumped in with all
other woman’s rights.
b. Hard to have an airtight case when you just “have a view”
and don’t explain it
Plessy v. Ferguson
1. Plessy, who was 7/8 white and whose skin was white, was denied
a seat in an all white railroad car. When he resisted, he was
arrested for violating a state law which provided for segregated
“separate but equal” railroad accommodations. Plessy appealed
the conviction on the basis that separation of the races
stigmatized blacks and stamped them with a badge of inferiority.
He claimed that segregation violated the 13th and 14th
amendments. Trial court found Plessy guilty on the basis that
the law was a reasonable exercise of the state’s police power.
2. Issue: May the state segregate the races in “separate but equal”
facilities or accommodations?
3. Held: Yes, the law does not imply the inferiority of either race to
the other. The only proper restraint on the exercise of state
 police power is that it be reasonable and intended for the
promotion of the general good.
4. The argument of Plessy assumes that social prejudices may be
overcome by legislation, and that equal rights cannot be secured
by blacks except by a forced commingling of races. (Not true…
legislation will not abolish people’s feelings towards the races).
5. Dissent: (Harlan)—In the eyes of the Constitution, there is not
superior ruling class of citizens. Our Constitution is color blind.
a. Until this case, the SC had stepped around the “separate
but equal” issue. The Court then upheld that it did not
apply to separation as long as:
i. The purported purpose of the separation had to
serve a government interest other than making one
race appear inferior to the other.
ii. There had to be a reasonable exercise of police
power
iii. Great discretion had to be given to the legislature in
determining what would promote the preservation of
public peace and good order.
6. Must be wrong case: Why? (like Locher and Dred Scott)
a. Formal equality: Keeping under same laws, but separate is
not practical.
b. Commerce Clause problem: One state has segregation on
train, another doesn’t. Would you have to stop the train at
state line and change? (RR were totally against this law)
c. Precedent saying segregation is okay…so just deferring to
state law
d. Custom (not really custom thought): first type of this law,
but there was action in the south that was segregated.
e. Reasonable: unlike segregation of houses being a different
color or segregated by hair color.
f. What is a civil right?
i. Could come down to the majority not thinking riding
a train is a civil right and Harlan (dissent) thinking it
is.
g. Flawed Assumption: sounds good at the time “separate but
equal,” but really wasn’t equal
i. Going forward making separate but equal would be
costly, so they ended up doing away with it.
7. Court seems to think that the black brought the inferiority on
themselves by continuing to discuss these issues.
Korematsu v. United States
--“Legal restrictions which curtail the civil rights of a single racial group
are suspect,” so SUBJECT TO STRICT SCRUTINY
--Must be wrong case because the treatment is so broad, the US
treated German/Italian differently by giving them hearings, and not
enough evidence to segreate.
1. Before 2003’s Grutter, this is the last case in which a racial or
ethnic classification survived strict scrutiny. (Korematsu was
the first case in which race was explicitly referred to as a
“suspect” criterion)
2. Korematsu, an American citizen of Japanese ancestry, was
convicted in federal district court for remaining in San Leandro,
CA, a “military area,” contrary to civilian exclusion order of the
commanding general. The order directed all persons of Japanese
ancestry to be excluded from the area in order to protect against
acts of sabotage and espionage during WWII. Those of Japanese
ancestry were to report to and temporarily remain in an
assembly center for an indeterminate period. (for citizens and
non-citizens)
3. Held: The court upheld the order, despite is suspectness. It did
so on the theory that there was a compelling need to prevent
espionage and sabotage, and that there was no practical and
sufficiently rapid way for the military to distinguish the loyal from
the disloyal.
4. Dissent: The strongest dissent argued that the majority’s view
relied on the assumption “that all persons of Japanese ancestry
may have a dangerous tendency to commit sabotage and
espionage…”
a. Commentators have almost universally scorned this as one
of the worst betrayals of Americans’ constitutional rights in
the SC history.
5. The extreme emergency meant that this segregation was
“necessary” to achieve a compelling state interest, which was
present, but is scary because of the loose definition of
“necessary” because there had to be another way.
a. “This is not a case of imprisonment because of racial
antagonism. It is simply a case of military necessity,
and we cannot be availing ourselves of the calm
perspective of hindsight now say that at the time these
actions were unnecessary and unjustified. “
LEVELS of REVIEW
