Constitutional Law II Outline Fall 2016 Table of Contents (Kahn)

ARTICLE I.

INTRODUCTIONS

Section 1.01 Modalities of Constitutional Argument

(a) Historical
(b) Textual
(c) Structural
(d) Doctrinal
(e) Ethical
(f) Prudential

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Section 1.02 Dred Scott v. John Sandford (1857)

(a) Background
(b) Facts
(c) Issues
(d) Why might the court lack jurisdiction?
(e) What does the Constitution say about slavery?
(f) The Missouri Compromise (prohibited slavery north of the parallel 3630 north latitude)
(g) Looking towards other nations laws
(h) McClean Dissent
(i) Curtis Dissent
(j) Review of Dred Scott

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Section 1.03 The Bill of Rights and the Post-Civil War Amendments: Fundamental Rights and the
Incorporation Dispute
(a) Individual Rights Before the Civil War
(b) Barron v. Mayor and City Council of Baltimore (1833)

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Section 1.04 The Post-Civil War Amendments

(a) Slaughter House Cases

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ARTICLE II.

INCORPORATION

Section 2.01

Palko v. Connecticut (1937)

Section 2.02

Adamson v. California (1947)

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Section 2.03

Duncan v. Louisiana (1968)

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Section 2.04

Incorporation since Duncan

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ARTICLE IV.

SUBSTANTIVE DUE PROCESS

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Section 4.01

Introduction

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Section 4.02

Economic Liberties

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(a)
(b)
(c)
(d)
(e)
(f)
(g)
(h)
(i)
(j)
(k)
(l)
(m)
(n)
(o)
(p)

Lochner Era
Fourteenth Amendment Due Process Clause
Calder v. Bull (1798)
Munn v. Illinois (1877)
Railroad Commission Cases (1886)
Mugler v. Kansas (1887)
Allgeyer v. Louisiana (1897)
Lochner v. New York (1905)
The Meaning and Implications of Lochner
Adair v. United States (1908)
Coppage v. Kansas (1915)
Nebbia v. New York (1934)
West Coast Hotel v. Parrish (1937)
United States v. Carolene Products Co. (1938)
Stones Carolene Products Footnote No. 4:
Williamson v. Lee Optical Co. (1955)

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Section 4.03 Substantive Due Process and Privacy

(a) 4 Questions to Ask When Faced with Substantive Due Process:
(b) Meyer v. Nebraska (1923)
(c) Pierce v. Society of Sisters (1925)
(d) Skinner v. Oklahoma (1942)
(e) Griswold v. Connecticut (1965) ---is a fundamental right involved?

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Section 4.04 Substantive Due Process and Contraception

(a) Roe v. Wade (1973) (there are two compelling govt interests: protecting the health of the mother and
protection for potential of human life)
(b) Aftermath of Roe
(c) Planned Parenthood of South East Pennsylvania v. Casey (1992)
(d) Stenberg v. Carhart (2000)
(e) Gonzales v. Carhart (2007)
(f) Hellerstedt

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Section 4.05 Substantive Due Process and Marriage and Family Relationships
(a) Loving v. Virginia (1967)
(b) Zablocki v. Redhail (1978)
(c) Turner v. Safley
(d) Moore v. East Cleveland (1977)
(e) Belle Terre v. Boraas (1974)
(f) Troxel v. Granville (2000)
(g) Michael H. v. Gerard D. (1989)

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Section 4.06 Substantive Due Process and Sexuality

(a) Bowers v. Hardwick (1986)
(b) Lawrence v. Texas (2003)
(c)
Romer v. Evans (1996)
(d) United States v. Windsor (2013)
(e) Obergefell v. Hodges (2016)

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Section 4.07 Substantive Due Process and Rights Over Death

(a) Cruzan v. Director, Missouri Department of Health (1990)
(b) Washington v. Glucksberg (1997)
(c) Vacco v. Quill (1997)

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ARTICLE V.

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PROCEDURAL DUE PROCESS AND THE RIGHT TO A HEARING

Section 5.01 Defining Property and Liberty

(a) Goldberg v. Kelly (1970)
(b) Town of Castle Rock v. Gonzales (2005)
(c) Paul v. Davis (1976)

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Section 5.02 What process is due?

(a) Matthew v. Eldridge (1976)

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ARTICLE VI.

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Section 6.01

TAKINGS CLAUSE AND THE CONTRACTS CLAUSE

The Takings Clause

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Section 6.02 The Public Use Requirement

(a) Hawaii Housing Authority v. Midkiff (1984)
(b) Berman v. Parker (1954)
(c) Kelo v. City of New London (2005)

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Section 6.03 Regulatory Takings

(a) Penn. Coal Co. v. Mahon (1922)
(b) Miller v. Schoene (1928)
(c) Keystone Bituminous Coal Assn n. Debenefictus (1987)
(d) Penn. Central Transportation Co. v. NYC (1978)

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Section 6.04 Per Se Takings

(a) Loretto v. Teleprompter Manhattan CATV Corp. (1992)
(b) Lucas v. S. Carolina Coastal Council (1992)

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ARTICLE VII.

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Section 7.01

EQUAL PROTECTION

Introduction

Section 7.02 Minimum Rationality Review of Economic Regulations

(a) Railway Express Agency v. New York (1949)
(b) Kotch v. Board of River Port Pilot Commissioners
(c) Williamson v. Lee Optical Company (1955)
(d) Morey v. Doud

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(e)
(f)

New Orleans v. Dukes (1976)

ANIMUS

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(g)
(h)
(i)
(j)
(k)

U.S. Department of Agriculture v. Moreno (1973)

Massachusetts Board of Retirement v. Murgia
New York City Transit Authority v. Beazer (1979)
Rational Review with a Bite -- Alleghey Pittsburgh Coal v. Webster County (1989)
U.S. Railroad Retirement Bd. v. Fritz (1980)

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Section 7.03 Race Discrimination

(a) Strauder v. W. Virginia (1880)
(b) Plessy v. Ferguson (1896)
(c) Brown v. Board of Education
(d) Loving v. Virginia (1967)
(e) Palmore v. Sidoti (1984)
(f) Korematsu v. U.S. (1944)

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Section 7.04 Facially Neutral Classifications

(a) Yick Wo v. Hopkins (1886)
(b) Gomillion v. Lightfoot (1960)
(c) Griffin v. County School Board of Prince Edward County (1964)
(d) Palmer v. Thompson (1971)
(e) Washington v. Davis (1976)

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Section 7.05 Affirmative Action and Race Preferences

(a) Regents of University of California v. Bakke (1978)

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Section 7.06 Affirmative Action Employment Cases

(a) Fullilove v. Klutznick
(b) Wygant v. Jackson Board of Education
(c) Richmond v. J.A. Croson Co. (1989)
(d) Metro Broadcasting, Inc. v. FCC (1990)
(e) Adarand Constructors v. Pena (1995)

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Section 7.07 Affirmative Action After Croson and Adarand

(a) Gruttler v. Bollinger (2003)
(b) Gratz v. Bollinger (2003)
(c) Aftermath of Gruttler and Gratz and Texas 10% Plan
(d) Fisher v. University of Texas at Austin
(e) Parents Involved In Community Schools v. Seattle School District (2007)

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Section 7.08 Race Preferences in Electoral Districting

(a) Shaw v. Reno (1993)

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Section 7.09 Gender Discrimination

(a) Bradwell v. State (1873)
(b) Goesaert v. Cleary (1948)

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(c) Reed v. Reed (1971)

(d) Frontiero v. Richardson (1973)
(e) Craig v. Boren (1976)
(f) Mississippi University for Women v. Hogan (1982)
(g) United States v. Virginia (1996)
(h) Gedulig v. Aiello (1974)
(i) Michael M. v. Superior Court (1981), pg. 591
(j)
Rostker v. Goldberg (1981)
(k) Personnel Administrator of Mass. v. Feeney (1979)
Section 7.10 Other Classifications, including age, alienage, poverty, sexual orientation, and disability
(a) Alienage
(i) The Exception to Strict ScrutinySugarman v. Dougall (1973)
(ii) Other cases applying the Dougall exceptionFoley v. Connelie (1978)
(iii) Ambach v. Norwick
(iv)
Bernal v. Fainter
(ivv) Federal Preemption casesToll v. Moreno and Hampton v. Mow Sun Wong
(b) Disability
(i) Cleburne v. Cleburne Living Center, Inc.
(c) Age
(i) Massachusetts Board of Retirement v. Murgia
(d) Poverty

ARTICLE VIII.
PROTECTION
Section 8.01

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FUNDAMENTAL INTERESTS ANALYSIS OF EQUAL

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Introduction

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Section 8.02 Example

(a) Skinner v. Oklahoma

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Section 8.03

Fundamental Interest in Voting

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Section 8.04

No Fundamental Interest in Food, Shelter, Education

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Section 8.05 Fundamental Right to Court Access

(a) Griffin v. Illinois
(b) Douglas v. California

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Section 8.06 Education

(c) San Antonio Independent School District v. Rodriguez
(d) Plyler v. Doe

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ARTICLE IX.

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(a)
(b)
(c)

CONGRESSIONAL REMEDIAL POWER

Introduction
United States v. Guest (1966)
Griffin v. Breckenridge

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(d) Jones v. Alfred H. Mayer Co.

(e) Lassiter v. North Hampton County Election Bd., (1959)
(f) Voting Rights Act of 1965
(g) South Carolina v. Katzenbach (1966)
(h) Voting Rights Act Amendments of 1970
(i) Katzenbach v. Morgan (1966)
(j) Shift in the Courts stance on Congressional enforcement:
(k) City of Boerne v. Flores (1997)
(l) U.S. v. Morrison (2000)

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Constitutional Law II Outline Fall 2009

Article I.

Introductions

Section I.1

Modalities of Constitutional Argument

(a) Historical
1) Relying on the intentions of the framers and ratifiers of the Constitution
(b) Textual
1) Looking to the meaning of the words of the Constitution alone, as they would be
interpreted by the average contemporary man on the street
2) This is not necessarily looked at through the eyes of the framers
(c) Structural
1) Inferring rules from the relationships that the Constitution mandates among the
structures it sets up
2) Uncontroversial statement about a constitutional structures is introduced (i.e. the right
to vote for a member of Congress is provided for in the Constitution)
3) A relationship is inferred from this structure (that this right gives rise to the federal
power to protect it and is not dependant on state protection)
4) A factual assertion about the world is made (that, if unprotected, the structure of
federal representation would be at the mercy of local violence)
5) A conclusion is drawn that provides the rule in the case
(d) Doctrinal
1) Applying rules generated by precedent
(e) Ethical
1) Deriving rules from those moral commitments of the American ethos that are
reflected in the Constitution
2) Fundamental American constitutional ethos is the idea of limited government, the
presumption of which holds that all residual authority remains in the private sphere
(f) Prudential
1) Seeking to balance the costs and benefits of a particular rule

Section I.2

Dred Scott v. John Sandford (1857)

Called the worst and most unjust opinion ever rendered by the Supreme Court
(a) Background
1) Racial inequality, especially in the United States, was a product of legal institutions
2) The Constitution required three amendments to abolish slavery and deal with racial
inequality
3) After all, slavery was imbedded into the Constitution due to political compromise
(direct but veiled)
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(b) Facts
1834Scott became a slave of Dr. Emerson in Missouri and they later moved to Rock
Island, Ill.
1835They then moved to Fort Snelling, L.A., where Dr. Emerson bought Harriet
1836Scott and Harriet wed and had children
1838Family moved back to Missouri and have been there even since
(c) Issues
1) Jurisdiction---who can be a citizen of the United States?
2) What does the Constitution say about slavery?
3) Use of international sources of law in deciding United States Constitutional issues.
4) Declaring Missouri compromise unconstitutional---an issue not ripe for discussion
***Constitutional canon: do the least amount of work possible (do NOT decide a constitutional
issue until ripe)
(d) Why might the court lack jurisdiction?
1) Dred Scott, and the class of persons to which he belongs (presumably slaves or
African Americans) were not intended to be included as citizens in the
Constitution, and thus cannot claim any of the rights and privileges it provides
2) The court does not believe it is their job to decide on the justice or injustice of these
laws, but to interpret the Constitution according to its intent and meaning when it
was adopted
3) Article 1 8: Congress has the power to establish a uniform rule of naturalization
a. The court takes this to mean that no state, via an act or law, can introduce a new
member into the political community created by the Constitution
4) It is therefore necessary to determine what citizenship means
5) Historical Arguments
a. The court looks to the history of the times and climate surrounding the adoption
of the Declaration of Independence, and say that the legislation and history of the
times show that neither slaves, nor their descendants, free or note, were
acknowledged as part of the people
b. Slaves had been bought and sold as pieces of property, and thought of as unfit to
participate in things like politics
c. These attitudes had not changed when the Constitution was adopted
6) Textual Arguments2 clauses show that blacks were not thought of as citizens
a. Article IV 2Fugitive Slave Clause
i. The language does not make clear whether person is black or white; yet,
historically, person was well-known in this clause to mean black
ii. Choice to use this vague word was well thought out (part of the political
compromise since some of the framers were ashamed of this slavery
system)
iii. The Constitution goes out of the way, however, to note that slavery falls
under state law (nothing then in the Constitution that promotes slavery or
really governs it)
iv. Shows that the states pledge themselves to each other to maintain the right
of property of the master, by delivering up to him any slave who may have
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b.

c.

d.

e.

escaped from this service and can be found within their respective
territories
Article I 9importation of such personsshall not be prohibited by congress
i. This shows that congress could not prohibit the states to trade in slavery
until 1808
ii. At the start of this case, however, this portion of the Constitution is
inoperable since it was 1856
iii. Tawney sees the words as embodiment of thinking of time of formation
These two provisions show, conclusively, that neither the description of persons
therein referred to, nor their descendants, were embraced in any of the other
provisions of the Constitution; for certainly these two clauses were not intended to
confer on them or their posterity the blessings of liberty, or any of the personal
rights so carefully provided for the citizen.
These provisions make it clear that slaves were thought of as property and nothing
more. As such, Scott was not a citizen of Missouri within the meaning of the
Constitution, and not entitled to sue in its courts, so the circuit court had no
jurisdiction
Later on, 1 of the 14th Amendment overrules Tawneys ruling that Scott is not a
citizen

(e) What does the Constitution say about slavery?

1) Answered above in Taneys textual arguments about jurisdiction
(f) The Missouri Compromise (prohibited slavery north of the parallel 3630 north
latitude)
1) Tawney should have stopped after determining it lacked jurisdiction
a. They thought if they could take the issue off the political agenda then they could
save the Union
b. Led to Lincolns election
2) Taney finds that the Missouri Compromise violates the Fifth Amendmentno
person shall bedeprived ofproperty without due process of law
a. An act of Congress which deprives a citizen of the U.S. of his liberty or property,
merely because he came himself or brought his property into a particular territory
of the U.S., and who had committed no offense against the laws, could hardly be
dignified with the name of due process of law
(g) Looking towards other nations laws
1) Helpful in interpreting our Constitution
2) Counterargument
a. There is so much case law out there that one can choose only those laws that are
helpful to his or her case while ignoring all the rest
(h) McClean Dissent
1) The most general definition of a citizen is a freeman
a. Dred Scott, as a freeman, and having domicile in a state different from Sanford,
had a right to sue in federal court
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2) Saying that blacks are not agreeable members of society is a matter of taste, not law
a. Several states have admitted persons of color to vote and recognize them as
citizens.
3) He puts a lot of emphasis on an English case, "Somerset's Case," that found that
there was no legal basis for slavery in England.
4) Slavery laws are not a product of any kind of natural law but rather they are mere
municipal regulations that only cover certain territories
a. A slave is not property beyond the operation of the local law which makes him as
such
(i) Curtis Dissent
1) The question is whether any person of African descent, whose ancestors were sold as
slaves in the U.S., can be a citizen of the U.S.
a. If so, Scott has a right to sue in court.
2) Article 2 of the Constitution uses the language "a citizen of the U.S. at the time of the
adoption of the Constitution, so who were the citizens of the U.S. at the time of the
adoption of the Constitution?
a. All free, native born inhabitants of the states, though descended from African
slaves, were citizens
3) While it has been asserted that the Constitution was made exclusively by and for the
white race, this presumption is not warranted by anything in the Constitution, and is even
contradicted by its opening declaration
4) It was wrong for the Court to declare the Missouri compromise unconstitutional
a. The court suggests that the 5th Amendment allows them to do so, but slavery is
provided for only by municipal law
b. Seems more logical to believe that the framers adopted the Constitution with the
understanding that slaves will be regulated by the laws of the state which allow
the practice, and that they cease to be property if their owner takes them into a
jurisdiction with no such rules
(j) Review of Dred Scott
1) The written opinion was an attempt to prevent the Civil War
2) Citizenship could extend to a person under article IV 2 who is born and/or naturalized
in the United States, yet the Court overturned this definition by deciding that only a
citizen of a state could be a citizen of the United States
3) Dissenters rejected any Constitutional basis of slavery both textually and historically
believing instead that the status of slavery came from municipal law and NOT federal law
4) The 14th Amendment directly overturns the holding that blacks cannot be citizens of the
U.S.
5) The holding about the Missouri Compromise was likely unnecessary
a. Some dabbling in substantive due process
b. This sort of due process can have terrible consequences
c. Alleged activism by judges
6) The foreign law problem is not a new one, nor has it been resolved

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Section I.3 The Bill of Rights and the Post-Civil War Amendments:
Fundamental Rights and the Incorporation Dispute
(a) Individual Rights Before the Civil War
1) The Bill of Rights
a. Originally only guaranteed individual liberties against the federal government
b. Proposed as part of a political compromise designed to appease anti-federalists
who did not trust the enumeration of powers in the Constitution to serve as a
sufficient check on the new national authority
c. Nothing in the first 8 amendments expressly constrains the states, and the 10th
amendment expressly reiterates that powers not delegated to the U.S. are reserved
to the states
d. Note that Article 1 10 also imposed a handful of express prohibitions on state
action
2) The Reconstruction Amendments
a. The 13th amendment outlawed slavery in the US.
i. For the first time, amendments added to the original Constitution express
new restraints upon the states.
b. The 14th amendment, and the others, did not specifically apply all of the
provisions of the bill of rights to the states
i. The due process clause was later read to make it applicable to state
criminal proceedings, among other things
ii. The due process clause of the 14th amendment became the vehicle for the
nationalization of individual rights
iii. The privileges and immunities clause seems like it could have served the
same purpose, so why didn't it? [Slaughter House cases explain it more
fully]
c. The 15th amendment ensured voting rights could not be limited based on race
(b) Barron v. Mayor and City Council of Baltimore (1833)
1) The Bill of Rights restricts only the national government, not the states
2) Facts
a. City diverted the flow of water in the city for construction work destroying
Barrons wharf
3) Takings clause argument
a. Barrons property was destroyed and taken by the city so he deserves just
compensation from the state government for use of his property under the 5th
amendment
4) Opinion
a. Historical purpose of this clause was directed towards the federal government
only
b. Textual argumentArticle 1 9 and 10
i. 9 enumerates the limitations of power on the general government, while
10 enumerates those which were to operate on the state legislatures
ii. If it really was the intention of the framers for this clause to apply both to
the federal and state governments, then there would be only one section
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instead of two separate sections of restrictions for the state governments

and the federal government
c. Counterarguments
i. Not all of the amendments are as clear cut as Marshall seems to suggest
ii. The 5th amendment begins with No person shall, and never says that
only the federal government is prohibited from taking without just
compensation
iii. The 1st amendment begins Congress shall make no law, so why the
specificity here if they are all for only the federal government?
5) Hypothetical
a. In 1833, the Texas legislature passes a law prohibiting speaking out against
Baptists
b. Under the 1833 Supreme Court, there would be no violation of the 1st amendment
since it would be a state issue and not a federal issue
c. Terefore, one would have to sue under the Texas Constitution since the Bill of
Rights limited the federal government only
6) The framers intention
a. Individuals rights should be protected by the states and not the federal
government
b. Dred Scott shows how crazy this idea
i. In that case, there was a group of citizens who were NOT protected by
their local governments

Section I.4

The Post-Civil War Amendments

(a) Slaughter House Cases

1) Majority rejected the notion that the 13th, 14th, and 15th amendments radically changed
the relationship between the federal and state governments
2) Facts
a. L.A. law chartered a corporation to maintain slaughterhouses
b. This corporation was the only one within the state (i.e. the state created a
monopoly and gave it to the corporation)
c. Therefore, butchers either had to work for the corporation in its slaughterhouses
or, if independent, had to do their work in the corporations slaughterhouses at a
fixed fee set by the state
3) Butchers argument
a. Under the 13th and 14th amendments:
i. Equal protection of the laws (a state cannot arbitrarily decide who can
work where)
ii. Stripped of our property without due process of law
iii. There has been an abridgment of our privileges and immunities
4) Opinion
a. Equal protection of the laws
i. Textual reading of the 13th AmendmentNeither slavery nor involuntary
servitudeshall exist within the United States
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ii. Textual reading of the 14th AmendmentNo state shalldeny to any

person within its jurisdiction the equal protection of the laws
iii. Historical argumentThe 13th, 14th, and 15th amendments were adopted
to ensure the freedom of the slave race, the security and firm
establishment of that freedom, and protection for these new freemen and
against their oppression
b. Due process
i. Textual reading of the 14th AmendmentNor shall any state deprive any
person of life, liberty, or property, without due process of law
ii. Rejected this argument finding the law to be substantive with a perfectly
legitimate reason to exist (a.k.a. legitimate exercise the state police powers
to protect public health)
c. Privileges and Immunities
i. Textual reading of the 14th AmendmentNo State shall abridge the
privileges or immunities of citizens of the United States
1. Significant that the sentence did not end with the phrase citizens
of the state
2. Only the privileges and immunities of the citizens of the U.S. are
to be protected here
ii. Textual reading of article IV 2The Citizens of each State shall be
entitled to all Privileges and Immunities of Citizens in the several States
1. The purpose of the clause was to establish that the states, as they
grant or establish rights over their citizens, must use the same
measures over citizens of other states who happen to be in that
jurisdiction
2. This is supposed to be a golden rule of you cannot privilege your
own, so as long the butchers from other states are treated the same
when in New Orleans, you are fine
iii. Overturns Dred Scott by adopting a new definition of U.S. citizen
1. All persons born or naturalized in the United States and subject to
the jurisdictions thereof
2. Imbedded within is the definition of a State citizen, someone who
is U.S. citizen + residence in any state
3. This definition has stripped power from the states in defining who
is a citizen
d. Was it the purpose then of the 14th amendment to transfer the security and
protection of all the civil rights from the states to the federal government?
i. These new amendments do not change the relationship between the federal
and state governments
ii. Such a construction would act as a perpetual censor upon all state
legislation
iii. Such a change would be so radical, so extreme, and such a departure of
past precedent that no such results could have been intended by Congress,
nor by the States which ratified the amendment(basically, he rejects that
power is being handed over to the federal government) [Justice Miller is
wrong because it did change the balance of power; why else would these
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amendments be passed? After all, the states proved that they could not be
trusted after the Civil War]
5) Holding
a. The slaughterhouse monopoly violated neither the due process clause nor the
equal protection clause
6) Dissent
a. The question in this case is nothing less than asking whether the recent
amendments protect U.S. citizens against the deprivation of their common rights
by State legislation
b. If this clause really only refers to privileges and immunities granted by the U.S., it
was an idle enactment which accomplished nothing
c. It was the intention of the people of the U.S. to adopt the 14th amendment to
provide protection against any law of the states which violates the fundamental
rights of the citizen
d. The idea of privileges and immunities was in the Constitution before this
amendment so this interpretation adds nothing new to the 14th amendment
7) Counterarguments
a. The privileges and immunities clause in both article IV 2 and the 14th
amendment could be read the same way
b. Further, the 14th Amendment clause could be read more narrowly, but it would be
pointless to create an amendment to protect such a small sect of people (i.e.
United States citizens on navigable waters)

