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Differences
Articles of Confederation U.S. Constitution
Preamble contractors – 13 States Preamble contractors: “We the people” (emphasis of
(emphasis on sovereignty of states) sovereignty of “people”) + rationale
Unicameral Congress Bicameral Congress: House & Senate
2-7 del. per state House, apportioned by pop.; Senate, 2 members per state
Del. appointed by state legislatures in House: elected by the people; Senate: appointed by state
manner determined by state legislatures legislatures
1 year terms House: 2 yr terms; Senate: 6 yr terms
1 vote per state 1 vote per member
No more than 3 yrs out of 6 No term limits
Del. paid by states Senators and Reps. paid by U.S. Treasury
Pres. of Legislature presides House: Speaker; Senate: Vice President
Not in session – Committee of States Pres. can call into session
Power to requisition armies from states Power to raise an army
U.S. & states coin money Only U.S. coins money
Silent on ex post facto laws Ex post facto laws prohibited (U.S. & states) – makes criminal
action that was innocent when originally innocent (Article I,
Sec. 9 & Sec. 10)
Silent on bills of attainder Bills of attainder prohibited (U.S. & states) – laws singling
someone out by name for criminal punishment (Article I, Sec.9
& Sec. 10)
Silent on habeas corpus Writ of habeas corpus shall not be suspended
Taxes apportioned by Congress, Taxes laid and collected by Congress
collected by states
Assent of nine states req. for most Majority of both houses, signature of president
specified powers
Article II – states retain powers not Article I, Section 8 – “necessary and proper” clause
“expressly delegated” Amendment X – “powers not delegated” (no word “expressly”
from AoC) “reserved to the States… or to the people”
No discussion of executive branch Article II: Executive – President + Vice President (w/plan for
succession)
Only describes courts for “the trial of Article III: Judicial (inc. Supreme Court)
piracies and felonies committed on the
high seas”
Congress (commission) resolves Supreme Court resolves disputes b/w states
disputes b/w states
9 states must agree to admit new states Congressional approval of new states
+ automatic admit for Canada (use of #
as opposed to ¾)
Unanimous consent required for Article V - ¾ of states req. to approve amendments
amendments
Unanimous consent required for 9 states required for ratification When GW became
ratification president, SC and RI not members, then blockaded
Limited indirect ref. to slavery (phrases: Multiple indirect references to slavery (3/5, slave trade
“free” inhabitants, requisitions in regulation prohibited until 1808, fugitive slave provision)
proportion to # of white inhabitants)
Federal gov’t relies on states Greater independence for federal gov’t
Focus on powers of Congress Balance of powers b/w branches
Reaction to external threats Focus on creating “more perfect union”
No def. of treason Defines treason limit on power of fed. Govt.: uses word
“only” – saying what treason isn’t
Doesn’t address fugitive slave question Adds fugitive slave component in Article IV
Ref. to “Great Governor of the World” Only ref. to God is “in the Year of our Lord”
State militias Amendment II – people added to right to bear arms
States are units w/standing Dual citizenship – citizens of U.S. + citizens of states
Second Question:
Const. and fed. laws are supreme: this gives rise to three corollaries:
1) Power to create implies power to preserve; (Congress can preserve bank)
2) Power to destroy is incompatible with power to create and preserve;
3) Where this incompatibility exists, authority that is supreme should control.
States can only tax their own people, and bank belongs to people of other states.
If States had power to tax fed gov’t it would create a chaotic situation;
Rejects argument that b/c US gov’t can tax state banks, then the reverse is true.
States cannot impede conduct of US gov’t b/c latter is supreme.
Unanimously declares Md. statute [taxing bank] unconstitutional;
CLASS NOTES:
Amar thinks that geostrategic argument is central to Marshall’s views on McCulloch: Marshall was at
Valley Forge and he saw how we almost lost Revolutionary War b/c of weakness of Articles; he
understands the need for a bank that can help finance an army.
¶17: lays out justification for bank, needs bank to transmit money over long distances (carry out war,
vast republic (already talking about Pacific Ocean), armies are to be marched and supported, treasure
(war word), b/c have to pay troops in order to advert disaster/mutiny, this bank is useful for that, end
of story. If there’s any purpose for gov’t, it is national security, people in army need to get paid; a
bank is useful for that purpose (convenient if not indispensable) and that’s enough (taxes, commerce)
Marshall shifts the burden to MD to prove that Fed gov’t does not have choice of means to pursue
powers (See ¶19)
Also pragmatic reliance argument that a lot of people have invested in this bank, it would destroy the
stock market: chaos: must be cautious.
Marshall reminds us that important statesmen have changed their minds on this (i.e. Madison)
Notes that Marshall’s decision gave Congress options: if Marshall had found bank unconstitutional,
Congress can’t change that, but now it has a choice…
Important notion that the part can’t go against the whole: state can’t act over the federal gov’t
Stresses idea of confidence: check on legislators of our state b/c we can vote them out, but we can’t
vote out legislators in other states: you can tax your own constituents only.
Also notes that Marshall never fully confronts the question of the nature of the bank: is it part of the
gov’t or is it private: would this make a difference to our analysis?
II – CONSTITUTIONAL STRUCTURE
A. SEPARATION OF POWERS - Horizontal Checks and Balances:
1. Judicial Power
a. Judicial Review (BLBA 71-103)
Before Marshall:
o SC relatively insignificant institution during the 1st decade of the new Republic
o Difficulty attracting people to serve and rate of turnover was high
o However, SC had simply assumed a power both to review the validity of state legislation that
conflicted with federal treaties and statutes and to construe federal legislation in light of
binding constitutional requirements
Marshall Court:
o Instituted current practice of having an “opinion of the Court” (outward unanimity)
Louisiana Purchase
o Jefferson thought he needed a constitutional amendment to have it be legitimate
o But Jefferson decided “we must ratify & pay our money, as we have treated, for a thing
beyond the constitution, and rely on the nation to sanction an act done for its great good,
without its previous authority.”
o Rationale was that the laws of necessity, of self-preservation, of saving our country when in
danger, are of higher obligation
o Many years later, Marshall wrote that U.S. could extend its territory by conquest or by treaty
Other questions:
1) Should Marshall be deciding this case or should he recuse himself?
o Marshall Secretary of State under Adams when he affixed seal on commissions of judges (his
brother James didn’t deliver them all)
o Then again, Jefferson is his second cousin
o James Marshall is the one who comes to testify about delivery of commissions
o Marshall endowing own factual conduct with legal significance => Fact-finder
o Marshall is the ones that tells us that the commissions were sealed (determining facts rather
than the trial court) = Eye-witness
o Supreme Court is the trial court (original jurisdiction) => Judge
o Marshall fact finder of case, eyewitness AND judge (determining adjudicative fact)
2) Why does Marshall wait until the end of the opinion to decide jurisdiction?
-Politically didn’t want to appear to be rolling over, wanted to assert all other powers first and declare
various acts of Jefferson illegal and unconstitutional first
-Declaring law unconstitutional is last resort so waits till after all other avenues exhausted first
=> Brandies says in TVA v. Ashwander that should avoid deciding issue on constitutional
grounds if possible
3) Were there any other ways of reading statute so as not to confer original jurisdiction to the SC (so then
it would not have to be unconstitutional)?
Judiciary Act grants only “power” to issue writ of mandamus, not “jurisdiction”. Uses word
“jurisdiction” in all other parts of Judiciary Act and Constitution. Hence doesn’t mean what Marshall
says it means and not unconstitutional.
Is conceptually possible that article gives minimum jurisdiction only
-More likely not because Constitution wanted to preserve venues of local courts
4) What types of arguments available?
Structural argument: separation of powers, checks and balances
Precedent Argument: Lower courts have reversed Congressional Acts before Marbury
-Judiciary Act: Supreme Court says can affirm state court decision to overturn Congressional
Act, so precedent was there
-Supreme Court struck down state statutes that were unconstitutional
Historical arguments: at the Constitutional Convention there was understanding of what judges role
would be (should it be considered? b/c not subject to public access)
-Federalist 78 assumes judicial review is in Constitution (78), argues that people sovereign over
public legislature, and judges should enforce what we the people agreed to
5) Which version of judicial review does Marshall have in mind?
o Par. 52-53: Narrow (decide constitutional law in regard to case at hand)
o States can have first instance on Constitutional issues but last word should be provided for by
appellate jurisdiction to federal courts
6) What about section of Judiciary Act deemed unconstitutional—what happens to it?
o Law that violates Constitution is no law at all (Marbury)
o Law is still on books—so then what?
o Judges aren’t going to enforce it, but law still hasn’t been officially repealed
o Law doesn’t have to be re-passed because it’s still on the books (under classic theory of
judicial review)
- Judicial review cannot repeal, judges only enforce view when applying holding to own cases
HOLDING: (WARREN)
1) Case is not moot because back-pay still an issue.
2) Congress does not have immunity due to speech and debate clause (Art. 1, Sec. 6)
3) Exclusion not the same as expulsion, even though got two-third vote.
4) District Court has subject-matter jurisdiction over the case. House not
relevant judge.
5) Issue justiciable by court
6) Action unconstitutional (declaratory judgment, like Marbury)
7) Case remanded to lower court to decide actual damages
Voters standing not decided by court (footnote 8)
REASONING:
1) Back-pay still an issue. Bond v Floyd – mootness of a primary claim does not require a
conclusion that all secondary claims are moot.
2) Officers of legislature not immune, only individual Congressman
=> Won’t say what they would do if officers weren’t involved (n26)
=> Anyway S&D clause about insuring legislators are not distracted from their tasks only, not to
protect them from judicial review
3) Not called an expulsion, Powell not seated, not allowed to speak against it, may not have
voted for it if expulsion, congressmen had no lower measure to vote for so forced to vote
for exclusion, vote only required a majority not two-thirds so may have impacted strategic
voting(Douglas says this in n26)
4) Subject Matter jurisdiction => It’s a case arising under federal law and this is all you need
(Cites Baker v. Carr)(pg. 12).
5) Doesn’t run afoul of political question doctrine. Congress given adjudicatory power to
decide whether its members met standing qualifications(Art. 1, Sec.5), NOT to add new
qualifications.
- Can the court issue a remedy that can be enforced? – court says doesn’t have to decide
this because it can issue declaratory judgment.
