LOOK FOR HOLDING, CONSISTENCY, AND THE LEGITIMACY OF THE COURTS ACTIONS FRAMEWORK FOR CASE ANALYSIS o Holding:

: descriptive and normative holding of the court o Consistency: does the holding fit w/ established tests and precedent o Legitimacy of the Courts Actions: why should the court establish doctrine rather than other branches? o Two-step process for determining constitutionality of federal laws: Is the law an exercise of one of Congresss enumerated powers in the Constitution? Does exercise of that power otherwise violate the Constitution? o State laws are presumed constitutional, and are upheld unless they violate a constraint imposed by the Constitution CONSTITUTION o History Ties to the revolution, break with monarchy No titles of nobility can be granted in the US No elected person can receive a present from a foreign state Separation of personnel demonstrated a rejection of a parliamentary system Rejection of the limits of the Articles of Confederation Power to tax and regulate commerce among the states demonstrate this Slavery was embedded 3/5 for voting Article V contains a prohibition on getting rid of slavery or the fugitive slave clause until 1808 Reconstruction amendments demonstrate the end of slavery o 13th Amendment prohibits slavery and is the only amendment that limits private activity Contained an enforcement clause, given to Congress o 14th Amendment overturns Plessy and says everyone is a citizen States cant take away immunities from citizens These include the right to contract, owning property, testifying in court, etc. 5 contained an enforcement clause, given to Congress o 15th Amendment says the state cannot take away rights to vote based on race or servitude At the time, voting wasnt a civil right protected by the 14th amendment Suffrage, direct election of senators, prohibition (and its repeal) STRUCTURE o Articles I-III set up structure of the federal government Article I: Legislature Article II: Executive Article III: Judiciary Very technically detailed Some of it has never been constitutionally challenged (age requirements) Veto power, override, appointment of officers, and treaties deal with their relationship o Article IV deals with the relationships between the states Admission of states, commerce clause, etc. o Article V deals with amending the Constitution

o Article VI states that federal law is supreme (supremacy clause) Federal law wins over all state law o Two major sets of amendments: Bill of Rights (first 10) & Reconstruction Amendments Bill of Rights ratified 2 years after the Constitution was ratified All about limits on government action, b/c that was the fear All limits pertain to the federal government, not the states Many of these amendments arent applied to the states right away o The ones dealing with criminal process dont get applied to the states until the 20th century Reconstruction All about limiting the states o There is no rule that the legislature must act wisely or that forces the legislature to act o Congress is a body of limited, enumerated powers They dont have power unless it is in the list of powers theyve been given There is a republican form of government clause, but the courts dont enforce it o States have general police power, unless it is explicitly prohibited o Why do we follow the Constitution? Limits majoritarianism Majoritarianism can be seen through two lenses: true republicanism or tyrannical majoritarianism Intergenerational pre-commitment However, the Senate is unchangeable and is arguably undemocratic o How do we interpret the Constitution? Textualism strictly relying on the definition of the terms Evolving Meaning practices today that help tell us what the text means Do the Right Thing come to a normative judgment on whats right or wrong, perhaps morally or intellectually Originalism what did the ratifiers of the constitution believe the words meant Precedent common law understanding of what the constitution means An overarching principle of interpretation is restraining the interpreter in some way o Judicial Review, Judicial Power Marbury v. Madison (1803) Madison, the new Secretary of State, refused to deliver Marburys commission as justice of the peace 3 basic holdings o 1) Marbury had met the conditions under the statute to receive the commission o 2) There is a difference between political discretionary acts and duties assigned by law to the executive Political Question Doctrine: acts in their nature political, or which are submitted to the executive by the constitution and the laws, can never be reviewed by the court Political discretionary acts arent remediable in the courts, duties assigned by law are Political discretionary acts are remediable by the people through the ballot box o The Court couldnt enforce them anyway Where the rights of individuals are dependent on the execution of duties imposed on an executive officer by the legislature, the Court has

the authority to exercise review over executive action At issue was a duty assigned by law b/c the discretionary act (naming the justice of the peace) had already occurred This contemplates that there are violations of the constitution that cant be remedied in court The distinction may be between the implication of individual rights (remediable) and the implication of collective/structural rights (not remediable) o 3) The statute that gave the executive a duty assigned by law that was remediable was unconstitutional Marshall declared that the Court had the right to review statutes to interpret them under the constitution Under the statute, Marbury had the right to the remedy he wanted If he hadnt had the right, the Court would not have had to decide the question The reason the statute was unconstitutional was that the Court only has appellate jurisdiction in cases of mandamus orders under the constitution, and the statute changed that jurisdiction to original jurisdiction Marshall didnt address the exceptions clause in Article III Addressing writs of mandamus is not expressly prohibited under Article III either, which also wasnt discussed Arguments can be made either way on these issues Why does the court have the power of judicial review? o Marshall said the court is the final arbiter of interpreting the constitution o 2 sets of arguments: one based on the supremacy of the constitution, the other based on the nature of judging Supremacy of the Constitution The nature of the constitution is that its operating principle is that the constitution, instituted by the people, is supreme o Part of it might be that the constitution is written down for posterity The supremacy clause in the Constitution makes it supreme The fact that we follow the constitution demonstrates that it is supreme The Nature of Judging In their role as the federal judiciary under the constitution, the judges must by necessity interpret laws against the constitution It is only the duty of the judiciary to say what the law is in cases arising under federal law, and therefore they must necessarily be able to review laws against the constitution Marbury and Constitutional Interpretation o Marshall emphasized that the constitution was written b/c it provides a hard copy for everyone to know and refer to The opinion suggests constitutional interpretation is a mechanical process This allays peoples fears of the great discretion of the judiciary, and attempts to paint the picture that the judiciary is constrained by the text

o Judicial review usually involves value judgments by the Court, not the mechanical interpretation and application that Marshall emphasized (i.e. the parade of horribles) Deep disagreements often occur which demonstrates this o What are the good arguments for why the court should have the power of review? Congress and the executive may have a conflict of interest Solve the problem of finality Although this is an awesome power, the judiciary is very weak and only has the ability to hear cases and controversies B/c the judiciary is the least dangerous branch, they are the best entity to have the final word b/c they are least likely to abuse it Judicial Review: Original Understanding o It was contemplated at the founding (debates, Federalist papers, etc.), but wasnt listed in the constitution It was contemplated w/ much more limited scope, i.e. to statutes that affect the powers of the judiciary and those like the parade of horribles o It wasnt originally thought of as a check on power o It wasnt a pervasive part of the state court systems at the time Scope of Marbury Martin v. Hunters Lessee (1816) o Dealt w/ the question of judicial exclusivity of interpretation, i.e. what affect does the Courts interpretation of the constitution have on other actors who arent parties to the case This wasnt addressed by Marbury o The question was whether Marbury power applied to state court interpretations of the federal questions Virginias Supreme Court said that the Court cannot review decisions by them concerning federal law b/c they were sovereign and it was unconstitutional for Congress to say the Court could It was a departmentalism argument concerning the state and federal courts o The Court said it was constitutional for the Court to have appellate jurisdiction over state interpretations of federal law o 3 arguments Textual argument about the constitution granting the Court appellate jurisdiction over all cases in Article III The problem w/ this argument is that it may invalidate jurisdictional limits put in place by Congress The state courts have misinterpreted their scope of sovereignty They have some sovereignty, just not of this nature This is demonstrated in Article I, Section 3 One final arbiter of these questions is needed The constitution presumes that sometimes states will be biased in certain cases (and this case points towards this being true) Someone must decide controversies between states, between citizens of different states, and between citizens and foreigners This is a functional argument; interpretation works best in this

way b/c there must be uniformity Article III, Section 2, Clause 1: Case or Controversy Requirement The judiciary sometimes doesnt act, b/c its part of their least dangerous branch nature (Bickel) o It exercises passive virtues This means the Court doesnt have the authority to give advisory opinions and can only hear cases when the parties have a personal stake in the outcome of the case Federal judicial power only extends to certain types of cases or controversies Standing Doctrine o The Court resolves concrete disputes between parties, not abstract disputes o The Court is reactive, it must wait for a party to bring a concrete dispute before it o Always look for whether the party has a personal stake in the outcome, in order to avoid advisory opinion giving Allen v. Wright (1984) o Dealt w/ the IRSs policy of providing tax exemptions to private schools that discriminated based upon race Standing Doctrine imagines a claim of illegality against the government, and Allen says that the P had no standing to make that claim This reinforces the idea that the Court cant issue advisory opinions o The Court talked in terms of injury: the party needed to show some personal harm imposed upon them by the government in order to have standing To have standing, a P must show merits and justiciability Merits: that the personal injury is fairly traceable to the s allegedly unlawful conduct Justiciability: a favorable court decision is likely to remedy the injury o There were 2 claims of injury (separate from the merits) The parents claimed that they were harmed as the parents of children who were harmed by the mere fact that the government subsidized racially discriminatory schools The Court rejected this as standing, b/c the children hadnt applied and been rejected by the discriminatory schools, so there was no direct injury The Court was concerned that if they gave standing to the Ps here, everyone would have standing (b/c everyone could make the same claim) o It is no injury to say the government is violating the law If everyone shares the harm, people should go to the legislature That there were negative effects on the parents by the government doing this The Ps claim stigmatic harm and that the schools their children attend are different b/c of this flouting of the law b/c they are less likely to be desegregated o The second harm is much more specific The Court rejected this b/c it claimed it was based upon

speculation and a failure w/in the chain of causation o An injury must be shown, that was caused by the government, that can be redressed o The dissent pointed out that it wasnt speculation, it was simple economics o The argument against this conception of standing is that this argument is one of merits, not justiciability This isnt an Article III question, but a cause of action question o Congressional Power and its Limits Necessary and Proper McCulloch v. Maryland (1819) o Maryland had adopted a statute taxing the National Bank, and one question was whether they had the power to do so One of the subtexts was the federal ability to limit the spread of slavery to the territories o The idea of limited and enumerated powers is the impetus behind the argument that the government cant form a national bank A corollary is that state powers are reserved, i.e. they can do whatever they want unless the constitution prohibits them from doing it (10th Amendment) Many restrictions are placed on the states in the Constitution o Two holdings The Court held Congress had the constitutional power to create the national bank History & Practice o The issue of the national bank was debated at length at the time it was first passed They concluded it was constitutional o Gives us history on what the authors thought the constitution meant The authors differed in their opinions though, often greatly The fanciful authors (Jefferson, Madison, etc.) didnt ratify the Constitution, the state conventions did, and we dont know what they thought o Authority of previous practice means something Precedent is owed some weight (Burkes conservatism) o Shows judicial deference to the legislature and executive Textualism o The bank isnt explicitly granted by the Constitution, but it isnt prohibited o The 10th Amendment doesnt expressly give all other powers to the states, and the Articles of Confederation did This is an argument based on negative inference Its based on background assumptions of what

the Constitution says o Relied upon the definitions of the words in the 10th Amendment Necessary doesnt have to mean only what was absolutely needed, but can mean what was available Based on definitions and use of necessary w/in the Constitution, b/c elsewhere its modified w/ absolutely Proper may have modified the meaning of necessary anyway Words which import something excessive should be understood in a more mitigated sense, that which common usage justifies Text and Content o One argument centered on the structure of the document overall This looked at the practical application of reading the necessary and proper clause broadly (post road analogy) Pointed out that congress has many powers and nothing prohibits them from creating a bank Ridiculous consequences could result from a narrow reading o The other argument focused on the nature of a constitutional document in that great outlines of power should be marked and important objects designated, but that minor ingredients which compose those objects should be deduced from the nature of the objects Differed greatly from Marburys mechanical interpretation Focused on the lofty ideal of this is a constitution were expounding o When a word may be given different meanings, it should be interpreted based on 1) subject, 2) context, and 3) intention of person using it o This approach allows for a more holistic approach, but it places a lot of power in the interpreter o Problems It doesnt necessarily follow that b/c the constitution doesnt list all powers, that it has many powers Perhaps the powers should be interpreted narrowly, instead of granting strong national power o Congress was left the ability to determine what was necessary Marshall reserved the right of the Court to determine whether congress was abusing its discretion in determining whats necessary The Court also held Maryland couldnt impose a tax on the national

bank, b/c it impedes the legitimate use of federal power and is unconstitutional States are allowed to tax, but they cant tax in ways that conflict w/ federal power o Marylands tax applied only to the National Bank, not analogous state institutions, and therefore taxed something they had no control over If they had taxed all banks in MD, the tax would be constitutional b/c we trust that MD isnt trying to break all the banks in MD Plus, state taxation of federal operations violates the Supremacy Clause o The Court wanted to address one of the known defects of representative democracy, i.e. taxing out-of-staters The power to elect representatives protects against abuses of taxation o Rationales Several arguments about practice and history, and their implications, were made by Marshall Can be thought of as Originalism or settled expectations of whats allowed Many textualist arguments were made: negative and positive inferences, where do things appear on the list, etc. A form of Textualism that looks at the text w/in the context in which it appears Derived from the idea that this is a constitution were expounding The Court will look at the means used in passing a law in deciding whether its constitutional Cooper v. Aaron (1958) Came out of Brown, and the school district claimed that they werent a party to Brown so it wasnt binding on them o The school district also claimed that the facts of their case were distinguishable from Brown, so they shouldnt be bound by it o The key is their claim that they werent parties to Brown The Court completely disagreed, and made a statement on the exclusivity of the courts w/ regard to interpreting the constitution o It said that everybody, including state officials, is required to acquiesce to the Courts interpretation of the constitution Presidents have believed and continue to believe that they have a constitutional right to not enforce a law that they dont believe to be constitutional (regardless of what the Court says) Judicial Exclusivity Arguments For Judicial Exclusivity o It is often said its needed for settlement of issues This is problematic when there isnt a decision on point How does one figure out what the Court believes to be constitutional? Example: executive privilege, war powers resolution Arguments Against Judicial Exclusivity

o There are differences between institutional and constitutional principles, and they get confused which they shouldnt This is problematic b/c it is difficult determine which is which The Problem of Judicial Review Why should the court play such a role in a representational democracy? o First, judicial review isnt counter-majoritarian; instead it enforces the will of people This argument was made often in the founding period Based on a gap between what the people want and what the legislature is doing (the legislature has gone awry) This is very easy to critique, b/c its not clear at all that the constitution represents the will of the people It is important for the Court to mechanically interpret the constitution consistently under this view, which clearly doesnt happen Why let previous generations will reign today? o Second, legislatures arent very representative and courts arent very undemocratic Problems of faction in legislature demonstrate this, as well as legislature members deep interest in entrenching themselves in power Plus, there are governmental checks on the Court in that it is appointed, the constitution can be amended, the legislature controls the funding and pay for courts and judges, and judges can be impeached There are sociological checks on the Court, given the backgrounds of judges The critique says that legislatures, although not perfectly representative, are more representative than courts o Third, counter-majoritarianism on the Court is a virtue, not a vice Democracy can sometimes be rash, and the Court can balance that The Courts distance can remove them from the excesses of democracy But when should the Court step in to the democratic process? Commerce Power o Early Commerce Power Gibbons v. Ogden (1824) There were conflicting rights granted by NY to navigators and by the federal government to some navigators Ogden argued that navigation wasnt commerce, and even if it was it was commerce w/in the state of NY, not between states o The Court said that navigation was commerce, commerce isnt simply the buying and selling of goods for money Commerce means the commercial intercourse between nations, and parts of the nation, in all its branches, and is regulated by prescribing rules for carrying on that intercourse The sovereignty of Congress, though limited to specified objects, is

plenary as to those objects The Court said congressional power isnt available to regulate commerce that is entirely internal or doesnt affect other states (if it does affect other states, the federal government can regulate it) o It also said any commerce that crosses state lines falls under congressional power o It also said the allocation of power to regulate commerce between states is exclusive to the national government This is no longer the law This is why Marshall says inspection laws arent w/in the commerce clause o It said that regulation of commerce means the right to make rules that restrain its conduct Lessons of History Congress started to say that its regulatory interests involved anything shipped across state lines, both by outright banning certain commerce (lottery ticket case) and regulating other types (child labor case) United States v. E.C. Knight Co. (1895) (Sugar Monopoly Case) o Dealt w/ Sherman Anti-Trust Act, attempting to regulate consolidation of industries into monopolies o The Court said congress could not regulate manufacturing, even if the goods being manufactured were going to be shipped across state lines This was b/c manufacturing isnt commerce, it precedes commerce and its effect on interstate commerce is indirect (Formal Approach) o Harlan, in his dissent, said that the monopoly affected the free flow of commerce of the entire nation b/c it would destroy competition The purpose of the commerce clause was to allow the federal government to protect against this (Realist Approach) o This cant adequately be controlled by any one state, only the federal government A monopoly directly affects the people of all the states b/c it obstructs buying and selling articles between and within the states Houston, East & West Texas Railway v. United States (1914) o The Court said that the federal government can regulate purely intrastate railways that are closely related w/ interstate railways and directly affect them (Realist/Effects Approach) This is b/c of the effects the intrastate railway had on the interstate railway Stafford v. Wallace (1922) (Stockyard Case) o Considered similar action to E.C. Knight o Introduced stream of commerce metaphor o The Court looked towards the direct effects of regulating the stockyards, b/c it was a part of the stream of commerce (Realist/Effects Approach) Stockyards couldnt be separated from the stream of

