CONSTITUTIONAL LAW PROFESSOR MUNGER SPRING 2012 I.

CONSTITUTIONAL INTERPRETATION
a. Two kinds of issues
i. Substantive what the constitution says ii. Interpretive how the court interprets the constitution

b. Interpretation Arguments
i. Text based on the text or absence of text; an appeal to the unadorned (plain) language of the text the inclusion of one thing is the exclusion of another 1. McCulloch v. Maryland 2. Gibbons v. Ogden ii. Original Intent/Historical the meaning understood at the time of enactment 1. What did the Framers think? 2. What did the ratifiers think? iii. Structural analysis from particular structures established by the Constitution 1. Separation of Powers tri partite division of government 2. Federalism separately existing state and national governments as political entities 3. Structural role of citizens in the political order a. Commerce Clause (US v. Lopez, US v. Morrison) b. 10th amendment (NY v. US, Printz v. US) c. 11th amendment (Seminole Tribe v. Florida) iv. Precedent/Doctrinal once the court has addressed an issue, it should follow it v. Prudential emphasis on consequences of adopting particular decision in any given case vi. Natural Law/Ethical Argument 1. What is right? 2. Based on broad generalities 3. Often entails an examination of the ethos of a limited government

c. HYPO The second Amendment

i. A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed 1. Textual What does militia mean a. Universal militia everyone would bear arms b. Focus on well-regulated 2. Historical concern about Revolution (not self-defense) 3. Doctrinal only 1 case on point Miller Ct. held that weapon was not type guaranteed by 2nd amendment not useful for purpose of militia 4. Prudential existence of police force has made individual armament social cost of distribution of guns to everyone

d. Historical Background
i. Articles of Confederation (1781) States maintained a lot of autonomy; central government was weak ii. Constitutional Convention (1787) The Articles of Confederation required an unanimous decision directly by the people to amend, but the Constitution was ratified by 9 votes and via conventions of representatives

II.

THE SUPREME COURTS AUTHORITY TO REVIEW ACTS OF CONGRESS

a. Article III 2 out the jurisdiction of the Court
i. Marbury v. Madison (1802)

1. Judiciary Act gave Supreme Ct. jurisdiction to issue writ of mandamus (order to a
public agency or governmental body to perform an act required by law)

2. Conflicts with Article III 2 of the Constitution which grants

a. Supreme Court original jurisdiction only in all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be a party b. Congress cannot add to Supreme Cts original jurisdiction

III.

JUSTICIABILITY: STANDING, MOOTNESS, POLITICAL QUESTION

a. The justiciability doctrines determine which matters federal courts can hear and decide AND which must
be dismissed i. For justiciability, must prove 1. Not an advisory opinion 2. He has standing 3. Not moot 4. Case is ripe 5. Not a political question

b. Advisory Opinions
i. Article III Supreme Court cannot issue advisory opinions 1. Overstepping their boundaries 2. There is nothing in the Constitution that would allow this

c. Standing Who can sue

i. Constitutional Requirements 1. Injury in Fact injury must be particularized to the , concrete; and to have already occurred or imminent a. Lujan v. Defenders of Wildlife i. s wanted ESA to apply to areas outside of the US ii. Claimed their injuries would be that the animals they traveled to see would be endangered and they would not be able to see them iii. Court said there were no clear injuries 1. s hadnt even made plans to travel b. POLICY to ensure personal stake and the best advocacy; separation of powers the court is there for case by case adjudication 2. Causation the injury must be fairly traceable from the actions identified to the injury; cause effect, not due to third-party actions a. Allen v. Wrights 3. Redressable a decision by the court must be likely to address the injury with specific resolution a. Linda R.S v. Richard D i. No redressability putting a father in jail would not guarantee the the money she seeks from the suit; what about emotional or political response?

ii. Prudential Requirements 1. The Limitation on Third Party Standing generally must assert his own legal rights and interests and cannot rest his claim to relief on the legal rights of third parties a. Exceptions to the Rule i. Where the third party is unlikely to be able to sue ii. Close relationship between and third party 1. Elk Grove Unified School District v. Newdow iii. The Overbreadth Doctrine

2. The Prohibition Against Generalized Grievances Prevents individuals from suing if

their only injury is as a citizen or a taxpayer concerned with having the government follow the law a. The bar against generalized grievances is inapplicable if a person claims that he has been denied freedom of speech or due process of law b. Examples i. Taxpayers whose money directly relates to a specific program may have a justiciable claim in some instances, but not ALL taxpayers 3. Plaintiff be Within the Zone of Interest a. Zone of Interests protected by the statute in question b. may sue if it can show that it is within the group intended to benefit from the statute i. In order to have standing the must be a part of the group intended to benefit from the law d. Political Question i. Refers to subject matter that, even though all of the jurisdictional and other justiciability requirements are met, the Court deems to be inappropriate for judicial review 1. Let each branch resolve their own problems ii. Baker v. Carr factors for determining whether a PQ exists, if any single factor is satisfied, it will be a PQ and will not be decided by the court 1. Is there a textually demonstrable constitutional commitment of the issue to a coordinate political department 2. Are there judicially discoverable and manageable standards for resolving the controversy 3. Does resolution of controversy require an initial policy determination of a kind clearly for non judicial discretion 4. Will judicial resolution express a lack of respect for a coordinate branch of the government 5. Is there an unusual need for unquestioning adherence to a political decision already made 6. Will multifarious pronouncements by various departments cause embarrassment to the government iii. Specific types of cases where PQ Doctrine generally arises 1. Reapportionment Baker v. Carr a. Held that malapportionment claims that violated the Equal Protection clause were justiciable 2. Political Gerrymandering a. Non-justiciable b. Plurality opinion in Vieth v. Juberlirer stat there are no judicially recognizable standards for these types of cases c. However, a majority of the Justices said that such challenges can be heard if there is a manageable legal standard i. Who is to decide whether such standard exists

3. Congressional Membership
a. Often, the Court has held that congressional judgments pertaining to its internal governance should NOT be reviewed by the federal judiciary b. Powell v. McCormack shows that some issues WILL be justiciable

4. Impeachment Process
a. Non-justiciable b. Nixon v. US i. Article I 3 demonstrates a textual commitment of impeachment to the senate

ii. Framers intended there would be two separate actions: the impeachment action and the criminal action iii. Framers saw impeachment as the only legislative check on the judiciary 1. Judicial involvement would undercut this independent check on judges iv. Justice Souter (concurring opinion) 1. Recognized the potential need for judicial review 2. Shows that PQ is a prudential limitation and the Court may change its mind

THE FEDERAL LEGISLATIVE POWER

I. Basic Principle Congress may only act if there is express or implied authority in the Constitution a. Sources of Legislative Power i. Article I grants legislative power to Congress 1. All legislative powers herein granted shall be vested in a Congress of the United States which shall consist of a Senate and a House of Representatives ii. 10th Amendment 1. The powers not delegated to the United States by the Constitution, not prohibited by it to the States, are reserved to the States respectively, or to the people

b. When evaluating the constitutionality of any act of Congress, 2 questions arise

i. Does Congress have the authority under the Constitution to legislate ii. If so, does the law violate another constitutional provision or doctrine 1. Ex infringing on separation of powers or individual liberties

c. Scope of Congressional Powers

i. McCulloch v. Maryland 1. Overview at the time, there were significant struggles over public works projects and federal contracts; establishing national tariffs to raise revenues; and proposals for education development science 2. Issue whether Maryland had the authority to tax the Second Bank of the United States within its boarders (after it is established that Congress has the power to incorporate the bank) 3. Holding the federal governments powers are not limited to those enumerated but implied powers as well a. Four reasons for Congress implicit constitutional power to create the Bank i. Historical analysis of the First Congress which allowed the First Bank of the US ii. The people ratified the Constitution so it is them who are sovereigns, not the States iii. Scope of congressional powers under Article 1 1. Congress may choose any means, not prohibited by the Constitution to carry out its lawful authority iv. Necessary and Proper Clause 1. Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited but consistent with the letter and spirit of the constitution ARE CONSTITUTIONAL

4. Held MD tax to be unconstitutional and void 4

a. Rule the states have no power, by taxation or otherwise, to retard, impede,

burden or in any manner control the operations of the constitutional laws enacted by Congress to carry into execution the powers vested in the general government