6) a. Textual argument => Standing requirements stated in Constitution (Art. Sec 2) only
requirements Congress can use to exclude members
+> Fn 41 gives other reasons: impeachment, incompatibility,
treason, guaranty clause
b. Historical argument: Cites Wilkes case in England that was repudiated because
Wilkes excluded for non-standing reasons => Americans identified with Wilkes
=> Intent of Framers argued
c. Structural Argument => Don’t want Congress to entrench themselves through setting
requirements, people have right to choose who represents them
d. Textual => If explicitly need two-thirds vote for expulsion based on broad reasons,
why would exclusion only need a majority unless counterbalanced with
narrow requirements
DISSENT: Stewart, if back-pay only issue can go to Court of Restitution
Amar: Court wants to decide case because wants to declare that Powell’s constitutional rights were
violated. Want to affirm right to vote for who you want and have it count. By making it about pay, get
stuck with 8-1 decision. Should have provided guidance to people.
Hypothetical situations
- If no officers to sue? For every right, there must be a remedy (from Marbury), if there weren’t another
person to sue, might have to go after legislator
- What if Powell had been expelled?
=> Court doesn’t address it “We express no view on what limitations may exist on
Congress’ power to expel or otherwise punish a member once he has been seated.”
2. Congressional Powers
Question: Does Congress have the power to go beyond what the Court has found unconstitutional under
the Reconstruction Amendments and outlaw other practices by the states in the name of enforcing those
Amendments?
Two Views: Basic division between those who think Congress can enforce the law as judges define
it(Boerne, Morrision) versus those who think Congress has the substantive power to define violations of
the rights guaranteed in the Reconstruction Amendments under Sections 5 and 2 under the 14 th and 15th
Amendments respectively(Katzenbach cases, Amar).
Historical Back-up: Congress had the Civil Rights Act of 1866 on the books when the 14 th Amend. was
ratified. They had thus already shown that they thought §2 of the 13 th Amend. gave much more power
than §1 and if framers/ratifiers of 14th Amendment thought that was wrong, they shouldn’t have ratified
the 14th Amend. They did, and §5 of the 14th Amendment should be interpreted as equally as broad.
Rule Proposed: The 14th Amendment was specifically adopted to give Congress sweeping powers to enact
civil rights legislation. If you can read a Congressional law as affirming the basic citizenship of a
historically oppressed group, it is consistent with the 13th and 14th Amendment powers of Congress.
impeachment
-Must find facts because no prior criminal trial => What will evidentiary rules be?
Then….
Amar: I’m a constitutional scholar and you’re not
Taylor: I’m a national journalist and you’re an ass
Amar: Shut up.
Taylor: You shut up.
Amar on Cox
4 legal texts
Fed. R. Crim. P. 48(a) – can dismiss “with leave of court”
Rule 7 – U.S. Attorney must sign indictment
5th Amendment – No one held to answer unless on presentment or indictment. Ct reads
this thinly. 5th Amend. is about GJ as a shield, not sword because of its location in the
text, because it reads “no person shall…” and because of historical
understanding/implementation.
Art. II – Executive’s responsibility to see that the laws are faithfully executed.
Note that court invokes the Constitution to inflect its reading of the statutes.
Judges split 3-1-3: Although Judge Brown is the ONLY judge who thinks that a US attorney can be forced
to prepare an indictment but cannot be forced to sign it, this opinion becomes the majority opinion.
Note that all the judges emphasize the importance of publicity and open courts.
CLASS NOTES:
Court’s reasoning is sloppily overbroad. Court should have insisted upon independent
evidence of criminal activity to justify the disclosure; otherwise, DA’s could subpoena
presidents for any little scandal.
Court invokes Burr v. United States. In that case Burr was a defendant who argued he
needed access to Pres. Jefferson’s papers to clear his name, whereas in this case it’s the
prosecution that want the documents.
Amar – THE SYSTEM WORKED THE WAY IT SHOULD. The Independent Counsel Statute, created
by Carter, gets the judiciary involved unnecessarily and creates real problems of constitutionality.
The court says AG has full discretion as to whether to set in motion the appointment of an IC, even
though the statute says the AG shall apply to court when there are reasonable grounds for an
investigation. Example of interpreting a statute in such a way as to make it constitutional.
Accountability. The whole point of the appointments clause is that when an inferior officer misbehaves,
the public would know whom to blame: the superior who hired and supervises the inferior. When the IC
misbehaves, as we saw with Starr, there is no one to hold accountable.
Coase Theorem. Legal rules establish a baseline, or a default rule, against which further bargaining
amongst interested parties may take place. If Scalia had prevailed, Congress would still have been able to
use their oversight, appropriations, publicity and impeachment powers. Conversely, the president can
pardon the target(s) of the IC (unless it’s him!).
Sunset Clause. Clinton let the IC act expire. Janet Reno said there were structural flaws, due to lack of
accountability.
Given the change of the Court’s line-up, it’s not clear whether the IC, if passed, would today be found
constitutional. See Edmund (below), which sounds a lot like Scalia’s dissent in Morrison.
Amar on Chadha
One way to conceptualize this case is through two formal proofs: 1) the fed. gov't has three kinds of
power; legislative, executive and judicial. If the House’s action in Chadha was legislative, then
bicameralism and presidential approval was required. If it was executive or judicial, then Congress should
not have exercised it to begin with. 2) In voting against Chadha, Congress was either applying the
“hardship” standard to Chadha or redefining the “hardship” standard. The first is an exercise of judicial
power; the second is legislative requiring bicameralism and presidential presentment.
Why Amar loves this case: the separation of powers is designed to encourage legislators to draft
standards generally and prospectively, behind a kind of veil of ignorance. All persons who do X shall
henceforth be deported unless Y and Z. And once the general rule is in place, the executive carries it out,
and if the executive misapplies the rule, or if the rule itself is unjust, legally aggrieved persons (those with
standing) complain to the judiciary. Thus it is the executive and the judiciary who deal with specific
individuals—but they don’t get to make up the rules. This lovely, well-balanced system is no system at all
when Congress tries to pass rules that aren’t really rules at all, and that can be taken back when they
decide (using a legislative veto). If Congress is allowed to freely use the legislative veto, there’d be much
less incentive to write rules with specificity and clarity. The goal of the separation of powers is to tell
Congress: draft as carefully as you can!
Executive Branch in Chadha has fallen down on the job of upholding the Constitution as it sees it. INS
says, “we think the legislative veto is unconstitutional, but we’ll deport him because Congress says so.”
This is not what co-equal branches as interpreters of the Constitution are supposed to do. It also puts the
burden on people like Chadha.
Severability. Court thinks severability necessary for standing. Amar disagrees – Chadha might lose, but
he has standing since he’s claiming the violation of his rights. Severability should be decided at the end.
One way of thinking about severability is what decision will be easier to undo if SC
misunderstands Congress’ intent. If Court rules that the parts are NOT severable, and Chadha must go,
Congress can pass a personal bill saying he stays (if indeed they intended for the parts to be severable).
But if Court decides he can stay, Congress can’t pass a bill saying he must go because of Bill of Attainder.
Severability is very important in other contexts such as the War Powers Act. If you uphold the grant of
military power, but not the legislative veto, that is a HUGE grant of power to the executive that Congress
can’t take back without a 2/3 majority to override the President’s veto.
Amar comments
Amar highlights the political repression in the antebellum South.
HOLDING (BLACK): President must have an affirmative law allowing him to take such actions.
There is no statute that expressly authorizes the President to seize property as he did here.
Not authorized by Constitution. 1) Not commander-in-chief authority. 2) Not power to execute laws.
Here he’s directing that a presidential policy (not a statute) be executed. Acting like a legislator.
The Order looks like a law. Congress could pass it, the President cannot.
CONCURRING (FRANKFURTER):
It is not necessary to decide whether the President would have this power in the absence of
legislation relating to it because in passing the Labor Management Relations Act of 1947,
Congress specifically declined to give the President the power to seize industries in times of
labor disputes.
Not a traditional “gloss” on executive power. No established practice for the executive seizure of
property at a time when this country was not at war (in the only constitutional way it can be at
war).
CONCURRING (BURTON):
Congress prescribed for the President specific procedures, exclusive of seizure, to use in meeting
this type of emergency. The President’s order invaded the jurisdiction of Congress and violates
separation of powers.
This is not comparable to an imminent invasion or threatened attack.
CONCURRING (CLARK):
Congress laid out procedures to be used in the Selective Service Act of 1948 when producers fail to
supply necessary defense material. President made no effort to comply with those procedures.
Where Congress has laid down specific President is constitutional in the absence of a declared
war.
CONCURRING (DOUGLAS):
The Constitution gives all legislative powers to Congress, and this is a legislative act.
5th Amend. says property can only be taken with just compensation. President doesn’t have
power to raise revenues and thus cannot compensate for a seizure. Thus a seizure is unlawful
until and unless Congress authorizes it. Checks and balances.
CONCURRING (JACKSON):
Congress has passed laws on seizure, none of which this act conforms with. “We can sustain the
President only by holding that seizure of such strike-bound industries is within his domain and
beyond control by Congress.” (713)
“War powers” are not exclusively Presidential but Congressional as well. President’s war powers
not intended to supersede representative government of internal affairs.
DISSENT (VINSON, REED AND MINTON JOIN):
These are extraordinary times. Congress has sanctioned the war in Korea in numerous ways,
including a draft. The President has the duty to execute that legislative program.
If President can only seize property with authorization of Act of Congress he is left powerless at
the moment when the need for action is most pressing and no one else is able to act.
Discusses uses of executive power by George Washington, Jefferson and Lincoln.
President was ensuring that the legislative programs of military procurement and wage/inflation
stabilization were faithfully executed.
No statute prohibiting seizure as a way of executing Congress’ legislative program. Truman was
preserving the status quo until Congress could act.
Amar on Youngstown
There are two possibilities for what happens after an Executive Order – 1) Congress has to ratify
decision/bless it afterwards or else he must stop. 2) Unless Congress passes a law telling him to do
something else, it’s ok, and President could veto that law, requiring a 2/3 majority to pass it.
Dissenters say that Truman is advocating #1, but Amar thinks that based on the Order (704-706) Truman
is really saying #2. If Truman is saying #2, then he only needs 1/3 +1 of each house to keep the seizure,
and only one house has to not pass it in order for the Order to remain in effect.
