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CONSTITUTIONAL LAW FALL 2011 PROFESSOR JOHN VAN DYKE Judicial Review and Constitutional Interpretation a. Marbury v. Madison - i. Creates judicial review of executive actions ii. Establishes Article III is the ceiling of federal court jurisdiction iii. Establishes judicial review of legislative actions b. Theories of Constitutional Interpretation: i. Textualism - dictionary definitions, clause based, holistic, structuralism? ii. Originalism - original understanding - words used - debates at the Convention and during state ratifications - public discussion - newspaper articles iii. Purposivism - the specific intent of the framers of the Constitution; Did they have a coherent vision? ; Or the framers abstract intent? ; Or Our vision today? A vision of individual dignity? (Justice Brennan) c. District of Columbia v. Heller : Serves as an example of how the Constitution should be interpreted. i. The Second Amendment: A well regulated Militia being necessary to the security of a free State, the right of the people to keep and bear arms, shall not be infringed. ii. The Second Amendment protects an individual right to possess a firearm, unconnected with service in a militia, and to use the firearm for traditionally lawful purposes, such as self-defense within the home iii. Prefatory clause states the purpose, but does not limit its effect. iv. Reference to the people indicates that it creates an individual right v. Analysis: B/c it isnt a fundamental right, court uses the rational basis test to determine whether the government has infringed on that right. Is the government justified by a legitimate purpose? Are the means sufficiently related to the goal sought? Is there a reasonable way to achieve the goal?

II. Economic Liberties - FUNDAMENTAL RIGHT a. 9th Amendment: The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people. b. 14th Amendment: nor shall any state deprive any person of life, liberty, or property, without DP of law. c. Economic liberties generally refer to constitutional rights concerning the ability to enter into and enforce contracts; to pursue a trade or profession; and to acquire, possess, and convey property. (Ex: Art. I, 10 - No state shall...pass any...Law impairing the Obligation of Contracts.) d. Economic Substantive DP: The DP clause provides two types of protection: i. procedural due process - refers to the procedures that government must follow when it takes away a person's life, liberty, or property. Ex: what kind of notice and type of a hearing the government must provide when it deprives a person of life, liberty, property.

substantive due process - asks whether the government has an adequate reason for taking away a person's life, liberty, or property. Focuses on the sufficiency of the justification for the government's action, on the procedures the government has followed. e. Lochner : Baker case. Limits on work hours dont apply to bakers. Such a law interferes with a workers right to contract. f. Allgeyer, Adair, Coppage III. The Fall of Lochner a. Muller v. Oregon : liberty is not absolute and extending to all contracts and a state may, without conflicting with the provisions of the 14th Amendment, restrict in many respects the individuals power of contract. ii. b. Economic Substantive DP since 1937 i. Test: The court has made it clear that economic regulations - laws regulating business and employment practices - will be upheld so long as they are rationally related to a legitimate government purpose. ii. The governments purpose can be any goal not prohibited by the Constitution. Legislative intent not required. Any conceivable purpose is sufficient. High degree of deference. iii. Williamson v. Lee Optical - Ct says the days of using the DP clause to strike down laws regulting business, industrial conditions, state laws, etc. are gone. iv. Ferguson : shows the Court no longer interpreted the DP clause to protect the right to practice a trade or profession or even freedom of contract. IV. Fundamental Constitutional Rights: The Right to Privacy a. Fundamental Rights under DP and Equal Protection i. Some liberties are so important they are deemed to be fundamental rights, and generally the government cannot infringe them unless STRICT SCRUTINY is met. ii. STRICT SCRUTINY = the governments action must be necessary to achieve a compelling purpose. iii. FUNDAMENTAL RIGHTS: Privacy, Family Autonomy, Procreation; Sexual Activity and Sexual Orientation, Medical Care decision making, Travel, Voting, and Access to the Courts... b. Family Autonomy i. Meyer v. Nebraska : Court uses economic substantive DP analysis to justify this right. However, in a similar case today, they would use strict scrutiny analysis. ii. Pierce v. Society of Sisters : the Oregon law requiring all children to go to public schools had no reasonable relation to a state purpose. iii. Limitations: Court does recognize that the right ot make parenting decisions is not absolute and can be interfered with by the state if necessary to protect a child. Ex: requires school attendance, regulates child labor. c. Reproductive Autonomy

