Constitutional Law

Supremacy Clause
Article VI, Section 2, of the U.S. Constitution
o Federal laws take supremacy over state laws
If federal and state law conflict, federal law wins
o McCulloch v. Maryland
Default Rule
States can't destroy federal entities
o So, we come to the idea of...
Preemption
o When a state law goes away because of a federal law, the term we use is "the state
law is preempted"
o There are several types of preemption; all have a Constitutional base in the
Supremacy Clause, and all go back to Congress' intent
Express Preemption
o This is when Congress passes a law and says "we expressly preempt state laws on
this topic/in this area."
Not terribly controversial
o Whether or not something preempts state law or not is at some level, a question
for Congress (although Court determines whether or not it exists)
Congress can also say "this does not preempt"
o This is typically straightforward, as it starts off with a clear statement about what
state law is being pushed aside
Implied Preemption
o This is more complicated, and there are different types
Field Preemption
You only have a federal law, and Congress has displaced the state from any
regulation in this field
o This is very rare
A field is off limits
o Nuclear Plant Safety is an example of this
Whether or not Congress acts at all in this category, the states cannot; they are
preempted by field preemption
There is a regulatory gap; Congress has occupied a field, and anything a state
does in it is no good
Therefore, nobody may be regulating as Congress won't, and the states can't
When it exists, we interpret it very narrowly
A state can still, say, set a speed limit on a road directly alongside a nuclear power
 plant
Conflict Preemption
o There is a federal law, then there is a state law, and there is some sort of conflict
between the two
Literal Impossibility
Not terribly controversial, like express preemption
o "The wall in this room must be blue," and another with authority says "The walls
must be anything but blue"
It is literally impossible to comply with both directives
Obstacle Preemption
This can be complicated, and is the most controversial part of preemption
o It's not express, and its not literally impossible
You have a state law, and a federal law, and you could comply with both
Conservatives love this to displace state law
Even though its literally possible to comply with both laws, if the state law is
allowed to continue its existence at the same time as the federal law, the
purpose of the federal law will be undermined
o First, you must figure out what is the purpose of the federal law....is the state
law an obstacle to fulfilling the federal law's purpose?
o Then, you need to figure out whether this state law that you could comply with
concurrently has such an effect on that purpose, that it is an obstacle to
achieving it
A court must now make a number of judgment calls on these questions
See Geier v. American Honda
o Federal law trumps subsequent state law that is not an obstacle to existing federal
law, but rather expands it
Nevertheless, state law trumped and invalidated by preemption
See American INS. Assoc. v. Garamendi
o Cali law conflicts with Presidential order's method of handling affairs
Cali law preempted and invalidated

Contracts Clause
The Contract Clause prohibits states from enacting any law that retroactively
impairs contract rights.
o It applies only to actions of the STATE (including all of it's subdivisions...cities,
towns, counties, etc.)
The Federal Government CANNOT violate it under ANY circumstances
The Framers were concerned about States passing laws with respect to debts
o That is, that States would do things and say "I know you (Big Bank) loaned my
citizen here, in NJ, money to buy a farm...so we're going to pass a law that says he
 doesn't have to pay you!"
The concern was that a state or states would "abolish" debts
Almost all of this was the fact that one state would say to someone from another
state "hey listen, we're going to take care of our own and we just aren't going to
pay you back."
Over time, this expanded beginning with Marshall, and started to apply to more
situations
o It started with contracts, and expanded as it moved forward
1) So, again, this DOES NOT APPLY TO FEDERAL GOVERNMENT
2) It's backwards looking; you can't impair an obligation of a contract that does
not yet exist
3) Can't be a merely incidental effect; if you have a law of general applicability
that has a merely incidental effect of affecting a contract, that isn't good enough
Example is the Freedom of Religion Clause...freely exercise your choice of
religion
o Say you're a Native American, and you're a member of your native church, and you
smoke paoti as part of a ceremony and go to work the next day (as a drug
counselor), you're drug tested, and then fired for + results
o You go to seek unemployment benefits, and you're told you cannot get them
because you tested + on a drug test, which inhibits your right to benefits
o You sue because the law infringes your freedom of religion
You are unlikely to win; this is a law of general applicability that merely
affects your freedom of religion
o Alternatively, you're a member of the Church of Santeria, and sacrifice chickens as
part of your practices
o Where you live creates a series of laws that prohibits killing live animals within the
city limits, but has exceptions such as kosher slaughterhouses
o You sue, because it infringes your right
You are likely to win; such laws are not determined to be generally applicable;
they are targeting your church
This appears general, but is actually pretty specific
Basically, if the law appears to be of general applicability, it will not be in
violation of the Contracts Clause
4) Applies to both Public & Private Contracts
Assume Florida passed a law that said, if you're in Florida, you must buy oranges
grown in Florida
o This is unconstitutional under the Dormant Commerce Clause
Public
o 1) Normal Rules Apply
o 2) States can contract around the contract clause
 Private
o 1) In order for there to be a violation, the impairment must be substantial (more
than a material breach)
"All or most of a party's contractual rights are destroyed" acc'd to Court
o 2) Reliance on right(s) of impaired
o 3) Duration matters
A delay in being able to exercise a contractual right, all other things being equal, is
less likely to be an impairment if we eliminate that right totally
o 4) History matters
If a State has never been in a particular area and issues a law in respect to it,
that's more likely to be an impairment
o 5) Social Interests that ought to be accomplished
What is the state's goal? What is it trying to do? How important is that?
Restrictions on State Power (like the Contracts Clause) can be express, OR
they can be from the structure/values of the Constitution itself

Dormant Commerce Clause

The Dormant Commerce Clause is an implied clause; it only affects state laws
(including municipalities, towns, etc).
o It casts a shadow on state regulations that create an undue burden on interstate
commerce...it is a way to restrict state regulation of interstate commerce
A court will assess whether or not something is an undue burden on interstate
commerce
SO, FIRST
o 1) Must be a state law or state action
o 2) Must be something that Congress could regulate under commerce clause, but
has not
o 3) Congress has not actually acted to regulate it; either it would preempt the
state, or it has already consented to whatever is going on

Three Classifications (After above 3 steps, you pick one of these)

o Facially Discriminatory Laws

The face of the regulation or law requires us to know where something is going
or where something has come from
See Philadelphia v. NJ
The landfill operator had to decide where to take the garbage, and had to know if
the garbage came from NJ or not
o On its face, the statute was discriminatory to interstate commerce
This is because specifically under the statute, you needed to know where the
 garbage came from/was going
If its facially discriminatory, it is presumed to be unconstitutional, and the
burden is on the State to so show otherwise with this...
TEST!
o The state must show that the Statute serves a legitimate, local purpose, AND
State can often satisfy this prong easily; in this case, the state wanted to protect the
health of its citizens
o That purpose cannot be served by any less discriminatory means (that this is
the least discriminatory way to do it...to reach the end)
Can this health protection goal be satisfied without discrimination?
Absolutely...better regulation of the site, better testing...garbage is garbage unless
you can prove otherwise
There are very few instances in which a facially discriminatory law has been
upheld by the Court; almost always struck down
See Granholm v. Heald
See/lookup Maine v. Taylor (fish case)
*OK when the beneficiary of the discrimination is the government itself, as
opposed to a private entity
See United Haulers Assn v. OneidaHerkimer Solid Waste Management Authority
o Ordinance regarding waste disposal; only benefitted the state
o Court held that although facially discriminatory, OK, but not market participant
either
So, Court TREATED AS Impact Only (Pike Balancing Test applied)...upheld

o Facially Neutral (On its face, treats in-staters and out-of-staters alike, but has
the purpose or effect of discriminating)...two subtypes
Impact Only
There's an impact on interstate commerce (if there's no impact, there's no problem
at all, obviously)
o The impact is on both instate and interstate commerce
Start with the presumption that the law is constitutional.
o Challenger has the burden to show otherwise
This is the exact opposite of a Facially Discriminatory statute analysis
The Supreme Court uses a test that balances the local benefits of the law v. the
burdens on interstate commerce; the Pike Balancing Test...CHART
o Now, do the burdens substantially outweigh the local benefits? (this is very
hard to do)
Discriminatory Effect
Assume a state passes a law that says "All apples sold in this state must use our
grading system for apples, instead of the USDA"
o Not facially discriminatory...doesn't matter where the apples came from
o Not impact only, as it had no effect on instate commerce, but only out of state
commerce, which used the USDA
This is because, in fact, the state here DIDN'T use USDA
So, it was discriminating against out of state commerce explicitly with this
restriction
These are always struck down
o YOU LOSE, OR,
o Go to Facially Discriminatory, OR,
o Apply Modified Pike Balancing, the opposite of regular Pike Balancing
Law assumed unconstitutional, STATE must show the burdens DO NOT
outweigh legitimate local benefits, and if they do that, then must show there's a
LESS discriminatory way to achieve those benefits
Basically...this is impossible
Discriminatory Purpose
No longer used, because its basically the same as Discriminatory Effect

o Market Participant
The Dormant Commerce Clause DOES NOT APPLY in these situations; it acts as
an exception to the restriction of government by the Constitution in these specific
instances
When a state is acting is acting as a producer or supplier of a marketable good
or service...in such a role, it may permissibly discriminate against
nonresidents.
Example of "OK" MP Action
When a state is engaging in the buying or selling of goods, it may choose to buy
from local companies at a higher price than it would pay out of state, or sell to
local companies at a lower price than it would otherwise receive.
The state, in participating in the market, is doing what "you or I could do"
See South Central Timber v. Wunnicke
Alaska got involved in selling its timber, which was ok as a MP under the
DCC...BUT, then it also tried to force purchasers to process the wood in
Alaska, which the state wasn't involved in directly
o A state may not impose conditions, whether by statute, regulation or contract, that
have a substantial regulatory effect outside of that particular market.
The state cannot use its position in one market to influence another
Alaska owned timber; that made it a participant in the market of buying and
selling timber
o HOWEVER, it could not pass a law saying everyone in Alaska must only buy or
sell to specific parties
 The State may not avail itself of the market-participant doctrine to immunize
its downstream regulation of a market it is not actually a participant

Privileges and Immunities Clause

Article IV, Section 2, prevents a state from treating citizens of other states in a
discriminatory manner.
o The Privileges and Immunities Clause ensures that citizens of one state have the
same privileges as citizens of another to promote national unity.
It only applies to certain fundamental rights, and citizens, not persons, citizens,
CITIZENS
o The PIC is an equalizer; it is not substantive
Can raise very similar issues to the DCC

Dormant Commerce Clause Privileges and Immunities

Goal Common Economic Market
Who can bring a claim? Any person (natural,
corporation, non-U.S. citizen,
etc.)
Market Participant Yes, very possible
Exception?
Congressional Consent Yes. If the Court finds that
something is an undue burden
on interstate commerce,
Congress can come in and
authorize it. The Commerce
Clause gives Congress power
to do this.
Clause
National Unity
State Citizens only (of
another state than the one
law in question is enacted in)
No. A state is always acting as
a state for the purposes of this
clause; Market Participant
exception ONLY applies
under DCC
No. If the Court finds that
what a state has done is
infringing on a Fundamental
Right important to national
unity, and the state doesnt
have a substantial reason,
Congress cannot change that.
The Court is the final say in
this situation. Congress, here,
doesnt have power to declare
these things as it does under
power of the CC. The Court
does, here.

"Fundamental Rights"
o What the Clause is seeking to balance (not the same as Fundamental Rights under
Due Process...same term, two different meanings)
Rights that are important in establishing a national harmony and national union
o Three Rights Exist unde the PIC according to Court
 Right to Engage in a Trade or Business
State must treat instate/out citizen of state equally UNLESS it has a REALLY
good reason
Right to Own and Dispose of Property
Again, a state cannot treat its citizens differently than out of staters in respect
to owning and disposing of property UNLESS it has a good reason
Right to Access Courts
Again, a state cannot treat its citizens differently than out of staters in respect to
court access UNLESS it has a really good reason
***None of these mean the Constitution says you have a right to do
them...they are in regard to the state's treatment of said rights***
NOTE: The clause uses the word citizen, rather than person
The clause ONLY APPLIES TO PEOPLE (HUMANS, not corporations), and
they MUST be citizens
o Cannot be violated with respect to a non-U.S. citizen, OR corporations

TEST
o First, what is the problem, and does this involve a state citizen?
o Second, is the state law violating a fundamental right (one of three above?) Try
to make it fit into one if it isn't obvious, or shimmy it into a related "Fourth"
category, or you lose.
o Third...under this clause, a state may not deny essential rights to a resident of
another state unless there is a substantial justification (reason) for the difference
in treatment (Causation)
o Fourth, the nonresident must be shown as the constitute a peculiar source of
the evil at which the statute is aimed
There must be a specific connection between the state goal, and the
discriminatory action...the out of staters must be a special source of the
problem the state is trying to address (Remediation)
o Fifth, there must be a lack of workable, less discriminatory means as an
alternative

See United Building and Construction Trades Council v. City of Camden

o PIC Clause applies to nonresidents who intend to return to their domicile at the end
of their journey.
Camden may not exercise the power to bias the employment decisions of private
contractors and subcontractors against outofstate residents; violates the Clause
Court noted instate residents can use votes/legislative influence to change this, out
of state ones cannot
 Due Process Clause
Fifth (Federal; no person shall be deprived of) AND
o Fourteenth (State; no state shall deprive a person of) Amendments both have Due
Process Clauses
This is a technical difference; due process is the same under both
o If one clause is violated, the other is as well
You and me cannot violate the Due Process Clause
o Only the government/state, government actors/state actors, can violate it
(someone/thing using government/state power)
Procedural and Substantive Due Process are different, yet work concurrently
o The former protects the procedures through which laws are implemented, and the
latter disregards procedures but instead focuses on the substance of the laws being
adjudicated
They work together
The Due Process Clauses apply to PERSONS; this means that it extends
beyond only citizens, unlike the Privileges and Immunities Clause, to legal
persons like corporations, partnerships, etc as well
"Incorporation" States, the first eight Amendments (Bill of Rights)
o This is a key concept in understanding Due Process; it applies the Bill of Rights
to States
In the middle of the Twentieth Century, a series of Supreme Court decisions
found that the Due Process Clause "incorporated" most of the important
elements of the Bill of Rights and made them applicable to the states.
These decisions almost obliterated any difference between the Bill of Rights
and the Fourteenth Amendment.
If a Bill of Rights guarantee is "incorporated" in the "due process" requirement of
the Fourteenth Amendment, state and federal obligations are exactly the same.
The right to a jury trial, to take just one example, means the same in state and
federal courts; there are no differences about the number of jurors required,
whether they have to be unanimous in their verdicts, and so forth.

