Constitutional Law Outline

History of the Constitution

Declaration of Independence, Articles of Confederation, and the Federalist Papers:

A. Declaration of Independence
1. Radical notion: authority to get rid of King and self-govern is “natural” and “god-
given” (rights are inherent, innate, and antecedent to government)
a. Unalienable rights – cannot give up, cannot make foreign
2. Purpose of government (per John Hancock) is to protect the (these) citizens rights
3. Use of religious references invokes higher authority to justify reasons for revolt
4. Life, Liberty and the Pursuit of Happiness, taken from John Locke’s “Life Liberty
and Property”
5. Can you understand Constitution w/o understanding Declaration of Independence?
Should it be considered when interpreting Constitution?

B. Articles of Confederation
1. Mutual defense treaty
2. No president or national court (i.e., no executive or judicial branch)
a. Disputes resolved in state courts, may be biased to party from the state in
which suit brought
b. Needed executive branch to enforce the law
3. Regulated between states: trade, etc. (states were stronger than federal government)
4. Articles were ratified by states’ legislatures
5. Decided too decentralized and weak so decided to amend the Articles

C. Constitution
1. Ratified over 3 years, state legislatures didn’t vote, sent to ratifying conventions made
up of the people (Declaration: government gets power from consent of governed.) We
the people, not we the states.
2. Technically unlawful (delegates sent to come up w/ suggestions for amending
Articles to make it more workable, not creating a totally new government document)
as it did not follow the provisions of the Articles of Confederation and b/c Ratified by
people. Essentially engaged in another revolutionary act.
3. Legitimized b/c
a. States are bound to the people, states get power from people, if we decide as
the people to withhold some of that power from the states and create this
new federal government, it’s w/in our prerogative
b. Representatives there were there in the capacity as representing the people,
not as government officials/legislators
c. States gave up some power to federal government (as how Articles worked);
people had given power to states, decided to take some back and give to
federal government
4. Most people would argue that the adoption of the constitution was critical to the
survival of the country: ability to tax to pay off war debts, regulate commerce
(interstate rivalries – states were taxing each other)
5. Article One: Establishes the Legislative Branch
a. Splits legislation into House and Senate: Senate more like the Articles of
Confederation (each get two)
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 b. House Elected by People (# of reps chosen proportional to population),
Senators Elected by legislature (by state, each gets 2)
i. Madison defends this process as not just representative of the people,
but representative of the states. Removed from people, passions would cool.
c. §7 Divides the lawmaking powers of the house and senate; lawmaking (how
to create laws); bicameralism (must pass House and Senate) and
presentment (must be signed by executive)
d. §8 Enumerated Powers (things Congress is allowed to do; will spend most
of course here)
e. § 9 Limits Powers of Congress (things Congress can’t do, despite
enumerations of powers)
f. § 10 Limits Powers of States (things states cannot do)
6. Article Two: Establishes Executive Branch
a. Details President and VP; how elected and how long serve
b. President does not make laws, just approves or vetoes them.
c. Ensures the laws are faithfully executed.
d. Commander and chief of military.
e. Can make treaties, with approval of 2/3 Senate: so nation speaks with one
voice.
7. Article Three: Establishes Judiciary
a. Not nearly as much power as the other two branches
b. Federal and SC
c. See Marbury v. Madison
8. Article Four: Interstate dealings
a. States and citizenship
b. States recognizing legal actions of other states as legal in their own, ex.
Marriage, drivers’ licenses.
c. Access to records, K valid between states, ct ruling still valid (unless
marriage – that depends on if goes against other state public policy)
9. Article Five: The Amendment Process
a. 2/3 of both houses and ¾ of states must agree to amend the Constitution
i. Because of concern over what groups of people might do if they
get lots of power.
ii. Requires consensus much like that which created the Constitution
10. Article Six: Supremacy of Constitution
a. Aka: Supremacy clause
b. Constitution and US laws/treaties are supreme law of land; all states bound
(state laws that conflict are void)
c. Grandfathering in treaties from Articles of Confederation (Constitution still
recognizes them)
11. Article Seven: Ratification
a. How Constitution comes into being
b. Only mention of god in Constitution is in reference to the year
12. Amendments
a. Note: class dedicated mostly to Amendments 9, 10, and 14
13. Bill of Rights
a. Some people thought the Bill of Rights was going to be a problem, because
it might be taken as a limited list of the rights of the people. Hence,
Amendment #9
14. Declaration of Independence
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 a. Does the Constitution live up to the promises of the Declaration of
Independence? DI safeguard liberty the way the bill of rights does?
b. “All men created equal”
c. Checks and balances bring certain equality
d. Inalienable rights (life, liberty, pursuit of happiness)
i. Exclusion of women, indigenous peoples and slaves
ii. Article 1, § 2
a. 3/5 rule excludes indentured servants, slaves, indigenous
b. For purposes of taxation, women considered free
c. Reduces representation in the south so south wanted full
representation (reduced the amount of direct taxes they had to
pay, but then reduced representation)
iii. Article 1, § 9: Slavery not prohibited (law won’t change for 20yrs)
but can tax importation
iv. Article 4, § 2: Slaves, indentured servants, criminals fleeing to
another state can be returned to slave state
v. Article 5: amendments to constitution
a. Says can amend any part except cannot make amendments
until 1808 for slave provisions
15. Is the constitution a pro-slavery document?
a. Cognitive dissidence between extremely progressive document versus fact
that slavery still existed
b. Once of earlier drafts, Jefferson wanted to list encouragement of slave trade
as one of crimes of King George (removed for political reasons)
c. Deliberate inefficiency clearly built in (difficult to make laws); 1808
provisions suggest southerners were unsure how secure slavery would be
d. All references to slavery were indirect

The Federalist Papers:

Factions: (addressed in Federalist Paper # 10)

A. Not just informative essays about the reasoning behind the Constitution.
B. Opinion pieces to persuade the people to ratify the Constitution.
C. Particular group has an interest in a certain outcome.
D. There will be groups that have unique interests. Cannot control this. The concept of
the Federalist Papers was that with government being national, other interests will
prevent factions from becoming dominant.
E. Factions rooted in various and unequal distribution of property.
1. Are a natural part of human nature (selfish, look out for self interests; come
in all sizes and combinations: economic, professional, idealistic, etc.)
2. Freedom/liberty automatically/inevitably results in creation of factions
(passion and interests; liberty is to faction is what air is to fire) people will
foster own abilities, have own interests (“sewn in the nature of man”)
3. Different categories: creditor/debtor, merchants/farmers, etc.
4. Unequal: class distinctions
5. Caused by “various and unequal distribution of property”
1. Does not mean disparity of wealth, can be different types of property
(ships, land, etc.)

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 2. People are different – different skills, trades, businesses, etc.;
essentially, special interests groups
F. Can't prevent their formation so control their effects through competing factions, no
one will take absolute control – cancel each other out.
1. Representatives help (less biased, broader view – but won’t always be
enlightened)
2. Since can't just have representatives, setup government to allow ruling
passion (majoritarian view) to give up interests to protect all citizen’s rights
(act in interests of public as a whole)
3. Create separation of powers to lessen problem; 3 branches of government,
each w/ own areas to regulate, that checks each other

Checks and Balances: (addressed in Federalist Paper # 51)

A. Want branches independent (separate powers, not dependent)
B. Faction can't take over multiple branches b/c it takes more time and effort to take
control
1. Separation of powers
2. Independence of branches
3. Easier to control factions in larger country than smaller one (harder to take
control)
4. Staggered appointments, different groups
1. Senate (6yr terms, staggered every two years)
2. House of Rep (every 2 yrs)
3. Pres (every 4 yrs)
4. Judicial branches appointed (in most places)
5. Senate represented by state, House by population
C. Horizontal Separation of powers between Congress, Executive and Judicial
1. Factions in one branch control each other, branches control other branches
power.
2. Plays on the theory that individual self interest coupled with factional
conflicts will keep politicians in check.
D. Vertical separation of powers: Federal and State governments.
1. Compound Republic
2. States legislatures elect Senators.
3. Two distinct governments, not branches of the same. States retain
sovereignty (dual sovereignty; both require sovereignty and authority from
people)
4. Structural provisions of government a sort of Bill of Rights, designed to
protect against tyranny.
5. Three ways that the federal government has exclusive domain over an area
1. Expressly granted to federal government in constitution
2. Expressly denied to states by Constitution
3. Something that "by its nature" the federal government has to handle
6. Did not address when state and federal governments cooperate (instead of
competing w/ each other)
7. Taxation
1. States can tax the federal government if it is indirect, non-
discriminatory, and doesn’t unduly interfere with interstate commerce
(requires federal consent)

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 2. Federal government can’t tax a state’s property that is used in
performance of its basic governmental functions
3. See McCulloch v. Maryland (outline p. 7)
8. Some things (such as education) historically in the domain of the states
1. Note that 21st amendment, in repealing 18th amendment gave the states
power to legislate their alcohol (almost specifically taking it away
from the states) -- and State regulation of liquor is wider than
constricted by commerce clause

PROCEDURAL LAW

Establishing Judicial Review

Marbury v. Madison (p. 28)

A. Jefferson elected. Madison Sec of State. J not deliver Marbury appointment approved
by Adams before leaving office. Marbury seeks writ of mandamus.
B. Job was rightfully Marbury’s (position served in terms, not at discretion of president,
as opposed to a purely political appointment such as Secretary of State). Signing by
Adams gave Marbury the right to the position as an individual and Jefferson had a
duty to deliver the commission.
C. Also, the laws do afford him a remedy
1. Government supposed to protect individual rights
2. Writ of mandamus is appropriate for the situation.
D. However, SC says they do not have the jurisdiction to issue the writ
1. Case establishes judicial review (first time struck down state statute)
2. Political Act
a. Not delivering position was political act, thus no judicial remedy
b. There is a set of things that is inherently political, not about rights or
policy. They are simply about self serving political interests.
c. Not SC business to look at inner workings of the executive branch
3. Article III
a. Congress cannot increase scope of SC jurisdiction (can subtract courts
and jurisdiction)
i. Can move from original to appellate jurisdiction, NOT from
appellate to original
ii. Act gave more judicial power than allowed by Constitution
iii. Violates idea of co-equal branches of government
b. Wrong jurisdiction
i. Declared Judiciary Act of 1789 unconstitutional (excerpt of
Act: footnote on pg. 26). Act grants SC jurisdiction to issue
writ of mandamus to federal officials
ii. SC says no, Constitution limits/restricts jurisdiction under
Article 3. Act is beyond Art 3 b/c Congress cannot authorize
original jurisdiction (as writs always are) – can only legislate
appellate setup of courts
iii. SC has original jurisdiction in cases effecting ambassadors,
public ministers, and states which shall be party. All other
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 cases are appellate jurisdiction. (SC cannot hear this case b/c
original; should be appellate for them to hear)
iv. Theoretically, Marbury could have sued in a lower court (case
could have gone to SC again for appellate review) EXCEPT
that b/c Act struck down, case cannot be taken to another court
4. Supremacy Clause: when can SC invalidate act of Congress
a. Constitution: supreme law of land, thus overrides contradictory laws.
And who would decide these issues other than SC?
b. Congress supposed to uphold Constitution – if they can do what they
want, no point in having (written) Constitution
c. Constitution should not be changeable by mere legislative will
d. What about judicial supremacy……. (fit in outline someplace); does
judicial review = judicial supremacy? (i.e., “the buck stops here)
5. Constitutional restrictions must be adhered to (otherwise, what’s the point to
following any written Constitutional limits, like state tariffs, etc.) – ours is a
government of laws, not of men
6. Ruling allowed court to shoot at executive branch (in effect, scold J)
7. Enumeration view: only granting powers named in the Constitution. Not so
much limiting the power of the court as limiting the power of the legislature to
alter the Constitution, Congress can’t just go and add new powers for any
branch of government and that is why is unconstitutional.
E. Alternate view
1. If act was misread and Congress only meant to offer SC the ability to issue
writs in appellate jurisdiction, the court still wouldn’t have jurisdiction, but
wouldn’t have to have declared the Act unconstitutional.
F. Most courts deal with jurisdiction first, why did Marshall deal with it at the end?
1. Federalists intended for judicial review to exist.
2. Judicial review keeps legislative branch in check (makes checks and balances
official). Encourages other branches not to pass unconstitutional legislation,
establishes ground rules. Today pres. and cong. often pass legislation that they
believe in unconstitutional.
G. Judicial review is not provided for in the Constitution – however, structure of
Constitution assumes judicial review (who else would decide issues of supremacy
clause than SC?)

Thoughts on Judicial Review:

“It is emphatically the province and duty of the judicial department to say what the law is. Those
who apply the rule to particular cases, must of necessity expound and interpret that rule. If two laws
conflict with each other, the courts must decide on the operation of each.” –Oliver Wendall Holmes
(1920).

Uniformity of application of federal law one of the more important roles of the Supreme Court.

Is judicial review necessary for our system of government?

Would allowing the executive and the legislature fight it out radically transform our system of
government? Does the Constitution actually say that a court can strike down a law as
unconstitutional?

Federalist 78
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“Interpretation of the law is the proper and peculiar province of the courts. A constitution is, in fact,
and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain
its meaning, as well as the meaning of any particular act proceeding from the legislative body. If
there should happen to be an irreconcilable ….”

Martin v. Hunter’s Lessee (p. 45)

A. Hunter claims the state of Virginia gave him the land. Martin, a
British subject, claims he owned the land and there was a treaty stating that Virginia couldn’t
take the land and give it to Hunter. Trial Court finds for Martin. Ap Ct. Reverses. Martin
appeals to SC.
B. Issues: Can the SC override state courts on constitutional issues?
Whose land is it?
C. SC finds for Martin and remands to VA court re re-rule per SC
instructions
1. Virginia doesn’t issue ruling consistent with SC (says SC has no appellate
jurisdiction, declares certain points of the Judiciary Act is unconstitutional b/c it
infringes on their state sovereignty – VA SC and state law is supreme)
2. (Oddly, they were just inviting the case to go back to the SC as judicial review had
established that SC can rule on issues of constitutionality of laws.)
D. SC responds:
1. Article 3 says that jurisdiction is a function of the case, not a function of the court.
a. They have jurisdiction – heart of the claim is lack of jurisdiction
b. Can get to jurisdiction in several ways
c. Treaty
d. Diversity case
e. Federal question
f. Foreign state subjects (Martin’s British)
E. Art 3 (references Art 2); “In all the other Cases before
mentioned…”
1. US Constitution is the Supreme law of the land. (Article VI)
a. Constitution limits state sovereignty
b. States took same oath to uphold the Constitution
c. States can differ between themselves and have distinct laws (lack uniformity)
(and states are still sovereign in certain areas) but otherwise, we’re not all
living under same Constitution
d. Constitution can’t mean different things in different places
e. When laws conflict w/ Constitution, Constitution wins (Supremacy Clause)
F. Policy note/argument: Judges may be biased if one party if from
the state and one is not.
G. Holmes (1920): Martin a more important case than Marbury; US
would not end if couldn’t declare and act of congress void but would end if couldn’t
regarding state law
H. Martin gets his land back
I. Note cases (p. 51):
1. Cohens v. Virginia: Same principles apply in criminal cases, not just civil law
2. Cooper v. Aaron: SC segregated public schools unconstitutional, AK disagreed
(failed to comply w/ desegregation order)
a. AK says were not ordered to by Brown v. Board, not party to legislation
b. SC says idiots, saying something is unconstitutional applies to everyone

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 c. Goes beyond Marbury (not just that SC can tell Congress laws
unconstitutional – now, SC is ultimate authority determining
constitutionality)
d. “federal judiciary is the supreme in the exposition of the law of the
Constitution”

McCulloch v. Maryland (p. 55)