commerce Champion v. Ames (1903) (Lottery Case) o The Court said that congress can prohibit interstate shipments, based on congresss ability to regulate commerce that crosses state lines The carrying from one state to another by independent carriers of things or commodities that are ordinary subjects of traffic, and which have in themselves a recognized value in money, constitutes interstate commerce o Essentially granted Congress a general police power when regulating interstate commerce Although this power is plenary, it isnt arbitrary b/c it is subject to the limitations found in the constitution Hammer v. Dagenhart (1918) (Child Labor Case) o Overturned the Child Labor Act, which prohibited the transportation in interstate of commerce goods produced in factories employing children o The Court echoed E.C. Knight when it held that congress couldnt regulate purely intrastate manufacturing, even if the goods being manufactured may enter interstate commerce This looked at the pretext of Congresss action in passing the law, since congress understood they couldnt directly regulate the manufacturing so they tried to do so through regulating what they sold Manufacturing is purely local in character The power to regulate commerce is the power to control the means by which its carried on, not the contrary assumed right to forbid commerce from moving and thus destroying it in a particular area There is no power vested in Congress to require the states to exercise their police power so as to prevent unfair competition o Congress recognized that they had a general police power in that they could regulate anything that crossed state lines, and in Hammer the Court attempted to prevent this o Holmes, in his dissent, argued that if an act is w/in the powers specifically granted to Congress, a law isnt any less constitutional b/c of the indirect effects it may have, however obvious those effects may be Questions Confronted o What are the effects of what congress is trying to regulate? This is how it should be determined what congress can regulate (Realism) Hard to predict how the court will decide cases o Does the court lay down a rule? (Formalism) E.C. Knight, Champion, and Dagenhart Is blind to the purpose of the commerce power o What should the Court do about congresss motives? Should they be ignored or looked at? The New Deal and Aftermath Attempted to reign in the free market in order to establish coordination, regulation, and stability in the market The difference between Schechter/Carter and Jones & Laughlin is politics A.L.A. Schechter Poultry v. United States (1935) (Sick Chickens Case)

o The Court unanimously struck down the National Industrial Recovery Act The act was struck down on non-delegation grounds o The Court said that, as applied to Schechter, the law exceeded congresss commerce power Congress can only regulate intrastate commerce when its effects on interstate commerce are direct, not indirect (Formalist/Direct Effects) The slaughtering and sales of Schechter werent seen as transactions in interstate commerce, AND the regulation of intrastate commerce was a traditional state function that congress couldnt regulate under the Tenth Amendment (Federalism) The Court said that the fact that there is a stream of commerce doesnt mean that congresss regulatory power applies to intrastate commerce o Cardozo, in his concurrence, argued that if the case dealt w/ a larger poultry manufacturer, the Court may change its mind Carter v. Carter Coal Co. (1936) o The Court struck down the Bituminous Coal Conservation Act o The Court said that congress didnt have the power to regulate the mining of coal, b/c it was production, not trade It was afraid of the eroding of states rights b/c regulating labor was a traditional function of the states (Federalism) It said the effect of labor on interstate commerce was indirect It said that congress cant regulate interstate commerce after it ends or before it begins The employment of men, fixing their wages, hours of labor, and bargaining in respect of these things constitutes intercourse for the purposes of production, not trade Direct/Indirect Test The distinction between a direct and an indirect effect turns, not upon the magnitude of either the cause or the effect, but entirely upon the manner which the effect has been brought about Working conditions are local conditions, which can only have an indirect effect on commerce o Justices Cardozo, Brandeis, and Stone said that congress could fix the prices of coal for interstate commerce, but they didnt address the labor and wage issues This was b/c the prices of intrastate coal sales were so inescapably related to the prices of interstate coal sales After these cases, Roosevelt threatened to pack the court to get the New Deal passed (The switch in time that saved nine) NLRB v. Jones & Laughlin Steel (1937) o The NLRB charged Jones & Laughlin with breaking labor laws passed by congress Congress was directly involving itself in manufacturing and employment o The distinction between this company and Schechter is that Jones &

Laughlin is a much larger company whose effects on interstate commerce are much larger and more direct than Schechters There is a debate whether Jones & Laughlin followed precedent o The Court rejected the categorization of manufacturing and commerce, and took a realist approach that looked purely at effects Acts which directly burden or obstruct interstate commerce, or its free flow, are w/in the reach of Congressional power Acts which have these effects arent rendered immune b/c they grow out of labor disputes The fact that Congress is regulating production by condemning the prevention of labor organization isnt determinative Congressional authority isnt limited to transactions which can be deemed to be a part of the essential flow of interstate commerce If the activities have such a close and substantial relation to interstate commerce that their control is essential or appropriate to protect that commerce from burdens and obstructions, Congress can regulate o When industries are organized on a national scale, Congress can exercise control over their industrial labor relations when necessary to protect interstate commerce United States v. Darby (1941) o There is no debate whether this case followed precedent (it didnt) o Darby was charged w/ violating the Fair Labor Standards Act The FLSA was a law dealing w/ across state lines commerce (like the Child Labor Laws) and manufacturing through minimum wages o The Court turned from the E.C. Knight line of cases and said that congress could regulate interstate commerce regardless of motive, and b/c of this they could regulate manufacturing conditions b/c its simply a means to the end of prohibiting the unlawfully produced good (Darby two-step) Congress is free to do this, regardless of the states police power Interstate commerce shouldnt be made the instrument of competition for the distribution of goods made under substandard labor conditions The motive and purpose of a regulation of interstate commerce are matters for legislative judgment, upon which the constitution places no restriction and over which the courts have no control o Overruled Hammer v. Dagenhart and said the 10th Amendment doesnt limit the Commerce power o Can be seen as totally consistent w/ the Lottery Case Ways the Court Looks at Commerce Clause Issues o Formalism o Realism o Looking at motive or pretext Advocating formalism, w/out a motive limit, would broaden the commerce clause power to no end Wickard v. Filburn (1942) o Dealt w/ the regulation of production of wheat

harvested more wheat that his quota allowed o The Court rejected the direct and indirect effects labels Whether the subject of the regulation is production, consumption, or marketing isnt material o The Court also held that despite the fact that the harvested a relatively small amount, taken in the aggregate actions like his would have a substantial effect on interstate commerce This is true regardless of whether the effect might at some earlier time have been labeled direct or indirect Congress can aggregate all activity of a sort, even if its not commerce, (they can imagine the possibility of it happening) when deciding if its effects on interstate commerce call for regulation The stimulation of commerce is a use of the regulatory function that is allowable, similar to prohibitions or restrictions Heart of Atlanta Motel v. United States (1964) o Dealt w/ Title II of the Civil Rights Act This was passed under the commerce clause power b/c statutes prohibiting discrimination in private behavior based on the common law were struck down in the Reconstruction period o Title II said that the Act applied to hotels b/c they provided services to transient guests, which affected commerce Also, if a substantial portion of what was served in a restaurant moved through interstate commerce, congress could regulate it under this act o The Court endorsed both rationales Discrimination has a qualitative and a quantitative effect on interstate travel It impairs pleasure and convenience when a traveler is uncertain of finding lodging, and consequently a substantial number of people are discouraged from traveling The moral judgment of Congress regarding discrimination doesnt matter in allowing its regulation of commerce The means Congressional choices to remove obstructions to commerce must only be reasonable (Rational Basis Test) Katzenbach v. McClung (1964) o The Court upheld Title II which prevented restaurants from discriminating The Court found that Congress could rationally conclude that discrimination, in the aggregate, by restaurants affected interstate commerce (Rational Basis Test) B/c Congress had determined that discrimination imposed burdens on interstate commerce generally, a case by case determination of particular restaurants isnt needed (they aggregate like w/ the wheat) This was b/c some of the food served in the restaurant traveled in interstate commerce to reach the restaurant, and discrimination in restaurants discourages travel Discrimination also discourages the skilled professionals and

companies from moving into areas The Modern Era United States v. Lopez (1995) o The first time since the New Deal that the Court struck down a law based on the commerce clause o Dealt w/ a statute that made it illegal to possess a weapon in a school zone o The Court held 1) that congress could regulate the use of the channels of interstate commerce (upheld Darby, Katzenbach, and Heart of Atlanta Motel), 2) congress could regulate the instrumentalities of commerce (Railway case) or persons or things in interstate commerce, and 3) congress could regulate activities having a substantial relation to interstate commerce, i.e. those that substantially affect it (Substantial Effect Test) Congress can also regulate activity that substantially affects intrastate commerce o The Court said congress couldnt regulate this behavior b/c the underlying activity wasnt economic or commercial and was outside of its jurisdiction (unlike Wickard and Darby), and piling inference upon inference leads to too tenuous a connection between the activity and interstate commerce The Act contained no express jurisdictional requirement establishing its connection w/ interstate commerce, and there were no legislative findings about the regulated conducts substantial affect on interstate commerce The Act neither regulated a commercial activity nor contained a requirement that possession be connected in any way to interstate commerce The Act couldnt be upheld under the cases that said that there could be aggregation of similar activities to demonstrate substantial effects on interstate commerce o The government argued that this crime affected the quality of education which in turn affected the economy and the costs of crime prevented business growth in these areas The Court rejected this b/c it said it gave congress a general police power Kennedy in his concurrence argued this as well, and wanted to prevent the federal government from impinging on traditional state functions o He also wanted to make sure that it was clear whether the state or federal government would be accountable The idea behind this is that at the end of the commerce power, the power lies w/ the states and the 10th Amendment shields state autonomy to pursue the functions that they have traditionally done (education, corporate law, family law) The Court thought that under both the costs of crime and national productivity theories, there wouldnt be any limitations on Congressional power to the detriment of the states

o Stevens, in his dissent, argued that guns are both articles of commerce and articles used to restrain commerce, and power to regulate the entire market includes the power to regulate parts of that market o Breyer, in his dissent, repeats the governments arguments (quality of education affects commerce, as do costs of crime) He argued that the legislature was in a better position to determine the connection between regulated activity and commerce He also rejects Rehnquists delineation between economic and non-economic activity, b/c the distinction is subjective and does no work He also said that even if its non-economic activity, it still affects interstate commerce o 3 Problems w/ the Majority Decision Contradicts modern precedent, which has upheld statutes despite more tenuous connections between commerce and the regulated activity Its irrelevant whether the activity regulated is commercial or noncommercial in nature if the activity affects interstate commerce Threatens legal uncertainty in an area of law that is settled; multitudes of statutes are now thrown into question U.S. v. Morrison (2000) o Dealt w/ the ability of women to sue for gender motivated violence in federal court o The Court said gender motivated violence wasnt economic activity, and therefore it couldnt be aggregated into having a substantial affect on interstate commerce The constitution requires a distinction between what is truly national and what is truly local Just b/c Congress thinks something substantially affects interstate commerce, this doesnt necessarily make it so The Court rearticulated the 3 areas of commerce that Congress can regulate (Lopez) Congress can only regulate intrastate activity if the activity is economic in nature (but this wasnt) It appears the Court isnt applying a rational basis test, or is at least changing its application o Congress made the same arguments as in the Jim Crow cases, but the Court rejected this b/c the underlying activity wasnt economic o Souter, in his dissent, argued the majoritys approach was formalistic He argued for judicial deference to congressional fact-finding as to substantial effects This is what rational basis review requires Gonzales v. Raich (2005) o Dealt w/ congresss ability to ban the growth and use of marijuana within ones home o The Court upheld the law b/c the aggregate commercial activity that would occur if this wasnt banned would substantially affect interstate commerce (Darby & Wickard) This was even though the underlying activity was noncommercial, b/c the aggregation had a different, stronger

connection to interstate commerce than Lopez or Morrison Regulation was w/in the commerce power b/c production of marijuana (a commodity) meant for home consumption has a substantial effect on the national market (interstate commerce) The Court implicitly upheld the 3 part test in Lopez o Scalia, in his concurrence, argued that congress can regulate those intrastate activities that dont themselves substantially affect interstate commerce where necessary to effectively regulate interstate commerce Congress may regulate non-economic local activity if that regulation is part of a more general regulation of interstate commerce Many of these cases deal w/ the relation between Congress and the courts There is a difficulty in the application of the formal commerce rule It doesnt fit perfectly (lottery cases) Should congressional motives play a role? o Does this give them a general police power? A realist standard looks at the effects of the behavior Congress is attempting to regulate Gives a lot of discretion to the interpreter Doesnt outline rules for Congress Should the purpose of Congresss actions play a role, or should the effects be looked at only? This could protect some state power o Taxing and Spending Powers Remember Congress only has limited and enumerated powers, in contrast to the states general police power The 10th Amendment is an independent limit on federal power in order to maintain state sovereignty Think about how Congress can get around the restrictions imposed by the Court This involves the interrelation between Congresss powers (commerce and taxing & spending) o Ex.: Congress passed a child labor tax after the court struck down the child labor interstate commerce regulations in Hammer The Court rejected this in Bailey v. Drexel Furniture Co. (1922), pointing out that the tax was a penalty The taxing power is more restrictive than the spending power o Taxing should be focused on raising revenue, not regulating behavior United States v. Butler (1936) Dealt w/ an act by Congress that attempted to limit production of cotton in order to reduce surplus and stabilize price; the money given to farmers who limited production was taxed from agricultural processors o A state initiated measure of this nature would face coordination problems, as different states would have different incentives o The tax was included in order to place control of agricultural production under the taxing and spending power The Court said it was mechanically applying the constitution to the law, enforcing the will of the people, echoing Marbury The Court held that Congress has no right to do anything to protect the

general welfare o The Court discussed Madisons view that this meant nothing else, Hamiltons view that it applied to the right to the tax and spend clause, but then it rejected both The Court instead looked at whether the end was prohibited (regulating production), and it said it was so the Court couldnt just use another method (tax instead of commerce) o The Court also said that the tax was in effect compulsory and coercive (hence a regulation), b/c the farmers had to choose between paying the tax or going broke (determinism) Justice Stone, in his dissent, said that congress had the right to protect the general welfare through taxing and spending o He also said the tax was conditional, not compulsory o Finally, he said that it was ridiculous to say that congress couldnt condition the receipt of federal money o He pointed out some limits on the taxing and spending power of congress The purpose must be truly national, it cannot be used to coerce action left to state control, and the conscience & patriotism of the Executive and Congress Steward Machine Co. v. Davis (1937) Dealt w/ companies who paid state unemployment taxes, who could then receive 90% tax credits (but not all states had that particular unemployment tax system, and joining the system was voluntary) o 4 or 5 states had adopted this system before Congress had, but it would be hard to get all of the states to adopt the same one w/out federal authority The Court looked at whether the law caused duress or inducement (sticks or carrots), and it saw it as an inducement o Duress isnt allowed, but inducement is South Dakota v. Dole (1987) Dealt w/ statute that withheld highway funds for states that didnt raise the drinking age to 21 The Court upheld the law o The spending power isnt unlimited, and is subject to several restrictions It must be exercised in pursuit of the general welfare In determining whether an expenditure is related to the general welfare, courts should defer substantially to the judgment of Congress The statute at issue served the general welfare b/c different drinking ages in different states incentivize young people to drink and drive If Congress wishes to condition the states receipt of federal funds, it must do so unambiguously Any law cant violate the Constitution or statutes Conditions on federal grants must be related to the federal interest o The pressure implemented may turn into coercion, but not in this case b/c it was only mild encouragement and the prerogative still laid w/ the state o State Sovereignty as a limit on the exercise of federal power National League of Cities v. Usery (1976)