Differences between Truman and Lincoln (when L seized ships): When L acted, Congress wasn’t in
session, and if L hadn’t acted, Congress wouldn’t have been able to meet at all. Truman had a statutory
procedure he didn’t follow. Lincoln says Congress must affirmatively enact statutes to affirm. L also
accelerates Congress’s meeting. Finally, the Civil War was a “legal and constitutional war” – to lose the
war is to lose the rights the constitution preserves.
e. Presidential Privileges and Immunities (p 724-28)
While Art. I § 6 gives legislators immunity from lawsuit based on their “speech or debate,” and
temporary immunity from civil arrest while legislature in session, Constitution is silent on matter of
presidential immunity
Immunities have been derived from structural considerations
It would be anomalous to not give immunity to VP as presiding officer in Senate or to allow pres. to
be sued for statements in State of the Union address or a press conference.
Spalding v. Vilas (1896): judges privileged against lawsuits for statements in court/opinions.
Nixon v. Fitzgerald, 457 U.S. 731 (1982) held ex-pres. Nixon could not be sued for allegedly
violating plaintiff’s 1st Amend. rights while in office. (Criticism: shouldn’t deprivation of a
constitutional right have a remedy (perhaps pay out of a public fund)?)
Clinton v. Jones, 117 S. Ct. 1636 (1997) held sitting pres. Clinton could be sued for violating
plaintiff’s civil rights while governor of Arkansas
o weaker than Nixon case in that Clinton act was private (sexual harassment) while Nixon’s
was in office as pres.
o stronger than Nixon case in that Clinton only wished to defer trial so as not to interfere with
work of presidency (similar to “in session” immunity for legislators in Art. I § 6). One person
shouldn’t be able to commandeer president’s time.
In both Nixon and Clinton cases, SCt. indicated Congress could deviate from rulings w/ legis.
Open question: can sitting pres. be prosecuted criminally outside impeachment ct.?
o Amar testified before Congress that sitting pres. is immune from criminal trial other than
impeachment, but can be prosecuted after leaving office (or waive immunity).
based on structural argument (separation of powers/federalism)
entire executive power of government is vested in president
if South Carolina Court could have indicted Lincoln, Union might not have survived
– a part cannot undo the whole (McCulloch)
same is true of federal courts – federal grand or petit juries are selected locally, but
pres. must be judged by body representing whole (Congress)
The Constitution
o Succession Clause: the Congress may by Law provide for the Case of Removal, Death,
Resignation or Inability, both of the President and Vice President, declaring what Officer
shall then act as President, and such Officer shall act accordingly, until the Disability be
removed, or a President shall be elected.
o Are Speaker or President pro tempore “officers” within the meaning of the Succession
Clause?
Text and original understanding
o Constitution refers to “officers of United States” many times and seems to mean members of
the fed. exec. & judiciary, but not the legislature.
Art. I § 6 makes clear that fed. legislators cannot hold any “office of the U.S.”!
Historically, parliamentary officers were distinguished from crown officers
Art. II § 3 Commission Clause gives pres. power to appoint exec. & judicial officers
(but not legislators)
Art. II § 4 Impeachment Clause makes “all civil Officers of the United States”
impeachable. In 1798, Senate rejected idea that its members were “civil officers” and
therefore subject to impeachment.
Early drafts of Succession Clause used “officer of the United States”; no evidence
that this style change intended to change meaning; seems to be shorthand for officer
of U.S.
o Counterargument: 2 places where use “officer” to include federal legislators.
Art. I § 2: HR “shall chuse their Speaker and other Officers”
§ 3: Senate “shall chuse their other Officers…”
If “officer” means everyone labeled officer in the constitution, and not just officers of
the US, then Speaker might be eligible.
o Response: Art. VI § 3 requires oath of fed. & state legislators, executive and judicial officers
of U.S. & states.
If “officer” in Succession Cl. was intended in broad sense and not shorthand for
“officer of U.S.”, then state officials could be appointed by Congressional succession
statute, which seems implausible given framers’ intent for more national gov’t,
obvious state favoritism, and plausibility of alternative reading.
addresses legislators and executive & judicial officers separately.
Structural considerations
1. separation of powers
the ban on congressional office-holding and the resignation problem
if pres. and veep were temporarily disabled, house speaker would have to
resign as speaker to act as pres. (Art. I § 6); once pres. recovers, speaker will
have lost seat in house; not an issue if only exec. & judicial officers could
serve (they can keep original offices & serve as pres. simultaneously)
Madison argued only “offices” were qualified, not private citizens. Under
this view, Speaker also disqualified if resign office.
Not like British Parliamentary system – bans leg/exec blending.
impeachment process integrity and the conflict of interest problem
Emoluments Clause (Art. I § 6 P. 2) and the impeachment procedures (Art. I § 3 P. 6
– which says CJ must preside over pres. impeachment, not VP, who has a big
stake in proceedings) are careful to insure that no one is allowed to benefit
selves or judge own case. Succession law warps incentives of Speaker/pro
temps when called upon to impeach Pres or VP.
the electoral college model and the problem of creeping prime ministerialization
current succession law allows Congress to place its own leader in presidency
through impeachment
yet one purpose of electoral college was to prevent person becoming pres. by
currying Congress’ favor
2. logistics
where problem: if pres. & veep are wiped out at once, shouldn’t successor be nearby?
Congress may be out of session; exec. officers are usually in the capital
when prob.: since Congress need meet only once a year constitutionally, legislative
officers are not continuous – if pres. must be replaced, there may be no house speaker
C. subsequent constitutional developments
1. 25th Amendment -- 25th Amendment (1967): directs Pres to fill vp vacancy by
nominating a VP who shall take office upon Congress’ confirmation
if members of the Congress could succeed to the pres., they may bog down the
confirmation process of the veep, which would undermine the objective of the 25 th
Amend, namely, the speedy replacement of the veep
also, 25th allows veep with a majority of Cabinet to convince Congress that the pres. is
unable to discharge her duties—if the legislature is in line to succeed, they are again
judges in their own cases
2. the populist presidency -- some say that legislators should succeed b/c they are elected
whereas Cabinet members are appointed
but legislators are elected by local constituents, not national electorate. The cabinet
members probably better reflect the national will
idea of hand-picked succession is important—the VP’s mandate is derived largely
from the fact that he is the handpicked successor of the pres—cabinet succession
simply extends this model
this model will preserve party and policy continuity
the statutory evolution
original succession statute (1792) was compromise between legislators who wanted sec. of
state (Jefferson) 1st in line and those who wanted sec. of treasury (Hamilton) 1 st in line;
picked pres. pro tempore to be successor; but immediate national election triggered, so
successor would be temporary
1886 act made line of successors all cabinet members; legislators questioned constitutionality
of 1792 act and shenanigans of 1868 Johnson impeachment
1947 act once again put legislators in succession
current law allows speaker and pres. pro tempore to decline presidency then bump
cabinet successor whenever they choose (yet high cabinet members cannot bump
lower ones)
requires any succeeding cabinet officer to resign cabinet post (must go thru confirmation
again)
doesn’t trigger a new election.
the burden of persuasion
importance of maintaining confidence in constitution and legitimacy at point of succession
means we must avoid questionable interpretations and hold to most straightforward
reading that legislators are not officers under Succession Cl. Should also trigger
immediate election
new law should also consider what would happen if a leading candidate died before Election
Day (election should be postponed) or if pres. elect dies before electors meet (should be
treated as elected and succession kicks in)
should also consider temporary disability of pres. and/or veep – should give successive
cabinet officers same ability to discharge powers to next in line (as veep now has under
25th Amend. § 3)
B: FEDERALISM – Vertical checks and balances: Limiting
Congressional Power
Vertical Federalism diffused gov’t power between fed. and states and allowed gov’ts to check
each other (e.g. local militias balanced national armies; local juries balanced national judges; state
representatives balanced more national senators and executive; states were required to amend
Constitution).
Horizontal Federalism is concerned with the relationship between states and how the fed. gov’t
affects these relationships, as with the Commerce Clause.
The big sources of federalism questions: commerce clause, taxing and spending power,
structure of constitution, reconstruction amendments, 10 th Amendment
Commerce Power
Art. I § 8 P. 3: Congress shall have Power “To regulate Commerce with foreign Nations, and
among the several States, and with the Indian Tribes”
Main thrust of commerce clause, says Amar, is not commerce per se but a concern with spillover
and resulting race to the bottom. Even if everyone wishes to regulate for the common good,
spillover may make it impossible. E.g., if states ban child labor but even one state does not, that
state will have a competitive advantage and other states will have incentive to race to the bottom,
that is, to allow something that practically no one really wants (AKA tragedy of the commons).
In early America, there actually was little interaction between states and therefore minimal
spillover effect. What may have been an unconstitutional infringement of federalism then may
not be now as transportation and communication developments have made every aspect of life
interstate.
The Civil War also showed the fed. gov’t and not the states to be the guarantor of civil rights and
the Reconstruction Amendments severely limited the power of states over their own citizens
(human rights were a new role for fed).
BACKGROUND: The National Labor Relations Act of 1935 (NLRA) prohibited employers from
engaging in unfair labor practices affecting commerce. Defined commerce to include the
trade/transportation/communication of commerce between states, or the “flow of commerce.”
FACTS: ∆ corporation was alleged to have interfered with the rights of employees to organize and bargain
Civil Rights Act of 1964: Title II relied mainly on the Commerce Clause, the idea being that
discrimination and segregation in areas of public accommodation (hotels, restaurants, etc.) affected
interstate commerce
Amar: Civil Rights Act should have been justified with 13th and 14th Amendments
o the 14th Amend. §5 states the Congress shall enforce the amendment with appropriate
legislation, can be used to protect “badges of citizenship” as alluded to in §1
o tricky part is that 14th Amendment on face applies to states, not individual actors
o privileges and immunities protection of reconstruction amendments emasculated by
Slaughterhouse
Heart of Atlanta Hotel v. U.S., 379 U.S. 241 (1964)
Challenged Title II. Since hotel was readily accessible to highways, 75% of clientele came from out
of state, and it advertised on national media, if they discriminated it would affect interstate commerce
by forcing blacks to find alternate places for rest or by discouraging them from traveling at all.
Discrimination would decrease travel and commerce. Thus, Congress had power to regulate.
FACTS: Former university student Brzonkala brought claim under VAWA providing federal civil remedy
for victims of gender-motivated violence.