Article II. Incorporation

1) Senator Bingham, who wrote the 14th Amendment, intended that it incorporate all the
Bill of Rights to the states
a. Just because that is what they key drafter wanted, however, does not mean that is
what the states intended when they ratified the Amendment
2) Barron caused people to look to the due process clause of the 14th Amendment since
application of the privileges or immunities clause of the 14th Amendment is no longer
possible
a. Due process of law is not an entirely new concept since the court had already
discussed due process under the 5th amendment
b. Moreover, Barron is still good law in the sense that it has never been explicitly
overruled, so the Bill of Rights does not directly apply to the states still
3) The content of the law, that you have 1st amendment protection, etc., that your state
government cannot abridge, is substantive stuff and not procedural
a. So this is substantive due process, the substance of your liberty
4) Incorporation Doctrine
a. Applies the list of rights in the Bill of Rights against the states
b. Two types of incorporation:
i. Selective Incorporation
ii. Total Incorporation

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1. The majority of the court has never accepted the view that the 14th
amendment due process clause incorporated all the provisions of
the Bill of Rights
c. Ways to talk about incorporation
i. The right way
1. The searches conducted by the police violated the 4th Amendment
of the U.S. Constitution as applied to the states by the due process
clause of the 14th Amendment
ii. The wrong way
1. The state has violated the 4th Amendment
iii. ***Must do this as a check to make sure the Bill of Right has really been
incorporated as against the state***

Section II.1 Palko v. Connecticut (1937)

(a)
1)
2)
3)

Facts
Palko was indicted for 1st degree murder but the jury convicted him of 2d degree murder
This 2d degree murder conviction was set aside by the highest state court
On retrial, Palko was convicted of 1st degree murder

(b) Palkos argument

1) Double jeopardy
a. The federal government would not be able to convict me twice for the same crime
so neither should the states
b. The state has violated the 5th amendment as applied to the states through the due
process clause of the 14th amendment
(c) Cardozos Opinion
1) Selective incorporation
a. Only the rights which were considered essential to a fundamental scheme of
ordered liberty and justice could be incorporated
2) Philosophical, abstract, and subjective questions the court asked themselves
a. Is this right apart of the very essence of the scheme of ordered liberty?
b. Is the principle of justice so rooted in the conscience of our people as to be ranked
as fundamental?
c. Does the concept of justice even exist if this right is sacrificed?
3) Cardozo resorted to ad hominem attacks in answering these questions and determined
that no one could say that a fair and enlightened system of justice would be impossible
without double jeopardy

Section II.2 Adamson v. California (1947)

(a) Facts
1) Murderer who refused to testify
2) The prosecution used this right to silence against him to ensure a conviction

15

(b) Opinion
1) In a federal trial, the prosecutions comment would violate the 5th Amendments selfincrimination privilege
2) However, under Palko and the idea of selective incorporation, not all Bill of Rights
guarantees are protected under the 14th Amendment
(c) Concurrence
1) Not everything is necessary for fundamental fairness and for a scheme of ordered liberty
2) Further, leaves the states with room for coming up with more creative and effective
solutions
3) Moreover, a certain amount of trust in judges is necessary to keep operations running
smoothly
a. Judges do write clearly thought out opinions showing that we are attempting to
reason out and solve these difficult questions, but you must have a little trust in us
too
(d) Blacks Dissent
1) Total incorporationist
2) The courts view seems to suggest that the Constitution allows the court to decide at any
time what civilized decency and fundamental liberty and justice are
a. Selective incorporation puts in the hands of the judges the right to both give and
revoke privileges
i. Is this a real danger, however? Could things, once incorporated, no longer
be revoked?
b. Total incorporation would curb excessive judicial discretion by relying on the
allegedly clearer standard of the Bill of Rights
3) History further suggests that those who drafted and adopted the 14th amendment believed
that they were incorporating the Bill of Rights into it
a. Look at the No state shall language
(e) Frankfurters Concurrence
1) In response to Black, incorporating all of the Bill of Rights into the 14th amendment
would limit state autonomy in the enforcement of criminal law
a. Structural argument (i.e. federalism is the essence of state autonomy so the states
should be allowed to experiment because they are closer to the people)

Section II.3 Duncan v. Louisiana (1968)

(a) Facts
1) Duncan was convicted of battery
a. A misdemeanor with a possibility of two years imprisonment
2) Not given a trial by jury because only allowed in the state of Louisiana when charged
with a capital punishment or when imprisonment at hard labor might be imposed
3) Racially charged case
a. Four white men talking to two black boys at the side of the road in the deep south
so Duncan pulled over to make sure everything was okay, etc.
16

(b) Opinion
1) Incorporates the right to a trial by jury
a. Points out that not all Bill of Rights rights are incorporated through the 14th
amendment
b. Trial by jury in criminal cases is fundamental to the American scheme of justice
c. Deep commitment of the Nation to the right of a jury trial in serious criminal
cases as a defense against arbitrary law enforcement
d. The Court is talking now about applied philosophy, filtered through the American
experience [no longer the high in the sky philosophy of Palko]
(c) Black/Douglas Concurrence
1) Harlan tried to argue that the wording of the 14th amendment would have been a weird
way to say that the first eight amendments are now applicable to the state governments
but Black argued that the wording was perfectly adequate
2) The fundamental fairness test is just too arbitrary, one that is on par with the shocking
and conscience test and depends entirely on the particular judges idea of ethics and
morals
3) Black, a total incorporationist, may have lost many battles but seems to have finally won
the war
a. This maybe not how I would have gotten here, but have just about gotten
everything I wanted in the end
(d) Harlan Dissent
1) Points to the historical background of the 14th amendment to argue that it was not meant
to incorporate the Bill of Rights
2) The Constitution only requires due process of law and fundamental fairness, so the only
inquiry here should be whether or not the state trial process was a fair one
a. There has been no showing that a trial by jury is the only fair means of resolving
an issue of fact
3) Frustrated with fellow selective incorporationists for allowing this to happen

Section II.4 Incorporation since Duncan

1) As a result of selective incorporation, all of the criminal process guarantees of the Bill of
Rights have now been held applicable to the states, with the exception of:
a. The grand jury indictment provision of the 5th amendment
b. The excessive fines provision of the 8th amendment
2) The Scope of Incorporated Rights
a. Is every detail of the Bill of Rights applicable "jot for jot" to the states?
i. Under the Cardozo/Frankfurter approach, the detailed interpretation of the
relevant Bill of Rights provisions were not necessarily applicable to the
states
ii. Incorporation after Mapp v. Ohio meant not merely incorporating the
"core" of the Bill of Rights, but applying to the states every detail of the
contours of the guarantee
b. Williams v. FL
i. A 6-man jury was found to be constitutionally sufficient, 12 persons is not
constitutionally necessary
17

3) The Right to Bear Arms

a. In Heller v. D.C., for the first time ever, the court enforced the 2nd amendment as
a matter of individual right unconnected with service in a militia
b. The court invalidated a rule that effectively banned the possession of handguns
c. However, D.C. is governed by the federal government, so the court did not need
to reach the incorporation issue
d. Scalia makes a textual and historical argument to promote his view that the right
applies to individuals and not just those in a militia
i. He examines the meaning of the phrase to keep and bear arms, which
meant weapons which were not necessarily designed for military use, nor
to be employed in a military capacity

Article III. State Action and Congressional Power to Enforce Civil Rights:
The Reconstruction Amendments
Section III.1 The Civil Rights Statutes of the Reconstruction Era
1) The 14th and 15th amendments, like most limits in the Constitution, are addressed towards
government action, not private conduct. However, as governmental involvement in the
private sector has become more pervasive, traditional notions as to what activity
constitutes state action have become blurred
2) The 1866 Act
a. This act sought to end the restrictions popping up through the various black
codes being enacted in several states
b. Conveyed certain rights, like the right to contract and own property, without
regard to a person's color, race, etc.
c. The modern counterpart is codified as 42 U.S.C. 1981 and 1982, and the
criminal enforcement provision is found in 18 U.S.C. 242
d. The 14th amendment was enacted in order to ensure the constitutionality of this
law
3) The 1870 Act
a. This act deals primarily with state denials of voting rights and provides criminal
sanctions for private conspiracies to violate federal rights
b. Currently found as 18 U.S.C. 241
4) The 1871 and 1875 Acts
a. The Ku Klux Klan Act
b. Established civil liabilities and criminal liabilities.
c. 42 U.S.C. 1983 creates a cause of action for deprivations, under color of state
law, of rights secured by the Constitution and federal laws
d. 42 U.S.C. 1985(3) provides for civil actions for certain private anti-civil rights
conspiracies
e. The 1875 act was in large part held unconstitutional by the 1883 Civil Rights
Cases
5) Civil Rights Laws that survive from Reconstruction
a. Criminal Provisions
i. 18 U.S.C. 241: Conspiracy Against Rights
18

ii. 18 U.S.C. 242: Deprivation of Rights under color of law

b. Civil Provisions
i. 42 U.S.C. 1981: Equal Rights Under the Law
ii. 42 U.S.C. 1982: Property Rights of Citizens
iii. 42 U.S.C. 1983: Civil Action for Deprivation of Rights
iv. 42 U.S.C. 1985(3): Conspiracy to Interfere with Civil Rights
6) There was even a 2nd wave of Civil Rights Legislation during the 1960s
a. Civil Rights Act of 1957
b. Civil Rights Act of 1960
c. Civil Rights Act of 1964

Section III.2 The Requirement of State Action

(a) State Action Doctrine
1) Is there anything in the federal constitution that forbids the state from doing this?
2) Is there anything in the federal constitution that permits the federal government from
doing this?
3) Is there anything in the federal constitution that forbids the federal government from
doing this?
4) When does the federal constitution, however, prohibit private action?
***The 14th Amendment does not apply to private actors, only actions taken by the state,
like if the state enforces the private individuals actions***
(b) Civil Rights Cases (1883)
1) Facts
a. The Civil Rights Act of 1875
i. Private individuals cannot limit the rights of other individuals by
prohibiting them from the enjoyment of inns, theaters, public
conveyances, and other places of public amusement
2) Opinion
a. The court first looked to the 14th Amendment
i. No state shall are words of prohibition
ii. Under 5 then, congress must have meant to provide modes of
relief against state action
iii. The 14th amendment then gives Congress the power to enact laws
to promote certain rights
1. It may adopt legislation to correct the effects of state
action, state legislation, etc., that violate the amendment
iv. However, this law professes only to punish acts by individuals, not
to correct any wrongs done by state
1. It oversteps its bounds and interferes with the domain of
local jurisprudence
v. Therefore, this law cannot be sustained by any of legislative power
made to the Congress by the 14th amendment
b. Majoritys Belief in Civil Rights
i. Narrow definition provided
19

1. Wrongful act of a citizen, unsupported by any authority, is

simply a private wrong; if it is not somehow sanctioned by
the state then the injured partys rights remain in full force
ii. So, must have a state action behind an individuals action to have a
violation of civil rights
iii. Reasons supporting this:
1. Federalism
a. Not permissible for the Federal Government to
reach into the state and control the private citizen
2. Individual liberty
a. Civil rights speak to state action taking away an
individuals rights, whereas private citizens do not
have the power to strip other citizens of their rights
c. The court next looked to the 13th Amendment
i. Simply a declaration that slavery or involuntary servitude shall not
exist in the United States
ii. The argument is that denying equal accommodation and privileges
is a species of servitude under the amendment, and that Congress
has the power to pass all laws necessary to abolish all badges and
incidents of slavery
iii. The majority believes that private action rejecting accommodation,
etc., is not a species of servitude under the meaning of this
amendment
1. Allowing the slavery argument to apply to every act of
discrimination is too much
2. It is a sort of slippery slope option
a. Right now it is theaters, but next it could be
restaurants, private, homes, etc.
b. Where would it end?
d. Harlans Dissent
i. He makes more of a policy argument asking, was it the purpose of
the 13th amendment simply to destroy the institution of slavery,
and then remit the race, theretofore held in bondage, to the several
states for such protection, in their civil rights, as those states in
their discretion, might choose to provide?
ii. Freedom from slavery involves protection from all forms of
discrimination, thus Congress should be able to adopt legislation
which protects them against deprivation of rights because of their
race
iii. With respect to the rights of African Americans regarding public
places, etc., Harlan points out that railroads are governmental
agencies, inns are public places which cannot discriminate against
a person needing a room due to color, places of public amusement
are established and maintained under license of the government

20

1. Racial discrimination by these places is a badge of

servitude which Congress may prevent under its power to
enforce the 13th amendment
iv. He also says that the 14th amendment should allow Congress to
pass this law
1. He points to the affirming nature of the first clause of the
first section
2. They have been given the right to be free from racial
discrimination and Congress can enforce that right
(c) The Scope of Limits of State Action after the Civil Rights Cases
1) The Civil Rights Cases require state action for 2 reasons:
a. Federalism, or the importance of respecting state prerogatives to govern their own
citizens
b. Liberty, or the importance of a sphere of individual liberty to act free of
constitutional norms
(d) Marsh v. Alabama (1946)
1) Facts
a. Chickasaw, Alabama, was a privately owned town of the Gulf
Shipbuilding Corporation
b. Marsh was a Jehovahs Witness who was convicted as a trespasser for
walking door to door and distributing flyers
2) Issue
a. Can a private entitys performance of a traditionally public function
make the 14th amendment restraints applicable?
3) Opinion
a. Public Function Test
i. Are the facilities built and primarily operated to benefit the public?
b. Even though a privately owned town, its operations were essentially a
public function subject to state regulation
i. Even though the company held title to the town, this was not
enough to justify the infringement on liberty
ii. The facilities were built and operated primarily to benefit the
public, and their operation was still essentially a public function, so
it was subject to state regulation
4) But what are the limits? How intertwined with the public function must the
privately owned entity be?
NOTES: **when a private enetitytakes over a public function then there is an
exceptin. She can sue the state. Whoever injured you must have taken a public
function. operating a town is a public function,
(e) Shelley v. Kraemer (1948)
1) Facts
a. Wiling African-American buyers of the house and willing white sellers of
the house
21

2)
3)

4)

5)
6)

b. The town where the house was located had a restrictive covenant among
the property owners to exclude persons of designated races
c. The covenant is pure private action since not passed as a city ordinance,
etc.
d. The state action occurred when the courts of the state enforced the
covenants
Issue
a. Whether the equal protection clause inhibits judicial enforcement by state
courts of restrictive covenants based on race?
Opinion
a. "It cannot be doubted that among the civil rights intended to be protected
from discriminatory state action by the 14th amendment are the rights to
acquire, enjoy, own, and dispose of property"
b. Action inhibited by the 14th amendment is only action of the states
i. The amendment provides no shield against private conduct
c. While the restrictive covenants themselves are not unconstitutional and do
not involve state action, the purposes of the agreements were secured only
by judicial enforcement by state courts of the restrictive terms of the
agreements
Holding
a. But for the active intervention of the courts, the African-Americans
would have been free to occupy the properties without restraint
b. Reversed
Narrowest Reading of Shelley
a. Only if intervention by the courts would have blocked the sale of the
house would there have been state action
Broadest Reading of Shelley
a. Any action by the state

(f) Barrows v. Jackson (1953)

1) You may have state action when someone sues for equitable relief, but this case
answered in the negative when it comes to damages
a. There is no state action when someone sues for damages
b. After all, one allows for injunction while the other does not
2) Follows the narrower reading of civil rights
a. One does not have the right to the property when there is an injunction, yet
the latter suit allows for one to keep his house even if sued for damages
(g) Burton v. Wilmington Parking Authority
Significant State Involvement
1) Facts
a. Eagle Coffee Shop was located within an off-street, state owned parking
building
b. The shop denied service to an African-American
2) Opinion
22

a. Only by sifting the facts and weighing circumstances can the nonobvious involvement of the state in private conduct be attributed its true
significance
i. The Supreme Court sifted the facts and then let the parties know
whether or not state action occurred
b. Fact sifting to determine if people would know that the parking building
was state owned:
i. Official signs indicated the public character of the building and on
the roof of the building the state and national flags were flown on a
masthead
ii. Furthermore, the coffee shop was a tenant of the state (i.e. given a
lease within the garage)
1. The whole purpose of leasing out space for things like the
coffee shop had been so the state could help finance the
garage project
iii. On the other hand, the entrance to the coffee shop was located
outside the parking building so people had to leave the garage to
get to the entrance
c. The state has insinuated itself into a position of interdependence with
Eagle so it must be recognized as a joint participant in the challenged
activity
3) Stewart Concurred on Different Grounds
(h) Moose Lodge No. 107 v. Irvis (1972)
1) Facts
a. Private Club refused service in both its dining room and bar area to a
members African-American guest
b. The club receives a liquor license from the state
2) Opinion
a. Rehnquist sifted the facts and weighed the circumstances
b. In order to obtain liquor, you must buy it from a licensed shop, a licensed
bar, or the state itself, so should the state then in granting a liquor license
read the applicants bylaws and force them to comply with constitutional
principles?
i. The state, after granting a license, can require the applicant to
make changes and can further do surprise inspections
ii. The state, in a sense, has a monopoly over liquor licenses
iii. However, the operation of the state liquor regulation scheme did
not sufficiently implicate the state in the discriminatory guest
policy of Moose Lodge so as to make the latter state action
iv. The state furnishes services, like power, water, police and fire
protection, etc., so holding that a liquor license implicates the state
would render impotent the differences between private and state
conduct
1. Rehnquists Slippery Slope Argument
2. Where does it end?
23

c. The state must have significantly involved itself with invidious

discriminations
i. There must be a symbiotic relationship
(i) Reitman v. Mulkey (1967)
1) Facts
a. Proposition 14 repeals Californias fair housing laws, allowing private
individuals to discriminate based on race
b. Not only that, it writes into the California Constitution a law prohibiting
the legislature from passing such laws
2) Opinion
a. Analogous to Stewarts concurrence in Burton v. Wilmington Parking
Authoritylaw authorizing private parties to discriminate
b. Deliberate intention by the state to allow discrimination
i. But how do you prove intent?
1. Mere repeal of an anti-discrimination law did not establish
unconstitutional state action
2. BUT the intent of proposition 14 is to authorize private
racial discrimination in the housing marketand to create a
constitutional right to discriminate
c. While the discrimination is performed by private actors, it is occurring in a
realm where state actors are authorizing the discrimination
i. State passes facially neutral laws that enables lots and lots
discrimination
ii. Is this a slippery criterion? Is the state action found too easily?
d. Dissent
i. This is no different than not passing it in the first place
(j) Jackson v. Metropolitan Edison Co. (1974)
1) Facts
a. A utility company cut off Jacksons electricity for not paying her bills
2) Issue
a. Whether there is a sufficiently close nexus between the state and the
challenged action of the regulated entity so that the action of the latter may
be fairly treated as that of the state itself?
3) Jacksons Argument:
a. State action is present because of the monopoly status allegedly conferred
upon Metropolitan
b. The termination is state action because the state has specifically authorized
and approved the termination practice
4) Opinion
a. Doubted that the state ever expressly granted the utility company a
monopoly
i. Even if such a monopoly were conferred, such a fact is not
determinative in considering whether the termination of service
was state action
b. Further, the utility company is not exclusively controlled by the state
24

i. The provision authorizing termination had been in Metropolitans

filed tariffs for many years, although it was never part of a hearing
or other scrutiny by the PUC
ii. Approval by a state utility commission of such a request from a
regulated utility, where the commission has not put its own weight
on the side of the proposed practice by ordering, does not
transmute a practice initiated by the utility and approved by the
commission into state action
5) The court fails to see the symbiotic relationship presented in Burton
6) Marshalls Dissent
a. The court has repeatedly relied on several factors that can clearly be seen
here:
i. A state-sanctioned monopoly
ii. An extensive pattern for cooperation between the private entity and
the state
iii. A service uniquely public in nature
b. Where the state has so thoroughly initiated itself into the operations of the
enterprise, it should not be fatal if the state has not affirmatively
sanctioned the particular practice in question
(k) DeShaney v. Winnebago County Social Services Department (1989)
*Inaction is not action
1) A classic example of state inactionat one point, the state just lets go
2) Facts
a. Father abused child
b. Social services noted these injuries but never moved the child
c. The father eventually beat his son so severally that he became
permanently and profoundly retarded
3) Plaintiffs Argument
a. Violated due process by depriving the boy of his liberty by leaving him
with his father
4) Opinion
a. Sounds more like a tort issue
i. Plaintiff is arguing that a special relationship existed between the
child and the state creating a duty of care that was later violated
ii. The harm, however, was caused by the father
iii. The most the state did was stand by and do nothing
b. As a general matter, a state's failure to protect an individual against private
violence simply does not constitute a violation of the Due Process Clause
i. There are 2 narrow situations where the government has a duty to
provide protection from privately inflicted harms:
1. Where the government has limited the ability of a person to
protect himself, such as when there is an incarceration or
institutionalization
2. Where there is a special relationship between the
government and the injured individual, such as when the
25

government took an affirmative step to place the person in

danger. This affirmative duty cannot arise from the states
knowledge of the predicament, but must come from a
limitation imposed on his freedom to act on his own behalf
c. This case reflects the idea that the Constitution provides negative liberties,
rights that restrain the government, and not a creator of affirmative rights
to government services
d. Another argument for a symbiotic relationship:
i. The state created social services which is the only reason this
agency can legally remove children from abusive situations
e. The only other way the boy could be removed is through procedural due
process channels
5) Rehnquists Response
a. Due process only protects individuals against deprivation of the state, not
against other private individuals, and it surely does not impose an
affirmative duty on the state to protect a private individual from anothers
private action
b. Slippery slope argument:
i. Under it everything becomes state action because it places on
affirmative duty on the state to protect a private individual from
anothers private action
6) Counterargument
a. But there was some action by the state in creating the agency which in turn
looked into the abuse claims but later failed to take action by removing the
child
7) Response
a. If the court declares this to be state action, then no state will be able to
afford to have child protective services (fear of liability)
8) Blackmuns Dissent
a. The state had taken Joshua away and then replaced him with his father,
placing him in imminent danger
i. Inaction can be every bit as abusive of power as action, and
oppression can result when a state undertakes a vital duty and then
ignores it
9) Scalias Argument
a. No deprivation because he was in the home when the abuse occurred
b. All the state has done is stood by

Article IV. Substantive Due Process

Section IV.1 Introduction
1) Because the Slaughterhouse cases narrowed or discounted the other clauses in the
14th amendment, individuals now have to turn to the notion of substance in the
amendment to declare state action unconstitutional
26

