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The end result of Marbury and Martin is that the USSC is vested with an enormous amount of power and
authority. Between Marbury and Martin, the USSC gets to make final judgment re: constitutionality of
federal legislation and judicial decision of state court.
Ex Parte McCardle
Addressed constitutionality of Congress' effort to remove appellate jurisdiction from USSC.
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Professor Rosen
Constitutional Law, Fall 2003
Court explained the exception clause and concluded that "the power to make exceptions to
the appellate jurisdiction of this court is given by express words."
McCardle did not answer the question of whether Congress could make any exception it
wanted. The court did not have to answer this question because in this case, there was
residual jurisdiction. But, neither did McCardle say that because of the residual jurisdiction,
the court would or would not uphold the statute.
Hypothetical Federal bill which says SC has no appellate jurisdiction over cases relating to voluntary
prayers in public schools and public buildings.
As a lawyer defending the bill (arguing it is constitutional):
Textual Argument use text of Article III, Section II, Clause II, which says the
USSC shall have appellate jurisdiction, with such exceptions as Congress shall
make. You would argue that this is an exception that Congress is making and it is
therefore constitutional.
Precedential Argument rely on Ex Parte McCardle.
Miller v. French
The issue in this case is what courts do once a final judgment is issued by the court. It cannot
be re-opened by another branch of government that would be a violation of separation of
powers. However, in the case of an injunction, it is permissible for Congress to re-work that
prospective relief. Injunctions are prospective; they are going forward and because it is on-
going in nature, it is more legislative than it is a final judicial decision.
Hypothetical Your client wins $10million reward and injunction against FBI for racial profiling. All
was upheld on appeal and no certiorari was filed. Congress then enacted "Policing Act" which caps
damages at $2million and allows injunctions that affect law enforcement only if a court finds the
injunction was "absolutely necessary" to prevent future violations. The court made no such finding before
the injunction was ordered for your client. What happens to your client's order?
Money damages are secure according to Plaut.
The injunction your client got is danger according to the Miller case. This is an easy question.
Part B: Constitution
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Professor Rosen
Constitutional Law, Fall 2003
This standard is a creation of the court. There is no basis for it in the text of the
Constitution. The SC creates standards like this all the time and no one ever
disagrees with it. Standards are imprecise. Rules create specificity.
Standard: drive carefully
Rule: 60mph speed limit
o Laidlaw specifies what satisfies the standing test set forth in
Lujan and other precedents.
The majority and dissent disagree on what satisfies the three aforementioned criterion.
Specifically, they disagree on redressability.
o Dissent says because the $ (fine) will go to the government, the P has not received a
redress for his grievance and therefore there is no standing for the case.
o The majority says redressability is satisfied because the P is less likely to be injured
because of the deterrent effect of the $ fines.
Hypothetical GE pollutes Hudson River. Prospective law student considering going to Fordham. Does
she have standing to sue GE?
Some day intentions are insufficient to show injury in fact. Laidlaw.
Hypothetical Same hypothetical, but this time the person who wants to bring the suit frequently
observes its natural beauty, but won't go boating (etc) because of their fear of the water.
When aesthetic and recreational values will be lessened because of pollution, that amounts to
injury in fact. Laidlaw.
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Professor Rosen
Constitutional Law, Fall 2003
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Professor Rosen
Constitutional Law, Fall 2003
(But, when regulating pursuant to 14A, the state can abrogate state sovereign
immunity.)
In Seminole, the Indian Commerce Clause (from Article I) was being
considered, this is how we know that Congress was acting pursuant to its
Article I powers.
The result turns upon under which power Congress enacted the statute. Federal rights and
relief are determined, when it is an 11A issue, by what constitutional provision Congress
acted pursuant to.
Remember, this rule applies only when state has NOT consented; if state consents to suit,
then Seminole does not apply.
The day after Seminole:
o The 11A holding in Seminole is not about Congress' right to regulate; it is about
individual's right to remedy. The holding still allows Ps to seek relief in state court.
Comparing Dissent and Majority
Category/Level Majority Dissent
Constitutional Provision 11th Amendment 11th Amendment
Goal Nature of sovereignty is for a sovereign To withdraw certain type of diversity
to be immune from suit against its will. jurisdiction, where a citizen is suing a
(Protect sovereignty of states.) state. (Withdrawal of narrow category of
diversity jx.)
Standard
Rulification Clear statement?
Only if Congress acted pursuant to
powers under 14A and not under powers
of Article I
The majority and dissent disagree as to the goal of 11A. The debate is not based on constitutional text or
precedent, it is about higher, intellectual debates about what states are, what state sovereignty is, etc.
Alden v. Maine
Takes away right of private individuals to sue states in state court.
The result of Seminole Tribe and Alden is that you can't sue a state in either state or federal court, when
you believe one of your federal rights have been violated. This means you have a legal right, without a
legal remedy. These decisions are part of "new federalism" and seem utterly bizarre.
Union Gas
State could be sued pursuant to legal claims under Article I. Seminole overrules this principle.
Hypothetical Pre-Seminole scenario. You represent FL. How do you handle the Union Gas precedent?
You have two options:
Distinguish it from instant case.
o You could argue that Union Gas applied to interstate commerce clause and this case
applied to Indian Commerce Clause.
The Seminole court rejects this argument and says it is not a viable distinction.
Ask court to over-rule it, (this is bold strategy.)
o In Seminole, the state argued in the alternative and said that the holding in Union Gas
should be overturned.
This is, ultimately, the winning argument for the court.
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Professor Rosen
Constitutional Law, Fall 2003
The court says under stare decisis it has power to overturn its earlier
decisions. It reasons that there was only one precedential case on point,
for which there was no majority opinion, only a plurality opinion.
Checks and Balances connotes image of one branch doing something and the other branch checking up
on what that 1st branch did. This means an intermingling of responsibility among the branches.
Separation of Powers suggests that the judiciary has powers that are separate from the legislative
branch, which has powers that are separate from executive branch. There are 3 separate boxes.
These are competing metaphors that are trying to explain the structure of government. Neither checks and
balances, nor separation of powers appear anywhere in the Constitution.
