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FOUNDATIONS .................................................................................................................................. 1
Marbury v. Madison (1803): Judiciary has power to declare constitutionality............................. 1
McCulloch v. Maryland: (1819) Federalism and Federal Power:...................................................... 2
Constitutional Interpretation: Dred Scott v. Sanford: (1857): Original Intent/Static Const. ..... 4
FEDERAL COMMERCE CLAUSE .................................................................................................... 7
Central Issue: What limits should be placed on Congress’ ability to regulate under authority of
the Commerce Clause and what areas of commerce should be left for the States to regulate alone?
....................................................................................................................................................................................................... 8
**Gibbons v. Ogden: the First Case (1824): Groundwork: The Interstate/Intrastate
Distinction: First major case construing Commerce Clause. Conflict between power within
NY and the authority of Congress to regulate commerce among the States. ................................8
**Kidd v. Pearson (1888): Difference between commerce and “primary productive
activities.” ..................................................................................................................................................................9
**U.S. v. E.C. Knight (1895) Manufacturing is not commerce .......................................................... 10
**Kidd v. Pearson (1888) (alcohol manufacturing is not okay in state with alcohol
manufacturing prohibition even if intent is to export.) ...................................................................... 10
**Shreveport Rate Case (1914): Substantial Economic Effects Test ............................................. 10
**Swift & Co v. US (1905) : Stream of Commerce Test (not usually used) .................................. 10
**Champion v. Ames (The Lottery Case, 1903): Lottery tickets as an evil that validates
Congressional action.......................................................................................................................................... 11
Impure foods: Hipolite Egg Co. v. U.S. (1911) ......................................................................................... 11
Hoke v. U.S.: upheld act relying on the moral argument set forth in Champion. ...................... 11
**Child Labor Case: Hammer v. Dagenhart (1918) state sovereignty over child labor:........ 11
**Schecter Poultry Case (1935) There must be a direct and logical relationship to
interstate commerce .......................................................................................................................................... 12
**The Carter Coal Case (1936) Test: (1) what is “commerce”?: narrow definition in order to
avoid Slippery Slope fears. .............................................................................................................................. 12
1937-1995: Rise of Commerce Clause Power ............................................................................... 13
** NLRB v. Jones & Laughlin Steel Corp. (1937): relationship between regulated intrastate
activity and interstate commerce must be (1) substantial, and (2) a substantial economic
effect must be produced by the regulated activity. ............................................................................... 13
**U.S. v. Darby (1941) Court reversed Hammer v. Dagenhart (child labor case) and upheld
Fair Labor Standards Act (set minimum wages and maximum hours for employees
engaged in production of goods for interstate commerce), which prohibited shipment of
goods not produced within requirements of the act. ........................................................................... 13
**Wickard v. Filburn (1942): Aggregate Effects Test .......................................................................... 14
**Heart of Atlanta Case (1964): Title II upheld using C.C. and Cumulative Effects ................. 14
** Katzenbach v. McClung (1964) Title II upheld using C.C. and Cumulative Effects ............. 14
1995-Present: Modern Limits on Commerce Clause Power ................................................... 15
**U.S. v. Lopez (1995): Activity regulated must “substantially affect” interstate commerce:
Court for first time in 60 years invalidated federal statute on grounds it was beyond
Congress’ Commerce Power. .......................................................................................................................... 15
**US v. Morrison (2000): goes further than Lopez in restriction: reaffirms Lopez
channels/instrumentalities/substantial effect test. Noneconomic activities cannot be used
even if they have substantial effects. .......................................................................................................... 16
**Gonzales v. Raich (2005): Upholds Federal Law and Rejects C.C. Challenge ......................... 16
**US v. Comstock (2010) Return to Mucolloch v. Maryland: those rights not prohibited are
constitutional and this is reasonably adapted for a constitutional end. ...................................... 17
States’ Rights: Limits on Commerce Clause Power ........................................................... 18
The Tenth Amendment and Federalism as a limit on Congressional Authority:
Introduction.............................................................................................................................................. 18
**Coyle/Oklahoma (1911): State power wins ........................................................................................ 20
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**US v. California (1936): Fed power wins: rejects Traditional Activities Rule. ...................... 20
The 10th Amendment between 1937-1990s .................................................................................. 20
**US v. Darby (1938) Key case: overrules Hammer v. Dagenhart: court flatly rejects the
10th Amendment claim: “The Amendment states but a truism that all is retained which has
not been surrendered.” ..................................................................................................................................... 20
**New York v. U.S. (1946) State power wins: unique sources of revenue. Upheld state
immunity against federal tax to the State of New York’s sale of bottled mineral water from
state-owned springs. ......................................................................................................................................... 20
**Md. v. Wirtz (1968): Fed power wins (FLSA upheld) ...................................................................... 20
****National League of Cities v. Usery (1976) The Exception: upholding 10th A. using
Integral State Functions Test, overrules Md. v, Wirtz but is overruled by Garcia v. San
Antonio. ................................................................................................................................................................... 20
****Garcia v. San Antonio Metropolitan Transit Authority (1985): Overruled NLC. Fed
wins. Balancing powers test. .......................................................................................................................... 21
**South Carolina v. Baker (1988) Fed wins. Participation in national political process Test.
(Otherwise court intervention is not justified): ..................................................................................... 22
1990s and Beyond: 10th Amendment & the Commandeering Doctrine: Congress may
not conscript or compel state governments. ................................................................................ 22
****Gregory v. Ashcroft (1991): Clear and Plain statement rule: State wins. (Reaffirms
Garcia- Court does not invalidate federal law based on 10th A, rather used it and federalism
considerations as rule of construction (Clear and Plain Statement Rule) Congress has to
clearly indicate that it meant the law to apply to the states because this is placing a
substantial federal burden on states: ......................................................................................................... 22
N.Y. v. U.S. and Printz v. U.S. Test: Congress may not (1) force a state to legislate or regulate
in a certain way (N.Y v. U.S.); or (2) require state executive branch personnel to perform
even ministerial functions (Printz v. U.S.). ............................................................................................... 23
**New York v. U.S. (1992): first time overruling based on 10th Amendment since Usery and
introduction of Commandeering Doctrine: Federal government can’t compel States to
adopt laws or state agencies to adopt regulations. While Congress can encourage states to
act in certain capacities and exercise their authority in certain ways, it is not able to
“commandeer” the state and local regulatory authorities. ................................................................ 23
**Printz v. U.S (1997): Congress can’t compel State or local government’s executive branch
to perform executive functions, and this is true even if the functions are temporary,
ministerial and easy-to-perform. ................................................................................................................. 24
**Reno v. Condon (2000): federal law upheld for limiting the commercial vending of
personal data by the states. Valid exercise of C.C. and 10th is not triggered because this is
prohibition of conduct of private entities as well as state entities rather than a mandate.. 25
Taxing & Spending as Regulatory Device: The Spending Power as a limit on State
autonomy: ....................................................................................................................................... 27
Taxing: ......................................................................................................................................................... 27
**Bailey v. Drexel Furniture Co. (Child labor tax case, 1922): Look to intent of tax (revenue
or penalty).............................................................................................................................................................. 27
**United States v. Jahringer (1953): Upheld federal occupational tax imposed on gambling
(1951 Revenue Act) ........................................................................................................................................... 27
Spending:..................................................................................................................................................... 28
**United States v. Butler (1936): Agricultural Adjustment Act of 1933 not valid under 10th
because it regulates production, not commerce BUT Congress does have broad authority to
tax and spend for the general welfare:....................................................................................................... 28
**Charles C. Steward Machine Co., v. Davis (1937): upheld Social Security Act Title IX
(payroll tax refund) ............................................................................................................................................ 28
**South Dakota/Dole (1987) C.C. allows federal government to attach conditions on funds
.................................................................................................................................................................................... 28
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Reconstruction Amendments .................................................................................................. 30
Pre-Civil War Amendment Cases: In 1791: Bill of Rights adopted to protect individual
against interference by federal government [limitation on federal power, but not on
state power]. ............................................................................................................................................. 30
The Natural Law Approach: Individuals have certain natural rights government can’t
infringe upon:........................................................................................................................................... 30
**Calder v. Bull (1798): The prohibition against Ex Post Facto Laws (Article I, 8 & 9); State
law upheld; 5th Amendment takings clause did no apply to the state : ........................................ 30
**Fletcher v. Peck (1810): J. Marshall offers natural law as alternative reason for rejecting GA ex
post facto law: ....................................................................................................................................................................... 31
“Either by general principles which are common to our free institutions, or by the particular
provisions of the constitution of the United States.” .......................................................................................... 31
**Dred Scott: antislavery lawyers were unsuccessful in arguing that slavery was a
illegitimate deprivation of liberty without a proper basis in law (e.g. conviction for crime)
.................................................................................................................................................................................... 31
Application of the Bill of Rights to the States: .............................................................................. 31
****Barron v. The Mayor and City Council of Baltimore (1833): The Bill of Rights restricts
only the federal government; not State Governments, thus 5th is intended to be a limitation
of federal government only............................................................................................................................. 31
Post Civil War and Adoption of the 13th, 14th, and 15th Amendments .................................. 31
Specifically binding states. Passage of 13 th, 14th, and 15th Amendments: significantly widened the
constitutional restrictions on state governments from infringing on the rights of individuals.
These amendments were created to bar discrimination by states against individuals, especially
African-Americans, and thus they created a drastic change from the constitutional restrictions on
relations bettween the state government and individuals. ............................................................................. 31
Section 2. Congress shall have power to enforce this article by appropriate legislation. .................. 31
The Privileges and Immunities Clause ............................................................................................ 32
Underlying Purpose of Post-Civil War Amendments: eliminate remnants of AfricanAmerican slavery, but not fundamentally change the relations of the government. .............. 32
**Hepburn v. Griswald (1870): (later reversed in Legal Tender Cases in 1871) DP clause is
applicable only to a direct appropriation of property rather than a diminution in value of
property. ................................................................................................................................................................. 32
****Slaughterhouse Cases (1873): 13th and 14th applied only to protect former slaves
(original intent): EP was only meant to protect Blacks; the grant of monopoly is not a
violation of DP (deprivation of property); Most importantly: renders the Privileges and
Immunities clause a nullity/cannot be used to apply BofR to states (never overruled.) ..... 32
**Saent/Roe (1999): Revival of P&I to invalidate state law ............................................................. 34
The 14th Amendment and the Rise of Substantive Due Process ............................................ 35
Generation After Slaughterhouse: Shortly after Slaughterhouse decision Court was pressured to
review substance of state economic regulation. ................................................................................................... 35
Reasons why: ........................................................................................................................................................................ 35
Emerging DP: 1870s-1890s: Rejecting DP challenges to governmental regulations (but
dicta indicates that they might invalidate laws using DP if they interfered with natural
principles of justice.) ............................................................................................................................. 35
**Munn v. Illinois (1877) (378) Substantive DP emerges in majority opinions: police power
included regulation of individual use of property that was “affected with a public interest,”
.................................................................................................................................................................................... 35
In this case, rates of grain elevators (which could ostensibly extract monopoly prices.) The door
was open for greater judicial control in the future, even as “it is not to be inferred that this power
[of] regulation [is] without limit. This power to regulate is not a power to destroy.” ........................ 35
**Mugler v. Kansas (1887): State law that violates the “Fundamental law” will be
invalidated: Court sustained State ban on alcoholic beverages, but indicated legislation
would be valid under States’ “police powers” only if truly related to protection of ............... 35
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public health, safety or morals, and if it didn’t violate “rights secured by the fundamental
law.” .......................................................................................................................................................................... 36
****Allegeyer v. Louisiana (1897) 379: Move toward substantive due process is complete:
First time Court invalidated State law on substantive due process grounds: State
regulations that inhibit “Freedom of Contract” are invalid:.............................................................. 36
Lochner Era (1905-1937): Protecting economic rights under DP clause : ........................ 36
****Lochner v. New York (1905): Court invalidates a N.Y. law that limits hours bakery
employees can work to 10/day or 60 hours/week as abridgement of “liberty of contract,”
and therefore violation of the 14’s DP Clause. State had no legitimate state power act. ...... 36
Lochner’s Substantive due process implications: Due process of law implies some element
of reasonableness and justice. ....................................................................................................................... 37
**Palko v. Connecticut (1937) (364): “selective incorporation” (no general rule that all
rights in the BofR are applied to the state.) ............................................................................................. 38
Working Conditions for Women: Court willing to allow setting of maximum hours where found
benefited class needed special protection, beyond given to workers in general: ................................. 38
**Maximum Hours Ok for Women: Muller v. Oregon (1908) Though rejected in Lochner: 38
**Minimum wage not OK for women: Adkins v. Children’s Hospital (1918) Court
invalidated law prescribing a minimum wage for women, because it violated DP (freedom
of K), even though it previously accepted maximum-hour laws for women in
Muller/Oregon (1908-3 years after Lochner) : ...................................................................................... 38
No Yellow Dog Contracts: Violation of Freedom of K ......................................................................................... 38
**Coppage v. Kansas: (1915) yellow dog contracts are violation of DP : Kansas act
prohibiting employers from requiring employees agree as a condition of employment “not
join or become or remain a member of any labor organization” [yellow dog contract]. ...... 38
**Adair v. U.S. (1908) Federal law barring “yellow dog” contracts in interstate railroads
held unconstitutional under the due process clause of the 5th Amendment. ............................. 38
**Buck v. Bell (1927): Virginia legislation allows sterilization of mental defectives,
adequate procedural due process, but P claims act violates her constitutional right of
bodily integrity and the Due Process Clause of the 14th Amendment. ........................................ 39
The Fall of Substantive Due Process/Decline of Lochner......................................................... 43
Four Critiques of Substantive Due Process .............................................................................................. 43
**Nebbia v. New York (1934): First suggestion that Lochner was in trouble: sustained N.Y.
law fixing milk prices following a legislative finding without explicitly rejecting Lochner:44
****West Coast Hotel v. Parrish (1937): The death of Lochner: Freedom of K is not a
fundamental right and government has power to equalize bargaining power: Min. Wage
OK for Women ...................................................................................................................................................... 44
Judicial Abdication in economic cases: the end of the Means/Ends Relationship scrutiny in
economic cases : Nebbia (explicitly) and West Coast Hotel (implicitly) preserved the
requirement of a “real and substantial relation” between an economic regulation and a
legitimate state objective. But the cases following West Coast Hotel virtually abandoned
the means and ends relationship scrutiny in economic cases.......................................................... 44
The new Judicial Deference: “Minimum rationality” coupled with a “Presumption of
constitutionality” Test : Abandoned the “real and substantial relation” test of Lochner, and
adopted a presumption of constitutionality that would be applied when economic
regulation was subjected to a due process attack:................................................................................ 44
**** U.S. v. Carolene Products (1938) Court will presume the constitutionality of economic
regulation subject to DP attacks ................................................................................................................... 44
****Williamson v. Lee Optical Co. (1955) : Stress need for judicial deference to legislative
choices, legislature should balance the costs and advantages, not the courts. Court engages
in hypothesizing of possible legitimate purposes for the law:......................................................... 45
Summary of the Modern Approach: Court almost completely ended substantive due
process review of State economic regulation: DP is no longer used to strike down state
laws, regulating business, or industrial conditions: Minimum Rationality Standard. ........... 45
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Minimum Rationality Standard: If the objective pursued in the economic regulation falls
within the State’s police power (health, safety or general welfare goal) all that is required
is that there be a minimum rational relation between the means chosen and the end being
pursued [Carolene Products]. There will be a presumption of constitutionality unless the
legislature acted in an “arbitrary and irrational” manner [Duke Power v. Carolina
Environmental Study Group]. ........................................................................................................................ 45
Substantive Due Process Revived: Incorporation....................................................................... 52
Incorporation doctrine: when constitutional rights are violated, there is justification to
strike down the action. This is done through the DP clause of the 14th. ...................................... 52
**U.S. v. Carolene Products Co. Footnote 4: legislative judgment is presumed constitutional
even in the absence of aids to support such judgment unless it interferes with a
fundamental right, affects the political process, or is targeted at discrete and insular
minorities ............................................................................................................................................................... 52
**Rochin v. California (1951): Warrantless search of one’s home and forcible extraction of
stomach’s contents is not OK: “Shock the Judicial Conscience” Test:............................................ 52
**Sacramento v. Lewis (1998): Applies Shocks the Conscience Test: deadly force to stop a
suspect, egregious physical abuse in police questioning that "shocks the conscience"
violates Sub. DP.................................................................................................................................................... 53
**Chavez v. Martinez (2003): applied shocks the conscious test : ................................................. 53
Aftermath: SCOTUS applied more and more of the elements of the Bill of Rights directly to
the state, in particular, applying the 4th and 8th to actions of the states. In relation to
bodily autonomy, there were two lines of cases: ........................................................................... 53
Assisted Suicide: Bodily autonomy points in one direction, but tradition points in the
other............................................................................................................................................................. 54
****Cruzen v. Director, MI Department of Health (1990): First time Court considered the
question of constitutional right to die. ....................................................................................................... 54
****Washington v. Glucksberg (1997): Upholding ban on assisted suicide on a rational
basis standard because there is no fundamental right in being assisted when committing
suicide ...................................................................................................................................................................... 54
What rights are fundamental enough to be protected by DP of 14th? ................................ 55
**US v. Lanier (1997): unresolved: Ct.App held that being free from sexual harassment is
not “clearly established” to constitute a violation of constitutional right. .................................. 55
**Bell/Wolfish (1979) (body cavity searches of pre-trial detainees is constitutional) ........ 55
**Riggens v. Nevada (1992): involuntary imposition of psychotropic drugs when no danger
to self or other is shown is violation of DP rights .................................................................................. 56
**Hope/Pelzer (2002) (holding that shackling a prisoner for seven hours to a hitching post
in the summer sun in a position designed to cause discomfort violated the Eighth
Amendment). ........................................................................................................................................................ 56
**US/Georgia (2006) (disabled inmate allegedly left in his cell in his waste for day at a
time.) ........................................................................................................................................................................ 56
Baze v. Rees, (2008) (Lethal injection is not “cruel and unusual punishment” in the absence
of a showing that “feasible, readily implemented” alternatives “significantly reduce a
substantial risk of severe pain.”) .................................................................................................................. 56
Recent Cases: The DP violation must be severe (ex: extreme punitive damages and
retroactive liability) for the Court to use the Due Process Clause to reverse a statute or
finding. ........................................................................................................................................................ 56
**TXO v. Alliance: (1993) Rational Basis Test: Deference given to Jury verdicts and punitive
damages are not unconstitutional simply because they are so big; jury verdicts are upheld
so long as there are procedural safeguards (e.g. jury instructions, etc.) ..................................... 56
**Eastern Enterprises v. Apfel (1998): Imposition of retroactive civil liability constitutes a
Taking. ..................................................................................................................................................................... 57
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Civil Confinement is a significant deprivation of liberty that requires DP protection;
Clear and Convincing Need for Commitment Standard (because reasonable doubt
standard is too high of a burden on state) ..................................................................................... 58
**O’Connor v. Donaldson (1975) A non-dangerous person cannot be confined if he is
capable of surviing safely in freedom; Public Intolerance of Harmless Mentally Ill is
illegitimate ............................................................................................................................................................. 58
**Kansas v. Hendricks (1997): involuntary civil confinement from sex offenders who were
deemed to be a continuing danger is OK because the law is not punitive. ................................. 58
The Right to Bear Arms......................................................................................................................... 58
**US/Miller (1939) first address of 2nd amendment: prohibition on sawed off shotguns
(no one thought that they were necessary for the militia) so therefore the 2nd Amendment
does not apply. ..................................................................................................................................................... 58
****D.C. v. Heller (2008): first recognition of the 2nd A’s individual right to bear arms in
homes in federal enclaves : ............................................................................................................................. 58
****McDonald v. Chicago (2010): Extended Heller to the States .................................................... 60
THE EQUAL PROTECTION CLAUSE: Implicit in the 5th Amendment through Due
Process ............................................................................................................................................. 68
Federal v. State governments: Government Action Only: the Equal Protection Clause,
and the 5th Amendment’s Due Process Clause apply only to government action; not to
classifications made by private citizens ......................................................................................... 68
Strict Scrutiny for suspect classifications: Compelling + Necessary means (narrow
tailoring) for RACE / NATIONAL ORIGIN / ALIENAGE; Burden of proof on government:
When the statute is based on a “suspect classification” or impairs a “fundamental right.” . 68
Middle-level review for semi-suspect classifications: Important + Substantially related for
GENDER/ILLEGITIMACY/SOME TYPES OF ALIENAGE; Burden of proof on government: A
less demanding level of review than strict scrutiny. ............................................................................ 69
Mere rationality review for classifications that are not suspect and don’t impair a
fundamental right: legitimate + Conceivable rational relationship; Burden of Proof on
Challenger (must show that it is essentially arbitrary). ..................................................................... 69
Lowest Level Review: Mere “Rationality” Test: for Economic and Social Welfare Laws:
....................................................................................................................................................................... 70
TEST: Conceivable Rational Relationship to a Legitimate End .............................................. 70
The statute won’t be stricken if it’s conceivable that there’s some rational relation
between the means selected and a legitimate legislative objective. The law is stricken
only if the classification is “purely arbitrary.” Legitimate = advances a traditional police
power. .......................................................................................................................................................... 70
Deferential View: When neither a suspect class nor a fundamental right is implicated, the
Court will review a classification with extreme deference, and with a heavy presumption
of constitutionality. This is usually the case with economic and social welfare laws. ...... 70
Railway Express Agency v. N.Y. (1949, 641) ........................................................................................... 70
Williamson v. Lee Optical (1955): regulation of opticians challenged on equal protection
grounds [sellers of ready to wear glasses weren’t subject to the regulation]. .......................... 71
Board of Trustees v. Garrett (2001): most recent examination. Court reiterates the prop
that the question is whether there is any reasonable conceivable set of facts to provide
rationalization and justification for the regulation (no proof necessary.) .................................. 71
Allegheny v. Pittsburgh Steel (1991) Uniformed systems of assessment was announced,
but different systems were used to differentiate between those who newly purchased land
and those who purchased before. ................................................................................................................ 71
Illustration: U.S. Railroad Retirement Bd. v. Fritz (1980): ................................................................. 72
New York City Transit Auth. v. Beazer (1979): Upheld exclusion of all methadone users
from Transit Authority employment: Court viewed exclusion policy as “supported by the
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legitimate inference that as long as a treatment program continues a degree of uncertainty
persists.” ................................................................................................................................................................. 73
New Orleans v. Dukes (1976): sustained law exempting food vendors, who continually
operated the same business for 8 yrs. prior to enactment of the law, from a prohibition
against such vendors in French Quarter. Court emphasized, “Rational distinctions [in
economic regulation] may be made with substantially less mathematical exactitude.” ....... 73
U.S. Dept. of Agriculture v. Moreno (1973, 645): Applied the “mere rationality” standard:
struck down provision of federal food stamp program, which limited assistance to
households of related persons, because the exclusion of “unrelated persons” was
“irrational,” “imprecise,” “wholly without any rational basis,” and “clearly irrelevant” to the
purpose of raising nutrition among low-income families and strengthening the agricultural
economy.................................................................................................................................................................. 74
Willowbrook v. Oleh (SCOTUS 2000) ......................................................................................................... 74
Cleburne v. Cleburne Living Center: (1985) (excluding mentally retarded from a
neighborhood) ..................................................................................................................................................... 74
Equal Protection and Race................................................................................................................... 75
Two Different Methods: Brown and Boiling: ........................................................................................... 75
Facially Neutral Yet Still Discriminatory ........................................................................................ 76
“Facially” Discriminatory Law............................................................................................................ 76
Strauder v. W. Virginia (1880): INVALIDATED statute denied African-Americans right to
serve as jurors. ..................................................................................................................................................... 76
Yick Wo v. Hopkins (1886): INVALIDATED: even when it appears neutral, if a clear pattern
emerges from the effect of the state action (one that’s unexplainable for reasons other than
race), then it is invalid....................................................................................................................................... 77
Plessy v. Ferguson (1896): Separate but Equal is VALID ................................................................... 77
Korematsu v. U.S. (1944): Extreme Military Necessity as a Compelling state interest .......... 78
School Segregation and Its Remedies: The Brown Revolution............................................... 79
Brown v. Board of Education (1954): overrules Plessy v. Ferguson: Separate but Unequal is
not constiutional ................................................................................................................................................. 79
Boiling v. Sharpe (1954): Desegregation is also applicable to the federal government........ 80
Brown II (1955): Remedies/Implementation of Desegregation (enforcement) with All
Deliberate Speed ..................................................................................................................................... 80
Cooper v. Aaron (1958) .................................................................................................................................... 80
Griffin v. Prince Edwards (1964).................................................................................................................. 81
Green v. County School Board (1968): freedom of choice plan: student could attend school
of his choice, which didn’t result in desegregation: in school district with 50% blacks, no
whites chose to go to the formerly black school, and 85% of the blacks remained. The
Court held this plan didn’t adequately desegregate. ............................................................................ 81
Swann v. Mecklenburg Sch. Dist. Court upheld a plan that used busing to compel
desegregation, but only if the distances weren’t too great. ............................................................... 81
Keyes v. Indep. Sch. Dist. No. 1 (1973): First of northern segregation cases. First time Court
confronts what obligations schools boards have in districts that were not explicitly
segregated. ............................................................................................................................................................. 81
Milliken v. Bradley (1974): End of unlimited desegregation ............................................................ 81
1973 - 1975: Question becomes, may the courts continue to police education to enforce
desegregation? ..................................................................................................................................................... 82
Suspect Classifications: Strict Scrutiny Standard ........................................................................ 82
Identification of Candidates: Anderson v. Martin: Court struck down law requiring each
candidate’s race appear on a ballot, because the statute was designed to help white
candidates at the expense of black candidates. Racial classification is not okay when it
promotes racism.................................................................................................................................................. 83
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Interracial Marriage: Loving v. Virginia (1967): identical and symmetrical punishment is
not okay for discrimination. Racial classification must in fact achieve a permissible
objective.................................................................................................................................................................. 83
Child Custody: Palmore v. Sidoti (1984): Interest must be compelling and the means must
be necessary to achieve the legitimate end .............................................................................................. 83
Prisons: Johnson v. California (2005): Strict Scrutiny Standard for all racial classifications.
.................................................................................................................................................................................... 83
The Impact Analysis Test: Today, we require Discriminatory Intent (Wa. v. Davis)+
Discriminatory Impact .......................................................................................................................... 84
Guinn & Beal v. U.S. (1915): elections officers prosecuted for violating federal prohibition
on racial discrimination: “federal crime to deprive someone the right to vote on the basis
of race.”.................................................................................................................................................................... 85
Identification of Candidates: Anderson v. Martin: Court struck down law requiring each
candidate’s race appear on a ballot, because the statute was designed to help white
candidates at the expense of black candidates. Racial classification is not okay when it
promotes racism.................................................................................................................................................. 85
Hunter v. Erickson (Akron, 1969): Facially neutral but effectively discriminatory ................ 85
Benign Classifications, Racial Gerrymanders, and Affirmative Action ......................................... 91
Affirmative Action Programs: ........................................................................................................................ 94
ALIENAGE ........................................................................................................................................................... 106
Federal Restrictions on Aliens: entitled to disparate treatment if there is no “invidious” intent.
.................................................................................................................................................................................................. 110
Gender Discrimination and the Racial Analogy: Middle Level Review ...................................... 112
Modern trend: Retreat to Intermediate Scrutiny/”Exceedingly Persuasive Justification”: Test
requires (1) important ends and (2) substantially related means ............................................................ 116
Fighting over classifications ....................................................................................................................................... 118
What are Fundamental Rights? Other Classifications....................................................................... 124
Education and Wealth: Not a fundamental right: mere rationality standard. ...................................... 124
Mental Handicap: “Quasi Suspect” Classification: Intermediate Scrutiny .............................................. 125
The right to procreate: Fundamental Right deserving Strict Scrutiny .................................................... 126
Voting Rights: usually triggers Heightened Scrutiny because of what is being allocated. .............. 126
Scope of Congressional authority to enforce 13th 14th, and 15th Amendments .............. 129
The 15th Amendment: forbids discrimination upon the basis of race...................................................... 131
14th Amendment Enforcement: Section 5 cannot be used to regulate private activity, but rather
only state activity............................................................................................................................................................. 132
This is contrast to the 13th Amendment, which Congress can use to prevent private
discrimination. .................................................................................................................................................................. 132
Individual Rights protected under DP or EP or both ..................................................... 138
Family Relations and Parental Rights ........................................................................................... 138
Meyer v. Nebraska (1923): 14th Amendment includes other rights, like freedom of
teaching and freedom of inquiry, fails mere rationality test: ........................................................ 140
Pierce v. Society of Sisters (1925): State law that requires children to attend public schools
is unconstitutional under DP : .................................................................................................................... 140
Loving v. Va (1967): invalidated Va. statute prohibiting interracial marriage and declaring
freedom to marry as fundamental right (violation of 14th DP.) .................................................... 141
Right to Control Pregnancy through Contraceptives: a fundamental right that is not
mentioned in the text but constitutionally protected. ............................................................ 142
Griswold v. Connecticut (1965): Right to privacy (contraceptives) protected under
“penumbra” of the Bill of Rights and no the DP of 14th ................................................................... 142
Eisenstadt v. Baird (1972): Court invalidated statute that permitted contraceptives to be
distributed only by registered physicians and pharmacists and only to married people. 143
Right to Abortions: A constitutionally recognized right ......................................................... 143
Roe v. Wade: (1973); Recognizes a constitutional right to abortion; state interest in
“prenatal life” subject to S.S. ........................................................................................................................ 143
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Abortion procedures: Doe v. Bolton: (1973): Companion to Roe; Ga. Abortion law
invalidated .......................................................................................................................................................... 145
Planned Parenthood v. Danforth (1976): Court struck down a spousal consent
requirement. Woman is more directly and immediately affected by the pregnancy. Also
struck down the requirement of a female under 18 getting the consent of her parents first.
................................................................................................................................................................................. 145
Maher v. Roe (1977): Mere rationality review: States may refuse to provide Medicaid
funding for non-therapeutic abortions: not necessary to protect mother’s health or life. 145
Carey v. Population Services Int’l (1977): Strict Scrutiny for laws restricting access to
contraceptives; NY law thus unconstitutional. .................................................................................... 145
Harris v. McRae (1980): Rejected Constitutional attack on federal funding limitations that
barred payments for most medically necessary abortions. ........................................................... 146
Akron v. Akron Center for Repro Health (1983): City ordinance requiring physicians to
inform women seeking abortions about the development of the fetus and that the “unborn
child is a human life from conception” is unconstitutional ............................................................ 146
Thornburgh v. American College of Obst. & Gyn (1986): Court reaffirmed Roe v. Wade:
holding a woman’s right to make the choice freely is a fundamental right ............................. 146
Webster v. Reproductive Health Services (1989): State may prohibit all use of public
facilities and publicly employed staff in abortions: Seems to recognize that state has
compelling interest in protecting fetal rights, though does not overrule Roe........................ 146
Rust v. Sullivan (1991): Government may, as a condition of funding family-planning clinics,
insists that the doctor or other professional not recommend abortion, and not refer clinic
patients to an abortion provider. .............................................................................................................. 147
Planned Parenthood v. Casey: (1992): Upheld Roe (government may not ban abortions
prior to viability) but may regulate abortions before viability as long as it does not place an
“undue burden” on access to abortions (Undue Burden Test). In this case, 24-hour wait is
okay (does not place an undue burden on women.) ......................................................................... 147
**Stenberg v. Carhart (2000): First time Court expressly adopted and applied the Undue
Burden Test to strike down state law banning partial-birth abortions .................................... 148
Gonzales v. Carhart (2007): Upheld Partial Birth Abortion Ban Act: Distinguished Stenberg
and validates ban under 5th amendment DP (regardless of the fact that the procedure was
banned for all women, even in cases when the woman’s health is at risk.) Landmark (first
time a procedure is banned even though it might be necessary for patient’s health.) ....... 148
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FOUNDATIONS
General Constraints:

Whether power is delegated (19th Amendment), Necessary and Proper Clause

H+S+P

Explicit decisions on what laws can be made (B of R)

Enumerated rights are not exhaustive or exclusive.
Marbury v. Madison (1803): Judiciary has power to declare constitutionality
Timeline
1776 Declaration of Independence
1777 Articles of Confederation
1781 A of C ratified
1787 Constitution proposed
1788 Constitution ratified
1788-92 Washington
1789 Judiciary Act
1796-1800 Adams
1798 Sedition Act: criminal action against public disparaging of public officials (attempt to use system to
target legitimate political opposition: the Jeffersonian Republicans, who retain control of certain states,
especially KY and VA, who maintained that Sedition Act was unconstitutional.)
1799 KY/VA
1800 Jefferson
1.
2.
b.
Facts: Refusal to turn over appointment of Justice of Peace of DC (midnight appointment of Adams,
which was signed and then sealed by Secretary of State Marshall, but not delivered.) Madison, new
Secretary of State, refuses to deliver. Madison fails to respond to mandamus demanding a showing
of cause. H: P has right to remedy, but Judiciary Act, which Marbury said conferred jurisdiction to
SCOTUS to issue writ of mandamus, is unconstitutional because it conflicts with Article III.
Central Issue: Does S.C. have right to review acts of Congress and declare them void if they are
deemed unconstitutional in light of Court’s interpretation of the Constitution? Yes!
i. Marbury has right to his post and 2. The country affords a remedy. 3. However, SCOTUS
does not have original jurisdiction under A3 (since P sued in SC, then there is no appellate
J)
J. Marshall’s analysis:
i. Does Marbury have right to commission? Yes because all appropriate procedures had been
carried out
ii. Does the law afford him a remedy? Yes, but is the judiciary allowed to give a remedy
against the executive branch? Majority says yes when there is a specific duty to a particular
person but not when it is a political decision left to executive discretion.
1. Secretary of state is an agent of law (“a government of law, not of men.”)
2. Legal issue (not political issue—not non-reviewable power of action vested in
Executive Branch.) The refusal to deliver was not vested in the Executive, but
rather a duty imposed by the Legislature. Therefore, Secretary of State is not
acting on behalf of Executive, but as an officer of the law. Rule of law requires a
remedy, therefore there is acceptable reason for writ of mandamus
3. Establishes the power of the judiciary to review the constitutionality of
executive actions.
iii. Can SCOTUS issue this remedy? No because there is no original jurisdiction
1. Read the Judiciary Act of 1789 not to confer original jux but to grant remedial
powers when the Court had jurisdiction.
2. Congress cannot enlarge the jurisdiction of the Court as enumerated in
Article III.
iv. The Judiciary Act is unconstitutional.
1. Establishes the right of judicial review: “It is emphatically the province and the
duty of the judicial department to say what the law is.”
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v. KEY: Marshall lost the battle but won the war: he conceded this commission issue but
secured the authority to review executive actions.
Reasoning
i. Judiciary Act of 1789 allowed S.C. to have jurisdiction, “to issue writs of mandamus to
persons holding office under the authority of the U.S.
1. Act at odds with Constitution: grant of jurisdiction permitted by Act conflicts
with Article III, Sec. 2 of Constitution, which grants S.C. original jurisdiction
only, “in all Cases affecting Ambassadors, other public Minister, and Consuls, and
those in which a State shall be Party.” Issuance of mandamus isn’t among
situations, which Constitution conferred jurisdiction to S.C., and thus
congressional statute conflicts with Constitution. A3 can also be read broadly,
granting Congress right to add to the power of SCOTUS
ii. Key: Constitution is the Supreme Law: S.C. has power [implied from Art. III., Sec. 2 of
Constitution] to review acts of Congress, and if these statutes are found unconstitutional to
declare them void.
1. Constitution is paramount: purpose of written constitution is establish
fundamental and paramount law, and any act of legislature repugnant to
Constitution is void. If Constitution wasn’t paramount it couldn’t be permanent
expression of foundational beliefs. (As opposed to England, where there was no
written constitution)
iii. Who interprets: “It is emphatically the province and duty of the judicial department to say
what the law is.” S.C., not Congress, makes determinations whether act of Congress
conflicts with Constitution.
1. There is no judicial review clause in Constitution (but also no congressional
review clause); nowhere is it stated courts and not Congress should decide
whether statute conflicts with Constitution. But Federal judges are appointed
for life, and are free from political pressures. Congress will respond to majority’s
will to get reelected, but function of the Constitution is to protect minorities.
Judges interpret Constitution in manner more sensitive to goal of protecting
minorities.
McCulloch v. Maryland: (1819) Federalism and Federal Power:
Timeline
 1781 A of C ratified
 1787 Constitution proposed
 1791: Bank of US I (charter expires 1811)
 1801: Jefferson
o 1803: LA Purchase
 1807: Madison
o 1812: War of 1812
o 1816: Second Bank of US charter issued
 1817: Monroe
 1817-1819: slew of states imposing taxes on Bank of the US branches
o 1819: McCulloch v. Maryland
1.
2.
3.
Federalism: U.S. is federalist system: national and state governments coexist. Federal power is limited
to enumerated powers. However, state governments hold a general police power: power to protect
health, safety, or general welfare of state residents. Thus, state action is valid unless it violates a
specific constitutional limit, whereas federal action must fall within one of enumerated constitutional
powers.
Enumerated Powers: Article I, Section 8 is the principal grant of specific federal power to Congress.
Among important powers explicitly given Congress are: (1) lay and collect taxes; (2) provide for the
defense of the country; (3) borrow money on the credit of the U.S.; (4) regulate commerce with
foreign nations, and among the several states, (5) regulate immigration and bankruptcy; (6)
establish post offices; (7) control the issuance of patents and copyrights; (8) declare war; (9) and the
Necessary and Proper Clause, infra.
Doctrine of Implied Powers: federal government can act only when affirmatively authorized by
Constitution, but authorization doesn’t have to be explicit. Federal government, especially Congress,
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may exercise power ancillary to one of powers explicitly listed in Constitution, as long as ancillary
power reasonably relates to an explicit grant of power, and doesn’t conflict with specific
Constitutional prohibition (is legitimate government action).
“Necessary and Proper” Clause: explicitly states notion of implied powers [Article I, Sec. 8, Cl. 18]:
Congress may “make all Laws which shall be necessary and proper for carrying into Execution” the
specific legislative powers granted by Article I, Sec. 8, or by other parts of the Constitution.
McCulloch v. Maryland (1819): Congress charters Bank of U.S.; regulate currency, solve economic problems.
Maryland imposes tax on banks operating in the state that weren’t chartered by the state.
1. F: MD taxes Bank of US, MD sues for payment and wins. McCulloch sues.
2. Issues:
a. Constitutionality of taxing Bank (and if Bank is constitutionally legitimate)
b. Default to the states or default to the people of the states (determines where un-enumerated
powers go to.) SCOTUS says its for the people of the states. The Articles of Confederation
expressly delegated remaining non-enumerated power to states. The Constitution remains
broad enough for SCOTUS to interpret.
3. Held:
a. J. Marshall: Issue One: Does Congress have the power to incorporate the Bank (Is bank
constitutional)? Yes.
i. Is the constitution a contract between sovereign states or between the people of the
United States for their collective benefit? Marshall concludes that it’s a constitution “by
the people, for the people.”
ii. Constitution is not a legal code: can’t contain all means by which enumerated
powers can be carried into execution. Bank is a method used to lay and collect taxes
and support armies. Otherwise, Constitution would be too complicated for citizens to
understand; citizens must be able to understand Constitution, because people
ordained Constitution and not states.
iii. Grant of power need not be explicit: powers can be implied from explicit grant of
other powers. Constitution gives Congress certain enumerated powers, and the
Necessary and Proper Clause (General provisions clause) of Art. I, Sec. 8 gives
Congress discretion enact reasonable means [implied powers] to accomplish expressly
stated powers.
1. 10th Amendment: only says powers “not stated” and not “not expressly
stated,” which means even those powers not specifically enumerated are not
necessarily reserved in the states.
iv. Key: Standard for the Necessary and Proper Clause: means must be rationally
related to an enumerated end, and not violate a specified prohibition. If Congress
acts under pretext to accomplish goals not enumerated in the Constitution or Congress
passes a statute that clearly doesn’t have a reasonable connection to an enumerated
end, the Court must strike down the statute.
v. Applied to the Bank: Maryland reads word “necessary” strictly as meaning absolute
and indispensable, and the Bank isn’t necessary for carrying out an enumerated power.
However, “necessary” should be read broadly: convenient, useful, and not
absolute necessity. Chartering a Bank is valid, because it bears a reasonable
relationship to various enumerated powers (power to collect taxes, regulate
commerce). “Means which are plainly adapted to that end.” (68)
1. Support for liberal interpretation of “necessary and proper” Constitution
doesn’t contain specific grant of power to punish violation of federal laws, but
this power always been inferred. Similarly, enumerated power establish post
offices and post roads substantially expanded to include federal prohibition of
mail theft. Yet these exercises of power couldn’t be termed indispensable to
carry out constitutionally enumerated end.
b. Issue Two: Is federal government immune from taxation by States (Is tax on Bank
unconstitutional)? Yes: no explicit clause in Constitution saying states can’t tax federal
institutions. Yet, Constitution and laws made pursuant to it are supreme over state law
(Supremacy Clause: Article VI). States didn’t delegate power to federal government, but
rather citizens delegated power to federal government. Thus, States may not tax those don’t
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represent; a state can’t tax federal organization because federal organization represents entire
nation and state doesn’t represent entire nation. Also, power to tax involves power to destroy;
states can’t have power to destroy federal institutions, because States have no power, by
taxation or otherwise, to impede, burden, or in any manner control the operations of
constitutional laws enacted by Congress; the federal Constitution must be preserved against
such state interference.
i. Interpretation
1. Plain language? (suggests that enumerated powers are limited.)
2. There must be some minimal level of empirical possibility
3. Spirit of the constitution suggests that there are areas confined and exclusive
to the states
ii. Is the power to tax is power to destroy?
1. Power to tax is constrained by the power of unhappy citizens to retaliate but
not re-electing officials.
Constitutional Interpretation: Dred Scott v. Sanford: (1857): Original Intent/Static Const.
1.
2.
3.
4.
5.
Historical Context: Northwest Ordinance sets up basic governing structures and forbids slavery in
Northwest territories. (1789): These become separate states each entering into the Union. In 1808, LA
purchase is bought from France, includes new states like MI and other Midwest states. Initially, federal
government set up territorial governance and, in the interim, Congress passes the 1808 deadline for
migration and importation of slavery (asserts power under interstate commerce clause.) 1807:
Congress says slave trade on high seas is piracy and 1820: MI Compromise (admitting Maine as a Free
State and MI as a Slave State. MI Compromise also prohibits slavery in LA purchase north of the
southern boundary of MI.)
Facts: Dred Scott was a slave owned by a Missourian, John Emerson, who traveled with Emerson and
his family in Illinois and in the Missouri territory before returning to Missouri. Scott claims that, having
been taken voluntarily into Free area, they are thus free.
PH: Dred Scott brought an action claiming that his earlier presence in the free state and territory
liberated him from slavery. Sanford contested the court’s jurisdiction on the ground that a Negro of
African descent was not a citizen of Missouri or the United States. Court decided for Sanford on the
ground that although Scott was entitled to his freedom while in Illinois and the Missouri territory, his
status as a slave reattached upon his return to Missouri. Scott appeals to the S.C.
Cause of Action, Dred Scott sues in federal court, alleging diversity of citizenship, and claiming his
earlier residence in free state made him liberated slave, and Sanford assaulted both he and his family.
Issues:
a. Missouri law governs (6) because they return to MI
b. Can Dred Scott bring suit (regardless of whether or not he was free): No because he is not a
citizen.
i. Article IV Section 2 grant powers to citizens (including interstate travel, and etc.)
Taney seems to be concerned about the possibility of a slave rebellion if emancipated
blacks were made into citizens (spreading the prospect of freedom into slave
territories.)
ii. Textual provisions of Constitution do not provide much support for Taney
1. ArtIV Section 2: Fugitive Slave Clause: from this Taney concludes that blacks
can never be citizens.
2. 3/5 clause: distinction between free persons and slaves. But this seems to
suggest that emancipated slaves are free persons.
iii. Taney thus relies on historical context and state provisions
1. Original Intent Justification: “Framers” didn’t intend clauses regarding
citizens’ rights espoused in Declaration of Independence and Constitution to
include African-American descendants of slaves.
2. Textual Support: (a) Right to import slaves until 1808 and (b) Fugitive Slave
provisions. (c) militia restrictions. These prove that the Negro was not
included in the “Citizen” of the U.S. Constitution since if it had been, they
would have been guaranteed the inalienable rights that are subjected here.
a. The historical background of slavery in England was imported to the
Americas and stood strong. No reason to think that there was any
intention to change them
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b.
6.
7.
8.
9.
The Constitution was ratified by representatives from slave owning
states, who we presume were careful enough to protect their
interests
c. Problems with original intent? (1) static instrument may be engine of
evil as moral judgments change.
c. Dred Scott was not free even if he had standing to bring suit. Taking him to the MI territory
does not grant freedom once he returns to MI and Missouri Compromise was
unconstitutional
i. Constitution grants the power to own slaves explicitly (by providing an expiration date
for the slave trade and guarantees the right of slavery by providing that an escaped
slave must be returned to his owner if found. Congress, ruling over a territory, has
discretion, but cannot let that discretion contradict the rights promised in the
Constitution. Therefore, Congress has no right to authorize the Missouri
Compromise and ban slavery in the LA purchase, according to the 5 th
Amendment takings clause. Thus, even if Dred Scott was brought to Missouri, he
would not have been freed.
ii. Federal court lacked jurisdiction over Scott (2)
1. The Constitution authorizes Congress to take full control of naturalization
process, to render a man a citizen, but this applies only to white alien men.
Static or Evolving Constitution: Should Court strictly interpret intent of “framers” of Constitution or
treat Constitution as a foundation on which to build an evolving body of law that meets the
views/needs of current American society.
a. J. Taney: only way the law can be changed is through amendment; courts aren’t meant to
change the Constitution, but rather interpret the Constitution.
b. Counterargument: (1) static Constitution may become an instrument of evil as the moral
judgments of the nation change; (2) Presently elected legislatures should rule not Framers; (3)
original intent still requires judicial interpretation, and allows judges to pass moral judgment,
and why focus on intent and not text?
Reasoning: Are free African-Americans citizens of the U.S. entitled to rights of citizens? No.
Holding:
a. Dred Scott’s status was governed by Missouri law (reaffirmed Strader/Graham)
b. Missouri Compromise was unconstitutional
c. Federal court lacked jurisdiction over Scott’s claim
Responses
a. Did Taney got the original intent wrong? (the evidence upon which he relies on can come
into tension with his claims)
1. Expectation that slavery would continue at time of framing is not exclusive of those who
were not enslaved (technically.) “Persons held to service” are required to be returned
and that “persons who are in bondage” only count as 3/5 for census—however, “persons”
who are not held in bondage, are counted as 1. The world outside of Taney’s account is
substantially more complicated.
2. Why include “white” in discussing militia and naturalization if Africans cannot conceive
of being citizens? What about women?
3. One could say that slavery is a tragic compromise whose existence is left to future
generations to decide.
ii. Original intent should not be the folcrum of constitutional interpretation as Taney makes
it.
1. Intent is not self explanatory. Intent contains contradictory strands and the courts merely
just pick which intents should be brought to the surface.
2. Reliance on specific intentions make the constitution static. Even Taney admitted that the
interpretation of intent conflicted with cotemporary view of justice. As moral
understanding evolves, the constitution should not restrain the people from evolution
accordingly.
3. To the extent that one relies on the intention of the Framers and Ratifiers, there was no
adopted legal code. This was a text, with an intent that the constitution serve the needs of
the people.