The Court held that the commerce clause doesnt empower Congress to enforce minimum wage and overtime provisions of the Fair Labor Standards Act against the states in areas of traditional government functions under the 10th Amendment o Congress cant impose restrictions on the functioning of state governments This would force states to raise taxes or cut spending, thereby commandeering state governments Garcia v. San Antonio Metropolitan Transit Authority (1985) Again dealt w/ the application of the Fair Labor Standards Act to state and local governments The Court overruled Usery, holding the traditional government function test was unworkable and unsound in principle o No distinction that purports to separate out important government functions can be faithful to the role of federalism in a democratic society o Any rule of state immunity that looks to the traditional, integral, or necessary nature of a government function inevitably invites an unelected federal judiciary to make decisions about which state policies it favors This leads to inconsistency o State sovereign interests are more properly protected by procedural safeguards inherent in the structure of the federal system (Political Process) than by judicially created limits Powell, in his dissent, argued that the political process cant properly safeguard states rights b/c of special interest groups have too much sway and Congress isnt accessible or responsive to state interests OConnor, in her dissent, argued that the Court shouldnt abdicate its role in making sure Congress complies w/ its duty to the states o All that stands between Congressional power and the states is Congress undeveloped capacity for self-restraint New York v. U.S. (1992) The Act at issue provided 3 incentives (monetary, access, and take title provision) to induce states to provide for disposal of radioactive waste w/in their borders o The take title provision required a state to take title to any waste w/in its borders at a certain date and to be liable for all damages thereby directly or indirectly incurred The Court held the take title provision unconstitutional, b/c the federal government cant commandeer the state government to achieve federal ends o The 10th Amendment requires the Court to determine whether an incident of state sovereignty is protected by a limitation on an Article I power o Congress cant commandeer the legislative processes of the states by directly compelling them to enact and enforce a federal regulatory program Even where Congress has the power to pass laws requiring or prohibiting certain acts, it lacks power to directly compel states to require or prohibit those acts No federal interest allows this This cannot be ratified by the consent of state officials o Congress can encourage states by holding out incentives to influence a states policy choices

Congress can provide money that is granted only if conditions are met and it can also create a federal nationwide program that preempts state law Monetary incentives are allowed under the Commerce Clause, taxing power, and spending power Where Congress encourages regulation rather than compelling it, state governments remain accountable to their citizens, but where Congress compels states to regulate the accountability of both is diminished o The take title provision offers a choice of accepting ownership of waste or regulating according to Congress instructions, which are both unconstitutional The first would impermissibly commandeer state governments and would be a federally compelled subsidy to producers of waste, b/c states would become liable for producers damages The second commands states to implement Congressional legislation If one choice had been constitutional, it would have been allowed o Even a compelling government interest isnt enough to permit a law that would otherwise violate the 10th Amendment White, in his dissent, argued that this was the product of cooperative federalism o He said this formalist approach would give Congress fewer incentives to defer to the wishes of states in achieving local solutions for local problems Stevens, in his concurrence/dissent, argued that Congress compels states to implement legislation in other areas (railroads, schools, prisons, elections) Printz v. U.S. (1997) Dealt w/ Brady Act which required gun dealers to send forms to the chief law enforcement officer in the area who was required to make a good faith effort to do a background check The Court held the Brady Act to be unconstitutional, b/c Congress cant commandeer state executive officials o The Court looked to history, constitutional structure and precedent o Congress cant intrude upon state policy-making authority in the form of the state executive, nor can it take executive authority from the President and give it to state and local officials o Congressional commandeering would force accountability for Congressional actions upon the states o The Court declined to balance the purpose of the Act w/ the minimal and temporary burden on the state executive When its the whole object of a law to direct the functioning of the state executive, balancing is inappropriate Thomas, in his concurrence, argued that the 2nd Amendment prohibited the law Stevens, in his dissent, argued that when Congress is acting w/in its power, it can impose affirmative obligations on executive and judicial officers of states o If this isnt allowed, it incentivizes expansion of federal bureaucracy o Political Process Argument: b/c Congress is made up of state representatives, its unrealistic to assume they will ignore the sovereignty concerns of their constituents

o Accountability isnt an issue, b/c state officials will cast blame where it belongs Why does the distinction between commandeering and what is allowed matter? Some say states get to govern themselves, but this is simply not true o If something is w/in the scope of federal power, the states unquestionably dont govern themselves Some say commandeering is importantly different than conditional granting of money or preemption o Commandeering requires states to pay, as opposed to the others where the federal government pays The problem w/ this argument is that the states cannot make a constitutional argument that they arent making enough money Others say that there is blurred accountability if the federal government commandeers the state government o The federal government takes credit but doesnt pay any of the costs, and voters dont know who to hold accountable This may work both ways, with blame and praise, which takes away from the argument States may like the ability to blame the federal government Is there really a worry that people arent going to know who to blame? Are voters really that stupid? State courts are unquestionably commandeered by federal power Do the same questions and arguments apply? Implied Limits on State Power: the Dormant Commerce Clause o Background If congress hasnt acted to regulate some sort of commerce, the states cannot regulate it and if they do the courts will step in and prevent it o Modern Doctrine of Non-discrimination: Branch 1 of the Dormant Commerce Clause States cannot overtly discriminate against out-of-state commerce and cannot engage in protectionist measures Courts police this o It is argued that they made this up (its not in the constitution), and that it should be left to congress States can regulate interstate commerce when the regulation is nondiscriminatory and non-protectionist and the regulation isnt heavily burdensome on a market in interstate commerce o No facial discrimination is allowed This fits well w/ the rule against discrimination Its easy to enforce Much easier to figure out than the economic effects of a statute But its really easy to evade this rule A state doesnt have to blatantly facially discriminate to discriminate under the dormant commerce clause The Court can also look to the effects of the state law and the legislative debate over the law (looks at motive) The Source of the Courts Authority Some say that any regulation by states of interstate commerce is per se prohibited, b/c this is a power given to congress (Gibbons) o The Court has consistently recognized that states can regulate this

sometimes, however The 10th amendment may do some work as well (Thomas wants this to do all the work) The full faith and credit clause may do some work, but very little b/c it only covers certain forms of discrimination (privileges or immunities of citizens) Through silence, Congress can be seen to preempt certain actions that inhibit interstate commerce It could also be taken from this silence that it approves of these laws, or they may not be paying attention, or they may not care City of Philadelphia v. New Jersey (1978) The law at issue prohibited the importation of waste from out of state The only question was whether the fact that this case involved waste distinguished it o The Court said that the mere movement of trash wasnt dangerous, unlike the movement of infected cattle The law itself doesnt point to a belief by the state lawmakers that the trash was dangerous The Court said it wasnt a legitimate interest for NJ to protect itself from out of state waste, b/c it was an article of commerce Generally, this case bars protectionism by states o Facial discrimination is assumed to be protectionist and is therefore per se unconstitutional o Where state legislation regulates evenhandedly (is facially neutral) and its effects on interstate commerce are incidental, the law will be upheld unless the burden imposed on commerce is excessive in relation to the local benefits The extent of the burden acceptable depends on the nature of the local interest involved and whether less burdensome means are available (Means/Ends Analysis) o Reciprocity argument: one day NJ may want to send their waste to PA Rehnquist, in his dissent, argued that a state may ban the import of items which may cause an ever increasing risk to public health and safety C&A Carbone, Inc. v. Clarkstown (1994) The law at issue was facially neutral and discriminated against in-state and outof-state interests, not based on geography like City of Philadelphia The Court held the law to be unconstitutional b/c of its effects on out-of-staters o The law had effects on interstate commerce, and was no less discriminatory b/c it was applied to in-state or in-town interests A facially neutral law can be found discriminatory if there is proof of discriminatory impact/effects o In the absence of federal legislation, the states can regulate interstate commerce, as long as they dont violate the Courts development of the dormant commerce clause The Court looks to whether the law is protectionist and if not balances the burdens and benefits Congress can adopt laws regulating this commerce that conflicts w/ the Courts decision (i.e. that is discriminatory) The Court is interpreting from congressional silence West Lynn Creamery v. Healy (1994)

Dealt w/ a facially neutral tax law that taxed all milk sales in MA, and taxes collected on sales of local and out-of-state milk went to a subsidy that was redistributed to MA milk producers The Court held the law unconstitutional b/c the law operated as a tariff and was therefore protectionist o The facially neutral tax had the same impact as a discriminatory tax b/c of the subsidy, and was therefore unconstitutional o Representation Reinforcement Argument: when a nondiscriminatory tax is coupled w/ a subsidy to one of the groups hurt by the tax, a states political processes cant be relied upon to prevent legislative abuse o The obvious impact on out-of-state production demonstrates that its wrong to assume the law only burdens MA consumers and dealers Scalia, in his concurrence, said MA could have a subsidy for in-state suppliers funded from the states general revenues o He said prohibiting state subsidies interferes too much w/ state affairs Market Participant Exception States can prefer in-state interests when they are market participants, even if its facially discriminatory Central Timber Development v. Wunnicke (1984) o AK said anyone can bid to cut its timber, but that all timber must be processed in AK o The Court said AK couldnt impose downstream conditions on the timber-processing market as a result of its ownership of the timber itself o Limit on the Market Participant Doctrine: a state may impose burdens on a market in which its a participant but may go no further; it cant impose conditions that have a substantial regulatory effect outside of that market The argument for allowing a market participant exception is that it is transparent, as opposed to controlling downstream markets o Undue Burden on Commerce: Branch 2 of the Dormant Commerce Clause Concerns facially neutral statutes w/ significant effects on interstate commerce, where it is asked whether w/out the beneficial effects on the state if the law would have been passed anyway In the mud flaps case, it is assumed that the law wasnt protectionist but it doesnt pass a cost/benefit calculation (similar to Kassel) In these cases the Court engaged in a Means/Ends Analysis, like in City of Philadelphia The Court attempts to determine whether the relationship between the ends and the means is rational Hunt v. Washington State Apple Advertising (1977) Dealt w/ a facially neutral law that regulated the use of a rating of apples imported to North Carolina, which the Washington apples didnt use The Court held the law unconstitutional b/c of its identified discriminatory effects: it benefits in-state growers, strips Washington of its market advantage, and its means didnt rationally create the ends stated (reducing consumer confusion) Exxon v. Governor of Maryland (1978) The law at issue prohibited producers and refiners of oil from selling as retailers in Maryland o The Maryland legislature said that this was b/c vertically integrated companies advantaged retailers associated w/ them and discriminated

against independent retailers o The law had a clear discriminatory purpose and discriminatory effect The Court acknowledged that the burden of the statute fell mostly on those from out-of-state, but that didnt mean the statute was discriminatory b/c many of those from out-of-state werent burdened (therefore the statute wasnt an undue burden) o The law didnt 1) prohibit the flow of interstate goods, 2) place added costs upon them, or 3) delineate between in-state and out-of-state retailers If a law burdens some, but not all, out-of-state interests it is allowable, particularly if those helped are not purely in-state The dissent said that there didnt need to be perfect overlap between helping instate interests and hurting out-of-state interests in order for there to be discrimination The Court engaged in a burdens/benefits analysis b/c the statute was facially neutral Kassel v. Consolidated Freightways Corp. (1981) Dealt w/ a facially neutral law that had a discriminatory impact o Iowas burden which it placed on interstate commerce was so large b/c they were an outlier and no surrounding state had the same restriction The Court balanced the benefits of safety w/in the state the statute protected against the burdens on interstate commerce o The exceptions which benefited Iowan interests caused the Court to give less credence to the health & safety benefits of the state This law heavily burdened interstate transportation o Regulations designed to promote public health and safety may further the purpose so marginally and interfere w/ commerce so substantially as to be invalid under the Commerce Clause o The Court usually has great deference to state highway safety regulations, particularly when non-discriminatory b/c state political processes serve as a check on unduly burdensome regulations Less deference is due where the local regulation bears disproportionately on out of state residents and businesses Brennan, in his concurrence, looked to the purpose of the law o Courts shouldnt second guess empirical judgments of the legislature o Burdens on commerce should be balanced against the local benefits sought by the legislature o Protectionist legislation is unconstitutional, regardless of safety benefits Rehnquist, in his dissent, argued that the Court should defer substantially to determinations made by the legislature o Striking down this law forces IA to conform to its neighboring states, which isnt the duty of the Court One critique of the courts decision is that they werent the best arena to judge the safety of trucks (particularly if one accepts that this wasnt protectionist) o How does the court determine if a statute is discriminatory? Look for facially discriminatory statutes Look for statutes that are neutral on their face but are in fact discriminatory (fake neutral) Perform a means/ends analysis for facially neutral statutes (City of Philadelphia, Hunt) Look at direct evidence of intent (Hunt)

Look at the economic effects of the statute (Exxon) Allows an inference of intent They are also relevant own their own, regardless of intent Presidential Powers and the Separation of Powers o The first three articles of the constitution set up a separation of authority amongst the 3 branches o The executive authority is supposed to enforce the decisions of the legislative & judicial authority The framers didnt want the executive to have the ability to design laws b/c it is much easier for the executive to act o Article II established the executive and vested power in the president President has the power to veto, to enter into treaties, to appoint officers w/ the advice & consent of the senate Executive power isnt enumerated, the question is then how to define what those powers are o Separation of powers separates functions among the entities (although not fully) They are mostly separated in order to prevent tyranny, to be efficient, and b/c of deep normative commitments (president needs to be commander-in-chief, etc.) o Checks & balances is supposed to represent the one, the few, and the many This way no one entity can dominate the government o Youngstown Sheet & Tube Co. v. Sawyer (1952) Truman seized private companies in order to secure steel for the war effort, and claimed no specific authority to do so The fear was of an imperial presidency Justice Black said that the president wasnt granted the powers explicitly The power wasnt granted by the constitution or by statute o There was also no statute from which the power could be implied, and Congress had expressly refused to grant the power in analogous cases The power couldnt be implied from Article II o The order cant be sustained as a use of the military power of the Commander and Chief, b/c that role doesnt entitle the President to take private property in order to prevent work stoppages o It cant be sustained by the provision that he executive power shall be vested in a President, b/c this grant refutes the idea that the President is a lawmaker o It cant be sustained by the grant of power that the laws be faithfully executed b/c that power is limited to execution of laws passed by Congress If the president acted w/out congressional authorization, then he was exercising legislative authority which isnt allowed Textualist approach to the authorities granted to the branches Justice Frankfurter said that the president wasnt granted the powers explicitly so it could be allowed unless it was prohibited, and it was prohibited by congress explicitly b/c they never granted it him and rejected similar grants of power He also hinted that if the power had been allowed historically, it may be deemed allowable as a historical grant of power (a type of adverse possession of power) He took a realist approach to the authorities granted to the branches Justice Jackson said the problem couldnt be solved by looking at the intent of the framers, and laid out 3 categories for the exercise of executive power The first is when the president is acting pursuant to statute, he has all of the

power of the federal government at his disposal The second is when the president acts in absence of congressional grant or denial of authority, he can only rely on independent powers, but there is a zone of twilight in which he and Congress may have concurrent authority, or in which its distribution is uncertain o Congressional inertia, indifference, or acquiescence may sometimes, as a practical matter, enable if not invite independent Presidential action o He says that any actual test of power is likely to depend on the imperatives of events and contemporary imponderables rather than abstract theories of law o This is seen by some to be wise b/c they see it as how things work in the real world The third is when the president is acting contrary to the will of congress, he can only rely upon his own constitutional powers minus any constitutional powers congress has in the matter o These actions are scrutinized w/ caution, b/c they put the constitutional system at risk o The basis upon which he can act is if the president believes the governing statute is unconstitutional He said this case was in the third category, that being commander-in-chief of the armed forces doesnt make the president commander-in-chief of the country The grant of executive powers to the President in Article II isnt a grant of all conceivable powers, but an allocation of the generic powers listed therein In any case, the President doesnt have a monopoly on the war powers o Congress has the power to declare war, raise and support armies, and provide and maintain a navy The Constitution doesnt grant the President emergency powers (except suspension of habeas) o The Framers did this deliberately out of fears of tyranny The dissenting judges said that there was an emergency and the president needed the power to handle it o United States v. Curtiss-Wright Corp. (1936) Dealt w/ a prohibition instituted by the executive on selling arms to warring nations in South America The question was whether the executive had the power to regulate this area There was a congressional statute allowing the exercise of the power The Court held that the prohibition was acceptable, b/c there was a difference between domestic powers and foreign relations powers The aim of the prohibition was to affect a situation entirely external to the US that fell w/in the category of foreign affairs Unlike domestic powers, which are mostly reserved to the states except those explicitly enumerated, foreign relations powers were transferred directly from the Crown to the United States o The government can only exercise those powers specifically enumerated in the Constitution and those implied to carry out those powers in respect to internal affairs o The states never possessed international powers Executive powers in foreign affairs dont need to be specifically enumerated The President is the sole organ of the nation in its external relations o The executive is in a better position than Congress to make decisions in