5. Textual Interpretation The central problem in this opinion is that the Constitution does
not expressly give the US government the power to incorporate a bank or anything similar, so how does Marshall argue that that they can do so a. 10th Amendment Carried forward from the Articles of Confederation, with only small word change expressly there is no word expressly in the current version of the 10th amendment evidence of implied powers of the government b. Necessary and Proper Clause rather than as a limiting instruction, claims that it is used at the end of a list of enumerated powers and, therefore, should be considered an EXPANSTION of the power of the government ii. US v. Comstock 1. Most recent and different interpretation of the Necessary and Proper Clause 2. Issue whether the Federal Government has the authority under Article I to enact a federal-civil commitment program allowing the DOJ to detain mentally ill, sexually dangerous federal prisoners beyond the date the prisoner would otherwise be released 3. Held congress DOES have the power and looked at 5 considerations/factors a. The breadth of the Necessary and Proper Clause i. Is it rationally related to a constitutionally enumerated power b. History of federal involvement in particular arena c. The reasons for the statutes enactment i. Here, Congress reasonably extended its longstanding civil commitment system to cover mentally and sexually dangerous persons who were already in federal custody d. The statutes consideration of State interests e. Scope/links of the statute i. Here, precedents established that from the implied power to punish the federal government further inferred both the power to imprison and the federal civil commitment power 4. The DISSENT attacks this 5-part test arguing that it cannot be reconciled with the Necessary and Proper Clauses plain test no does it provide if all 5 factors must be met or only some of them, or which of the factors are imperative II. THE COMMERCE POWER a. Federalism and Commerce i. What power does the Federal Government have regarding commerce? 1. Power to regulate commerce among the states Article I 8 2. For the general welfare of the United States Article I 8 ii. Why was Congress given the power to regulate commerce? 1. Destructive competition, separate currencies caused a need for centralization on certain commercial matters 2. To remove barriers to free trade among states 3. Regulation had multiple meanings even to the framers of the Constitution; how can we know how far that power extended

b. The Commerce Clause Power to regulate commerce with foreign nations, and among the several
states, and with the Indian Tribes i. 4 periods of Transition into Interpretation of the Commerce Clause 1. Foundational Period (Marshall Court) 2. 1890s 1937 Industrialization period and legislative response

3. 1927-1990s Broader, more expansive federal role 4. 1990s present Increasing limitations and conservatism c. Throughout the various eras of the Commerce Clause, the Court has considered three questions
i. What is commerce 1. Is it one stage of business or does it include all aspects of business and even life in the United States ii. What does among several states mean 1. Is it limited to instances where there is a direct effect on interstate commerce or is any effect on interstate activities sufficient iii. Does the 10th Amendment limit Congress 1. If Congress is acting within the scope of the commerce power, can a law be declared unconstitutional as violating the 10th Amendment

d. FOUNDING PERIOD
i. The Marshall Court was a proponent of strong, broad based federal power; for the most part, these decisions expanded the reach of the Federal Government ii. Gibbons v. Ogden 1. Issue Whether New York could grant and operate a monopoly over a specific service or whether the Federal government is the only body capable of this power; conflict between federal law and stat law on monopolies 2. Holding federal law prevails because of the Supremacy Clause; if the federal law is validly enacted, the state cannot win\ 3. QUESTIONS a. What is Commerce i. Ogden argued that commerce was solely the traffic of trade and that navigation or transportation services should not be included ii. Marshall contends, however, that All America understands, and has uniformly understood, the word commerce to comprehend navigation b. What does among the several states mean i. Commerce does not stop at the external boundary line of each state, but may be introduced into the interior may penetrate into the interior of the state ii. The only limitation is on any commerce that is SOLELY within a single state and never reaches the boundaries of another c. Is there some subject matter that is meant for the states and not the federal government i. Powers of Congress are complete in themselves; there is nothing to stand in the way of these powers except the political process 1. Prudential argument

e. INDUSTRIALIZATION PERIOD 1890s to 1937

i. Limiting the Federal Commerce Power in reaction to Marshalls expansion 1. The Civil War The war was a game changer for this type of thinking; it created a renewed emphasis on states rights that moved the court into its second period of interpretive moves 2. Industrial Revolution legislation tended to combat industrialized ills including overcrowding, social ills, and increasing poverty ii. QUESTIONS 1. What is Commerce

a. US v. EC Knight EC Knight was a sugar refinery that controlled nearly 98%

of the market; the court, however, found the corporation out of the bounds of the Anti Trust laws imposed by the federal government i. The court justified this opinion on the basis that manufacturing should be a separate consideration from commerce ii. Although connected, they are not within the same realm of Congresss power controlling monopolies is not part of the commerce power unless the monopoly is on commerce itself 2. What does among the several states mean a. Carter v. Carter Coal Co Indirect effects and direct effects on the economies of individual states are considered separate, categorical distinctions within the meaning of commerce i. Direct effects are the only ones the court should be concerned with

f. NEW DEAL PERIOD 1937 to 1990s

i. NOT one federal law was declared unconstitutional as exceeding the scope of Congresss commerce power 1. The economic crisis of the depression made laissez-faire economics seem unattainable ii. Three KEY decisions 1. NLRB v. Jones Substantial Effects Test a. Challenge to the National Labor Relations Act prohibited unfair labor practices such as discrimination against union members, and established the NLRA Board to enforce the law which contained detailed findings on the relationship between labor and commerce b. Holding although activities may be INTRAstate in character when separately considered, if they have such a close and substantial relation to INTERstate commerce that their control is essential or appropriate to protect hat commerce from burdens and obstructions, Congress cannot be denied the power to exercise that control

2. US v. Darby a. Challenge to the Fair Labor Standards Act which prohibited the shipment of
goods made by employees who were paid less than the prescribed minimum wage, in interstate commerce b. Holding TBD

3. Wickard v. Filburn a. Secretary of Agriculture set a quota for wheat production and each farmer was
given an allotment fined a farmer, who grew wheat primarily for home consumption, for exceeding his allotment i. Farmer claimed that he could not be fiend because the wheat he grew for home consumption was not part of interstate commerce b. Holding upheld the application of the federal regulation because of the cumulative effect of that wheat on the national market iii. Test Derived from these Cases 1. Rational Basis Test a. Congress could regulate anything under the commerce clause so long as there was a rational basis for believing there was an effect on commerce i. Difficult to find anything that Congress could not regulate under the commerce clause so long as it was not violating another constitutional provision

b. Congress could exercise control over ALL PHASES of business

i. No longer did the Court distinguish between commerce and other stages of business such as mining, manufacturing and production c. Congress could regulate any activity that taken cumulatively had a substantial effect on interstate commerce i. No longer did he Court distinguish between direct and indirect effects on interstate commerce ii. Could regulate trivial local, intrastate activities that had aggregate effects d. Federal law would be upheld so long as it was within the scope of Congresss power and the commerce clause was interpreted so broadly that seemingly any law would meet this requirement i. No longer was the 10th Amendment a limit on Congressional power ii. Traditional governmental functions left to the States iv. 3 types of Federal Laws were adopted under the Commerce Clause 1. Regulatory Laws a. Congress can regulate purely intrastate activities including all aspect of business if there was a rational basis for believing that there is an interstate effect

2. Civil Rights Laws a. Used the Commerce Clause to enact Civil Rights legislation
i. At the time, the 14th Amendment (Equal Protection) could only be used to regulate government conduct, not private behavior, so this made sense b. Among the Several States thee cases represent probably the farthest reaches of the Commerce Clause i. Heart of Atlanta Motel v. United States 1. Discriminating against black patrons at a hotel placed burdens on interstate commerce by making it difficult for people to cross stat lines and contribute to the local economy 2. Although there was no evidence in this case regarding whether there was an ACTUAL effect on commerce for a small urban hotel to discriminate against black patrons the hotel is one of thousands and their aggregate effect have a substantial effect on interstate commerce ii. Katzenbach v. McClung 1. Ollies BBQ had even a smaller effect on interstate commerce because it did not serve any out-of-state patrons the court reasoned that the restaurant purchased meat that was delivered from out of state and linked this to its discrimination policy 3. Criminal Laws a. Perez v. United States i. Court concluded that it was rational for Congress to believe that even intrastate loan sharking activities had a sufficient effect on interstate commerce 1. Do not have to have particularized findings on how the action affects each and every state and the uniformity across the nation 2. Rational belief was enough

g. MODERN INTERPRETATION 1995 TO PRESENT

i. Court began to pull back some of the expansive scope of the Commerce Clause by invoking the 10th Amendment with more vigor than previously applied 1. US v. Lopez examined the constitutionality of the Gun Free School Zone Act of 1990

a. Central Ruling on the Commerce Clause the court laid out a three part test for
determining the constitutional scope of the commerce clause i. May regulate the channels of interstate commerce 1. Darby 2. Heart of Atlanta ii. May regulate instrumentalities of interstate commerce 1. Persons or things moving in commerce iii. May regulate those activities which have a substantial effect on interstate commerce b. The courts reasoning as to why this statute does not have a substantial effect on interstate commerce i. Its a criminal statute without economic purpose 1. Wickard is different because in Wickard the legislation was part an economic scheme of regulation here the act merely targeted gun possession as an independent criminal act ii. Jurisdictional element if the legislation had a specific jurisdictional element that specified that the gun was purchased in interstate commerce or tat the activity was specifically limited to those affected by an interstate transaction, it might be constitutional iii. Congressional findings although Congress need not show formal findings as to the substantial effect that the activity has on interstate commerce, some findings would enable the court to evaluate the legislation with more specificity