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The Right to Procreate 1. Involuntary sterilization must meet strict scrutiny. 2. Buck v. Bell : Court didnt agree that right to procreate was fundamental 3. Skinner v. Oklahoma : Ct. recognizes Right to Procreate is Fundamental. The Right to Purchase and Use Contraceptives 1. Griswold v. Connecticut : The right to marital privacy, although not explicitly stated in the Bill or Rights, is a penumbra, formed by certain other explicit guarantees. As such, it is protected against state regulation that sweeps explicitly broad. 2. Eisenstadt v. Baird : Extends the rule of privacy iin Griswold to unmarried couples. The state has no rational basis for treating married couples different from unmarried couples. 3. Todays Rule: Strict scrutiny must be met for the government to justify a law restricting access to contraceptives. Such regulations imposing a burden on this right may be justified only bo compelling state interests The Right to Abortion - Should the Court protect such a right that is not mentioned in the text and was not clearly intended by the framers? Know the five part analysis of the book: 1. The Supreme Courts conclusion that the Constitution protects the right of women to choose to terminate their pregnancies prior to viability. Roe v. Wade and Planned Parenthood. 2. What types of state regulations of abortion are permissible and which are unconstitutional? 3. Laws that prohibit the use of government funds or facilities for performing abortions 4. Particular types of government regulations on abortion which are unconstitutional (spousal consent, spousal notification requirements, etc.) 5. Laws concerning ability of the state to require parental notice and/or consent for an unmarried minors abortion.

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V. Abortion a. Roe v. Wade - The right to privacy found in the Fourteenth Amendments concept of personal liberty and restrictions upon state action is broad enough to encompass a womans decision whether or not to terminate her pregnancy. i. Neither are a womans right to privacy absolute. ii. Where certain fundamental rights are involved, the Court has held that regulation limiting these rights may be justified only by a compelling state interest, and legislative enactments must be narrowly drawn to express only the legitimate state interests at stake.

What are the states asserted interests? 1. Safeguarding a womans health 2. maintaining medical standards 3. Protecting potential life of the fetus iv. When do these interests become compelling? 1. Prior to viability, the physician, in consultation with the woman, is free to decide w/o interference by the state 2. Subsequent to approx the end of first trimester, the state, in promoting interest in health of the mother, may regulate the abortion procedure in ways that are reasonably related to maternal health. 3. Subsequent to viability, the state, in promoting the interest of protecting potential life, may regulate and even proscribe abortion, except as necessary to safe the mothers life. b. Planned Parenthood v. Casey : The court overruled the trimester distinction used in Roe and also the use of strict scrutiny for evaluating government regulation of abortions. i. The woman has the right to choose and hte state cannot impose a substantial obstacle on this right prior to viability. 1. substantial obstacle = undue burden ii. the state can impose restrictions after viability so long as exceptions exist for pregnancies that endanger the womans life or health. iii. The state has legitimate interests throughout pregnancy to protect the health of the woman and the potential life of the fetus. c. What types of laws are an undue burden? i. Upheld that woman must give informed consent ii. Upheld that woman must wait 24 hours iii. Upheld parental notification/judicial bypass iv. Struck down spousal consent iii. VI. The Right to Die a. Right to Refuse Medical Treatment: Generally, there is a right to refuse medical treatment, bu tit is not absolute and can be regulated by the state. b. Cruzan A competent individual has a liberty interest to refuse medical treatment. : However, a state may require clear and convincing evidence of consent by an individual prior to the cessation of life support procedures upon that individual. i. Here the court did not declare that a right to die does or does not exist. c. Washington v. Glucksberg : The right to assistance in committing suicide is not a fundamental liberty interest protected by the DP clause. d. Vacco v. Quill : When a patient refuses life-sustaining medical treatment, he dies from an underlying fatal disease or pathology; but if a patient ingests lethal medication, he is killed by that medication. The distinction comports with fundamental legal principles of causation and intent. VII.Sexual Orientation a. What are the States asserted interests? i. Health?