this area o There is a textual argument against this (only Congress can declare war) o Dames & Moore v. Regan (1981) Pursuant to statute, the US seized Iranian assets upon the onset of the hostage crisis Reagan then signed a treaty w/ Iran sending all disputes over this between U.S. interests and Iran to binding overseas arbitration They couldnt use the U.S. courts The Court said that the seizing of the assets was allowable b/c it was statutorily authorized The Court then said that the tenor of the legislation gave the president considerable leeway and allowed the president to negotiate the tribunal The Court was much more measured and cautious than in Curtiss-Wright, as it didnt espouse any grand theory on the foreign power granted to the executive o Hamdi v. Rumsfeld (2004) Hamdi was a U.S. citizen, seized in Afghanistan on what the government called the field of battle, and he was being detained on U.S. soil as an enemy combatant The opinion says nothing about how the U.S. should treat enemy combatants who arent U.S. citizens Hamdi claimed that he wasnt receiving habeas, he had no lawyer and had received no process Habeas Corpus is a claim that one is being unconstitutionally held by the government, and the writ challenges the constitutionality of the confinement o This is recognized by the Constitution o Habeas isnt supposed to be suspended unless there is an invasion or a rebellion under the constitution The executive initially argued that the president didnt need any congressional authorization to detain enemy combatants The Court held that the Congressional Authorization of the Use of Military Force authorized the detention of enemy combatants and citizens in a manner that overrides the Non-Detention Act Consequently, the Court didnt have to decide the Article II question of whether the executive had the authority to detain the prisoner It presumed, but didnt hold, that such authority was required It also presumed, but didnt hold, that the AUMF applied to military detentions The Court held that due process demands that the detainee have the capacity to rebut the claims against him before a neutral decision maker with representation The Court also said that the government can try these issues in military tribunals Absent suspension, the writ of habeas corpus is available to every individual detained in the US Due process was determined by balancing the private interest affected by the official action against the governments asserted interest o Hamdis interest was in being free from physical detention o The governments interest was in ensuring that those who have fought against the US dont return to battle The Court held that a citizen detainee seeking to challenge his classification as an enemy combatant must receive 1) notice of the factual basis for his classification and 2) a fair opportunity to rebut the governments factual assertions before a neutral decision-maker

o However, exigencies may demand that, aside from these core elements, enemy combatant proceedings may be tailored to alleviate their uncommon potential to burden the executive at a time of ongoing military conflict Hearsay evidence, a presumption in favor of the government, etc. may be allowed Separation of powers doesnt mandate a circumscribed role for the Court in such circumstances Souter and Ginsburg, in their concurrence/dissent, said that a statute was needed that gave a clear statement of authorization to detain in order for the detainment of Hamdi to be legal Requiring a clear statement is a common decision the Court makes to avoid answering an ambiguous constitutional question Scalia and Stevens, in their dissent, said that the government could only try citizens captured as enemy combatants for treason or detain them if the writ of habeas corpus wasnt suspended by congress If civil rights are to be curtailed during wartime, it must be done openly and democratically Thomas, in his dissent, argued that judicial interference in national security and foreign affairs destroys the purpose of vesting primary responsibility for these areas in the executive He said that in this context, due process only requires a good faith executive determination This is seen as a loss for the executive, yet it gave the executive a tremendous amount of power o Hamdan v. Rumsfeld (2006) The Court said that the executive could not by executive order override other constraints on executive action created by the legislature The executive cant decide that Congress had overturned a law when they havent done so explicitly, Congress must speak explicitly The Court left open the question of whether the executive had power in this arena o Boumediene v. Bush (2008) The Court struck down the detainee treatment act b/c it provided for limited judicial review in the military tribunals it created, particularly of factual questions Constitutionally, the judiciary should have the right to review CONSTITUTIONAL RIGHTS: EQUALITY & LIBERTY o Race & the Constitution: Historical Case Study When the Court steps in, they have not always done so to the betterment of minorities Race, Slavery, and the Original Constitution Slavery wasnt explicitly mentioned until the 13th Amendment There was never any doubt that the constitution didnt prohibit slavery when it was created 3/5 clause legitimized slavery Art. I, Sec. 9 said that Congress couldnt prohibit the slave trade until 1808 o Article V made that section un-amendable Art. 4, Sec. 2 required the return of fugitive slaves Dred Scott v. Sandford (1857) First, the Court held that there wasnt federal diversity jurisdiction b/c Scott, as a black man, couldnt be citizen

o Therefore free blacks cannot be citizens either Therefore the privileges & immunities clause doesnt apply to blacks Allowed states to bar the immigration of free blacks o The Court held that allowing Scott to become a citizen would take away a slaveholders 5th Amendment right to property o The Court didnt believe it was its job to decide the justice or injustice of these laws Second, it held the Missouri compromise unconstitutional b/c it held that congress didnt have the power to regulate slavery in the territories o This was b/c there was no due process for the deprivation of someones property if they brought a slave into a free state o The Free Soil party said congress was required to ban slavery in the territories o Stephen Douglas & the northern Democrats said it had to be a local decision o The southern Democrats believed congress couldnt bar slavery in the territories, that they had to be slave states o It is clear that the framers thought Congress could ban slavery in the territories The Courts decision inflamed the controversy surrounding slavery and made life worse for African-Americans Also, the Court shouldnt have dealt w/ the second question after determining there was no jurisdiction Only the second time the Court declared a law unconstitutional (Marbury was the first) Reconstruction Amendments (13th, 14th, 15th Amendments) Each states a right and contains a grant of power to Congress to enforce the amendment o This was included b/c Congress didnt trust the courts to enforce the rights included 13th Amendment constitutionalized the emancipation proclamation and applied it to all the states o Applied to state and private action 15th Amendment granted African-Americans the right to vote o Didnt bar poll taxes, literacy tests, etc. which ended up not allowing AfricanAmericans to vote anyway o Voting was considered a political, not a civil right 14th Amendment o Section 1 Stated that all persons born or naturalized in the U.S. were citizens Provided a constitutional basis for the 1866 Civil Rights Act which was intended to supersede black codes Allowed blacks to contract, own property, and to have access to courts Many of its framers believed this only covered civil rights, and not social or political rights (like voting) o Section 5 gave congress the power to enforce the amendment w/ appropriate legislation Judicial reaction was not hospitable o The Court read the 14th and 15th amendments narrowly

Civil Rights Cases The Court struck down the public accommodation provisions of the 1875 Civil Rights Act (which didnt include education) o The Act was the direct precursor to the 1964 Civil Rights Act o The Court said that there wasnt state action, and the Act attempted to control private action The Court said that the 14th Amendment didnt protect individuals from private conduct, only the 13th Amendment did o The difference between state and private action is hard to discern The Court did say that private discriminatory action that was shielded by state action could be regulated by Congress o But the Court didnt think that was what the 1875 Civil Rights Act did Once again the Court intervened to make life worse for minorities Plessy v. Ferguson (1896) The Court upheld the constitutionality of separate but equal statutes The Court held that the 14th Amendment only was intended to enforce absolute equality of the races before the law, not to create social equality o The Court said that laws enforcing separation dont necessarily imply inferiority of either race (segregated schools were allowed everywhere) o If minorities felt inferior, the law didnt mandate this, they did it to themselves The Court rejected the idea that social prejudices could be overcome by legislation, and that equal rights cant be secured unless there was forced integration o This can only come about through voluntary consent of individuals o If one race is inferior to the other socially, the constitution cant fix this The Court said the separate but equal laws, as an exercise of states police power, had to be reasonably for the promotion of the public good and not for the oppression of a particular class The Court felt that a large amount of discretion had to be given the legislatures on these issues The Court said that in determining reasonableness, the states could look to established usages, customs, and traditions of the people Harlan, in his dissent, argued that separate but equal laws were practically used to keep blacks away from whites and everyone knew that o He said that the constitution was colorblind and didnt tolerate classes o He also insinuated that whites would always be better than minorities and that Chinese people had no rights o Separate But Equal The NAACP pressed the fiction that educational facilities were equal They attacked higher education first o Sweatt v. Painter (1950) Dealt w/ Ps denial to UT law school b/c a parallel black school had opened that was substantially equal The Court held that the separate facility wasnt equal and that P must be admitted to UT The Court considered objective factors (library, faculty) UT possesses qualities that are incapable of objective measurement which make for greatness in a law school

(reputation, alumni, prestige) A legal education cant be effective in isolation from the institutions and individuals w/ which the law interacts The parallel school excludes 85% of the population of the state who the P would have to interact upon graduation o McLaurin v Oklahoma State Regents (1950) P was admitted to University of Oklahoma, but was segregated in the school itself The Court held the restrictions upon the student unconstitutional b/c once a black student is admitted to a previously all-white school, the school cant segregate the black student This impaired the Ps ability to study, engage in discussions and exchange of views w/ other students, and to learn his profession in general Brown v. Board of Education of Topeka I (1954) Led to a view of the Court as a counter-majoritarian protector of minority rights The Court held that Ps had been deprived of equal protection guaranteed by the 14th Amendment Original Intent o The Court claimed that the 14th amendment was originally intended to allow the state to desegregate schools (which is a very tenuous argument) No one thought the 1886 Civil Rights Act covered social rights The Court claimed the 14th amendment was originally intended to desegregate important things (as voting and owning property were then), and education wasnt as important then There is a level of generality problem in these attempts at originalism that subverts the originalist purpose There is also a problem of general intention of the framers of the amendment Who cares what they thought? Generally, the Court disregarded the original understanding of the 14th Amendment (and rightly so) o Southern critics claimed that the Court ignored the history and precedent of the 14th amendment o Today, education is arguably the most important function of state and local governments The Court held that education, where a state has undertaken to provide it, is a right which must be made available on equal terms o This may not overrule Plessy, b/c states could not provide education at all Stigma o The first argument was the stigma argument, that black children were harmed by the denial of equality and made to feel inferior This is the exact opposite of Plessy o The Court rejected the formal symmetry of Plessy, b/c it understood the real world effects of segregation o Even hypothesizing the schools were equal, the Court rejected segregation b/c it was a harm in and of itself Educational Disadvantage o The second argument was that segregation led to educational

disadvantage Much of this was based on the psychological evidence in one of the footnotes These studies werent very scientific, and were widely rejected Others argued that segregation was simply morally wrong, and social science wasnt needed to justify outlawing it Desegregation was thought to address the stigma issue Integration was thought to address the education disadvantage issue Brown v. Board of Education of Topeka II (1955) The Court remanded to the district court, w/ the command to desegregate with all deliberate speed o The Court thought district courts could best decide how to do this b/c of their proximity to local conditions o The district courts were to be guided by equitable principles b/c of the flexibility o s had to make a prompt and reasonable start toward full compliance w/ Brown I s had the burden to demonstrate they needed more time for the public interest and that this was consistent w/ good faith compliance at the earliest date Required desegregation, but didnt address whether integration was required During this period of transition, the courts retained jurisdiction of these cases Resistance to Brown II Led to a tremendous backlash in the South, and a huge shift to the Right Southern racial moderates were drowned out by the reactionaries First there was massive resistance, and eventually token compliance Equal Protection Doctrine: Rational Basis Review o Equal Protection protects against invidious discrimination o NYC Transit Authority v. Beazer (1979) NYCTA excluded all methadone (a drug used to help break addiction) users from employment in order to assure job and passenger safety The regulation was attacked as a violation of the EPC b/c it was so over-inclusive (b/c not all methadone users are unemployable) People on methadone for a year are as likely to be fit for employment as anyone else, so there is discrimination The Court applied minimal scrutiny (rational basis review) and upheld the law Over-inclusive policies, although probably unwise, concern matters of personnel policy that dont implicate the EPC The group targeted hasnt historically been discriminated against Excluding methadone users serves the legitimate end of safety and efficiency It doesnt matter that the methadone users are indistinguishable from the broad applicant pool The exclusionary line wasnt directed against an individual or category of people, but represented a policy choice, which was acceptable o The policy didnt circumscribe a class characterized by some unpopular trait or affiliation, and didnt create or reflect some special likelihood of bias by the majority A legislative classification is valid unless it bears no rational relationship to the states

objectives White, in his dissent, argued that the policy was too over-inclusive Employability in this case didnt mean that a particular applicant, much less every member of a group of applicants, would turn out to be a model worker o It only meant that the employer was no more likely to find a member of that group to be unsatisfactory than an employee from the general population o The blanket exclusion of this group, when many other groups have the same varying employability, is arbitrary and unconstitutional under the Equal Protection clause b/c its invidious The burdens of the regulation disproportionately fall on African-Americans and the poor o These groups are less likely to have their interests represented in the government decision making Most laws are under and over inclusive o Under-inclusion happens when some people arent disadvantaged by the regulation, but should be (epileptics here); but methadone users may be easier to identify The Court relied on the one step at a time argument o One group at a time, but it sucks for the group being dealt with Leveling up v. leveling down o U.S. Department of Agriculture v. Moreno (1973) Food stamp act of 1964 excluded from participation in food stamp program any household containing an individual who was unrelated to any other member of the household The act targeted hippies, b/c the government didnt want them to get govt help The law kept a single woman from receiving aid b/c she needed to live w/ someone to save money P claimed that the unrelated persons provision created an irrational classification in violation of the EPC component of the due process clause of the 5th amendment The Court applied rational basis review but struck down the statute It said the classification was clearly irrelevant to the laws claimed purpose It also rejected the legislative purpose gleaned from the legislative history (to prevent hippie communes), b/c the desire to harm a politically unpopular group isnt a legitimate purpose o City of Cleburne v. Cleburne Living Center (1985) The Court held that denial of a permit to a home for the mentally handicapped was a violation of the EPC The Court said the mentally disabled dont constitute a suspect class, so they dont get heightened scrutiny, but the Court actually engaged in heightened scrutiny to protect them in this case o This was b/c prejudice not policy was going on o The Court lied b/c if it said it was doing strict scrutiny, it would engender too many claims The differences between the mentally retarded and those who were allowed to occupy the facilities was largely irrelevant unless legitimate interests of the city were implicated o Negative attitudes towards the mentally retarded, even by the entire city, arent permissible to justify this type of discrimination Severe under-inclusion is usually tolerated in rational basis review

Stevens, in his concurrence, argued that the term rational includes a requirement that an impartial lawmaker could logically believe that the classification would serve a legitimate public purpose that transcended the harm to the disadvantaged class Rational includes elements of neutrality and legitimacy that characterize impartial governing o Minnesota v. Clover Leaf Creamery Co. (1981) The Court upheld a law banning the sale of milk in plastic containers, and allowing sale in paper ones The Court said it didnt matter that the legislature turned out to be wrong about the purposes the statute would serve, as long as it reasonably believed based on the evidence before it that the statute would serve its purpose, the law would be upheld even if the legislature was wrong o There was enough evidence to decide either way, so just b/c the legislature ended up being wrong the Court cant invalidate o Under an EPC analysis, the Court will assume the objectives articulated by the legislature are the actual purpose of the statute The Court wont invalidate just b/c some legislators sought to obtain votes to benefit industry o Means-Ends Nexus Railway Express Agency v. New York (1949) The Court upheld a law that prohibited advertising on vehicles, but allowed advertising on personal cars and trucks carrying out business o This was based on a traffic safety theory o This was done b/c the Court felt the NY legislature was better equipped to decide and may have correctly concluded that those advertising for themselves dont present the same traffic safety problems (Rational Basis) The Court also advanced the one step at a time argument The EPC doesnt require that all evils of the same type be eradicated or none at all (under-inclusiveness is allowed) Under rational basis review, this step by step approach shouldnt have been upheld o This is b/c it wouldnt further traffic safety Williamson v. Lee Optical (1955) The Court upheld an OK that made it illegal for anyone other than an optometrist or ophthalmologist to fit eyeglass lenses or duplicate or replace lenses w/out a prescription (disadvantaged opticians) o The law seems to have a clearly protectionist purpose The Court wanted to allow the legislature to attempt reform one step at a time, and the EPC only prohibits invidious discrimination o The legislature could have had a rational basis for the law (Rational Basis) Looks at government purpose + means they are using, and then what is the relationship between the two Rational basis test only requires a hypothetical relationship between the means and the ends Equal Protection Doctrine: Heightened Scrutiny and Race o Heightened/Strict Scrutiny is applied when the state classifies based on race and disadvantages racial minorities o The state must have a compelling interest and there must be a close relationship with the