Strict Scrutiny: Compelling state interest
Intermediate Scrutiny: persuasive state interest
Rational Basis: a state interest
1. Is protecting America from sabotage a compelling state interest?
a. Reason on its face looks like it because it is to protect
health/safety. But, was that the actual reason it was
passed? –Might be since Pearl Harbor was done by spying,
but the military is only relying on General saying it is
necessary…not enough during peace-time, but maybe
during wartime.
 2. All legal restrictions which curtail the civil rights of a single racial
group are immediately suspect and must be subjected to a high
level of scrutiny
Ways to look at a “suspect class”
1. What is the purpose of this law? What in the end is the law
trying to do?
- It forces the state to articulate is reasoning
- due process
2. What are the means?
- What are you doing to enact the law?
- what is the strength of the relationship between means
and the ends. The weaker it is, more likely the law is going
to be struck down.
1. How are similarly situated people treated?
2. How close does the relationship have to be between the
means and the ends?
- for some states, it has to be really close, others, not so
close: described as
which groups are “suspect classes”.
- means must be compelling state interests and narrowly
tailored.
- For suspect classes, there must be close relationship
- To say that it is a suspect class doesn’t mean its
discriminatory (men/women bathrooms)
- As long as you have a character trait that is a legitimate
means, then the law
will be upheld based on rational basis.
3 indicators of a suspect class:
1. Class is determined by characteristics that are solely an
accident of birth
2. Class has been subjected to such history of purposefully
unequal treatment
3. Class has been relegated to a position of political
powerlessness
Brown v. Board of Education
1. Brown and other black schoolchildren were denied admission to
schools attended by white children under laws requiring or
permitting segregation based on race. P challenged the law but
was denied relief under the “separate but equal” doctrine.
2. Issue: May children be segregated in essentially “equal” public
schools solely on the basis of race?
3. Held: No. The circumstances surrounding adoption of the 14th
Amendment are not conclusive to its determination, especially
here, where public education, which barely existed then, is at
issue.
4. Granted that black and white schools are substantially “equal” in
 tangible factors, there yet exists a long lasting effect when black
and white children are segregated. Segregation creates a feeling
of inferiority that affects a child’s motivation to learn.
5. Separate but equal doctrine rejected, at least insofar as public
education was concerned (after this case).
6. This opinion did not rely on history of 14th Amendment because
of the fact that blacks in the South were not even educated when
it was adopted.
7. Looks almost like the court was relying on social science and
empirical evidence to show the harm on students, which has
been criticized as a flimsy foundation for the constitutional rights
of blacks. The scientific knowledge was one way to show the
expansion effects on segregation.
a. Regardless, after Brown, the Court extended its rejection
of “separate but equal” to many other public facilities
during the following ten years.
8. Brown can be read 2 ways:
a. No racial segregated schools
b. African-American integration in schools because they do
better with whites
Loving v. Virginia
1. Loving, a white man, married a black woman in violation of VA
anti-miscegenation statute and was convicted. The state courts
upheld the conviction. D appeals, claiming that the statute
violated the Equal Protection and due process of 14th
Amendment.
2. Issue: May a state prevent marriages between persons solely
because they are different races?
3. Held: No. The state argued that the provision was constitutional
because it was applied equally to both black and whites. But,
the equal protection clause means more than “equal
application.” The Court must consider whether statutory
classifications constitute arbitrary and offensive discrimination.
4. Racial classifications are subject to the most rigid scrutiny and
must be essential to the accomplishment of some permissible
state objective to be permitted. The state has failed to show
this.
5. This case involves the fundamental right of marriage and the
protected class of race. (First case saying there is a fundamental
right to marry).
6. The opinion could be changed by putting in homosexual for
blacks and it would allow gay marriage. (because all not equal if
we can’t marry the other race, or gender)
7. The problem is what is the subject of the court’s concern?
a. If it is white supremacy, this matters because it suggests
affirmative action is constitutional
 b. If about a racial classification, would not permit affirmative
action
c. If a fundamental right is involved, then would permit
fundamental right affirmative action sometimes. (like right
to marry)