Procedural Due Process

Aims to protect individuals from the coercive power of government by ensuring
that adjudication processes under valid laws are fair and impartial (even if the
law, in substance, is fair)
o Procedures exist in, for example, criminal law, that must be observed and
undertaken before federal, state, and local authorities can convict and imprison a
person
Two Important Questions...START HERE
Is there a life, liberty (when the state does something that changes your liberty
 status), or property being deprived?
o These are Constitutional terms here, because they are in the document
o As such, and being a federal matter, each is a question of Constitutional
interpretation
So, the interests that trigger the Due Process Clause are interpeted by the Courts,
not state law
HOWEVER, a State CAN define something such as "property" depending on how
it creates it, and a Federal Court will strongly consider this
ULTIMATELY, the Federal Court makes the decision, but the State does matter
If yes, what process is due? (AFTER THIS, refer to the TEST below from
Mathews)
o See Cleveland Board of Education v. Loudermill
Security guard for a school is termianted without a hearing after it was learned he
lied on his application (he was a convicted felon)
The thing is, he had no right to even be a public servant because of the whole felon
thing
An essential principle of due process is that a deprivation of life, liberty or property
be preceded by notice and opportunity for hearing appropriate to the nature
of the case.
The pretermination hearing, though necessary, need not be elaborate.
o The formality and procedural requisites for hearing can vary, depending upon the
importance of the interests involved and the nature of the subsequent proceedings.
PostDeprivation v. PreDeprivation
In this case, he was given a hearing, but after he was fired, which is part of what he
took issue with (PreDeprivation)
o See Mathews v. Eldridge
Court held that Due Process does not require a hearing prior to termination of
Social Security Disability Benefits
Distinguished from Goldberg v. Kelly (welfare benefits case); Court's main
argument was that welfare recipients are in dire need, and assistance is only given
to persons on the very margin of subsistence
o In contrast, eligibility for SSD is not based on financial need.
TEST
1) What is the importance of the private interest at stake (we already know its life,
liberty, or property as per the pretest analysis above), AND
2) The Governments interest in maintaining the current procedures (if there IS no
procedure, its violating procedural Due Process by default), AND
o This part assesses the risk of the possibility that a person will be mistakenly
deprived of the interest because of the need for additional or different procedural
safeguards...there needs to be a balancing of interests
 If the interest is is minimal, then the need for additional procedures declines.
If the interest is high then additional procedures would be justified and
necessary
Government agencies may also reduce the risk of erroneous deprivation by
ensuring that regulations are not arbitrary or discriminatory, and by defining
reasonable classifications.
3) What is the risk of error under the current procedures, combined with the risk
of error in the new procedures...if so, to what extent?
o The greater the risk of error, the more procedure needed
o If the need for enhanced due process is merited by the need to assure individuals
that administrative actions are just, then administrative costs should not be
considered.
However, if the costs of the additional procedures outweigh the benefits, then
the government should not be required to use additional resources.
o See Hamdi v. Rumsfeld (Application of Mathews test)
American citizen captured in Afghanistan was held as an enemy combatant; Court
held that his detainment was Constitutional
The Constitution creates war powers that invest the President, as
Commander in Chief, with the power to wage war which Congress has declared,
and to carry into effect all laws passed by Congress for the conducts of war
The Court also noted that since Article III of the Constitution does not have any
sort of war powers analog, the Supreme Court has shown great deference to
the political branches in war matters.
o However, the Court noted that this deference is not unlimited, and that habeas
corpus is still valid.
Recall the power spectrum from Youngstown Steel case in examining the Hamdi
matter
The Court found that it must approach this case by balancing the tension of
individual rights and national security interests.
Basically, "listen Mr. President...you need a procedure in place before depriving
someone of their liberty."
o The Court was not saying the President didn't have the power to do it...the question
was, what did he have to do before doing it
The unlawful detainment, because there was no proper procedure, violated Due
Process....sort of....it was both...in favor of President authority, in favor of Hamdi
over DP issue
Applying Mathews Test
o Very high private interst...liberty, literally
o Government interest is high as well...national security
o Falls short here
 "Individual must be given an opporutnity to challenge his position in captivity, be
given fair notice, and so on"

Substantive Due Process

Demarcates the line between acts by persons of a public or private nature that
courts hold are subject to public regulations or legislation, AND acts that
courts place beyond the reach of governmental interference
o Aims to protect individuals against majoritarian policy enactments which exceed
the limits of governmental authority
That is, it is found that the government cannot do what it's doing because it
violates Due Process, regardless of how fair the process of enforcement
actually is
o Most of the time, the government must simply be rational
However, in certain situations, the government must have a greater purpose for
acting...i.e. deprivation of a fundamental right
TEST
o Is there a fundamental right at issue....what is the nature of the right being
affected?
Something really, really, important...and deeply personal, in laymens' descriptive
terms
It is NOT a right that is important to national union (like under the P&I Clause)
o Whether yes or no to the first part of the test (fundamental or not), is there an
infringement?
You can have a fundamental right to do X, and the government does Y, which
doesn't affect you doing X at all, there's not a problem
99% of the time infringement is clear (according to Prof. Allen)
If it is NOT a Fundamental Right
Rational Basis Scrutiny (If something fails this test, it fails the Strict one by
definition)
o We presume that the law is Constitutional...
o The government has to have a legitimate purpose for acting
o The means has to be rationally related to serving that interest (the ends)
"Close enough" is good enough here, usually
o It is very hard to fail in this situation, but it has happened
If it IS a Fundamental Right (See Griswold v. Connecticut for the Test)
Strict Scrutiny
o We presume that the law is Unconstitutional
o The government must have a compelling interest in what its doing...REALLY
important
o The means has to be narrowly tailored to serve the interest (the ends)
 "Close enough" is not good enough here...the two must be very very close
o It is easier to fail in this situation, but it doesn't always happen
o Modern Test for DETERMINING A FUNDAMENTAL RIGHT...the analysis
used by Douglas has since been rejected (the penumbra stuff) (From Griswold)
A right is fundamental when it is essential to liberty; it includes the right to
something (positive); the right not to have government intrude to a certain point
(negative)

Additional Due Process Cases

See Lochner v. New York
o A New York labor law required employees to work no more than sixty hours in one
week to "protect the health and safety of the public"
The general right to make a contract in relation to his business is part of the
liberty of the individual protected by the Fourteenth Amendment.
The right to purchase or sell labor is part of the liberties protected by the
Constitution (life, liberty, property)
The only way a state may counter this right is to show they are exercising a valid
police power with their regulation.
Those powers relate to the safety, health, morals and general welfare of the
public.
This was during an era of economic protection by the Court....a very Laissez
Faire mentality (striking down Commerce Clause stuff Era)
o In the postLochner era, the Court has applied a lower standard of review when
confronting restrictions on economic liberty, but a higher standard in reviewing
legislation impinging personal liberties; especially the right to privacy
See Pierce v. Society of Sisters (Same era as Lochner)
o Oregon's Compulsory Education Act demanded students go to public schools; two
private schools (appellees) obtained restarining orders preventing its enforcement
o Court held that the act violated the 14th Amendment by interfering with
protected liberty interests, and had no reasonable relationships to any purpose
within the competency of the state
While a state has power to regulate all schools, parents and guardians have the
right and duty to choose the appropriate school for their children via the 14th
Amendment in this matters
See West Coast Hotel Co. v. Parrish (Shift into next Era)
o Washington State instituted minimum wage laws that set $ amounts for children;
hotel paid less, and challeneged Constitutionality of statute
This case overrules Adkins v. Childrens Hospital.
The exploitation of a class of workers who are at a disadvantaged bargaining
position is in the best interest of the health of the worker and economic health
 of the community.
See Griswold v. Connecticut (marks the "Modern Revival" of Substantive Due
Process, a shift from economic to personal)
o Appellants were charged with violating a statute preventing the distribution of
advice to married couples regarding the prevention of conception.
Appellants claimed that the statute violated the 14th Amendment to the United
States Constitution.
o The right of a married couple to privacy is protected by the Constitution...it is so
implicit a right that it should even be questioned, nor should it have to be expressly
authorized (a penumbra; a "partial shadow")
o Justice Douglas points out that the 1st5th Amendents appear to have an
underlying interest in privacy that is implicit in them....he does not say there is
a right of privacy in the Constitution (Harlan does in concurrence)
He is unwilling to say that the right is there...that would be like Lochner, and this
newly emerging era HATED Lochner for its holding...
o Modern Test for DETERMINING A FUNDAMENTAL RIGHT...the analysis
used by Douglas has since been rejected (the penumbra stuff)
A right is fundamental when it is essential to liberty; it includes the right to
something (positive); the right not to have government intrude to a certain point
(negative)
Figuring this out is the hard part, but this is the analysis provided by Harlan,
whereas Douglas was much more discreet in his approach, as shown above
o The right given to married couples here is later extended to unmarried couples
(subsequent case)

Abortion Cases
See Roe v. Wade
o Statutes that make criminal all abortions except when medically advised for the
purpose of saving the life of the mother are an unconstitutional invasion of privacy.
o The Court finds that an abortion statute that forbids all abortions except in the case
of a life saving procedure on behalf of the mother is unconstitutional based upon
the right to privacy.
However, it does allow for regulation and proscription of abortion when the
statute is narrowly tailored to uphold a compelling state interest, such as the
health of the mother or the viable fetus.
o The Court could have said
Life begins at conception
All up to the states
Looked at this as Equal Protection
All up to the woman
o They did none of these...the Court tried to balance things...TEST (which
narrowly tailored its factors)
1) Preserving the health of the mother, noting that there are risks in having, or not
having, an abortion...these interests CAN be compelling in infringing on the right
to abortion
2) Preserving the health of the potential baby, which CAN be compelling in
infringing on the right to abortion
The tricky part...balancing the intersts
Roe adopted a trimester approach
o At the end of the First Trimester, the Court said that the state's interest in
perserving the health of the woman becomes compelling
Until this point, the risk of an abortion IS NOT GREATER THAN the risk of
carrying the pregnancy full term
Until this point in time, the state cannot ban abortion UNLESS the state has a
sufficiently and narrowly tailored reason in acting to preserve the health of the
woman
o At the end of the Second Trimester, the Court said that the state's interest in
preserving the potential life becomes compelling
At this point, the state can ban abortion...it was reasoned that at this point, the fetus
can be viable and live outside the womb
There needed to be an exception here, however, for the life and health of the
mother
This framework is no longer in complete use...it was amended by subsequent
cases

-Between Roe and Casey, the Court underwent some changes in its Justices, and
the notion of abortion/medical tech improvements had an impact-