2. US v. Morrison examined the constitutionality of a federal statute aimed at providing a

federal civil remedy for victims of gender motivated violence a. Inherently Economic NO, it is a statute aimed at changing the behavior of private citizens violence against women is not economically motivated b. Sufficient findings to draw connection to commerce NO, the government did not provide any evidence that gender-motivated violence had any economic motivation or connection it is merely a criminal act c. This is different from Heart of Atlanta Motel nature of the activity being regulated, a commercial transaction v. a criminal, noneconomic transaction ii. 3 Questions to be answered 1. What is Commerce if the regulation is deemed to aimed at activities that are inherently economic, the pre-Lopez tests apply; if not, then Lopez requires a 3-part determination 2. What does among the several states mean Congress may regulate the channels, instrumentalities, and those activities that substantially effect interstate commerce 3. Is there an area that is inherently for the states Truly local v. Truly National suggests that there is a categorical element to the determination but it is still left quite vague; the 10th amendment still plays an important role

h. LIMITS ON THE COMMERCE POWER

i. Internal

1. Text of the Constitution

ii. External 1. Equal Protection 2. 1st Amendment (didnt study) 3. 10th Amendment 4. Necessary and Proper Clause 5. Other Constitutional provisions

iii. 10th Amendment as a Limit 1. We see the court begin to draw the line on some federal regulations that mandated state action in ways that threatened state sovereignty

2. New York v. US Federal Act required states to dispose of radioactive waste within
their boarders, however, NY state were unable to comply with the law due to resistance from residents and lack of cooperation from neighboring states and NY questioned the law Court found that the take title provision of the Act was unconstitutional because it did not give the States a choice, and thus coerced the States to act in violation of the 10th Amendment a. What power did Congress use to enact this i. Commerce Clause was not enacted under this, but it would not have been a problem because it requires buying and selling of radioactive wastes across state lines ii. 10th Amendment while there was no commerce clause issue, the court invokes a conflict from the 10th Amendment, which serves as a reminder of the limited nature of Congresss power to mandate certain state action the amendment limits Congresss power to compel state to act in SOME cases 1. Congress was attempting to commandeer state legislative power for its own interests, by taking over certain state sovereignties a. Congress MAY NOT commandeer, but it may compel states to act in the following ways i. Spending power Congress may encourage state action by attaching conditions to federal funding ii. A program of cooperative federalism give the states the choice of whether to adopt a federal program through state legislation or be preempted through regulation b. Commandeering the states in this way confuses accountability and keeps the states from taking ownership of their own actions

b. Why is the take title provision unconstitutional

i. The court explains that the provision creates a Hobsons Choice either way, the states have no choice but to comply with the regulation 3. Printz v. US whether certain provisions of the Brady Handgun Violence Prevention Act, which required state and local law enforcement officers to conduct background checks on perspective handgun purchasers, violated the 10th Amendment a. Did not approach a Lopez reasoning because the activity targeted by the regulation was the sale/purchase of a handgun and therefore inherently economic in nature b. In contrast to New York, the regulation targeted state executive functions rather than the legislative process; Scalia found this was still an unconstitutional commandeering of state executive power i. Mandatory collection of personal data and birth certificates

4. Reno v. Condon a. Federal Act regulating the disclosure and resale of personal information in DMV
records without consent

b. Court held it did NOT violate the 10th amendment did not require the States in
their sovereign capacity to regulate their own citizens

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III.

TAXING AND SPENDING POWER a. Article I 8 Congress shall have power to lay and collect taxes, duties, imposts and excises to pay the debts and provide for the common defense and general welfare of he United States; but all duties, imposts and excises shall be uniform throughout the United States i. VERY BROADLY defined power of the Federal Government

b. South Dakota v. Dole leading case on the issue today

i. The court examined the constitutionality of a statute, which attached a condition for states to receive federal funds for highway improvement, that each state increase the drinking age to 21 years of age ii. Court found that the law was constitutional because it does not fit into any of the below restrictive categories 1. Must be in the pursuit of general welfare 2. Must make its conditions unambiguous there cannot be a failed understanding of what is expected 3. Must be related to the federal interest in particular national projects or programs 4. Must not violate any other Constitutional provisions a. Most significant hurdle probably b. Means that Congress may NOT use its spending power to induce states to engage in activities that would themselves be unconstitutional c. Does NOT prohibit Congress from achieving indirectly what it could not achieve directly iii. Removed 10th amendment issue entirely finding that this was not coercive, commandeering legislation because it merely made the states who did not comply lose a small percentage of their funding IV. CONGRESSS POWER UNER THE POST CIVIL WAR AMENDMENTS a. Three Reconstruction Era Amendments (13th, 14th, 15th) contain provisions that empower Congress to enact civil rights legislation i. 13th Amendment prohibits slavery and involuntary servitude except as punishment for a crime legalized emancipation proclamation ii. 14th Amendment No STATE shall abridge the privileges or immunities of such citizens nor deprive any person of life, liberty or property without due process or deny equal protection under the law 1. Similar to a mini bill of rights all in one sentence provided to each state individually 2. Used to justify some of the most important Civil Rights Acts in the United States a. 42 USC 1983 no constitutional right or federal statutory right can be violated under the color of state rights the 14th amendment was the stepping stone to this legislation and was used to justify its passage iii. 15th Amendment Equal Protection for Voting rights the only amendment of the three that specifically mentions race or national origin like the 14th amendment, this amendment is directed towards states and is framed in such a way that explains that states shall not interfere with the rights set forth in this section

b. 13th Amendment
i. Civil Rights Cases (1886) limited the scope of the 13th Amendment to ending slavery refusing to expand its scope to prohibiting discrimination between private citizens

c. 14th Amendment
i. 1 lays out the rights associated with citizenship and expands the meaning of citizenship ii. 5 states The Congress has power to enforce, through appropriate legislation, the provisions of this article

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iii. State Action Doctrine the state action doctrine is step one in analyzing the 14th amendment; the legislation has to be directed at state action in some way 1. Process of Analysis a. Address the issue of state action is the legislation directed at state action in some way b. What are the various meanings of state action and how does that affect the proposed legislation iv. US v. Morrison Virginia Tech University rape 1. Under the commerce clause, the court struck down the VAWA because the violence did not substantially effect interstate commerce a. Not inherently economic b. Not enough findings c. No jurisdictional element 2. Court moved on to a 14th amendment analysis a. State Action Analysis the law ONLY applies to the actions of private citizens, not to state sponsored action b. Remedy court explained that the could get sufficient remedy from a state court and through state legislation

d. Scope of Congresss Power

i. Two Views 1. Federalist (Narrow view) Congress CANNOT create new rights or expand the scope of rights under 5 authority, but can act ONLY to prevent or remedy violations or rights a. This view has been reaffirmed by the Court over the last decade b. City of Boerne Case held that Congress, under 5 may NOT create new rights or expand scope of rights i. Congress is limited to laws that prevent or remedy violations of rights recognized by the Supreme Court, and these must be narrowly tailored (proportionate and congruent) to the constitutional violation c. Boerne Test the court, thereby adopted a new test for determining constitutionality with the 14the Amendment i. Is there state action ii. Is the violation of the right recognized by the Supreme Court iii. Is the remedy adopted congruent and proportional to the violations or risk of violations demonstrated by the legislative record 1. To prove this, Congress must show the nationwide scope of the violation in the legislative record and adopt a remedy appropriate to the scope identified 2. Nationalist (Expansive view) Congress may use its 5 authority to expand the scope of its rights a. Textualist Interpretation Congress may enforce b. Structuralist Interpretation the Bill of Rights, as a whole, is intended to limit the powers of the states, not congress; perhaps, therefore, Congress should have some ability to interpret the meanings of the Constitutions c. Katzenbach v. Morgan Challenged a federal statute that prohibited states from imposing English literacy tests as qualifications to vote, a common practice in many Southern States aimed at keeping blacks from the polls i. In Lassiter, the court had previously determined that voter qualifications were the realm of the states and found no discriminatory practices in the voter literacy requirements ii. In determining whether the statute was constitutional the court analyzed