A. U.S creates second chartered national bank.
1. Bank is controversial - opposed by many Jeffersonian Republicans as an
unconstitutional extension of federal power.
2. Closure of first bank wrecked financial havoc (needed currency, money supply)
3. Many states – including Maryland – don’t like the idea so they tax the banks.
McCulloch, bank cashier, refused to pay the tax. Maryland sued
4. SC reasserted power of judicial review
B. Issues that the court must decide:
1. SC says Congress has the power to incorporate such a bank (Art 1, § 8)
a. Constitution not meant to restrict Congress from delegated duties
b. “Necessary and proper” clause [“Congress shall have power…to make all
laws which shall be necessary and proper, for carrying into execution the
foregoing powers…”; raising revenue, coin money, collect taxes, regulate
value, pay debts].
1. Maryland says this limits Congress’ abilities to those things which are
absolutely necessary and can’t be regulated elsewhere.
2. Marshall says necessary has many meanings and is no term
“absolutely” modifying it, as in other parts of Constitution, so framers
must not have intended it to be an absolute necessity. (textual
argument)
c. Clause located in section of Constitution that gives Congressional powers
(Art. 1, §8), not the one that limits it. So, clause in and of itself grants power
to Congress rather than limiting it. An additional enumeration.
(enumeration argument)
d. Had been done before, in first sessions of Congress. And many of them
were at the Constitutional Convention. Since they helped to create the
Constitution, they would know what they intended. They debated the
Constitutionality of it at the time and decided it was in line with what they
had drawn up in the Constitution. (original intent argument)
1. So why didn’t this argument work in Marbury v. Madison?
2. If the court doesn’t decide this specific issue, that the legislature is
interpreting the Constitution instead of following it.
e. Sword and Purse tied together. Congress needs to create bank. (really is
necessary)
f. Also, was a lot of debate about bank formation at conception (already went
over many of these issues); and tradition (fact is relied on) carries some
weight
g. Who determines what’s necessary and proper?
1. Congress: clearly sanctioned by establishing the bank
2. President: could have vetoed establishment of bank but did not
3. Court: now reviewing
a. TEST “Let the end be legitimate, let it be w/in the scope of the
Constitution, and all means which are appropriate, which are
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 plainly adapted to that end, which are not prohibited, but
consist w/ the letter and spirit of the Constitution, are
constitutional.” ~Marshall. Ex. Of legitimate ends: to pay off
national debts from war; ends and means must have legitimate
connection
b. Also, SC gives deference to other branches of government
(Congress enacted, president signed)
h. Marshall dismisses the 10th Amendment argument that the duty should be
delegated to the state because it has not been specifically delegated to the
nation.
2. SC says states can NOT tax such a federally charted bank
a. “The only security against the abuse of this power, is found in the structure
of the government itself”; SC justified in departing f/ the text or interpreting
it in certain ways when it reinforces representative government (structural
argument)
b. Power to create entails the power to preserve; the power to destroy, when
wielded by another hand, is contrary and hostile to the power to preserve.
“The power to tax is the power to destroy.” Could over tax and destroy the
bank.
c. When the Constitution doesn’t directly speak to something, the court should
err on the side of representation. The people of Maryland are imposing a tax
on the entire country. The people of the nation did not elect the Maryland
government, so they are being taxed without representation. A national
interest, w/ national control, federal government gets to control it b/c we all
have a say.
d. Maryland isn’t loosing any rights. Were it not for the Constitution there
would be no bank to tax. Can’t say that Maryland came first so its rights
came first, and say that prior to the Constitution they could tax the bank
because prior to the Constitution no bank was allowed.
e. Supremacy Clause
1. Power is given by the people, acting through the state and federal
government
2. States CAN tax generally (own state citizens), just not the federal
government (are sovereign but power is absolute – limited by federal
government)
3. states can try to block/repeal (through legislative avenues)
4. In conflict between state and federal powers, federal wins
5. Constitution grants powers AND sets up structure that constrains
powers (so are not abused)
6. If MA allowed to tax something that’s federal in nature, other states
don't have ability to control exercise of that power (allows each state
to obstruct federal powers)
f. “In considering this question then, we must never forget that it is a
constitution we are expounding.” ~Marshall.
1. Therefore, interpret Constitution expansively
2. If Constitution answered all questions, document would be huge
(traditional meaning argument)

Calder v. Bull p. 69
A. Is this an ex post facto law? No.
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 B. Highlights different forms of Constitutional interpretation.
C. Is Natural Law included in interpretation of the Constitution?
D. Justice Chase – legislature cannot exceed their authority beyond natural law (rights inherent
to people, preexist government; not necessarily written)
1. Natural rights are a higher power that has to be answered to. An “unwritten
Constitution” of natural law, which is enforceable against the states even though they
are not in the Constitution.
2. Law that contradicts natural law is not law (courts have to strike down; Judges have
power to strike down enactments b/c natural law is part of the Constitution; in fact
isn’t even a law)
3. Declaration of Independence: “All men… are endowed with certain unalienable
rights…”
4. These rights constrain the legislature and supersede government laws
E. Justice Iredell – Does not support natural law, as there is no fixed standard, difficult to
implement.
1. Power of legislature given by the people
2. Courts don’t have power to strike down such a law
3. Fears that people might disagree on the interpretation of natural law. Fears
Constitution will be usurped by natural law.
4. Gives too much power to judges. Nothing to constrain judges’ discretion. Make
decisions based on moral judgments rather than constitutional ones.
5. If judges are given this kind of power, we don't know what they will do (are more
likely to agree about what Constitution says b/c is written than we are about natural
laws that are abstract)

Constitutional Interpretation:
Originalism – fixed meaning of the Constitution, constrains judges. See pg. 685
Natural Law – moral order that pre-exists government
Moral Arguments – representation reinforcement
Tradition – common law and precedent
Shared understanding – popular will of the people

Controlling the Court:

“For myself it would be most irksome to be ruled by a bevy of nine Platonic Guardians, even I knew
how to choose them, which I assuredly do not”
~ Judge Learned Hand

“[If] the courts are free to write the Constitution anew, they will, by God, write it the way the
majority wants”
~ Justice Antonin Scalia

A. Amend Constitution
1. House and Senate must both support by 2/3 OR 2/3 of the states can call for
Constitution Convention; THEN ratified by ¾ of sates
2. Long and difficult process.
3. Overrides court interpretation by changing Constitution.
4. Some limits to what can be amend
a. Can’t deny a state its equal representation in the senate

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 b. Slavery and apportionment of taxes could not be amended until after 1808
B. Judicial Appointments
1. President nominates; senate advises and consents.
2. Allows for influence on future court (not lots of control)
3. Imperfect means of controlling the courts. Can change numbers of justices;
president can’t be sure that justices will vote the way they want to. (ex: Souter,
O’Connor, etc.)
C. Impeachment
1. Judges hold their offices during good behavior
2. Only one justice was impeached: Samuel Chase; Impeached but not convicted, so
retained seat.
3. Not a very prominent or commonly used check.
4. Judge has never been removed, although threat of impeachment can influence
decisions
D. Popular Opinion
1. Taking into account what the public wants. Protests, etc.
2. Probably does not have much direct effect, more of a personal choice.
3. “The Supreme Court follows the election returns”
4. Court does not have power of judgment enforcement on its own
E. Jurisdicitionalism
1. Does Congress have the ability to limit the jurisdiction of the court? See Ex parte
McCardle
2. Congress determines what kinds of cases courts can hear and establishes lower
federal courts

Ex parte McCardle (p. 78)

A. During reconstruction, Southern states treated like conquered countries until readmitted
to union. Being run by military (martial law after Civil War). McCardle writes for
newspaper against reconstruction (challenging constitutionality of Reconstruction).
Military arrests him for libel, disturbing the peace, etc.
B. M petitions for a writ of habeas corpus (under Congress’ 1867 provision), to challenge
incarceration; government has to produce M and bring charges against him.
C. Prior to SC decision, Congress repeals Act (the new one), overriding a presidential veto
because they did not want the question of constitutionality of reconstruction before the
court. SC had subject matter jurisdiction to hear case under the statute
D. SC now cannot rule because no longer has jurisdiction. Under Art 3, courts have
appellate jurisdiction, with such exceptions granted by Congress. Exceptions must be
enumerated (Art 3 jurisdiction not enough – need law granting jurisdiction, too)
E. Note case: Ex parte Yerger also challenges reconstruction on habeas corpus (filed under
original/older habeas corpus act so SC had jurisdiction over case)
F. Limits to Congressional power to limit jurisdiction: if not within Art. III to begin with,
Congress cannot grant it to the court. (McCullough)

US v. Klein (p. 82)

A. SC ruled that Congress cannot tell SC how to rule
B. While Congress always threaten to take away jurisdiction, they rarely do so (if/when they
do, they make sure there is some jurisdiction left)
C. Popular opinion will check an over-zealous congress
D. “Cases” and “Controversies” (listed in Art III) are further limits on court power

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Case or Controversy (limitations on court):
A. Article 3 frames judicial power in terms of cases and controversies.
1. Separation of power principles (relate to policy)
2. Court cannot initiate issues – has to actually have a case; so courts lack agenda
control (legislative and executive branches can address whenever they want)
3. Useful b/c: 1) judicial restraint, 2) resolve concrete disputes, 3) promote individual
autonomy/self-determination (person injured only gets to sue)
4. Court only resolves what it has to (not other, larger issues); minimal (not grand
pronouncements about how the world should be); vindicate individual rights in the
case
B. SC cannot issue Advisory Opinions
1. Can only rule on constitutionality of a law when a specific case has been brought
before them; absent a controversy, court cannot give opinion
2. Court cannot advise other branches of government
C. Standing Requirement
1. Have to have a cause of action; third party cannot sue for someone else (close family
might be OK); person actually w/ a stake in controversy should bring issue forward
2. Elements
a. Injury in fact (an invasion of a legally protected interest which is concrete and
actual/imminent)
b. Causation (causal connection between injury and conduct complained of)
c. Redressability (must be likely that the injury will be redressed by a favorable
decision; positive result w/ direct effect on P)
3. Cannot waive standing b/c it’s part of establishing jurisdiction
a. Further you go in the case, have to show more and more standing (requires
more evidence)
b. Constitutional limits (Art 3): two general types
i. Art III standing and Prudential standing (reasons why courts may pass
on the case)
ii. Su esponte
D. Political Questions (outline p.)

Standing:
TEST: to determine standing, court must “ascertain whether the particular plaintiff is entitled to an
adjudication of the particular claims asserted.”  see Allen

Allen v. Wright p. 87
A. IRS refuses to revoke tax-exempt status of segregated private schools; parents of African-
American school children sue IRS for policies that hinder the desegregation efforts
(wanted IRS to revoke tax-exempt status); charge:
1. Failure to enforce: IRS failed to enforce federal law stating that racially
discriminatory schools are not eligible for federal tax exempt status
2. Hinder desegregation process: This continued exemption encourages the schools
to continue to be segregated (slowed desegregation process; policy means there
will be more discriminatory schools)
3. Stigma: P harmed directly by the mere fact of discriminatory schools –
desegregation is not going to happen; that government is involved w/ segregated
schools is an associated stigma that is itself an injury
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 B. Court Rules they have no standing because:
1. There was no causation: not direct enough a link between IRS action and
discriminatory policies of schools.
2. Court does recognize general and social harms of segregation, but states that these
are not enough injury to hold standing.
3. There was no direct injury: the P’s furnished no proof, nor did they allege, that
their children were discriminated against (stigma is not a sufficient injury)
a. If court had held they were injured, anyone w/in the stigmatized group
could bring suit
C. Constitutional rules ONLY apply to government institutions – unless pass a statute
that says otherwise, other institutions can discriminate w/o violating the Constitution
(may be violating federal law, but not the Constitution)

UC v. Bakke (supplement?)
A. P can’t prove would have gotten into med school but for the program, but still has
standing (like contractor case)
B. Both institutions are governmental so gives Constitution violation basis
C. As for standing, P alleges decreased chance of getting in – certain spots set aside so he’s
not even able to compete for those spots no matter what he did (he did apply and was
denied admission)
D. Lost opportunity to go (or at minimum, his opportunity was diminished)

Lujan v. Defenders of Wildlife (p. 92)

A. Fish and Wildlife Services changes policies (section of Endangered Species Act no
longer applies overseas); DW files suit that includes two people who allege direct,
personal harms (will not have the opportunity to view and enjoy these endangered
species in the future)
1. ID’d specific projects receiving federal support that may not get money b/c of this
change and ID’d specific species harmed by projects
2. Have seen these species, would like to go again
B. Court Rules no Standing, because:
1. Injury: the women cannot prove injury in that they have no concrete plans to go
and see these animals so they cannot prove that they have been personally harmed
(like Bakke, argued lost opportunity – at least diminished)
a. Need more than an ideological interest for standing (plane tickets could
symbolize that there’s more at stake than simple mental harm)
b. Just b/c congress says anyone can sue, does not mean anyone can sue;
even though congress intended all people to be able to sue, is not enough;
P must be among the injured; cites Marbury (just b/c all injured f/
government not enforcing the law, does not = standing)
2. Causation: Further, women cannot prove that these government agencies actually
have an impact on these animals in the wild.
3. Redressability: carrying out their wishes may not fix the problem
a. No guarantee that AID and other organizations involved would have to
follow the directives of the Secretary of the Interior. (Although according
to Adler, it is unlikely that this would be the case.)

Friends of the Earth (supplement?)

A. Despite company violating law, there was no detectable difference in water quality

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 B. Friends file affidavits from people living near water; were specific individuals living in the
area w/ specific claims; their subjective fear is reasonable
C. Non-tangible harms can be real injuries (don’t expect people to be chemists and other
industry experts; do expect that if company is complying then are safe and people can rely on
that safety; if company violates permit violations, don’t expect people to test the water
themselves)

EGUSD v. Newdow (supplement p.)

A. Newdow’s daughter and mother (who has primary custody) don’t mind saying “under god”
(custodial issue adds a wrinkle making the case less clear-cut, messier)
B. Article III: satisfies all three criteria; relationship w/ daughter – her saying it injures him
C. Court still does not want to hear case b/c state law gives final decision
1. He can’t vindicate daughter’s rights; he’s not vested w/ right to appear in front of
court on her behalf; does not have prudential standing
a. Means the Court has power to hear case, just thinks they should not hear it
(not prevented hearing for any Constitutional reasons)
2. Rhenquist have to recuse himself; thus, either Newdow would have split the court
in half (thus deadlock and state ruling standing) or ruled against him (probably
not have won outright)

Taxpayer Standing: Schlesinger v. RSW and US v. Richardson

A. As a general matter, being a taxpayer and thinking that the government isn’t spending tax
money properly (even if government violating the law), isn’t enough for standing (when we
share harm w/ many other citizens) because we are all tax payers. Not particular enough.
B. In both of the above cases, there is a genuine Constitutional issue at stake. But those who
brought claims had no specific harm, much like the stigma in Allen. There is a harm, but it is
not particular to the plaintiff. (Officer in reserves elected to congress, violates constitutional
provision, but doesn’t factually harm person who files suit.)
C. Think of standing in terms of advisory opinions. Court cannot issue an advisory opinion.
Must have actual case. For actual case, must have actual harm. If not actual harm and thus no
standing, it essentially reduces the courts opinion to an advisory one. (Stretching the court’s
role too far.)
D. Flast v. Cohen: only case where did get standing; asserting First Amendment violation
means as a practical matter you are more likely to get standing
E. Ripeness and Mootness (think of R and M as “standing in time”)
a. Rightness – case has been brought too soon.
i. Actual litigatable occurrence is too far off.
ii. Not actual or imminent injury, injury is in the future
iii. Worry about being prosecuted when you probably won't be
iv. Bar against speculative or remote claims/government policy
v. If house passed law and senate has not passed yet
b. Mootness – case brought too late.
i. The actual occurrence is too far in the past; it’s over, P no longer has stake
ii. No case or controversy b/c of passage of time (maybe law repealed)
iii. Exception: “capable of repetition yet evading review.”
1. I.e., abortion; because of time sensitive nature of claims, would
otherwise evade review; assume people w/ best standing are pregnant
women; takes more time to get through system than to carry to term;
will be other pregnant women in system (all w/ same time constraint)

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 2. i.e., dropping charges against person to keep case f/ being heard

SC Jurisdiction – when will SC take a case?

 On Appeal; for true appellate jurisdiction, SC has to take case if they have jurisdiction (no
choice)
 Certiorari
o File brief w/ SC requesting that they hear the case
o Not mandatory for SC to hear case – SC chooses to take by at least a vote of 4 (does
not have to be a majority)
 Standing
o If SC says there is no standing, then there never was (wipes out contrary rulings of
lower courts)
o Some argue that is OK for Court to maintain control of own agenda – to pick and
choose cases
 SC will almost always take a case when:
o If there’s a circuit split
 Lack of resolution/uniformity – one circuit court rules one way, another the
opposite
 Court does better job answering question if there’s been more discussion
around the issue
o Federal statute struck down
 “Independent and adequate state grounds”
o When SC looking at case
o If judgment below has independent state grounds, SC has no jurisdiction
o I.e., state passes law banning shotguns
 Independent of federal question and adequate: fully supports judgment (same
outcome if case overturned or not)
• Makes entire ruling dicta
 Even if involves a federal question
 Statue disappearing is the same outcome b/c state law does not change??
 Has to be some basis in state Constitution/law

Political Questions
Like standing, political questions are an issue of judiciability
What makes a political question? see Baker C.
 Recall Marbury; Court should occasionally pass on a case
o Some branches of government get to act in certain ways and are responsible for
making sure Constitution not violated (either way, if act Constitutional or not, certain
matters not for court to decide)
 Vested legal right v. political question

Baker v. Carr (p. 112)

A. Tennessee was not reapportioned districts in over 50 years, despite dramatic changes in many
areas (esp. in urban areas), in violation of state law; case brought under violation of “one
person, one vote” (violation of equal protection clause of the 14th Amendment)
B. What constitutes a political question? Issues that deal w/:
a. Separation of power; war (dates/relations); foreign relations; enactments by congress
b. If characterize case under one of the below 6 categories = a political question
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 c. TEST (in decreasing order of importance; fair amount of overlap between these)
i. Textual commitment to another coordinate government branch
1. Someone else’s job; as dictated by Constitution
2. Coleman v. Miller: Court cannot decide how long amendment can
remain open before ratified; left to another branch b/c Congress
initiates amendment process
3. Nixon: Impeachment of judges, textual commitment: congress given
authority to try judges (therefore not a court power)
ii. Lack of judicially manageable standard (lack tools to handle)
1. Ad hoc decision making (is ok for congress, not courts)
2. Issue of consistency for courts – supposed to follow “rules”
3. Difference between pure policy decisions of congress and judges
4. Nature of what courts do – not institutionally well suited for
addressing/dealing w/
iii. Impossibility of non-policy decision
1. Similar to previous
2. In our system, don't want courts making decision based on policy
choice: want policy choices to be made by congress
iv. Disrespect to coordinate branch
1. Difference between Textual Commitment and this: if courts are to
resolve this issue, would require too much work/effort/meddling by
courts
2. Maybe are cases that can't be heard w/o mucking in affairs of other
branches; w/o suggesting other branches cannot operate w/o court
meddling/approving/supervising
v. Need for finality in prior political decision
1. Are certain decisions, once made, need to be upheld
2. I.e., cecessation of hostilities in war
3. Luther v. Borden
a. Many government acts taken into question
vi. Potential for embarrassment/confusion
C. What about Luther v. Borden?
a. Dispute in RI. Trespass claim. Going after treasonous person. He is arrested and
detained. Agents say that they were government agents and thus have immunity.
Treason was charged on the basis of the fact that two opposing political factions were
vying for control in RI.
b. Court won’t hear case because it is a political question.
c. Why can’t court hear case about whether these people broke into the home under
government authority but can here about the voting rights?
i. In this case, appeal was under the Guarantee Clause., art. IV, §4, which does
not give the courts a clear standard on which to judge. No bright line. No
other Constitutional questions to pull it into Federal Court
ii. Therefore, the clause itself is nonjusticiable.
iii. In Baker v. Carr, the Equal Protection Clause is justiciable.
D. Justice Frankfurter dissents on the basis that this looks like a Guarantee Clause Argument in
disguise.
a. ‘We do law, we don’t do politics.’ Court needs to avoid political entanglements
b. That includes entanglements with the states. Concerned with federalism.

