Constitutional Law Outline

Judicial Review
• Marbury v. Madison
1) Issue 1: does Marbury have a right to the commission?
▪ Yes, all the appropriate steps were followed
2) Do the laws afford Marbury a remedy?
3) Can the SC issue this remedy? Is mandamus an appropriate remedy?
▪ Gave SC judicial review
▪ Inherent to the judicial role to decide constitutionality: “it is emphatically the province and duty of the
judicial department to say what the law is.”
▪ Constituional judicial review was not axiomatic or unassailable; it had to be established by the SC and JM
found the ideal occasion.
• Martin v. Hunter's Lessee: Two conflicting claims to certain land within VA
1) articulated the court's authority to review state court judgments.

Federal Legislative Power

Antebellum Federalism I
• McCulloch v. Maryland: whether Maryland could collect a tax from the bank of the United States. JM uses it to
broadly construe Congress's powers and narrowly limit the authority of state governments to impede the federal
government.
1) First question: whether Congress has the authority to create the Bank of the United States
▪ First, historical practice established the power of Congress to create the bank. Marshall invoked the
history of the first Bank as authority for the constitutionality of the 2nd
• This is widely used in constitutional jurisprudence
▪ Second point: refute the argument that states retain ultimate sovereign power beause they ratified the
Constitution.
• It was the people, not the states.
• The court rejected the view that the C should be regarded as a compact of the states and that the states
retain ultimate sovereignty
• Article VII? Does it say differently?
• JM's view has controlled throughout American history
▪ Third point: address the scope of congressional powers under Article I.
• JM admitted that the C does not enumerate a power to create a Bank, but said that this is not
dispositive as to Congress's power to establish it.
• JM's ultimate conclusion is that Congress is not limited only to those acts specified in the C;
Congress may choose any means, not prohibited, to carry out its lawful authority
▪ Fourth point: necessary and proper clause
• this provision makes it clear that Congress may choose any means, not prohibited by the Constitution
to carry out its express authority
◦ other view: n and p clause is a limit on Congress's powers, allowing it to adopt only those laws
which are truly necessary
◦ JM rejects that restrictive interpretation. Necessary here means useful or desirable, because the
Constitution is intended to endure for ages to come, and consequently, to be adapted to the
various crises of human affairs.
◦ This doesn't give Congress limitless authority, however
2) Second question: Did Maryland have the authority to tax the bank?
▪ The power to create the bank includes the power to preserve its existence.
▪ Power to tax is a power to destroy
▪ Also, tax on the US bank is a tax on citizens of other states. A state can't do that, because those other
citizens don't vote in the state.
• Commerce Power: Article I, Section 8
1) Gibbons v Ogden: NY legislature granted a monopoly to Robert Fulton and Robert Livingston for operating
steamboats in NY waters. SC revered NY courts granting them an injunction, concluding that a federal law
allowed competing operators
 ▪ “Commerce undoubtedly is traffic, but it is something more: it is incercourse. It describes the commercial
intercourse between nations, and parts of nations, in all its branches, and is regulated by prescribing rules
for carrying on that intercourse.
▪ Commerce includes all phases of business, including navigation
▪ “Among the states” means concerning more than one state. Murky definition. Requires case-by-case
inquiry as to whether a particular activity has interstate effects.
2) Mayor of the City of NY v. Miln: NY passes a law requiring captains of all out of states to post security for
passengers upon docking. This prevents them from being paupers and depending on the city.
▪ SC skirts the commerce issues and casts it as police power, defers to legislature
3) Cooley v Board of Wardens: PA required either the use of a local pilot or the payment of a fee for bringing a
ship into the port of Philly.
▪ Again, defer to the state police power
4) Privileges and Immunities clause of Article IV, 2: with qualifications, entitles a citizen of state A, who is
present in state B, to the same treatment by state B as B accords its own citizens.
▪ Presumably a state may limit the right to vote to its own citizens

A step back: Constitutional Interpretation outside the Court

Defining the Constitutional Community

Slavery and Secession
• American Indians and the American Political Community
1) Natives were not citizens
2) Cherokee Nation v Georgia: Cherokee Nation declared independence. GA legislature passed Indian laws that
annulled all of the Cherokee laws, usages, and customs, divided their lands into separate counties under state
jurisdiction, and prohibited the Cherokee legislature and courts from meeting. Cherokee nation appealed to
the federal government. It declared itself a “foreign state, not owing allegiance to the United States, nor to any
state of this union” They hoped that Georgia couldn't do anything to them, since treaties were the exclusive
province of the Federal gov't
▪ SC rejected foreign nation and dismissed for lack of jurisdiction
▪ Marshall described Native Americans as “domestic dependent nations”
• Women's Citizenship in the Antebellum Period
• Dred Scott v. Sandford: Declared the Missouri Compromise unconstitutional and broadly held that slaves were
property, not citizens.
1) Slaves could not invoke federal court diversity of citizenship jurisdiction
2) Went further than it had to and declared MC unconstitutional: Congress could not grant citizenship to slaves or
their descendants; this would be a taking of property without due process or just compensation

Reconstruction I
• Fourteenth Amendment: “No State shall make or enforce any law which shall abridge the privileges or immunities
of citizens of the United States.”
1) During the debate, representatives and sentators said that the 14th A privileges and immunities clause was
meant to protect basic rights from state interference.
2) Historical claim that it was meant to apply the BoR is very much disputed.
• Slaughterhouse Cases (p. 320): LA legislature gave a monopoly in the livestock and slaughterhouse business to a
single company. The law required that the company allow any person to slaughter animals in the slaughterhouse
for a fee. Butchers brought suit, arguing that the law violated their right to practice their trade, created involuntary
servitude, deprived them of their property without DP, denied them EP, and abridged their privileges and
immunities as citizens
1) Court said 13th and 14th A means solely to protect former slaves
2) Very narrow interpretation of provisions
3) Never expressly overruled and has precluded the use of P&I to apply the BoR, the clause is a nullity

Reconstruction II
• Bradwell v Illinois: Ill SC refused Bradwell a license to practice law bc she was a woman. She argued that the
rights of the Declaration of Independence was among the P&I protected; among its specific rights was that of
laboring in one's chosen vocation. The SC rejected the claim, noting the limited scope of P&I
• Minor v. Happersett: upheld the constitutionality of excluding women from voting. Court said that denying the
 women the right to vote is permissible because voting is not a “privilege or immunity” of citizenship. Nineteenth
Amendment overruled this decision.
• Strauder v. West Virginia: SC declared unconstitutional a WV law that limited jury service to “white male persons
who are twenty-one years of age and who are citizens of this state”
1) 14th A designed “to ensure the colored race the enjoyment of all the civil rights that under the law are enjoyed
by white persons, and to give to that race the protection of the general government, in that enjoyment,
whenever it should be denied to the states.”
2) Unconstitutional because it expressly singled our and disadvantaged blacks
• Plessy v. Ferguson (p. 359): upheld laws that mandated that blacks and whites use separate, but equal facilities. A
LA law required RR companies to provide accomodations for whites and blacks. Plessy, a man who was 7/8th
white, was arrested for refusing to leave the white car.
1) Enforced separation was not giving blacks “a badge of inferiority”
2) Harlan's lone dissent: the purpose was obviously to exclude colored people, not hurt white people.

State Action and Incorporation

• Constitution's protection of individual liberties and its requirement for equal protection apply only to the
government.
• Civil Rights Cases: Declared CRA of 1875 (providing that all persons are entitled to the full and equal enjoyment
of accommodations, advantages, facilities, and privileges of inns, public conveyances on land or water, theaters,
and other places of public amusement) unconstitutional
1) Private action governed by state law and not the C.
2) Congress could not regulate private conduct but, rather, could only legislate against wrongs by state
governments.
3) Congress could not adopt the law pursuant to its authority under Section 2 of the 13th A.
4) Central holding: that the 14th A applies only to government action, not to private conduct remains the law.
• When does the Constitution Apply to Private Actions?
1) Situations where private conduct has to comply with the C
▪ public functions exception: private conduct must comply with the C if it involves a task that has been
traditionally exclusively done by the government
▪ entanglement exception: the principle that the C applies if the government affirmatively authorizes,
encourages, or facilitates unconstitutional conduct.
2) Statutes can apply constitutional normals to private conduct. Government can enact laws that require that
private conduct meet the same standards that the Constitution requires of the government.
▪ Example: constitutional requirement for EP applies just to the government. Congress has enacted laws,
such as the CRA of 1964, that prohibit private discrimination by private employers and by places of public
accommodation.
• Why have a State Action Requirement?
▪ Private actions can infringe or trample even the most basic rights
▪ Private wrongs can be as bad as government wrongs
1) Textual Explanation
2) Historical Explanation
▪ at the time the Constitution was written, it was thought that the common law tended to protect individuals
from private wrongs
3) Policy Justifications
▪ private autonomy
• however, SAD also sacrifices individual freedom because it permits the violation of rights
• Some scholars have advocated that the Court should engage in explicit balancing of competing claims
of freedom.
▪ Enhances federalism by preserving a zone of state sovereignty.
• States structure the legal relationships of private citizens
• However, in the century since the Civil Rights Cases, the federal government has come to regulate
private legal relationships in a vast array of circumstances. More importantly, it should be questioned
whether federalism justifies allowing infringements of basic rights. If states are not adequately
protecting those rights from private interference, does concern for state sovereignty justify allowing
the violation to go unremedied?
• Shelley v. Kraemer: Whether courts could enforce contracts whereby members of a neighborhood agreed not to sell
property to blacks. SC held that courts cannot enforce racially restrictive covenants.
 1) The actions of courts counts as state action
2) Shelly remains controversial because ultimately everything can be made state action under it. If any decision
by a state court represents state action, then ultimately all private actions must comply with t he C.
3) Corut has never taken it this far, nor has it articulated any clear limiting principles. The court has rarely
applied Shelley as a basis for finding state action
• Burton v. Wilmington Parking Authority: Wilimington, DE operated a parking authority that leased space to a
private restaurant that denied a person because he was black. Government licensing and regulation here deemed
sufficient for state action
1) “symbiotic relationship” between the restaurant and the gov't
2) parking facility used by the restaurant's customers
3) public funds paid for the building
4) All corporations are chartered by a state government.
5) However, in most situations the SC has found that government licensing or regulation is not sufficient to create
state action
• Discussion of white primary cases