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1. Could have concluded that granting Puerto Ricans the right to vote would empower them and help them to eliminate discrimination against them a. Remedy for discrimination iii. Could find that the literacy test denied equal protection even though it was contrary to Lassiter 1. Gave Congress the authority to define the meaning of the 14th amendment V. CONGRESS POWER TO AUTHORIZE SUITS AGAINST THE STATE GOVERNMENTS a. 11th Amendment was adopted to overturn specific Supreme Court decisions passed to limit the original jurisdiction of the court as specified in Article III i. The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any foreign state 1. Despite this very narrow history, the court has steadily expanded the meaning of this provision has been used to reach federal question jurisdiction AND those suits by citizens of a state against its own state b. There are 3 ways the 11th Amendment can be avoided i. The states can waive immunity voluntarily 1. This is an odd element of the doctrine; they can voluntarily waive an element of the Constitution? ii. Suits can be brought against state officers, themselves, who do not share the sovereign immunity iii. The federal government can individually sue the state but this is highly unlikely c. This limitation is always lurking in the background of 14th amendment cases the amendment was adopted to prevent citizens of one state from suing another state in order to protect sovereign immunity i. If a statute is found in violation of the 11th amendment, the statute will remain valid; only the remedy provided to citizens again sovereign state will be invalidated

d. Fitzpatrick v. Bitzer the 11th Amendment does not bar litigation to enforce rights under the Civil War
Amendments these rights can be entertained by federal courts or state courts

e. Seminole Tribe v. Florida The 11th Amendment only applies to the reconstruction amendments
because it was intended to limit abuses of state rights i. The 14th Amendment placed limitations on the 11th Amendment, but ONLY with respect to the rights guaranteed by the 14th Amendment

f. Florida Prepaid v. College Savings Bank

i. Example of the attempts by Congress to us 5 of the 14th Amendment powers 1. Is the remedy created by Congress congruent and proportional to the violated rights identified by the Supreme Court ii. Questions a federal patent law, which was allegedly violated through marketing of a particular financial product 1. The 11th Amendment applies to any of the enumerated powers therefore, citizens cannot sue the state in those situations 2. The court finds jurisdiction in the Commerce Clause and the Bankruptcy right; but these cannot be used to override the 11th Amendment a. The court determines that the power was not properly used in this case because there was insufficient evidence to show a patter on rights violations that supported a nationwide remedy through this statute

g. University of Alabama v. Garrett at issue was whether the 11th Amendment limited s remedy
against the state for violation of the Americans with Disabilities Act

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i. Is this a valid exercise of 5 of the 14th Amendment rights 1. Is there a state action a. Yes, The University of Alabama was a state actor 2. Is the violation of the right recognized by the Supreme Court a. Supreme court precedent on the rights of persons with disabilities under the Equal Protection Clause i. Rational Basis Review In Clebourne, the court determined that the rights of the disabled were subject to rational basis review this requires a light burden on the state to rationalize its abrogation of disabled persons rights or unequal treatment 1. Disabled people are not protected as much under the Equal Protection Clause as other minority groups 3. Is it congruent and proportional a. The court finds insignificant anecdotal evidence of the violation of rights by state action of disabled persons in this instance ii. The case implies that whatever the scope of the right the Supreme Court sets will necessarily limit the arguments of Congress for the validity of a statute involving the 14th Amendment the more narrowly the right is defined, the less likely stat action permitted by the statute will be upheld h. Nevada Department of HR v. Hibbs i. Here the court upheld the FMLAs state remedy because gender-based discrimination is subject to HEIGHTENED SCRUTINY, rather than rational basis review 1. The states bear a much higher burden of justification under heightened scrutiny 2. Allows congress to show sufficient findings to justify the remedy in this situation and prove congruence

THE FEDERAL EXEXUTIVE POWER

I. Inherent Presidential Power a. Article II enumerates the list of things the President may do i. Inherent Powers Hamilton pointed to the language in the first sentence of Article II, that The executive power shall be vested in a President of the United States of America was not limited by the herein granted language included in Article I his powers were technically unlimited and could be implied from the powers enumerated and the executive branchs purpose to execute the laws of Congress ii. Youngstown Sheet & Tube v. Sawyer President Truman issued an order direction the Secretary of Commerce to take possession of and operate most of the nations steel mills in order to maintain stability in steel production during the Korean War Sawyer was the Secretary of Commerce at the time 1. Four different approaches emerges as to when the President may act without express constitutional or statutory authority of those, Justice Black and Justice Jackson/Frankfurters approaches have become most influential a. Model I Justice Black (texualist) rejects the inherent powers argument because of the lack of textual backing for it i. Under this Model the President is limited to the literal wording of the Constitution and cannot act beyond those specific powers leaves no or very limited ability for the President to exercise even emergency powers 1. Still leaves open the option of the veto b. Model II Justice Douglas i. The emergency situation does not, in fact, create power for the President to use it merely marks occasion to use an existent power

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1. Does not object to the Presidents use of an emergency to take action, but he limits that power to that which does not interfere with the powers of other branches 2. United States v. Nixon c. Model III Justices Frankfurter & Jackson say what the President does, has to match up with statutory power (delegated by Congress) or constitutional power in some way i. Three main categories where the President may still act, but the breadth with which he may act is different 1. When the president acts with express or implied authorization by Congress both branches are on the same page about something that doesnt violate the constitution in an obvious way ii. When the President acts in absence of either a Congressional grant or denial of authority, he must rely entirely on his own independent powers, but there are still some opportunities for congruence between the branches iii. When the President takes acts consistent only with his enumerated powers that are incompatible with congresss determination on the matter 1. Jackson describes a workable relationship can stand as long as one branch does not seize the powers of another entirely 2. Frankfurter Constitution can take on different meanings at different times, so the history of the words, themselves, is significant Until Congress disapproves, the President can continue to act d. Model IV The Unitary Presidency i. Only come up in times of extreme emergency ii. President should have much more power than any of the previous models articulate b. Executive Privilege i. Refers to the ability of the president to keep secret conversations with or memoranda to or from advisors 1. Limits to the right When the withholding is NOT for the sake of protecting national security or maintaining the confidentiality of his advisors so as to get the most candid advice possible ii. United States v. Nixon whether the President could withhold, through executive privilege the Watergate Scandal oval office tapes from the Special Prosecutor, who was investigating the Presidents involvement in trying to fix the election 1. Analyzed thought Model II executive privilege is not absolute, but rather must yield when there are important countervailing interests a. The need for evidence at a criminal trial outweighed the executive privilege II. Authority of Congress to Increase Executive Power a. The extent to which Congress, by statute, may increase presidential powers beyond what are found in the Constitution i. Clinton v. City of New York declared unconstitutional a statute empowering the President to veto particular parts of appropriations bills while allowing the rest to go into effect (line-item veto) 1. Majority took the formalistic approach (Model I) a. Stressed procedures prescribed in the Constitution for enacting laws and avoiding any consideration of the practical benefits of a line item veto i. Changes must come from a constitutional amendment, not legislative action

15

b. Unconstitutional increase in presidential power c. By exercising the line item veto, the President was changing the law final version different than what Congress passed 2. Dissenters took the functional approach (Model III) a. Argue that, in fact, this act was an example of a workable relationship scheme i. The act gave new meaning to the specific realities of he veto power and gave both branches more opportunity to negotiate about the lawmaking process III. Separation of Powers and Foreign Policy a. The Constitution is not silent on matters of foreign policy there are relatively few clauses dealing with it, but they are as follows i. Article I Congress can 1. Regulate commerce with foreign nations 2. Declare war 3. Grant letters of marquee and reprisal 4. Make rules concerning captures of land and water 5. Raise and support armies 6. Define and punish felonies on the high seas ii. Article II The President 1. Is Commander in Chief of the army and navy and of militia of the several states when properly in service of the federal government 2. Has power by and with advice by Congress, to make treaties, provided that 2/3 of the Senate agrees b. Foreign Policy v. Domestic Affairs i. The court has sometimes responded to issues relating to foreign policy with standing arguments and other justiciability doctrines (term used to describe the prerequisites to a federal courts exercise of judicial power) ii. United States v. Curtiss Wright Whether the Congress could delegate foreign affairs power to the President in order to make a joint resolution in response to the Chaco Border Affair 1. Court upheld Congresss delegation to the President to stop munitions shipments and spoke generally of a fundamental difference between domestic and foreign policy a. Controversial decision c. Treaties and Executive Agreements i. Treaty An agreement between the US and a foreign country that is negotiated by the President and is effective when ratified by the Senate ii. Executive Agreement an agreement between the US and a foreign country that is effective when signed by the President and the head of the other government 1. NEVER has the Supreme Court declared an executive agreement unconstitutional as usurping (assuming) the Senates treaty approving function 2. Court held that executive agreements, like treaties, prevail over sate law and policy states MUST comply 3. Dames & Moore v. Regan President Carter negotiated an agreement whereby Iran would free American hostages I exchange for the US lifting a freeze on Iranian assets and provided an end for all suits pending against Iran in US courts a. Court held that because the President acted pursuant to specific Congressional authorization, it is supported by the strongest of presumptions and widest latitude of judicial interpretation b. So long as the President is not violating another constitutional provision or federal statute, there seems to be little basis for challenging the constitutionality of an executive agreement d. Executive War Powers