Davis v. Bandemer p. 118

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 A. Defendants are accused of gerrymandering – drawing district lines to ensure that their
candidates will benefit.
B. Political question? It is unclear. Justice White states that due to Baker v. Carr the court can
hear questions about districts and therefore it is justiciable.
C. Plaintiffs loose on the merits – no violation of EP clause. But case was heard.
D. Justice O’Connor doesn’t believe that it is possible to determine and construct districts in a
manner that is fair to everyone, because the claim is purely political.

Nixon v. U.S. (p. 121)

A. Federal Judge impeached. Suit on Art. 1, §3 saying the Senate did not “try” him b/c only
committee viewed evidence, not whole Senate. So even though whole senate impeached
him, they didn’t “try” him. (argued that wd “try” in Constitution required proceedings to be
in the nature of judicial trial)
B. Court finds this is a political question: the word “try” is too opaque to be ruled on.
C. Found it unseemly in terms of reviewing the Senate’s job, interfering with another branch’s
powers as specifically designated by the Constitution.
a. Sole power of Senate – therefore Senate’s job to determine the meaning of the word
“try.”
D. “A controversy is nonjusticiable—i.e. involves a political question—where there is a
‘textually demonstrable constitutional commitment of the issue to a coordinate political
department; or a lack of judicially discoverable and manageable standards for resolving it.”
E. Rehnquist suggests impeachment is the only governmental check on the judiciary
a. If Senate wanted to “try” Nixon by tossing a coin, SC still could not do anything
b. Does not matter if is unconstitutional, issue is whether case is nonjudiciable (i.e.,
political question)
F. US Dept. of Commerce v. Montana (1992): “[When] invoking the political question doctrine,
a court acknowledges the possibility that a constitutional provision may not be judicially
enforceable. Such a decision is of course very different from determining that specific
congressional action does not violate the Constitution.”
G. Goldwater v. Carter (1979)
a. Issue: Can the president unilaterially terminate a treaty w/o approval of Congress?
b. Court of Appeals found that president did have the authority to unilaterally terminate
c. SC reversed stating that:
i. Although the Constitution outline ratification of a treaty it did not address the
abrogation of a treaty;
ii. Thus different termination procedures could be used for different treaties;
iii. Thus the issue is one of political question

Supreme Court Jurisdiction:

-Certiorari, not standard appeals. Must get the court’s permission to hear the appeal. It only takes 4
votes to take a case, where as it takes 5 to make a decision.

Bush v. Gore (in supplement)

• Issue of recount; Gore sought recounts in 4 heavily Democratic counties; all 4 counties
extended time for recount (2 counties still did finish); Secretary of State certifies the results
without the finish of the recounts; Gore brings suit
• Trial court rejects Gore’s complaint; FL Supreme Court reverses
• US Supreme court intervenes twice
o Vacate FL S. Ct. decision and remand

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 o FL S. Ct. issues another decision with technically the same outcome
o Goes back to the US Supreme Court and the Court reverses for a final time
• Questions to think about:
o Did SCOFLA order violate Equal Protection Clause?
o Did SCOFLA order violate Article II?
o Was the case justiciable (did it present a political question)?
o Should SCOTUS have taken the case?
• What was the basis for the equal protection claim?
o Standard for determining the vote is what was the intent of the voter
o 1. Lack/variation of standards (in the various precincts) to determine the intent of the
voter
o 2. Overvotes were counted in some counties and not in others
o 3. Miami-Dade recount that was not finished was going to be concluded
o 4. No clear way to object to the application of incomplete standards
o These 4 things in combination rise to the violation of equal protection
o Note: 7 of 9 justices found there was an equal protection violation
• The equal protection claim is where the holding of the case comes from
• Rehnquist, Scalia, Thomas:
o Article II: “Each State shall appoint, in such manner as the Legislature thereof may
direct, a number of Electors…”
o FL S.Ct. rewrote legislative statue by extending certification date
o “Textualists” judges very concerned about FL S. Ct. ignoring text of legislative
statute
• Had Bush v. Gore been prior to Baker, case would have been ruled a political question
• Justice Breyer’s argument: “no preeminent legal concern, or practical concern related to legal
questions, required this Court to hear this case, let alone to issue a stay that stopped Florida’s
recount process in its tracks.”

Powers of Congress:
Commerce Clause
Gibbons v. Ogden p. 143
A. NY legislature grants sole rights to waterways in NY state to Fulton and Livingston. F&L
license Ogden to operate a ferry between NYC and Elizabethtown Point NJ.
B. Gibbons operates a boat on same route (licensed via federal act). O sues, says G violated the
NY statute. Granted injunction by state court.
C. Can Federal Act overrule state statute? Does Congress have the right to create this act which
asserts jurisdiction over waters w/in NY?
D. Commerce clause: Congress granted the rights over commerce by Constitution. Congress
may regulate interstate commerce. Court tries do define “commerce”
a. The congress shall have power…to regulate commerce w/ foreign nations and among
several states…
b. Traffic, intercourse between states, movement of goods/svcs/money/etc.
c. Marshall asserts navigation is understood to be part of commerce
d. Further, is necessary to regulate streams, etc. as they go through multiple states
e. Marshall defines “regulate” as to proscribe the rules and make regular (and
enumerated several areas that should be left to the states – bottom of p. 145).
E. So what remains beyond Congress’s reach?

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 a. Regulation includes promoting commerce. Does it also include limiting commerce
(see Hammer case)?
b. Limits:
i. Completely within a state
ii. Does not affect other states
iii. And is not necessary to interfere.
1. Intrastate commerce, state specific regulations that do not affect other
states, then congress has no power.
2. Acting upon an object before it becomes an object of international
commerce also not allowed.

Hammer v. Dagenhart (Child Labor Case, p. 147)

A. Under commerce clause, Congress enacts the Child Labor Act prohibiting interstate trade of
products made in factories that employ children < 14, or >16 and work certain hours.
B. Father of 14 and 16-year old factory wk, contest Act unconstitutional and got injunction.
C. Court ultimately finds statute unconstitutional
a. Act does not regulate the commerce between states, but the employment practices.
b. Meddles in local matters (under Gibbons, goes beyond commerce clause)
c. “The goods themselves are harmless [When] offered for shipment, and before
transportation begins, the labor and production is over and the mere fact that they
were intended for interstate commerce transportation does not make their production
subject to federal control.”
D. Court rejects argument that allowing child labor unfairly prejudices non-child labor states by
increasing their costs. This is not the problem of the federal government. (to what extent
should SC second-guess legislature)
E. Dissent: (Holmes) ultimately, you’re just regulating commerce (does not care about child
labor); as long as you’re in the realm of commerce regulation (don't care about intent,
purpose, etc) just care about effect of regulating commerce

From Hammer to Wickard

• U.S. v. E.C. Knight (1895) SC strikes down statute regarding sugar manufacturing
(manufacturing is not commerce)
• Champion v. Ames (1903) lottery case  lottery/gambling bad so statute ok (state can
allows bad things w/in their own borders; Congress can only regulate things between
states – not w/in)
• A.L.A. Schechter Poultry v. U.S. (1936) not interstate commerce (regulation of
manufacture – what pay employees – is not commerce)
• Carter v. Carter Coal (1936) mining (manufacturing) is not interstate commerce.
• (significant split evolving into where line between manufacturing/production and
commerce breaks down begins w/ NLRB v. Jones)
• NLRB v. Jones & Laughlin Steel (1937) upholds prohibition for firing employees who
joined unions. Court says that labor in this huge company affected interstate commerce
enough for it to apply (more expansive interpretation of clause)
• U.S. v. Darby (1941)  minimum wage requirement for interstate commerce upheld.
Explicitly overturns Hammer and portions of Schechter (goods bought and sold are
commerce)

Wickard v. Filburn (p. 149)

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 A. Agricultural Adjustment Act sets quota for wheat production (to inflate wheat prices by
regulating quotas). Filburn has dairy farm and grows wheat for his cows and family
B. Filburn produces more bushels than his quota, but uses them to feed cows, etc. Argues no
commerce b/c was sort of manufacture/production that never left his premises (not buying or
selling wheat)
C. Court says act still applies.
a. Congress has right to regulate not only supply for wheat but also demand. When F
produces more bushels, he lowers his demand b/c he does not have to buy from other
farmers (if all farmers only grew allotment, all have to purchase)
b. Undermines government program if all milk producers grown own wheat
c. Need to stimulate trade – personal growth reduces control
D. Compare to marijuana sales (for medical use)
a. Not bought, given by friend (so no commerce); trivial use b/c so small use/amount
b. Federal government under commerce clause should not regulate consumption
c. Government says letting her go will then have to let others go which ads up to large
aggregate population; control of drug too hard when let some people get off;
undermines regulatory scheme
d. Wickard precedent says cannot use the drug
e. Allowed to prohibit lottery tickets, why not prohibit sale of drugs
f. If allow anyone to have it, there’s more of a market (more chance that folks will sell)
g. All illicit drug laws are based on commerce clause

Post Wickard:
Maryland v. Wirtz: Court upheld regulation of wages and hours of employees (any enterprise
engaged in commerce is a commercial activity and Congress can control). Any and all commerce 
not just interstate commerce. Wickard theory of effects.
Perez v. United States: Loan Sharking made federal crime under same theory (aggregate of all loan
sharks has larger impact together on national markets)
Heart of Atlanta Motel v. U.S. and Katzenbach v. McClung: Challenges to Title II of the Civil Rights
Act as it applies. Provision regulates motels and restaurants that use or accommodate interstate
commerce (travelers or supplies), stating they are not allowed to discriminate against clientele. P.
183, 184; If people don’t think they can eat or sleep in places when traveling, won’t travel; does not
overturn Wickard (Activity that’s subject to sanction here is an economic activity – whereas
Wickard took himself out of the market)

U.S, v. Lopez p. 186

A. Gun Free School Zones Act based on commerce clause. Court says this has nothing to do
with commerce (even though Lopez was gun courier and guns are objects of interstate
commerce – metal from one state, made in another, etc.)
B. TEST: 3 main reasons for Congress to regulate commerce
a. Channels of interstate commerce
b. Instrumentalities/persons and things in interstate commerce
c. Activities having substantial relation to interstate commerce (“substantially affecting
commerce)
C. Act is argued on substantial affect theory.
D. Link too tenuous (not commercial/not economic)– exceeds scope of commerce clause b/c
a. Schools too far from commerce
b. Not an economic activity

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 c. Can be seen as function of how many steps (too many between guns and commerce
vs. wheat and commerce) – but ultimately not important (go straight to activity – is
economic or not; always question of degree b/c no bright line)
d. Guns in schools can affect economic activity but is not an economic activity itself
i. Cannot let argument take aggregate into account (otherwise, you can argue
regulation of everything b/c everything affects economics)
ii. May, in theory, be some activity that’s not an economic impact but court has
never reached so far
iii. Thus, is incompatible w/ idea of judicially enforceable line
E. Concurrence (Kennedy): broader theory of commerce regulation. Congress has power to
legislate anything that has to do with national economy.
a. Balance of roles between states and nation. Schools generally left to states.
F. Concurrence (Thomas): Commerce applies in the most limited ways possible. Dislikes the
aggregation principle: It’s clever, but has no stopping point. Commerce Regulation should be
VERY limited (if have broad interpretation, why have enumerated powers)
a. Thomas is about 3 opinions from selling himself back into slavery.
G. Dissent (Stevens): Look at potential federal of interests affected. Guns are articles of
commerce and can be used to restrain commerce, so Congress should have the right to
restrict them anywhere.
H. Dissent (Souter): We should be careful when overriding the legislature. Congress decides
what relates to Congress. Rational basis test: Could a member of Congress who wasn’t
smoking crack come to this conclusion? Yes, b/c multiple studies have shown that education
has a huge impact on commerce. Also, if voters don’t like idea, won’t reelect representatives

Supreme Court does not have the right to hear state cases when the state court has ruled on an issue
that is independent and sufficient to the state. (If there are state Constitutional issues that are
sufficient to rule on the case, then the SC can’t take it.)

U.S. v. Morrison (Note Case) p. 197

A. Violence Against Women Act, gives Federal Civil Remedy stating that gender violence
affects interstate commerce, because women are less likely to travel to states where there are
high levels of violence against women.
B. Rehenquist says: Gender motivated crimes of violence are not [economic] activity.
C. Breyer thinks there’s economic impact from DV but court does not care

Federalism and Judicial Review:

A. Should the courts police the Constitutional boundaries of federalism
B. It’s Congress’ decision and voters have a way of dealing w/ screw-ups
C. Blackmun (p. 155): Judicial review not necessary b/c are other structural safeguards
a. Presidential veto: elected by electoral congress (on state lines)
b. Senate: used to be voted by state legislatures
i. Senators represent states, not proportional segments of the population
c. Enough structural safeguards to protect states
D. Powell disagrees
a. Members of Congress, once elected, become part of the federal government
b. Electoral college not enough pressure on the president
E. Enumerated Powers:
F. Bill of Rights
G. Are the protections of liberty based in government structure or explicit guidelines?
H. Should the Courts police the Constitutional Boundaries of Federalism?
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Treaty and War Powers

Missouri v. Holland (p. 203)

A. U.S. signs treaty with Britain to protect migratory birds. Congress then enacts law to protect
migratory birds with respect to the treaty.
a. Act similar to one was struck down as beyond commerce clause few years earlier.
B. Court upholds Act. Power to implement treaties is a matter of national interest related to
power of the senate to make treaties.
a. Court recognizes Congressional treaty power under the Necessary and Proper Clause.
Art. I, §8. Congress has power to do what is necessary and proper to implement a
treaty.
i. “But for the treaty and the statute there soon might be no birds for any powers
to deal with”
ii. Common pool resource is the birds
iii. If US just enacted protection of birds in US, Canada will shoot them all;
resources are not inexhaustible (change in perspective – used to think would
never run out)
b. Limits on the treaty power:
i. When an Act of Congress could not do so unaided, with respect to the powers
of the states. Congress cannot infringe on the rights of the states regarding
treaties.
ii. Issue of whether this infringes on States’ 10th Amendment rights.
1. In this case, no. But are cases in which Congress could cross line.
C. Could Congress, pursuant to another treaty, enact/adopt laws regarding gender motivated
violence or gun control in schools
a. Evidently, crossing state lines is not enough (guns not from TX where case was)
b. Has to be some interest that can only be protected by international intervention
(treaty rights cannot be used to restrict rights given by Constitution)
D. Note: used slightly different language (Constitution took on international responsibilities –
treaties – from previous government); also, keep in perspective – this is 1920, court strikes
down much federal legislation that today would be OK; some justices upheld under treaty
powers would not agree under any other congressional powers (i.e., commerce clause)

Taxing and Spending Powers:

