Constitutional Law Outline 1

Table of Contents
Table of Contents .................................................................................................................................................................... 1
5 THEORIES OF INTERPRETING THE CONSTITUTION ..................................................................................................... 2
THE ROLE OF THE SUPREME COURT IN THE CONSTITUTIONAL ORDER ................................................................2
I. Judicial Review of the Constitutionality of Legislation .............................................................................................. 2
II. Scope of Federal Authority Through Interpretation of the Constitution .................................................................. 3
III. The Law of Standing ................................................................................................................................................... 3
CONGRESSIONAL POWERS......................................................................................................................................6
I. Federalism and Judicial Review (CB 173-189) ............................................................................................................ 6
II. The Evolution of the National Commerce Power (CB 214-232) ................................................................................. 6
ii. 3 Broad Categories of Powers of Congress Relating to Interstate Commerce ..................................................... 7
III. State Regulation of Interstate Commerce (CB 232-243) ............................................................................................ 7
THE SCOPE OF CONGRESSIONAL POWER ........................................................................................................................ 9
I. Congresss Enforcement Power Under the Reconstruction Amendments (13th, 14th, and 15th) ........................... 9
II. Limitations on Congressional Power Under the 10th Amendment ......................................................................... 11
THE DISTRIBUTION OF THE NATIONAL POWERS .......................................................................................................... 13
I. Power of the President ............................................................................................................................................. 13
II. Foreign Affairs ........................................................................................................................................................... 13
ii. War Power/ War on Terror ................................................................................................................................ 14
EQUALITY AND THE CONSTITUTION ............................................................................................................................... 16
I. Race, The Constitution, and Changing Conceptions of Equality .............................................................................. 16
iii. School Desegregation ........................................................................................................................................... 17
II. Rational Basis Review ............................................................................................................................................... 18
vi. Two categories of determining review standardAnalyzing Beazer, Cleburne, Moreno, Railway, Optical ........ 19
III. Racial Discrimination and Heightened Scrutiny ....................................................................................................... 20
iii. Affirmative Action: Classifications Favoring Racial Minorities .............................................................................. 22
IV. Gender Discrimination and Heightened Scrutiny..................................................................................................... 23
V. The Problem of Sexual Orientation .......................................................................................................................... 24
IMPLIED FUNDAMENTAL RIGHTS .................................................................................................................................... 25
I. Substantive Due Process ........................................................................................................................................... 25
II. Privacy ....................................................................................................................................................................... 26

Constitutional Law Outline 2


5 THEORIES OF INTERPRETING THE CONSTITUTION
I. Framers Intent
a. Historical meaning; what the framers thought what they wrote meant (may look at Federalist Papers)
II. Language/Actual Text of the Constitution
a. Focus on the meaning of the words used
III. Precedent and Tradition
a. Evolution through a common law method
IV. Current Morality of Society or Social Consensus
a. Focus on social norms and the direction society is moving in.
V. Conceptions of Justice; Principle
a. Justice is an intellectual analysis/inquiry of what is right and proper; universal principles
THE ROLE OF THE SUPREME COURT IN THE CONSTITUTIONAL ORDER
I. Judicial Review of the Constitutionality of Legislation
a. Assertion of Judicial Review Power (CB 29-52)--Marbury v. Madison (CB 29-36)
i. Facts: Marbury was last minute judicial appointee of outgoing President Adams, whose
commission was not delivered to him before Adams left office; Jefferson, the incoming
President, declined to deliver the commission
ii. Rule: Where the Constitution, as interpreted by the USSC, conflicts with laws enacted by
Congress, the USSC may declare such laws unconstitutional and invalid.
iii. Reasoning: statute/Judiciary Act said the Court had jurisdiction, but the USSC interpreted the
Constitution/ Art. III as saying the USSC does not have jurisdiction in these type of cases.
iv. Courts interpretation of the constitution was based on the structure of the constitution and its
relationship to society
v. Marshalls Little old judge argument: judges are simply the decider b/w two conflicting laws
1. Judge would either have to say the statute is unconstitutional or that the constitution is
unstatutory. The latter makes no sense bc of the supremacy clause (Constitution is
supreme law and only statutes pursuant to the Constitution are supreme law too), so
the court must protect the constitution.
b. Review of State Legislation (CB 52-61)--Martin v. Hunters Lessee (CB 52-56)
i. Facts: Virginia Ct of Appeals refused to submit to the USSCs exercise of appellate jurisdiction
over its judgment in a land dispute b/c it found this jurisdiction unconstitutional.
ii. Rule: All state courts must obey/are bound by the USSCs rulings
iii. Justice Storys argument: Key language is in Article III, judicial power of US (vested in the USSC)
shall extend to ALL cases arising under this constitution
iv. Policy reason: USSC must be binding on state courts for uniformity of decisions throughout the
U.S., upon all subjects w/in the purview of the Constitution
c. Can Only Judges Interpret the Constitution? Judicial Exclusivity? Cooper v. Aaron (CB 58)
i. Governor decided it was up to him to decide what the constitution said about integration, not
the federal court. USSC said no its not, its up to us.
ii. Society has accepted that once something has been truly settled by the USSC; the President and
Congress cannot openly defy the USSCs decision.