4. Taney does not in fact adopt an originalist approach (b/the Congress preceding and
following banned slavery in the MI Territory) Taney is addressing contemporary
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necessity and prudence (about returning property, and the sectional conflict over
slavery.) The idea that slavery was a right protected by the constitution may be just to
avoid sectional tension.
Rather than looking at contemporary meaning of words, Taney is trying to recapture the meaning of the doctrine as
promulgated by the States as they entered the agreement. Primary proposition is that the role of the court to enforce
the law given by the original promulgators. Taney’s underlining proposition is the fixed and universal opinion at time
of framing (that Blacks were beings of “inferior order” and thus could not be conceived to have the rights granted by
citizenship.): 1) slavery was a fixed element of England and the world of the framers 2) slavery was limited to persons
of African heritage. The underlying claim is that if slavery is legitimate of African Americans, they cannot have rights
(otherwise slavery would be an abomination. 2) state laws of the colonial era (including harsh penalties for inter-racial
marriage, indicating an “impassable barrier” and 3) the Declaration of Independence would have been self impeaching
if Blacks were included (Framers had to assume that opinion of mankind did not include Africans.)
Taney goes on to a textual analysis (constitutional prohibition on importation and transportation of slaves, Fugitive
Slave Clause) presupposes that slavery is legitimate because Africans are not individuals. Militia was limited to white
citizens and that only citizens that could be naturalized were free white citizens.
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FEDERAL COMMERCE CLAUSE
Justifications:
1. Enumerated powers are not exhaustive nor exclusive (10 th amendment)
2. Commerce clause allows necessary interference with internal concern when they substantially affect
interstate commerce or the rest of the nation. When it is necessary to interfere to exercise federal
power (even if it is in itself local commerce), this is also legitimate. (Mucolloch’s “necessary and
proper”) Abuse of discretion requires a remedy in the political process and not the judicial court. The
political process allows for local concerns to come to attention.
Concerns that emerge in an increasingly large commerce society:
1. To what extent does the constitution construed by the court contain efforts to regulate activities outside
of commerce
a. E.C. Knight says that there is a distinction in kind between manufacturing and commerce.
Courts are much better making these distinctions than distinctions of quality.
b. Shreveport was more willing to look at direct v. indirect processes. They are willing to say that
the intrastate of a interstate entity can be viewed as having a sufficiently direct impact on
interstate commerce if the court can discern that the government is engaged in an legitimate
effort to stop that intrastate impact from crippling interstate commerce.
2. Ability of Congress to impose regulation on interstate transportation of goods leads Congress with the
ability to have impact outside of interstate commerce regulation
a. Champion/Ames, in helping the state extripate the immorality of gambling, the state prohibits
interstate travel of lottery tickets. This is also is the case for prostitution.
3. What limits are there?
a. Political limitation if Congress is engaged in legitimate action (Hammer)
b. Hammer: does allowing indirect action extinguish 10th amendment?
1824: Gibbons v. Ogden (state monopoly interferes with Commerce Clause)
1865: Paul v. VA (making of insurance contracts by out of state insurers. Held that making contracts was not
commerce and that because the contract of insurance was consummated at the place of delivery, it was also not
interstate.)
1887 – 1937, Court rejected Gibbons by finding that 10th amendment reserves a zone of activities for the
states.
1887: ICC (1887)
1888: Kidd v. Pearson (1888)
1890: Sherman Act of 1890
1895: E.C. Knight
1903: Champion v. Ames
1911: Hippolte Egg
1913: Hoke
1917: Commetti
1914: Shreveport
From 1937- 1990, Court returns to Gibbons (only exception: Nat’l Cities v. Usery in 1976 which overruled Garcia v.
San Antonio.
Commerce Clause Generally: Article I, Sec. 8 of the Constitution: It is upon the commerce power that many,
perhaps most, congressional activities are based. The Commerce Clause serves as a source of congressional
authority, and limit state legislative power.
Historical context: hoped that this would prevent hostile state restrictions and retaliatory regulations,
promoting a national market and curbing balkanization of the economy.
Strains the limits of national regulation through prolific litigation.
Current Test for Congress’ Commerce Power: A congressional act comes within CC power if it:
Substantially affects commerce: the activity being regulated substantially affects commerce; and
Reasonable Means: the chosen means is reasonably related to Congress’ objective in regulating.
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1824-1936: Early Development of Commerce Clause Doctrine:
Central Issue: What limits should be placed on Congress’ ability to regulate under authority of the Commerce
Clause and what areas of commerce should be left for the States to regulate alone?
**Gibbons v. Ogden: the First Case (1824): Groundwork: The Interstate/Intrastate Distinction:
First major case construing Commerce Clause. Conflict between power within NY and the authority of
Congress to regulate commerce among the States.
1. Facts: N.Y. legislature grants Ogden monopoly rights to operate steamboats between N.Y. and NJ.
Gibbons, licensed under federal statute, begins operating a steamboat in violation of Ogden’s state
granted monopoly.
2. J. Marshall: Held: N.Y. law invalid; violated Supremacy Clause/Commerce Power
a. Two dimensions of reasoning:
i. “commerce” = all commercial intercourse, including navigation)
ii. “Among the States” = “in the midst of” (sets gray line when the court decides to not
limit the definition to only interstate commerce nor capping it to include all interstate
and intrastate commerce.)
b. The fact that states retain their authority over internal concerns doesn’t prevent Fed from
controlling matters that affect the states generally. If interstate commerce is affected
intrastate commerce, the latter can be controlled.
3. Marshall suggests that if activity is indeed interstate commerce, then there are limitations of the states
on their power to regulate it: Negative Commerce Clause/Dormant Commerce Clause (states may
not interfere with interstate regulations even if Congress has not acted. This becomes the basis for
many of the constitutional cases that define the Commerce Power.)
4. Broad view of Commerce Power:
a. Ogden argues a strict definition of “commerce” so navigation should no be included under the
power of the federal government.
b. Textual support
i. Navigation has to be included because Congress has power to determine who could be
a Seaman and also Congress has power to control international commerce (which
necessitates navigation.)
ii. Article I, Section 9: “No preference shall be given by any Regulation of Commerce or
Revenue to the Ports of one State over those of another; nor shall Vessels bound to, or
from, one State be obliged to enter, clear, or pay Duties in another.”
iii. Congress can legislate with respect to all, “commerce, which concerns more States than
one.”
iv. Commerce is not only buying and selling, but also, “all commercial intercourse
between entities.”
v. Congress may affect intrastate matters as long as the activity has some commercial
connection with another state. However, “the completely internal commerce of a State
is reserved for the State itself.”
5. Interference with State Sovereignty?
a. The sole restraint lies with the people who control their representatives through elective
government.
b. Marshall maintains that transportation between NY and NJ becomes interstate.
i. Commerce power may be used to “utmost extent”: No area of interstate commerce is
reserved for state control. The only restriction on Congress’ power to regulate
interstate commerce is congressional wisdom, the democratic process, and the
Constitution, and this view implicitly rejects 10th Amendment as an independent limit
on Congress.
6. Post Gibbons:
a. 1824- 1887: Court rarely departed from Gibbons (except two: U.S. v. Dewitt & The Trademark
Cases not mentioned by Kreimer)
b. From 1887 – 1937, Court rejected Gibbons by finding that 10th amendment reserves a zone of
activities for the states.
c. From 1937- 1990, Court returns to Gibbons (only exception: Nat’l Cities v. Usery in 1976
which overruled Garcia v. San Antonio.
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**Kidd v. Pearson (1888): Difference between commerce and “primary productive activities.”
1.
2.
Facts: prohibition of manufacture of liquor within boundaries of a state.) Concern of retaining state
autonomy outside of interstate commerce. Leads to distinction between commerce and production.
a. Manufacturing is not interstate commerce even if designed for export. Primary productive
activities are not “commerce.” J. Lamer: if contemplation of future commerce meant that
manufacturing was included into interstate commerce, then Congress would have control
over pretty much everything, including agriculture, stock raising, fisheries, mining, and etc.
From Gibbons until the late 19th Century the S.C. didn’t considerably comment on Congress’ powers
under the Commerce Clause.
1880-1937 : Rejection of Gibbons and rise of Dual Federalism
Test: (1) Does it fit under “commerce” definition (2) Does it fit under “among the states”
definition (direct logical relationship or substantial effects) (3) Even if it’s covered by
Commerce Power, does it infringe upon the activities reserved to the states protected
under 10th Amendment?
Court was controlled by conservatives Justices deeply committed to laissez-faire economics and
strongly opposed to government economic regulations. Many federal laws were invalidated as exceeding the
scope of Congress’s commerce power or as violating the 10th Amendment and the zone of activities reserved
to the states. This marks the first time that Court aggressively used its power to judicial review to invalidate
federal and state laws.
Dual Federalism was popular (view that state and federal governments were separate sovereigns
that each had separate zones of authority and that it was judicial role to protect the states. Doctrines of
Dual Federalism:
“commerce” = narrowly defined: “one state of business, distinct form earlier phases such as mining,
manufacturing, or production, which were left to States.”
“among the states” = Congress can regulate only when there is a substantial effect on interstate
commerce.
10th Amendment reserved zone of activities to the states and even federal laws within the scope of
the commerce clause were unconstitutional if they invaded the zone.
C.C.
10th A.
Reserved to
States
under 10th.
1.
2.
Court reviewed and frequently struck down 2 types of congressional legislation premised on commerce
power: (1) economic regulatory laws; and (2) “police power” regulations (moral regulations)
Economic Regulation: the Court’s review of economic regulatory laws was based on “dual federalism” :
certain areas of economic life, under 10th Amendment, left to States, and other areas left under federal
control. These are not overlapping.
a. Federalist Papers 51: checks and balances to preserve power balance. Certain areas are
reserved for states. Local political power interacts with federal power because local power
can provide the basis for potential political responses that challenge the national majority at
a broader level.
b. Political check: This interaction provide nexuses of alternative political government that can
challenge the prevailing majority.
c. Individual check: Challenge of allowing local control is that if one doesn’t like one state’s
regulations, one can go to another state. To the extent that individuals have the capacity to
change their residences, the ability of different states to adopt different commitments is a net
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2.
M. Cheng
advantage to the prospect of liberty (would not be the case if everything was arranged on the
basis of national constituency.)
d. Federalist 46:
e. Tension between the idea that powers granted are enumerated (enumeration presupposes
things not enumerated, and explicit language of 10thA) and the proposition that the
constitution is designed to empower the nat’l government forms the matrix into which the
commerce clause is placed.
Fear: if there was no clear distinction between primary activities like manufacturing and commerce,
then the federal government might be able to regulate everything.
The “Manufacture” v. “Commerce” Distinction and the Direct Relationship to
Commerce Requirement:
In the 19th century, three principal judicial approaches emerged from challenges to federal statutes like the
Interstate Commerce Act of 1887 and the Sherman Antitrust Act of 1890, all in response to increased industrial
development.
Direct or Indirect affect on Commerce: essential and direct nexus between activity and commerce
confinement is necessary
**U.S. v. E.C. Knight (1895) Manufacturing is not commerce
1.
2.
Facts: Sugar refinery attempts to monopolize sugar refining (manufacturing) and federal
government tries to force it to divest refiners under Sherman Act, Section 1 which prohibited
mergers “in restraint of trade or commerce among the several states.”
Held: Congress can’t, under Commerce Clause, forbid monopoly in “manufacture.” Refinery
manufacturing operations left to state control under dual federalism. Even though sugar was
eventually sold “in commerce,” this was irrelevant, because the manufacturing operation’s
relation to commerce was only “incidental and indirect.” For Congress to be able to regulate
the industry must have a direct logical relationship to commerce. Dissent: manufacturing is
a key component of commerce and monopoly of manufacturing necessarily and directly leads
to constraining interstate trade.
**Kidd v. Pearson (1888) (alcohol manufacturing is not okay in state with alcohol manufacturing
prohibition even if intent is to export.)
Substantial Economic Effects Test: less hostile standard than direct relationship standard: Congressional
regulation falls within commerce power as long as activities being regulated had a “substantial economic
effect” upon interstate commerce. The quantitative effect of activity on interstate commerce must be
substantial (this standard did not focus on whether the nexus between the activity and commerce was “direct”
as E.C. Knight had previously).
**Shreveport Rate Case (1914): Substantial Economic Effects Test
1.
2.
3.
Facts: Intrastate railroad rates were much lower than interstate rates. Interstate Commerce
Commission filed for price discrimination and asked for congressional regulation.
Held: As long as the activity regulated has a substantial economic effect on interstate
commerce Congress can regulate intrastate travel as well because they have a substantial
economic impact on interstate transportation: higher interstate rates retard interstate
commerce. Thus, when there is intrastate and interstate commerce issues at play, Congress is
supreme over all.
Two ways to see the case
a. Stands for the proposition that Congress can reach into intrastate commerce to
directly exert control whenever it can legitimately discern an impact on interstate
commerce
b. The court doesn’t abandon the distinction set by EC Knight, but rather Fed is
regulating an interstate railroad (which is a direct tool of commerce) within a single
state (which is coincidental.)
**Swift & Co v. US (1905) : Stream of Commerce Test (not usually used)
1. Facts: Sherman Act injunction against price fixing by meat dealers
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2. Held: Holmes: placing a product in the stream of commerce is part and incident of interstate
commerce. Interstate commerce is “not a technical legal conception, but a practical one, drawn
from the course of businesses.”
3. Stream of Commerce test: some local activities could be regulated by Congress because they
could be viewed as “in” commerce or as an integral part of the “current of commerce”
State Sovereignty and the Commerce Clause: 10th Amendment could protect activities reserved to the states,
even if they could be covered by Commerce Clause
“Police Power” regulations and commerce-prohibiting techniques: Congress used technique of
prohibiting interstate transport of certain items or persons for economic matters, as well as for “moral”
regulation” to prevent “objectionable commodities” or “objectionable transactions” across state
borders. (During the first two decades of the 20th century, Court was substantially more sympathetic to
this technique than direct regulation of intrastate affairs.)
**Champion v. Ames (The Lottery Case, 1903): Lottery tickets as an evil that validates
Congressional action
1. Facts: Federal Lottery Act of 1895 prohibits interstate transport of lottery tickets. This does not
necessarily interfere in-state commercial development.
2. Held: Act is constitutional, because lottery tickets are an “evil” which Congress should regulate,
and Congress only regulated interstate shipment of these evil articles; wasn’t interfering with
intrastate matters. Some states forbid lotteries, and Act aimed to protect infiltration of tickets to
those states.
a. “Judiciary may restrain the exercise of lawful power on the assumption that a wrongful
purpose or motive has caused the power to be exerted.”
3. J. Fuller’s Dissent: Simply transporting tickets doesn’t make tickets “article of commerce,” and to
say that it does would make anything transported an article of commerce.
4. Champion paved the way for regulation of objects or persons: Congress began regulating
intrastate activity to enforce bans on interstate activity in response to Court’s favorable view of
commerce prohibiting technique.
Impure foods: Hipolite Egg Co. v. U.S. (1911)
1.
Shipment of adulterated eggs confiscated after arrival in state under Pure Food and Dugs Acts
of 1906. Issue: whether articles, which are outlaws, may be seized wherever they are found.
Held: Yes: right to seize these articles prevents physical movement and use of adulterated
article. Stopping them from interstate travel is constitutional.
Hoke v. U.S.: upheld act relying on the moral argument set forth in Champion.
Prostitution: Mann Act: prohibited transportation of women between states for immoral purposes.
**Child Labor Case: Hammer v. Dagenhart (1918) state sovereignty over child labor:
1.
2.
3.
Facts: Court struck down federal statute prohibiting interstate transport of articles produced
by companies employing child labor.
Rationale: unlike Champion where lottery tickets themselves evil, goods are harmless, only
employment of child labor was evil, and this wasn’t directly related to interstate commerce
(E.C. Knight rationale). If prohibition on interstate commerce was allowed here, all
manufacturing intended for interstate shipment would be under federal control; would
encroach on authority of States control over manufacturing intended for interstate shipment.
J. Holmes’s Dissent: most significant opinion: the statute is within enumerated powers of
Congress, and even though regulation would have a collateral effect on local activities and is
otherwise left to state control, doesn’t mean the statute us unconstitutional.
a. Implicitly rejects 10th Amendment as source of limitation on federal authority, as long
as the congressional activity falls within an enumerated power, and this highly
restrictive view of the 10th Amendment became the majority view in 1937 and has
endured until today. When prohibited things travel across state lines, they become
subject to regulation
Court Barriers to New Deal legislation: As New Deal began to be implemented became clear Court would use
E.C. Knight approach (required “direct” and “logical” relationship between intrastate activity being
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regulated and interstate commerce) to strike down any congressional regulation Court felt was reserved to
States by 10th Amendment.
First test: Railroad Retirement Board v. Alton Railroad Co.: Congress lacked power to establish a
compulsory retirement and pension plan for all carriers subject to Interstate Commerce Act.
Pensions were related to efficiency of transportation and social welfare of worker was remote
from commerce regulation. Invalid regulation of in-state social welfare (not protecting interstate
commerce.)
**Schecter Poultry Case (1935) There must be a direct and logical relationship to interstate
commerce
1.
Facts: National Industrial Recovery Act authorized President to adopt codes of fair competition
for industries including minimum wages, prices, and maximum hours. D convicted of violating
wage and hour provisions. Even though 90% of poultry sold in N.Y. comes from interstate
commerce; Schechter Corp.’s Brooklyn slaughterhouse only resold to local dealers. Thus, the
Act unconstitutionally regulated intrastate activities and exceeded the commerce clause.
2. Government argues: (1) activities within the “stream of commerce”: chicken trade, and (2)
activities, though completely local, had substantial affect on interstate commerce (Schechter’s
wage and price policies might forced competitors to lower their prices).
3. Held: invalid because it is only an indirect effect
a. Not in stream of commerce: Schechter bought and sold through intrastate commerce
(not part of a stream of commerce), and activity was within state
b. Not affecting commerce: Congress can’t regulate, because the impact of this
intrastate commerce on interstate commerce was much too indirect (E.C. Knight). If
wage policies of intrastate enterprise were sufficiently direct impact on interstate
competitors so would all other cost components of the intrastate enterprise, and no
facet of intrastate enterprises would be beyond congressional control.
**The Carter Coal Case (1936) Test: (1) what is “commerce”?: narrow definition in order to
avoid Slippery Slope fears.
1.
2.
3.
4.
Invalidated Bituminous Coal Conservation Act, which set maximum hours and minimum
wages for workers in coalmines. Not sufficiently direct to warrant federal regulation.
J. Sutherland: Effect of labor provisions in act deal more with production/manufacture, and
not commerce (E.C. Knight), and thus the activity was purely a local matter, even though
materials would be sold in interstate commerce eventually. The employer-employee
relationship was a “local relation,” and any evils involved would be “local evils” over which
federal government has no control. Also, the production didn’t “directly affect” interstate
commerce.
a. Pricing is in-severable form labor provisions and hence invalid.
b. Extent does not matter (the huge extent does not override concerns that it
might be a strictly state issue)
Dissent: Cardozo, Brandeis, Stone: price provisions are constitutional and suit was
premature with respect to labor provisions. “Direct” and “indirect” should not be read too
narrowly
FDR’s attempt at court packing in 1937 (p95) and the switch of Justice Roberts to favoring the
court-packing plan. While the amendment was rejected, FDR claimed he had lost the battle but
won the war—SCOTUS was a little more generous to regulatory cases.
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Federal Commerce Clause: 1937-1995: Rise
M. Cheng
1937-1995: Rise of Commerce Clause Power
Opening the door to constitutional challenges: Court became more willing to defer to legislative decisions after
the Great Depression hit. The previous decisions were intellectually vulnerable b/they seemed to be based on
arbitrary distinctions. The Depression made laissez-faire economics seem untenable as unemployment spread
and wages dropped. When FDR was elected on landslide victory, the Switch in Time that Saved Nine made the
court more favorable to economic regulation.
Under present doctrine, Court will uphold commerce-based law if the activity being regulated “substantially
affects” interstate commerce.
Through three theories the Court expanded the reach of the Commerce power:
1. An expanded “substantial effect” theory,
2. A “cumulative effect” theory, and
3. Expanded “commerce-prohibiting” protective technique.
4. Expanded “Substantial Economic Effect” Test: Loosened “direct” relationship required between the
regulated intrastate activity and interstate commerce (E.C. Knight). Under Commerce Clause, Congress
has power to regulate any activity, even intrastate production, if activity has an appreciable effect,
either direct or indirect, on interstate commerce.
** NLRB v. Jones & Laughlin Steel Corp. (1937): relationship between regulated intrastate activity
and interstate commerce must be (1) substantial, and (2) a substantial economic effect must be
produced by the regulated activity.
1.
2.
Facts: NLRB attempts to prevent Jones and Laughlin (owned mines in 2 states, operated steamships on
Great Lakes, held warehouses in 4 states, and sent 75% of products out of Pennsylvania) from engaging
in “unfair labor practices” by discriminatory firing of employees for union activity. PH: NLR Act is not
constitutional
Held: Reversed, NLR Act is constitutional. NLR Act is within the commerce clause, because of multistate network of operations. A labor stoppage in Pennsylvania intrastate manufacturing could have a
“substantial effect on interstate commerce.”
a. Historical context: fear of industrial warfare from labor warfare in the face of extreme
unemployment.
b. 10th Amendment rejected as a limitation: Court rejected E.C. Knight’s “manufacture” v.
“commerce” distinction, and in doing so implied that the 10th Amendment wouldn’t act as an
independent limitation on federal commerce-clause powers.
c. Consequence/Effect: the key in commerce clause analysis is the activity’s effect on
interstate commerce, and not the source of the effect (could occur before or after interstate
movement). So long as the regulated activity has a “substantial economic effect” upon
interstate commerce, that activity may occur before interstate movement.
Expanded Commerce-Prohibiting Protective Technique:
**U.S. v. Darby (1941) Court reversed Hammer v. Dagenhart (child labor case) and upheld Fair
Labor Standards Act (set minimum wages and maximum hours for employees engaged in
production of goods for interstate commerce), which prohibited shipment of goods not produced
within requirements of the act.
1.
2.
Facts: lumber manufacturer charged with violating Fair Labor Standards Act of 1938. PH: Act was
unconstitutional b/it shout to regulate hours and wages of employees in local manufacturing activities.
Direct Ban on interstate shipments upheld: “the power of Congress over intestate commerce can
neither be enlarged or diminished by the exercise or non-exercise of state power.”
a. Tenth Amendment: no longer acts as an independent limitation on congressional authority
over interstate commerce. Congress is free to impose whatever conditions it wishes on an
activity that substantially affects interstate commerce so long as the conditions don’t violate an
independent constitutional provision.
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Federal Commerce Clause: 1937-1995: Rise
b.
c.
M. Cheng
Reasonable means to achieve the end: Congress may impose direct prohibitions on
interstate commerce as long as means are reasonably adapted to the attainment of the
permitted end, even though they involve control of intrastate commerce.
Cumulative Effect/Aggregate Effect Test: Congress can regulate not only acts which taken
alone have a substantial economic effect on interstate commerce, but also an entire class of
acts, if the class has a substantial economic effect (even though one act within the class has
virtually no interstate impact).
**Wickard v. Filburn (1942): Aggregate Effects Test
1.
2.
Facts: Agricultural Adjustment Act permits Secretary of Ag. to set quotas for raising wheat on every
farm in U.S.; not only wheat sold in interstate and intrastate commerce, but also wheat raised only to be
consumed on the farm. Held: Upheld Act.
Held: J. Jackson: Consumption has market effect: consumption of homegrown wheat is large and
variable factor in wheat market. More wheat consumed on farm where it is grown: less wheat bought
in commerce.
a. Cumulative effect: Filburn’s actions on own might be trivial, but cumulative effect of all
similarly situated isn’t trivial. Homegrown wheat competes with wheat in commerce, and
greatly reduces aggregate demand for wheat; wheat prices go down. Protection of interstate
trade of wheat falls within commerce power, and regulation of homegrown wheat is
reasonably related to protecting that commerce.
i. “Once an economic measure of the reach of the power granted to Congress in the
Commerce Clause Is accepted, questions of federal power cannot be decided simply by
finding the activity in question to be ‘production’ nor can consideration of its economic
effects be foreclosed by calling them ‘indirect.’”
Civil Rights Legislation: Example of Expanded Commerce Clause Power:
At this time, court couldn’t utilize 14th Amendment, because it covered only actions of the state governments
and not private entities. (SCOTUS in 1883 had held that Congress could only regulate government conduct and
not private behavior under 14th Amendment.)
Title II of the Civil Rights Act (1964): Bans discrimination in places of public accommodation (motels, hotels,
and restaurants): covers any establishment which serves interstate travelers or buys food, a substantial portion
of which has moved through interstate commerce.
**Heart of Atlanta Case (1964): Title II upheld using C.C. and Cumulative Effects
1.
2.
Facts: Motel owner (near 2 interstate highways that derived 75% of its occupancy from out-of-state
guests).
Held: Motel could be covered by act, because racial discrimination would discourage travel in a
substantial portion of the African-American community, and in the aggregate this would affect
interstate commerce (Wickard v. Filburn).
a. Therefore, Congress could regulate the motel. “The power of Congress to promote interstate
commerce also includes the power to regulate the local incidents thereof, including local
activities in both the States of origin and destination, which might have a substantial and
harmful effect upon that commerce.”
** Katzenbach v. McClung (1964) Title II upheld using C.C. and Cumulative Effects
1.
2.
Facts: Restaurant didn’t allow African-Americans to be customers (46% of food bought from out-ofstate source, and no indication anyone comes from out-of-state to eat at the restaurant).
Held: Act could apply here, because unavailability of food accommodations dissuaded AfricanAmericans from traveling.
a. Aggregate effect of all restaurants such as this would have an adverse effect on interstate
commerce (Wickard v. Filburn: cumulative effect test).
b. When there is a rational basis for finding a chosen regulatory scheme necessary for the
protection of commerce, the court’s investigation ends. Congress must provide evidence that
the negative impact will occur if Congress doesn’t regulate, and Congress must demonstrate a
nexus between the activity and commercial activity. Gives deference to Congress’ rational
consideration of impact on interstate commerce.
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Federal Commerce Clause: 1995-2011: Modern Limits
M. Cheng
1995-Present: Modern Limits on Commerce Clause Power
Between 1936 to 1995, SCOTUS did not find one federal law unconstitutional as exceeding C.C.
The Federalism Rulings Split: Lopez, Morrison
Limiting C.C.: Rehnquist, O’Connor, Scalia, Kennedy, Thomas (conservatives)
Dissenting: Stevens, Souter, Ginsberg, Breyer.
Concise Rule of Law: The activity being regulated must be one that “significantly” affects commerce
(incidental effects on commerce aren’t enough). When the transaction being regulated is clearly commercial
or economic Congress can continue to regulate so long as it is part of a class that in the aggregate substantially
affects interstate commerce (Wickard v. Filburn’s cumulative effect doctrine). Congressional findings that an
activity has a substantial affect on interstate commerce are not dispositive and will only tip the scale in a close
case.
**U.S. v. Lopez (1995): Activity regulated must “substantially affect” interstate commerce: Court
for first time in 60 years invalidated federal statute on grounds it was beyond Congress’
Commerce Power.
1.
2.
3.
4.
5.
6.
Facts: Gun-Free School Zones Act made it federal crime “for any individual knowingly to
possess a firearm at a place that the individual knows, or has reasonable cause to believe, is a
school zone.” Lopez was a 12th grade student caught with a concealed pistol at school. Lopez
argues that Gun-Free School Zones Act exceeds Congress’ Commerce Power.
Held: Exceeds C.C.: J. Rehnquist/O’Connor/Kennedy/Scalia/Thomas
a. Little Connection to Commerce: Statute had less explicit connections to interstate
commerce than most federal statutes premised on Commerce power. There were no
explicit findings by Congress that the activity being regulated (possession of guns in
schools) affected commerce. There was no connection to interstate commerce: ban on
possessing a gun that had never traveled in, or affected, interstate commerce.
b. Jurisdictional Hook: If statute regulated guns that traveled through interstate
commerce there would be a connection to commerce and guns could have been
regulated. Later, Congress altered statute to cover only guns that traveled through
interstate commerce.
Government’s “economic productivity” argument: Possession of guns in schools
substantially affects commerce, because (1) possession of guns in school may result in violent
crime, and (2) violent crime affects the functioning of the national economy: (a) costs of crime
are insured against, (b) violent crimes reduces individuals’ willingness to travel to areas of the
country they believe are unsafe, (c) violent crime in the schools reduces the schools’ ability to
educate students, who will then become less productive.
a. Government’s Argument rejected: Under this argument Congress could regulate any
activity related to the economic productivity of citizens (family law, marriages,
divorces, etc.). The general federal police power that the government’s rational creates
is reserved to the States. “To uphold the Government’s contentions here, we would
have to pile inference upon inference in a manner that would bid fair to convert
congressional authority under the Commerce Clause to a general police power of the
sort retained by the States.”
Legislative Findings: an activity substantially affects interstate commerce may make some
difference, but unlikely to be dispositive, at most will tip a close case over the line into an area
Congress can regulate.
Concurrence: Thomas: thinks Majority should go further in limiting scope. He objects to the
“substantial effects” test as a way of justifying congressional action under C.C saying this is
inconsistent with the original understanding of Congress’ powers and with this Court’s early
C.C. cases. Says this is a rootless and malleable standard that encourages Federal Government
to persist in its view that C.C. has virtually no limits and we will continue to see Congress
appropriating state police powers under the guise of regulating commerce.
Dissent: J. Breyer/Stevens/Souter/Ginsburg: Rational Basis Stnd should be used.
a. Majority is engaging in judicial activism
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M. Cheng
b.
7.
8.
J. Breyer accepts the government’s argument: gun-related violence in schools would
interfere with the quality of education, and education is intimately tied to the
economic viability of whole areas.
c. J. Breyer rejects the majority’s view, because it was ran contrary to modern case law
that has upheld congressional regulation of activities with less connection to interstate
commerce than guns in schools (Katzenbach v. McClung).
d. J. Breyer also rejected the majority’s distinction between commercial and noncommercial transactions, because the line is too hard to draw, and here the majority
mistakenly ruled that education is not commercial. Congress could rationally conclude
that schools fall on the commercial side of the line. [The rational basis test is not a
standard currently used by the Court].
After Lopez: Three Broad Categories of Commerce: Congress can regulate:
a. Channels: use of channels of interstate commerce even if activity is quite intrastate:
highways, waterways and air traffic.
b. Instrumentalities: of interstate commerce can be regulated, even though threat may
come only from intrastate activities: people, machines, and other things used in
carrying out commerce.
c. Substantially affecting commerce: most broad and vague category: Congress may
regulate activities that have a substantial effect on interstate commerce.
Commercial or non-commercial activity?
a. When activity is commercial: it doesn’t matter that in a particular instance the
activity directly affects interstate commerce, as long as the instance is part of a general
class that collectively affect interstate commerce.
b. If the activity is not commercial: there must be pretty obvious connection between
activity and interstate commerce. Fact that Congress believes activity has a substantial
affect on interstate commerce doesn’t carry great weight with Court, because Court
will decide on own.
c. Key: Traditional Domain of States: If what is regulated is an activity that has
traditionally been regulated by the states, Court is less likely to find Congress is acting
within the commerce power (education, family, and criminal law). But if Congress can
show that a national solution is needed this factor can be countered (environmental
issues: since water and air migrate).
**US v. Morrison (2000): goes further than Lopez in restriction: reaffirms Lopez
channels/instrumentalities/substantial effect test. Noneconomic activities cannot be
used even if they have substantial effects.
1.
2.
3.
Facts: Violence Against Women authorizes victims of gender-motivated violence to sue for
money damages. Act was enacted based on detailed findings of the inadequacy of state laws in
protecting women who are victims of domestic violence and sexual assaults. Congress found
that gender-motivated violence is a substantial constraint on freedom of travel by women
throughout the country. Christy Brzonkala, raped by football players at VA Tech, sued for civil
damages.
Held: (same Justice split as Lopez) Congress cannot regulate a noneconomic activity by finding
that, looking at it cumulatively, it has substantial effect on interstate commerce.
Identical Justice split as Lopez but goes significantly further than Lopez in limiting C.C..
a. Thomas again concurs, but thinks Majority should go further in limiting scope. He
objects to the “substantial effects” test as a way of justifying congressional action
under C.C saying this is inconsistent with the original understanding of Congress’
powers and with this Court’s early C.C. cases. Says this is a rootless and malleable
standard that encourages Federal Government to persist in its view that C.C. has
virtually no limits and we will continue to see Congress appropriating state police
powers under the guise of regulating commerce.
b. Dissent: Souter: judicial deference to congressional fact-finding
**Gonzales v. Raich (2005): Upholds Federal Law and Rejects C.C. Challenge
1. Facts: homegrown marijuana case. Congress may regulate commerce among states to prohibit
the cultivation and possession of small amounts of pot for medicinal purposes. Although CA
has an exemption to its state pot laws for medicinal uses, no such exemption exists to the
federal law.
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2. Held: Fed has power. Pot, looked at cumulatively, including pot grown for medicinal purposes,
has a substantial effect on interstate commerce.
a. There is an economic class of activities that targets a class of activities: home grown
pot.
b. Regulation of non-economic activities necessary to achieve regulation of economic
activities is within Necessary and Proper Clause. The limitations are either the novel
distinction between action and inaction (individual mandate, but this is not totally
without precedent—militia were required to carry muskets into battle)
3. Scalia concurrence: doesn’t believe that pot is economic at all, but falls within authority
because it is necessary for economic regulation (Necessary and Proper.)
4. Is this a bridge too far?
5. How to fit in Gonzales with Lopez/Morrison: The current/instrumentalities/substantial
effect test is preserved.
**US v. Comstock (2010) Return to Mucolloch v. Maryland: those rights not prohibited are
constitutional and this is reasonably adapted for a constitutional end.
1. Facts: Six days before Graydon Comstock was to have completed a 37-month sentence for
receiving child pornography (the pornography was linked to the commerce clause because
it was produced across state borders), Attorney General Alberto R. Gonzales certified that Mr.
Comstock was a sexually dangerous person. The law that Attorney General Gonzales was
applying was ruled unconstitutional by lower courts on the grounds it exceeded Congress’s
constitutional authority. Argued in January 2010 by Solicitor General Elena Kagan, the United
States' position was that the "necessary and proper" clause gave Congress the power to enact
the law
2. Held: The federal government has authority under the Necessary and Proper Clause to require
the civil commitment of individuals already in Federal custody. The practice, introduced by
the Adam Walsh Child Protection and Safety Act, was upheld against a challenge that it fell
outside the enumerated powers granted to Congress by the Constitution. The decision did not
rule on any other aspect of the law's constitutionality, because only the particular issue of
Congressional authority was properly before the Court
3. Issue: Does the federal government have the power to hold Comstock beyond his
sentence pursuant to the Child Protection and Safety Act.
a. Prison is likened to the mail system. And, thus, running a prison system correctly is
within the grant of power that underlies in the original criminal prohibition (child
pornography.)
b. The majority says that the end is ultimately carrying out pursuant to the power
underlying the federal grant to regulate prisons.
4. Reasoning
a. Mucolluch is law, and this is a modest condition to federal power (preexisting system
that allowed for the incarceration of dangerous inmates.)
i. Accounts for state interests
ii. Connection between federal end and means adopted is not too attenuated
5. Dissent: Thomas & Scalia: there is no explicit grant of federal power. The end that congress
seems to be talking is protecting the state from sexually predatory prisoners, not exercise of
federal control of commerce.
a. Thomas: any regulation past New Deal fall under dangerous set of innovations and the
distinction between commerce and manufacturing is and should be the dividing line
b. Scalia: if one evaluates what the real end of the state, the ends seem to be protecting
individuals from sexual dangerous predators within the jurisdiction that is generally
the police power of the state.
6. Patient Protection of Affordable Healthcare Act
a. Facts: Prevents refusal of healthcare for preexisting conditions and the establishment
of financial mechanisms to guarantee delivery of healthcare. The framers state that
there is a severe danger that this system will fall apart if people try to free-ride
(signing up for healthcare insurance only until after they are sick.) Therefore, any
person who does not sign up for health insurance should be subject to an income tax
(leaving low income people unpenalized.)
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States’ Rights: Limits on Commerce Clause Power
Arguments for State Autonomy:
Achieve goals more easily: (1) better aware of local issues, (2) choice/ability to migrate to areas that fit one’s
needs, (3) social experiments, (4) participation easier, and (5) local governments are more responsive.
Avoid Centralized Tyranny: (1) responsive government less likely to hurt citizens, (2) However bad things get
in one locality one can move to another, (3) Different levels of government (state and federal) allows for each to
check each other’s actions (competing centers of political power).
Arguments for Federal Control:
Achieve goals more easily: (1) Spillover effects: things occurring outside State borders that effect States can’t
be regulated by States, (2) Prisoner’s Dilemma: no way to enforce mutual state agreements, and only a
national authority can regulate, (3) Economies of Scale: inefficient for each state to have agencies and
militaries; federal government can handle these matters more efficiently, (4) Decisions made at the national
level are representative of broad dialogue between more citizens, and generates more objective view of proper
action, (5) On some issues the majority rule is better than local minority views (racial discrimination).
Avoidance of Tyranny: (1) It is more likely for minorities to be exploited in a small polity than a large polity;
(2) local officials can be more easily influenced by special interests than federal officials.
How should the choice between State and Federal Control? (1) Courts or (2) The national political process.
Substantive values of federalism:
Pro: States are best equipped with regional interests and local diversities. State experimentation in social
policies can yield innovative new practices that can be used elsewhere.
Con: Local regulation is not as efficient as national regulation (provide public goods with less problem of free
riders.) National government can also better redistribute goods and provide social insurance against catastrophes
because of the larger scale of federal resources. Also, national power helps guard against tyranny of local majorities.
Political safeguards: Political safeguards (states as political centers that serve as the yardsticks for measuring
interest and opinion.) Judicial safeguards of federalism.
The Tenth Amendment and Federalism as a limit on Congressional Authority: Introduction
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the
States respectively, or to the people.
The Constitution provides guidance for structure of state structure (presupposes executive, legislative, and judicial
branches.) EX; Article 6, 11th Amendment, Article IV Section 2
Assuming that the federal government has the power to regulate a certain class of activities, are there any actions
within that class that are nonetheless immune to regulation?
Art I.
10th A.
Congress
can
regulate.
18
Federal Commerce Clause: 10th Amendment
M. Cheng
Two Approaches
1) 10th is not a separate constraint on Congress, but rather a reminder the Congress only may legislate if it has
authority under the Constitution. A federal law would never be found unconstitutional as violating the 10 th
amendment, but it could be invalidated as exceeding the scope of Congress’s powers under Article I or for violating
another constitutional provision
2) 10th amendment protects state sovereignty from federal intrusion. 10 th reserves a zone of activity to the states for
their exclusive control and federal laws intruding into this zone should be declared unconstitutional by the courts.
Art I
10th A.
Reserved to
States
under 10th.
Most common benefits of protecting state governments/federalism: 1) decreases the likelihood of federal tyranny 2)
enhances democratic rule by providing government that is closer to the people and 3) allowing states to be
laboratories for new ideas. Issues: 1) does smaller area lead to less tyranny though? (what if a small state decides to
tyrannize it’s minorities?) 2) when is it worth experimenting and when do we need a national mandate? 3) does the
judicial body have the right to enforce the 10th amendment or should it be left to the political process?
Historical Trends:
19th Century: Federal law was constitutional as long as Congress was acting within Article I scope
1900-1937: 10th amendment reserved to the states control over production and federal laws attempting to regulate
production were unconstitutional (Industrial Revolution)
1937-1990s: back to expansive view of Congressional power of the 19 th century (exception: NLC v. Usery, in 1976
which was then expressly overruled by Garcia v. San Antonio in 1985.)
1990s- present: 10th Amendment resurrected.
Gibbons v. Ogden (1824)
Coyle/Oklahoma (1911)
Hammer v. Dagenhart (1918) : most important case to construe 10th amendment as reserving states rights.
US/California (1936)
Federal Labor Standards Act (FLSA)
1938 Darby (key case overruling Hammer v. Dagenhart)
NY/US (1946)
1966 Hospital/School
1968 MD/Wirtz
Fry/US (1975)
1974 Public Employees
1976 NLC/Usery
1985 Garcia/SAMTA
Historical power of the 10th Amendment: nearly 40 years after Carter Coal decision SCOTUS didn’t invalidate
federal statute on grounds it violated state or local government sovereignty. Presently, the Tenth Amendment places
few restrictions on the exercise of federal power under the Commerce Clause. But between 1976 and 1985 the
SCOTUS treated 10th Amendment as important limit on federal power. Court, during this period, held 10th
Amendment was a bar to federal government from doing anything that would impair the States’ ability to perform
their “traditional functions.” But in 1985 these line of cases were flatly overruled.
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Federal Commerce Clause: 10th Amendment
**Coyle/Oklahoma (1911): State power wins
M. Cheng
Condition that OK be admitted into the Union have their state capital in a certain place is invalid. Power to locate
capital is within exclusive power of the state.
**US v. California (1936): Fed power wins: rejects Traditional Activities Rule.
1.
Federal Safety Appliance Act upheld a penalty imposed on state-owned railroad, requiring them to
have particular kinds of air brakes on their trains. This was necessary in preserving an instrumentality
of interstate commerce. “The sovereign power of the states is necessarily diminished to the extent of
the grant of power to the federal government in the Constitution.” CA was not immune from federal
regulation for “activities in which the States have traditionally engaged.” In Darby, the court
maintained that if a power if delegated, then there is no 10th amendment issue.
The 10th Amendment between 1937-1990s
**US v. Darby (1938) Key case: overrules Hammer v. Dagenhart: court flatly rejects the 10th Amendment
claim: “The Amendment states but a truism that all is retained which has not been surrendered.”
**New York v. U.S. (1946) State power wins: unique sources of revenue. Upheld state immunity against
federal tax to the State of New York’s sale of bottled mineral water from state-owned springs.
Held: J. Frankfurter: tax which unduly interferes with a states’ exclusive functions even if taxation is
uniform: there are certain activities which should be exempted. Seems to suggest that unique sources of
revenue should not be affected.
**Md. v. Wirtz (1968): Fed power wins (FLSA upheld)
Upheld amendments on FLSA to apply to hospitals and schools. J. Harlan: federal power over commerce is
“superior to that of the States to provide for the welfare of their inhabitants.” Original delegation of federal
authority granted this. Delegation of federal power is sufficient basis.
****National League of Cities v. Usery (1976) The Exception: upholding 10th A. using
Integral State Functions Test, overrules Md. v, Wirtz but is overruled by Garcia v. San
Antonio.
2.
3.
4.
5.
Facts: 1974 Amendments to Fair Labor Standards Act extend wage and hour provisions to all industry
employees of states.
Issue: Must determination of wages and hours for State industry employees be a decision reserved
solely for the States? YES.
Held: J. Rehnquist:
a. FLSA not applicable: state sovereignty upheld. Amendments directly displace States
freedom to make decisions in traditional areas of government and aren’t within authority
granted to Congress by Art. I Sec. 8.
b. Constitution prohibits exercise of federal authority over certain areas of state
autonomy: This is undoubtedly an attribute of state sovereignty. Administering federal
statute over area of traditional state autonomy forbidden, because it interferes with traditional
structure of State governments (fire prevention, police, sanitation, public health, and parks and
recreation)
c. What kinds of state activities are immune from federal regulation? A balancing of
factors: governmental entity that has greatest interest in regulating the activity (state or
federal) and is be better suited to handle the task should be in control of the regulation.
d. Concedes that there may be legitimate way to regulate through another Congressional grant
(Footnote 17.)
e. Fry: Fed wins. Effect was only temporary and acceptable. (balancing test)
i. Economic Stabilization Act did not displace state choices as to how governmental
operations should be structured were displaced. It was merely a regulation of
employment relationships of jobs that the states chose to create, plus, it was only
temporary. Effects were also not great.
Concurrence: J. Blackmun: key fifth vote for the majority: saw the majority as adopting a “balancing
approach [that] does not outlaw federal power in areas such as environmental protection, where
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Federal Commerce Clause: 10th Amendment
6.
7.
M. Cheng
federal interest is demonstrably greater and where state facility compliance with imposed federal
standards would be essential.”
Dissent: J. Brennan: J. Marshall’s opinion in Gibbons v. Ogden: individual liberty, and not state rights
alone limit Congress’ commerce clause power. The Court, in this ruling, goes against case precedent
and extends limits on the commerce clause power to areas the Court hasn’t extended previously.
Accuses Majority of using judicial process to enforce state sovereignty.
Aftermath: Court refused to extend Usery though it had many opportunities. 10th Amendment
objections were often overcome because they did not hamper the state government’s ability to fulfill its
roles or structure its integral operations.
****Garcia v. San Antonio Metropolitan Transit Authority (1985): Overruled NLC. Fed
wins. Balancing powers test.
1.
2.
3.
4.
5.
6.
Background: Once Congress, acting pursuant to Commerce power, regulates states, fact that it is a state
being regulated has virtually no significance: if the regulation would be valid if applied to a private
party, it is also valid to regulate the states under the congressional action.
Held: J. Blackmun: Dissenters from Usery + Blackmun: Fair Labor Standards Act upheld for regulating
minimum wage and overtime requirements for municipal transit authority.
a. Rejected integral/traditional interests test as impractical b/it allows states to decide what is
integral—gives states too much power. States are using their influence to get federal aid, but
then exempting themselves from regulation under the Commerce Clause.
b. Maintained that some judicial intervention might still be appropriate to “compensate for
possible failings in the national political process”
c. Reasons why the court is overruling Usery:
1. Usery approach had proved unworkable: rejects a test that “turns on a
judicial appraisal of whether a particular government function is ‘traditional’
or ‘integral.’” This invites judicial partiality.
a. “[It is] difficult, if not impossible, to identify an organizing principle”
that would distinguish between those functions that are “traditional
governmental functions” and those that aren’t.
2. Protection of state prerogatives should be through the political process
and not from the judiciary: NLC approach inevitably led to judicial
subjectivity, “Any state immunity that looks ‘traditional,’ ‘integral,’ or
‘necessary’ nature of governmental functions inevitably invites a non-elected
judiciary to make decisions about which state policies it favors and which
ones it dislikes.” Thus, it would be inappropriate for the Court to impose
limits on the federal government’s power to regulate state affairs.
a. Procedural Safeguards: political process, built-in restraints through
state participation in federal government, ensures law, which unduly
burdens states won’t be promulgated, and Court should only
intervene when national political process might fail to
accomplish these goals. For instance, requirement that each State
have two Senators indicates structure of federal government
arranged to protect state sovereignty. Fact that Congress (whose
members are elected from individual states, pursuant to statecontrolled qualifications) passed bill that wasn’t vetoed by President
(in whose election the states play a key role via the electoral college),
necessarily means that state sovereignty hasn’t been impaired.
Dissent: Powell: The Court can define parameters of the 10th just as it has defined other ambiguous
constitutional provisions.
Dissent: O’Connor: the political process might not adequately protect the interests of state
governments
Dissent: Rehnquist: predicted that, in time, conservative’s position on the 10th would prevail.
Dissent (4): Congress is increasingly insensitive to states’ rights and interests. This is constitutionally
inconsistent and inappropriate for promoting federalism. “The political process has not protected
against these encroachments on state activities.” Court should weigh state autonomy heavily when
interpreting the means through which Congress exercises its authority over States as States. Majority is
inadequate. Underlying question is whether there is an appropriate balance between federal and
state interest.
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Federal Commerce Clause: 10th Amendment
7.