means the government has chosen to advance that interest for Heightened/Strict Scrutiny to be satisfied The method chosen to achieve the compelling interest must be necessary o Racial Classifications Strauder v. West Virginia (1880) Dealt w/ a WV law that only allowed white men on juries o This was the first time 14th Amendment was applied to a law that disadvantaged African-Americans The Court said that the aim of the 14th amendment was to protect newly freed slaves from discrimination o The 14th Amendment contains a necessary implication of positive immunity from discriminatory laws The Court didnt allow the law b/c it held that the state was classifying based on race and didnt allow equal rights to African-American s o The question was whether people could be excluded from juries on the basis of race, not whether the African-American could have an all black jury o However, the Court said some qualifications for jurors are acceptable (all male, citizens, age, education level) Korematsu v. United States (1944) Dealt w/ the legality of the internment of Japanese during WWII The Court upheld the evacuation and internment o The Court said that legal restrictions on the civil rights of a single racial group are immediately suspect Pressing public necessity can justify these restrictions, but racial antagonism cant Not all such restrictions are unconstitutional, but they are subject to the most rigid scrutiny o The Court held that there was a compelling state interest b/c there was a serious risk to national security from Japanese-Americans who werent loyal and there was no way of screening them (Strict Scrutiny) The Court didnt want to reject as unfounded the judgment of military authorities and Congress that there were disloyal Japanese-Americans whose numbers couldnt be precisely and quickly ascertained o The Court held that exclusion from a threatened area was a closely tailored means of achieving that interest (Strict Scrutiny) It justified this by saying hardships are a part of war for all citizens o The Court said it couldnt, with the calm perspective of hindsight, say that at the time the actions werent justified Murphy, in his dissent, argued that the state action was purely racial discrimination o Its essential that there be definite limits on military discretion, especially when martial law hasnt been declared o Military judgments based on racial and sociological considerations arent entitled to great weight o The action was both over and under-inclusive (Germans, Italians) o To infer that examples of individual disloyalty prove group disloyalty and justify discriminatory action against the entire group is to deny that under

our system of law individual guilt is the sole basis for deprivation of rights Jackson, in his dissent, said that the Court shouldnt judicially review military action b/c this gives them judicial backing o Giving the action constitutional backing is worse than the action itself This case is widely viewed as wrong on the facts and reasoning This case is still cited b/c it held that a state must have a compelling interest and there must be a close relationship with the means the government chose to advance that interest (Strict Scrutiny) The Strict Scrutiny test cited in this case leads to all racial classifications being struck down (except for affirmative action) o Strict in theory but fatal in fact for all racial classifications Loving v. Virginia (1967) Dealt w/ a law prohibiting miscegenation o VA contended that the law was symmetrical and punished whites and blacks equally The Court held the law unconstitutional b/c equal application of the law doesnt mean that the law isnt discriminatory based on race o They also said that there wasnt a legitimate overriding purpose of the statute independent of invidious discrimination (Strict Scrutiny) Racial classifications can only be upheld if theyre necessary to the accomplishment of some permissible state objective independent of racial discrimination o The Court also held that the state cant classify based on race o What justifies Strict Scrutiny? Text and original meaning of the constitution The text isnt clear though May not accord w/ modern doctrine or moral considerations The amendment wasnt meant to apply to other racial groups Classifying based on race is always irrational and never related to a compelling government purpose Some argue that legislatures are rarely truly irrational (bullshit) There is a bad history w/ government classifications based on race Arguments Based on Prejudice There is a widely shared moral intuition that racial discrimination is wrong o Therefore the courts should strike down national outliers o But why are the courts better for determining this than the legislatures? o Based on the idea that the courts should do the right thing But do they know the right thing to do? Based on footnote 4 in Carolene Products, where the Court announces that it will be especially skeptical of laws against discreet and insular minorities o The idea was that legislatures will discriminate against these minorities b/c they cant use the legislative process to protect themselves o Legislators will systematically employ stereotypes against minorities, b/c this is a defect in the democratic process o Prejudice blinds legislators to the detrimental effects their acts have on minorities o This is often deemed a form of process theory and is similar to the argument in McCullough

o The counterargument is that discreet and insular minorities are extremely good at lobbying the legislature o Facially Neutral Government Actions Facially neutral statutes w/ racially disproportionate impact dont trigger strict scrutiny, they only receive rational basis review Discriminatory purpose must be present for Strict Scrutiny to be applied in these cases Washington v. Davis (1976) Dealt w/ a law that required applicants for the DC police to take a qualifying test, and stats showed the test was skewed against African-Americans The Court held the test constitutional b/c a facially neutral statute that has a racially disproportionate impact isnt enough to trigger strict scrutiny (only rational basis review is applied) o In order to get strict scrutiny, the challenger must identify some discriminatory purpose that motivated the facially neutral state action (must demonstrate intent) However, its hard to determine what a motivating purpose is An invidious purpose can often be inferred from the totality of the relevant facts o Discriminatory impact may have no explanation other than race It doesnt have to be the dominant purpose (Arlington Heights) o Davis doesnt require a P to prove that the challenged action rested solely on racially discriminatory purposes Impact of a law may be so clearly discriminatory as to allow no other explanation Historical background may reveal invidious purpose Legislative or administrative history may be particularly relevant o Partial proof of discriminatory purpose places the burden on the to demonstrate the regulation would remain w/out the discriminatory purpose Whose motive matters? In Feeney, the court pointed out that it would look to a counterfactual (if the law benefited blacks instead of whites, would the legislature have passed the law) o Was the law passed to get the disproportionate effects or in spite of those effects? In spite of is acceptable Discriminatory purpose can be shown in creation or in administration (ex ante and ex post) Looking to creation is done in Hunter and Gomillion o Racial gerrymandering (Gomillion) Looking to administration is done in Yick Wo o If a law is administered against a particular class of persons so as to warrant a conclusion that,

whatever the laws intent, the administration demonstrates invidious discrimination by the state, the law is unconstitutional Passed for neutral reasons but applied in a discriminatory manner If so much discretion is given local authorities w/ the understanding the law would be applied discriminately o However, statutes which are neutral on their face cant be applied so as to invidiously discriminate on the basis of race o Disproportionate impact isnt irrelevant, but alone it doesnt trigger strict scrutiny o If there isnt a close fit between the means and ends, the Court may determine the purpose is pretextual o The Court held that the test was neutral on its face and rationally could be said to serve a purpose the government was entitled to pursue If the law was ruled unconstitutional, the effects on other laws would be wide-ranging Critics argue that Davis has a narrow view of discriminatory purpose (1 bad guy) This ignores history and society, and is a simple conception of discrimination The critics argue that this is b/c of indifference to discrimination, and this indifference demonstrates the existence of complex discrimination Critics also argue that historical state action is responsible for the disproportionate effects, so why doesnt the government have to do something about it? There is also an argument that strict scrutiny should be applied in order to incentivize the legislature to consider disproportionate effects, and this would not negate all laws of this nature if they had an actual compelling interest Not strict in name and fatal in fact o Benign Racial Classification/Affirmative Action Racial classifications always receive Strict Scrutiny Adarand Constructors, Inc. v. Pena (1995) Dealt w/ Affirmative Action in government contracts Applied strict scrutiny to all state and federal racial classifications, including efforts to apply affirmative action o State efforts had always received strict scrutiny o The Court said the 14th and 5th amendments receive the same amount of scrutiny and apply equal protection equally to the states and the federal government (reverse incorporation) The Court said it was impossible to tell what classifications were benign and which werent w/out the application of strict scrutiny o Skepticism: any preference based on racial or ethnic criteria must receive strict scrutiny o Consistency: all racial classifications must receive strict scrutiny under the Equal Protection clause o Congruence: Equal Protection analysis under the 5th Amendment is the same as that under the 14th Amendment o The Court hinted that laws of this nature were based on the assumption that those who receive special preference are less qualified This exacerbates, rather than reduces, prejudice o The Court made clear that Strict Scrutiny isnt strict in theory and fatal

in fact As long as the law furthers a compelling state interest and is narrowly tailored o Providing a remedy for general past societal discrimination isnt a compelling state interest Providing a remedy for specific instances of discrimination is a compelling state interest o Narrowly Tailored Analysis Was there consideration of race-neutral means for achieving the state interest? Duration of the program Are the burdens on non-minorities diffuse or concentrated? Strict quotas are never acceptable Scalia, in his concurrence, says that there can never be a compelling state interest in classifying based on race o This is b/c classifications like this are alien to the Constitutions focus upon the individual Thomas, in his concurrence, argued Affirmative Action was paternalistic o Government cant make people equal, it can only recognize and protect people as equal before the law Stevens, in his dissent, said the difference in classifications between Loving and affirmative action was obvious o They fought about this b/c they thought that applying strict scrutiny to affirmative action would end it The Anti-Classification View argues that the Equal Protection clause prohibits any classifications based upon race, including Affirmative Action Some argue that the Equal Protection clause was intended to stop the subordination of certain groups b/c of their race (anti-subordination argument) Even under this view, strict scrutiny should be applied Affirmative Action & Equal Protection Strict Scrutiny o Applies to Affirmative Action o Isnt strict in name and fatal in fact Compelling Government Interest o The compensatory rationale is the most dominant factor in most defenses of Affirmative Action The Court has held this to be a compelling government interest, but only in certain forms Past discrimination to which the government is responding must be past discrimination in which the government was the discriminator According to Scalia, the government can discriminate if it is doing so to make whole those who were actually discriminated against in the past o OConnor rejected this b/c those who were actually discriminated against dont actually exist as contractors in Adarand, and she was willing to allow current contractors to stand in as proxies for those discriminated against in the past

Compensation has historically been accepted as a reason for racial discrimination (bussing, etc.) Compensation also doesnt imply that minorities are different than majorities, while diversity emphasizes their differences Thomas thinks that this means the state is making assumptions of the minorities inferiorities o In Bakke, the Court intimated that diversity can be a compelling government interest in applying an Affirmative Action program However, the Court held that a rigid quota isnt narrowly tailored The diversity argument seems to argue that proportional representation will continue as long as there is racial difference Narrowly Tailored o Was there consideration of race-neutral means for achieving the state interest? o Duration of the program o Are the burdens on non-minorities diffuse or concentrated? o Strict quotas are never acceptable Grutter v. Bollinger (2003) Dealt w/ Michigan Laws Affirmative Action program The Court upheld the program b/c diversity can be a compelling government interest o This is b/c of the educational benefits that flow from student body diversity The Court said that allowing diversity would help form a profession that was diverse This would create an open path to upward mobility o The fact that the school defined diversity broadly (holistic) helped the program to fit the narrow tailoring test The schools system was individualized Outright racial balancing and quota systems are patently unconstitutional Some attention to numbers doesnt mean there is a quota Race or ethnicity can be considered a plus on a particular applicants file, w/out insulating the candidate from comparison w/ other candidates There can be no mechanical bonus based on race or ethnicity Diversity was based on factors other than race as well It also emphasized that deference was granted to a universitys academic decisions o The Court said that the state didnt have to adopt race neutral means to meet its goal of remaining elite and achieving diversity o Narrow Tailoring Requirements Exhaustion of every conceivable race-neutral alternative isnt required A school isnt required to choose between a reputation for excellence or fulfilling a commitment to diversity A serious, good faith consideration of race-neutral alternatives that will achieve diversity is required

Percentage plans arent acceptable b/c of their lack of individual assessment Race conscious admissions policies must be limited in time Rehnquist, in his dissent, argued that stripped of the critical mass veil, the program was a blatant effort to achieve racial balancing Scalia, in his dissent, argued that the Constitution should be colorblind o Cross racial understanding should be a life lesson rather that imposed by law Thomas, in his dissent, stated that he believed Affirmative Action was a pernicious, paternalistic program o He thought the fact that the school wanted to be elite shouldnt allow it to discriminate racially in order to be aesthetically diverse He said the school could choose to be less elite and then the school would be more diverse Gratz v. Bollinger (2003) The Court invalidated the University of Michigans undergrad affirmative action program The Court distinguished this program from that in Grutter b/c the distinctions in this case made race a decisive factor, while in Grutter it was part of an individualized consideration o The criticism of this distinction is that the program in Grutter operates the same way, but racial classification in that case is simply obscure and under the table, and that should make no constitutional difference Souter, in his dissent, pointed out that the college system simply did by a numbered scale what the law school did in its holistic review Ginsburg, in her dissent, argued that the colleges are going to seek to maintain minority enrollment anyway, so we might as well let them do it honestly o Synthesis of Brown and Affirmative Action Parents Involved in Community Schools v. Seattle School Dist. No. 1 (2007) Involved 2 school systems, one that was historically segregated and one that wasnt, which used race as a tie-breaker in deciding school assignment The plurality said that racial classifications arent needed any longer to achieve diversity o They distinguish this from Grutter b/c it wasnt higher education at issue and there was no interest in furthering diverse leadership o Prior cases had recognized 2 state interests are compelling: 1) remedying effects of past intentional discrimination and 2) diversity in higher education There was no de jure discrimination in Seattle, and the past discrimination of that nature in Louisville have been remedied and the judicial decrees mandating integration had been retracted Consequently, any continued use of race had to be justified on some other basis In these cases, race wasnt seen as part of a broader effort to achieve exposure to widely diverse people Plus, these cases didnt concern institutions of higher education so the cost is lower b/c the education is the same o The minimal impact of the racial classifications cast doubt on their necessity This isnt to say greater use of race would be preferable

o The Court rejected a motives test for racial classifications It simply assumed the classification was benign o The Court emphasized that the EPC protects people, not groups o The Court relied on Brown I in arguing that admission to public schools must be on a nonracial basis o Narrowly tailoring wasnt discussed, b/c the state interest (racial balance) wasnt permissible Thomas, in his concurrence, argued that racial imbalance isnt segregation and the constitution should be colorblind Kennedy, in his controlling concurrence, refused to join in the rationale that classifying based on race is never appropriate o He opposed the pluralitys view that the way to stop discrimination on the basis of race is to stop discriminating on the basis of race 50 years of experience teach that it isnt this simple He opposed racial balancing, but he wanted to retain some wiggle room o He received a lot of criticism b/c his race neutral options for integration werent very plausible Strategic placing of schools, drawing attendance zones w/ cognizance of demographics, etc. o He drew a distinction between race conscious distinctions and distinctions based on classifications that dont tell the students they are being classified based on race He thought the plurality refused to allow this distinction, which is why he distanced himself from them o Diversity can be a compelling interest, but not only racial diversity o He intimated that narrow tailoring requires the exhaustion of all other options before racial classifications are used He saw these as stigmatizing, and thought indirect means should be used (i.e. Grutter) Kennedy and the dissent think that the plurality is claiming that the government can never classify based upon race Stevens, in his dissent, argued that Brown I didnt stand for colorblindness o He saw this as cruelly ironic Breyer, in his dissent, pointed out that there was clearly a compelling government interest in maintaining diversity in schools o He used social science evidence to demonstrate this o He also said that the costs here were relatively small as opposed to other racial classifications o He pointed out that there was no way to achieve these through neutral means o Also, many school districts have policies like this throughout the country and this could lead to a tremendous shift Heightened/Intermediate Scrutiny and Gender o There is no good originalist argument for heightened scrutiny being applied to sex discrimination o The Court applied rational basis review in these cases until the early 1970s This was when the womens movement became powerful o Now, gender classifications receive Intermediate Scrutiny

o Reed v. Reed (1971) Dealt w/ an Idaho law that said men must be preferred to women in administering estates The Court struck down the sex classification as irrational (first time) The Court said the law was arbitrary o Frontiero v. Richardson (1973) Dealt w/ a federal law that allowed men to claim their wives as dependent but didnt give the same benefit to women w/ husbands The Court held that the law violated the Due Process Clause of the 5th Amendment The Court said sex was an immutable characteristic and there was a history of discrimination based on sex, so discrimination of this character should be subject to close (heightened/intermediate) scrutiny o Sex frequently bears no relation to ability to perform or contribute to society Based upon Title VII and the ERA, Congress has concluded classifications based on sex are invidious Laws which draw lines based on sex for administrative convenience are arbitrary and unconstitutional Powell, in his concurrence, argued that gender classifications arent inherently suspect He believe the ERA, if passed, would solve the issue o Craig v. Boren (1976) Announced intermediate scrutiny Dealt w/ an OK law that allowed beer sales to males at 21 and women at 18 The Court ruled the classification as unconstitutional To be constitutional, the law would need to serve important governmental objectives and be substantially related to those objectives o Administrative ease and convenience arent sufficiently important objectives to justify gender-based classifications o The state said its objective was traffic safety, which was important The Court stated the law didnt have an important interest b/c of the small percentage of men of that age who were actually cited as the reason for the law o The Court was also skeptical of sociological statistics, b/c using such statistics as a basis for making a law is against the normative goal of the EPC o The Court discussed historical discrimination against women, making an analogy to race discrimination Implied the question of whether men or women are harmed The Court pointed out that the law did not fit its goal, b/c 18-20 year old girls could buy the beer but the guys couldnt The Court also pointed out that sex is an immutable characteristic, and legal burdens/benefits shouldnt rest on such factors o This is an appealing but complicated explanation o Title VII was cited as evidence for this, as was the ERA The Court announced the intermediate scrutiny test for discrimination based on sex o This allows the state to recognize real differences but not archaic and overbroad generalizations Rehnquist, in his dissent, said there were 2 problems w/ the opinion There was no basis in precedent for the new standard of review There was no justification for heightened scrutiny, b/c the discrimination was