 Referred to as the greatest powers (also controversial); tax has to reasonably relate
o Regulatory scope w/ in the scope of the commerce clause
Bailey v. Drexel Furniture
 Spending power: Congress has power to lay and collect taxes, duties, imposts and excises,
pay debts and provide for common defense and general welfare of US
U.S. v. Butler (1936 – pre Wicker) (p. 209.)
A. Pre-wicker case (before SC said Congress can use taxing and spending to regulate,
government say how much can grow) – 1937 the magic year – nothing struck down since
B. Processing farm products was taxed to create a subsidy fund to pay farmers to grow/harvest
crops, such as cotton.
C. Is this tax on the process Constitutional under the taxing and spending clauses of the
constitution?
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 a. Congress shall have the power to lay and collect Taxes, Duties, Imposts and Excises,
to pay the Debts and provide for the common Defense and General Welfare of the
United States.
i. According to Roberts, the general welfare provision does not apply to all
actions, but is simply a reason to tax. Is a limiting clause, not expanding.
b. So, how does the statute here apply? Is it to promote the general welfare?
D. Madisonian view: Clause is reference to the other powers enumerated in subsequent clauses
in the same section.
E. Hamiltonian view: Clause confers power separate and distinct from those later enumerated.
F. Roberts likes the Hamiltonian view: anything for the general welfare is fine, but not
something that regulates. Congress could not directly go out and regulate wheat production.
Therefore, cannot use taxation power to regulate it. Cannot use taxation as to an
unconstitutional end.
G. Stone Dissent: Congress is seeking to stabilize prices for agricultural products. During the
Great Depression, this is clearly related to the general welfare. Therefore taxation is no
different then subsidization.
a. Coercion could be a problem but this isn’t coercion
b. Limits and restraints would include those laws which are ludicrous.
c. Three Constitutional limits
i. “National” purpose
ii. Must not be used to coerce action left to state control.
1. Threat of loss is different than offer of gain (offering money not
coercive)
2. Conditional spending: that subject to meeting a condition
iii. “Patriotism of Congress and the Executive”
1. Self-regulation, “noble” instincts of politicians, conscience
2. SC is not the only branch required to consider Constitutionality of acts

Stewart Machine Co. v. Davis (p. 215)

A. Federal government is taxing firms for unemployment benefits. States also have programs.
Companies must pay federal tax, but if they pay a comparable state tax, they get a rebate
from the federal tax program.
B. In practice, the federal government is essentially subsidizing the state programs.
a. Basically an incentive for states to set up programs. Because the companies are
getting taxed anyway, so it makes states less hesitant.
C. Challenge on issue of coercion.
D. Cardozo says no, it is not. It is conditional spending.
a. Though likely to induce states to do this, it is not coercive. Does not force states to
start program. No taxpayer coercion.
b. “Nothing in this case suggests the exertion of power akin to undue influence, if we
assume that such a concept can ever be applied with fitness to the relations between
state and nation.”
c. “The petitioner’s contention…confuses motive w/ coercion...To hold that motive or
temptation is equivalent to coercion is to plunge the law in endless difficulties.”
d. If Congress wants to encourage participation by granting or withholding money, it’s
OK

South Dakota v. Dole

A. NOTE: this case helps interpret all that follow

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 B. Congress wants drinking age raised to 21. Makes law stating that cannot get federal highway
funds unless state drinking age is 21 (b/c encouraging drinking encourages drinking and
driving so it relates).
C. Congress is allowed to do this. Not coercive. But must be relationship between the restricted
funds and regulated behavior.
D. Limitations:
a. Has to be for the “General Welfare” (legislature needs wide berth here – if passes
both houses of congress and signed by president, it’s for the general welfare)
b. Unambiguous conditions; any clear conditions (where states are obligating
themselves to some condition, are waiving sovereignty, states have to KNOW theyre
doing it)
c. Relationship; has to be some relationship between purpose of the money and the
condition
d. Independent bars; government can't condition receipt of money on unconstitutional
conditions (usually comes up when money goes to an individual, not the state and
there’s a question of first amendment rights)
E. Conditions cannot be coercive
F. Dissent (O’Connor)
a. Accepts above test and applies it more rigidly than majority
b. Conditioning highway funds on 21yr old drinking age
c. Meets all of above tests except for relationship clause – depends on opinion
d. Can argue that giving money for building and maintaining roads/highways is too
remote from drinking age
G. Issue of coercion: language in Butler and Stuart Machine discussing why is (B) or is not
(SM) coercion; as the law stands today, court does not draw line here (regarding
impermissible or permissible conditions on spending for regulatory affects)

Implied Limits of Congressional Powers

 Should courts enforce “external” limits the same as “internal” limits?
 “Enumerated Powers”: referring to limits inherent in the grant of authority itself
 Are there external limits to federal powers (that come from elsewhere – such as Bill of
Rights)
 More controversial: implied limitations (Constitution structure, nature of sovereignty)

Garcia v. SAMTA p. 234

A. Background: Court had previously ruled in National League of Cities ruled that the nation
could not impose the Lair Labor Standards Act on state employers.
B. This case overturns Cities, upholding the application of FLSA to state employers.
C. Cannot use enumerated powers to in infringe on states’ ability to exercise core state
responsibilities (can set limits for employees in general, not for police officers specifically –
Garcia overturns this idea)
D. Upholds application of FLSA to state employers: law of general application (i.e., all
employers must pay all employees at least X), states don’t get a “pass” just b/c they’re a state
E. Blackmun’s majority opinion says: must look at the “traditional, integral or necessary” nature
of government functions. Does not believe that the Cities test is workable and that some of
these decisions should be left to congress.
a. Blackmun says test is arbitrary and that the manner in which the interests of the state
are protected from the reach of Congress is through the Commerce Clause.

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 b. Also says, states retain sovereign authority only in so far as the Constitution has not
divested them of powers by delegating them to the national government.
c. States interests are more properly protected by procedural interests.

New York v. United States (p. 237)

A. Congress enacts Low-Level Radioactive Waste Policy Amendments Act of 1985 to
encourage states to find own disposal sites or make agreements w/ other states to take from
them
B. Act created 3 incentives to increase disposal capacity
a. Monetary: federal government gives states financial incentives to develop disposal
capacity; f/ 1986-1992, states w/ waste facilities can charge companies f/ other states
for using their facilities. $$ goes to program to give monetary incentives to states
developing sites.
b. Access: states w/ sufficient capacity can ban importation or implement surcharges on
other states/companies importing; after 1992, states can bar companies from other
states from using their radioactive disposal facilities.
c. Take title: states w/o capacity have to take ownership and assume liability of waste
generated in state.
C. Monetary provision: Court approves
a. Congress authorizing states to burden interstate commerce (allowed by Constitution)
coupled with conditional spending as an incentive for the states (allowed by Stewart
Machine and SD v. Dole)
D. Access provision: Court Approves
a. States can (b/c of authorization of this act) decide not to take radiation
b. Congress can regulate interstate commerce, but states cannot. Congress allowed to
erect barriers. Constitutional duty to protect against states barring interstate
commerce
c. Dormant commerce clause
i. One reason for giving Congress power to regulate commerce between states
was b/c states were taxing each other (states cannot erect barriers to interstate
commerce absent congressional authorization, Art. 4, § 2)
ii. State cannot erect rules that discriminate against specific states (CA can say
only import apples w/ certain safely standards; cannot say only CA apples can
be sold in CA)
iii. Burden is on state to prove why something is more dangerous
iv. If something is facially neutral and neutral in effect, can't still be struck down
if imposes too much of a burden on commerce
E. Take Title Provision: Court does NOT approve
a. Federal Government is directing state to do federal work. Federal Government can’t
compel states to participate in a Federal Regulatory Program
b. Unconstitutional b/c is commandeering: federal government is forcing state agents to
act as Federal agents.
i. State faces the consequences for having to take title to the waste.
1. State officials must face political consequences of displeased
constituents.
2. State government also liable for any damages caused by leaking waste
ii. Garcia is not commandeering, because it deals with employment, which is
also applicable to private companies.
iii. Commandeering only occurs when that which is being regulated is something
that states do as states, not as employers, waste producers, etc.
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 1. This act only applies to states and the states are on the hook simply
because they are states. Took away the sovereignty of the state
legislature and was designed to.
iv. Waste is not generated by NY state – created by companies; forces NY to take
ownership and mandate state policies
v. Either way, state has to follow direction of Congress (not really a choice)
1. In some instances, federal government tells state government that they
will come in to regulate something (say, environmental pollution, etc.)
unless they (the state) regulate the people themselves (gives the states
a choice)
vi. Congress can't tell state government to enact legislation
vii. Waste is part of interstate commerce (entire reason for regulatory scheme is
interstate nature of disposal system)
viii. Sovereignty impacted here (but not in fair wage labor act); commandeering is
unconstitutional b/c
1. Sovereignty is curtailed when you regulate the state as a state
ix. Does NOT overrule Garcia
1. Difference between regulating states as states versus regulating
employers (public and private)
x. Undermines accountability
1. Both state and federal government independently get their power from
the people – when federal government dictates to state directly; federal
government:
a. Can tell state they can't do something
b. Can NOT tell state they MUST do something
2. Congress wants to pass the buck – keep from being held accountable
(makes states accountable instead)
3. States can't consent to this – it’s about the people
F. O’Connor: Constitution simply does not give Congress the right to require the states to
regulate. Constitution gives Congress authority to regulate matters directly and to pre-empt
contrary state legislation.
a. Congress could have directly regulated low-level radioactive waste. Instead pushed it
off to states. To save money or face, etc.
G. O’Connor: Does not matter that the state governors were a part of the creation of the act,
because the Constitution gives Congress the power to regulate individuals. Not the states. So
their consent is immaterial.
a. State officials cannot consent to the enlargement of the powers beyond those
enumerated in the Constitution.
b. Sites framers intent based on the switch: Articles of Confederation  Constitution.
Federal Government does things that the framers never would have dreamed of.
i. Under the Articles, the Fed. Government did not have the power to regulate
individuals directly, but do under Constitution. (Ex. Commerce Clause).
c. Policy Reason: States held accountable to constituents and financially. Federal
government getting states to do their dirty work for them.
i. Accountability is important. State does not have a choice on this section of the
act; do have a choice on other sections.
d. State Sovereignty is antecedent to Constitution. States existed before country did. 10th
Amendment recognizes this principle.
e. These interests of government are not necessarily the interests of the governed.
H. White: Dissents only to Take Title Provision.
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 a. Does not see distinction between general regulation and “commandeering” valid.
i. Unsupported by recent 10th Amendment cases.
ii. Does not agree with distinction between state functions and private functions
in terms of commandeering.
1. Says courts arguments are too general and thus fail to convince
b. White also disagrees with the importance question put forth by O’Connor.
i. Believes that this is an important enough issue to justify commandeering.
c. If states don’t like the policy, they should let the political process take care of it.
d. State “consent” is not irrelevant

Printz v. U.S. (p. 248)

A. Brady Bill: under commerce powers, Fed. government required background checks for gun
buyers; requires current police officers (CLEO’s; add to current duties) do background
checks – make reasonable effort to discern whether buyer is a felon, etc.
B. Issue of preemption (not just affirmative v. prohibition)
C. Government says no, like NY, can’t make state officials do federal functions.
a. NY requires policy making of state legislatures
b. Here, administerial task (not enforcing policy)
D. Is there a difference between requiring regulations like in New York and in this case? Printz
does not have adopt policy, just perform task.
E. Members of Congress can take credit for solving problem w/o making constituents pay
higher federal taxes.
F. Accountability issues w/ specific laws (more so than general laws)
a. Issue of recourse – do people have way to address
b. Have legislative recourse (member of congress, etc.)
c. Federal government imposes, have recourse
d. BUT if are private citizen being checked out, we have federal government requiring
background check but the states are doing it – gets confusing for who is accountable
G. Printz, is government officials checking government records
H. Commandeering is an issue any time you’re telling states what to do (just dictating does not
= commandeering, but is a red flag)
I. Can't commandeer state legislatures

Reno v. Condon (p. 251)

A. DPPA – states can’t sell drivers license info to marketing companies.
B. Why OK, when Printz says its not. Selling information about citizens isn’t an inherent right
of the state. The DPPA doesn’t require the states to regulate; it regulates states not as states
but as owners of databases.
C. Does not regulate states exclusively.
D. Is Reno v. Condon distinguishable from Printz
a. Federal government is allowed to tell wages

Been looking at Vertical Separation of Power (Federal  States)

Horizontal Separation of Powers (Executive, Congress, Courts)
 What role should Courts play in policing horizontal and vertical separations (textual and non-
textual protections); Preemption (such as in McCulloch where federal government takes over
– preempt operation of state law, so can’t tax or monopolize banking)
 Internal limits: enumeration of powers
o Commerce clause

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 o Spending clause
o Treaty power
o (Section 5 of 14th Amendment)
 External limits
o Affirmative limitations (explicit examples: bill of rights)
o Anti-commandeering Rule (not just looking at text but at the structure itself and
nature of limitations this structure/history itself imposes)
o Sovereign immunity
 States are immune to suit where they have not given it up (people cannot sue
states; can still be sued by federal government)
 (don’t see mentioned in first six articles) first appears in the Eleventh
Amendment
• Chisom v. Georgia
 Residual in the states
• Sovereign not b/c of 11th Amendment but b/c of limits of federal
government (inherent to sovereignty)
• States never gave up immunity when Constitution signed (people
never too that back)
• States have to consent to give up
o Are all kinds of federal programs (funding) that come w/
strings attached (have to give up sovereign immunity for
purposes of that grant; i.e., agree to be sued in exchange for
public transportation funds

Distribution of National Powers:

Importance of Separation of Powers – checks and balances, there is SoP, but not total.
A. Less Tyrannical…. Framers not big fans of Kind George, didn’t want an elected monarchy.
B. Efficiency: one branch can easily get bogged down, three branches can better delegate work
load.
C. Executive and legislative branch in conflict (and powers not wholly separate –
divided/overlapping; to what extent should judiciary police these boundaries)

Presidential Powers

Youngstown Sheet & Tube Co. v. Sawyer (p. 336 p.o.?)

A. Threat of steel mill strike. Pres. Truman issues executive order to keep producing steel
despite. Forces steel mills to come to the table and negotiate. Partly b/c Korean war effort
needed uninterrupted steel production.
a. Truman cites three authorities for his actions:
i. Nature of executive power (can make law in times of emergency)
ii. Power to execute the laws (Art. 2, § 3); can't do it w/o steel materials
iii. Commander in Chief gives power necessary to arm armed forces (War Powers
Clause allows him to get them their materials)
B. Justice Black for the Court says: Uh… no. Congress has to give President such power.
(execute laws – NOT create/legislate)
a. Commander in Chief argument:

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 i. Too tenuous a connection. Commander and chief does not have the ability to
take over private property in the U.S. for war means. Use of War Powers too
far removed from military concerns: private citizens, private company, etc.
ii. Other branches of government have war powers, too (Congress declares war
and appropriates money)
b. Executive Powers:
i. President can’t execute a law the Congress didn’t pass.
ii. Further, Congress had specifically refused to allow such an action a few years
earlier in Taft-Hartley Act, indicating that Congress did adopt legislation to
address these concerns, but decided not to give president this specific power
c. Residual Executive Powers:
i. There is no authority under residual executive powers. President has no law
making authority at all.
ii. President has some policy making decisions (who to prosecute, etc.) but not
all (what to prosecute).
C. Frankfurter, concurring: Congress implicitly withheld authority
a. But in certain circumstances, the action might have been acceptable. Perhaps, if
during a declared war, things would be different. There is ambiguity.
b. Congress’s interpretation of the Constitution should be relevant. Here Congress has
interpreted that the pres should not be allowed to intervene.
c. Pres already had Taft Act (chose not to invoke)
d. Founding fathers were familiar w/ concept of emergencies – would have added
necessity clause if thought was appropriate
D. Jackson, concurring: three types of presidential acts, varying in authority:
a. President acts with Congressional authority, authority is at a maximum
b. When acts in grey area (not expressly in or outside approval) absence of Congress but
can rely on Constitutional powers independently granted: “zone of twilight” in which
the president and congress’s powers cross
i. Congressional indifference may sometimes enable or invite independent
presidential responsibility
c. When acts contrary to Congressional approval
i. Presidential powers are at their lowest because he can rely only on his own
Constitutional powers minus the Constitutional powers of Congress.
ii. Can act in these situations when and only when
1. Executive does have sole power to do X
2. Congress cannot prevent president from doing X
iii. This case falls into this category. Congress has openly disapproved of similar
actions and president does not have a clear right to take over steel mills in the
name of the war powers. This is not a monopoly. This is not a strictly military
action, Congress has power to raise and support (and thus supply) the military.
iv. BUT, Congress didn’t explicitly prohibit steel seizures. If case was instead in
category two, it might come out differently because of Congressional
indifference.
d. Also says faithful execution of law does not apply: there is no law here. 5th
Amendment says government can’t appropriate property without due process of law.
E. Douglas, concurring: President could seize and then Congress could approve seizure.
(Provided that the court doesn’t stop it first.) But congress didn’t. The branch of government
that has power to pay compensation for seizure is the only one ale to authorize such seizure
or make a seizure lawful.

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 F. Dissent (Vinson, Reed and Minton): Bases theory on the “existing emergency” of war time.
Because work stoppage could threaten national defense. (Red Scare?) Only applicable to
materials needed for war. Otherwise president is powerless.
a. President filling the void – until congress passes legislation telling him those are not
his powers, President should be given wide berth
b. Assertion of power (power “grab”) was not hidden or sneaky (President warned
Congress)
G. Importance of “adverse possession” of Presidential powers (unbroken, past use of this
power); although many governmental powers are clear, others are not and historical use
might very well be used
H. Regan and air traffic controllers: ATC were federal employees, so Reagan could fire them.
Issue was what level of civil protecting were they afforded?