HOLDING: Rehnquist: affirmed 4th Cir. decision that Congress does not have authority to provide a civil
remedy for gender-motivated violence under (a) Commerce Clause or (b) Equal Protection Clause.
REASONING: (a) Commerce: Defines ct.’s ability to overrule Congressional assertion of power based on
U.S. v. Lopez (see above). Despite numerous findings by Congress connecting gender-based violence
and economic impacts, connection too indirect. (Invalidating the narrow reading of Lopez, which said
maybe the Guns in School Zones act would have been okay if Congress had made findings.) Fear that
Congress would be able to regulate any crime having economic affect, thus trampling states’ rights. Must
be distinction between what is truly local and what is truly national. Also: police power lies in states. (b)
Equal Protection: Government contends, and congressional record establishes, pervasive bias in state
justice systems against victims of gender motivated violence; claim that this bias denies victims of
gender-motivated violence the equal protection of the laws. Court cites “embedded principle” of
interpretation that action prohibited by 14th Amendment is only state action. “The Amendment erects no
shield against merely private conduct, however discriminatory or wrongful.” Cites Civil Rights Cases
and US v. Harris as invalidating laws that regulate private action under §5 of the 14 th A.
DISSENT: Souter (w/Stevens, Ginsburg & Breyer): DEFERENCE TO CONGRESS. Legislative findings
show that gender-based violence does substantially affect interstate commerce. Lopez is a deviation from
standard test court applied to commerce clause enactments. Correct test is merely to ask whether
Congress had a rational basis for creating a regulatory scheme to protect commerce.
DISSENT: Breyer (w/Stevens; Souter and Ginsburg join I-A): It is the effects of an activity and not the
cause that are material. Just because a cause is local does not mean that its effects are not felt between
states (echoes of spillover).
CLASS NOTES:
According to Amar, VAWA is justified under 14 th because: The 13th Amendment has been
interpreted in Jones v. Mayer to allow Congress to regulate a private person’s behavior. §2 of the
amendment allows Congress to enact “by appropriate legislation” the protections of §1. §2 allowed
Congress to eliminate all badges and incidents of slavery. The Court granted Congress wide
authority in determining what these badges and incidents were Makes similar argument for
reading 14th A. §5, which permits Congress to enforce by appropriate legislation the provisions of
the amendment, should allow Congress to enforce “badges of unequal citizenship”. Badges of
citizenship might include the right to be treated equally under the law no matter one’s sex. Amar’s
contention is that to treat the two amendments differently is for the court to be inconsistent.
Adoption of the 19th should inform the 14th amendment -- women should be viewed as full citizens
of the United States and entitled to such protections as VAWA proffered
Taxing and Spending Power, Art. I § 8 Clause 1
Conditional funding powers are extremely broad.
Dealing with national problems (w/ spillover effects) through federal taxation
Congress’ Article I power to tax & spend NOT limited to interstate problems
Tension/debate between those who leave motive to Congress and those who see structural
limitation in federalism and the 10th A powers reserved to states
Notice how Court avoids Garcia; distinguished in that New York is not about whether states are subject to
commerce regulations on individuals but about regulating on actions of states only. O’Connor hands
down Casey opinion (on abortion rights) w/ great argument about stare decisis, so too awkward to
overrule Garcia here.
Amar: New York should be read as saying that state governments are designed to be constitutionally
independent from the federal government in certain ways, in part so that they may stand as competing
political power centers and rallying points for opponents of the central regime. States are watchdogs.
State legislatures should be able to define their own agendas and remain a locus for criticizing the federal
government.
To summarize this line of cases: Garcia suggested that states could best protect themselves procedurally
and not through courts, thus Congress had wide authority to regulate state activities. Ashcroft qualified
this power, requiring Congress to be clear when it intended to intrude on state authority. New York and
Printz state that Congress can neither compel a state’s legislature to adopt any certain regulatory scheme
nor compel a state’s exec. officer to carry out any fed. law.
A: Property Rights
Takings Clause (5th Amendment): “…nor shall private property be taken for public use, without just
compensation.”
Note: Natural Law, Vested Rights and the Written Constitution: Sources for Judicial Review (p109)
Natural law is a way of finding unenumerated rights, similar to looking at what other rights state
constitutions grant. The written constitution is seen as a written expression of “natural rights” that
already existed; thus, a wider batch of private rights also existed.
When you put a prohibition in a state constitution, you aren’t creating it necessarily, you’re declaring it.
In particular, a law that makes a man a judge in his own trial would be prohibited by natural law. So
would a law that takes property from A and gives it to B. And so would a law that destroys or impairs the
lawful private contracts of citizens. This is how Justice Chase ends up finding a “vested property right.”
The Million Dollar Question: When A and B are individuals, the government’s singling out of A or B for
special treatment would violate natural law. But when A is not an individual but a broader category or
class, when is it permissible for the state to impose burdens on A, perhaps in favor of B? Read most
broadly, this principle makes all redistribution unconstitutional.
Reliance on “general principles” of law, as opposed to strict textualist arg., sounds strange coming from
Marshall.
But there were several notions of rights in the early 19 th Century:
1. “Natural Law” Tradition
Concept in 18th cent Am: a universal law superior to all manmade law
Sources of natural law doctrine: a) Judge did not “make” common law; rather through reason, discovered
immutable legal principles; b) Magna Carta, Declaration – claimed not to establish new principles but
declare preexisting ones; c) John Locke – “social compact” is largely designed to protect distributions
of wealth.
On this view, the written constitution was a core of a wider region of private rights, which are also
entitled to the protection of gov’t
2. Judicial Protection of “Vested” Rights
Marbury - once his commission “vested”, gov’t could not deprive him of his right
Fletcher - protected “vested rights” – entitlements. Once belong to person, government can’t divest it
at will.
Gov’t cannot deprive citizens of vested property right.
3. Explicit Federal Constitutional Protection of Rights
Judicial protection of individual rights (i.e.-property) still depended mainly on written state and US
constitutions. Several rights protected in Philly Const (freedom to contract, bills of attainder, ex post
facto)
Supplemented by Bill of Rights in 1791.
1833: Barron v. Baltimore holds that Bill of Rights applies only to Fed Govt.
4. Ninth Amendment
“The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage
others retained by the people”
Part of Constitution that most embodies concept of natural rights
Purpose of amendment ambiguous Protect indiv. or the state? Does it protect individual liberties
not enumerated in first 8 amendments OR protect states against feds assumption of undelegated
powers?
14th Amendment
Author: Congressman Bingham
Reconstruction Republicans tried to make clear that henceforth states would be required by the
federal constitution and by federal courts (and by Congress, too) to obey fundamental rights and
freedoms
Basis for nationalistic restrictions on states insofar as their policies violated the rights of their citizens
o 1st clause of the 1st section overturns Dred Scott by making “All persons born or
naturalized in the United States… citizens of the United States and of the State wherein they
reside”
o “privileges or immunities” clause addresses rights of citizens
o “due process” and “equal protection” refer to persons
Frankfurter argued that 14th Amendment Due Process Clause req. that states obey principles of
fundamental fairness and ordered liberty
Black argued for “total incorporation”) of the Bill of Rights into the 14 th Amendment Due Process
Clause (see dissent in Adamson v. CA (1947))
Brennan led drive for “selective incorporation” of elements of the Bill of Rights into the 14 th
Amendment Due Process Clause (Warren Court largely accomplished Black’s vision through
selective incorporation, all except 2nd, 3rd, 5th grand jury requirement, and 7th rules regarding civil
juries)
Bolling v. Sharpe (1954): read the Founder’s 5th Amendment due process clause in light of the
Reconstructionists’ equal protection clause (to overturn segregated DC schools)
Late 19th century pressure of social discontent (concentration of economic power, monopolistic rates, poor
working conditions in urban factories, etc.) created pressure for economic regulation corporate
lawyers reacted by pressing for due process protections of “property”
Concept of substantive due process used to strike down variety of laws/regulations intended to
intervene in economy
Note: Myra Bradwell, Privileges and Immunities, and the Practice of Law (p.330)
IL SupCt refused Bradwell license to practice law solely because she was woman, even though no one
doubted she was otherwise qualified. Her attorney said that the P and I clause incorporates the
Declaration of Independence into the Constitution, and says that the right to choose your vocation
falls under “pursuit of happiness.” .
On appeal to US SupCt., MILLER for Majority reaffirmed opinion in SLAUGHTER-HOUSE that
regulating licenses of occupations not a power transferred to Feds – it remains with States (thus,
getting a license is not a right of citizenship protected by the 14 th amendment).
Some of the dissenters in Slaughter-house don’t dissent. Some just sexist. Separate spheres for men and
women. Another argument: Being lawyer = officer of court. More like legislator than butcher and the
14th Amend is about civil, not political rights. (though Amar argues that women at core of 14 th
Amend.) Similar to Minor v. Hapersett: voting for women not a civil right, it’s a political right so it
doesn’t fall under 14th Amendment either.
Federalist 10 is very opposed to redistribution, as is the contracts clause and the takings clause: together
(and then read into the privileges and immunities clause or substantive due process clause), these form the
structural argument in favor of banning redistribution. And this is what the Court begins to hold onto after
the Slaughterhouse cases.
Amar’s view of the P and I clause: it must mean more than the majority in Slaughterhouse says (it cannot
just guarantee right to petition legis, because that already exists), but Amar says it does not go so far as
banning redistribution. Amar relies on the Bill of Rights and structural arguments for his middle ground.
The Court can’t use P and I after Slaughterhouse, so it moves to Substantive Due Process, and this brings
us to Lochner.
Overview: During the Great Depression, both the feds and the states adopted a series of emergency
measures dramatically expanding government’s role in the economy. At first the Supremes appeared to
acquiesce (see Nebia and Blaisdell), albeit by just one vote. Then, from 1935-1936, the Supreme Court
fought back, striking down 6 regulatory schemes as inappropriate interventions in economic matters (see
Morehead). This frustrated FDR, so he proposed to pack the Court; Justice Roberts then switched sides
(“switch in time that saved nine”) and the Court allowed reams of legislation despite challenges to it
based on federalism, due process and the contracts and takings clauses.
Also note that the 16th Amendment passed in 1913, which was explicitly meant to overturn a terrible
Supreme Court decision saying income taxes were unconstitutional. The Amendment is crucial to
redistribution because you can’t do redistribution very well at the state level—and it gives
documentarians reason to ditch the anti-distribution bent of the Lochner era.