Morality? the right of the Nation and of the States to maintain a decent society? iii. To protect the traditional family by preventing homosexual relationships from being viewed as a viable alternative? 1. Argument Con: Homosexual activity cannot be protected as a fundamental right b/c it is not deeply rooted in this nations history and tradition. b. Lawrence v. Texas : What level of scrutiny is the majority using and does it matter? Does the decision have implications for whether there is a constitutional right to same-sex marriage or whether other laws regulating private consensual activity (adultery, prostitution)are unconstitutional? i. A state cannot criminalize intimate sexual conduct b/t two persons of the same sex consistent with the substantive protections of the DP clause of the 14th Amendment. ii. The majority applies the rational basis review , but since the right falls under substantive DP, the court should have used Strict Scrutiny. iii. Rejects Bower which supported morality as a logical basis for legal questions??? c. Does the Constitution Protect the Right to Marriage? i. Loving v. Virginia - right to marry someone of a different race. ii. Zablocki v. Redhail - right to marry even if one is not supporting children from a previous marriage iii. Turner v. Safley : Right of a prisoner to marry. iv. Bahr v. Lewin (Hawaii Case): Is the right to marry a person of ones own sex protected under Hawaiis right to privacy? No. 1. Marriage is an event linked to procreation 2. Same sex couples cannot procreate 3. Not rooted in the traditions and collective conscience of our people or implicit in the concept of ordered liberty. v. Baehr v. Miike : 1. What compelling interests did the State establish? a. promoting the optimal development of children. b. Assuring recognition of Hawaii marriages in other jdx. c. Protecting the public fisc?? 2. How did Judge Kevin Chang respond to the states arguments? a. Diversity of family structure in Hawaii b. Nurturing relationship b/t parent and child is the single most important factor in the development of a happy, healthy and well adjusted child. c. State failed to establish any causal link b/t allowing same sex marriage and adverse effects upon the optimal development of children. ii.

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vii. VIII. a. b.

In re Marriage Cases : California supreme court concluded the right to marry a person of ones own sex was included in the fundamental right to marry. How? 1. Californias constitutionally-based right to privacy 2. The importance of marriage as the most socially productive individually fulfilling relationship one can enjoy in the course of a lifetime. 3. Procreation is important, but right to marry has never been limited to those who plan or desire to have children. Old couples, sterile couples, etc. Perry v. Schwarzenegger : Overturned Prop 8. California had no rational basis or vested interest in denying gays and lesbians marriage.

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Federalism: The Commerce Clause Power Article I, Sec. 8, Clause 3 - Congress shall have power to regulate Commerce w/in foreign nations and among the several States, and with the Indian tribes... Tenth Amendment - The powers not delegated to the United States by the Constitution nor prohibited by it to the States are reserved to the States respectively, or to the people. WHAT IS COMMERCE? i. United States v. E.C. Knight (1895) 1. The factory or the coal mine in which products are manufactured are to be regulated by the state. That is no interstate commerce. ii. Carter v. Carter Coal 1. Mining is production, not commerce, and its regulation is an infringement upon freedom of contract. HOW DOES THE COURT DEFINE AMONG THE STATES? i. Houston East & West Railroad v. United States 1. Intrastate commerce may within the stream of commerce [and regulated] if it bears a close and substantial relationship to interstate traffic. 2. Congress has the power to regulate intrastate ii. commerce when it impacts interstate commerce. A.L.A. Schechter Poultry Corp. v. United States 1. The federal government has no authority to regulate intrastate trasactions having an indirect effect on interstate commerce. 2. Indirect effects - the mere fact that there may be a constant flow of commodities into a state does not mean that the flow continues after the property has arrived and has become commingled with the mass of property within the state and is there held solely for local disposition and use. 3. Direct effects - railroad cases