Dames & Moore v. Regan p. 348

A. Late 1970s in Iran, new government takes property, from US companies. U.S. freezes Iranian
assets in U.S., companies go to court for their $$, by attaching the property in U.S. Hostages
taken from U.S. embassy. To negotiate their release, companies had to relinquish claims in
federal court and use international tribunal/Iran courts
a. President nullified, transferred, and suspended court cases under the Emergency
economic powers act an Hostages Act
B. Court upholds the action of the president under the following theories:
a. Follows Justice Jackson’s Youngstown framework, but as a spectrum rather than three
distinct categories. Case Congress could not have anticipated situation in any detail.
i. But does say that the case is most like the first category (Congressional
Authorization) because congress implicitly approves of it through the passing
of similar acts – the International Emergency Economic Powers Act and the
Hostage Act.
1. IEEPA – allows president to nullify attachments and order the transfer
in any property in which a foreign country has an interest. So the
nullification and transfer were explicitly allowed by Congress
2. Hostage Act – gives president broad discretion when dealing with
foreign sovereigns.
ii. Just because Congress doesn’t explicitly prohibit a presidential action, doesn’t
mean they haven’t approved it. Since there is an implicit approval, the
president can rely on his powers.
1. Besides, Congress can’t anticipate everything and in similar situations
it has allowed similar actions. Congressional acquiescence, from prior
history of Congress, there is some approval.
C. Different from Youngstown in that Y says since congress has dealt with and approved it
before, assumption that they have not granted power in this case, because it was not
explicitly done. Here, congress dealt with this before and so will assume implicit approval
b/c have approved in the past.
a. Here, it’s foreign policy – president negotiates w/ other leaders (not efficient to have
Congress do so); if was a domestic company and domestic issue (Youngstown) then
Congress needs more leeway
i. President: Ambassadors (receives/appoints); Treaties; Commander in chief
ii. Congress: Senate confirmation of ambassador appointments; Senate
ratification of treaties; Declare war; Raise armies; Regulate commerce;
Control purse

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Military Commissions:
Issues for tomorrow: Does the president have the authority to issue an Executive Order for the trying
of non-citizen enemy combatants to be tried by military tribunal?
Which of Jackson’s categories would this fall into?
What do we make of the Milligan (Civil War, Indiana) and Quirin (Nazi’s tried for sabotage)
precedents? Should it apply to Moussaoui?

Can the president proscribe military tribunals for non-U.S. citizens in the war on terrorism?

Milligan: U.S. citizen (non-confederate soldier) tried for conspiracy in Indiana during the Civil War.
Court rules unconstitutional. Emergency powers do not extend to situations where there is already a
court system. Cannot have martial rule coinciding with an open court system. There was a pre-
established court system to try U.S. citizens.

Quirin
Declared war; Nazi saboteur. In times of war and great public danger the powers of the pres. As
commander and chief are not to be set aside by the courts without the clear conviction that they are
in conflict with the Constitution or the laws of Congress. No war time emergency like in WWII.
Undeclared war. But is not already established that Moussaoui is agent of foreign power…

The Congressional order applied only to those involved in September 11. So….
What about the right of the people to seek remedy? People of NY, DC, etc. Art IV §2(2), 10th
Amendment,

Basis for Order:

1. Commander and Chief
2. Joint resolution
3. §821 – talk about military tribunals, but don’t give approval for them
4. §836 – talk about military tribunals, but don’t give approval for them

Are 2-4 a congressional acquiescence? Perhaps through implication.

Does Congress have the right to give the president powers traditionally given to the judiciary?
Also, the Resolution is limited to Sept. 11 and prevention of future acts of terrorism.

Could it be argued that this actually falls into Jackson’s third category?
One of the points of separation of powers is the prevention of tyranny. Federalist papers.

U.S. v. Curtiss-Wright Corp. p. 403

A. Executive order generally addresses functions/operations of executive branch internally
B. C-W sells arms to Bolivia in violation of Congressional resolution authorizing president to
prohibit sale of arms (if he found such a prohibition would contribute to establishment of
peace in region; Pres. prohibited sale)
C. A Presidential proclamation that relates to international affairs is constitutional. Is efficient
and practical for the President to have these duties. To force him to share sensitive and
confidential information with Congress before he acts would waste time, imposing a
formidable barrier on international dealings.
a. President could NOT, on his own, say “no arm sales to Panama”; Congress has long
given president wide berth; not necessarily let him act totally independent
b. For the purpose of foreign affairs we must be a united government.

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 c. Court willing to give executive/legislature looser leash in foreign affairs
d. No question about powers having ever been in realm of states (always federal issue)

War Powers:
Congress
1. Power to declare war.
-should be harder to start a war than
to end one (last time was WWII)
2. Ratify treaties ending war.
3. Appropriate Money
President
1. Commander and Chief
2. First to end war  via treaty
3. September 18 resolution is more of
a blank check (not actual
declaration); Allows president to
make determination of what’s
necessary; Politically, allows
Congress to pass the buck (if
decision goes poorly, can say they
thought President would make
better decision, that didn’t vote for
THAT particular action)

Hamdi v. Rumsfeld
1. (note: Youngstown says in theatre of war, get more leeway; careful at home)
2. Detention of enemy combatants authorized by Authorization of Use of Military Force
a. President can use force to go after September 11 perpetrators
b. Court does not answer if President has this power on his own
c. Necessary and appropriate force authorized president, by congress
i. President determines who harbors terrorists and who to go after
3. Plurality, p. 57 (O’Conner )
a. Criminal prosecution not necessary – just prove who he is; don't have to let him go –
just have some proceeding to determine who he is
b. Judiciary dictates process by which captured combatant is treated (Scalia and Thomas
say no, Judiciary does not have power to dabble in war powers, Congress creates
processes b/c bulk of war powers is statutory)
c. Court assumes (but does not decide) president needs congressional authorization to
detain Hamdi (many acts permissible under international law that can’t do w/o
congressional permission)
4. Souter, p. 75
a. Prosecute in civil court or suspend habeus corpus
b. Congress hasn’t authorized detention, but they could – have power to detain (i.e.,
invoke Detention Act); can't hold him w/o it
5. Scalia, p. 80
a. Draws on Civil War cases where civilians tried in military courts
b. Can’t detain/try citizen in military courts unless habeus corpus suspended
c. Founding father’s general mistrust of military powers
d. Clearly in jurisdiction b/c in US
e. Try for treason, hang them; don’t hold onto them b/c they’re “dangerous”
f. Let him go or charge him
g. If congress wanted to do something about it, they could – but they did not
h. Habeus corpus: suspended only very select reasons (rebellion – internal war, or
invasion – NOT for overseas activities); ultimately, is congress’ decision to suspend
(not up to court)

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 6. Thomas
a. Judiciary can’t oppose any process; prefers bright line rules
b. Congress and executive have war powers – judiciary has NO such powers (C and E
can duke it out; J might be able to intervene when they’re really fighting; otherwise, J
is supposed to stay out)
7. Whole issue of US citizen not addressed – comes down to enemy combatant

War Powers Resolution: p. 410

 Is congress usurping power of commander in chief?
 Virtually every president has asserted that it’s unconstitutional
o Can't require president to submit to congress
o Iraq authorization specifically invokes war powers resolution
o Probably not a justiciable question

US v. Nixon
1. June 17, 1972, burglary of Dem. Nat’l HQ in the Watergate bldg in D.C.; over the next year,
discovered that burglars were connected to campaign to re-elect President and high-level
White house officials were involved in a cover-up
2. Pres. aide, Alexander Butterfield, revealed secret taping system in the Oval office and that
presidential conversations were routinely recorded.
3. Political pressure prompted an internal investigation and Attorney General Cox assigned
special prosecutor to the case. Cox subpoenaed tapes of White house conversations and the
president challenged the subpoena in court; SC ruled Nixon had to comply w/ subpoena;
impeachment still being decided.
4. The tapes made available w/ gaps showing Nixon obstructed justice by ordering Watergate
matter not be investigated; 3 days later Nixon resigned
5. Nixon says case is non-justiciable b/c Cox works for president
a. Can’t just get involved in any dispute between the branches of government
6. Court says there is executive privilege (but are limits)
a. Privilege is important
i. Don’t want to take attention f/ job (distracted by personal issues)
ii. Keeping sensitive info f/ leaking (classified; i.e., discussions of national
security, bombing, political negotiations, military interests,
diplomatic/military secrets, etc.)
iii. Executive branch might not function well w/o executive privilege (think
Marbury v. Madison)
iv. Each branch has independence of operating internal operations privately (need
branches to respect the others)
b. On the other hand, can't get a “free pass” just b/c are executives
7. b/c Nixon fired Cox, need someone to investigate executive branch independently
a. Morrison v. Olsen – independent council is Constitutional (Scalia was the lone
dissenter – somewhat prophetic in tunnel-vision and other problems in using; since
then, both parties been subjected to them and don’t like)
b. Political consequences pres suffered f/ firing Cox not enough (counter-argument:
unlimited budget, no accountability, only one target)
8. Impeachment: organization of power
a. House has “sole power of impeachment”
b. Senate has “sole power tot try impeachments” (some say this is one option and one
option only – can’t censure president or give other punishment)

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 c. Judgment only “removal f/ office” and disqualification
d. For “treason, bribery, or other high crimes and misdemeanors” (debate about what
these are)
e. None of these powers are justiciable

SUBSTANTIVE LAW

Equality, Race and the Constitution

Slavery: alluded to 3 times in the Constitution
Express protections of slavery and slave trade were specifically time-limited
Art. I §9 – limits Congress’s ability to stop slave trade prior to 1808
Art. I §2 – 3/5 person for purposes of Representatives in the House and taxation
Art. IV §2(3) – return runaway slaves to other states (Fugitive Slave Clause, though the word slave
is not used.)
Art. V -- no Amendments made prior to 1808, shall not affect the above.

State v. Post (1845; p. 423)

A. (not on test b/c is state case) Issue: can slavery exist under Constitution
B. Challenge to slavery under New Jersey Constitution.
a. NJC says all men are free and independent and have unalienable rights.
C. Court says no man under a form of government can ever be truly free. (which is a bunch of
crap rhetoric to prevent the banning of slavery.) But the basic point is, if you submit to a
form of government, you do not have absolute freedom. You are not free to go around
bludgeoning people with large sticks because it makes you happy.
a. Man’s right to freedom is subject to and regulated by laws.
b. We said free, but we meant free under the government.
D. Court also says that if the NJC’s writers had meant to abolish slavery, they would have
plainly stated it. (Element of political question.) The Declaration of Independence has similar
language but did not outlaw slavery.

Prigg v. Pennsylvania (1840’s)

1. By 1840’s was growing resistance to fugitive slave laws (requiring return)
2. PA (and other free states) adopted laws not allowing forceful return of person to return to
slavery
3. SC (Story) holds that statute is unconstitutional pointing to Art 4, § 2
a. Says Constitution was explicit on this (slaves and indentured servants)
4. After Prigg case, matters deteriorate – fugitive slave laws get worse

Dred Scott v. Sanford (1857; 7-2 decision; p. 427)

A. Scott is a slave owned by a doctor who dies, Sanford gets ownership. Scott sues for assualt
and false imprisonment, claims is no longer a slave b/c spent years in free states/territories
B. Won MO trial court, lost to MO SC, said he voluntarily returned to MO. Scott goes to fed ct
C. Up until this case, generally understood that slaves in residing in free states were free
(unclear if Scott knew this during his time in free states)
D. Sanford argues

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 a. Citizen of Missouri, free b/c resided where Congressional act “MO Compromise”
didn’t allow slavery (also in Ill., state not allowing slavery)
E. Court says:
a. No jurisdiction, b/c Scott is slave = property he cannot be a citizen and thus no
diversity federal jurisdiction. Shouldn’t continue w/ ruling if already say lack
jurisdiction.
i. Not just that slaves aren’t citizens, but the class of people who are black
ii. Concept of blacks as not citizens “fixed and universal,” though in some states
there is evidence that free blacks ratified the Constitution.
iii. If Scott was free in IL and MN, he relinquished freedom when returned to
slave states; Scott’s status is determined by Missouri, not Illinois, law; b/c
Scott returned to Missouri, Illinois law does not apply
b. Court does not have power to decide fairness of such laws (is up to legislature); just
interpret law (went so far as to say how inherently inferior slaves were, that keeping
them in slavery was for their own good)
F. MO compromise unconstitutional b/c slaves are property – can't take w/o due process
a. Taking slave away when traveling into another state is not due process
b. Congress substantively infringed upon liberty of slave owners
c. Art 4, § 3: (federal) government can take a lion (certain type of property) f/ owner;
why not slaves? Has to do w/ idea of due process as something more
d. Congressional act declaring the Louisiana Territory slave-free was void
e. Congress doesn’t have power to deprive citizen-owner of their (slave) property rights
f. Constitution expressly guaranteed right to own slaves for 20 yrs
g. Isn’t bring a salve into territory where slavery is prohibited violating the law of
making that person a slave?
h. Due process not just procedural, is substantive right (law saying can't hold a slave
would not be due process); Congress passes law through open process, people know
about it
i. Justice Taney wrong as far as his assertions of founding fathers intent (never intended
to include African Americans in “free men” statements); relying on original intent
problematic
i. Used assertion of race, not just slaves
ii. Were some free, African American reps. at Constitution ratification
convention; in some states, race was irrelevant to citizenship
G. First example of judicial review since Marbury but not denying SC right to do something, but
Congress’s. Ugly side of judicial review.
H. Court intended to put slavery issue to rest but had opposite effect: sped march to civil war
I. Additional Notes:
a. Paradox of Constitutional law: to enforce limitations on government power, is
necessary to create some countervailing government power
b. Before Civil War, were few Constitutional restraints on state government power (this
was intentional); after Civil War, became apparent that sometimes need to protect
citizens f/ state power (thus need stronger federal government)
c. Congress passed several legislative acts/amendments (particularly protecting newly
freed citizens)
d. Courts reacted by limiting the scope of these laws (slaughterhouse cases) making sure
only applied to newly freed slaves
i. US v. Harris, didn’t extend 14th Amd to private conduct of KKK lynch mob
ii. SC invalidated public accommodation sections of 1875 Civil Rights Act

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Reconstruction Amendments:
13th Amendment: Abolished Slavery
14th Amendment: Grants Citizenship and the rights therein to all persons born in the United States
and not subject to foreign powers. (Reverses Dred Scott, blacks are citizens.) §1, due process, equal
protection – to ensure states would protect all people equally; §2 revokes the 3/5ths person scheme
for representatives; §3 persons engaged in rebellion against the nation cannot take political office,
unless approved by a 2/3 vote of Congress; §4 U.S. won’t take responsibility for debts incurred by
the Confederacy; §5 Congress has power to enforce.
Equal protection
15th Amendment: Can’t deny right to vote based on race, color, or former servitude (male suffrage)
THESE AMENDMENTS ONLY APPLY TO STATE ACTION, see Cruikshank, bottom of pg. 434

Plessy v. Ferguson (p. 437)

A. Criminal statute in LA requires RR companies to provide and African-Americans to ride in
separate rail cars (does not require that the separate facilities actually be equal; exception:
nurse attending children)
B. “…every exercise of police power must be reasonable, and extend only to such laws as are
enacted in good faith for the promotion of the public good, and not for the annoyance or
oppression of a particular class…” p.438
C. Court says statute is Constitutional; enforced separation by race does not apply one w/ a
“badge of inferiority” (and if there is any such stigma, it’s only b/c African-American’s
choose to construe it that way)
a. How much should courts look at intent (practice) of statute vs. what it actually says.
b. Constitution only deals w/ civil and political rights – can only bring equality to these
areas; Constitution cannot create social equality
D. Can separate be equal? Not a white only rule. Blacks and whites were prohibited from riding
on opposite cars. But would whites really be stopped? Statute on its face is not proposing
unequal treatment
E. Why does the 14th Amendment prohibit segregation? Equal Protection Clause
F. Dissent by Harlan (only dissenting judge): Constitution is colorblind.
a. This law was intentionally created to exclude African Americans and perpetuate
inferiority
b. US not supposed to have a caste system; it’s in everyone’s best interest to have
people living together – equally
c. Government should not perpetuate hatred (ruling sanctions this)
d. Reasonableness of statutes is beyond jurisdiction of court (is a matter of public policy
for legislature)
e. Paragraph of “Chinese” people (who are seen as so different a RACE that can’t even
become citizens) can sit in white cars
i. Statute so ridiculous (unreasonable) that does not afford citizens rights
(loophole)
ii. If any group should be excluded, should be them (unclear if that’s what
Harlan really means)
f. Difference between people not voluntarily mingling as opposed to the law
prosecuting and jailing people who mix (state-enforced)
G. Jim Crow laws continued to develop and were upheld in court
H. Subsequent challenges to “separate but equal” facilities (esp. in schools), SC found lack of
opportunity unconstitutional and didn’t directly address the separate but equal doctrine

Note cases: background for Brown v. Board

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 A. McCabe v. Atchinson, Topeka & Santa Fe Railway (Note pg. 441)
a. If have dining car for whites, did not need to have for blacks – court struck down
b. If facilities provided for whites, cannot not provide; suggests separate must be equal
c. Prompted tactic of closing public facilities to prevent integration
B. Gains (pg. 444)
a. MO has all white law school, no black law school. MO pays to send qualified black
candidates to law school in a different state.
b. Court rules that this is not equal. Inequality lies in not being able to go to school
within own state.
C. Sweatt v. Painter
a. Same everything (one African-American student let into law school but has different
seat, table, etc.)
b. Inhibits freedom – restricts rights to move
c. Also, learning is a collaborative process – don’t get to mingle w/ others; comprised of
many intangible things

Brown v. Board of Education of Topeka p. 446

A. Consolidated 5-6 cases. All but one upheld segregation. Focused on intent of 14th Amnd
B. Brown would walk 21 blocks to go to a black school, white school 5 blocks away; clear
hardship and couldn’t be justified as residential segregation
C. Holding: separate educational facilities are inherently unequal
a. “We conclude that in the field of public education the doctrine of ‘separate but equal’
has no place. Separate education facilities are inherently unequal.”
b. If state provides education, it has to provide it equally; some states stopped providing
c. “Such an opportunity, where the state has undertaken to provide it, is a right which
must be made available on equal terms”;
d. Social science findings ct relies on: social stigma has irreversible psychological
impact
e. Court believes that the setup denied children of equal opportunities; recognizes
increased importance of education
f. Equal Protection does not mean you can never make distinctions among people; still
need to show discrimination harms one group over the other
g. Segregation denies people the freedom of association
D. Earlier drafts of the 14th Amendment included banning of discrimination against race
E. The court dances around Plessy, doesn’t embrace the language about state never recognizing
race. Disregard Harlan’s statements and go to point of scientific impact on race
F. Brown never says is getting rid of separate but equal across the board (just in schools?);
series of subsequent opinions that desegregated other facilities
G. Requires “All deliberate speed” (allowed to consider administrative/population issues, etc.)