See Planned Parenthood v. Casey

o People expected this to reverse Roe, but it didn't
It did, however, dramatically change it while keeping the "central components
of Roe" in place
o PA passed an Abortion Control Act, which was a statute that did the following:
A woman seeking an abortion must give informed consent to the procedure/be
provided certain info before procedure
There must be a 24 hour waiting period before procedure performed
A minor must have the consent of at least one parent in order to have the abortion,
although there is also a judicial bypass of this
A married woman had to sign a statement attesting that she had notified her
husband of her intent to have an abortion, unless she certified the husband was not
 the father/the husband can't be located/the pregnancy was the result of a reported
marital rape, or the woman believed that the pregnancy would cause bodily harm
to her/someone else? or something? idk.
There was an imposition of certain reporting mandates on facilities providing
abortion services.
o This was a joint opinion, and it altered the Test from Roe
"We are affirming the essential holding of Roe"
o NEW TEST FOR ABORTION REGULATION
The only key point now in the pregnancy spectrum is the point of fetal viability
That is the point at which the State's interest in preserving potential life
becomes sufficiently important that it is compelling enough that the State may
ban abortion...but
o SUBJECT TO the life and health of the mother
From the point of viability on, the State may adopt rules that achieve its goal of
preserving potential life by banning abortion subject to the health of the mother
exception
o This alters Roe in that the woman's interest in preserving her own privacy right
undervalues the State's interest in preserving potential life, hence the new
spectrum
o The problem with Roe, according to the Court, was that the State's interest was
undervalued in its holding
So....the woman's right to control her body is still fundamental, but now the State's
interest is more important
NEXT, we have the "Undue Burden Standard" was adopted, accordingly, in
conjunction with this test ONLY IN THE PREVIABILITY STAGE
Regulations in the PREVIABILITY PERIOD are unconstitutional IF they are an
UNDUE BURDEN on the right of a woman's control of her own body
o THIS STANDARD HAS NO OTHER IMPLICATION IN
CONSTITUTIONAL LAW REGARDING INDIVIDUAL RIGHTS
IT ONLY APPLIES HERE/TO ABORTION
TEST
o An undue burden is one that "has a substantial purpose OR effect of creating a
substantial obstacle to the exercise of the right to have an abortion
Purpose
This is hard to determine when we're looking at the government, but here...the
purpose? STOP ABORTION
Effect
Self-explanatory
o The Court struck down the provision about informing husbands, but upheld
the other four as Constitutional
 Why? This was a Facial Challenge
The general notion is, when you challenge a statute as being unconstitutional, you
can challenge it as such on its face, meaning the statute is incapable of
constitutional application...it is unconstitutional no matter how its applied
o "You may not criticize the President." Example
This is complicated, b/c a statute may be bad for the masses, but ok for the
individual...its bad for the others because it may stop them from acting at all..
In this case, the Court held that the small amount of women actually affected
by the "you have to tell your spouse" provision MATTERED...it didn't matter
that the majority wasn't affected
o Therefore, ban provision
Banning one thing may be ok, but that ban affects so many people, it may prevent
them from acting altogether, which is too broad of a scope consequently
o "As applied" challenges may be raised..."as applied, this statute makes ____ and
____ and ____ unconstitutional also!" (recall depiction of animal cruelty ban"
The Court struck the provision down as an undue burden for creating a substantial
obstacle in the path of women
o States have circumvented the viability formula by passing laws that focus on "fetal
pain" and "mom's emotions"
See Gonzalez v. Carhart
o The case concerned the Partial Birth Abortion Ban of 2003, enacted by
Congress, that banned partial birth abortions (many states had passed their own
prior)
Congress justified this law under its Commerce Clause powers
o The Ban was struck down as unconstitutional in a variety of lower courts
The Supreme Court, however, reversed and upheld it as Constitutional
A previous case on this issue, Stenberg, had a similar act struck down mainly
because it lacked an exception for the life and health of the mother (which the
Partial Birth Ban Act DID NOT HAVE either)
o Regarding the exception
The Court say you don't have to worry about this...we don't need a health
exception, even though a lot of women are affected by the lack of that
This is the opposite of the logic in Casey, that is, here, the Court says that the
people affected DON'T MATTER...its even a majority on top of that, here, so
wtf??
Further, the fact that there is "medical uncertainty" about whether or not PBA is
medically beneficial in the life and health of the mother was also a factor
Basically, there's no medical need ever to have this, according to Congress
So here, the Court deferred to Congress about a medical question so that Congress
may ban the procedure in question affecting both the control of a woman's body
 AND possibly, her life

Sodomy Cases
See Bowers v. Hardwick
o The majority opinion argued that the Constitution did not confer "a fundamental
right to engage in homosexual sodomy"
It upheld the constitutionality of a GA sodomy law criminalizing oral and anal sex
in private between consenting adults when applied to homosexuals
o The dissent framed the issue as revolving around the right to privacy, accusing the
Court of an "overall refusal to consider the broad principles that have informed our
treatment of privacy in specific cases."
In response to invocations of religious taboos against homosexuality, Blackmun
wrote:
"That certain, but by no means all, religious groups condemn the behavior at issue
gives the State no license to impose their judgments on the entire citizenry."
See Lawrence v. Texas OVERTURNED Bowers
o In the 63 ruling, the Court struck down a similar sodomy law in Teaxas and, by
extension, invalidated sodomy laws nationwide, making samesex sexual activity
legal in every U.S. state and territory
o Note: If something is struck down as a violation of Equal Protection, is says
nothing about whether or not the government can do what its doing, it ONLY
says you can't distinguish between GROUPS of people
With DUE PROCESS, it's saying you CAN'T do what you're doing,
government...THE RULING, THEN, IS MORE SWEEPING IN ITS EFFECT
o 5 votes said this was Due Process (lead by Kennedy)
Kennedy said that this was an issue of substantive due process, directly challenging
Bowers
The majority decision also held that the intimate, adult consensual conduct at issue
here was part of the liberty protected by the substantive component of the
Fourteenth Amendment's due process protections.
Holding that "the Texas statute furthers no legitimate state interest which can
justify its intrusion into the personal and private life of the individual", the court
struck down the antisodomy law as unconstitutional.
o 1 vote concurrence, using Equal Protection (O'Connor)
Disagreed with the overturning of Bower and disputed the court's invocation of
due process guarantees of liberty in this context.
Rather than including sexuality under protected liberty, she used the equal
protection argument and struck down the law because it was directed at one group.
O'Connor maintained that a sodomy law that was neutral both in effect and
application might be constitutional, but that there was little to fear because
 "democratic society" would not tolerate it for long.
A law limiting marriage to heterosexual couples would pass the rational scrutiny as
long as it was designed to "preserv[e] the traditional institution of marriage" and
not simply based on the state's dislike of homosexual persons.
o 3 vote dissent, (lead by Scalia)
Since the court does not find homosexual sodomy to be a fundamental right, and
merely describes it as an exercise in liberty, a rational basis scrutiny should be
applied, and in doing so, the law would be upheld.
The court's willingness to overturn Bowers rather than use stare decicis, is
inconsistent with other case law such as Planned Parenthood, and the court should
be consistent and stable
Since all laws, by definition (as example, prostitution, using heroin, etc) affect
liberty, they would all be unconstitutional under this courts ruling.

See Cruzan v. Director, Missouri Department of Health

o Right to live or die is a fundamental right
Incompetent persons have this same right
The State must provide a means by which the person may exercise that right
(living wills, as a preemptive mean, or that PLUS look back on a person's life as in
case above and see what they wanted)
So, the incompetent person's right is being exercised by the parents here, but the
case is nevertheless all about the girl's right.
o The United States Constitution does not forbid Missouri to require that evidence of
an incompetent's wishes as to the withdrawal of life-sustaining treatment be proved
by clear and convincing evidence.
o The State Supreme Court did not commit constitutional error in concluding that the
evidence adduced at trial did not amount to clear and convincing proof of Cruzan's
desire to have hydration and nutrition withdrawn.
The trial court had not adopted a clear and convincing evidence standard and
Cruzan's observations that she did not want to live as a "vegetable" did not deal in
terms with withdrawal of medical treatment or of hydration and nutrition.
o The Due Process Clause does not require a State to accept the "substituted
judgment" of close family members in the absence of substantial proof that their
views reflect the patient's.
This Court's decision upholding a State's favored treatment of traditional family
relationships may not be turned into a constitutional requirement that a State must
recognize the primacy of these relationships in a situation like this.
Nor may a decision upholding a State's right to permit family decision-making be
turned into a constitutional requirement that the State recognize such decision-
making.
o This case involved a "negative act"; i.e. "STOP MEDICAL TREATMENT"

Equal Protection Clause

EPC applies to both state and federal government; in Constitution, only applies to
States, but through the 5th Amendment, SC has ruled that it applies to federal
as well impliedly
o Doesn't have any substantive content
o What it talks about is whether the government's justification for treating similarly
situated groups of people in different ways is sufficiently strong to allow that
differential treatment
Under EPC, you have a "right" to not be treated differently without good
reason; IT IS AN EQUALIZER
This ONLY APPLIES TO GOVERNMENT ACTORS
o You CANNOT violate it if you're a private actor
For MOST EPC issues, the courts are going to defer to the elected branches of
government
All of equal protection law is about intentionality in re the government
When you have an EPC claim, you must first ask; what is the classification?
o There's at least one of these going on; one must be on the face of the statute to
be an EPC claim; if there ISN'T one, you may have a Due Process claim
The facial classification in the statute itself will help guide you
o OR, sometimes, a statute may have one type of classification that may be
intentionally applied to be another classification (these are very highly
scrutinized)
i.e. statute banning laundromat in wooden buildings, but its only applied to
Chinese people who fall into its scope
o OR, what is the effect
Applied nonracially/discriminatorily (face), not structured in a way that favored
one racial group over the other (intent)
The effect showed that whites came out higher than blacks
Washington v. Davis
o A mere disparate effect is not enough to show is a factor
Effect can sometimes show that a law classifies...just not always...so how do we
figure this out?
o The Nature of the Effect
How big is the disparity? The greater, the more likely the court will assume there is
intent to use that as a basis of classification
o Legislative History
Indicators that race has been relevant in re the action
o Impetus
 What was the story that led up to the particular action of the government body that
enacted this law that then had a disparate effect?
o Geography
Something that has a disparate effect in one area may be different than another,
based off of geographical location (history of discrimination, for example)

o Next, you apply the test that applies

Also Keep in mind
De Jure; by operation of law, intentional government action
o Probably unconstitutional and violates the EPC
o This can be remedied, which is why its not common and most of society
operates in the realm of De Facto
De Facto; the fact of the matter; just the way it is
o Not a Suspect Class; would fall into non-suspect

Suspect Classes (Highest Level...Strict Scrutiny) (race, national origin,

fundamental rights) (< on its face, race neutral classification, or disparate effect on
race)
o We start analysis with a deep suspicion of the government's reason here and that
the law is invalid
o Government MUST have a compelling reason...a SUPER IMPORTANT
INTEREST, such as (but not limited to) national security or preservation of
life
Narrowly tailored to serve that interest...VERY closely fit
o These CAN be upheld, but it is rare
Quasi-Suspect Classes (gender, sex)
o We start off here sort of suspicious and that the law is invalid, because gender
based lines may be drawn for biological differences, but also social ones
o Government MUST have an important interest (hard to define exactly what
this is)
Substantially related; fit must be good, but does not have to be perfect
o Most of these fail, BUT more survive than strict scrutiny
Biologically sex based discrimination is more likely to survive than non-
biologically based reasoning
Non-Suspect Classes (all other cases...health, safety, welfare, resource
conservation...anything but the imposition of the government's own majoritarian
morality based view)
o Legitimate reason for the classification
o The classification need only be rationally related to reason; "close enough is
good enough"
 Highly deferential to legislative judgment
o Rational basis review!
All the interest asserted has to be is consistent with the face of the statute
These are super easy to satisfy
o These are the most common, and are often upheld
EPC is very weak in this category, which is why most actions are down here

Race Cases
See Plessy v. Ferguson (overturned)
o A Louisiana statute required railroad companies to provide separate, but equal
accommodations for its Black and White passengers.
The Plaintiff, Pless, was prosecuted under the statute after he refused to leave the
section of a train reserved for whites.
o A law, which authorizes or requires the separation of the two races on public
conveyances, is consistent with the Fourteenth Amendment of the United States
Constitution unless the law is unreasonable.
The Fourteenth Amendment of the Constitution does, however, require that the
exercise of a States police powers be reasonable.
Laws enacted in good faith, for the promotion of the public good and not for the
annoyance or oppression of another race are reasonable.
o As such, the statute was reasonable.
See Brown v. Board
o Black children were denied admission to schools attended by white children under
laws that permitted or required segregation by race; the children sued.
Even if the tangible factors of segregated schools are equal, to separate black
children from others of similar age and qualifications on the basis of race,
generates a feeling of inferiority and may affect them permanently
o Separate but equal educational facilities are inherently unequal.
Overturned Plessy
See Loving v. Virginia
o The state of Virginia enacted laws making it a felony for a white person to
intermarry with a black person or the reverse.
The constitutionality of the statutes was called into question.
o Restricting the freedom to marry solely on the basis of race violates the central
meaning of the Equal Protection Clause.
The fact that Virginia bans only interracial marriages involving whites is proof that
the miscegenation statutes exist for no purposes independent of those based on
arbitrary and invidious racial discrimination.
See Washington v. Davis
o A higher percentage of black applicants than white applicants failed a qualifying
 test administered by the District of Columbia Police Department.
Some of the unsuccessful black applicants claimed these effects constituted
unconstitutional discrimination against them.
o Proof of a disproportionate impact is not enough, standing alone, to ground a
finding that a law amounts to unconstitutional discrimination.
Disproportionate impact is not irrelevant, but it alone does not trigger the rule that
racial classifications are subject to the strict scrutiny standard of review.
The police forces efforts to recruit black police officers are evidence that the
police department did not intentionally discriminate on the basis of race.
o The exam is rationally related to the legitimate government purpose of ensuring
that police officers have acquired a particular level of verbal skill.
See Grutter v. Bollinger
o A white law school applicant challenges a law schools use of race as a factor in
the admissions process.
Schools may consider race as a part of the admissions process as long as it is only
one factor in an individualized process.
The law school in this case was conducting highly individualized reviews of each
applicant, and Justice OConnor determined that race was only one of many factors
considered to determine the applicants eligibility.
Schools have a compelling interest in having diverse student bodies, i.e.
educational diversity
See Parents Involved in Community Schools v. Seattle School District
o When determining where to place a child or where to transfer a child both school
districts use race as the qualifying factor on where to send the child.
o Seattle allows students to choose a high school but when too many students choose
a school they decide based on siblings in schools and the race of the child.
School plans that use race alone as a qualifying criterion for school assignments is
unconstitutional; using race to eliminate racial disparity is a compelling interest,
though
In order for a state actor to engage in discriminatory actions it must do so in a
way that is narrowly tailored to achieve a compelling state interest.
See Fisher v. University of Texas
o Texas legislature enacted a law requiring the University of Texas to admit all high
school seniors who ranked in the top ten percent of their high school classes.
After finding differences between the racial and ethnic makeup of the university's
undergraduate population and the state's population, the University of Texas
decided to modify its race-neutral admissions policy.
o The new policy continued to admit all instate students who graduated in the top ten
percent of their high school classes.
For the remainder of the instate freshman class the university would consider race
 as a factor in admission.
o Open issue; not decided yet