Modern Equal Protection

--Before 1960 equal protection was based solely on race. (subject to
strict scrutiny)
--Now, modern is looking at what else should warrant strict scrutiny
besides race to be equally protected.
Levels of scrutiny
Strict scrutiny – to be valid it has to meet two requirements:
(a) narrowly tailored and
(b) compel state interest.
- Most obvious is race. Does means justify ends? Is
racial discrimination
needed to achieve the goal?
- Least Restrictive Alternative: depending on level
of scrutiny, the court will consider whether there is a
less burdensome manner for legislature to
achieve its goal.
- Government has burden of proof.

Intermediate scrutiny – needs to be a reasonable

relationship between the means being selected and ends
being pursued. The interest being pursued has to be
important/substantial. It got started with gender
discrimination (bathroom problem: couldn’t fall under strict
scrutiny). It’s not as restrictive. Also included: disabled.
Government has burden of proof.

Rational Basis review – as long as the legislature thinks it’s

rational, it is. It encompasses most laws.
- challenger has burden of proving no legitimate gov.
purpose or that the law has no rational relation to that
purpose

Washington v. Davis—Racial impact not enough to be unconstitutional

1. Davis, a black police officer, and other interested blacks
challenged the promotion policies and recruiting practices of the
DC police department. P filed for a partial summary judgment on
the recruiting question, challenging the qualification test that
allegedly discriminated against blacks in violation of the Fifth
Amendment Due Process Clause. District court denied P’s
motion, and the court of appeals reversed.
 2. Issue: Does a facially neutral qualification test that has not been
established as a reliable measure of job performance and fails a
higher percentage of blacks than whites violate the 5th
amendment.
3. Held: NO. A disproportionate impact on different races resulting
from a general qualification test does not, by itself and
independent of any discriminatory purpose, establish a
constitutional violation.
a. Government action is not unconstitutional just
because it has a disparate impact. There must be a
racial discriminatory purpose to justify invalidation.
(Two step inquiry)
b. The test here was reasonable in relation to the need for
competent police officers. Further all federal employees
get this test, so it is less likely that it was meant to be
discriminatory.
**Sometimes disparate impact cases can go so far as to be conclusive.
(Usually these are all or nothing cases, like 100:1). Still though, this
impact is just evidence to what is necessary…discriminatory intent.
--Really the issue is how much disparate impact shows intent to
discriminate?

Frontiero v. Richardson—military benefits; strict scrutiny applied

1. Frontiero, a female office in the Air Force, sought to claim her
husband as a “dependent” in order to receive the additional
benefits attached to such a claim. Male members of the armed
forces could claim wives as dependents without any showing, but
women in the service had to show that their spouses were
actually dependent on them for over one-half of their support. P
claimed that the distinction violated the Due Process Clause.
The district court upheld the statute, P appeals.
2. Held: The military may not require that servicewomen and not
servicemen make of showing of their dependents.
a. Classifications based on sex are included among
those that are inherently suspect and therefore
subject to close judicial scrutiny.
b. This statute cannot withstand strict scrutiny because its
sole justification lies in the administrative convenience,
which is hardly a significant governmental interest closely
and reasonably related to the classification.
3. Why should gender be subject to strict scrutiny?
a. Historically, women were subject to discrimination
b. Immutable—gender, like race, is immutable so strict
scrutiny because not really related to activity
c. But, can’t as a majority the women protect themselves or
discriminate themselves?
STRICT SCRUTINY PROTECTION
1. Race
2. Gender
3. Illegitimacy
4. National Origin

5. Disability—courts have not really increased past rational basis

6. Age—don’t see a history of discrimination
--These two are handled by statute and not strict scrutiny.

Romer v. Evans—first case to address any claim based on sexual

orientation (rational basis review)
1. CO voters adopted an amendment to CO constitution that
prohibited all legislative, executive or judicial action at any level
of state or local government designed to confer a protected
status upon, or to allow claims of discrimination by any person
homosexual, lesbian, or bisexual. Evans instigated a lawsuit to
find it unconstitutional. CO Supreme Court held the amendment
was subject to strict scrutiny because it infringed the
fundamental right of homosexuals to participate in the political
process.
2. Held: A state may not prohibit governmental action that confers
a protected status upon or allows discrimination of a certain
group.
a. The actual effect of the amendment put homosexuals in a
solitary class with respect to transactions and relations in
both the private and governmental spheres.
b. Supreme court found the measure flunked the “mere
rationality” review on two grounds: No legitimate state
interest being served, and the means chosen were not
rationally related to the interest the state asserted.
c. Really the effect of this was that government could not pas
laws that would protect gays and lesbians from
discrimination.
d. The reason it was denied was that the statute actually
singled out gays for worse treatment than other groups.
A state cannot deem a class of persons a stranger to its
laws.
**With Romer and Lawrence, it seems like the Court is moving in a
direction to applying some type of heightened review to
homosexuals. Lawrence used “rational relation with bite.”