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II. Scope of Federal Authority Through Interpretation of the Constitution
McCulloch v. Maryland (CB 62-71)
a. Facts: The State of Maryland says the Bank of the U.S. is unconstitutional bc nothing in the Constitution
gives the govt the right to create a federal bank.
b. Court says that the Constitution is a grand outline that must be filled in. w/things necessary to execute
the powers of the govt.
c. Court says Natl Bank is necessary and proper under the Necessary and Proper Clause of the Art. I, 8
i. Necessary and Proper Clause: Congress shall have the power to do the things that are necessary
and proper for the execution of powers
ii. Necessary means reasonable as a means to an end
iii. A Natl Bank is one means to execute the powers given to Congress; therefore, its Constitutional
d. Argument made: where the Constitution does not state a means, legislation should dictate the means
U.S. v. ComstockSexual Predators case (handout)
a. Facts: States have enacted sexual predators statutes that say b4 being released, the predators must be
evaluated by medical examiners. If medical examiners establish the predator is suffering from a disease,
then the predator must undergo treatment and may never be released if the disease is incurable. States
dont want to take predators who are federal custody bc it will cost their state too much $.
b. Necessary and Proper Argument
i. Necessary & Proper Clause by way of Commerce Clause
1. If the prisoners are freed, theyll commit crimes, some of which will be federal crimes in
relation to the commerce clause like federal travel law violations, etc.; therefore, it is
necessary and proper to keep these past criminals for committing more crimes.
ii. Necessary & Proper Clause gives Congress the power to set up federal prisons
1. The power to punish is given in Art. I, 8, so it is necessary and proper to develop a
way to punish ppl, and a prison system is a necessary and proper method to punish in
the modern era.
2. The prison system must be responsible, and screening violent propensities of prisoners
is a responsible way to run a prison system.
III. The Law of Standing
a. Case or Controversy (CB 91-128)
i. The power of the court is determined by deciding case or controversy pursuant to Art. 3
1. Case=claims that the court has jurisdiction over due to the topic of the case
2. Controversy=court has jurisdiction bc of situations like citizens from different states
b. Constitutional Standing: parties to the dispute must have personal interest to the matter rather than
abstract or ideological concerns; a personal stake in the outcome. (injury + causation + redressability)
Allen v. Wright (CB 93-98)
i. Facts: Class action brought by parents whose black children suffer from discrimination bc there
are non-profit orgs and private schools that continue to discriminate through tax deductions.
ii. Rule: Direct, personal injury is required for standing
1. This is a stigmatizing injury to a large class, and a stigmatizing injury has to be personal.
2. Speculation of how harm could occur does not satisfy the injury requirement
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iii. Policy: The executive branch must decide which laws are the priority to make sure they are
enforced; court cant interfere w/ the exec. Authority to determine which laws are the most
important to be enforced for the time being.
Lujan v. Defenders of Wildlife (CB 98-106)
iv. Facts: Civil Suit Provision of the Endangered Species Act allowed s to bring an action arguing
that agencies that fund building outside the U.S. must comply with the ESA. Two s out of the
class had direct connection to the building projects.
v. Holding: s did not have standing bc only the two s w/connections had injury; Civil Suit
provision is unconstitutional-- If the parties dont have constitutional standing, Congress cant
give it to them; statute takes away the courts ability to determine const. standing
vi. Solution: s shouldve bought a ticket to the endangered location to have standing.
Massachusetts v. EPA
i. Facts: Ps argue that the EPA must show consideration of a rule about emission standards. EPA
doesnt believe Co2 is air pollution; therefore, they dont have authority. Ps are asking for the
right to find out why EPA isnt holding hearings about why it is not making a rulePs not
seeking a Constitutional right, but rather enforcing a special procedural right given by Congress
ii. Holding: Mass. has standing bc the state owns the land that is being lost due to the effects of
pollution; they have a personal state in the outcome. This is not a generalized grievance.
c. Prudential Standing (CB 128-129)
i. Common law rules that insist on a closer connection than the rules of the const. standing; court
can choose not to decide the case if there is no prud. standing.
ii. Standards court has set for prudential standing:
1. Can only sue if youre in the zone of interest protected by the law.
2. must raise his or her rights rather than the right of someone else
3. Cant be a generalized grievance
iii. Congress can decide that those who are aggrieved can sue regarding a particular law.
iv. Often used when court doesnt think its a good idea to decide the case and it really doesnt
need to be decided. (like in the case below)
Elk School District v. Newdow (CB 126-128)
i. Facts: Newdow brought the case arguing that his daughter shouldnt be required to say one
nation under God bc it goes against separation of church and state.
ii. Why the court had to be prudent: if the USSC says Ps, it would be saying that the pledge of the
allegiance is unconstitutional; if they say hes wrong, then they would have to rip away all of their
precedence that says church must be separate from state.
iii. P argues that he has standing bc of his constitutional right as a parent to raise his children
iv. Court invoked the doctrine of prudential standing: in not wanting to open up this can of worms
court said P didnt have standing bc the childs mother had exclusive custody of the child.
d. Questions of TimingRipeness and Mootness (CB 161-162)
i. Ripeness: cant bring a case too early; must be present or immediate threatened injury
ii. Mootness: Prevents courts from hearing cases when events subsequent to the institution of the
lawsuit have deprived the plaintiff of a stake in the action; cases involving pregnancy arent
subject to the mootness doctrine
1. Mootness is a prudential doctrine bc the court has the ability to apply or not to apply
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e. Doctrine of Political Question/Justiciability
i. Marbury v. Madison (CB 31):courts have no power to control the discretion of the president and
his officers (executive branch) in the exercise of political powers granted by the Constitution.
1. If the subjects are political: they respect the nation, not individual rights, and being
entrusted to the executive, the decision of the executive is conclusive.
2. Rule: Where officers of the executive merely execute the will of the president or act in
cases in which the executive possess a constitutional or legal discretion, their acts are
only politically examinable.
3. Flip side: where a specific duty is assigned by law, and individual rights depend upon the
performance of that duty, the individual who considers himself injured has a right to
resort to the laws of his country for remedy.this is judicially reviewable.
ii. Baker v. Carr (CB 129-134): A controversy is nonjusticiable when there is a textually
demonstrable constitutional commitment of the issue to a coordinate political department: or a
lack of judicially discoverable and manageable standards for resolving it.
1. Courts must determine whether and to what extent the issue is textually committed.
To do this, the court looks for articles in the constitution that grants
branches/entities/ppl the power over certain issues. (Nixon v. U.S.)
2. There are some questions that the constitution clearly says that can only be decided by
certain parts of the govt; these questions are not judicially reviewable
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CONGRESSIONAL POWERS
I. Federalism and Judicial Review (CB 173-189)
i. Relationship Between State and Federal Authority over Commerce--Gibbons v. Ogden
1. Facts: Fairy license gave exclusive right to one group to run a fairy along a route btw NY and NJ
(State licensee), but Congress gave license to another group (Federal licensee).
2. Holding: This is commerce bc commerce is intercourse (not just buying and selling), which
includes transportation; this is among the state bc it concerns more than one state; therefore,
Congress has the power to regulate no matter the reason/motive.
ii. Promotion of Social Values by Congress--Hammer v. Dagenhart (The Child Labor Case)
1. Facts: Suit challenging national legislation through the commerce clause that prohibited the
transportation of goods made by child labor
2. Holding: Law is unconstitutional bc power to regulate is merely the power to make commerce
more efficient and regulate its means--prohibition regulation; commerce is only the shipping,
selling, and buying of good mining/manufacturing; amongconcerning more states than one
has nothing to do w/the constitutional power to regulate commerce.(defs. are opposite of Gibbons)
iii. Congressional Power over Local Activity--Wickard v. Filburn
1. Facts: Congress passed a price support system that regulated production in such a way that farmers
could only grow so much wheat. P grew too much wheat but didnt sell the wheat; none of the
wheat crossed state lines.
2. Rule: For Congress to have the power to regulate the economy, it must be able to regulate
aggregate activities that can have an effect on the economy
a. Producers as an aggregate can have a substantial effect on the natl economy; price of
grain cant be regulated unless production of wheat is regulated
3. This is an example of the Legal Realism movement: need to understand reality, and not play the
word interpretation game.
b. Real Real world analysis says that domestic grain overhang has a substantial effect on the
national economy; therefore its regulation is needed.
4. Note: This case is seen as the greatest extreme of Congress power on commerce.
II. The Evolution of the National Commerce Power (CB 214-232)
i. Limits on Congressional Power
-United States v. Lopez (Gun-Free School Zones Act)
1. Facts: kid brings gun to school and gets picked up by the FBI
2. Holding: taking a gun to school is not an economic transaction.
a. Legal Formalism argument: courts must define limits of the power of Congress
b. Legal Realism argument: federal involvement does no good in this situation
-United States v. Morrison (Violence Against Women Act)
1. Fact: updated the VAWA attempting to draw a connection b/w battered women and commerce.
2. Holding: VAW is a human rights issue, not an economics issue; state regulation needed.
-Gonzalez v. Raich (Medicinal Marijuana)
1. Facts: Raich grows marijuana to treat disease- no buying or selling; fed law bans distribution of
marijuana, which means you cant grow it.
2. Holding: like Filburn, not Lopez--production affects interstate commerce, so govt can regulate it.
3. Reasoning: growing weed-economic transaction=producing goods of value whether or not sold.
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ii. 3 Broad Categories of Powers of Congress Relating to Interstate Commerce
1. Use of channels of interstate commerce
a. Includes roads that lead from one state to another
2. Instrumentalities of interstate commerce or person or things in interstate commerce
a. Not clear what defines an instrumentality; could include phones and the internet
3. Activities having a substantial relationship to interstate commerce
a. Counts if theres a substantial effect on economy when activities are aggregated.
III. State Regulation of Interstate Commerce (CB 232-243)
i. Rules:
1. States Cannot Adopt a Discriminatory Law (CB 238-253)
a. Discriminatory laws put some burden on an entity from out of state
b. Test: unless the object is something like a quarantine, it cant be banned; the object must
be dangerous just bc it is being imported.
c. Laws directly discriminate against commerce from another state are per se invalid.
d. Laws that are indirectly discriminatory require a balance of benefit v. burden by the court
2. States Cannot Adopt a Non-Discriminatory Law that is so severe that it Burdens Interstate
Commerce
a. These laws are unconstitutional if the burden is unreasonable; P must show that the
burden the D imposes is substantial.
ii. Negative (Dormant) Commerce Clause: gives name to values Const. is silent to (3 purposes below)
iii. 3 Purposes for rules that states can regulate certain things but not others
1. Create a political union
a. It was necessary to create interactions btw the states; break down the isolation
b. W/the issue of discrimination, ask whether a state dissed another state (Phili v. NJ)
c. About avoiding corrupt political process; intent is the concern, effect is irrelevant (Healy)
2. Protecting the benefits of the free-market/free-trade to citizens of the U.S.
a. It is discrimination when the effect of the law interferes with the free market (Carborne)
b. This is about economic impact; intent is irrelevant
3. Ppl who are affected by legislation ought to have a vote on it
iv. City of Philadelphia v. New Jersey (CB 239-243)--Importation of Wastes
1. Facts: NJ passed law prohibiting importation of wastes into its state. Phili challenged the law under
Commerce Clause.
2. Rule: A state may not enact bans on articles of commerce absent legitimate public welfare
concerns; trash is no worse/unhealthy out of state than it is in-state
a. Cant advance public health in a way that unnecessarily burdens interstate commerce.
3. Discrimination: Theres no basis to distinguish out-of-state waste from domestic waste
4. Burden: law forced Phili to take its trash too far causing unnecessary increase in expense
5. Cant have the NJ legislature imposing a burden on the citizens of Philli who dont get a vote
v. C & A Carbone, Inc. v. Clarkstown (CB 243-250)--Limits on local government control
1. Facts: Clarkstown has a self-financing trash service, and it passed an ordinance requiring everyone
to take their trash to a central facility creating a monopoly.
2. USSC Holding: ordinance is discriminatory against interstate commerce bc it prohibits free-market
disposal of trash; Carbone is put out of business bc the city requires residence to use central facility
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vi. West Lynn Creamery, Inc. v. Healy (CB 250-252)--Subsidies instead of regulation
1. Facts: two Mass. laws1.) Mass. taxes all milk sold in Mass. whether produced in-state or not. 2.)
Mass. only subsidizes in-state milk producers by giving them benefits
2. USSC Holding: this is a discriminatory tax on out-of-state producers bc it makes milk produced in
other states more expensive.
3. Combo of both tax and subsidy is dangerous to interstate commerce than either part alone.a
corrupt political process can be inferred.
vii. Facially Neutral Statutes Affecting Interstate Commerce
1. Kassel v. Consolidated Freightways Corp.--Modern approach to transportation regulation
a. Facts: P challenged Iowa law that prohibited 65-foot double-trailer trucks on its highways;
D-Kassel claimed the law as a reasonable safety measure
b. Rule: courts are required to balance the states safety interest against the federal interest
in free interstate commerce.
i. the court can inquire into whether the states said interest in safety is real and
substantial and look for evidence of safety hazard
c. Holding: the law was unconstitutional bc it substantially burdened interstate commerce.
d. Preemption (CB 277-279): the displacement of state law by federal law.
viii. 3 Theories often used when discussing purpose of laws
1. Faith in the freedom of markets/wisdom of markets: represents the individual choice. Law should
only facilitate the choices of individuals. The American Way
2. Normative value of equality: the market is biased, unfair, and an unequalizing force. The goal is to
promote equality. Everyone is equal under the law. Goes with the burdening test--if law is creating
inequality, there better be a good reason for it.
3. Mistrust of the elites: Constitution does not enact the views elites hold
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THE SCOPE OF CONGRESSIONAL POWER
I. Congresss Enforcement Power Under the Reconstruction Amendments (13th, 14th, and 15th)
i. Civil War was about the failure of the states to ensure the rights of individual citizens of their state, so
through incorporation, states were forced to ensure these rights.
a. Incorporation: prior to the civil war/14
th
Amend., the Bill of Rights were interpreted to only apply
to the fed. govt and not to the states; the USSCs doctrine of incorporation made the Bill of Rights
apply to the states through incorporation of the due process clause of the 14
th
Amend.
1. Controversy: incorporation could have been through the privileges and immunities clause
rather than the due process clause, which would only apply to citizens thereby barring
corps. from enjoying the benefits of the due process clause.
ii. Overview of the Amendments
a. 13
th
Amendment: abolishes slavery, overturns Dred Scott, and validates the emancipation procl.
1. Outlaws the badges of instances of slavery as well.
b. 14
th
Amendment: provides individual guarantees, including--prohibiting states from taking away
the rights of citizens, states cant deny rights w/o due process, and congress has power to enforce
provisions of the 14
th
amendment
c. 15
th
Amendment: provides all citizens right to vote, and congress power to enforce this right
iii. 2 Interpretations of the 14
th
Amend., 5 Power
a. Nationalist perspective: Congress may independently interpret the Constitution and even
overturn the Supreme Court.
1. Katzenbach v. Morgan (CB 302-304), Congress Control over State Voting Requirements
i. Facts: Congress, in the Voting Rights Act, sought to allow anyone who had been
educated in an American school who could pass a literacy test in their language
(Spanish) even if they failed the states literacy test to vote.
ii. Holding: Congress doesnt have to wait for a judicial determination of
unconstitutionality b4 prohibiting the enforcement of a state law; Congress may
enact any legislation that is appropriate.
iii. Test for appropriateness: 1.) legitimate end, and 2.) means to the end that arent
prohibited and are consistent with the Constitution.
a. Legitimate end=ensuring equal prot.; means=law that doesnt restrict/ deny.
b. Federalist perspective: 1.) Congress is limited to laws that prevent or remedy violations of rights
recognized by the Court; laws must be narrowly tailored (proportionate and congruent) to the
constitutional violation. 2.) Congress cant expand the scope of rights or create new rights.
1. City of Boerne v. Flores (CB 307-310), Limitations on Congressional Enforcement Power
i. Facts: Congress enacted the Religious Freedom Restoration Act prohibited the
government from substantially burdening a persons exercise of religion, unless the
government has a compelling interest and is using the least restrictive means.
ii. Holding: The RFRA unconstitutionally exceeds Congress enforcement power under
the Due Process Clause of the 14
th
amend.
iii. Rule: Congress can enforce provisions of the 14
th
Amendment (opposite of
Katzenback) through remedial and/or prophylactic legislation that deters violations
a. Remedial: remedy must be congruent and proportionate to the constitutional
violation (we dont know what congruent is supposed to mean)
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b. Prophylactic: congress, through law, can prevent const. violations by the state
c. RFRA is not a preventative law; it redefines the scope of the Constitution
iv. This interpretation of the 5 of the 14
th
Amend. gives loophole around 11
th
Amend.
iv. Congressional Power to Regulate Private Action for Civil Rights Purposes
a. 14
th
Amendment: no state shall deny to any person the equal protection of laws.
1. To implicate 14
th
there must be either sufficient degree of state involvement w/the action
or failure by state to act in circumstances where Const. affirmatively requires action.
b. So what about individual violations of equality?
1. Johns v. Mayor: USSC holds 13
th
Amend. provides protection from the badges of slavery
from private individuals (unequal/discriminatory treatment); 14
th
Amend. not necessary.
ii. This is a separate power of congress under 13
th
Amend. 2
iii. This application of the 13
th
Amend. would be a good way to pass statutes that
bypass the state sponsored hold that the 14
th
Amend. created.
iv. This interpretation of the 13
th
Amend doesnt apply to Hispanics or Asians being
discriminated against bc they were never enslaved.
a. Underlying issue: congress reluctant to pass legislation that protects African
Americans but not other minorities.
v. Congressional Power and State Immunity Interaction with 11
th
Amendment
a. Hanz v. Louisiana (CB 312)
1. Interpreted 11
th
Amend. to mean that no citizen of any state can ever sue any state in
federal court; this just reestablished sovereign immunity
2. Court thought it would be unthinkable for a citizen to be allowed to sue his own state
b. Alden v. Maine (CB 313)
1. Congress cant provide for any state to be sued in state court by a citizen
2. Controversial interpretation of the 11
th
Amend.: 11
th
Amend. really means that the states
are sovereign and enjoy sovereign immunity.
c. Exception to the rule that congress cant authorize private citizens to sue the states:
1. If congress is enforcing the 14
th
Amend., it can authorize a suit against the states
2. Congress wouldnt be able to enforce the provisions of the 14
th
Amend. 1 w/o allowing
suit of the statesin this case, the 11
th
Amend. disappears.
3. Loophole: prove law was enacted through 14
th
Amend. to get judgment against the state.
d. Board of Trustees v. Garrett (CB 314-319)
1. Facts: P took leave from work to get cancer treatment and lost her director position and
was transferred to a lower-paying position when she returned. P sued under the ADA
claiming D didnt accommodate her disabilities
2. Holding: Congress lacked the power under 14
th
Amend. 5 to override the 11
th
Amend.
3. Rational basis scrutiny: even if the states do discriminate against ppl w/disability, theyre
not inherently a suspect; therefore, the action just needs to be rational.
4. Boerne Test used: is citing violation of the statute congruent & proportional to problem?
i. Not congruent and proportional to ban all practices of the state across the board
e. Nevada Department of Human Resources v. Hibbs (CB 320)
1. Facts: Women were being discriminated against bc they werent able to take jobs that
wouldnt give them time off, so congress enacted Family Medical Leave Act under 5, 14
th