Gender Cases
See Frontiero v. Richardson
o Appellant asserts that a military practice that automatically allowed the wives of
male officers to be considered as dependents and thus receive the rights of
dependents was unconstitutional gender based classification.
WHY? Because it required the female officers, in order to get the benefits for their
husbands, to actually prove that their husbands were dependent upon them
o Classifications based on sex are inherently suspect and must be subject to strict
judicial scrutiny
Classifications based on sex are inherently suspect per the Due Process Clause of
the Fifth Amendment and the Equal Protection Clause of the Fourteenth
amendment and must be subject to strict judicial scrutiny
See Craig v. Boren
o Oklahoma State maintained different drinking ages between men and women for
the consumption of 3.2% alcohol beer.
The Appellant now alleges that this difference violates the Fourteenth Amendment
of the United States Constitution
o Gender-based classifications must satisfy intermediate scrutiny requirements to
pass constitutional muster (intermediate scrutiny created and used here)
The gender based classification must serve an important government objective and
be substantially related to the achievement of such objective.
The District Court unequivocally found that the objective to be served by the
statute is increased traffic safety.
o The Court disagreed with these findings, and as such, it is not constitutional as
it is inconsistent with the EPC
See United States v. Virginia
o Virginia Military Institute (VMI) was the only single sexed school in Virginia.
VMI used a highly adversarial method to train (male) leaders of the future; there
was no equal educational opportunity to that of VMI in the State for women.
o Gender based classifications of the government can be defended only by
exceedingly persuasive justifications.
The State must show that its classification serves important governmental
objectives and that the means employed are substantially related to those
objectives.
The justification must be genuine, not hypothesized, and it must not rely
onoverbroad generalizations about the differences between males and females.
Generalizations about the way women are or what is appropriate for them will no
 longer serve to justify denying opportunity to those whose talents and capabilities
make them exceptions to the average description.
The appropriate remedy here is to admit women, and that's just what the ruling did.

Rational Basis Cases

See Railway Express Agency v. New York
o The Appellant, Railway Express Agency (Appellant), brought suit against the
Appellee, the State of New York (Appellee).
Appellant argued that a statute prohibiting advertising on vehicles, except for
noticesupon business delivery vehicles engaged in the regular work of the owner,
violate the Equal Protection Clause of the 14th Amendment
o The Equal Protection Clause does not seek to protect so called discrimination in
determining whether allowing advertising on vehicles and not allowing advertising
on other vehicles is unconstitutional
o The Equal Protection Clause of the Fourteenth Amendment is not violated by this
statute that prohibits advertising on vehicles except when the advertising is
connected to the owner of the vehicles business.
In this case since the statutes purpose was to further the safety of the public,
the statute will be upheld.
See Armour v. Indianapolis
o Brief
o The city had a rational basis for its distinction between homeowners who had paid
their taxes in a lump sum and those who paid over time by installments
Therefore, the citys refusal to provide a refund to those who paid in a lump sum
did not violate the Equal Protection Clause.

Other
See City of Cleburne, Texas v. Cleburne Living Center, Inc
o The Petitioner, City of Cleburne (Petitioner), denied a special use permit to the
Respondent, Cleburne Living Center (Respondent), for the establishment of a
group home for the mentally retarded in the community.
The Court of Appeals of the Fifth Circuit determined that this group is a
quasisuspect class and that the ordinance violated the Equal Protection Clause of
the United States Constitution
o The Court said no; this is neither suspect nor quasisuspect (the following
reasons are not a check off list; they are things the Court considers)
The Court described the group visavis it's nature...it is not a monolithic group, such
as women (all women can get pregnant)
The mentally retarded are not monolithic as they vary widely between one another
in their capibilities
 Further, if a group has political power, there is less concern
This group of people has attracted law makers' interest for some time and on many
issues
How do we distinguish other groups, then, if we open up this group to judicial
review?
Too many "opens the floodgates"
The immutability of the change

The obviousness
There may be a trait that combines a group, but if it isn't obvious, they may be less
likely to need protection
See Romer v. Evans
o Colorado voters adopted Amendment two to their State Constitution, precluding
the government from adopting measures that would protect homosexuals from
discrimination.
The state trial court enjoined enforcement of the act.
o A bare desire to harm a politically unpopular group cannot constitute a legitimate
governmental interest
Amendment two relegates homosexuals to a solitary class and withdraws from
them, but no others, legal protections arising from discrimination.
Its reach includes the States public accommodation laws, as well as laws
prohibiting discrimination in the housing, insurance and education markets.
A law making it more difficult for one group of citizens to seek assistance from the
government than another is a denial of the Equal Protection of the laws in the
most literal sense
(i.e. the means do not fit whatever ends sufficiently to pass rational basis review).o
Moreover, the means of Amendment two are so broad in relation to its ends (to
prevent the deterioration of sexual morality) that we cannot credit them.
The Supreme Court of the United States (Supreme Court) is left with the
conclusion that Amendment two constitutes a classification for its own sake.
Class legislation is obnoxious to the Fourteenth Amendment. (i.e., the ends are
illegitimate).

Necessary and Proper Clause

Article I, 8...bear in mind the N&P clause is not always applied to
Congressional actions, such as those that are clearly enumerated powers that
Congress can "spin," but, the clause can be powerful and useful for Congress
See Mcculloch v. Maryland
o Bank of U.S. argued to be unconstitutional, as Congress had created it, and
allegedly "lacked" the power to do so
 Supreme Court rejected the argument, and found that Congress had the power
to do so
Historical practice established Congress' power to create the Bank, as the first
Congress enacted the bank after great debate and that it was approved by an
executive
The people who ratified the Constitution and thus the people are sovereign, not the
states.
Although the Constitution does not enumerate a power to create a central Bank,
this is not dispositive as to Congress's power to establish such an institution.
The Court invoked the Necessary and Proper Clause which permits Congress to
seek an objective that is within its enumerated powers so long as it is rationally
related to the objective and not forbidden by the Constitution.
o In liberally interpreting the Necessary and Proper clause, the Court rejected
Maryland's narrow interpretation of the clause:
It purported that the word "necessary" in the Necessary and Proper Clause meant
that Congress could only pass those laws which were absolutely essential in the
execution of its enumerated powers.
o The Court rejected this argument on the grounds that many of the enumerated
powers of Congress under the Constitution would be useless if only those laws
deemed essential to a power's execution could be passed.
Marshall also noted that the Necessary and Proper Clause is listed within the
powers of Congress, not the limitations.
o The N&P clause alone did not give Congress the power to create the bank, but
rather the relationship between means and ends did (don't need it if Congress is
literally using an enumerated power for its exact purpose, i.e. declare war)
The Clause is all about means (N&P clause); things that can be done not for their
own purpose, but how they relate to ends (enumerated powers)
Standing alone, the clause has no power...but when it is effectively connected to
an enumerated power, it has power
Doing something as a mean to achieve an end
So, in this matter, one of Congress' enumerated powers is to coin money...did
Congress coin money by creating the bank? No.
Can that be a sufficiently related means to achieving the end of coining money; is
there a sufficient relationship between the creation of a bank and coining money?
Marshall established 4 important considerations
(1)There must be a legitimate end that Congress is attempting to implement
(2)The means that Congress chose must be "useful" or "convenient" to
implementing the ends
o In examining this, there is a question of deference; how much power do we defer
to a branch?
 That is, how much do we defer to their authority, i.e. trust it
In this situation in re Congress, more deference means less judicial scrutiny,
whereas less deference means more judicial scrutiny, regarding its
actions/decisions
The more "out there" the means is, the less deference Congress will get
The Court will interpret the end via Marbury, and the deference to Congress
applies to the means
(3)The means Congress chooses cannot be prohibited in the Constitution itself
(such as creating a church)
(4)What Congress does cannot be a pretext, that is, it can't be using the means
as an end to itself (this has NEVER happened yet)
o i.e. Congress "has the power" to provide for phys. ed. in a classroom (enumerated
power)
o Means? Halfway through class, the class must stand up and dance around
Useful and convenient? Yes. prohibited? No.
o Pretext would be Congress is doing it not to augment physical wellbeing, but to
see people dance around for lewd purposes...doing something for the sake of
the means themselves
o McCulloch established two important principles in constitutional law.
First, the Constitution grants to Congress implied powers for implementing the
Constitution's express powers, in order to create a functional national
government.
Congress may enact laws that are necessary and proper to carry out their
enumerated powers.
Second, state action may not impede valid constitutional exercises of power by the
Federal government.
The United States Constitution (Constitution) is the supreme law of the land and
state laws cannot interfere with federal laws enacted within the scope of the
Constitution
Additionally, this means that states can be disabled from certain actions by
the structure of the Constitution; it is implied
o Congress can create and preserve the bank; therefore, the state may not tax this
federal instrumentality and "destroy" it
See United States v. Comstock
o Congress' ability to enact laws with a broad scope of authority (Adam Welsh Act)
o The Supreme Court pointed to five considerations that compelled its holding.
(1) The Necessary and Proper Clause grants broad authority; McCulloch's holding
supports this (and the analysis used in it)!
(2) The Court recognized that Congress has long delivered mental health care to
federal prisoners; "a modest addition to what it's done in the past"
 (3) Congress had good reason to pass the statute as it has the power to protect
nearby communities from the danger prisoners may pose; "its reasonably adapted
to dealing with the problem"
(4) The Tenth Amendment does not reserve a zone of authority to the states in this
context; "it properly accounts for state interests"
(5) The Court recognized that the statute was narrow in scope and did not confer
on Congress a general police power, which is reserved to the states; "the means are
not too attenuated from the ends"
o What does all of this mean? We don't....really know. But the point is, its still a
BROAD interpretation of McCulloch (1), and still uses McCuclloch (2), and
also:
History matters...somehow (3)
The more you can say the states interests have been taken into account
(federalism dynamic), the better. (4)

Commerce Clause
Congress was given the power to regulate commerce so that national commercial
interests might prevail over what the Federalists called local protectionist
"factions"
o Over time, Congress' abilities to tap into that power have changed concurrently
with the Court's views
Framing-Civil War: Congress barely did anything related to the CC; Ogden is the
biggest event
Civil War-New Deal: Congress was very restricted by the Court in its use of the
CC
New Deal-1995: Congress was barely restricted at all by the Court
1995-Present: Zigzagging like crazy! Restricted, unrestricted...it's anybody's
game, really!

Framing-Civil War
See Gibbons v. Ogden (1824)
o The laws of New York granting to Robert R. Livingston and Robert Fulton the
exclusive right of navigating state waters with steamboats are in collision with the
acts of Congress.
The acts of Congress under the Constitution regulating the coasting trade are
supreme.
State laws must yield to that supremacy, even though enacted in pursuance of
powers acknowledged to remain in the States.
A license, such as that granted to Gibbons, pursuant to acts of Congress for
 regulating the coasting trade under the Commerce Clause of Article I confers a
permission to carry on that trade.
o A state may not pass legislation inconsistent with federal law which regulates a
purely internal affair regarding trade or the police power, or is pursuant to a power
to regulate interstate commerce concurrent with that of Congress
States do not have the power to regulate those phases of interstate commerce
which, because of the need of national uniformity, demand that their regulation, be
prescribed by a single authority.
A state does not have the power to grant an exclusive right to the use of state
navigable waters inconsistent with federal law.
o The power to regulate Commerce is:
The power to regulate; that is, to prescribe the rule by which commerce is to be
governed.
This power, like all others vested in Congress, is complete in itself, may be
exercised to its utmost extent, and acknowledges no limitations, other than are
prescribed in the Constitution.
In interpreting the power of Congress as to commerce among the several states:
"(Dormant Commerce Clause)"
The word among means intermingled with.
o A thing which is among others, is intermingled with them.
Commerce among the States, cannot stop at the external boundary line of each
State, but may be introduced into the interior
o Comprehensive as the word among is, it may very properly be restricted to that
commerce which concerns more States than one.
Sometimes, whether or not Congress acts, the states may or may not be
affected/restricted
(Just because Congress can regulate commerce does not mean a state cannot, so
long as it does not unduly burden commerce)
o Marshall thought otherwise in this case, but was proven wrong later on
o Defining how far the power of Congress extends:
The power of Congress, then, comprehends navigation, within the limits of every
State in the Union; so far as that navigation may be, in any manner, connected with
commerce with foreign nations, or among the several States.
Because Congress regulated navigation, New York could not.
This was the first major case to analyze the powers of Congress under the
Commerce Clause.
o In so doing, the Court interpreted the powers to be very broad, reaching any
activity that affected commerce between or among states.