Nebbia v. NY (1934)
During the Lochner era the Court only allowed regulation of “business affected with a public interest”—
all other regulation violated substantive due process. Nebbia begins to reverse course, taking a broad view
of what was business affected with a public interest.
FACTS: New York fixed the price of milk at no less than 9 cents a quart. A storekeeper was convicted of
selling below that price; he challenges the law as a violation of substantive due process (property rights).
HOLDING (J. Roberts for the Court): the law is upheld by a 5-4 vote.
REASONING: the guarantee of due process “demands only that the law shall not be unreasonable,
arbitrary or capricious, and that the means selected shall have a real and substantial relation to the object
sought to be obtained.”
DISSENT: fixing prices is not within a legislature’s power. It deprives a “fundamental right” to “conduct
[your] own affairs honestly and along customary lines.” The milk industry is not an industry affected with
a public interest.
Name of the case: Home Building & Loan Association v. Blaisdell [The Minnesota Mortgage
Moratorium Case]
Citation inc. year: 290 U.S. 398 (1934)
Author of Opinion: C.J. Hughes
Legal Topics: Property Rights
A summary of the material facts:
1933 Minnesota law: moratorium on foreclosure/debt repayment extends time for repayment of
mortgages (then structured as long period paying interest followed by balloon payment)
A brief procedural history of the case (posture of the case):
Home Building & Loan Association claimed law violated the Contracts Clause
The holding(s):
H for Blaisdell: Minnesota law placing moratorium on foreclosure/debt payment is a legitimate
exercise of police power and does not violate the Contract Clause of the Constitution.
The court’s rationale/reasoning:
Hughes’s Majority Opinion:
o Time of emergency doesn’t change Constitution
o Limit on Contract Clause: police power of state (public morals, or public health, safety, or
welfare)
o Evolving economy cites Marshall in McCulloch, “We must never forget this is a
constitution we are expounding – a constitution intended to endure for ages to come, and
consequently, to be adapted to the various crises of human affairs”
o Not favoring borrowers over lenders, if not for gov’t intervention everyone would default and
bankers will lose out
Amar: game theory prisoners’ dilemma problem for bankers each one could
maximize by rushing to foreclose, but in the end this causes economic ruin for
everyone (same is true for bankruptcy laws which helps creditors by divvying up
assets so no gets left out) [underlies prudential argument for Court’s decision]
Note 1, p. 425: “A law sincerely designed to help creditors as well as debtors is not a
law designed to impermissibly ‘impair’ contractual ‘obligations.’”
o “Whether the legislation is wise or unwise as a matter of policy is a question with which we
are not concerned”
Sutherland’s Dissenting Opinion:
o Contract Clause “framed and adopted with the specific and studied purpose of preventing
legislation designed to relieve debtors especially in time of financial distress” cite
constitutional convention, ratification debates, etc.
Court composed of 3 progressives, 4 conservatives, 2 swing; After NEBBIA and BLAISDELL, swing
votes side with conservatives and strike down recovery measures of New Deal
o 3 progressives: Stone, Brandeis, and Cardozo
o Ultraconservative 4 horsemen: Van Devanter, McReynolds, Sutherland, and Butler
o Swing members: Chief Justice Hughes, Roberts
FDR re-election in November 1936, proposed court-packing plan in February 1937
While MOREHEAD v. TIPALDO (1936) invalidated NY minimum wage law for women, West Coast
Hotel Co. v. Parrish, 300 U.S. 379 (1937), Chief Justice Hughes wrote majority opinion
o SCt ok’d law establishing Washington minimum wage law for women acknowledged
legitimacy of state legislature considering sociological and economic data “Even if the
wisdom of the policy be regarded as debatable and its effects uncertain, still the legislature is
entitled to its judgment”
Evidence Justice Roberts voted with majority in West Coast Hotel before announcement of court-
packing plan, but his switch to new pro-New Deal majority considered “the switch in time that saved
nine”
5th Amendment Just Compensation Clause (for more detail see 2002 Con Law outline)
Jed Rubenfeld, Usings, 102 Yale L.J. 1081-94 (1993) (BLBA pp.446-61)
Key question: What, exactly, constitutes a taking?
o Settled application is requirement that government must pay for property it seizes through an
exercise of eminent domain
o Pumpelly v. Green Bay Co. (1871): Supreme Court held that flooding of plaintiff’s land
by state canal project constituted a taking requiring compensation physical-invasion
rule
o Mugler v. Kansas (1887): Supreme Court rejected claim under the just compensation
clause from brewery owner based on state law prohibiting manufacture or sale of alcohol
regulation preventing injurious use affected no taking [harm principle]
o Pennsylvania Coal Co. v. Mahon (1922): Supreme Court struck down Kohler Act which
prohibited mining company from causing subsidence damage to “support estate” it had
sold but for which it had reserved the right to mine beneath extent of diminution in
value would be considered in determining “taking” (later cases suggest standard of
denying owner economically viable use of land) [economic impact test]
o Doctrinal tension between Mugler (harm/no taking principle) and Pennsylvania Coal (economic
impact too severe/taking principle)
o Rubenfeld offers alternative: government may “take away” without compensation so long
as it does not “take over” (or use)
o Rehnquist Court
has tried to reinvigorate takings clause (e.g., requiring compensation for
environmental policy “takings”)
has also tried to reinvigorate the contracts clause
B: Voting Rights
Recall that the framers went out of their way to say the equal protection clause is not about voting;
however, this is the main basis in the cases below for granting such rights (not privileges and immunities)
Name of the case: Harper v. Virginia Board of Elections (3rd ed. p. 1054)
Citation inc. year: 383 U.S. 663 (1966)
Author of Opinion: J. Douglas
Legal Topics: Voting Rights
A summary of the material facts:
VA levied $1.50 annual poll tax on all persons over 21, enforced by disenfranchising those who did
not pay proceeds financed public school system and other local government functions
A brief procedural history of the case (posture of the case):
3-judge district court dismissed complaint, Supreme Court reversed
The holding(s):
H for P: Court holds that the poll tax constitutes “invidious discrimination” that violates the
equal protection clause of the 14th amendment by discriminating on the basis of wealth with
regard to foundational right.
The court’s rationale/reasoning:
Douglas Majority Opinion:
o A state violates the Equal Protection clause whenever it makes the affluence of the voter or
payment of any fee an electoral standard.
o Voting is foundational The foundational nature differentiates it from licenses where
everyone pays a fee.
Amar: Voting is preservative of the whole system of rights (Carolene Products
Footnote 4 idea)
o “Wealth, like race, creed, or color, is not germane to one’s ability to participate intelligently in
the electoral process. Lines drawn on the basis of wealth or property, like those of race are
traditionally disfavored.”
Black dissent:
o history supports a poll tax, the 14th and Equal Protection Clause do not apply here since the
tax is rational – to collect revenue and promote responsible voting. We may hate the tax, but
we cannot invent the law. Back to Lochner all over again.
Harlan dissent “Property qualifications and poll taxes have been a traditional part of our political
structure.”
Significance:
Need to carefully scrutinize voting rights
Amar:
o But this poll tax is perfectly rational raises revenue and don’t mind keeping some people
from polls
o Problem w/invoking 14th amendment 14th amendment wasn’t about voting rights/political
rights; it was about civil rights (Black people voting on equal terms in only four Northern
states at the time)
o Problem w/invoking equal protection: Privileges or immunities applies to citizens (meaning
read out by Slaughterhouse), due process and equal protection apply to persons (including
non-citizens)
o Can’t use Article IV guarantee of republican government precedents rendered it non-
justiciable
o Could have made 15th amendment argument disproportionate impact {but perhaps
disproportionate impact not enough}/intended to disenfranchise Black people (a point found
in the VA legislative record)
Twenty-Fourth Amendment applied to federal elections; in enforcing 24th, Congress authorized AG
to bring challenges to poll taxes in 1965 Voting Rights Act
Best response to Black and Harlan historical arguments 14th amendment offered different vision of
Article IV republican government
o Amar: Constitutionality of judicial enforcement of republican government
Structural argument: fixing distribution of wealth by limiting franchise
Textual argument: 14th enforcement clause, 15th enforcement clause > Adoption of
14th amendment changes meaning of Article IV republican gov’t clause (dynamic
reading/escalator clause similar to word “unusual” in phrase “cruel and unusual”)
Amar: Justification for 14th amendment (non-participation of Southern states in 2/3 vote of Congress
to propose Amendment) relies on dynamic reading of Article IV (Constitution must be viewed as an
ordainment, a doing can’t claim to be bound by text w/o accepting process by which it came into
being)
Name of the case: Kramer v. Union Free School District (3rd ed. Ch. 10, p1060)
Citation inc. year: 395 U.S. 621 (1969)
Author of Opinion: Chief Justice Warren (last day of his time on bench)
Legal Topics: Voting Rights
A summary of the material facts:
Under NY state law [Sec 2012 of the NY Educational Act], residents otherwise able to vote in state
and federal elections could only vote in NY school district elections if:
o (1) owner or lessee of taxable real property located in the district;
o (2) spouse of one who owns or leases qualifying property;
o (3) parent or guardian of a child enrolled for a specified time during the preceding year in a
local school district
A 31-year-old stockbroker who lives with his parents who could vote in all other elections sued.
Holding (Warren): Law is struck down as a violation of the Equal Protection Clause
The court’s rationale/reasoning:
Warren’s Majority Opinion:
o The Court says it must give “close and exacting scrutiny” to any legal discrimination as to
who may participate in political affairs. Relies on Harper to justify this scrutiny, as opposed
to the “rational basis” test
o Right to vote in election of body which decides qualifications (state legislature) doesn’t
matter for assessing fairness of denial of vote in other body
Dissenters (Stewart, joined by Black and Harlan):
o If you don’t like policy, can throw out (by not electing) state legislator who approves the
school district rules. (Amar sympathetic to this view)
o Everyone can still vote in the foundational elections—school board is different, and the
policy of exclusion is entirely rational.
Significance:
Amar:
o Weaknesses in applying Harper - 1) this is an exclusion based on including only those with a
specific interest in the composition of the school board; 2) these elections are not as
fundamental as those for legislature—not foundational
o In applying strict scrutiny, the Court says that the law isn’t carefully tailored because
interested tax-paying parties like the Plaintiff don’t get to vote, while some uninterested ones,
like an unemployed non-tax paying young man who rents in the district, can.
o Best argument – By allowing vote among non-parents only for property owners/leaseholders
impermissible wealth classification under Harper
Level 2: You get to vote, but how do your votes add up?