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Amend. providing remedy if an employer doesnt allow you to take off up to 12 weeks
leave to take care of your family. P said law unconstitutional bc it was gender-based.
2. Holding: congress had created a legislative record that demonstrated widespread gender-
based unconstitutional discrimination by the states in the workplace, which justified FMLA
II. Limitations on Congressional Power Under the 10th Amendment
i. 10
th
Amend.: the powers not delegated to the U.S. by the Constitution, nor prohibited by it to the
States, are reserved to the States respectively, or to the people.
a. it just says that the powers that have not been delegated have been retained for the states
b. However, the powers of the fed. govt concerning foreign or external affairs are different in origin
and nature from those involving domestic or internal affairs.
ii. Missouri v. Holland (CB 329-330)
a. Facts: Congress enacted law to protect migratory birds restricting hunting of these birds so states
wouldnt be killing the birds when they come through their state. Lower courts decided that the
restrictions were unconstitutional, so the fed. govt entered into a North American bird treaty with
Canada agreeing not to exploit the birds. Then Congress passed a statute to enforce the treaty.
b. Holding: the Supremacy Clause says treaties are the supreme law of the land; the power to make
treaties is delegated expressly in the constitution; therefore, the 10
th
Amend. is irrelevant.
iii. Federalism and the Treaty Power (CB 330-333)
a. Art. II, 2 grants the President power to make a treaty w/foreign nations, if 2/3 senators concur.
b. These treaties become the supreme law of the land under the Supremacy Clause
c. Congress may legislate on matters over which it otherwise would have no power. (bc the 10
th

