desegregation using National guard.

(still the time people against desegregation)

#1. Marbury v. Medison- review authority of Supreme court Issue
Are the state governors and officials bound to comply with Supreme courts decision?
Issue Holding
Whether Supreme courthas judicial review power of acts of congress. Yes.
Holding Reasoning
Supreme court can have judicial review power of acts of congress (Original jurisdiction) Constitution is the supreme law of the land, and Supreme court has final authority to decide
Judiciary act 1789 is unconstitutional constitutional matters.=we have exclusive power.
Reasoning
Supremacy of constitution Article 6 *Narrower interpretation of Marbury:
When conflict takes place between Con law and Act, the Act by Congress is revised or void Yes, there has to be a final decision maker, yes, theres judicial power, but only original and
Rule: Supreme court is final decision maker to decide whether a congressional act is appellate juris. And they are limited by congress. Congress is the one who makes law.
constitutional or not
*Broad interpretation of Marbury:
# 2. Martin v. Hunter-review authority of Supreme court WE are a final decision maker, and the only place, ultimate place, to hear cases pertaining to
Fact constitution. (so, SC end up making lawseven though they say its interpreting) -> Cooper
1.Hunter under Virginia grant/ Martin under the federal treaty provisions case chose it
2. Supreme court reversed the decision of the Virginia appeal court
Issue Rule: Supreme court has exclusive power over constitutional issues even over state
whether the appellate power of Supreme court extends to the state court official's administrative power
Holding
Yes, appellate jurisdiction # 4. Dickerson v. U.S.- authority of Supreme court
Reasoning Fact
1. Matter of uniformity- Supreme court is final interpreter of federal laws. 1. After Miranda came out, US congress passed USC 3501.
2. The regular administration of justice- as a mediator 2. Miranda warning allows you to remain silence
3. Supreme court's power is given by the people not the state( against compact theory) USC 3501 is not as high standard as Miranda b/c it says voluntary statements are allowed.
Rule: Supreme court is going to rule upon state court if the state trial court makes USC 3501 which says that the admissibility of such statements should turn only on whether
decision ruled upon federal law they were voluntarily made

By Art III Sec 2 The Supreme court appellate power extends to all Cases, in Law and Holding
Equity, arising under this Constitution, the Laws of the United States, and Treaties. Miranda court rule is a constitutional rule, so Congress may not supersede legislatively. (again,
elaborating judicial review)
# 3. Cooper v. Aaron- authority of Supreme court There were justices who disagreed with this. That is an immense and frightening
Supreme court continues to say that Even in modern times, Supreme court is still antidemocratic powerp.24
extremely powerful institution. --------------------------------------------------------------------------------------------------------
Fact * Restraints on Supreme Court by other branches
1. Brown v. Board of education(1954): desegregation! ruled by Supreme Court 1. Judicial selection => Art.2 Sec.2 cl.2
2. After 4 years from Brown decision Arkansas governor blocked the school against 2. Impeachment =>Art.3 Sec.1

17
3. Structural interference=>Art.3 Sec.2 (control money) Reasoning
4. Court-stripping=>Art.3 Sec.2 1. It can undermine the uniformity and the national character by resulting in a patchwork of
5. Amendment =>Art.5 (27 amendments so far. state qualifications.
--------------------------------------------------------------------------------------------------------
Federalism 2. the reserved power to states under the 10th Amendment
# 5. McCulloch v. Maryland (1819) cannot be here, because the power to add qualifications for federal elections was not an
- Federal power generally (State v. Federal) Fed > State original power that states had before enactment, there was no federal government or electoral
. system at all.
Fact
10th amendment "The powers not delegated to the United States by the Constitution, nor
1. Branch of Second bank of US opened in Maryland.
2.Maryland adopts law imposing tax per bank notes.= chartering system= must be authorized prohibited by it to the States, are reserved to the States respectively, or the people.
by State Dissenting:
Issue *Compact theory
1. Can congress open a bank? the country was formed through a compact agreed upon by all the states, and that the federal
2. Can the state of Maryland tax national bank? government is thus a creation of the states. (state> federal) Consequently, states should be the
Holding final arbiters over whether the federal government had overstepped the limits of its authority
1.yes.
2.no. this type of tax is unconstitutional.
Reasoning Based on Compact theory, the ultimate source of the Constitution's authority is the consent of
1. Necessary and proper clause- Art.1 Sec.8 the people of each individual state, not the consent of the undifferentiated people of the nation
Here, opening a bank is necessary and proper because U.S has to get a revenue for U.S's as a whole.
welfare. -> Narrow interpretation of 10th Amendment
2. the type of tax is to prevent unlawfully the Fed from operating nation in lawful manner. .
Rule: States cannot divest the Fed's lawful power implied or expressly granted by Rule: States cannot limit federal power unless States already had the power even if the
necessary and proper clause. power was not delegated to federal nor prohibited by the constitution under the 10th
amendment.

-------------------------------------------------------------------------------------------------------

# 6. U.S Term limit v. Thornton 2. Congress

- Federal power generally (State v. Federal) Fed > State Key Point:
Commerce Clause / Three periods
Fact
Arkansas(state) made amendment that regulates term limits on the general election ballot (fed) *Tenth amendment cases (struck down under this amendment - limitation on National
* Ballot initiative =General election, vote for an issue, giving the right to make amendment congress's power)
Issue
Can states formulate diverse qualifications for their congressional representatives? Tenth amendment kicks it away as that is unconstitutional.
Holding
No, the amendment is unconstitutional 1. New York v. U.S.- Radioactive waste case, Congress directly cannot enforce federal law.