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i. Article I grants Congress the power to declare war and the authority to raise and support the army and the navy ii. Article II makes the President Commander in Chief (see above list) iii. War Powers Resolution states that the president as commander in chief may introduce the United States Armed forces into hostilities or situations where hostilities appear imminent only pursuant to 1. A declaration of war 2. Specific statutory authorization 3. A national emergency created by attack upon the United States, its territories or possessions, or its armed forces a. If the President does not obtain approval from Congress outside of these requirements, then he is required to remove the troops within 60 days b. Presidents repeatedly have expressed the view that the War Powers Resolution is unconstitutional and regularly have failed to comply with it i. Significance depends on whether Congress will enforce it, such as by cutting off funds for military efforts it has not authorized e. War on Terror i. Detentions 1. What right do those being detained as par of the war on terrorism have to access the courts 2. Hamdi v. Rumsfeld at issue was whether the executive has authority to indefinitely detain citizens who qualify as enemy combatants without habeas corpus proceedings a. Court of Appeals ruled that an American citizen apprehended in a foreign country and held as an enemy combatant is not entitled to any form of due process or judicial review Supreme Court REVERSED i. Does the federal government have the authority to hold an American citizen apprehended in a foreign country as an enemy combatant 1. Yes, the government does have authority pursuant to an Act of Congress (AUMF) and Article II Commander in Chief argument ii. What process must be accorded to Hamdi? 1. Must be accorded due process (determined by applying the three part balancing test under Matthews v. Eldridge a. Importance of the interest to the individual b. The ability of additional procedures to reduce the risk of an erroneous deprivation c. The governments interest 3. Boumediene v. Bush at issue was whether detainees in Guantanamo Bay should be afforded the constitutional privilege of habeas corpus, which under the Constitution, is not to be withdrawn except in conformance with the Suspension Clause a. Court held that the habeas statute extends to non-citizen detainees at Guantanamo i. Congress passed MCA which eliminates federal courts jurisdiction to hear habeas applications from detainees who have been designated as enemy combatants ii. Court held MCA unconstitutional suspension of that writ 1. Suspension Clause reads the privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion of the public safety may require it

LIMITS ON STATE REGULATORY AND TAXING POWER

I. Introduction the states are sovereign entities in their own rights; the Constitution places some limits on the operation of state governments and some limits on the Federal government a. Why should the Constitution be concerned with limiting the powers of the states at all

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i. To resolve instances of conflict between the states and federal government ii. To resolve instances of conflict between the states, themselves iii. To limit the federal governments power over individual citizens b. What are they express limitations i. Article I 1 limits on the states; attempt to make sure that states dont enter into areas where the Federal government has jurisdiction and ensure that they dont interfere with interstate matters ii. Article IV includes rules of interstate behavior Full Faith and Credit Clause, Privileges & Immunities Clause c. What are the implied limits on the states i. Lawmaking of Congress imposes some limits on the state legislation ii. Supremacy Clause implies that laws made in pursuance of the Constitution are the supreme law of the land and preempt state laws d. What about conflicts that arise in the implementation of laws where Congress is silent on a matter and the Constitution provides no guidance i. Most often, these issues come up in areas of interstate commerce 1. Governed by the Dormant Commerce Clause no state can take any action that will burden interstate commerce a. This has NOTHING to do with the commerce clause jurisprudence we have already examined this is where the STATE is the actor and there is some alleged conflict with interstate commerce 2. Privileges & Immunities Clause prohibits discrimination across the borders of individual citizens II. Preemption When Congress acts, that action becomes the supreme law of the land any state law that conflicts with that act must conform to it; the court plays a role in implementing conformance a. Types of Preemption the key is congressional intent whatever Congress intends will be the central policy focus of the decision i. Express preemption Congress designates in the federal statute that expressly preempts states version of similar statutes statute will specify how the federal law is intended to conflict with state regulation 1. Lorillard v. Reilly and Whiting FCLAA (a statute that regulated cigarette advertising and labels) had an express provision that said no requirement or prohibition based on smoking and health shall be imposed under state law with respect to advertising and promotion of any cigarettes a. Massachusetts attorney general promulgated (declared) a law that required additional advertising requirements for cigarettes aimed at dissuading minors from smoking b. Holding the court found that the specific purpose of MAs act was too intertwined with that intended by Congress in FCLAA ii. Implied Preemption statutes that lack express preemption clauses; Congress may not want to inflame state legislatures or may want to leave some room for the states to resolve internal issues in the law there are 3 types of implied preemption 1. Conflict Preemption compliance with both state and federal versions of the law is impossible a. Florida Lime & Avocado at issue was whether a California statute on avocado production and sale is preempted by federal FDA regulations; California measured ripeness by oil content in the avocados and set the minimum at 8% and Florida growers claimed that it was a physical impossibility to comply both with FDA markers for ripeness and for the CA standards i. Holding the court did not buy Floridas argument and found that the minimum oil content set by California was a threshold and did not conflict with the markers set by the FDA, could comply with both 2. State Law Impedes Federal Objection

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3. Field Preemption Congress intended to occupy the field with respect to legislation on a particular subject (congress wants uniformity in the area of law; court may see that congress intended the states to fill in gaps in the legislation) a. Hines v. Davidowitz PA passed a statute requiring aliens to register with the state; 1 year later the federal government passed the Alien registration act, which intended to do the something but required the aliens to register with the federal rather than state government i. Holding the court found that the federal government FULLY OCCUPIED THE FILED OF ALIEN REGISTRATION and regulation of deportation; found the legislation in conflict with the federal act and struck it down III. The Dormant Commerce Clause a. NOT a phrase in the Constitution; rather, it is an implied set of standards drawn from the Commerce Clause and the Federal Governments relationship with the state governments i. Principle that STATE AND LOCAL LAWS are unconstitutional if they place an undue burden on interstate commerce inferred from the grant of power to Congress in Article I 8 b. Why have a Dormant Commerce Clause i. HP Hood v. Du Mond NY passed a law banning certain out of state companies from locating their milk production facilities inside the state of New York; law put a cap on number of processing plants, regardless of their origin 1. Holding the law was unconstitutional a. Historical argument framers intended to prevent state laws that interfered with interstate commerce b. Economic argument the economy is better off if state and local laws impeding interstate commerce are invalidated c. Political argument states and their citizens should not be harmed by laws in other states where they lack political representation ii. McCulluch v. Maryland representation reinforcement 1. The court has the power to stand in the shoes of unrepresented parties and defend their interests c. Contemporary Test used even though prior tests were never overruled and are sometimes still used i. Balancing approach 1. Courts weight the benefits of the state law against the burdens it imposes on interstate commerce a. SC State Highway v. Barnwell Bros. upheld a state law which imposed length and width requirements for trucks operating in the state state had an important interest in protecting highway safety and preserving its roadways b. Southern Pacific Co. v. Arizona declared unconstitutional a state law that limited the length of railroad trains operating in the state; burdens on interstate transportation were greater than the safety benefit to the state from its law 2. The test the Court uses differs depending on whether the state or local law discriminates against out of staters OR treats in staters and out of staters alike a. Discriminatory strong presumption against the law and it will be upheld only if it is necessary to achieve an important purpose b. Nondiscriminatory presumption in favor of upholding the law and it will be invalidated only if it is shown that the laws burdens on interstate commerce outweigh its benefits (Pike Balancing Test) d. DISCRIMINATORY LAWS i. A law will be found discriminatory either if it facially discriminates against out of staters or if it is facially neutral and is deemed to have discriminatory purpose or effect