2) Substantive due process takes the legislative process out of the law by removing it
from the democratic process and the law is then invalidated on the constitutional
grounds for violating liberty (i.e. the law violates a preexisting fundamental right)

Section IV.2 Economic Liberties

(a) Lochner Era
1) Over 200 state laws were held invalid by the Supreme Court
2) This was during the era of industrialization so many of the laws dealt with
minimum wage, working conditions, etc.
3) Judges had a lot of discretion and exercised this by giving economic liberties full
protection
4) By the end, the Supreme Court was seen as imposing its own morals and
philosophical ideals on the world as a whole
5) The latter Supreme Court has reacted to this by no longer bringing in its own
ideals
a. Dont want to be accused of Lochnerism
(b) Fourteenth Amendment Due Process Clause
1) Substantive approach
a. What is liberty?
i. At common law, liberty is merely freedom from physical restraint
ii. In the Constitution, the way the first 8 amendments phrase rights
make them sound like preexisting rights and the ninth amendment
says there are other rights out there not explicitly mentioned in the
Constitution
1. The Constitution, however, does not talk about the state and
Federal governments relation to those rights
iii. The framers of the Constitution believed that some things are God
created and not government created
1. Natural law
2. The Constitution merely reaffirms those preexisting
fundamental rights that are entitled to protection whether or
not they are explicitly stated in a basic document
3. The Constitution is just a confirmation of fundamental
rights, not a source of them
iv. To some, liberty is whatever the legislature says it is
v. Another definition includes the right of the citizen to be free in the
enjoyment of all his faculties
(c) Calder v. Bull (1798)
1) Facts
a. A law set aside the decisions of a probate court that had denied inheritance to
those designated as beneficiaries under a will
b. After the new law was adopted, the probate court changed its ruling and allowed
the inheritance
2) Chases Opinion
27

a. Some of the early Justices embraced the idea of natural law

i. The court can neither violate provisions of the constitution, nor of natural
law
ii. The constitution describes the right of the people which seems to
confirm the right was already there, prior to the constitution being written
and wasnt created by the constitution
3) Iredells Dissent
a. Challenged this natural law approach
i. If a legislature passes a law within their constitutional powers, the court
cannot declare it to be void merely because it is, in their opinion, contrary
to natural justice.
ii. The ideas of natural justice are regulated by no fixed standard: the ablest
and purest men have differed upon the subject; and all that the Court could
properly say, in such an event, would be, that the Legislature (possessed of
an equal right of opinion) had passed an act which, in the opinion of the
judges, was inconsistent with the abstract principles of natural justice.
(d) Munn v. Illinois (1877)
1) Upheld a state law that set maximum rates for grain-storage warehouses
2) The court indicated, however, that under some circumstances, regulation of business
would be found to violate due process
a. The central question was whether the private property is affected with a public
interest, because when one devotes his property to a use in which the public has
an interest, he, in effect, grants to the public an interest in that use, and must
submit to be controlled by the public for the common good.
(e) Railroad Commission Cases (1886)
1) The court sustained the railroads rates regulation, but once again left room for further
judicial control
a. This power to regulate is not a power to destroy. Under pretense of regulating
fares and freights, the state cannot require a railroad corporation to carry persons
or property without reward; neither can it do that which in law amounts to a
taking of private property for public use without just compensation, etc.
(f) Mugler v. Kansas (1887)
1) Sustained a law prohibiting intoxicating beverages,
2) The court announced, however, that it was prepared to examine the substantive
reasonableness of state legislation
a. Not every statute enacted ostensibly for the promotion of the public morals, the
public health, or the public safety would be accepted as a legitimate exertion of
the police powers of the state
b. The courts were obligated to look at the substance of things
c. Accordingly, if a purported exercise of the police power has no real of
substantial relation to those objects, or is a palpable invasion of rights secured by
the fundamental law, it is the duty of the courts to so adjudge

28

(g) Allgeyer v. Louisiana (1897)

1) The first time the Supreme Court invalidated a state law on substantive due
process grounds
2) Facts
a. A Louisiana law prohibited obtaining insurance on Louisiana property
from any marine insurance company in which has not complied in all
respects with Louisiana law
b. Allgeyer had mailed a letter advising an insurance company in New York
of the shipment of goods, in accordance with a marine policy
i. The company was not licensed in LA
3) Holding
a. The statute is in violation of the 14th amendment in that it deprives the
defendants of their liberty without due process of law
4) Opinion
a. The liberty mentioned in that amendment means not only the right of the
citizen to be free from the mere physical restraint of his person, as by
incarceration, but the term is deemed to embrace the right of the citizen to
be free in the enjoyment of all his faculties; to be free to use them in all
lawful ways; to live and work where he will; to earn his livelihood by any
lawful calling; to pursue any livelihood or avocation, and for that purpose
to enter into all contracts which may be proper, necessary, and essential to
his carrying out to a successful conclusion the purposes above mentioned
(h) Lochner v. New York (1905)
1) Facts
a. New York passed a law prohibiting the employment of bakery employees
for more than ten hours a day
b. The New York legislature defended the law as a legitimate exercise of its
state police power:
i. Regulating the health, safety, morals, or welfare of the public
ii. Here, the state claimed that the law was passed for health reasons
c. It is said that the real reason the law was passed was because lobbyists
bribed the legislature to get rid of the smaller bakery competition around
town
2) Opinion
a. Riddled in Laissez-faire Theory
b. The general right to make a contract in relation to ones business is part of
the liberty of the individual protected by the 14th amendment
c. Doctrinal argument
i. Allgeyer declared the right to contract a fundamental right
1. A doctrinal counterargument, however, is Holden which
upheld the limitation on miners working hours
d. While it is true that a state has police powers relating to safety, health,
morals, and general welfare for the public, there is a limit to the valid
exercise of police powers
29

i. We must ask: Is this a fair, reasonable and appropriate exercise of

the police power, or is it an unreasonable, unnecessary and
arbitrary interference with the right of the individual to his
personal liberty or to enter into those contracts in relation to labor
which may seem to him appropriate or necessary for the support of
himself and his family?
e. Here, the court does not really buy that the state was protecting its
citizens health:
i. Limiting bakers working hours does not make cleaner bread
ii. Bakers are independent adults who have the right to contract for
the amount of hours that they want to work
f. Direct Relations Test created
i. The mere assertion that the subject of a law relates to health,
safety, etc., is not enough
ii. The act must have a more direct relation, as a means to an end, and
the end itself must be appropriate and legitimate before an act
which interferes with ones right to freedom of contract will be
held invalid
iii. Hard to meet
3) The court declares the right to contract to be the ultimate fundamental right
a. Laissez-faire theory of business that drives the court to this
conclusionYou have the fundamental right to the surplus value of your
labor
i. Imagine however if the court had applied a different value system,
like MarxAllowing the owner to run amuck would keep bakers
from getting any money in direct proportion to the market
demand
4) Harlans Dissent
a. The court should inquire whether the means devised by the state are
germane to an end which may be lawfully accomplished and have a real or
substantial relation to, in this case, the protection of the health of bakery
workers
i. In the case at hand, it is impossible to say that the law lacks any
real and substantial relation to the means employed by the state
and the ends sought to be accomplished
ii. He goes on to cite several authors who have detailed the hazards
and hardships encountered by bakery workers
b. This decision will seriously cripple the power of the state to care for the
lives, well-being, and health of their citizens
i. He is arguing that the courts need to give deference to legislative
choices
5) Holmes Dissent
a. This case was decided upon an economic theory, and this is an improper
basis for the court to use when it comes to deciding a case
(i) The Meaning and Implications of Lochner
1) The Approach:
30

a. The Supreme Court can identify a fundamental right by passing it through

the liberty prong of the 14th amendment
b. The court then identifies the state action
c. Thereafter, the court considers if the police power, the reason behind the
state action, is legitimate and appropriate
d. Lastly, the court identifies the state action (means) to determine if it has
direct relations to the police power (end)
2) Problems with this approach:
a. Could have chosen the wrong fundamental right
b. Further, the ends must be legitimate
c. Moreover, there is too much demand for a fit between the means and the
ends
d. Does it give the court too much power to decide what means/ends are
legitimate?
3) Several theories on the fault of Lochner:
a. Substantive due process is just an illegitimate concept
i. The court should not impose its own policy opinion over that of the
legislature, and then try and pretend it comes from the constitution
ii. If you ascribe to this view, you are going to have a really tough
time, this idea of substantive due rights is used to uphold lots of
rights
iii. The most extreme
b. Substantive due process is a legit concept, but the court erred by extending
it to cover concepts of economic legislation
c. Substantive due process is a legitimate concept, and can be used to cover
economic rights, but the court misapplied it because its test of the
legislative ends was too severe
i. Maybe Lochner was just too rigid and narrow
ii. The ends prong of the test should be more relaxed
d. Substantive due process is legitimate, it can cover economic rights, and
the court applied the right economic review, but the testing of the
legislator's means was too severe
i. Maybe the test for rejecting the means was too demanding
1. The means did not have to be so necessarily tied to the ends
of the legislature
4) Substantive Due Process Criticisms
a. Takes certain issues off the political tables and places it on a constitutional
high table
b. Immediately flawed since it starts with nonenumerated fundamental rights
c. Gives more power to judges
d. If judges make a mistake, you then have the difficult job of getting rid of
precedent
e. Precedent changing makes it hard to predict what to do as a lawyer
(j) Adair v. United States (1908)
1) Holding
31

a. A federal law prohibiting interstate railroad employers from requiring that

employees agree as a condition of employment not to join or become or
remain a member of any labor organization is unconstitutional under the
due process clause of the 5th amendment
i. These kinds of agreements are known as yellow dog contracts
2) Harlan, who dissented in Lochner, wrote this majority opinion emphasizing the
importance of the employer and the employee having the same equality of right,
and any legislation that disturbs that equality is an arbitrary interference with the
liberty of contract
3) Keep in mind that this case is dealing with a federal law, NOT a state law
a. In constitutional law, important questions to ask:
i. Federal law
1. Was it within the power of the government to pass this law?
2. Was the power enumerated within the Constitution?
ii. State law
1. Only have to ask if the Constitution forbids it?
(k) Coppage v. Kansas (1915)
1) Classic Lochner Opinion
a. Started out by arbitrarily picking out the fundamental right to contract
b. Laissez-faire is the test applied because that is the American way (tradition
and precedent)
c. State cannot just declare a law without passing the Direct Relations test
2) Holding
a. State did not show a sufficient connection between the police power and
their ends sought to be achieved
3) Coppage Decided Under Leninism
a. Only switching out the economic theories
b. Right chosen is the surplus right to the value of workers labor
c. Property prong of due process requires that the workers unionize to protect
their rights to even out the playing field
d. Legitimate police power to achieve the ends
4) Holmes Dissent
a. Not for me as a judge to a decide if a law if wise as long as it is
constitutional
b. Here, the court is deciding what the fundamental right is, not those
enumerated rights within the Constitution
5) As opposed to Coppages state law, Adair was a Federal case
a. Determined that congress did not have the power to pass the law because
the contracts were left completely within in the states
i. Was not within the interstate commerce clause power
b. Even if it did, congress cannot pass the law because of the liberty prong of
the 5th amendment
i. Cannot interfere with the freedom to contract
ii. Interfering would be a violation of substantive due process
c. The police power of the states is not without limit under the fourteenth
amendment
32

i. The commission of the Supreme Court to limit the states police

power comes from the fourteenth amendment and the test of
substantive due
(l) Nebbia v. New York (1934)
1) Facts
a. Around the Great Depression
b. New York law fixes price of milk at nine cents for the reason that the price
of milk is below the cost of production
c. Nebbia sells a quart of milk for five cents in violation of this law
2) Issue
a. Does a state have the power to fix the selling price of milk?
3) States argument
a. This legislation was necessary for the sake of dairy farmers and the dairy
industry
i. The prices dairy farmers were receiving for milk were less than
production costs, so the legislature passed this law to prevent
unemployment, protect milk from contamination due to cost
cutting or inadequate vigilance, etc.
4) Opinion
a. Neither property rights nor contract right are absoluteequally
fundamental with the private right is that of the public to regulate it in the
common interest
b. The guarantee of substantive due process demands only that the law shall
not be unreasonably arbitrary and capricious and the means selected shall
have a real and substantial to the object sought to be attained
i. Sounds like the same Lochner test, yet different results
ii. Different result because the fundamental right was determined to
not be absolute
iii. Further, bound by precedent to use the same test, but decided to
apply it with a lighter touch because desperate economic
conditions called for it
5) Holding
a. This law has a reasonable relation to a proper legislative purpose, was
neither arbitrary nor discriminatory, and thus met the requirements of due
process
6) Because of the Great Depression the court had to readjust the marketplace,
something that would never have been done in Lochner
7) Dissent
a. Readjusting the marketplace now affects the grocers right to conduct his
business
8) Possible counterargument
a. The law is reasonably enough related to the objective sought
b. Moreover, we are not economists
i. The law may not be wise but it is Constitutional
33

(m) West Coast Hotel v. Parrish (1937)

1) Overruled Adkins Children Hospital in upholding a state law minimum wage law
a. Under Lochner, this state action would be considered a violation of the
liberty to contract
2) Opinion:
a. Constitution does not speak of freedom of contract
i. Nor is the right to contract absolute under Nebbia
b. Liberty is subject to the constraints of due process
c. This law had a reasonable relation to its subject
i. What can be closer to the public interest than the health of women
and their protection from unscrupulous and overreaching
employers?
ii. Keep in mind the weak social position and lack of bargaining
power women had at this time
iii. Legislative response to that conviction cannot be regarded as
arbitrary or capricious, and that is all we have to decide
3) Dissent
a. The meaning of the Constitution does not change with the ebb and flow
of economic events
iv. This statement is a reminder of the context of this case
v. Its the Great Depression and the administrative law revolution is
happening
b. The dissenters felt that this law had no relation to the earning power of the
employees, the number of hours, they work, etc.
4) Gone is the laissez-faire theory
a. The government can regulate the economy
b. Rules of property and contract are no longer seen as neutral but allowed
because of the law
(n) United States v. Carolene Products Co. (1938)
1) Holding
a. Rejected a due process challenge to a federal prohibition of the interstate
shipment of filled-milk
2) Opinion
a. The existence of facts supporting the legislative judgment is presumed
b. Only way this can be challenged is if the facts known preclude this
assumption of rationality
i. Radically shifts the burden of proof
(o) Stones Carolene Products Footnote No. 4:
1) Stone wrote this footnote distinguishing cases warranting deference from those in
which greater judicial scrutiny might be appropriate
a. There may be narrower scope for operation of the presumption of
constitutionality when legislation appears on its face to be within a
specific prohibition of the Constitution, such as those of the first ten
amendments, which are deemed equally specific when held to be
embraced within the 14th. It is unnecessary to consider now whether
34

legislation which restricts those political processes which can ordinarily be

expected to bring about repeal of undesirable legislation, is to be subjected
to more exacting judicial scrutiny under the general prohibitions of the
14th Amendment than are most other types of legislation e.g. restrictions
upon the right to vote, restraints upon the dissemination of information,
interferences with political organizations, and prohibition of peaceful
assembly. Nor need we inquire whether similar considerations enter into
the review of statutes directed at particular religions, or racial minorities;
whether prejudice against discrete and insular minorities may be a special
condition, which tends seriously to curtail the operation of those political
processes ordinarily to be relied upon to protect minorities, and which may
call for a correspondingly more searching judicial inquiry.
2) This footnote suggests that judicial intervention is more appropriate in cases when
the political process is less trustworthy to even out the winners and losers over
time (i.e. it helps prevent entrenched advantages or disadvantages in the political
process)
3) Note that the footnote seems to assume that rival economic factions
(employer/employee, producers/retailers, etc.) will be able to compete more fairly
than other factions (religions, racial minorities, etc.)
(p) Williamson v. Lee Optical Co. (1955)
1) Facts
a. A district court in Oklahoma held unconstitutional a law which made it
unlawful for any person not a licensed optometrist or opthamologist to fit
lenses to a face, or replicate frames/lenses, except with a written
prescription from an optometrist/opthamologist
b. The law prevented opticians from fitting lenses without a prescription
c. The district court held that the means chosen were not reasonably
necessary or related to the end sought to be achieved
2) Opinion
a. The Oklahoma law may exact a needless, wasteful requirement in many
cases. But it is for the legislature, not the courts to balance the advantages
and disadvantages of the new requirement.
i. On just one page of the text book (380), the word might appears
6 times while describing the possible reasoning the legislature had
for passing this law
b. The court basically says that this law meets the rational basis test
i. They have indicated that if a lawyer for the state can come up with
a conceivably rational basis for passing a law, then it will meet the
rational basis test.
3) This case is an extremely deferential stance both to the legislatures selection of
ends and its choice of means to those ends
(q) State Farm Mutual Automobile Insurance Co. v. Campbell (2003)
Supreme Court is finding some of these punitive damage awards to be
capricious/arbitrary
35

1) Facts
a. Punitive damages award set at $145 million
2) Opinion
a. Right violated?
i. Yes, State Farm out $145 million
ii. State action
1. the state process of the court systems
b. Fundamental right?
i. Enumerated right of deprivation of property
c. Compelling government interest?
i. Deterrence and retribution
d. Least restrictive means?
i. No legitimate purpose because it is grossly excessive
3) Holding
a. It is an arbitrary deprivation of property
4) Scalias Dissent
a. Should be looking towards the substance of the punitive damages award
b. There is nothing in due process, however, which says that excessive
awards are depriving someone of property

Section IV.3 Substantive Due Process and Privacy

(a) 4 Questions to Ask When Faced with Substantive Due Process:
1) Has someone alleged a right that has been violated?
a. Is not, there is no point in moving forward.
b. If so, the right needs to be identified and the injury alleged
2) Is anybody trying to claim that this right is a sort of fundamental right?
a. The answer here will tell us the standard of review
i. If its not a fundamental right, the standard of review is rational
basis
ii. If it is fundamental, there will be a stricter level of scrutiny
3) What does the state say the purpose of the law is?
a. This is important, because the tests have prongs, and we will have to
figure out if the purpose and end are all good enough
i. If it is rational basis review, the purpose must be a legitimate
interest
ii. If it is strict scrutiny, it must be a compelling state interest
4) What means is the state using to accomplish its purpose?
a. Under rational basis review, the means just have to be reasonable and
plausible
b. Under strict scrutiny, the least restrictive means are required
(b) Meyer v. Nebraska (1923)
1) Narrow holding from the Lochner era
2) Facts
a. A state law prohibits teaching foreign languages to young children for
national security reasons
36

3) Opinion
a. Kids should learn American ideals before they are exposed to foreign
concepts and ideals
b. Application of Strict Scrutiny to this Non-Economic Right:
i. Right violated
1. Right to teach
2. Right of children to acquire knowledge
3. Right of parents to control the education of their children
(right to raise their kids)Most Compelling
c. Fundamental right
i. Liberty denotes freedom to establish a home and bring up kids
d. Compelling government interest
ii. National security is a compelling interest. National safety in in
peril ----state has compelling reason
e. Least restrictive means
iii. Means interfere too broadly with the parents fundamental rights
(c) Pierce v. Society of Sisters (1925)
1) Also from the Lochner era
2) The court sustained a challenge by parochial schools and private schools to an
Oregon law which required children to attend public schools
3) The court again relied on the fundamental right of parents to raise their children
and direct their upbringing and education
(d) Skinner v. Oklahoma (1942)
1) Facts
a. Oklahoma Sterilization Act provided from compulsory sterilization after
being convicted for a felony involving moral turpitude
i. Three Strikes Rule
2) Skinners Crimes
a. stole chickens and robbed two gas stations on two separate occasions
3) Application of Strict Scrutiny:
a. Right violated
i. Right to procreate
b. State action
i. Sterilization Act
c. Fundamental
i. Procreating is a basic civil right
ii. Fundamental the very existence and survival of the race
d. Compelling government interest
i. This is 1942, around the time of the Holocaust, and Oklahomas
compelling interest of preventing habitual criminals from
procreating sounds slightly similar to Germanys interest in
eradicating the Jewish population
e. Least restrictive means
i. No
37

ii. After all, could keep the habitual criminals locked up or could have
constant monitoring
4) Opinion
a. This was not a substantive due process case
b. It was pursued as an equal protection claim
5) Concurrence
a. This case should have been pursued under procedural due process
6) These three different approaches prove that there are different ways to go about
solving problem
Griswold v. Connecticut (1965) ---is a fundamental right involved?
1) Facts
a. Two Connecticut state laws
i. Any person who uses birth control can be fined and/or imprisoned
ii. Any person who supplies birth control can be fined and/or
imprisoned
b. Griswold provided birth control to a married couple and was convicted
under the second law
2) Opinion
a. The court rejected Lochnerism from the very beginning YET the law is so
horrible that the court felt that something had to be done
i. This undermines the whole idea of declaring Lochner wrong
shows that the court is once again imposing its own ideals
b. Reaffirming the principles of Pierce and Meyer
i. Doctrinal argument
c. The foregoing cases suggest that specific guarantees in the Bill of Rights
have penumbras, formed by emanations from those guarantees that help
give them life and substance
i. After this case, the penumbra argument is never used again
ii. A kind of textual argument
d. Various guarantees create zones of privacy:
i. The 1st amendment and the right of association
ii. The 3rd amendment and the prohibition of the quartering of soldiers
in any house without the owners consent is another facet of
privacy
iii. The 4th amendment protection against unreasonable searches and
seizures
iv. The 5th amendment self-incrimination protection
v. The 9th amendment provides that the enumeration of certain rights
shall not be construed to deny or disparage other rights retained by
the people
e. This law concerns a relationship which lies within the zone of privacy, and
concerns a law which absolutely forbids contraceptives, which has a
maximum destructive impact on that relationship
f. There is a difference between the right to privacy and the right to contract
i. Contract rights are legal rights regulated by the government
ii. The right to bear kids is a personal right not regulated by the law
38

iii. Therefore, right to privacy is a natural right that pre-existed the

establishment of the government
g. This law sweeps too broadly, and invades the area of protected freedoms
3) Goldberg Concurrence
a. Comfortable in finding this fundamental right, but focuses on the 9th
amendment in getting there
b. The concept of liberty protects those personal rights that are fundamental,
and is not confined to the specific terms in the Bill of Rights
c. Liberty embraces a right to marital privacy, even though not explicit in the
Constitution
d. I believe that the right of privacy in the marital relation is fundamental
and basic- a personal right retained by the people within the meaning of
the 9th amendment, a right which is protected by the 14th amendment from
infringement by the states
e. here you have a state infringing
4) Harlans Concurrence (only in the judgment) (he says same test should be used
as in selective incorporation)
a. Harlan was a strict selective incorporationist
b. Began by using the fourteenth amendment and the concept of ordered
liberty
i. Agrees that there is a right to privacy
ii. Looks towards the concept of ordered liberty to determine if the
right to privacy is a fundamental right
c. Due process of law in the fourteenth amendment says that you cannot
infringe on liberty
i. Here, liberty does encompass the right to privacy as it relates to
intimacy in marriage
d. Constrained by history and tradition and precedent in determining what
liberty encompasses
e. A statute making it a criminal offense for married couples to use
contraceptives is an intolerable and unjustifiable invasion of privacy in the
conduct of the most intimate concerns of an individual's personal life
i. Notice however, that he says the state may still enforce laws
regulating other private conduct, like those against adultery,
homosexuality, etc
ii. He differentiates by saying that intimacy between a husband and
wife is an essential feature of marriage, a state institution
f. Does not approve of the means
i. The full force of the criminal law is too broad and too sweeping in
that it causes the prosecution of married couples
ii. There is a compelling government interest, however
1. The state is exercising its legitimate police power to protect
the states morality by preventing pre- and extra-marital sex
g. Here the state is asserting the right to enforce its moral judgment by
intruding upon the most intimate details of the marital relation with the
full power of the criminal law, so the statute must pass a more rigorous
39

Constitutional test than going merely to the plausibility of its underlying

rationale.
5) Whites Concurrence
a. The level of review was inappropriate in this case
i. Should have employed rational basis review in lieu of strict
scrutiny
b. The means are too arbitrary in achieving the governments interest
i. How does a ban on the use of contraception by married couples
reinforce the states ban on illicit sexual relationships?
6) Blacks Dissent
a. Black does not think there is such a thing as a broad, sweeping right to
privacy
i. Rights to privacy are confined to their specific usages in places in
the 4th/5th amendment.
b. Only the legislative branch has these powers
i. Structural argument
c. He points out that 2 cases cited by the court, Meyer and Pierce, were both
based on Lochner
d. Finally, the 9th amendment was passed to assure that the Constitution
would limit the federal government; there has never been a serious
suggestion that it can be used against the states
7) Stewarts Dissent
a. Echoes a lot of the ideas in Blacks dissent: No overarching right to
privacy, the 9th amendment was not intended to be used against the states,
Lochnerizing, etc.
If you have a substantive due process, dont use penumbra to test it. The penumbra test doesnt
go far.