Amend. has no limitation on the treaty power.)
d. Reid v. Covert (CB 333)
1. Facts: U.S. entered into an agreement that the spouses of those in service would be tried
by a court marshal in the military court in order to protect them from the German system;
the problem was that court marshals dont have juries, P sued for not having a jury.
2. Holding: the senate cant K away the rights of American citizens to a jury.
3. Rule: No treaty/agreement can be entered that is a violation of the Bill of Rights
e. Medellin v. Texas (CB 331)
1. Facts: Medellin was a Mexican natl who was not told when he was arrested in Texas that
he had the right to call his consulate pursuant to the Vienna Convention (treaty), so he
claims his rights were violated due to the rules of the Intl Court of Justice.
ii. ICJ ordered a reversal of Ps conviction in Tx bc it was a violation of intl law; Tx
court refused to hold a hearing for a new trial. Bush ordered Tx issued an exec.
order for Tx to reverse the conviction.
iii. Tx court said Art. II doesnt authorize president to reverse state court judgments.
Case then went to the USSC.
1. USSC holding: Vienna Convention isnt self-executing until Congress passes legislation;
since there was no legislation supporting the enforcement of this treaty, any enforcement
is unconstitutional.
2. Underlying issue: U.S. courts have not come to the grips with the idea of protecting intl
human rights.

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iv. 10
th
Amend. in action
Printz v. U.S. (CB 346-349)
a. Facts: Congress passed law making it illegal to sale guns to felons providing that gun sellers must
make sure the buyer isnt a felon. Since there was no registry of felons yet, the gun dealer had to
call the chief of police/sheriff, and the chief of police had to use reasonable efforts to see if the
buyer had a felony record. The Sheriffs refused to check arguing that he is a state officer and he
doesnt have to do things that congress requires bc he doesnt work for the fed. govt.
b. Holding: the fed. govt cant commandeer the services of state employees
Reno v. Condon (CB 349, note 1)
a. Facts: Congress passed a statute prohibiting entities from selling motor vehicle information after
an assailant bought Ps address. The statute regulates states as the owners of databases.
b. Holding: states making money from selling lists is not an act taken in the states sovereign
capacity; therefore the statute is constitutional.
Gonzales v. Oregon (CB 351, note 4)
a. Facts: Attorney General decided he could take away the license of an Oregon doctor that
prescribed a lethal dose of drugs under the Death With Dignity Act. (allowing termination of life)
b. Holding: A.G. doesnt have authority to define medical practice; tradition is that professional
licenses are state functionsthe practice of medicine is traditionally regulated by state
Constitutional Law Outline 13


THE DISTRIBUTION OF THE NATIONAL POWERS
I. Power of the President
i. Article II, 2-3 outline the powers of the president including:
a. Commander and Chief of the army and navy: he gets to decide how the army executes its mission;
only congress has the power to declare war
b. He can grant pardons, except in cases of impeachment
c. Negotiate a treaty, but 2/3 of the senate must vote
d. He can nominate officers, but he can only appoint them with Senates consent
e. He can make recess appointments
f. He must inform Congress from time to time on the state of the union
g. He must recommend legislation
h. He has the power to execute the law Congress has made
i. Inherent Executive Power Argument: Article II doesnt introduce the powers as an exhaustive list of
powers that the president has which indicates that the executive power is more than what is listed
1. The president has inherent powers not explicitly stated in the constitution.
ii. Youngstown Sheet & Tube Co. v. Sawyer (CB 358-369)--Emergency Lawmaking Power
a. Facts: President Truman ordered seizure of steel mills after strike began
b. Holding: the president may not, acting under the aggregate of his constitutional powers, exercise
a lawmaking power independent of Congress in order to protect even a serious natl interest.
c. Rule: the president may not affect the seizure of private property absent congressional approval;
the power of seizure is not an expressed or implied power of the pres. under the Constitution.
d. President is supposed to execute lawstheres no law here instated to execute
e. Underlying point: basically you know the presidents power when you see it.
f. Justice Jacksons concurrence: 3 categories/levels of presidents power:
1. Presidents maximum authority: When the president acts pursuant to an express or
implied authorization of Congress.
i. seizure pursuant to act of congress would be supported by judicial interpretation.
2. Presidents mid-way authority: when the pres. acts in absence of either a congressional
grant or denial of authority, he can only rely upon his own independent powers
3. Presidents lowest authority: when the president takes measures incompatible with the
expressed or implied will of congress.
i. He can only rely upon his own constitutional powers minus any constitutional
powers of Congress over the matter.
II. Foreign Affairs
Note: presidents have never made expansive claims with regards to their power in domestic affairs; claims of
inherent presidential authority almost always center on foreign affairs and powers during war times.
i. Scope of federal power in foreign affairs
a. U.S. v. Curtiss-Wright Corp. (CB 371-372)
1. Facts: Congress provided that if President found that a prohibition of the sale of arms
from the U.S. to those countries involved in conflict in the Chaco would contribute to
peace, the he could issue such a prohibition. Accordingly, the President banned sending
machine guns to Bolivia and D was indicted.
2. Holding: Congress may delegate legislative-type power to Pres. to conduct foreign affairs.
Constitutional Law Outline 14


i. The president has an inherent power over foreign relations, which is broader than
it could be in internal affairs.
b. Dames & Moore v. Regan (CB 373-375)
1. Facts: Iranian students seize American hostages from U.S. emabcy and declare the U.S. as
the great Satan; President Carter organized a military mission, which cost the U.S. lives;
U.S. govt then seizes all the Iranian assets in the U.S..
i. Pres. was bargaining away claims made by Americans against Iranian assets; the
hostages were freed pursuant to this secret deal.
2. Courts Application of Youngstown spectrum:
i. Congress authorization: President has the power to seize under the Economic
Powers Act and there are enough statutes that authorize such actions generally.
a. Fact that Congress has generally authorized such actions is evidence
that this sort of presidential action is alright.
ii. Appeal to history of past practices: Past presidents have done this same thing
c. Comparing Dames to Medellin v. Texas (fleshed out above on page 9) (CB 375-377)
1. In Dames the general tenure of legislature is enough to authorize presidential power, but
in Medellin, general tenure of Congress thought doesnt authorize the presidential power.
2. Difference:
i. the problem in Dames couldnt be solved by any actual constitutional process; it
was a necessity that congress couldnt do bc it wasnt authorized by the
constitution, so the pres had to take action
ii. in Medellin, congress couldve done something to solve the problem; the
constitution has allowed congress to enforce treaties; its just that congress didnt
have the spine to do what they needed to do
ii. War Power/ War on Terror
a. Constitutional Provisions
1. Art II, 2: the President shall be the Commander-in-Chief to the Army and Navy and the
state militias when they are called into the service of the U.S.
2. Only Congress has the power to initiate/declare war
3. In the event of insurrection/invasion, the President may deploy our military forces against
any enemy, foreign or domestic, w/o waiting for congressional declaration of war.
b. 5 themes:
1. Enemy Combatants
ii. These are members of the armed forces of another nation
iii. ECs can be identified by pres. w/o judicial review and detained thereafter.
iv. USSC rejects formless category of ECs that are beyond the reach of courts.
1. Military Commissions
v. Set up by presidents to try ppl for illegal acts during times of war
vi. These trials are important incidents of war
vii. USSC upheld military commissions holding that ppl accused are not legally entitled
to a trial in an Art III court.
viii. USSC also held that where Congress has provided the procedure, the
administration/president must follow it
Constitutional Law Outline 15