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ii. Facially Discriminatory Laws 1. Obvious if he draws a distinction between in staters and out of staters 2. City of Philly v. New Jersey invalidated a law that effectively kept landfills in the state exclusively for New Jerseys use by preventing the importation of any wastes from out of the state a. Whatever the ultimate purpose it may not be accomplished by discriminating against articles of commerce coming from outside of the state unless there is a reason apart from their origin to treat them differently iii. Facially Neutral Laws/Discriminatory in Purpose 1. Can be found to be discriminatory if the law is deemed to have a discriminatory purpose or effect 2. Bright-Line Factors to consider in determining discriminatory purpose/effect a. A law is likely to be found discriminatory if its effect is to exclude virtually all out of staters from a particular state marker, but not if it only excludes one group of out of staters b. A law is likely to be found discriminatory if it imposes costs on out of staters that in staters would not have to bear c. The Court is more likely to find discrimination if it believes that a law is motivated by a protectionist purpose, helping in staters at the expense of out of staters 3. Sufficient Proof of Discriminatory Impact a. Hunt v. Washington State AAC found that proof of a discriminatory impact against out of states is sufficient for a law to be regarded as discriminatory i. NC law required all closed containers of apples sold or shipped into the state bear no grade other than the applicable US grade or standard applied to all apples whether sold produced in state or not; HOWEVER, it had an effect on the sale of Washington apples, and therefore discriminatory in purpose/effect b. West Lynn Creamery invalidated a Massachusetts law that imposed a tax on all milk sold by dealers to Massachusetts retailers and this money was used in large part to subsidize local dairy farmers i. Separately a nondiscriminatory tax and a subsidy might be lawful, but together they are unlawfully discriminatory against out of staters 4. Insufficient Proof of Discriminatory Impact a. Minnesota v. Clover Leaf Minnesota legislature passed a law that required all milk to be old only in disposable paper containers as part of an environmental effort i. In favor of in state businesses because Minnesota had a substantial paper industry but no plastics industry ii. Court, nonetheless, said that the law was not discriminatory because it regulate even handedly by prohibiting ALL milk retailers from selling in plastic containers iv. Analysis for Discriminatory Laws 1. State laws that discriminate against interstate commerce face a virtually per se rule of invalidity 2. Analysis requires looking at both the ends served by the law and the means used (quasi strict scrutiny) a. Ends MUST serve a legitimate local interest i. May even require an important or compelling reason for the law b. Means will be upheld ONLY if the purpose could not be served as well by available nondiscriminatory means i. Main v. Taylor upheld a Main law that prohibited the importing of live baitfish into the state for the purpose of protecting Maines fisheries from parasites that were prevalent in out of state baitfish, but not in main

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1. Court concluded there was no less discriminatory way to prevent these threats e. NONDISCRIMINATORY LAWS i. Where laws are facially neutral an which are not discriminatory in effect or purpose, they may still be invalid if they unduly burden interstate commerce (Pike Balancing Test) 1. Pike v. Bruce Church Arizona passed a statute requiring all cantaloupes grown in Arizona and offered for sale, must be packed in regular compact arrangement in closed containers approved by the supervisor a. Elements i. If the law 1. Regulates even handedly 2. Effectuates a legitimate local interest 3. Effects on interstate commerce are incidental ii. Then the law may still be invalid if 1. It imposes clearly excessive burdens which outweigh the putative local benefits 2. Bibb v. Navajo Freight Lines the court declared unconstitutional a state law that required that all trucks in the state use curved mudguards to prevent spatter and enhance road safety a. Substantial burden on interstate commerce straight mudguards were legal in 45 other states and curved mudguards were illegal in 1 state f. Exceptions to the Dormant Commerce Clause i. Congressional Approval 1. Congress may confer upon the States an ability to restrict the flow of interstate commerce that they would not otherwise enjoy can overrule the courts own rules on the Dormant Commerce Clause ii. Market Participation 1. The courts exempt any state activity when the states are participating in a market rather than regulating that market a. What is state participation in a market i. Utility monopolies, state going into business for itself, state run insurance companies b. Why would the court encourage market participation i. The Constitution only prohibits regulation; therefore, non regulatory activity is not unconstitutional ii. Pro market activity encourages competition iii. The state pays for these activities; so, it is subject to local voter control the costs are borne in state so there is no representation problems

IV.

Privileges and Immunities Clause a. The citizens of each state shall be entitled to the privileges and immunities of the citizens of that state i. Point to prevent discrimination against individual out of sate citizens and businesses 1. Applies ONLY to privileges and immunities a set of rights not defined by the Constitution b. Differences between P&I Clause and Economic Protectionism i. P&I applies ONLY to citizens (must also be a citizen of USA) ii. P&I applies ONLY to live persons, not corporations iii. Both clauses deal with discrimination but, the focus of P&I is on civil and human rights, not economic rights iv. Congress has the power to alter DCC principles, it does NOT have the ability to alter the principles of P&I v. P&I has NO market participation exception

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CONSTITUTIONS PROTECTION OF CIVIL RIGHTS AND LIBERTIES

I. Introduction a. 9th Amendment states The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people Application of the Bill of Rights to the States a. Early on, the Supreme Court ruled that the protection of individual liberties in the Bill of Rights did not apply to state or local government b. Barron v. Mayor of Baltimore Barron sued the city for taking his property without just compensation in violation of the 5th amendment; issue was whether the takings clause in the 5th amendment applied to the city i. Held that the Bill of Rights was a restriction of federal actions, not state and local governments; if the framers had intended the Bill of Rights to apply to the states, they would have declared this purpose in plain and intelligible language Application of the Bill of Rights to Private Citizens a. Early Jurisprudence Slaughterhouse Cases; attempts to change national perspectives on equality and the scope of rights and both were presented well before the country was ready to change b. The Civil Rights Movement the leadership used the opportunities in the South to bring attention to the severe social dysfunction across the nation i. Almost all of the crucial litigation of this era were through the 14th and 15th amendments both of which require state action ii. Review Civil Rights Amendments 1. 13th Amendment Ratifies the Presidents power to free the slaves and eradicate anything that resembles slaver (reaches private citizens) 2. 14th Amendment intended to remedy the denial of civil rights to African Americans a. Grants citizenship to all persons born or naturalized in each state b. No state shall make any law that violates equal protection, due process or abridges privileges and immunities c. Requires action BY THE STATE and cannot reach to private citizens 3. 15th amendment guarantee the right to vote to individual citizens, preventing state specific prevention measures regardless of race color creed or national origin a. Requires action BY THE STATE and cannot reach to private citizens c. The Civil Rights Cases i. At issue in the case was whether a statute created by Congress, which protected the rights of citizens against private discrimination, was constitutional within the confines of the 13th and 14th Amendments 1. Court struck down the statute finding that Congress must act directly against the states not against the effects or consequences of those state acts d. Public Function Exception the private entity must comply with the Constitution if it is performing a task that has been traditionally, exclusively done by the government i. Marsh v. Alabama ii. Jackson v. Metropolitan Edison e. Entanglement Theory either the government must cease its involvement with the private actor or the private entity must comply with the Constitution; generally applied in 4 different areas i. Judicial and law enforcement 1. Shelley v. Kraemer at issue was the constitutionality of restrictive covenants that prohibited blacks and Jews from buying property in a specific area

II.

III.

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a. Court found that restrictive covenants vialed the 14th Amendment because they require judicial enforcement ii. Governmental licenses 1. Burton v. Wilmington Parking Authority a caf located in a building owned by a public authority and which lease the space from the authority exercised racial discrimination a. Court found that the leasing of the space by the authority was sufficient entanglement with the state to be considered state action iii. Government subsidy 1. Norwood v. Harris court found that the funding provided by Mississippi for discriminatory private schools was sufficient entanglement to require compliance with the Constitution iv. Voter initiations

DUE PROCESS
I. There are two types of due process to consider a. Procedural Due Process challenging the procedures by which the government takes life, liberty and property; intended to protect the persons ability to be heard and fight for their rights b. Substantive Due Process challenging the reasons for interfering; whether the government has an adequate reason for taking life, liberty and property i. Early History Slaughterhouse Cases, the Court examined whether a monopoly could be considered to violate the due process of members of the trade by depriving them of life, liberty or property 1. Court found that monopolies did not violate Due Process ii. 1800 1937 The Lochner Era, court used heightened scrutiny to uphold fundamental rights 1. upheld many lessaize-faire economic principles iii. 1930s caused the court to give the government more deference in regulating economic matters for the sake of protecting citizens from the devastating effects of unregulated market freedom 1. Private Autonomy protected privacy over economic liberty iv. Modern Era the court uses rational basis review for this same analysis II. The Lochner Era a. Focuses on 3 themes i. Deprivation of due process a right to freedom of contract ii. Regulation has to be for a valid police purpose iii. Regulation must be necessary, not just legitimized through a health, safety and morals argument (similar to heightened scrutiny) b. Height of the Era i. All of these cases demonstrate the courts willingness to strike down regulation meant to protect individuals and groups with limited or no political leverage/power 1. Lochner v. New York at issue was whether a statute capping the work hours of bakers and confectionary employees was a constitutional regulation of freedom contract a. Court found the law was unconstitutional reasoning that the labor of bakers was not within the reach of the police power of the state b. Courts Analysis i. This law interferes with freedom of contract ii. Interference may only occur if the state is legislating as part of the states legitimate police power to protect health, morals and welfare 1. Court reasoned that baker are not the WHOLE public and there is not sufficient evidence that their health will affect the general welfare of the state