Section IV.4 Substantive Due Process and Contraception

(a) Roe v. Wade (1973) (there are two compelling govt interests: protecting the health of
the mother and protection for potential of human life)
1) NOT a majority opinion, only a plurality
2) Violation of a right?
a. The Texas statute is too broad in the fact that it prohibits all abortions and
too narrow in that it allows for abortion only in certain cases
3) State action
a. Regulation of the abortion regime
4) A fundamental right?
a. The right to privacy has been found in the 1st, 4th and 5th amendments, in
the penumbras of the Bill of Rights (Griswold), the 9th amendment, and
the 14th amendment.
i. Only fundamental personal rights are included in this protection of
privacy
i. The right has some extension to activities relating to marriage,
procreation, contraception, family relationships, and child bearing
40

5)

6)
7)
8)

b. This right to privacy, found in the 14th amendment concept of personal

liberty in the court's opinion, is broad enough to encompass a woman's
decision whether or not to terminate her pregnancy
i. Specific harm may be involved
ii. Maternity or additional offspring may force upon the woman a
distressful life and future
iii. Psychological harm may be imminent
iv. Mental and physical health are taxed by child care
c. But the court does not find that this right to terminate a pregnancy is
unlimited
i. The state can assert important interests in safeguarding health, in
maintaining medical standards, and protecting potential life
ii. Under Nebbia we know that rights are not absolute
iii. People do not have an absolute right to do whatever they want with
their bodies
d. So, not a fundamental right to abortionbut there is a fundamental right
to privacy that protects a womans choice
Compelling government interest? (ends)
a. The states have an interest in both protecting the mother's health and also
the potentiality of human life
i. During the first trimester, the government cannot prohibit
abortions, but can regulate them like any other medical procedure,
such as who can perform the abortions and where they can be
performed
1. In the first trimester, it is safer to have an abortion than to
carry the baby to term and undergo child birth
ii. During the 2nd trimester, the government still cannot outlaw
abortion, but it may "regulate the abortion procedure in ways that
are reasonably related to maternal health"
iii. For the stage subsequent to viability, the state in promoting its
interest in the potentiality of human life may prohibit abortion
except as necessary to preserve the life or health of the mother
1. Blackmun refuses, however, to decide at what point life
begins
2. Is careful not to define the fetus as a person by referring to
fetal life as potentiality for life
Just note, as science develops, the viability of the fetus moves closer and closer to
conception while the health interest of the woman starts moving closer and closer
to childbirth
Both women and the men have decisional autonomy when it comes to having an
abortion; however, only the woman has the bodily integrity issue since it is her
health and safety at risk
Stewart Concurrence
a. The liberty protected by the 14th amendment due process clause includes
more than just the liberties in the Bill of Rights, including the right of a
woman to decide to terminate her pregnancy
41

b. Stewart accepts substantive due process here

9) White/Renquist Dissent
c. Finds no Constitutional basis, textual, historical, or otherwise, for this
decision
d. The court has simply fashioned a new constitutional right, and has thus
deprived the states of their opportunity to weigh the relative importance of
the continued existence and development of the fetus on the one hand and
the mother on the other
10) Rehnquist Dissent
e. Does not find an abortion to be "private", nor that the "privacy" being
described here is related to anything found in the 4th amendment
f. Cites Lee Optical, indicating that he is applying the rational basis test,
which he thinks the law passes
(b) Aftermath of Roe
1) Roe involved strict scrutiny, which requires a compelling state interest and the
least restrictive means to enforce that interest.
a. Here the compelling state interests were the health of the mother and the
potential for fetal life
b. Keep in mind that there is no absolute right to life (think about the death
penalty)
2) States attempted to get around the decision through legislative enactments of
various techniques, such as third party vetoes, mandatory waiting periods, etc.
a. Attempts nothing more than an attempt to sway womens decision
3) Roe is perpetually challenged resulting in deeply moral divides
4) The whole trimester system is based on science. OConnor later would say that
Roe is on a collision course with itself. As science pushes the line of viability of a
fetus earlier and earlier, what happens to these distinctions?
(c) Planned Parenthood of South East Pennsylvania v. Casey (1992)
1) Another plurality opinion
a. Joint opinion among OConnor, Kennedy and Souter
2) Facts
a. The Pennsylvania law requires:
i. Spousal notice
ii. Parental consent or, in the alternative, judicial bypass
iii. Abortion facilities reporting requirements
iv. 24 hour waiting period
3) Opinion
a. Roe is affirmed
i. The woman's right to choose is still protected by the due process
clause
ii. The Constitution limits the state's ability to interfere with a
person's most basic decisions about family, parenthood, and bodily
integrity
b. The liberty of women is at stake here
42

c.
d.

e.

f.

g.

i. Mothers who carry children to term are subject to anxiety, physical

constraints, and pain
ii. This suffering is too intimate and personal for the state to insist on
how she must act in this regard
Griswold, Eisenstadt, and Carey also afford similar constitutional
protection and support Roe
When reexamining a rule of constitutional law, we can ask several main
questions:
i. Has the rule proved to be intolerable? Has it defied practical
workability?
1. No, the rule has caused controversy and some problems,
but all is within judicial competence
ii. Has the rule been relied on to the extent that overruling it would
cause special hardship and inequity to the cost of repudiation?
1. For 2 decades people have organized their intimate
relations and made choices in reliance of the availability of
abortion
iii. Have related principles of law developed in such a way that this
rule is nothing more than a remnant of an abandoned doctrine?
1. No new developments in con law require Roe's premises to
be weakened
iv. Have the facts changed so much that the rule is robbed of its
former significant application or justification?
1. No facts have changed Roe's central holding
2. However, neonatal care has gotten better, allowing for
earlier viability, and advances in maternal health care allow
for abortions to be given safely later in the pregnancy
2 lines of cases have been compared to Roe:
i. Lochner met its demise in West Coast Hotel
1. In these cases, the Depression had come, and thus the facts
on which the earlier cases had been based had proved to be
untrue
ii. Plessy v. Ferguson thru Brown v. Board
1. Society's understanding of the facts had changed
2. Legally sanctioned segregation had a different effect than
what others had predicted
Unlike these lines of cases, neither the factual underpinnings of Roe, nor
the understanding of it, have changed, so it shouldn't be reexamined.
i. "To overrule under fire in the absence of the most compelling
reason to reexamine a watershed decision would subvert the court's
legitimacy beyond any serious question"
Court does away with the strict scrutiny test of substantive due process as
well as the trimester test of Roe and adopts the undue burden test
i. The state cannot place a substantial obstacle in the path of a
woman seeking an abortion

43

ii. This test could really be nothing more than the substantive due
process test with an additional question:
1. Could add the question right after the determination of a
fundamental right by asking if there is there an undue
burden on that fundamental right? The question inserted
here helps the court decide where to apply strict scrutiny or
rational basis (i.e. an intermediary question to adjust how to
answer questions 3 and 4 in the substantive due process
inquiry)
a. Yes, then go straight into strict scrutiny
b. No, then apply rational basis review
2. Could also phrase question four in such a way to include
substantial obstacle in the means analysis by asking if the
means chosen presents an undue burden?
iii. The question applies only when talking about or looking towards
an unborn life
iv. Could see that the court was once again struggling with these two
competing rights held by two different individuals and wanted to
add an additional stool in helping them
h. Specific Evaluation of the Pennsylvania law
i. Requires that except in a medical emergency, at least 24 hours
before the abortion is to be performed that the physician inform the
woman of the nature of the procedure, the health risks of abortion
and childbirth, and the probable gestational age of the unborn child
1. While Akron I and Thornburgh found provisions like these
unconstitutional, they are now overruled.
2. The court will allow states to further its goal of protecting
fetal life through legislation that aims to ensure that a
decision is mature and informed, even when doing so the
state expresses a preference for birth over abortion
3. The court finds that a 24 hour waiting period does not
constitute an undue burden
ii. Requires that, except in medical emergency, that physicians will
not perform abortions on married women without a signed
statement from the woman that she has notified her husband
1. There are exceptions and alternatives:
a. If her husband didn't impregnate her
b. If pregnancy was a result of sexual assault
c. If husband can't be found
d. If the woman believes notifying her husband will
cause him or someone else to inflict bodily injury
on her
2. The court finds that this provision is an undue burden, even
though it would affect less than 1% of the women who
obtain abortions

44

3. For women who fear for their safety, this will only make it
harder and creates a substantial obstacle
4. This rule would essentially give husbands a veto power
over their wife's choice
a. Women do not lose their constitutionally protected
liberty when they marry
iii. If under 18, parental consent, or can obtain such a finding from a
judge
1. This provision is affirmed, as it has been in other cases
iv. Every facility that performs abortions must file a report with its
name and address. For each abortion performed, a report must
identify: the physician, the facility, the referring physician or
agency, the woman's age, the number or prior
pregnancies/abortions, pre-existing medical conditions to
complicate pregnancy, medical complications with the abortion,
basis if abortion was medically necessary, weight of aborted fetus,
woman's marital status.
1. Court finds this constitutional
2. This relates to the state's interest in health, and collecting
this kind of information is a vital element for medical
research
4) Stevens concurring in part, dissenting in part
a. Agrees that stare decisis plays an important role here, and says the cost of
overruling Roe now would be enormous
b. Agrees that states may express a preference for birth over abortion, and
may ensure a woman's choice is thoughtful and informed
c. Disagrees that the state should be able to persuade the woman to choose
childbirth over abortion
5) Blackmun concurring in part, dissenting in part
a. Pleased that the central premise of Roe survives
i. The assumption that women can be "forced by the state" to accept
motherhood triggers equal protection clause, but that the Roe
framework is easier to administrate and harder to manipulate
b. Applying strict scrutiny to all these provisions in these cases should result
in their invalidity
6) Rehnquist concurring in part, dissenting in part
a. Roe was wrongly decided and should be overruled
b. Distinguishes abortion from issues like marriage, procreation, and
contraception because it involves the termination of potential human life
c. Historical argument
i. Historically, this country never allowed abortions
ii. At the turn of the century, every state forbade them
iii. Liberalization set in, but when Roe was decided, 21 states still
prohibited it, and most didn't allow it unless for the mother's health
d. The court's discussion of stare decisis seems to be dicta

45

i. After all, the opinion rejects the trimester framework, overrules 2

cases, etc.
e. Further, stare decisis shouldnt stop us here
i. Bad con law is bad con law!
ii. Don't keep it around for stare decisis sake
7) Scalia concurring in part, dissenting in part
a. Would apply the rational basis test and keep all of the Pennsylvania statute
b. The stare decisis argument seems like a joke
i. Its a "keep-what-you-want-and-throw-away-the-rest-version"
c. Roe has caused more problems than it has solved
i. There is a national conflict over the issue, and the court prevents
that from being sorted out by the states
d. Ask 2 question:
i. Was Roe correctly decided?
ii. Has Roe succeeded in producing a settled body of law?
1. If the answer is no, Roe should be overruled
(d) Stenberg v. Carhart (2000)
1) Applying Casey, the court struck down a Nebraska law prohibiting late -term
"dilation and extraction" (D&X) abortions without providing an exception for the
mother's health
(e) Gonzales v. Carhart (2007)
1) Facts
a. A "dilation and evacuation" (D&E) is a common method of abortion
during the 2nd trimester
i. Performed by inserting grasping forceps into a woman's cervix and
into the uterus to grab the fetus, evacuating it piece by piece
ii. In an intact D&E, the doctor extracts the fetus in a way that is
conducive to pulling out its entire body.
b. After the Stenberg decision, Congress passed the Partial Birth Abortion
Ban Act
2) Issue
a. Whether the Act imposes a substantial obstacle to late-term, but previability, abortions?
3) Opinion
a. On its face, the Act does not impose a substantial obstacle
i. It proscribed a method of abortion where the fetus is killed just
inches before completion of the birth process.
b. The act expresses a respect for the dignity of human life
i. Where it has a rational basis to act, and doesnt impose an undue
burden, the State can use its power to bar certain procedures and
substitute others in furtherance of its legitimate interests in
regulating medicine to promote its respect for life
c. There was some disagreement on whether or not the intact D&E v. the
standard D&E presented certain health risks. So can the act persist while
there is medical uncertainty?
46

i. Yes, the medical uncertainty is not an undue burden

d. States interest in protecting both the health of the mother and the
potentiality of human life are legitimate/compelling governmental
interests
e. There is no substantial burden here, however, since the state has not
banned all abortion procedures
4) In short, there are safe alternative methods readily available
5) Thomas and Scalia concur
a. Roe and Casey have no constitutional basis
6) Ginsburg, with Souter and Breyer, dissent
a. This decision refuses to take Casey or Stenberg seriously, blurs the line
between pre and post viability abortion, and for the first time allows an
abortion law to stand without an exception for the mother's health
b. Argues about the health reasons for allowing this procedure
c. Refutes the argument that this law protects the promotion of fetal life by
saying that not a single fetus will be saved by upholding this law

Section IV.5 Substantive Due Process and Marriage and Family Relationships
(a) Loving v. Virginia (1967)
1) Holding
a. Stuck down Virginias ban on interracial marriage
2) Opinion
a. Relied principally on equal protection, but also stated as an alternative ground for
the holding that the statute had deprived the Lovings of liberty without due
process of law
b. The freedom to marry has long been recognized as one of the vital personal rights
essential to the orderly pursuit of happiness
c. To deny this right on the unsupportable basis of racial classification is subversive
of the principle of equality at the heart of the 14th amendment
(b) Zablocki v. Redhail (1978)
1) Facts
a. A person who has an obligation to pay child support due to a court order
cannot marry without obtaining an additional court ensuring that his
children have and will continue to receive payment
b. Redhail did not obtain court permission so his marriage application was
denied
2) States interest
a. Ensuring that children do not become wards of the state
3) Opinion
a. Largely doctrinal in nature
b. Even though the ultimate verdict rested on equal protection, the court
seemed strongly influenced by substantive due process
i. Violation of right
1. State denied Redhail the right to marry
ii. Fundamental right
47

1. The right to marry is of fundamental importance, and since

the classification at issue here significantly interferes with
the exercise of that right, critical examination of the state
interests advanced is required
2. It is not surprising that the decision to marry has been
placed on the same level of importance as decisions
relating to procreation, childbirth, child-rearing, and family
relationships.
3. If the state infringes on the right to marry, the restriction
cannot be upheld unless it is supported by sufficiently
important state interests, and is closely tailored to effectuate
only those interests
iii. Compelling government interest
1. Yes, the state does have a compelling interest in keeping
children from being its wards
iv. Less restrictive means in achieving that goal
1. No, the state has less intrusive ways that it could try to
enforce compliance with support obligations (wage
assignments, civil contempt proceedings, criminal
penalties, etc.)
4) Interesting to note that while Redhail was making child support payments for a
child he had from a previous relationship, he also had a child with the woman he
was planning to marry
a. The compelling state interest could actually compel him to marry this
woman from having to pay additional support
(c) Turner v. Safley
1) Facts
a. Inmates must have the wardens approval to wed
2) State interest
a. Security in prison
i. Love triangles may occur which could end in shakings
b. Rehabilitative reasons
i. Keep women from falling into same trap of dependence on men
than ended them up in jail in the first place
3) Opinion
a. This case arises in the prison context so a different standard of review is
applied since inmates are necessarily deprived of certain rights
a. The decision to marry is a fundamental right, even if youre in prison
b. Marriage is an expression of public and emotional support, it can have
religious significance, and as a legal institution, marriage can provide
many things like taxes, welfare benefits, property rights, etc.
i. Taken together, these elements are enough to form a
constitutionally protected marital relationship in the prison context
(d) Moore v. East Cleveland (1977)
1) Facts
48

a. A housing ordinance allows only nuclear families to live together to

prevent overcrowding
b. A grandmother and her two grandsons, who were cousins to each other,
did not fall within the definition of a nuclear family
2) Opinion
a. The problem here lies in the means which was not the least restrictive
i. Could have placed a cap on the number of people who lived in a
house
ii. Could expand the city and widen the streets
iii. Are there not plausible, better alternatives?
b. In the end, this case shows the importance in being creative when it comes
to the means since the state interest is almost always going to be
compelling
2) Stevens concurred
a. Applied a limited standard or review generally applicable in zoning cases
b. Found an unjustifiable restriction on Mrs. Moores right to use her own
property as she sees fit
3) White dissented.
a. Powells emphasis on history and tradition would broaden enormously
the horizons of substantive due process
b. To equate this interest with the fundamental decision to marry and to bear
and raise children is to extend the limited substantive contours of the Due
Process clause beyond recognition
(e) Belle Terre v. Boraas (1974)
1) Holding
a. Zoning restriction sustained that restricts unrelated/unmarried people from
living together
2) Case decided in 1974 when it was only the hippies who lived together outside of
relation or marriage so seems to be nothing more than pure bias against them
(f) Troxel v. Granville (2000)
1) Facts
a. Mother objected to giving grandparents visiting rights
2) Fundamental Right
a. A parents right to make decisions concerning the care, custody, and
control of his or her child
3) State action
a. The courts granted the grandparents visitation rights
4) Opinion
a. The 14th amendment protects the fundamental right of parents to make
decisions concerning the care, custody, and control of their children
b. If a parent can adequately care for their child, there will be no reason for
the state to inject itself into the private realm of the family just because
they think there is a better decision that could be made

49

c. Court did not decide the case, however, under any standard of review
because of the various competing interests of the children, parent, and
grandparents
5) Stevens Dissent
a. As in all custody and visitation cases, the court must consider first and
foremost what is in the childs best interests
b. While it is true that the courts should not be allowed to just burst in and
tell parents how to raise their children, in this fact setting the grandparents
had an interest in visiting their grandkids and the grandkids had an interest
in seeing their grandparents
(g) Michael H. v. Gerard D. (1989)
1) Facts
a. 2 competing paternity claims
i. Both men had relations with Carol D.
b. Blood test showed that Michael, the other man, was 98% likely to be the
father and he demanded access to his daughter
c. California law established a presumption that a child born to a wife is
legitimately the child of the husband
d. Rebuttable by either the husband/wife or the father of the child, as long as
the wife backs up the claim within two years of the birth along with a
blood test
i. Here, neither the husband/wife rebutted the claim nor did Michael
have the support of the wife, making the blood test inadmissible
2) Issue (the framing of the fundamental right at stake)
a. Does an adulterous outsider have a fundamental right to break up a
marriage? Or is the tradition of marriage worth being upheld?
i. This framing of the issue makes it blameworthy on Michael
ii. It is very specifically framed, not generally
iii. This in turn makes a difference in how the court actually
approaches the issue
3) Opinion
a. Relied on the tradition principles from Moore
b. For due process protection, there must be a fundamental interest
traditionally protected by society
c. Here, the law and history have protected the marital family, not the sort of
claim Michael asserts
4) Brennans Dissent
a. The right should have been more generally framed
b. Rejects the historical, traditionalist argument employed by Scalia
i. We have a living constitution, not one that is stagnant and archaic

Section IV.6 Substantive Due Process and Sexuality

(a) Bowers v. Hardwick (1986)
1) Issue
50

a. Do homosexuals have a fundamental right to engage in sodomy, thus

invalidating some laws of the several states?
i. The way this issue was phrased leaves out the right of privacy in
this type of intimate, personal relationship as well as any idea of
personal and decisional autonomy
ii. If the issue had been framed in such a way then you could have
started with a doctrinal argument
iii. This phrasing leads into a historical argument (i.e. traditions of the
nation)
Statute is about conduct.
2) Opinion
a. The court found that the right was not fundamental.
i. No connection between family, marriage, or procreation on the
one hand and homosexual activity on the other has been
demonstrated
ii. They are trying to distinguish Loving, Roe, Skinner, Griswold,
Eisenstadt, etc.
b. Historical argument
i. Lays out the details of the history of sodomy laws in the U.S.
3) Holding
c. The court applied rationality review, and upheld the law, rejecting a claim
that morality alone was insufficient to provide a rational basis for a law
4) Expressed Lochner fear
a. Not inclined to exercise our authority by discovering new fundamental
rights imbedded in the due process clause
5) Burger Concurred
a. Proscriptions against sodomy have very ancient roots in Judeo-Christian
moral and ethical standards, etc.
6) Blackmuns Dissent
a. The issue was too narrowly defined
i. It should have been the right to be let alone
*****If morality is not a big part of the law then the law will most likely collapse
(b) Lawrence v. Texas (2003)
1) Facts
a. Police entered house after receiving a call about a weapons disturbance
(from one of the parties to the suits ex-lovers)
b. Upon entering the house, the police witnessed and arrested two men
engaging in sodomy
2) Issue
a. Were the two men free as adults to engage in the private conduct in the
exercise of their liberty?
i. Broadly phrased issue
ii. Talked of in terms of con-sensuality instead of sexuality
3) Opinion
a. The court traces the development of privacy issues through Griswold, then
Eisenstadt, and even Roe
51

i. For the sake of argument, how could you distinguish these cases
from this situation?
1. Those cases involved heterosexual relations, these are
about homosexual relations
2. Those cases involved protecting procreation, this case has
nothing to do with procreation
b. Looking back at Bowers
i. Notice how much more broadly this is defined as opposed to
Bowers
1. The court's statement of the issue in Bowers (whether there
is a fundamental right for homos to engage in sodomy)
shows that they could not appreciate the extent to which the
liberty was at stake.
ii. The laws involved in Bowers involved the most private human
conduct, sexual behavior, and in the most private of places, the
home
1. The liberty granted by the constitution allows homosexuals
the right to choose whether or not they should, in their own
privacy, have consensual intimate relations with others.
2. While Bowers tried to point to the long history of laws
directed at homosexual conduct in this country, this court
finds no such history
a. There were prohibitions against sodomy, but most
laws of this nature sought to prohibit nonprocreative sexual activity more generally
b. Further, laws against sodomy have hardly been
enforced, and those targeting same-sex couples
didn't develop until the 20th century
c. There have been strong moral arguments against homosexuality, but these
do not answer the question before the court today
i. The court feels recent trends in law are more telling
ii. The MPC has made it clear that it does not recommend criminal
penalties for private sexual acts
iii. The European court of human rights has considered cases with
parallels to this one and rules that laws against private, consensual,
homosexual conduct are invalid under Human rights conventions
iv. Only 13 states now prohibit sodomy, and of those only 4 enforce
these rules against heterosexual couples
d. 2 post-Bowers cases throw its holding into more doubt
i. Casey reinforced that "our laws and tradition afford constitutional
protection to personal decisions relating to marriage, procreation,
contraception, family relationships, child rearing, and education
involving the most intimate and personal choices a person may
make in a lifetime, choices central to personal dignity and
autonomy"
1. Homos have these rights just like heteros
52

ii. Romer v. Evans struck down class-based legislation directed at

homosexuals as a violation of the equal protection clause
1. Invalidated an amendment to the Colorado constitution
which names homosexuals, lesbians, etc as a solitary class
of persons
2. It was born of animosity towards this group, and had no
legitimate government purpose
4) Holding
a. This law invalid under the equal protection clause and Bowers is officially
overruled
i. Precedent has weakened Bowers, it has been widely criticized, and
several states have already declined to follow it
ii. There has been no showing that the governmental interest in
circumscribing this choice is somehow legit or
iii. The Texas statute furthers no legitimate state interest which can
justify its intrusion into the personal and private life of the
individual
1. Note that they said legitimate state interest
2. Are they using rational basis? They never really say
3. Scalias dissent suggests that the court is only applying
rational basis
5) O'Connor's concurrence
a. Does not overrule Bowers, but does think the Texas statute
unconstitutional on equal protection grounds
i. The Texas statutes make homosexuals unequal in the eyes of the
law by making it illegal for them to engage in sodomy, but not to
do the same to heterosexuals
ii. Moral disapproval of this group is not enough to satisfy the
rational basis test
6) Scalia Dissent
a. Countless judicial decisions and legislative enactments have relied on the
proposition that a governing majority's belief regarding certain sexual
behavior being immoral, etc., has been a rational basis for regulation
i. All sorts of laws will now be called into question regarding "moral
choices," such as bigamy, same-sex marriage, incest, prostitution,
bestiality, etc.
b. The due process clause only prohibits states from infringing fundamental
liberty interests, unless the infringement is narrowly tailored to serve a
compelling state interest
i. Only fundamental rights, which are deeply rooted in this nation's
history and tradition, qualify for this heightened scrutiny
ii. Homosexual sodomy is not a right rooted in our nation's history
and tradition
c. Does not like that Kennedy cites a European Court of Human Rights
decision

53

i. This undermines the credibility of all the individual beliefs of the

countries that make up this court, and also is a dangerous source of
persuasive authority, as it allows a justice to pick and choose the
views of the countries that agree with him/her and cite only those
d. The court has taken sides in the cultural war
i. In short, it has become too activist

Section IV.7 Substantive Due Process and Rights Over Death

(a) Cruzan v. Director, Missouri Department of Health (1990)
1suicide

2passive assisted 3active assisted 4euthenasia

suicide
suicide
[life support removed] [prescribe drug that causes death]

How fuzzy is the line in-between?