M. Cheng
If the question is a reasonable balance, how might the federal courts go about engaging in that balance.
a. How do you balance the importance of things like education and national defense?
b. How do you measure the contribution between fed and state
c. The scope of federal authority vis-à-vis states will shift. Is the government authorized to act in
certain times and not at other times (question of consistency.)
d. Are the courts good at evaluating these balances?
e. To evaluate the relative magnitudes, fed courts have to evaluate how important a particular
interest is—which seems to be a better job for the people of the US (through electing
representatives.)
i. Perhaps the solution is the have Congress to weigh the federal interests and have the
states weigh their own interests through the political process. (question of whether it
seems feasible to depend on the states to protect themselves.)
**South Carolina v. Baker (1988) Fed wins. Participation in national political process
Test. (Otherwise court intervention is not justified):
1.
2.
Held Upheld removal of an exemption from federal income tax from bearer bonds issued by states—
forced states to switch to issuing tax-exempt registered bonds in order to raise debt capital. (this
allowed better tracking of bonds, as bearer bonds granted ownership to the possessor.)
Said that S.Carolina did not show that it was deprived of chance to participate in national
political processes or that it was singled out in a way that left it political isolated and powerless. As a
result, 10th Amendment was not triggered. Overruled Pollock v. Farmers' Loan & Trust Co.
1990s and Beyond: 10th Amendment & the Commandeering Doctrine: Congress may not
conscript or compel state governments.
****Gregory v. Ashcroft (1991): Clear and Plain statement rule: State wins. (Reaffirms
Garcia- Court does not invalidate federal law based on 10th A, rather used it and
federalism considerations as rule of construction (Clear and Plain Statement Rule)
Congress has to clearly indicate that it meant the law to apply to the states because this
is placing a substantial federal burden on states:
1.
2.
3.
4.
Background: Missouri Constitution made it mandatory to retire at 70 for State judges. State judges sue
Governor under federal Age Discrimination Employment Act. ADEA made it unlawful for employer to
discharge individual who is at least 40 years old, because of individual’s age. “Employer” included State
or political subdivision of a State, and “Employee” excluded all elected and most high-ranking
government officials. Gov. Ashcroft argued judges were excluded from protection under the ADEA.
Issue: Can ADEA be extended to Missouri judge’s retirement clause? Is ADEA ok under 14th
Amendment? (NO)
Holding: J. O’Conner: No, judges do not fall under ADEA. However, ADEA in general is within
constitutional grant of power and there is no 14th amendment violation. Congressional interference
would upset constitutional balance of federal and state powers.
a. The clear and plain statement rule: If Congress intends to alter usual balances between State
and Federal Government, its intentions must be unmistakably clear in the language of the
statute. If Congress doesn’t state the rule clearly the Court will interpret the statute as not
interfering with State sovereignty.
i. ADEA lacks a clear statement.
ii. Stresses importance of state autonomy as a check on possible federal tyrany
As compared with Garcia: if the legislation is drafted in sufficiently explicit terms, then the role of the
court must follow.
a. In Gregory, there is a concentration on state power that was absent in Garcia. The prevention
of federal overreaching has roots in Gregory.
b. However, Gregory reaffirms Garcia, which O’Conner recognizes serves as a restraint. Congress
is allowed to adjust national and local interests if it does so clearly.
c. The potential problem is when Congress passes substantially significant legislation without
acknowledgement that it has intent to act in these areas. This intention must be clear in the
drafting in the legislation, allowing the states to react accordingly.
22
Federal Commerce Clause: 10th Amendment
5.
M. Cheng
Dissent: J. White: The plain statement rule is problematic, because the majority hasn’t explained its
scope. The rule’s vagueness will force Congress to draft long lists of which state functions it meant to
regulate. Also, extending the ADEA to cover State judges is not a constitutional problem, because the
national political process protects States’ rights (could have been resolved with the same result without
wasting constitutional capital.)
N.Y. v. U.S. and Printz v. U.S. Test: Congress may not (1) force a state to legislate or
regulate in a certain way (N.Y v. U.S.); or (2) require state executive branch personnel
to perform even ministerial functions (Printz v. U.S.).
**New York v. U.S. (1992): first time overruling based on 10th Amendment since Usery and
introduction of Commandeering Doctrine: Federal government can’t compel States to adopt laws
or state agencies to adopt regulations. While Congress can encourage states to act in certain
capacities and exercise their authority in certain ways, it is not able to “commandeer” the state
and local regulatory authorities.
1.
2.
3.
Background: Low-Level Radioactive Waste Policy Amendments Act attempts to force each state to
make its own arrangements for disposing low-level radioactive waste generated in their state with
several types of incentives:
a) Monetary incentives: states can impose surcharge on waste received from other states
b) Access incentives: states can increase the cost of access to their sites and deny access
altogether to waste generated in states that do not meet federal deadlines
c) “take title” incentive (most significant): where any state that didn’t arrange for disposal of
waste would be required to “take title” to the waste, and be liable for damages in connection
with disposal.
1. New York argues the “take title” provision violates the 10th Amendment, because it
forces States to regulate in a particular area.
Held: take title provision is unconstitutional because it gave state governments the choice between
either accepting ownership of waste or regulating according to the instructions of Congress. This is an
invalid option—Congress may not compel States to enact or administer a federal regulatory
program.
Reasoning
a) Only “take title” violates the 10th Amendment: Congress can’t simply “commandeer the
legislative processes of the States by directly compelling them to enact and enforce a federal
regulatory program.” N.Y. forced to choose between 2 “unconstitutionally coercive
techniques”: either choose to regulate on its own by making arrangements for waste disposal
or be forced to indemnify waste-generators against tort damages. Because Congress can’t
employ either method alone, it can’t escape the problem by giving the state a choice between
the two.
b) J. O’Conner: Commandeering Doctrine: Fed has required the citizens how to act, which is
unconstitutional.
1. Compelling state interest is not enough to justify what otherwise is invalid under
10th.
2. Historical explanation: Articles of Confederation worked this way. (state acts through
state.) However, this framework was clearly rejected in favor of the VA plan, which
allowed fed to directly tax and regulate the citizenry.
3. Structural concerns fortifying the historical argument
A. Where the fed acts through the states, it is more difficult for those
regulated to ultimately determine who is doing the regulating. Therefore,
the fed should be constrained from hiding behind the states as a way of
preventing the citizens for accurately holding accountable the
legislators.
B. Accounting problem: having two autonomous governments is an
important protection of liberty. To the extent that the Fed can
commandeer the states into its service, this would preempt a body that
was supposed to counterbalance the fed authority.
c) Limitations of federal power/exceptions to regulation
1. Fed can encourage but not mandate
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Federal Commerce Clause: 10th Amendment
4.
5.
6.
M. Cheng
A. The entire program is not unconstitutional, but only the take title
provision. South Dakota/Dole is not repudiated.
B. Federal government can participate in an incentive program to regulate
private parties. Fed punishes private parties if states do not meet goals
(by preventing them from transporting their waste.)
C. What is not constitutional is making them worse off (“take title”)
2. 14th Amendment grants Fed authority to impose obligations on states.
A. Recognized in NLC/Usery.
3. Requiring the state courts to carry out federal law is within legitimate authority, but
they cannot require the state executive or legislature to act in accordance with
fed mandates.
A. Long precedent giving fed power to provide for causes of action that may
be enforced either in state or federal courts. SCOTUS has regularly upheld
this
B. J. O’Connor: These cases are rooted in a separate requirement of
Constitution (Art 6, that the laws of the land will be supreme and the
judges are bound to it, the contrary laws of the states notwithstanding.)
Requiring the state courts to carry out federal law is within legitimate
authority, but they cannot require the state executive or legislature to
act in accordance with fed mandates.
Loophole: Congress is not powerless because it may set standards that state and local governments
must meet and thereby preempt state and local actions. Congress can also attach strings on grants to
states and local governments to induce state and local actions that it can’t compel.
How is this different than Garcia?
a) Seems to reject the Garcia conclusion that federal judiciary would not use 10 th to invalidate
federal laws.
b) Here, regulatory mechanism was faulty, and in Garcia it wasn’t [In Garcia federal statute
directly compelled States to act]: Through “take title” provision Congress forced States to
regulate in a certain way without a federal regulation; incentive was coercive, which the
federal government can’t do [makes state officials less accountable to the state electorate].
The use of the Spending Power must be done so as to give the States’ choice.
Dissent: J. White: Congress wasn’t forcing its will on States, but rather Congress responded to a
request by many states to ratify a compromise worked out among themselves, so waste-disposal
problems could be solved. Other States’ sovereignty will be impinged, because some States will be
forced to accept N.Y.’s radioactive waste. Congress doesn’t impinge on federalism when it protects one
state from another.
a) J. White suggests alternative methods to deal with the problem:
1. Spending power: Congress could condition the receipt of federal aid on a state’s
solving the problem (provided the funds withheld have something to do with the
problem).
2. Threat of regulation: Congress could directly regulate the problematic conduct.
**Printz v. U.S (1997): Congress can’t compel State or local government’s executive branch to
perform executive functions, and this is true even if the functions are temporary, ministerial and
easy-to-perform.
1.
2.
Background: Congress enacts “Brady Bill,” aimed at controlling flow of guns. As temporary 5-year
measure, law ordered local enforcement officials to conduct background checks on prospective
purchasers until national computerized system could be phased in.
Held: federal government “may not compel the States to enact or administer a federal regulatory
program.”
i. Unconstitutional under 10th amendment b/it is conscripting state governments
ii. Also a violation of Separation of Powers (Constitution vests executive power in the
president and Congress has impermissibly given the executive authority to implement
the law to state and local law enforcement personnel.”
iii. J. Scalia rejects dissent’s distinction between compelling a state to make policy (such
as “take title” scheme in N.Y. v. U.S.) and compelling state-executive branch officers to
perform ministerial tasks (such as background checks).
1. Even if no policy making was involved, this didn’t prevent Congress’ action
from being an intolerable incursion into state sovereignty: “It is an essential
24
Federal Commerce Clause: 10th Amendment
b.
c.
d.
M. Cheng
attribute of the States’ retained sovereignty that they remain independent and
autonomous within their proper sphere of authority…It is no more compatible
with this independence and autonomy that their officers be “dragooned”…
into administering federal law, than it would be compatible with the
independence and autonomy of the United States that its officers be impressed
into service of the execution of state laws.”
iv. Basis Unclear: J. Scalia seemed to rely on a general, non-textual, principle of state
sovereignty, rather than specific clause. But two concurring opinions specifically said
the background check provision violated the 10th Amendment. Further, J. Scalia: no
historical basis: during Constitutional Convention state employees were
commandeered to enact federal programs.
Dissent: J. Stevens: Federal commerce power gave Congress authority to regulate handguns.
The “necessary and proper” clause gave Congress the right to implement its regulation by
temporarily requiring local police officers to perform the ministerial step of identifying persons
who shouldn’t be entrusted with handguns.
i. Congress could have required private citizens to help with such identifications: “The
10th Amendment provides no support for a rule that immunizes local officials from
obligations that might be imposed on ordinary citizens.”
ii. There is a need for the Brady Act: cites legislative history.
Loophole/Control over purse strings: As in N.Y. v. U.S., Congress could get around the
problem by conditioning States or local government’s receipt of federal funds on its officials’
willingness to do the federal task. Only compulsion, not a voluntary quid pro quo, seems
foreclosed by the majority’s analysis.
Compared with NY v. US: Congress has ability to regulate the states’ own conduct under
general laws that also regulate the similar conduct of private actors. This stands against
NLC v. Usery which required the exemption of the states from some otherwise valid, generally
applicable federal laws.
**Reno v. Condon (2000): federal law upheld for limiting the commercial vending of
personal data by the states. Valid exercise of C.C. and 10th is not triggered because this
is prohibition of conduct of private entities as well as state entities rather than a
mandate.
1.
2.
3.
4.
Facts: Challenge to the amendments to the Driver’s Privacy Protection Act of 1994 which prohibited
DMV’s from disclosing personal information of drivers without individual consent. Sen. Barbara Boxer
introduced a bill after an actress in LA, Rebecca Schaeffer, was stalked and murdered by a man who got
her home address from the Ca. DMV.
Held: Rehnquist (unanimous): constitutional under Commerce Clause because Congress found
that many States sell this information to individuals and businesses, generating significant revenue.
This law regulates both state governments and private entities that possess driver’s license info.
This is a prohibition of conduct rather than a mandate.
Upheld South Carolina v. Baker: DPPA does not require any direct regulation of citizens, merely a
regulation of the States as owners of the databases (regulation of states’ regulation/doing business in a
certain way), which does not require state officials to assist in the enforcement of federal statutes
regulating private individuals.
a. Difference between what is prohibited under commandeering doctrine and what is permitted
is states engaging in coercive regulation of citizens and the state spending funds to comply with
federal obligations (S.C./Baker)
We don’t know how much the applicability to private actors is dispositive.
a. This case could be distinguished in the future.
b. In Printz, the officials were not asked to exercise any sovereign authority (they were only
required to check their files) At a minimum, the commandeering doctrine seems to forbid
requiring the states to expend effort to regulate federal statutes. What the fed can only do is ask
for help, allowing states to retain the option.
Conclusion: The idea is that the guardianship of tyranny is to be found in structure.
25
Federal Commerce Clause: 10th Amendment
M. Cheng
The implications of the balancing approach (NLS v. Usery) was eventually abandoned in Garcia. The court
retained the idea that in general the sovereignty of state integral activities were to be limited to areas
where there was some failure in the political process (some reason to believe that Congress was
unable to give recognition to state interests or states were constrained from asserting their interests.)
In South Dakota v. Dole, the court rejected the idea that Congress can condition money by acting on
behalf of the general welfare. If Congress acts to condition these funds, it must be acted clearly. The
presumption is that there is no constraint unless there is a clear and explicit constraint (allowing states to
mobilize.)
In S.Carolina/Baker (tax-exempt status can be compelled on bearer bonds.), Garcia is upheld and applied.
In Gregory/Ashcroft, the position is that there is an important interest in state autonomy but in this
situation (age limit of judges), Congress must act clearly if it presumes to restrict state officials.
Liberty
Procedure
Property
Federal
Habeus Corpus (Art I, 9)
Ex post facto
Protection of comparative right
to vote (but States retain power
to regulate who gets to vote) (I,
2)
Treason (Art III, 3)
Art 6: no religious tests for
offices
Art III: Trial by jury,
Treason, (Section 3)
Bill of Rights (1, 2-quartering, 4,searches/seizures 5-Due Process
Treason (Art III, section 3)
Due Process (5th)
Protection against unfair
taxation (later adjusted by
16th amendment, which gave
Congress the power to income
taxes)
Bill of Rights (2, 3, 4, 5Takings
State
Privileges and Immunities;
Art 1, 10: same limitations
of Art I, 9 for states
Privileges and Immunities,
protection of slavery
property,
Full faith and Credit Clause
(IV, 2)
Freedom of K (Art 1, 10) – to
protect against States from
interfering with private debt
Article III (no coining money.)
26
Taxing & Spending as Regulatory Device
M. Cheng
Taxing & Spending as Regulatory Device: The Spending Power as a
limit on State autonomy:
Art. I Sec. 8 cl. 1: “Congress shall have power to lay and collect Taxes, Duties, Imposts
and Excises, to pay the Debts and provide for the common Defense and general Welfare
of the U.S.”
Two Views of Taxing/Spending power (see US v. Butler):
Madison: congress is limited to taxing and spending to carry out the other powers specifically granted
in Article I of the Constiution
From this power, Congress can attach conditions on the receipt of federal funds in order to further broad policy
objectives.
1935: US v. Butler (expansive view: Congress has broad authority to tax and spend for general welfare)
Taxing:
Art I, Section 8 grants power to lay and collect taxes to pay debts and provide for the common defense and
general welfare of the United States.
**Bailey v. Drexel Furniture Co. (Child labor tax case, 1922): Look to intent of tax (revenue or
penalty)
1.
2.
3.
Background: 1919: Child Labor Tax Law imposes federal excise tax of 10% of annual net profits on
every employer of child labor in the covered business. (similar to the provisions overruled in
Hammer/Dagenhart)
Held: Child Labor Tax Law not constitutional b/child labor is the exclusive domain of the states and
protected by the 10th Amendment. Hammer/Dagenhart upheld.
Reasoning: The tax is a penalty masked as a general tax.
a) Maintains difference in power to tax (Congressional) and power to penalize (State.) Taxes that
create an incidental penalty are acceptable if main intent is to obtain revenue.
b) Significance of the alternative motive showing on the face of the act.
1. Veazie Bank/Fenno: tax on circulating notes ok b/no indication that purpose was
to regulate matters of state concern
2. McCray/US: excessive tax on margarine not ok b/Congress targeted margarine
sellers by placing specific burden to discourage sale or manufacturer via tax.
3. US/Doremus: provisions for official supervision and inspection of sale and
distribution of certain drugs okay b/an alternative motive was not shown on the
face of the act and thus did not contribute to the Act’s passage.
**United States v. Jahringer (1953): Upheld federal occupational tax imposed on gambling
(1951 Revenue Act)
1. J. Reed: Reasoning: this was not a challenge to states’ police power.
a. A federal tax doesn’t cease to be valid merely because it ultimately deters the activity taxed.
Taxing power can only be limited when there are extraneous penalty provisions unrelated to
any tax need.
2. J. Jackson: concurrence: this toes the line, but is still constitutional. Hard to see how this can be
innocent of penalty attempts to tax bad behavior out of existence. Hard to imagine any revenue raising
plan that doesn’t have social consequences.
3. J. Frankfurter: dissent: wrapping legislation in the “verbal cellophane of a revenue measure” is not
good enough.
27
Taxing & Spending as Regulatory Device
Spending:
M. Cheng
**United States v. Butler (1936): Agricultural Adjustment Act of 1933 not valid under 10th
because it regulates production, not commerce BUT Congress does have broad authority to tax
and spend for the general welfare:
1.
2.
3.
Facts: AAA sought to stabilize farm prices by curtailing agricultural production—could make contracts
with farmers to reduce productive acreage in exchange for benefit payments created by taxing the
processors.
Reasoning: the plan is really just “means to an unconstitutional end”—a “pretext” (Marshall in
McCulloch) Power of choice is illusory
a. Hamiltonian position on spending power: power to spend for the general welfare is not
limited by the other grants of power in Art 1, 8.
b. Madisonian position : spending is confined to realizing the other powers enumerated in Art 1,
8.
Dissent: J. Stone, Brandeis, Cardozo: the contract is an incentive and not a threat of loss. Government is
authorized to grant conditioned gifts.
**Charles C. Steward Machine Co., v. Davis (1937): upheld Social Security Act Title IX (payroll
tax refund)
A. Background: employers were entitled to a credit of up to 90% of the federal tax or any
contributions to a state unemployment fund certified by federal agency as meeting requirements of
the Act. The credit was conditioned upon an enactment of a unemployment compensation law.
Steward Machine wanted refund of taxes paid to federal government.
B. Reasoning: J.Cardozo:
a. no constitutional violation because the tax and the credit in combination are weapons
of coercion, and Congress merely did what was needed to offer relief to the people
when the states could not.
b. Motive and temptation are not the same as coercion—there is no duress when the
states choose to participate. The restrictions are only triggered when states accept the
funds.
C. Distinguished from US/Butler:
a. Tax proceeds are not earmarked for a special group
b. Unemployment compensation law had approval of the state
c. Condition is not linked to irrevocable agreement (state can repeal the law and
terminate the credit.)
d. Condition is directed at the relief of unemployment, which may require the
cooperation of state and nation
e. Narrower constuction of “coercion” when compared with the “threat of loss not hope
of gain” view of coercion in Butler.
**South Dakota/Dole (1987) C.C. allows federal government to attach conditions on funds
1.
2.
3.
Background: S.D. permits people over 19 to purchase liquor. Congress enacts statute directing Sec. of
Trans. to withhold percentage of federal highway funds otherwise allocated from States, “in which the
purchase or public possession of any alcoholic beverage by a person who is less than twenty-one years
of age is lawful.” Held: The statute is within constitutional bounds.
Reasoning:
a. 21st Amendment: leaves the law to the states.
b. Pursuant to Commerce Clause, federal government can attach conditions on receipt of federal
funds.
c. Restrictions:
i. must be in pursuit of the general welfare (YES)
ii. must be exercised unambiguously so that states make educated decisions accordingly
(YES)
iii. must be related to the federal interest in particular national projects or programs.
(YES)
Dissent: J. O’Conner: this is veiled attempt to regulate the sale of liquor, which lies within 21 st
amendment, section2. If this was a true policy aimed at deterring drunk driving, it is both over and
under inclusive and thus not practical or effective.
a. Specification Rule: if this was conditioned spending Congress would specify how money
should be spent. A requirement that is not such a specification is not a condition, but a
regulation.
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b.
4.
5.
Under Spending Power: Congress must:
i. Exercise power in pursuit of the general welfare: provision serves general welfare
(Congress found un-uniform drinking ages created an incentive for youth to drive to
other states, drink, and then drive back; an interstate problem requiring a national
solution.)
ii. State conditions clearly and unambiguously so that states can make informed choices
accordingly: conditions of the statute are very clearly stated.
iii. Exercise power related to “federal interest in particular national projects or
programs,” or related to the purpose of the grant: S.D. itself has never contended that
the congressional action was unrelated to a national concern.
c. Rational relationship test: highway safety is related to highway funds and drinking and
driving, and the youth drinking age.
i. Problem: it’s very easy to produce a rational relationship between funds and most
issues, and the test might grant Congress too much power.
d. No constitutional problem w/10th or 21st Amendments: state has the power to reject “federal
coercion”
Brennan’s Dissent: establishing minimum age for drinking is State power reserved by 21 st
Amendment.
O’Connor’s Dissent: believed the Court’s application of the requirement that the condition imposed be
reasonably related to the purpose for which the funds are expended, is cursory and unconvincing,
because the establishment of a minimum drinking age isn’t sufficiently related to interstate highway
construction to justify conditioning funds appropriated for that purpose. The relationship between the
minimum drinking and highway safety is only tangential.
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Reconstruction Amendments
Natural Rights and National Power
Natural Law: (drawing from English antecedents): Written constitution merely reaffirms
preexisting fundamental rights that are entitled to protection whether or not explicitly stated.
Pre-Civil War Amendment Cases: In 1791: Bill of Rights adopted to protect individual against
interference by federal government [limitation on federal power, but not on state power].
The Natural Law Approach: Individuals have certain natural rights government can’t
infringe upon:
**Calder v. Bull (1798): The prohibition against Ex Post Facto Laws (Article I, 8 & 9);
State law upheld; 5th Amendment takings clause did no apply to the state :
1.
Facts: legislative act that required a new hearing on a will that had been set aside by a probate
court. Heirs brought action for the property that would have been theirs had the will been
invalidated. Cause of action was ex post facto clause which could have barred the CN act,
however, court found that the clause only applied to criminal legislation.) The law only requires
a new trial, not arbitrary
2. Held:
a. 5th Amendment Takings did not work b/the Bill of Rights only applied to the Federal
Government. An act of a state legislature cannot be regarded as a rightful exercise of
rightful legislative authority and thus should not be regarded as law.
b. J. Chase’s natural law/social compact approach: Constitution is sole guarantor of
fundamental rights; stems from a social compact amongst citizens (J. Locke), and thus to
strike down law, Court doesn’t need explicit textual support.
i. People entered into a social contract in order to protect their property—thus
they cannot back legislation that does away with these powers.“I cannot
subscribe to the omnipotence of a State Legislature, or that it is absolute
without control; although its authority should not be expressly restrained by
the Constitution; or fundamental law; of the State. There are acts the Federal, or
State Legislature cannot do without exceeding their authority. There are certain
vital principles in our free Republican governments, which will determine and
over-rule an apparent and flagrant abuse of legislative power; as to authorize
manifest injustice by positive law…”
3. Dissent: J. Iredell rejects J. Chase’s natural law/social compact approach: J. Iredell’s view
prevails for 2 generations: emphasized that only explicit constitutional limits on legislative
power are judicially enforceable, which is defined in its terms.
a. We have a written Constitution and we must rely upon what is written. The Constitution
doesn’t grant courts the right to strike down state laws. If a state passes a law within its
constitutional power, the Court can’t strike it down merely because the Court thinks the
law runs contrary to natural law, because what the Natural law actually encompasses is
unclear and if we rely on the natural law there will be no fixed standard, and only the
Court’s legal opinion will count.
b. English Common Law and the general understanding of the rights of Englishmen did not
control the rights of Legislature. The American system establish written constitution to
bind and prevent legislatures from engaging in actions at odds with the legitimate
sphere of people’s rights.
c. If there is no binding written constitutional constraint, the courts have no means to
intervene
4. Objections
a. Absent written constraint give the judges no standards and only the Court’s legal
opinion will count.
b. There can be debates about ideas of natural justice because the idea is unclear-thus the
legislature has just as much a right to determine what those rights are (courts have no
legitimate right to supersede legislation.) This idea underpins Marbury/Madison.
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c.
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Amendment 9: seems to suggest that the written constitution is not enough.
**Fletcher v. Peck (1810): J. Marshall offers natural law as alternative reason for rejecting GA ex
post facto law:
“Either by general principles which are common to our free institutions, or by the particular provisions of the
constitution of the United States.”
**Dred Scott: antislavery lawyers were unsuccessful in arguing that slavery was a illegitimate
deprivation of liberty without a proper basis in law (e.g. conviction for crime)
J. Tanney struck down the Missouri Compromise on constitutional grounds (“an act of Congress that
deprives a citizen of his liberty or property merely because he brought his property into a territory can
hardly be dignified as Due Process of Law.”)
Application of the Bill of Rights to the States:
****Barron v. The Mayor and City Council of Baltimore (1833): The Bill of Rights
restricts only the federal government; not State Governments, thus 5th is intended to
be a limitation of federal government only
1.
2.
3.
Facts: Barron sued City for ruining his wharf claiming the State’s action violated the 5 th
Amendment’s Takings Clause guarantee that private property can’t be taken without just
compensation.
Held: The Bill of Rights doesn’t restrict State governments; only the federal government,
because there was no express intent by the framers of these amendments to bind States
through these amendments. Also, the Constitution wasn’t ordained to govern state
governments. Each state established its own constitution, which provides limitations and
restrictions on the powers of its particular state government.
a. Art I Section 9 and 10 “draws a plain and marked line of discrimination between the
limitations it imposes on the power of the general government and those of the states.”
Consequence: Counters Calder; individual’s don’t have natural rights, and thus neither the
Supreme Court nor lower federal courts could exercise significant control over substantive
State legislation, or the administration of state law.
Post Civil War and Adoption of the 13th, 14th, and 15th Amendments
Specifically binding states. Passage of 13th, 14th, and 15th Amendments: significantly widened the
constitutional restrictions on state governments from infringing on the rights of individuals. These
amendments were created to bar discrimination by states against individuals, especially African-Americans,
and thus they created a drastic change from the constitutional restrictions on relations bettween the state
government and individuals.
13th (1865)
Section 1. Neither slavery nor involuntary servitude, except as a punishment for crime whereof the
party shall have been duly convicted, shall exist within the United States, or any place subject to their
jurisdiction.
Section 2. Congress shall have power to enforce this article by appropriate legislation.
14th (1868)
Section 1. Citizenship Clause: All persons born or naturalized in the United States, and subject to the
jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall
make or enforce any law which shall abridge the privileges or immunities of citizens of the United
States; nor shall any State deprive any person of life, liberty, or property, without due process of law;
nor deny to any person within its jurisdiction the equal protection of the laws.
Section 2. Representatives shall be apportioned among the several States according to their respective
numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the
right to vote at any election … is denied to any of the male inhabitants of such State, being twenty-one
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years of age, and citizens of the United States, or in any way abridged, except for participation in
rebellion, or other crime, the basis of representation therein shall be reduced in the proportion
which the number of such male citizens shall bear to the whole number of male citizens twenty-one years
of age in such State.
Section 3. No person shall be a [elected official who has] engaged in insurrection or rebellion against the
same, or given aid or comfort to the enemies thereof. But Congress may, by a vote of two-thirds of each
House, remove such disability.
Section 4. The validity of the public debt of the United States…
Section 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this
article.
15th (1870)
Section 1. The right of citizens of the United States to vote shall not be denied or abridged by the United
States or by any State on account of race, color, or previous condition of servitude.
Section 2. The Congress shall have power to enforce this article by appropriate legislation.
The Privileges and Immunities Clause
Underlying Purpose of Post-Civil War Amendments: eliminate remnants of AfricanAmerican slavery, but not fundamentally change the relations of the government.
1.
2.
3.
The 14th Amendment was adopted to assure states wouldn’t “abridge privileges and immunities
of African-American’s pursuit of national rights.” (to animate the promise of the 13th
amendment) Similarly, the Equal Protection and Due Process Clauses protect former slaves from
denial of state or federal rights.
These amendments can’t be used to prevent States from exercising legitimate police power
(health, safety, morals or welfare) and defining the particular privileges and immunities of its
citizens.
a. Legitimate state police power in Slaughterhouse: promote public health by consolidating
slaughterhouses to one plant to plant. Balance of Power argument retained (no
legislative intent to disrupt this balance.)
Problem: after McCulloch v. Maryland: national privileges and immunities are protected without
the 14th Amendment; we wouldn’t need the 14th Amendment unless it serves to protect state
citizens from state action.
**Hepburn v. Griswald (1870): (later reversed in Legal Tender Cases in 1871) DP clause
is applicable only to a direct appropriation of property rather than a diminution in
value of property.
1.
2.
Certain parts of the Legal Tender act, including the right to issue Greenbacks, was
unconstitutional
a. Contract rights, like property rights were held subject to " the possible exercise of
rightful authority"
b. The due process protection applied only to a "direct appropriation" rather than an
indirect diminution in value and
"not every hardship is unjust, much less unconstitutional, and it would be an anomaly for us to
hold an act of Congress invalid merely because we might think its provisions harsh and unjust".
****Slaughterhouse Cases (1873): 13th and 14th applied only to protect former slaves
(original intent): EP was only meant to protect Blacks; the grant of monopoly is not a
violation of DP (deprivation of property); Most importantly: renders the Privileges and
Immunities clause a nullity/cannot be used to apply BofR to states (never overruled.)
1.
Facts: Louisiana grants monopoly to Slaughterhouse Co., using Police Power. Remaining
butchers are required to pay fee and slaughter in Slaughterhouse Co.’s facilities and pay a fee for
this use. Butchers who weren’t included in monopoly challenge law claiming it violates 13 th ban
on involuntary servitude and 14th’s P&I, DP, and EP clauses.
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2. Held
a.
13th Amendment: I know slavery when I see it, and this isn’t slavery. The purpose of the
13th Amendment was only to prevent African American slavery. (Mischief Rule: no
broad interpretation of intent.)
b. The 14th Amendment: Equal protection applies only to Blacks (Applies Mischief Rule to
apply only to Blacks)
c. Substantive DP rejected: DP cannot be used to safeguard a right to practice a trade or
profession from arbitrary government interference.
d. Privileges and Immunities Clauses cannot be used to apply BofR to states. P&I protects
privileges and immunities of national, not state, citizenship and
i. Privileges and immunities of state and national citizenship are different as
evidenced by wording of 14th Amendment: important to make this distinction,
because otherwise federal government will have power over all State legislation
(federalism would be destroyed).
ii. Article IV Privileges and Immunities prevents discrimination by states against
out-of-state citizens (doesn’t address how a state defines citizens of the
sovereign state.) The right to butchering is a privilege and immunity of the State
and thus does not fall under Article IV.
3. This holding was a modification of Barron: the federal government protects rights of U.S.
citizenship and states protect the natural rights of citizens. Practicing one’s calling isn’t a right of
national citizenship, but rather a natural right, and the Court didn’t enforce this right as a natural
right, because it didn’t want to exert too much influence over state legislation.
4. Corfield/Coryell stood for the proposition that whatever rights are granted by the states, shall
be the measure of the rights of citizens of other States within that jurisdiction. Yet, the majority
also says, “privileges and immunities of citizens of the several States" = privileges and
immunities which are fundamental (natural?) and are a right of citizens of all free government
5. Majority declines to broaden Constitutional grant to encompass all civil rights issues, but
opens the door for the Legislature to do it through the legislative process.
6. Sidesteps the question of defining the privileges of citizens of the US which no State can abridge
(because the question at issue is only dealing with the rights of citizens of States, which are left to
the state governments for security and protection.)
7. Dissent: J. Field: If the P&I clause is so construed, it is robbed of all meaning
a. Violation of 13th Amendment: destroys slavery and allows everyone to pursue his
occupation without economic restraint. J. Field would invalidate statute, because
monopoly holders control lives of the butchers; essentially made them slaves. J. Field
also worries States could appoint labor control to anyone, which might lead to
establishment of plantation labor.
b. Violation 14th Amendment: protects all citizens’ fundamental rights from abridgement
by the States.
c. P90: Privileges and Immunities encompass a broad set of activities identified by J.
Washington, subject to restraints justly proscribed to the whole (agrees with the
Majority here.) However, is butchering a privilege and immunity?
d. Utilized Corfield v. Coryell’s definition of privileges and immunities: enjoyment of life
and liberty, the right to acquire and possess property of every kind, and to pursue and
obtain happiness and safety. J. Field argues among these rights are the right to pursue
lawful employment without restraint that doesn’t equally affect everyone and in this
case the advantage given to one group transgresses this constitutional obligation.
Violates Privileges and Immunities of citizenship.
e. Argues that Police Power was only a “shallow” pretext: there was thousands of square
miles set up to the butchering activities, and no reason why others could not partake
8. J. Miller’s Response: limited view of Amendments
a. 13th, 14th, and 15th amendments should be seen as a package to eliminate slavery and
guarantee that subordination of Blacks did not reemerge in different forms. Thus, the
prohibition of involuntary servitude is a specific prohibition on chattel slavery or a
substantial equivalent. The butchers are not the same as Dred Scott.
b. 14th Amend is formed to distinguish between state and US citizenship. National and state
citizenship are different. Art IV spoke to the question of state citizenship (recognized
that states in general are obligated to speak to the vast array entitlements and
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9.
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obligations (protection by government, property rules, etc.) Thus states regulated
general aspects of life for the general good (entitlements of state citizenship.) Corfield v.
Coryell vests the same entitlements in state citizenship as those from out-of-state.
Miller, distinguishes this from P & I of national citizens, whose existence is owned to the
federal government or the national constitution and laws. The right to engage in
butchery existed before the Amendments and are to be protected by the state.
c. Textual account supported by an understanding of the purpose of the Amendments
(eliminate slavery, not to reorient the powers of state and government) and the
background of federalism. If power was given to every aspect of Property, Liberty,
Safety, and Happiness, the very nature of federalism would be threatened.
d. Section V specifically grants federal government the right to exact laws (Congressional
power to act). Where there would be such a great departure from the preexisting
system, we should not assume in the absence of clear textual warrant, that such
departure was warranted.
e. Leaves open which sorts of P & I arise from the relationship of the citizen to the national
government. SCOTUS has used the DP clause to incorporate large swath of the B of R.
Today, virtually the only provisions not incorporated by DP are 7th Amendment and
prohibition of prosecution w/o grand jury.
DP has coverage that is different from P&I Clause: SCOTUS took the position that
corporations are not citizens for P&I (Paul/VA.) DP Clause extends to citizens and non-citizens
and corporations (1886)
a. SCOTUS has not recognized many P & I of state citizens, most of the work is done
under DP.
**Saent/Roe (1999): Revival of P&I to invalidate state law
1.
Facts: Strikes down CA welfare law which restricts a new resident’s welfare benefits to the same
she received in her previous home state.
2. Held: Right to travel is a fundamental right. P&I has always protected the right of citizens to be
treated equally in different states. One of the P&I is the right to join other states on a basis of
equality.
3. Dissent: Thomas/Rehnquist: this was probably not what the Framers intended.
4. Note: Scalia voted with the majority (7-2 split)
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The 14th Amendment and the Rise of Substantive Due Process
Due Process Clauses of 5th and 14th Amendments require legislation to be fair and reasonable in
substance as well as procedure. The constitutional guarantee that no person shall be arbitrarily deprived
of his life, liberty or property.
Procedural DP: procedures that the government must follow before it deprives a person of life, liberty,
or property. (eg notice, hearings, jury instructions to avoid large punitive damages, etc.)
Substantive DP: used to insure that laws served an adequate purpose; asks whether the government
has an adequate reason for taking away a person’s life, liberty, or property. Looks to whether there is
sufficient justification for the government’s action. (tests used can be rational basis, heightened
scrutiny, S.S., etc.) (eg prevents excessive punitive damages awards, regardless of procedures followed.)
Distinguished from Procedural DP based on the remedy sought (unconstitutional because of rights or
because of lack of adequate safeguards.)
Why so controversial? Some argue that DP is the wrong place to guard these rights—should use
P&I Clause (but of course, Slaughterhouse killed the P&I clause.) Other argue that Court may not protect
rights that are not explicitly stated in the Constitution or intended by framers.
Generation After Slaughterhouse: Shortly after Slaughterhouse decision Court was
pressured to review substance of state economic regulation.
Reasons why:
Natural rights theory: J. Chase’s argument in Calder v. Bull: certain rights are “fundamental” or
“natural rights” (rights not derived from a constitution or legal system; simply the nature of things) led to
view that if legislature enacts law which restricts these “natural rights” the statute is a deprivation of
“liberty and/or property” without due process.
Laissez-Faire economic theory and the Industrial Revolution: (relates to “social Darwinism”) Rapid
industrial development coincided with the rise in “laissez-faire” economic theory: minimize government
interference with business to maximize industrial growth and national well being.
Enactment of 14th Amendment: the 14th amendment was a “peg” on which substantive review of state
law could be hung, despite the initial rejection of this view in the Slaughterhouse Cases.
Increased Scrutiny: these cases indicated early on the Court’s increased willingness to engage in
substantive due process review in certain circumstances
Emerging DP: 1870s-1890s: Rejecting DP challenges to governmental regulations (but dicta
indicates that they might invalidate laws using DP if they interfered with natural principles
of justice.)
**Munn v. Illinois (1877) (378) Substantive DP emerges in majority opinions: police
power included regulation of individual use of property that was “affected with a
public interest,”
In this case, rates of grain elevators (which could ostensibly extract monopoly prices.) The door was open
for greater judicial control in the future, even as “it is not to be inferred that this power [of] regulation [is]
without limit. This power to regulate is not a power to destroy.”
**Mugler v. Kansas (1887): State law that violates the “Fundamental law” will be
invalidated: Court sustained State ban on alcoholic beverages, but indicated legislation
would be valid under States’ “police powers” only if truly related to protection of
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public health, safety or morals, and if it didn’t violate “rights secured by the
fundamental law.”
M. Cheng
Held: J. Harlan: “Not every statute enacted ostensibly for the promotion of the public morals, the
public health, or the public safety” would be accepted “as a legitimate exertion of the police power of
the State.” Courts were obligated, “to look to the substance of things,” and if the purported exercise
of police power, “has no real or substantial relation to those objects, or is a palpable invasion of rights
secured by the fundamental law, it is the duty of the courts to so adjudge.”
****Allegeyer v. Louisiana (1897) 379: Move toward substantive due process is
complete: First time Court invalidated State law on substantive due process grounds:
State regulations that inhibit “Freedom of Contract” are invalid:
Held: struck down Louisiana statute that prohibited obtaining insurance in Louisiana from a
company not licensed in Louisiana. Statute violated the 1 4th Amendment’s Due Process Clause,
because prevented D (who bought insurance from an out-of-state firm) from exercising his “freedom
of contract.”
Implications: The 14th Amendment’s guarantee of “liberty” protected not only physical liberty,
but also the right to work where one wants, earn one’s living by any lawful calling, and form
contracts necessary to accomplish these goals.
Lochner Era (1905-1937): Protecting economic rights under DP clause :
1877: Pennoyer/Neff (DP: exercise of authority over out-of-state defendant which deprives D of DP)
1894: SCOTUS is repeating the language that DP clause incorporates the notion that state can regulate on
behalf of health, safety, and morals, but must show that it was acting 1) in the interest of the public
generally and 2) reasonably in connection with this purpose.
****Lochner v. New York (1905): Court invalidates a N.Y. law that limits hours bakery
employees can work to 10/day or 60 hours/week as abridgement of “liberty of
contract,” and therefore violation of the 14’s DP Clause. State had no legitimate state
power act.
1.
2.
3.
4.
Facts; Locher was an employer convicted for employing a worker for more than 60 hours a week
(violating statute.)
Lochner’s argument
a. Freedom of contract is a basic right protected under 14th.
i. “The statute necessarily interferes with the right of contract between the
employer and employees. The general right to make a contract in relation to his
business is part of the liberty of the individual protected by the 14 th
Amendment.”
ii. Government can interfere with freedom of contract only to serve a valid police
purpose (legitimate police power + direct relationship between means and end.)
b. Judicial role to carefully scrutinize legislation that interferes with freedom of K.
i. Legislature’s motives will be questioned: A state’s actual motive not
pretextual motive will be analyzed when evaluating a statute subjected to a due
process attack. No deference of legislative fact-finding The Court will reach its
own conclusions on factual issues.
Held: Violation/does not pass the test.
Applying the Test: (1) Legitimate end and (2) Direct relationship
a. Not valid Labor Law/No legitimate end: Police power can extend only to protection of
public welfare. Regulation between bakery workers and employers isn’t a sufficient
public concern (private matter). If bakers need special protection statute might have
been valid, but bakers weren’t class-needing protection.
i. “There is no contention that bakers as a class are not equal in intelligence and
capacity to men in other trades… or that they are not able to assert their rights
and care for themselves without the protecting arm of the state.”
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5.
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ii. Taking from A and giving to B is not ok (bargaining power): see Adkins v.
Children’s Hospital (Court invalidated law prescribing a minimum wage for
women, because it violated due process, even though it previously accepted
maximum-hour laws for women in Muller/Oregon) and Coppage v. Kansas
(Invalidated yellow dog contracts.)
b. No direct connection: hours don’t affect quality of baked goods (public health)
i. N.Y. could achieve this goal without infringing on freedom of contract: inspect
premises, or require washrooms be furnished.
ii. “In our judgment it is not possible in fact to discover the connection between the
number of hours a baker may work in the bakery and the healthful quality of the
bread made by the workman.”
iii. “There must be more than the mere fact of the possible existence of some small
amount of unhealthiness to warrant legislative interference with liberty.”
iv. Reminiscent of Dred Scott (where the law itself cannot be dignified.)
Dissenting Opinions:
a. J. Harlan: evidence establishes the statute promotes health and safety of bakers: Labor
in excess of 60 hours/week could endanger the health of the laborer. There is a real
and substantial connection between the means the State employed and the end
the State sought.
i. If there is debate and disagreement on the issue Court should defer to the
legislature. Is this appropriate? Problem is legislatures might simply respond to
pressure from lobbyists. Harlan may not go far enough in restricting the Court’s
ability to review the legitimate end prong. Further, his approach allows
legislatures to do things we may be uncomfortable with (Ex: Buck v. Bell: where
legitimate end, and means standard doesn’t work well).
ii. it’s not the court’s job to decide if an act is effective or to judge: “The courts are
not concerned with the wisdom or policy of legislation. So that in determining
the question of power to interfere, the court may inquire whether the means
devised by the State are germane to an end which may be lawfully accomplished
and have a real or substantial relation to the protection of health, as involved in
the daily work of the [bakers.]”
b. J. Holmes: Court shouldn’t impose its own views of correct economic theory on
legislatures. Court shouldn’t determine which ends are legitimate, because democratic
political process produces legitimate ends that shouldn’t be reviewed by the courts.
“The 14th Amendment does not enact Mr. Herbert Spencer’s social statics.” (Social
Darwinism) “A constitution is not intended to embody a particular economic theory,
whether paternalism and the organic relation of the citizens of the state or of laissez
faire.” Liberty is violated when, “a rational and fair man necessarily would admit that
the statute…would infringe fundamental principles as they had been understood by the
traditions of our people and our law.” A valid end is one accepted by society.
Lochner’s Substantive due process implications: Due process of law implies some element
of reasonableness and justice.
1.
2.
3.
Freedom of K is a right protected by DP of 5th and 14th.
How is the level or reasonableness determined: The government action must be directly
related to the objective, which must be constitutionally appropriate.
a. Means-Ends Relationship: What is the relationship between 60 hours and health?
There is no showing 61st hour is any more dangerous to baker than any other profession.
The law is a pretext, and real end is labor regulation to reallocate bargaining power to
employees. Can government intervene in the marketplace? Yes, as long as there is a
direct relationship to health, safety, morals, and general welfare of the public.
b. Appropriate Ends: Laws that relate to safety, health, morals and general welfare of
public are within legitimate police power. Here: two possible ends: labor law (alter
relation of worker and employer), and health (better worker health). Health is a
legitimate end, but bettering worker health isn’t legitimate as a labor law; there is no
public interest to make employee better off at the expense of employer.
The Resulting test: to determine whether a law is reasonable:
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a.
b.
M. Cheng
Close fit: requires a “real and substantial” relationship between statute and goals it
serves,
Legitimate End: only certain legislative objectives are acceptable: regulation of health,
safety, but readjustment of economic power or resources isn’t acceptable.
Other Decisions in the Lochner Era:
**Palko v. Connecticut (1937) (364): “selective incorporation” (no general rule that all
rights in the BofR are applied to the state.)
Working Conditions for Women: Court willing to allow setting of maximum hours where found
benefited class needed special protection, beyond given to workers in general:
**Maximum Hours Ok for Women: Muller v. Oregon (1908) Though rejected in Lochner:
a.
b.
Court accepts maximum hours for a class needing special protection. Court sustains law barring
employment of women in factory or laundry for more than 10 hours/day, because women are a
weaker class, “disadvantaged in the struggle for subsistence,” and therefore need special
protection; unlike the bakers in Lochner.
General reproductive welfare argument: healthy women have healthy children. This is not an
arbitrary, unnecessary, and unreasonable legislation. Court is willing to accept legislator’s
evaluation.
**Minimum wage not OK for women: Adkins v. Children’s Hospital (1918) Court invalidated law
prescribing a minimum wage for women, because it violated DP (freedom of K), even though it
previously accepted maximum-hour laws for women in Muller/Oregon (1908-3 years after
Lochner) :
1. Since the Muller case, the 19th Amendment was passed displaying women are no longer
considered inferior.
a. Not substantial relationship: lack of minimum wage won’t necessarily force women to
work more jobs
2. Dissent: J. Holmes: “I confess that I do not understand the principle on which the power to fix a
minimum for the wages of women can be denied by those who admit the power to fix the
maximum for their hours to work. It will need more than the 19 th Amendment to convince me
that there are no differences between men and women, or that legislation cannot take those
differences into account.”
3. Explanation for the inconsistency of Adkins and Muller: maximum hour rules promote a
legitimate health objective, but minimum wage rules only lessen economic equality.
No Yellow Dog Contracts: Violation of Freedom of K
**Coppage v. Kansas: (1915) yellow dog contracts are violation of DP : Kansas act prohibiting
employers from requiring employees agree as a condition of employment “not join or become or
remain a member of any labor organization” [yellow dog contract].
1.
2.
Held: J. Pitney: violates due process: “Included in the right of personal liberty and the right
of private property is the right to make contracts. An interference with this liberty so serious
as that now under consideration, and so disturbing of equality of right, must be deemed to be
arbitrary, unless it is supportable as a reasonable exercise of the police power of the State.”
Dissent: J. Holmes: “In present conditions a workman not unnaturally may believe that only
belonging to a union can he secure a contract that shall be fair to him. If that belief, whether
right or wrong, may be held by a reasonable man, it seems to me that it may be enforced by
law in order to establish the quality of position between the parties in which liberty of
contract begins.”