17
Congress directly cannot compel states to enact federal law or federal regulation. Under the legislature.
Tenth amendment federal legislation, congress directly cannot enable state to actually enact 2. Gibbons was licensed under Federal Statute. NY Court ordered Gibbons to stop
federal law and enforce the law. Issue
Does the power to regulate Commerce encompass navigation?
2. Printz v. U.S -local police issue, Congress cannot force state to participate in the ministration Holding
of federal program Yes
Reasoning
*Commerce clause Broad interpretation of commerce clause.
-Art I Sec 8. Congress has the power to regulate Commerce with foreign Nations, and among -> Navigation is also commerce. Federal regulation on state power is constitutional.
the several States, and with the Indian Tribes. Rule:
-It acts as a source of congressional authority *Four tests to decide whether it falls within the scope of commerce.
-It acts, implicitly, as a limitation on state legislative power. 1. Direct v. Indirect effect test
->Court looks at whether the activities is Direct or Indirect effect on the interstate commerce
*Three different approaches 2. Substantial economic effect test
1. Direct v. Indirect (narrow) ->Court look at whether the activities regulated had a substantial economic effect upon
2. Substantial effect interstate commerce.
3. Stream of commerce (broad) 3. Stream of Commerce test (extremely broad)
4. Police Regulation test
*Three different time period
about 70 years after this case, the commerce clause was interpreted broadly in many
1. Pre 1937 - Interpret commerce clause narrowly or broadly areas because of necessity.

But after Gibbons v. Ogden case(1824), Navigation issue was commerce! began to interpret But, from Lopez(1995) Modern Trend
commerce clause broadly. # 8.United States v. Lopez (Limits power)
-Internal limits, Restraint on such broader interpretation
2. 1937- 1995 -FDR, court packing , after New deal Fact
-interpret commerce clause broader for economical development. The statute was the Gun-Free School Zones Act of 1990, in which Congress made it a federal
-New era of commerce crime "for any individual knowingly to possess a firearm at a place that the individual knows,
-Federal criminal law, other regulations, or has reasonable cause to believe, is a school zone."
3. 1995- Now -Ranquist court comes in(Ranquist revolution)
- Restraint on such broader interpretation *In case of commerce power of Congress
Lopez 1. Congress may regulate the use of channel of interstate commerce
Morrison 2. Congress has right to regulate and protect the instrumentalities of interstate commerce,
# 7. Gibbons v. Ogden - people or things, even though the threat comes from intrastate activities.
Commerce clause - -Internal limits 3. Activities having substantial relation to interstate commerce.

Fact Issue
1. Ogden obtained exclusive rights to operate steamboats in NY waters up to NJ from NY state Does the commerce power of Congress extend to activities that have no apparent connection to

17
interstate commerce? Fact
Holding 1. Low-level Radioactive Waste policy Amendments Act of 1985-> The act attempted to force
No, the regulation goes too far each state to make its own arrangements for disposing of the low-level radioactive waste
Reasoning generated in that state / alternative methods: federal funds
-It is NOT a substantial effect economically. 2. Federal incentives take title(waste generator)
-possession of guns in schools was not itself a "commercial" activity. Issue
Rule : if the activities is not itself a "commercial activity", the commerce power cannot be Can congress enforce each state to make its own arrangements for federal issue?
applied. Holding
# 9. United States v. Morrison - Internal limits No,
In the similar line to Lopez Reasoning
Fact Tenth amendment
Virginia Tech, One woman was raped by two students and sued under the said act, The Federal government may not
defendants argued that the act 1. Compel a state to enact or enforce a particular law or type of law
was beyond Congress powers including its Commerce power 2. Compel state officials to perform federally specified administrative tasks Under the Tenth
Issue amendment
Can congress regulate inherently non-economic activity?
Holding Rule: Congress directly cannot compel states to enact federal law or federal regulation
No, under the Tenth amendment
Reasoning --------------------------------------------------------------------------------------------------------
the activity being regulated was essentially non-economic (as a adding factor) # 11. Gibbons v. Ogden -
Lopez 3 factors + Morrison adding factor = Modern approach (federal limits on State power as an example- dormant commerce clause)
cf)Gonzales v. Raich(2005)-Marihuana case,
Even ifModern view, interpreted broadly in a special area. The first Supreme Court case interpreting the meaning of congressional silence in a commerce
: Commerce Clause permits Congress to criminalize local cultivation and medicinal use of context.
marijuana even if those uses otherwise comply with the States law New Yorks monopoly was invalid because it conflicted
->inherently interstate commerce as a component With the federal commerce power.
->For keeping overall regulatory scheme such commodity in interstate market. State law v. Federal law
*Internal limits v. External limits on federal commerce power What is the dormant commerce clause doctrine?
Internal limit -> enumerated powers in Article 1 Sec 8 The mere existence of the federal commerce power restricts the states from discriminating
How do we define commerce? against, or unduly burdening, interstate commerce.
External limit -> Issue
going beyond enumerated powers on Article 1 sec 8 How far can congress go regulate commerce, making law under commerce power?
focusing on two areas; Tenth amendment, Eleventh amendment Holding
Tenth amendment: un delegated powers reserved to the states and the people-> Congress Unity of confederation each state sovereignty
directly cannot compel states to enact federal law or federal regulation. Instate benefit-> outside state (unfair)
Eleventh amendment: exemption of states from federal suits by citizens of another state *Zero-Sum game
If the fed body(congress) has not made law
# 10.NewYork v. U.S. - External limits Even though federal law not exist ,has not spoken to make some law, naturally, prohibit and