4. Creating the direct effect test. Federal government may only regulate transactions directly affecting the stream of commerce 5. NOTE: this is not good law anymore b/c the court can use the substantial relations test. iii. Hammer v. Dagenhart : e. DOES THE TENTH AMENDMENT LIMIT THE FEDERAL COMMERCE POWER? i. The Tenth Amendment: the powers not delegated to the Unitd States by the Consitution, nor porhibited by it to the states, are reserved to the states respectively, or to the people. 1. Congress may only legislate if it has authority under the Constitution. 2. A federal law could be invalidated as exceeding the scope of its powers under Art. I. of the Constitution or for violating another Constitutional provision. 3. The Tenth Amend. protects state sovereignty from federal intrusion a. Reserves zone of activity to the states for their exclusive control, and federal laws intruding into this zone should be declared unconstitutional by the courts. ii. Hammer v. Dagenhart - Child labor case 1. Even the lawful exercise of federal commerce power may be invalid if it intrudes on State authority guaranteed by the Tenth Amendment. 2. the production of articles, intended for interstate commerce, is a matter of local regulation. 3. Unfair competition argument. iii. Champion v. Ames 1. A Crack in the Tenth Amendment protection for exclusive State authority. iv. Shrevport Rate Case : 1. Can the federal government (through the Interstate Commerce Commission) regulate the rates charged by the railway for transporting goods b/t Dallas, Texas and Marshall Texas? IX. Commerce Clause Power after the New Deal a. NLRB v. Jones & Laughlin Steel Corp. - i. Although activities may be intrastate in character, if they have such a close and substantial relatino to interstate commerce that their control is essential or appropriate to protect that commerce from burdens and obstructions, Congress cannot be denied the power to exercise that control. ii. U.S. v. Darby

1. Overrules Dagenharts conception of Tenth Amendment limits to federal power. 2. Calls the Tenth Amendment a truism that all is retained which has not been surrendered. iii. Wickard v. Filburn 1. Extends regulation of commerce to the general protection of the market. The power to regulate commerce includes the power to regulate prices at which commodities in that commerce are dealt. 2. Established Aggregation theory. 3. Even if appellees activity be local and though it may not be regarded as commerce, it may still, whatever the nature, be reached by Congress if it exerts a substantial economic effect on interstate commerce and this irespective of whether such effict is what might at some earlier time have been defined as direct or indirect b. THE MEANING OF COMMERCE AMONG THE STATES i. Civil Rights Laws : The court held that The Civil Rights Act was limited in that it was only applicable to government conduct and not private behavior under 5 of the 14th Amendment. ii. Congress started using the Commerce Clause to enforce Civil Rights. iii. Heart of Atlanta Motel v. U.S. 1. The hotel was located on the Highway. African Americans couldn't travel through interstate commerce without a place to stay. The Court says the power of Congress to promote interstate commerce also includes the power to regulate local incidents thereof, including local activities in both the States of origin and destination. iv. Katzenbach (Ollie's BBQ) : Even if appellee's ativity be local and though it may not be regarded as commerce, it may still, whatever its nature, be reached by Congress if it exerts a substantial economic effect on interstate commerce. The court here uses Aggregate theory from Wickard. The restaurant still imported a percentage of its food from out of state. v. Hodel v. Indiana: a court may invalidate legislation enacted under the Commerce Clause authority only if it is clear that there is no rational basis for a congressional finding that the regulated activity affects interstate commerce, or that there is no reasonable connection b/t the regulatory means sellected and the asserted ends. vi. Perez v. United States : The Commerce Clause reaches three categories of problems: 1. The use of channels of interstate or foreign commerce which Congress deems are being misused (shipment of stolen goods or human trafficking) 2. Protection of the instrumentalities of interstate commerce (destruction of an aircraft, or persons or things in commerce, thefts from interstate shipments) 3. Those activities affecting commerce.