**Adair v. U.S. (1908) Federal law barring “yellow dog” contracts in interstate railroads held
unconstitutional under the due process clause of the 5th Amendment.
1.
J. Harlan: the “right of a person to sell his labor upon such terms as he deems proper is the
same as the right of the purchaser of labor to prescribe the conditions. The employer and
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the employee have equality of right, and any legislation that disturbs that equality is an
arbitrary interference with the liberty of contract.”
**Buck v. Bell (1927): Virginia legislation allows sterilization of mental defectives,
adequate procedural due process, but P claims act violates her constitutional right of
bodily integrity and the Due Process Clause of the 14th Amendment.
1.
2.
Held: the act is constitutional:
a. No procedural DP violation (adequate medical evaluations)
b. No substantive DP violation: There were grounds to sterilize P, because the public
welfare is more important than the rights of a citizen that will produce dangerous
offspring. The principle of compulsory vaccination is broad enough to cover cutting the
Fallopian tubes (Jacobson v. Massachusetts already acknowledges submitting bodily
integrity in certain instances.) Three generations of imbeciles is enough.
“We have seen more than once that the public welfare may call upon the best citizens to forefeit
their lives. It would be strange if it could not call upon those who already sap the strength of the
State for these lesser sacrifices, often not felt to be such by those concerned, in order to prevent
our being swamped with incompetence.”
Supplement Notes:
1.According to the majority in Lochner, who is deprived of liberty? Can you make an argument that the
failure to promulgate the law in question deprived anyone of liberty?
2.a.In what way is the deprivation in Lochner " without due process of law "? What "process" was
missing?
Lochner involved an appeal from a conviction of a baker for employing a worker for longer than
the 60 hour week. Everyone agrees that the due process clause requires such things as notice, and a fair
hearing before an impartial tribunal. This is an important set of protections, but one that we will not
have time to explore in this course. Mr. Lochner's conviction, however, resulted from the usual
criminal procedures of indictment, jury trial and appeal. Compare the elaborate procedures available in
Buck v. Bell.
b. As S&G note, the Lochner line of cases was not the first time that "due process" was thought to
imply some substantive limits on the power of the government to regulate property. You will recall that
Justice Taney in Dred Scott thought that the Missouri Compromise deprived slave owners of property
without due process of law. Likewise, in Hepburn v. Griswold 75 U.S. 603, 622 (1870), the Court held
(5-3) that an act of Congress making greenbacks legal tender for debts contracted before the act
deprived creditors of property without due process of law. Requiring creditors to accept less than they
had contracted for, in the Court's view came "within the prohibition against arbitrary privation of
property". (The Court also stated that the statute was at odds with the "spirit of the constitution"
embodied in the contracts clause and the takings clause). Hepburn was overruled in the Legal Tender
Cases 79 U.S. 457 (1871). The new majority stated that 1)contract rights, like property rights were held
subject to " the possible exercise of rightful authority" 2) The due process protection applied only to a
"direct appropriation" rather than an indirect diminution in value and 3)"not every hardship is unjust,
much less unconstitutional, and it would be an anomaly for us to hold an act of Congress invalid merely
because we might think its provisions harsh and unjust". Does the experience of the Legal Tender Cases
throw light on Slaughterhouse?
For an account of the limits on regulation in the period following the Legal Tender Cases, see
Lawton v. Steele, 152 U.S. 133, 137-138 ( 1894) (upholding summary destruction of illegal fishing nets
against a claim that the destruction was a deprivation of property without due process).:
The extent and limits of what is known as the police power have been a fruitful subject of
discussion in the appellate courts of nearly every State in the Union. It is universally conceded to
include everything essential to the public safety, health, and morals, and to justify the destruction
or abatement, by summary proceedings, of whatever may be regarded as a public nuisance. Under
this power it has been held that the State may order the destruction of a house falling to decay or
otherwise endangering the lives of passers-by; the demolition of such as are in the path of a
conflagration; the slaughter of diseased cattle; the destruction of decayed or unwholesome food;
the prohibition of wooden buildings in cities; the regulation of railways and other means of
public conveyance, and of interments in burial grounds; the restriction of objectionable trades to
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certain localities; the compulsory vaccination of children; the confinement of the insane or those
afflicted with contagious diseases; the restraint of vagrants, beggars, and habitual drunkards; the
suppression of obscene publications and houses of ill fame; and the prohibition of gambling
houses and places where intoxicating liquors are sold. Beyond this, however,the State may
interfere wherever the public interests demand it, and in this particular a large discretion is
necessarily vested in the legislature to determine, not only what the interests of the public
require,
but what measures are necessary for the protection of such interests. Barbier v. Connolly, 113
U.S. 27; Kidd v. Pearson, 128 U.S. 1. To justify the State in thus interposing its authority in
behalf of the public, it must appear, first, that the interests of the public generally, as
distinguished from those of a particular class, require such interference; and, second, that the
means are reasonably necessary for the accomplishment of the purpose, and not unduly
oppressive upon individuals.
3.Would the Lochner majority permit any regulation of the employment of bakers? What would be the
fate of an OSHA regulation requiring employers to provide bakers with masks to keep them from
continuously breathing flour in order to prevent "white lung disease"? Think about the fact that the
Court three years later upheld the statute in Muller v. Oregon (S&G p.387). Compare the decision in
Adkins; Is there a difference between the two cases?
In Bunting v. Oregon (S&G p. 387), the state regaled the court with (according the argument of the
state's counsel Felix Frankfurter)"a mass of data that, partly, was not presented in cases like Lochner,
but mostly could not have been before the court because it was not heretofore in existence....The
knowledge obtained by increasing study of industrial conditions is back of the state's policy." The
Court upheld the law on the ground that the legislature could reasonably conclude that the 10 hour day
for workers in mills, factories and manufacturing establishments was necessary "for the preservation of
the health of the employees". Even at the height of the Lochner era, the federal courts sustained far
more regulatory statutes than they struck down.
4. Why is the act in Lochner not valid as a "labor law pure and simple"? Note that in Adair v. United
States (referred to on p. 386) Justice Harlan authored an opinion striking down a federal statute
forbidding interstate carriers from discharging union members, commenting that "the employer and the
Does textual nit-picking about “process” matter? Couldn't Justice Field have reached the same result
under the Privileges and Immunities clause? Could Children's Hospital have invoked the Privileges and
Immunities clause? cf. Santa Clara Cty v.Southern Pac. RR (1886) S & G p.378. Could a legal resident
of the U.S. who retained Irish, Italian or Chinese citizenship?
4. Why is the act in Lochner not valid as a "labor law pure and simple"? Note that in Adair v. United
States (referred to on p. 386) Justice Harlan authored an opinion striking down a federal statute
forbidding interstate carriers from discharging union members, commenting that "the employer and the
employee have equality of right and any legislation that disturbs that equality is an arbitrary interference
with the liberty of contract which no government can legally justify in a free land." He went on to comment
that Congress cannot be assumed legitimately to "accord to one class of wage earners privileges withheld
from another class of wage earners " serving the same employer.
Does the excerpt from Adkins provide any clue? Does Coppage v. Kansas p.386? What is the
"motive" that the Lochner majority suspects was dominating the legislature?
5.Is it, as Justice Harlan claims in his dissent, "plain that the statute in Lochner was enacted in order to
protect the physical well-being of those who work " in bakeries? Why does the majority not uphold the
law as one pertaining to health? Harlan comments that "the court may inquire whether the means
devised by the state are germane to an end which may be lawfully accomplished and have a real or
substantial relation to those ends". Is the standard the majority adopts different from Harlan's, or do
they just read the evidence differently?
6. Is Justice Harlan's standard an acceptable one? How would he evaluate a statute which, in order to
increase employment opportunities for plumbers banned the use of plastic pipes in residential
plumbing, despite persuasive testimony that such pipes are safer and cheaper? How should a court treat
such a statute?
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7.What, according to Justice Holmes ,is wrong with the majority's opinion? (Holmes' dissent is thought
by many to be the taproot of contemporary judicial deference to political decision-making in economic
affairs)
8. Justice Holmes says that "the word liberty in the l4th Amendment is perverted when it is held to
prevent the natural outcome of a dominant opinion". Why?
Cf. Tyson & Brother--United Theatre Ticket Offices, Inc. v. Banton, 273 U.S. 418, 446-447
(1927)(Holmes, J. dissenting from invalidation of statute limiting the prices at which theater tickets
could be resold):
I think the proper course is to recognize that a state legislature can do whatever it sees fit
to do
unless it is restrained by some express prohibition in the Constitution of the United States or
of
the State, and that Courts should be careful not to extend such prohibitions beyond their
obvious
meaning by reading into them conceptions of public policy that the particular Court may
happen
to entertain.... Lotteries were thought useful adjuncts of the State a century or so ago; now they
are believed to be immoral and they have been stopped. Wine has been thought good for man
from the time of the Apostles until recent years. But when public opinion changed it did not need
the Eighteenth Amendment, notwithstanding the Fourteenth, to enable a State to say that the
business should end.... What has happened to lotteries and wine might happen to theatres in some
moral storm of the future, not because theatres were devoted to a public use, but because people
had come to think that way. ..... I am far from saying that I think this particular law a wise and
rational provision. That is not my affair. But if the people of the State of New York speaking
by
their authorized voice say that they want it, I see nothing in the Constitution of the United
States
to prevent their having their will.
Holmes also wrote the majority in Buck v. Bell. Would it have been a perversion of the word "liberty"
to come out the other way in Buck?
9.Under Holmes' view, would it matter if it could be shown that the New York legislature had been
bribed by BakePAC, representing the bakery employees of New York, or by large bakery owners, who
already had a l0-hour week and sought to drive smaller bakers out of business? Should it? Does it
matter that less than 50% of the adults in New York could legally vote at the time (remember the l9th
Amendment)? Would it matter if the law had been passed by the Louisiana legislature? ( In l904, after
the adoption of suffrage restrictions, 52.4% of white males, and l.l% of black males were registered to
vote)
10. Is there a legitimate place for substantive due process review? How would Holmes (or how should
a court) evaluate:
l. A state statute making it a crime to possess the Communist Manifesto?
Note that Gitlow v.New York 268 U.S. 652 (1925) entertained a free speech challenge under the
due process clause. Six years later, in Near v. Minn., 283 U.S. 697, 708 (1931) , the Court invalidated a
scheme for censoring newspapers, commenting :
It is no longer open to doubt that the liberty of the press, and of speech, is within the liberty
safeguarded by the due process clause of the Fourteenth Amendment from invasion by state action. It
was found impossible to conclude that this essential personal liberty of the citizen was left unprotected
by the general guaranty of fundamental rights of person and property. Gitlow v. New York, 268 U.S.
652, 666; Whitney v. California, 274 U.S. 357, 362, 373; Fiske v. Kansas, 274 U.S. 380, 382;
Stromberg v. California,. In maintaining this guaranty, the authority of the State to enact laws to
promote the health, safety, morals and general welfare of its people is necessarily admitted. The limits
of this sovereign power must always be determined with appropriate regard to the particular subject
of
its exercise. Thus, while recognizing the broad discretion of the legislature in fixing rates to be charged
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by those undertaking a public service, this Court has decided that the owner cannot constitutionally be
deprived of his right to a fair return, because that is deemed to be of the essence of ownership. Railroad
Commission Cases, 116 U.S. 307, 331; Northern Pacific Ry. Co. v. North Dakota, 236 U.S. 585, 596.
So, while liberty of contract is not an absolute right, and the wide field of activity in the making of
contracts is subject to legislative supervision, this Court has held that the power of the State stops short
of interference with what are deemed to be certain indispensable requirements of the liberty assured,
notably with respect to the fixing of prices and wages. Tyson Bros. v. Banton, 273 U.S. 418; Ribnik v.
McBride, 277 U.S. 350; Adkins v. Children's Hospital, 261 U.S. 525, 560, 561. Liberty of speech, and
of the press, is also not an absolute right, and the State may punish its abuse.. Liberty, in each of its
phases, has its history and connotation and, in the present instance, the inquiry is as to the historic
conception of the liberty of the press and whether the statute under review violates the essential
attributes of that liberty.”
In next fifty years, the Court gradually adopted the proposition that most protections of the Bill of
Rights are "incorporated" into the due process clause. See G&S pp.463-71 for an account of the
evolution. We will return to this issue in our discussion of the Second Amendment. 2. A state statute
authorizing
2. A state statute authorizing a "Board of Parental Supervision" to remove children from the
custody of parents found (after appropriate notice and hearing) to be "morally unfit". Compare Buck v.
Bell.
3. The actions of a police department whose members regularly beat and kill citizens who offend
them?
4. A state statute requiring any citizen approached by a homeless person to allow the homeless
person to take up residence in the citizen's house?
5. A statute making it a crime to be a drug addict?
Can you argue that courts have some advantage over legislatures in making the decisions at issue
in any of these situations? Do any of these arguments fail to support the methodology of the Lochner
opinion?
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The Fall of Substantive Due Process/Decline of Lochner
Four Critiques of Substantive Due Process
1. Courts aren’t more competent than legislatures: Courts are not absolutely superior to legislatures
when it comes to review. When thinking about appropriate tradeoffs and their effectiveness, the
argument is that the legislative power is much better at evaluating the empirical likeliness that a
particular end will be achieved by a particular means. Moreover, the legislature has the power to adjust
in ways that the court cannot. (courts cannot revive an unconstitutional act once they’ve condemned it.)
Harlan adopts this in Lochner (“as long as there is evidence form which a legislature could legitimately
conclude that there is [a relationship between means and ends] that should be enough.” Courts should
only intervene when legislature has “palpably” overstepped.
2. Judicial tyranny: evaluation of the degree of connection between ends and means as well as
determining legitimacy of ends are fundamental subjective. Courts smuggle their substantive preferences
in under the cover of objective evaluation. Holmes in his dissent in Lochner says that the fact that
something is unfamiliar to the court is not a basis on which to claim that something is unconstitutional.
Holmes proposes not only to say that courts cannot be overruled by populace (and thus can assert their
will over the populace) but also that the concept of a constitution is inconsistent with the proposition that
there is a closed set of ends that constitute the legitimate public welfare. The constitution is a frame of
government for people with fundamentally different views. Liberty consists in interfering with the ability
of the people to embody their views of good in the form of binding law. Holmes agrees that there is some
limit somewhere, but the definition of what constitutes public interest is in general, not bound by
commitments of any particular political policy.
3. Affirmative interest in self-government. It isn’t that court gets it wrong by excluding certain ends,
but the particular decision to exclude redistribution as a legitimate ends is improper. (takes root as
country struggles with Depression.)
The account given West Coast Hotel isn’t that wage restrictions redistributes wealth, but
rather the failure to require employers to pay a minimum wage is an effective subsidy to
employers who undercut minimum wage and gives them a competitive advantage, shifting
the cost to the public.
This idea is supported by the idea that during the Great Depression, it becomes increasingly
clear that redistribution may be necessary to accomplish macroeconomic goals à la Keynes
(by bolstering economic demand.) Thus, a tightly constrained rule that reallocation of
economic advantage is impermissible becomes less plausible.
4. Criticism of redistribution is flawed because it assumes that property rights are pre-political.
Using freedom of K to invalidate state laws was a political choice that favored employers over employees
and corporations over consumers. (Roscoe Pound) Court should not be overturning political decisions
made by the political process.
These critiques combined with political pressures to produce a transformation in the doctrine of DP. By
the time the court is finished with the 1940s, it reached an approach that completely recast the role of the
court. Rather than evaluating with a skeptical eye, the court gives up more discretion. In Williams/Lee
Optical, the regulation is upheld in part because the legislature could believe that prohibiting the
productions without prescription would encourage people to get glasses without going to an
optomologist and not have their glaucoma discovered.
Reason for decline: Depression, New Deal, and economic health of nation: New Deal programs
convinced many people of need for aggressive legislation to ensure nation’s economic survival and a
departure from laissez faire economics. But large-scale government intervention was clearly at odds with
Lochner’s “freedom of contract” principle. Court packing plan (the Switch in Time that Saved Nine) also
shifted the court left (1937).
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**Nebbia v. New York (1934): First suggestion that Lochner was in trouble: sustained
N.Y. law fixing milk prices following a legislative finding without explicitly rejecting
Lochner:
1.
2.
3.
Held: Sustained scheme: didn’t explicitly reject Lochner, but noted guarantee of due process
required only, “the law shall not be unreasonable, arbitrary or capricious, and the means selected
shall have a real and substantial relation to the object sought to be attained…” A state was free;
“to adopt whatever economic policy may reasonably be deemed to promote public welfare, and
to enforce that policy by legislation adapted its purpose.” Courts are without authority to
override such policies.
Narow reading of Lochner: (this is a legitimate end with real and substantial
relationship): “Milk is an essential item of diet, failure of producers to receive a reasonable
return threatens a relaxation of vigilance against contamination, and the production of milk is a
paramount industry of the state, and largely affects the health and prosperity of its people.”
Significance of Nebbia: Court broadens it’s language and sass that “neither property rights nor
contract rights are absolute” and declared need for judicial deference for legislative choices.
a. The substantial means-end relationship requirement was essentially a Lochner test. But
the Court didn’t want to impose its own views on correct economic policy, as Lochner
Court had done.
****West Coast Hotel v. Parrish (1937): The death of Lochner: Freedom of K is not a
fundamental right and government has power to equalize bargaining power: Min.
Wage OK for Women
1.
2.
3.
Court upheld State minimum wage law for women, overruled Adkins v. Children’s Hospital,
claimed States’ interest in protecting women’s health is important; gave substantial weight to
States’ interest in redressing women’s inferior bargaining power as well.
“What is this freedom of contract? The Constitution does not speak of freedom of contract.”
a. While minimum wage law interfered with “freedom of contract,” but unlike
Adkins/Lochner, the Court concluded that the readjustment of economic bargaining
power to enable workers to obtain livable wages was a legitimate limitation on
freedom of contract.
Grants government power to go beyond basic police power to prevent exploitation
Judicial Abdication in economic cases: the end of the Means/Ends Relationship scrutiny
in economic cases : Nebbia (explicitly) and West Coast Hotel (implicitly) preserved the
requirement of a “real and substantial relation” between an economic regulation and a
legitimate state objective. But the cases following West Coast Hotel virtually abandoned the
means and ends relationship scrutiny in economic cases.
The new Judicial Deference: “Minimum rationality” coupled with a “Presumption of
constitutionality” Test : Abandoned the “real and substantial relation” test of Lochner, and
adopted a presumption of constitutionality that would be applied when economic regulation was
subjected to a due process attack:
**** U.S. v. Carolene Products (1938) Court will presume the constitutionality of economic
regulation subject to DP attacks
1.
2.
Facts; upheld the Filled Milk Act of 1923that prohibited “filled milk”—vegetable oil mixed with
milk to resemble almost a cream—because Congress acted on findings of fact showing a public
health danger from filled milk.
Held: even in the absence of explicit legislative findings, Court held, “the existence of facts
supporting the legislative judgment is to be presumed, for regulatory legislation affecting
ordinary commercial transactions is not to be pronounced unconstitutional unless… it is of a
such a character as to preclude the assumption that it rests upon “some rational basis” within
the knowledge and experience of the legislators.”
a. Hypothetical Reasons in support of an act Rationale: abandoned even the mild level
of scrutiny in Carolene Products. The Court will hypothesize reasons, which would
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M. Cheng
support the legislature’s action; even though there is no evidence these reasons in fact
motivated the lawmakers.
FOOTNOTE 4: famous standard: Court will defer to legislature unless there is
discrimination against discrete and insular minorites.
a. The Court will defer to the government and uphold laws so long as they were
reasonable. But deference will not extend to laws interfering with fundamental rights,
restricting, ability of political process to repeal undesirable legislation, or discriminating
against discrete and insular minorities.
****Williamson v. Lee Optical Co. (1955) : Stress need for judicial deference to legislative
choices, legislature should balance the costs and advantages, not the courts. Court engages in
hypothesizing of possible legitimate purposes for the law:
1.
2.
Facts: Court upheld Oklahoma statute preventing opticians from fitting eyeglass lenses into
frames without a prescription from an ophthalmologist or optometrists, and prohibited soliciting
the sale of frames and renting retail space to any person purporting to do eye examinations.
J. Douglas: Rationale: Statute was a rational health measure, because the legislature “might
have concluded” in some instances prescriptions were necessary to permit accurate fitting, or
“eye examinations were so critical, not only for correction of vision, but also for detection of
latent ailments or diseases, that every change in frames and very duplication of a lens should be
accompanied by a prescription from a medical expert.”
a. The Consequence of hypothetical reasoning in support of economic legislation: a
plaintiff has the burden of rebutting not only reasons given by legislatures, but also
reasons legislatures “might have” considered, which might not surface until the Court
writes its opinion, making the attack of such legislation very difficult.
Also happening at this time: removal of C.C. restrictions in NLRB v. Jones & Laughlin Steep
Corp (1937) (upheld NLRB Act and application to steel industry) and US v. Darby (upheld
FLSA and its minimum wage and maximum hours provisions.
Darby expressly rejected challenges based on substantive economic DP and federalism/C.C., powerfully
illustrates that both the state and federal governments would be accorded broad powers to regulate the
economy)
Summary of the Modern Approach: Court almost completely ended substantive due
process review of State economic regulation: DP is no longer used to strike down state
laws, regulating business, or industrial conditions: Minimum Rationality Standard.
Minimum Rationality Standard: If the objective pursued in the economic regulation falls within
the State’s police power (health, safety or general welfare goal) all that is required is that there
be a minimum rational relation between the means chosen and the end being pursued [Carolene
Products]. There will be a presumption of constitutionality unless the legislature acted in an
“arbitrary and irrational” manner [Duke Power v. Carolina Environmental Study Group].
Social Welfare legislation: The mere rationality rule applies also to “social welfare” legislation, as long
as “fundamental” constitutional rights are not impinged. When a law, economic or social welfare,
impinges on something the Court has found to be a fundamental right, a higher level of scrutiny is
applied. The most important fundamental right, in the due process arena, has been the “right of privacy.”
Supplement Notes:
l. Does Nebbia adopt the dissents of Harlan or Holmes? Is the economic logic of Nebbia persuasive?
Does it need to be? Is Olsen different? Is there any basis for distinguishing Buck v. Bell?
Consider following passage in thinking about the rationale of the legislation, set forth at Nebbia v. New
York, 291 U.S. 502, 530 (1934):
‘The milk industry in New York has been the subject of long-standing and drastic regulation in the
public interest. The legislative investigation of 1932 was persuasive of the fact that for this and other
reasons unrestricted competition aggravated existing evils, and the normal law of supply and
demand was insufficient to correct maladjustments detrimental to the community. The inquiry
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disclosed destructive and demoralizing competitive conditions and unfair trade practices which
resulted in retail price-cutting and reduced the income of the farmer below the cost of production. We
do not understand the appellant to deny that in these circumstances the legislature might reasonably
consider further
regulation and control desirable for protection of the industry and the consuming public. That body
believed conditions could be improved by preventing destructive price-cutting by stores which, due to
the flood of surplus milk, were able to buy at much lower prices than the larger distributors and to sell
without incurring the delivery costs of the latter. In the order of which complaint is made the Milk
Control Board fixed a price of ten cents per quart for sales by a distributor to a consumer, and nine
cents by a store to a consumer, thus recognizing the lower costs of the store, and endeavoring to
establish a differential which would be just to both. In the light of the facts the order appears not to
be
unreasonable or arbitrary, or without relation to the purpose to prevent ruthless competition
from
destroying the wholesale price structure on which the farmer depends for his livelihood, and
the
community for an assured supply of milk “
2.Assume that you are charged with the job of defending the "no plastic pipes in residential housing"
statute referred to in question 6 above. How would you prepare the case after Nebbia ? How would
you prepare it after Carolene Products and Lee Optical? Could you simply take the position that the
legislature sought to help plumbers? That it sought to disadvantage manufacturers of plastic pipe?
The statute in Carolene Products was invalidated as a violation of due process in Milnot Co. v.
Richardson 350 F.Supp. 221 (1972), where the court found that the fact that other almost identical milk
substitutes were marketed in interstate commerce without any adverse effect on the public health and
the "filled milk" was marketed on an intrastate basis without any difficulties undercut any claim of
legitimate regulatory interest. The government did not appeal.
3. In Williamson v. Lee Optical pp.392-93 the Supreme Court, per Justice Douglas, upheld the statute
because "the legislature may have concluded that eye examinations were so critical...for the
detection
of latent ailments or diseases that every change in frames or duplication of lens should be
accompanied
by a prescription from a medical expert." Can you think of a plausible example of a statute that
provides full judicial procedures, and yet would violate the due process clause after Williamson?
Williamson was cited in Concrete Pipe and Products of California v. Construction Laborers Pension
Trust 113 S.Ct. 2264 (1993), an ERISA case, for the proposition that " It is by now well established that
legislative acts adjusting the burdens and benefits of economic life come to the Court with a
presumption of constitutionality, and the burden is on one complaining of a due process violation to
establish that the legislature has acted in an arbitrary and irrational way." Has the due process clause
been reduced to a challenge to the advocate's imagination?
5 [sic].a. In recent years, a variety of arguably unfair regulatory statutes which redistribute property
interests
have been upheld against substantive due process challenge E.g. DHS v. Oakland Housing Authority
535 U.S. 125 (2002) (upholding statute authorizing eviction of public housing tenants where guests or
members of family engage in drug use on or off the premises with or without the tenant’s knowledge);
Bennis v. Michigan 116 S.Ct. 994 (1996) (upholding forfeiture of innocent wife's interest in car in
which husband solicited a prostitute); United States v. Carlton 114 S.Ct. 2018 (1994)(holding
retroactive change in tax legislation was not unconstitutionally "arbitrary and irrational"; distinguishing
earlier precedents prohibiting retroactive taxation as "decided during an era characterized by exacting
review of economic legislation under an approach that has long since been discarded."); id (Scalia,J.
concurring) ("If I thought that substantive due process were a constitutional right rather than an
oxymoron, I would think it violated by bait and switch taxation"); General Motors Corp v. Romein 112
S.Ct. 1105 (1992)( retroactive increase in employers liabilities in workers compensation met the
requirement of a "legitimate legislative purpose furthered by rational means".) Cf. City of Cuyahoga Falls v.
Buckeye Cmty. Hope Found., 538 U.S. 188, 198 ( 2003)( city engineer's refusal to issue the
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permits while the referendum petition was pending “in no sense constituted egregious or arbitrary
government conduct”.)id (Scalia,J. Concurring)( “ It would be absurd to think that all "arbitrary and
capricious" government action violates substantive due process.....The judicially created substantive
component of the Due Process Clause protects, we have said, certain "fundamental liberty interests").
b.On the other hand, in Eastern Enterprises v. Apfel, 524 U.S. 498 (1998) ,a divided 5 member
majority found that the imposition of $100million in retroactive liability on a company that had
employed coal miners more than 30 years ago went too far. Both Justice O’Connor’s plurality
–invoking the takings clause– and Justice Kennedy’s substantive due process concurrence emphasized
the peculiar retroactive nature of the legislation, and the leeway Congress is usually given to regulate
economic relations. Even Justice Breyer’s dissent agreed however that the “due process clause protects
against an unfair allocation of public burdens through specially arbitrary retroactive means”.
Justice Breyer’s dissent argues that the imposition was not an irrational one, and takes the position that
it is not “fundamentally unfair or unjust”.
In Hanousek v. U.S. 120 S.Ct. 860(2000), Justice Thomas, joined by Justice O’Connor dissented
from denial of certiorari in a case that imposed criminal liability for negligent dumping of toxic wastes;
they apparently were sympathetic to the claim that such liability violated substantive due process.
In Verizon Communications v. FCC 535 U.S. 467 (2002) the Court acknowledged a long line of
cases requiring that regulation of public utilities allow a “constitutionally adequate return on rate base”,
invoking substantive due process and takings doctrines. It found no violation of this extraordinarily
opaque mandate in the case before it.
c. In US v. Bajakajian 524 US 321 (1998), Justice Thomas, writing for a five member majority
invalidated the forfeiture of $357,144 in cash that a defendant brought with him on leaving the US
without previously reporting as required by money-laundering statutes The Court held the forfeiture so
“grossly disproportionate” as to violate the prohibition on excessive fines in the 8th Amendment.
Likewise, the Court has invoked the excessive fines clause to limit civil forfeiture in the context of
efforts to suppress drug trafficking. Austin v. U.S. 113 S.Ct. 2801 (1993).But see Bennis supra.
d. In TXO ,four members of the court seem to believe that a jury verdict on punitive damages
rooted
in a "raw redistributionist impulse" violates the substantive demands of due process, and only
Justices
Thomas and Scalia entirely disavow the possibility of a substantive due process claim. In Honda
Motor Co. v. Oberg 114 S.Ct. 2331 (1994), the court, with only Justices Ginsburg and Rehnquist
dissenting held that in light of the potential of punitive damages for juries "to express biases against big
business", it was a violation of procedural due process for Oregon to bar judicial review of punitive
damages verdicts "unless the court can affirmatively say there is no evidence to support the verdict". In
BMW of North America v. Gore 116 S Ct. 1589 (1996), over dissents by Scalia, Thomas, Rehnquist and
Ginsburg, the Court invalidated as "grossly excessive" a $2 million punitive damage award to the
purchaser of a BMW whose car had a concealed paint defect that depreciated its value by $4000. The
majority commented that "we are not prepared to draw a bright line marking the limits of a
constitutionally acceptable punitive damages award" but "we are fully convinced that the grossly
excessive award imposed in this case transcends the constitutional limit." In Cooper v. Leatherman
Tool Group, Inc. 532 US 424 (2001) the Court found that the issue of whether a punitive damage verdict of
$4.5 million in a trademark case awarding $50,000 in actual damages was unconstitutionally excessive
should have been reviewed de novo by the Court of Appeals. Justices Scalia, Thomas and Ginsburg
reiterated their opposition to the underlying principle that substantive due process imposes limits on
punitive damage awards.
In State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408 (2003), a 6 member majority of the
Court found that a $145 million punitive damage award against an insurance company for the bad faith
failure to pay an insurance claim where compensatory damages totaled $1 million was an
unconstitutionally “irrational and arbitrary” deprivation of property without due process, where the
judgment was based on an intent to punish the company for its business model nationwide.
Justice Scalia dissented, commenting he recognizes no substantive due process standard and that
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the
punitive damage rules were “insusceptible of principled application”; Justice Thomas agreed; Justice
Ginsburg expressed the “view that this Court has no warrant to reform state law governing awards of
punitive damages”
In thinking about State Farm v. Campbell and the "single digit ratio" test, it is worth considering a
somewhat fuller account of Justice Kennedy's discussion, State Farm Mut. Auto. Ins. Co. v. Campbell,
538 U.S. 408, 425-426 ( 2003):
We decline again to impose a bright-line ratio which a punitive damages award cannot
exceed.
Our jurisprudence and the principles it has now established demonstrate, however, that, in practice,
few
awards exceeding a single-digit ratio between punitive and compensatory damages, to a significant
degree, will satisfy due process. In Haslip, in upholding a punitive damages award, we concluded that
an award of more than four times the amount of compensatory damages might be close to the line of
constitutional impropriety. 499 U.S., at 23-24. We cited that 4-to-1 ratio again in Gore. 517 U.S., at
581. The Court further referenced a long legislative history, dating back over 700 years and going
forward to today, providing for sanctions of double, treble, or quadruple damages to deter and punish.
Id., at 581, and n. 33. While these ratios are not binding, they are instructive. They demonstrate what
should be obvious: Single-digit multipliers are more likely to comport with due process, while still
achieving the State's goals of deterrence and retribution, than awards with ratios in range of 500 to 1,
id., at 582, or, in this case, of 145 to 1.
Nonetheless, because there are no rigid benchmarks that a punitive damages award may
not surpass, ratios greater than those we have previously upheld may comport with due
process where "a
particularly egregious act has resulted in only a small amount of economic damages."
Ibid.; see also ibid. (positing that a higher ratio might be necessary where "the injury is hard to detect
or
the monetary value of noneconomic harm might have been difficult to determine"). The converse is
also
true, however. When compensatory damages are substantial, then a lesser ratio, perhaps only equal
to
compensatory damages, can reach the outermost limit of the due process guarantee. The precise
award
in any case, of course, must be based upon the facts and circumstances of the defendant's conduct and
the harm to the plaintiff.”
e. S&G address the latest intervention in Philip Morris on p. 383-84. In Exxon Shipping Co. v. Baker
128 S.Ct. 605 (2008), Justice Souter, writing for a 6 member majority reversed a $2.5 billion punitive
damage award in the Exxon Valdez oil spill case, and as a matter of Federal admiralty law concluded
that in a case “ without intentional or malicious conduct, without behavior driven by desire for gain
and
without modest economic harm”, punitive awards that exceeded the amount of compensatory
damages
were impermissible. The majority noted that this constraint was tighter than the limits imposed by the
due process cases. Justices Scalia and Thomas joined in the majority, but their concurrence reiterated
their opposition to the substantive due process cases. Justices Ginsburg, Breyer and Stevens dissented
on the merits.
f. Do these cases leave the door open for review of legislative redistribution? Is there a viable
distinction between jury verdicts and statutes? Between prospective and retrospective laws?
6.a. We will not discuss the Takings Clause in detail (it will be covered in your Property course) or the
Contracts Clause, as limits on government's ability to redistribute wealth. You should be aware,
however, that both remain available as textual hooks for judicial activism in defense of property rights.
b. Although the Contract Clause was historically important, it has receded in significance.(See S&G
534-43). Takings Clause, analysis however, retains contemporary bite.
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The most recent overview the Takings Clause analysis is Justice O’Connor’s unanimous opinion in Lingle v.
Chevron U.S.A. Inc., 125 S. Ct. 2074 ( 2005):
The Takings Clause of the Fifth Amendment, made applicable to the States through the
Fourteenth, see Chicago, B. & Q. R. Co. v. Chicago (1897),provides that private property
shall not "be taken for public use, without just compensation." As its text makes plain, the
Takings Clause....."is designed not to limit the governmental interference with property rights
per se, but rather to secure compensation in the event of otherwise proper interference
amounting to a taking.".... While scholars have offered various justifications for this regime,
we have emphasized its role in "barring Government from forcing some people alone to bear
public burdens which, in all fairness and justice, should be borne by the public as a whole."
Armstrong v. United States, 364 U.S. 40, 49(1960)...
The paradigmatic taking requiring just compensation is a direct government
appropriation or physical invasion of private property See, e.g., United States v. Pewee Coal
Co., 341 U.S. 114 (1951) (Government's seizure and operation of a coal mine to prevent a
national strike of coal miners effected a taking)... Beginning with Pennsylvania Coal Co. v.
Mahon, 260 U.S. 393, (1922) the Court recognized that government regulation of private
property may, in some instances, be so onerous that its effect is tantamount to a direct
appropriation or ouster -- and that such "regulatory takings" may be compensable under the
Fifth Amendment. In Justice Holmes' storied but cryptic formulation, "while property may be
regulated to a certain extent, if regulation goes too far it will be recognized as a taking."....
Our precedents stake out two categories of regulatory action that generally will be deemed per
se takings for Fifth Amendment purposes. First, where government requires an owner to
suffer a permanent physical invasion of her property -- however minor -- it must provide just
compensation. See Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419 (1982)
(state law requiring landlords to permit cable companies to install cable facilities in
apartment buildings effected a taking). A second categorical rule applies to regulations that
completely deprive an owner of "all economically beneficial use" of her property. Lucas, 505
U.S., at 1019, . We held in Lucas that the government must pay just compensation for such
"total regulatory takings," except to the extent that "background principles of nuisance and
property law" independently restrict the owner's intended use of the property. 505 U.S., at
1026-1032,..
Outside these two relatively narrow categories regulatory takings challenges are governed by
the standards set forth in Penn Central Transp. Co. v. New York City, 438 U.S. 104,(1978).
The Court in Penn Central acknowledged that it had hitherto been "unable to develop any 'set
formula'" for evaluating regulatory takings claims, but identified "several factors that have
particular significance." Id., 438 U.S., at 124 Primary among those factors are "the economic
impact of the regulation on the claimant and, particularly, the extent to which the regulation
has interfered with distinct investment-backed expectations." Ibid. In addition, the "character
of the governmental action" -- for instance whether it amounts to a physical invasion or
instead merely affects property interests through "some public program adjusting the
benefits
and burdens of economic life to promote the common good" -- may be relevant in discerning
whether a taking has occurred. Ibid.
In Lingle , the Court disavowed a line of cases that suggested that in takings clause analysis, a
land use regulation that deprived of economic value could be invalidated where it did not
“ substantially advance legitimate state interests”, an approach reminiscent of Lochner:
The owner of a property subject to a regulation that effectively serves a legitimate state
interest may be just as singled out and just as burdened as the owner of a property subject to
an ineffective regulation. It would make little sense to say that the second owner has
suffered a taking while the first has not. Likewise, an ineffective regulation may not
significantly burden property rights at all, and it may distribute any burden broadly and
evenly among property owners. The notion that such a regulation nevertheless "takes"
private property for public use merely by virtue of its ineffectiveness or foolishness is
untenable.
Instead of addressing a challenged regulation's effect on private property, the "substantially
advances" inquiry probes the regulation's underlying validity. But such an inquiry is
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logically prior to and distinct from the question whether a regulation effects a taking, for the
Takings Clause presupposes that the government has acted in pursuit of a valid public
purpose... if a government action is found to be impermissible -- for instance because it fails
to meet the "public use" requirement or is so arbitrary as to violate due process -- that is the
end of the inquiry. No amount of compensation can authorize such action....
The [“substantially advances” test] can be read to demand heightened means-ends review
of virtually any regulation of private property. If so interpreted, it would require courts to
scrutinize the efficacy of a vast array of state and federal regulations -- a task for which
courts are not well suited. Moreover, it would empower -- and might often require -- courts
to substitute their predictive judgments for those of elected legislatures and expert agencies.
we have long eschewed such heightened scrutiny when addressing substantive due process
challenges to government regulation. See, e.g., Exxon Corp. v. Governor of Maryland, 437
U.S. 117, 124-125, (1978); Ferguson v. Skrupa, 372 U.S. 726, 730-732, (1963). The reasons
for deference to legislative judgments about the need for, and likely effectiveness of,
regulatory actions are by now well established, and we think they are no less applicable
here.
Notwithstanding a determination by the trial court that on the record presented the cap on
rent paid by gasoline dealers to gasoline companies would have no positive effect on consumer
prices, the Court reversed judgment for the companies.
7. In Kelo v. City of New London, 545 U.S. 469, 490 ( 2005), Justice Kennedy wrote in concurrence:
“This Court has declared that a taking should be upheld as consistent with the Public Use Clause,
U.S. Const., Amdt. 5, as long as it is "rationally related to a conceivable public purpose." Hawaii
Housing Authority v. Midkiff, 467 U.S. 229, 241(1984); see also Berman v. Parker, 348 U.S.
26,(1954). This deferential standard of review echoes the rational-basis test used to review economic
regulation under the Due Process and Equal Protection Clauses, see, e.g., FCC v. Beach
46 Communications, Inc., 508 U.S. 307, 313-314,(1993); Williamson v. Lee Optical of Okla., Inc., 348
U.S. 483,(1955). The determination that a rational-basis standard of review is appropriate does not,
however, alter the fact that transfers intended to confer benefits on particular, favored private
entities, and with only incidental or pretextual public benefits, are forbidden by the Public Use
Clause.”
8. In United Haulers Ass'n v. Oneida-Herkimer Solid Waste Mgmt. Auth., 127 S. Ct. 1786 (2007),
Chief Justice Roberts wrote for a five member majority:
“The Counties' ordinances are exercises of the police power in an effort to address waste disposal, a
typical and traditional concern of local government. The haulers nevertheless ask us to hold that laws
favoring public entities while treating all private businesses the same are subject to an almost per se
rule of invalidity, because of asserted discrimination. In the alternative, they maintain that the
Counties' laws cannot survive the more permissive Pike test, because of asserted burdens on
commerce. There is a common thread to these arguments: They are invitations to rigorously
scrutinize economic legislation passed under the auspices of the police power. There was a
time
when this Court presumed to make such binding judgments for society, under the guise of
interpreting the Due Process Clause. See Lochner v. New York, 198 U.S. 45,(1905). We should not
seek to reclaim that ground for judicial supremacy under the banner of the dormant
Commerce
Clause.”
9. In In Stop the Beach Renourishment, Inc. v. Fla. Dep't of Envtl. Prot., 130 S. Ct. 2592, 2605-2608
(2010), Justice Scalia, writing for a plurality including Roberts, Thomas and Alito took the position
that the Takings Clause rather than the Due Process clause constrained the ability of courts to
alter
the dimensions of property rights (though he concluded no such alteration had taken place in the
case
at hand.) The opinion commented:
" .....JUSTICE KENNEDY would have the Due Process Clause do the work of the Takings
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Clause .... as evidenced by his assertion that "[i]t is . . . natural to read the Due Process Clause
as limiting the power of courts to eliminate or change established property rights,", his
endorsement of the proposition that the Due Process Clause imposes "limits on government's
ability to diminish property values by regulation," ibid., and his contention that "the Due
Process Clause would likely prevent a State from doing by judicial decree what the Takings
Clause forbids it to do by legislative fiat,"....
[W]e have held for many years (logically or not) that the "liberties" protected by Substantive
Due Process do not include economic liberties. See, e.g., Lincoln Fed. Labor Union v.
Northwestern Iron & Metal Co., 335 U.S. 525, 536 (1949). JUSTICE KENNEDY 's language
("If a judicial decision . . . eliminates an established property right, the judgment could be set
aside as a deprivation of property without due process of law," propels us back to what is
referred to (usually deprecatingly) as "the Lochner era." See Lochner v. New York, 198 U. S
45, 56-58, 25 S. Ct. 539, 49 L. Ed. 937 (1905). That is a step of much greater novelty, and
much more unpredictable effect, than merely applying the Takings Clause to judicial action.....
The great attraction of Substantive Due Process as a substitute for more specific constitutional
guarantees is that it never means never -- because it never means anything precise.”
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Incorporation doctrine: when constitutional rights are violated, there is justification to strike
down the action. This is done through the DP clause of the 14th.
**U.S. v. Carolene Products Co. Footnote 4: legislative judgment is presumed
constitutional even in the absence of aids to support such judgment unless it interferes
with a fundamental right, affects the political process, or is targeted at discrete and
insular minorities
a.
“There may be narrower scope for operation of the presumption of constitutionality (and therefore a
broader scope of review) when legislation appears on its face to be within a specific prohibition of the
Constitution, such as those of the first ten amendments, which are deemed equally specific when held to
be embraced within the Fourteenth Amendment.”
b. Why? “Incorporation Doctrine”: A violation or infringement on written Constitution is more than
merely setting forth opinion on what is the right economic or social policy. When these Constitutional
rights are violated there is more justification to strike down the action. J. Iredell’s objection in
Lochner that there is no reason to prefer the views of courts over legislatures has no strength when
there is an explicit textual provision is violated by legislative action.
c. When the action is less politically legitimate: deference is based on the expectation that political
process will levy the playing ground and take all interests in account. Thus, when political process
breaks down, then deference should not be given:
i. Laws affecting a fundamental constitutional right.
ii. Laws affecting the political process: (right to vote, peaceful assembly, etc.) These rights are
entrenched in the democratic electoral process, and violations of them must be judged with
greater dissection. Infringement on these rights could create a politically biased outcome.
iii. When laws are directed at discrete, insular minorities: Minorities (not just racial or
religious, but also economic) may lose in the legislative process, because they often don’t
receive recognition, or sympathy, and they could be continual political losers. A rejection of
these groups’ rights are reviewed more strictly, because the political process might not work
properly if their rights are oppressed.
1. Prejudice prevents majority from taking minority’s interests into account
2. Discrete/insular minorities live further away from the majority and less able to make
connections with the majority.
a. Locher’s bakers do not count because they are no prejudiced against and are
not a insular/discrete minority.
3. S Carolina/Baker: same idea: Court should only intervene with they have
reasons to believe that the political process won’t work.
4. Compared with Mcculloch/Maryland: those subject to adverse taxation did not have
opportunity to participate in political process and vote on the taxation. So would they
apply under this footnote?
**Rochin v. California (1951): Warrantless search of one’s home and forcible extraction
of stomach’s contents is not OK: “Shock the Judicial Conscience” Test:
1.
2.
3.
Facts: Police suspect Rochin is selling narcotics, came to his house, door was open, came in, forced open
door to Rochin’s room, saw Rochin had two capsules in his hand, asked him what they were, Rochin
tried to swallow them, officers struggled with him, he swallowed the capsules, police took him to
hospital, and had capsules pumped out of his stomach; the capsules contained morphine.
Issue: Should Rochin’s conviction stand in light of the manner by which the evidence was obtained?
Held: No. “This was conduct that shocks the conscience.
a. This is ‘”bound to offend even hardened sensibilities.” Confessions obtained through physical
coercion aren’t inadmissible, so this evidence should not be admissible.
b. The “end and the means are legitimate, but there is a violation of fundamental right:
Stomach pumping “directly” accomplishes the legitimate end of drug enforcement/law
enforcement YET, Rochin’s Bodily Integrity is completely violated.
c. J. Frankfurter’s “Ordered Liberty”: certain minimum rights must be maintained to have
ordered liberty.
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M. Cheng
i. J. Frankfurter does not use 4th Amendment (not yet applicable to states), but does use
Due Process Clause’s sense of “justice.” There is a continuing process of evaluation
under DP (court is constantly reevaluating decisions in light of precedent as well as
general requirements of “the cannons of decency… of English speaking people”
(reference to English tradition)
ii. Two analogies rooted in the American aspiration
1. 4th and 5th amendments: assaults on the physical person are problematic in
the criminal justice process in part because that is the historical
commitment of the US.
2. 8th amendment “rack and thumbscrews” is problematic that “afford brutality
the cloak of law” and are offensive to human dignity.
iii. Fundamental belief that this is not okay.
1. 8th Amendment prohibits cruel and unusual punishment. So that can imply
that extreme cruelty is problematic.
2. 13th Amendment (Dred Scott: was about control about control and major
assaults on bodily integrity.)
3. Does not comport with Unreasonable Searches and Seizures.
iv. Historical Justification: To discover what is necessary for ordered liberty we look to
America’s historical and traditional legal structures, which exclude certain types of
behavior.
Why is the court more willing to investigate the conscience here and not in economic regulation
cases?
a. Visceral instinct that bodily integrity is distinctly different from contractual rights.
b. Natural law of the land? Fundamental commitments upon which society is based (against
tyranny)
c. Bodily integrity wasn’t created by legal adoption. (as opposed to economic advantage which
can be created by state.)
**Sacramento v. Lewis (1998): Applies Shocks the Conscience Test: deadly force to stop a suspect,
egregious physical abuse in police questioning that "shocks the conscience" violates Sub. DP
**Chavez v. Martinez (2003): applied shocks the conscious test :
1.
2.
3.
Justice Thomas/ Rehnquist/Scalia: would have relied on an absence of evidence that Officer Chavez
"acted with a purpose to harm Martinez," interfered with his treatment, or "exacerbated [his] injuries
or prolonged his stay in the hospital" along with the legitimate "need to investigate" the circumstances
of the shooting to conclude that no substantive due process violation had been alleged.
Kennedy/Stevens/Ginsburg: it is equally plain that because "the suspect thought his treatment would
be delayed, and thus his pain and condition worsened, by refusal to answer questions," there was a
clear constitutional violation; "no reasonable police officer would believe that the law permitted him to
prolong or increase pain to obtain a statement."