17
regulate to put limitation on state power to regulate commerce. =highest level of scrutiny=Strict scrutiny =per se invalid
*Positive v. Negative power 2. Laws that are facially neutral, but still protectionist measures
Positive: granted/ enumerated power by Congress 3. State statute that has disproportionate impact on interstate commerce=balancing and
weighing benefit of the state and impact on national economy. economic reason ->-
Negative: not spoken , not made by Congress >intermediate scrutiny->Cooley chose it.
Even if there is an absence of federal law, to some degree -------------------------------------------------------------------------------------------------------3.
Your state regulation going to be unconstitutional Executive Power
There are three tests for that. Key Point: Check and Balance
1. The regulation must pursue a legitimate state end
2. The regulation must be rationally related to that legitimate state end *Two different approaches for separation of power
3. The regulatory burden imposed by the state on interstate commerce must be outweighed by ->Formalistic view and functionalistic view
the state's interest in enforcing its regulation.
1. Formalistic ->clear line between three branches
# 12. Cooley v. Board of Wardens (1851) 2. Functionalistic ->fluid line, good working government,ultimate ends is important
(federal limits on State power as an example- dormant commerce clause)
Fact # 13.Youngs town v. Sawyer(1952)
1. 1803, Pennsylvania makes a law that requires ships that are entering and leaving the harbor -Separation of power-executive power
to engage a local pilot to guide. Fact
2. Cooley did not want to pay the local pilots => not hired local pilot => Board of 1. During the Korean War, the President Truman issued an executive order directing to seize
Wardens(=Penn. Legislative body) brings a suit against Cooley the steel mills and operate them under federal direction
Issue 2. Congress already has declared war, and the president was acting within the power
Whether this law of Pennsylvania, being a regulation of commerce, is valid in view of the Issue
grant of the commerce power to Congress Whether President was acting within his constitutional power when he issued an order
Whether the grant of the commercial power to Congress deprived the States of all power to directing the Secretary of commerce to take possession of and operate most of the Nations steel
regulate pilots mills?
*regulations of pilots = regulations of navigation=commerce Holding
Holding NO, President has no such authority.
1.No!! the Penn law to regulate pilot (state law)is valid. State does still retain a power to President NO right to make laws
regulate commerce, but there are times that we have to judge when the states regulatory Reasoning
scheme conflicts with congressional power to regulate commerce.=selective exclusiveness 1. J. Black=Formalistic approach
2. Judgment for the Board of Wardens was affirmed. 2. In constitution, there is no actual words, or authority that give the president power to take
Rule: if the object of regulation is local and unique to the state, the state may regulate the the seizure
object unless the object being regulated requires a single uniform rule. 3. It must be in some provision of the Constitution,
*Three cases constituting "Selective exclusiveness" by the Congress when state laws J. Jackson (concurring)=Functionalistic approach
conflict with federal laws Three parts test
*Three parts test 1. President has the most power when the language of the Constitution expressly give him that
(focusing on form and purpose) when evaluating Dormant Commerce clause power, or we can naturally infer that power.
1. Laws that are facially discriminatory, political reason =>here, we have no express or implied legislative act that allows the president to take over the

17
steel mills
2. Zone of Twilight
In the absence of congressional grant or denial of the power, the president and the Congress
has concurrent authority
=> Here, also, theres not any congressional grant or denial of the power, so not applicable
3. Theres no express language in the Constitution or the measures are incompatible with the
provisions=> it has the least power= lowest ebb= only his own constitutional powers
=>here, we are in the 3rd category.
Rule: The President may not make laws, he may only carry them out (separation of
power)
# 14. INS v. Chadha
-Separation of power- executive power
Fact
1. Congress delegated to the Attorney General who has the power to suspend deportation.
2. But, Congress reserved to itself a legislative veto over each decision by the Attorney General
suspending deportation in order to retain some control over this delegated power.
3. The veto could be exercised by a resolution passed by either house( Senate or House) within
a certain time after the Attorney General's decision to suspend deportation.
4. The House Rep used its veto power to reverse the Attorney General's suspension of
deportation . Chadha was one of the aliens in the danger of deportation because of the veto.
Issue
Is the veto power which either house can use constitutional?
Holding
No , the one house veto is unconstitutional
Reasoning
1. The violation of Presentment Clause (Art 1, Sec 7, cl. 2)
2. The violation of Bicameral ism(Art 1. Sec 1 and Sec 7)
-both houses must pass a bill before it can become law
Rule: Even two house legislative veto is unconstitutional b/c Chadha law still good law.
Originally bicameral passed the law and the president can kick the bill passed by the
bicameral away and push back to the bicameral. After that, through 2/3 voting, re-
challenge to it-> that is constitutional process.
# 15. Morrison v. Olson
-Separation of power- executive power- President's appointment
17
Art 2 sec 2 President's appointment clause
he shall nominate, and by and with the advice and consent of the Senate, shall appoint
ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other
officers of the United States, whose appointments are not herein otherwise provided for, and
which shall be established by law: but the Congress may by law vest the appointment of such
inferior officers, as they think proper, in the President alone, in the courts of law, or in the
heads of departments.
Fact
Congress made the independent counsel act and delegated to the judiciary the job of appointing
special prosecutor to investigate allegations of wrongdoing against members of the executive
branch.
Issue
1. whether or not Congress is interfering with the President's exercise of executive power and
his duty to take care laws that are executed.
2. Whether the special prosecutor is inferior officer or principal officer.
Holding: No,1. not interfering, 2. the special prosecutor is inferior officer.
Reasoning
1. The Act gives the Executive Branch sufficient control over the independent counsel to
ensure that the President is able to perform his constitutionally assigned duties
2. The special prosecutor is an inferior under the appointment clause. Every federal official
below Cabinet level will similarly be held to be an "inferior" one because under the
appointment clause the only principal officers are ones who have no boss except for the
President.
--------------------------------------------------------------------------------------------------------
END of Three Branches Power (federalism)
II. Amendments
4. Post war Amendments
Key Point: the development of individual rights/ P& I and P or I
Post war, bill of rights, Thirteenth amendment, Fourteenth amendment, Fifteenth
amendment
The first ten amendments to the Constitution are commonly called the Bill of Rights. Their
principal purpose is to protect the individual against various sorts of interference by the federal
government.
Before the Civil war
# 16. Barron v. Mayor and City Council of Baltimore(1833)
- Individual rights- Fifth amendment Can a slave be considered a citizen and as such become entitled to all the rights, privileges and
immunities granted to citizens under the United States Constitution?
Fact Holding: No, Slave is not a citizen
1. The Plaintiff sued the Defendant because they ruined his wharf by diverting streams and Reasoning
making water too shallow for his boats. 1.Slave is not a citizen, Art 4 sec 2 P&I clause was not designed for slave.
2. The Plaintiff claimed that the city took his property without just compensation and in 2. cannot deprive the property rights (slaves as property), Justice Taney struck down the Act of
violation of the Takings Clause of the Fifth Amendment of the Constitution Congress
Issue Rule: Article 4 Sec 2 P&I clause was applied to State citizen.
Does the Fifth Amendment of the Constitution apply to local government? At this time, slave was not State citizen.
Holding: No
Reasoning After the Civil war
Fifth amendment is Not applicable to the states. Enactment of the Civil war Amendments
The Bill of rights were not directly binding upon state government. The relative lack of constitutional restrictions on relations between state governments and
Rule:The Bill of rights originally was not designed for the state. individuals was drastically changed by the enactment of the three Civil war Amendments, the
Before the Civil war Thirteenth, Fourteenth and Fifteenth. Each of three was enacted for the purpose of barring
Article IV sec 2 -> P and I clause-> promotion on P & I discrimination by states against individuals especially blacks
Article IV, which protects the privileges and immunities of state citizenship from interference
by other states Article 4 P&I -> 14th Amendment P or I
The Citizens of each State shall be entitled to all Privileges and immunities of Citizens in the # 18. Slaughter-House Cases (1873)
several states. Fact
State cannot discriminate against other state when Louisiana passed a law giving a monopoly on New Orleans-area slaughter houses to a
no boundary between interstate State citizen particular company. Butchers not included in the monopoly claimed that the statute deprived
them of the opportunity to practice their trade, and thereby violated the Thirteenth and
14th amendment sec 1-> P or I clause-> restriction on P & I Fourteenth Amendments.
The Privileges or Immunities Clause, which protects the privileges and immunities of national Issue
citizenship from interference by the states, Whether P or I clause of Fourteenth Amendments is applied to a state citizen
Holding
"All persons born or naturalized in the United States and subject to the jurisdiction thereof, are No,14th Amendment privilege or immunity clause only affected rights of US citizen, and not
citizens of the United States(broad definition of Citizenship overruling Dred Scott v. state citizen
Sandford) and of the State wherein they reside. No State shall make or enforce any law which Reasoning
shall abridge the privileges or immunities of citizens of the United States." 1. Fundamental civil rights, including the right to practice one's calling, were the domain of the
states, not the federal government. Therefore, the plaintiffs should took to Louisiana law for
# 17. Dred Scott v. Sandford (1856) protection, if there was no protection under Louisiana law, the plaintiffs were out of luck.
Fact 2. the court recognized two types of citizenship. The rights citizens have by being citizens of
1. Slave sued his owner for freedom on grounds that the state where he was bought the United States are covered under the Privileges or Immunities Clause of the 14th
2. Dred Scott argued that he was once free because he has been to the free territory in Illinois, Amendment, while the rights citizens have by being citizens of a state fall under the Privileges
and once he was free, he needs to be always free. and Immunities Clause of Article IV.
Issue Rule: 14th Amendment privilege or immunity clause only affected rights of US citizen,