X. The Commerce Clause and the Tenth Amendment a. WHAT IS CONGRESS'S AUTHORITY TO REGULATE COMMERCE AMONG THE STATES? i. United States v. Lopez : 1. Re the Gun-Free School Zones Act.New Test: Commerce Clause regulates (1) the use of channels of interstate commerce (2) the instrumentalities of interstate commerce, or persons or things in interstate commerce, even though threat may come from only intrastate activities and (3) activities having substantial relation to interstate commerce. 2. Unlike Wickard, this law has nothing to do with commerce or any sort of economic enterprise. ii. United States v. Morrison : 1. If accepted, petitioners' reasoning would allow Congress to regulate any crime as long as the nationwide aggregated impact of that crime has substantial effects on employment, production, transit, or consumption. 2. Violence Against Women Act is truly local and must be distinguished from national concern. Rejects the argument that congress may regulate noneconomic violent criminal conduct base solely on that conduct's aggregate effect on IC. Must distinguish b/t what is truly national and what is truly local. 3. Congress cannot regulate a noneconomic activity that, looked at cumulatively, it has a substantial effect on interstate commerce. XI. Current Conceptions of Congressional Power Under the Commerce Clause a. Pierce County v. Guillen i. it is well established that the Commerce Clause gives Congress authority to regulate the use of channels of IC...[the statutes] can be viewed as legislation aimed at improving saety in the channels of IC and increasing protection for the instrumentalities of IC. b. Gonzales v. Raich i. Our case law firmly establishes Congress' power to regulate purely local activities that are part of an economic class of activities that have substantial effect on IC. (Wickard). ii. Stands for the proposition that intrastate production of a commodity sold in IC is economic activity and thus substantial effect can be based on cumulative impact. iii. Distinguishes from Morrison and Lopez which were noneconomic. XII.Limits Based on the Structure of State Governments a. Gregory v. Ashcroft: Federal Age Discrimination Court held that federal law, that imposes a substantial burden on a state government, will be applied to important state government activities only if there is a clear statement from Congress that the law was meant to apply. The holding did not invalidate the federal law but rather used the 10th Amendment as a rule of construction to limit the scope of applicability. b. New York v. United States:

i. Whether an act of Congress is authorized by one of the powers delegated to Congress in Article I of the Constitution ii. Whether an act of Congress invades the province of state sovereignty reserved by the 10th Amendment. iii. The Federal Government may: 1. Guide state action by attaching conditions to the receipt of federal funds. Conditions must bear some relationship to the purpose of federal spending. 2. Offer states the option of regulating based upon federal standards or have state law preempted by federal regulation. iv. But the federal government MAY NOT: 1. simply compel the States to act in some manner. To do so diminishes the electoral accountability of both State and Federal officials. The Constitution confers on Congress the authority to regulate individuals, not states. v. Dissent: The court's distinction b/t direct federal regulation of individuals and direct federal regulation of states is unsupported by the Tenth Amendment precedent. This is an invented distinction..and many other circumstances just such mandates have been allowed. c. Printz v. United States: i. The federal government may not compel the States to enact or administer a federal regulatory program...or conscript State officers to do the same. ii. Dissent: The Tenth Amendment imposes no restriction on the exercise of delegated powers...all laws which shall be necessary and proper for carrying into execution the foregoing powers. This I sin keeping with Hamiton's early description of federalism and the use of state magistracy for the execution of federal laws. d. Reno v. Condon (most recent 2000) i. Distinct from Printz and New York in that it is prohibiting the states from doing an act rather than obligating them to act. this case is governed by Baker, we upheld a statute...that regulated state activities rather than seeking to control or influence the manner in which states regulate private parties. ii. Also, this rule applied to individuals as well as states. 1. United States argues that personal information is a thing in IC and therefore subject to federal regulation. The Ct. Agrees. 2. Being subject to federal regulation, the court holds that the exercise of this regulatory power does not infringe upon state powers. It does not impose an impermissible requirement that states regulate their own citizens. XIII. Taxing and Spending Powers a. Article I, Sec. 8: i. Congress shall have power to lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defense and