1) Facts
a. Cruzan was in a persistent vegetative state
b. The state requires clear and convincing evidence that Cruzan would want
the tubes removed
c. The parents only had hearsay that Cruzan would not want to continue like
this
2) Issue
a. While there is a right protected by liberty allowing a competent person to
refuse unwanted medical treatment, what about incompetent peoples
right?
3) Opinion
a. A competent adult has a constitutional right to refuse unwanted medical
treatment and the constitutional right to refuse lifesaving hydration and
nutrition
b. However, an incompetent person cannot make an informed, voluntary
decision under these circumstances
i. Such a right might be able to be exercised by a surrogate, if at all
ii. Here, Missouri recognizes that under certain circumstances a
surrogate may act for the patient and elect to have hydration and
feeding withdrawn, but it requires evidence of the incompetent's
wishes as to withdrawal of treatment be established by clear and
convincing evidence
iii. The court referred to these rights as protected liberty interests,
they never mention fundamental right
c. The Constitution does not forbid the establishment of this procedural
requirement by the state
i. The state established these guidelines in the interest of protecting
and preserving human life
ii. The choice between life and death is deeply personal, and
obviously of overwhelming finality, so the state may legitimately
54

2)

3)

4)

5)

seek to safeguard the personal elements of this choice by imposing

heightened evidentiary requirements
iii. The state is entitled to guard against potential abuses here, and may
prevent family members from terminating treatment for one
another
iv. The more stringent the burden, the less risk there is of an erroneous
decision being made
O'Connor's concurrence
a. Agreed with the court that there is a protected liberty interest in refusing
unwanted medical treatment, and that a patient may also refuse artificial
food and hydration, and that there were no violations of this here
Scalia's Concurrence
a. Argued that the courts have no business in this field
i. The states and elected officials should decide these questions, and
that no one on the court knows any better than them.
Brennan's Dissent
a. Cruzan is entitled to die with dignity, and that Missouri cannot, nor do
they, claim that keeping her alive can be of any benefit to society, nor
avert any harm to others
NOTE: The standard of review is never discussed here, although it seems like its
somewhere between rational basis and strict scrutiny
a. Like in Lawrence, never states a standard of review, but it looks to be a
heightened standard

(b) Washington v. Glucksberg (1997)

1) History
a. The lower court had held that the Constitution encompassed a due process
interest in controlling the time and manner of ones death, and that the
states assisted suicide ban was unconstitutional as applied to terminally
ill, competent adults who wish to hasten their deaths with medication
proscribed by physicians
i. The assisted suicide ban did NOT included cases like the one in
Cruzan, where life support was to be cut off to someone terminally
ill.
2) Issue
a. Whether liberty specially protected by the Due Process Clause includes a
right to commit suicide, which itself includes a right to assistance in doing
so?
3) Respondents Argument
a. The decision in Cruzan to recognize a patients right to have life support
withdrawn applies at least to the choice to hasten impending death with
lethal medication
4) Opinion
a. Historical argument
i. It is a crime to assist suicide in almost every state
1. These are nothing new
2. They are the states protection of human life
55

5)

6)

7)

8)

ii. This has been the tradition in Anglo-American law for over 700
years
b. Because of advances in medicine, many states permit living wills,
surrogate health care decision makers, and the refusal of life saving
medical treatment
i. All have maintained their prohibition on assisting suicide
c. Cruzan was based on long-standing battery principles
i. Unwanted medical treatment was a battery.
d. While a decision to commit suicide is just as personal and profound, it has
never enjoyed the same legal protection
e. As a result of all these factors, the right to assistance in committing
suicide is not a fundamental liberty interest, so rational basis applies
f. Rational basis is clearly met
i. The states interests include preserving human life, protecting the
integrity and ethics of the medical profession, protecting
vulnerable groups from fraud/mistake/etc., and could lead to a
slippery slope to possible involuntary euthanasia
OConnor Concurred
a. There is no generalized right to commit suicide
b. Patients suffering from terminal illness have no legal barriers to obtaining
medication to alleviate suffering
c. Even if there was a right to commit suicide, the states interest in
protecting incompetent people is sufficiently weighty to ban assisted
suicide
Stevens Concurred
a. There may be some who no longer have option of deciding whether to live
or die because they are already on threshold of death and have a
constitutionally protected interest that outweighs the States interest in
preserving life at all costs
b. I do not foreclose the possibility that an individual plaintiff seeking to
hasten death, or a doctor whose assistance was sought, could prevail in a
more particularized challenge
Souter Concurred
a. Understanding of unenumerated rights begins with ordered liberty,
comprising a continuum of rights to be free from arbitrary impositions and
purposeless restraints
Breyer Concurred
a. Does not agree with the courts formulation of the claimed liberty interest
b. Believes that the formulation of right to die with dignity may have more
support from legal tradition
c. He does not reach a conclusion of whether such a right is fundamental
because an essential part of a successful claim would have to include
severe pain, and laws do not force dying person to undergo that kind of
pain (like OConnor pointed out, there is adequate medication for these
people)

56

Article V.

Procedural Due Process and the Right to a Hearing

1) Leaves lots of room for creativity, policy making, and judicial discretion
2) Two Questions in Procedural Due Process:
a. When the plaintiff alleges that he has been deprived of something, the
court has to determine if that something is property or liberty
i. The 14th amendment says that the state cannot deprive a person of
property or liberty without due process
ii. If its not one of these things, the state does not have to provide
due process
b. Assuming it is property or liberty, you have to determine what process is
due
i. That depends on the context
1. Its not the same in every situation
2. You dont get the same process at the DMV that you get in
traffic court, nor the same process in traffic court as in state
court

Section V.1 Defining Property and Liberty

(a) Goldberg v. Kelly (1970)
1) Facts
a. Some of the welfare recipients did not qualify to begin with so benefits
were terminated without a hearing
2) Issue of timing
a. If there is a welfare system, some people are going to be entitled to
benefits while others are not; when do we hold a hearing to determine
when benefits are terminated?
3) Opinion
a. Property or liberty interest?
i. Money is a property interest
ii. Welfare recipients are entitled to the flow of money provided every
two weeks or every month
iii. A benefit created by the state
b. What process is due?
i. Basically, throw around various procedures to determine what is
fair
1. Entitled to representation?
2. What evidence is allowed?
3. Where lays the burden of proof?
4. Who should hear the case?
5. What procedural safeguards should be in place (i.e. a way
to appeal)?
c. Once a state has created a benefit for people in need, the state may not
terminate that aid without a face to face meeting between that person and
the state since the state may be depriving an eligible recipient of the very
means by which he or she lives
57

4) Dissent
a. The court is relying on the nature of the recipients and not on the
Constitution
b. Clogging the system with hearings for people who were never eligible to
begin with
c. The ruling requires the government to continue to pay money it never
owed in the first place since these people were never entitled to that
money
(b) Bitter with the Sweet Approach
1) If you accept the benefit, you have to take the limitations on procedures
2) Look at the statute to determine the benefits being created and see what process is
being provided; in later accepting the benefits, you are accepting the procedural
guidelines too
(c) Cleveland Board of Education v. Loudermill (1985)
1) Dismissed the bitter with the sweet approach and introduced a new test
2) Although state law remains the primary focus for the determination of whether a
property right exists, state procedures contained in the law creating that property
right are not the source of the constitutionally required procedures upon
termination of that property right
a. Property cannot be defined by the procedures provided for its deprivation
any more than can life or liberty
b. If the due process clause applies, the question is what process is due?
c. The answer is not found in state law
(d) Town of Castle Rock v. Gonzales (2005)
1) Cannot claim substantive due process after the DeShaney case
a. Difference from DeShaney:
i. Gonzales had a restraining order issued by the state
b. The case here then turns on procedure (I have an order and the police did
not follow the procedures outlined therein) whereas DeShaney was a
substantive due process case relying on liberty
2) Facts
a. Respondent's husband took the children from the wife's home, and when
she saw they were gone, she suspected the husband had taken them
b. When the officers arrived she showed them the copy of the TRO, but the
officers say that they couldn't do anything about it, call at 10 p.m. if they
don't come home
c. She got a call from her husband saying they were at an amusement park in
Denver, she called the police, they refused to do anything again
d. She then called them again at 12:10 a.m. when she went to her husband's
apartment he wasn't there
e. 3:20 a.m., the husband got to the police station, opened fire, and the
daughters were found dead in his car
3) Issue
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a. Was the restraining order mandatory in language or discretionary?

4) Gonzales wants
a. A good faith, serious consideration of probable cause
i. Wanted dispatch to ask serious questions to determine if there is a
serious concern
5) Opinion
a. Our cases recognize that a benefit is not a protected entitlement if
government officials may grant or deny it in their discretion.
b. Nothing in Colorado law made the enforcement of a TRO mandatory
i. While there are four shalls in the language, there is also language
qualifying the mandatory language (i.e. may, can, reasonable
means)
c. Even if the court disagreed, it is still not clear that an individual
entitlement to enforcement of a TRO could constitute a property interest
i. A TRO has no ascertainable monetary value
6) Stevens Dissent
a. If she had entered into agreement with private security firm, there would
have been a property interest
b. The statute created the functional equivalent
c. The state undertook an obligation and the respondent justifiably relied on
the undertaking

Section V.2 What process is due?

(a) Matthew v. Eldridge (1976)
1) Holding
a. Pre-termination evidentiary hearings were not required in the context of
disability benefits
2) Due process is flexible and calls for such procedural protections as the particular
situation demands
3) The court has created a balancing test involving three factors to consider:
a. The private interest that will be affected by the official action
b. Risk of an erroneous deprivation of such interest through procedures used
c. Governments interest, including the fiscal and administrative burdens

Article VI. Takings Clause and the Contracts Clause

Section VI.1 The Takings Clause
1) The takings clause of the 5th amendment provides that private property cannot "be taken
for public use without just compensation"
a. The takings clause has long been extended to the states as incorporated through
the Due Process Clause of the 14th amendment
2) State and federal government frequently resort to the power of eminent domain to "take"
private land for public use
a. When property is "taken" through condemnation, the owner is entitled to "just
compensation"
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b. However, this process raises several questions:

i. Does the "public use" clause impose any substantive limitation on takings?
ii. Should courts extend the compensation requirement to any government
actions beyond formal takings under the government's power of eminent
domain?
iii. Should courts enforce compensation requirements for so called
"regulatory takings"? If they do, are they as unmoored from text as are
courts applying substantive due process?

Section VI.2 The Public Use Requirement

1) Judicial deference towards determination of public use
a. There is no issue of public use when government takes property in order to
erect public property such as schools, city halls, or roadways
b. Things get controversial when the government takes private property and
then transfers it for development or use by other private parties
c. Nevertheless, the court has extended the same deference toward legislative
determination of what constitutes "public use" as it does under economic
due process scrutiny
(a) Missouri Pacific Railroad v. Nebraska
1) Facts
a. Farmers did not want to use the two grain silos available so they asked the
railroad to lease them some land for use
b. The state, through its police power, allowed it and made the railroad lease
them the land
2) Railroads Argument
a. Relied on the due process clause of the 14th amendment instead of the
takings clause of the Fifth Amendment
b. You cannot take my private property and give it to another private
individual
3) Opinion
a. State cannot take private property and give it to another private individual
(b) Berman v. Parker (1954)
1) Unanimous decision
2) Facts
a. Washington D.C. law authorized the taking of private property for the
purpose of redeveloping blighted urban areas
b. The government of D.C. (a.k.a. the federal government) wanted to take
Bermans department store and give it to private developers who were
required to conform to redevelopment plans adopted by a D.C. agency
c. The redevelopment plan is integral to the courts decision because while
the private property will eventually end up back in the hands of private
individuals, the redevelopment of the area is for the public benefit
3) The redevelopment plan

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a. The D.C. agency, which is a public agency that allows for public debate,
wants and needs to get rid of the blight, but in order for the plan to be
successful whole city blocks must be raised and not just pieces therein
b. Area must be planned as a whole it to be successful
c. It is very broad and inclusive, including sanitation needs, park
development, housing, etc.
d. While both private and public functions, they are included for the public
welfare overall
4) Opinion
a. The role of the judiciary in determining whether the eminent domain
power is being exercised for a public purpose is an extremely narrow one
b. The concept of the public welfare is broad and inclusive
i. With such a broad and inclusive plan intended for the publics
benefit, the taking looks much less like a naked transfer
c. It is within the legislature's power to determine that the community should
be beautiful, spacious, healthy, clean, etc.
(c) Hawaii Housing Authority v. Midkiff (1984)
1) Unanimous decision
2) Facts
a. There were former aristocrats of Hawaii who owned most of the land in
Hawaii
b. A majority of the population were tenants leasing the land from this small
concentration of landowners so the government of Hawaii passed a Land
Reform Act
c. Under the act, tenants on lots under long-term leases were entitled to ask
the state agency to condemn the property in an effort to prevent market
failure
3) Opinion
a. Deferential approach
i. It is the legislatures job to make such decisions, not the courts
ii. When the legislature's purpose is legitimate and its means are not
irrational, our cases make clear that empirical debate over the
wisdom of takings, no less than debates over the wisdom of other
kinds of socioeconomic legislation, are not to be carried out in the
federal courts
b. Just because property taken by eminent domain is transferred first to
private beneficiaries does not condemn that taking as having only a private
purpose
i. Here, the Hawaiian legislature adopted this act with a legitimate
public purpose in mind of eliminating a land oligopoly which
drastically inflated land prices
ii. There is also a detailed plan in place that keeps the taking from
looking like a blind, naked transfer
1. Tenants may ask the state to condemn the land and then the
state can give the tenant title to the land in exchange for
cash or for nothing at all
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(d) Kelo v. City of New London (2005)

1) Strongly split 5-4 decision
2) Facts
a. In 2000, New London approved a development plan meant to create in
excess of 1,000 jobs, increase tax and other revenue, and revitalize an
economically distressed city
b. The state planned to build a new park, and Pfizer announced it would
build a $300 million research facility on the site immediately adjacent to
Ft. Trumbull
c. To assemble the land needed under this plan, the city purchased property
from willing sellers and was going to use eminent domain to get the rest
d. Petitioner Kilo had lived in Ft. Trumbull since 1997 and has extensively
remodeled, and prizes her home for its water view
e. Dery was born in her Ft. Trumbull house in 1918 and has lived there her
entire life
f. All in all, there are 9 petitioners and 15 pieces of property
g. There are no allegations that any of this property is blighted or in poor
condition
3) Issue
a. Whether this city's proposed disposition of property qualified as "public
use" within the meaning of the takings clause of the 5th amendment?
4) Opinion
a. "A state may transfer property from one private party to another if future
use by the public is the purpose for the taking"
b. Although the plan in this case does not involve using the condemned land
in its entirety for the public, the court long ago rejected the idea that there
is any kind of literal requirement that condemned property be put into use
for the general public
c. So, the real question here is does the use of the land serve a public
purpose?
i. All the cases on this topic have given great deference to legislative
judgments
1. Here, the city's determination that the area was sufficiently
distressed to justify a program of economic rejuvenation is
entitled to our deference
2. The question here cannot be resolved on a piecemeal basis,
but in light of the entire plan
3. The court finds that the plan unquestionably serves a
"public purpose"
5) Petitioners argument
a. Advocated a new bright line rule that economic value does not qualify for
public use
6) Courts response
a. Neither precedent nor logic support this idea
b. Promoting economic development has long been recognized as an
accepted function of government.
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7) Kennedy concurred
a. Courts confronted with the plausible accusation of impermissible
favoritism to private parties should treat the objection as serious and
review the record to see if it has merit but with presumption that the
governments actions were reasonable and intended to serve the public
purpose
b. In this case, the trial court conducted a careful and extensive inquiry and
concluded that the benefiting party was not the primary motivation or
effect of the development plan
c. Once again though, he does not foreclose the possibility that a more
stringent standard or review might be appropriate for a more narrow
category of takings
8) OConnor dissented
a. Worries that all property not being put to most beneficial use is subject to
takings
i. Slippery slope arguments are peppered throughout
b. The legislature here wants the land to be used in a different way, but cant
you say about any piece of property that it is not being used the most
beneficially?
i. Economic development is not a public use
ii. This case is different than Berman, because here there is no social
harm or blighted situation with these homes
iii. Also different from Midkiff, where there was an oligopoly issue
9) Thomas dissented
a. Wants to go back to restrictive meaning of public use
b. Points out that the public use phrase drastically differs from the general
welfare phrase used elsewhere in the Constitution
i. The framers would have used a broader term if they had meant for
the Public Use clause to have a sweeping scope.
10) The backlash from Kelo was big
a. Groups decried it
b. Bush issued executive orders limiting federal use of eminent domain
c. Nearly half the states have adopted statutory or constitutional restrictions
on the use of eminent domain to transfer land to private developers

Section VI.3 Regulatory Takings

1) In a regulatory taking, the government does not take title to the property, it just
regulates its use.
2) A series of decisions have held that if a regulation substantially diminishes a
lands value, then the government should have to pay the property owner just
compensation
3) We have to keep in mind that this is somewhat of a departure from the text as well
as a departure from the original meaning of the 5th amendment.
a. When the 5th amendment was conceived, we didnt live in this massive
administrative state like we do now

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(a) Penn. Coal Co. v. Mahon (1922)

1) Facts
a. Under a deed, Mahon received the surface rights while the coal co.
retained the right to remove all coal under the surface
b. Further, Mahon assumed the risk in taking the premises and waived all
claims for damages that may have arisen
c. Under the Kohler Act, mining for anthracite coal in such a way as to cause
the subsidence of any structure used as a human habitation was forbidden
d. The state admitted to destroying previously existing rights of property and
contract in enacting it
2) Opinion
a. Private property may be regulated to a certain degree, but a taking under
the 5th Amendment will be found if the regulation results in a severe
diminution of value
b. In this case, the act goes too far by making it commercially impracticable
to mine certain coal
i. This action has nearly the same effect as appropriating or
destroying the coal
c. So far as private persons or communities have seen fit to take the risk of
acquiring only surface rights, we cannot see the fact that their risk has
become a danger warrants giving them greater rights than they bought
d. In essence, the state has taken the subsurface rights of the coal company
and given them to the homeowners
i. More attuned to grand larceny than petty theft
ii. This is Calder v. Bulltaking from private individual A (coal co.)
to give to private individual B (Mahon)
3) Brandeis dissented
a. Every restriction on use of property imposed in exercise of police power
deprives the owner of some right that had been enjoyed previously, but a
restriction imposed to protect the public health, safety, or morals from
dangers threatened is not a taking
i. Restrictions cannot be imposed unless their purposes are to protect
the public
ii. Purpose of restriction does not cease to be public merely because
some private persons receive gratuitously valuable benefits
b. Restriction upon use does not become inappropriate as a means merely
because it deprives the owner of the only use to which the property can be
profitably put
(b) Miller v. Schoene (1928)
1) Facts
a. Virginia law calls for the destruction of red cedar trees which may be the
source of a communicable disease growing within a prescribed radius of
any apple orchard
b. Apple growing is one of the principal agricultural pursuits in Virginia