Bolling v. Sharpe (p. 449)

1. In Washington, D.C.; D.C. isn’t a state. Does the 14th Amendment apply?
2. Holds federal government to the same standards applied to states (14th Amendment)
3. SC relies on 5th Amnd equal protection. Would be unthinkable if Constitution applied lesser
obligations on fed than state government
4. Assuming McConnell’s interpretation of the 5th is correct, why doesn’t it get us to the right
outcome in Bolling?
a. Congress never stopped segregation in D.C.
b. The 14th Amendment doesn’t apply to D.C., it’s not a state.

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Cooper v. Aaron
A. P sites disruption, etc. to end “experiment” of desegregation; wants to delay integration
process; SC overturns lower court’s ruling for P

Brown II p. 453
1. All deliberate speed to implement programs – massive resistance
2. Cooper v. Aaron – School district said after 6 months of turmoil.
3. Should the ruling in Cooper been stated in 1955 instead of 1958.

Arguments for Brown beyond the opinion:

A. Court suggests that separate but equal would be ok if separate could be equal. But (at least in
the realm of education) separate cannot be equal.
B. Argument that we must interpret the Constitution in light of its broader goals, like equality.
C. Evolving standards argument: changing social standards as to what protecting liberty
requires.
D. Some issues (such as segregation) simply may be too important to not use judicial review.

Racial Classifications: Separate But Equal?

Civil Rights Act of 1964

A. Congress explicitly agreeing w/ the Court
B. Federal government authorized (executive branch: attorney general) to sue States on behalf
of people (helpful b/c was dangerous to sue local school districts and financially costly)
C. § 5 of 14th Amend: Congress specifically has power to enforce amend violations
D. Title VI prohibited programs receiving federal funds from segregation. Conditional Spending
– §5 and the spending powers. Dole, etc.

Green v. County School Board

A. Freedom of choice plan of desegregation, ineffective (was community backlash)
B. Did not actively desegregate, just allowed people to change schools in the district
C. Court struck down b/c board has to implement plan that realistically works now
D. School district has to prove this would work (burden on school board to prove)
E. Must be sufficient the “effectuate a transition.”

Swann v. Charlotte-Mecklenburg Board of Education

A. One of first bussing cases; Dist Ct imposed redistricting lines of school dist. to force
integration (racial balance)
B. SC affirmed b/c Dist Ct has wide berth to ensure schools desegregated and it was a good
broad equitable remedy (courts becoming more aggressive)
C. The court declined to apply it as a mandatory remedy though, stating that schools did not
have to reflect the exactly make up of the community
D. Brown II gave discretion for district courts to delay, but also to be aggressive, like here

Keyes v. School District No. 1, Colo. p. 461

A. First case outside of the South, where not officially designated segregated; dist ct orders
gerrymander area of Denver; evidence intentionally segregation
B. Court upholds finding of Constitutional violation; affirmed order of system-wide relief;
“common sense dictates the conclusion that racially inspired school board actions have an
impact beyond the particular schools that are subject to those actions.”

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 a. If it effects places outside the current district, the remedy can involve those areas.
C. Powell: de facto v. de juree segregation
a. De Facto – mandated by law
b. De Juree – societal consequence
c. Integration does not mean every school is perfectly integrated; all-white or all-black
school not necessarily segregated unconstitutionally, if system itself is integrated
d. “Public Schools are creatures of the state, and whether segregation is state-created or
state-assisted or merely state perpetuated should be irrelevant to constitutional
principle”
D. Majority says de juree segregation in Denver authorizes the court to imply remedies
E. Rehnquist: objects to finding whole district tainted b/c a part of it is gerrymandered

Limits on Brown
A. All about what courts can order (what kind of relief can they mandate) school districts to do
B. Milliken I
a. Inter-district desegregation unconstitutional
b. Limited court’s ability to remedy segregation; SC beginning to go the other way –
strikes down inter-district relief when there’s no impact on area outside district
c. Relief can't be extended beyond district (can't order district to wk w/ neighboring
suburbs not in district)
i. To have a multi-district remedy, there must be a problem in each district
ii. In Denver, did not cross district lines, just sections of district
d. Constitutional issue is not the lack of “mixed” schools - it’s the use of race to
segregate
C. Milliken II
a. Goes the other way again
b. Dist court judge can order other things beyond redistricting lines and bussing (can
create magnet schools, fund various programs to encourage diversity, etc.)
D. Jenkins I
a. Based on Miliken, can order different/additional relief so says can order tax increase;
ordered doubled taxes to stem financial issues and help desegregation
b. Court struck down (although in theory courts can order tax increase)
E. Jenkins II
a. Like MI and MII together; involves non-bussing remedies (teacher salary increases)
b. Order explicitly designed to attract students f/ outside district (get them to migrate in)
c. Court strikes down b/c does not matter what remedy you’re looking at; either way,
scope of remedies must track the scope of the harm
i. Inter-district remedy goes beyond harm of intra-district harm
ii. Trying to get students from outside the district
iii. Indirect means to achieve things that they would not be able to do directly
d. Different views of what Brown did and should mean impacts subsequent case law (is
it that you can’t use race at all, period or can you in certain circumstances?)

Equal Protection and the Rational Basis Test

 Equal Protection Clause adopted to protect freed slaves and African Americans in general f/
government abuse
 However, language not so specific – just prohibited states f/ providing anything beyond equal
protection under the laws
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  Still some ability to treat different classes of people differently
 Kinds of scrutiny
o Strict or intermediate
 Suspect class: when we have reason to believe government distinction is
based on impermissible motive (i.e., race or sex)
o The rational basis test is applied when there is no suspect class (race, gender…):
Means/Ends test
 Lowest form of review: “Legislative classifications are valid unless they bear
no rational relationship to the state’s objectives”
 Legislatures allowed to divide problems into smaller segments to deal w/ them

New York Transit Authority v. Beazer (p. 475)

A. New York City Transit Authority refuses to hire methadone users, said for safety reasons
B. District Court (affirmed by 2nd Cir) struck down b/c is over-inclusive (includes lots of people
who do not pose a risk – here, not driving train but also not allowed to be janitor)
C. Supreme Court overrules and upholds the exclusion on the basis that some drug users do
pose a safety risk
a. SC acknowledges two groups:
i. Those successfully receiving treatment and no less safe than average person
ii. Those not successfully receiving treatment, are still users and generally unsafe
b. Not a protected class
c. Footnote 39: “legislative classifications are valid unless they bear no rational
relationship to the State’s objectives”; doesn’t violate EPC just b/c classification is
imperfect
d. Important that end and means both not effectuating discrimination against particular
group
D. Rule: Legislative Classifications are valid unless they bear no rational relationship to the
State’s objectives.
a. Essentially says that most anything can pass the rational basis test. Subsequent cases
illustrate that this is not the case.
E. Dissent: easy to distinguish between the two groups and thus no rational basis

Note Cases
Railway Express Agency v. New York (p. 484)
A. Rule that cannot place advertising on trucks because of safety reasons, but trucks that already
have ads on them can keep them
B. Court found that there was not even a pretense of safety because trucks that already have ads
are no more safe than trucks that would put the ads on after the law passed and thus does not
withstand the rational basis test. Blatant discrimination against certain companies.

Williamson v. Lee Optical (p. 485)

A. Law states that only licenses optometrists or ophthalmologists can fit lens to a face or
duplicate or replace lenses (in glasses), except with a written prescription from an opto or
optho.
B. Court says that the EP clause goes no further than the invidious discrimination and that point
has not been reached in the case. The legislature may select one field in which to apply a
remedy and neglect others as they did here.

Minnesota v. Cloverleaf Creamery Co. (p. 485)

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 A. Law mandates that paperboard milk cartons rather than plastic ones should be used because
they are more sound for the environment (big paperboard industry in area)
B. P’s evidence paperboard cartons actually less environmentally sound, legislature was wrong
C. SC says we are not going to make judgments as to the rightness of the legislature’s opinions.
And you did not allege that they had done so for another reason and that their rational basis is
a fraud. You are just questioning the rationality of it. Its not our fault if they are dumb.
a. Must be a goal of the legislature, not necessarily the goal.
b. Court will assume goals articulated by legislature are really what they intended unless
is a very clear/compelling reason to believe otherwise

City of Cleburne v. Cleburne Living Center (p. 488)

A. City wants to prevent group home in area. Says, kids at jr. high will make fun of people at
center. Flood plain, etc. etc. But area is zoned for a hospital, etc. Court says this is bogus and
obviously designed to discriminate; neighbors actually afraid of people in group home
B. Despite the fact that mental retardation is not a protected class, mental retardation is not a
mutable relationship and thus deserves protection
C. A city needs a legitimate reason before it may deny housing to the mentally retarded; are not
suspect class, so rational basis test used, not heightened level of review
a. Alleged goal is public safety, but is no rational reason for classification. Fear of
neighbors not a legitimate basis, unless is some evidence to justify. Home doesn't
threaten legitimate interests of the city in a way that other permitted uses would not.
b. Reasoning didn’t pass laugh test, where as the New York Transit reasoning did

Note case Heller v. Doe

Court rejects equal protection claim against Kentucky statutes that allowed involuntary commitment
for mentally retarded with a lower standard than for the mentally ill. Court ruled that there may be a
rational basis based on medical differences between mental retardation and mental illness, for
example that mental retardation is from birth and mental illness often manifests later in life.

U.S. Department of Agriculture v. Moreno (p. 492)

A. Fed law passed prohibiting people who live with others not members of their families from
getting food stamps; passed to prevent use of food stamps in communes (HIPPIE CASE)
B. Woman sues b/c she can’t get food stamps b/c shares apt w/ other woman friend
C. Court rules “the challenged classification clearly cannot be sustained by reference to this
congressional purpose. For if the constitutional conception of ‘equal protection of the laws’
means anything, it must at the very least mean that a bare congressional desire to harm a
politically unpopular group cannot constitute a legitimate government interest.”

Romer v. Evans (p. 493)

A. Colorado statute prohibited local governments from passing anti-discrimination measures
B. Question NOT is it factually correct: it’s could a rational legislature come to this conclusion
C. Overturned 6-3 by SC. b/c was an obvious desire to harm and unpopular group
a. Irrational prejudice is not legitimate government purpose
b. Can say trying to help one group (i.e., optometrists) but not that don’t like opticians
Imposes a broad and undifferentiated disability on a single group
c. Overbroad so that it is discontinuous with the reasons offered for the amendment
i. Courts assume policy choices are contemplated by elected legislature; unless
do something impermissible, court won’t intervene
ii. It’s hostility to group (see in language, etc.) that’s the problem

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 D. Scalia, Rehnquist, and Thomas issue an extremely homophobic dissent about how being gay
is un-American and immoral. The dissent compares homosexuals to murders polygamists and
those who abuse animals.

Heightened Scrutiny and the problem of race:

Strauder v. West Virginia (p. 499)
A. West VA law limits jury service to white males; Strauder, African-American convicted of
murder, claims under equal protection clause, AA’s have to be a pert of the jury pool.
B. 14th Amendment designed to protect rights of African-Americans
a. This statute violates the Amendment by:
i. Singling out AA’s by race, is thus an impediment to securing equal justice
ii. Prejudice well known to exist between classes and races; these prejudices may
operate to deny persons in certain classes the full protection others enjoy
iii. If excluded from opportunity to have a chance to be selected, and have black
defendants, white juries might be more inclined to convict and less inclined to
believe certain defenses which all results in unequal protection
C. If statute obviously racist/damaging, is no good; can still restrict on basis of ed, age, etc.
a. Rational Basis test or just offering an end run around the ruling?
b. Intent of the 14th Amendment (does it make a difference that this case was in 1880)
i. Justices alive when Amends ratified, thus know what was meant
ii. Other issues of bias (gender, age, etc.) not dealt with in the civil war, plus
women couldn’t vote, couldn’t vote under 21, etc.

Establishing Strict Scrutiny

Korematsu v. United States (1944; p. 501)
A. Executive order by Roosevelt (and Congress) removed individuals of Japanese decent
(citizens and non) from homes on West Coast to relocation centers, then internment camps
B. K, an American citizen of Japanese dissent arrested and criminally prosecuted for refusing to
leave his home to go to his assigned camp
C. Test court uses on government: most “rigid scrutiny”
a. Birth of “strict scrutiny” in majority opinions but did not actually apply this test
i. Footnote in Carolene Products case that deals with this issue (see page 507)
b. “all legal restrictions which curtail the civil rights of a single racial group are
immediately suspect.…courts must subject them to the most right scrutiny.”
c. (quote p. 502) “we cannot reject as unfounded” – puts burden on D not government!
So not really using rigid scrutiny
d. SC upholds K’s conviction b/c circumstances justify it in the situation
i. Formal war declared; under guise of “pressing public necessity” (like
compelling state interest) to protect against Japanese invasion
1. What determines “pressing public necessity?” Actual declared war?
Terrorist attacks? Custody case involving remarriage to AA’s?
ii. Argues west coast was a war front (but was no war on the California Coast)
D. Murphy’s dissent: SC not in business of defending country. But, in absence of marital law, is
absolutely for SC; should be unless martial law declared (then might withstand scrutiny)
a. No rational basis for this grouping simply b/c someone of Japanese decent, does not
mean that they are going to help facilitate an invasion; clearly based on prejudice
E. Jackson dissent: looks beyond equal protection (military will do what are going to do, don’t
ask Court to validate); civil court shouldn’t enforce order violating constitutional limitations,

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 even w/ convenient excuse of military authority. SC permits inference of inheritable guilt,
against fundamental assumptions of system. Person always has constitutional rights.

Racial Classifications in Facially Neutral Statutes

(punishment is equal for each race, but still discriminates)
Strict Scrutiny
 Assume legislature acting rationally; when uses race, suddenly become suspect b/c not based
on rational basis of costs
 Carolene Products FN 4 – most famous footnote 
o Upheld milk statute; clearly about suppressing competition
o Footnote said a more stringent view should be used in other cases – such as race-
based or minority protection cases
o Democratic politics does not work when talking about minorities (irrational group
loyalties breaks down normal functioning of factions)
o Expect milk companies and other such interests to be able protect themselves w/in
political process
 Strict Scrutiny requires (know the buzzwords!):
o Ends: Pressing public policy AND compelling state interest (really important)
o Means: Necessary and not merely rationally related AND narrowly tailored

Palmore v. Sidoti
1. Couple divorces, mother awarded custody
2. Mother remarries to African-American so court awards father custody
a. b/c in best interest of child b/c of pressures of being inter-racial child
3. SC reverses, allows mother to regain custody
a. Usually best interest of child always holds sway
b. Why is race different?
c. Court says can't let hecklers limit first amendment rights of parents and child (b/c of
other people’s views)
d. What if was study showing deep psychological impact of child (not based on any
external influence – totally impossible, but just for pretend)?
i. (parallel to Brown)
ii. Might change outcome

Washington v. Davis (p. 514)

A. Police officer test; Davis claims that test to enter police academy in Washington, D.C. is
discriminatory b/c disparate impact test – higher percentage of AA than whites failed. Also
claim that test has nothing to do with being a police officer. Claim violation of equal
protection clause.
B. Court dismissed (upheld test as constitutional), did not apply strict scrutiny
a. Said test might not be all that good, is harming AA disproportionately
b. Is not the only factor to consider in looking
c. Must look at purpose of law – has to be INTENT
i. Here, P’s alleged test kept AA’s out, not that it was designed to do so
ii. Are legitimate reasons for police officers to pass a literacy test
d. How does the court know the purpose
i. Have to look at circumstances in their totality
ii. Also look at history and context
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 C. Concurrence: the line between purpose and impact is not as bright a line as court opinion
would indicate. When there is a disparate impact, one must investigate the motivations and
determine whether there is enough evidence to support that the impact was intended.
a. Sometimes the best evidence of discrimination in these cases is the resulting
disparity. See cases in notes pgs. 519-523
i. Yick Wo v. Hopkins (1886): 200+ people of Chinese ancestry who applied for
laundry permits were denied permits; whites were not (all granted but one)
ii. Gerrymandering of political boundaries of city by race (case in notes)

Village of Arlington Heights v. Metropolitan Housing Development Co.???????