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general welfare of the United States; but all duties, imposts and excises shall be uniform throughout the United States; (cannot just regulate broadly for the general welfare) ii. To Borrow money on the credit of the U.S. iii. To regulate commerce with foreign nations and among teh several states, and within the Indian Tribes. Taxing Power: Are there any limits on Congresss power to tax? Are taxes permissible if the purpose of the tax is to regulate (by penalizing certain conduct) rather than to generate revenue? Butler : While therefore the power to tax is not unlimited, its confines are set in teh clause which confers it, and not in those of section 8 which bestow and define the legislative powers of Congress. -- still good law. i. The taxing and spending power is broad that is, not limited to the enumerated list of issues in Article I, Section: 8 of the United States Constitution (Constitution). ii. Struck down the Agric. Adjustment Act b/c said it invaded the province of the states, protected by the Tenth Amendment Steward Machine v. Davis : required employers to pay a tax to the US treasury, but if employer made a contribution to a state unemployment fund that met federal requirements of stability and accountability, the employer received a credit of 90% of the federal tax. i. Ct. says it was okay. Inconsistent with Butler. Spending Power: What if Congress uses its spending power instead of its taxing power? i.e. offers a subsidy for businesses that use no child labor. i. Can Congress withhold federal highway funds from states that refuse to set 55mph as their maximum speed limit? ii. South Dakota v. Dole : Has to do with XXI amemdment. Congress couldnt just mandate 21 as a legal drinking age, b/c the amendment puts the power to regulate alcohol into the hands of the States. 1. Expenditures must promote the general welfare (broad deference to Congress) 2. Congresional conditions must be explicit 3. Conditions must be related to the federal interest in particular national projects or programs. 4. Conditions must not violate other explicit restrictions in the Constitution. a. JVD says theres never been any case since this one that strikes down a federal law based on the Coercion Doctrine. However, it is still there. iii. Justice OConnor: Congress could not condition highway monies upon moving the state capital. There are some things that the federal government simply cannot do. Congressional Power Under the Civil Rights Amendments

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a. 13th Amendment: prohibits slavery and involuntary servitude, except as punishment for a crime. i. 2 Congress shall have power to enforce this article by appropriate legislation. b. 14th Amendment 5: Congress shall have the power to enforce, by appropriate legislation, the provisions of this article. c. 15th Amendment: th right of citizens of the US to vote shall not be denied or abridged by the US or by any State on account of race, color, or previous condition of servitude. i. 2 : Congress shall have power to enforce by appropriate legislation. d. MAY CONGRESS REGULATE PRIVATE CONDUCT UNDER THIS AUTHORITY? i. Civil Rights Cases : Under 2 of 13th and 5 of 14th Amendments, Congress may only regulate state and local governments actions, not private conduct. ii. Morrison : 5 of the 14th Amendment does not give Congress the power to provide remedies for victims of crimes by private individuals. iii. We concluded that the laws exceeded Congresss 5 powers b/c th law was iv. directed exclusively against the action of private persons without reference to the laws of the State, or their administration by her officers. e. WHAT IS THE SCOPE OF CONGRESSS POWER UNDER THESE AMENDMENTS? i. One approach is narrow and accords Congress only authority to prevent or provide remedies for violations of rights recognized by the Supreme Court. Congress cannot expand the scope of rights or provide additional rights (City of Boerne , Florida Prepai, Kimel) ii. Another approach accords Congress authorityto interpret the 14th Amendment to expand the scope of rights or even to create new rights. Congress may create rights by statute where the court has not fund them in the Constitution, but may not dilute or diminish Constitutional Rights. (Katzenbach) iii.Katzenbach v. Morgan & Morgan deals with the right to vote 1. 5 was enacted to give Congress the same broad powers expressed in the Necessary and Proper Clause. 2. 4(e) of the Voting Rights Act of 1965 is appropriate to enforce the EPC. iv. City of Boerne v. Flores 1. Government actions burdening religion are upheld only if they are necessary to achieve a compelling purpose. 2. Declares the Religious Freedom Restoration Act unconstitutional. 3. Congress's power under 5 extends only to enforcing the provisions of the 14th Amendment.

4. Congress does not enforce a constitutional right by changing what that right is. 5. Describes Congress's enforcement power as remedial and preventive. 6. Distinguishes from Katzenbach which dealt with voting rights. Ct. says the RFRA is sweeping and allows anyone to challenge the law.