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c. The End of the Lochner Era i. In the beginning of the 20th century the rise of social sciences and the legal realist movement changed much of the way people began to examine these core issues of liberty ii. New Perspective lowering of level of scrutiny for the legislature adopting the law; prudential perspective on the legislatures purpose; substantive due process goes out of favor ENTIRELY 1. US v. Carolene Products Co. at issue in the case was the constitutionality of an act preventing use of additives, coconut milk and other fats to fill milk to make it taste and appear like cream a. The court upheld the regulations, finding significant public interest and police power of the state 2. Williamson v. Lee Optical of Oklahoma at issue was the constitutionality under Due Process of an Oklahoma statute that made it unlawful for any person not licensed as an ophthalmologist or optometrist to fit lenses to a face except upon a written prescription a. The court found the law constitutional because it could reasonably be considered to correct some evil in society

EQUAL PROTECTION
I. Rise of the Equal Protection Clause came after the supposed fall of the Due Process Clause; the 5th Amendment does NOT have an equal protection clause, whereas the 14th Amendment does have one a. As a result of the missing phrase, the Supreme Court has taken to assuming that the Due Process clause of the 5th Amendment includes an equal protection element when analyzing FEDERAL LAWS and ACTS when STATE ACTION is involved, however, the Court will use the 14th Amendment b. Questions to Consider i. Is the governments classification justified by a sufficient purpose 1. Facially Discriminatory sometimes a law or act will be facially discriminatory and distinguish between classes of people by characteristics or type 2. Facially Neutral if not discriminatory on its face, court must find that the classification is discriminatory both in effect and intent ii. What level of scrutiny should be applied 1. Rational Basis all other classes a. Burden of proof is on the plaintiff all the government needs is a legitimate purpose within the states police power and means must be rationally related to achieving that purpose 2. Intermediate Scrutiny gender, non marital children a. Burden of proof is on the government must establish that the classification serves an important purpose and that the means are substantially related to achieving that purpose 3. Strict Scrutiny race, national origin and alien status a. Burden of proof is on the government state must show that it has a compelling purpose and that no less discriminatory means are available to achieving that purpose b. Why race and not political divisions? i. Immutable Characteristic Race is not a chosen characteristic; individuals cannot change their race ii. Racial classification and discrimination has a particularly complex and sensitive history that requires heightened scrutiny to ensure that continued racial inequality is not maintained in the law iii. Does the governments action meet that level of scrutiny 1. Court will look at a variety of factors, but none are entirely determinative a. Over-inclusiveness (too many people are regulated) or under-inclusive (too few people are regulated)

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i. One response to under-inclusiveness is that the government may be regulating the group one step at a time b. Court will look at both the means and the ends of the law; that is, will determine whether the means adequately address the ends II. Rational Basis Review a. Does the law have a legitimate purpose i. Romer v. Evans at issue was whether a state constitutional amendment in Colorado aimed at excluding homosexuals from being a protected class of citizens in all state laws and regulations violated the equal protection clause 1. Government argued that the purpose of the law was to protect individual choices to discriminate against homosexuals; to level the playing field so that no special rights emerge for homosexuals; to protect the morals of the public 2. The court argued that the law does not prevent special rights, but actually is a denial of equal protection to a group of people and puts them at such a strong disability in seeking protections under the law ii. City of Cleburne v. Cleburne Living Center, Inc. Heightened Scrutiny a. Classification Based on Race & National Origin until forced to change, many parts of the country continued to enforce segregation by direct and indirect means even after the adoption of the Civil Rights Amendments; States turned a blind eye to racial discrimination i. Turning Point 1. Dred Scott v. Sanford b. Facially Discriminatory Classification for every racial classification where the race has been burdened, the court has struck down the legislation; EXCEPT for one case i. Burdening Racial Minorities 1. Korematsu v. United States at issue was the law enabling internment of Japanese Americans during WWII as protection against enemy combatants and spies a. Held law constitutional because of its military purpose despite i. Its extreme over-inclusiveness ii. Simultaneous under-inclusiveness for those who could have been a national security threat but were never examined due to their race ii. Burdening both Whites and Minorities 1. Loving v. Virginia a. Miscegenation statutes rest solely upon distinctions drawn according to race iii. Separation of Races 1. Plessy v. Ferguson Plessy was white and appeared white; he tried to ride in an all white train car; under the local statutes, one drop of Black blood was considered black for purposes of segregation sued on basis that he was being refused a property right in being white a. Court concluded that the laws were constitutional addressing the claim that blacks were second-class citizens by stating that the assumption that the enforced separation of the two races stamps the colored race with a badge of inferiority is not by reason of anything found in the act, but solely because the colored race chooses to put that construction upon it b. NAACP looked at how to make the separate facilities more equal looked at housing, transportation, employment, education and eventually focused on education i. What changed; what pushed the court, itself, to move so far forward in Brown despite popular opinion in the opposite direction 1. Factors included a. Growth of strong black middle class arts, music, professional word (doctors, lawyers)

III.

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b. World War II key for seeing the hypocrisy of the war and how the country was treating blacks 2. Turning Point Brown v. Board of Education a. Background after much hemming and hawing, the court eventually came to a unanimous decision to overturn Plessy and desegregate the public education system b. Holding separate facilities cannot be equal c. Reasoning the Court reasoned that segregation had a psychological effect on students that affected their future opportunities in society c. Facially Neutral Laws with Discriminatory Effects i. When there is no evidence of discrimination on the face of the statute, the court had to determine what kind of evidence would be sufficient to show that the law still had a discriminatory purpose/effect under the strict scrutiny requirement ii. MUST be BOTH discriminatory purpose and a discriminatory effect 1. Washington v. Davis involved hiring requirements for police officers in Washington DC; plaintiffs claimed that the test employed to test reading/writing comprehension for police officers was racially discriminatory because the net effect of the test was to keep severe imbalance of race in the police force throughout the city a. Court held that the test was not discriminatory because plaintiffs did not present significant evidence of both a discriminatory purpose and discriminatory effect i. There was a good deal of evidence that showed that the police force was NOT discriminating actively recruited black officers, test had shown success in the training program iii. But-For approach 1. Village of Arlington v. MHDC MHDC planned to build low and middle income housing in the village, which during public hearings protest through racist, coded language about the population question of the developments; the village disapproved the project and sued claiming that the project was tanked for a racially discriminatory purpose Court found no discriminatory purpose despite pretty overt racial motivations behind the villages decision to refuse approval of the project a. Discriminatory Intent Must be intent to discriminate against the specific group who experiences the effect of discrimination; not, just a general purpose of classification b. Steps to Show Discriminatory Intent i. sets forth a prima facie case for discrimination ii. Burden of proof shifts; sets forth a non-discriminatory or neutral purpose for the law 1. If there is another explanation which on its own explains the outcome that was achieved, then strict scrutiny is not applied; BUT FOR A RACIALLY DISCRIMINATORY MOTIVE IN PASSING THE LAW, court will use rational basis Remedies in Equal Protection Cases a. Generally Courts are not involved in determining policy mechanisms and threshold requirements, however, for desegregation efforts, the court got very heavily involved in the process because of the enormous push back they experienced in southern states and nationwide Racial Classification that Benefit Minorities Affirmative Action a. In reviewing affirmative action programs, the court has had to address the same 3 questions i. What level of scrutiny should be employed 1. Richmond v. JA Croson court took a step towards legitimizing strict scrutiny for affirmative action efforts and identified a very limited set of goals that would survive

IV.

V.

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strict scrutiny by the court (remedying past discrimination and preventing the state from funding the evils of private prejudice) a. Court rejected a goal to uplift minorities in an effort to achieve diversity in the construction industry (the means adopted by the state were not narrow enough) ii. What affirmative action goals meet that standard of review iii. What means adopted to achieve these goals are consistent with level of scrutiny VI. Gender Discrimination Under Equal Protection a. Facial Claims i. Intermediate Scrutiny over a period of years the court struggled with the determination of what level of scrutiny should be applied in these cases 1. Craig v. Boren declared unconstitutional a law that allowed women to buy low alcohol beer at age 18 but men could not buy such beer until 21 a. adopted intermediate scrutiny in these cases classifications by gender must serve important governmental objectives and must be substantially related to achievement of those objectives b. Justifications for the adoption of intermediate scrutiny were i. Biological differences in men and women ii. Physiological differences in men and women 2. US v. Virginia declared unconstitutional the exclusion of women by VMI a. Unconstitutional because it was based entirely on gender stereotypes b. Must not rely on overbroad generalizations about the different talents, capacities or preferences of males and females b. Non Facial Claims i. Here, the analysis is the same as in race the court MUST find BOTH unequal impact AND discriminatory intent for the law to be considered unconstitutional ii. Geduldig v. Aiello issue was a California insurance program which provided short term disability insurance as a supplement to unemployment benefits provided by the federal government; excluded pregnancy as a disability 1. Court held it was not a denial of equal protection a. Is there a discriminatory effect yes, obviously the bill excluded only women, not men b. Is there a discriminatory purpose No. The court found that the classification was not motivated by discriminatory tendencies because the program was available to both men and women and non pregnant women get the same benefits as men (the classification was between pregnant women and ALL OTHER non pregnant persons; including men and women and therefore demonstrates nondiscriminatory purpose)

c. Gender Classifications Benefiting Women i. Orr v. Orr at issue was a statute that provided that husbands, but not wives, could be required to pay alimony upon divorce 1. Court found the classification was discriminatory because of its reinforcement of gender stereotypes (economically dependent women and economically independent men) ii. MUW v. Hogan at issue was a state statute that excluded males from enrolling in a state supported professional nursing school 1. Court found the program unconstitutional even though the states goal was legitimate a. By maintaining an all womens nursing school, stereotypes of women in the industry were actually being reinforced because the industry is an has long been dominated by women

FUNDAMENTAL RIGHTS
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I.