Defining the Borders of our Constitutional Community

• Downes v. Bidwell: Downes challenged duties of oranges imported from PR. Article I, Section 8 provided that
duties across the US should be the same
1) Does the Constitution follow the flag?
▪ Not necessarily. Basic rights protected, but Congress can make laws regarding revenue and such.
▪ Has to be incorporated
• Chae Chan Ping v. United States: CCP lived in San Francisco for a few years, returned to China for a visit. On his
return, the port refused the permit he had allowing him to return, because while he was gone Congress passed
Chinese Exclusion Act of 1882
1) SC deferred to the government.
2) Government handed out the licenses, it's revocable at its pleasure
3) CCP should ask his government to negotiate with US government.
4) Congress has treaty powers
• Reynolds v. United States: Polygamy case. Upheld the constitutionality of a law forbidding polygamy even though
Mormons claimed that it was required by their religion.
1) Law prohibiting polygamy was older than the U.S: historical argument
2) Marriage is a civil contract, and usually regulated by law

Federal Legislative Power in the Twentieth Century

Commerce Clause and Substantial Due Process I: Lochner Era

• Commerce clause and Dual Federalism:
1) between the late 19th century and 1937, SC espoused a philosophy termed “dual federalism.” Federal and
State govts ere seperate sovereigns, that each had seperate zones of authority, and it is the judicial role to
protect the states by interpreting and enforcing the C to protect the zone of activities reserved to the states
▪ First, the court narrowly defined the meaning of commerce so as to leave a zone of power to the states.
The court held that commerce was one stage of business, distinct from earlier phases such as mining,
manufacturing, or production. Only commerce itself could be regulated by Congress
▪ Second, the Court restrictively defined “among the states” as allowing Congress to regulate only when
there was a substantial effect on interstate commerce.
▪ Finally, SC held that the 10th A reserved a zone of activities to the states and that even federal laws within
within the scope of the commerce clause were unconstitutional if they invaded that zone.
• Hammer v Dagenhart (p. 441): A federal law prohibited the shipment in interstate commerce of goods
produced in factories that used child labor. The court declared it unconstitutional because it
controlled production
◦ “the grant of power to Congress over the subject of interstate commerce was to enable it to
regulate such commerce, and not to give it authority to control the states in their exercise of the
police power over local trade and manufacture.”
◦ Child labor issues purely a state's sphere of authority
◦ Court expressly rejected the argument that federal legislation was necessary to prevent unfair
competition; states that wanted to outlaw child labor would find it difficult to do so as long as
 other states allowed child labor.
◦ The court foresaw a slippery slope, where “all freedom of commerce will be at an end, and the
power of the States over local matters may be eliminated, and thus our system of government be
practically destroyed”
• Champion v Ames (the lottery case) p. 437: Upheld a federal law prohibiting the interestate shipment
of lottery tickets.
◦ The Court made it clear that the power to regulate interstate commerce includes the ability to
prohibit items from being in interstate commerce.
◦ It also didn't foresee the abuse of such a power. How to reconcile?
▪ Perhaps conservative court much more willing to defer to morals laws than to economic
regulations
▪ Or perhaps bc in child labor case, it wasn't banning the type of product, just when it's made
by child labor
• Due Process Clause
1) Lochner v. New York (p. 417), 1905: SC declared unconstitutional a New York law that set the maximum
hours that bakers could work. NY law provided that no employee shall “work in a biscuit, bread, or cake
bakery or confectionary establishment more than sixty hours in any one week, or more than ten hours in any
one day.”
▪ Unconstitutional as violating DP clause of the 14th A because it interfered with freedom of contract and
because it did not serve a valid police purpose.
▪ Three major principles that were followed until 1937 (“Lochner Era”)
• Freedom of contract is a basic right protected as liberty and property rights under DP clause of 14th A
• The government could interfere with freedom of contract only to serve a valid police purpose: protect
public safety, public health, or public morals.
• Judicial role to carefully scrutinize legislation interfering with freedom of contract to make sure that it
served a police purpose
▪ Court in Lochner rejected the police powers: “[the bakers] are in no sense wards of the state”
▪ No relationship to public health
▪ Harlan dissent: should defer to legislature; this was a reasonable way to protect the health of bakers who
suffered serious medical problems because of exposure to flour dust and intense heat. He quoted studies
about the health of bakers
2) Muller v Oregon (online supplement), 1908: SC upheld a maximum hours law for women.
▪ There was “widespread belief that women's physical structure, and the functions she performs in
consequence thereof, justify special legislation restricting or qualifying the conditions under which she
should be permitted to toil.”
▪ maternal functions
• Nineteenth Amendment and Adkins v. Children's Hospital
1) 19th Amendment: Passed in 1920, prohibited discrimination in voting on the basis of sex
2) Adkins v. Children's Hospital: Involved a DC law requiring that women (but not men) receive a minimum
wage.
▪ SC ruled it unconstitutional.
▪ “While the physical differences recognized in appropriate cases...women of mature age...may not be
subjected to restrictions upon their liberty of contract which could not lawfully be imposed in the case of
men under similar circumstances

Commerce Clause and Substantial Due Process II: New Deal Era
• Changes in doctrine (DP Clause)
1) Depression made laissez-faire economics seem untenable
2) FDR's courtpacking plan
▪ Justice Owen Robert's “switch in time that saved nine”
• NLRB v. Jones & Laughlin Steel Corp. (p. 549): Involved a constitutional challenge to the National Labor
Relations Act, which created a right of employees to bargain collectively, prohibited unfair labor practices such as
discrimination against union members, and established the NLRB to enforce labor laws. The Act applied when
there was an effect on commerce and it expressly defined “affecting commerce” as meaning “in commerce, or
burdening or obstructing commerce or the free flow of commerce, or having led or tending to lead to a labor
dispute burdening or obstructing commerce or the free flow of commerce.”
 1) The court explained how the company was clearly a part of interstate commerce: it had factories, plants, and
mines across the country and steamships operating on the Great Lakes.
2) The court flatly declared that “the fact that the employees...were engaged in production is not determinative.”
3) Spoke broadly of Congress's commerce power: “the fundamental principle is that the power to regulate
commerce is the power to enact 'all appropriate legislation' for its 'protection and advancement,' 'to adopt
measures' to 'promote its growth and insure its safety,' 'to foster, protect, control and restain.' That power is
plenary and may be exerted to protect interstate commerce no matter what the sources of the dangers which
threaten it”
4) NLRB v. Friedman-Harry Marks Clothing Co. (decided same day): upheld the NLRA as applied to a small
Virginia clothing manufacturer, most of whose materials came from, and most of whose finished products
were marketed in, other states.”
• United States v. Darby (p. 551): involved a challenge to the constitutionality of the Fair Labor Standards Act of
1938, which prohibited the shipment in interstate commerce of goods made by employees who were paid less than
the proscribed minimum wage.
1) The Court rejected the view that production was left entirely to state regulation. Congress may control
production by regulating shipments in interstate commerce
2) Overruled Hammer v. Dagenhart and emphatically rejected the view that the 10th A limits Congress's powers. A
law is constitutional so long as it is within the scope of Congress's power. The 10th would not be used by the
judiciary as a basis for invalidating federal laws.
• Wickard v. Fillburn: Farmer Filburn owned a small dairy farm in Ohio and grew wheat primarily for home
consumption and to feed his livestock. He grew more than his allotted amount. He claimed that the law could not
be applied to him because the wheat that he grew for home consumption was not a part of interstate commerce
1) Court overruled the distinctions between commerce and production, and between direct and indirect effects on
commerce that were followed in earlier eras.
2) Court upheld the application of the Act to homegrown wheat because even though Filburn's what only had a
negligible impact on interstate commerce, cumulatively, home grown wheat had a huge effect.
• DP Clause
1) West Coast Hotel v. Parrish (p. 511): SC upheld a state law that required a minimum wage for women
employees and expressly overruled Adkins.
▪ “What is this freedom of contract? The Constitution does nto speak of freedom of contract. It speaks of
liberty and prohibits the deprivation of liberty without due process of law...Regulation which is reasonable
in relation to its subject and is adopted in the interests of the community is due process.”
▪ Court was emphatic that the gov't was not limited to regulating only to advance the public safety, health,
or morals.
2) Home Building & Loan Association v. Blaisdell: Minnesota Law that created a moratorium on foreclosure of
mortgages. It was exactly the kind of debtor relief legislation that the contracts clause was meant to forbid. SC
upheld the law
▪ Emergency measure of limited duration to 'protect the vital interests of the community.”
▪ This case reaffirms that the government can interfere with existing contracts if it has a valid police
purpose, and it describes the police power broadly enough to include debtor relief, protectiong people
from foreclosure of their mortgages as a valid governmental objective.
▪ Since Blaisdeel, there has been only two cases where a state law has been found to violate the contracts
clause.
Commerce Clause and Economic Due Process: Second Reconstruction to the Rehnquist Revolution
• Between 1937 until 1995, not one federal law was declared unconstitutional as exceeding the scope of Congress's
commerce power.
• Basically, Congress could regulate any activity if there was a substantial effect on interstate commerce (under
Wickard, the requirement was that the activity, cumulatively across the country, has a substantial effect on
commerce)
• Civil Rights Laws: Congress chose the commerce clause to pass some CR laws, because it was unclear whether
they could use the 14th A (because the Court had held that Congress could not regulate private behavior)
1) Heart of Atlanta Motel Inc. v. U.S. (p. 560): The Court upheld the constitutionality of Title II of the Civil
Rights Act, which prohibited discrimination by places of public accommodation. The hotel had about 75% of
its guests from out of state.
▪ In evaluating the law and its application, the only questions are 1) whether Congress had a rational basis
for finding that racial discrimination by motels affected commerce and 2) if it had such a basis, whether
the means it selected to eliminate that evil are reasonable and appropriate.
 ▪ Did not matter whether Congress's motive was moral (think Lottery case)
2) Katzenberg v. McClung (p. 560): Court upheld the same act above to a small business. Forty percent of the
meta that the restaurant purchased annually acme from out of state.
▪ The court found that Congress rationally concluded that discrimination by restaurants cumulatively had an
impact on interstate commerce.
▪ Court said the power of Congress under the commerce clause is broad and sweeping
• Economic DP
1) United States v. Carolene Products Co. (p. 513): Upheld the Filled Milk Act of 1923 which prohibited “filled
milk,” a substance obtained by mixing milk and vegetable oil.
▪ Economic regulations should be upheld as long as they are supported by a conceivable rational basis, even
if it cannot be proved that that was the legislature's actual intent
▪ “The existence of facts supporting the legislative judgment is to be presumed”
▪ Footnote: Court articulated a double standard of review
• Generally, the Court would defer to the government and uphold laws so long as they were reasonable
• This deference would not exceed to laws interfering with fundamental rights or discriminating against
discrete and insular minorities.
◦ Then there would be a “more searching judicial inquiry”
2) Williamson v. Lee Optical (p. 520): SC upheld an Oklahoma statute that prohibited an optician to fit or
duplicate lenses without a prescription from an optometrist or an ophthalmologist.
▪ SC overruled the district court's finding that there was not a rational basis
▪ In all likelihood, the law was adopted to protect business for optometrists and ophthalmologists, btu this
case shows that so long as the Court can conceive of some legitimate purpose and so long as the law is
reasonable, a law will be upheld.