XV.The Eleventh Amendment a. Congresss Power to Authorize Suits Against State Governments i. The 11th Amendment states The judicial power of hte US shall not be construed to extend to any suit in law or equity, commenced or proscuted against one of the US by Citizens of another state, or by Citizens or Subjects of any foreign state. ii. Person from CA cant sue state of Hawaii. But what about someone from Hawaii who wants to sue the state of Hawaii? From the text, it does not say that the Constitution prohibits this. iii. Hans v. Louisianna : The 11th amendment bars suits against States by their own citizens in federal court. 1. Whats the basis for the courts decision? iv. When can a Litigant sue a State official in federal court? 1. For injunctive relief (NOT for damages - unless official is acting ourtside the scope of authority). b. Fitzpatrick v. Bitzer : Congress amended Civil Rights Act to make it applicable to discrimination by the states themselves. Does Congress have the power to do this under 5 of 14th Amendment? Whether the 11th Amendment can be overridden by an Act of Congress. i. Civil Rights Act passed under the Commerce Clause, but the govt would have to enforce it through 14th Amendment. ii. Yes, Congress does have the power. This is an example where the court agrees that the 11th amendment can be overridden. c. Seminole Tribe of Florida : i. The indian gaming regulatory Act authorized indian tribes to sue states in fed. cts to enforce the requirement that states negotiate with tribes in good faith. ii. Is that authorization consistent with the 11th Amendment? iii. When is Congress authorized to grant citizens the power to sue states in federal court? iv. Timing? 11th comes after Commerce, so it trumps Commerce Clause. 14th comes later than 11th, so it trumps 11th. v. Overrules Pennsylvania v. Union Gas (only seven years earlier)

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Does the decision mean thta states are free to ignore federal bankrupcy law, federal copyright law, or federal antitrust law? Could the state be sued for republishing ithout authorization a copyrighted textbook then distributing it to public schools through the state? Kimel v. Florida Bd. of Regents : Not enough of a relationship to 5 to give Congress power. The Act contained a clear statement of Congresss intent to abrogate the States sovereign immunity. i. Old age does not define a discrete and insular minority b/c all persons, if their live their normal life spans, will experience it. Bd. of Trustees v. Garrett : i. Elements of a suspect Category: 1. Immutable 2. History 3. No relationship b/t 4. Politcally powerless Religious Freedom Restoration Act : Is it Constitutional? What is the Source of Congressional Power? 5 of the 14th Amendment. i. If theres a substantial burden on th religious practice, government must have a compelling government interest. City of Boerne v. Flores : What power does Congress have under 5? i. The power to enforce the provisions of this article. It is a remedial power. It is not the power to define the substantive content of hte 14th Amendment, which remains the responsibility of the S. Ct. ii. Ct. Said congress went too far. iii. Katzenbach v. Margan still good law. iv. RFRA is still the law as applied to the federal government and federal places. Hibbs : Guys wife got into a car accident and got seriously injured. He stayed at home to take care of her. Difference b/t Hibbs and Garrett and Kimel. i. To protect employees against gender-based discrimination. Ct. says if youre in this category, you can override the 11th Amendment. ii. sex discrimination...warrants heightened scrutiny. States cannot be sued in fed court without their consent, unless Congress abrogates the immunity by enacting a law under Section 5 of the fourteenth amendment that is Tennessee v. Lane : Why does he win when Garrett loses? Combination of vi.

disability and access to courtroom that makes this case so important. Title II of ADA is constitutional. Access to judicial facilities triggers heightened scrutiny. k. United States v. Georga : Paraplegic inmate. It was Constitutional that he could sue the state of Georgia. While Garret alleged violations of ADA, he brought a suit alleging violations of the 14th Amendment itself. Violation of Fund. Right to individual dignity.

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Art. I, Sec. 8, Clause 4. Bankruptcy Clause: uniform laws on the subject of Bankrupcies throughtout teh United States. After Seminole Tribe, can federal govt. enforce? Ct. said bankrupcy is different. The Framers wanted to create one system for resolving bankrupcies...