64

c. The owners of destroyed cedar trees were only compensated for the cost of
removing the trees
2) Opinion
a. The court determines that it was necessary for the state to make a choice
between the perseveration of one class of property wherever both existed
in dangerous proximity (i.e. a regulatory taking)
b. Cedar trees are a public nuisance
c. There is a preponderant public concern in the preservation of one interest
over the other
3) Difference between Miller and Penn. Coal:
a. Penn Coal would have lost out on all the coal and money that comes there
from whereas cedar tree owners can re-grow their trees (i.e. one was an
absolute taking while the other was absolute but only as to that years
crop)
b. Moreover, the state in Miller could not stand by and do nothing since the
harm/public concern was so fierce (i.e. make the public concern more and
more certain)
i. In the end, distinguish the cases by characterizing the facts and the
public concern
(c) Keystone Bituminous Coal Assn n. Debenefictus (1987)
1) Modern day Kohler Act upheld
a. Note that the court did NOT overrule Penn. Coal
2) That private individuals erred in taking a risk cannot estop the commonwealth
from exercising its police power to abate activity akin to a public nuisance
3) Distinguished from Penn. Coal:
a. Subsidence damage to preexisting public building, dwellings, and
cemeteries
b. Moreover, only 50% of the coal had to remain, so 50% was able to be
mined
c. Deprivation not equivalent to that in Penn. Coal
4) Rehnquist dissented
a. The 27 million tons of coal that could no longer be mined certainly
represented a taking
b. Public purpose does not resolve the question of whether a taking has
occurred; the existence of such a public purpose is merely a necessary
prerequisite to the governments exercise of its own taking power
5) Note that the court has not limited regulatory takings to property in land, rather
they have extended the concept to personal property, intangible interests,
intellectual property, and monetary interests
(d) Arguments to Help Your Case
1) Characterize the facts in your case differently than from precedent
2) Characterize the public concern in such a way as to make it more and more
certain (i.e. phrase it in such a way that the option to do nothing is not available to
the state)
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3) Reciprocity of advantage (i.e. We may have taken the land to build an electric
line, yet in doing so you benefit from it)
(e) Penn. Central Transportation Co. v. NYC (1978)
1) Facts
a. Preservation law in NYC requires owners of designated landmarks to keep
their buildings exteriors in good repair and to obtain approval from the
city commissioner before making exterior altercations
b. Grand Central, who wanted to build a skyscraper to utilize the unused air
space above the terminal, was denied approval to make exterior
altercations
2) Opinion
a. Balancing test and factors the court considers:
i. Economic impact of the regulation on Grand Central
1. Extent to which the regulation has interfered with distinct
investment backed expectations
ii. Character of the government action
1. Taking more readily found when property interference is
characterized as a physical invasion by the government
2. Taking is not so readily found when interference arises
from some public program adjusting the benefits and
burdens of economic life to promote the common good
b. Case at hand
i. The economic impact is low since there are other readily available
means in achieving the goal of utilizing the unused air space
ii. As to the characterization of the government action, over 400 other
NYC landmarks are subject to this law which imposes restrictions
that are substantially related to the promotion of the publics
general welfare
3) Dissent
a. The exceptions to the takings rules do not apply
b. The severe impact of this law is not justified
c. The city has imposed a substantial cost on a VERY small group of
property owners for the benefit of all of NYC
i. This sort of imposition is what the takings provision is supposed to
protect

Section VI.4 Per Se Takings

1) This type of regulation always constitutes a taking
(a) Loretto v. Teleprompter Manhattan CATV Corp. (1992)
1) Facts
a. NY law requires landlords to permit cable TV companies to install cable
wire upon the landlords rental property
2) Opinion
a. No negative economic impact
b. The character of the government action achieves a legitimate purpose
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c. Utilizing mass communication to promote education

d. It is a taking, however, because it is the permanent physical occupation of
property
e. The court creates a per se rule because it does not want to set arbitrary
standards of how little or how much space can be used to lay the cable
wires and pipes
3) Rule
a. A permanent physical occupation of an owners property is a taking
without regard to the public interests that the government action may serve
(b) Lucas v. S. Carolina Coastal Council (1992)
1) Facts
a. Lucas bought two lots that he planned to build single family homes on
b. A management act barred Lucas from erecting any permanent habitable
structures
2) Opinion
a. The 5th amendment is violated when a land-use regulation:
i. Does not substantially advance legitimate state interests OR
ii. Denies owner economically viable use of his land
b. To sustain without compensation would require that the owners estate did
not include the proscribed use interests to begin with (i.e. the owner never
had the right to the use to begin with)
i. This seems to be overturned in Pallazzolo
c. A law or decree with such effect must do no more than duplicate the result
that could have been achieved in the courts (common law)
i. By adjacent landowners under private nuisance
ii. By state under its power to abate nuisances that affect the public
generally
d. An analysis for this purpose would entail:
i. Degree of harm to public lands and resources or adjacent private
property imposed by claimants proposed activities
ii. Social value of claimants activities and their suitability to location
iii. Relative ease with which the alleged harm can be avoided through
action by claimant or government
3) Remand
e. The South Carolina Supreme Court held that common law principles of
property and nuisance would not have prohibited the planned
development, and thus Lucas was entitled to compensation
4) Rule
a. The total deprivation of all beneficial uses is a taking
(c) Nollan v. California Coastal Commission (1987)
1) Facts
a. The Nollans wanted to replace their beach bungalow with a larger house
b. The commission granted permission to do so, but only if they agreed to
allow the public to pass across their beachfront land
2) Holding
67

a. A condition on a beachfront building permit constitutes a compensable

taking
3) Scalias Opinion
a. This clearly would have been a taking if the state had directly imposed an
easement of access
b. The Commission could have denied the permit, but the relationship
between the states professed interest of preserving sight of the coastline
and the easement was insufficient
c. In finding no adequate nexus between the condition and the purpose of the
building restriction, Scalia applied a kind of heightened scrutiny of the
means-end relationship between the development condition and the states
regulatory purpose
4) Brennan dissented
a. The court demands a degree of exactitude that is inconsistent with our
standard for reviewing the rationality of a States exercise of its police
power for the welfare of its citizens

Section VI.5 The Contracts Clause

1) The Contracts clause of Article 1 10 provides that "no state shall pass any law
impairing the obligation of contracts"
a. Note that the Constitution contains no similar limitation on the federal
government
(a) Home Building and Loan Association v. Blaisdell (1934)
1) Facts
a. This case arose from a challenge to the Minnesota Mortgage Moratorium
law, enacted during the depression which authorized relief from mortgage
foreclosure and execution sales of real property
b. Local courts could grant extensions on redemption from foreclosure, but
not beyond May 1935
c. Extensions were conditioned on the mortgagor being able to pay all or a
reasonable part of the fair income and rental value of the property towards
taxes, insurance, interest, and principal
2) History
a. The highest state court sustained the law as an emergency measure
3) Holding
a. Affirmed
4) Opinion
a. Considerations
i. The relation of emergency to constitutional power
ii. The historical setting of the clause
iii. The development of the jurisprudence of the contract clause
iv. The principles of construction which may be considered to be
established.
b. While emergency doesnt create power, emergency may furnish the
occasion for the exercise of power
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c. The protective power of the state, its police power, may be exercised in
directly preventing the immediate and literal enforcement of contractual
obligations by a temporary and conditional restraint, where vital public
interests would otherwise suffer
d. Here, the extensions conditions do not appear to be unreasonable
i. The mortgage debt remains, the interest is still running, etc.
5) Sutherland dissented
a. The contracts clause was meant to foreclose state action impairing the
obligation of contracts primarily and especially in respect of such action
aimed at giving relief to debtors in time of emergency

Article VII. Equal Protection

Section VII.1

Introduction
th

1) 14 Amendment provides that No State shalldeny to any person w/in its

jurisdiction the equal protection of the laws
a. This applies to similarly-situated groups (i.e. must compare apples to
apples, because everybody cant be treated equally in all respects)
b. This applies to the federal government as well through reverse
incorporation of the 5th Amendment (similar to due process analysis in
Bowling v. Sharpe)
2) Compare w/ Due Process:
a. Test is similar to Due Process (rational basis & strict scrutiny), but we
have added intermediate scrutiny (i.e. substantially related to a legit
government interest)
b. However, there is a difference in the end result
i. Under substantive due process:
1. If it was not a legit government purpose, the inquiry
stopped and the legislature could not try again
2. If there were compelling ends, but the means were not
narrowly tailored, the legislature could try again
3. Under most substantive due process analysis, however, the
ends were found to be illegitimate and the law is forever
dead
ii. Under Equal Protection:
1. Equal protection violations can be cured
2. Court generally just says you need to do this fairly or
reclassify these people, allowing the legislature to keep
trying again
3) 3 questions to ask when looking at these laws:
a. What is the classification?
i. Sometimes laws appear neutral on their face, but end up having a
discriminatory effect
b. What is the purpose used to justify this classification?
c. How should the court examine whether the purpose was sufficient
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i. This gets into the different standards of review we should use

4) 3 standards of judicial scrutiny:
a. Rational basis
i. Requires only a rational relationship to legitimate ends
ii. Generally socioeconomic laws, age, disability, and sexual
orientation not seen as inherently suspect
b. Intermediate scrutiny
i. Serves important governmental objectives and be substantially
related to achievement of those objectives
ii. Gender discrimination
c. Strict scrutiny
i. Requires regulation to serve compelling governmental interests
and be essential to those interests
ii. The Least Restrictive Means
iii. Race discrimination and suspect classifications
5) Sometimes strict scrutiny is relaxed (such as for affirmative action) or rational
review is heightened (such as when inappropriate animus is at work), so it might
be better to think of this as a spectrum than as three, set tiers

Section VII.2

Minimum Rationality Review of Economic Regulations

1) Lowest level of review

a. Rational basis test, whether the classification is over inclusive, under
inclusive, or both
i. Over inclusive
1. Regulating more than the harm
ii. Under inclusive
1. Regulating only one aspect of the harm
(a) Railway Express Agency v. New York (1949)
1) Facts
a. NYC Traffic Regulation 124 stated that no person shall operate on any
street an advertising vehicle
b. This regulation, however, does not prevent businesses from placing
business notices on its own vehicles so long as those vehicles are engaged
in the usual business of the owner
i. So, a cigarette company can place a cigarette ad on the side of a
truck that it owns while the truck is carrying cigarettes for delivery
c. Railway Express is an operator of trucks in NYC which sells space of the
side of trucks for advertising
d. The business ships items only so the ad on the truck does not necessarily
correlate to the goods being carried nor are the goods owned by the
shipping company
2) Opinion
a. Equal protection analysis:
i. Classification
1. Under-Inclusive
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2. We have this whole world (think a circle) of all the ads in

NY, and a small section isnt allowed to advertise (Railway
fits in here)
3. This is okay, however, since equal protection does not
require you to eradicate all evils or none at all
ii. Purpose
1. It was for motorist safety, so there wouldnt be as many
distracting ads
2. Safety seems like a legit policing power
iii. Standard
1. Does not involve race, gender, or any of those
2. It is economic legislation, so we apply minimum rational
basis review, and this law passes the test
3) Jackson concurred
a. Worried that this might actually be not animus, but rather cowardice
b. Maybe the law was not specifically going after these trucks, but rather was
avoiding going after the people with real power, the newspapers
(b) Kotch v. Board of River Port Pilot Commissioners
1) Facts
a. Louisiana pilotage law granting state certificates only to relatives and
friends of incumbents (i.e. under inclusive)
2) Opinion
a. Since the law is an economic regulation, the level of review is low
b. Remember, do not even need the actual purpose, just a conceivable one
c. Deferential to the legislature
(c) Williamson v. Lee Optical Company (1955)
1) Classification
a. Ready to wear v. opticians
b. Under inclusive since only one of the above is prohibited
2) Opinion
a. While under inclusive, the legislature is allowed to tackle the problem one
step at a time
i. After all, Railway Express made it clear that you are not making
the choice to either eradicate all the evil or do nothing at all
b. Presents the old Lochnerism argument
i. Who are you as the judiciary to say what is right when we as the
legislature are the policymakers?
3) As long as the purpose is reasonably related to the classification, it should be
upheld
(d) Morey v. Doud
1) American Express exemption held to be unconstitutional because an economic
advantage to a named company bears no reasonable relation to the purpose of the
law
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(e) New Orleans v. Dukes (1976)

1) Facts
a. New Orleans law exempted pushcart vendors with more than eight years
of experience from a prohibition against such vendors in the French
Quarter
2) Opinion
a. Classification (two waysboth under inclusive):
i. More than eight years of pushcart vending experience v. all other
pushcart vendors
ii. Licensed pushcart vendors v. unlicensed pushcart vendors
b. Purpose
i. Preventing the harm that occurs from too many vendors interfering
with the citys charm
c. Rational basis review
(f) U.S. Department of Agriculture v. Moreno (1973)
1) Example of an economic regulation failing rational basis review
2) Facts
a. Federal food stamp program limited assistance to households, which is
defined as a group of related person
3) Opinion
a. Classification
i. Related persons living together v. unrelated persons living together
ii. Under inclusive
b. Purpose
i. Combat hunger
c. Rational basis review
i. While the legislature is allowed to solve problems one step at a
time, the legislature has exhibited a bare desire to harm the only
group not picked up in the classification, hippies (only people who
would be living together at this time unrelated)
4) Arbitrarily prohibiting hippies from assistance is not at all related to solving the
problem of hunger (no rational relationship)
a. Hidden animus
b. If rational basis is to mean anything, at the very least it should mean that a
congressional desire to harm a politically unpopular group cannot
constitute legitimate government interest
(g) Massachusetts Board of Retirement v. Murgia
1) Example of an over inclusive regulation
2) Facts
a. It is mandatory for police officers to retire at the age of 50
3) Opinion
a. Classification
i. Those over 50 v. those under 50
b. Purpose
i. Eradicate the harm of unfit officers
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c. Rational basis review

i. Over inclusive because it regulates more than the harm since some
police officer over 50 will not be unfit
ii. However, there is a rational relationship between the classification
and the harm sought to be eradicated
(h) New York City Transit Authority v. Beazer (1979)
1) Example of both an over inclusive and under inclusive regulation
2) Facts
a. NYC Transit Authority excluded all methadone users from any transit
authority employment
3) Opinion
a. Classification
i. Methadone users
b. Purpose
i. Preventing the harm that could be caused by a methadone user
driving buses and trains
c. Rational basis review
i. Over inclusive
1. Not all methadone users are actually dangerous
ii. Under inclusive
1. All sorts of other dangers that are not picked up, like
drunks, texters, etc.
i. A degree of uncertainty persists as to whether methadone users
will relapse, so the court is not going to second-guess the
legislature
1. Around 25% of methadone users relapse, which is 1 of 4
bus drivers!
4) Whites dissent
a. While TA believed there would be an adverse public reaction if the public
knew about recovering addicts and methadone users working for TA,
White thinks this looks like animus towards former users

Section VII.3

Race Discrimination

(a) Strauder v. W. Virginia (1880)

1) Facts
a. Only white males over the age of 21 who are citizens of the state may
serve on juries
2) Opinion
a. Historical argument
i. Equal protection clauses historical purpose was to secure to a race
recently emancipated all the civil rights the superior race enjoy
b. If we are to have real emancipation, we cannot keep blacks from
participating in the civic duty of jury duty on the basis of race alone

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c. There could be other restrictions, however, like a literacy requirement or a

certain age requirement since main aim of the 14th amendment was the
eradication of racial discrimination
(b) Plessy v. Ferguson (1896)
1) Facts
a. There was a law allowing for separate but equal railroad cars
2) Opinion
a. Distinguish the precedent set by Strauder
i. Strauder excluded a complete race from a civil right
ii. Here, all the races have the same rights
1. The law merely requires their separation
b. It is the difference between civic participation and social participation
i. Civic participation
1. The law is providing for equality
ii. Social participation
1. People make those choices and the laws merely validate
those choices
c. Equal protection under the 14th amendment is the absolute equality of the
races before the law, not the abolishment of distinctions based on color
i. If whites & blacks are ever going to be equals it will be because
they decide this, not because of some laws are made
3) Dissent
a. Two theories about the Constitution and Equal Protection:
i. Colorblind Theory
1. The Constitution does not talk about race because it does
not recognize race
ii. Caste System Theory
1. Constitution was supposed to prevent a caste system
2. There is no dominant ruling class of citizens
iii. ***hypo: assume its constitutional, how do you explain the way
of the caste ---constitution is color blind to make sure that a caste
system doesnt occur every time we stray from this principle,
weve done harm---only way to avoid caste system in our country.
(c) Loving v. Virginia (1967)
1) Facts
a. Miscegenation Laws
i. Only prevented whites from marrying other races
b. A black woman and a white man were convicted and released on the
condition that they not return to Virginia for 25 years
2) States Argument Against Strict Scrutiny Review
a. No racial difference because both races are punished to the same degree
b. Framers did not intend for the 14th amendment to make state
miscegenation laws unconstitutional (historical argument).
3) Opinion
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a. The preservation of the racial integrity of the white race is not a

compelling government interest
b. Even if it were, is it the least restrictive means?
i. No, because it is only concerned with the integrity of one race, the
white race
ii. Not an even handed state purpose to protect the integrity of all
races
c. The clear-handed purpose of the 14th amendment was to eliminate all
official state sources of invidious racial discrimination in the states
i. This purpose of the 14th amendment is read more broadly than
cases of the past
4) This challenge could have been brought substantive due process
a. Equal protection is just a different way of approaching the issue
(d) Palmore v. Sidoti (1984)
1) Facts
a. A mother, previously awarded custody, was later denied custody after she
re-married someone of a different race
2) History
a. Lower courts held that it was not in the best interest of the child to remain
with her mom because there was a risk that the child would be subject to a
variety of pressures and stresses not present if she lived with parents of the
same race
3) Opinion
a. While the what is in the childs best interests is a compelling state purpose,
the court should not even be considering race in making that determination
i. While there may be private biases, or a child may go through
social stigmatization, the law cannot, directly or indirectly, give
these biases effect
ii. It is not the courts place to try and fix these private biases
b. Court uses the Constitution is color-blind argument
c. While racial prohibitions arent per se unconstitutional, disadvantaging
racial classifications are ordinarily suspect, must be subjected to the
most rigid scrutiny, and bear a very heavy burden of justification
4) A seeming overruling of that part in Plessy talking of social choices
5) The means cannot be related to social prejudice
6) Hypo: multi ethnic placement act (no discruimination of adoption based on
race)---in which circumstance could race matter in adoption?
(e) Korematsu v. U.S. (1944)
1) Facts
a. Japanese internment camps during WWII
2) Governmental purpose
a. Protect the general public
b. Fear of attack in time of war
i. Danger is espionage, treason, and sabotage
3) Classification
75

4)
5)

6)

7)

a. All people of Japanese ancestry

i. Over inclusive
1. Most of the Japanese-Americans are probably loyal to the
United States and not at all spies working for Japan
2. In the aftermath, never one was convicted of sabotage at
this time
ii. Under inclusive
1. Does not include people who are not of Japanese ancestry
who may further be engaged in treason (after all, with the
Germans and Italians too)
Strict Scrutiny
a. Cannot say that these actions were unjustified now that we have the calm
perspective of hindsight
Murphy Dissent
a. Measure of an erroneous assumption of racial guilt rather than a bona fide
military necessity
b. There is no rational relationship between the internment of all people of
Japanese ancestry and the removal of the dangers
c. Should be held to the highest standard reserved for all suspect
classification since there seems to be something else underlying the law.
Jacksons Dissent
a. Court should not have gotten involvedan incident when a commander
oversteps the bounds of constitutionality, becomes a doctrine of the
constitution when the court the reviews and approves of it
b. Military orders may or may not be expedient precautions, but they are a
minor incidentby the court issuing this ruling, on the other hand, it has
turned this one incident into a doctrine
c. The court has set new precedent that should not have come to be on the
books
Purpose of ordinances: to prevent sabotage and espionage

Section VII.4

Facially Neutral Classifications

1) The statute must have a racial purpose and effect to be declared unconstitutional
(a) Yick Wo v. Hopkins (1886)
1) Facts
a. Yick Wo was convicted of operating a laundry in a wooding building with
a permit to do
b. A city ordinance made it mandatory to receive the consent of the Board of
Supervisors to operate a laundry unless the building in which the laundry
was located was made of stone or brick
c. Out of the non-Chinese applicants, all but one received permits; out of the
200 Chinese applicants, none received permits
2) Opinion
a. Yick Wo may not be a citizen, but he is entitled to equal protection of the
laws
a. On its face, the purpose is neutral
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i. It says nothing about not being Chinese

b. Seems like legitimate public interest
i. There was a problem with fires
c. The administration was discriminatory
i. All branches of government are prohibited from discriminating
ii. Whatever was the intent of the ordinances as adopted, they were
applied by the administration so unequally and oppressively as to
amount to a practical denial by the state of equal protection
3) Holding
a. Unconstitutional not because of the law but because of the administration
b. It was the application process that was discriminatory
(b) Gomillion v. Lightfoot (1960)
1) Discrimination inferred even though law facially neutral because the effect the of
statute removed all but 4 or 5 of the 400 African-American voters from the city
and none of the white voters
(c) Griffin v. County School Board of Prince Edward County (1964)
1) Facts
a. County closed down public schools, but only provided white children with
grants to attend private schools
2) Inferred Discriminatory motive
a. This was to ensure white and black children wouldnt have to go to the
same school
b. It clearly had a discriminatory effect
(d) Palmer v. Thompson (1971)
1) Facts
a. Jackson, Miss., desegregated all buildings except for the swimming pools
which were seen as a luxury item as well as areas where racism and
violence thrived
b. The town decided to close the swimming pools down instead of expending
extra capital to desegregate (also seen as being more safe)
2) Two views of the case
a. Discriminatory purpose by a board already being forced into
desegregating everything else but cannot point to a discriminatory effect
b. No real discriminatory purpose and a very minor effect
3) Distinguished from Griffin
a. Qualitative difference between education and swimming
b. Griffin saw public money going to private individuals in a discriminatory
way whereas no money is being disbursed here
i. No state-funded discriminatory effect
4) Legal distinction between Loving and Palmer
a. Facially neutral law in Palmer
5) Legal distinction from Yick Wo and Gomillion
a. The focus in those cases was on the actual effect of the enactments, not on
the motivation that lead the states to act as they did
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6) Effect is the same for both classes here

a. There are not any public pools now for both whites and blacks
7) In the end, racial motivation is not enough without an effect
8) Blacks Dissent
a. Closing the pools is an expression of an official policy that AfricanAmericans are unfit to associate with whites
(e) Washington v. Davis (1976)
1) Facts
a. The Federal Civil Service Exam is used by every federal agency
i. No discriminatory purpose because given to everyone
ii. There was a discriminatory effect though because black candidates
failed at a higher rate than white candidates
2) Opinion
a. Differentiated between de jure segregation and de facto segregation
i. The differentiating factor was purpose or intent to segregate
b. While disproportionate impact is important in an analysis, standing alone,
it doesnt trigger strict scrutiny
i. Black applicants that failed the test could not more successfully
claim the test denied them equal protection than white applicants
who failed
c. Need both discriminatory purpose and discriminatory effect to get to
strict scrutiny test
i. Purpose doesnt need to be express, but needs to be present, either
facially or through its application
ii. When disparate impact involved, if the government can show it is
facially neutral AND it serves proper government ends (reasonable
relation test), then the law can be constitutional
d. Stevens Concurred
i. Agreed a constitutional issue doesnt arise every time a
disproportionate impact is shown
ii. On the other hand, said when disproportionate impact is as
dramatic as Gomillion or Yick Wo, it doesnt matter whether the
standard is phased in terms of purpose or effect

Section VII.5

Brown v. Board of Education I

(a) Brown v. Board of Education 1

1) Unanimous decision
a. Short opinion to show that it was easy and quick to answer
b. Not narrowly tailored
c. Assumed findings unsupported by the record
2) Opinion
a. Began by considering the 14th amendment and the state of public
education
i. At the time it was passed, the state of public education in this
country is at best inconclusive
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1. Education was largely in the hands of private groups

ii. Today, education is everything
1. Cannot succeed without it
iii. The world has changed dramatically so the vague language of the
14th amendment should be applied to these changes OR history
should not even play a role in making these determinations
b. The court then considered cases construing the 14th amendment
c. Lastly, it looked towards the effect of segregation on public education
i. Separate but equal is inherently equal because you cannot just
consider the tangibles, you have to also consider the intangibles
ii. Tangibles v. intangibles
1. Tangibles are the physical facilities, teachers, class size,
school supplies, etc.
2. Intangibles are the ability to study, engage in discussions,
reputation, influence of alumni, exchange of ideas among
students, etc.
iii. There may be equality in the tangibles, yet separation deprives the
children of equality in the intangibles (i.e. deprives them of
educational opportunites)
iv. Therefore, inherently unequal because no matter how facially
neutral the law, segregation results in the inferiority of one group
over the other irregardless
3) Was this an anti-caste decision or a color-blind decision?
a. Separate is inherently unequal seems to resonate with color-blind
b. But to separate them from others of a similar age and qualifications
solely because of their race generates a feeling of inferiority as to their
status in the community that may affect their hearts and minds in a way
unlikely to ever be undone seems more like the anti-caste principal
c. One difference between the two:
i. Anti-caste principal is not inherent, but color-blind principal is
ii. Brown seems to merge these two
(b) Bus Plan Hypothetical
District #190% black
District #210% black
1) Plan 1:
a. 55% of the blacks from district 1 remain there while the other 35% are
bused to district 2
b. 10% of the whites from district 1 remain there while 35% are bused to
district 2
c. 55% of whites remain in district 2 as do 10% of the blacks
2) Plan 2:
a. 90% of the blacks remain in district 1
b. 10% of the blacks from district 2 are bused to district 1
c. All whites from district 2 remain there
d. All whites from district 1 move to district 2
3) Unconstitutional?
a. Two Constitutional Theories:
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i. Colorblind Theory: was the classification based on race?