Civil War-New Deal

 Very Restricted View of Congress' Control over Commerce/Commerce Clause
Commerce Prohibiting Technique
o Statute used to prohibit altogether certain types of interstate commerce, like
Bolivian lottery tickets back in the day
Protective Principle
o Congress has the ability to regulate something that is ENTIRELY intrastate (within
one state alone) IF it protects interstate commerce
During this period, the Court held that mining, agriculture, and
production/manufacturing were not commerce
o All of those things bring articles of commerce into existence, and Congress' power
begins AFTER all of those things are produced
o (This view shifted post 1937)

The Court also decided that there was a distinction between direct and
indirect regulation
o The Court said that Congress may only regulate directly; indirectly is no good
Why these views?
o Laissez Faire Mentality
During this era, Lochner Court held that the Due Process Clause (Substantive)
prohibited State regulation of the right to contract (broadly speaking; see case)

New Deal (1937)-1995

An extraordinarily restricted view shifted into a VERY broad one, lasting until
1995!
o The Court did not invalidate ANY law by Congress under the Commerce Clause;
the Court was highly deferential to Congress
See Wickard v. Filburn
o Filburn's wheat growing activities reduced the amount of wheat he would buy for
chicken feed on the open market/because wheat was traded nationally, Filburn's
production of more wheat than he was allotted was affecting interstate commerce.
Thus, Filburn's production could be regulated by the federal government.
o Congress can regulate the production of wheat intended for personal use and not
placed in interstate commerce.
o Congress can regulate trivial local, intrastate activities that have an aggregate effect
on interstate commerce via the commerce power, even if the effect is indirect.
That is, Congress may regulate the activities of entities totally apart from interstate
commerce, if those activities affect interstate commerce.
o This case was a choice by the Court...this was a political question...prior to 1937,
the Court had preferred a free market and less regulation; THIS CASE CHANGED
THAT.
 See Heart of Atlanta Motel v. United States
o Congress may regulate the ability of commercial institutions to deny service on the
basis of race under its power to regulate interstate commerce.
o In this case, it was interesting to see that the court was forcing someone to act; that
is, to allow african americans as patrons
In Wickard, the Court was moving to STOP an action

From 1995-Today
Shifts in both directions; broad scope of Congressional power under CC, but also a
narrow scope
See United States v. Lopez
o The activity being regulated must substantially affect interstate commerce.
When an activity is not directly connected to commerce, the Congressional
regulation will usually not be upheld, especially when the activity is traditionally
regulated by the states.
o TEST: There are three broad categories of activity Congress may regulate under
the commerce power.
First, the channels of interstate commerce. (defer to congress)
Roads, waterways
Second, the instrumentalities of interstate commerce/people or things in interstate
commerce (defer to congress)
The things used to accomplish it, like trucks!
-If the activity falls into one of the above categories, the Court doesn't have to
question "Commercial" aspect-
Third, activities having a substantial effect upon interstate commerce (Court
examines...see CRS/Bottom Up info below)
Interpreted along the lines the Complex Regulatory Scheme, OR the "Bottom Up
Approach"...YOU ONLY NEED A YES UNDER ONE, BUT BE SURE TO
APPLY BOTH
o This case (Lopez, and also Morrison) takes a "bottom up approach"; the
Complex Regulatory Scheme is a "top down approach" (See Raich)
Bottom Up Approach
o Lack of jurisdictional hook
The government has no hook to establish a connection to interstate commerce here;
this Act has nothing that requires anyone to do anything in respect to interstate
commerce
o Nature of the Activity
Economic (commercial) vs. NonEconomic (noncommercial)
If activity is economic, be sure to apply aggregation principle/N&P
If any activity is noneconomic, STOP; no economic, no commerce, no commerce
 clause power
Make sure to analyze the issue under both economic/noneconomic approach if the
act can go both ways, which usually, it can depending on the perspective you take
o Lack of Findings (very important, like jurisdictional hook)
Congress failed to produce evidence showing that this affected interstate commerce
If and when Congress DOES produce findings, the COURT will then ASSESS
THEM anyway (via the Chain of Reasoning)
o Chain of Reasoning
Too many inferences and distance between the act/the "affect"
o Lopez was a big deal because contrary to the prior cases on the CC, here, the
COURT is telling us what IS and ISN'T economic instead of Congress making that
call
See United States v. Morrison
o Court applied Lopez test (three broad categories test); it failed all three
o The Court further defined the aggregate effects test (see Wickard v. Filburn) by
noting that intrastate activities must be considered in the aggregate only if the
activities themselves are economic in nature.
You DO NOT GET TO USE THE AGGREGATION PRINCIPLE BEFORE YOU
KNOW IF THE ACTIVITY IS ECONOMIC
You CANNOT take noneconomic activity, make it economic, and apply the
principle
o This holding makes clear that Lopez is not a speed bump in the Supreme Courts
Commerce Clause jurisprudence, but rather a new direction altogether.
The Supreme Court is more capable of reining in congressional action as not
substantially related to interstate commerce
o This case provided the ability
See Gonzales v. Raich
o Congress may regulate intrastate activity where the behavior, in the aggregate, can
impact interstate commerce.
Used Wickard to back up reasoning; agriculture is economic, marijuana is
agriculture, therefore economic...
o Complex Regulatory Scheme (A regulatory approach that is complex and
large scale)
FIRST...is there a CRS?
Yes...in the case of drugs, there are "schedules" classifying them
Schedule I drugs are those that Congress has decided have no medical uses,
including marijuana
SECOND...does the CRS regulate an economic market or enterprise?
If it doesn't, then Congress cannot use the CRS approach to justify what its doing
o Here, the Court TELLS US what ECONOMIC is...the production, distribution, and
 consumption of commodities...very broad definition of a term meant to be limiting
YES, the Court found that the CRS does regulate an economic market/enterprise
here
THIRD, how badly would preventing Congress from doing what it did hurt the
CRS
In this case, the Court concluded that Congress shouldn't be hindered in its control
here because it would destroy the CRS
Therefore, preventing Congress from acting here would badly hurt the CRS, and to
enough of an extent to justify what Congress did
Jenga example...if you take away this regulation (a block), would the tower "sway
badly?" If so, Congress MAY ACT...If not, Congress has NO REASON to act, and
its action isn't necessary

Spending Clause (Taxing Power)

See NFIB case as example
o Basically, if its a tax, Congress can do it (except its a little more complicated then
that, but yeah).
Conditional Spending (Only applies when there is government spending, and
ESPECIALLY when there's a condition on the spending)
o Federal government does this a lot with states; citizens, not so much.
You can have this money, but in exchange, you'll have to ____
See South Dakota v. Dole
o A withholding of a small amount of funds is not a coercive measure and a proper
exercise of taxing and spending power.
Congress may put strings on funds disbursed to States, so long as the conditions
are explicitly stated.
o Test Used
General Welfare/Common Defense?
If there is no condition and spending is just for this category, Congress can do as it
pleases.
o If there's a condition, the rest of the test is employed
"Super" Clear Statement Rule
Congress has to be REALLY clear about the condition, what it is, and that by
taking the money, the state must comply with that condition
This condition acts toward constraining Congress' power in that if the condition is
not clear enough to the states
Relatedness Requirement
The condition must be sufficiently related to activity that funds would be
withheld from if condition not met
This is very broad and liberally construed, unlike the chain of reasoning in the
 commerce clause (aren't they super similar? think about that)
Not violate another Constitutional right
It can't take something away via the condition that is Constitutionally given
Not Coercive
Conditional spending as in a choice, as opposed to coercion where do you
*don't* have a choice
o There must be a choice
Threshold for this is pretty strong, and even Healthcare (ACA) passed!
o See NFIB v. Sebelius

Separation of Powers
The relationship between the political branches of the federal government is often
referred to as the separation of powers and/or checks and balances
o The former suggest noninvolvement of branches that do not possess a specified
power
o The latter signifies division and dispersion of a as well as the separation specified
power between the branches
Purpose
o The purpose is generally identified by courts as two-part
Prevention of tyranny
Most authorities stress this factor more heavily
Federalist Paper No. 47 stressed the accumulation of all governmental powers
would bring tyranny
o Separation of power facilitates the rule of law since different entities make,
administer, and interpret the law
o Back then, there was fear of legislative power being too strong
Today, the fear lies with the executive power
o Occasionally, fear lies with the judicial power being too powerful
Checks and balances in the Constitution are also viewed as tools for limiting the
size and power of the federal government, since a broad consensus is required to
change the status quo
Efficiency of administration
The three-part federal structure was originally seen as a move toward efficiency
The framers sought to establish a strong executive to conduct foreign/military
affairs more effectively at the federal level
o Ironically, a modern complaint is that the separation of powers creates inefficiency
in governing
Fear of
Poaching
o Stealing powers or capabilities of another branch and exercising it
 Interference
o Interfering with the operation of another branch
Overreaching
o One branch aggrandizing itself at the expense of another, be it through poaching,
interference, poaching, or by taking an action that does neither, but still makes the
single branch too powerful
Two Approaches
o Formalism
Demands adherence by each branch to the powers granted to that branch
Congress can make laws only if it follows specified procedures
o It may not enforce the laws it makes
Conversely, the President enforces laws but may not make them
A formalist takes separation of powers as a command of the Constitution's text
and structure
o Functionalism
Commands fidelity to the purposes of the distribution of powers
To functionalists, the Constitution's distribution of powers is violated only if one
branch of the federal government aggrandizes its power at the expense of
another
A functionalist views the separation as a component of fulfilling the
Constitution's goals
o There are problems with both approachs
Formalism lacks clarity or definition in the distinction between making,
executing, and adjudicating
Functionalism carries a lack of understanding as to precisely how separation of
powers facilitates the aforesaid goals
o Both approaches share concern over separation functions and avoiding power
imbalances within the branches of federal government
A Fourth Branch?
o Agencies like the FTC, FAA, EEOC, NLRB, and EPA combine the powers of all
three branches and are subject to varying levels of control by the branches
A formalist would conclude them to be unconstitutional while a functionalist
would argue they are creative tools for delivering federal goods, services, and
regulations that aren't in the Constitution
Delegation of Power Between Branches
o Generally, one branch may not delegation its power to another
Buuuuuut there are exceptions to this, and it varies from situation to situation
o See note sections on each branch of government for examples

Article I: The Legislature

 Make laws, and serves as a "check" on the President's abilities
o By way of the Constitution, Congress has the power to declare war, but the
President (Article II) holds the title of Commander in Chief

Article II: Executive Branch

The President of the United States
o He cannot make law, but he may veto law

Article III: The Judiciary

Madison's Compromise, embodied in Article III, I
o The Judicial power of the US shall be vested in one Supreme Court, and in such
inferior courts, that Congress may from time to time ordain or establish
There is no Constitutional requirement that the lower federal courts exist; only the
Supreme Court
What is the Judicial Power of the US?
o The Constitution doesn't tell us. Article I says "all legislative power herein granted
is vested in Congress," but nothing about the judicial power
o What about the Supreme Court?
The Constitution tells us almost nothing.
There are 9 justices. We know there must be a Chief Justice (according to the
Constitution), but it is silent on the other stuff.
The first Supreme Court had 6 (why even? dumb)
10 after the Civil War
Set at 9 in the late 1800s
The word "supreme" in the Constitution is not capitalized; the supreme is an
adjective, describing the nature of the body
It is supreme, as in it is the top dog of the US' judicial power. We know its
important, but not quite what it does because the judicial power of the US is not
clearly defined!
o It's not executive; it's not legislative...so what is it?
Judiciary Act of 1789
The Act is a compromise between those who wanted federal courts to exercise the
full jurisdiction allowed under the Constitution and those who opposed lower
federal courts or proposed restricting them to admiralty jurisdiction.
o The act acknowledged the legitimacy of the state courts and protected individual
rights at the same time that it assured the supremacy of the federal judiciary
o Extending the jurisdiction of the circuit courts to cases in which the parties were
residents of different states greatly enhanced the importance of the federal courts
Section 25 (Martin v. Hunter's)
o Gives the Supreme Court jurisdiction over decisions made by a state's highest
 courts when there is a Constitutional issue
o State courts may decide on Constitutional issues; this section is not saying that
they cannot
State courts can interpret federal law
The Supreme Court, however, has appellate jurisdiction to review such
decisions because they involve federal law/the Constitution
o It grants the Supreme Court jurisdiction to hear appeals of decisions from the
high courts of the states when those decisions involved questions of the
constitutionality of state or federal laws or authorities
A common use of this is when state and federal courts reach different decisions
about a legal issue, the Supreme Court is highly likely to step and settle things
This capability promotes
o National issues being decided by a "national" body
o Uniformity in decision of Federal Law
The Supreme Court is final; it applies nationally
o Suspicion of state decisions
States can be biased
The belief that federal judges are more capable than state judges to interpret federal
issues
o Supremacy of federal law
The value of having Federal law being the last resort; the Supreme Court is final
Congress
Until the New Deal Era, it was generally assumed that Congress could not
delegate lawmaking functions or its authority, other than by establishing an
"intelligible principle" by which others administering the law would thereafter by
guided
o The last time the legislature's delegation of authority was invalidated by the
Supreme Court was in Schechter Poultry Corp. v. United States
Since then, the Court has approved statutes commanding agencies to "act in the
public interest to outlaw the unreasonable risks"
The Non-Delegation doctrine has not been revived
o The doctrine provided that Congress could not delegate its legislative authority
"Mr. President, go on ahead and make a law to do _____."
o The last time this principle was used was the mid1930s
Today, so long as Congress passses a statute that has an intelligible principle in it
through which an agency may craft rules, its ok
Example:
o EPA
o If the Court were to revive the doctrine, Congress would either have to leave more
private activity unregulated, or work much harder to specify precise standards to
 cover one broad standard
Tons and tons of extremely detailed legislation would have to be passed
Today's world is too complicated for this to work