against males, not females o The Court should let the political process solve this problem o Real Difference vs. Archaic and Overbroad Classifications U.S. v. Virginia (1996) Dealt w/ VMIs restriction that women couldnt attend the school The Court held the exclusion of women unconstitutional, b/c the state needed to have an exceedingly persuasive justification for its action (new gloss to heightened/intermediate scrutiny) o The burden of justification is demanding and is on the State, and it must be genuine, not hypothesized or invented post hoc It also must not rely on overbroad generalizations about the differences between men and women o Sex Classifications are permissible when: 1) they are based on real biological differences or 2) theyre used to compensate women for particular economic disabilities theyve suffered or promote equal employment opportunity to advance full development of the talent and capacities of the nation o VA claimed it had a legitimate pedagogical goal in 1) promoting diversity among public educational institutions and 2) preserving the educational method at VMI, that could only be achieved by keeping the school all male The Court held that, although diversity is a legitimate goal, VA showed no evidence that this was the reason for VMIs exclusion of women The Court held that the second reason was an exaggeration based on archaic and overbroad generalizations Also, the fact that more men than women would want to go to VMI was irrelevant, b/c if one woman would want to go that should prevent the state from precluding her from that option o Based on the idea of allowing women the opportunity The Court reasoned that the state didnt fit its goal, b/c admitting women wouldnt destroy the adversative method It might change it, but the Court didnt care o The Court said that the reason VA gave for setting up VWIL was made up post hoc, and wasnt the real reason for creating and maintaining the school Plus, it was incomparable in almost every respect to VMI Rehnquist, in his concurrence, rejected VWIL b/c it didnt offer the same education and wasnt of the same caliber o He would accept sex segregated higher education if they were equal (even if different) as long as they werent based on archaic and overbroad generalizations and were based on real differences Scalia, in his dissent, argued the decision was counter-majoritarian and elitist Rostker v. Goldberg (1981) Dealt w/ a law that require men, but not women, to register for the draft The Court upheld the law, b/c it accepted as constitutional Congresss determination that women shouldnt be eligible for combat o It saw this as a real difference, and therefore the registration of 18 year

old males only was constitutional o The Court held that Congress had an important interest in instituting an effective combat force through the draft, and having a gender-based law was substantially related to that interest b/c of the added burdens of including women in draft and registration plans (Intermediate Scrutiny) The dissent argued that this was based on archaic stereotypes Michael M. v. Sonoma County Superior Court (1981) Dealt w/ statutory rape, which is a strict liability law that made it a crime for men, but not women, to have sex with someone under 18 o Both people involved in this case were under 18 The Court said this was constitutional, b/c women are punished by pregnancy and men needed an similar incentive (criminalization) imposed by the government o The Court held that preventing teenage pregnancy was an important government interest and a gender-based law was substantially related to that interest (Intermediate Scrutiny) The dissent argued that the law wasnt substantially related to the interest Nguyen v. INS (2001) Dealt w/ a law that applied different standards to children born out of wedlock outside of the US whose mothers or fathers were US citizens o Children whose mothers were citizens and who were present in the US for at least 1 year became citizens o Children whose fathers were citizens only became citizens if the bloodline was established by clear and convincing evidence, the father agreed to support the child, and before the child turns 18 either the child or the father obtained formal recognition of paternity o Nguyens claim was that if his mother was a citizen of the US, instead of his father, he would already be a citizen The Court upheld the sex classification o The state said its interests where: 1) determining parenthood and 2) to foster parent/child relationships o As to the states first point, the Court said requiring Congress to speak w/out reference to gender when attempting to determine parenthood would be a hollow neutrality o As to the states second point, the Court stressed the real difference of the mother actually giving birth (which establishes an initial point of contact) and this allows the opportunity to foster relationships Scientific proof of paternity doesnt, by itself, ensure contact between a father and child o The Court said there was nothing irrational or improper in the recognition that at the moment of birth-a critical even in the statutory scheme and in the whole tradition of citizenship law-the mothers knowledge of the child and the fact of parenthood have been established in a way not guaranteed in the case of an unwed father (Intermediate Scrutiny) The Court benefited women b/c of biological differences between men and women OConnor, in her dissent, argued the distinction was based on gender stereotypes o The laws limitation on time doesnt substantially further the assurance of a blood relationship

o If the goal was to obtain proof of paternity, the law should have had a provision governing such proof w/ the efficacy and availability of modern technology (i.e. DNA test) o In prior cases, the existence of comparable or superior sex-neutral alternatives was a powerful reason to reject a sex-based classification o Its questionable whether an opportunity for a relationship qualifies as an important government interest apart from the existence of an actual relationship o Affirmative Action for Women Heightened/Intermediate Scrutiny is applied Califano v. Goldfarb (1977) Dealt w/ a federal law that granted different benefits to widows and widowers o The distinction operated to deprive women of protection for their families which men receive as a result of their employment The Court held that the law at issue violated the EPC b/c it was based on archaic stereotypes, which dont justify gender based distinctions o The states purpose was administrative convenience o The Court said that the law forced women to receive less protection for their spouses solely b/c of their sex Califano v. Webster (1977) Dealt w/ the Social Security Act which gave women workers higher benefits b/c they were allowed to exclude more low wage years than men could The Court upheld the law b/c it was allowable for the state to compensate for past discrimination against women in the workplace o The states purpose was to remedy unequal pay received during wageearning years o The Court held that reducing the disparity in economic condition between men and women caused by the long history of discrimination against women is an important governmental objective o The Court held that the law was substantially, in fact directly, related to the important governmental objective Burger, in his dissent, argued this case couldnt be distinguished from Goldfarb o He was worried about the subjectivity of determining whether a classification was offensive or benign Other Candidates for Heightened Scrutiny o Which characteristics should implicate the equal protection clause and heightened scrutiny? Frontiero says immutable characteristics and/or a long history of discrimination This is disingenuous, however, b/c many laws implicate immutable characteristics and heightened scrutiny is applied to characteristics that arent immutable o Alienage receives Strict Scrutiny sometimes, usually Heightened/Intermediate Scrutiny What constitutes discrimination in the past as opposed to prior societal judgments? o Wealth Classifications Usual problems arent laws that are explicitly based on discrimination based on poverty Its usually some kind of fee that has a disproportionate effect on the poor Receive Rational Basis scrutiny, unless implicated by another right o Sexual Orientation

Argued that it should receive heightened scrutiny, but only explicitly receives Rational Basis o Other potentially suspect classifications Physically Disabled (Rational Basis is applied) Age (Rational Basis is applied) Intelligence (Rational Basis is applied) FUNDAMENTAL RIGHTS These rights protect individuals from being disadvantaged as to some entitlement they have o Doesnt require a comparative judgment Equality rights and substantive rights can be substituted for one another Distinction between express and implied rights o Can only be made by controversial value judgments on both sides The Slaughter-House Cases (1873) o Some butchers argued that a Louisiana statute that granted a monopoly violated the 14th amendments privilege or immunities clause o The Privileges or Immunities Clause of the 14th Amendment says no state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States It was thought to incorporate the Bill of Rights against the states before this case o The Court upheld the law The Court said the 14th amendment only required states to guarantee the privileges and immunities of national citizenship, not of state citizenship The privileges and immunities of state citizenship, which arent protected by the amendment, include: the right to acquire and possess property of every king, the right to pursue and obtain happiness and safety, subject to such restraints as the government imposes for the general good o These rights are protected by the states The Court couldnt believe the 14th amendment was intended to radically change the relationship between the federal government and the states The Court also didnt want the Privileges or Immunities Clause to create a bunch of new, un-enumerated fundamental rights Consequently, the 14th Amendment doesnt incorporate the Bill of Rights against the states o Field, in his dissent, pointed out that this decision made the 14th amendment redundant and that it was intended to radically change the relationship between the federal and state governments Why would it protect rights that the Constitution already protected? The 14th Amendment serves in the same capacity as Article IV, 2 (full faith & credit), in that it secures the rights of every citizen of the US against hostile and discriminating legislation against him in favor of others o This case made the Privileges or Immunities Clause entirely irrelevant After The Slaughter-House Cases, what does the 14th Amendment do to constrain the states? o What rights are incorporated? o To what extent can the court identify new fundamental rights? Now the Court uses the substantive due process clause of the 14th Amendment to incorporate most of the protections of the Bill of Rights against the states o No matter how much procedural process a state puts in to taking away its citizens rights, the due process clause protects substantive rights The Lochner Era o The Rise of Lochner

From the beginning the Court considered using natural law in interpreting open-ended terms of the constitution However, it never did so explicitly By the late 19th century states started to regulate businesses in the interest of labor The justices on the Court at this time embraced laissez-faire and began to use the due process clause to place substantive limits on state regulation of economic liberty Eventually in 1890 the Court struck down rate fixing by state regulatory agencies of train rates b/c it violated economic liberty o Reach of Lochner & Lochner Itself Lochner v. New York (1905) Involved a law regulating the number of hours a week bakers could work o The state argued it wanted to protect the health and safety of bakers and the public and could therefore interfere w/ their contracts The Court overturned the law b/c working long hours wasnt dangerous to the bakers b/c it wasnt a dangerous job & that there was no connection between the long hours and affecting the health of the public o The Court thought that such a restriction would disadvantage the less organized sectors of the labor force to the benefit of the labor unions They also thought this would be what amounted to robbery, b/c it would involve the state taking from one and giving to another o The Court held that the substantive due process clause of the 14th Amendment invalidated legislation that interfered w/ economic liberty of the freedom to contract The Court said that the main reason the state could regulate economic liberty was if the workers at issue werent equal in capability (particularly to bargain for themselves), and the bakers were capable This was the only reason regulation was allowed in the Lochner area The main idea was that workers freely trade their labor for their wages Harlan, in his dissent, says that the health justification is perfectly plausible o He disagreed w/ the majority about the facts, not the law Holmes, in his dissent, argued that although there may be fundamental rights not enumerated in the Constitution, this wasnt one of them o He thought the Court was writing its economic viewpoint into the constitution o Fall of Lochner There were 2 critiques of Lochner: institutional and substantive The institutional critique, which was present in Holmes dissent, was that the Lochner holding was wrong b/c the Court shouldnt be interfering o The court has no basis to step in and tell the states which economic theory is correct, b/c this is a policy decision o When theres room for debate and no constitutional basis for either side, the court shouldnt decide o This applies to modern conceptions of substantive due process The substantive critique rejected the idea that the government should be neutral about the effects of the economy and shouldnt interfere, b/c the constitution doesnt protect this and the free market isnt neutral or fair

o Disagreed with the idea that the results the market creates are presumptively legitimate and governmental interference is presumptively illegitimate The government can only interfere for legitimate reasons like protecting the weak, etc. Elucidated in Coppage v. Kansas (1915) o Consequently, laissez-faire should be a choice for the government The height of Lochner was in the 1920s-30s Nebbia v. New York (1934) Dealt w/ a law that established a Milk Control Board in NY to fix minimum and maximum prices for milk The Court upheld the law b/c under substantive due process, the state can adopt any economic policy that can reasonably promote public welfare and enforce it by legislation, and the Court cant weigh in o Neither property rights nor contract rights are absolute o The 5th and 14th Amendments merely condition the exertion of state power so as to ensure due process Due Process only requires that a law not be unreasonable, arbitrary, or capricious, and that the means selected have a real and substantial relation to the object sought to be obtained o The Constitution doesnt guarantee the unrestricted privilege to engage in a business or to conduct it as one pleases o The Courts disagreement w/ the wisdom of a law doesnt allow the Court to invalidate it McReynolds, in his dissent, argued that the law wasnt regulation, but management, control, and dictation West Coast Hotel Co. v. Parrish (1937) Dealt w/ a minimum wage law for women The Court upheld the law b/c it rejected the idea of liberty of contract, and held that state regulation of contract must only be reasonable o The Constitution doesnt speak to freedom of contract; it speaks of liberty and prohibits the deprivation of liberty w/out due process of law o Regulation which is reasonable in relation to its subject and is adopted in the interests of the community is due process Eventually the federal and state governments were given full capability to regulate w/ no restrictions under substantive due process o Carolene/Lee Optical/Ferguson and the End of Economic Substantive Due Process Realism came to the forefront The Court hasnt struck down a statute on economic substantive due process grounds since 1936 Is only reviewed under rational basis review United States v. Carolene Products Co. (1938) Dealt w/ a ban on filled milk The Court upheld the law b/c legislation affecting ordinary commercial transactions cant be deemed unconstitutional unless the facts preclude an assumption that the legislators thought there was a rational basis for the law o The Court was open to evidence that the facts were wrong or have changed, or that the law was applied irrationally However, in all cases the issue must be restricted to the issue of

whether any state of acts could reasonably be assumed to afford support for a law o The Court saw the law at issue as debatable, and therefore the decision was for the legislature Footnote 4 o The Court embraced the critique of Lochner elucidated in the substantive critique o Political Process Theory: heightened scrutiny is warranted where government action disadvantages groups who are excluded from the political process o Legislation which restricts political processes may be subjected to more exacting judicial scrutiny under the 14th Amendment (voting, assembly) o Legislation that affected discreet and insular minorities curtail the political process even further, and should be subject to more searching judicial inquiry (equal protection) Discreet: identifiable, definite in number Insular: dont interact w/ other groups o 2 tiered standard of review: deference to legislative decision making in most cases, but higher scrutiny in some cases Williamson v. Lee Optical of Oklahoma (1955) The Court upheld an OK law that made it illegal for anyone other than an optometrist or ophthalmologist to fit eyeglass lenses or duplicate or replace lenses w/out a prescription (disadvantaged opticians) o The Court thought this could rationally be dealt w/ in this way by the legislature, even if the decision they made may seem unwise o The law didnt need to be logically consistent in every respect w/ its aims to be constitutional o The Court no longer strikes down laws that regulate business and industrial conditions w/ the Due Process Clause simply b/c those laws may be unwise, improvident, or out of harmony w/ a particular school of thought Ferguson v. Skrupa (1963) Dealt w/ a law limiting debt adjustment to lawyers The Court upheld the law b/c no substantive due process challenge had any merit o The states have the power to legislate against what are found to be injurious practices in their commercial and business affairs, as long as these laws dont run afoul of the Constitution o Relief, if any is needed, must come from the legislature The debate now is that the worst forms of interest group lobbying and legislation is allowed b/c there is no substantive due process argument against it Fundamental Rights and the Equal Protection Clause o The Court, in not protecting un-enumerated rights in the Lochner era, was not saying that those rights werent protected at all o When a fundamental right is at stake, heightened equality analysis is applied to the state o Skinner v. Oklahoma (1942) Dealt w/ a law that sterilized someone after they have been convicted of a crime of moral turpitude three times The Court ruled the law unconstitutional The Court held that procreation was a fundamental right, and any infringement upon it through sterilization must meet strict scrutiny

o Laws of this nature are only suspect if they allow one group, but not another, to be subject to sterilization The delineations between crimes of moral turpitude and other crimes under this law was arbitrary Laws mandating sterilization, in the wrong hands, are extremely dangerous (Nazis) o This law, by punishing one group of people for the same crime w/ sterilization, invidiously discriminated just as a racial classification would Hence, this holding was not based in substantive due process, but the fundamental rights in the equal protection clause If the Court had held that the equal protection clause insists that all classifications in criminal punishment need strict scrutiny, it would have invaded the rights of the states to an unprecedented degree o Therefore most times only rational basis will apply, unless a fundamental right is implicated Stone, in his concurrence, argued that the right to procreate should be protected by Due Process o The Right to Vote The right to vote is entirely un-enumerated, as the founders wanted to leave this to the states Harper v. Virginia State Board of Elections (1966) Dealt w/ a poll tax in state elections The Court held the law unconstitutional b/c poll taxes are an unconstitutional denial of EP in all elections o The Court held that voter qualifications have no relation to wealth or paying this or any other tax o The Court said that once a state offers the right to vote, heightened equality restraints apply, but there is no affirmative right to vote in the first place (Heightened Scrutiny) o The Court emphasized that voting preserves other basic civil and political rights, therefore laws which infringe upon it are carefully and meticulously scrutinized o The degree of discrimination (the price of the tax) is irrelevant, b/c requirement of paying a fee is invidious discrimination However, the state can fix qualifications that are germane to vote Kramer v. Union Free School District (1969) Dealt w/ a state law that restricted voting in school district elections to those who owned taxable real property in the district or those who had custody of children enrolled in the local public schools o The states justification for the restriction was to limit participation to those who where primarily interested in school affairs The Court held that the law was unconstitutional and applied Strict Scrutiny b/c the law kept some citizens from voting in school elections o The Court held that it wasnt permissible for the state to measure interest by property ownership or presence of children in the school, so the restrictions werent narrowly tailored to the states interest o The Court held that qualifications to vote that are germane are allowable but must have compelling reasons and be narrowly tailored o Although there is no affirmative right to vote, any denial of such right must be justified under Strict Scrutiny