Legislative Power Limited I: Rehnquist Revolution

• United States v. Lopez: Lopez, a senior in high school, was arrested for carrying a concealed handgun and five
bullets. He was charged with violating the Gun Free School Zones Act of 1990, which made it a federal offense
“for any individual knowingly to possess a firearm at a place that the individual knows, or has a reasonable to caue
to believe, is a school zone.” Lopez appealed on the ground that it was an unconstitutional exercise of commerce
power.
1) Rehnquist concluded that the law was unconstitutional because it was not substantially related to interstate
commerce
2) Three types of activities that Congress can regulate under the commerce clause
▪ The channels of interstate commerce (citing Heart of Atlanta)
▪ Regulate and protect the instrumentality of interstate commerce (railroads)
▪ Regulate those activities having a substantial relation to interstate commerce. CJ R said that the prior case
law was uncertain as to whether an activity must “affect” or “substantially affect” interstate commerce. He
decided that the more restrictive interpretation of congressional power is preferably.
3) Rehnquist noted that nothing in the Act limited its application to instances where there was proof that the gun
had been part of interstate commerce
4) Rejected the federal govt's claim that regulation was justified under the commerce clause because possession
of the gun near a school may result in violent crime that can adversely affect the economy.
5) Breyer dissent: Majority abandoning 60 years of precedent. Should keep “rational basis” analysis
• U.S. v. Morrison: whether the civil damages provision of the federal Violence Against Women Act is constitutional.
Authorized victims of gender-motivated violence to sue for money damages. Congress found detailed inadequcies
of state laws protecting women. Gender-motivated violence costs the American economy billions of dollars a year
and is a substantial constraint on freedom of travel by women throughout the country.
1) Congress could neither implement this under commerce clause or section 5 of 14th A.
2) Reaffirmed Lopez 3 part test
3) Rejected that the law had to do with part 3. Rehnquist emphasized that this was noneconomic activity that has
traditionally been dealt with by state laws.
• Gonzales v. Raich (p. 624), 2005: Held that Congress constitutionally may use its power to regulate commerce
among the states to prohibit the cultivation and possession of small amounts of marijuana for medicinal purposes.
1) Stevens (Majority) relied on Wickard v. Filburn.
2) How to reconcile? This case stands for the proposition that intrastate production of a commodity sold in
interstate commerce is economic activity and thus substantial effect can be based on cumulative impact.
• Spending Power
 1) The court has held that Congress has broad power to spend funds to advance “the general welfare”
2) South Dakota v. Dole: Federal law sought to create a 21-year-old drinking age by withholding a portion of
federal highway funds from any state gov't that failed to impose such an age. Specifically, 5% of funds would
be denied. The court approved this condition
▪ Court emphasized that the condition imposed by Congress was directly related to one of the main
purposes behind federal highway money: creating safe interstate traevl
▪ Court recognized that at some point Congress might be so coercive as to pass the point at which pressure
turns into compulsion, but in this case it was a “relatively mild encouragement”

Legislative Power Limited II

• So Darby overruled Dagenhart and found that the 10th A is a truism. Congress has broad powers under the
commerce clause. During this era, the Court expressly rejected the view that the 10th A is an independent limit on
the legislative power and instead viewed it simply as a reminder that Congress may legislate only if there is
authority in the C.
• Key exceptions to Darby before Garcia
1) Nat'l League of Cities v Usery: Struck down Fair Labor Standards Act. The court found that requiring satates
to pay their employees the minimum wage violated the 10th A because that would require state/local gov't to
raise taxes or cut other services. This interfered with traditional state and local government functions.
• Garcia v. San Antonio MTA: Expressly overruled National League of Cities.
1) The Usery approach was unworkable: “Any rule of state immunity that looks to the 'traditional,' 'integral,' or
necessary nature of governmental functions inevitably invites an unelected federal judiciary to make decisions
about which state policies it favors and which ones it dislikes.”
2) Protection of state prerogatives shuld be through the judicial process and not from the judiciary.
3) Three dissenting opinions.
• Resurrection of 10th A
• New York v. United States: Invalidated the Low-Level Radioactive Waste Policy Amendments Act. The Act
provided monetary incentives for states to comply with the law and allowed states to impose a surcharge on
radioactive wastes received from other states. Additionally, and most controversially, to ensure effective state
government action, the law provided that states would “take title” to any wastes within their borders that were not
properly disposed of by January 1, 1996, and then would “be liable for all damages directly or indirectly incurred.”
1) Congress could regulate the disposal of radioactive wastes using commerce clause
2) “Take title” provision was unconstitutional becaue it gave state governments the choice between “either
acecpting ownwership of the waste or regulating according to the instructions of Congress”
▪ impermissible to impose either option
▪ would “commandeer” state governments to force them to take the waste
▪ requiring compliance with regulatory statutes would impose on states a requirement to implement federal
legislation
▪ Also, would undermine government accountability because Congress makes the decision, but the states
would take the political heat
3) Central holding: it is unconstitutional for Congress to compel state legislatures to adopt laws or state agencies
to adopt regulations.
• What can Congress do?
1) Offer funds, under its spending power (SD v. Dole)
2) Cooperative federalism: Offer states the choice of regulating that activity or let a federal agency regulate
3) Congress may set standards that state and local governments must meet and PREEMPT state and local actions.
• Printz v. U.S: Whether the Brady Handgun Violence Prevention Act violated the Tenth A in requiring that state and
local law enforcement officers conduct background checks on prospective handgun purchasers. SC found the
provision unconstitutional
1) impermissably commandeering state executive officials in implementing a federal mandate
2) Scalia's majority also said it gviolates seperation of powers: Congress impermissibly had given the executive
authority to implement the law to state and local law enforcement personnel.
3) The dissent (Stevens, Souter, Ginsburg, Breyer) disagreed with the premise of New York and Printz and
declared: “When Congress exercises the powers delegated to it by the C, it may impose affirmative obligations
on executive and judicial officers of state and local governments as well as ordinary citizens. This conclusion
is firmly supported by the text, the early history of the Nation, decisions o fthis court, and a correct
understanding of the basic nature of the Federal Government.”
• Bond v. U.S (not in casebook, recent SC decision mentioned in class): Bond tries to poison her friend, gets charged
 with chemical weapons statute (federal crime)
1) Issue: whether an individual (not a state) can challenge a federal law on 10th A grounds.
• Dormant Commerce Clause
1) Developed by the Court to restrain states from enforcing laws that burdened interstate commerce
2) SC has inferred this from the grant of power to Congress in Art. I, Section 8 to regulate commerce among the
states
3) Balancing test from Pike v. Bruce Church Inc: Where the statute regulates evenhandedly with a legitimate
local public interest, and its effects on interstate commerce are only incidental, it will be upheld unless the
burden imposed in such commerce is clearly excessive in relation to the putatitve local benefits. If a legitimate
locak purpose is found, then the question becomes one of degree. And the extent of the burden that will be
tolerated will of course depend on the nature of the local interest involved, and on whether it could be
promoted as well with a lesser impact on interstate activities.”
▪ Hughes v. Oklahoma:
• 1) whether the challenged statute regulates even-handedly with only “incidental” efects on interstate
commerce, or instead discriminates against interstate commerce either on its face or in practical
effect;
• 2)whether the statute serves a legitimate local purpose; and if so
• 3) whether alternative means could promote this local purpose as effectively without discriminating
against interstate commerce
4) Facially discriminatory laws: where state law overtly discriminates against out-of-state economic interests in a
fashion akin to a tariff, quota, or outright embargo, SC has routinely abandoned the balancing approach in
favor of a “virtually per se rule of invalidity.”
5) Market Participant Exception: provides that a state may favor its own citizens in dealing with government-
owned business and in receiving benefits from government programs. If the state is literally a participant in
the market, such as with a state-owned business, and not a regulator, the dormant commerce clause does not
apply.
6) General theories of dormant commerce
▪ free trade
▪ protecting national unity
▪ process-based justification