Name of the case: Baker v. Carr (3rd ed. Ch. 10, p1074)
Context: Decided before Harper and Kramer
Citation inc. year: 369 U.S. 186 (1962)
A summary of the material facts:
Grossly unequally apportioned districts in Tennessee: about 40% of the voters elected 2/3 of the
State’s senators and representatives
Legislature repeatedly rejected appeals for reapportionment
Holding (Brennan): Complaint’s allegations that TN’s apportionment scheme denies equal
protection under the 14th amendment presents a justiciable constitutional cause of action upon
which appellants are entitled to a trial and a decision
The court’s rationale/reasoning:
Brennan for Majority: Is the case justiciable? Yes
o Sets out standard for non-justiciable political question cases:
Textually demonstrable constitutional commitment of the issue to a coordinate
political department
Lack of judicially discoverable and manageable standards for resolving it
Impossibility of deciding without an initial policy determination of a kind clearly for
non-judicial discretion
Impossibility of a court’s undertaking independent resolution without expressing lack
of the respect due coordinate branches of government
Unusual need for unquestioning adherence to a political decision already made
Potentiality of embarrassment from multifarious pronouncements by various
departments on one question
o Distinguishes Luther v. Borden
Issue in Luther v. Borden: π’s right to recover depended upon which of the two
groups was entitled to recognition as government of Rhode Island
Problem wasn’t that the Article IV republican gov’t Guaranty Clause is non-
justiciable with regard to state governmental organization, but rather that Luther was
a political question case:\
if choose one over the other, actions of gov’t become invalid (could cause
chaos)
commitment to Congress of decision as to lawful state government
action by President recognizing one government as legitimate
lack of criteria by which court could determine which form of gov’t was
republican
o “The question here is the consistency of state action with the Federal Constitution.”
o Amar: issue in Baker v. Carr: One regime, is it “Republican?
Douglas Concurrence: Universal equality is not the test (room for weighing of votes, Equal Protection
“goes no further than invidious discrimination.”).
Clark concurrence:
o Apportionment picture in Tennessee: “a crazy quilt without rational basis”
o Court intervention appropriate because majority has no other way to achieve relief
decisive fact: no initiative and referendum in Tennessee; Assembly’s approval required for
Constitutional convention
Frankfurter (joined by Harlan) dissent:
o Judicial restraint apportionment is a political question
Significance:
Amar: In Baker the court is trying to revive the Guaranty Clause for future use.
Standard is not yet “one person, one vote”
Racial component: over-representation of rural whites vis-à-vis urban African-Americans
Themes of the Warren Court: (variations of equality)
o 1. reapportionment revolutions (gerrymandering) and voting rights
o 2. race (condemning Jim Crow laws)
o 3. rights of criminal defendants
o 4. incorporating the bill of rights against the states
o 5. broad protection of free expression
o 6. getting prayer out of public schools
Name of the case: Reynolds v. Sims (3rd ed. Ch. 10, p1079)
Citation inc. year: 337 U.S. 533 (1964)
Author of Opinion: C.J. Warren
Legal Topics: Voting Rights
A summary of the material facts:
In Sims and five companion cases (The Reapportionment Cases), the Court addressed the merits of
various states’ apportionment schemes
Holding (Warren): Equal Protection Clause of 14th amendment requires that seats in both houses of
a bicameral state legislature must be apportioned on a population basis
The court’s rationale/reasoning:
Warren’s Majority Opinion:
o Baker says these cases are justiciable.
o Judicial focus should be on determining whether there has been any discrimination against
individual citizens which “constitutes an impermissible, impairment of their constitutionally
protected right to vote”
o “Legislators represent people, not trees or acres”
o Sets out “one person, one vote, one value” as standard equal protection means equal
participation (weight)
o Subdivisions of states not analogous to equal rep. of states in the Senate never were and
never have been sovereign entities (therefore, U.S. Senate model is impermissible
counties can’t be equally represented, just larger # of voters per Senator)
Harlan:
o 14th amendment not intended to apply to voting rights
Stewart:
o Equal Protection test of apportionment should be “rational basis” + “no systematic
frustration of the will of the majority”
Significance:
Amar: Perhaps having chosen equal protection for path dependent reasons, “one person, one vote”
sounds better verbal formulation pushes them in a certain direction
o Focus on “equal protection” focuses remedy on individual as opposed to systemic protection
of majority/minority rights (i.e., Stewart’s notion of “no systematic frustration of majority
will”)
Amar: What has to be equal? Total population, total legal population, total citizen population, total
non-incarcerated population, registered voters
Companion case: Lucas, re: Colorado Stewart peels off because apportionment approved by
referendum (offers alternative standard of “no systematic frustration of the majority”)
o Court majority may be concerned about risk of minority under-representation in state-wide
referendum
Notes:
Musical Chairs Rule in political science (Dejuvey’s law) one more person than chairs long-term
equilibrium: 1 seat: 2 parties, 2 seats: 3 parties, 3 seats: 4 parties
Problem: Unless you police the shape of the districts gerrymandering can deprive minority of
representation or even deprive majority of representation
60-40 w/60 distributed across districts to get 100% wins
40-60 w/40 distributed across districts to get majority of wins (waste votes of 60 on 95%-5%
wins)
Amar: tension b/w what parties want (narrow margins, but enough to win more districts) and what
incumbents want (huge margins, safe districts)
Some states try to use commissions question is what goals are driving the commissions
Whitcomb v. Chavez, 403 U.S. 124 (1971), (3rd ed. Ch. 10, p1094)
Facts:
o Marion County, Indiana, residents sued to invalidate the multi-member redistricting
scheme because it invidiously diluted the vote of the black and the poor within the
county.
Procedure:
o The District Court held for the plaintiffs, finding that senators and representatives tended
to come from the better off white areas. Indiana got a stay of the order and held the 1970
election under the old scheme and then in 1971 adopted a new scheme for single-member
districting throughout the state.
Holding (White): In this case the district court was wrong – the multi-districting was ok in
Marion County.
Reasoning:
o Multi-member districting is not a per se violation of the Equal Protection clause simply
because the supporters of losing candidates have no legislative seats assigned to them but
they are subject to challenge when the circumstances operate to minimize or cancel out
the voting strength of racial minorities
Note: White v. Regester (1973): Court invalidated multimember districts in Texas counties
because sufficient evidence to support district court’s finding that the Black and Mexican-
American plaintiffs in the case had not has an equal opportunity “to participate in the political
processes and to elect legislators of their choice”)
Gerrymandering: an incumbent political party designs legislative districts to maximize the number of
seats it can win in a general election.
Felons
Incarcerated people are counted in the census based on where they are warehoused (in NY state,
this results in overrepresentation of update vs. city) overseers (corrections officers) get
disproportionate representation based on prisoners (parallels to 3/5 compromise)
Biggest variation in voting between states some states let felons vote, some don’t (Thomas
argument in U.S. v. Thornton that by nationalizing qualifications for Congress, felons unable to
vote under state law may be able to run for Congress)
C: Slavery and Race
Slavery
Amar’s intro notes:
● The Constitution is a pro-slavery document. Article 1 gives slavemasters 3/5 extra votes and says you
can prohibit any other kind of interstate commerce except slavery until 1808; Article 2 embeds the 3/5
bias into the electoral college, which allowed all of the first early presidents to be white slaveholding
Virginians; Article 4’s fugitive slave clause; judges picked by the president, so they’re tainted (which may
explain why the early judges were even more pro-slavery than the document itself); Article 5 says the
only thing that cannot be amended in the document is the 1808 slave trade law delay. (Amar admires
Frederick Douglas’s attempt to cast the 3/5 compromise as anti-slavery, but says it doesn’t hold under
even bare scrutiny)
● Slavery as an individual right was protected by judges for a long time.
● The Supreme Court protected slavery far more than did the text of the Constitution.
● Amar thinks that the S.Ct. is today in some ways reverting to this troubling period of history.
Prigg v. PA (1842)
States cannot place any barriers on slaveowners’ ability to recapture their fugitive slaves from free
states.
FACTS: Fugitive Slave Act of 1793 authorized owner to seize a fugitive slave and bring him/her to a
federal judge or state magistrate, who would issue certificate upon satisfactory proof that the captured
person was the owner/agent’s runaway slave. Prigg, Bemis, and others captured Margaret Morgan and her
children in PA (Morgan had married a free black and the whole family had moved to PA). Prigg et al then
crossed the state line to Maryland by night—without bringing the “fugitives” to a PA judge. The Governor
of Maryland at first refused to surrender the guilty parties to PA authorities but finally agreed. Prigg was
then convicted under PA statute designed to prevent self-help (i.e. kidnapping) in the return of fugitive
slaves.
HOLDING (STORY): Reversed ruling of PA court; PA statute preventing self-help violated Art. IV, §2’s
fugitive slave clause.
REASONING: Art. IV, §2: No person held to service or labor in one state shall be allowed to escape into
another; …must be delivered up to state having jurisdiction over crime. The Court says this clause
prohibits state law that interrupts or limits the right of owner to immediate possession of slaves. States
have police power to arrest, restrain, remove runaway slaves, but may not interfere with right of owner to
reclaim, derived from Art. IV, §2 and remedies prescribed by Congress under FS Act. Makes Supremacy
argument that Art. IV, §2 and Fugitive Slave Act supersede any state legislation that conflicts (the conflict
in this case is “additional regulations”). Also makes a practical argument that no Southern state would
have agreed to such a construction at the founding, so this can’t be the intent.
CONCURRENCE (TANEY): Disagrees with majority view that states cannot aid a master in recovering
slaves. FS Act depends on State legislative support.
DISSENT (MCLEAN): Owner has no right to remove fugitive slave from state. Required by Act to take
slave to federal judiciary. Under PA law, rights of the master are not impaired, but mode of asserting
them is modified. If slave states can presume blacks are slaves, non-slave states can presume every
person is free unless shown otherwise. Majority’s holding leaves no check on “master” or someone
asserting a person is slave.
CLASS NOTES:
Art. IV says that a state can’t free a fugitive slave. But the question is, is indeed this person a
fugitive slave? Need to go before magistrate to determine.