17
and not state citizen.
Each of three was enacted for the purpose of barring discrimination by states against Equal protection(Fourteenth amendment)-
individuals especially blacks as a US citizen. Race discrimination
--------------------------------------------------------------------------------------------------------
5.Equal protection # 19. Plessy v. Ferguson(1896)
(14th amendment) *Separate but equal doctrine
Key Point: Separate but equal was a legal doctrine in United States constitutional law that
Suspect classification/Incorporation/ justified and permitted racial segregation.
What Scrutiny Services facilities(medical care, education, public accommodations, and housing)
-Race/Preferential Discrimination/Sex/Others -> Separate
Quality of facilities -> Equal
Standards of Review (Means-Ends Analysis) Fact
Three Standards of Review or Levels of Scrutiny in terms of 1. Louisiana statute, Railroad, Separate but Equal accommodations for Black and White
(a) + (b): Passengers.
(a) what is purpose/end advanced (ie, government interest)and 2. P, Seven Eighths White was prosecuted under the statute after he refused to leave the section
(b) how adopted method/means are related to that purpose/end. of a train reserved for whites.
1. Strict Scrutiny ( if passed by this test, it is valid policy) Issue
(a) Compelling government interest Is there violation of Equal protection under 14th amendment?
(b) Means must be Necessary, Narrowly tailored Holding
2. Heightened/Intermediate Scrutiny No
(a) Important government interest Reasoning
(b) Means must be Substantially related 1. this one is related only to social equality
3. Rational Basis/Mere Rationality Test not to political or civil equality
(a) Legitimate government interest Social equality was not a goal of the Equal protection.
(b) Means must be Rationally related 2. Not badge of inferiority
Determining Applicable Review Standards and Likely Outcome Rule: If the civil and political rights of both races be equal, one cannot be inferior to the
Qs: other civilly or politically.
(i) what right is at stake (fundamental or not); Justice HARLAN dissented: everyone knows its real purpose which to exclude colored
(ii) who is affected (all or a particular class) people from coaches for white. It was said in argument that the law does not discriminate
1. If fundamental right strict scrutiny likely unconstitutional against either race, but prescribes a rule applicable alike to white and colored people. The
2. If suspect class strict scrutiny likely unconstitutional white race deems itself to be the dominant race in this country. And so it is, in prestige, in
3. If non-fundamental right and non-suspect class achievements, in education, in wealth and in power. Our constitution is Color-blind.
rational basis likely constitutional # 20. Brown v. Board of education of topeka(1954)
4. If quasi-suspect class heightened scrutiny Reverse Separate but equal
likely unconstitutional Fact
1. School board operated separate elementary schools under an 1879 Kansas law.
2. The law permitted districts to maintain separate elementary school facilities for African-
American and white Students.

17
3. P(Brown, parents) contended that segregated public schools are not equal and cannot be (a) Compelling government interest
made equal therefore, they are deprived of the equal protection of the laws (b) Necessary
Issue
Is there violation of Equal protection under 14th amendment? # 22. Washington v. Davis
Holding Facial Neutral Laws with Racially Discriminatory Effect
Yes ,overruled Plessy v. Fergusson (1896) Fact
Reasoning Verbal test for Police department
1. Tangible factors equal but intangible factors is not equal Substantial Issue
such as feeling of inferiority as to their status in the community that may affect their hearts and Is the test valid under the U.S constitution?
minds Holding
2. Separate educational facilities are inherently unequal Yes
Rule: 14th Amendment in 1868, remove all legal distinction among all persons born or Reasoning
naturalized in the US 1. Racially discriminatory purpose
-------------------------------------------------------------------------------------------------------- 2. Racially discriminatory impact
Equal protection- Facial discrimination (justification of race discrimination) both of them should be met to automatically trigger strict-scrutiny. solely discriminatory
# 21.Korematsu v. United States impact cannot trigger automatically strict-scrutiny
-against Racial minorities Here, there is only discriminatory impact
Fact Verbal test is valid under U.S constitution
-Executive Order 9066 No real discriminatory purpose
-Ordered JapaneseAmericans into internment camps during World War II regardless of Procedural Issue (professor stressed it)
citizenship D.C is not a state,
Issue Can 14thAmendment(Equal protection) apply to Federal?
Is the Executive order 9066 constitutional? Yes!!
Holding Because of the theory of reverse incorporation
Yes , these actions were justified because of war time. 1. In the bigger picture, Due process -> Safe guard of fairness
Reasoning 2. Similar language
The need to protect against espionage outweighed Fred Korematsu's individual rights Warfare 5th Amendment- Due Process
Argument (Fed /-> also State)
-First instance (Govt applied Strict Scrutiny) 14th Amendment-(Due process as one of components)
-This case survived Strict scrutiny test, very high standard (State /-> also Fed)
-On history, first the word racist was written on the opinion section by justice (why not?
German, Italian, etc) On the exam, you have to say
Strict scrutiny is the most stringent standard of judicial review used by United States courts. It Bill of rights can be applied to state because of incorporation doctrine
is part of the hierarchy of standards that courts use to weigh the government's interest against a 14th amendment can be applied to Federal law also because of reverse incorporation doctrine
constitutional right or principle *Incorporation doctrine
The incorporation of the Bill of Rights (or incorporation for short) is the process by which
Rule: American courts have applied portions of the U.S. Bill of Rights to the states. Prior to 1925,
Strict scrutiny test the Bill of Rights was held only to apply to the federal government. Under the incorporation