1. Guantanamo
ix. This is where prisoners are held off the coast of Cuba
x. Govt used legal defense that Guantanamo wasnt in any courts jurisdiction; USSC
held that persons who are detained must reside where the person who has them
in custody resides. Thereby, subjugating custodians to their own jurisdictions
1. Torture and Harsh Interrogation
xi. What constitutes torture isnt a constitutional law question
xii. Const. doesnt prohibit torture; it only forbids torture as a method of punishment
xiii. Prisoners are protected by the Geneva Convention, which a treaty; therefore
torture procedures are unconstitutional since congress has upheld this treaty.
1. Habeas Corpus (most important)
i. Whenever a person alleges he is illegally detained someone files a writ to the
court on the detainees behalf; the detainer comes to court and the court issues a
writ of habeas corpus requiring the release of the detainee
ii. Congress passed a statute barring the filing of a writ of habeas corpus by anyone
is a Guantanamo detainee
iii. Congress revised the statute to ban all past habeas corpus actions as well
iv. USSC holding on habeas corpus statute: its unconstitutional; Congress cant throw
out writ of habeas corpus altogether; under the Suspension Clause of the
Constitution Congress only has the power to suspend habeas corpus
v. Taking away the jurisdiction of the USSC isnt allowed in habeas corpus cases
vi. Habeas Corpus is the only part of jurisdiction concerns that is preserved
separately in the constitution under Art. III Suspension Clause
c. Detention of U.S. citizens
1. Ex parte Quirin
i. Facts: 8 Nazi saboteurs, including a U.S. citizen who landed in the U.S. armed with
explosives were convicted before a military tribunal.
ii. Holding 1: capture, detention, and trial of unlawful combatants are important
incidents of war.
iii. Holding 2: U.S. citizenship of a captive enemy doesnt limit the govts power to
deal w/him under the usages of war.
2. Hamdan take home: USSC rejected the doctrine that the pres can take action against the
will of congress w/o some special or clear showing.
3. Hamdi v. Rumsfeld (CB 381-389)
i. Facts: P/Hamdi, a U.S. citizen, was detained as an enemy combatant. P sought
habeas corpus relief claiming the Non-Detention Act barred indefinite detention.
ii. Holding: upheld Quirin in that citizenship doesnt preclude detention, but the
president does not have the authority to detain a citizen for an indefinite period
of time w/no opportunity for an impartial hearing.
iii. The writ of habeas corpus remains available to every person detained w/in the
U.S.due process demands that a citizen held in U.S. as an enemy combatant be
given a meaningful opportunity to contest the factual basis for that detention b4 a
neutral decision-make
Constitutional Law Outline 16


EQUALITY AND THE CONSTITUTION
I. Race, The Constitution, and Changing Conceptions of Equality
i. Slavery
a. State v. Post (CB 443-445)--State Constitutional Law
1. Facts: NJ constitution contained clause that said all men are free and independent. P
sued that slavery was illegal under the NJ constitution.
2. Holding: slavery may exist under a state constitution that makes all men free and
independent.
3. The language of the NJ constitution must be understood in relation to the laws of the
society in which they belong; justice said he had to go w/the way things are.
b. Dred Scott v. Sanford (CB 447-449)--Status of Slaves and Former Slaves Under the U.S. Constitution
1. Facts: Dred Scott had traveled in the free states of Ill. and Wisc. And then returned to
Missouri, where he was sold as a slave. He brought suit in federal court alleging diversity
of citizenship.
2. Holding 1: Scott cant sue in diversity jurisdiction/federal court bc blacks are not citizens
under the U.S. Constitution
i. Court pointed out the 3 provisions of the constitution that deny rights/humanity
to African American slaves as evidence.
3. Holding 2-The Power of Judicial Review: any congressional statute that frees slaves in
states is unconstitutional bc the Constitution provides citizens the right to liberty and
property. Slaves are property, so they cannot be taken away by the govt
ii. Reconstruction
a. 13
th
, 14
th
, 15
th
Amendments and Their Impact
1. 13
th
Amend.: outlawed slavery overruling Dred Scott
2. 14
th
Amend.: reversed Dred Scott making all persons born in U.S. citizens of the U.S. and
the state they were born.
i. No law can abridge the privileges and immunities of a U.S. citizen
ii. No state can deny persons the right of life, liberty, and equal protection of law
3. In the civil rights cases following the enactment of the 14
th
Amend., the USSC held that the
14
th
Amend. only provides equal protection against state actors, not private entities/ppl
b. Plessy v. Ferguson (CB456-459)--Separate But Equal Doctrine (456-461)
1. Facts: P Plessy, who was 7/8 white and 1/8 black, refused to sit in black railway carriage. P
was convicted for violation of a state statute providing for separate railway carriages for
whites and blacks.
2. Holding: a state may require that separate railway carriages be provided for black citizens
and white citizens. Separation is not unconstitutional.
3. Justice Harlans dissent: Our constitution is color-blind, and neither knows nor tolerates
classes among citizens.
i. Every citizen regardless of color has a right to occupy the public transportation of
his choice; govt infringement of that right is unconstitutional.


Constitutional Law Outline 17


iii. School Desegregation
a. The Road to Brown
1. NAACP Legal Strategy (CB 461-462)
i. Separation in schools became the priority issue for the NAACP; economic equality
could only happen through the education of blacks
ii. NAACPs agenda is known as the Thurgood Marshall strategy. The agenda has two
components:
a. Social: recognize that resistance to integration would be enormous even
though the tide of public opinion was turning
1. Litigate involving grad students so that parents tempers wouldnt
be involved
2. Chose to bring cases in cities/states that resistance would be
minimal
b. Doctrinal: demonstrate that equality is not possible in separate
circumstances. crack the logic of Plessy v. Ferguson
1. Establish that separate is inherently unequal; equality measured by
intangible factors
2. Used law school cases, so that justices can relate/understand.
2. Higher Education Cases (CB 462-465)
i. Missouri Gaines v. Canada (CB 462)
a. Facts: Black students couldnt go to Missouri law schools, but the state
agreed to pay blacks to attend schools in neighboring states.
b. Holding: states cant exclude blacks from their states
ii. Sweatt v. Painter (CB 463)
a. Facts: Texas established a law school just for blacks; the Univ. of Tx was a
renowned law school, so the experience of going there was far more
rewarding than going to a law school that no one ever heard of.
b. Holding: when the intangible factors are different, equality does not exist.
b. Brown v. Board of Education I (CB 465-472)
1. Facts: Brown and other black kids were denied admission to schools attended by white
kids under law requiring or permitting segregation based on race. Ps challenged the law
but were denied relief under separate but equal doctrine.
2. Unanimous holding: segregated schools are unconstitutional bc of intangible factors
3. Court doesnt overrule Plessy, it only holds that separate but equal doctrine is inconsistent
w/the constitution in terms of education
4. Note: in several cases after Brown the USSC held segregation to be unconstitutional in all
areas of American life.
5. Justifications for Brown:
i. Law and Society Movement: new constitutional interpretation--court concerned
w/facts of society rather than law. Ask the court ot have much greater recourse to
social facts
a. fact that segregation causes minority students to feel inferior, which
impedes their ability to learn.
Constitutional Law Outline 18