Amar says Congress doesn’t have the power to create a slave enforcement mechanism. Art. IV
doesn’t say Congress has the power to enforce the fugitive clause (while in the same article in the
full faith and credit clause it does say Congress shall have the power to enforce). And Art. IV, §2
says NO STATE SHALL—about what states can and can’t do, not what the feds can do.
Structurally Article 4 is about State-State relations. Without this, the law of the State would be
the law of the nation.
The Court’s hypocrisy: there’s no explicit power granted to the feds to regulate fugitive slaves,
yet this is allowed. But after the 14th Amendment, which does include explicit and sweeping
grants of federal power, the Court reins Congress in and limits what it can do.
OTHER NOTES:
Taney thought Dred Scott would solve slavery issue, but it instead became nation’s symbol of
irreconcilable division between N and S.
Besides central holding that court had no jurisdiction because blacks could not be citizens, the
Court held unconstitutional the MO compromise, which had declared slavery prohibited in LA
territory N of 36/30, except MO. Reasoning was substantive due process of the 5th Amendment
and deprivation of property (i.e. slaves) merely by bringing it into territory. But the due process
is passing of a public law.
This is only the second time an act of Congress is held unconstitutional (since Marbury).
Fourteenth Amendment
It was NOT about voting rights; it’s about civil rights.
Two proposed amendments mandating color blindness (for example, proposal by T. Stevens: “All national
and State laws shall be equally applicable to every citizen and no discrimination shall be made on account
of race and color”) were explicitly rejected.
Can we then interpret 14th A as mandating color blindness (thus standing in opposition to affirmative
action) if this was explicitly rejected by its drafters? Or should we see this as irrelevant?
Unusual procedural history: Welcome back confederate states to Congress only if they ratified 13 th
Amendment. December 1865, Republican majorities in 39th Congress exercised power under Article I, §5
to judge qualifications of its own members and to exclude the reps from the South. Feared that Democrats
would block any further amendment or even ordinary laws. So 14 th Amendment was proposed and passed
by a “rump” Congress, without excluded Southern members. Without S. representatives, Congress passed
Reconstruction acts, putting South under control of military. Congress supervised conventions to create
new State governments. Representatives from South only allowed back into Congress if their state
ratified 14th Amendment and only if amendment gained support of ¾ of States.
§2 of the 14th Amendment said that if you deny the vote to any male inhabitants over 21 years old,
representation in Congress will be reduced. First time male is mentioned in the document—the whole
purpose was to make sure that states with lots of women didn’t get screwed. But the Court looked away
and did not ensure that blacks voted under 14th Amendment. That is why we needed the 15th.
Today - 14th Amendment and §1 in particular, are seen to be about due process and the right to vote, §2
has disappeared.
Note how the language of the 13th, 14th and 15th Amendments parallels the language from other
amendments and clauses, and borrows concepts about federal power from McCulloch and Prigg.
(no state shall…, due process…, privileges and immunities…, appropriate… etc.).
(Several cases below that we didn’t discuss in class but in the reading)
Hernandez v. Texas (1954)
Exclusion of Hispanics from juries violates the 14th Amendment’s EP clause.
FACTS: Hernandez alleged that persons of Mexican descent were systematically excluded from jury
service, depriving him of equal protection under 14th A.
HOLDING (WARREN): Exclusion of people of Mexican descent from juries violated right of ∆ to jury from
which all members of his class are not systematically excluded, protected by 14 th A.
REASONING: Petitioner doesn’t allege that state statute discriminates based on race, but that those
administering law do. Petitioner succeeded in proving that persons of Mexican descent constituted a
separate class in Jackson County, distinct from whites. The fact that of the six thousand jurors called in
past 25 years, none were of Mexican descent bespeaks discrimination even if not a conscious or explicit
decision.
Background (pre-1970s)
Bradwell v. Illinois 1873, which upheld Illionois law that rejected Myra Bradwell’s right to practice
law solely b/c she was female. [AMAR: Lawyers are “officers of the court” – weakest argument for
women because linked to political rights.]
19th Amendment (1920) – removed from states the ability to limit voting rights on grounds of sex.
(overrules Minor v. Happersett 1875, p. 986)
After this, a few courts reassess women’s political and civil rights.
Important case: Adkins v. Children’s Hospital (1923) – held that DC law requiring that women
(but not men) received minimum wage violated women’s freedom to contract. By the end of the
1920s, Cts had strictly limited the 19th A. to the question of voting. p986
o Recall, West coast hotel case that upheld minimum wage law that treated women different
from men.
Goesaert v. Cleary 1948. More ground lost in area of equal treatment for women in employment
sphere. Court applied minimum rationality standard to uphold a Michigan statute forbidding
women to work as bartenders, on the ground that Michigan’s moral and social interests were enough
to meet a minimum rationality standard. Constitutionally acceptable to define women in traditional
terms, limiting their econ and political activity.
Pre-Reed: Two standards of review to determine whether a state statute violated the equal
protection clause of the 14th Amendment, or whether a federal statute violated the equal protection
component of the 5th Amendment.
o 1. In most cases: The “rational relation” test - a statutory classification which bares a
rational relation to a legitimate legislative objective will survive judicial review. Will almost
always pass constitutional muster.
o 2. If legislation affects fundamental rights or when the statutory classification is inherently
suspect, a more stringent, “strict scrutiny” test is applied. such classification will
generally not withstand “strict scrutiny” unless it is supported by the most compelling
affirmative justification.
Ruth Bader Ginsburg and the ACLU’s Women’s Rights Project are major actors in the next cases.
Attempts to have the Ct. view women as a suspect classification, thereby, change the test applied to
sexually discriminatory laws.
o Goal of litigation was to prove that stereotypical/traditional treatment of gender under the law
was unconstitutional. To make the Court realize that “the law’s differential treatment of men
and women, rationalized as reflecting “natural” differences between the sexes, historically
had tended to contribute to women’s subordination”.
o Ginsburg pursued a series of strategically chosen cases that illuminated gender distinctions in
the law.
Reed v. Reed, Frontiero v. Richardson, Craig v. Boren
Frontiero: Important: she won the case but failed to get a majority for the “strict
scrutiny test.” Because Brennan’s decision in Frontiero was joined by only three
other Justices, it became apparent that the Court was unlikely to adopt strict scrutiny
for gender classifications. Ginsburg adjusted her objective in response to the
outcome in Frontiero and attempted to get the Court to enunciate an intermediate
level of scrutiny for sex classifications. Craig: Court explicitly recognizes
intermediate level of scrutiny.
Ginsberg’s strategy was to bring cases involving discrimination against men.
Reed v. Reed (SCt. 1971) p988
SC strikes down Idaho law that required a man be chosen to be administrator of an estate if a man and
woman were equally qualified. (9-0) First SC decision to invalidate a gender classification under
EPC. (Important precedent, many gender cases refer back to this).
o Purports to apply only minimal rationality standard.
o The state said that the statute was designed to reduce the workload of its lower level courts
and to prevent the possibility of intra-family fights.
o The Supreme Court (Burger) held, “to give mandatory preference to members of either sex
over members of the other, merely to accomplish the elimination of hearings on the merits, is
to make the very kind of arbitrary legislative choice forbidden by the Equal Protection Clause
of the Fourteenth Amendment.”
AMAR: Court claimed irrational. Not “irrational”! Rather, Court refusing to acknowledge the
legitimacy of certain purposes.
NOTES
Problems with reasoning by analogy to race. Women are 50% of the population. Really is a biological
sub-stratum to gender. Sex discrim characterized by paternalism rather than contempt.
What about the ERA? After overwhelming approval in the House and Senate, failed to win the necessary
38 states for ratification, and expired in 1982.
In applying intermediate scrutiny, SC tended to overturn sex discrimination. ERA never passes.
Maybe because court developed an ERA-like caselaw.
Catharine MacKinnon criticizes the ERA for reducing the problem of the subordination of women to one
of classification, when it is a problem of broad societal discrimination..
Weinberger v. Wiesenfeld (420 US 636, 1975): Court invalidated “mother’s insurance benefit”
provision of the Social Security Act, which provided benefits to widows (but not widowers) having minor
children in their care.
Brennan said it denigrated the efforts of women who do work. Furthermore, the statute not only
failed to give the same protection to a woman’s family as to a man’s family similarly situated, but it also
taxed these women equally while providing less protection to their families.
Given the purpose of enabling surviving parent to stay at home, this statute is irrational, because
children with a surviving male parent also need to be cared for.
AMAR: This “affirmative action” for women is unconstitutional because it presumes the dependency of
women. Reinforces stereotypes.
Califano v. Goldfarb (430 US 199, 1977): Court struck down provision of Social Security Act where a
widow was entitled to survivor’s benefits regardless of dependency, while only a widower who received
at least half his support from his wife was entitled to benefits.
Brennan: Discrimination against wage-earning females, who received less protection for their
spouses.
Stevens (concur in judgment): Relevant discrimination against surviving male spouses.
Rehnquist (dissent): The distinction in the statue was responsive to the fact that widows are more
likely to be without adequate means of support. Even if a provision that discriminated against women
should receive heightened scrutiny, this was not such a provision.
AMAR:
The law provides incentives for men to work and women not to.
o Ex post -- discrimination in favor of women.
o Ex ante – discrimination that creates incentives for men to go into market and women
stay at home. Not just reflecting a stereotype. Perpetuating hierarchy.
o Using birth-traits (see 14th amendment) to create classes of unequal citizenship.
Not making the argument that all sex classifications are unconstitutional. Not an argument
against aff action for women.
Evil Rehnquist: Says that laws that discriminate against men are different than laws that discrim
against women. Can discriminate in the favor of women but not against them.
o BUT – doesn’t have that view for race relations (see Grutter)
CLASS NOTES:
Amar: Better to focus on 19th amendment.
14th amendment awkward because about aliens, not about political rights. 19 th amendment was
about political rights, changes meaning of 14th amendment for women.
19th amendment premised on the idea that women on average might have different views on
politics.
Amar: Better to rethink the unanimity rule and do away with peremptory challenge
“VMI Case” - U.S. v. Virginia 518 U.S. 515 (SCt., 1996), p1025
State must show “exceedingly persuasive justification”for gender classification - (a) important
government objectives and (b) means employed to remedy are “substantially related” to achievement of
the objectives (as opposed to strict scrutiny’s “narrowly tailored”) p1029.