Dilution of the Vote Reynolds v. Sims (1964) o Dealt w/ malapportionment o The Court held that voting apportionment must be equal based on population (not geography), so that some peoples votes arent diluted All voters arent fungible, b/c they have different views The Court wanted the legislature to actually represent the people of the states Apportionment based on geography isnt rational, let alone compelling States cant mirror Congresss bicameral legislature w/ the Senate seats allocated regardless of population, b/c of vote dilution o The state would need a compelling reason for the different treatment of voters, and they didnt establish one (Strict Scrutiny) o The Court created an exception for political subdivisions, which allowed a deviation from apportionment based on population The Court is quite skeptical of any deviations City of Mobile v. Bolden (1980) o Dealt w/ malapportionment again Mobile had an at-large election district, and so no AfricanAmerican was ever elected to the city council even though 1/3 the population was African-American The claim was the same as in Reynolds o The Court said the only way to address the harm of malapportionment was equal population districts, and since this was an at-large election that didnt apply At-large elections and multimember districts are allowed, even if there is a discriminatory impact, unless there is also a discriminatory purpose The distinction from Reynolds is that this law was facially neutral (Washington v. Davis rationale?) o Access to Judicial Process The state, if it offers a criminal appeal, must pay attention to the way this affects poor people and make the process equal Griffin v. Illinois (1956) The Court held that under the EPC a state has to furnish an indigent criminal a trial transcript o The state doesnt have to offer appeals, but once it does it cant discriminate against indigents s Douglas v. California (1963) The Court held that under the EPC an indigent criminal has a fundamental right to be furnished w/ a lawyer for appeal (companion to Gideon) o The lawyer doesnt necessarily have to be effective Griffin and Douglas dont guarantee a right to appeal, or apply to discretionary appeals The state doesnt have the obligation to provide everything that might be useful, only applicable to necessities Boddie v. Connecticut (1971) Extended the theory of Griffin and Douglas to civil cases (court fees for family,

anyway) Dealt w/ a CT law that denied indigent families court access for filing a divorce b/c of their inability to pay a filing fee The Court held the law unconstitutional, b/c the Due Process Clause obligations placed upon the state required allowing all citizens equal access to divorces o This was based upon the Monopoly Rationale First: Marriage is a fundamental right Second: State has the only method for regulating marriage Therefore, there is heightened scrutiny and a constitutional right to exemption of the fee for indigent people Limits: Indigents can be made to pay fees in bankruptcy or welfare benefits cases M.L.B. v. S.L.J. (1996) Dealt w/ a state law that required parents to pay a fee for preparation of the trial record in order to appeal a termination of custody The Court held the law to be unconstitutional b/c it violated both the EPC and the Due Process Clause o The Court emphasized the fundamental rights involved: choices about marriage, family life, and the upbringing of children are associational rights of basic importance protected by the 14th Amendment o Heightened Scrutiny was applied b/c this case dealt w/ access to the courts in a quasi-criminal case Fees cant be imposed in criminal or quasi-criminal cases Ross v. Moffitt (1974) Indigent s arent constitutionally guaranteed counsel for discretionary appeals o Due Process and EP only require that an indigent receives an adequate opportunity to present claims on appeal People can be made to pay fees for administrative processes Cant just rely on substantive due process Generally Equal Protection Analysis o Wealth as a dividing line (private market problem or fees) o We cant have wealth mess w/ the state criminal process Less broad than it initially appears Why are the fees removed for all people in the voting cases, but only for indigent people in these cases? Monopoly Rationale from Boddie o First: Marriage is a fundamental right o Second: State has the only method for regulating marriage o Therefore, there is heightened scrutiny and a constitutional right to exemption of the fee for indigent people o Would this, for instance, apply to driving a car, owning property, or pursuing certain professions such as law? Probably not, but why? These are, to some degree, less fundamental rights and similar to contractual rights that the court has already allowed the government to restrict (post Lochner) Why did these cases drive the court crazy? The main problem for indigent people isnt facial discrimination, its the de facto discrimination that occurs when money comes up

o Nor is there a purpose to harm the poor in these statutes These are legitimate state interests: either to raise revenue or pay for the programs involved It cant be that disproportionate impact is illegal There has to be some limit: Fundamental rights o In Douglas, Harlan is concerned that welfare rights are being created in the constitution (welfare standing in for state providing goods and services) o The state is only obligated if there is a fundamental right, thats the limit. Harlan doesnt see fundamentality as a particularly constraining principle o If the Court gets to decide what is fundamental, there is no telling what will be added to the list. Compare voting and counsel w/ food and housing o Harlans fears may be appearing, as the Court appears (at least in Magills opinion) to move towards necessity to life Court Change o Burger Court ends this o Harlan, as the writer of Boddie, attempted to limit fundamental by adding monopoly Focused on negative state restriction when interacting w/ private citizens Closes the door on the necessities problem o Right to Travel and Welfare Shapiro v. Thompson (1969) Law at issue denied welfare to new residents of a state for 1 year o There was no dispute that the effect of the waiting period was to create 2 class of needy resident families that were indistinguishable from each other except that one had resided in the jurisdiction for 1 year or more The Court held the law unconstitutional b/c the law created a classification which constituted an invidious discrimination denying EP o The state argued the law 1) preserved the fiscal integrity of the state welfare programs, 2) discouraged indigents to enter the state only to receive larger benefits, 3) recognized the contribution made to the community through payment of taxes and 4) a) the requirement facilitated the planning of the welfare budget, b) provided an objective test of residency, c) minimized the opportunity for welfare fraud, and d) encouraged early entry of new residents into the labor force The Court rejected the first b/c inhibiting migration by needy people into the state is unconstitutional The constitution protects a fundamental right of all citizens to be free to travel o This right comes from no particular constitutional provision, but it is firmly established and repeatedly recognized The Court rejected the second b/c a state cant attempt to keep out indigents who seek larger welfare benefits any more than it can keep out indigents generally The Court rejected the third b/c it couldnt see how long-term residents on welfare made a greater contribution in taxes to the

state than indigents who recently arrived This reasoning would allow states to bar new residents from schools, parks, or police/fire protection The Equal Protection Clause prohibits apportionment of state services based on tax contributions The Court rejected the fourth b/c it a) was wholly unfounded, b) authorities investigate welfare applicants to determine residency anyway, c) less drastic means were available, and d) theres no reason not to require a similar waiting period for long-term residents A rational relationship between the law and state objectives wasnt enough B/c a fundamental right was implicated, a compelling governmental interest needed to be promoted by the law (Strict Scrutiny) o The Court says this law is unconstitutional b/c it denies people the very necessities of life The state could have eliminated welfare or reduced it across the board, just not for new residents only Warren, in his dissent, argued that congressional approval of restrictions on the right to travel required only a rational basis for the law Harlan, in his dissent, argued that the Court was simply picking out rights Saenz v. Roe (1999) Dealt w/ a CA law that limited TANF benefits in the first year of residency that was approved by Congress The Court held that statute unconstitutional b/c it violated the right to travel o Reaffirmed Shapiro, but placed the right to travel in the privileges or immunities afforded citizens in Article IV, 2 and the 14th Amendment (Strict Scrutiny) o The right to travel has 3 components The right to enter and leave another state The right to be treated as a welcome visitor while temporarily present in another state For those travelers who elect to become permanent residents, the right to be treated like other citizens of that state (14th Amendment) o The states purpose of deterring the movement of welfare recipients from moving to CA is impermissible o Congress cant authorize the states to violate the 14th Amendment Rehnquist, in his dissent, argued the right to travel wasnt implicated b/c anyone who has finished his journey isnt traveling Thomas, in his dissent, argued that the privileges and immunities clause doesnt protect a right to travel Dandridge v. Williams (1970) Dealt w/ a MD law that imposed a maximum monthly welfare grant regardless of family size The Court upheld the law b/c in the field of economics and social welfare, the EPC isnt violated if classifications are imperfect o The Court said the law didnt implicate any fundamental rights, so only rational basis review was appropriate

The Court thought striking down the law would be a return to Lochner o The Court said the EPC doesnt require a state to choose between addressing every aspect of a problem or not addressing the problem at all o It was enough that the law had a rational basis and was free of invidious discrimination Marshall, in his dissent, emphasized the difference between business and social welfare o Rational basis review should only apply to laws implicating business o When a benefit is necessary to sustain life, stricter constitutional standards should be invoked Tuition Irrebuttable presumptions arent allowed, in-state residents should be able to prove that they are in-state o Where there is a fundamental right involved, the government has an obligation to act equally The problem is that while the rights that are argued to be fundamental may be so in one sense, it isnt clear if the constitution guarantees them There is also debate between whether the constitution confers affirmative benefits, or whether it works as a negative constraint and precludes the state from doing something o Education as a Fundamental Right Grew out of Brown, where the Court basically held education to be a fundamental right San Antonio Independent School District v. Rodriguez (1973) Dealt w/ the constitutionality of TXs funding of schools w/ property taxes, which led to disparities between districts The Court held the funding scheme constitutional o The Court rejected an application of strict scrutiny although the system discriminated against the poor o The state doesnt have to provide public education, but once it does it needs to provide such education equally Rodriguez claimed they didnt, b/c quality of education was different b/c of wealth o The Court said that education wasnt a fundamental right, but it didnt actually believe this The Court also argued that b/c total deprivation of educational opportunities wasnt occurring in this case, the Court would allow what was occurring In Griffen and Douglas, individuals who were discriminated against shared 2 characteristics: their indigence made them unable to pay for some desired benefit and therefore they were absolutely deprived of the opportunity to enjoy that benefit o Neither of those 2 characteristics are present here Total deprivation would be different The Equal Protection Clause doesnt require absolute equality or precisely equal advantages o The importance of a service performed by the state doesnt determine whether it must be regarded as fundamental for purposes of examination under the EPC The Court cant create substantive constitutional rights in the name of guaranteeing equal protection

When determining whether education is a fundamental right, the Court looks to whether it is explicitly or implicitly guaranteed by the constitution o The Court applied a Rational Basis Review, and held that the state could rationally want to allow these decisions to be made on the local level This indicates concern on the part of the court that invalidation of this law would negatively affect education Powell argued that making these decisions on the local level was better, and that it was traditional o Every scheme of taxation is inevitably arbitrary o The Court also feared that this might lead to a slippery slope of recognizing welfare rights to food and shelter, i.e. it would violate Dandridge Marshall, in his dissent, argued that like voting, there is a nexus between adequate education and the exercise of constitutional rights o Its hard for the majority to distinguish education from voting in this context o He also demonstrates that recognizing education as a fundamental right wouldnt necessarily lead to the recognizing of welfare rights Plyler v. Doe (1982) Dealt w/ a TX law which denied free education to children of illegal immigrants The Court ruled the law unconstitutional o The Court held that illegal aliens arent a suspect class b/c their status as illegal is partly voluntary and the status is relevant to legitimate government purposes They are still guaranteed due process under the 5th and 14th Amendments o The Court held that education isnt a fundamental right, but relied on 1) the nexus theory, 2) total deprivation, and 3) the fundamental role of education to strike down the law Emphasized that the children of illegal immigrants were blameless, so they shouldnt be punished for their parents actions Emphasized the federal governments role in setting rules for illegal immigrants; pre-empted the states role Most of the emphasis was on how total deprivation prevents the childrens opportunity to play an important role in society (nexus theory) The discrimination cant be rational unless it furthers some substantial government interest o The purposes TX gave were: 1) protect itself from an influx of illegal aliens and the detrimental effects that has on the economy, 2) undocumented children impose a special burden on the states ability to provide high-quality education, and 3) undocumented children are less likely to remain w/in the boundaries of the state and to put their education to use w/in the state The Court rejected the first b/c there was no evidence to support it, and in fact the opposite may be true The Court rejected the second b/c there was no evidence to support it The Court rejected the third b/c, even if that was a legitimate state

interest, it would be impossible to quantify Theres no assurance citizen children will stay either The Court didnt understand why the state wanted to create a subclass of illiterates that would exacerbate unemployment, welfare, and crime The Courts rejection of these interests demonstrates that it was applying de facto Intermediate Scrutiny, not rational basis review o The Court required the furthering of a substantial state interest, and none was shown Not an announcement of intermediate scrutiny for fundamental rights, and dealt w/ unique circumstances Modern Substantive Due Process o Identifies a sphere of personal individual autonomy in which the government cant interfere o Follows the same form as the Lochner cases, but enforces the right of privacy o Isnt grounded in the due process clause of the 14th Amendment, its grounded in the penumbras of many amendments Substantive Due Process rights are negative constraints on the government o The question that haunts the court in all these cases, particularly Griswold, is that the court is making up these rights o Meyer v. State of Nebraska (1923) Prohibited the teaching of non-modern foreign languages in school up to 8th grade The Court saw this law as not passing the rational basis test The liberty interest didnt merely concern bodily restraint, but it concerned parents ability to make domestic decisions o The prohibition of restraint on liberty was quite broad, and dealt w/ ones ability to pursue happiness The laws interference w/ liberty had no reasonable relation to a state purpose The Court feared a totalitarian state, which displaced parent/family autonomy It also was wary of public hysteria o Pierce v. Society of Sisters (1925) The law at issue made public education compulsory, w/out allowing children to go to private school The Court saw this law as not meeting the rational basis test, b/c the law unreasonably interfered w/ the liberty of parents to direct the upbringing of their children o Skinner relates to these cases in the sense that it protected the right to procreate, and more generally intimate personal choices, against state interference o Privacy/Abortion Griswold v. Connecticut (1965) Statute at issue criminalized the use of contraceptives The Court held the law unconstitutional o The Court relied upon the penumbra of privacy rights that are a result of the Bill of Rights, not the Due Process Clause of the 14th Amendment The 1st, 3rd, 4th, and 5th amendments indicate that there is a privacy right in the home, which is applied through the 14th amendment They also made an argument that the 9th Amendment is a placeholder for unenumerated rights that the state cant infringe

