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Contents
The Commerce Clause ...................................................................................................................................... 1
During the Lochner Era ............................................................................................................................... 2
During the New Deal Era ............................................................................................................................ 2
In Advancing Civil Rights ............................................................................................................................ 2
Modern Limits on the Commerce Power .................................................................................................. 2
The Spending Clause.......................................................................................................................................... 2
Equal Protection................................................................................................................................................. 3
Proving Discrimination................................................................................................................................. 3
Desegregation................................................................................................................................................. 3
Affirmative Action......................................................................................................................................... 3
Substantive Due Process ................................................................................................................................... 4
During the Lochner Era ............................................................................................................................... 4
In Modern Times ........................................................................................................................................... 4
Fundamental Rights ........................................................................................................................................... 4
Contraception................................................................................................................................................. 4
Abortion .......................................................................................................................................................... 4
Romantic Relationships ................................................................................................................................ 5
Modern Federalism ............................................................................................................................................ 5
War Powers ......................................................................................................................................................... 6
The Three Levels of Review............................................................................................................................. 6
Rational Basis.................................................................................................................................................. 6
Intermediate Scrutiny .................................................................................................................................... 6
Strict Scrutiny ................................................................................................................................................. 6
The Court has never required Congress to invoke specifically the Commerce Clause as a justification
for legislation. As long as the Court can find that a law in question has some effect on interstate
commerce, that law passes muster under the Commerce Clause. Currently, laws challenged under
the Commerce Clause are evaluated using the test in United States v. Lopez. The Lopez test states that
a law stays within the bounds of the Commerce Clause when it regulates (1) channels of interstate
commerce, (2) articles or instrumentalities of interstate commerce, or (3) activities that “substantially
affect” interstate commerce. The third criterion includes such cases as Wickard v. Filburn and Raich v.
Gonzales. In both those cases, the Court found that purely intrastate activity could affect interstate
commerce by influencing supply and demand on an interstate scale.
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forth unambiguously the conditions for receiving federal funds, (3) relate to federal interests in
particular national projects or programs, and (4) comport with any independent constitutional
restrictions. The Court added that any funds conditionally granted under the Spending Clause could
not be so substantial as to function as coercion. This rule echoes the decision in the Child Labor Tax
case, in which the Court held that Congress could not levy a special tax against manufacturers that
used child labor.
Equal Protection
Proving Discrimination
Under the Constitution, a law imposes discrimination when it (1) facially discriminates between
individuals or (2) evidences discriminatory effect coupled with discriminatory intent. The Court
established the requirement of discriminatory intent in Washington v. Davis. In Personnel Administrator
of Massachusetts v. Feeney, the Court elaborated its holding in Washington by stating that discriminatory
intent exists only if the legislature adopted a particular law “because of,” rather than “in spite of,” its
discriminatory impact. The Court subsequently stated in Village of Arlington Heights v. Metropolitan
Housing Development Corp. that discriminatory effect may give rise to an inference of discriminatory
intent under particular circumstances and established a six-factor for determining whether such an
inference should be permitted.
Legislation may reduce the burden of proof necessary for a finding of discrimination. For instance,
Title VII of the Civil Rights Act of 1964 states that discriminatory effect alone is sufficient to
establish discrimination.
Desegregation
Following Brown and related decisions, the Court authorized the federal judiciary to oversee the
nationwide desegregation of schools in Brown II. In Cooper v. Aaron, the Court showed that it was
willing to use military force to enforce desegregation. In Green v. New Kent County School Board, the
Court held that school districts had the burden of proving good-faith efforts to desegregate. In
Swann v. Charlotte-Mecklenburg Board of Education, the Court authorized the use of equitable remedies,
including busing, and stated a four-factor test for determining the adequacy of desegregation efforts.
In Keyes v. School District No. 1, Denver, Colorado, the Court addressed the problem of de facto
segregation. The Court held in Keyes that a finding of segregation in a substantial number of schools
within a district supported an inference of segregation throughout that district. In Milliken v. Bradley,
the Court imposed a limit on remedies to segregation by holding that inter-district remedies were
inappropriate absent a showing of inter-district segregation. The effect of Milliken was to make it
difficult to desegregate inner-city schools because such schools were almost uniformly black.
Affirmative Action
Affirmative action has been a bone of contention in modern constitutional doctrine. The justices of
the Court seem to have divided into two camps: (1) those who unconditionally oppose the use of
racial classifications and (2) those who believe that race-conscious remedies are an appropriate way
to remedy the lingering effects of past discrimination.
In the educational context, the Court has consistently opposed the use of quotas to achieve racial
balancing. This view originated in Regents of the University of California v. Bakke. In Bakke, Justice
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Powell found that a medical school could not reserve a fraction of its seats to minority applicants
and thereby insulate those applicants from competition with the rest of the applicant pool. In Gratz
v. Bollinger, the Court invalidated a “point system” used by the University of Michigan’s
undergraduate admissions office. The Court found that awarding points on the basis of race tended
to preclude the sort of “individualized review” that affirmative action demanded. Justice Souter,
however, observed that most forms of “holistic” review probably used an under-the-table version of
the point system anyway. By contrast, the Court upheld the University of Michigan Law School’s
use of race as a “plus factor” in admission. The Court found that such a system took race into
account without turning into a determinative factor. Modern efforts to achieve racial diversity in
schools have been controversial. In Parents Involved, the Court divided as to the degree of race-
consciousness that can be permitted in school-assignment plans.