1. If yes, then unconstitutional
2. Do not need to worry about tangibles or intangibles or and
do not need to consider history
i. Caste System Theory: must show all the ways that the
classification is inherently evil
1. To do this, we must ask history questions, look into the
racial composition of each districts school board, look into
the nature of the district itself, etc.
2. Plan at hand, can self-segregation result in feelings of
inferiority?

Section VII.6

Benign Discrimination and Affirmative Action

1) Affirmative Action sounds positive, yet the same program could also be referred
to as reverse racial discrimination which sounds negative
2) Questions to ask in a very fact intensive analysis:
a. Is it a good motive?
b. Justification?
i. Is the use of race allowed when the goal is to further the objectives
of the 14th amendment?
c. Scope?
i. Are these really remedies?
3) These questions are in turn influenced by your view of the constitution:
a. If you disagree completely with affirmative action, you adhere to the
colorblind theory
i. It is never okay to make classifications based on race
b. If you believe that affirmative action is always appropriate or even
sometimes appropriate, you adhere to the caste system theory
4) Must rely heavily on history and social science to support your position
5) The courts remedial power is extremely broad when a constitutional wrong has
been committed
(a) Keyes v. School District
1) No longer unanimous court
2) Case stands for proposition that even if a school district doesnt have a history of
legally imposed segregation, if there is purposeful discrimination in only part of a
district, it can be probative to show discrimination in the entire district
a. Thus, if only one school is shown to have intentional acts, this can be used
to show discrimination in the whole district
b. This gives the courts the ability to remedy this
3) Rehnquist dissented
a. You cannot cause a school to integrate an area that was never purposefully
desegregated
(b) Regents of University of California v. Bakke (1978)
1) Facts
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a. Bakke, a white applicant, was denied admission and challenged UC Davis

Medical Schools practice of reserving 16 of 100 slots for minority
students
i. Bakke had better credentials than some of those admitted
2) Plurality Opinion ONLY
a. 1st Part: POWELL + 4 justices (Burger, Stewart, Rehnquist, & Stevens)
i. This particular program was struck down
ii. Didnt think you should ever use race like this
1. Color-blind approach
b. 2nd Part: POWELL + 4 justices (Brennan, White, Marshall, & Blackmun)
i. State has a substantial interest that legitimately may be served by
a properly devised admissions program involving the competitive
consideration of race and ethnic origin
ii. While race cant be the sole factor, maybe it can be a factor mixed
with other stuff
c. Brennan, White, Marshall, and Blackmun concurrence in part & dissent in
part:
i. Since whites dont have any of the traditional indicia of
suspectness, they instead thought something like intermediate
scrutiny, like used in gender cases, was more appropriate: racial
classifications designed to further remedial purposes must serve
important governmental objectives and must be substantially
related to achievement of those objectives
3) Color-blind v. Caste System arguments in the case
a. Color blind test
i. California Supreme Court had used strict scrutiny because it was a
facially racial classificatory law
b. Caste system theory
i. Californias argument to Supreme Court (supporting the school)
was that the white males didnt need the protection because they
arent a discrete and insular minority
4) 4 purposes that Powell evaluated
a. Reducing the historic deficit of traditionally disfavored minorities in
medical schools and the medical profession:
i. Rejected
ii. It preferred one person over another solely based on race
b. Countering the effects of societal discrimination
i. Rejected
ii. Focused on indentified discrimination as it related to that particular
institution rather than societal discrimination
1. Powell wanted finding/evidence, not just a broad claim
2. Further, thought legislature, rather than the school, was in a
better position to do this.
c. Increasing the number of physicians who will practice in communities
currently underserved
i. Rejected
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ii. Powell also found there were no findings that this would occur
d. Obtaining the education benefits that flow from an ethnically diverse
student body
i. Accepted as compelling because of 1st Amendment and freedom of
a university to make its own judgments as to education, including
selecting its student body
5) Powell, using strict scrutiny, says that UC-Daviss plan didnt use the least
restrictive means:
a. Illustrates Harvards admissions program, which has sought to include
students from disadvantaged economic, racial, and ethnic groups
b. However, this is just one factor as Harvard thinks a farm boy from Idaho
can bring something a Bostonian cant just as a black student can bring
something a white student cannot
c. Harvard doesnt set a quota for the number of black students, or football
players, or Californians, in any given year

Section VII.7

Affirmative Action Employment Cases

(a) Fullilove v. Klutznick

1) Facts
a. 10% of federal funds set aside for local public works projects to procure
services from businesses controlled by minorities
2) Holding
a. Upheld the constitutionality of this program
b. This isnt a strong opinion because only a plurality of 3 felt that this would
pass all the tests announced in Bakke
2) Powell concurrence
a. Under Bakke, this was justified as a remedy that serves the compelling
government interest in eradicating the continuing effects of past
discrimination identified by Congress
3) Marshall, Brennan, & Blackman concurrence
a. Racial classifications here were substantially related
b. Served goal of remedying present effects of past racial discrimination
4) Stewart dissent with Rehnquist
a. Equal protection prohibits invidious discrimination by the government,
even when persons injured by a racially biased law arent members of a
racial minority
3) While unstated, the court does not adopt any tests from Bakke
(b) Wygant v. Jackson Board of Education
1) Plurality opinion
2) Facts
a. Teacher CBA required that when layoffs were needed for fiscal reasons,
most senior teachers would be retained
b. However, at no time could the racial proportion of minority teachers dip
below that of the students
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3)

4)

5)

6)

7)

8)

c. Thus, some white teachers were laid off even though they were more
senior than black teachers
Purpose of law
a. It was becoming easier for blacks to become teachers, but since it was a
recent thing, they were younger; thus, if you fired all the young teachers,
you would be undoing this
History
a. District court dismissed the white teachers claim
b. Racial preferences need not be grounded on a finding of past purposeful
discrimination but may attempt to remedy past discrimination by
providing "role models" for minority schoolchildren
Powells plurality
a. Distinguishes from Bakke
i. In Bakke, the dude wasnt ever accepted, but here the teachers had
jobs & then ended up losing them
b. Past societal discrimination alone was enough to justify a racial
classification
c. Applied strict scrutiny
i. Role model argument is not a compelling government interest
1. Slippery slope argument because it does not have a logical
stopping point
ii. Not the least restrictive means
1. Not narrowly tailored enough
2. Firing goals are too intrusive
3. The entire burden of achieving goals is placed on a
particular individual
OConnors concurrence
a. Did not think there needed to be a past finding of discrimination by a court
or similar body as a constitutional prerequisite to a public employers
voluntary agreement to an affirmative action plan
Marshalls dissent
a. A public employer, with the full agreement of its employees, should be
able to preserve the benefits of a legitimate & constitutional affirmativeaction hiring plan even when reducing its workforce
Stevens dissent
a. Agreed with the role model justification as forward looking, though a
lesser standard should be used here

(c) Richmond v. J.A. Croson Co. (1989)

1) Facts
a. Minority business set-aside modeled after the one in Fullilove
b. Program required contractors to subcontract at least 30% of dollar amount
of contract to a business at least 51% was owned and controlled by
minority group members
2) What controls: Wygant/strict scrutiny or Fullilove/intermediate scrutiny?
a. Wygant & strict scrutiny win out
3) Another Swiss cheese opinion
83

a. City doesnt have the same power as Congress

i. It must identify the specific discrimination
ii. Here, there was no direct evidence of discrimination
iii. Vague generalizations do not count findings of specific
discrimination
b.
4) Scalias concurrence
a. Our constitution is color-blind
b. Strict scrutiny must apply to all classifications of race
c. Only time state may act by race is to undo the effects of past
discrimination
5) Marshalls dissent
a. Here, the state was attempting to right societal discrimination, but the
Court disallows this progress
(d) Metro Broadcasting, Inc. v. FCC (1990)
1) Holding
a. Upheld 2 minority preference policies employed by the FCC
2) Opinion
a. Used intermediate scrutiny with a benign racial classification (i.e. one not
done to remedy past discrimination)
3) In Adarand below, OConnor overrules this decision to the extent it was
inconsistent, and terms it a significant departure from much of what had come
before it
(e) Adarand Constructors v. Pena (1995)
1) Facts
a. Adarand submitted the low bid on a construction project but wasnt
chosen
b. A minority-controlled company got the bid
c. Government had a practice of giving general contractors a financial
incentive to hire subcontractors controlled by socially & economically
disadvantaged individuals, and the government used race-based
presumptions in identifying these individuals
2) Majority Opinion
a. Courts cases through Croson established three general propositions with
respect to governmental racial classifications:
i. Skepticism
ii. Consistency
iii. Congruence
b. These 3 propositions lead to conclusion the strictest judicial scrutiny
should be used to justify any racial classification subjecting any person, no
matter their race, to unequal treatment
i. Directly overruled Metro Broadcasting
ii. Such classifications are constitutional only if they are narrowly
tailored measures that further compelling governmental interests
least restrictive means
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3) Importance
a. Strict scrutiny applies equally to federal and state action remedying or
addressing racial discrimination
b. Rejected the notion that strict scrutiny would be strict in theory, but fatal
in fact by saying that when race-based action is necessary to further a
compelling interest, such action is within constitutional constraints if it
satisfies the narrow tailoring test set out in previous cases
4) Scalias concurrence
a. Government can never have a compelling interest in discriminating on
the basis of race to cure past racial discrimination in the opposite
direction.
5) Thomass concurrence
a. Thinks that government-sponsored racial discrimination based on benign
prejudice is just as noxious as discrimination inspired by malicious
prejudice

Section VII.8

Affirmative Action After Croson and Adarand

(a) Gruttler v. Bollinger (2003)

1) Facts
a. Gruttler is a white Michigan resident with a 3.8 GPA and a 161 LSAT
score who was denied admittance
2) States purpose
a. Need a critical mass of underrepresented minority students to ensure
their ability to make unique contributions to the character of the law
school
i. Robust exchange of ideas, etc.
ii. The idea of intrinsic benefit
3) Opinion
a. Court looked to amicus briefs in exploring the concept of critical mass
i. Critical mass
1. The educational benefits that diversity is designed to
produce
ii. It should be noted, however, that these briefs deal more with
diversity in the work place, etc., than with diversity in the
classroom
1. Still need a critical mass to be effective in these situations
too, to achieve this exchange of ideas, etc.
b. The states purpose in creating a critical mass is compelling
c. Moreover, the schools program recognizes many possible bases for
diversity admissions so it is narrowly tailored
4) Rehnquists Dissent
a. This critical mass concept is a fraud
i. Tight correlation between the percentage of applicants and
admittees of a given race which must have resulted from careful
race based planning
ii. Seems as if there is a quota that the school is attempting to secure
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5) Scalias Dissent
a. If diversity is so important, why do universities require it in the
classrooms and not on campus?
i. It is easy to say that you need a critical mass to achieve these
intrinsic benefits; however, if you walk on the campuses you see
racial segregation through minority only student organizations, etc.
1. Counterargument: yet are these student organizations
required or are the opportunities merely presented to the
students or did the students request that these organizations
be created?
6) Thomas Dissent
a. Starts with Frederick Douglass quote (leave us alone)
b. Strongly in colorblind camp
c. Diversity is not the end sought; rather it is the educational benefits
i. There is no constitutional right in having an elite law school
ii. Could have a lesser restrictive means to achieve the so called goal
of diversity
d. Moreover, the effects of having this aesthetic are stigmatizing
i. People now wonder whether a black person made it where they are
today on his or her own or with the help of affirmative action
e. Lastly, a bait and switch argument
i. Overmatched students later find that they cannot succeed fisher
(b) Gratz v. Bollinger (2003)
1) The undergraduate program at the University of Michigan is struck down as
unconstitutional as a violation of the equal protection clause
2) While the state interest is compelling, the affirmative action program is not
narrowly tailored enough
a. The program automatically gave every applicant from an underrepresented
racial or ethnic minority group 20 points of the 100 needed to guarantee
admission
(c) Aftermath of Gruttler and Gratz and Texas 10% Plan
1) States changed their laws after the decision to prohibit what the court said was
constitutional to do, i.e. race preferences in higher education (individualized file
review)
a. They instead adopted alternative, race neutral affirmative action programs
2) Texas 10% Plan
a. Only works de facto and not de jure segregation
b. Only works if there is an underlying environment of racial segregation
c. Relying on the ground demographic as opposed to upfront admissions
sorting
d. Maybe the plan targets more socio-economic problems than racial
problems
e. Justice Kennedy would oppose either point since the program is not
individualized enough
f. Could be considered a benign discrimination
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(d) Parents Involved In Community Schools v. Seattle School District (2007)

1) De facto segregation
2) Facts
a. Seattle had no history of segregation while Louisville had received a court
decree forcing desegregation but had since been released from that decree
(i.e. reached a unitary status)
3) Classification
a. Both districts classified students as white or nonwhite to offset housing
programs by ensuring that schools maintain a minimum black enrollment
4) Two interests that qualify as compelling: (identified in earlier cases)
a. Remedying the effects of past discrimination
i. Yet there is no intentional discrimination here
b. Diversity in higher education
5) Opinion
a. These plans are tied to specific racial demographics, and the districts dont
offer any evidence as to why this particular level of racial diversity is
necessary to achieve the asserted educational benefits
i. This looks like a quota to them
ii. Also, why is 50% white & 50% Asian diverse when 30% Asian,
25% African-American, 25% Latino, and 20% white is not?
b. Reads the interest in Grutter as not an interest in simple ethnic diversity,
but rather a far broader array of qualifications and characteristics in
which race was but a single element
c. The plans do not provide for a meaningful, individualized review but
instead rely on racial classifications in a mechanical way
d. There is no compelling government interest in diversity alone
2) Thomas concurrence
a. While there is arguably a danger of racial imbalance in these schools, there
is no danger of re-segregation
b. Racial imbalance is not segregation
c. Because racial imbalance is not inevitably linked to unconstitutional
segregation, it is not constitutional in and of itself
3) Kennedy, concurring in part & in the judgment
a. Compelling interest exists in avoiding racial isolation
i. Doesnt think the decision should prevent school districts from
continuing to work to bring together students of different racial,
ethnic, and economic backgrounds
b. Should have a lower level of scrutiny in benign discrimination
4) Breyer dissenting with Stevens, Souter, Ginsberg
a. Doesnt believe that strict scrutiny means all racial classifications (no
matter whether they seek to include or exclude) must be treated the same

Section VII.9

Gender Discrimination

1) Should the equal protection clause protect classes of people who are discriminated
against on the basis of sex?
87

a. Yes
b. Standard of review is intermediate, not strict
2) While Sex & Gender are now interchangeable, there used to be significant
differences
a. Gender emphasizes the social and cultural notions while sex refers to the
biological differences between the sexes
3) Differences between Gender and Sex:
a. If we are heightening because of biological differences (sex), then this is
something that we would want to keep forever heightened, much like race
b. If we are heightening because of social/cultural differences (gender), there
might come a day when we no longer need heightened scrutiny
i. Carolene Products footnote 4 states that if we are concerned with
political processes failing, when they are no longer failing, maybe
we dont need heightened scrutiny anymore
4) Constitutional basis for and against gender discrimination being covered by the
equal protection clause:
a. Historical Arguments
i. The prevailing purpose of the 14th amendment was to get rid of
racial inequality
ii. It can also be argued that that this was to cure discrimination of
immutable characteristics
b. Textual Arguments
i. Plain language of the clause reads as person (all persons born or
naturalized in the United States)
ii. 19th amendment is just like the 15th amendment
iii. There are three amendments for race while there is only for gender
and it deals exclusively with voting (i.e. the absence of an
equivalent 14th amendment for gender)
iv. The word male entered the Constitution for the first and only
time in the 14th amendment 2if they wanted to distinguish
then they would include gender specific language, especially
earlier in 1
c. Structural Arguments
i. The role of the Supreme Court in relation to the role of the other
branches
1. Example: Frontieroshould not be too quick to act on
this since there is currently an amendment going through
congress...further, if it does fail it just provides more proof
that the court should not get involved because people
through the political process clearly do not want it
ii. Stepping in would be a repeat of Lochner
d. Analogy
i. Since most of the above arguments are against gender
discrimination being covered by the 14th amendment, the only
thing left to do is analogize with race

88

ii. Women are a discrete and insular minority so the court needs to
step in and help them because the political process has failed
them
iii. This argument, however, could just as easily be proved not to be
true since women are the majority in the country numerically
iv. Women though are still the minority when it comes to positions of
power so the court should step in temporarily to help women catch
up
v. Gender is not a good, reliable proxy since being a woman does not
make receiving an education, practicing law, or running a bar
anymore difficult
vi. Women are physically different though since women give birth and
men do not and cannot
vii. Another argument made is that there are some jobs that men can
just do better than women, like fire fighting and military combat
viii. Gender discrimination is not quite the same racial discrimination in
this country since it really was more of a benign paternalism
ix. Maybe the court uses intermediate scrutiny because gender is a
suspect class only in some instances whereas race is always
suspect
(a) Bradwell v. State (1873)
1) The law of the creator demands that the domestic sphere is the womans
(b) Goesaert v. Cleary (1948)
1) Facts
a. Woman wants to be a bartender
b. A state law makes it so only women who are wives or daughters of a bar
owner can tend bar
2) State purpose
a. Protecting women [an example of a benign paternalism]
3) Opinion
a. Rational basis review applied
b. Complete deference to the legislature
c. The proxy seems logical, as does the exception
d. While womens achievements have changed and social standards have
shifted, the Constitution does not require the court to take into account
these sociological insights
e. Leave it to the political processes to protect women
4) Dissent
a. Challenges only the means as not being precise enough
(c) Reed v. Reed (1971)
1) Facts
a. Women were not allowed to be executors of estate in Idaho, probably
since property rights were solely in the hands of men at common law
2) Posible state purposes
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a. Women do not have the business sense or experience to handle such

matters
b. Administrative convenience
c. Decrease court costs
i. Almost anything said will be rationally related to the means
employed
3) Opinion
a. The lowly rational basis standard was applied
b. While the purpose of reducing the courts workload was legitimate, the
presumption that women are incapable to administer the estate so it should
be awarded to men instead is not
c. As a matter of fact, the legislative choice preferring men over women is
arbitrary
d. Allowing only men to administer estates for the purpose of reducing the
courts work load is not rational
4) So, it is possible to fail the rational basis standard of review for reasons wholly
unrelated to equal protection
(d) Frontiero v. Richardson (1973)
1) Plurality Opinion
2) Facts
a. Men are automatically afforded dependency allowances for their wives
while women are required to prove their husbands dependency
3) State purpose
a. Promote administrative convenience
4) Opinion
a. Reasonable to assume that proving a husbands dependence while
automatically affording dependency allowances for wives would promote
administrative convenience because this accurately reflects what we think
is true of the different sexes (i.e. the proxy is accurate because women do
stay at home more often and women who do work usually have working
husbands too)
b. This way of thinking, however, perpetuates social stereotypes that we
want to do away with
c. Strict scrutiny is applied then and the court cautions against using gender
as a proxy, especially for the purpose of achieving administrative
convenience
5) Concurring opinions
a. Disagree with the standard of review employed
b. Believe the standard should be lower
c. Introduces the debate over Reed and whether the basis should be rational
or strict
6) Powells concurrence:
a. The structural argument given above
(e) Craig v. Boren (1976)
1) Facts
90

2)
3)
4)

5)
6)
7)

a. Oklahoma statute prohibits the sale of non-intoxicating 3.2% beer to

males under the age of 21 and females under the age of 18
b. Statistics provided.18% of females and 2% or males between 18 and 20
were arrested for DUI
State objective
a. Enhancement of traffic safety
Issue
a. Gender based differential a denial to males between 18 and 20 of equal
protection?
Opinion
a. 2% is too low to create a proxy based on gender
b. 18 year old women could still purchase the beer for the equivalent 18 year
old men and neither would be breaking the law in consuming it
c. The law was passed around 1900 before traffic regulations were needed
which suggests that the real purpose behind the law was a belief that
women were more mature than men
d. The states purpose was legitimate; however, the means employed were
not substantially related to the achievement of that goal
New Test employed
a. Gender classifications must serve an important governmental objective
and must be substantially related to the achievement of those objective
Dissent
a. Rational basis should have been employed
After thoughts:
a. 2% in actuality is 11 times more men than the .18% of women
b. Maybe the statistics show a benign paternalism (i.e. maybe more women
were stopped for DUIs but were merely provided a ride home instead of
being arrested)

(f) Mississippi University for Women v. Hogan (1982)