Souter/Breyer, filed a brief and cryptic opinion for the Court stating that there was a "serious
argument" in support of that claim, but that whether the actions were indeed conscience-shocking
should be resolved on remand.
a. On remand the Ninth Circuit held that its conscience was shocked.
Aftermath: SCOTUS applied more and more of the elements of the Bill of Rights directly to the
state, in particular, applying the 4th and 8th to actions of the states. In relation to bodily
autonomy, there were two lines of cases:
4th Amendment: elaborated Rochin in Unreasonable Searches and Seizures: the court has taken a balancing
approach (comparing level of imposition to the level of justification.)
a. Winston/Lee (1985) (surgery to extract bullet in arm is not okay because justifications are low and
surgery is large;
b. Tenn./Garner (1985) (when can cops shoot fleeing suspects? Court says that interference as means of
apprehension is a seizure that the deployment of deadly force can be reasonable IFF fleeing suspect is
likely to commit a crime of comparable force.)
8th Amendment: first applied to states in Robinson v. California (status offenses in criminal law is 8th
amendment violation of cruel and unusual punishment)
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c. Estelle/Gamble (1976): conditions of confinement of convicts: whether denial of crucial medical care
is Cruel and Unusual. Court concludes that, “in light of evolving standard of decency, it is.
d. Bell/Wolfish (1979): cavity searches of pre-trial detainees after contact visits was constitutional
e. West/Atkins: DP should be a basis for prohibition
Assisted Suicide: Bodily autonomy points in one direction, but tradition points in the other.
Background on medical decisions: Jacobson v. Mass. (1905) (upheld Mass. law requiring vaccinations); Buck v.
Bell (1927) (upheld sterilization of imbeciles); Washington v. Harper (1990) (prisoners had the right to be free
from the involuntary administration of anti-psychotic drugs.)
****Cruzen v. Director, MI Department of Health (1990): First time Court considered the
question of constitutional right to die.
1.
2.
3.
4.
5.
6.
Facts: persistent vegetative state after car accident. Her parents sought to discontinue tube
feeding through rights as surrogate (Cruzan left no living will or DNR.) State intervened to prevent
this, saying that thee state’s heightened evidentiary standard had not been met.
Held: Rehnquist: constitution does not forbid establishment of procedural requirement to
remove form life support (in MI, it was “clear and convincing evidence” of the desires of the
patient) and thus heightened evidentiary requirements can be used as threshold.
a. Competent adults have constitutional right to refuse medical care (everyone but
Scalia recognized this right)
b. Thus, the Court assumes the Constitution would grant a competent person a constitutional
right to refuse lifesaving hydration and nutrition.
i. 5 justices (O’Connor & 4 dissenters) believe such a right expressly exists)
c. State may require clear and convincing evidence to show that treatment termination
was what patient wanted to safeguard right to life.
d. State may prevent family members from terminating treatment for another. (DP
compels states to honor the wishes of the patient only)
e. Application: Uses balancing test (state interests and individual interests): found that there
was no strong state interests in keeping her alive.
Concurrence: O’Connor: explicitly recognizes protected liberty in refusing unwanted medical
treatment, but that is not the issue here. The real issue here is whether or not a surrogate’s wishes
can be carried through legally.
Concurrence, Scalia: No constitutional right to refuse treatment. Federal courts have no business
in this field (that “the American law has already accorded the State the power to prevent suicides,
by force if necessary.”) It’s up to the states if they want to honor with the right to suicide.
Dissent: Brennan: if a person has the right to be free of unwanted medical attention, it must be
able to retain this right even if it is sustaining their life.
Issues Raised:
a. Did not articulate a level of scrutiny to be used in evaluating government regulation of
personal decisions concerning refusal of medical treatment.
b. Did not resolve what is sufficient to constitute clear and convincing proof of a person’s
desire
c. Does not address the situation where a competent person designates a guardian or
surrogate.
****Washington v. Glucksberg (1997): Upholding ban on assisted suicide on a rational basis
standard because there is no fundamental right in being assisted when committing suicide
1. Facts: woman struggling with cancer and severe side effects is mentally competent and wants assisted
suicide. Washington law made it felony to knowingly cause or assist another person to attempt suicide.
9th circuit en banc said that there was right for terminally ill to physician-assisted suicide and thus
Washington’s statute banning it is unconstitutional.
2. Issue: Whether Washington’s prohibition against “causing” or “aiding” a suicide offends the 14 th
Amendment’s Due Process Clause?
3. Held: J. Rehnquist: No. Statute is constitutional. Opposition and condemnation of suicide, and
therefore assisting suicide are consistent with enduring themes of our philosophical, legal, and
cultural heritages.
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a.
4.
5.
6.
7.
The Due Process Clause does protect the right to refuse unwanted lifesaving medical treatment
(Cruzan), but assisted suicide is different. There is no fundamental right in being assisted
when committing suicide.
i. Cruzan was based on a long common-law tradition that forced medication was a
battery. But decision to commit suicide with assistance has never enjoyed similar
legal protection.
b. The ban is rationally related to legitimate state interests:
i. Interest of preserving human life,
ii. Preventing suicide in order to study and treat its causes,
iii. Protecting the integrity of the medical profession,
iv. Protecting vulnerable groups that might be coerced into committing suicide, and
v. Preventing assisted suicides from leading to voluntary and perhaps involuntary
euthanasia.
O’Connor, concurrence: Suicide is not a constitutional/fundamental right. However, says that the
State’s interests in protection are sufficiently weighty to justify a prohibition against physician-assisted
suicide. Statute says that physician is allowed to proscribe medication to relieve pain in lethal doses, as
long as they are not intended to create death.
a. Descendent of the Yuck Approach
Stevens, concurrence: physician-assisted suicide may be okay in some cases. To determine whether
something is a fundamental right protected by due process we shouldn’t look to history, but rather the
aspirations of society, and the right of choice is a fundamental value. There must be a higher level of
justification than rational relationship. Across the board permission could be dangerous, because
there could be abuse by doctors and HMO’s. A doctor or relative may feel compassion and pain that the
person actually suffering may not feel. But the State’s interest in avoiding abuse won’t always outweigh
the patients right to choose when the intent is clear, and there is no coercion.
Souter, concurrence: Does not think that an abstract commitment to life is enough to justify
intervention in this case. Sets up the test of DPC
a. Look at national traditions AND
b. Balance the state interests with individual liberties to insure that there are unreasonable or
arbitrary laws interfering with individual liberties; here, thinks the State interests outweigh
individual liberties; but says that the legislature is not precluded from passing its own
legislation to allow assisted suicide
i. Sees two risks: 1) That others may find themselves in situations where death is
effectively imposed. Or, 2) That there may be a system where people like Jane cannot
obtain the relief they seek, but there is a strong system to protect other potential
victims that could potentially use the system against them.
ii. The state can say that these two evils can be equal to the other and that the decision to
choose one or the other is not arbitrary
Breyer, concurrence: Thinks the issue is not the right to assisted suicide but rather the right to die
with dignity; doesn’t think that the law infringes on this right because the use of palliative care is not
prevented i.e. people can still receive drugs that will ease pain of death and could possibly even lead to
death
What rights are fundamental enough to be protected by DP of 14th?
**US v. Lanier (1997): unresolved: Ct.App held that being free from sexual harassment is not
“clearly established” to constitute a violation of constitutional right.
SCOTUS reversed saying that the Ct.App had used the wrong standard (“clearly established”) but Lanier
had fled the jurisdiction so his appeal was dismissed. (Facts: sexual harassment by judge)
Problematic Situations: substantial intrusion that may have a legitimate and perhaps more than rational
public ends: Police and Prisons:
**Rochin approach: The Yuck Approach ask whether intervention is sufficiently close to interventions
that are viewed as outrageous to dignity to be indistinguishable (too close to rack and screw.) Looks at degree of
intrusion and offensiveness and says that nothing can justify that sort of disregard for human dignity.
**Bell/Wolfish (1979) (body cavity searches of pre-trial detainees is constitutional)
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**West/Atkins (1988): Scalia concurrence: “I do not believe that a doctor who lacks supervisory or other
penological duties can inflict "punishment" within the meaning of that term in the Eighth Amendment. I am also
of the view, however, that a physician who acts on behalf of the State to provide needed medical attention to a
person involuntarily in state custody (in prison or elsewhere) and prevented from otherwise obtaining it, and
who causes physical harm to such a person by deliberate indifference, violates the Fourteenth Amendment's
protection against the deprivation of liberty without due process.”
**Riggens v. Nevada (1992): involuntary imposition of psychotropic drugs when no danger to self
or other is shown is violation of DP rights
**Hudson v. McMillian (1992): If the ends are achieved are malicious and sadistic, then it is an
intervention that is outside the scope of constitutionality (protection for inmates from cruelty from
prison guards because the fundamental right if invaded.)
**Hope/Pelzer (2002) (holding that shackling a prisoner for seven hours to a hitching post in
the summer sun in a position designed to cause discomfort violated the Eighth Amendment).
(J. Thomas dissenting, joined by Rehnquist & Scalia)
**US/Georgia (2006) (disabled inmate allegedly left in his cell in his waste for day at a time.)
Baze v. Rees, (2008) (Lethal injection is not “cruel and unusual punishment” in the absence of a
showing that “feasible, readily implemented” alternatives “significantly reduce a substantial risk
of severe pain.”)
1. Thomas and Scalia would forbid only “purposely torturous” punishments;
2. Ginsburg and Souter would have invalidated the lethal injection protocol because of avoidable risk
of errors resulting in “horrendous and effectively indetectable” pain)..
**Wilkins v. Gaddy (2010), in which the Court summarily reversed dismissal of a prisoner’s Eight Amendment
claim against a guard who “ apparently angered by Wilkins' request for a grievance form, "snatched [Wilkins] off
the ground and slammed him onto the concrete floor....then proceeded to punch, kick, knee and choke [Wilkins]
until another officer had to physically remove him.."
1. The Court quoted Hudson v. McMillian, 503 U.S. 1, 4, (1992): “The "core judicial inquiry," we held,
was not whether a certain quantum of injury was sustained,...."When prison officials maliciously
and sadistically use force to cause harm,....contemporary standards of decency always are violated .
. . whether or not significant injury is evident. Otherwise, the Eighth Amendment would permit any
physical punishment, no matter how diabolic or inhuman, inflicting less than some arbitrary
quantity of injury....The Eighth Amendment's prohibition of 'cruel and unusual' punishments
necessarily excludes from constitutional recognition de minimis uses of physical force, provided
that the use of force is not of a sort repugnant to the conscience of mankind.”
The Balance Approach: degree of intrusion balanced with degree of justification. Substantive Due Process
cases like Youngberg/Romeo (how much treatment does involuntary committed individual entitled to)
Recent Cases: The DP violation must be severe (ex: extreme punitive damages and retroactive
liability) for the Court to use the Due Process Clause to reverse a statute or finding.
**TXO v. Alliance: (1993) Rational Basis Test: Deference given to Jury verdicts and
punitive damages are not unconstitutional simply because they are so big; jury
verdicts are upheld so long as there are procedural safeguards (e.g. jury instructions,
etc.)
1. Facts: Alliance obtained judgment against TXO for $19,00 in actual damages, and $10 million in
punitive damages. TXO contends the punitive damages violate the 14 th Amendment’s Due Process
Clause.
2. Background: court’s benchmarks require logical proportionality between level of damages and
harm suffered.
3. Held: Stevens (plurality): the punitive damages don’t violate the Due Process Clause:
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a.
Not convinced this is so “grossly excessive” as to be beyond the power of the State. Ct.
applied the rational basis test: the general rule of reasonableness enters into the
constitutional calculus, when evaluating punitive damage awards. There are numerous
procedural safeguards, which cannot be overlooked. The jury was ensured to be
impartial; their verdict was the product of collective deliberation. Assuming that fair
practices were used the jury verdict is entitled to a certain amount of deference
4. Concurrence: (Kennedy) When a punitive damage award reflects bias, passion, or prejudice on
the part of the jury, rather than a rational concern for deterrence and retribution, the Constitution
has been violated no matter what the absolute or relative size of the award. A jury is bound to
consider only evidence presented to it in arriving at a judgment. There is a straightforward
explanation for the jury award: TXO acted with malice
5. Concurrence: (Scalia) The Bill of Rights isn’t the secret repository of all sorts of other
unremunerated, substantive rights. Due Process doesn’t include the right to not be subjected to
excessive punitive damages.
6. Dissent: (O’Connor) Fundamental fairness requires that impermissible influences such as bias and
prejudice be discovered nonetheless by inference if not by direct proof. Due process requires
judges to engage in searching review where the verdict discloses such great disproportion as
to suggest the possibility of bias, caprice or passion $10 million punitive is a dramatically
irregular, if not shocking verdict by any measure. Jury was unduly influenced by the fact that TXO
was a very large out of State Corporation.
Justifications of judicial interference with jury verdicts:
1. If one views a flaw of the Lochner regime as the unwillingness to accede to the democratic will of the
people, juries are not elected but rather picked randomly. Unlike legislators who can be dismissed,
jurors are not subject to any subsequent discipline, and there is no way to undue what a jury has done
(cannot be legislatively reversed.)
2. If Lochner was wrong because legislatures were better at evaluating facts, the same cannot be said
about juries. Juries work from the same record as the court would be.
3. Ability of juries in punitive damages cases to enter verdicts that directly deprive A and gives to B, gives
the opportunity to what J. O’Connor’s “raw distributive impulses” the way the legislators do not do.
The temptation is greater for jurors than legislators.
4. There is substantial tension between punitive damages cases and contemporary account of substantive
DP in economic area. Court continues to reiterate that Lochner constituted a level of judicial supremacy
that was improper. (J. Roberts in 2007 in a Commerce Clause Case. “We should not seek to reclaim that
judicial supremacy.) J. Thomas and Scalia take this position as well: substantive DP does not make sense
as a way of interfering with the judgments of legislatures in economic areas as well as most other areas.
It doesn’t make sense in terms of interfering with juries.
**Eastern Enterprises v. Apfel (1998): Imposition of retroactive civil liability constitutes a
Taking.
1.
2.
3.
4.
Facts: Court invalidated provisions of an Act requiring companies who previously employed coal
miners to bear a certain portion of miners’ retirement health care costs, even if they left the
business long ago or hadn’t been included in recent federal labor management agreements.
Held: O’Connor: Retroactive liability is a regulatory taking subject to the Takings Clause: “Our
decisions have left open the possibility that legislation might be unconstitutional if it imposes
severe retroactive liability on a limited class of parties that could not have anticipated the
liability, and the extent of that liability is substantially disproportionate to the parties’
experience. The act imposes considerable financial burden on Eastern, and the act reaches back
30-50 years to impose liability.”
Kennedy, concurrence: Violation of Due Process Clause but this is also not a regulatory taking
because government can act as long as they give just compensation
Stevens, Dissent: (1) Act didn’t implicate the Takings Clause: in regulatory taking analysis a
specific property right or interest must be at stake, but the majority ignores this requirement,
and the government has not taken specific property under the Coal Act. (2) Statute did not
violate Due Process Clause, because Eastern was part of an industry that benefited from labor
peace and made more profits as a result.
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Civil Confinement is a significant deprivation of liberty that requires DP protection; Clear
and Convincing Need for Commitment Standard (because reasonable doubt standard is too
high of a burden on state)
**O’Connor v. Donaldson (1975) A non-dangerous person cannot be confined if he is capable of
surviing safely in freedom; Public Intolerance of Harmless Mentally Ill is illegitimate
1. Facts: Donaldson kept against his will as mental patient for 15 years; repeatedly demanded his release
claiming he was dangerous to no one, he wasn’t mentally ill, and the hospital wasn’t providing
treatment for his supposed illness. Donaldson posed no danger to others or himself, and Donaldson got
a job after his release. Donaldson brought suit alleging O’Connor had intentionally and maliciously
deprived him of his constitutional right to liberty. O’Connor, hospital administrator, claimed he had
acted in good faith, and was immune from liability.
2. Issue: May the State fence in the harmless mentally ill solely to save its citizens from exposure to those
whose ways are different?
3. Held: No. A State cannot constitutionally confine a non-dangerous individual who is capable of
surviving in freedom by him or with the help of willing and responsible family members or friends.
Mere public intolerance or animosity cannot justify the deprivation of physical liberty: this is similar to
the Court’s response to the legislation in Palmore v. Sidoti: state cannot give credence to public
intolerance through legislation.
**Youngberg v. Romeo (1982): Heightened duty for medical care for those in custody of state:
duty of state to provide safety and medical needs of involuntarily committed mental patients (“safety” “freedom
of movement” as well as to “minimally adequate or reasonable training to ensure safety and freedom from
undue restraint.”)
**Kansas v. Hendricks (1997): involuntary civil confinement from sex offenders who were
deemed to be a continuing danger is OK because the law is not punitive.
1. Facts: Sexually Violent Predator Act is enacted after he had finished his sentence, and he claims is this
ex post facto punishment.
2. Held: Thomas: Sustained statute: “an individual’s constitutionally protected interest in avoiding
physical restraint may be overridden by civil commitment statutes when they have coupled proof
of dangerousness with the proof of some additional factor, such as mental illness, or mental
abnormalities.”
a. D failed to meet the burden of showing that the law was punitive.
3. Dissent: Breyer: this is about incarceration, which is inherently punitive.
The Right to Bear Arms
**US/Miller (1939) first address of 2nd amendment: prohibition on sawed off shotguns (no one
thought that they were necessary for the militia) so therefore the 2nd Amendment does not
apply.
****D.C. v. Heller (2008): first recognition of the 2nd A’s individual right to bear arms in homes in federal
enclaves :
1. Facts: Special police officer that wants to have a handgun in his home. He objects to the D.C. statute that
refuses to issue handgun licenses. (Absolute prohibition on handguns in the home.) Claims a violation of
rights under 2nd Amendment
a. D.C. claims that the 2nd Amendment is that that the right to bear arms was related to the militia
(a right to bear arms in connection with the capacity to serve in the militia.)
2. Held: Scalia: 2nd protects an individual right to possess a firearm unconnected with service in a
militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home in
federal enclaves (D.C., military bases, etc.). Pp. 2–53.
a. The Amendment’s prefatory clause announces a purpose, but does not limit or expand the
scope of the second part, the operative clause. The operative clause’s text and history
demonstrate that it connotes an individual right to keep and bear arms. Pp. 2–22.
b. The prefatory clause comports with the Court’s interpretation of the operative clause.
The “militia” comprised all males physically capable of acting in concert for the common
defense. The Anti-federalists feared that the Federal Government would disarm the people in
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order to disable this citizens’ militia, enabling a politicized standing army or a select militia to
rule. The response was to deny Congress power to abridge the ancient right of individuals to
keep and bear arms, so that the ideal of a citizens’ militia would be preserved. Pp. 22–28.
c. The Court’s interpretation is confirmed by analogous arms-bearing rights in state
constitutions that preceded and immediately followed the Second Amendment. Pp. 28–30.
d. The Second Amendment ’s drafting history, while of dubious interpretive worth, reveals three
state Second Amendment proposals that unequivocally referred to an individual right to bear
arms. Pp. 30–32.
e. Interpretation of the Second Amendment by scholars, courts and legislators, from
immediately after its ratification through the late 19th century also supports the Court’s
conclusion. Pp. 32–47.
f. Precedent:
i. None of the Court’s precedents forecloses the Court’s interpretation. Neither United
States v. Cruikshank (1876) no incorporation of BofR to states, and Enforcement
Clause applied only to states, not to private actors) nor Presser v. Illinois (1886)
(limiting 2nd amendment restriction to federal government only, and not stats.) refutes
the individual-rights interpretation.
ii. United States v. Miller, does not limit the right to keep and bear arms to militia
purposes, but rather limits the type of weapon to which the right applies to those
used by the militia, i.e., those in common use for lawful purposes. Pp. 47–54. The
proper understanding of Miller is that it reads the militia clause to define the types of
weapons that are within the protection of the 2 nd amendment, not that it rejects
individual protection. In judging the scope of the right, one looks to the understanding
of the Framers (that this was a right that could be used in militia purposes, and that
the protection extended to those that could be used for militia.) Miller’s scope is
defined rather than overruled.
g. Like most rights, the Second Amendment right is not unlimited. It is not a right to keep and
carry any weapon whatsoever in any manner whatsoever and for whatever purpose: For
example, concealed weapons prohibitions have been upheld under the Amendment or state
analogues. The Court’s opinion should not be taken to cast doubt on longstanding prohibitions
on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of
firearms in sensitive places such as schools and government buildings, or laws imposing
conditions and qualifications on the commercial sale of arms. Miller’s holding that the sorts of
weapons protected are those “in common use at the time” finds support in the historical
tradition of prohibiting the carrying of dangerous and unusual weapons. Pp. 54–56.
h. The handgun ban and the trigger-lock requirement (as applied to self-defense) violate the
Second Amendment. The District’s total ban on handgun possession in the home amounts to a
prohibition on an entire class of “arms” that Americans overwhelmingly choose for the
lawful purpose of self-defense. Under any of the standards of scrutiny the Court has applied
to enumerated constitutional rights, this prohibition—in the place where the importance of the
lawful defense of self, family, and property is most acute—would fail constitutional muster.
Similarly, the requirement that any lawful firearm in the home be disassembled or bound by a
trigger lock makes it impossible for citizens to use arms for the core lawful purpose of selfdefense and is hence unconstitutional. Because Heller conceded at oral argument that the D. C.
licensing law is permissible if it is not enforced arbitrarily and capriciously, the Court assumes
that a license will satisfy his prayer for relief and does not address the licensing requirement.
Assuming he is not disqualified from exercising Second Amendment rights, the District must
permit Heller to register his handgun and must issue him a license to carry it in the home.
Pp. 56–64.
i. There is actually a clause protecting this right
i. Two clauses in the 2nd Amendment: the prefatory clause about the militia, and the
second clause about keeping and bearing arms, the second one is the important
one. Scalia are trying to understand the public understanding of the text when adopted
(Dred Scott)
ii. English lineage: the right to bar arms for the country was the legal understanding of
Blackwell and legal definition of the time.
3. Stevens dissent: Framer’s intent argument: there are a variety of different elocutions available in the
state constitutions (some granting express rights other only commenting on importance of joining
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militia.) Rather than using the language of the state constitutions that protected the individual right, the
Framers used the language the right that did not protect the right of individuals but rather the general
language. English precedents only shed limited light on the issue (it was concerned with protecting
Parliament’s right to arm the citizens without interference from the King.) No indication that Framers
intended to enshrine self-defense.
4. Breyer dissent: The Second Amendment protects militia-related interests, not self-defenserelated interests. Furthermore, the Amendment permits government to regulate the interests that it
serves. Colonial history itself offers important examples of the kinds of gun regulation that citizens
would then have thought compatible with the right to keep and bear arms, including substantial
regulation of firearms in urban areas, and regulations that imposed limitations on the use of firearms
for the protection of the home.
a. Adoption of a true strict scrutiny standard for evaluating gun control regulations would be
impossible and I would adopt an interest-balancing inquiry. In applying this kind of standard
the Court normally defers to a legislature’s empirical judgment in matters where a legislature is
likely to have greater expertise and greater institutional fact-finding capacity.
****McDonald v. Chicago (2010): Extended Heller to the States
1. Facts: Several suits were filed against Chicago and Oak Park in Illinois challenging their gun bans after
the Supreme Court issued its opinion in District of Columbia v. Heller. In that case, the Supreme Court
held that a District of Columbia handgun ban violated the 2nd Amendment. There, the Court reasoned
that the law in question was enacted under the authority of the federal government and, thus, the
Second Amendment was applicable. Here, plaintiffs argued that the Second Amendment should also
apply to the states. The district court dismissed the suits. On appeal, the U.S. Court of Appeals for the
Seventh Circuit affirmed.
a. Historical Background
i. Cruikshank (1876): no incorporation of BofR to states, and Enforcement Clause
applied only to states, not to private actors) Reconstruction, there was a statute that
forbade “conspiracy to interfere with individual rights.” Used this statute to prosecute
white men who slaughtered a group of black men. SCOTUS held that “the right of
bearing arms for a lawful purpose is not a right granted by the Constitution’ and is not
‘in any manner dependent upon that instrument for its existence.’” (137)
ii. Presser (1886) (limiting 2nd amendment restriction to federal government only, and
not stats.) refutes the individual-rights interpretation.
2. Issue: Does the 2nd Amendment apply to the states because it is incorporated by the 14th
Amendment's Privileges and Immunities or Due Process clauses and thereby made applicable to the
states?
3. Held: (5-4) J. Alito: the 14th Amendment makes the 2nd right to keep and bear arms for the purpose of
self-defense applicable to the states. Rights that are "fundamental to the Nation's scheme of ordered
liberty" or that are "deeply rooted in this Nation's history and tradition" are appropriately applied to
the states through the 14th Amendment.
a. Theory of “Selective Incorporation” under the Due Process Clause (asked at abstract level
whether the set of rights were fundamental to our scheme of ordered liberty and justice—
not whether the statues of the states were outrageous to the conscience.
b. Started this process in 1963.
c. 1968: applied all amendments to the States except for 3 rd, 8th amendment against excessive
fines, and 6th amendment requirement of grand jury indictments. So does this reasoning
equally justify incorporation of the 2nd amendment.
d. Fundamental right?
i. It is a basic right: self defense is central component to 2nd amendment
ii. Historical analysis: English Bill of Rights, Civil War, etc.
e. Alito rejects J. Thomas's separate claim that the Privileges or Immunities Clause of the
Fourteenth Amendment more appropriately incorporates the 2nd Amendment against the
states. Alito stated that the Court's decision in the Slaughterhouse Cases -- rejecting the use of
the Privileges or Immunities Clause for the purpose of incorporation -- was long since decided
and the appropriate avenue for incorporating rights was through the Due Process Clause.
f. The Court recognized in Heller that the right to self-defense was one such "fundamental" and
"deeply rooted" right. The Court reasoned that because of its holding in Heller, the 2nd
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4.
5.
6.
7.
M. Cheng
Amendment applied to the states. Remanded the case to the 7 th Circuit to determine whether
Chicago's handgun ban violated an individual's right to keep and bear arms for self-defense.
g. Does not disturb Slaughter-House and retains that these issues are to be addressed under the
14th Amendment against state infringement, which “has been analyzed under the DP Clause of
the 14th and not under the Privileges and Immunities Clause.”
h. Tension with Glucksberg? Glucksberg seems to think that Equal Protection Clause provides
the answer.
Scalia concurrence: disagrees with Stevens' dissent.
Thomas concurrence: concurred and concurred in the judgment. He agreed that the 15 th Amendment
incorporates the 2nd Amendment against the states, but disagreed that the Due Process Clause was the
appropriate mechanism. Instead, Thomas advocated that the Privileges or Immunities Clause was the
more appropriate avenue for rights incorporation.
Stevens dissent: disagreed that the 14th Amendment incorporates the 2nd against the states. He
argued that owning a personal firearm was not a "liberty" interest protected by the Due Process Clause.
Breyer/Ginsburg/Sotomayor dissent: this is not a fundamental right. There is nothing in the 2nd
Amendment's "text, history, or underlying rationale" that characterizes it as a "fundamental right"
warranting incorporation through the 14th Amendment. Points to era between 14 th Amendment and
20th century, there was a decline in appreciation for gun possession—the general approach during the
19th century was that every good citizen was bound to yield his preference as to the means of his self
defense to the good of society. There were many gun regulation statutes in the states. However, there
has been no instance in the last 50 years, no state has struck done any ban on guns as unconstitutional.
If we are to look to the fabric of American history, we should look to how the right is understood.
a. Compare to his concurrence in Glucksberg.
Supplement Notes:
From Wash. v. Glucksberg, 521 U.S. 702, 720-722 (1997)
Our established method of substantive-due-process analysis has two primary features: First, we have
regularly observed that the Due Process Clause specially protects those fundamental rights and liberties
which are, objectively, "deeply rooted in this Nation's history and tradition," id., at 503 (plurality opinion);
Snyder v. Massachusetts, 291 U.S. 97, 105 (1934) ("so rooted in the traditions and conscience of our people
as to be ranked as fundamental"), and "implicit in the concept of ordered liberty," such that "neither liberty
nor justice would exist if they were sacrificed," Palko v. Connecticut, 302 U.S. 319, 325, 326 (1937). Second,
we have required in substantive-due-process cases a "careful description" of the asserted fundamental
liberty interest. Flores, supra, at 302; Collins, supra, at 125; Cruzan, supra, at 277-278. Our Nation's history,
legal traditions, and practices thus provide the crucial "guideposts for responsible decisionmaking," Collins,
supra, at 125, that direct and restrain our exposition of the Due Process Clause. As we stated recently in
Flores, the Fourteenth Amendment "forbids the government to infringe . . . 'fundamental' liberty interests
at all, no matter what process is provided, unless the infringement is narrowly tailored to serve a
compelling state interest." 507 U.S. at 302.
JUSTICE SOUTER, relying on Justice Harlan's dissenting opinion in Poe v. Ullman, would largely abandon this
restrained methodology, and instead ask "whether [Washington's] statute sets up one of those 'arbitrary
impositions' or 'purposeless restraints' at odds with the Due Process Clause of the Fourteenth Amendment,"
post, at 1 (quoting Poe, 367 U.S. 497, 543 (1961) (Harlan, J., dissenting)). In our view, however, the
development of this Court's substantive-due-process jurisprudence, described briefly above, has been a
process whereby the outlines of the "liberty" specially protected by the Fourteenth Amendment--never fully
clarified, to be sure, and perhaps not capable of being fully clarified--have at least been carefully refined by
concrete examples involving fundamental rights found to be deeply rooted in our legal tradition. This
approach tends to rein in the subjective elements that are necessarily present in due-process judicial review.
In addition, by establishing a threshold requirement--that a challenged state action implicate a fundamental
right--before requiring more than a reasonable relation to a legitimate state interest to justify the action, it
avoids the need for complex balancing of competing interests in every case.
As the political world is well aware, the Supreme Court during the last generation has resurrected
the practice of directly addressing claims of non-textual constitutional rights in the areas of sexuality,
reproductive autonomy and abortion. The proper role of the Court in elaborating non-textual values,
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however, is a distinct question from the propriety of the abortion and gay rights decisions. Lawrence,
Roe and Casey could be wrong even if non-textual rights are appropriate for judicial enforcement.
In my view, the abortion cases (as well as Lawrence v. Texas, issues of family privacy and the
issues of the rights of gays and lesbians that are currently before the courts) raise questions that
cannot be adequately addressed until we have explored the values developed in elaborating the equal
protection clause in the last generation. We will therefore defer the discussion of Roe v. Wade ,
Planned Parenthood v. Casey and Bowers v. Hardwick and Lawrence v. Texas to the end of the
course, and briefly address at this point issues raised by the Court's recent application of substantive
due process to other areas involving non-economic liberty interests.
1.a. Where does the Carolene Products footnote suggest that intensive judicial scrutiny is
appropriate? Stone identifies three areas in successive paragraphs; how could each of the areas be
justified?
b. The first paragraph focuses on "incorporation". The "incorporation" of textual rights specified in
the bill of rights --which are held to apply against the states by reason of the due process clause,
except for the Seventh Amendment and the Fifth Amendment's presentment clause-- was once
controversial, but is now generally accepted. See S&G 354-61. But what room does this leave for
rights not set forth in the text of the bill of rights? Cf. Albright v. Oliver 114 S.Ct. 807 (1994)
(holding that availability of "incorporated" Fourth Amendment rights made more general substantive
due process rights unavailable to challenge groundless arrest and prosecution); id (Scalia,J.
concurring) ( Accepting incorporation " because it is both long established and narrowly limited").
c. The second paragraph suggests particular judicial skepticism on "legislation which
restricts...political processes". What is the nature of such legislation, and why does this justify
judicial intervention?
d. What is a "discrete and insular minority", and what why might particular judicial scrutiny be
justified?
e. Are these appropriate responses to Justice Holmes' dissent in Lochner?
2.a. Is Justice Frankfurter's analysis in Rochin v. California any better as a response (note that he
could not rely on the 4th Amendment directly, since it had not yet been held to require states to
exclude illegally obtained evidence)? How does either Rochin or footnote 4 differ from Lochner?
Compare Justice Scalia's complaint in U.S. v. Carlton 114 S.Ct. 2018 (1994) (concurring) ("The
picking and choosing among various rights to be accorded "substantive due process" protection is
alone enough to arouse suspicion; but the categorical and inexplicable exclusion of so-called
"economic rights" (even though the Due Process Clause explicitly applies to property)
unquestionably involves policymaking rather than neutral legal analysis.").
Note that neither the Fourth Amendment nor the Fifth Amendment self incrimination clauses
would necessarily address efforts by intelligence officials to torture collaborators of terrorists or
drug dealers into revealing information if the goal is not prosecution. The Fourth Amendment does
not apply once the individual is in custody. And in Chavez v. Martinez, 538 U.S. 760 (2003), the
Court rejected a self incrimination claim where a police officer interrogated an arrestee for
forty-five minutes while the arrestee screamed in pain and awaiting medical treatment after being
shot in the face by the police. The arrestee was later released without prosecution; since no
information obtained in the questioning was used to “incriminate” the arrestee, an opinion written by
Justice Thomas, and joined by Justices Rehnquist, Scalia and O’Connor would have held that
“compulsive questioning” without more did not make out a constitutional violation. (Justice Breyer
and Souter concurred in the judgment).
b.In U.S. v. Lanier 117 S.Ct. 1219 (1997), the Court addressed the prosecution under a federal civil
rights statute protecting against deprivations of constitutional rights (18 U.S.C. Section 242) of a
judge who sexually assaulted employees and litigants. The trial judge in Lanier had instructed the
jury that "Included in the liberty protected by the [Due Process Clause of the] Fourteenth
Amendment is the concept of personal bodily integrity and the right to be free of unauthorized and
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unlawful physical abuse by state intrusion. Thus, this protected right of liberty provides that no
person shall be subject to physical or bodily abuse without lawful justification by a state official
acting or claiming to act under the color of the laws of any state of the United States when that
official's conduct is so demeaning and harmful under all the circumstances as to shock one's
consci[ence]. Freedom from such physical abuse includes the right to be free from certain sexually
motivated physical assaults and coerced sexual battery. It is not, however, every unjustified touching
or grabbing by a state official that constitutes a violation of a person's constitutional rights. The
physical abuse must be of a serious substantial nature that involves physical force, mental coercion,
bodily injury or emotional damage which is shocking to one's consci[ence]." The Court of Appeals
reversed, on the ground that a right to be free of sexual abuse was not sufficiently "clearly
established" to form the basis for criminal prosecution. The Supreme Court reversed the Court of
Appeals, on the ground that the Appeals Court had used the wrong standard to determine whether the
rights were "clearly established"; it remanded for that determination under the appropriate standard.
c. Lanier never resulted in a determination on remand, because Judge Lanier fled the jurisdiction,
and his appeal was dismissed. 123 F.3d 945. However,in County of Sacramento v. Lewis 523 U.S.
833 (1998), the Court, in an opinion by Justice Souter, joined by five other Justices, addressed the
claims of a bystander who had been killed in the course of a reckless police vehicular pursuit, using
Rochin as a touchstone.
The due process clause, according to the Court was intended “to prevent government officials
from abusing their power, or employing it as an instrument of oppression...For half a century now we
have spoken of the cognizable level of executive abuse of power as that which shocks the
conscience....While the measure of what is conscience shocking is no calibrated yards stick, it does
point the way...The threshold question is whether the behavior to the government officer is so
egregious, so outrageous that it may fairly be said to shock the contemporary conscience. That
judgment may be informed by a history of liberty protection, but it necessarily reflects an
understanding of traditional executive behavior, or contemporary practice, and of the standards of
blame generally applied to them.” Under this standard, however, given the exigencies of police
pursuit even a reckless decision did not “shock the conscience”, if it was not the result of an intent to
“terrorize,cause harm or kill.” In other, less pressured settings, however, the Court suggested that a
“deliberate indifference” standard might apply.
Justice Scalia, concurring in the judgement for himself and Justice Thomas, accused the majority
of “resuscitating the ne plus ultra, the Napoleon Brandy, the Mahatma Gandhi, the cellophane of
subjectivity,th’ ol’ “shocks the conscience” test.” (sic)
Is there a response to Justice Scalia that can defend the “shocks the conscience” test?
d. Notwithstanding Justice Scalia’s Porteresque witticism, the Court has continued to deploy the
the “shocks the conscience” test in limiting the reach of government violence. In Chavez v.
Martinez, 538 U.S. 760 (2003), referred to above, all of the Justices in accepted the proposition,
based in Rochin and County of Sacramento v. Lewis, that egregious physical abuse in police
questioning that "shocks the conscience" of the court would violate the substantive requirements of
the Due Process Clause. The Justices splintered, on whether the actions of Officer Chavez rose (or
sank) to that level of egregiousness. Justice Thomas, joined by Chief Justice Rehnquist and Justice
Scalia, would have relied on an absence of evidence that Officer Chavez "acted with a purpose to
harm Martinez," interfered with his treatment, or "exacerbated [his] injuries or prolonged his stay in
the hospital" along with the legitimate "need to investigate" the circumstances of the shooting to
conclude that no substantive due process violation had been alleged. Justice Kennedy, joined by
Justices Stevens and Ginsburg, thought it equally plain that because "the suspect thought his
treatment would be delayed, and thus his pain and condition worsened, by refusal to answer
questions," there was a clear constitutional violation; "no reasonable police officer would believe that
the law permitted him to prolong or increase pain to obtain a statement."Justice Souter, joined by
Justice Breyer, filed a brief and cryptic opinion for the Court stating that there was a "serious
argument" in support of that claim, but that whether the actions were indeed conscience-shocking
should be resolved on remand. On remand the Ninth Circuit held that its conscience was shocked.
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e.i. In Glucksberg, the majority recognizes that "the Due Process Clause guarantees more than fair
process", including "the traditional right to refuse unwanted life-saving treatment". How is that
protection justified? Why is a right to suicide not also protected? What state interests justify
prohibiting assisted suicide in the majority's view?
ii.Does Justice Stevens' justification for recognizing a right to refuse life-sustaining treatment
differ from the majority's? Why does he uphold the prohibition?
iii. Justice O'Connor and Justice Breyer both focus on a right to avoid state-inflicted pain. Is this
focus different from the majority's? How might they justify such a right? In U.S. v. Oakland Cannabis
Cooperative 532 U.S. 483 (2001) the majority refused to entertain a constitutional
challenge to refusal to recognize medical necessity defense to prohibition of marijuana distribution
based on “the substantive due process rights of patients, and the fundamental liberties of the people
under the Fifth Ninth and Tenth Amendments”. The court held that the Cannabis Cooprerative,
which distributed medically authorized marijuana legally under California law had not raised the
constitutional challenges below, and thus could not raise them before the Court.Justice Stevens’
concurrence in the judgment, joined by Justices Souter and Ginsburg (Breyer,J. had recused himsel)
opined that “whether the defense might be available to a seriously ill patient for whom there is no
alternative means of avoiding starvation or extraordinary suffering is a difficult issue not presented
here”.
iii. The claim of a substantive due process right to use medical marijuana was rejected on the
merits in Raich v. Gonzales, 500 F.3d 850 (9th Cir. 2007) .See County of Santa Cruz v. Gonzales,
2007 U.S. Dist. LEXIS 66414 ( N..D. Cal. 2007) (rejecting claim of terminally ill plaintiffs);
Abigail Alliance for Better Access to Developmental Drugs v. Von Eschenbach, 495 F.3d 695 (D.C.
Cir. 2007)(en banc) reversing 469 F.3d 129 (D.C.Cir 2006) (rejecting substantive due process claim
of a terminally ill, mentally competent adult patient's informed access to potentially life-saving
investigational new drugs).
iv. Is Justice Souter, as he claims, "construing a constitutional text and reviewing legislation for
conformity to that text"? What is the text? How does his approach differ from the majority's in
Lochner, if at all?
v. You may wish to glance ahead at Justice Stevens’ dissent in McDonald v. Chicago and Justice
Scalia’s reply.
f .In Munaf v. Geren, 128 S. Ct. 2207 (2008) Chief Justice Roberts wrote for a unanimous court
denying habeas corpus on jurisdictional grounds to petitioners who claimed that their transfer by US
forces in Iraq to the custody of Iraqi authorities could result in physical mistreatment. Justice Souter
concurred in an opinion joined by Justices Breyer and Ginsburg, but noted
“The Court...reserves judgment on an "extreme case in which the Executive has determined that a
detainee [in United States custody] is likely to be tortured but decides to transfer him anyway."... if
the political branches did favor transfer it would be in order to ask whether substantive due process
bars the Government from consigning its own people to torture.”
g. In DA's Office v. Osborne, 129 S. Ct. 2308 (2009) the Court rejected a challenge to Alaska’s
refusal to allow post conviction testing of DNA evidence. Justice Stevens, writing in dissent for
himself and Justices Ginsburg and Breyer set forth the facts that “The State of Alaska possesses
physical evidence that, if tested, will conclusively establish whether respondent William Osborne
committed rape and attempted murder. If he did, justice has been served by his conviction and
sentence. If not, Osborne has needlessly spent decades behind bars while the true culprit has not been
brought to justice. The DNA test Osborne seeks is a simple one, its cost modest, and its results
uniquely precise. Yet for reasons the State has been unable or unwilling to articulate, it refuses to
allow Osborne to test the evidence at his own expense and to thereby ascertain the truth once and for
all.”.
The dissenters invoked the proposition that “when government action is so lacking in justification that it
can properly be characterized as arbitrary or conscience shocking in a constitutional sense it violates the
Due Process Clause”. They would have required the state of Alaska to allow testing of the sample in its
possession because “the State has failed to provide any concrete reason for denying Osborne the DNA.”
Justice Souter would have reached the same result as a matter of procedural due process.
Chief Justice Roberts, writing for himself and Scalia, Kennedy, Thomas and Alito,JJ rejected the
claim to what he characterized as a “freestanding right to DNA evidence”, relying on the “reluctance
to expand the concept of substantive due process because guideposts for responsible decisionmaking
in this uncharted area are scarce and open-ended.”. “The novelty of the claim is reason enough to
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doubt that substantive due process sustains it.... We are reluctant to enlist the Federal Judiciary in
creating a new constitutional code of rules for handling DNA....At the end of the day there is no
reason to suppose that the answers to these questions would be any better than those of state courts
and legislatures and good reason to suspect the opposite”.
Cf, Godschalk v. Montgomery County Dist. Attorney's Office, 177 F. Supp. 2d 366 (E.D. Pa.
2001) (Granting access to DNA samples on federal claims over objections of District Attorney;
testing unambigously exonerated innocent defendant who had served 15 years on rape conviction).
The Court this Term will consider another effort to claim that unwarranted refusal to allow postconviction DNA testing violates substantive due process in this Term in Skinner v. Switzer 09-9000
3. Much of the risk of assault on bodily integrity by modern American governmental entities arises
in the context of the criminal justice system, and criminal justice functions have been held to be
constrained by particular doctrines that preclude “conscience-shocking” impositions.
A. The Fourth Amendment has been held to limit the capacity of police officers to shoot fleeing
suspects Tennessee v. Garner 471 U.S. 1 (1985)(as “unreasonable seizures”) or to excavate in the
bodies of criminal defendants in order to obtain evidence Winston v. Lee 470 U.S. 753 (1985) (as
“unreasonable searches”), with reasonableness judged by a comparison of the magnitude of
imposition and the magnitude of the benefits sought. On the other hand in Atwater v. City of
LagoVista 532 U.S. 318 (2001). the Court determined that a custodial arrest for failing to wear a
seatbelt, a misdemeanor with a $54 fine was not an “unreasonable seizure”. See Virginia v. Moore
128 S.Ct. 1598 (2008) ( arrest for driving without a license was “reasonable” for fourth amendment
purposes, even though state law dictated that violation should result in the issuance of a summons
rather than an arrest).
B.1.The Eighth Amendment has been held to preclude “the unnecessary and wanton infliction of
pain” upon convicted prisoners as inconsistent with the “basic concept underlying the Eighth
Amendment which is nothing less than the dignity of man”. See,e.g. U.S. v. Georgia 546 U.S. 151
(2006) (leaving paraprlegic prisoner in his own wastes would violate the Eighth Amendment) (Per
Scalia,J.); Hope v. Pelzer 122 S.Ct. 2508 (2002) (holding that shackling a prisoner for seven hours to
a hitching post in the summer sun in a position designed to cause discomfort violated the Eighth
Amendment). (Justice Thomas dissented, joined by Rehnquist,C.J. and Scalia,J.). Cf. Baze v. Rees,
128 S. Ct. 1520 (2008) (Lethal injection is not “cruel and unusual punishment” in the absence of a
showing that “feasible, readily implemented” alternatives “significantly reduce a substantial risk of
severe pain”). (Thomas and Scalia would forbid only “purposely torturous” punishments; Ginsburg
and Souter would have invalidated the lethal injection protocol because of avoidable risk of errors
resulting in “horrendous and effectively indetectable” pain)..
The most recent in this line of cases was Wilkins v. Gaddy, 130 S. Ct. 1175 (2010)(per curiam),
in which the Court summarily reversed dismissal of a prisoner’s Eight Amendment claim against a
guard who “ apparently angered by Wilkins' request for a grievance form, "snatched [Wilkins] off
the ground and slammed him onto the concrete floor....then proceeded to punch, kick, knee and
choke [Wilkins] until another officer had to physically remove him.." The trial court had dismissed
the complaint because Wilkins failed to allege “significant injury”. The Court quoted Hudson v.
McMillian, 503 U.S. 1, 4, (1992): “The "core judicial inquiry," we held, was not whether a certain
quantum of injury was sustained,...."When prison officials maliciously and sadistically use force to
cause harm,....contemporary standards of decency always are violated . . . whether or not significant
injury is evident. Otherwise, the Eighth Amendment would permit any physical punishment, no
matter how diabolic or inhuman, inflicting less than some arbitrary quantity of injury....The Eighth
Amendment's prohibition of 'cruel and unusual' punishments necessarily excludes from constitutional
recognition de minimis uses of physical force, provided that the use of force is not of a sort
repugnant to the conscience of mankind.”
Justice Thomas, writing for himself and Justice Scalia concurred in the judgment, observing that
while he viewed Hudson as wrongly decided, no party had argued for overruling it.
2.a. The Eighth Amendment has also been held to prohibit punishment that is
“disproportionate” in light of “evolving standards of decency”. These standards have underlain the
struggle over capital punishment. See e.g. Kennedy v. Louisiana, 128 S. Ct. 2641 ( 2008) (execution
for aggravated rape of 8 year old child violates the Eighth Amendment) (dissents by Alito, Roberts,
Scalia, Thomas); Panetti v. Quartermain 127 S.Ct. 2842 (2007) (directing consideration of claim that
delusions rendered defendant’s execution cruel and unusual); Roper v. Simmons, 543 U.S. 551
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(2005) (holding execution of juvenile offender would violate Eighth Amendment) (dissents by
O’Connor, Scalia, Thomas and Rehnquist) ;Atkins V. Virginia 536 U.S. 304 (2002) (holding that the
execution of a mentally retarded individual would violate the Eighth Amendment in light of
“evolving standards of decency.”) (Chief Justice Rehnquist dissented, joined by Scalia,J. and
Thomas,J.).
“Evolving standards of decency” have similarly impelled the Court to determine that the
imposition of life sentences without parole upon on juvenile nonhomicide defendants violate the
Eight Amendment. Graham v. Florida, 130 S. Ct. 2011 (2010). But cf. Id 2049 (Thomas, Scalia,
Alito dissenting) (“ the evidence is clear that, at the time of the Founding, "the common law ....
permitted [even] capital punishment to be imposed on a person as young as age 7.").
b. On the other hand Ewing v. California, 538 U.S. 11 (2003) held that imprisoning an
offender for a term of 25 years to life for stealing three golf clubs as a “third strike” offense was not
unconstitutionally “disproportionate. Nor was life imprisonment for possession of cocaine..Harmelin
v. Michigan, 501 U.S. 957 (1991).