Youngstown (1952)
Steelworkers and management in unsuccessful negotiations. President issues order seizing
mills and an order to keep them running. The constitutional question that is raised is the
President allowed to do this? Is he intruding on Congress' power since there is no statute
authorizing the President to act this way?
o Answer: No, the President is not allowed to do this.
He is intruding on Congress' powers. The President executes the laws. (Ariticle
II, Section 3 says the Pres must faithfully execute the laws ..) But, if there is no
law for him to execute, then he is doing something beyond the scope of what the
Constitution says he can do. The Constitution sets up various branches of
government with differing powers. Without a statute, the President went beyond
the responsibility and powers afforded him.
o There is no black letter law that emerges from Youngstown because there is no majority
opinion. Justices have varying opinions as to why the President is not allowed to do what
he did.
Justice Black
Black is a text-based formalist; if there is no law, then the President
cannot act. He looks only to the text of the Constitution. If there is no
statute, then there is no authority. History does not matter, consider only
the text of the Constitution.
It is illegitimate for a President to act when there is no legislation
authorizing him to do so.
This is narrow approach.
Justice Frankfurter (Concurring)
Functionalistic and pragmatic; consider what is necessary; take account
of things beyond the formal legal materials.
The Constitution is a framework of government and we must consider
how that framework has historically operated because that historical
operation shows that it has operated according to its true nature.
Historical ways of conducting government do not supplant the
Constitution, but those ways can give meaning to the words of the
Constitution.
Too narrow to only consider text of the Constitution; better to consider
the gloss which life has written on the constitutional text. Gloss is
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Professor Rosen
Constitutional Law, Fall 2003
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Professor Rosen
Constitutional Law, Fall 2003
Compare Field
Field addressed a statute which exempted certain items from import taxes. Provision of the
act allowed President to prohibit exemption (allow tax).
o Scalia thought Field was quite analogous to Clinton v NY.
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Professor Rosen
Constitutional Law, Fall 2003
o Majority points to 3 critical differences between Clinton and Field to distinguish the
cases from one another.
See last paragraph on pp. 125.
Field dealt with conditions that were not known by Congress.
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Professor Rosen
Constitutional Law, Fall 2003
o Prior to Dames, there was no precedent that would apply to the facts of this case.
Youngstown made it unclear as to limits/boundaries of Presidential powers.
Depending on who you represented in Dames, you would characterize the case as
a foreign case (giving President more deference) or as a domestic case.
o Post-Dames, the analysis looked like this:
Jackson's approach softened in foreign context.
Hypothetical Pre-Dames & Moore, client did contract work for Syrian government. Govt did not pay,
so client sued Syria in US and moved to attach Syrian assets in this country. The ct granted the
attachment. President of US then issued and order nullifying the attachments and dismissing client's legal
claim.
Pre-Dames & Moore, what can you do for your client?
Nullification of attachments OK according to the statute, IEEPA.
Suspension of claims Unclear; statute does not address.
Post-Dames & Moore, whad can you do for your client?
Nullification of attachments OK according to the statute, IEEPA.
Dismissal of lawsuit Dames & Moore does not squarely answer the question
because D & M was about transferring the case, not dismissing the case. This
means you'd have to draw a distinction between transfer and dismissal one
creates an 'end' to possible remedy and the other simply moves the forum.
Hypothetical President Bore has just been sued in his personal capacity in tort for a car accident that
occurred before he became President. He wants you to argue that he should have temporary immunity
from such suits during his Presidency. Do you have to argue that Clinton v. Jones must be over-ruled to
achieve the result your client wants?
Initially, Clinton v. Jones, is bad for Bore. But, you can make an argument that the Bore case
would take up a lot more time, and therefore would amount to a more significant interference
with the Presidency. You'd have to distinguish the case by arguing that the facts of Bore make
it clear that Bore's functions would be hampered or burdened.
The alternative is to try to convince the court to change the legal test, that the President
should have civil immunity in all situations.
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Professor Rosen
Constitutional Law, Fall 2003
o Berger's majority opinion Berger more similar to Black in YT; legislature and
judiciary have separate functions. Formalism.
The "thing" created by House is legislation, but it did not comport with
bicameralism and presentment clause.
The "thing" is legislative, but it fails constitutionality because it did not go
through bicameralism and presentment.
Legislation is something that has purpose and effect of altering legal
rights, duties, relations of persons. The "thing" is legislation because
Congress' decision altered Chadha's legal rights he was ordered to be
deported.
o The problem with this interpretation is that under this definition,
judicial appeals would be legislative because appellate decisions
alter rights of parties. One decision goes one way and an
appellate decision goes another way.
When agencies make rules, they do not have to conform to bicameralism and
presentment, but Congress always does.
Berger's position is consistent with Marbury. When Congress acts legislatively, it
has to follow constitutional requirements. The Constitution specifies how
Congress must act, but does not discuss the conduct of administrative agencies.
o Powell's majority opinion
The "thing" is not legislation; it is judicial in nature.
It is judicial because they're, in effect, reviewing INS' findings. INS says:
you comply with statute. Congressional Committee says: No, INS, we
don't agree with your statutory finding. This is a judicial action and
because Congress is not supposed to act judicially, it is unconstitutional.
o White's dissenting opinion White is more similar to Jackson in YT Functionalism.
The "thing" is a negation of an executive determination; it is executive because it
is contradicting an executive determination.
If Congress is going to delegate rule-making authority to agencies that do not
have to comport with bicameralism and presentment, then when Congress retains
some legislative power (that it originally delegated), then it does not have to
comport with bicameralism and presentment.
Per Rosen, it is difficult to see a difference between countering an
executive determination (White) and a judicial function (Powell).
The debate among the justices is on two levels. 1) What is the "thing" and 2) How important
is it to define the "thing"?
o Berger when you have distinct, separate branches of government, it is VERY
important to define the thing. Formalistic approach.
o White the branches of government overlap and are more interdependent, so it is LESS
important to define the thing. Functionalistic approach.
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Professor Rosen
Constitutional Law, Fall 2003
the power to remove (fire) is vested in the President. Independent Agencies are agencies
whose head cannot be removed at will by President.
o The Comptroller General ("CG") was politically insulated as well. The Budget Act used
the exact language as the Humphreys Act, which the court upheld. But, in this case
Congress had power to remove, not the President.