ii. Based on a larger history that is the source of constitutional legitimacy: meaning of
slavery, civil rights, 14
th
Amend., etc. (issue=history can be interpreted differently)
iii. Constitution should be construed to do justice/do right/enhance nations dignity
a. Conception of equality as the foundation of justice OR
b. Individuality/liberty as the foundation of justice
c. Brown introduced a new era of dont trust the legislature.
II. Rational Basis Review
i. USSC Rule: whenever persons are treated unequally/classifying, there must be a ratl basis for it.
a. The Constitution doesnt require that everyone be treated equal; there just must be ratl basis for
the different treatment; cant be arbitrary or capricious.
ii. NYC Transit Authority v. Beazer (CB 490-492)--Classification Based on Drug Usage
a. Facts: NYC transit authority refused to hire narcotic drug users; Transit relied on evidence that
most users of methadone are heroin addicts, so they refused to hire ppl on methadone. P says this
is discriminatory classification. Many ppl who use the meth are recovering from addiction.
b. Holding: legislative classifications are valid unless they serve no ratl state purpose; this law isnt
perfect, but it satisfies a general goal of safety.
c. The rule against drug use is a policy decisionit isnt directed against any particular individual or
category of persons; courts not authorized to interfere with the policy decision.
iii. Limitations on Permissible Government Purposes
a. U.S. Dept of Agric. v. Moreno (CB 495-496)--Exclusion of Unrelated Households
1. Facts: Provision in the food stamps program excluded any household containing unrelated
individuals from receiving food stamps.
2. Rule: a legislative classification must be rationally related to a legitimate govt interest.
3. Purpose of the Food Stamp Act: raise levels of nutrition among low-income households
and use food to strengthen the agricultural economy.
4. Holding: the classification excluding households w/nonrelatives was irrelevant to the
statutes purposes. This exclusion was aimed at preventing hippies/freeloaders, and
harming a politically unpopular group cant constitute a legitimate govt interest.
b. City of Cleburne v. Cleburne Living Center (CB 496-498)--Mental Retardation
1. Facts: city zoning ordinance denied special use permit to applicants for a group home for
the mentally retarded
2. Holding: ordinance was not rationally related to a legitimate govtal purpose.
3. Ordinance was based on an irrational prejudice against the mentally retarded, thereby
violated the Equal Protection Clause.
iv. Actual Purpose Review
a. Minnesota v. Clover Leaf Creamery Co. (CB 500-504)--Environmental Protection
1. Facts: MN law banned the sale of milk in plastic nonreturnable, nonrefillable container but
allowed sale of nonreturnable paperboard milk cartons.
2. Holding: the purposes of the law were legitimate.
3. Even though it was evident that the actual purpose of this law was to protect the states
milking and paper industries, the fact that the purpose of the law seemed environmental
was enough to meet rational basis standard.

Constitutional Law Outline 19


v. The Means-Ends Nexus
a. Railway Express Agency v. NY (CB 506-508)--Safety Regulation
1. Facts: NYC passed a traffic regulation prohibiting advertising on vehicles except owner
advertising. (ads of the actual delivery vehicle) D sold space on its trucks for ads by other
business as was convicted for violation of NYs regulation.
2. Holding: NY was trying to stop distractions that cause accidents on the road, and this
regulation was a legislative means adopted to correct the problem.
i. It is possible that ppl pay more for distracting adverts to put on ppls trucks to get
motorists attention. The law is ratl bc this can be true (Conceivable basis test)
b. Williamson v. Lee Optical (CB 508-509)--Deference to State Legislature
1. Facts: Optical center challenged a state law that forbade an optician from fitting or
duplicating lenses or even replacements w/o a prescription from an ophthalmologist or
optometrist.
2. This regulation was a legislative means adopted to correct a problem
3. Rule: a law need not be logically consistent with its aims to be constitutional.
i. Policy: The ppl as voters, not courts, are the protection against legislative abuse.
4. Its up to the legislature, not courts, to balance the advantages and disadvantages of a
new requirement.
c. What Optical and Railway indicate is that democracy is about the will of the ppl not rationality;
the legislature gets to decide who wins and who loses
vi. Two categories of determining review standardAnalyzing Beazer, Cleburne, Moreno, Railway, Optical
a. Focus on the nature of the group affected
1. Groups that share some essential characteristic with race ought to receive some higher
level of scrutiny (3 characteristics=immutable, stereotyped, deprivation of political power)
2. Problem: the cases reject this argument
b. Focus on the claimed right being taken away and not the group
1. Laws that take away certain interest deserve strict scrutiny review
2. Application to Beaver: law upheld bc ppl lose opportunity to have a particular job often
3. Cleburne: law struck down bc adults lose right to living relationship for a better life.
4. Moreno: mother lost right to live with whomever she chose (denial of fundamental right)
vii. Romer v. Evans (CB 498-499)--Prohibition of Anti-Discrimination Measures
a. Facts: Colorado voters adopted an amendment to the Colorado constitution that prohibited all
legislative, executive, or judicial action designed to protect or allow claims of discrimination by any
person based on gay, lesbian, or bisexual orientation.
b. Holding: this ordinance is unconstitutional bc it is not rational
c. Rule: a bare desire to harm a politically unpopular group cannot constitute a legitimate state
interest.
viii. Naked Preference: some argue that the legislature just prefers certain groups; i.e., poor, minorities,
etc., but the legislature needs a reason/more than a naked preference to impose a burden on
someone/entity.


Constitutional Law Outline 20


III. Racial Discrimination and Heightened Scrutiny
i. Discrimination Against Racial and Ethnic Minorities
a. Strict Scrutiny replaces the idea that race discrimination is per se unconstitutional
b. Strauder v. West Virginia (CB 512-514)--Discrimination on the face of the law
1. Facts: D was a black man indicted of murder by an all white jury bc under state law, blacks
were ineligible to serve on grand juries; D says this law is unconstitutional.
2. Holding: law excluding blacks from grand jury service is unconstitutional discrimination;
states may establish qualifications for jurors but not racial qualifications.
3. Court interpreted the 14
th
Amend. as protecting those who had been held as slaves; just
blacks. 14
th
Amend. prevents states from w/holding equal protection from blacks
4. Note that this case was not decided on the basis that citizens have a right to have persons
of their own race serve on the grand jury that will indict them.
c. Korematsu v. U.S. (CB 514-518)--Proper distinction based on race
1. Facts: D was convicted of remaining in a military area in violation of an Arm command
that all persons of Japanese ancestry be excluded from certain areas for natl defense
reasons. D was not personally accused of disloyalty. D claimed denial of equal protection.
2. Rule: all racial classifications are subject to strict scrutiny (not just blacks)govt must
show compelling interest for the racial classification. The classification must be a
necessary compelling relation to the public interest.
3. Holding: The threat of espionage and sabotage from Japanese sympathizers was
compelling interest that the govt needed to protect against.
d. Loving v. Virginia (CB 518-519)--Facially neutral, race-based classifications
1. Facts: Ds were an interracial married couple who were convicted of violating Va
antimiscegenation statute. D=statute violates Equal Protection and Due Process Clauses of
the 14
th
Amend. Va=statute is equal bc it makes both parties criminal for their action.
2. Rule: racial classifications are subject to the most rigid scrutiny and must be essential to
the accomplishment of some permissible state objective to be constitutional.
3. Holding: state failed to show any legitimate purpose for the distinction btw one-race and
interracial marriages.
4. Race cannot be made relevant to a law, even if it is used to treat people equally. Govt
cant classify ppl based on race.
e. Justifications for Strict Scrutiny of Racial Classifications (CB 521-526)
f. Structure of Strict Scrutiny
1. Palmore v. Sidoti (CB 526-527)--Limitation of what constitutes a sufficient govt purpose
i. Facts: after a divorce a white mother obtained custody of her child but when she
married a black man the court determined that the best interest of the child
would be for the father to obtain custody. Courts reasoning was the child would
suffer from stigmatization bc of the racially mixed household.
ii. Holding: private biases of society are not permissible considerations under the
Constitution; the law cannot give private biases effect. (interest not compelling)
2. Turner v. Safley (CB 528-529)--The interaction of means and ends
i. Facts: State decided it would separate prisoners based on race to prevent them
from killing each other as a result of gang violence
Constitutional Law Outline 21