Separation of Powers

Presidential Powers in Times of War

• Article I grants Congress the power to declare war and the authority to raise and support the army and navy
• Article II makes the President the commander-in-chief
• The SC rarely has spoken as to the constitutionality of using troops in a war or war-like circumstances without
congressional approval
• Youngstown Sheet & Tube Co. v. Sawyer: United Steelworkers Union announced a planned nationwide strike as a
result of a labor-management dispute. Truman issued an executive order which directed the secretary of commerce
to take possession of the steel mills and to keep them running, because steel was important to the war effort in
Korea. Congress took no action
1) 6-3 margin, this was unconstitutional
2) produced 7 opinions
3) four different approaches
▪ There is no inherent presidential power; the president may act only if there is express constitutional or
statutory authority
• Premised on tbe belief that inherent authority is inconsistent with a written Constitution establishing a
government of limited powers.
▪ The president has inherent authority unless the president interferes with the functioning of another branch
of government or usurps the powers of another branch
• Premised on the belief that there is a need for the president to exercise powers not specifically
enumerated in the C or not expressly granted by Congress. For example, the C makes no mention of
a presidential power to recognize foreign governments or to remove presidential appointees from
office, nor has Congress ever granted such powers in a statute. Yet, it is conceded that the president
has these powers.
▪ The president may exercise powers not mentioned in the Constitution so long as the president does not
 violate a statute or the Constitution.
• Jackson: three zones of presidential authority.
◦ When he acts with express or implied authorization of Congress, his authority is at its maximum,
for it includes all that he possesses in his own right plus all that Congress can delegate. Under
such circumstances, the president's acts are presumptively valid
◦ When the president acts in absence of either a congressional grant or denial, he can only rely
upon his own independent powers, but there is a zone of twilight in which he and Congress may
have concurrent authority, or in which its distribution is uncertain. Constitutionality is likely to
depend on the imperatives of events and contemporary imponderables rather than on abstract
theories of law
◦ When the President takes measures incompatible with the expressed or implied will of Congress,
such presidential actions will be allowed only if the law enacted by Congress is unconstitutional.
• Analysis of presidential powers often start with Jackson's test.
▪ The president has inherent powers that may not be restricted by Congress and may act unless the
Constitution is violated.
• Dissent invokes President Teddy Roosevelt's “Stewardship theory” of presidential power, stating that
the executive as subject only to the people, and, under the Constitution, bound to serve the people
affirmatively in cases where the Constitution does not explicitly forbid him to render the service
• U.S. v. Curtiss Wright (supplement): involved a congressional authorization permitting the president
to restrict arms sales to two warring Latin American nations.
◦ Recognized two different spheres: domestic and foreign
◦ “The broad statement that the federal government can exercise no powers except those
specifically enumerated in the constitution is categorically true only in respect of our internal
affairs.”
▪ Dames and Moore v Regan:Shortly before leaving office, Carter negotiated an agreement with Iran
whereby that country would free American hostages being held in Tehran in exchange for the U.S lifting a
freeze on Iranian assets in the U.S. This agreement was challenged by Dames and Moore, which had filed
a lawsuit in federal district court against Iran for breach of contract for almost 3.5 million.
• Series of federal statutes authorized the president's actions, therefore it is “supported by the strongest
of presumptions and the widest latitude of judicial interpretation, and the burden of persuasion would
rest heavily upon any who might attack it.”
▪ No SC case definitively makes on of these approaches correct. Ultimately, the choice must be based on a
decision about the appropriate scope of presidential power and how best to check the president.
• War on Terrorism
1) Hamdi v. Rumsfeld (p. 841): Hamdi is an American citizen who was captured in Afghanistan and brought to
Guantanamo Bay. He was held as an enemy combatant and never charged with any crime. Hamdi contended
that this violated the Non-Detention Act which states that “no citizen shall be imprisoned or otherwise
detained by the United States except pursuant to an Act of Congress.”
▪ First, does the federal government have the authority to hold an American citizen apprehended in a
foreign country as an enemy combatant?
• Yes (5-4). Authorized pursuant to an Act of Congress: the Authorization for Military Force passed
after 9/11. This was enough to meet the requirements of the Non-Detention Act.
• Dissent: No authority to hold an American citizen in the United States as an enemy combatant
without charges or trial, unless Congress expressly suspends the writ of habeas corpus.
▪ What, if any process must be accorded to Hamdi?
• Must be accorded due process. He is entitled to have his habeas petition heard in federal court and
that imprisoning a person is obviously the most basic form of deprivation of liberty.
• Meaningful factual hearing
2) Boumediene v. Bush (Supplement): about a writ of habeas corpus suspension. Boumediene was a citizen of
Bosnia. SC held that all citizens had a right to habeas. The Court applied the Insular Cases, by the fact that
the United States, by virtue of its complete jurisdiction and control, maintains "de facto" sovereignty over this
territory, while Cuba retained ultimate sovereignty over the territory, to hold that the aliens detained as enemy
combatants on that territory were entitled to the writ of habeas corpus protected in Article I, Section 9 of the
U.S. Constitution. The lower court expressly indicated that no constitutional rights (not merely the right to
habeas) extend to the Guantanamo detainees rejecting petitioners' arguments. This Court's case precedent
recognized that fundamental rights afforded by the Constitution extend to Guantanamo
▪ If Congress intends to suspend the right, an adequate substitute must offer the prisoner a meaningful
 opportunity to demonstrate he is held pursuant to an erroneous application or interpretation of relevant
law, and the reviewing decision-making must have some ability to correct errors, to assess the sufficiency
of the government's evidence, and to consider relevant exculpating evidence.
▪ Prisoners are not required to exhaust all their claims before seeking habeas

The Rights of Minority Groups

Defining Equality: Equal Protection under the Fourteenth Amendment

The End of “Separate but Equal”

• Brown v Board of Education (p. 898): Does segregation of children in public schools solely on the basis of race,
even though the physical facilities and other tangible factors may be equal, deprive the children of the minority
group of equal educational opportunities?
1) State-mandated segregation inherently stamps black children as inferior and impairs their educational
opportunities
2) “To separate them from others of similar age and qualifications solely because of their race generates a feeling
of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever
to be undone”
3) “We conclude that in the field of public education the doctrine of 'separate but equal' has no place. Separate
educational facilities are inherently unequal.”
• Brown II: Remanded the cases to the lower courts to use traditional equity principles to fashion remedies “to admit
to public schools on a racially nondiscriminatory basis with all deliberate speed the parties to these cases.”
• Bolling v Sharps: Concerned the segregation of the DC schools
1) Equal Protection applies to the federal government through the due process clause of the Fifth Amendment.
2) It is now well settled that the requirements of equal protection are the same whether the challenge is to the
federal government under the Fifth Amendment or to state and local actions under the Fourteenth Amendment.
• Cooper v. Aaron: Arkansas government tried to disobey the court
1) The Court invoked Marbury v. Madison to respond to the state's claim that it did not have to comply with the
SC
• Green v. County School Board: The SC declared unconstitutional a “freedom of choice plan.” Rural Virginia
school system adopted a desegregation plan where students could choose which (of 2) schools to attend.
1) School boards have “the affirmative duty to take whatever steps might be necessary to convert to a unitary
system in which racial discrimination would be eliminated root and branch.”
• Swann v Charlotte-Mecklenburg Board of Education: Court approved broad equitable discretion for federal district
courts in fashioning school desegregation remedies. The district court ordered a new plan that redrew school
districts to improve balance. Plan included busing.
1) Courts had broad and flexible powers to remedy segregation and its effects, when local authority default.
2) Four important remedial features
▪ Upheld the limited use of racial goals: every school doesn't have to reflect the community, no strict quotas
▪ Could have a small number of one-race schools
▪ Once a constitutional violation was shown, the district court possessed the power to order pupil
reassignments on the basis of race
▪ Approved the use of busing as a judicial remedy
• Keyes v. School District No. 1, Denver, Colorado: Northern school not segregated by statutes. Plaintiffs claimed
that the schools were de jure segregated as the result of the school board's race-conscious manipulation of
attendance zones and selection of school sites.
1) Absent laws requiring segregation, plaintiffs must prove intentional segregation acts affecting a substantial
portion of the school system.
2) Such proof shifts the burden to the school system to show that it was not the result of intentional segregatoin.
• Miliken v. Bradley: SC imposed a substantial limit on the courts' remedial powers in desegregation cases. This
involved interdistrict transfers (intercity black, suburb white).
1) Where there is no interdistrict violation and interdistrict effect, can't be an interdistrict remedy.
2) Miliken can be defended based on the traditional principle that a court has authority to impose a remedy only
after it is proved that a person or entity violated the law
▪ However, critics argue that the segregated pattern in major metropolitan areas are not accident, caused by
government policies
• Missouri v. Jenkins: In 1995, SC ordered an end to a school desegregation order for the Kansas City schools. The
district court had ordered upgrades to schools and the creation of several magnet schools to attract white kids.
 1) First, the district court's order that attempted to attract nonminority students from outside the district was
impermissible because there was no proof of an interdistrict violation (Miliken)
2) District court lacked authority to order an increase in teacher salaries. This was not a necessary remedy
3) Continued disparity in student test scores did not justify continuance of the federal court's desegregation order.