After Bowshar, independent agencies are still constitutional. This is an easy question. The SC
answers this question clearly. Even though Berger says that legislative removal power is
constitutionally problematic, Bowsher does not stand for the principle that heads of agencies
are only removable by the President. Bowsher is about Congress' power to remove heads of
agencies, not about the President's power to do so. The end result is that Bowsher does not
spell the end of independent agencies because the court only held that congressional removal
power was unconstitutional.
o Legal rule Make sure, whatever the removal provision, there is no interference with
the President's exercise of executive power and his constitutionally appointed duties.
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Professor Rosen
Constitutional Law, Fall 2003
But, this does not provide a lot of guidance as to what Congress can/can't do
only says don't interfere with exercise of executive power.
This is highly functionalistic argument because there are no concrete categories.
The rule is: just don't upset exercise of executive powers.
In THIS case, the court says that the "good cause" standard in the Act "unduly
trammels on executive authority."
The court is signifying a change in its approach with this decision and is rejecting the
formalistic approaches used earlier in Humphreys. The court has changed its mind.
Scalia's dissenting opinion formalist argument.
o The independent prosecutor is a purely executive power, so the presidential power to
remove cannot be limited. President's power to remove can only be limited in instances
where the removing party is performing a quasi-legislative, or quasi-judicial function.
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Professor Rosen
Constitutional Law, Fall 2003
Heart of Atlanta the ct reshapes the substantial test (NLRB, Wickard) to reasonable/rational basis test
which is essentially the same, but is even more deferential to Congress' powers.
These different approaches create different legal tests, which determine the outcomes of cases.
Formalist legal test did the "thing" have direct or indirect effects on commerce?
Functionalist legal test close and substantial relation test. The result of the functionalist test is
that it gives a great deal of deference to Congress, even if the activities are local, non-commercial and if
taken individually, have little impact on commerce.
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Professor Rosen
Constitutional Law, Fall 2003
1960s 1995 when court applied close and substantial relation test/reasonableness standard. Every
piece of legislation that was challenged on commerce clause grounds was upheld. This shows incredible
deference to Congress. This changed with Lopez decision; this was the 1st time in 60 years that the court
found Congress had overstepped its bounds in regulating commerce.
Lopez (1995)
Criminal statute at issue; activity being regulated was about possession of handguns in a
school zone.
Watershed case; part of new federalism.
Legal test Court established 3 broad categories of activity that Congress can regulate.
o Use of channels of interstate commerce
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Professor Rosen
Constitutional Law, Fall 2003
Morrison (2000)
Violence Against Women Act: the statute in question provided damages remedy for criminal
statute; when persons committed crimes based on gender.
o Did Congress have power to enact this statute? The basis for that power:
Commerce clause; Forest No.
Section 5 of 14A; Forest No.
o The Wickard aggregation approach is only operable when the activity being aggregated is
economic in nature. The court is not willing to put forth a categorical rule that you can
only aggregate in economic activities, but the court also says that cases in the past have
upheld regulation under the commerce clause only when the activity is economic in
nature.
Justices disagree about what amounts to an economic activity and what does not.
Dissents in Lopez and Morrison say that the lesson of history (of the commerce
clause) is that the courts can't police this; better to give it to Congress. (Similar to
political question doctrine argument.) The point of disagreement is about judicial
competency majority says judiciary can and should police line between
federal and state polities; dissent says judiciary not equipped to police that line,
as evidence by the events in 1930s.
Madison view The 'general welfare' is referring to the 17 clauses that follow.
Clause I says Congress has power to tax to do any of the enumerated powers listed in the 17
clauses that follow.
Hamilton view 'General welfare' is a broad, independent grant of regulatory authority.
Clause I says Congress can do other things beyond the 17 that are enumerated.
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Professor Rosen
Constitutional Law, Fall 2003
o Relatedness requirement
o Is there an independent constitutional bar?
o See hypothetical analysis for unspoken 5th prong: coercion. This must be included in any
Dole analysis.
O'Connor's Dissent about the relatedness prong. She wants to define relatedness in a more
narrow way.
o This would be a good way to limit Congress' spending clause powers create more
narrow interpretation of relatedness prong.
Hypothetical Congress taxed states 10K per student in public school and then rebated that money if the
state enacted a law banning the possession of handguns within 1,000 feet of all public schools. Is this
constitutional?
Lopez tells us that Congress does not have power to enact this legislation under the commerce
clause. But, this is structured as a spending clause analysis because it is structured as an
inducement and not as a direct regulation.
Apply the Dole test
o General welfare safety of students is certainly element of general welfare
o Conditions are unambiguous (per Rosen)
o Relatedness
o Independent constitutional bar
Is there an explicit one? No.
Can't be so coercive (i.e. too coercive) = 5th prong Coercion.
10K per student is a massive amount of money and may amount to
unacceptable coercion. This may make the hypo run afoul of the coercion
prong.
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Professor Rosen
Constitutional Law, Fall 2003
Argument against the statute is that Congress does not have power to proscribe discrimination
of private citizens/businesses. The 14A is a limitation on states and governments and section
5 of 14A gives Congress power to enforce against states and governments, but Congress does
not have that power against private entities.
o If Congress had been targeting state-owned hotels and motels, that would have been
constitutional, but because the statute addressed private entities, the court held that
Congress did not have power to regulate.
This approach is still good law under section 5 of 14A.
The court says if sections 1 thru 4 of 14A are limited to the states, then Congress' power to
enforce is also limited to the states.
o Sections 1-4 are directed to the states; addresses what the states limitations are.
o Section 5 is directed to Congress; addresses what Congress can regulate, what its
power to regulate is.
Harlan's Dissent advocates deference to Congress and applies the differential approach of
McCulloch v. MD to an analysis of Congress' powers under Section 5. The majority took a
much more narrow approach.
Black letter law Congress can only regulate against states, not against individuals.
Congress' powers limited to states.
Section 4(e) is an enforcement of the 14th Amendment from two different perspectives.
Either approach would be valid and would be basis to justify legislation.
o 1st approach: Prophylactic approach a fence around the constitutional requirement.