In Modern Times
Substantive due process in modern times has focused mainly on protection of the so-called
“fundamental rights.” (See the discussion of fundamental rights below.)
Fundamental Rights
Contraception
The Court held in Griswold v. Connecticut that the right to privacy prevented the government from
interfering with the purchase and use of contraceptives by married couples. The Court, however,
apparently was conservative in addressing only the issue of privacy and not the actual romantic
relationship at issue. In Eisenstadt v. Baird, the Court extended the holding of Griswold to unmarried
partners.
Abortion
The modern jurisprudence on abortion began with Roe v. Wade. In Roe, the Court established the
trimester framework, which governed the degree to which the government could interfere with a
woman’s choice to have an abortion. In Casey, the Court modified the holding of Roe, abandoning
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the trimester framework in favor of the rule that a state may not impose an “undue burden” on any
woman seeking an abortion. The main practical change was that Casey allowed states to impose
informed-consent requirements, waiting periods, and other procedural constraints on women
seeking abortions.
The regulation of partial-birth abortions has been particularly contentious. In Stenberg v. Carhart, the
Court invalidated a state prohibition on partial-birth abortions because the statute failed to provide a
health exception. In response, Congress enacted the Partial Birth Abortion Act, which implemented
a similar exception-less ban at the federal level. The Court’s opinion in Gonzales v. Carhart revolved
around the tug-of-war between congressional fact-finding and judicial fact-finding. Ultimately, the
Court concluded that Congress should have the final when there was medical doubt as to the
advisability of a health exception. The current question is whether Stenberg remains good law since it
addresses partial-birth abortions at the state level while Gonzales and the Act do so at the federal level.
Romantic Relationships
The Court held in Lawrence v. Texas that a state may not interfere with gay couples practicing
homosexual sodomy. The Court held in Lawrence that the right to be protected was not the right to
engage in a particular sexual act but the right to engage in intimate relationships as one sees fit. The
Lawrence decision casts into question earlier decisions such as Bowers v. Hardwick and Romer v. Evans.
Modern Federalism
After years of expanding federal power, the Rehnquist Court began to place new limits on
congressional authority. In City of Boerne v. Flores, the Court invalidated the Religious Freedom
Restoration Act. The Court held that the Act had overstepped the boundaries of section 5 of the
Fourteenth Amendment. The Court stated that the “enforcement” provision of the Amendment
authorized Congress only to take actions that were “congruent” with the problem to be remedied.
The Act itself failed the congruency test because it imposed a categorical prohibition on legislation
burdening the practice of religion without stating any basis for the necessity of such a wide-reaching
measure. In United States v. Morrison, the Court held that the Violence Against Women Act (VAWA)
fell outside the authorization of section 5 because violence against women was no state action that
Congress could remedy under the Amendment. In Kimel v. Florida Board of Regents and Board of
Trustees of the University of Alabama v. Garrett, the Court held that the Age Discrimination in
Employment Act (ADEA) and the American with Disabilities Act (ADA) did not extend to the
states because those two forms of discrimination also fell outside the scope of section 5. In Tennessee
v. Lane, the Court made an exception to its holdings in Kimel and Garrett by finding that the lack of
wheelchair ramps in a courthouse, despite not being actionable under the ADA, was actionable
under the Constitution because it impeded equal access to the courts.
In United States v. Lopez, the Court reined in congressional authority under the Commerce Clause.
(See the discussion of Lopez above.) In New York v. United States, the Court held that Congress may
not force the states to legislate on its behalf. Such a delegation of power, the Court found, would
reduce political accountability of both the states and the federal government. In Printz v. United
States, the Court held that Congress had no power to order state governments to implement parts of
a national background-check system for gun purchasers.
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War Powers
In Youngstown Sheet & Tube Co. v. Sawyer, Justice Jackson set forth the three levels of executive power
in wartime: (1) when the president acts with the authority of Congress; (2) when the president acts
with neither the approval nor disapproval of Congress; and (3) when the president acts in ways
incompatible with Congress. These three levels of power came into sharp relief in Hamdi v. Rumsfeld
and Boumediene v. Bush. In Hamdi, Congress had passed the Authorization for the Use of Military
Force (AUMF) in the war on terror. The Court held in Hamdi that an American citizen detained as
an “enemy combatant” must have at least the opportunity to rebut the factual basis for his detention.
At the same time, the Court conceded that the realities of war may necessitate laxer evidentiary
standards and allow certain presumptions in favor of the government. In Boumediene v. Bush, the
Court held that an alien enemy combatant detained at Guantanamo Bay was also to have the chance
to challenge his designation as an enemy combatant. The Court held in Boumediene that the reviewing
court needed to have at least the authority to order the release of any detainee it finds to have been
wrongly imprisoned. The war-powers cases tend to concern attempts by the executive and the
legislature to curtail habeas review without formally invoking the Suspension Clause.
Intermediate Scrutiny
The Court applies intermediate scrutiny when reviewing laws that discriminate on the basis of sex.
A law passes muster only if it is “substantially related” to a “important governmental interest.”
Strict Scrutiny
The Court applies strict scrutiny when reviewing laws that discriminate on the basis of race or
alienage. A law passes muster only if it is “narrowly tailored” to a “compelling governmental
interest.” In the modern context, affirmative-action programs and restrictions on fundamental
rights generally receive strict scrutiny.