Suspect Classifications I: Race and Strict Scrutiny

• Strict Scrutiny: All racial classifications, whether disadvantaging or helping minorities. Government must show an
extremely important reason for its action AND it must demonstrate that the goal cannot be achieved through any
less discriminatory alternative. Requires narrowly tailored and least restrictive means to further government
interest
1) Facially discrimninatory law—SS
2) Facially neutral law administered in a race-dependent manner—SS
3) Facially neutral law passed with discriminatory purpose—SS
4) Facially neutral law passed w/e discriminatory intent (not because of racially discriminatory effect)--rational
basis
• Korematsu v. United States: SC upheld the constitutionality of the evacuation of Japanese-Americans. The court
accepted the government's claim that there was a serious risk to national security and there was no way to screen
them.
• Mclaughlin v. Florida: SC declared unconstitutional a Florida law that prohibited the habitual occupation of a room
at night by unmarried interracial couples.
• Loving v. Virginia: Unconstitutional a state's miscegenation statute that made it a crime for a white person to marry
outside the Caucasian race.
1) Expressly repudiated the state's argument that the law was permissible because it burdened both whites and
minorities.
• Johnson v. California: SC held that strict scrutiny must be used in evaluating the routine racial segregation of
prisoners. When a male prisoner entiers a new institution, he is placed in a reception center for up to 60 days.
During this time, the prisoner is evaluated for purposes of determining the inmate's placement within the
institution. Race is very much taken into account. Prison officials argued that such racial segregation was
necessary to prevent gang violence.
1) Court rejected separate but equal
2) Stressed that all racial classifications must meet strict scrutiny, and will be upheld only if the government can
prove that its action is necessary to achieve a compelling purpose.
3) Court remanded the case for strict scrutiny
• Palmore v. Sidoti : A (white) mother married a black man. The state court had concluded that the child's best
interests would be served by awarding custody to the father because the child might be taunted and stigmatized for
living in a biracial household. SC unanimously declared this unconstitutional
1) “The Constitution cannot control such prejudices but neither can it tolerate them. Private biases may be
outside the reach of the law, but the law cannot, directly or indirectly, give them effect.”
• Morales v. Daley: Plaintiff objected that asking about their racial and ethnic identities on the Census violated their
right to equal protection and enabled the government to make race-based decisions. The government defended on
the grounds that it was “needed to assess racial disparities in health and environmental risks,” was “required by
states to meet legislative redistricting requirements by knowing the racial makeup of the voting age population”
and was “required to enforce provisions under the Civil Rights Act which prohibits discrimination based upon race,
sex, religion and national origin”
1) District court rejected plaintiff's arguments
2) “Plaintiffs' position is based upon a misunderstanding of the distinction between collecting demographic data
so that the government may have the information it believes at a given time it needs in order to govern, and
governmental use of suspect classifications without a compelling interest...the issue is whether requiring a
person to self-classify racially or ethnically...can violate the DP implications of the fifth Amendment. This
court holds that such self-classifications do not.”

Disparate Impact
• What is a “race-dependent” decision?
1) Discriminatory Administration of an otherwise “Neutral” statute ---Strict Scrutiny
▪ Yick Wo v. Hopkins: San Francisco Board of Supervisors, which had authority to issue permits to operate
laundries in wooden buildings, had granted permits to none of 200 Chinese applicants and to all but one of
about 80 Caucasian applicants. The court reversed petitioner's convictions for operating laundries withuot
permits.
 • Court noted that the Chinese had followed every requisite necessary
• Courts have frequently relied on statistical evidence
2) The Race-Dependent decision to adopt a nonracially specific regulation or law.
▪ Ho Ah Kow v. Nunan: San Fran ordinance required that every male imprisoned in the county jail have his
hair “cut or clipped to a uniform length of one inch from the scalp thereof.” SC declared this
unconstitutional
▪ Gomillion v. Lightfoot: Alabama legislature changed the boundaries of the city of Tuskegee from a square
to what Justice Frankfurter described as “an uncouth twenty-eight-sided figure,” the effect was to remove
all but a handful of black voters, but not a single white voter, from the city limits. Court struck down this
law
3) Transferred de jure discrimination
▪ Gaston County v United States: Whether the Voting Rights Act of 1965, which prohibits a state or local
government from using a test “for the purpose or with the effect of denying or abridging the right to vote
on account of race or color” permitted the county to use a voting literacy test that disproportionately
disfranchised blacks.
• The court accepted that the tests were conducted in a fair and impartial manner, but noted that blacks
who are now eligible to vote had been educated in the country’s segregated and inferior schools.
• When is a Decision with Disproportionate Racial Impact a Decision “Based on Race?”
1) Griggs v. Duke power Co.: Construed Title VII of the Civil Rights Act of 1964 to prohibit an employer from
requiring high school diplomas of job applicants and subjecting them to a general intelligence test, where the
effect was to disadvantage black applicants and where the criteria had not been demonstrated to predict job
performance.”
▪ The objective of Congress in enacting Title VII was to achieve equal employment opportunities and
remove past barriers. Under the Act, practices, procedures, or tests neutral on their face, and even neutral
in terms of intent, cannot be maintained if they operate to “freeze” the status quo of prior discriminatory
employment practices.
▪ “good intent or absence of discriminatory intent does not redeem employment procedures or testing
mechanisms that operate as “built in headwinds” for minority groups and are unrelated to measuring job
capability”
2) Washington v. Davis: Applicants for the police force in Washington, D.C were required to take a test, and
statistics revealed that blacks failed the examination much more often than whites. The Supreme Court,
however, held that proof of a discriminatory impact is insufficient, by itself, to show the existence of a racial
classification.
▪ Discriminatory impact, standing alone, does not trigger the rule that racial classifications are to be
subjected to the strictest scrutiny and are justifiable only by the weightiest of considerations.
▪ Laws that are facially neutral as to race and national origin will receive more than rational basis review
only if there is proof of a discriminatory purpose.
• How is a discriminatory purpose proven?
1) Arlington Heights v. Metropolitan Housing Development Corp: Involved a challenge to a city's refusal to
rezone a parcel of land to allow construction of low and moderate income housing. The plaintiffs allged that
this had a discriminatory effect in excluding blacks from the city.
▪ First, the impact of a law may be so clearly discriminatory as to allow no other explanation than that it
was adopted for impermissible purposes (Yick Wo)
▪ Another way of proving discriminatory purpose is to through the history surrounding the government's
action (Gaston)
▪ Third way: legislative or administrative history of a law
• Look at the record
• Could be tough