That is, literacy requirements themselves are not unconstitutional, but they could result in
unconstitutional results. Congress can disallow constitutional rights if it thinks those
rights could lead to unconstitutional results. i.e. Congress can disallow literacy
requirement (which is constitutional under Lassiter) if it thinks it will deny Puerto Ricans
the right to vote, etc (which would be an unconstitutional result.)
o 2nd approach: Perceive a basis approach If Congress thinks (regardless of what court
said) that literacy requirements are invidious discrimination that violates EPC of 14A,
then that is enough for court to uphold Congress' act. Lassiter said literacy requirements
are constitutional, but if Congress has basis to disagree with that, then we'll defer to its
judgment and uphold its statute.
Note the clear diversion away from holding in Marbury. This world is very
different than the Marbury world.
o The Katzenbach decision is very different than the Civil Rights Cases because K is saying
that Congress, under section 5 of 14A, can proscribe something that is already
constitutional under sections 1-4 of 14A. This means that the undercurrent of the K
decision is that there is a disconnect between the scope of 1-4 and the scope of section 5.
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Professor Rosen
Constitutional Law, Fall 2003
Post RFRA, Congress tried to statutorily protect religious freedoms the same way the constitution
protected them pre-Smith. The question about RFRA is whether Congress had the power to enact it.
Congress relied on section 5 of 14A in passing the statute.
o This is, structurally, analogous to what was happening in Katzenbach. In both cases,
Congress has statutorily proscribed activities that the court has already concluded are
constitutional.
In this case, the court has already concluded that reasonable religious regulations
are constitutional.
Legal Test Congruence and proportionality test. These terms are creations of the court
which the court says it creates based on past precedents and is just now labeling them.
o Court ultimately says that RFRA is neither congruent nor proportional.
The RFRA fails congruence and proportionality because 1) the statute is very
broad and legal precedent is limited to instances of bigotry (laws prompted by
bigotry are unconstitutional), and 2) there are no recent instances of state laws
prompted by religious bigotry.
Post-Boerne Congress' powers are being more limited.
o Dissent advocates a return to time when Congress received more deference to the
exercise of its section 5 powers. The dissent is re-iterating the 2nd holding in the
Katzenbach decision perceive a basis approach, that Congress should have
constitutional interpretation authority in this regard.
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Professor Rosen
Constitutional Law, Fall 2003
10th Amendment is independent limit on Congress' powers; it says powers not delegated to U.S. by
Constitution nor prohibited by it to States are reserved to states or people.
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Professor Rosen
Constitutional Law, Fall 2003
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Professor Rosen
Constitutional Law, Fall 2003
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Professor Rosen
Constitutional Law, Fall 2003
o Easy to deal with this principle when the conflict is between feds and state; not so easy to
deal with when it's between 2 states.
o Pre-emption raises deep federalism concerns because you have to determine in what
circumstances the federal govt can elbow out the states.
Express pre-emption when a Congressional statute comes right out and says it pre-empts.
Implied pre-emption when federal law (usually statute) does not come out and say pre-
emption. Analytically, implied pre-emption is a situation of dormant commerce clause. (See
below.)
Conflict pre-emption federal statute with no express provision; federal statute
conflicts with state statute and state must give way under supremacy clause.
Geier case is an example of conflict analysis.
Geier looks at federal goal; if what the state is doing conflicts with that
goal, then state statute conflicts with the federal one and supremacy
clause means federal law wins out.
Whether you have a conflict is determined by the purpose/goal of the
regulation.
Field pre-emption where feds want control over the entire field (area).
Overwhelming federal interest
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Professor Rosen
Constitutional Law, Fall 2003
Congress has been dormant; it has not acted, but it could have, and in acting, it could have
displaced the states. Even though Congress has not acted, the states can still be prohibited
from acting.
The dormant commerce clause is a mess, doctrinally. (Everyone agrees to this.)
Threshold Question Congress cannot regulate anything it wants; it has to relate to interstate commerce,
according to the commerce clause. Could Congress have regulated this "thing" if it had wanted to? If yes,
then we are in the world of the dormant commerce clause.
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Professor Rosen
Constitutional Law, Fall 2003
consequences to this ordinance. It's not there just to burden out of state competitors; it
also burdens in state competitors too. This makes it not so much a protectionist ordinance
as much as it is a monopoly. The DCC does not govern monopolies. A monopoly may be
stupid, but it's not unconstitutional.
This means that the dissent may get the better of the argument (see below.)
End Result The ordinance is protectionist and is unconstitutional, per the dormant
commerce clause.
o Exam Notation try to distinguish statute as protectionist, etc., but draw on concurring
opinion's approach or representation reinforcement. There's room to argue that the
Carbone definition of protectionism is problematic and does not reflect what
protectionism really is.
O'Connor's Concurring Opinion
o The ordinance fails because the ordinance fails the 2nd, even-handedness test.
o She argues that the party bringing the suit is a resident of Clarkstown and explains why
this is not properly characterized as protectionist regulation because it affects citizens of
the state as well as out-of-state citizens.
This point goes to representation reinforcement In-state citizens have political
process to protect them, that will in-turn benefit out-of-state citizens. When states
impose costs on outsiders, that is protectionist. When Congress does it, it is OK
because that cost is distributed amongst all.
So, courts should not step in where the regulation affects insiders
primarily, and its effects may impact out of state people.
Dissenting Opinion
o Dissent says the majority ignores the fact that private parties are not benefited by the
ordinance here, but the government is the beneficiary. Therefore, the ordinance falls
outside the protectionist measures that the commerce clause prohibits.
Here the beneficiary of the regulation is the govt and it benefits one processor it
does not discriminate against a class of competitors.
o There is no evidence that this ordinance has kept competitors from entering the market.
The only businesses that have suffered are within Clarkstown, so there is no
constitutional problem. The commerce clause was not passed to save the citizens of
Clarkstown from themselves.
o Dissent introduces idea of a rational basis test. There is a circuit split on the subject of
whether a rational basis test should apply in dormant commerce clause cases.
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Professor Rosen
Constitutional Law, Fall 2003
If the state is a market participant, then the DCC does not apply. So, if you're a
state, try to conceptualize the state as a market participant; this offers you
immunity from the DCC.