ii. Holding: separating prisoners based on race is not necessary and compelling bc
there are theoretical alternatives of how to prevent the gang rivalries.
ii. Classifications that Disadvantage Racial Minorities: When Does Heightened Scrutiny Apply?
a. Discriminatory purpose
1. General Rule: a violation requires that the govt action have a discriminatory purpose
(intional/deliberate discrimination); laws do not violate equal protection simply bc they
have a racially discriminatory impact
2. Washington v. Davis (CB 531-533)--Qualification Test
i. Title 7, Civil Rights Act of 1974: when there is a practice, test, or device that has an
adverse impact on a minority class, that creates a presumption of discrimination
a prima facie case; burden shifts to employer to prove test was job-skill related
ii. Facts: is this verbal ability test a necessary measure to determine whether
someone is able to be a D.C. police officer?
iii. Constitutional Test: was the purpose for which the test was used to
discriminate?
iv. Holding: test is not unconstitutional bc Ps failed to prove that the purpose for
using the test was to keep blacks off the police force.
v. Justice Stephens concurrence: purpose can sometimes be inferred
3. Massachusetts v. Feeney (CB 535-536)
i. Facts: Ma. statute gave priority of state jobs to veterans; most vets are male;
therefore the effect of this statute was to give substantial preference to men over
women in state hiring. P=statute is discriminatory
ii. Holding: the requirement of intention is not knowledge but rather purpose; must
prove that the legislature enacted the law with the purpose of discriminating
against womennot merely natural and probable consequences of the action.
4. Mixed Motives
i. Rogers v. Lodge (CB 536-537)--Subjective evidence of discriminatory intent
a. Facts: Ps argued that GA set up the at large elections in order to make sure
the seats will be filled only with white reps by drawing district lines to
impact racial voting.
b. Rule: Objective evidence of discrimination may be used to prove
discriminatory intent.
c. Holding: Ds voting scheme has served to maintain the status quo; the
system was maintained for the invidious purpose of diluting the voting
strength of the black population.
d. Even if an action wasnt racial at its instatement, if the continuation of an
action is racial, then it satisfies Washingtons constitutional test.
ii. Village of Arlington Heights v. Metro Housing Development (CB 536)--Standard
Procedures resulting in disproportionate impact
a. Facts: Chicago suburb refused Ps rezoning request for low-income tenants
units, many of whom would be racial minorities; some against the housing
bc it would cause more traffic.
Constitutional Law Outline 22


b. Rule: govt action having a racially disproportionate impact must also
have a discriminatory purpose in order to justify judicial invalidation.
c. Holding: even if P proves race was a factor in the decision, if the decision
would have been reached regardless of racial considerations, the
ordinance is not racially discriminatory and is constitutional.
5. Yick Wo v. Hopkins (CB 537-538)--Discriminatory administration of facially neutral statutes
i. Facts: San Fran ordinance required all laundries housed in wooden buildings be
licensed before operation. D proved that 200 other Chinese had been denied a
permit while virtually all non-Chinese who applied received a permit.
ii. Rule: a law that is fair on its face but applied on a discriminatory basis/for a racial
purpose is unconstitutional.
b. Hernandez v. NY (CB 538-539)--De Facto racial classifications
1. Facts: Prosecutor didnt want bilingual jurors who he felt wouldnt listen to the
interpreter; some jurors would get one interpretation, while others another; the effect of
the preemptory challenge was the elimination of Latino jurors
2. Holding: the prosecutors decision wasnt based on race, but rather bilingualism;
bilingualism of English and Spanish is a factor that merely overlaps with Latino race.
iii. Affirmative Action: Classifications Favoring Racial Minorities
a. Regents of the University of California v. Bakke (Medical School Case)
1. Facts: medical school increased minority enrollment by setting a fix number of seats for
the most qualified minorities. P, a white applicant was denied admission 2 consecutive yrs
2. Holding: a state school could use race as a factor in increasing diversity, but this method of
allotting a certain number of places was unconstitutional.
3. Note: this was the case where 4 justices said unconstitutional to consider race at all, 4
justices said this is not unconstitutional; deciding justice Powell is the holding above.
b. Gratz v. Bollinger (MI undergrad case) (CB 587-590)
1. Facts: admissions committee assigned points favoring minorities
2. Holding: this method is inappropriate to achieving diversity; therefore unconstitutional.
c. Grutter v. Bollinger (CB 571-583)
1. Facts: admissions reviewed files holistically reacting to files based on grade, LSAT, and
what else the candidate brings to the class; the what else included being a minority
2. Holding: this is racial discrimination subject to strict scrutiny; diversity in education is a
compelling interest, and an holistic review is an appropriate method to pursue diversity
d. Parents Involved in Community Schools v. Seattle School District No. 1 (CB 600-619)
1. Facts: 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. Either whites or non-whites could be favored.
2. Court said Grutter doesnt apply to this case bc Grutter was about universities, and this
case is about elementary schools; but court didnt overrule Grutter
3. Holding: Racial diversity is not a compelling interest that can justify the use of race in
selecting students for admission to public high schools when it is simply racial balancing;
i. District's tiebreaker plan was actually targeted toward demographic goals and not
toward any demonstrable educational benefit from racial diversity.
Constitutional Law Outline 23


IV. Gender Discrimination and Heightened Scrutiny
i. New Gender Classifications Test
a. Craig v. Boran (CB 627-636)Classifications favoring women
1. Facts: P challenged Ok statute denying beer sale to males under 21 and females under 18.
2. New Intermediate Scrutiny Test: The classification must be a substantial connection to an
important govt interest
3. Holding: the states objective hereenhancement of traffic safetyis clearly important,
but the relation btw the objective and the classification is not an adequate connection bc
sex is not an accurate proxy for the regulation of drinking and driving.
ii. Real Differences vs. Generalizations
a. U.S. v. Virginia (VMI case) (CB 637-CB 644)
1. Facts: Women are not admitted to VMI, so the DoJ filed a law suit saying this was against
equal protection rights; the state offered a parallel female program to keep VMI male; D
claims that there are real differences btw men and women
2. Test: there must be an exceedingly persuasive justification to defend gender-based govt
action; the actor must show that the classification serves important govtal objectives and
the discriminatory means used are substantially related to achieving those objectives.
3. Holding: D has shown no exceedingly persuasive justification for its exclusion of all women
from VMI. Ds separate program for women isnt as rigorous. This action is not based on
real differences, but rather generalizations on what is appropriate for most women.
b. Nguyen v. Immigration and Naturalization Service (CB 648-652)Family Relations Dad doesnt count
1. Facts: law granted automatic citizenship to a child born abroad whose unmarried mother
was a U.S. citizen. If only the childs unmarried father is a U.S. citizen, the process was way
more difficult to establish citizenship for the child.
2. Rule: the means must substantially relate to the purpose of the statute
3. Holding: Law is constitutional; the govt objective here is the importance of assuring that a
biological parent-child relationship exists; in the case of a mother, birth establishes the
relationship; in the case of a father, clear and convincing evidence is necessary.
c. Three Criticisms of VMI test
1. Statutory Rape--Michael v. Sonoma County (CB 647-648)
i. Facts: Ca statutory rape law only applied to men having sexual relations w/girls
ii. Holding: law is constitutional bc females are not similarly situated when it comes
to sex; since the risk/harm (pregnancy) to underage females is greater than
w/males, the law is not discriminatoryextension of real differences.
2. Different Life Experiences/ Wise Latina-Justice Sotomayor
i. There is an argument that men and women have different perspectives on life,
which should be taken into account.
ii. J.E.B. v. Alabama (CB 646-647): gender was not an allowable factor for
preemptory challengeno difference b/w the way men and women think, and
making this distinction would create biasing injuries.
3. Treat men and women the same; dont recognize differences
i. the way to treat men and women equal is to treat them the same, not differences
ii. Ex.: providing men the same maternal leave as women
Constitutional Law Outline 24