FACTS: VMI was the only single-sex public school in Virginia. It’s a prestigious academy which admits
only men, and is known for its adversarial system and its difficult training process. Female high school
student sought admission to VMI. The 4th Circuit required VA to either admit women, establish parallel
institutions for women, or abandon state support. VA proposed to establish a parallel institution, in the
form of Virginia Women’s Institute for Leadership at Mary Baldwin College.
HOLDING (Ginsburg (7-1)): Men-only admissions policy violates equal protection. VA can’t reserve
exclusively to men VMI’s unique educational opportunities. VA’s remedy doesn’t cure the constitutional
violation, since it doesn’t provide equal opportunity.
REASONING: J.E.B. and Mississippi Univ. for Women require that sex discriminatory policy have an
“exceedingly persuasive justification.” Burden of justification is demanding, and rests entirely on state.
However, sex is not a proscribed justification, since physical differences endure.
Virginia presents two justifications:
1. Single-sex education contributes to the diversity of educational approaches offered by
Virginia (the other schools are all co-ed).
Ginsburg: this is historically untenable. The diversity of educational choices was
never the reason for VMI’s sex exclusion. Doesn’t genuinely advance an array of
educational options for all of VA’s students.
2. The VMI method of adversative approach would have to be modified if VMI were to
admit women
Ginsburg: The VMI methodology could also educate women. Arguments to the
contrary betray the stereotypical thinking behind them
Ginsburg - Virginia Women’s Institute for Leadership is not an equivalent institution
fewer resources, less prestigious faculty, limited program choices
Importantly, it does not use the adversative approach, but rather, a “cooperative method,”
which is said to be better suited to women.
Virginia’s generalizations and stereotypes about women are not a sufficient justification
for its unequal treatment of them.
CONCURRENCE (Rehnquist): The exceedingly persuasive justification test adds ambiguity regarding the
appropriate test and is a mistake. Had VA provided the kind of support for private women’s schools that it
provides for VMI, would have been a different case.
DISSENT (Scalia): The court inappropriately raised the standard of review for sexually discriminatory
policy. The court is creating law here – “politics smuggled into law” - if people want to eliminate single-
sex institutions, they can do that through the political process, but they haven’t, the SCt. has decided to do
this and made it unalterable by regular legislation. Women can protect themselves through political
process. Should not take the current preferences of elites and write it into the Constitution the
forefather’s gave us the ability to change single-sex schools by democratic legislation… shouldn’t we
allow this to our children ?
AMAR COMMENTS:
“Easy case.” Truly separate but equal may have been one thing, but these schools have very different
standards, didn’t get the same degree.
Ginsberg makes doctrinal move, upping the ante of scrutiny. Much closer to strict scrutiny.
Scalia’s dissent:
1) Long tradition. Amar: Tradition doesn’t insulate something from equal protection attack. Scalia
doesn’t explain why Brown, Reynolds and Loving were rightly decided.
2) Women can protect selves politically. Amar: Great, but then where are you on Grutter? Whites can
protect selves too.
RECAP on strutiny:
Using words that “formally” classify, such as male and female, triggers heightened scrutiny automatically.
Not necessarily unconstitutional (eg. bathrooms). Look at whether creating castes.
If there isn’t formal classification, disparate effects on a recognizable group not sufficient for heightened
scrutiny. Need disparate effects + legislative purposeful intent.
Pregnancy
Geduldig v. Aiello (417 US 484, 1974) Stewart: Classifications regarding pregnancy are not sex-based
classifications.
Amar: There are no pregnant men. Very few laws discriminate against all men/women,
blacks/whites. Eg. law in Bakke only applied to people who were applying to med school – doesn’t mean
wasn’t race-based. Should be subject to heightened scrutiny.
Draft Exclusion
United States v. St. Clair 291 F.Supp. 122 (D.S.D. 1968). A male plaintiff challenged the draft on the
grounds that it discriminated based on sex. District court rejected the challenge.
“Men must provide the first line of defense while women keep the home fires burning”
In 1980, President Carter asked Congress to amend the Military Selective Service Act to permit
registration of men and women. Congress refused.
In Rostker v. Goldberg (1981), the Court upheld the constitutionality of the Military Selective Service
Act, which exempted women from registration in the draft
Majority (Rehnquist) – Stressed that women were unable to serve in combat and SCt owes
Congress a high degree of deference in issues of defense and military affairs
Dissent: Women might serve in non-combat situation, and there was no basis for concluding
that excluding women is substantially related to concededly important gov’t interest in
maintaining an effective defense.
Since 1981, the scope of combat exclusion has been reduced, with a significant number of women serving
in the Persian Gulf War in 1991.
AMAR: Connections between voting, jury service, office holding, and military service. Cluster of
political rights and responsibilities.
Women individually get opt-out choices, which advantage individually. May disadvantage
collectively.
NOTES:
Constitutional Arguments:
Amar doesn’t buy Douglas’ penumbras – doesn’t see strong privacy protection in Bill of Rights.
Douglas doesn’t do a good job teasing out these rights.
Substantive due process – another possible source of rights. Douglas rejects. Lochner is anathema.
o Amar: This is different than Lochner because bodily liberty is egalitarian, while property is
distributed unequally.
Privileges and immunities. (Amar thinks more promising)
About private domain – privileges – government leaving citizens alone.
Could interpret it as all things that are fundamental. Look at bill of rights, dec of
independence, state constitutions, etc.
Slaughterhouse “strangled this clause in its crib”
Traditionalist argument (Harlan): Conclusive that the law is “utterly novel” – shared American values.
(A lot it doesn’t protect – unmarried couples, same-sex, etc.)
Sex discrimination argument. (Amar’s favorite)
Discrimination between people who can get pregnant, and people who cannot. Condoms were
permitted (because protect from disease), so sexes differently burdened.
Law passed in 1879. Law imposes burdens on women, and never got their consent. A narrow
intervention – could have remanded to the legislature. Even though women can prevent it getting
reenacted, can’t necessarily get it repealed. (Bicameralism, etc.)
After Griswold… Eisenstat v. Baird extends right to privacy (as applied to contraceptives) to non-
married couples based on the Equal Protection Clause p1145
BLACKMUN CONCURRENCE: p1225 scathing critique of Chief Justice’s opinion. Says it’s too narrow a
view of substantive due process and the liberty compromised by unwanted pregnancies.
AMAR COMMENTS:
Note talk of women’s equality, even from Blackmun. (Conscription language (1225); ability for women to
participate equally in society (1206).
Amar likes O’Connor’s legal realist account of micro-power relationships between men and women in the
discussion of spousal notification.
BURGER CONCURRENCE: also invokes historical evidence. Ultimately says this isn’t about
“preferences”(policy) but the legislative authority of the state.
POWELL CONCURRENCE: No substantive right under the due process clause, but suggests that this statute
would not pass the muster of the 8th Amendment (but the parties did not raise it). That is, the punishment
doesn’t fit the crime.
(Powell was going to vote with the Dissenters to strike down the law but changed his mind b/c he “had
never met a homosexual”. p1258)
BLACKMUN DISSENT, JOINED BY BRENNAN, MARSHALL, AND STEVENS, JJ. This case, like the cases about
the right to possess pornography, have contraception, etc. is really about the Right to be Left Alone.
Historical reasoning is bad reasoning. Nothing worse than to say something is okay just because we’ve
always done it that way.
Bases the dissent on the fact that this statute implicates both heterosexual and gay people
Privacy Rights: defined by categories of decisions and place
Court has already recognized the right of people to make decisions
Court has already recognized the home as a place where the state should not enter as readily
Privacy is a broad shield, and the home is a broad forum.
Family is just one forum in which privacy rights are manifest
This is about the individual, not about public welfare. There are no public policy reasons for this law.
Ability to define oneself is essential to individual liberty, and sexual relationships help define that
identity.
4th A.: search and seizure clause implies a right to privacy in the HOME.
Response to the ordered liberty baseline: this IS baseline. (so no slippery slope problem)
“The right of an individual to conduct intimate relationships in the intimacy of his or her own home
seems to me to be the heart of the Constitution’s protection of privacy.”
STEVENS DISSENT, JOINED BY MARSHALL AND BRENNAN
Asks: can a state can prohibit an activity by a facially neutral law?
NO, because privacy rights extend regardless whether there is a moral judgment.
Relies on Griswold, Eisenstadt, and Carey.
Asks: can a state can just enact law against gays?
No, equality considerations mean that the state cannot select a group without sufficient public policy
reasons. No reason is offered.
AMAR’S NOTES:
Overtones for Roe: White (who dissented in Roe) writes majority opinion. Blackmun writes dissent.
White says we’ve had sodomy laws for a long time (also true for abortion laws!). Says we have to be
careful about creating rights out of thin air (again, see Roe!).
Two approaches
Privacy. Substantive due process. Right to sexual intimacy.
But – what about rules about adult incest, polygamy, polyandry, bestiality.
Equality (Amar’s preference – but court never makes this argument). Law on the books applied
to all sodomy (not homosexual). The court construes it in a way that creates an equality problem.
If government can prohibit same-sex sodomy, can it also prohibit heterosexual?
If it can, then problems distinguishing Griswold and Eisenstat.
If it can’t, then what about the inequality issue. Only applying to same-sex.
Loving – government has to have a blood code.
Bowers – government has to have a sex code.
Whether you prosecute or not depends on the sex of the person. Man having oral
sex. Have to look at the sex of the other person. Therefore triggers scrutiny.
Logically based on sex.
Another equality argument: Heterosexism is a form of sex discrimination. Gender-based
discrimination. About gender roles that are supposed to exist, male supremacy.
NOTES:
Kennedy: Fundamental difference between prohibiting conduct, and discriminating against people
because of their status. Doesn’t mention Bowers. This is about status – “orientation.”
Constitution “Neither knows nor tolerates classes among citizens.” – don’t discriminate on birth
status. Who you are, vs. what you do.
Kennedy knows what this law is about – persecuting gays. States its social meaning in the
decision.
Most legislation classifies – this amendment puts a broad and undifferentiated disability on one group.
“Named” – single out people by their name for disadvantages – relationship to bill of attainder.
(Kennedy wrote about Chadha on the 9th circuit discussing this). Can’t single out people for who they are.
Kennedy makes clever legal move in showing that tradition actually on his side.
Also making argument that looks to actual practice – like Harlan in Griswold. These are the outlier states.
Social meaning – it’s an invitation to discriminate – demeans the lives of homosexual persons.
Amar: Rare – personal empathy.