The logic behind the market participant immunity is that states and cities
frequently run businesses. When they are acting as businesses, they
ought to make decisions the same way as private businesses. Since the
DCC does not apply to private businesses, it should not apply to states
when they are operating in the same capacity as private businesses. This
puts states on equal playing field as private businesses.
o Counter-Argument But, states are never like private actors;
they are not similarly situated. A private individual/business can
make a mutual contract, but a state makes a unilateral contract.
In this case, the court decides the state is acting more like a regulator because it
regulates what you can do with processing the lumber. This helps rullify what a
market participant vs. a market regulator is.
Downstream restrictions (i.e. regulations on the lumber after it's sold to
be processed in AK v. when it's sold) have a greater regulatory effect
than do limitations on the immediate transaction because this restricts the
post-purchase activity of the purchaser, rather than just the purchasing
activity.
Brennan's Concurring Opinion
o AK in-state processing requirement constitutes market regulation which is not
authorized.
Power's Concurrence
o Should remand to consider whether AK was acting as market participant and whether the
regulation substantially burdened interstate commerce.
Rehnquist and O'Connor Dissent
o Line drawn between market participant and market regulator is unconvincing.
Market Participant doctrine
o How do you define the market? If the market is the raw timber market, then the state is
acting as a regulator because the raw timber market ends where processing begins. But, if
the market is the logging and processing of timber, then it could be acting as a market
participant because it is contracting with who can process the lumber. This entire analysis
can turn on how you define the market. The lawyers can formulate their arguments
around the scope of the market since that scope is not defined by the court.
White (1983)
Camden (1984)
The court decides this on Privileges and Immunities grounds Article IV, Section II, Clause
I.
o The phraseology of the P & I clause is a little puzzling. It is an anti-discrimination, equal
protection provision. It says that the inhabitants of each of the states are entitled to same
privileges and immunities that a citizen of an individual state is.
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Professor Rosen
Constitutional Law, Fall 2003
A citizen of MA, while visiting IL is entitled to P & I that IL residents enjoy. This
guarantees that a visitor from another state is going to enjoy same P & I that a
citizen of IL enjoys, while that visitor is in IL.
Article IV deals with horizontal federalism deals with relations of
states.
o Differential treatment among residents is not categorically unconstitutional. The
protected privileges and immunities that trigger Article IV cover only a subset of
interests; it triggers only interests that are of fundamental concerns. (One category would
be things that affect employment, professional calling, etc.)
Bottom line regulation, even of protected P & I is permissible if it can be
shown that there is a substantial reason for the state's disparate treatment of
insiders and outsiders.
The 2 prong Legal test
Is the regulation affecting a protected privilege and immunity? One that is of
fundamental concern?
If the state regulates a protected privilege and immunity, it does not mean the
state is barred from doing that because P & I clause is not categorical.
40% set aside (compare with White)
Forest insufficient factual record to determine prong 2 (see below); court remands back to
trial court.
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Professor Rosen
Constitutional Law, Fall 2003
The court says the phrase from the 14A (P or I) means that US citizens are citizens of more
than one polity (i.e. USA, IL, Chicago). Article IV is about state P and I. But, under 14A, P or
I are about your national citizenship. This is the distinction.
Article IV ~ about state citizenship ~ Camden (common calling is protected)
14A ~ about national citizenship ~ Slaugterhouse Cases (common calling NOT
protected).
Case involved a monopoly question did the city, in trying to create a monopoly, violate the
Constitution?
Dissent
o Dissent argues that the list of P or I that the majority discusses may not be exhaustive.
Dissent says the ones that are listed by the majority were P or I even before the 14A and
if that's all P or I refer to, then there was no need for this clause in 14A in the first place.
It just confirms what already is; makes it a nullity.
This dissent accurately captures a flaw in the majority's logic.
Justice Field argues that P or I means what is referred to as bill of rights. P or I includes the
types of limitations on federal government contained in bill of rights. Under that approach, P
or I is not a nullity. Rather, it contains new P or I against the states.
3 interpretations presented in this case
o Majority P or I adds nothing.
o Field, Black Bill of Rights added against the states
These first two approaches are about the content of the P or I.
o P or I in 14A are actually state P or I. The state can't deny blacks P or I that are granted to
whites. P or I is not about national P or I (which is what the first two approaches hold),
rather they are about state P or I of any citizen of the national United States.
This is an equal protection concept. It's not about the content of the P or I, it's
about who they are applied to, and that they must be applied in a non-
discriminatory fashion.
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Shapiro Saenz
EPC P or I clause
Strong reason standard Good reason standard
Statute must impact important rights and
benefits.
Forest re: Saenz CA statute ran afoul of 14A. Court rejected tailoring argument that the
federal govt is differently situated than the several states and so the 1996 Amendment to
Social Security Act did NOT alter the court's decision.
o Saenz was 1st decision that addressed both state and federal regulation. The rule that
emerges is 1-size fits all because court rejected tailoring argument.
Loudermill
1st component of due process whether particular interest being deprived of is a life, liberty
or property interest.
o In Loudermill, the question before the court is whether continued employment is a
property interest.
2nd component of due process did government deny that interest without due process of
law?
Remember, the government is allowed to deprive you of your property, it just has
to do so with due process!
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Incorporation
The majority of the Bill of Rights (BOR), by its terms, applies only to Congress. USSC, in Barron v.
Baltimore, said BOR does not extend to states and applies only to federal government. Some framers of
14A thought that the P or I clause of 14A reversed the Barron decision. Some justices tired to ground
BOR protections in other language of 14A. The language that was agreed upon was due process clause.
The idea of incorporation is that the due process clause applies the Bill of Rights against the states. Three
elements of BOR are questioned as to whether or not they apply to the states. 2A (bear arms
undecided), 3A (quartering undecided) and 7A (grand jury No.)
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looking to BOR there may be some overlap between BOR and implicit liberty. But,
there may be things implicit in ordered liberty that are not part of BOR.
Today's Theory: "Incorporation Plus" BOR, but also augmented by whatever
is implicit in concept of ordered liberty.
Casey (1992)
Did not over-rule Roe. But, it did significantly change doctrinal framework. The trimester
system is abandoned.
o Whether or not you agree with this statement (about Casey not overruling Roe) depends
on how you define the central holding of Roe. If you consider the central holding to be
about the fundamental right, then the Casey court's position about upholding Roe is
defensible.