Grutter v. Bollinger
1. Grutter, who was white, applied for admission to Michigan law
school. She had a 3.8 GPA and a 161 LSAT. P was denied
admission. P sued the president of the university claiming that
 their admissions policy discriminated against her on the basis of
race. The admissions policy sought to achieve diversity in the
student body and therefore enrolled a “critical mass” of minority
students. The District found that D’s use of race as a factor in
admissions decisions was unlawful, but the court of appeals
reversed.
2. Held: A state university does have a compelling state interest in
obtaining the educational benefits that flow from a diverse
student body, sufficient to justify the use of race as a factor in
admission.
a. Under EPC, a racial classification must survive strict
scrutiny review, so they are constitutional only if
narrowly tailored to further compelling
governmental interests.
i. It was held that a diverse student body is a
compelling state interest. Also the Court had a
“tradition of giving a degree of deference to a
university’s academic decisions.”
ii. Why compelling state interest?
1. Cross racial understanding
2. Breaking down racial stereotypes
3. Livelier classroom discussion
4. Also, these extended to the society as a whole
iii. This whole thing assumes people with different
backgrounds have different opinions.
iv. It was narrowly tailored because no quotas shown
because of the range in numbers.
3. Dissent: Believed there was a state interest, but were not
convinced the policy was narrowly tailored to achieve that
objective. Instead CJ thought it was just a veil to achieve racial
balancing. The numbers were different for separate minority
groups.
**The more race-neutral it looks (even if it was really using race), the
more likely it will be upheld (less obvious if you want to use)

Parents Involved v. Seattle

1. The Seattle School District allowed students to apply to any high
school in the District. Since certain schools often became
oversubscribed when too many students chose them as their first
choice, the District used a system of tiebreakers to decide which
students would be admitted to the popular schools. The second
most important tiebreaker was a racial factor intended to
maintain racial diversity. If the racial demographics of any
school's student body deviated by more than a predetermined
number of percentage points from those of Seattle's total
student population (approximately 40% white and 60% non-
 white), the racial tiebreaker went into effect. At a particular
school either whites or non-whites could be favored for
admission depending on which race would bring the racial
balance closer to the goal. A non-profit group, Parents Involved
in Community Schools (Parents), sued the District, arguing that
the racial tiebreaker violated the Equal Protection Clause of the
Fourteenth Amendment as well as the Civil Rights Act of 1964
and Washington state law. A federal District Court dismissed the
suit, upholding the tiebreaker. On appeal, a three-judge panel
the U.S. Court of Appeals for the Ninth Circuit reversed.

2. Held: The Court applied a "strict scrutiny" framework and found

the District's racial tiebreaker plan unconstitutional under the
Equal Protection Clause of the Fourteenth Amendment. Chief
Justice John Roberts wrote in the plurality opinion that "The way
to stop discrimination on the basis of race is to stop
discriminating on the basis of race." The Court acknowledged
that it had previously held that racial diversity can be a
compelling government interest in university admissions, but it
ruled that "[t]he present cases are not governed by Grutter."
Unlike the cases pertaining to higher education, the District's
plan involved no individualized consideration of students, and it
employed a very limited notion of diversity ("white" and "non-
white").

a. The main difference here between Grutter is that there is

not admission in K-12.

DORMANT COMMERCE CLAUSE v. EQUAL PROTECTION

1. Facial Discrimination (both will get overruled)
2. Intended to discriminate but didn’t say so in statute (intent)
3. Unreasonable burden (in Equal Protection would be like disparate
impact)

**Strict scrutiny doesn’t mean racial studies can’t be done, if there is

reason for classification they can, just need to be looked at.