17
doctrine, most provisions of the Bill of Rights now also apply to the state and local
governments.
* Reverse incorporation doctrine
Under the Bollingv. Sharpe case(specifically, segregation in the District of Columbia's public
schools)-p 623 segregation can be protected by Equal protection under 14th amendment But,
Fourteenth amendment could be only applied to State at that time
D.C is not a state. Fourteenth amendment cannot be applied there.
the court held that the concept of Fifth amendment(Due process) is similar to the concept of
Equal protection(Fourteenth amendment) in bigger picture of due process.
Due process is general safeguard of fairness. Inherently similar. 5th amendment can be applied
to state. 14th amendment(due process, equal protection) can be also applied to fed.b/c the
language between them is very similar.
Here, Same situation, here D.C
# 23.Regents of Univ. of Cal. v.Bakke(1978)
-Affirmative action( reverse discrimination)
Fact
1. The University of California at Davis Medical School reserved 16 out 100 places(Quota
system) in tis entering class for member of minority groups: Blacks, Chicanos, Asians, and
American Indians.
2. Bakke challenged the special procedure when Bakke, a white applicant, was rejected where
other applicants were admitted under the special program with GPA, MCAT scores, and
benchmark scores significantly lower than Bakkes
3. Bakke raised issues under the equal protection of the 14th Amendment and Title VI of the
Civil Rights Act of 1964
Issue
Is the special admission programs racial classification is necessary to promote the diversity in
education?
Holding
NO, it is invalid under the 14th Amendment. Affirmed. Bakke, admitted.
Reasoning
Strict Scrutiny
1. Racial and ethnic classifications are subject to strict examination, even for the white males,
because the amendment was framed in universal terms
2. The school failed to carry the burden to prove that the program was necessary to promote a
substantial state interest.
17
3. Even though the state has a legitimate and substantial interest in reducing the history deficit,
countering the effects of societal discrimination, increasing the number of physicians for
minority groups, and obtaining the educational benefits with ethnically diverse student body,
there are still questions whether the programs racial classification is necessary to promote this
interest. ->
legitimate interest but
inappropriate means(not narrowly tailored)
Dissenting Blackmun, Brennan, Marshall, and White [Equal Protection] -> Intermediate
scrutiny
Rule: When a States distribution of benefits or imposition of burdens hinges on the color
of a persons skin or ancestry, that individual is entitle to a demonstration that the
challenged classification is necessary to promote a substantial state interest.
*Difference between "A factor" and "The factor"
Race can be A factor( of many factors), a plus factor
but should not be THE factor, only factor
Here, the program focused solely on ethnic diversity.
(THE factor) therefore, the program was unconstitutional
# 24.Grutter v. Bollinger (2003)
-Affirmative action( reverse discrimination)
Fact
Barbara Grutter applied for admission to University of Michigan Law School in 1997 with an
undergraduate GPA of 3.8 and an LSAT of 161. She was denied. Petitioner, who is dwhite, is
challenging the law schools use of race as a factor in the admissions process
Issue
Did the University of Michigans use of racial preferences in the admissions process violate the
Equal Protection Clause?
Holding
No
Reasoning
Race was only one of many factors considered to determine the applicants eligibility. Schools
have a compelling interest in having diverse student bodies. That is different from Bakke.(THE
factor)
Applying strict scrutiny test,
-Compelling interest there in having diverse student bodies
-That is a narrowly tailored method used to maintain underrepresented minorities in law
school. Rule: Sexual discrimination is not suspect classification, so may not be applied Strict
Scrutiny, intermediate scrutiny may be applied instead. (first time to apply intermediate
# 25.Gratz v. Bollinger level)
-Affirmative action( reverse discrimination) # 27. United States v. Virginia (1996)
Fact VMI
A challenge by white students to an admissions policy of the University of Michigan, Fact
undergraduate college of LSA. 1. VMI was the sole single-sexed school among Virginias 15 public institutions.
The college used the method awarding 20 points to an applicant from minority 2. At trial, the District Court acknowledged that women were missing out on a unique
automatically" educational opportunity, but upheld the schools policy on the rationale that admitting women
Issue could not be done without compromising the schools adversative method.
Is the admission method automatically giving 20 points to applicants who are from minority 3. Pursuant to a decision by the Court of Appeals, the State established the Virginia Womens
racial group a violation of 14th amendment? Institute for Leadership (VWIL) for women. VWIL offered fewer courses than VMI and was
Holding run without the adversative method.
Yes ,it is solely because of race type, therefore, not narrowly tailored to achieve the interest Issue
in educational diversity Did VMI represent a violation of the Fourteenth Amendments Equal Protection Clause?
Reasoning Holding
Applying Strict scrutiny Yes
1. Automatic 20-point-bonus without consideration of the particular background is not Reasoning
narrowly tailored. 1. Intermediate scrutiny. Virginia has not shown exceedingly persuasivejustification for
2. Giving additional point automatically is not different from Bakke's quota system. excluding women from citizen-soldier training afforded by VMI.
-------------------------------------------------------------------------------------------------------- 2. VMIs remedial plan VWIL is not equal
Equal protection- Sex discrimination (what scrutiny will be done?)
# 26. Craig v. Boren Rule: Gender-based classifications of the government can be defended only by
Low level alcohol only for girl exceedingly persuasive justifications. The State must show that its classification serves
Fact important governmental objectives and that the means employed are substantially
an Oklahoma statute which forbade the sale of "3.2% beer" to males under the age of 21, and related to those objectives. The justification must be genuine, not hypothesized
to females under the age of 18. the constitutional claim was that the statute denied equal -------------------------------------------------------------------------------------------------------Equal
protection to males aged 18-20 protection- other Suspect classifications
(Alienage, Age, Disability, and Poverty)
Issue (what scrutiny will be done?)
Is the Oklahoma statute constitutional?
Holding # 28.Cleburne v. Cleburne Living Center
Unconstitutional -mental retardation (Living center )
Reasoning Fact
To apply intermediate scrutiny, Gov's interest(objective) must be important and the means must A Texas city denied a special use permit for the operating of a group home for the mentally
be substantially related to achievement of the interest, but here, relationship between the means retarded. Jan Hannah purchased a building with intent to lease it to Cleburn Living Centers,
(ban on sale) and the end (promotion of traffic safety) was simply too tenuous to constitute the Inc. for the operation a group home for the mentally retarded. But the city council denied the
required "substantial relation" between means and end. special use permit.