Creates undue burden standard, which is a less strict standard than compelling interest that
was used in Roe. If regulation creates an undue burden, then it violates the Constitution. (The
undue burden standard is specific to abortion cases.) See below for how the court applied this new
standard.
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o The undue burden standard is applicable before viability. This is the big change from
Roe.
An undue burden is anything that is a substantial obstacle or a standard designed
to strike at the right of the woman.
Pre-viability, any standard that creates an undue burden is
unconstitutional.
If regulation is NOT an undue burden then it is constitutional (pre and
post viability.)
The language of Casey says that the constitutionality of a regulation is
focused on portion of those whose conduct it affects. (see below:
application)
o After viability, the state is still permitted to outlaw abortions completely (as in Roe; there
is no change here.)
Casey highlights competing interest of fetus' life interest. This interest is recognized,
doctrinally, in Casey. Casey gives weight to this interest, where Roe really does not.
Application of the undue burden test:
o 24 hour waiting period = OK
This is not an undue burden even though some women (poor women) may not be
able to get abortions.
o Spousal Notification = UNCONSTITUIONAL
Women in domestic abuse situations will be fearful of telling husbands, and
won't tell them and will not get abortions.
Suffering physical violence to get an abortion = undue burden, even if it
only happens to 1% of women. The focus is on the 1% of women who
will be impacted, not the 99% of women who won't be.
o Hawaiian Punch analogy
Ad 100% pure fruit juice; is the whole cup 100% fruit
juice?
Label 10% fruit juice; is the juice within the cup
100% fruit juice?
What is the relevant population to look at? The
effected women, or the entire population of
women?
Methodological inconsistency in Casey analysis:
o 24 hour waiting period some women will be denied NOT and undue burden = OK.
o Spousal notification 1% will not get abortions undue burden = NOT OK.
One way of harmonizing this opinion the problematic part of the spousal
notification was that it reduced women to status of children; demeaning to
women to make them get permission from their husbands. Thus, distinction
between spousal notification and 24 hour waiting period is that spousal
notification affected all women because it reduced them all to children.
On the other hand, it may be difficult to apply Casey because of this apparent
internal inconsistency. Unclear.
Scalia's Dissent
o Scalia says the undue burden standard is not a manageable standard; it cannot be applied
with any consistency. This is a similar argument that is made re: political questions.
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Hypothetical State A requires all abortion providers to provide booklet to women and booklet is
propaganda with pictures (etc) designed to discourage choice of abortion. Evidence shows that 7% of
women who look at booklet will decide against having abortion.
Casey decision says that states can enact measures that are just persuasive and not for
purpose of advancing health of women.
State A requires women to travel 100 miles to get an abortion. Evidence shows 4% of women will decide
against having abortion because of this requirement.
Look to the spousal notification requirement. If 1% of women will be discouraged and that is
not OK, then certainly 4% is not acceptable. This would be a precedent-based argument.
o Counter-Argument look to the way the court upheld the 24 hour waiting period. Court
acknowledges that some women (primarily poor women) may not be able to get
abortions, so it is OK that some women (those who can't travel 100 miles) may not be
able to get abortions. This is all OK and does not amount to an undue burden.
Stenberg (2000)
Statute prohibited partial birth abortion except to protect life of mother. Partial birth abortion
is defined as one where the person performing the abortion partially delivers vaginally a
living unborn child before killing the unborn child. Partial delivery is defined as delivering
into the vagina a living unborn child, or a substantial portion thereof for the purpose of
performing a procedure .
The statute is declared unconstitutional.
o D & X procedure A breach birth is induced; head is inside, legs in the vagina.
o D & E procedure most of the fetus is inside, one limb (arm, leg etc) is in the vagina.
Does "substantial portion thereof" apply to one or the other, or both of these
procedures?
Court considers which is the relevant population to look at. This helps us rullify the Casey
decision in terms of which is the relevant population to look at. It is not a landmark case, the
way that Casey was.
The court identifies the constitutional deficiencies in the NE statute
o Statute only creates exception for life of mother and it should be for the health of mother.
Absence of a health exception in a regulation on a woman's right to have an
abortion amounts to an undue burden.
This would be an undue burden both pre and post viability.
Relevant population Court looks to women who would benefit from a health
exception. A narrow population of women need the health exception. This means
the court is looking at the specific women affected and not the population as a
whole (similar to spousal notification consideration in Casey).
Based on uncertainty in how many women will be affected and what health benefit is had by
permitting the D & X procedure, the Court is willing to strike down the state statute.
O'Connor's Concurrence
o If statute had had health exception and had only addressed D & X procedure, the outcome
would have been different.
Partial Birth Abortion Statute
o There is only a life exception; no health exception. How can this be?
Stenberg majority analysis is a bit unclear; decision was 5:4, which means you
only need one swing Justice.
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Moore
Involved a location zoning ordinance that disallows one grandchild from living in the house,
but permits another grandchild.
Legal Test
Euclid test applied in Belle Terre (In Belle Terre, the court limited the number of
unrelated people that could live together but did not offend notions of family.)
rational basis (low scrutiny) test applies.
This language was used in Parrish.
This formulation almost always shows judicial deference to the other branches of
government.
o However, the court is NOT applying the rational basis test, but it instead says that it does
something more when the regulation affects family relations. This is a less deferential
perspective.
Family relations seem to have a special liberty status under substantive due process.
o Court concludes there was no compelling interest in existence here. A city cannot
standardize a family mold.
Troxel
State statute that allowed non-parents to petition for visitation rights.
o Statute was struck down. Court's reasoning:
There is a liberty interest that parents possess that is protected under DPC, to
make decisions with regards to the upbringing of their children. This means,
there is a protected liberty interest.
Court relies on precedents that parental interest in making decisions
about their child's upbringing is a protected liberty interest. The court
specifically tells us on pp. 600 that this is a fundamental interest.
o When the interest is fundamental, that triggers heightened
scrutiny.
The next step what standard should be applied to determine if the state can
interfere with that liberty interest.
Heightened scrutiny.
o It is clear that there is some form of heightened scrutiny going on
here, but it is unclear exactly what kind.
Court declares statute unconstitutional.
Scalia's Dissent
o Approaches this area of law in similar way as political question. It may be a right; but it's
not a right that the courts should enforce. Scalia says the courts ought not defend this
right; make your arguments to the legislature.