Do the existence of Fourth and Eighth Amendment prohibitions suggest that areas not directly
covered by their terms should be treated analogously– or that the failure to prohibit “cruel and
unusual governmental actions” should leave the actions free from constraint so long as they are not
“searches, seizures” or “punishment”?
c. Standards comparable to the Eighth Amendment have been applied to the conditions of
confinement of pre-trial detainees as a matter of substantive due process. Bell v. Wolfish 441 U.S.
520 (1979). And Justice Scalia, concurring in West v. Atkins, 487 U.S. 42, 58 ( 1988) stated “I do not believe
that a doctor who lacks supervisory or other penological duties can inflict "punishment"
within the meaning of that term in the Eighth Amendment. I am also of the view, however, that a
physician who acts on behalf of the State to provide needed medical attention to a person
involuntarily in state custody (in prison or elsewhere) and prevented from otherwise obtaining it, and
who causes physical harm to such a person by deliberate indifference, violates the Fourteenth
Amendment's protection against the deprivation of liberty without due process.”
4.a. In the unanimous decision in Donaldson , what is the basis for the Court's conclusion that "a
finding of mental illness alone cannot justify a State's locking up a person against his will?" Is it
rooted in history, text,tradition, or social theory? Could an owner who sought to build an
aquamarine replica of a Howard Johnson's motor lodge in a residential neighborhood otherwise
occupied by Spanish-colonial stucco villas object to a denial of his zoning permit because of the
"mere public intolerance or animosity" toward his creation?
Has the Court over-stepped appropriate institutional boundaries? Is this different from Lochner?
b. Donaldson seems to have survived the Rehnquist court. In Foucha v. Louisiana 504 U.S. 71
(1992) Justice White, writing for five justices held that continuing to detain an insanity acquitee in a
mental institution because he had an "antisocial personality" after the acquitee had been certified to
have cured of his psychosis violated substantive due process, recognizing incarceration as a
“fundamental deprivation of human liberty”. Justice Kennedy, joined by Chief Justice Rehnquist in
dissent reaffirmed Donaldson but argued it was distinguishable where the person incarcerated had
committed a crime. Justice Thomas, joined by Justice Scalia and Chief Justice Rehnquist in dissent
rejected the claim that freedom from confinement is "fundamental" and would have upheld the
scheme on the basis of rational basis scrutiny. Kansas v. Hendricks (S &G 469) retains the
requirements of "mental abnormality" and "dangerousness", but allows some leeway in the definition
of "mental abnormality". See Seling v. Young 531 U.S. 250 (2001) and Kansas v. Crane 534 U.S.
407 (2002).
In Zadvydda v. Davis 533 U.S. 678 (2001) a 5-4 majority opinion authored by Justice Breyer
relied on Kansas v. Hendricks and Foucha to determine that indefinite and potentially permantent
detention of deportable aliens would raise potentially fatal questions of due process, but construed
the statute in question to preclude such indefinite detention. In Demore v. Kim, 538 U.S. 510 (2003)
the Court upheld the incarceration of non-dangerous aliens pending deportation notwithstandng the
absence of any risk of flight. Issues of preventive detention by the military in the name of
“homeland security”or through the use of “material witness” statutes are also working their way
through the courts.
c. In Riggins v. Nevada 112 S.Ct. 1810 (1992) , Justice O'Connor, writing for a seven member
majority (Thomas and Scalia,JJ dissenting) held that the state violated a defendant's due process
rights by forcing him to take anti-psychotic medication during his trial. "Forcing antipsychotic drugs
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on a [convicted prisoner or detainee] is impermissible absent a finding of overriding justification and
a determination of medical appropriateness." The forced administration could have been justified if
the medication was "medically appropriate, and considering less intrusive alternatives, essential for
the sake of Riggins own safety or the safety of others." Accord Sell v. United States, 539 U.S. 166,
177-178 ( 2003) (“involuntary medical treatment raises questions of clear constitutional
importance.”)..
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THE EQUAL PROTECTION CLAUSE: Implicit in the 5th Amendment through Due Process
Federal v. State governments: Government Action Only: the Equal Protection Clause, and the
5th Amendment’s Due Process Clause apply only to government action; not to classifications
made by private citizens
For challenging federal government: 5th Amendment Due Process (“discrimination may be so
unjustifiable as to be violative [sic] of DP.” Boiling/Sharp)
For challenging state governments: 14th Amendment EP.
Not promising equal treatment across the board, but rather justified differences.
Possible Approaches:
1.
2.
3.
It’s only about African Americans: Part of Congressional enactments under 13,14, and 15th
Amendments. As construed by Slaughterhouse cases, concern was that states faced with a newly
freed Black population would discriminate against them. On the other hand, the 14 th is phrased
to deal with Equal Protection of persons (without regard to race.)
Equal Protection covers everyone and Slaughterhouse was wrongly decided.
Text: “No state shall make or enforce any law which shall…deny to any person within its
jurisdiction equal protection of the laws.” Guarantees: similarly situated people will be treated
similarly, and people who aren’t similarly situated won’t be treated similarly.
“As applied” v. “Facial”: The two types of attacks plaintiffs make on classifications:
Facial: A classification clearly written into the statute or regulation.
As applied: A classification that isn’t made on the face of the statute/regulation, but is administered in a
purposefully discriminatory manner.
Court will look to see if a law is overinclusive (include too many, eg some Japanese were not spies) or
underinclusive (don’t include all; eg there were many spies who weren’t Japanese who weren’t
interned.)
Three Levels of Judicial Review:
Strict Scrutiny for suspect classifications: Compelling + Necessary means (narrow tailoring) for
RACE / NATIONAL ORIGIN / ALIENAGE; Burden of proof on government: When the statute is based
on a “suspect classification” or impairs a “fundamental right.”
The test: The classification is upheld only if it is necessary (extremely tight fit between the
means and the end) to promote a compelling government interest (extremely important
objective).
The fundamental rights: the right to vote, the right to have access to the courts, and the right
to interstate migration.
a. S.S. applied even though the people burdened aren’t members of a suspect class.
b. There is no fundamental right to food, shelter, public education and medical care.
Narrowly tailored/Necessary to promote: the means chosen to accomplish the compelling
government interest must be the least restrictive means to accomplish the end. If there is a less
race/nationality-based method to accomplish the government end then that means must be
selected first. Requires government make a showing it tried the least restrictive, and the neutral
method failed.
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Middle-level review for semi-suspect classifications: Important + Substantially related for
GENDER/ILLEGITIMACY/SOME TYPES OF ALIENAGE; Burden of proof on government: A less
demanding level of review than strict scrutiny.
The test: the means chosen by the legislature (i.e. the classification) must be substantially
related to an important governmental objective.
Mere rationality review for classifications that are not suspect and don’t impair a fundamental
right: legitimate + Conceivable rational relationship; Burden of Proof on Challenger (must show
that it is essentially arbitrary).
Test: the classification is upheld as long as it is conceivable the classification bears a rational
relationship to a legitimate governmental objective (not prohibited by the constitution).
Almost every classification survives this test. Economic regulation and tax classification
are reviewed under this easy to survive standard.
Government’s objective doesn’t need to be compelling or important, but only legitimate.
Suspect Classifications: race, national origin, and alienage: how the courts conduct their review:
Purposeful: Strict Scrutiny is only applied when the government intentionally treated the class
of individuals differently. If the government enacts a statute that merely has the unintended
incidental effect of burdening one group more than another the court doesn’t apply strict
scrutiny.
Strict Scrutiny as fatal in fact? the strict scrutiny test is almost always fatal to the classification
scheme: no purposefully racial or ethnic classification has survived the test since 1944.
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Lowest Level Review: Mere “Rationality” Test: for Economic and Social Welfare Laws:
TEST: Conceivable Rational Relationship to a Legitimate End
The statute won’t be stricken if it’s conceivable that there’s some rational relation between
the means selected and a legitimate legislative objective. The law is stricken only if the
classification is “purely arbitrary.” Legitimate = advances a traditional police power.
Deferential View: When neither a suspect class nor a fundamental right is implicated, the Court
will review a classification with extreme deference, and with a heavy presumption of
constitutionality. This is usually the case with economic and social welfare laws.
Introduction: Though the Clause was enacted to secure equal treatment for ex-slaves from the beginning
the Clause was interpreted to “impose a general restraint on the use of classifications, whatever area
regulated, whatever classification criterion used.” Thus, the equal protection requirement could
potentially limit every governmental action, because every statute requires some form of classification.
Conflict of Interest: (1) We don’t want “toothless equal protection law,” but (2) we don’t want all social
legislation to be hamstrung by the Equal Protection Clause. One argument is equal protection should be
restricted to only improper racial classifications. However, the 14 th Amendment, unlike the 13th and 15th,
doesn’t deal only with racial issues, but rather it broadly covers all citizens.
Broad reading of the Legitimate public objective: Courts give extreme deference to legislature’s
right to define objectives: as long as there is one conceivable objective; legitimate and rationally related
to the means selected, the Court will ignore the possibility another illegitimate objective might have
motivated the legislature. Any objective that doesn’t strike the Court as grossly unfair or totally irrational
is upheld. Even though the Court thinks the legislature’s underlying objective is unwise the Court won’t
necessarily make the act “illegitimate.”
Critiques/Underlying Issues
1. Is this appropriate deference or undue judicial abdication?
2. Has the Court been consistent with its application? (Cleburne and Romer/Evans seem to suggest that
the Court is using a Rational Basis With Bite test.)
The One Step At A Time approach: A key feature in “mere rationality” review is legislation won’t
be invalidated merely because it dealt only with one part of the problem: legislature may deal with a
problem “one step at a time.” A statute that is under-inclusive isn’t necessarily invalid.
Railway Express Agency v. N.Y. (1949, 641)
a. Facts: N.Y.C. regulation prohibits advertising on vehicles, but didn’t prohibit advertising
as long as the vehicles are engaged in their owner’s usual work and aren’t used merely
or mainly for advertising. The purpose of the statute was to reduce traffic hazards.
(Companies can put their own logos on their trucks, but not another’s ad.)
b. Held: J. Douglas: statute doesn’t violate the Equal Protection Clause, because “It is no
requirement of equal protection that all evils of the same genus be eradicated or
none at all.” Advertising on vehicles in N.Y.C. constituted a distraction to drivers and
pedestrians, which affected public safety.
i. The goal of the statute is to avoid unsafe distractions, and “the local authorities
may have concluded that those who advertise their own wares on their trucks
do not present the same traffic problem in view of the nature of extent of the
advertising which they use. It would require a degree of omniscience which we
lack to say that such is not the case.” (642) The political process should
determine the value and goals of legislation, and the Court will defer to the
legislature’s goals.
ii. Support of a one step at a time approach: (1) contrary rule might preclude
state from regulating until its resources are adequate to deal with the entire
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c.
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problem, (2) an all or nothing rule might restrict the state’s ability to
experiment before attacking the whole problem.
Concurrence: J. J. Jackson Attacks the one step at a time approach: could invite
arbitrary action, because this form of under-inclusiveness would allow legislators to
choose only a few to apply the regulation to and avoid political heat for applying the
legislation to large numbers. Instead: Laws can’t discriminate between people except
upon some reasonable differentiation fairly related to the object of regulation.
i. EP serves in the court of political decision. Policymakers are likely to step on the
toes of powerful interests as well as non-powerful ones. Therefore, given the
choice, they will victimize the weak.
1. Ex: Newspapers are affected if the prohibition applied across the board.
A narrow application avoids the politically strong opposition that
would otherwise stand in the way.
ii. If you can make any excuse to avoid legislation under the EP clause, then it
ceases to have any meaning. EP is less problematic than DP. When you use DP to
strike down a law, the government cannot regulate that area at all.
1. Here, if DP is used to strike down advertisements, then advertisement
at all would be free from regulation. With EP, regulation is still available
to maneuver by either permitting everything or prohibit everything.
Here, they create a category for those trucks that are hired and those
that are owned by company. In order to avoid problematic outcome of
the state creating arbitrary classes, he recommends, reasonable
differentiation & real difference test.
2. There is a real difference between doing in self-interest and doing for
hire: it is one thing to tolerate action from those who act on their own,
and another to permit the same action promoted for a price, which
could produce an “obnoxious enterprise.”
a. Jackson does not give a reason for why this real difference is
legitimate.
3. No regulation could create an “obnoxious” enterprise.
Williamson v. Lee Optical (1955): regulation of opticians challenged on equal protection grounds
[sellers of ready to wear glasses weren’t subject to the regulation].
J. Douglas: Court rejected equal protection claim: “Evils in the same field may be of
different dimensions and proportions, requiring different remedies. The reform may take
one step at a time, addressing itself to the phase of the problem, which seems most acute to
the legislative mind. The legislature may select one phase of one field and apply a remedy
there, neglecting others.”
Board of Trustees v. Garrett (2001): most recent examination. Court reiterates the prop that the
question is whether there is any reasonable conceivable set of facts to provide rationalization
and justification for the regulation (no proof necessary.)
Allegheny v. Pittsburgh Steel (1991) Uniformed systems of assessment was announced, but
different systems were used to differentiate between those who newly purchased land and those
who purchased before.
Determining a statute’s purpose: Before the Court can determine if the purpose is both legit
and there is a sufficient link between the means and the end it must determine what the purpose
of the statute was. As long as one of the purposes is legitimate and closely linked to the means
the statute is valid under the mere rationality standard. But the Court has swayed concerning
where to look to find possible purposes.
“Actual” legislative purpose: if the statute itself contains, either within its text, or its preamble,
a statement of purpose that statement controls. Similarly, if the legislative history of the
legislation discloses a purpose that purpose will control. If there is more than one objective as
long as the challenged classification is rationally related to any one of the actual objectives the
statute will be sustained, even if it isn’t rationally related to the others.
Conceivable Basis Standard: The actual purpose may not be clear, because neither the statute
or the legislative history state a clear purpose or there may be other objectives that induced the
bill to be passed. In this case the Court will consider any purpose which the statute’s defenders
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can assert as having been the goal or even a consideration which may have motivated the
legislature. The statute will be upheld even if there is no hard evidence that that purpose was in
fact a motivation of the legislature.
Illustration: U.S. Railroad Retirement Bd. v. Fritz (1980):
1.
2.
3.
4.
d.
Facts: Congress enacts Railroad Retirement Act to place the industry’s retirement
system on sound financial basis (so that the RR doesn’t go broke.) Under the Act: For
those whose benefits are not solidified, there will be a differentiation that divides certain
railroad employees qualify for both social security benefits and retirement benefits,
while others who don’t meet the Act’s criteria only receive social security benefits.
Distinction between those that are currently active and those who are no longer
active. Fritz claims the distinctions used to determine eligibility violate equal protection
standards.
Held: As long as there is a “plausible” reason to make a classification the mere
rationality standard could be met, and it was constitutionally irrelevant whether this
reasoning in fact did underlay the legislative decision (Court never required a
legislative body to articulate its reasons for enacting a statute).
a. The Court was willing to accept any proffered statutory “purpose,” whether
actually relied upon by the legislature or not. Congress “may” have been
attempting to preserve limited benefits for “career” railroad employees, and
that persons still working in railroading (as a second career) when the act went
into force were more likely to be “career” railroad workers than those who had
left railroading before the act came into force. Because this was a plausible
reason for Congress’ action, it was sufficient to sustain the statute.
Concurrence: J. Stevens: a purpose should be considered only if it was “actually” one
or else a “legitimate purpose that we may reasonably presume to have motivated an
impartial legislature.” To be valid, there must be a correlation between the statutory
classification and either the actual purpose of the statute or a legitimate legislative
objective. The congressional purpose of eliminating dual benefits is legitimate, and the
timing of the employee’s railroad service is a reasonable basis for the statutory
classification.
Dissent: J. Brennan and J. Marshall: “A challenged classification may be sustained only
if it is rationally related to the achievement of an actual legitimate government purpose”
and that “any post hoc justifications preferred by government attorneys should be
viewed skeptically. Congress stated a principal purpose of the act was to preserve vested
earned benefits of retirees who already qualified for them. Because the statutory
classification deprives some retirees of vested dual benefits, it isn’t rationally related to
Congress’ stated purpose and therefore violates equal protection standards.
a. Court’s own imagination: The Court has gone even further than Fritz and has
simply used its own imagination to derive theoretical objectives which the
legislature “might have” been pursuing. If this hypothetical purpose is
adequate the statute is upheld. The statute would be overturned only if no
conceivable grounds can be found to justify the statute.
McGowan v. Maryland (1961): use of public morals as sufficient for upholding law
under rational basis test
i. “Sale of all merchandise banned [on Sunday] except sale of tobacco,
confectioneries, milk, bread, fruits, gasoline, greases, drugs, medicines,
newspapers and periodicals.” Businesses claim violates equal protection rights
of businesses.
ii. Held: rejected the claim: “The constitutional safeguard is offended only if the
classification rests on grounds wholly irrelevant to the achievement of the
State’s objective. State legislatures are presumed to have acted within their
constitutional power despite the fact, in practice, their laws result in some
inequality. A statutory discrimination will not be set aside if any state of facts
reasonably may be conceived to justify it. It would seem that a legislature could
reasonably find that the Sunday sale of the exempted commodities was
necessary either for the health of the populace or for the enhancement of the
recreational atmosphere of the day.
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McDonald v. Bd. of Elections Commissioners (1969): Prisoners claim State couldn’t deny
them absentee ballots, because absentee ballots were given to other classes (physically
disabled). Held: rejects claim, because “the fundamental right” to vote wasn’t at issue, but
rather only a right to an absentee ballot. Further, statutory classifications will be
overturned only “only if no grounds can be conceived to justify them.”
New York City Transit Auth. v. Beazer (1979): Upheld exclusion of all methadone users from
Transit Authority employment: Court viewed exclusion policy as “supported by the legitimate
inference that as long as a treatment program continues a degree of uncertainty persists.”
f.
g.
Dissent: Court’s result could be reached only if equal protection imposes no real
constraint. The classification is without any justification and with its irrationality and
invidiousness thus uncovered, must fall before the Equal Protection Clause.
FCC v. Beach Communications (1993): upheld distinctions in Cable Communications
Policy Act. J. Thomas: “Equal protection is not a license for courts to judge the wisdom,
fairness, or logic of legislative choices. In areas of social and economic policy, a statutory
classification that neither proceeds along suspect lines nor infringes fundamental
constitutional rights must be upheld against equal protection challenge if there is any
reasonably conceivable set of facts that could provide a rational basis for the
classification.” Under this test: very broad discretion given to legislatures; almost no
law could be struck down.
i. Mathematical Exactitude not required: All this requires is that the means-end
relationship be close enough that its rationality is “debatable,” and thus a very
loose fit between the means and the ends will suffice.
Age isn’t a suspect Class: Massachusetts Bd. of Retirement v. Murgia (1976): law
providing a uniformed State police officer “shall be retired upon his attaining age fifty.”
The statute’s purpose was to maintain a physically fit force. Statute upheld even though
some or perhaps many officers over 50 were fit, and this made the statute overinclusive. But the link between being fit and being over 50 wasn’t so attenuated as too
irrational. And even though this was a less-than-best means (annually physically exams
would have worked better to accomplish the goal) didn’t mean the statute was
impermissible. “Perfection in making the necessary classifications is neither possible nor
necessary…where rationality is the test, a State does not violate equal protection merely
because the classifications made by its laws are imperfect.”
i. No suspect class: the key was that the Court declined to treat age as a suspect
class, because if it did the statute wouldn’t have likely passed the middle level
review or strict scrutiny. Gregory v. Ashcroft and Vance v. Bradley later
upheld this holding regarding age.
New Orleans v. Dukes (1976): sustained law exempting food vendors, who continually operated
the same business for 8 yrs. prior to enactment of the law, from a prohibition against such
vendors in French Quarter. Court emphasized, “Rational distinctions [in economic regulation]
may be made with substantially less mathematical exactitude.”
h.
i.
“The city’s classification rationally furthers the purpose which the city had identified as
its objective in enacting the provisions, that is, preserving the appearance and custom
valued by the Quarter’s residents and attractive to tourists.”
Means-end link need not be empirical: There need not be in fact a link between the
means chosen and a legitimate government objective, all that is required is that the
legislature could rationally have believed there was such a link.
Vance v. Bradley (1979): Court rejected equal protection attack on federal law
requiring Foreign Service personnel to retire at age 60. Ruling demonstrates how very
little factual data government needs to defend legislative classifications under the
rationality standard.
i. “Perfection is by no means required. In an equal protection case, those
challenging the legislative judgment must convince the Court that the legislative
facts on which the classification is apparently based could not reasonably be
conceived to be true by the government decision maker.”
B. Illegitimate Purpose: Legislation Rooted in Bare Hostility: Classifications
involving unpopular groups may be subject to a higher level of scrutiny by the
Court’s refusal to treat a proffered legislative purpose as being legitimate:
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U.S. Dept. of Agriculture v. Moreno (1973, 645): Applied the “mere rationality” standard: struck
down provision of federal food stamp program, which limited assistance to households of related
persons, because the exclusion of “unrelated persons” was “irrational,” “imprecise,” “wholly
without any rational basis,” and “clearly irrelevant” to the purpose of raising nutrition among
low-income families and strengthening the agricultural economy.
i. Legislative History: Intent: “That amendment was intended to prevent so-called
hippies and hippie communes from participating in the food stamp
program…For if the constitutional conception of equal protection of the laws
means anything, it must at the very least mean that a bare congressional
desire to harm a politically unpopular group cannot constitute a
legitimate governmental interest.” Thus, statute is not okay.
Willowbrook v. Oleh (SCOTUS 2000)
ii. Facts: Grace Olech asked the Village of Willowbrook to connect her property to
the municipal water supply. The Village conditioned the connection on Olech's
granting of a 33-foot easement. Olech refused, claiming that the Village only
required a 15-foot easement from other property owners seeking access to the
water supply. Olech sued the Village claiming that the Village's demand of an
additional 18-foot easement violated the Equal Protection Clause of the
Fourteenth Amendment. The District Court dismissed the case for failure to
state a cognizable claim under the Equal Protection Clause. In reversing, the
Court of Appeals held that a plaintiff can allege an equal protection violation by
asserting that state action was motivated solely by a "spiteful effort to 'get' him
for reasons wholly unrelated to any legitimate state objective."
iii. Issue: Does the Equal Protection Clause give rise to a cause of action on behalf
of a "class of one" where the plaintiff did not allege membership in a class or
group?
iv. Held: Yes. In a per curiam opinion, the Court held that Olech's allegations were
sufficient to state a claim for relief under traditional equal protection analysis.
"Our cases have recognized successful equal protection claims brought by a
'class of one,' where the plaintiff alleges that she has been intentionally treated
differently from others similarly situated and that there is no rational basis for
the difference in treatment," stated the unanimous, unsigned opinion.
v. Concurrence: J. Breyer concurred.
Cleburne v. Cleburne Living Center: (1985) (excluding mentally retarded from a neighborhood)
b.
c.
Mere Rationality has some “Bite”: Occasionally, a statute will be found to be
completely lacking rationality, even under the mere rationality standard:
i. Logan v. Zimmerman Brush Co. (1982): law barred discrimination on basis of
handicap and provided within 120 days of filing a charge, State agency shall
convene a fact-finding conference. But here, the agency inadvertently failed to
hold the hearing within the mandatory time limit, and the Commission lost
jurisdiction to hear complaint. Court ruled the statute divided claims, and
claimants into two groups accorded radically different treatment. Claims
processed within 120 days are given full consideration, while other claims that
don’t receive a hearing within the time limit are terminated. There was no
justification found for treating the two classes differently.
Potential Problem: when the government has a legitimate reason to fear/dislike a
certain group (ie Neo-Nazis.) The court has not answered this.
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Equal Protection and Race
Brown I (1954)
Brown II (1955)
Green v. County School Board (1968)
Swan v. Mecklenburg Sch. Dist (1971)
Keyes (1973)
Milliken (1974)
Okla. City v. Dowell (1991)
Mou v. Jenkins (1995)
Boiling (1984)
Anderson v. Martin (1964) (Ind. Rights Act)
Loving (1967)
San Antonio v. Rodriguez (1977)
Johnson v. California (2005)
Two Different Methods: Brown and Boiling:
Brown begins with perception of protection that requires that protection be provided in equal
measures. Education is the key to civic and economic participation and is distinctly different
from separate RR cars. Plessy was wrong because it was empirically problematic (did not face
reality of the 1950s.) Problem with empirical approach to quality: 1) is it an empirical
question that can be rebutted? (can schools claim that segregation has a different impact in MI
versus in CA. 2) is this an empirical observation that can change in the particular school districts
in question (if new research concludes that segregation is actually good for academic
achievement, then is segregation not unconstitutional?) 3) what can be said about segregation in
other arenas? (swimming pools, parks, etc.) Brown is only about public education and nothing
else.
Boiling; rather than focusing on the protection of equality of status or the provision of
equalopportunities, Boiling focuses on the idea of treating individuals with respect as
individuals rather than racial hostility: 1) racial classifications are “constitutionally
suspect” and 2) segregation is “unrelated to any proper governmental objective.” Plessy
was wrong because it failed to recognize the evils of a) racial classifications and b) racial
hostility. Racial classifications are “constitutionally suspect” and must be investigated with
scrutiny. Individuals should be treated as individuals with equal respect (recognized but not
realized in Korematsu.) This is supported by the reasoning in Carolene Products Footnote (court
should be skeptical of interventions that are directed to adversely affecting discrete and insular
minorities.) If the classification is suspect, there must be a proper governmental objective and, in
this case, segregation in public schools is not reasonable to legitimate purpose. Plessy is wrong
b/the desire to accommodate public customs of racial discomfort and exclusion is not a proper
basis upon which to make public decisions. This applies to every government choice and
across the board (not contingent on empirical studies but rather applies beyond public
education.)
a. Historical Analysis, A complimentary conception: empirical conception that segregation
is part of the social and political system that, in the aggregate, has the effect of excluding
Blacks from public life, with the intent to drive them towards subjugation. (Language
found in Strauder, but conception underpins both propositions in Brown and Boiling.)
Empirical harm is not limited to harm to public schools, but rather part of a broader
harm (which schools, parks, etc. are a part.) In Strauder, this effectuates the possibility
of subjugation and exclusion of Blacks and facilitates a system of subordination.
Basis of Strict Scrutiny for Racial Distinctions
b. Carolene Products Footnote: “Prejudice against discrete and insular minorities may be
a special condition, which tends seriously to curtail the operation of those political
processes ordinarily relied upon to protect minorities, and which may call for a
correspondingly more searching judicial inquiry.” Distinctions based on race lead to
suspicions: minorities may have less access to the political process.
c. Strauder v. Virginia: 14th Amendment is rooted in attacking laws that contain racial
hostilities.
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d.
Moral argument: Each person is equally valuable, and should receive equal protection
under the law.
e. “Purposeful Discrimination” A classification isn’t suspect and therefore subject to
strict scrutiny unless there was a legislative intent to discriminate against the disfavored
group. The mere fact the law has a less favorable impact on a group isn’t sufficient to
constitute a violation of equal protection (though it is a factor in the analysis).
Suspect Classifications: Statutory classifications that give distinct treatment to a group that has
historically been the victim of discrimination are subject to strict scrutiny. Race and national origin are
the two central examples of suspect classifications. Now, discrimination against any racial group merits
strict scrutiny even if that group was never subject to widespread discrimination (the affirmative action
cases). Some cases include the class of alienage as a suspect class, but more recent cases place alienage in
the middle level of review analysis category.
Facially Neutral Yet Still Discriminatory
Invidious intent generates the same sort of scrutiny even if on the face the action it appears neutral. Yick
Wo deals with when the intent is invidious: no justification for the racially charged result. The
classification must be adopted “because of” the disparate discriminatory impact, and not “in spite of.”
Philosophical Problems with the invidious intent requirement: (1) few legislatures will admit
this intent; may allow for intent to be obscured. But the Court says that a trial court may take the
disparate may be taken into account, and make an inference that the intent was to discriminate. The
legislature may then say that the result would have occurred despite the act. (2) The problem is that this
rests all the power with the trial court. Rule 52 of F.R.C.P. makes trial court findings immune unless
there is a “clear and erroneous” error, and this grants very broad power to trial courts. (3) Also, rather
than focusing on social consequences there is enormous incentive to find racial intent which alters the
nature of the litigation in disadvantageous ways. (4) Normative problems: inequality can arise not only
out of hostility but out of select indifference: Lau v. Nichols and Mass. v. Finney there was no intent to
discriminate, but they were just indifferent, (5) no invidious intent but if you look to McKlesky v. Kemp
something about the process that discriminates and yet we allow the process to be immune.
Practical problems with the invidious intent requirement: trying to determine the intent of the
legislature is very difficult (court says intent can be inferred), and thus intent is a mythical thing.
How legislative purpose is demonstrated: (1) the law discriminates on its face, (2) although
neutral on its face the law is administered in a discriminatory manner, and (3) the law, although neutral
on its face and applied without regards to race was enacted with a purpose of discriminating as
demonstrated by legislative history, statements by legislatures, the law’s disparate impact, or other
circumstantial evidence.
“Facially” Discriminatory Law
Three types: (1) race-specific classifications that disadvantage racial minorities: Strauder 697 (2) racial
classifications that burden both whites and minorities 699 and (3) Laws requiring segregation of races:
Plessy/Ferguson.
Strauder v. W. Virginia (1880): INVALIDATED statute denied African-Americans right to serve
as jurors.
2.
3.
Facts: Statute limited service to “white male persons who are 21 years of age and who are
citizens of this State.” State argues all citizens treated equally; all have a right to a white jury.
Strauder was indicted for murder and objects to this statute for excluding the possibility that a
member of the jury could be black.
General Holding: The statute is unconstitutional, because on its face it discriminates against
blacks: 14th Amendment designed to assure African-Americans enjoyment of all civil rights
enjoyed by white persons, and give them protection of the general government whenever they
are denied these rights by States (guards against re-subordination of recently freed AfricanAmericans).
a. Applied to Strauder: African-Americans are singled out and expressly denied the right
to participate in the administration of the law, as jurors, because of their color, though
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they are citizens. Exclusion of a particular group from participation in the
government is a statement that that group is inferior. The ability of blacks to
determine the fate of whites is an indication that they are equal.
b. Concerns the statute creates: legislation that places a mark of inferiority on AfricanAmericans stimulates discrimination against African-Americans: whites could attack
blacks, end up in front of white juries, and get off without punishment; allows whites to
lower the condition of African-Americans without recourse. However, a statute
requiring literate jurors would be allowed even though it would exclude many AfricanAmerican’s from serving as jurors, because they could learn to read not an immutable
characteristic.
Note: where a law discriminates on its face the Court doesn’t require it be shown that it had
an actual discriminatory impact or that there was a discriminatory intent.
Yick Wo v. Hopkins (1886): INVALIDATED: even when it appears neutral, if a clear pattern
emerges from the effect of the state action (one that’s unexplainable for reasons other than race),
then it is invalid.
5.
6.
7.
8.
9.
Facts: San Francisco ordinance bars operation of hand laundries in wooden buildings except
with consent of Board of Supervisors. The Board gives permits to all but one of the non-Chinese
applicants, but to none of the nearly 200 Chinese applicants.
Held: Although ordinance is neutral on its face there was discrimination in its administration.
The central problem: ordinance doesn’t prescribe a rule or conditions for regulation, to which
all similarly situated may conform, and is based arbitrarily on the consent of the supervisors.
No reason, whatever, except the will of board is given why they shouldn’t be permitted to work.
The board discriminated against the petitioners based on hostility to their nationality and race,
this is unjustified, illegal, and a denial of the equal protection of the laws and a violation of the
14th Amendment. (Note even though non citizens are still protected).
The board provided no justification and “no reason for it exists except hostility to the race and
nationality to which the petitioners belong, and which in the eyes of the law is not justified.” (67)
Differentiated from Strauder where jury duty is a privilege of citizenship.
Plessy v. Ferguson (1896): Separate but Equal is VALID
10. Held: Segregation doesn’t violate equal protection: Laws permitting, and even requiring
separation between African-Americans and Whites don’t necessarily imply inferiority of either
race, and within States power. The law is reasonable in view of the traditions of the people,
promotion of comfort and preservation of public peace.
11. Does not imply inferiority (Compared with Strauder)
a. Strauder deprived political rights; use of racial distinctions that effect political rights,
brands of inferiority, and step towards racial subordination, but Plessy merely denied
social rights. According to the Court, the statute didn’t stamp blacks as inferior, and was
not a step towards subordination (social rights are less significant than political
rights). Social equality not a goal of the Equal Protection Clause, and could only be
attained through voluntary action by individuals and not statutes.
12. Differentiation not Arbitrary (compared with Yick Wo)
a. In Yick Wo: in Yick Wo administrative application/decision was purely arbitrary, while
in Plessy the classification wasn’t arbitrary and according to the Court was justified for
social peace, public safety, social comfort, and to avoid social tensions.
13. Precedent: Court cites Massachusetts’s statute separates blacks and whites in public schools
(Roberts v. City of Boston), which was upheld. Also, Congress, in D.C. separates by race in public
schools. Therefore they couldn’t rule the separate but equal standard was an unreasonable
standard.
14. Dissent: J. Harlan: Though facially neutral the purpose was to prevent blacks from sitting
with whites, and this interferes with their liberty. The Constitution is color-blind. The
separation is limitless, will whites and blacks have to walk on other sides of the street.
Separation runs against the purpose of the 14 th Amendment, and plants seeds of racial hatred,
and runs contrary to the purpose of the 14th Amendment. (1) Empirical justification: the real
meaning of the statute, and (2) racial distinction has the tendency to reestablish racial hierarchy,
which the 14th Amendment was designed to avoid this problem.
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15. What’s wrong with the Majority?
a. Inaccurate normative definition of equality: Substantially misread the purpose of EP:
Harlan says that racial distinction is anathematic to constitution as established by 13 th,
14th, and 15th amendment.
b. In giving an account of the nature of the decision to establish separate cars, the court is
blind to political reality. This will sow the seeds of racial hostility.
c. The court was blind to the social meaning and likely effects of its opinion. J. Harlan says
that this not only sows the seeds of racial hatred, “but it will encourage the belief that it
is possible… to defeat the benefices of the 13 th, 14th, and 15th amendments.”)
Discriminatory Purpose Shown by circumstantial evidence:
16. Rogers v. Lodge (1982): County elects 5-member Board of Commissioners via an at-large
system, whites only slight majority; no blacks ever elected to Board.
a. Held: although at-large system was facially neutral it was maintained for
discriminatory purposes, and had a discriminatory impact on the black citizens.
b. Evidence: (1) no black ever elected to Board, (2) history of discrimination against
blacks with respect to party affairs, primary and general elections, (3) unresponsiveness
of county’s elected officials to needs of black community, (4) fact state legislature’s
maintenance of the system was due to the county’s own state representatives wanting to
exclude black participation: all support Inference of intentional racial discrimination.
17. Proving Discriminatory Intent: If the statute is facially discriminatory then there is no
requirement that there be a legislative intent to discriminate. Also, if the claim is the law was
administered with discriminatory intent there is no need to prove the legislative motive
(although the defenders can claim that the law was neutral on the only problem was the
disparate administration). But when the law is facially neutral and the administration is neutral,
but the impact isn’t proving intent is much more difficult. There is no general rule: there is no
general rule that describes exactly how one demonstrates intent to discriminate: the use of
circumstantial evidence is required.
Korematsu v. U.S. (1944): Extreme Military Necessity as a Compelling state interest
18. Precedent: 1938 Gains v. Canada (if separate facilities are provided, they had to be equal. Sending
Gains out-of-state for legal education was not constitutional.)
19. Facts: post-Pearl Harbor military order excluding all persons of Japanese ancestry from certain areas of
the West Coast, resulting in their imprisonment. Roosevelt had issued order allowing military to
exclude persons for certain areas, TBD at their discretion.
20. Held: J. Black: Strict scrutiny standard: racial discrimination is admissible IFF it’s a dire
necessity and absolutely necessary. Majority upheld order despite its suspect nature: a compelling
need to prevent espionage and sabotage, and there was no practical and sufficiently rapid way for the
military to distinguish the loyal from the disloyal. Pressing public needs sometimes justifies
restrictions, which curtail the civil rights of a single racial group. To justify such an action the proper
military authorities must face the gravest imminent danger of public safety (this standard applied to
Plessy and Brown makes those statutes unconstitutional).
21. Dissent: J. Murphy: the majority’s view relied on the “assumption that all persons of Japanese ancestry
may have a dangerous tendency to commit sabotage and espionage…” But individualized loyalty
hearings could have been held at least for the American citizens. The order was based on racism,
because there is no evidence Japanese Americans posed a danger. There must be definite limits to
military discretion, especially where martial law hasn’t been declared. Problem: J. Murphy’s test would
allow the Court to challenge military actions during war.
22. Dissent: J. Jackson: no attempt was made to exclude German or Italian aliens: suggesting order was
based on racial prejudice. We can’t condone military actions that discriminate on the basis of race, but if
the military can show a reasonable relationship the Court won’t interfere. Yet, J. Jackson says the Court
must not interfere with military orders, because military leaders have expertise, and the Court
shouldn’t interfere. Jackson is Next time a military action is problematic it probably will be upheld
under Jackson’s rational.
Ex Parte Endo: handed down the same day: court would not interpret the underlying statutory and
presidential authorization to extend to the situation of imprisoning individuals who were conceded as
loyal.
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Endo was released. Woman files for habeus corpus to get her released. Court grants, saying that once a
person’s loyalty is confirmed, then there is no public necessity to detain her. However, this would seem like the
court is getting involved.
School Segregation and Its Remedies: The Brown Revolution
Since 1954 officially sanctioned segregation in all public areas, and public schools has been treated as a clear
violation of equal protection. The key issues have been: (1) how to distinguish between intention/de jure
segregation (unconstitutional) and unintentional/de facto segregation (constitutional), and (2) what are the
remedies for official segregation?
Brown v. Board of Education (1954): overrules Plessy v. Ferguson: Separate but Unequal is not
constiutional
a.
b.
c.
d.
Facts: This case is a consolidation of several different cases from Kansas, South Carolina, Virginia, and
Delaware. Several black children (through their legal representatives, Ps) sought admission to public
schools that required or permitted segregation based on race. NAACP brought these cases. The plaintiffs
alleged that segregation was unconstitutional under the Equal Protection Clause of the Fourteenth
Amendment. In all but one case, a three judge federal district court cited Plessy v. Ferguson in denying
relief under the “separate but equal” doctrine. On appeal to the Supreme Court, the plaintiffs contended that
segregated schools were not and could not be made equal and that they were therefore deprived of equal
protection of the laws.
Disposition: Warren does not give a remedy but asked for reargument in the next term.
Held: Separate but equal is unconstitutional for public schools. J. Warren: The race-based segregation
of children into “separate but equal” public schools violates the Equal Protection Clause of the Fourteenth
Amendment and is unconstitutional. “We conclude that in the field of public education the doctrine of
‘separate but equal’ has no place. Separate educational facilities are inherently unequal.”
i. Segregation of children in the public schools solely on the basis of race denies black children the
equal protection of the laws guaranteed by the Fourteenth Amendment, even though the physical
facilities and other may be equal. Education in public schools is a right that must be made available
to all on equal terms. Segregation inherently “generates a feeling of inferiority as to their status in
the community.”
ii. The question presented in these cases must be determined not on the basis of conditions existing
when the Fourteenth Amendment was adopted, but in the light of the role of public education in
American life today. The separate but equal doctrine adopted in Plessy v. Ferguson, which applied
to transportation, has no place in the field of public education.
iii. The impact of segregation is greater when it has the sanction of law. A sense of inferiority affects
the motivation of a child to learn. Segregation with the sanction of law tends to impede the
educational and mental development of black children and deprives them of some of the benefits
they would receive in an integrated school system. Whatever may have been the extent of
psychological knowledge at the time of Plessy v. Ferguson, this finding is amply supported by
modern authority and any language to the contrary in Plessy v. Ferguson is rejected.
iv. To separate African-American children solely on the basis of race generates feelings of inferiority as
to their status in the community that may affect their hearts and minds in a way unlikely to ever be
undone…the policy of segregating the races is usually interpreted as denoting inferiority…A sense
of inferiority affects the motivation of a child to learn…has the tendency to retard the educational
and mental development of the children, and to deprive them of some of the benefits they would
receive in a racially integrated school system.
After Plessy v. Ferguson: we had over 50 years of experience with segregation and recognized the
detrimental effects of racial segregation. The Court relied on empirical evidence: findings by psychologists
and educators: segregation gave black pupils a sense of inferiority, which in turn impaired their motivation
to learn and their success at learning.
i. Problems with the Brown holding:
1. The Court was relying principally on social science and empirical evidence, but if that is the
basis for the Court’s decision it may be criticized: leaves open possibility of litigation:
whether the inferiority effect of segregation does exist in their school: the constitutional
rights of citizens should rest on science, which can be overturned or challenged,
2. Doesn’t necessarily extend the effect of separation to non-school settings like water
fountains, and
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Doesn’t take into account that politically powerless minorities won’t have power to ensure
that the education program is in fact equal
The moral import of desegregation.
Boiling v. Sharpe (1954): Desegregation is also applicable to the federal government
e.
f.
g.
Facts: Black children were denied admission to public school where exclusively white students attended.
Issue: Under constitutional law, does the denial of black children the right to attend an all-white school
violate the 5th amendment?
Holding: Yes. The 5th amendment protects life, liberty and the pursuit of all happiness, not just physical,
but intellectual freedoms as well. (could not rely on Equal Protection clause b/the 5 th amendment does not
have one.)
i. The 5th amendment protects the freedom of life, liberty and the pursuit of happiness in education,
as well as all facets that the government controls and protects under its laws.
ii. The court used the 5th amendment here to get around the fact the 14th amendment does not
protect those citizens of Washington, D.C. Since the 5th amendment has a due process clause as
well, the court found there to be equal reason to provide for protections under the decision of
Brown for D.C. The key term used was "liberty," which was held by the court to be more than
merely bodily freedom, it also means a freedom to learn, as well as all the other freedoms granted
by the constitution, as long as they do not violate government standards.
1. Classifications based solely on race must be subject to scrutiny because they are against
our traditions and constitutionally suspect (PP)
Brown II (1955): Remedies/Implementation of Desegregation (enforcement) with All
Deliberate Speed
Violation: 14th Amendment. There has to be a prompt and reasonable effort at compliance with Brown I. Actual
requirements: have to give the option of attending any school (avoid racial discrimination) but do not have to
actually active integrate schools.
a. Facts: A decree forbidding a school from classification based on race is inadequate. The effect is the same.
Without active integration, there is little difference. If Brown is tenant on effects, then proactive measures is
necessary. (Green v. New Kent Cty)
b. Boiling would say that we need an actual action to eliminate unconstitutional effects.
c. Lower federal courts: gave federal districts primary responsibility for supervising desegregation, because
of their proximity to local conditions, the “possible need for further hearings,” and local courts would be
better suited to judge whether local school officials were implementing the order in good faith.
d. Equitable principles: Court gave no precise guidelines for carrying out desegregation. Instead, district
courts directed to use “equitable principles.”
e. Held: We need “All deliberate speed”: Usually plaintiff whose constitutional rights are violated is entitled
to immediate relief, but Court concerned chaos and violence might ensue if desegregation was carried out
immediately. Court authorized district courts to take into account public interest in eliminating segregation
in a systematic and effective manner. The burden of proof for need for delay was placed on school boards,
and the lower courts were ordered to implement with all deliberate speed. Courts may consider problems
related to administration, school transportation, personnel, revision of school districts, revision of local
laws, and adequacy of plans the defendants have proposed.
f. Reasons for allowing time for implementation: (1) school year is going on, and might be detrimental to
change students’ schools in the middle of the year, (2) there are administrative implementation issues that
might take time, and (3) local application of the ruling might be more effective.
b. The Aftermath of Brown II: Most school districts don’t cooperate for almost a decade. Court doesn’t
intervene:
Cooper v. Aaron (1958)
Governor of Ark. uses national guard to block desegregation, but the Court refuses to grant the school district an
extension in desegregation, because the Court didn’t want to compromise the constitutional rights of black
children as a result of the governor’s actions.
Some School districts: resist this by drawing boundaries, and allowing students to opt out.
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City shuts down the school, and the Court holds the City can’t shut the school down to avoid the implementation.
City could shut schools under some circumstances, but not for an unconstitutional purpose, which avoiding
desegregation was.
Social views change: people begin to embrace desegregation, and Civil Rights Act of 1964 is enacted:
gave federal government a large lever with which to move Southern School Districts (could withhold
funding). Racially neutral systems that lead to a continuation of a previously dual-race system
nonetheless violates constitutional imposed by Brown:
Green v. County School Board (1968): freedom of choice plan: student could attend school of
his choice, which didn’t result in desegregation: in school district with 50% blacks, no whites
chose to go to the formerly black school, and 85% of the blacks remained. The Court held this
plan didn’t adequately desegregate.
Green’s importance: The first case the Court attached explicit importance to the effect of
desegregation measures, and not merely to the intent with which those measures were enacted.
Good intentions weren’t enough, effect was central, and whatever it took was necessary. Obliged to
eliminate racial segregation and not only cease to classify based on race.
Two ways of looking at Green:
1. Fundamental concern with impact of racial segregation
2. Has to do with effects of prior racial classification (tendency to continue to
cluster at home schools.)
Swann v. Mecklenburg Sch. Dist. Court upheld a plan that used busing to compel
desegregation, but only if the distances weren’t too great.
Court ruled that federal courts can’t order desegregation unless it was de jure/intentional segregation. Ratio:
courts can determine what the ratio of blacks to whites should be. Single race schools aren’t necessarily a
problem, but must be scrutinized carefully and the school must show that the racial concentration isn’t due to
official segregation. Attendance zones can be re-drawn to allow for desegregation, and the new zones don’t
necessarily have to be compact and contiguous.
Keyes v. Indep. Sch. Dist. No. 1 (1973): First of northern segregation cases. First time Court
confronts what obligations schools boards have in districts that were not explicitly segregated.
Court must look to the intent with which the boundaries are drawn. Raises the question of what happens when
you have schools separated on the basis of race without previous explicit segregation. Once there is a showing of
intentional segregation in one area, the court may infer that there was segregative intent (proof of burden
passes to school district.)
b. Recognition that explicit racial classification can also result from distinctions that have the
effect of generating segregation and are intended to generate that effect.
c. A showing that a school board is running a system that is racially separated and has sought
racial segregation in some areas, school has burden of proof to show that racial intent did not
motivate everything. When faced with racially intended segregation, then there must be action
to rectify it.
Milliken v. Bradley (1974): End of unlimited desegregation
23. Facts: Court finds that the city of Detroit, with collaboration with state of MI., to consciously achieve
segregation. White flight occurs and it becomes almost impossible to generate a desegregation program
that would actually desegregate.
24. Held: the remedy could go no further than to impact those who had violated the constitution or
situations in which constitutional violation could be shown to have generated segregation. The
segregation between city and suburbs was not a result of governmental action. Court essentially
immunized effects of boundaries, holding that school district boundaries can’t be altered through
court order unless the boundaries are set up to achieve segregation. Even if school system is
segregated, there needs to be intent to engage in segregative actions.
25. Effect: northern school district boundaries are unbridgeable; schools in the north are segregated.
Effectively made preexisting boundaries drawn without segregative intent into firewalls against
integration.
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1973 - 1975: Question becomes, may the courts continue to police education to enforce
desegregation?