Positive Constitutional Rights

--Under what circumstances does the government owe you something
as being a citizen?
1. Negative—b/c government can’t do things to you.
2. Positive—things entitled to from the government
FDR “four freedoms”
a. Freedom of speech
b. Freedom of religion
c. Freedom from fear (national security)
d. Freedom from want (job, education, house) **
 --hard to find authority of this
--why do some get right and others don’t
--Arguments against positive rights
1. Not fundamental—it is more a privilege or good, not
guaranteed
2. What would that mean for courts? (b/c you give cts more
control when things become constitutional)
3. Whether you think it really matters if you put it in the
Constitution?

Gideon v. Wainwright
1. Gideon was charged in a Florida state court with a felony for
breaking and entering. He lacked funds and was unable to hire a
lawyer to prepare his defense. When he requested the court to
appoint an attorney for him, the court refused, stating that it was
only obligated to appoint counsel to indigent defendants in
capital cases. Gideon defended himself in the trial; he was
convicted by a jury and the court sentenced him to five years in
a state prison.
2. Held: The Court held that Gideon had a right to be represented
by a court-appointed attorney and, in doing so, overruled its
1942 decision of Betts v. Brady. In this case the Court found that
the Sixth Amendment's guarantee of counsel was a fundamental
right, essential to a fair trial, which should be made applicable to
the states through the Due Process Clause of the Fourteenth
Amendment. Justice Black called it an "obvious truth" that a fair
trial for a poor defendant could not be guaranteed without the
assistance of counsel. Those familiar with the American system
of justice, commented Black, recognized that "lawyers in criminal
courts are necessities, not luxuries."
a. Even without 6th Amendment, under due process would
probably get a lawyer. But, can’t get a right to PI or expert
witness because you don’t get gold-plated top of the line
treatment. It is okay to distinguish as there is entitlement
to minimum.
b. Criticism is that a lot of the time everyone has a right to a
lawyer, but not a good one. So, the right is quite weak if
you just have someone representing you at trial.
c. Also, another issue is that the Public Defender budget is
not lucrative and will not increase, so it may not be as
helpful as it seems.
Harper v. VA Bd. of Elections
1. Harper and other VA residents brought suit to have Virginia’s poll
tax declared unconstitutional.
2. Issue: May a state exact a poll tax as a condition for exercise of
the right to vote?
 3. Held: No, Once the franchise is granted to the electorate, lines
may not be drawn that are inconsistent with the EPC.
4. It is without doubt that states may impose voter qualifications,
but they must pass careful scrutiny, since the voting power
preserves other basic civil rights. Wealth is not such a factor in
measuring voter’s qualifications.
a. But, there had been discrimination to wealth in the past, so
why not look at it like Frontiero and women.
b. You can tax a fundamental right, so could possibly be
saying voting is a fundamental right.  strict scrutiny. But,
if it is about wealth discrimination, then only subject to
rational basis scrutiny.
i. There will always be a rational basis for $ because
state will say it is raising revenue.
**Opinion seems to suggest that wealth is subject to “heightened
scrutiny,” but this case has been held to just be about voting, not
wealth.

Dandridge v. Williams—no constitutional right to receive public welfare

benefits, so only subject to “rational basis” test unless a “fundamental
right” is affected.
1. Maryland imposed an upper limit of $250 per month per family
for federal aid to families with dependent children. Williams
challenged the statute as denying equal protection since large
families received less aid per child than small families. The
lower court held the statute invalid. Dandridge appeals.
2. Issue: Does imposition of a ceiling on welfare benefits deny equal
protection to large families, who receive less assitance per
family?
3. Held: No. There is no fundamental right at stake here and the
state does not deny equal protection in areas of economic and
social welfare because the classifications are unequal.
4. 14th Amendment does not grant federal courts power to set
economic policy, so as long as there is a “rational basis” and
free from offensive discrimination it is legal.
5. Maryland said keep at per family because:
a. legitimate state interests in encouraging gainful
employment
b. maintaining an equitable balance in economic status as
between welfare families and those supported by a wage-
earner
c. providing incentives for family planning
d. allocating available public funds in such a way as fully to
meet the needs of the largest possible number of families
**It is enough that there is legitimate state interest in encouraging
employment and in avoiding discrimination between welfare families
and the families of the working poor.