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Issue 1. NY Bakery shop act, limitation on work time,
Is the mental retardation in a quasi suspect classification? 2. must not over 10 hr per day, 60 hr per week
Is the mentally retarded under Intermediate scrutiny or rational basis test? 3. Lochner, owner of bakery shop was convicted of violation this law
Holding Issue
No, not heightened scrutiny, just rational basis scrutiny Whether the state's economic regulation is invalid under the substantive due process doctrine.
Reasoning Holding
1. Politically powerless ( not the case of political correctness such as black) Yes, took away the liberty of contract
2. No prejudice or antipathy by the lawmaker Reasoning
3. Amorphous, two extensive, ambiguous, different person to person for mental retardation 1. Police regulatory power only for public welfare
4. Courts reluctance to establish additional quasi-suspect class 2. No actual motive for public health and safety
It is only for certain other classification such as the aging, the disabled, the mentally ill (nature- 3. Long working hours did not affect those things.
disable people) 4. Substantive due process(first time to analyze on the ground SDP)- the bakery act deprived
Rule: mental retardation is under the rational basis test. the liberty of contract -> court struck down the bakery act( limiting working hours)
-------------------------------------------------------------------------------------------------------
6. Due process Dissenting, Holmes, J very famous one
(14th amendment) -A constitution is not intended to embody a particular economic theory, Wrong baseline, the
Key Point: What right falls within the scope not regulated by State. protection is needed (Loctnerct is saying that judicial usurpation,social statics
-Right to contract ( Economic interest) (Darwinism) and Laissez-faire: no intervention -> no problem Justice
-Right to birth control (Non-Economic interest)
Peckham, the majority, has been imposing this view )
Due process -Substantive due process
*Lochnerize (=Lochner area)
14th amendment
The Lochner era is a period in American legal history from roughly 1890 to 1937 in which the
-No state shall make or enforce any law which shall.. Deprive any person of life, liberty,
United States Supreme Court tended to strike down economic regulations mandating certain
or property without due process of law
working conditions or wages, or limiting working hours.

*Three periods for the development of Substantive due process

# 30.Nebbia v. New York
1. Before 1934 (Lochner-> 1905)( New deal -> economic development)
Abandonment of Lochner
Rise of the substantive due process doctrine
Fact
Court tended to strike down economic regulations
1. NYs regulatory scheme for fixing milk price with M.C.B
2. 1934~( many economic regulation of government)(Nebbia)
2. Nebbia, grocery store owner, was found guilty of violating the price regulations. Sold
Abandonment of the doctrine(Lochner area) with regard to economic regulation
cheaper
3. Modern(Griswold)
Issue
Rebirth of the doctrine for non-economic interests (right to privacy) (Lochner still good law)
Whether the economic regulation is invalid under the substantive due process doctrine.
Limitation of States substantive power for protection of humans liberty ->substantive due
Holding
process
No, valid, the court upheld the state regulation of milk price. Beginning case of "lochner
is wrong."
# 29.Lochner v. New York (1905)
the regulation did not deprive the rights under the substantive due process doctrine.
(Right to contract) (Before 1934) (Bakery)
Reasoning
Fact