A. Court rules that generally for an Equal Protection claim you need both disparate impact and
an indication of intent to create said impact
B. Level of evidence of intent can change dependant upon what sort of institution is
discriminating
C. Schools v. Swimming pools (closed so no-one gets to use pools; rational basis test b/c
impacted everyone equally)

Loving v. Virginia p. 533.

A. Ls convicted under VA statute that imposed criminal penalties on those that involve in
interracial marriages (when one person is white); racially neutral b/c spouse of each race
faces same criminal penalty; on its face, both races are subject to its restrictions
B. Court rejects idea that the state has a compelling interest to preserve “racial integrity”
C. Cites Korematsu’s “most rigid scrutiny” standard for racial issues; must show necessary to
accomplishment some state objective, independent of the racial discrimination
a. No legitimate reason found for this law, convictions reversed
D. Stewart’s concurrence: “it is simply not possible for a state law to be valid under our
Constitution which makes the criminality of an act dependant upon the race of the actor.”
a. Majority opinion: lack of legitimate state interest; Stewart wouldn’t even go that far

Washington v. Seattle School District No. 1 (Its all about the process baby, see C.) p. 535
A. Washington passes a referendum prohibiting any school districts in the state from busing,
except for X reasons. X reasons were all the reasons to bus other than for racial reasons
B. The initiative place “special burden on racial minorities”
a. Precludes the school boards from bussing, ever b/c puts decision making process in
“new and remote” level of government (state, not local)
C. Court does not like the process by which it was done. (Opinion by Blackmun)
a. The state is free to structure its local schools however it wants, but it can’t structure
the political process to place an undue burden on any racial group.
b. Decision making process must be a fair fight; one group can’t rig it so that the other
group gets what it wants.
i. Defense: it’s a fair, it’s just the political process and they lost; SC disagrees
D. Powell dissent: authority of school boards previously unchallenged on Federal level; no prior
constitutional infringement which would mandate bussing; eliminating doesn’t violate rights.
E. Blackmun (majority) goes other way in Crawford v. Board – decided the same day and
viewed as indistinguishable; distinguishes case based on process, not outcome.
a. In Washington, they restructured the process; in Crawford they just repealed law; can
repeal law if process followed; cannot change the process so as to place an undue
burden on the other side to change it back.
b. Question from Adler: so why isn’t this then a political process case?

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 c. But doesn’t this discount motivation, which the court has found to be important in
other cases – look at intent – rational basis, strict scrutiny, etc.

Racial Restrictions that benefit Minorities

Strict Scrutiny Still Applies

City of Richmond v. J.A. Croson Co. p. 557. p.o.

 “The standard of review under the EP clause is not dependent on the race of those burdened
or benefited by a particular classification”
 Uses Strict Scrutiny: narrowly tailored to a compelling government interest
 Intermediate scrutiny and rational basis (debatable if are two kinds of RB tests)
 O’Connor (writing for 7): Fact African Americans historically discriminated not the point –
not a compelling interest b/c city didn’t act to enhance racial discrimination practiced by
private groups
 Link low minority membership to lack of minority business owners AND show city
contributed to situation then city might win
 Every justice seems to accept on some level that fixing racial discrimination of past
government acts is OK
 Connect specific policy to specific injury (Scalia likes this take; Kennedy says is too narrow)
 Policy is not narrowly tailored b/c don’t show connection between policy and discrimination
o Only show are setting aside 30% of revenue for long list of minority groups
 Need to show discrimination of all groups
 Issue w/ rigid number set aside
• Even if have 30% companies in city are minority, have to show are as
competitive as others
• Have to show are not using race any more than required
• Any hard number may not hold up
• 30% number is taken f/ federal highway program – totally inapplicable
to Richmond
o Also, use of federal language (Eskimo, etc.) goes against narrow tailoring
o Plan not linked to identified discrimination – what else could have been done to
enhance number of minority owned businesses that had nothing to do w/ race
o Only tailored to outright racial balancing (a not compelling interest); have to show
history of actual racial discrimination (that something else was not contributing to
racial imbalance/disparity)
o O’Connor says city should have taken alternative measures, first
 Kennedy says Congress said these measures not effective here
 However, here this is a city – not federal congress
 City has to talk about why there’s a racial imbalance and other remedies won’t
work
th
 14 Amendment is all about controlling the states
 5th Amendment lays out requirements for federal government

– strict scrutiny applies to all race-based regs. Marshall argues intermediate should be applied here
A. R requires that 30% of construction contracts for city be given to companies owned by
minorities.
a. Goal to remedy discrimination against minorities in hiring processes.

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 B. Court disallows city’s policy, saying that race based distinctions, even when giving
advantages to minorities, should be under the strictest scrutiny standard.
a. O’Connor’s ends-means test:
i. Ends: must have compelling interest in making said regulation.
ii. Means: First should try racially neutral means, if that does not work, means
must be narrowly tailored to the goal of the specific instance.
C. Population is an issue: 50% of Richmond population is African-American, but only .67% of
contracts given to AA’s.
a. Court does not see this as evidence of a compelling interest.
i. Just because 50% minority in gen. pop. doesn’t mean that 50% of contractors
are minorities. Gen. pop is not the proper standard.
ii. What percentage of minorities were eligible (have required skills/businesses)
to apply for the subcontracts.
D. Argument that Richmond was a segregated city, this is necessary to remedy the historical
economic discrimination of the city.
a. Majority does not dispute this, but they say historical disadvantage is not the same as
current disadvantage. Can only be used to remedy current problems, not historical
ones.
E. Ruling does not preclude state taking action to end discrimination currently present in a city
or state and due to the state’s actions.
F. Marshall dissent: applies intermediate scrutiny and therefore does not require narrow
tailoring, he requires a substantial relationship between the remedy and the problem.

Adarand Constructors, Inc. v. Pena p. 574 p.o.

A. A sues because fed. government has policy in Dept. of Transportation setting aside contracts
for minority owned businesses. A looses contract to Gonzales.
B. Case heard after Croson because 14th A applies to states and that is what C was decided
under; p. 577: clear statement of what strict scrutiny requires
C. Court compares 5th and 14th A’s. Sees equal protection clauses in this as the same principle.
a. SC reasons that three benchmarks should be applied to any equal protection analysis.
i. Skepticism: any preference based on race must “receive the most searching
examination”
ii. Consistency: same standard regardless of race (based on prejudice vs.
mitigation of prejudice.)
iii. Congruence: 5th and 14th Amendment standards are congruent

Grutter v. Bollinger
 Croson was first time strict scrutiny applied to affirmative action case (five justices said
applied, as opposed to previous cases where court was divided)
 Until Grutter, case never survived strict scrutiny test
 U. Michigan says policy adopted not to make up for past discrimination, is b/c diversity is in
and of itself a compelling state interest
 Would have been easier for UM to argue they discriminated a lot in the past
 P’s claim is that while UM claimed to give individualized review to applications, in practice
it was a hard number that decided entrance
 Court finds that diversity in higher education is a compelling state interest
 p. 119 (supplement)
o Adopts Bakke – race can be a plus, not a hard rule, part of holistic review of
applicant’s file
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 o Court not necessarily applying strict scrutiny
 Doctrinal wrinkles, based on way court divided – makes for diversity of views in how to
handle such issues; outcome was compromise to get to majority holding
 Raises doctrinal issues
o Is racial diversity in academic a compelling state interest?
 Ends v. means adopted
 Court found that diversity IS a compelling state interest
 (learnt f/ Koramatsu that can’t just go along w/ state saying they have a
compelling interest in something; courts found it here)
o Is Michigan’s race-conscious admissions program narrowly tailored?
 What’s serious good-faith consideration of race-neutral alternatives
 Usually has to be a time limit – date when we know it’ll end
 Remedial (as opposed to combative) type of program

Gratz v. Bollinger
 Michigan’s undergraduate admissions program
 Applicants rated based on point scale; above 100pts get in, below 75pts do not, then there’s
the gray area in-between
 Points given to race were too great, did not allow for individualized consideration
 Majority thinks these two plans should have risen together and been upheld or struck down
simultaneously (however, two justices liked one and not the other)

Regents of Univ. of California v. Bakke

A. Set number of seats in medical school set aside for applicants who had been deemed by the
university to be historically disadvantaged. (Which was pretty much entirely based on race of
applicant.)
a. Important that it is a state school – governmental institution, so constitutional matter
rather than statutory law (statutes prohibit discrimination in private educational
institutions.)
B. 4 members of court held violation of Civil Rights Act… prohibits discrimination in
institutions receiving federal funds. Did not reach constitutional issue.
a. Didn’t want to reach constitutional question.
C. 4 members of court held that it was in fact constitutional and that intermediate scrutiny
(between strict scrutiny and rational basis).
D. Powell rules on constitutionality, applying strict scrutiny.
a. He does say, however, that in some cases, race is an appropriate criteria for
admissions. When race is a “plus” but not a separate category.
i. Because educational diversity is important
b. Prior discrimination is not a compelling interest.
E. B and D make majority and strike down University policy.
F. Under Bakke, which level of scrutiny do you apply?
a. Powell 5th vote, controlling opinion, so does his strict scrutiny test fly?
b. Or there are 4 votes for intermediate scrutiny, do numbers control?

Gender Based Classifications

Heightened scrutiny is applied to gender cases, but not strict scrutiny; get new level of scrutiny:
Intermediate

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  14th Amendment adopted to deal w/ race issues (clearly to protect freed slaves), not gender
(separate amendment had to be adopted to grant women suffrage)
 So why rational basis? b/c of gender discrimination
o Why not test in Moreno, etc. (cases where use rational basis to make sure legislators
are not totally out of wack or crazy)
o Usually very lenient – give legislators wide berth
o So, why not: when find law that treats women differently outright, then strike down;
if happens to treat women differently then uphold law if it meets rational basis test
o Is no Constitutional signal that we’re in a different space when it comes to race – do
not have the same when it comes to women
 Purely numerically: women outnumber men, etc.

Craig v. Boren (p. 602)

A. First time have stronger scrutiny, women not discriminated against – is men
B. Beer served to women but not men between 18-20yrs
C. Prevention of drunk driving is an important state interest (why isn’t policy “substantially
related”?)
a. College age males more likely to be binge drinkers and drivers
b. Passes rational basis test – guys do dumb things (I’ll second that, teehee!)
c. Majority cites 10x difference between M/F drunk driving arrests
D. However
a. Stats look at only 2% of drunk drivers
b. Law does not prevent drinking – just purchase
E.
F. OK law prevents men under the age of 21 from buying 3.2 beer, but allows women 18 and up
to buy 3.2 beer.
a. Reasoning being that it keeps the roads safer because men drive more than women.
G. Court rejects this reasoning.
a. Standard of review:
i. Ends: must be an important governmental interest
ii. Means: substantial relationship
H. Court does not deny that preventing drunk driving is an important governmental interest,
questions the substantial relationship between the law and the desired result.
a. Statute isn’t comprehensive. Prevents purchase of beer, but not consumption.
i. Requires a closer fit between stated policy and what the law actually does.
b. Statistics on danger posed by drunken 18-20 year old males don’t justify the
prohibitions.

United States v. Virginia p. 611

A. Challenged male-only policy of school and women’s parallel school state opened in response
to initial litigation
B. Physical differences between men and women endure
C. However, court rules that such classifications cannot perpetuate legal, economic, and social
inferiority of women
a. Does not list physical differences or military classifications
b. What about women in combat, etc. – notions of frailty and chivalry
D. Rhenqist concurred – like Sweat/Painer case where separate law school was not equal; this
women’s school was a mere “pale shadow” of the male school VMI
E. What if the separate institution was equal?
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 F. FYI, if you’re really interested in this issue, Adler recommends reading the opinion and
dissent in its entirety
G.
H. VMI says no women
I. Court says can’t use inherent dif. Between men and women to discriminate against women
without “exceedingly persuasive justification” (which is higher than intermediate scrutiny).
J. Other institution is set up. Separate is not equal.
K. Other institution that is set up is inherently inferior and its different teaching methods also
make it not qualify.
a. Seems to preclude the possibility that separate but equal is highly unlikely in the case
of gender
L. R applies intermediate scrutiny as in Craig v. Boren.
a. Says if the other school was of equal caliber, would be ok, but since its not it fails
b. Also rejects states motivations saying that making assumptions based on stereotypes
about women’s inclinations is faulty.

Michael M. v. Sonoma County

A. Statute was to prevent illegitimate pregnancies; harmful impacts of rape is on women
B. Court upholds b/c risk of pregnancy is a substantial deterrent to women, not men

Nguyen v. INS
 INS convicts of crime at 22yrs old, was going to be deported b/c was not citizen (mother was
not), father gets DNA test to prove son is citizen
 Is citizenship rule a permissible gender-based classification?
 Court decides that citizenship is a function of maternal (not paternal) citizenship
 If had had test 5 years earlier (before turned 18), would have been made a citizen and not
deported
 SC upholds statute
o Encourages fathers to have relationship w/ child
o Child is asserting citizenship that’s not automatic
o Paternity harder to prove
 Intermediate scrutiny: would say state has to show is no sex-neutral test to meet same goals;
not the case here
 Differences between different levels of scrutiny
o Minority days opinion was decided based on outmoded generalizations of women
(mothers v. fathers)
o Majority says the facts are rooted in biological differences (mother is present at birth,
etc.)
o Veterans cases are interesting – hard to tell which gender gets shafted

Implied Fundamental Rights

Rights that we have not given up to the government that courts are required to enforce.
Incorporation
 Bill of Rights not intended to apply to states
 Barron v. Baltimore
o Responsibility of state government to uphold Constitution (state supposed to augment
and check federal power)
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 o Case looks at to what extent Bill of Rights actually might apply to states
 What rights are incorporated? Palko v. Connecticut
 Adamson v. California
o Due process
o Dissent says if there’s going to be any incorporation, must be all or nothing – so far,
words been too malleable
 Bill of Rights is handy, clear, already created list/document
 Wants everything in B of R to be incorporated
 Otherwise, court is, in practice, substituting their own notions of decency, etc.
 Duncan v. Louisiana
o Selective incorporation
o Most everything in B of R is incorporated, rest is just there b/c framers just wanted to
include it…
o Not included:
 2nd
 3rd
 Grand jury
 Guarantee of 5th
 7th

A. Implied Fundamental Rights: rights are not enumerated, not clearly in text but nonetheless
merit protection; where are they? What should courts protect?
B. 9th Amendment
a. Bill of Rights originally only applied to federal government
C. Privileges OR Immunities Clause (in 14th Amendment)
a. First time addressing some substantive limit to state police power
b. Different f/ equal protection clause (which was focused on classification distinctions)
D. Incorporation: debate of incorporation of Bill of Rights as against the states
E. Substantive Due Process: seen in Dredd Scott; sometimes used, although is good example of
how justices have trouble explaining decisions (due process does not have best pedigree so
often look for other ways to justify rulings)
F. Privileges AND Immunities (different f/ Priv. OR Immun. clause above)
a. Article IV
i. “the citizens of each state shall be entitled to all privileges and immunities of
citizens in the several states”
ii. Non discrimination clause – states can't treat own people better than other
states people
iii. Have to treat all US citizens the same w/in your state
b. 14th Amendment
i. “no state shall make or enforce any law which shall abridge the privileges or
immunities of citizens of the US”
ii. I.e., right of self defense
iii. First time adjudicated in Slaughter-House cases
G.
H. Ninth Amendment: All rights are not enumerated herein….
I. Privileges and immunities clause
a. Art. 4 “The citizens of each state shall be entitled to all privileges and Immunities of
citizens in the several states”

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 i. Citizenship in one state entitles you to the rights of each state when in it.
ii. Non-discrimination by state of residency
b. 14th Am. “No State shall make or enforce any law which shall abridge the privilege
i. See Slaughter House Cases
J. Doctrine of incorporation (some things that fed. can’t do, states can’t do either)
a. The Bill of Rights was not intended to apply to the states, only the federal
government. (see Barron v. Baltimore)
b. What rights are incorporated? (see Palko v. Conn.)
i. Those essential to order liberty
K. Substantive Due Process

Slaughter-House Cases p. 693

A. First time 14th Amend adjudicated
B. Louisiana gave monopoly to one slaughter house for everyone else to come to
C. Butchers sued
D. Court says one pervading purpose of 14th A was to protect newly freed slaves (even though
language was more general)
E. In determining privileges and immunities, are only some that are for US citizens (such as
ability to petition DC, travel international waters, etc.) – different f/ those individually
granted by states (court is not to protect state granted rights)
F. Dissent:
a. Majority rule effectively makes priv. and immune. clause a dead letter law
b. So, should protect stuff but right now, does not protect anything aside from interstate
travel, etc. (very narrow protection)
G.
H. Louisiana gave a certain slaughterhouse a monopoly on the slaughterhouse business in New
Orleans. The Butchers' Benevolent Association (P) challenged this statute, seeking an
injunction. P claimed that they were prevented from practicing their trade unless they
worked at the monopolist corporation and paid its fees. They claimed that this abridged their
right to own and use property, a right guaranteed by the privileges and immunities clause of
the fourteenth amendment.
I. Butchers Claim is that §1 of the 14th amendment extended the Privileges and Immunities
clause to the state. The court held that since the 14th A draws distinctions between U.S.
citizens and state citizens, the contents of its privileges and immunities clause, which protects
P&I of U.S. citizens differs from the content of Art. 4’s P&I clause, which protects the rights
of the citizen of one state while visiting another state. Therefore the federal P&I were not
replicate of basic property rights protected by Art. 4, but the P&I of U.S. citizens (like
voting).
J. Contrary to the original understanding of those who wrote the 14th A.
K. Severly limits 14th A’s P&I clause.
L. Court Rules that clause only guarantees those federal rights that were protected at the time of
the amendment’s adoption.
M. The amendment must be interpreted in the light of its intent. In this case, Involuntary
servitude meant slavery (personal servitude) and did not cover this situation.
N. Amendment overrules Dred Scott
O. Too big a leap to assume it was intended to change the nature of privileges granted through
the state
P. If the clause was supposed to protect citizens of states, not of the US, it would have said so.