Once there has been an achievement of the elimination of prior de jure segregation, there is no longer
an obligation of municipalities to continue that level of integration. There is no longer a right to invoke
the authority of the courts to achieve that goal. Oklahoma City v. Dowell (1991); Mo v. Jenkins (1995)
Suspect Classifications: Strict Scrutiny Standard
Anderson v. Martin (1964)
Loving (1967)
Hunter v. Erickson (1969)
Griggs v. Dukes Power (1971)
Lau (1974)
Washington Davis (1976)
Arlington Heights (1977)
Palmore (1984)
Principles: Classifications must be necessarily and narrowly tailored to achieve legitimate ends.
Rational Basis Review: 1) distinction must be in pursuit of Legitimate Interest and 2) the two must be rationally
related
Racial classifications/Strict Scrutiny Test: The court has held that race classifications require Strict Scrutiny:
compelling state interest + use of classification was narrowly tailored to achieve that ends (necessary means.)
1) Compelling state interest and 2) distinctions are necessary to the accomplishment of achieving this
compelling state interest (narrow tailoring) (In Korematsu, the compelling state interest was
imminent invasion. The interest has to be more than ease or money saving.)
Facially neutral, but racially disparate impact procedure:
P can invoke Strict Scrutiny via a prima facie case by pointing out racial purpose (invoking a prima facie
case.) (Washington v. Davis: must have invidious intent; Arlington: needs racial purpose.) judge is
entitled to take disparate impact into account in evaluating racially problematic purpose. Often, factfinder may determine that a dramatic disparate racial impact to be purposeful. However, the court is
also compelled to figure out what a governmental official would have done absent racial invidious
purpose: requires judges to mentally inhabit the world of the decision-maker.)
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Without purpose, then Rational Basis Review is used.
If purpose is established. D can rebut prima facie case by saying that the same result would have
happened in the absence of that purpose. If D cannot do so, D must show a compelling state interest.
Problems: People like John Knox are rare. Without explicit purpose, then it is up to P to generate
enough evidence to persuade court of racial purpose. Much turns on the decision making capacity of
fact finder. Even in the absence of showing of racially invidious purpose, the impact may be quite
dramatic.
Identification of Candidates: Anderson v. Martin: Court struck down law requiring each
candidate’s race appear on a ballot, because the statute was designed to help white candidates at
the expense of black candidates. Racial classification is not okay when it promotes racism.
Interracial Marriage: Loving v. Virginia (1967): identical and symmetrical punishment is not
okay for discrimination. Racial classification must in fact achieve a permissible objective.
a.
b.
Facts: statute prevents and makes criminal interracial marriages. State claims the
statute applies equally to blacks and whites, because each group is punished equally.
Held: Statute violates equal protection. Court rejected the state’s “equal application”
justification, because the clear and central purpose of 14th Amendment was to eliminate
all official state sources of invidious racial discrimination in the States. The statute rests
solely upon distinctions drawn according to race, and to be upheld it must be necessary
for the accomplishment of some permissible state objective, independent of racial
discrimination. There is patently no legitimate overriding purpose independent of
invidious racial discrimination, which justifies this classification.
Child Custody: Palmore v. Sidoti (1984): Interest must be compelling and the means must be
necessary to achieve the legitimate end
c.
d.
Facts: two white parents divorce, custody of child given to mother, who then married a
black man, and courts transferred custody to father because, if the daughter remained
with mother and stepfather, she would become, “vulnerable to peer pressures and suffer
from the social stigmatization that is sure to come.”
Held: Reversed; Even though private biases the lower court relied on are real, law may
not directly or indirectly give effect to such private prejudices. The state’s goal of
awarding custody based on the best interests of the child was sufficiently
compelling, but that succumbing to private prejudices wasn’t a necessary means
to accomplish that goal.
i. Court accepts that granting custody based on interests of child is an
“indisputable interest.” However, the racial interests reflected in this is not
legitimate.
ii. The use of race considerations in these instances is subject to strict scrutiny,
and few such uses survive
Prisons: Johnson v. California (2005): Strict Scrutiny Standard for all racial classifications.
e.
Facts: California prisoner Garrison Johnson alleged in federal district court that the
California Department of Corrections used race to assign temporary cell mates for new
prisoners. Johnson alleged this violated the U.S. Constitution's equal protection clause.
The district court and a federal appellate court ruled against Johnson. The appellate
court pointed to the U.S. Supreme Court's 1987 decision in Turner v. Safley and
the Turner Test, which said a relaxed standard - as opposed to a "strict scrutiny"
standard - should be used to determine whether prison regulations are constitutional.
The prison's policies were "reasonably related to the administrators' concern for racial
violence and thus must be upheld," the appellate court wrote.
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g.
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Held: A state's practice of temporary racial segregation of state prisoners subject to
strict scrutiny. All racial classifications are subject to strict scrutiny and racial
segregation should be treated like any other racial classification.
i. J. O'Connor: prison racial-segregation policies are subject to strict scrutiny. The
Court rejected the claim that because the policy was "neutral" - because all
prisoners were "equally" segregated - the policy was not subject to strict
scrutiny. Racial classifications must receive strict scrutiny even when they may
be said to affect the races equally. The point here is that we apply SS to all racial
classifications “to smoke out illegitimate uses of race” and compliance with 14th
amendment’s ban on racial discrimination… bolsters society.
ii. Disposition: remand the case so that the Ninth Circuit could use strict scrutiny
to review the policy.
iii. Does not say it is invalid per se. Strict scrutiny is not “strict in theory, fatal in
fact.”
iv. This is the bookend to Korematsu.
Dissent: Stevens: this is a violation of EP. There is no compelling interest. Should have
been invalidated. There is no reason to believe that CA cannot conduct individualized
investigations like other states.
Dissent: J. Thomas & Scalia: this will survive Strict Scrutiny and there is a compelling
interest
i. Prisons are given deference. Prisons are dangerous places with violent gangs
that are organized along racial lines. The regulations/segregation is legitimately
related to providing peace in the penal system. CA has a history with racialized
gangs unlike any other state (uniquely violent position.) There is no other
reason besides prace and safety of inmates and guards.
ii. Inmates have less constitutional protection than free citizens once they are
convicted and incarcerated.
The Impact Analysis Test: Today, we require Discriminatory Intent (Wa. v. Davis)+
Discriminatory Impact
1964: Civil Rights Act
Title II: Outlawed discrimination in hotels, motels, restaurants, theaters, and all other public
accommodations engaged in interstate commerce; exempted private clubs without defining the term
"private."
Title IV: dedicates federal funds to education, but in order claim them, state and local entities
have to demonstrate that they don’t run segregated school systems (incentive to achieve Brown)
Title VI: prohibits entities that receive federal funds from engaging in denial of benefits or
discrimination in any program/activity receiving federal assistance on the grounds of race, color, or
national origin. (Lau)
Title VII: employers who affect interstate commerce from discrimination on the basis of race,
color, national origin, or sex OR acting in a way that tends to deny any individual employment
opportunities because of race, color, national origin, or sex. (Griggs)
Procedure: P must show racial intent. Not necessary to show explicit or announced invidious intent, but
must be enough to allow fact-finder to infer racial intent. Then, burden shifts to D to disprove.
Problem: What happens when the racial classification is not explicit?
1.
Problems with Impact Analysis:
a. How necessary must the statute be to justify the impact. The Court’s analysis into this issue
could lead to an over-intrusion into the legislation.
b. Almost every legislative action has disparate impact, and the Court may be forced to analyze
areas that the Court doesn’t have a particular expertise.
c. We don’t live in a society with two racial groups, what if the policy benefits one group but
disadvantages more than one other group.
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Impact analysis works at a group level, but looses the moral force of the equal treatment norm
embodied in Bolling v. Shape.
Racial Classes and the Political Process: The Court hasn’t hesitated to strictly scrutinize and strike down use
of racial classes as part of the political process.
Guinn & Beal v. U.S. (1915): elections officers prosecuted for violating federal prohibition on
racial discrimination: “federal crime to deprive someone the right to vote on the basis of race.”
2.
3.
Defense: election officers were acting according to a Constitutional Amendment: requires literacy to
vote.
Held: the Amendment violates the 15th Amendment. Court focused on the effect/impact of the
grandfather clause, and why the year 1866 was chosen? The purpose was to avoid the effects of the
15th Amendment and the Civil Rights Act adopted in 1866. Here, as in Yick Wo v. Hopkins there was
a 1 to 1 ratio between the supposed racially neutral policy, and the disproportionate effect on a
minority group. The supposedly neutral policy served as pretext to promote racially invidious
and discriminatory policies, and statute had a racially hostile intent; reduce a minority group to a
subordinate status.
a. Grandfather Clause in the Amendment: if one could vote before 1866 or you are child of one
who could vote before 1866 you don’t have to be literate.
b. Problem the Grandfather Clause creates: disproportionably favored whites over AfricanAmericans
c. In Guinn, was the unconstitutional evil of the Constitutional Amendment a defect in the purpose
behind the Amendment, or something else? If it was the purpose, whose purpose was it, and how
was it proved? How would the court treat the literacy test without the grandfather clause?
Compare Justice Kennedy’s comments in Rice v. Cayetano 528 U.S. 495 (2000)(invalidating a
provision of the Hawaii state constitution that reserved the right to vote for the governors of
trusts benefitting Native Hawaiians to individuals whose ancestors had been residents of Hawaii
at the time of its annexation): As for the further argument that the restriction differentiates even
among Polynesian people and is based simply on the date of an ancestor's residence in Hawaii,
this too is insufficient to prove the classification is nonracial in purpose and operation. Simply
because a class defined by ancestry does not include all members of the race does not suffice to
make the classification race neutral. Here, the State's argument is undermined by its express
racial purpose and by its actual effect…”
Identification of Candidates: Anderson v. Martin: Court struck down law requiring each
candidate’s race appear on a ballot, because the statute was designed to help white candidates at
the expense of black candidates. Racial classification is not okay when it promotes racism.
More difficult procedures: Legislation that modifies the political process to make certain
types of political action more difficult for a racially discriminatory purpose is subject to strict
scrutiny:
Hunter v. Erickson (Akron, 1969): Facially neutral but effectively discriminatory
4.
5.
6.
Facts: in 1964, Akron enacted fair housing ordinance that recognized need to regulate real estate
market to avoid substandard, ghetto housing through police power. This allowed them to counteract
discrimination in real estate market. The ordinance was repealed and voters changed the city charter
saying that any new ordinances that regulated real property on the basis of race, color, religion,
national origin or ancestry must first be approved by a majority of the electorate before it can become
effective.
Held: J. White:
a. Although facially neutral, the reality is that the law’s impact falls on the minority—an effort to
but a political roadblock that is condemned by 14 th amendment.
b. The new ordinance violates the Equal Protection Clause: (1) explicit racial classification, and
(2) clearly made more difficult to enact anti-discrimination ordinances than other types of
ordinances. The new law disadvantages those who would benefit from laws barring racial,
religious, or ancestral discrimination in the real estate market.
Dissent: J. Black: States have right to repeal laws, even if this offends the Court’s sense of “justice.”
Equal Protection should not be used as a weapon to prevent the exercise of this right. While Marbury v.
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Madison allows Court to strike down bad state laws, it does not allow the Court to “but roadblocks to
prevent States from repealing these laws.”
In Hunter v. Erickson , if the law "on its face treats Negro and White, Jew and gentile in an identical
manner", why is the law unconstitutional? Who adopted the challenged charter amendment? Does the
court rely on the amendment's "purpose?”
Federally Funded Programs and Title VII: We don’t require proof of intent, but rather only that
the effect of the legislation is to disproportionately hurt racial minorities.
a. Lau v. Nichols (1974): discrimination that has the effect of unequal treatment “even though
no purposeful design is present.” Protection of equal opportunities, not just of equal respect.
i. Facts: SF public integrated school system had 2,856 students of Chinese ancestry that
didn’t speak English, about 1,000 were given supplemental English courses, but
remaining 1,800 students didn’t.
ii. Held: J. Douglas: violates students’ civil rights: students who receive the same
facilities, textbooks, teachers and curriculum but who don’t receive supplemental
English courses are foreclosed from any meaningful education and makes “a mockery
of public education.”
1. Court didn’t rely on 14th Amendment’s EP clause (preserves constitutional
capital.) Instead, Court applied Title IV of the Civil Rights Act, which bans
discrimination based on the grounds of race, color or national origin in any
program or activity receiving federal funding. The school district receives
large amounts of federal funding. Chinese-speaking minority receives fewer
benefits than the English-speaking majority, because they are denied
meaningful opportunity to participate.
iii. In Lau, what was wrong with the school board's policy of teaching in English? How can
uniform treatment be said to be a denial of equality?
1. The Rehnquist Court eliminated the statutory cause of action invoked by the
plaintiffs in Lau v. Nichols in Alexander v. Sandoval 532 U.S. 275 (2001)
which involved a refusal by the state of Alabama pursuant to its 1990 “English
only” constitutional amendment to cease providing drivers license tests in
Spanish. The state provided accommodations for English speakers who were
illiterate, and until 1990 provided tests in 14 languages. The Supreme Court held
that, as a procedural matter, there was no cause of action available to private
plaintiffs for violation of the Title VI disparate impact regulations. It
distinguished Lau as an artifact of an earlier procedural regime.
2. Note, however, that the Equal Educational Opportunity Act of 1974 20 USCS §
1703(f), adopted in 1974, seems to codify the result in Lau in the context of
education.. It provides a separately enforceable obligation: “No State shall deny
equal educational opportunity to an individual on account of his or her race,
color, sex, or national origin, by... (f) the failure by an educational agency to take
appropriate action to overcome language barriers that impede equal
participation by its students in its instructional programs.”
3. In Horne v. Flores, 129 S. Ct. 2579 ( 2009) Justice Alito authored an opinion
for a five member majority overturning on procedural grounds an injunction
granted under § 1703(f) which required funding of a “English Language
Learners” programs by public schools in Arizona. The opinion noted that the
Ninth Circuit had held that the statute “which was enacted pursuant to Section 5
of the Fourteenth Amendment...validly abrogates the States’ sovereign
immunity”, but “the issue is not before us in these cases.”
b. Griggs v. Duke Power Co.: prohibits employment practices that “adversely affect” an
employee’s status “because of an individual’s race, color, religion, sex or national origin.”
i. Facts: Criteria for promotion out of the labor dept is (1) pre-1955: be white and (2)
post-1955: HS diploma or equivalency test  Worked against blacks and produced
disparate impact because only 12 % had diploma. In 1965 Duke institutes new policy
under which employees could be promoted out of labor by passing 1 of 2 high school
equivalency tests. Duke promotes only 3 Blacks who meet requirements. Other Black
employees seek injunction requiring Duke to discontinue testing and diploma policies.
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ii. Rule: Title VII prohibits practices that might be fair in form, but discriminatory in
operation. Company required a high school degree before one could be hired,
1. 703(a)(2): It shall be an unlawful employment practice for an employer to
limit, segregate, or classify his employees…in any way which would
deprive…any individual of employment opportunities…because of such
individual’s race, color, religion, sex, or national origin.
2. 703(h): Safe-Harbor Provision: …nor shall it be an unlawful employment
practice for an employer to give and to act upon the results of any
professionally developed ability test provided that such test, its
administration or action upon the results is not designed, intended, or used to
discriminate because of race…
iii. PP: Boreman on 4th Circ says discrimination is not actionable: Diploma requirements
are “professionally developed” and “presumptively acceptable.”
iv. Held: Court held it violated Title VII, because 3 times as many whites met the
requirement than blacks, and the requirement didn’t bear a demonstrable relationship
to successful performance of the jobs for which it was used. Here, touchstone is
business necessity: policy must be related to sound job performance.
1. “a neutral superstructure built upon racial patterns that were discriminatorily
erected in the past come w/in Title VII ban. …Duke “freezes” people out of
inside depts. (J Sebollof’s dissent in 4th circuit)
2. Disparate impact sufficient
3. Testing + diploma are functional equivalents of denying promotion
based on race.
4. Agreement with EEOC interpretation: educational and testing requirements
irrelevant to job qualifications should be forbidden. Effects-based approach
that bars practices w/ demonstrable racial effect.
v. NOTE: As constitutional interpretation, would not be unconstitutional (Washington
v. Davis – EP challenge to DC Police Dept: have to show actual discrimination for
constitutional claim).
vi. FALLOUT: Employers d/ not want to be accused of neutral practices that engender
disparate impact, so they enact “voluntary” affirmative action plans.
vii. Is the purpose of the equal protection clause to punish governmental actors for "mens
racist” or to protect citizens against oppression? Consider the observation of Justice
Kennedy, concurring in Parents Involved in Cmty. Sch. v. Seattle Sch. Dist. No. 1, 127 S. Ct.
2738, 2795 (2007). “ From the standpoint of the victim, it is true, an injury stemming
from racial prejudice can hurt as much when the demeaning treatment based on race
identity stems from bias masked deep within the social order as when it is imposed by
law. The distinction between government and private action, furthermore, can be
amorphous both as a historical matter and as a matter of present-day finding of fact.
Laws arise from a culture and vice versa. Neither can assign to the other all responsibility
for persisting injustices.”
c. In Minnesota v. Russell 477 N. W. 2d 886 (1991), the Minnesota Supreme Court confronted a state
statute which made possession of 3 grams of crack cocaine punishable by 20 years in prison, while
possession of a similar amount of cocaine powder was punishable by 5 years in prison. "The trial court
found that crack cocaine is used predominantly by blacks and that cocaine powder is used predominantly
by whites." The majority commented that "There comes a time when we cannot and must not close our
eyes when presented with evidence that certain laws, regardless of the purpose for which they were
enacted unfairly discriminate on the basis of race." It held, however that the issue "need not be decided "
and struck down the statute under Minnesota's state equal protection doctrine as lacking in "rational
basis.”
The general requirement of discriminatory intent: Intent to discriminate must be found
before an equal protection racial discrimination claim can succeed.
a. Washington v. Davis (1976):
i. Facts: African-American police officers claim Department’s recruiting procedures
discriminate on basis of race through use of a written test, which excluded 4 times as
many blacks than whites. Ps claimed this disparate impact made the hiring
procedures violate equal protection even though there was no intent to discriminate.
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ii. Held: J. White: The test is valid and constitutional: racial discrimination violates the
Equal Protection Clause only when it is a product of discriminatory purpose.
1. The court has never held that “a law or other official act, without regard to
whether it reflects a racially discriminatory purpose, is unconstitutional solely
because it has racially disproportionate impact. [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.”
2. Court looked at the recruitment practices of the Department, recognizing that
they were actively recruiting Black officers. The recruiting results (44%) was
roughly proportional to the amount of black applicants.
3. The court does not preclude the conclusion that there may be hidden
invidious intent. If, for example, another P emerges with a memo from
Commissioner declaring racist intent, this would be different.
4. Slippery slope: disparate impact is everywhere.
b. Arlington v. Metropolitan Housing Corp. (1977): challenge to suburb’s refusal
to grant request to rezone certain property from single-family to a multiple-family
classification: non-profit developer planned to build federally subsidized units in a
largely white suburb for low to moderate-income tenants that included racial minorities.
Held: J. Powell: government action was constitutional: underlying purpose of the
refusal wasn’t to discriminate.
i. Factors to use in order to uncover legislative intent: (1) impact of the action
(a statistical pattern that can be explained only by discriminatory purpose,
though Court warns this is rare) See Yick Wo. (2) historical background of the
decision, See Guinn. (3) specific sequence of events leading up to challenged
action, (4) substantive departures from normal procedural sequence, and (5)
legislative or administrative history of the act
ii. Applied to Arlington: there was no demonstration of discriminatory intent,
because little about the sequence of events leading up to the decision would
spark suspicion.
c. When racial classifications are explicit, no inquiry into legislative purpose is necessary.... A
facially neutral law, on the other hand, warrants strict scrutiny only if it can be proved that
the law was "motivated by a racial purpose or object,” or if it is "'unexplainable on grounds
other than race,'" The task of assessing a jurisdiction's motivation, however, is not a simple
matter; on the contrary, it is an inherently complex endeavor, one requiring the trial court
to perform a "sensitive inquiry into such circumstantial and direct evidence of intent as
may be available." Hunt v. Cromartie 526 U.S. 541 (1999); See Reno v. Bossier Parish
School Board 520 U.S. 471 (1997) (Arlington Heights has served “as the framework for
examining discriminatory purpose in cases brought under the Equal Protection Clause for
over two decades”); City of Cuyahoga Falls v. Buckeye Cmty. Hope Found., 538 U.S. 188,
194-97 ( 2003)(relying on Arlington Heights).
d. See also: Iqbal: “Taken as true, these allegations are consistent with petitioners'
purposefully designating detainees "of high interest" because of their race, religion, or
national origin. But given more likely explanations, they do not plausibly establish this
purpose. The September 11 attacks were perpetrated by 19 Arab Muslim hijackers who
counted themselves members in good standing of al Qaeda, an Islamic fundamentalist
group. Al Qaeda was headed by another Arab Muslim -- Osama bin Laden -- and composed
in large part of his Arab Muslim disciples. It should come as no surprise that a legitimate
policy directing law enforcement to arrest and detain individuals because of their
suspected link to the attacks would produce a disparate, incidental impact on Arab
Muslims, even though the purpose of the policy was to target neither Arabs nor Muslims.....
As between that "obvious alternative explanation" for the arrests, and the purposeful,
invidious discrimination respondent
asks us to infer, discrimination is not a
plausible conclusion. [sic].”
How to uncover intent: The law must either have a racially discriminatory purpose expressly or on
its face, be neutral on its face but be applied discriminatorily (Yick Wo) or from relevant facts
discriminatory purpose can be inferred.
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Disparate Impact: law that is neutral on its face, and serves ends within the power of the
government, isn’t invalid simply because its effect on one race disproportionately to another.
Disproportionate impact is a factor in ascertaining intent, but it can never by itself be sufficient
to prove discriminatory intent. In this case, the police department’s affirmative efforts to
recruit more black policemen negate any finding of discriminatory intent in the use of the
verbal test.
Under Civil Rights Act: Title VII: a hiring practice that has a substantial disparate impact on
one group is stricken even in the absence of discriminatory intent. Rationale: The absence of
the intent requirement would invalidate “a whole range of tax, welfare, public service,
regulatory, and licensing statutes that may be more burdensome to the poor and to the average
black than to more affluent whites.”
Edwards v. Aguillard (SCOTUS 1987): law mandating teaching of creationism is
unconstitutional
i. Facts: LA statute requiring creationism to be taught in public schools.
ii. Held: J. Brennan. Unconstitutional: advances a religious doctrine by requiring
exclusion of Evolutionary science or presentation of a religious viewpoint that reject
evolution completely. Its primary purpose is to change the scientific curriculum of
public schools to further a particular religious doctrine over evolutionary science, this
constitutes an impermissible endorsement and seeks to use symbolic and financial
support of Govt to achieve a religious purpose. Fails the Lemon Test (Lemon vl
Kurtzman, 1971):
1. The government's action must have a legitimate secular purpose;
2. The government's action must not have the primary effect of either advancing or
inhibiting religion; and
3. The government's action must not result in an "excessive entanglement" of the
government and religion.
4. Although the Louisiana legislature had stated that its purpose was to "protect
academic freedom," that purpose was dubious because the Act gave Louisiana
teachers no freedom they did not already possess and instead limited their
ability to determine what scientific principles should be taught. Because it was
unconvinced by the state's proffered secular purpose, the Court went on to
find that the legislature had a "preeminent religious purpose in enacting this
statute."
iii. Dissent: J. Scalia (with Rehnquist): accepted stated purpose (“protecting academic
freedom”) as legitimate and sincere purpose. They construed the term "academic
freedom" to refer to "students' freedom from indoctrination", in this case their
freedom "to decide for themselves how life began, based upon a fair and balanced
presentation of the scientific evidence". However, they also criticized the first prong of
the Lemon test, noting that "to look for the sole purpose of even a single legislator is
probably to look for something that does not exist".
The Discriminatory Intent need not be sole motive: The discriminatory purpose need not
be the sole motive for enacting the statute. It is enough that it is a motivating factor in the
legislature’s decision to enact the statute.
i. When there are two Motivations: If there are two purposes that motivated the
legislature to act, and only one was discriminatory the presence of the second, nondiscriminatory motive, won’t immunize the statute from strict scrutiny. As long as the
legislature would not have passed the statute had the discriminatory motive not been
present, the existence of the other motive is irrelevant.
1. Hunter v. Underwood (1985): Alabama Constitution contains provided
for disenfranchisement of person convicted of a crime involving moral
turpitude, as well as other enumerated crimes: disenfranchised 10 times as
many African-Americans as whites.
a. Held: unconstitutional: though neutral on its face and applied
equally to anyone falling into the categories enumerated, the impact
was racially discriminatory, and the intent and purpose was to
discriminate
i. Proof: President of the Ala. Const. Convention, John B. Knox,
said the purpose of the convention was to establish white
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supremacy within the state within the limits of the
Constitution.
ii. The Secondary Motive: law was enacted to disenfranchise
low-income whites as well, but disenfranchisement of blacks
was the “but for” motivation for the law, and thus secondary
motive is irrelevant.
b. See City of Cuyahoga Falls v. Buckeye Cmty. Hope Found., 538 U.S. 188 (
2003), the Court rejected a challenge to implementation of a
referendum process which sought to bar low income housing from a
community. The Court stated that “statements made by decisionmakers
or referendum sponsors during deliberation over a referendum may
constitute relevant evidence of discriminatory intent in a challenge to
an ultimately enacted initiative” citing Arlington Heights. But the
referendum was ultimately declared to be invalid by the Ohio Supreme
Court as inconsistent with Ohio’s referendum procedure, and the
process of putting the referendum on the ballot was said to be
uninfected by “racially discriminatory purpose or intent”: “First, in
submitting the referendum petition to the voters, the City acted
pursuant to the requirements of its charter, which sets out a facially
neutral petitioning procedure. By placing the referendum on the ballot,
the City did not enact the referendum and therefore cannot be said to
have given effect to voters' allegedly discriminatory motives for
supporting the petition.
Shifting Burden of Proof: P must only show the discriminatory intent was a motivating or
substantial factor; once this is done the burden shifts to the defenders to show that the statute
would have been passed anyway, even without the discriminatory intent. The issue is whether
the discriminatory intent was the “but for” cause of the enactment. In Hunter v. Underwood:
the desire to disenfranchise poor whites wasn’t a sufficient motivation to lead to enactment:
the attempt to disenfranchise blacks was the “but for” cause of the enactment.
The act must be enacted “because of” not “in spite of” the discriminatory intent: The
statute must have been enacted “because of” a desire to bring about a discriminatory impact,
not merely “in spite of” the probability of such an impact.
i. Personnel Administrator of Mass. v. Feeney (1979):
1. Facts: Involved gender discrimination challenge to law granting absolute
lifetime hiring preference to any veteran passing a test for state civil service
jobs, which operated to the overwhelming advantage of males (over 98% of
the veterans in the state were men).
2. Held: J. Stewart: The preference is constitutional: the statute wasn’t
intentional gender-based, either overly or covertly. The law also
disadvantaged many men.
a. “In spite of” not enough: Court accepted contention legislature knew
the law would heavily favor men. But awareness of consequences
wasn’t sufficient to prove discriminatory intent unless the legislature
chose to enact the statute “because of” and not merely “in spite of” its
adverse effect on women. There was no evidence the disparate impact
on women was, in the legislatures mind anything more than a
foreseeable but undesired inevitable by-product of the decision to
favor veterans.
3. Dissent: J. Marshall: This law is purposeful gender-based discrimination,
because the preference renders desirable state civil service jobs almost
exclusively for males. Though neutral in form, the law isn’t neutral in
application, and the impact was foreseeable. The legislative history reflects
the state’s recognition of the impact of the preference system.
The use of statistics to prove discriminatory intent: since disproportionate impact is
considered a factor in proving discriminatory intent, though never enough if it is the sole
factor, the claimant often uses statistics to show the degree of disproportionate impact. In
general, the Court allows the use of such statistical proof.
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i. Heavy weight is given to statistics in discretion cases: When claim is an individual
selection process is discriminatorily performed by administrative officials heavy
weight is given to statistical proof. Here, it would be difficult to gauge the subjective
intent of the administrators without the use of the statistical proof, and the Court is
less willing to defer to administrative decisions than legislative decisions. Yick Wo v.
Hopkins is an example of this type of case.
ii. Prosecutor’s Peremptory Challenges: Statistics are one of the ways to prove
discrimination by prosecutors in their use of preemptory challenges (enable either
side to excuse some potential jurors without cause). Race based challenges aren’t
allowed: Prosecutors can’t use these challenges based solely on the race of the juror.
1. Batson v. Kentucky (1986): “A defendant may make a prima facie showing of
purposeful racial discrimination by relying solely on facts concerning jury
selection in his case.”
a. Dissent: “unadulterated equal protection analysis is simply
inapplicable to peremptory challenges exercised in any particular
case,” and objected to the restriction on “the historic scope of the
peremptory challenge: previous cases held without violating equal
protection, a prosecutor may use peremptory challenges to strike all
blacks from the jury pool: “To subject the prosecutor’s challenge to
the demands of equal protection would entail a radical change in the
nature and operation of the challenge, because the challenge is to be
exercised without reason, without inquiry, and without being subject
to the court’s control.”
2. Voting Rights: Statistics can be important in voting rights cases: Rogers v.
Lodge (1982), supra.
iii. Statistics and Application of the Death Penalty:
1. McKlesky v. Kemp (1987):
a. Held: the death penalty was administered in a constitutional manner.
b. Discretionary Judgments: implementation of laws requires
discretionary judgments, because such judgment is essential to the
criminal process, and thus there must be more clear proof of intent to
discriminate than just statistics.
c. The Baldus Study: is clearly insufficient to support McKlesky’s
inference that the decisions are made for discriminatory purposes.
d. Discriminatory Intent: There is no evidence the statute was enacted
with a discriminatory intent, nor does the legislature maintain the
statute “because of” the Baldus study.
e. Dissent: Georgia’s legacy of race-conscious criminal justice indicates
McKlesky’s claim is substantial.
Benign Classifications, Racial Gerrymanders, and Affirmative Action
a.
b.
c.
i. Introduction
Definition of Gerrymanders: designation of voting districts in a geographic manner to
provide unfair advantage to one political party over another. The problem: the way you
draw the lines can vastly affect the amount of minority representatives, and the central
issue is how should the government draw these boundaries.
Definition of Benign Classifications: Unequal treatment of a specific class of persons
intended to benefit that class.
Problem: attempts to reverse past discrimination present major constitutional
problems: what standard should be used to review “benign” use of a “suspect”
classification? Strict scrutiny is used [City of Richmond v. J.A. Croson Co.]. This doesn’t
mean race-based classification will always be stuck down. EX: if the governmental entity
previously discriminated against blacks in a clear manner this entity could institute a
race-based scheme to eradicate the previous effects of that discrimination. A
limited/narrowly tailored race-conscious scheme might be held necessary to achieve the
obviously compelling goal of eradicating previous discrimination.
The only
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governmental objective that will likely be held to be a compelling government interest is
redressing clear past discrimination.
Past Discrimination: When the government institutes an affirmative action plan to
redress previous discrimination two questions arise: (1) what kind of proof must be
displayed that there was past discrimination, and (2) who must have discriminated? The
Court hasn’t given much guidance on this issue.
i. No findings needed: There must be quite strong and specific evidence of past
discrimination against the minority group; it isn’t enough that there is a general
belief there was discrimination, nor does under-representation of a particular
group with regards to the thing at issue.
1. Example: City of Richmond v. Croson: Under 1% of city’s contracts
have gone to minorities in last five years, and the council infers
contractors have been discriminated against, and requires 30% of the
dollar amount of all city funded construction go to minority owned
firms. Held: there wasn’t hard evidence of past discrimination: fact that
minority firms only got a small share of contracts, and made up a small
portion of local contractors’ associations was not sufficient evidence to
prove past discrimination: there was no evidence there were more
black owned firms than those that received bids.
Sufficient evidence: if the number of minority participants were much lower than the
number who is trying to participate then this would be enough proof.
Discrimination by whom? A race-conscious affirmative action plan is most likely to be
upheld if the past discrimination was done by the particular government entity in
question. Also, if the government entity involved in the dispute were in the same
general domain/industry as where the discrimination took place this would likely justify
the race-conscious remedy. But the mere fact that there has been general societal
discrimination isn’t enough to justify race-conscious measures.
ii. Racial Gerrymanders: Until mid-1990’s “dilution of voting strength” claims
appeared the only way voters could bring an equal protection claim against
race-conscious drawing of election districts, but recently the Court has held
voters can attack race conscious district drawing if race was a predominant
factor in drawing the lines then the districting scheme will be subjected to strict
scrutiny (this is called racial gerrymandering).
Voter Dilution: Gomillion v. Lightfoot (1960): local act redefines boundaries of a
city, from a square to a 28-sided figure, and effect of the redefinition of boundaries is
remove from the city all but 4 of 400 African-American voters, while removing no
whites. Held: Act deprives African-Americans the right to vote/voter dilution. State
claims the state has an unrestrained right to redefine boundaries, but when a single
racial minority is singled out for discriminatory treatment by the redefinition it violates
the 15th Amendment.
i. J. Whitaker: Concurrence: aggress with the general ruling but believes the act
violated the Equal Protection Clause instead of the 15 th Amendment: there was
no restriction of the right to vote: instead it was a segregation of citizens by
race, in violation of the Equal Protection Clause (Brown v. Board). Racially
invidious intent can be inferred quite well here, no past districting this way, the
28-sided figure, and all the African Americans were excluded.
Racial Gerrymandering and the “Facially irrational theory” Shaw v. Reno
(1993): N.C. enacts reapportionment plan included one majority-African-American
district with boundary lines of dramatically irregular shape, and voters sue alleging the
creation of the irregular district was unconstitutional racial gerrymandering.
i. Held: If Ps show the districting scheme was “so irrational on its face that it
can be understood as an effort to segregate voters into separate voting
districts because of their race,” strict scrutiny should apply, and the districting
should be struck down unless it is, “narrowly tailored to further a compelling
government interest.”
1. Bizarre Shape: Court concentrated on bizarre shape of district:
because of geographic distribution of blacks shape of district was odd:
160 miles long, narrow, irregularly shaped district that in some places
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was only as wide as the interstate highway. However, it is unclear what
the shape of the district will play: whether it was a requirement to
show racial gerrymandering or merely proof/an indicator of racial
motive.
2. Rationale: racial gerrymanders are bad and constitutionally suspect,
because: (1) it would have a socially divisive impact on voters,
resembling “political apartheid” and “Balkanizing us into competing
racial factions.” (2) It sends a bad message to officials elected from the
gerrymandered district that their primary obligation is to represent
members of the racially dominant group rather than the whole group.
ii. Dissent: J. White: no cognizable claim here, because no injury: no outright
deprivation of right to vote or action had the intent and effect of unduly
diminishing a groups influence over the political process.
iii. Dissent: J. Stevens: The Equal Protection Clause prohibits states from creating
bizarre district boundaries for the sole purpose of making it more difficult for
members of a minority group to win election. But it doesn’t prohibit
gerrymandering when the majority acts to facilitate the election of a member of
a group that lacks power because it remain underrepresented in the state
legislature.
iv. Dissent: J. Souter: There is no justification for treating the narrow category of
bizarrely shaped district claims differently from other districting claims.
Predominant Factor Test: Bizarre shape isn’t enough for a racial gerrymandering
claim, Ps must prove that race was a predominant factor in drawing district lines,
and once this is shown the Court will then subject the districting scheme to strict
scrutiny.
i. Miller v. Johnson: previous racial discrimination against blacks right to
vote; Georgia had to create 3 majority black districts. During litigation Georgia
admitted lines drawn mostly for racial reasons, because needed to produce 3
majority black districts to satisfy the Justice Department. The districts were
relatively compact, and not irregular in shape.
1. Held: because done primarily for racial reasons Court applied strict
scrutiny, and found that the state wasn’t pursuing a compelling
government interest: lines drawn only to satisfy Justice Department
and weren’t necessary to redress past discrimination.
2. J. O’Connor’s Concurrence: The standard for one challenging raceconscious districts is a demanding one: Ps must show the State has
“relied on race in substantial disregard of customary and traditional
districting practices. Only “extreme instances of gerrymandering”
would be subject to strict scrutiny.
Bush v. Verra: Compliance with the Voting Rights Act is a compelling government
interest:: J. O’Connor: consciousness of race isn’t enough it must be the predominate
factor, and also if there is a strong basis in the record for a potential of violation of the
Voting Rights Act then racial characteristics could be used to draw districting lines and
in fact she would allow it to be the predominant factor in drawing the lines. Compliance
with the Voting Rights Act can supply the requisite “compelling “ state objective to
support the intentional creation of majority-minority districts.
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Affirmative Action Programs:
Strict Scrutiny: classifications are constitutional only if they are narrowly tailored to further compelling governmental
interests
Race-conscious Affirmative Action: government programs that attempt to assist racial or ethnic minorities in an
explicitly race or ethnic conscious manner are subject to strict scrutiny just as those that disadvantage minorities.
Hypothetical 1:
Assume that the city of Hypoville is composed of neighborhoods A (population 10,000), B (population
15,000) and C (population 30,000). Assume that a flood destroys the homes in neighborhood A, leaving
neighborhoods B and C untouched, and that because of the level of precautions it chose to adopt, the city is to
some degree responsible for the destructiveness of the flood.
Which of the following responses by the city is fairest, and why?
A) The city should do nothing. AN OPTION IF CITY WANTS TO FACE LAWSUITS. ALSO, PERHAPS A SHOULD
HAVE BOUGHT HOUSING INSURANCE?
B) The city should issue an ordinance allowing each former resident of neighborhood A the right to move into
and share the home of a resident of neighborhood B. The 10,000 affected residents of neighborhood B will be
chosen by lottery. NO. IMPOSING DUTY TO REMEDIATE ON ONLY ONE GROUP IS PROBLEMATIC. WITH NO
DIRECT RESPONSIBILITY, THOSE THAT DIDN’T VOTE FOR THE LEGISLATURE THAT PASSED THIS RULE IS
EVEN MORE PROBLEMATIC.
C) In new public housing that is being constructed by the city, the city should allow residents of neighborhood
A priority in access to the housing over residents of neighborhoods B and C. BEST CHOICE: LEGITIMATE
STATE INTEREST OF PROVIDING HOUSING TO HOMELESS. RATIONALLY RELATED B/NEIGHBORHOOD A
SUFFERED WHEN OTHERS DID NOT.
Questions to ask:
1. Was city discriminatorily negligent by providing better flood protection to B and C? If yes, there is a
stronger responsibility.
Hypothetical 2:
Assume that the Duke Power Company, which operates in Florida has since 1960 announced that it will only
hire whites, and will promote according to a seniority system, under which the first hired will be first
promoted.
Assume that on January 1, 1965 [after the adoption of Title VII which makes racial discrimination in
employment illegal] two applicants seek jobs from Duke Power Company, which is offering a position as
lineman 2d class.
(1) Walter Palmore, an African American who was born and raised in Florida and
(2) A. Lincoln, who is white, and has recently moved to Florida from Illinois.
Palmore arrives at the personnel office first. The personnel officer for Duke Power says "You're well qualified
for the position, we'd like to hire you, except for one thing: we have a policy of not hiring applicants of your
race". Palmore leaves, and on the way out, he encounters Lincoln; Palmore tells Lincoln about the incident.
Lincoln walks in the door, and presents his credentials, and is hired.
On January 1, 1966, Duke Power abandons its policy of excluding African Americans, and on January 2, 1966,
Palmore applies again for the position of lineman 2d class. He is hired. On January 1, 1967, an opening for the
position of lineman 1st class occurs. Would it be fairest:
A) To promote Lincoln, because he has seniority? THIS IS DISPARATE IMPACT, WITH NO TRUE
SHOWING OF INVIDIOUS INTENT (IN 1960, THERE WERE ONLY WHITES AND THUS THE
SENIORITY SYSTEM WOULD ADOPTED IN 1960 WHERE ALL WORKERS WERE WHITE AND
THIS DISCRMINATION WOULD NOT HAVE BEEN THE ISSUE WITH THIS PARTICULAR SYSTEM.)
THERE IS A RATIONAL BASIS (MORE EXPERIENCE = SAFER.)
B) To promote Palmore because he would have had seniority but for the illegal discrimination
against him on January 1, 1965? ONE COULD ARGUE THAT LINCOLN WOULD NOT HAVE HAD
THE JOB IN 1965 EXCEPT FOR THE DISCRIMINATION AGAINST PALMORE. THE IMPLICATION IS
THAT THE SENIORITY SYSTEM COULD CONTINUE DISCRIMINATION.
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Hypothetical 3
Assume the same facts as in Hypothetical 3. But in addition, there is a third lineman 2d class. A.
Schwartzenegger, who immigrated from Germany to Florida in 1960 was hired as lineman2d class by Duke
Power in 1961, before it became illegal under Title VII for employers to discriminate on the basis of race. On
January 1, 1967 would it be fair to promote Palmore in preference to Schwartenegger? SENIORITY FOR S
DOES BEAT OUT.
School Committee of Boston v. Bd. Fo Edu (1960)
NC v. Swann XXX v. McDaniel (1971)
Bus Stop v .LA (1978)
Bakke (1978)
Washington v. Seattle School Bus (1982)
Fullilove (1980)
Croson (1989)
Adarand (1995)
Grutter/Gratz (2003)
Parents Involved (2007)
Ricci (2009)
Claim: Remedy is valid if appellant can show that he himself is the victim of discrimination and that, but for the
discrimination, he would have had the job.
This particular Courts sees the rejection of race conscious decision making is embedded in DP clause in 5 th Amendment
as applied to Federal Government and the 14th amendment. This is fine unless you are an originalists who look to
original intent of Framers.
1. Introduction:
a. General Rule: Strict Scrutiny used. A race-conscious affirmative action plan will always
be subject to strict scrutiny [Richmond v. Croson-1989, Bakke-1978]. Challenged
plan must be adopted to further some compelling government interest and the
classification must be necessary to achieve that compelling government interest.
b. “Race as one factor among many” plans: Pure quota systems are not likely to be used
after Bakke, the real battle is about university’s rights to use a scheme like the Harvard
Plan in which all candidates are compared with each other, and race is merely used as one
factor among many. But here the Court will still apply the strict scrutiny standard: “All
racial classifications, imposed by whatever federal, state or local government actor, must
be analyzed by a reviewing court under strict scrutiny.” [Adarand].
c. Two possible legitimate objectives: (1) remedying past discrimination done by the
entity implementing the plan (but this is a very hard showing to make, and a mere
statement by the university or entity wouldn’t suffice), and (2) achieving diversity: present
Court probably wouldn’t agree that this is a compelling goal.
d. Narrowly tailored: the entity will have to show that redressing discrimination can be
done in no other way; that the means chosen is the only way the ends can be accomplished.
Racial Quota Systems: An inflexible number of admission slots, dollar amounts, etc. set aside for
minorities. In the aftermath of Bakke and Croson virtually all race-based quotas will be struck down even
when the government is trying to eradicate past discrimination, because the quota system will be seen as not
narrowly tailored/necessary to accomplish the compelling goal of remedying past discrimination.
2. Regents of University of California v. Bakke (1978, 531) : racial quota system is
invalid: U.C. Davis Med. School had a minority admissions quota requiring 16 out of every 100
students admitted were from specified minority groups [Blacks, Chicanos, and Asians]. A white
applicant was denied admission, while less qualified minority applicants were admitted. He sued
under Title VI of the Civil Rights Act, and state and federal Equal Protection Clauses.
a. Two separate camps emerged: (1) Stevens, Burger, Stewart, and Rehnquist and (2)
Brennan, White, Marshall and Blackmun.
b. Title VI Statutory Claim:
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i. Group I: find U.C. Davis’s program violated Title VI, because, “Race cannot be the
basis of excluding anyone from participation in a federally funded program…” and
U.C. Davis was federally funded.
ii. Brennan’s Dissent Group: Believed that Title VI was intended to prohibit “only
those uses of racial criteria that would violate the 14th Amendment if employed by
a state.” The U.C. Davis program doesn’t violate the 14 th Amendment, and
therefore it doesn’t violate Title VI. This group would demand a compelling
justification to overcome suspect racial classifications. The latter have a history of
misuse and often used to impose racial subordination on discrete and insular
minorities. However, Bakke does not qualify b/he is not a discrete and insular
minority member. Indeed, to achieve equality, race must be taken into
account.
iii. J. Powell: agreed with Brennan’s group that Title VI would be violated only if
there was a constitutional violation, and thus Powell and Brennan’s group had to
address the constitutional issue.
c. PP: California courts rule is that as long as P can show discrimination, burden shifts to D to
show that, in the absence of discrimination, they would not have admitted him. UC Regents
conceded this fact in order to allow this case to go to court.
d. Claim: Bakke claims denial of EP and racial classifications must survive strict scrutiny.
e. Held:
i. 5 to 4 to invalidate (Powell, Stevens, Burger, Rehnquist, )
ii. 5 to 4 upholding permissibility for universities to use race as factor in
admissions to increase diversity (Powell, Brennan, Marshall, White, and
Blackmun)
iii. J. Powell: Strict Scrutiny is appropriate: any racial or ethnic classification must
be subject to strict scrutiny. Every person regardless of his ethnic background has
the protection of equal protection. Also, the white majority consists of many
different minority ethnic groups.
1. Racial classifications do not require presence of a discrete and insular
minority.
2. The classification denies white applicants the right to compete for all 100
seats while granting minorities the chance to compete for all the seats,
and this is based solely on race; thus it is inherently suspect.
3. He rejected the 4 possible objectives offered by U.C. Davis:
a. The need to reduce the historic shortage of minority medical
students/doctors (P says not legitimate)
b. The need to cure the results of past discrimination by society (P
says not legitimate) They can’t show that they have been subject
to governmental or private disadvantage that prevents them from
being able to compete on an equal basis. Without particular
showing of past discrimination, they cannot call this a remedy.
i. Affirmative action can only be used to redress specific
discrimination
and
not
broad
societal
discrimination: there had to be findings that U.C. itself
had discriminated to support this justification.
c. The need to increase the number of doctors who will practice in
currently underserved communities, and
d. To obtain the benefits of a diverse student body.
i. Powell held this was clearly a permissible goal, but this
goal could be pursued only be considering a minority
applicant’s race as one factor in the admissions process
(The Harvard Plan: requires that a candidate first be
admissible and then considers race as a soft factor Thus,
all individuals treated as individuals and all seats are
potentially available versus Davis Plan which uses race
as a bar on admission.) Hence, Powell rejected the
quota system that used race as the predominant if
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not only factor, because it violated the Equal
Protection Clause.
ii. There is a certain amount of deference given to higher
education (especially in terms of the 1st amendment.)
Universities are allowed to treat race as a factor as long
as it’s not dispositive.
f. Dissent: Brennan Group: Should use Intermediate Scrutiny: disagreed with Powell’s
position that any classification based on race must be subject to strict scrutiny. Davis’
program should be upheld.
i. Instead, the Brennan set out four tests the Davis plan would have to meet:
1. It must involve a fundamental right,
2. The disadvantaged class must not have any of the traditional
characteristics of suspectness: not have been relegated to a position of
political powerlessness so as to command protection, or subjected to a
history of unequal treatment,
3. Racial considerations must not be completely irrelevant, and
4. The racial classification cant’ stigmatize; presume one race is inferior to
another.