Scalia is saying that the courts are not the only protectors of the Constitution.
O'Connor's Concurrence
o This state statute gives too much discretion to the judge and allows him to substitute his
judgment for the parents. But, O'Connor doesn't really describe a legal test. She just says,
"this goes too far."
Lawrence (2003)
Challenged TX statute which prohibited only homosexual sodomy.
o Forest statute is unconstitutional.
Court's reasoning:
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Cruzan
Involves MO law that requires showing of clear and convincing evidence that this
incompetent person would have wanted life-sustaining treatment removed.
o Forest statute is constitutional.
In the instant case, the parents cannot do this for Cruzan because he provided no such clear
and convincing evidence; no statement on this subject.
o The liberty interests at issue right to die; right to refuse medical treatment.
These are not the same; you can refuse medical treatment for purposes other than
wanting to die (i.e. religious reasons, etc.)
Majority does not say which liberty interest this case is about (right to die, or
right to refuse medical treatment.) The court says it does not have to say which
liberty interest is applicable here because the MO law passes heightened scrutiny
test, anyway. (See below.)
o Level of scrutiny
MO statute would pass a heightened scrutiny test. If it passes the more difficult
test, then it is certain to pass the rational basis test. Thus, if it passes the more
difficult test, then it is constitutional.
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Scalia's Concurrence
o Federal courts ought not be reviewing these type of state statutes.
o Protection against bad or stupid regulation comes not from substantive due process, but
from the EP clause.
Glucksberg
State statute which banned and criminalized physician-assisted suicide.
Court distinguishes between right to assisted suicide and right to refuse medical treatment.
One is about not getting something that will make you better and the other is about something
that will actually hasten your death.
This case gives us guidance about how we actually identify the right we're talking about.
o The liberty interest
Court creates the careful description requirement. Don't identify the right at a
high level of abstraction (i.e. the right to personal autonomy with regard to
fundamental decision.) Better to go to the concrete. (i.e. right to die; right to
physician-assisted suicide.) The court says the liberty interest is: right to
physician-assisted suicide.
This is rullification about answering the 1st question of substantive due
process: Is it a protected liberty interest? Is it a fundamental liberty
interest?
History is the proving ground of a liberty interest.
Protection of fundamental rights that are deeply rooted in history and
traditions and implicit in the concept of ordered liberty, such that neither
liberty nor justice would exist if they were sacrificed.
o This is history-based way of rullifying question #1 in substantive
due process analysis.
o Court concludes that this is NOT a fundamental liberty interest.
This triggers rational basis scrutiny.
o The scrutiny test
Since this is not a fundamental interest, the court applies rational basis scrutiny.
Court concludes that statute does not pass rational basis scrutiny.
This case was decided before Troxel, but Troxel does not rely on history. Troxel uses
precedent for its analysis.
The tests
Rational Basis Strict Scrutiny
Legitimate government interest Compelling government interest
Rationally/reasonably pursued Narrowly tailored
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Part A: Introduction
When the SC is interpreting the Constitution, do we expect it to be the rearguard of social change or the
vanguard of social change? Vanguard = cutting edge. Rearguard acts after ideas have changed. As the
vanguard, should these 9 people have that much control over society's mores?
Bowling v. Shark
Schools in Washington D.C. segregated by race was unconstitutional.
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o Because DC is not a state, the SC applied the EPC of the 5th amendment (reverse
incorporation.)
Yick Wo
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Municipal ordinance that made it unlawful for anyone to have a Laundromat without the
application being reviewed by member of board; review also contingent upon type of
building the Laundromat was in.
Facially neutral statute that was applied discriminatorily.
o If just Chinese are denied permits, then this is not acceptable.
o The court concluded this by looking to the statute's effects. On the basis of the
discriminatory effects, a discriminatory purpose was inferred.
On the one hand a discriminatory purpose is required to get heightened scrutiny
(see Washington below), but on the other the result of Yick Wo is that if you have
a situation where there are absolutely crazy discriminatory effects (as in Yick
Wo), then a discriminatory purpose can be inferred.
o In this case, the court concluded that the law is fair on its face and impartial in
appearance, yet, if it is applied and administered in
Washington v. Davis
Principle EP case within last 30 years; still good law.
Qualifying exam for police officers; many blacks not passing the exam.
Legal Test
o Court applies: Rational Basis scrutiny
This case is different than Korematsu and Loving because those cases had statutes
with racial classifications on their face! Facial, racial classifications mean you get
heightened scrutiny.
But, if you have a facially neutral statute, then you get rational basis scrutiny.
If you have discriminatory effects and discriminatory purpose then you have
heightened scrutiny. The legal rule from Washington is that you need both
(discriminatory effects and discriminatory purpose) of these in order to get
heightened scrutiny.
The court justifies this holding on the basis of consequences. If
heightened scrutiny applies whenever there is a discriminatory impact,
then the courts are going to be reviewing a lot of cases!
o It seems strange that this argument (it's a little attenuated) is
sufficient justification for the low level rule that the court adopts
in this case.
A discriminatory purpose exists only if it can be shown that the legislature did something
only because it would have a certain discriminatory impact. The discriminatory purpose does
NOT exist if the legislature did something in spite of the fact that it would have a
discriminatory impact. That is, government indifference to discriminatory impact is not
enough; they have to be intending to target.
o Therefore, it is VERY difficult to show a discriminatory purpose on a facially neutral
statute.
McCleskey
Challenge of a death sentence given to black man who had murdered white victim.
There was good social science that showed that if he had been white, he would not have been
sentenced to death.
Court says this type of evidence does NOT trigger heightened scrutiny.
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Nowadays, there are different types of facial, racial classifications. One area in which facial, racial
classifications are used all the time: affirmative action. In this area, the racial classification is used to help
the racial group; not harm the racial group. The result facial, racial classifications are treated the same
in affirmative action cases as they were in Korematsu.
Hypothetical You are giving advice to a local councilman. The councilman wants to enact an
ordinance that sets aside 20% of all public contracting dollars for needful groups (NGs). The NGs are
defined as African-Americans and Afghani-Americans. What advice do you give?