Bicameralism and Presentment Clause (Formal Restriction on Congress'

Power)
o I.e. how a bill becomes a law
The Court is always formalist when handling this sort of scenario
Absolutely rigid application of the process
o Bicameralism
Divides the Legislative Branch into the House and Senate, forcing them to agree
before anything becomes law although both have power to make law on their
own...it will not pass if they don't agree
o Presentment
The President must then get to see the law and decide on it, or he may veto it, and
2/3 of both the House and Senate must override the veto lest the law get tossed
The President can't veto "parts" of a bill; he either approves in its entirety, or vetoes
in its entirety
o See Clinton v. City of NY
A bill must be vetoed in its entirety; not picked apart
Allowing the above to occur would be allowing the President to take power away
from Congress
The only exception to this is a declaration of war; Congress may do so on its
own
The House and Senate
o Both must comply with the requirements of Article I regarding bicameralism and
presentment; if Congress' actions are legislative in nature, then they must abide
by said Article I requirements
o Except in specifically prescribed duties that the Constitution explicitly
provides, one House may not act without the other
See pg. 165 in casebook for list
One house of Congress may not take action that have the purpose or effect of
altering the legal rights, duties and regulations of persons, outside of the
legislative branch without the other's input
This is the purpose of Bicameralism
o The Legislative Branch is divided into two chambers (House and Senate), each of
which has power, and they cannot act in a way they bind us unless they act
together and agree, passing the exact same thing
Exceptions to this are the specifically enumerated powers that the House or
Senate, respectively, are given by the Constitution
 Sep. of Power & Congress
Congress may delegate authority, but not give itself the veto power
o It must abide by its decision until that delegation is legislatively altered or
revoked
o See INS v. Chadha
Congress may not promulgate a statute granting to itself a legislative veto over
actions of the executive branch inconsistent with the bicameralism and
presentment clause of the Constitution
When the Constitution provides express procedures, such procedures must be
strictly observed.
Two such provisions are bicameralism and presentment in the enactment of law.
The presentment process, esp. the President's veto power, was intended by the
Framers to provide a mechanism by which the executive branch could defend itself
against legislative encroachment/prevent illconceived policies
Similarly, the bicameralism requirement was formulated in order to hinder
congressional action and thereby prevent legislative encroachment.
o The action of the House of Representatives is legislative in nature because
(a) it modifies rights and duties of individuals outside the legislative branch;
(b) the enactment would otherwise have required a private law, which is a
legislative function; and
(c) the nature of the action is inherently legislative.
When the Framers intended to authorize Congress to exercise power outside of the
bicameral and presentment principles, it provided alternate procedures explicitly;
other procedures cannot be admitted.
Because the action of the House of Representatives was legislative, but did not
conform to the mode of action specifically stated by the Constitution for
legislative action; it is therefore invalid, unenforceable, and not binding.
o i.e. the House acted without the Senate
Congress may not legislatively create a law within the Executive branch, pass
it off to be executed, but then retain direct control over the law
o See Bowsher v. Synar
No Execution of Laws Controllable by Congress
o See Bowsher v. Synar
Congress cannot pass a law that allows it (Congress) to retain direct control over
its execution, thus allowing it step into other branches' authorities
In this matter, Congress retained direct control over a position whose duty, among
many, was to direct the President on what to do and how to do it
This is an unconstitutional delegation of power to both that position, and Congress
itself, overstepping the boundary into the executive branch
o Congress may only indirectly control/change/impact the execution of law by
passing new legislation
Congress cannot pass a law permitting Congress itself to control the law's
execution
It is unconstitutional and violates the separation of powers
Congress passing a limitation on removal of executive official; ok
o See Morrison v. Olson
It was determined that an Act which allowed Congress to appoint someone in the
executive branch was constitutional
Even though the President could not directly fire the appointed person, said person
was still an Executive Branch Officer, not under the control of either Congress
or the Courts
o The person could be removed only by impeachment or by personal action of the
Attorney General for good cause
o Because this fell within the Executive Branch's scope of authority/figures, the
Act's provision was deemed Constitutional
The President's authority to perform his Constitutionally given duties was not
impeded
This is the functioning test for removal limits
Congress passing a limitation on removal of executive official; not ok
o See Free Enterprise Fund v. PCAOB
The Appointment Clause of the Constitution creates two groups; Principal
and Inferior
Principal officers are appointed by the President, and confirmed by the Senate
Inferior officers can be appointed by ways Congress figures out
The Supreme Court held that the appointments of "inferior" officers under the Act
in question was okay and not unconstitutional
However, regarding the removal of the head official in this matter, the Court also
held that the "forcause" limitation on the removal of Board members is
unconstitutional because it contravenes the Constitution's separation of powers.
With Chief Justice John G. Roberts, Jr., writing for the majority, the Court
reasoned because the Act protects Board members from removal except for good
cause, but withdraws from the President any decision on whether good
cause exists, the Act deprives the President the power to hold
Board members accountable.
o In Morrison, the situation was forbidding the President from firing Independent
Council members, but allowing the Attorney General to, when the President could
fire the Attorney General
So he couldn't fire people below the guy below him, but the guy below him could,
and the President could control the AG
 One layer of protection to firing did not hinder the president from doing his job
o In this matter, the President was liited in his authority to remove the SEC, and the
SEC was limited in its authority to remove the PCAOB
Such an arrangement contradicts Article II's vesting of the executive power in the
president, as he has to go over "two hurdles" just to get rid of unfavorables as
opposed to the different situation in Morrison
Double layer of protection to firing did hinder the president from doing his
job.
The President could not take Care that the Laws be faithfully executed within
meaning of Article II if he could not oversee faithfulness of officers who executed
them.
The point of the above three cases, which are functional outcomes:
o When Congress can and can't retain or restrict control of executive powers. Three
distinct cases; three distinct outcomes. Carefully distinguish them, and carefully
apply them.

Anti-Commandeering Doctrine
Federalism is the separation of powers between the states and federal government
If Congress exercises its power under the Commerce Clause with respect to a
state instead of the country, can that power be limited? YES
o EXAMPLE
We know that Congress can enact federally enforceable minimum wage laws
throughout the country
But, what if Congress passed a law that said "if you work for a state, you must be
paid the minimum wage"
This isn't a commerce clause question; this is a question of whether or not
Congress may do this, as it is acting in respect to a state
This is where federalism comes in; we have a situation here where a sovereign
power is directly infringing on a sovereign power...government onto state,
specifically
"AntiCommandeering Doctrine" (ONLY Applies when Congress trying to do
something under Commerce Clause)
o Congress cannot order a state legislature to take action, even if Congress could
pass that law itself...that is, Congress cannot make the state it's "puppet"
Mid-1930s until 1976
o There were no federalism limits in re the Commerce Clause
All that mattered is that the Commerce Power allowed Congress to do what it
wanted to do
1976 until 1985
o National League of Cities
 The case imposed a Substantive Immunity
Congress had passed a statute that extended the minimum wage to city and state
employees
Cities and States sued, claiming that this was unconstitutional
o The Court found a problem here because of federalism, and used a test to explain
(unimportant, as it changes again in the near future)
Basically, the Court ruled that Congress was regulating states' activities that were
matters of state sovereignty...Congress had no power to do this
Additionally, there is no sufficiently important federal interest to override this
state activity being regulated
It granted the states immunity from regulation of this sort; regulation that
regulates a state as a state in regard to state activity
o The PROBLEM that arose from this down the line was.....what is a traditional
state function? Where do we draw that line? It was very difficult/near
impossible
1985 until TODAY
o Garcia v. San Antonio
The Court essentially took itself out of the business of substantive immunity
That is, "if Congress has the power to regulate under teh CC, the mere fact that it is
recognizing it in respect to a power that a state typically has as a state function, it
does not matter"
If it has the Commerce Clause, it has the power
o EXCEPT when a State is politically isolated (which cannot exist, and has
never been explained)
Note that it was a pretty big deal that the Court overruled itself, let alone did so
within 10 years
o BUT
This did not send us back to "No Federalism"
o This created an era of Procedural Immunity (NOT Substantive)
Substantive is simply not having the power to do something
However, procedurally, things are a little different
In the Substantive Immunity Era, Congress could not use the Commerce Power
to do certain things
In the modern era (Procedural), the Court held that there are times Congress
uses the power in an inappropriate way
o So, HOW they're doing things is the problem...they have the power, but they
are not using it properly procedurally speaking
Substantive Constraint: You cannot do this
Procedural Constraint: You cannot do this...this way
This allows reconstruction of the intended action to accomplish it properly
o NY v. U.S. (Congress can't commandeer a Legislative body to carry out a federal
function)
States were trying to deal with nuclear waste, and were concerned with disposing
of it properly
The solution states came up with was, "you, states, will take title, and then, have
financial respnsibility for it UNLESS you create a federally approved site."
o The Court struck down that portion of the Statute
o It did not say that Congress wouldn't have the power to do this (create garbage sites
for nuke waste in all states)
The Court said the problem is, the procedure put into place to carry out its
intended goal was the problem
The Court said that Congress was commandeering the states to pass a
law...Congress commanded states pass a law to do this...Congress cannot take
over a state legislature to pass a law that it could pass itself
o U.S. v. Printz (Congress can't commandeer Executive body to carry out a federal
function)
Congress tried to force local enforcement to do background checks instead of
just giving them money to do it
Commandeering problem; can't do it THIS WAY
o CONGRESS CAN TELL STATES THAT THEY CANNOT DO SOMETHING