Affirmative Action—Strict Scrutiny

• Regents of the University of California v Bakke: involved a challenge to the University of California at Davis
Medical School's set-aside of 16 slots in the entering class of 100 for minority students. No majority opinion in
this case.
• Richmond v. J.A. Croson Company: Invalidated a Richmond, VA plan to set aside 30 percent of public works
monies for minority owned busineeses. The court applied strict scrutiny
• Metro Broadcasting, Inc v. FCC: Congressionally approved affirmative action programs only need to meet
intermediate scrutiny
 • Adarand Constructers v. Pena: Overruled Metro Broadcasting.
1) O'Connor for the majority: Although the Court was adopting strict scrutiny as the test for affirmative action, it
wanted to clarify that “when race-based action is necessary to further a compelling interest, such action is
within constitutional constraints if it satisfies the 'narrow tailoring' test this Court has set out in previous cases.
• Grutter v. Bollinger: Court ruled that colleges and universities have a compelling interest in creating a diverse
student body and that they may use race as one factor, among many, to benefit minorities and enhance diversity.
1) “The benefits of diversity are substantial” and “promotes cross-racial understanding, helps to break down
racial stereotypes, and enables students to better understand persons of different races.
2) Court accepted the argument that the education of all students is enhanced with a diverse student body.
• Gratz v. Bollinger: invalidated an affirmative action program for undergraduate admissions which added 20 points
to the applications for minority students. Not sufficiently “narrowly tailored”
• Bottom line: diversity is a compelling interest and schools may sue race as a factor to ensure diversity, but quotas
or numerical quantification of benefits is impermissible.
• Parents Involved (decided together with Meredith v. Jefferson County Board of Ed): prohibited assigning students
to public schools solely for the purpose of achieving racial integration and declined to recognize racial balancing as
a compelling state interest.
1) Here they were not remedying the effects of past intentional discrimination
2) Distinguished from Grutter, more similar to Gratz: this only looks at race.
▪ “white/nonwhite” in Seattle and black/”other” terms in Jefferson County
3) Plurality: rejected the notion that racial balancing could be a compelling state interest
4) Classfications were clearly not necessary to achieve stated ends, since they had a “minimal efect” on student
assignments. The districts also failed to show that they considered methods other than explicit racial
classifications to achieve their stated goals. Narrow tailoring requires “serious, good faith consideration of
workable race-neutral alternatives.”
5) Kennedy's concurrence: the goal of obtaining a diverse student body is a compelling. Race-conscious
mechanisms can be used to further diversity
▪ School districts here did not narrowly tailor the use of race to achieve the compelling interests in the case.
• Ricci v Destefano: Nineteen firefighters (17 white, 2 hispanic) alleged the city discriminated against them with
regard to promotions. They passed a test. City invalidated the rest because none of the black firefighters who
passed the exam had scored high enough to be considered for the positions. The city feared a lawsuit over the test's
adverse impact on a protected minority.
1) In a 5-4 majority, the court concluded that the city's actions in throwing out the test scores violated the
disparate treatment part of title VII
▪ standard for permissible race-based action under Title VII is that the employer must “demonstrate a strong
basis in evidence that, had it not taken the action, it would have been liable under the disparate-impact
statute.”
▪ Here, the Court reasoned that New Haven failed to prove it had a “strong basis in evidence” that failing to
discard the results of the exam would have subjected it to liability, as the exams were job-related,
consistent with business necessity, and there was no evidence that an equally valid, less discrimnatory
alternative was available.

Suspect Classification II: Intermediate Scrutiny and Gender Classification

• Intermediate scrutiny: a law is upheld if it is substantially related to an important government purpose. Does not
need to be “compelling” but “important” The means used need not be necessary, but must have a “substantial
relationship” to the end being sought. Gov't has the burden of proof.
• Frontiero v Richardson: Federal law allowed a man to automatically claim his wife as a dependent and thereby
receive a greater allowance for quarters and for medical benefits. A woman, however, only could gain these
benefits if she could prove that her spouse was dependent on her for over half his support.
1) Plurality: Strict scrutiny because women were still being discriminated against.
• Craig v Boren: declared unconstitutional an Oklahoma law that allowed women to buy low alcohol at age 18, but
men could not buy beer until age 21.
1) Intermediate scrutiny is the standard.
• United States v. Virginia (p. 1229): Declared unconstitutional the exclusion of women by VMI. Virginia, in
response to an order from the Fourth Circuit Ct. of Appeals, created the Virginia Women's Institute for Leadership.
The court found this insufficient.

Real Differences
• Two basic ways of proving a gender classification (same as proving racial classification)
1) Facially gender specific (VMI case, Boren, etc)
2) Facially neutral: proving a gender classification requires demonstrating that there is both a discriminatory
impact to the law and a discriminatory purpose behind it
▪ Personnel Administrator of Massachusetts v. Feeney: SC upheld a state law that gave a preference in
hiring to veterans even though it had a substantial discriminatory impact against women. The plaintiff
repeatedly took civil service exams and had some of the highest scores in the state, but was placed behind
lists of veterans with lower scores. Over 98% of veterans in MA were male.
• Discriminatory impact not sufficient to prove the existence of sex-based classification; there must
also be proof of a discriminatory purpose.
• When is it Discrimination?
1) Geduldig v. Aiello: SC held that it was not a denial of equal protection for a state's disability insurance
program to exclude pregnancy-related disabilities, but include disabilities affecting only men.
▪ This didn't warrant more than rational-basis review.
▪ Divides between two groups: pregnant women and nonpregnant persons. Therefore, not gender based
▪ WHAT THE FUCK?!?
• Gender Classifications benefiting women
1) Gender classifications benefiting women based on role stereotypes generally will not be allowed
▪ Michael M v. Superior Court: SC upheld CA's stat rape law that prosecuted only males. No doubt that the
gender-based law was adopted because of sexual stereotypes.
• Plurality: said that the state could attack the problem of teenage pregnancy and sexual activity by
regulating and punishing men, but not women. It is hardly unreasonable for a legislature acting to
protect minor females to exclude them from punishment. Risk of pregnancy itself constitutes a
substantial deterrence to young females. No similar natural sanctions deter males.
• A gender-neutral law less likely to be effective because girls would be less likely to file complaints or
be witnesses if they faced potential liability.
• Important government interest, but is a gender-based law substantially related to that goal?
◦ Stevens' dissent: the fact that a woman confronts greater risk of harm than a male is a reason for
applying the prohibition to her, not a reason for granting her a license to use her own judgment
on whether or not to assume the risk. Would parents of twins (boy and girl) forbid the son from
conduct but let the daughter do it?
2) Gender classifications benefiting women designed to remedy past discrimination and differences in
opportunity generally are permitted
3) Gender classification benefiting women can be based on biological differences between men and women.
▪ Nguyen v. INS: Court allowed a difference in INS rules favoring mothers over fathers because of the
greater certainty as to the identity of the mother as compared to the father and the greater opportunity that
mothers have in establishing a relationship with their children. This case involved how children can
become citizens when they are born outside the US. Imposed different and greater requirements if the
citizen parent is a father as opposed to mother.
• Difference in the rule serves the government's interest in being sure that there is a biological
relationship between the parent and the child. Paternity not so certain
• Another interest is to ensure “that the child and citizen parent have some demonstrated opportunity to
develop not just a relationship that is recognized, in a formal matter, by the law, but one that consists
of the real, everyday ties that provide a connection between child and citizen parent, and in turn, the
United States.” While the mother is there at childbirth, given the 9-month interval between
conception and birth, it is not always clear that a father will know that a child was conceived not is it
always clear that even the mother will be sure of the father's identity.
• Breyer questioned whether these were legitimate government interests. He disagreed that mothers
should be presumed inherently to have more of a relationship with a child than the father; a mother
could have no contact after birth, while the father could raise the child.
▪ Nevada Department of Human Resources v. Hibbs: SC held that the family leave provision of the Family
and Medical Leave Act fits within the scope of Congress's Section 5 powers and can be used to sue state
governments. The FMLA requires that employers, including government employers, provide their
employees with unpaid leave time for family and medical care. It is a valid congressional abrogation of
state sovereign immunity.
• Congress, recognizing social realities, found that the absence of family leave policies disadvantaged
women in the workplace. Although the FMLA is gender neutral in that it requires leave be granted to
 both men and women, and Hibbs was male, the Court said that Congress clearly intended the law to
prevent gender discrimination in employment.
• Congress can enact prophylactic legislation to deter unconstitutional behavior, as long as the
legislation is proportional and congruent.