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 Q. The Clause should not be interpreted to cover state restraints on trade. Those privileges are
left to the citizens of the states and thus left to state governments for protection, not the
federal government.
R. Field’s Dissent: The amendment guarantees basic freedoms for all United States citizens.
Rights protected by the privileges and immunities clause are those that belong to the citizens
of all free governments - it is clear that among these must be the right to pursue a lawful
employment in a lawful manner, without other restraint than such as equally affects all
persons. A distinct privilege of citizens of the United States is equality of the right to the
lawful pursuits of life throughout the whole country. To permit a state to interfere with such
a basic privilege is to ignore the true purpose of the fourteenth amendment.
S. Bradley’s Dissent: The right to choose one's employment, subject only to uniform regulations
equally applicable to all, is the most basic of rights and should be protected by the clause. To
force a butcher to only deal with one company, and force him to pay a toll, is a trade
restriction that materially interferes with its prosecution. It is onerous, unreasonable,
arbitrary, and unjust.
T. Because of this case, the 14th Amendment Privileges and Immunities Clause is essentially
dead

Economic Liberty:
Substantive Due Process and Economic Liberty
 What if due process means more? Not just about how to set up procedures in convicting
people (but is about the substance of rule the state can punish you for in the first place)
 Not a claim about process but a claim about substance
 US v. Carolene Products (most famous footnote); suppression of competition (milk
products); discrete judgment not found (differ to legislative findings)

Lochner v. New York p. 713

A. Bakers work hours; challenge to limiting hours based on right to K
a. Law was based on public health
b. Court said intent of legislature may not have had public health in best interest – might
have been against immigrant workers, etc.
i. Supposed to look at actual impact of laws
ii. Although the majority of people in NY thinks is OK; however, court thinks
fundamental liberty (to K) threatened by this law
c. Generally seen as an abominable opinion – totally wrong (few current defenders).
However, was it wrong institutionally or substantively?
i. Institutionally: separation of powers; court is legislating
ii. Substantively: actual interpretation of the Constitutionality of the law;
problem is not that court is overturning law, is process (reason) for why court
is doing so – actual law they’re citing
d. Case lasts through 1930’s
B.
C. Lochner is a baker. New York passed a law prohibiting anyone who works in a bakery from
working more than 60 hours a week.
D. Court rules that there is a right to contract and the law infringes upon it, so it is overturned.
a. Max hour law limits right to contract because it limits terms of contract.
i. Affects bakers’ ability to hire someone for more than 60 hours.
ii. Affects employees rights to work more than 60 hours.
E. Doctrine:
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 a. Although the state has police powers to regulate for the general health and welfare of
the state
b. There is not a substantial relationship between the law and the result
c. It violates the due process clause.
i. State cannot infringe upon economic liberties without a “fair and reasonable”
motivation.
F. NY makes argument that they are regulating safety.
a. Court says: then you should regulate safety, not hours
b. Court implies that NY might actually be motivated by labor concerns, not balancing
them with management. Undue union influence. Regulation as a form of
redistribution.
i. Way of preventing nonunionized bakeries from competing with union shops.

Nebbia v. New York p. 725

A. Government raises price of milk during a milk shortage (contrary to economic principles)
B. Court upholds, says there is a legitimate public welfare element
a. Milk is “affected with the public interest” b/c is an essential part of diet

West Coast Hotel v. Parrish (switch of nine case – essentially overturns Lochner) p. 727
A. “Switch in time saves 9”
B. Explicitly reversed minimum wage law Adkins v. Children’s Hospital and upheld minimum
wage law for women
C. Court’s reasoning is that women are weak, no bargaining power, and are being exploited.
D. What happened to the right to K? Was this really to prevent women from underbidding men?

Meyer v. Nebraska
A. No teaching foreign languages in middle schools, specifically German.
B. Court says… dumb

Pierce v. Society of Sisters

A. No private schools allowed (anti-Catholic); requiring public school attendance – keeping kids
out of Catholic schools
B. Fundamentally like Lochner, dealing w/ rights to families
a. I.e., one case made illegal to teach modern foreign language – designed to prevent
teaching German (immigrants)
C. Court struck down both b/c cannot interfere w/ liberties (no reasonable relation to state
purpose); Same rationale as Lochner
a. Liberty under due process protected these rights

Modern Substantive Due Process: Right to Privacy

Griswold v. Connecticut p. 811
A. Law does not allow USE of contraceptives, even by married couples and to prevent diseases
B. Not Lochner; is not substantive due process but is protection of enumerated right
C. Right of privacy is (if not enumerated in due process clause) then falls under penumbra
(shadow) of other enumerated rights:
a. 9th Amendment
b. Etc.

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 D. Goldberg agrees w/ 9th A, suggests due process
E. Harlan says forget penumbra, due process should protect; marriage part of tradition and
collective conscious, court has legitimate role in protecting
F. White ignores all this, just deals w/ rational basis and how this law fails that test – looks at
disease prevention or illicit relationships (that law does not protect citizens, etc.)
G. Three ideas of where rights come from
H. Douglas: Penumbras
I. Goldberg: 9th Am
J. Harlan: only looks at 14th Am
K. Disagree on where substance comes from; agree on substantive due process, enforcing right
to privacy as state regulation through due process clause of 14th Am
L. Issue is if is right in and of itself
M. Ambiguity about where test is
N. Harlan’s discussion should flag readers that is strict scrutiny (same as fundamental liberty)
O. Right to Privacy
a. Lot of discussion of marriage
b. But what about unmarried couples?
c. No limits on sales
i. Compare to eyeglass case (Optical)
ii. Law restricting sales subject to strict scrutiny (limits access) unlike optical
(where does not impact fundamental liberty)
iii. Fundamental liberty takes out of rational basis test and makes test strict
scrutiny
P. Criticized b/c contradicts West Coast Hotel (ID non-enumerated liberties not subject to
rational basis)
Q.
R. State statute prohibits the use of contraceptives, even by married couples.
S. Struck down based on the penumbra of the bill of rights including a right to privacy.
T. Preventing use rather than sale is impractical: would have to go into the marital home.
U. Regulation was unnecessarily broad for goal of preventing extramarital affairs.
V. Harlan: Must look at history and collective conscience to maintain judicial self restraint.

Roe v. Wade p. 823

 Is abortion a fundamental right?
o YES, b/c encompassed by right of privacy
o Privacy is a fundamental right
o Majority says is found in 14th Am
 Can be found elsewhere, such as 9th Am
o Privacy
 If is a private act, why is it more so than other transactions we don’t regulate
o Or is it about bodily integrity, autonomy, etc.?
 Can state justify limitations?
o Thus, has to be compelling state interest and narrowly tailored
 Compelling state interests in mother’s health
 Risks associated w/ procedure
 Also, compelling interest in potential life (named at the point of viability)
 Look to Constitution and say “person” does not include the unborn
 Basis for abortion right

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 o Trimester framework (survives 20 years)
 Medical judgment of physician
 Regulate for maternal health
 Regulate/proscribe (w/ life & health exception)
o Issue as time goes on and technology gets better so that
 Babies can be born more and more premature
 And abortions can be done later and later w/ lower risk to woman
 Dissent says is legislative decision (not judicial) and is not fundamental right
 Is Roe really an equal protection case?
o Only impacts women
o What’s result under intermediate scrutiny?
 Gives states more leeway to regulate
 Equal protection:
o No longer an issue of fundamental right, is about are men and women treated the
same (so strict scrutiny does not have to apply)
o Is intermediate scrutiny
 Maher v. Roe; and Harris v. McRae
o Controversial decisions

Two issues:
Is abortion a fundamental right?
Can the state justify limitations?
Fundamental Right:
Fetus is not mentioned in the Constitution, and court determines fetuses are not persons.
14th Amendment says born or naturalized, not conceived. (If it said conceived, not
criminalizing abortion would be unconstitutional under equal protection.)
Woman’s right is in the penumbras of the right to privacy, based on 14th Amendment (see
pg. 824).
State Interest:
Discourage illicit sexual conduct
Texas doesn’t ever bother to argue this one
Protect health of the mother
No more risk than in pregnancy
Protect prenatal health
No rights for fetuses (see B.a.)
Court applies strict scrutiny in examining whether the state has a compelling interest. (strict
scrutiny is race based only in equal protection, not fundamental rights – like privacy.)
Court rules:
States can’t regulate abortion during the first trimester
After the first trimester, states may regulate abortion for the health of the mother
Subsequent to viability (3rd trimester) courts can regulate to protect the rights of the fetus.

Casey v. Planned Parenthood (p. 850 p.o.)

A. Say are upholding essential holding of Roe, but is not the same
B. State has legitimate interest in protecting both woman and fetus from outset of pregnancy
C. New test: getting rid of trimesters
a. “undue burden” analysis
b. Spouse notification: degree impacts autonomy

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 D. Implied fundamental rights
E. Casey takes a step back f/ this, gives undue burden analysis
a. Differs f/ Roe
b. Abortion not in terms of fundamental rights
c. Says sticking w/ past rulings
F. Case stands for fact that abortion has its own special test – own category
G. Some say is step away from fundamental right to abortion
H. Others say accounts for other (fetal) interests
I. UNDUE BURDEN test (not compelling interest w/ narrow tailoring; strict scrutiny)
J.
K. Penn. statutes requiring such things as spousal notification, parental notification, 24 hour
waiting period, etc.
L. Court affirms the “central” holding of Roe, but not the trimester plan, as it is no longer
medically correct. Upholds that abortion is an absolute right until the point of viability. Then
state can regulate. Also extends maternal health interest of state throughout.
M. Undue Burden: does the court apply the test that it articulates?
N. Stare Decisis: when can a rule be overturned?
a. Is the rule workable?
b. Is there reliance upon the rule?
c. Are the facts still applicable
d. Evolution of legal principles – “a doctrinal anachronism abandoned by society”
O. Based on Stare Decisis it was OK to overturn Lochner, but not Roe because of this
framework.

Stenberg v. Carhart (p. 871)

A. OH has similar statute get around ruling; challenge Nebraska partial-birth abortion procedure
B. Court finds two problems with statute
a. Sufficiently vague as to cover not only DNX (partial birth abortion) but also DNE
b. No health exception
C. O’Conner: split decision – always the good default for splinter/swing vote
a. Could impact other procedures (ban other, less controversial and more common
abortion procedures)
D. If using rational basis or something more, what’s the state interest in the procedure (since law
did not determine any time period in which can be administered)
E. Liberty interest is terminating pregnancy (not terminating in a particular way, unless is safer)
F. Pre and post viability: even post viability, has to be exception for health and life of mother
G. 14th Amend (substantive due process) is where we start but can make an argument for
rational basis and strict scrutiny and be “right” either way
H. O’Connor’s opinion is essentially a road map on how to make a constitutional partial-birth
abortion statute.
I. Worth noting: Kennedy and O’Connor disagree on what Casey means and how to apply it.
J. Majority argues that a health exception should be made by doctor. Dissent says that Congress
should decide.
a. Issues of institutional competence.

Congressional Application of the Equal Protection Clause

Substantive due process
 What constitutes a “fundamental liberty”; what are they and how do we know
o Griswald fundamental right to privacy v. Lochner can restrict how much people wk
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 o Right to privacy encompass family/intimate but not economic (business) relationships
o Has to be rooted in tradition, fundamental understanding
 Must rise to Constitutional violation (not just something people upset about)
 Right to die cases
o Cruzan v. Director, Missouri Dept. of Health
 Right to refuse medical treatment, including food and water
 State has compelling interest in making sure person wants treatment withheld
o Washington v. Glucksberg
 Prohibition on suicide; SC upholds statute; suicide not fundamental liberty
 Rational basis test – not fundamental liberty
 State has several interests in not assisting suicide (equal protection issues for
allowing some people and not others, must justify under rational basis test)
 No fundamental right to die or commit suicide
 O’Conner says might be position where do have fundamental right (i.e.,
someone in severe pain, etc.) that would make dying a fundamental right
 Due process clause specially protects those fundamental rights and liberties
which are objectively ‘deeply rooted in this nation’s history and tradition’ and
implicit in the concept of ordered liberty, such that neither liberty nor justice
would exist if they were sacrificed

Bowers v. Hardwick
A. Does the right to privacy extend to homosexual sodomy?
B. Statue was, on its face, neutral; but was not being applied neutrally (unequally enforced)
C. (like Railway Express case – majority pass law they’re OK w/, too; has to be equally applied)

Lawrence v. Texas
A. Court overturns Bowers but does not say is fundamental right
B. “no legitimate interest” = rational basis
C. Scalia:
a. Argues decision makes gay marriage a foregone conclusion (O’Conner disagrees)
b. Also, says are all sorts of laws we think are silly that are ultimately moral legislation;
is say moral disapproval cannot pass rational basis, is not how historical development

Stare Decisis
 Lochner (overturned by West Coast Hotel)
 Plessy (by Brown v. Board)
 Roe v. ???? (not yet)
 Bowers (by Lawrence)
 Court looks to:
o Precident unworkable
o Reliance interests
o Doctrine undermined or superceeded by president
o Change in fact
 B/C of stare decisis, SC need Constitutional amendment to change past rulings

Section 5 of 14th Amendment

 Congress shall have power to enforce, by appropriate legislation, the provisions of this article

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  Katzenback case (court gave leeway; small area of fundamental right that should not be
infringed upon so create “protective bubble” around it that includes range of cases not a part
of fundamental rights; so congress can create law to protect)

City of Boerne v. Flores (p. 226)

A. Congress changes law to make it acceptable for Some Native Americans to use peyote within
religious ceremonies under equal protection (1st and 14th Amendment rationale)
B. SC strikes down statute b/c
a. Congress can't go back and overrule judicial ruling when regards fundamental rights
b/c can't redefine fundamental rights b/c would change Constitution
b. Congress does not have the power to redefine the rights granted by the 14th Amend
c. Cited Marbury v. Madison – total full circle!
d. Congress has limited powers – can’t expand w/o amendment
e. Otherwise, would make amendments (and Constitution) and malleable as legislation
f. Court says congruence/proportional – Congress can build on court rulings, not change
g. Congress has the power to adopt measures that are “congruent and proportional.”
h. As long as the remedy isn’t over broad, Congress has the power to recognize and
protect Constitutional Rights (congress can enact prophylactic measures; court is
more permissive about race)

OK Too Broad
Right
Tests
Due Process Clause
Economic Measures => rational relation
Fundamental/Individual Rights => strict scrutiny
Equal Protection Clause
Gender => heightened scrutiny
Race => strict scrutiny
Note where immutable characteristic always causes a group to always be the structural
minority the test will always be strict scrutiny as a protection against the tyrannical thrust

Test Ends Means

Rational Basis
Rational Basis w/ teeth
(Between RB & IS)
Intermediate Scrutiny
(gender)
Strict Scrutiny (race or
national origin)
legitimate government
purpose
legitimate government
purpose
OR important government
interest
important government
interest (for gender,
compelling state interest)
compelling state interest,
pressing public policy
Rationally related
substantially related
OR
rationally related
substantially related
necessary and narrowly
tailored

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Cases Standard of Review
 Romer (CO legislature forbid all rational basis review
local discrimination laws); voided
 Moreno (Hippies); voided statute
 NY Transit (methadone) OK
 Lee Optical (limit fill lens
prescriptions); voided statute
 Railway Agency (no car adds but
on professor. Vans); OK
 City of Cleaborn (home for rational basis w/ teeth
retarded); voided
 Craig v. Boren (girls buy beer intermediate scrutiny
early); voided
 US v. VMI (no girls in our tree
house); voided
 Nguyen (illegitimate kid and
citzenshiph/promote family); OK
 Korematsu (Japanese internment); strict scrutiny
OK ** wartime
 City of Richmond (race contractor
award quota); voided
 Bakke (UC Davis racial admission
quotas); voided
 Michigan Undergrad (20pts for
race); voided, disproportionate
 Michigan Law (soft number award
to race apps); OK

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