War Power
The Constitution has numerous provisions within it on the subject of making and
waging war; it does not explicitly adopt a different governing framework for war
or other national emergencies
o Consequently, it's questionable whether, when, and how national security should
affect separation of power issues, as well as the content of civil liberties from free
speech restrictions/jury trial availability/equal protection guarantees
The Framers divided responsibility for making war between the branches in order
to deter the nation from lurching into war unwisely
o Congress has the powers to:
Declare war
Purse in war and in peace
Make rules governing the army and navy
Protect states from invasion/may respond to state calls for assistance in dealing
with domestic violence/may call forth militia to "execute the Laws of the Union,
suppress Insurrections, and repel Invasions"
o The President is Commander in Chief,
However, his authority in that regard is not explicit
Even if the president has power to do something, there is always a question of
 whether or not and to what extent individual rights protections come into play
o This can also happen when both the President and Congress act together
Congress has the power to appropriate money for things, including the military
o Its specifically mentioned in the Constitution; this reflects the Framers' fear of a
standing military
Congress has to refund the military every 2 years
Congress gets to define the law of nations (international law), and declare war
o The President
Commander in Chief
Prosecute military action
Head of the military apparatus
o Together, the two branches work together
Treaties are formulated together; the Senate has to ratify the treaty (the President
signs them), although most of them don't have domestic effect if Congress doesn't
act to implement them as so
See Boumediene v. Bush
In both Boumediene and Ex Parte Quirin, Congress and the Executive branches
worked together in an attempt to sort of exclude the Judiciary
The War Powers Resolution
o It is the Congressional prerogative to declare war under Article , Section: 8,
Clause 11.
However, the President has the ability to take action when attacked, be the
aggressor of foreign or domestic origin
See The Prize Cases
o The President's power to deploy armed forces, according to this resolution, can
only happen in three cases
Congress declares war
Congress authorizes it
The United States has been attacked
o IF the President enters into hostilities without Congressional authorization and acts
on his or her own to engage in warlike activities, under the statute, the President is
required to notify both houses of Congress of this action within 48 hrs
At this point, if Congress doesn't affirmatively authorize the action (via a
concurrent resolution between the two Houses) within 60/90 days (depends on
situation), he must bring the troops home
o Basically...the President can act unconstitutionally for 6090 days?....right?
o Additionally, there's no presentment here when Congress passes a concurrent
resolution to stop the President's actions; it is simply binding (isn't this VERY
unconstitutional?)
Distinguish from Chadha case, where there was issue over only 1 house of
 Congress acting
An additional problem with this resolution is who would challenge it? Rather, who
could challenge it?
Who would have standing to do this? (Also, this may be a political question)
o Member of Congress?
Nope. They're not injured by this act. If anyone is, it's the President...
o The President?
Maybe, or maybe not has standing.
But he's not going to go to the Courts about this
No President has ever recognized the Constitutionality of the War Powers
provision; they all say they're doing things on their own accord, not pursuant to the
Resolution
o A soldier?
The best option here, but the challenge would have to be after the 60/90 period,
which would then violate the resolution
However, by that point, the conflict has ended because the President has either
gotten Congress to support him, Congress has gotten pissed and said TROOPS
HOME NOW, or the conflict has simply ended
"The Law of War"
o In war, if you are an "enemy combatant," that is a "good thing"
It's a designation that allows you to do something in a time of conflict that if you
did and you weren't an enemy combatant, would be a bad thing and get you into
trouble
You can't shoot people in a noncombat situation from day to day
You can't, however, commit genocide and rape
o What if you're an "unlawful enemy combatant?"
You're guilty of the crimes you commit, i.e. you shoot someone, it's murder
You can be tried differently and much less formally
o There are factors/traits involved for one to be classified as the above, and how
you're deemed to be either
How you conduct yourself, what you carry, what you do, how openly you do it, etc
The Law of War and the Courts
o See Ex Parte Quirin
During times of War, the constitution explicitly states the President may wage
war and carry into effect all laws concerning; the conduct of the war, regulation of
Armed forces, and all laws defining and punishing offences against the laws of
nations.
Absent clear conviction that a presidential order violates the constitution, the
court will not set those orders aside.
Laws of nations or the law of war determine the rights and status of enemies of the
 country, or enemy belligerents.
The President ordered all enemies be tried in front of the military tribunal tribunal
and would not be allowed access to civil courts, thus relieving them of the right to
habeas corpus.
o The court also stated that as long as those crimes are indeed crimes of war, they
can be tried in front of this tribunal, and this order is constitutional.
If the crime is not a crime of war, then it should be tried in front of a jury.
While the citizens of the United States are owed their 5th and 6th amendment
rights, it is not clear that these rights should extend to noncitizens and enemies of
war.
The court will not afford those rights to enemies of war that violate laws of war.
The court makes distinctions between prisoners of war and enemy belligerent.
Depending on the distinction of the criminal can affect his/her rights; however,
here it is clear the prisoners are enemy belligerents who clearly violated laws of
war.
In distinction to Ex Parte, see Boumediene v. Bush
Aliens detained as enemy combatants on that territory (Guantanamo, i.e. "U.S.")
were entitled to the writ of habeas corpus protected in Article I, Section 9 of the
U.S. Constitution
o The Supreme Court held that fundamental rights afforded by the Constitution
extend to the Guantanamo detainees as well

Treaty Power
The Constitution gives the government the power to enter into treaties, and takes
that same power away from state governments
o This power is exclusively federal
A treaty is negotiated by the President, but in order for the US to be bound by it,
the Senate must ratify it with a 2/3 vote
o Once the Senate does that, the treaty is enforced throughout the country as binding
o We already know that treaties are not generally self executing, and Congress as a
whole must act; bicameralism/presentment
Additionally, we often need legislation passed to implement the treaty
Meddelin
o Remember, Congress needs an enumerated power to act in passing legislation
What if Congress was trying to pass a Treaty that was not under an
enumerated power in its content?
o We find ourselves at the Necessary and Proper Clause
(1)There must be a legitimate end that Congress is attempting to implement
(2)The means that Congress chose must be "useful" or "convenient" to
implementing the ends
 (3)The means Congress chooses cannot be prohibited in the Constitution itself
(such as creating a church)
(4)What Congress does cannot be a pretext, that is, it can't be using the means as
an end to itself (this has NEVER happened yet)

Doctrine of Severability
We cannot always figure out Congress' intent
A severability clause is usually placed in laws that Congress writes, stating that "if
a portion of this statute is struck down, we intend that the rest become law"
o That is, if a portion of a law is found unconstitutional, can the Court simply strike
it down and pass the rest
o This is where the SC comes into play...it tells the Court yes, you can do that
Otherwise, the Court won't know what to do/the intent of Congress will be unclear
The President
The President does not have absolute power.
o The Framers were terrified of that idea, hence the separation of powers
o Much of the President's powers are delegated by the Constitution
The President is the figurehead of the Executive Branch, although power is often
delegated to the members of his Cabinet and other officials
See Youngstown case for a look at limitations placed on the Executive Branch's
powers and its relationship with Congres
The power to veto a bill
o See Clinton v. City of NY
The Line Item Veto Act allowed the President to veto parts of a bill after it had
been enacted into law
The Act, for reason of that ability, was found unconstitutional and in violation of
the Presentment Clause
A bill must be vetoed in its entirety; not picked apart
Allowing such to occur would allow the President to "tweak" laws into different
pieces of legislation entirely, rather than what was initially approved and passed by
Congress
The argument is that the President would be taking power from Congress
Foreign Affairs
o The Executive Branch essentially has exclusive power in the conduct of foreign
affairs, although foreign affairs power is also vested in the national government as
a whole
See United States v. CurtissWright
The nondelegation doctrine does not bar Congress from delegating great
authority and discretion to the President of the United States (the President) in
the conduct of foreign affairs.
o Moreover, the President is the US' sole representative for foreign affairs, and he
has broad authority with which to conduct them as is
While the Constitution does not explicitly say that all ability to conduct foreign
policy is vested in the President, it is given implicitly and by the fact that the
executive, by its very nature, is empowered to conduct foreign affairs in a way that
Congress cannot and should not.
o The President has an array of political and diplomatic means available to enforce
international obligations, but unilaterally converting a nonselfexecuting treaty into
a selfexecuting one is not among them
See Meddelin v. Texas
A treaty is not binding domestic law, it said, unless Congress has enacted statutes
implementing it or the treaty itself conveys an intention that it is "selfexecuting.
The spectrum from Youngstown was implemented here
Under it, the decision was reached as such
o Unless a Treaty is selfexecuting, the President cannot enforce it as national law
o Unless a Treaty is explicitly and legislatively implemented/executed statutorily
by Congress, the President cannot enforce it as national law
o In Meddelin, the President fell into the #3 end of the spectrum; he was at his
weakest
Executive Orders/Power Limits
o The President cannot "do whatever he wants"
o However, there are instances where he has authorization to issue executive orders
to accomplish certain goals
This power is not absolute, and it is not limitless
He must often, but not always, be authorized by the Constitution or by Congress
See Youngstown
See *Dames & Moore
o Legislation cannot infringe upon the President's Constitutionally granted Article II
Executive Powers, or usurp them
See Free Enterprise Fund v. PCAOB
The Powers of the President/Test for Presidential Authority
o See Youngstown Steel
Justice Jackson's opinion took a somewhat flexible approach to the issue,
eschewing any fixed boundaries between Congress' and the President's power.
He divided Presidential authority vis a vis Congress into three categories, ranked in
descending order of legitimacy:
(1) Those cases in which the President was acting with express or implied authority
from Congress...Apex powers: those given by Congress both express and
implied/those inherent from Constitution (Most Powerful)
(2) Cases in which Congress had thus far been silent or there is concurrent
 authority
(3) Cases in which the President was defying congressional orders; here, the
President's power is at its weakest (No statute? No power.)
o He classified this case as falling within the third category.
The area between 1 and 2 is the "Zone of Twilight," that is, the power isn't so
much an on/off switch, but more of a "dimmer"
The President's powers sort of depend; it is impossible to formulate an abstract
test because things that go on vary all the time; this is a functionalist view
o If Congress hasn't said yes or no, then the President's acting on his own is going to
"depend" (Black said it doesn't matter what Congress didn't do or say; the law is
rigid and written)
In order to apply the spectrum above, you would first look to see if there was a
statute/collection of statutes, that gave the president the authority to do what
he did or wanted to do
If there was no statute, you'd be in the Zone of Twilight and have to apply the
particular situation

The Supreme Court

Invalidation of Federal Laws
In Marbury v. Madison, the issue was as follows
o CJ Marshall had signed the commissions of Marbury and other justices whod been
given positions as justices of the peace by President John Adams, a Federalist, just
before Jefferson, a Republican, took office. These midnight judges were not well
received by Jefferson, who refused to deliver the commissions and claimed they
were void.
o Jeffersons Republican Congress repealed midnight legislation enacted by
Federalists, but left the justices appointments intact
Congress also abolished the 1801/1802 terms of the Court to avoid having it
consider the constitutionality of its legislation
o Marbury addressed the constitutionality of Jeffersons refusal to deliver Marburys
commission at the next term of court in 1803 (Supreme Court was 'canceled' for
the previous 2 years because of this case
See Marbury v. Madison
Generalized Lesson: When a federal law and the Constitution conflict, the
Constitution is superior authority; it must win
o This is the checks and balances system in action, also. The legislature cannot
simply "go around" the Constitution by passing a law in violation of it
The Legislature must pass laws in line with the Constitution
o Moreover, if a federal law and state law conflict, the state law is void and the
federal law supersedes it
 State law can supplement federal law, however
Conflict Concerning Constitutional Interpretation
o What happens when the judiciary and other branches disagree over constitutional
issues?
o Must other branches of government follow the Courts decisions, or do they only
bind the parties and litigants who follow?
The Courts View of its Power
o Its pretty freaking absolute when it comes to Constitutional decisions.
o Congress cannot legislatively supersede the Courts decisions in re application of
the Constitution, but in practice, that is exactly what appears to take place.

Invalidation of State Laws

The appellate power of the United States does extend to cases pending in state
courts.
The framers obviously contemplated that cases within the Supreme Courts
appellate jurisdiction would arise in state courts.
o Article VI of the Constitution says that [the] Constitution and the laws of the
United States . . . made in [p]ursuance thereof . . . shall be the supreme law of the
land; and the judges in every state shall be bound thereby. . . .
The very nature of state court judges judicial duties indicates that such judges are
to decide cases not only in accordance with state law, but also in accordance with
the Constitution.
The Supreme Court, as upholders of the Constitution, have appellate jurisdiction
over state cases that are alleged to be unconstitutional
It is a mistake to say that the Constitution was to operate only upon the people and
not upon the States
o Article 1, Section 10 of the Constitution contains a litany of prohibitions the
Constitution places upon the States.
The need for uniformity of decisions throughout the whole United States also
calls for Federal courts to have appellate jurisdiction over state court decisions.
o In sum, the Supreme Court has authority to overturn state law and decisions
that do not fall in line with the Constitution
o This is because the Constitution is the "supreme law of the land"
Recall: Similar to the supremacy of federal laws over state laws in a case of
conflict

Judicial Review
The doctrine under which legislative and executive actions are subject to review
(and possible invalidation) by the judiciary
o Judicial review is a tool to maintain the checks and balances between the
branches of the governmental system (where in the context of the U.S., the
judiciary checks the other branches of government).
There are rules and limitations to this concept
o For example
In order to have standing in federal courts, a petitioner must have injury,
causation and redressability.
Massachusetts v. EPA
o Typically the injury of greenhouse gases would be too tenuous for an individual to
claim is a direct injury.
o However this is the State that is filing suit not the individual.
The State has a quasisovereign interest.
o To have standing to sue in a federal court the petitioner must have; injury in fact,
causation, and redressability in the claim, these elements are easier to meet if you
are a State rather than an individual
o Another Example
Federal courts have jurisdiction to hear a constitutional challenge to a legislative
apportionment.
Baker v. Carr
Structural Limits
Limits clearly and expressly set in the Constitution itself
Appointment of Judges
o The appointment of judges
o The framers put into a place a very strong protection for judicial independence;
Article III's first part, which says judges serve for life
Once you are appointed, you can't be fired, and the Constitution says your salary
can't even be reduced while you're in office
o That is, you can make a predictive judgment on appointment, but you can't really
control people once they get to court
Impeachment of Judges
o Hasn't done much historically
o Never really done much good at all, actually
o The Constitution doesn't say we can't do it...we just haven't
Amendment
o This doesn't really happen much anymore.
The 27th Amendment, the last one made, was part of the original Bill of Rights
Submitted to the States in 1789, but not adopted until 1992