1) Facts
a. A man wants to attend an all-female school of nursing
2) States purpose
a. Single sex admissions policy compensates for discrimination against
women
i. It constitutes an educational affirmative action
3) Opinion
4) There must be an important government interest, not a legitimate interest like in
rational basis review
a. Being that there is a benign justification, there must be a more searching
analysis
b. Here, there is no showing that women lacked opportunities to obtain
training in the field of nursing
c. As a matter of fact, it reinforces stereotypes that women and not men
should become nurses
5) The means employed must also be substantially related to the achievement of the
above named important interest
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a. Here, if this goal really was important, then the school would not allow
men to audit classes
b. Where then is the justification in allowing men to audit classes but not
enroll?
(g) J.E.B. v. Alabama (1994)
1) Facts
a. In picking a jury, Alabama allows peremptory strikes based on gender
b. Every male juror was stricken by the state that was representing the
mother in a paternity claim apparently fearing that men would be less
sympathetic to the mother
2) States purpose
a. Men would be more sympathetic and receptive to the man alleged in a
paternity action to be the father
3) Opinion
a. The state is really just reinforcing stereotypes that the law condemnsthat
women are more sympathetic to women and vice versa (i.e. that gender
alone is an accurate predictor of jurors attitudes)
4) Scalias Dissent
a. Peremptory challenges like the one here have existed for 120 years
i. Historical argument
b. Moreover there can either not be an equal protection violation or there can
be a double violation since the private attorney struck down all women
c. The system as a whole is evenhanded
(h) United States v. Virginia (1996)
1) Facts
a. VMI follows the adversative model where men are broken down and then
built from the ground up in order to create citizen soldiers (similar to the
Marines)
b. This is further achieved by placing the cadets in Spartan barracks were
privacy is non-existent
c. 347 women had asked VMI for an application and the school responded to
none of their requests
d. None of these women, however, are petitioners
e. The petitioner is the United Stateone of the women complained so they
sued on her behalf under Title IV of the Civil Rights Act (Title IX
exempted schools and military institutes from this act)
2) History
a. The appellate court ruled it unconstitutional and ordered the school to
establish a parallel institute for women
3) Schools purpose
a. Single sex education provides important educational benefits and
contributes to diversity in educational approaches
b. Unique VMI method of character development and leadership training
would have to be modified to admit women, destroying in turn what the
women claim they want be being admitted
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4) Ginsburgs frame of the issue

a. The issue is not whether women should be forced to attend VMI but
whether the state can deny to women who have the will and capacity all
the opportunities VMI affords?
5) Opinion
a. Virginia has shown no exceedingly persuasive justification for
excluding all women from the citizen-soldier training afforded by VMI
and the remedy (VWIL) doesnt cure the constitutional violation
i. Virginia hasnt shown that VMI was established for educational
diversity options
b. Warns about generalizing & excluding people based on fixed notions
concerning the roles and abilities of males and females
i. The question isnt whether men or women should be forced to
attend VMI, but whether the State can deny a women who is
willing & able to attend
c. VWIL as an alternative
i. For a number of reasons, VWIL didnt qualify as VMIs equal
ii. It didnt afford women the opportunity to experience the rigorous
military training for which VMI is famed.
6) Scalias dissent
a. Very upset about the findings and about Ginsburgs standard of review
i. She changed the rules of the game by substituting substantially
related for exceeding persuasive justification
ii. This is too strict a standard
(i) Civil Rights Act of 1964
1) Justified by the commerce clause and not the 14th amendment 5
(j) SMU Association of Women Law Students v. Wynne & Jaffe v. Thopson & Knight
(k) Gedulig v. Aiello (1974)
1) Pregnancy classifications
2) Facts
a. Exclusion of disability accompanying normal pregnancy & childbirth
from Californias disability insurance system didnt constitute invidious
discrimination under the EPC.
3) Opinion
a. Classification wasnt based on gender as such, so court used a very
deferential standard of review
i. Reasonable/rational basis for excluding pregnancy from disability
1. Classification is based on pregnancy, not on sex:
a. Two groups, pregnant women, and non-pregnant
persons (both male and female)
b. If there is no showing that distinctions involving pregnancy are merely
pretexts that allow for invidious discrimination, lawmakers are free to
include or exclude pregnancy from the coverage of legislation such as this
93

one on any reasonable basis, just as with respect to any other physical
condition
4) Brennans dissent
a. Pointed out that men are compensated for primarily-male disabilities, like
prostate, hemophilia, & circumcision
(l) Michael M. v. Superior Court (1981), pg. 591
1) Facts
a. Californias statutory rape law punished the male but not the female
2) Plurality
a. Believed state has a strong interest in preventing illegitimate pregnancy
b. The law now puts males & females on an equal deterrent footing
i. Females already had plenty of incentives to not get pregnant
c. The question isnt whether a statute is drawn as precisely as it may have
been, but whether the line chosen is Constitutional
3) Brennans dissent
a. None of the 3 opinions comprising the plurality fairly applies the equal
protection analysis since Craig
(m) Rostker v. Goldberg (1981)
1) Facts
a. Military Selective Service Act authorizes the President to require males
and not females to register
2) Opinion
a. Congress given much deference generally in the military context
b. Congress purpose was to facilitate a draft
i. Congress determined that any future draft would be characterized
by a need for combat troops, and since women were prohibited
from combat, there was no need to include them in the draft
c. Because of combat restrictions, men and women are not similarly situated
for purposes of a draft or draft registration
3) Marshall dissented
a. Registering men only is not substantially related to providing an effective
defense
i. In fact, they should register both, but then only draft men if that is
all that is needed
b. Administrative convenience of employing a gender classification isnt
justification enough, according to Craig
c. This decision is based on ancient canards about the proper role of
women
4) Note
a. Rostker, unlike Michael M., doesnt involve a physical, biological
difference between men & women (just a notion that they shouldnt be in
battle)
(n) Personnel Administrator of Mass. v. Feeney (1979)
1) Facts
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a. A Massachusetts law grants absolute lifetime preference to veterans for

state civil service positions, even though the preference operates
overwhelmingly to the advantage of males
2) Opinion
a. Relied on reasoning in racial disparate impact cases Washington v. Davis
& Arlington Heights
b. Same application as race-neutral cases2-fold inquiry:
i. Whether the statutory classification is indeed neutral in the sense
that it isnt gender-based?
ii. Whether the adverse effect reflects invidious gender-based
discrimination?
1. While impact is a starting point, purposeful discrimination
is what offends the Constitution
c. While few women benefit from the preference, the non-veteran class is not
substantially all female
i. All non-veterans, men & women alike, are placed at the same
disadvantage
d. Discriminatory purpose implies more than being aware of the
consequences
3) Marshalls dissent
a. Thought the law evinces purposeful, gender-based discrimination

Section VII.10
Other Classifications, including age, alienage, poverty, sexual
orientation, and disability
(a) Alienage
1) Legally resident aliens only
a. While both lawful and unlawful aliens will be subject to similar types of
discrimination, their status is a choice (i.e. the decision to come to the
country illegally is a choice)
b. Distinguished from race and gender based on the voluntariness of the
choice
c. Further, Congress has the plenary authority of naturalization and
immigration
i. As such, some issues are really issues of federal preemption and
not equal protection
2) Counter-argument: If we really want to incentivize citizenship, there should not
be special privileges afforded to legal aliens
a. By affording them these privileges, they are less likely to become a U.S.
citizen
b. If they did not receive privileges, they would feel more compelled to
become a citizen to stop discrimination
3) The test
a. Strict scrutiny since they are a discrete and insular minority
(i) The Exception to Strict ScrutinySugarman v. Dougall (1973)
1) Facts
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a. A N.Y. law stated that only American citizens could hold permanent
positions in civil service
2) State purpose
a. Do not want disloyal people working in the government so citizenship is
required
3) Opinion
a. The government objective of loyalty is not related to the restriction of
hiring citizens only
b. The regulation is both too over-inclusive and under-inclusive as some
citizens who are part of the civil service are disloyal while some lawful
aliens are in menial jobs that do not require loyalty (i.e. too many people
affected who should not be and too many people who are not affected but
should be)
c. A state may, however, in an appropriately defined class of positions,
require citizenship as a qualification for office since a state does have an
obligation to preserve the basic conception of a political community
d. In this case, however, it was too broad so the law is invalid
(ii) Other cases applying the Dougall exceptionFoley v. Connelie (1978)
1) Facts
a. NY law stated that lawful aliens cannot be state troopers
2) Opinion
a. Rational basis review applied because fits into the exception
b. The state is giving these officers the power to enforce the state laws as
agents of the state
c. These people are strangers in the fact that their loyalty lay with another
sovereign
d. If you are going to be an agent of the state, therefore, you should be a
citizen of the state, especially when in a position that is given a high
degree of judgment and discretion in its exercise of authority like a state
trooper
(iii) Ambach v. Norwick
1) A state may refuse to employ aliens as elementary and secondary school teachers
who refuse to seek naturalization because public schools prepare individuals for
participation as citizens and in the preservation of values on which our society
rests
2) It is a policy decision that certain acts require citizenship so, as a lawyer, you will
need to wrestle with alien classification in order to get it to fit into this exception
(iv) Federal Preemption casesToll v. Moreno and Hampton v. Mow Sun Wong
1) Getting the same result without applying Equal Protection
(b) Disability
(i) Cleburne v. Cleburne Living Center, Inc.
1) Facts
96

2)

3)

4)

5)

a. Cleburne, TX, denied a special use permit for the operation of a group
home for the mentally retarded, acting pursuant to a municipal zoning
ordinance requiring permits for such homes
State purposes
a. Negative attitudes of property owners located near the home
b. Located near a junior high school whose students may harass the mentally
retarded
c. Located on a 500 year old flood plain
d. Size of home and occupancy
History
a. Fifth circuit court of appeal determined that the mentally retarded are
quasi-suspect class deserving of a stricter standard of review than just
rational basis
Opinion
a. The mentally retarded are not a discrete and insular minority
i. They have very powerful defenders in the political process
b. Further, mentally retarded is too broad a term in that it covers a huge
gambit of problems
i. As such, making distinctions is a huge technical task that should be
left to the legislature
c. The court is real careful in not applying heightened standards of review to
new classifications to avoid accusations of Lochnerism
d. In applying the rational basis review here, the zoning ordinance fails
because there is no rational connection between the means and the ends
i. Here, a classification whose relationship to an asserted goal is so
attenuated as to render the distinction arbitrary and irrational
cannot be relied upon by the state:
1. Negative attitudes of property owners located near the
home-mere negative attitudes, or fears, are not permissible
2. Located near a junior high school whose students may
harass the mentally retarded does not work when this junior
high school itself is attended by the mentally retarded
3. While located on a 500 year old flood plain, what about all
the other buildings then?
4. There are no restrictions on any of the other buildings in
the area
Stevens concurrence
a. Fight should not be over the standard of review to be employed
b. There should be only on level of review
c. By asking certain questions in all equal protection cases, the answers will
lead us to the correct conclusion (i.e. the answers will tell us whether the
state action has a rational basis)

(c) Age
(i) Massachusetts Board of Retirement v. Murgia
1) A failed attempt to establish a heightened scrutiny for age classifications
97

2) The elderly are not a discrete and insular minority since everyone grows old
3) Age then does not equal a suspect class
(d) Poverty
1) Poverty does not equal a suspect classification deserving of heightened scrutiny
(e) Sexual orientation
(i) Romer v. Evans
1) Facts
a. Amendment 2 was an amendment to the Colorado Constitution that
prohibits legislative, executive, or judicial action at any level of state or
local government to protect the class of homosexual persons
2) States principal argument
a. Puts gays & lesbians in the same position as all other persons
i. No special protection
3) Opinion
a. Rational basis test (or at least they say they do)
b. Law deprives gays of even the general laws proscribing discrimination,
not just special protection laws
c. The Amendment imposes a broad and undifferentiated disability on a
single named group
i. The purpose of the law is to single out homosexuals, not to further
some goal (even under rational basis, you cant just arbitrarily
discriminate against some group)
d. Its sheer breadth is so discontinuous with the reasons offered for it that the
amendment seems inexplicable by anything but animus toward the class it
affects
i. Lacks a rational relationship to state interests
4) Holding
a. Amendment 2 does not classify homosexuals to further a proper legislative
purpose, but to make them unequal to everyone else (which Colorado
cannot due)
5) Scalias dissent
a. Homosexuals still have the general laws
b. This decision contradicts Bowers (which was still in force at the time),
they have a lot of political power (so not discrete & insular), and one step
at a time is reasonable under a rational basis review

Article VIII.

Fundamental Interests Analysis of Equal Protection

Section VIII.1

Introduction

1) Sometimes, classifications that would otherwise receive rational basis review

require closer scrutiny because they bear upon fundamental rights or interests:
a. Two principal strands of fundamental interests equal analysis:
i. Fundamental interest in voting
98

ii. Fundamental interest in access to court or some aspects of the

judicial process
b. A third strand, right of interstate migration, is still good law, but it has
been given a whole new rationale by the Rehnquist Court

Section VIII.2

Example

(a) Skinner v. Oklahoma

1) State action
a. Habitual criminal offenders are sterilized after three strikes
2) Employed substantive due process:
a. What right is violated? The right to be a parent
b. Is it fundamental? Yes
i. Rooted in history of tradition?
ii. Implicit in the concept of ordered liberty?
c. Compelling government interest? Ridding the world of habitual criminal
offenders is compelling
d. Least restrictive means? Maybe
3) Employed equal protection:
a. Suspect class? Nothing about race, gender, etc., on the face of the law, so
no
b. Since it is a facially neutral law, rational basis review is used
4) However, while the classification is facially neutral, there is still a fundamental
right at issue so a combination of equal protection and substantive due process
should be employed raising the standard of review to strict scrutiny
5) Skinner would not be helped under the two tests alone, but under the combination
of the two he finds relief

Section VIII.3

Fundamental Interest in Voting

Section VIII.4

No Fundamental Interest in Food, Shelter, Education

(a) Griffin v. Illinois

1) Facts
a. In order to obtain review, appellants must furnish transcripts to the
appellate court
2) Griffins argument
a. Refusal to afford appellate reviews solely because of poverty is
unconstitutional
3) Opinion
a. Classification
i. Wealth
b. The law, however, is facially neutral so rational basis should be employed
under the equal protection clause
c. Yet, is the interest in obtaining review fundamental?
i. Equal access to justice under the law is implicit in the concept of
ordered liberty
99

ii. Further, access to the courts is rooted in our traditions as well

d. While there is no constitutional right to an appeal, when a state chooses to
make appeals available it should not discriminate on the basis of poverty
e. Therefore, the state cannot give access to some on the basis of wealth
4) Harlans dissent
a. No state action because no state imposed classification
(b) Douglas v. California
1) A state must appoint counsel for an indigent defendant for the first appeal, granted
as a matter of statutory right, from a criminal conviction
2) Harlans Dissent
a. No constitutional affirmative duty to lift the handicaps flowing from
differences in economic circumstances
[These two cases came up in the criminal context, not the civil context, although there are
some examples in the civil context as wellBoddie v. Connecticut found that a state
cannot deny, solely on the inability to pay, access to the courts to individuals who seek
divorce since the marriage relationship is a fundamental interest and the supreme court
later ruled that there is no fundamental interest in filing for bankruptcy]
(c) San Antonio Independent School District v. Rodriguez
1) The right to education is not a fundament interest

Article IX. Congressional Remedial Power

(a) Introduction
1) Due process & equal protection rights under the 14th Amendment apply only to
state interferences
2) Question of whether private conspiracy provisions can be applied to private actors
who interfere with 14th or 15th Amendment rights
a. 13th Amendment isnt limited to state action
3) Under 5 of the 14th amendment, Congress shall have power to enforce, by
appropriate legislation, the provisions of this article
a. Laws that prohibit discrimination between private individuals
(b) United States v. Guest (1966)
1) Facts
a. Six defendants killed a black man and were indicted for criminal
conspiracy in violation of 18 U.S.C. 241 (i.e. a single conspiracy to
deprive a black citizen of the free exercise and enjoyment of several
specified rights secured by the Constitution and laws of the United States
as well as conspiring to injure, oppress, threaten and intimidate black
citizens in the free exercise and enjoyment of equal protection under the
14th amendment)
2) Issue
100

a. Does Congress have greater power to enforce purely private conduct that
the courts cannot reach?
i. After all, courts can only act if the state has acted
3) Opinion
a. Court decided case on statutory construction basis, not constitutional basis
b. Thus, didnt resolve the issue of reaching private actors
c. Congressional Protection of Voting Rights
(c) Griffin v. Breckenridge
1) Holding
a. 1985(3) is applicable to certain purely private conspiracies to deprive persons of
civil rights
2) Opinion
a. It is unnecessary to reach whether Congress had power under 14th Amendment to
enact the provision because it relied on Congress power under the 13th
Amendment
b. Didnt apply to all tortuous, conspiratorial interferences with the rights of others,
but only those with invidiously discriminatory motivation
i. There must be some racial, or perhaps otherwise class-based, invidiously
discriminatory animus behind the conspirators action.
(d) Jones v. Alfred H. Mayer Co.
1) 42 U.S.C. 1982
2) Opinion
a. Civil Rights Cases cited and dismissed as being irrelevant since they dealt
only with 1 of the 14th amendment
b. It is easier to get to private conduct under the 13th amendment, yet limited
to racial ends in doing so
(e) Lassiter v. North Hampton County Election Bd., (1959)
1) Facts
a. North Carolina law requires English literacy test for voting
2) Opinion
a. Rational basis test even though Harper decided voting is a fundamental
right
i. Reasons it may have done this:
1. This case was an early case and there was still confusion
2. This is Justice Douglas and he doesnt always abide by
doctrine
3. Unanimous decision, so they mightve required a lesser
standard to all jump on board
b. Not a suspect class
c. No discriminatory purpose, even if effect is shown
3) How this case would have come out under Strict Scrutiny:
a. Compelling Interest?
101

i. Educated voters in a state election not likely compelling since

Democratic process provides for popular election and it is the
educational playing field was not level at this time.
b. Least Restrictive Means?
i. Over-inclusive because it excludes educated voters who are not
literate, as those who are blind, or those who gather information
from TV/radio
4) Importance of Case
a. Court decides literacy tests are Constitutional 6 years before Congress
passes Voting Rights Act of 1965
(f) Voting Rights Act of 1965
1) Congress passes this to rid the country of racial discrimination in voting
2) Suspended literacy tests in covered localities, including localities where there had
been no judicial determination of discrimination
(g) South Carolina v. Katzenbach (1966)
1) Court sustained several controversial provisions of Voting Rights act under
Congress 2 power of 15th Amendment
(h) Voting Rights Act Amendments of 1970
1) Suspended literacy tests Nationwide
2) 1975 Amendment extended the suspension for 7 more years
(i) Katzenbach v. Morgan (1966)
1) Facts
a. 4(e) of the Voting Rights Act of 1965
i. No person who has passed 6th grade from an accredited school in
Puerto Rico where the language of instruction wasnt English shall
be denied the right to vote in any election b/c of inability to read or
write English
2) Issue
a. Whether Congress had authority under 5 of the 14th Amendment to pass
4e of Voting Rights Act of 1965?
3) NYs argument
a. 4e is unconstitutional
i. Court must first decide that New York violated Equal Protection,
which would mean overruling Lassiter, or Lassiter must have been
decided the other way.
4) Opinion
a. New Yorks argument is too narrow
i. What would be the purpose of 5 of the 14th Amendment?
1. Congress doesnt have to wait for Supreme Court
2. Congress can fact find under 5, subject only to the
McCulloch two-part test for the Legislation passed:
a. Plainly adapted to that end
102

b. Consistent with the letter and spirit of the

Constitution
b. Enforcing as Ratcheting Up Rights: (this is a famous footnote, similar to
Carolene Products FN 4)
i. Congress can expand Constitutional rights to a group that
previously lacked them when disagreeing with the Court
ii. Ratcheting down: Congress cannot contract rights in disagreeing
with the Court
1. Example would be if Court says poll taxes are
unconstitutional, Congress cannot declare them
constitutional.
c. Textual Argument
i. For individual rights, enforce means strengthen, not dilute
d. Historical Argument
i. Not a tug of war
ii. 14th Amendment protects rights from being restricted or
eliminated by states.
5) Harlans Dissent
a. Structural Argument
i. Federalism Vertical - Congress is interfering with the separation
between state and federal government
b. Structural Argument
i. Separation of Powers Horizontal - Problem with Congress
stepping into the Courts shoes
c. Important that Congressional enforcement actually be remedial
6) Two Main Themes
a. Readings of Brennans opinion
i. Broadest
1. Supreme Court is not the only body that can strengthen,
expand rights
2. 5 gives Congress this broad power subject only to the
two-part test
ii. Narrowest
1. Remedial vs. Prophylactic measures
a. Congress emboldens the Puerto Rican class by
giving them a voice in government in allowing them
to vote without passing literacy tests
b. Congress simply fashions a remedy to respond to
discrimination already discovered before.
b. Invidious Discrimination
i. Court already decided that literacy tests were not unconstitutional
ii. Congress deciding otherwise displaces Courts holding
7) Under Other, Older Tests
a. Katzenbach test
i. Means must be appropriate legislation to the end to be achieved
ii. Passes this, too
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b. McCulloch test
i. Plainly adapted to the end, or giving more voice to Puerto Ricans,
and does not defy the Constitution
ii. Easily passes, this
(j) Shift in the Courts stance on Congressional enforcement:
1) Warren Court
a. Deferential
2) Necessary and Proper Clause
a. Appropriate legislation if plainly adapted to the end, and not inconsistent
with the rest of the Constitution
3) Rehnquist Court
a. Scrutinizing
b. Known for curtailing Congress power under the Commerce Clause:
i. Lopez
ii. Morrison
(k) City of Boerne v. Flores (1997)
1) Facts
a. Smith case
i. Oregon made a general law that no one can smoke peyote
ii. No animus to the legislation
1. Not targeted at anyone
iii. Native Americans challenge the legislation because it infringes on
religious beliefs
iv. Prior test was strict scrutiny test
b. Courts holding in Smith
i. Substitutes a rational basis for generally applicable laws instead of
strict scrutiny
c. Aftermath of Smith
i. Congress enacts, and Clinton signs, the Religious Freedom
Restoration Act
ii. Intended to overturn Smith by restoring religious freedom
through imposition of strict scrutiny to laws infringing on religious
freedoms
2) Opinion
a. New Test
i. Congruence and Proportionality between the injury to be prevented
or remedied and the means adopted to that end
b. Defining Congruence and Proportionality:
i. Congruence
1. Congress legislative record lacks modern examples of
generally applicable laws passed because of religious
bigotry
ii. Proportionality
1. Are the means out of proportion to the end it seeks to
achieve, or way overbroad?
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c. Two Arguments under the Congruence and Proportional test:

i. Textual argument over enforce
1. Court says it restricts the holding in Morgan to the
narrower holding and overrules the broader holding
2. If Congress could define its own power by altering the 14th
Amendment, it would be altering, not enforcing
a. The court already said what it means
b. Congress cannot alter that, it can only enforce that
ii. Narrow Holding
1. Congress can only remedy or prevent discrimination
already identified
3) This courts test supplants the Morgan test, and it makes it harder for Congress to
pass legislation
a. Restricts Congress power
4) Application of Test to this case:
a. Not Congruent No Fact Finding:
i. Does not mention episodes where generally applicable laws were
passed because of religious bigotry
b. Not Proportional
i. RFRA is way overbroad
ii. It changes the state of the law by overturning Smith
5) Other Options for Congress when Court decides a statutory right:
a. Create a statutory right, but it must find Constitutional authority to do so
i. Use the Commerce Clause, as it did with Civil Rights Act
(l) U.S. v. Morrison (2000)
1) Facts
a. Congress compiles extensive fact finding before passing the Violence
Against Women Act to give private individuals a private right of action
against their assailants
2) Opinion
a. Sidesteps the Congruence/Proportionality test by holding Congress does
not have power to pass this legislation.
b. 5 of 14th Amendment allows Congress to Enforce 1, but 1 is about
State Action and this legislation is aimed at individuals

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