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1. the contractual and property right is not absolute in nature therefore, the right can be subject
of limitation.
2. Since the regulation was not arbitrary, discriminatory, or demonstrably irrelevant to the
policy adopted by the legislature to promote the general welfare, it was consistent with the
Constitution.
3. A state was free to adopt whatever economic policy may reasonably be deemed to promote
public welfare, and to enforce that policy by legislature adapted to it's purpose.
# 31. Griswold v. Connecticut
(Modern approach) (Contraception) Rebirth of Lochner but about non-economic area
Fact
1. Connecticut law which forbade the use of contraceptives and the counseling of others in
their use.
2. Ds were convicted of counseling married person in the use of contraceptives.
Issue: Is the Connecticut law valid under the constitution?
Holding: No, invalid law, struck down the statute
Reasoning
Several of the Bill of Rights guarantees protect the privacy interest and create a penumbra or
zone of privacy
** Zone of Privacy: "Core rights" + "Penumbral rights (Gray areas)"
->Penumbras emanating from core rights from each of the constitutions
Douglas J: Penumbra, the right of married person to use contraceptives fell within this
penumbra. Violated 14th amendment interest in liberty.
Goldberg J: 9th amendment
(not enumerated fundamental rights)
Harlan J: 14th amendment,
not guarantee specific bill of rights, but implied in the ordered liberty
Rule: The right of a married couple to privacy is protected by the Constitution
# 32. Roe v. Wade (Modern approach)
Abortion
Fact
1. Roe (P), a pregnant single woman, brought a class action suit challenging the
constitutionality of the Texas abortion laws.
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2. These laws made it a crime to obtain or attempt an abortion except on medical advice to
save the life of the mother
Issue: Whether women are constitutionally protected with their right to privacy of abortion
Holding
Abortion is the constitutional womens right of privacy under Due Process Clause of 14th
Amend.
When fundamental rights are involved,
Reasoning
Blackmun, J
1. There is no express constitutional based opinion on right to abortion in the history until now.
2. The Constitution does not explicitly mention any right of privacy. In a line of decisions,
however, the Court has recognized that a right of personal privacy, or a guarantee of certain
areas or zones of privacy, does exist under the Constitution
3. In his view, such privacy comes from the due process clause of Fourteenth Amendment's
4. The right of privacy recognized in Griswold was emphasized here. =>affirming judge
Harlans opinion in Griswold
*trimester analysis
I: first trimester: abortion interest is heavier no abortion regulation (medical judgment)
II: second: womens health issue becomes heavy (compelling) enough during this period, only
for protecting womens health
III: viability->prohibitable
Dissenting
=> liberty term is not a catch all phrase, to say we are going to count anything that is
deprivation of liberty, and saying generally anything that infringes upon that liberty is going to
be an automatic deprivation, NO but, only deprivation against liberty without a legal
justification (= without due process of the law
-----------------------------------------------------------------------------------------------------
7. Freedom of Expression (1st amendment)
Key Point:
What speech is Protected or Not Protected under 1st amendment
1st amendment
Congress shall make no law abridging the freedom of speech, or of the press 1st amendment
*Unprotected categories
1. Incitement -> advocacy of imminent lawless behavior, fighting words
2. Obscenity
3. Misleading or deceptive speech(i.e fraud)
4. Speech integral to criminal conduct (i.e part of conspiracy to commit a crime or speech
proposing on illegal transaction)
5. Defamation
* Two broad classes (when government "abridges" freedom of speech, its reasons for
doing so can be placed into two broad classes) the government rejects the speech because
of
1. content based regulation ->ideas or information contained in it or because of its general
subject matter , strict scrutiny.
2. content neutral->other reasons to limit the speech under 1st amendment,
intent is to preserve public order or protect environment regardless of the content.
*Tests to decide whether the speech is legal advocacy or illegal incitement.
1. bad tendency test -test prior to clear and present danger test
->if words that tend to cause some kind of illegal act, or illegal action, then, that speech was
not considered protected
2. the clear and present danger test -prior to Brandenburg case, most cases use this test, more
specific and higher than bad tendency test
->speech could be punished as an attempt to commit an illegal act if the speech created a
"clear and present danger" that the illegal act would come about
3.Imminent lawless action test -current test, More specific than clear and present danger test
->if your words cause a imminent lawless action, that is not considered a protected speech.
(Brandonburg v. Ohio)
# 33.Schenck v. United States (1919)
(Incitement to Violence)
Fact
1. D was charged by a conspiracy to violate the Espionage Act of 1917, a conspiracy to commit
an offense against the United States, and an unlawful use of the mails for the transmission of
unlawful matter.
2. The mail claims that the draft is a violation of the Thirteenth Amendment of the Constitution
and encourages people to assert your opposition to the draft.
3. But, the document did not explicitly advocate illegal resistance to the draft, it merely
advocated peaceful measures.
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Issue
Is the First Amendment violated when Congress makes a law that punishes people who
dissents in wartime?
Holding
No. the law did not violate the First Amendment right to free speech
Reasoning
1. The protection of free speech would not protect a man in falsely shouting fire in a theatre
and causing a panic.
2. This is a war time, and such speech would pose clear and present danger. (clear and present
danger test)
# 34.Chaplinski v. New Hampshire (1942)
(Fighting words)
We are really only talk about two areas: speech that should be restricted, because it has
the effect of promoting some type of hostility, or some type of violent confrontation.
Fact
1. A New Hampshire statute prohibited any person from addressing any offensive word to any
other person who is on public place.
2. Chaplinsky, a Jehovahs Witness, called a City Marshal a God damned racketeer and a
damned fascist in a public place and was therefore arrested and convicted under the statute.
*Difference between chaplinsky and Scheck = Scheck is advocating other people to act in a
certain fashion, but Chaplinskys words by itself are not necessarily encouraging other people
to act in a particular way, but it is inviting violence to the person who is speaking the free
speech itself.
Issue
Did the statute or the application of the statute to Chaplinskys comments violate his free
speech rights under the First Amendment of the Constitution?
Holding
NO, the statute did not violate the constitutional right of free speech
Reasoning
1. Considering the purpose of the First Amendment of the Constitution, it is obvious that the
right to free speech is not absolute under all circumstances.
2. fighting words, words that inflict injury or tend to excite an immediate breach of the peace
are not entitled to protection.
# 35.Brandenberg v. Ohio (1969)
Fact
1. The Ohio Criminal Syndicalism Act made it illegal to advocate violence as a means of
accomplishing industrial or political reform.
2. The Defendant, a leader in the Ku Klux Klan(KKK), made a speech promoting the taking of
revenge against the government if it did not stop suppressing the white race and was therefore
convicted under the Act.
Issue
Did the Statute, prohibiting public speech that advocated certain violent activities, violate the
Defendants right to free speech under the First and Fourteenth Amendments of the United
States Constitution (Constitution)?
Holding
Yes.
Reasoning
1. The Act properly made it illegal to advocate or teach doctrines of violence, but did not
address the issue of whether such advocacy or teaching would actually incite imminent
lawlessness.
2. The mere abstract teaching of the need or propriety to resort to violence is not the same as
preparing a group for violent action.
3. Because the statute failed to provide for the second part of the test it was overly broad and
thus in violation of the First Amendment of the Constitution
36. Cohen v. California(1971)
Fact
1. The Defendant was convicted under a California law for wearing a jacket that had on it, Fu
the draft outside the municipal courthouse during the Vietnam War.
2. The state court affirmed his conviction holding that offensive conduct means behavior
which has a tendency to provoke others to acts of violence or to in turn disturb the peace.
Issue
Did California's statute, prohibiting the display of offensive messages such as "F- the Draft,"
violate freedom of expression as protected by the First Amendment?
Holding
Yes. Such speech should be protected
the language itself which is offensive doesn't mean that is not allowed.
Reasoning
1. The expletive, while provocative, was not directed toward anyone;
2. besides, there was no evidence that people in substantial numbers would be provoked into
some kind of physical action by the words on his jacket.
Rule:
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To decide whether the speech is not protected, you should focus on
where the incident is happening, the impact, and the circumstance, etc
the language itself which is offensive doesn't mean that is not allowed
8. Freedom of religion
(1st amendment)
Key Point:Free exercise clause, Establishment clause, Lemon, Coercion, and Endorsement
Test
Free Exercise Clause
guarantees individuals free exercise of practicing their religion
government doing something or not doing something in order to ensure their ability to exercise
their religion freely
ENSURING people of the free exercise of religion
Establishment Clause (Separation of Church and State)
Prohibiting the government from doing something, preventing them from siding with a religion
# 37. Church of the Lukumi v. City of Hialeah
(free exercise clause)(Animal sacrifice)
Fact
1. The plaintiffs in Lukumi were members of a church following the Santeria religion.
Santeria, found most often in Cuba, is a religion whose members perform ritual sacrifices of
chickens, pigeons and other animals as part of rites for birth, marriage and death, for cure of
the sick, and at other times. The animal is killed by the cutting of its carotid arteries, and is
usually (but not in all instances) cooked and eaten
2. Florida enacted a series of ordinance that outlawed religious animal sacrifice.
3. The community as a whole disliked the practice of Santeria, and wanted to abolish sacrificial
ritual by Santeria practitioners with the ordinance.
Issue
Whether the ordinance prohibiting the animal sacrifice as a religious ritual is the violation of
free exercise clause.
Holding
Yes, the ordinance was struck down
Reasoning.
the intent of the ordinance was to suppress the ritual portion of the Santeria religion and to
disfavor a particular religious practice.-> not neutral, not generally applicable.
Rule: governmental action that is intended to disfavor a particular religious practice will
almost always violate the Free Exercise Clause
# 38. Engel v. Vitale (1962)
(Establishment clause)(prayer reading)
Fact
State-composed prayer: the in-classroom reading of a state-composed "non denominational" Conference of Christians and Jews)
prayer was there 2. Plaintiff was a graduating student who argued that she shouldn't be required to listen to a
Issue prayer as part of her graduation ceremony.
Is the state-composed prayer in public school the violation of Establishment clause? Issue
Holding on an official ceremony, when a prayer is part of that ceremony, is the prayer the violation of
Yes the Establishment clause?
Reasoning Holding
Even though no child was compelled to recite the prayer, neither this non-compulsory aspect, Yes
nor the non-denominationality, saved the scheme, because it was clearly part of a "religious
program carried on by government." Reasoning
*Coercion test- Kennedy, J
Rule: the official reading of prayers in the public school is to violate the Establishment the state here effectively coerced students into participating in, or at least supporting, prayers.
Clause.
Student has a real choice to attend his high school graduation?
# 39. Abington School District v. Schempp -> Everyone knows that in our society and in our culture high school graduation is one of life's
(Establishment clause)(prayer reading) most significant occasions.
Fact
the lord's prayer, bible reading 10 verses were there in public school P was not required to specifically participate in the prayer-> no coercion.
Issue ->the combination of school supervision and peer pressure effectively required her to stand or
Is a daily classroom ritual of reading from the Bible in public school the violation of at least maintain respectful exercise.
Establishment clause?
Holding Rule: not only in -class room but also outside class room, when an official ceremony or
Yes ritual and the prayer is part of that ceremony, a prayer will be found to be a violation of
Reasoning the Establishment clause.
*two prong test for determining whether governmental action violates the Establishment clause *Endorsement test - O'Connor, J
1. the purpose of the action must be secular, rather than advancing or inhibiting religion Whether a particular government action amounts to an endorsement of religion, thus violating
2. the primary effect of the action must also not be to advance or inhibit religion. the Establishment clause
Here, The bible readings were clearly " religious exercises" and thus failed at least the
"primary effect" prong. Because of this primarily religious effect, it was no defense for the ->A government action is invalid if it creates a perception in the mind of a reasonable observer
state to argue that its purposes were the secular ones of promoting morality, anti-materialism, that the government is either endorsing or disapproving or religion.
tradition and great literature. ->whether the government intends to convey a message of endorsement or disapproval of
religion.
# 40. Lee v. Weisman
(Establishment clause) *Lemon Test from Lemon v. Kurtzman
Fact applied to all Establishment Clause cases
1. Lee involved prayers at public middle school and high school graduation ceremonies. 1) Look at the purpose, what is the purpose of the law, is it secular or not (should be secular);
In one instance, a middle school principal invited a rabbi to deliver a prayer, told him the 2) What is the effect, what is the primary or principle effect and purpose, is it to advance or
prayer should be non-sectarian, and gave him a pamphlet (prepared by the National inhibit religion (shouldnt do either); and