Substantive Limits
Justiciability
o Article 3's provision that the court's reviewing ability is limited to cases and
controversies only
o Does this really limit anything?
The Judges are doing the construing of what case/controversy means
If they determine the dispute is not a case, the court lacks power, and judicial
review is limited
But, the COURT is doing the limiting
So, the court is controlling its own power
o Someone else amends, someone else appoints, someone else impeaches
o The COURT construes whether or not it is a case/controversy
o Advisory Opinions and Standing fall under the scope/scrutiny of this concept
This is the court's exercising of its power of judicial review, to determine if it has
the power of judicial review...in the instant matter
Prohibition On Advisory Opinions
o Example
War was going on between France and England
Washington didn't know what to do if one of their ships got stopped by the
US...what were our neutralities?
He tells Jefferson to write the Supreme Court, questioning the international law
implications of stopping a combatant in our waters when we are neutral
He wants the Court to advise him on the matter
The Court writes back to Jefferson for Washington, which states the Constitution
says the Court may only hear a case or controversy
Neither are here. The Court does not answer "abstract questions." So, if you
stop a ship and are accused of wrongdoing, then the Court would weigh in
The Court rendered an advisory opinion of...no advisory opinion
The notion here is, the Court was trying to draw the line between what it means
to exercise judicial power and what is policy making
o The court preserves its ability to be a court, rather than make public policy
like a legislature
The Political Question Doctrine (doesn't come up often)
o The doctrine is grounded in the federal judiciary's desire to avoid inserting itself
into conflicts between branches of the federal government
It is based in the separation of powers and whether a case is justiciable (hearable
by the court) is determined on a case by cases basis.
o It is justified by the notion that there exist some questions best resolved through
the political process, voters approving or correcting the challenged action by
voting for or against those involved in the decision.
In regards to foreign relations, if there has been no conclusive governmental
action regarding an issue, then a court can construe a treaty and decide a case.
 Regarding the dates of the duration of hostilities, when there needs to be definable
clarification for a decision, the court may be able to decide the case.
o The factors to be considered by the court in determining whether a case
presents a political question are:
Is there a textually demonstrable constitutional commitment of the issue to a
coordinate political department (i.e. foreign affairs or executive war powers)?
That is, "this text belongs to another political department, and its their job to
handle this."
Is there a lack of judicially discoverable and manageable standards for resolving
the issue?
That is, we don't have standards to figure this out...we aren't equipped to handle
this
The impossibility of deciding the issue without an initial policy determination of a
kind clearly for nonjudicial discretion.
The doctrine is about maintaining the separation of powers; the court will decline
to act in a case when doing so would have this notion of undermining the
separation of powers
The impossibility of a courts undertaking independent resolution without
expressing lack of the respect due coordinate branches of government.
The relationship of the court with the other branches...is it overstepping its reach?
Is there an unusual need for unquestioning adherence to a political decision already
made?
Would attempting to resolve the matter create the possibility of embarrassment
from multifarious pronouncements by various departments on one question?
o When a question is enmeshed with any of the other two branches of the
government, it presents a political question and the Court will not answer it
without further clarification from the other branches.
It is not about avoiding questions of politics...its about perserving separation of
powers
Mainly, whenever the Court is involved in a possible butting of heads with
another power
However, the Court will hear on Legislative v. Executive issues...it's the Court's
job to interpret those sorts of things!
Standing
o The ability of a party to bring a lawsuit in court based upon their stake in the
outcome
o Are the people who are bringing this lawsuit the "right people?"
o If they are not, then there is no case or controversy
Three Part Test
Injury in fact
o Imminent to have occurred/particularized and not a generalized grievance (see
below)
o It must be both concrete & polarized, and actual/imminent
Injury must be "fairly traceable to the violation"
o The person you're accusing must've caused the injury at hand (think Torts, sort of)
Injury must be "redressable" by the relief sought
o The remedy you want must be able to fix it
o There is debate over this between Justices
Ginsburg says
Civil penalties are a way of deterring behavior we don't like, because nobody will
want to pay out for things twice, and therefore the violation is deterred from future
occurrence
Ultimately, this means there is more standing because anytime there's a civil
penalty, you can argue there will be a deterrent effect
You can broadly view the issue of standing under this argument
Scalia disagrees
The problem is, companies aren't people and you can't predict their behavior...they
don't think like people because they're a collection of people
Also, we have to assume these companies will make the "right" choice in their
behavior
He says you have to estabalish more to get standing, and champions a narrower
view of standing

o Quality of Standing
Ripeness
If you're "too early" even if you have standing, your claim isn't ripe
Mootness
If you're "too late," your claim falls moot
Cases can become moot
o That is, when the plaintiff removes themself from being subject to suit
i.e. suing over something affecting you at your job as a federal employee, but then
voluntary quitting that job and going elsewhere
o They will almost never become moot when the defendant says oh sorry, I won't
do it again
Point is, you need to make sure you address the problem at the best possible time
to do it
This idea ties in with the "imminent" aspect of the injury in fact
Generalized Grievance
o Something that affects everyone in the same way
Nobody would have standing for something like that; there is no particularized
 injury
The injury must be particularized in order for there to be standing
In such situations, sometimes, certain entitites can create a scenario in which they
can have standing
Organizational Standing
o In order for an organization to have standing, a member must have standing
o The purpose of the organization is germain to the litigation
o Don't need the individual to litigate the suit
For examples of standing in action, see:
o Friends of the Earth v. Laidlaw Environmental Services, INC.
o Massachusetts v. EPA

Sources and Methods

Marbury, Martin, and other cases confirm the judiciary's power to void federal
statutes and state laws and unconstitutional

Review by the Supreme Court

Rule 10 of the Supreme Court stipulates that "review on a writ of certiorari is not a
matter of right, but of judicial discretion"
o 4/9 justices must agree for the Court to hear a case (grant the writ)
The reasons for granting review are
o To resolve conflicting rulings (among different courts that heard the case)
o To decide questions of substantial public importance

Interpretation Methods
Originalists (Textualists); Originalism
o See themselves as "agents" of the founders
o Interpret by looking at the text and intent of the Framers
o Scalia argues for this, stating that elections ensure "currentness" of laws, and that
the Constitution should be looked at by its text and the original intent
Doing otherwise goes against the purpose of the Constitution; that is, the law
should remain steadfast and not be reflective of changes
We want to know what they meant when they wrote it; if we don't, people will
reinterpret things too subjectively and personally
o Sub-method: Original Understanding
Look at the intent of the public back then, as well as the ratifiers
This is very different from originalism
Its not so much about what their intent was, but the reasons behind it
Eight Reasons to be an Originalist
o Originalism reduces the likelihood that unelected judges will seize the reigns of
 power from elected representatives.
o Originalism in the long run better preserves the authority of the Court.
o Nonoriginalism allows too much room for judges to impose their own subjective
and elitist values. Judges need neutral, objective criteria to make legitimate
decisions.
The understanding of the framers and ratifiers of a constitutional clause provide
those neutral criteria.
o Lochner vs. New York (widely considered to be a bad non-originalist decision).
o Leaving it to the people to amend their Constitution when need be promotes
serious public debate about government and its limitations.
o Originalism better respects the notion of the Constitution as a binding contract.
o If a constitutional amendment passed today, we would expect a court five years
from now to ask what we intended to adopt. [Can the same be said for a court 100
or 200 years from now?]
o Originalism more often forces legislatures to reconsider and possibly repeal or
amend their own bad laws, rather than to leave it to the courts to get rid of them
This theory produces less subjective judicial decision by way of ferreting out the
original intentions of the Framers
o Historical materials are often incomplete or indeterminative, however
There were no tape recorders 300 years ago, and the notes we have from then are
often different from what actually took place
The Federalist Papers were pro-Constitution propaganda; they were not intended to
be used as a source of original intent
o *Apply the original understanding to an analogous situation today...this can be
difficult
Search by government...did the framers think about infrared helicopter searches?
In the case on the matter, equated by Court to a "search" even though there's NO
WAY of knowing the framers would've considered it a search
The point is, originalism still requires that we make contemproary judgments,
even though we're supposed to be looking to the original intent
Textualism
o The "plain meaning rule"
o Literal reading and interpretation; structural textualism
Words may be clarified by examining their relationship to other provisions of the
text
o What if things are ambiguous but don't fit well?
NonOriginalists (Purposivists)
o See themselves as "partners" of those who drafted or ratified constitutional
provisions
Interpret in accordance with its overarching purposes to address the needs of
 contemporary society
Brennan argues for this, stating that the Constitution is adaptable to changing
times, and is not static
o Eight Reasons to be a Non-Originalist
The framers at the Convention in Philadelphia indicated that they did not want
their specific intentions to control interpretation.
No written Constitution can anticipate all the means that government might in the
future use to oppress people, so it is sometimes necessary for judges to fill in the
gaps.
Intentions of framers are various, sometimes transient, and often impossible to
determine. Text is often ambiguous and judicial precedents can be found to
support either side.
In such cases, why not produce the result that will best promote the public good?
It's better than flipping a coin.
Nonoriginalism allows judges to head off the crises that could result from the
inflexible interpretation of a provision in the Constitution that no longer serves its
original purpose.
(The amendment process is too difficult and cannot be relied upon to save us.)
Nonoriginalism allows the Constitution to evolve to match more enlightened
understandings on matters such as the equal treatment of blacks, women, and other
minorities.
Brown vs Board of Education (on originalist grounds, it was decided incorrectly).
Originalists lose sight of the forest because they pay too much attention to trees.
The larger purpose the animating spirit of the Constitution was the protection of
liberty, and we ought to focus on that.
Nazi Germany: Originalist German judges did not exercise the power they might
have to prevent or slow down inhumane programs.
Look to subject matter that the law addresses; the reason and spirit of the law
o May interpret the Constitution by considering the values, concepts, and principles
behind the text
Precedent
o We've got 200 years of interpretation behind us!
o A court's opinion is important not because of who wins, but why they win
o The Supreme Court almost never overturns a previous decision concerning
statutory construction
o If the Court was "wrong" in determining what Congress intended, Congress can
simply pass a statute amending the interpreted legislation to overturn the Supreme
Court's Construction
o The Court, however, has been more willing to overturn its decisions construing the
Constitution, but precedent may save a decision once made that Court may not
 adopt if the case was a "clean slate"
o There is a factual scenario; on the basis of precedent, is it more like previously
decided case X, or Y
Why?
o You're interpreting not only the Constitution, but the past as well
o The Supreme Court is very reluctant to overrule prior Supreme Court
interpretations
This is a problem if you're an originalist, and precedent disagrees
Constitutional Structure
o Look at the document as a whole in order to interpret a part
o Interpret things in such a way that they are consistent with eachother, and reach a
conclusion by that stream of logic

Natural Law
o A higher law/God's law type approach
That is, a person who believes that higher moral law ought to trump inconsistent
positive law.
o Is now only infrequently suggested as an interpretive guide, even though many of
the framers of the Constitution recognized its appropriateness.
Contemporary Values
o Exactly what it says.
o Society changes, as should the interpretation and application of the Constitution
International/Foreign Law
o Use of foreign law by the Supreme Court in interpreting the Constitution has
caused controversy
Mainly because its OUR law, not the world's

Interpretation in Action
The Second Amendment
o Scalia wrote the opinion
Originalist style of interpretation
See DoC v. Heller
o Opinion/Interpretation
The Second Amendment protects an individual right to possess a firearm
unconnected with service in a militia, and to use that arm for traditionally lawful
purposes, such as selfdefense within the home.
"A well regulated Militia, being necessary to the security of a free State, the right
of the people to keep and bear Arms, shall not be infringed."
o The prefatory clause A well regulated Militia, being necessary to the security of
a free State merely announces a purpose.
 It does not limit or expand the scope of the operative clause the right of the people
to keep and bear Arms, shall not be infringed.
o The operative clauses text, "right of the people," and history demonstrate that it
connotes an individual right to keep and bear arms.
The militia consisted of all males capable of acting together for the common
defense.
The Antifederalists feared that the Federal Government would disarm the people in
order to disable citizen militias, thereby enabling a politicized standing army or a
select militia to rule.
The Antifederalists therefore sought to preserve the citizens militia by denying
Congress the power to abridge the right of individuals to keep and bear arms.
This interpretation is confirmed by analogous arms bearing rights adopted in state
constitutions immediately preceding and following the Second Amendment
Furthermore, the drafting history reveals three proposals that unequivocally
referred to an individual right to bear arms.
Interpretation of the Second Amendment by scholars, courts, and legislators from
ratification through the late 19th century also supports the Courts interpretation.
No precedent forecloses this interpretation.
United States v. Miller limits the type of weapons to which the right applies to
those in common use for lawful purposes, but does not limit the right to keep and
bear arms to militia purposes.
Regarding "arms," the Second Amendment right is not a right to keep and carry
any weapon in any manner and for any purpose.
It is the right to bear weapons in the case of confrontation
The Court has upheld gun control legislation including
Prohibitions on concealed weapons and possession of firearms by felons and the
mentally ill,
Laws forbidding the carrying of firearms in sensitive places such as schools and
government buildings, and
Laws imposing conditions and qualifications on the commercial sale of arms.
The historical tradition of prohibiting the carrying of dangerous and unusual
weapons supports the holding in United States v. Miller that the sorts of weapons
protected are those in common use at the time.
o Constitutional rights are not absolute
When something "violates" one of those rights, we must decide how to handle it
That is, how does the judiciary exercise its review over the issue at hand
Sometimes, the judiciary wants the conduct to be ballparked...good enough
o Others, they will closely scrutinize what you do, like an issue of civil rights or
freedom of speech as two examples
How closely the judiciary looks at the questioned legislative action makes a
 difference
o The opinion above does not set a standard for assessment of the judiciary's
regulation
The issue courts have currently is, how closely to look at something