These penumbras are formed by the emanations of the guaranteed rights and give the rights life and substance o A governmental purpose to control or prevent activities through regulation cant be achieved by means which are unnecessarily overbroad and invade protected freedoms o The Court intended to make the ruling narrow, to apply it to only marital couples in the marital bedroom But it was broadly applied afterward They didnt want to ground this in the due process clause of the 14th Amendment, b/c of Lochner Goldberg, in his concurrence, said the 9th Amendment precluded the law Harlan, in his concurrence, said the Substantive Due Process clause of the 14th Amendment precluded the law White, in his concurrence, argued the law didnt pass rational basis review Stewart, in his dissent, argued that although the law was dumb, the constitution didnt prohibit it Black, in his dissent, argued no right to privacy exists o He thought using substantive due process would inherently incorporate the Courts subjective views of what rights should be protected (i.e. this is Lochner all over again) There is a hint of a claim of gender discrimination here (only men can use condoms) The holding only applied to Massachusetts and Connecticut, b/c theyre the only ones who outlawed the use of contraception The holding only applied to married couples, not to single people o Eventually it becomes a right of individual reproductive autonomy In general, the Court is identifying fundamental, intimate, private choices people make and protecting them Are they more central life activities than the rights in Lochner? The State often justifies these types of decisions through community moral judgments, and the court vacillates between accepting and rejecting these judgments Roe v. Wade (1973) The law at issue made getting an abortion a crime, for the mother and the physician, for any other reason than saving the life of the mother The Court held that the law created a burden on a womans right to privacy under the 14th Amendment o The Court reasoned that the state needed a compelling interest to criminalize abortion, and the Court identified 2 interests (Strict Scrutiny) The first was in guaranteeing safe medical procedures for the health of the mother The Court held that at the end of the first trimester, the interest of the state became more compelling in protecting the health of the mother than the right to have an abortion (under a balancing test) The second was in the desire to protect pre-natal life The Court held that the state had a compelling interest in preventing abortion after viability, but not before o This is b/c the state only has an interest in

protecting the fetus life when it can survive by itself o The Court allowed regulations through the first trimester, but they had to be related to the health of the patient not to promoting prenatal life o After viability, the state can regulate to promote prenatal life Abortion adds an additional life to the balancing test, as opposed to Griswold Griswold dealt w/ 2 outlier states, while Roe went against anti-abortion laws in 46 states Critique o The Court never addressed the issue of why the womans interest in having an abortion trumps the states interest in protecting pre-natal life in the first trimester o It is unclear why there was an historical exegesis of abortion o Some parts of the opinion indicate that the constitutional right being protected is that of the doctor Seemed to think the issue was the regulation of the medical profession o Didnt decide when human life begins, b/c this was impossible to answer Yet the Court practically makes a decision on this issue, with its use of viability Alternative Rationale o The burdens fall disproportionately on women, so a state restriction is a form a sex discrimination Based on particular visions of motherhood This doesnt solve the problem of abortion jurisprudence Roe may stand for placing limits on a totalitarian state, b/c it protects peoples autonomy in determining their life course (some dude from Yale) Social & Political Consequences of Roe o At the time it was decided, 4 states had liberal abortion laws and many others were moving towards more liberalized policies o The Court thought it was perceiving the path which the nation was going down (liberalization), which was arguably incorrect o It is argued that legalization made abortion safer o Roe made abortion a national political issue and mobilized an organized pro-life constituency, it didnt settle the issue (Klarman) People were enraged that the issue was taken out of the legislative arena This influenced the presence of Republicans in the White House through the 80s Abortion Funding Cases Maher v. Roe (1977) o Dealt w/ a law that prohibited the use of Medicaid funds for nontherapeutic abortions, but permitted their use of pregnancy and childbirth o The Court upheld the law b/c the poor arent suspect class and theres no fundamental right to have the state subsidize abortion Harris v. McRae (1980) o Dealt w/ a law that prohibited the use of Medicaid funds for abortion except when the life of the mother was in danger

o The Court upheld the law b/c the state isnt responsible for making people impoverished so it doesnt have the obligation to remove the obstacle Both say that state funds arent constitutionally required to fund/subsidize abortions The Constitution is a negative constraint on what the government can do, not a positive tool for granting opportunities to exercise rights o Unless there is a monopoly by the state, which there isnt in these cases The state funds most indigent childbirths, but it doesnt fund abortion o The state is pushing indigent women toward childbirth and isnt neutral The Court said that the state wasnt making women any worse off, that women would be in the same position if no funding existed o Sometimes the state cant selectively fund or create more options (blackmail paradigm) o The Court drew a line between subsidizing and penalties, and saw this as merely a subsidy It said penalties would be unconstitutional Planned Parenthood of Southeastern Pennsylvania v. Casey (1992) Dealt w/ a law that regulated abortions by mandating a 24 hour waiting period, spousal notification, parental consent for unmarried minors, and requirements for reporting and recording Brought together the regulation and funding cases o One said the state cant subsidize abortion, b/c its not the states fault that the woman who wants an abortion is poor (subsidy) This suggests that the state can choose who to subsidize, which isnt true o The other said that the state cant impose a penalty by denying Medicaid to a woman who has had an abortion in the past (penalty) Its difficult to delineate between a subsidy and a penalty o Neutrality Approach Any regulation must be neutral under the equal protection clause Selective funding is a penalty o Alternative Approach (Endorsed by Funding Cases) Government doesnt have to be neutral, it simply cant coerce through criminalization of abortion The Court upheld all of the provisions of the law except spousal consent o The Court said that Roes holding had 3 parts A women can choose to have an abortion up to viability and obtain it w/out undue interference by the state This is b/c the states interests in fetal life arent strong enough until viability A state can restrict abortions after viability, as long as there are exceptions for the health of the mother The state has legitimate interests in protecting the health of the mother and life of the fetus o The Court held that a state could not restrict abortion if it placed an undue burden on a woman seeking an abortion An undue burden places a substantial obstacle in the path of a woman seeking an abortion The Court looks at the costs imposed on the woman

The undue burden test replaced strict scrutiny in abortion cases In the law at issue, the Court upheld all the restrictions as not imposing an undue burden except the requirement for a woman to inform her husband The state can express its preference for fetal life before viability, as long as it doesnt penalize o The Court got rid of the trimester distinction from Roe o The Court upheld the viability distinction in Roe o The Court referred at length to the importance of stare decisis They said that people had relied upon the rights protected in Roe for 2 decades Its not about a transaction, its about an underlying societal assumption This is a weak argument (Plessy) They distinguished this from Lochner and Brown in the sense that the facts in those cases had changed, while w/ abortion they hadnt This was an attempt to distance the Court from claims of judicial activism Blackmun and Stevens, in their concurrences, argued that the 24 hour waiting period was an undue burden Rehnquist, in his dissent, argued Roe should be overruled Scalia, in his dissent, argued Roe was similar to Dred Scott Gonzales v. Carhart (2007) Dealt w/ a partial birth abortion ban The Court upheld the ban b/c it wasnt an undue burden o It wasnt an undue burden b/c it only prohibited one type of partial birth abortion and it was very clear (not vague) o The state said its interests were: 1) to avoid confusion over medical duties, 2) preserving and promoting fetal life, and 3) concern w/ womens remorse The Court accepted the first in order to preserve and clarify the medical, legal, and ethical duties of doctors to preserve and promote life The Court has always accepted the second The Court accepted the third b/c it found it unexceptional to conclude that some women come to regret their choice to have an abortion w/ severe depression and loss of esteem to follow o Despite the fact that the procedure at issue was used both post and previability, the Court upheld the law b/c of the states compelling interest in protecting pre-natal life Effectively got rid of the viability distinction The Court allowed the lack of a health exception, b/c there was a factual argument as to whether this procedure could protect the health of a mother o The Court was careful to say this didnt supplant Casey, and that the regulation of this procedure was unique and wouldnt apply to other procedures This is doubtful, given the reasoning

Ginsburg, in her dissent, argued the law shouldnt be upheld w/out a health exception and the remorse argument is paternalistic o Intimate Association and Discrimination on the Basis of Sexual Orientation Concerns a confluence of Equal Protection and Substantive Due Process Homosexuals are discriminated against in many ways by the law, which seem to be equality questions Are homosexuals a suspect class? Can states criminalize homosexual behavior? This involves a deprivation of physical liberty The argument against this criminalization comes from Griswold and its progeny These cases are clearly influenced by the world in which the Court lives Romer v. Evans (1996) Bowers was good law when this case was decided, but it wasnt mentioned by the majority o To the extent the amendment at issue reflected the communitys moral judgment, the Court deemed this irrelevant The amendment at issue said that homosexuals cant be a protected class that can be protected against discrimination both in public and private The Court claimed it applied Rational Basis (therefore sexual orientation isnt a suspect class) and that the law failed this test o This was b/c it was merely animus against homosexuals The state and dissent argued it was simply taking away special protection from homosexuals and affording them normal protection, b/c of the states moral judgment that homosexuals shouldnt receive special protection o The Court hinted that this amendment may allow the state to discriminate w/in laws of general applicability, i.e. police dont have to take reports from homosexuals The Court may be hinting that political victories won by one group at the local level constitutionally cannot be later taken away by a different political group at a higher level and made more difficult to attain again o This cant be right as a general principle o There are very few cases in this line of Supreme Court jurisprudence, and theyre all based on conceptions of animus towards the minority by the majority Lawrence v. Texas (2003) Dealt w/ a law that criminalized homosexual sexual conduct The Court refused to invalidate the law on Equal Protection grounds, and held that there was a fundamental substantive due process right to the liberty of association of the private consensual homosexual relationship o The Court said Bowers was wrongly decided, b/c it focused on the wrong question, i.e. homosexual sodomy, and the emphasis should be the private homosexual relationship The Court defined the substantive due process right to liberty in line w/ Griswold, Eisenstadt, and Casey To determine whether the right was protected by substantive due process, the Court looked to whether the liberty was deeply rooted in the nations traditions It looked mainly to the laws and traditions in the past half century

History and tradition are the starting point but not dispositive Bowers incorrectly and unconstitutionally stigmatized homosexuals o It also said the history in Bowers of laws against sodomy was wrong o Also, Romer undermined Bowers holding B/c a states judgment that homosexual conduct is morally reprehensible doesnt pass a rational basis test and cant be upheld o The Court was careful to point out that this didnt cover homosexual marriage, prostitution, incest, anything involving non-consent or minors, polygamy, or public sex However, the broader the right of this case is defined, the more of these issues that are covered by it OConnor, in her concurrence, believed this should be decided under Equal Protection o This would distinguish the law at issue from Bowers, b/c that law criminalized all sodomy, not just homosexual sodomy o She accepted that states can make these moral judgments Scalia, in his dissent, said that the penumbra argument of Griswold would have been better than the substantive due process argument o He also said the Court ignored the emphasis on precedent in Casey Same-Sex Marriage State arguments against this are moral arguments and potentially empirically verifiable health/psychological arguments (more stable, better for children) o Whether the court accepts empirical arguments depends on what level of scrutiny is applied o Many states have taken steps to grant homosexual couples some rights, which undermines their claims against marriage If Romer means LGBT are a quasi-suspect class, than the view of marriage as a privilege wont work o Just b/c the State can get rid of all marriage, it cant not grant it based on quasi-suspect class (like w/ race) It makes no sense to allow the states to prohibit marriage based on moral judgments if they cant discriminate based on those same moral judgments o Right To Die Cruzan v. Director, Missouri Department of Health (1990) MO law required clear and convincing evidence that an incompetent person wants to be removed from life support o The challengers claimed that modern substantive due process recognized the liberty of the right to die The Court upheld the law o The Court held that the common law doctrine of informed consent allowed a person to refuse medical treatment There is a leap from providing food and water to an incompetent to medical treatment (although a small one) This is a problem of evolved medical technology o The Court recognized the prior modern substantive due process liberty interests from prior cases (wherever they come from) and simply assumed

that these interests applied in this case o However, the doctrine of informed consent only forces the State to care about the patients interests, not anyone else's The state has an interest in protecting life, but it has a larger interest in determining the interest of the patient Consequently, the heightened burden in determining that interest recognized by the MO law was allowable (but not compelled by the constitution) OConnor, in her concurrence, clarified that this doesnt preclude the use of surrogates or living wills o She also expressly stated that there was a fundamental right to refuse life sustaining treatment Scalia, in his concurrence, argued that there was no modern substantive due process liberty interest, so therefore the law is constitutional Brennan, in his dissent, pointed out that there is no clear and convincing evidence for either side, i.e. the determination is based upon a presumption that incompetents want life sustaining treatment o If the goal is determining the patients interests, this is presumption shouldnt be present o He said the state has no interest in maintaining life if the patient doesnt have an interest in maintaining her own life Washington v. Glucksberg (1997) WA made assisted suicide illegal o The challengers claimed that Cruzan recognized a persons autonomy right to end their life in the way they see fit The Court upheld the law o The Court began by saying that assisted suicide has always been illegal o It distinguished Cruzan practically b/c that case dealt w/ withholding treatment and this dealt w/ actively assisting someones suicide The Court was worried about abuse, coercion, and difficulty of implementation of assisted suicide o It distinguished Cruzan doctrinally b/c Cruzan dealt w/ the common law doctrine of informed consent and this case dealt w/ suicide o The Court said that it looked for substantive due process rights by looking to see if it was narrowly described (level of generality) and traditionally protected Then the law had to meet a threshold requirement, implication of a fundamental right, before a test was applied B/c there was no fundamental right (to assisted suicide) implicated, rational basis review was applied This method of determining fundamental rights was supposedly superior b/c it is constraining and objective But this method doesnt fit w/ previous substantive due process cases How does this and Souters alternative actually work? Why should the court be good at determining what the objectively rooted traditions of the people are? o Deeply rooted traditions would presumably be protected by the legislature, so is this really the job of the courts?

o The Court held that b/c the law served many legitimate interests (preserving life, protecting the integrity of doctors, protecting vulnerable people, preventing stereotypes) it was constitutional o States could enact laws protecting the right to assisted suicide if they wished, b/c this should be left to the political process OConnor, in her concurrence, hinted that criminalization of assisted suicide would be unconstitutional when a terminally ill competent patient in great pain sought one o Stevens, Souter, Ginsburg, and Breyer agreed w/ this Stevens, in his concurrence, emphasized the difference between facial and asapplied challenges o This was a facial challenge, and he wanted to reserve the possibility that an as applied challenge would be acceptable Souter, in his concurrence, argued for the use of a common law method of determining substantive due process rights o He looked to see if the law at issue was an arbitrary deprivation of a fundamental liberty, and he did so by looking at how precedent related to the current case The difference in how the different parts of the Court look at substantive due process is demonstrated in the differences between the majority and Souters concurrence One way of reading this case was that the Court didnt want to repeat Roe, and wanted to allow the states to decide this issue ADVANCED TOPICS o Congressional Power to Enforce the Reconstruction Amendments Remember the Commerce and Tax powers allow Congress to regulate private conduct Based on the structure of the 14th Amendment 1 contains the Equal Protection and Due Process clauses 5 states that Congress has the power to enforce 1 of the Amendment by appropriate legislation o This can be seen as an additional power of Congress o 5 is both about the scope of the power of Congress and the power of the 14th Amendment in regulating state action Its also about judicial supremacy The Amendment applies to both the states and the federal government (b/c of reverse incorporation) Congress could disagree w/ the Courts decision in Washington v. Davis and pass a law that prohibits racially disproportionate effects w/out a demonstration of invidious discrimination I.e. the Court is wrong when it says 1 of the 14th Amendment only reaches invidious discrimination (judicial supremacy) Generally, legislation enforcing 1 under 5 has been exercised in this way o It could work in the opposite direction as well Precedent doesnt allow Congress to directly flout decisions of the Court The only legislation allowed is that which is aimed at stopping conduct that the Court would say is violating the 14th Amendment There are 2 types of cases of this nature One where Congress attempts to regulate state conduct, and goes beyond regulating intentional discrimination

One where the question is if these statutes can regulate private conduct Complex Remedies South Carolina v. Katzenbach (1966) o Dealt w/ a Congressional law that invalidated literacy tests for voting o Allows complex remedies This allows the executive to look at greater amounts of evidence than can be looked at in a single case to deal w/ discriminatory effects of a neutral law Preventive or Prophylactic Remedies City of Rome v. United States (1980) o Dealt w/ a law that required jurisdictions to pre-clear any change in their electoral practices that might have a discriminatory effect, w/out discriminatory purpose o The Court upheld the application of the pre-clearance requirement b/c there might be a risk of discriminatory purpose (in future application or its hard to find but theres a history of it) Relied heavily on the past discrimination of the jurisdiction Katzenbach v. Morgan (1966) Dealt w/ another literacy test for voting, this one in NY Broadest endorsement of the prophylactic power of Congress under 5 The Court granted a deferential rational basis review to Congressional action under 5 o Its argued that the Court said Congress can have its own interpretation of 1 of the 14th Amendment (but this isnt agreed upon) o The idea was to allow the Puerto Ricans to vote, so they could secure non-discriminatory treatment in other state-individual relations Consequently, Congress had the right to protect invidious discrimination in those relations (b/c the Court had previously held that literacy tests werent inherently invidious) o The Court also said that Congress could have seen the literacy tests as invidious discrimination o The Court also pointed out that the means of the literacy test didnt really meet its ends Someone who speaks Spanish but not English isnt necessarily not an informed voter Discriminatory effects arent enough to allow a prophylactic law under 5, but the Court grants wide discretion to Congress in determining a discriminatory purpose in the law at issue City of Boerne v. Flores (1997) Dealt w/ the Religious Freedom Restoration Act (RFRA) which was a response to Employment Div., Dept. of Human Resources of Oregon v. Smith (1990) where the Court basically applied Washington v. Davis and upheld a law prohibiting unemployment benefits to those who use of peyote o The RFRA required the Court to apply strict scrutiny to any neutral law that had a discriminatory effect on the free exercise of religion o Congress justified it under 5 as prophylactic legislation The Court held the RFRA unconstitutional b/c Congress cant come to a different conclusion of the meaning of 1 of the 14th Amendment and implemented that meaning through statute

o The Court defended its duty as interpreting the Constitution The Court stated a test of congruence and proportionality to determine if a 5 law was appropriate o Congruence and proportionality must exist between the injury Congress is aiming to stop and the remedy thats adopted to get at that conduct o The Court said the evidence wasnt even close to demonstrating that laws that disproportionately effect the free exercise of religion were invidiously motivated, so the remedy didnt pass this test Can Congress ever regulate the conduct of private actors under 5? The Civil Rights Cases which struck down the Civil Rights Act in the 1880s said no o The Civil Rights Act of the 1960s was done under the Commerce power as a result o However, the Civil Rights Cases allowed regulation under 5 of private action shielded by the states They also held that the states must offer a cause of action for invidiously discriminatory private conduct o Unconstitutional Conditions The Burdens/Benefits problem applies across all constitutional law The state can neither burden indirectly what it cant burden directly, nor not burden indirectly what it cant burden directly (LOOK AT CLOSER) The Court is in the middle and undecided on this issue