iii. Problem: if you treat men and women the same, the man model will be used.
iv. its wrong to insist on the same lives for both genders particularly since public
doesnt necessarily believe that different lives for men and women is wrong
V. The Problem of Sexual Orientation
i. Romer v. Evans (CB 666-675)--State cannot prohibit protection of homosexuals
a. Facts: Colorado voters adopted an amendment to the Colorado constitution that prohibited all
legislative, executive, or judicial action designed to protect or allow claims of discrimination by any
person based on gay, lesbian, or bisexual orientation.
b. Holding: this ordinance is unconstitutional bc it is not rational
c. Rule: bare desire to harm a politically unpopular group cant constitute a legitimate state interest.
d. Scalias dissenting arguments:
1. The very existence of a constitution means ppl cant just go to their govt and get what
they want; laws are passed all the time that place limits on ppl.
2. The law of Co also makes it a felony for ppl of the same sex to engage in sexual conduct,
so why would the state protect ppl who engage in activity the state classified as felonious?
ii. Military Dont Ask Dont Tell (CB 676-678)
a. Congress has enacted the dont ask dont tell rule, which requires separate accommodations for
ppl who have openly expressed their homosexuality; military refused to abide by this act
b. This is a hot issue: will president use his executive power to override Congress
iii. Sodomy Laws
a. Bowers v. Hardwick (CB 675): constitutional right to privacy didnt encompass same-sex actions
b. Lawrence v. Texas (CB 675-676)
1. Facts: statute prohibited sodomy/anal sex btw homosexuals but not btw heterosexuals
2. Holding: law is unconstitutional bc its a violation of right to privacy (overruled Bowers)
3. Underlying issue: court couldve decided this law is unconstitutional on equal protection,
but didnt bc it would be the step that would lead to guaranteeing gay marriage.
iv. Same-Sex Marriage Debate (CB 678-682)
a. Some states have recognize same-sex marriage under state rights, but congress does not
recognize these homosexual unions under federal law; therefore married homosexuals cannot
enjoy the benefits given to married couples, i.e. tax benefits
b. 40 states have adopted statutes refusing to recognize out-of-state homosexual marriages
v. Strict Scrutiny for Discrimination Based on Sexual Orientation? (CB 682-686): 4 Arguments/Theories
a. The ban on same-sex marriage is a form of gender discrimination; constitution is gender blind
1. legal rights of individuals shouldnt depend on external structure anymore than race
should be considered; therefore, genitals shouldnt matter when ppl register for marriage.
2. Subject to the level of scrutiny used for gender discrimination cases.
b. Just do it like Romer v. Evans: animosity is not a legitimate state interest; therefore, a law that
treats ppl different based on their sexuality is unconstitutional.
c. Sexual orientation is a suspect class: gays are ridiculed and susceptible to violence
1. Historical discrimination surrounds these classes
2. It would be hard to meet strict scrutiny to pass this test
d. Marriage is fundamental to the intimacies of private life, and is therefore w/in the constitution.
1. w/whom ppl choose to share their premises and the like are a matter of privacy
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IMPLIED FUNDAMENTAL RIGHTS
I. Substantive Due Process
vi. 14
th
Amendment Due Process Clause prevents any state from depriving any person of life, liberty, or
property w/o due process of law; the clause is most meaningful as a protection of individual rights.
vii. These cases should be tied into the same analysis as the equal protection cases like Moreno: the govt
must have better reason for burdening than for w/holding a benefit. Punishment=higher scrutiny
viii. Lochner v. NY (CB 739-744)No longer good lawcase is wrong
a. Facts: D was convicted of permitting an employee to work for him more than the statutory max of
60 hrs/wk. D claimed violation of his freedom to K under 14
th
Amend. Due Process Clause
b. Court applied the following concepts of due process:
1. Ends or purposes: ask whether the objective is legitimate, appropriate, or necessary; did
the law promote health, safety, welfare, or morals of the ppl?
2. Means: whether means used to accomplish purpose were reasonable and appropriate.
Real and substantial relationship btw the means used and the legitimate end?
3. Effect: what is the effect of the law on the liberty and property of the parties involved? If
the effect is too drastic, it violates due process.
c. Holding: law unconstitutional-it interferes w/right to Kthe constitution favors a free market;
health and bargaining power to work less hrs not legitimate reasons to interfere w/right to K
d. Holmes important dissent: this is really about economic theories; the $ price of bread was rising
and bakeries were using immigrants to bake for cheap labor
1. The majority has adopted one economic theory while NY has adopted another; the
constitution doesnt favor any particular economic theory
2. The law is not about values; its about the rules of the constitution
3. 14
th
Amend. doesnt enact Social Darwinism Theory that the strong should survive
e. Theories of why Lochner was decided incorrectly:
1. This was judicial activism: justices allowed their personal values/political opinions become
constitutional law. Justices should be umpires only calling balls and strikes, not players
2. It read the wrong values into the constitution: ppl dont have the right to K; only the right
to be free from govt interference once they have formed valid Ks. The rights values
include this like human rights, free speech, protecting the lil guy from the big guy, etc.
f. Generally, courts have abandoned the notion that the constitution favors a free market
ix. U.S. v. Carolene Products Co. (CB 755-757)Regulation of food
a. Facts: Filled Milk Act enacted by Congress provided that skim milk combined w/non-dairy fats
was an adultered article of food, the sale of which was fraud upon the public.
b. Rule: the existence of facts supporting legislative judgment must be presumed.
c. Holding: Act is constitutional; the constitution doesnt privilege any economic theorythe
generally doesnt interfere w/ legislative judgments but will do so when courts need to protect
rights that are explicit in the constitution, uphold ability of political/democratic process, or to
protect an insular minority


Constitutional Law Outline 26


II. Privacy
i. Griswold v. Connecticut (CB 832-839)--Fundamental Privacy Rights
a. Facts: Connecticut statute prohibited any person from using contraceptives. Ds/clinic owners were
convicted as accessories to the crime of using contraceptive for giving info, instruction, and
medical advice about contraception to married ppl.
b. Holding: this law is unconstitutional because it goes against the right of privacy.
c. Justice Douglas opinion: have to read the constitution right to find the rights that apply
1. There are rights that the constitution absolutely protects and these rights have
emanation, and those emanations have penumbras.
2. When you learn to read constitutional rights in this way you find rights like:
ii. The right to associate emanates from the right to free speech; marriage is in the
penumbras that are generated from the right to free speech
iii. If you put all the penumbras together, they form the rights to privacy.
d. Dismissal of Lochner: dont form a theory or use judicial activism; look right at the constitution and
find the right.
ii. What is privacy?
a. We label all non-specified valued constitutional rights as privacy
b. Several things that we label private just arent private.
1. Abortions take place in public hospitals
2. Marriages must be public by law
3. Association means the right to associate w/others, which isnt private
c. Instead of privacy, we should discuss liberty
1. Must protect rights that are deeply ranked in our society as fundamental
2. Justice White and Harlans concurrence in Griswold say that denial of these rights should
rest on rational basis review or reasonability.
3. These rights would not extend to adultery, fornication, incest, and homosexuality
iii. Abortion
a. Roe v. Wade (CB 843-849)
1. Facts: Tx made it a crime to procure an abortion except to save the mothers life
2. Holding: Right of privacy is in 14
th
amendments concept of personal liberty and is broad
enough to encompass a womans decision whether or not to terminate her pregnancy.
3. Only an independent life is a compelling interest; the states interest in potential life
becomes compelling at viability, which the court just decides is 6-months.
4. This opinion became the modern Lochner bc it was seen as the USSC deciding based on
morality/their values.
b. Planned Parenthood of Southeastern Pennsylvania v. Casey (CB 864)
1. Facts: Pa adopted law requiring women seeking an abortion must be given certain info at
least 24 hrs b4 the abortion; women must give informed consent prior to the abortion; if
married, woman must certify notification of her husband; and facilities providing
abortions must make certain reports about each abortion; P challenged constitutionality
of the act by suing the governor/Casey
2. Holding: a state may impose notification and consent requirements as prerequisites for
obtaining an abortion.
Constitutional Law Outline 27


3. Opinion reaffirms Roes essential holding1.) women have a right to an abortion, 2.) the
state can restrict/discourage abortion, and 3.) the state may attempt to protect a
legitimate interest in the woman and the life of a fetus that may become independent.
4. Court treats abortion as a liberty, not a right
i. A right is something that a court can compel the govt to uphold; a liberty means
no more than leave me alone; I cant be forced to do anything.
ii. To say that abortion is a right means that the state can assist a woman in
performing an abortion; to say that abortion is a liberty means the state cant
interfere w/a woman getting an abortion.
5. New Test: the state may put restrictions on abortions before or after viability as long as
the restrictions do not cause an undue burden.
6. Policy: what the constitution protects are things that are central to a persons identity
i. Whether a woman decides to bear a child is a question that is central to her
identity; therefore, the state cant force a woman to make such a decision bc it
defines her role