Introduction a. These modern cases recognize a whole host of fundamental rights not explicitly outlined in the Constitution, but implied by the Court from history, experience and others i. Right to Marry ii. Right to Custody of Ones Children iii. Right to Keep the Family Together iv. Access to the Polls and the Courthouse b. Sources for non-textual rights i. 9th Amendment sometimes looked to as the source for many of thee rights Constitutionshall not be construed to deny or disparage others retained by the people ii. 14th Amendment (Due Process and Equal Protection) over the course of the 20th Century, either the DPC or the EPC have been cited as sources for many of these rights The Fundamental Rights Analysis a. There are 4 steps to the analysis i. Determine whether the right claimed is fundamental 1. Consider historical precedent and circumstances ii. Determine whether the right is being infringed by the government action 1. If infringed, then strict scrutiny applies 2. If not infringed, then rational basis applies iii. Determine whether there is sufficient justification for the governments infringement of the right iv. Examine whether the means are sufficiently related to the central purpose of the action The Rights a. The Right to Marry i. Loving v. Virginia recognized the freedom to marry is a fundamental right by declaring unconstitutional a Virginia statute that prohibited a white person from marrying anyone other than a white person ii. Zablocki v. Redhail Wisconsin statute required compliance with an order to show that they will care for their children and pay alimony before marrying another person, who is not the parent of the child 1. Is the right fundamental? a. Marriage is related to a right to privacy and survival of humankind b. Court seems to be implying a historical tradition in this right, rather than any economic reasons 2. Is the right being infringed? a. Yes, by imposing this blockade to marriage, the means adopted specifically refuse certain people the right to marry, merely for non compliance with a court order 3. Sufficient justification for the governments infringement a. Because the court uses strict scrutiny, the government must show a compelling purpose and the least restrictive means adopted i. Wisconsin proposed 1. They were protecting the welfare of children 2. Law furnishes an opportunity to counsel families on better ways to deal with custody and alimony ii. The court found these purposes legitimate but argued that the means adopted were to restrictive 1. Statute merely prevents marriage, it does NOT deliver any money to the children for their protection b. The Right to Custody of Ones Children i. Stanley v. Illinois a lower court denied custody of the child to his father, the plaintiff, solely on the basis that he and the childs deceased mother were not married

II.

III.

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1. Court found that the law was vastly over inclusive and did not apply the least restrictive means a. The rights to conceive and raise ones children are basic civil rights far more precious than property rights c. The Right to Keep the Family Together i. Moore v. City of East Cleveland at issue was a zoning ordinance that defined family in a narrow way that excluded extended family members from living together for the purpose of preventing overcrowding 1. Unconstitutional because it interfered with a fundamental right to keep family together d. The Right to Procreate i. Buck v. Bell initially the Court upheld the ability of the government to involuntarily sterilize the mentally retarded and did not recognize this as a fundamental right was later rejected ii. Skinner v. Oklahoma at issue was a statute that required men who were convicted of two or more felonies to be sterilized; the court found the law unconstitutional rejection Buck and recognizing fundamental the right to procreate 1. By subjecting it to strict scrutiny e. The Right to Purchase and use Contraceptives i. Griswold v. Connecticut a CT statute prohibited use of contraceptives and criminalized the distribution of information about contraceptives by doctors 1. Court found that the right to privacy was a fundamental right, but expressly rejected the argument that the right was protected under the due process clause a. Implicit in many of the specific provisions of the Bill of Rights i. 1st, 3rd, 4th and 5th Amendments b. the sacred precincts of a marital bedroom out of the reach of government ii. Eisenastadt v. Baird 1. At issue was a Massachusetts law that prevented doctors and pharmacists from prescribing contraception to unmarried people a. The court found this law unconstitutional, relying on the broader idea of privacy served no legitimate government purpose f. The Right to Abortion i. Roe v. Wade at the time this case was decided, 46 states prohibited abortions and the court was forced to decide the question of a legal right to abortion most controversial issues in modern society 1. Involved a challenge to a Texas law that prohibited all abortions except those necessary to save the mothers life a. Held that the Constitution protects a right for a woman to choose to terminate her pregnancy prior to viability the time at which the fetus can survive on its own outside the womb b. Court divided pregnancy into three trimesters i. First government could not prohibit abortions an could regulate abortions only as it regulated other medical procedures, such as by requiring that they be performed by a licensed physician ii. Second government could also not outlaw abortions, but the government may, if it chooses, regulate the abortion procedures in ways that are reasonably related to maternal health iii. Third government may prohibit abortions except if necessary to preserve the life or health of the mother 2. The right to abortion was a fundamental right subject to strict scrutiny

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ii. Planned Parenthood v. Casey reaffirmed that states cannot prohibit abortion prior to viability, however, the plurality opinion overruled the trimester distinctions in Roe and also the use of strict scrutiny for evaluating government regulations of abortions 1. PA law specifically required a physician to obtain a womans informed consent prior to performing an abortion and specifying that she be provided with certain information at least 24 hours before the procedure a. Government regulations of abortions prior to viability should be allowed unless there is an undue burden on access to abortion i. Undue Burden state regulation has the purpose of effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus IV. Constitutional Protection for Sexual Orientation/Activity a. Bowers v. Hardwick the court found that the right to engage in homosexual sodomy in the home was NOT a fundamental right and upheld a Georgia anti-sodomy statute b. Lawrence v. Texas overturned Bowers less than 20 years later, expanding the definition of privacy and broadening the generality of the fundamental right claimed i. Rather than defining the right as the engagement in homosexual conduct, the court defined the right as privacy and freedom from government intrusion in the bedroom ii. Explaining the right as homosexual sodomy demeans the right as if to say a married couples entire right is in the couples ability to have sexual intercourse iii. Instead, defines the right as a variety of different things 1. Human conduct, sexual behavior in the most private of place, the home 2. A personal relationship that is within the liberty of citizens to choose Voting Rights a. Considered the highest expression of citizenship; protects the rights you have under the Constitution and many of the Supreme Courts arguments for upholding laws that harm citizens b. Standard of Review Strict Scrutiny i. Harper v. Virginia State Board at issue was a minor poll ta levied on all voters for state elections in Virginia ii. Crawford v. Marion County Election Board at issue was a state statute that required a photo ID for voting to verify that h person named was the one registered to vote 1. Plurality adopts a middle viewpoint, finding that, although the goal of law was to prevent fraud and there was limited evidence of fraud, the requirement was unconstitutional because of its over-inclusiveness Right to Education a. Has NOT been recognized as a fundamental right; only rational basis applies i. San Antonio v. Rodriguez ii. Pyler v. Doe

V.

VI.

REVIEW LEVLES OF SCRUTINY

I. Rational Basis a. Rationally related to a legitimate government purpose i. The governments objective only need be a goal that is legitimate for government purpose ii. Need not be the actual purpose of the litigation, but rather, any conceivable legitimate purpose is sufficient b. The means chosen need be only a reasonable way to accomplish the objective c. Challenger of the law has BURDEN OF PROOF d. Highly deferential to the government rarely invalidated Intermediate Scrutiny

II.

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a.

III.

Substantially related to an important government purpose i. governments objective must be regarded as important b. the means chosen must be substantially related to achieving the goal i. Means must be, at the least, narrowly tailored to achieve the goal c. Government has the BURDEN OF PROOF Strict Scrutiny a. Necessary to achieve a compelling government purpose i. Purpose must be vital b. Means must be necessary to accomplish the end i. Requires proof that the law is the least restrictive or least discriminatory alternative ii. At times the court has said narrowly tailored c. Government has the BURDEN OF PROOF

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