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3) Statute must not foster an unnecessary entanglement of government in the matter of religion. -Lemon was too strict !
Lemon test is too restrictive

# 41.Lynch v. Donnelly (1984)

Fact
Pawtucket put up a Christmas display every year in a public park near the city's shopping
district. The display included several symbols traditionally associated with Christmas, but not
having much, if any, overtly religious significance (e.g. Santa Claus, a reindeer, a Christmas
tree, and a banner reading "Season Greetings") The display also included a creche, or nativity
scene.
Issue
Whether the nativity display violates the lemon test especially when considered "in the context
of the Christmas season"
Holding
the display did not violate the lemon test.
Reasoning
Under the lemon test
1. There was a secular purpose to celebrate the Holiday and to depict the origins of that
Holiday.
2. The primary effect was not to benefit religion in general, or Christianity in particular since
any advancement of religion was "indirect, remote, and incidental" just like exhibition of
religious paintings in a government-owned museum)
3. There was no undue "administrative entanglement" since the city erected and maintained the
display without any contact with religious authorities
-> Therefore, the display passed the lemon test.
Moreover, Justice O'Connor concurred the opinion mentioning Endorsement test.
In order to decide whether the city has endorsed Christianity by its display of the crche, the
Supreme Court needs to look at
1. what the city intended to communicate by the inclusion of the crche and
2. what message was actually conveyed.
Two prongs of Lemon test(purpose and effect) represent these two aspects
Here, purpose was secular. Effect did not advance or inhibit religion.

*How is it different from Lemon Test?

- Endorsement Test is more CASE SPECIFIC
"Reasonable observer reaches FAR MORE informed conclusion"

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