Suspect Classifications III: Disability, Poverty, Alienage

• Mentally disabled: rational basis
1) City of Cleburne v Cleburne Living Center: SC declared unconstitutional a city ordinance that required a
special permit for the operation of a group home for the mentally disabled.
▪ Rejected the city's justification. The city argued that students from a junior high school across the street
might harass occupants. The court said that this argument was based on prejudices against the mentally
disabled and that indulging such private biases is not a legitimate government purpose.
• Wealth: rational basis
1) San Antonio School District v. Rodriguez: involved a challenge to Texas's system of relying heavily on local
property taxes to pay for public education. The result was that poor areas were taxed at high rates, but still had
little to spend on education. Wealthy areas could tax at low rates and had a great deal to spend. The plaintiffs
argued that the disparity in funding discriminated against the poor in violation of the EP clause.
• Undocumented Aliens: strict scrutiny, except involving “self-government and the democratic process” or
“congressionally approved discrimination (federal law)
1) Plyler v Doe: SC declared unconstitutional a Texas law that provided a free public education for children of
citizens but required that undocumented aliens pay for their schooling.
▪ Undocumented aliens cannot be treated as a suspect class because their presence in this country in
violation of federal law is not a constitutional irrelevancy, nor is education a fundamental right
▪ The court also makes it clear that it was using more than rational basis. The state's claim of a desire to
reserve benefits for its own citizens likely would meet a rational basis test. Thus, it appears that the Court
was using intermediate scrutiny.
▪ The court stressed the blamelessness of the children. They were being punished by being denied an
education because of their parents' choices.
▪ Dissent argued that rational basis review was appropriate and that the judiciary should delegate to the
legislature on matters of how to allocate resources for education.
2) Graham v Richardson: SC declared unconstitutional a PA law that made noncitizens ineligible to receive
public assistance and an Arizona law that limited receipt of benefits to those who are citizens or had resided in
the state for at least 15 years.
▪ “Classifications based on alienage, like those based on nationality or race, are inherently suspect and
subject to close judicial scrutiny. Aliens as a class are a prime example of a 'discrete and insular minority
for whom heightened judicial solicitude is appropriate.”
Piapieallday9709
Modern Due Process
• Skinner v. Oklahoma: the Court declared unconstitutional the Oklahoma Habitual Criminal Sterilization Act that
allowed courts to order the sterilization of those convicted two or more times for crimes involving “moral
turpitude.”
1) Violated EP. The court spoke broadly of the right to procreate as a fundamental right.
• Griswold v. Connecticut: Declared unconstitutional a state law that prohibited the use and distribution of
contraceptives.
1) Right to privacy was a fundamental right.
2) Court expressly rejected the argument that the right was protected under the liberty of the due process clause.
3) Douglas found that privacy was implied in many of the specific provisions of the BoR: “the foregoing cases
suggest that specific guarantees in the Bill of Rights have penumbras, formed by emanations from those
guarantees that help give them life and substance.
• Eisenstadt v. Baird: declared unconstitutional a Mass law that prohibited distributing contraceptives to unmarried
individuals and that only allowed physicians to distribute them to married persons.
1) Expands on Griswold in recognizing a right to control reproduction as a fundamental right.
• Michael H. v. Gerald D: limited the rights of nonmarried fathers. SC held that even the unmarried father who
participated actively in the child's life is not entitled to due process if the mother was married to someone else.
Ruled that a state may create an irrebuttable presumption that a married woman's husband is the father of her child
even though it negates all of the biological father's rights.
1) Court (Scalia): biological father did not have a liberty interest in a relationship with his child because there
 was no tradition of protecting the father's rights when the mother is married to someone else. Note how
narrow this is.
2) Scalia (for himself and Rehnquist): SC should protect rights under the due process clause only if there is a
tradition, stated at the most specific level of abstraction, for safeguarding the liberty.
3) Stevens: concurred (fifth vote) because the state offered a procedure whereby the biological father could have
established paternity and preserved his rights
4) Brennan: strong dissent. Emphasized the C's protection for parents' rights to custody of the children. In a
diverse society parental rights might arise in a wide variety of family arrangements.
5) TRADITION?!?
• Roe v. Wade: involved a challenge to a Texas law that prohibited all abortions except those necessary to save the
life of the mother. Focused on privacy
1) Blackmun found the right to privacy either in the Fourteenth A's conception of personal liberty or in the Ninth
A's reservation of rights to the people. He said it was “broad enough to encompass a woman's decision
whether or not to terminate her pregnancy.”
2) Prohibiting abortion infringes on a woman's right to privacy. Blackmun observed that “maternity, or additional
offspring may force upon the woman a distressful life and future. Psychological harm may be imminent.
Mental and physical health may be taxed by child care. There is also the distress, for all concerned, associated
with the unwanted child.”
3) Right to abortion is not absolute and that it must be balanced against other considerations, such as the state's
interest in protecting “prenatal life” STRICT SCRUTINY to be used in striking the balance because the right
to abortion was a fundamental right.
▪ “Where fundamental rights are involved...regulation limiting these rights may be justified only by a
compelling state interest and...legislative enactments must be narrowly drawn to express only legitimate
state interests at stake.”
4) Trimester Approach
▪ The state had a compelling interest in protecting maternal health after the first trimester because it was
then that abortions became more dangerous than childbirth
▪ During first trimester, the government could not prohibit abortions and could regulate them only as it
regulated other medical procedures, such as requiring that they be performed by a licensed physician.
▪ During the second trimester, the government also could not outlaw them, but the government “may, if it
chooses, regulate the procedure in ways that are reasonably related to maternal health.”
▪ Third trimester: the government may prohibit abortions except if necessary to preserve the life or health of
the mother.
5) Criticisms
▪ Cannot be inferred from the text
• but the court has found other rights not in the text
▪ Gave insufficient weight to the state’s interest in promoting life
• Tough to tell when life begins
• Law should not force the woman to be an incubator against her will
▪ Should have used DP clause rather than EP. Laws prohibiting abortion apply exclusively to women, ad
thus they should be declared unconstitutional as gender discrimination
• Nothing is gained by shifting to EP analysis, because you still have to consider the government's
interest.
• Planned Parenthood v. Casey: PA law regulated abortions by creating a 24-hour waiting period, requiring
physicians to inform women of the availability of information about the fetus, requiring parental consent for
unmarried minors' abortions, creating requirements for reporting and record keeping, and requiring spousal
notification before abortions. Majority written by O'Connor, Kennedy, and Souter together.
1) Reaffirmed the essential holding of Roe: that the right to abortion is constitutionally protected because of the
importance of the choice and the intrusion in forcing a woman to remain pregnant against her will
2) The joint opinion reaffirmed viability as the key dividing line during pregnancy, but rejected the trimester
framework.
3) The test for evaluating the constitutionality of a state regulation of abortion is whether it places an “undue
burden” on access to abortion.
4) “A finding of an undue burden is shorthand for the conclusion that a state regulation has the purpose or effect
of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus.”
5) To promote the state interest, the state may take measures to ensure that the woman's choice is informed, and
measures designed to advance this interest will not be invalidated as long as their purpose is to persuade the
 woman to choose childbirth over abortion.
6) Upheld the 24 hour waiting period, the requirement that the woman is informed, and the reporting and
recording requirements.
7) Stevens and Blackmun concurred, they wanted strict scrutiny
• What is an undue burden?
1) Implied that an undue burden exists only if a court concludes that a regulation will prevent women from
receiving an abortion. The spousal notification requirement was an undue burden because it is likely to
prevent a significant number of women from obtaining an abortion. The waiting period did not.
• Stenberg v. Carhart: Concerned the constitutionality of a Nebraska law that prohibited partial birth abortions. SC
decided this was unconstitutional
1) Breyer: 2 reasons
▪ did not have an exception to protect the life of the mother
▪ the law imposes an undue burden on a woman's right to choose a (type of procedure), thereby unduly
burdening the right to choose abortion itself. The law was intended to prohibit dilation and extraction, but
it had the unintended effect of also prohibiting dilation and evacuation.
• Gonzales v. Carhart: concerning a federal ban on partial-birth abortions
1) distinguished from Stenberg, the court said that statute was more ambiguous
2) Majority opinion did not discuss DP
3) The majority held that “ethical and moral concerns,” including an interest in fetal life, represented
“substantial” state interests which (assuming not an undue burden) could be a basis for legislation at all times
during pregnancy, not just after viability.
4) Relying on Congress's findings that the procedure is never needed to protect the health of a pregnant woman,
Kennedy wrote that a health exception was unnecessary.

Modern Due Process III and Equal Protection: Sexual Activity and Sexual Orientation
• Bowers v Hardiwck: Hardwick was arrested for engaging in homosexual activity in his bedroom. He violated
Georgia's sodomy law.
1) 5-4: upheld the statute.
2) Casey and Griswold didn't extend privacy this far.
3) White for Majority: the court should protect rights as fundamental only if they are supported by C's text,
framers' intent, or a tradition of being safeguarded.
• Romer v. Evans (EP CASE): Colorado Amendment 2 repealed all state and local laws that prohibited
discrimination against gays, lesbians, and bisexuals. Also prevented future laws to protect these individuals.
1) Note: only rational basis review generally used for EP/sexual orientation
2) This initiative fails even rational basis review, names a certain group.
3) The Court concluded that there was no legitimate purpose for denying gays, lesbians, and bisexuals the same
use of the political process available to everyone else
4) No point behind the law except for animosity towards the people affected
5) Animus towards gays and lesbians, even when presented as a purported “moral” basis for a law, is not
sufficient to meet the rational basis test.
• Lawrence v. Texas: Overruled Bowers.
1) Kennedy for the Majority: constitutional protection for all individuals in the most intimate and private aspects
of their lives.
2) Scalia's dissent and the parade of horribles
3) Note that the court did not articulate the level of scrutiny to be used. Nowhere did the Court speak of a
fundamental right or mention strict scrutiny. He did rely on privacy cases where strict scrutiny had been used.
Also, Texas justified the law as advancing its moral judgment and traditionally this is enough to meet rational
basis. This may imply heightened scrutiny, but the court hasn't spoken.