Facial, racial classification gets strict/heightened scrutiny.
o Application of heightened scrutiny test
Compelling government interest exists only where there is a history of past racial
discrimination. This means you'd have to get rid of the Afghani requirement
because there is not a history of past discrimination against this group of people.
With respect to the African-American set-aside, you'd have to show existence of
past racial discrimination in that city, and not just on a national level.
Are the means to remedy the discrimination narrowly tailored?
If there was no race-neutral means of remedying the discrimination
applied first, then it's possible that the ordinance is not narrowly tailored.
Fullilove Case
SC upheld set-aside program that was created by Congress. Court says when Congress acts to
create such a program, they are different than the states.
o First, Congress is acting under express constitutional authorizations, under the
enforcement provisions.
o Scalia's concurring opinion says that state and federal government are not similarly
situated.
Adarand Case
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Summary of Tests
Rational Basis Intermediate Scrutiny Strict Scrutiny
Scrutiny
Ends Legitimate Important Compelling
Means Reasonable Substantial relations Narrowly tailored
Part G: Gender
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Intermediate Scrutiny
Important/substantial interest?
o Actual or hypothetical?
Restriction is substantially related to that interest?
Craig v. Boren
Landmark case in gender relations; men cannot drink under 21 and women cannot under 18.
o Forest law is unconstitutional because statute is not substantially related to the govt
objective. (The statute prevents purchase but not consumption.)
Court adopts intermediate scrutiny, by relying on precedent. Yet, pre-Craig, the court was not
clear about what type of scrutiny should be applied in gender cases.
o In reality, the court creates a new standard of review in this case intermediate scrutiny
with teeth.
Legal Test
o An important government objective that is substantially related to achieving those
objectives.
Important govt interest safety; traffic safety.
Evidence shown: males 18-20 arrested for DUI 18 times more than
women and males arrested 10 times more for drunkenness.
Substantial relation to govt objective
Not satisfied because the statute only bars the purchase of alcohol, not
the consumption.
Also, the statistics are so broad and are not being applied to the specific
prohibition on 3.2%
o A significant statistical requirement seems to be part of the
rullification of Craig.
The argument you would make in this case the safety issues about
consumption are substantially related to the statute because you have to
purchase alcohol to consume it. Therefore, there is substantial connection
between what the statute prohibits and what the safety concerns are.
Michael M
Statutory rape law; women not criminally liable, men are, if they have sex with minor.
o Forest statute is constitutional.
Legal Test
o Sounds a lot like rational basis. This means there is some inconsistency among Michael
M and Craig.
Purpose of statute to prevent illegitimate pregnancies.
Court agrees this is an extremely important governmental objective.
o Court is extremely deferential to the legislature in this regard
because what was really behind the government goal was
protecting women's chastity, paternalism, religious reasons (etc).
Under Michael M, hypothesized goals suffice because
no express purpose of the statute was identified.
Sufficiently related to purpose (interest)
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Court says the means are substantially related because women have a
natural deterrent (the actual pregnancy) while men do not.
By the time Michael M comes around, even conservative justices agree that intermediate
scrutiny is the appropriate standard to apply in gender cases.
Nguyen v. INS
Explicit congressional gender classification statute that treated citizen mothers differently
than citizen fathers.
o Forest statute is constitutional.
The statute treats men and women differently on its face. Women's kids don't have to go
through certain procedures that citizen-fathers have to go through to naturalize their kids.
Legal Test
o Intermediate scrutiny.
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Part H: Education
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Dissent
o Under rational basis, this statute fails because poor people do not have a choice to move
to a wealthier district.
Plyler v. Doe
TX statute that said kids of undocumented citizens could not go to public schools.
o Forest statute deemed unconstitutional.
TX interest in this statute is to save money; it is expensive to educate kids. This would cut
down on kids in TX schools.
Language of case uses "substantial goal" language instead of traditional rational basis
language of legitimate state interest.
o The court may be advocating a rational basis (+) approach as the legal test.
Important interest requires good reason to have classification scheme.
If there is a lot more at stake, then you need a substantial reason to justify the
classification scheme.
Court agrees with Rodriguez holding that education is not a fundamental right; instead, it says
education has a fundamental role in our society. While the language may be consistent with
Rodriguez, this case is actually saying things differently. The court did not treat education as
anything special in Rodriguez. It is treating education differently here.
This statue is an example of absolute deprivation and therefore could be entirely consistent
with the decision and framework put forth in Rodriguez. This would trigger heightened
scrutiny in the instant case.
Part of the motivation for the Court was that it seemed particularly draconian to shut the door
to education for these children.
Here, the court did not overrule Rodriguez, but it did tweak it a little bit because the court has
changed its view on education a little bit.
Hypothetical Assume govt scheme post Plyler that led to different allocation of educational resources.
How would you defeat the govt scheme that led to differential spending for education?
You could make this argument post-Plyler and could not make it post-Rodriguez any govt
scheme that differentially distributes education has to pass substantial goal test (substantial
govt interest) which is a more heightened test than the test that was passed in Rodriguez.
When using rational basis, the court is often highly deferential to legislative judgment.
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Beazer Case
Example of highly deferential case. This case shows the court essentially rubber-stamping the
decision of the legislature.
NYC Transit Authority says the no methodone uses will be hired by TA.
o The EP challenge is that methodone users are outside the hiring pool.
o Forest statute upheld.
SC says methodone users are not a suspect class, and therefore they get rational
basis review.
The legitimate interest is public safety and efficiency.
Court does not think that there is an equal protection problem here even
though there is some evidence that some methodone users will still be
good employees, in fact, as good employees as non-methodone users.
Rational basis review is very often about rubber stamping.
Romer v. Evans
Preceded Lawrence.
The law on the chopping block is one passed by state referendum (amendment to state
constitution passed by referendum ~ example of direct democracy.)
o The amendment prohibits any local ordinances or state statutes from giving preferential
treatment or status or allow protection of special discrimination, for homosexuals.
Prior to the amendment, different localities can do what they want. Denver can
apply its traditional perspectives and Boulder can apply its more liberal
perspectives.
After the amendment, the localities cannot make their own choices. The
amendment limits local self-governance. Boulder is limited from doing what it
wants and so is Denver.
o Forest amendment to state constitution = unconstitutional.
The issue before the court is whether the will of the democratic majority is trumped by the
Constitution.
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