Modern Due Process IV and Equal Protection

• Goodridge: Mass Supreme Court case about same-sex marriage.
1) Found the state had no “constitutionally adequate reason for denying marriage to same-sex couples” and “the
right to marry is not a privilege conferred by the State, but a fundamental right that is protected against
unwarranted State interference.”
▪ did not even find a rational basis on the grounds of DP and EP, so no need to check SS
• Hernandez v Robles: New York same-sex marriage
1) Found rational basis
 ▪ Legislature could rationally decided that for the welfare of children, it is more important to promote
stability in heterosexual relationships. Heterosexual intercourse can lead to children, homosexual sex
does right. Legislature could want to promote marriage between opposite sex couples
▪ Legislature could rationally believe that it is better, other things being equal, for children to grow up with
both a mother and a father.
2) DP
▪ Not like Lawrence, where a fundamental right is at issue. Define this more narrow here, so not strict
scrutiny but rational basis.
3) EP
▪ Not sex discrimination, because it does not put men and women in diffferent categories. Does not
subordinate one or the other.
▪ Relies on Cleburne (mental illness case) that no more than rational basis needed “where individuals in the
group affected by a law have distinguishing chracteristics relevant to interests the State has has the
authority to implement. A person's preference (note) for the sort of sexual activity that cannot lead to the
birth of children is relevant to the State's interest in fostering relationships that will serve children best.
Rational basis scrutiny is appropriate.
▪ Plaintiffs argue that a classification distinguishing between opposite and same sex couples cannot pass RB
scrutiny because if the relevant state interest is the protection of children, the category of those permitted
to marry (opposite sex couples) is both under and overinclusive. Court disagreed
• Under because same-sex couples may have children. May be rational to not let them marry because
(above)
• Over because some heteros don’t want children. May be rational to let them marry because the state
want them to have kids. Would be way too intrusive to limit to only heteros who want kids.
Modern DP 5
• Cruzan v Director, Missouri Department of Health: Cruzan suffered severe head injuries in a car accident and was
in a persistent vegetative state. Her parents wished to terminate food and hydration and thus to end her life. The
state intervened to prevent this.
1) Holdings
▪ Eight out of Nine (Scalia) Justices recognized a right to refuse medical care.
▪ The majority held that a state may require clear and convincing evidence that a person wanted treatment
terminated before it is cut off.
• Acknowledged state's important interest in protecting life and in ensuring that a person desired the
end of treatment before it is suspended.
▪ A state may prevent family members from terminating treatment for another. The right to end treatment
belongs to each individual, and a state may prevent someone else from making the decision.
2) Concerns
▪ Did not articulate a level of scrutiny to be used in evaluating government regulation of personal decisions
concerning refusal of medical treatment.
▪ Did not resolve what is sufficient to constitute clear and convincing proof of a person's desire to terminate
treatment
• implied that a state can prevent oral testimony
• perhaps need living will
▪ Does not address the situation where a competent person designates a surrogate or guardian to make the
decision
• Washington v Gluckserg:Ninth Circuit declared unconstitutional a Washington law that “a person is guilty of
promoting a suicide attempt when he knowingly causes or aids another person to commit suicide. The 9th circuit
found a constitutionally recognized “right to die”
1) SC reversed. Rehnquist wrote for the majority that a right is protected as fundamental under DP clause only
when supported by history or tradition. He stated that for over 700 years, the Anglo-American common-law
tradition has punished or otherwise disapproved of both suicide and attempting suicide
▪ Because it was not a fundamental liberty interest, the law could be upheld if it passed rational basis
• state has important interests in the preservation of life, in protecting the integrity and ethics of the
medical profession, in protecting vulnerable groups, and in topping the path to voluntary and even
involuntary euthanasia
• Vacco v. Quill:Second circuit declared unconstitutional a NY law that prohibits aiding another in committing
suicide. Found that it violated EP clause. The court explained that patients on artificial life support already have
 the right to physician assisted suicide based on Cruzan. In light of this, those not receiving artificial life support
are discriminated against and denied EP.
1) Rehnquist: initially noted that the prohibition of assited suicide neither discriminated against a suspect class,
such as against a racial minority, nor violated a fundamental right, since Washington v Glucksberg had
expressly repudiated that contention. Under EP this means that the law was to be upheld so long as it met a
rational basis test.
2) The Court also rejected the claim that NY's law discriminated against anyone. Everybody was treated equally:
all have the right to refuse medical care, and all are prohibited from assisting another with suicide. There's a
difference between refusing care and committing suicide. You die from a disease in the former, you die from
lethal medication in the latter.
• Not a single Justice in either case voted to declare unconstitutional either law.
• Cases left open some doors to future legal protection of a right to physician-assisted suicide
1) States may enact statutes.
2) (more on p. 853 of Cherminsky)

More on Enforcing Individual Rights and the State Action Requirement

• Scope of Congress's Power under the Reconstruction Amendment s
1) Is Congress limited to providing remedies for violations of constitutional rights regoznied by the Supreme
Court; or may Congress use its power under these amendments to adopt an independent interpretation of the
Constitution, even overruling Supreme Court decisions?
▪ Nationalist perspective: Congress may use its Section 5 authority to expand the scope of rights
• Katzenbach v. Morgan: concerned the constitutionality of 4e of the Voting Rights Act of 1965, which
provides that no person who has completed sixth grade in a PR school, where instruction was in
Spanish, shall be denied the right to vote bc of failing an English literacy requirement. Earlier, in
Lassiter v. Northampton Election Board, SC had upheld the constitutionality of an Engilsh language
literacy requirement for voting. Congress, in the Voting Rights Act, sought to partially overturn it.
Court upheld this provision as a proper exercise of the powers granted to Congress by Section 5 of
the 14th A
◦ Congress could have concluded that granting PR the right to vote would empower them and help
to eliminate discrimination against them (remedy for discimrination)
◦ Congress could find that the literacy test denied EP.
◦ Court spoke broadly of Congress's powers under Section 5 and expressly rejected the view that
the legislative power is confined to “the insignificant role of abrogating only those state laws that
the judicial branch was prepared to adjudge unconstitutional.”
▪ Federalist perspective: Cannot create new rights or expand the scope of rights. Congress can act only to
prevent or remedy violations of rights, and such laws must be narrowly tailored.
• City of Boerne v. Flores (1997 case): declared the Religious Freedom Restoration Act
Unconstitutional. The Act prohibited government from “substantially burdening” a person's exercise
of religion even if the burden results from a rule of general applicability unless the government can
demonstrate the burden 1) is in furtherance of a compelling governmental interest and 2) is the least
restrictive means of furthering that compelling governmental interest.
◦ Court (Kennedy) held that Section 5 may not create new rights or expand the scope of rights;
rather congress is limited to laws that prevent or remedy violations of rights recognized by the
SC
◦ Section 5 gives Congress the power to enact laws to “enforce” the provisions of the 14th A.
Legislation which changes what rights are is outside the scope. Congress has power to enforce,
not the power to determine what constitutes a constitutional violation.
◦ Used Marbury v. Madison to hold the court as the authoritative interpreter of the C.
◦ This can be criticized for denying Congress the power to expand the scope of rights.
• University of Alabama v. Garret: the Court considered whether state governments may be sued for
violating Title I of the American with Disabilities Act, which prohibits employment discrimination
against the disabled and requires reasonable accommodation for disabilities by employers. The
plaintiffs's key argument was that the elaborate legislative history documenting government
discrimination against the disabled made the Act different from other laws the Court had considered
in the last few years. The court rejected this argument and held that state governments may not be
sued for violating Title I of the ADA.
◦ Patricia Garret was the director of nursing at the University of Alabama hospital. She was
 diagnosed with breast cancer and took time off. When she returned, she was told she had lost her
position. She sued under Title I.
◦ Rehnquist (majority): ADA was a substantial expansion of rights compared to the constitution.
Under EP, discrimination based on disability only need meet a rational basis test, being rationally
related to a legitimate government purpose. The ADA prohibits much more than would fail a
rational basis test, and its requirement for reasonable accomodation of disabilities is significantly
greater than the C requires
◦ Title I of the ADA is not “proportionate” or “congruent” to preventing and remedying
constitutional violations.
◦ Breyer's dissent listed numerous references to government discrimination against the disabled.
Rehnquist found these insufficient.
◦ He contrasted the legislative record for the Voting Rights Act of 1965, which included statistical
findings.
• Tennessee v. Lane: Involved a criminal defendant who climbed on his hands and knees to get to a
second-floor courtroom because it was not accessible to those with disabilities. He sued under Title II
of the ADA, which prohibits state and local governments from discriminating against people with
disabilities in government programs, services, and activities. In a 5-4 decision, the Court held that
Lane's suit against the state was not barred by sovereign immunity
◦ Majority (Stevens): Well established fundamental right of access to the courts.
◦ Congress has greater latitude to legislate under Section 5 when dealing with a claim that receives
heightened judicial scrutiny, whether because it is a fundamental right or a type of discrimination
that receives heightened scrutiny..
◦ Does not address when there is not a fundamental right.
• When is the Government's Failure to Protect a Person from Privately Inflicted harms a Deprivation?
◦ Deshaney v. Winnebago County Department of Social Services: guardians of a four-year-old
sued the Department of Social Services for its failure to protect the child from beatings his father
inflicted that ultimately resulted in irreversible brain damage. The department was informed of
the abuse over a 26 month period, but failed to act.
▪ Substantive DP case.
▪ SC broadly held that the government generally has no duty to protect individuals from
privately inflicted harms
▪ The child was not in the custody of the government, state's failure to protect him does not
constitute a violation of the DP clause.
▪ Two narrow exceptions: 1) where the government has limited the ability of a person to
protect him/herself (incarceration, institutionalization) and 2) where there is a social
relationship between the government and the injured individual, such as when the
government took an affirmative step to place them in danger.
▪ Dissent: artificial line drawing. Could have described this failure as “active, if reckless,
management of a case in which it was deeply involved.”
◦ Castle Rock v Gonzales: Police failed to enforce a restraining order. Colorado has a law
requiring enforcement of them and the order itself included language mandating enforcement by
the police. The 10th circuit explained that her claim was for procedural due process; the state law
and the restraining order created a property interest and Gonzales was deprived of this property
without due process of law. Court reversed a ruling for the plaintiff.
▪ Only a property interest if there was an entitlement.
▪ A benefit is not a protected entitlement if government officials may grant or deny it in their
discretion.
◦ Bottom line: the government generally has no duty to provide protection from private inflicted
harms
▪ Does not matter whether substantive or procedural DP, or whether the law is written in
mandatory or discretionary terms.