5. The Brennan group believed all four of these test were satisfied, and
therefore the program didn’t merit strict scrutiny.
ii. Mere rationality rejected: race-based classifications run the risk of stereotyping
minorities as inferior, are based on the immutable characteristic of race, and might
cause minority white groups to bear the costs of these programs.
iii. Intermediate Level Review: Advocated the use of intermediate level scrutiny:
the racial classification would have to be substantially related to the
achievement of an important government objective. The U.C. Davis program
met this standard: the program was a reasonable means to correct past
discrimination and achieve greater minority representation in medical schools.
iv. Quota Based System: Brennan group disagreed with Powell that a quota system
that reserved certain seats only for minorities was invalid, because they believed
there was no distinction between a quota program and a Harvard type approach:
both have the same goals: increase minority representation, and the Harvard
process would adjust to meet that goal.
v. It is legitimate for an government entitle to provide an effort to achieve a level of
participation that would have been the case in the absence of societal
discrimination. (acts of government agencies and ideas fostered by acts of
government agencies.)
g. J. Marshall: “Now when a State acts to remedy the effects of that legacy of discrimination, I
can’t believe that this same Constitution stands as a barrier.
h. J. Blackmun: “In order to get beyond racism, we must first take account of race. There is
no other way.”
i. J. Stevens/Burger/Stewart/Rehnquist: Violation of Title VI. “The question of whether
race can never be used as a factor in admissions is not an issue in this case, that discussion
of that issue is inappropriate.” If the court sees the special program is illegal, then the
judgment should be affirmed “regardless of the legality of the admissions programs that
are not now before the Court.”
3.
Grutter v. Bollinger (2003): upholds Strict Scrutiny. “Plus factor” is okay in
encouraging diversity: “We apply SS to all racial classifications to ‘smoke out’ illegitimate
uses of race by assuring that [government] is pursuing a goal important enough to warrant use of a
highly suspect tool.”
a. Croson and Andarand support the idea that he interest must be compelling
b. Facts: Michigan Law’s dedication to admitting “students from groups which have been
historically discriminated against, like African-Americans, Hispanics, and Native
Americans, who without this commitment might not be represented in our student body in
meaningful numbers.” Race is a plus factor in order to achieve diversity.
c. PP: Invalidated by DC, reversed by Ct. of App.
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M. Cheng
d. Held: EP Clause does not prohibit Law School’s admission policies, which further a
compelling interest in “obtaining the educational benefits that flow from a diverse
student body.”
i. The law school has a compelling interest in a diverse student body. They are
seeking a real representation, “a critical mass of minority students.” (550) The
court acknowledges that “attaining a diverse student body is at the heart of the
Law School’s proper institutional mission.” 550
ii. The Law School is not solely engaging in “racial balancing” but is doing so to
obtain educational benefits that “diversity is designed to produce. These
benefits are substantial.” 551 (cites amicus briefs from leading businesses in the
military as support.)
iii. The Law School is not engaged in quota system so it conforms with Bakke.
However, this is not enough to give it the green light. The admission program is
okay b/race is not the deciding feature for admission.
e. Concurrence: Ginsburg/Breyer: reality requires practices like this.
f. Concurring in part, dissenting in part: Scalia: the decision does not draw any useful lines.
g. Concurrence in part, dissenting in part: Thomas (Scalia joins in part IV)
i. The Constitution abhors all classifications based on race because they demean us
all. (PP.)
ii. The ends are the educational benefits, (diversity is just the means.) There are
other ways the Law School can achieve these benefits (race-neutral alternatives.)
iii. No pressing public necessity in maintaining an elite public law school.
iv. Academic selectivity is not a compelling state interest and Michigan could
maintain diversity without these policies (like Boalt.)
v. EP only protects against classifications based on race (not other things like
legacies, etc.)
vi. Admitted students under these policies might not be as prepared. These programs
“stamp minorities with a badge of inferiority and may cause them to develop
dependencies or to adopt an attitude that they are ‘entitled’ to preferences.” 556.
h. Dissent: Rehnquist, Scalia, Kennedy, Thomas: Michigan is not even achieving its
purported goals: the actual number of minorities is too small to achieve real diversity. The
percentage of minorities in the admitted pool mirrors the percentage in the pool (if there is
some educational goal, then the minority admissions numbers should not be tracking the
pool.)
Gratz v. Bollinger (2003): invalidating current admission methods as not sufficiently
narrowly tailored to achieve goal.
a. Facts: companion to Grutter. Questions admission policies of University of MI College of
Literature, Science and the Arts (LSA.) Minority candidates were automatically bumped up
20 points (150pts necessary for admission.)
b. Held: J. Rehnquist: the 20 point bump solely because of race is not “narrowly tailored to
achieve the interest in educational diversity that respondents claim justifies their
program.” 557.
i. Just b/it’s difficult for LSA to adopt the Grutter standards does not make it
constitutional: “But the fact that the implementation of a program capable of
providing individualized consideration might present administrative challenges
does not render constitutional an otherwise problematic problem.”
ii. The current process does not provide for meaningful individualized review
(“[Even if a student’s] extraordinary artistic talent rivaled that of Monet or Picasso,
the applicant would receive, at most, 5 points under the current system.”)
c. Concurrence: O’Connor: the system is fundamentally flawed
d. Concurrence: Thomas:
racial discrimination in higher education admissions is
“categorically prohibited by the EP clause.”
e. Dissent: Souter: this is more like what is approved in Grutter than what is condemned in
Bakke. (PP) The point system is not a quota and should not be invalidated. “It seems
especially unfair to treat the candor of the admissions plan as an Achilles’ heel.” (559)
f. Dissent: Ginsburg: reality of racial situation in America requires realistic methods. There
is no “constitutional infirmity” here: it does not unduly constrict academic opportunities
for students who don’t receive the 20-point bump. “The stain of generations of racial
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oppression is still visible in our society, and the determination to hasten its removal
remains vital.”
Set Aside programs by Congress: The rules are the same for minority set-asides by Congress as they
are for state or local based set-aside programs: Strict Scrutiny is applied to race-based affirmative action
programs imposed by Congress.
5.
6.
Fullilove v. Klutznick (1980): Set Aside Programs and Judicial Deference to
Congress: congressional spending statute requiring 10% of federal funds granted for local public
works projects must be used to procure services from minority controlled businesses: AfricanAmericans, Spanish-speaking, Orientals, Eskimos and Aleuts.
a. Held: Statute is constitutional, demonstrated statute would survive the standards of
review articulated in Bakke. Further, Court gave much deference to Congress, “We are
satisfied Congress had abundant historical basis from which it could conclude that
traditional procurement practices…could perpetuate the effects of prior discrimination.”
b. J. Powel: Concurrence: applied Bakke analysis and found statute was justified: served
compelling government interest of eradicating continuing effects of past discrimination in
a specific area identified by Congress. Unlike Bakke, Congress found that pastdiscrimination made it necessary to sustain the program. If there are studies done by
government agencies showing discrimination in particular areas that past discrimination
existed then the use of affirmative action programs can survive strict scrutiny.
Affirmative Action programs are always subject to strict scrutiny:
a. Richmond v. J.A. Croson Co. (1989): Minority set-aside programs by States and
Cities:
i. The set aside plan and its rationale: Under a city ordinance contractors
awarded city projects were required to sub-contract out 30% of the work to
minority-owned contractors (blacks, Asians, Indians, Eskimos, and Aleuts, and the
business could be located anywhere in the U.S. to qualify). The city council said the
plan was remedial and designed to overcome effects of past discrimination against
African-Americans in the Richmond area construction industry, and promote the
participation of minority businesses in public projects.
ii. Evidence before the city council: (1) there was no evidence the city itself had
ever discriminated in the construction industry, (2) but only .67% of the city’s
primes construction contracts had been awarded to minority business in the prior
5 years, and 50% of the city’s population was black. (3) The construction
associations in the area had almost no minority business membership. (4)
Congress had issued reports that nationally there had been extensive
discrimination against black construction companies nationwide.
iii. Held: Any governmental action that is explicitly race-based must be “necessary” to
achieve a “compelling” governmental interest. Race-based affirmative action plans
are subject to strict scrutiny.
1. Rationale: (1) No way to tell: no easy way to tell which racial
classifications are benign or remedial and which are pretextual, and
motivated by notions of racial inferiority and simple racial politics: use of
strict scrutiny would help uncover the real objective, (2) Stigmatic harm:
racial classifications “carry a danger of stigmatic harm”: might lead to
branding the favored group as incompetent and helpless without the
special protection, and (3) Can’t go beyond race: unless they are strictly
scrutinized we will never become a race-neutral society.
2. Applied to the Richmond plan: the plan was struck down: the proof that
there was past discrimination was inadequate, and the plan wasn’t
narrowly tailored to meet that goal (there was no showing a race-neutral
method would not have also accomplished this goal, and the 30% number
was likely too large). If there was clear discrimination by the government
or private parties then the plan might have passed strict scrutiny.
3. Use of Statistical Proof: The .67% number wasn’t relevant (there was no
showing there were more capable business); what would be relevant
would be the % of minority owned contractors in Richmond that could
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have gotten the bids, but didn’t: the relevant statistic is the number of
minorities qualified to undertake a particular task, and not the total
number awarded or the general population.
a. There does not appear to have been any consideration
b.
c.
d.
e.
f.
of the use of race-neutral means to increase minority
business participation in city contracting.”
Concurrence: J. Stevens Affirmative action is a legitimate goal if it is a to remedy past
discrimination, but also there are other instances when affirmative action would be
legitimate (integrated police force example): in this case the plan was invalid, because the
class of persons benefited by the ordinance wasn’t limited to victims of discrimination:
included person who were never in business in Richmond.
Concurrence: J. Scallia: Racial classifications are all inherently bad. While strict
scrutiny must be applied to all legislation, which advocates discrimination based on race,
affirmative action programs which are aimed at ameliorating past discrimination are
invalid altogether. Identifying individual victims for remedies is not an application of racial
classifications.
Dissent: J. Marshall: the intermediate level of scrutiny should be used in measuring the
validity of race-conscious remedial plans: race conscious classifications designed to further
remedial goals must serve important governmental objectives and must be substantially
related to achievement of those objectives. This statue is precisely the type of remedial aid
needed to even the field. The fact of discrimination is unquestioned in the construction
industry both nationally and locally (the less than 1% factor), and the lack of specificity
here doesn’t render the ordinance invalid.
Difference between Croson and Fullilove: not enough evidence in Richmond and not
specific enough, and the 14th Amendment grants Congress wider power to redress and
constrain state power; Congress must enforce the 14 th Amendment, and the States can’t
have control over the content of equal protection. The 14 th Amendment stemmed from a
distrust of states, and thus the states can’t have enforcement power under the 14 th
Amendment.
Croson’s Significance:
i. Findings: governmental bodies that wish to use set-aside programs will have to
make very precise legislative findings of past discrimination:
1. Discrimination by the governmental body: if there are specific findings
the government body itself discriminated then eradicating this through
affirmative action is a compelling interest (but for P.R. reasons they will
rarely do this).
2. Discrimination by others: previous discrimination by others and a
showing that non-remedial government activity will compound the effects
of past discrimination this will be a compelling interest.
ii. Societal Discrimination: General societal discrimination nationally or locally
won’t be enough to form a compelling reason.
iii. Statistical Inferences: through statistics it is possible to prove past
discrimination through inference. But the statistics will have to be more clear than
they were in Croson: the government will have to show fairly precisely how many
qualified minority firms there are, and that these qualified firms are getting a
much smaller percentage of work than their numbers would indicate.
iv. Other objectives: attempting to cure past discrimination is probably the only
objective that is compelling enough to justify the set-aside programs. For
example: Trying to improve the economic status of minorities will never justify
race-conscious plans. However: example: choice of using a minority to infiltrate a
Columbian drug ring would likely be appropriate.
1. Pursuit of racial diversity: might be enough of a compelling reason to
use the set aside-plans especially when the particular needs of the activity
in question make diversity important.
v. Narrowly Tailored/Least Restrictive = Necessary: the means chosen must be
narrowly tailored to meet the compelling governmental objective, which is a hard
test to pass: quotas will almost always fail, race-neutral methods should be tried
before race conscious plans are used, and a soft goal of preference for minorities
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8.
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will likely have to be used before a purely quota based system can be applied, or a
plan considering race as a factor among many other factors.
Metro Broadcasting, Inc. v. FCC (1990): Court upheld 2 minority preference policies of the FCC:
(1) program awarding an enhancement for minority ownership on comparative proceedings for
new broadcast licenses; (2) Minority distress sale program permitting a limited category of existing
radio and television broadcast stations to be transferred only to minority-controlled firms.
i. Court applied intermediate scrutiny. The means chosen must be substantially
related to important government objectives: the means chosen by the FCC were
substantially related to the achievement of important governmental objectives.
Enhancing governmental diversity by reducing industry’s 98% white ownership is
an important governmental objective. FCC polices were valid even though they
were not designed to remedy past governmental or even societal discrimination.
ii. J. Brennan’s Test for benign classification: (1) Is it rooted in racial hostility; (2)
Is there an undue burden on the race against whom there is discrimination?
iii. Why did Stevens join the Majority? J. Stevens asked whether we can believe that
an impartial decision maker would have adopted this program other than for a
reason of harming the minority? Where you are trying to achieve a public goal, not
putting one ahead of the other and the decision is made by a responsible political
body: J. Stevens would accept it.
Adarand Constructors v. Pena (1995): a general contractor of a federal project solicited bids for
subcontracts, a white subcontractor submitted the low bid, but a Hispanic owned company
received the bid, due to a congressionally created program to award contractors bonuses for hiring
minority businesses. “SS is not strict in theory, fatal is fact.”
a. Issue: Are federal programs that set racial classifications for awarding contractors jobs
subject to strict scrutiny?
b. Held: Yes. Overturned Metro Broadcasting, and held congressionally authorized raceconscious affirmative action programs must be subject to strict scrutiny, though not all
programs will be struck down.
c. J. O’Connor’s three general propositions regarding governmental racial
classifications:
i. Skepticism: All such classifications are inherently suspect
ii. Consistency: The standard of review doesn’t vary depending on race. Any person
of any race has the right to demand that any governmental actor explain, through
the standard of strict scrutiny, why he is being treated differently than a person of
another race.
iii. Congruence: equal protection analysis is the same under either the 5th or 14th
Amendment: that which applies to states also applies to the federal government.
“Whenever the government treats any person unequally because of his or her race,
that person has suffered an injury that falls…within….the Constitution’s guarantee
of equal protection.”
d. Strict Scrutiny isn’t necessarily fatal: J. O’Connor pointed out that though the standard
was strict it wasn’t fatal, and if the government was responding to the lingering effects of
racial discrimination against minority groups in a narrowly tailored way even raceconscious methods may survive.
e. Concurrences: J. Scallia and J. Thomas: indicated that race-conscious affirmative action
can never be justified. J. Thomas: “government sponsored racial discrimination based on
benign prejudice is just as noxious as discrimination inspired by malicious prejudice.”
f. Dissent:
i. J. Stevens: Consistency: There is a difference between policies designed to
perpetuate caste systems and ones that seek to eradicate racial subordination, and
each should be viewed under different standards. >Congruency: Argued that
Congress had more power than state or local governments, because the 14th
Amendment gave Congress the power to enforce legislation to enforce the 14 th
Amendment, and Congress as nationally elected officials represent the will of the
country (state and local officials don’t).
ii. J. Souter: Precedent compels the application of the middle level of review
standard endorsed in Fullilove v. Klutznick: there the court held the
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governmental interest in eradicating previous vestiges of discrimination was
compelling enough to pass the strict scrutiny standard.
9.
Parents Involved in Community Schools v. Seattle School Dist No.1 (2007):
racial desegregation does not require active racial balancing
a.
b.
Facts: School district policy of altering the racial makeup of its schools using race to
achieve “integration positive” by putting more minority kids in. Uses these “racial
tiebreakers” in order to combat segregative effects it sees naturally through housing
selection. Seattle has never operated segregated schools. Contrasts with Jefferson School
District in KY, which did have a history of segregation.
Held: Both SD policies are invalid. Seattle never had segregation in the first place and
Jefferson County had already “removed the vestiges of past segregation.”
i. Opinion (Plurality. J. Roberts): Neither Settle SD nor KY SD were justified. Seattle
never had segregation in the first place. KY had already remedied their past
segregation. Further racial balancing is no legitimate.
1. Part I: recounted background of the two school boards
2. Part II: dismissed SD’s attempts to argue that Parents involved lacks
standing
3. Part IIIA: SS is appropriate standard:
a. “Allowing racial balancing as a compelling end in itself would
‘effectively assure that race will always be relevant in American
life, and that the ‘ultimate goal’ of ‘eliminating entirely from
governmental decision making such irrelevant factors as a human
being’s race’ will never be achieved. (O’Connor plurality of
Croson.)
4. Part IIIB: racial balancing is not a compelling state interest
5. Part IIIC: the policies were not necessary to achieve stated ends
a. In the end, the effect is actually just shuffling a small percentage
of minority students around schools.
b. Both schools have not shown that they sought alternative
methods other than racial cassifications.
6. Part IV: Criticism of Breyer dissent
a. Breyer ignored valuable precedent to favor useless dicta
b. Breyer argues incorrectly for a different standard of review b/the
motives are “beneficent rather than malicious”— this is not
accepted.
c. EP apples to individuals, not to race groups so “bringing the races
together” is not an applicable justification.
d. Breyer’s claim that the ends justify the means is problematic. SS is
proper b/it examines means and ends. Motives are not a
justification for racial classifications.
ii. Brown said that legally separating children based on race is a violation. Brown II
promised school districts would “achieve a system of determining admission to
the publics schools on a non-racial basis.”
iii. Reasoning:
1. Primary and Secondary schools is different from the deference given to
higher education.
2. SS used to see if it is sufficiently narrowly tailored to achieve a
“compelling” governmental interest. Two interests identified by court: 1)
interest in remedying past discrimination and 2) student body diversity
“in the context of high education.” (Grutter.)
3. Unlike Jefferson SD, Seattle SD did not have history of segregation.
Furthermore, Jefferson’s policy was invalidated by court b/it had already
“remedied the constitutional wrong that allowed race-based
assignments.” Once the prestige of prior segregation had been eliminated,
the court did not require racial balance as an active policy.
4. Unlike Grutter, race is not part of a “holistic” process in which race is only
a factor. Rather race becomes dispositive for some students.
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5.
c.
d.
e.
f.
The Schools at issue contend that a racially diverse environment is
beneficial for education and they submit this as the reason why they
consider race alone in their school assignments. However, Roberts
considers that this interest is not compelling and that the use of race for
this goal is not narrowly tailored, it is instead used for racial balancing,
which is unconstitutional. The schools base their numbers in
demographics, therefore making this goal a means to achieve a numerical
quota to achieve racial balancing. Roberts concludes that racial balancing
cannot be a compelling state interest.
Concurrence: J. Thomas: the unsettled debate concerning whether racial balance or
diversity has a positive effect on educational outcomes. Justice Thomas recoils at the
suggestion that black students can only learn if they are sitting next to white students.
i. Footnote: “Justice Breyer’s good intentions, which I do not doubt, have the shelf
life of Justice Breyer’s tenure.”
Concurrence: J. Kennedy: diverse student body is a compelling state interest. ("A
compelling interest exists in avoiding racial isolation, an interest that a school district, in
its discretion and expertise, may choose to pursue. Likewise, a district may consider it a
compelling interest to achieve a diverse student population. Race may be one component
of that diversity, but other demographic factors, plus special talents and needs, should also
be considered.") However, Kennedy finds that these SD’s didn’t narrowly tailor the use of
race to achieve the compelling interests. (there were less racially charged means to achieve
the goal.)
Dissent: J. Stevens: short and sweet: the court has turned it’s back on the promise of Brown:
"[The previous court was]...more faithful to Brown and more respectful of our precedent
than it is today. It is my firm conviction that no Member of the Court that I joined in 1975
would have agreed with today's decision."
Dissent: J. Breyer: denounces Majority opinion and dismissed Justice Kennedy's proposed
alternatives to the labeling and sorting of individual students by race: this was a “radical”
step.
i. Relies on Swann and says that the Court’s previous decisions have always
recognized that the “fate of race relations in this country depends on unity among
our children.”
10. Ricci v. DeStefano (2009): fear of disparate impact is not sufficient excuse for
Title VII violation.
a.
b.
c.
Facts: City of New Haven administers a test for firefighters to determine promotion
potential. The test results showed that white disproportionately scored better. City faced
threats from both sides, but finally decided to throw out the results in fear of a Title VII
violation for disparate impact,
Held: Throwing out the scores was a violation of Title VII (Court refrains from addressing
EP issue.)
i. “We hold only that, under Title VII, before an employer can engage in intentional
discrimination for the asserted purpose of avoiding or remedying an unintentional
disparate impact, the employer must have a strong basis in evidence to believe it
will be subject to disparate-impact liability if it fails to take the race-conscious,
discriminatory action.”
ii. Court refrains from addressing EP questions b/Title VII covers the issue. It is
unclear whether or not legitimate fear of disparate impact is ever sufficient to
justify discriminatory treatment under the Constitution.
iii. Title VII allows an employer to consider how to design the test, but once the test is
designed and administered, it cannot be revoked on the basis of race: “But once
that process has been established and employers have made clear their selection
criteria, they may not then invalidate the test results, thus upsetting an employee's
legitimate expectation not to be judged on the basis of race. Doing so, absent a
strong basis in evidence of an impermissible disparate impact, amounts to the sort
of racial preference that Congress has disclaimed”
Concurrence: Scalia: Court has only delayed the day when they will have to address the
issue of whether Title VII’s disparate impact provisions conform with Constitutional EP.
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M. Cheng
i. Title VII allows for affirmative efforts when a disparate impact would otherwise
result (not when disparate impact would not otherwise result.) However, Federal
government is also forbidden from discriminating on basis of race Boiling.
ii. Disparate impact can sometimes be used to ‘smoke out’ illicit activity, but then
again, the provisions are too broad.
Dissent: Ginsberg (Stevens/Souter/Breyer joining):
i. The Court should have put more weight on the fact that the tests were possibly
flawed (other cities have better tests which did not produce disparate impact.)
This should have been the backdrop against which the case is considered.
ii. Under Griggs, selection criteria operating to the disadvantage of minority group
members can be retained only if justified by business necessity. Along this line, a
business should be able to reject the results if they think the test is flawed.
iii. EP does not have a disparate-impact provision. It only addresses intentional
discrimination.
1. By instructing employers to avoid needlessly exclusionary selection
processes, Title VII's disparate-impact provision calls for a "race-neutral
means to increase minority . . . participation" -- something this Court's
equal protection precedents also encourage.
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14th: EP Clause: Affirmative Action
Racial
classifications
are….
What counts as
A compelling
state interest?
M. Cheng
Thomas 
BAD
Roberts/Scalia/Alito
BAD
Kennedy
Must be narrowly
tailored.
Breyer/Stevens/Sou
Necessary to achieve d
patterns of discrimina
Imminent anarchy
Remedy past intentional
discrimination (private or public)
In Ricci,
acknowledges and
imports into Title VII
that the government
may act on the basis
of race to remedy
past discrimination
where there is strong
evidence that
remedial efforts are
necessary (does not
specify that past
discrimination must
be from
government.)
Remedial efforts
Education
Citizenship
Remedy
governmental
discrimination
Diversity/Education
Avoid isolation
Government can use less extreme
fashion than using classifications.
No need to resolve pedagogical
question b/the plans before them
are not narrowly tailored to
achieve that pedagogical goal.
In Parents Involved,
goes out of his way to
concur in the
judgment without
joining the majority.
One could read the
majority as saying
that Constitution
requires SD to ignore
the problem of de
facto segregation and
this he cannot
endorse.
Contexts differ betwee
Government can use
classifications if they a
proportionate to the
served.
In Parents Involved, th
right of each student to
particular school. This
regarded with the sam
traditional SS that mig
applied in other circum
Combination of 3 goals
convince him that ther
compelling interest:
1) Remedial (remedy n
to address problems g
created, but rather to r
educational decisions
combination of housin
employment and atti
create this—ie remedy
isolation)
2) Educational enviro
teaches people to deal
different racial groups
prepares them for 3) c
Key phrases
“strong basis in
evidence”
Avoid “isolation”
These have to be ach
racial classifications
“Proportional”
“inclusion”
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M. Cheng
ALIENAGE
Alienage classifications = discrimination against noncitizens. E.P holds that “no person shall be deprived of equal
protection under the law.” But are alienage classifications “suspect”? They are not inalterable.
Test for States: Strict Scrutiny
Public Function/Civic Exception (probation officers) somewhat adjusted Sufficiently legitimate + Relatively
narrowly tailored (Sugarman)
Test for Federal Government: Any classification that is not based on invidious intent (b/immigration is wrapped up
on our War Power and foreign affairs.)
1866: Civil Rights Act
1868: 14th Amendment:
Pre 1880s: federal government did not exercise regulation of immigrants to enter the states. In 1880s,
Chinese Exclusion Act was established.
1880s-1990s: rising immgration and very little limitation on government action.
1886 Yick Wo: no discrimination in alienage based on racial classifications based in hostility
1893: Fong Ting deportation case: summary deportation of non-citizens ok if Congress authorized it.
1896 Wong Wing (infamous punishment): Congress is bound by words of constitutional obligations
1898 Wong Kim Ark (natural born citizens)
1924-1927: National Quotas on all nationalities: cap on legal immigrants & allocation based on
population estimates of U.S. in 1890 (before immigration began from Southern and Eastern
Europe & Asia.) Did not apply to Mexico & S. America.
1937-1945: WWII
1952: End discrimination in Race/Naturalization for immigration
1965: End Quota by 1890. No longer keyed to world of 1890 (bias in favor of N. Europeans
drops out.) However, there is distinction based on national origin. None of these were seen to trigger the Equal
Protection Clause (which seems to apply differently to the federal government in immigration matters.)
1965-1971: Debate over when noncitizens can be excluded. Classification based on alienage are
okay unless based in hostility (Yick Wo.)
1971 Graham v. Richardson : S.S. applied: state c/n withhold welfare benefits from noncitizens)
1973 Sugarman v. Dougell (NY c/n exclude noncitizens from comp. class. civil service)
1976 Matthew v. Diaz (may condition alien’s eligibility for Medicare)
1902 Cabell v. Chavez-Salido (state can exclude non-citizens from probation jobs)
1982 Plyler v. Doe (TX c/n exclude children of illegals from school)
1986 : Simpson/Mazzoli Act: amnesty for who entered before January
1, 1982 and have been residing there continuously. Court
acknowledges that this will be a continued group in the US. To
deprive them the opportunity to enter the mainstream is inconsistent
with the Equal Protection Clause.
1. Wong Wing v. U.S.(1896) Infamous punishment (hard labor) requires a jury
verdict for non-citizens as well.
a.
b.
c.
d.
Precedent: Lem Moon Sling (upholding statute that says that ever denial of admission of an
alien is a final decision reversed only by the Secretary of the Treasury and that this statute
withstood a DP claim) & Fong Yue Ting (the sovereign nation has the inalienable right to expel
aliens.)
PP: Declared valid by Circuit court
Statute under review: Section 4 of Chinese Exclusion Act: sentences any Chinese person who is
found to be unlawfully and/or not entitled to remain in the States to a sentence of hard labor
(not exceeding 1 year) and then deportation. Claim is 5th and 6th amendment violation: right
to jury and right to speedy trial.
Issue: “Infamous punishment”: can hard labor be imposed (given the deportation is within
the rights of the US for legal and illegal aliens.)
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e.
f.
2)
M. Cheng
Held: Shiras; Infamous punishment (hard labor) requires a jury verdict even if deportation
does not. Statute is invalid.
i. “To declare unlawful residence within the country to be an infamous crime, punishable
by the deprivation of liberty and property, would pass out of the sphere of
constitutional legislation.” (38)
ii. 13th Amendment says that involuntary servitude shall not extend to anyone unless
convicted of a crime.
iii. Yick Wo: Nor shall any State deprive any person of life, liberty, or property without
due process of law; not deny to any person within its jurisdiction the equal protection
of the law.”
Concurring in part, dissenting in part: Field:
i. Dissent with the Government when they say that the State has the right to deny aliens
the equal protection of the law because they are not citizens: the Amendments apply to
all persons, not just citizens. (5th amendment says “person” which is inclusive)
Disagrees with the idea that Congress has power, through legislation, to effectively
deprive aliens of property and liberty without a jury trial.)
Wong Kim Ark v. U.S. (1898): People born in the United States are citizens, even if
parents are not.
a.
b.
c.
d.
Background: Chinese Exclusion Act did not allow for Asians to become naturalized citizens
Facts: Ark was born in SF to domiciled residents (subjects of the Emperor of China, but
domiciled in the States where they carry on business, with no political or diplomatic ties with
the government of China. Because of statutory provisions, they could not have been citizens.)
He returned to China for a visit and was admitted back into the States without problem because
he was a natural born citizen. However, after the second trip in 1895, at age 21, he was not
admitted through customs. The State has conceded that if he is a citizen, then the Chinese
Exclusion Act does not apply to him.
Held: Gray: Natural born citizens are citizens by birth.
i. 14th Amendment confers citizenship to all born in the U.S. (to rule otherwise would
deny citizenship to thousands of other citizens, including children of white
immigrants)
ii. Determining precedent
1. Looks to common law: only case is Elk v. Wilkins where Indian born on
reserve but had separated himself to life with whites yet never had been
naturalized or taxed was not a citizen. (He fell under the provision of people
subject to jurisdiction but not completely subject to political jurisdiction nor
owing any direct and immediate allegiance.”)
2. Looks to English tradition for allegiance
3. Looks to Roman law where citizenship followed the citizenship of parent.
4. Context: In 1789, citizenship was acknowledged to be natural born
5. 14th Amendment and Civil Rights Act solidified natural born rule
a. 14th Amendment only meant to exclude children of members of
Indian tribes (maybe), children of alien enemies in hostile occupation,
and children of diplomatic representatives of foreign states.
b. With 13th and 14th amendment, Congress is directly addressing Dred
Scott.
6. Legislative history: Senate debates over Civil Rights Bill in 1866 (43):
Congress meant that all children born in the U.S. become citizens “without
distinction of color.”
a. Congress meant to expand and embed birthright citizenship.
Dissent: Gray
i. The Framers were familiar the distinctions between Roman and European laws and
they meant to require an affirmative binding by the child (to take on himself the ties
binding him to our Government, to affirmatively sever the ties that bound him to any
other, 44.) This has been more pervasive since the Declaration of Independence.
ii. Civil Rights Act of 1866 was enacted only two months before the 14 th Amendment and
the Dissent argues that “subject to the jurisdiction thereof” = “not subject to any
foreign power.” Thus Majority misread the 14th amendment: in fact 14th requires birth
plus affirmative allegiance (not subject to any foreign power.)
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iii. This produces potentially perverse results: visiting foreigners could have babies that
can be president while Americans born abroad cannot
iv. Chinese are different from other immigrants (cultural differences and Chinese law
which required affirmatively renouncing Chinese citizenship and the Chinese
Emperor.)
3) Cabell v. Chavez-Salido, (1982), upheld a state law that excluded aliens from positions as
probation officers.
a. Facts: aliens were prevented from being probation officers in CA.
b. Held: Probation officers fell within the political function exception to strict scrutiny EP because
probation officers exercise discretionary power involving a basic governmental function that
gives them authority over the individual
i. Graham v. Richardson: the state cannot distinguish between lawfully resident aliens
and citizens in distributing welfare benefits. There are very few areas where the state
can distinguish between citizens and non-citizens. (They are a discrete and insular
minority.)
ii. While a restriction on lawfully resident aliens that primarily affects economic interests
is subject to strict judicial scrutiny, such scrutiny is out of place when the restriction
primarily serves a political function. A claim that a particular restriction on legally
resident aliens serves political, and not economic, goals is to be evaluated in a two-step
process. Sugarman v. Dougall,
1. First, the specificity of the classification will be examined: a classification that
is substantially overinclusive or underinclusive tends to undercut the
governmental claim that the classification serves legitimate political ends.
2. Second, even if the classification is sufficiently tailored, it may be applied in
the particular case only to "persons holding state elective or important
nonelective executive, legislative, and judicial positions."
iii. The statutes in question are an attempt to limit the exercise of the sovereign's coercive
police powers over the community to citizens. They are sufficiently tailored in light of
that aim to withstand a facial challenge when reviewed under the appropriate equal
protection standard for such an exercise of sovereign power.
iv. Probation officers sufficiently partake of the sovereign's power to exercise coercive
force over the individual that they may be required to be citizens. Although the range
of individuals over whom such officers exercise supervisory authority is limited, the
officers' power with respect to those individuals is broad. A citizenship requirement
is an appropriate limitation on those who exercise and, therefore, symbolize this
power of the political community over those who fall within its jurisdiction
c. Dissent: this is facially invalid on constitutional EP grounds: invalid facially and as-applied
i. The statute lists prerequisites that are unrelated to security or the job.
ii. This is inconsistent with other traditions, allowing aliens to have jobs in California
judicial system
4) Plyler v. Doe (1982): 14th amendment protects children of illegal aliens.
a. Facts: No free education for illegal immigrants. A revision to the Texas education laws in
1975 allowed the state to withhold from local school districts state funds for educating
children of illegal aliens. The suit attacked the exclusion of the children from the public
schools of the Tyler Independent School District, which had traditionally required
undocumented children to pay a full fee for education.
b. Issue: Did the law violate the Equal Protection Clause of the Fourteenth Amendment?
c. Held: J. Brennan: Yes. The Court reasoned that illegal aliens and their children, though
not citizens of the United States or Texas, are people "in any ordinary sense of the term"
and, therefore, are afforded Fourteenth Amendment protections.
i. Does not say that illegal immigrants is a suspect classification. Thus, rational
basis test applied.
ii. Lax immigration enforcement has allowed a “shadow population” to develop.
Children should not be punished for actions of their parents (“State may
withhold its beneficence from those whose very presence within the US. is the
product of their own unlawful conduct.”
iii. Education is uniquely important and creates a lasting impact on the child: It has
“a fundamental role in maintaining the fabric of our society.”
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iv. Heightened scrutiny: Texas could not prove that the regulation was needed to
serve a "compelling state interest.”
d. Concurrence: J. Rodriguez: denial of education is “the analogue of denial of the right to
vote… the State must offer something more than a rational basis for its classification”
e. Concurrence: J. Powell: children have been “singled out for a lifelong penalty and stigma”
for the actions of their parents.
f. Dissent: J. Burger/White/Rehnquist/O’Connor: this is judicial activism and a “resultsoriented approach.” It is not unreasonable to think that the State does not have a
responsibility to provide for illegal aliens.
g. KREIMER: n.14 Several formulations might explain our treatment of certain classifications
as "suspect." Some classifications are more likely than others to reflect deep-seated
prejudice rather than legislative rationality in pursuit of some legitimate objective.
Legislation predicated on such prejudice is easily recognized as incompatible with the
constitutional understanding that each person is to be judged individually and is entitled to
equal justice under the law. Classifications treated as suspect tend to be irrelevant to any
proper legislative goal. See McLaughlin v. Florida, 379 U.S. 184, 192 (1964); Hirabayashi v.
United States, 320 U.S. 81, 100 (1943). Finally, certain groups, indeed largely the same
groups, have historically been "relegated to such a position of political powerlessness as to
command extraordinary protection from the majoritarian political process." San Antonio
Independent School Dist. v. Rodriguez, 411 U.S. 1, 28 (1973); Graham v. Richardson, 403
U.S. 365, 372 (1971); see United States v. Carolene Products Co., 304 U.S. 144, 152-153, n. 4
(1938). The experience of our Nation has shown that prejudice may manifest itself in the
treatment of some groups. Our response to that experience is reflected in the Equal
Protection Clause of the Fourteenth Amendment. Legislation imposing special disabilities
upon groups disfavored by virtue of circumstances beyond their control suggests the kind
of "class or caste" treatment that the Fourteenth Amendment was designed to abolish.
h. n. 19 We reject the claim that "illegal aliens" are a "suspect class." No case in which we
have attempted to define a suspect class, see, e. g., n. 14, supra, has addressed the status of
persons unlawfully in our country. Unlike most of the classifications that we have
recognized as suspect, entry into this class, by virtue of entry into this country, is the
product of voluntary action. Indeed, entry into the class is itself a crime. In addition, it
could hardly be suggested that undocumented status is a "constitutional irrelevancy." With
respect to the actions of the Federal Government, alienage classifications may be
intimately related to the conduct of foreign policy, to the federal prerogative to control
access to the United States, and to the plenary federal power to determine who has
sufficiently manifested his allegiance to become a citizen of the Nation. No State may
independently exercise a like power. But if the Federal Government has by uniform rule
prescribed what it believes to be appropriate standards for the treatment of an alien
subclass, the States may, of course, follow the federal direction. See De Canas v. Bica, 424
U.S. 351 (1976
5) Graham v. Richardson (1971): S.S. applied to discrimination against aliens.
States cannot deny welfare benefits to noncitizens. :
a. J. Blackmum: aliens are a “discrete and insular minority” for whom heightened judicial
solicitude is appropriate.
6) In Re Griffiths (1973): J. Powell: CN cannot exclude resident aliens from bar admission.
7) Sugarman v. Dougall (1973): Step back from S.S.for states: States can if
Sufficiently legitimate + Relatively narrowly tailored :
a. J. Blackmun: invalidated NY law excluding aliens from permanent positions in
competitive classified civil service. Does not say that a state may not require citizenship
for qualified positions, but just that there was no compelling interest here to justify it.
b. Dissent: J. Rehnquist/Marshall both to Dougall and Griffiths: questions any extension of
suspect classification analysis beyond the race area.
8) The Public Function Exception: Upholding alienage-based exclusions from
public employment by exercising deferential review rather than strict
scrutiny :
a. Foley v. Connelie (1978): J. Burger: NY could bar employment of aliens as state
troopers b/there is rational relationship between policemen who are “clothed in
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authority” and barring aliens (to require S.S. would “obliterate all the distinctions
between citizens and aliens.”
b. Ambach v. Norwick (1979): J. Powell: state may refuse to employ as elementary
and secondary schools teachers aliens who are eligible for citizenship but reject
naturalization: public schools are especially important and the teacher’s role is uniquely
capable of influencing the values of children/society.
c. Bernal v. Fainter (1984): limit to the public function exception: does not justify
TX’s barrier to aliens becoming notaries public: J. Marshall: applied S.S. and found
Dougall exception inapplicable.
9) Toll v. Moreno (1982): rare case striking down alienage restriction on federalism rather
than E.P. grounds: struck down University of MD’s policy of granting preferential tuition and fees
treatment to students with in-state status. “Non-immigrant aliens” were not eligible. J. Brennan:
violation of the Supremacy Clause: the state’s decision denial is an “ancillary burden not
contemplated by Congress in admitting these aliens to the U.S.”
Federal Restrictions on Aliens: entitled to disparate treatment if there is no “invidious”
intent.
Federal government is entitled to make distinctions between citizens and non-citizens
every time it claims that it is doing so without invidious intent.
10) Hampton v. Mow Sun Wong (1976): Court invalidated a Civil Service Commission
regulation barring resident aliens from employment in the federal competitive civil service,
recognizing that there might be overriding national interests that justify this when it would
not justified in the states. J. Stevens: national interests were not the proper concern of the CSC
and had not been fully evaluated. Court overrode the regulation as violation of procedure rather
than EP grounds.
a. Dissent: Rehnquist/Burger/White/Blackmun: this is a strange mix of E.P. and
procedural and substantive DP. The majority had implicitly found “faulty” delegation of
power to the CSC and the “overriding national interest” was not any “specific interest in
excluding these particular aliens, but rather a general interest in formulating policies
toward aliens.”
11) Matthews v. Diaz (1976): Congress may condition an alien’s eligibility for Medicare on (1)
admission for permanent residence and (b) continuous residence in the US for five consecutive
years.
a. Synopsis of Rule of Law. The federal government may restrict aliens from receiving or
qualifying for benefits enjoyed by United States citizens.
b. Facts. The Appellees were denied enrollment in the Medicare Part B supplemental medical
insurance program and therefore, challenge the constitutionality of this denial. Specifically, the
Appellees challenge the requirement that aliens can only qualify for the federal medical
insurance program if he or she becomes a permanent resident and resides in the United States
for at least five years. The District Court held the eligibility condition to be unconstitutional.
The judgment of the court is reversed.
c. Held. Justice John Paul Stevens (J. Stevens). The Due Process Clause of the Fifth Amendment of
the Constitution protects aliens and citizens. However, this protection does not lead to the
conclusion that “all aliens are entitled to enjoy all the advantages of citizenship.” Also, The
Equal Protection Clause of the Fourteenth Amendment of the Constitution concerns
relationships between aliens and states, not between aliens and the federal government.
(decided on same day as Hampton): unanimous court: applied deferential standard of review
b/ Congress had broad power over naturalization and immigration. Discrimination within the
class of aliens was found to be acceptable (as opposed to discrimination between citizens and
non-citizens.)
KREIMER: Look ahead to the discussion in City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 440-441 (
1985), which we’ll read for Wednesday:
“ The general rule gives way, however, when a statute classifies by race, alienage, or national origin. These
factors are so seldom relevant to the achievement of any legitimate state interest that laws grounded in such
considerations are deemed to reflect prejudice and antipathy -- a view that those in the burdened class are
not as worthy or deserving as others. For these reasons and because such discrimination is unlikely to be
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soon rectified by legislative means, these laws are subjected to strict scrutiny and will be sustained only if
they are suitably tailored to serve a compelling state interest. McLaughlin v. Florida, 379 U.S. 184, 192
(1964); Graham v. Richardson, 403 U.S. 365 (1971). Similar oversight by the courts is due when state laws
impinge on personal rights protected by the Constitution. Kramer v. Union Free School District No. 15, 395
U.S. 621 (1969); Shapiro v. Thompson, 394 U.S. 618 (1969); Skinner v. Oklahoma ex rel. Williamson, 316 U.S.
535 (1942).
Legislative classifications based on gender also call for a heightened standard of review. That factor
generally provides no sensible ground for differential treatment. "[What] differentiates sex from such
nonsuspect statuses as intelligence or physical disability . . . is that the sex characteristic frequently bears
no relation to ability to perform or contribute to society." Frontiero v. Richardson, 411 U.S. 677, 686 (1973)
(plurality opinion). Rather than resting on meaningful considerations, statutes distributing benefits and
burdens between the sexes in different ways very likely reflect outmoded notions of the relative capabilities
of men and women. A gender classification fails unless it is substantially related to a sufficiently important
governmental interest. Mississippi University for Women v. Hogan, 458 U.S. 718 (1982); Craig v. Boren, 429
U.S. 190 (1976). Because illegitimacy is beyond the individual's control and bears "no relation to the
individual's ability to participate in and contribute to society," Mathews v. Lucas, 427 U.S. 495, 505 (1976),
official discriminations resting on that characteristic are also subject to somewhat heightened review. Those
restrictions "will survive equal protection scrutiny to the extent they are substantially related to a legitimate
state interest." Mills v. Habluetzel, 456 U.S. 91, 99 (1982).
We have declined, however, to extend heightened review to differential treatment based on age:
"While the treatment of the aged in this Nation has not been wholly free of discrimination, such persons,
unlike, say, those who have been discriminated against on the basis of race or national origin, have not
experienced a 'history of purposeful unequal treatment' or been subjected to unique disabilities on the basis
of stereotyped characteristics not truly indicative of their abilities." Massachusetts Board of Retirement v.
Murgia, 427 U.S. 307, 313 (1976).
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Gender Discrimination and the Racial Analogy: Middle Level Review
The Court applies a single standard to all gender-based classifications: any gender-based classification must be
“substantially-related” to “important” governmental objectives. 19th Amendment only protects the right of
franchise, but has no E.P. clause like 14th.
Current Test:
Proof: (1) Gender classification on face of the law OR (2) Facially gender neutral but has (a) discriminatory
impact AND (b) invidious intent
 Intermediate Scrutiny applied: 1) Must serve important governmental objectives and 2) Must be
substantially related to those objectives and 3) Must show exceedingly persuasive justification for
the action. (U.S. v. VA.)
Administrative ease and stereotypes don’t count.
History of Gender-Based Classifications and the Court’s Response :
1868: 14th Amendment. Until this time the Constitution didn’t embody any gender-distinctions, but the
14th Amendment explicitly provides for female disenfranchisement. (Section 2 provides for reduction in
representation in states to the extent they deny male inhabitants of age the right to vote.
Approving Gender Classifications: Rational 1873: Bradwell v. Illinois: embodied the notion of
Basis Standard
separate spheres for women/separate roles: the
notion of exclusion of women in public and
economic roles was embraced by the courts as the
way to insure harmony.
1908: Mueller v. Oregon: it was legitimate to treat
women specially: due to special characteristics of
women it was appropriate to limit the amount of
hours a women could work per day, but not males
(Lochner.)
1920: The 19th Amendment was passed: enfranchised women.
1923: Adkins v. Children’s Hospital: Invalidated
Still Approving Gender Classifications: Rational a minimum wage law for women, because women
Basis Standard
had entered into the legal public life of the country:
19th Amendment and married women’s property
rights (in many states gave women the right to
make contracts).
1937: West Coast Hotel: Overruled the advances
made in Adkins. Upheld guaranteed minimum
wage only for women.
1948: Goesaert v. Cleary: Court reinforces the
archaic stereotype that women need to be
protected. Upheld prohibition in women working
in bars unless they were relatives of the bar owner
(to protect them against dangers of working alone
in bars.)
1961: Hoyt v. Fla.: upheld Fla. Statute
automatically granting women the exemption from
jury duties. (can “opt out”)
1964: Civil Rights Act: Prohibits discrimination in employment of those businesses that affect interstate
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commerce. Title VII: amended to prohibit discrimination on the basis of race, religion, sex, and national
in private employers who affect interstate commerce and extended in 1974 to public employers.
Title VI did not prohibit recipients of federal funds from discriminating based on sex.
1971: Congress proposed a constitutional remedy: an amendment: Equal Rights Amendment: equality
of rights on the law shall not be denied on the basis of sex. 35 states ratify, but in 1982, it fails without
enough states adopting the amendment (minimum must be 38.)
1972: Title IX: extended a prohibition on sex discrimination to educational institutions that receive
federal funds. Exceptions: did not encompass single sex education.
1978: Pregnancy discrimination act: extends Title VII
Innovative Rational Basis Standard (looks like 1971:
like Reed v. Reed: purports to apply the rational
Intermediate Scrutiny):
basis test, but here the rational basis test as applied
in this case applied the standard with more bite,
Classification must be (1) reasonable (not
and required the archaic, arbitrary and inaccurate
arbitrary) and (2) must rest upon some ground
stereotypes will not be sufficient to sustain a
of difference having a fair and substantial
gender-based classification.
relation to legislation.
1974: Frontiero v. Richardson: J. Brennan made
the argument that gender like race requires strict
scrutiny, because the characteristics is immutable,
Almost Strict Scrutiny
and both groups have been subject to past
discrimination, and this characteristic isn’t
relevant regarding morals, performance, etc. But
the majority of the court applied the intermediate
scrutiny. (But because this is a plurality, it didn’t
stick.)
1976: Craig v. Boren: Court adopts the
intermediate scrutiny standard: Stereotypes even
if mildly accurate should be used as a justification
1) Must serve important governmental
for classifications based on gender, because not all
objectives
parties fall into that stereotype, and also this
2) Must be substantially related to those
holding raised the bar and made the state interest
objectives
have to be important, and not just legitimate, and
the relation between the classification and the
interest must be substantial and not just rationally
related.
1978: Only 35 of 38 states necessary to ratify have approved the Equal Rights Amendment. The ERA
ratification is extended.
Intermediate Scrutiny Standard Adopted
1982: ERA expires.
Intermediate Scrutiny Standard With A Twist:
1) Must serve important governmental
objectives
2) Must be substantially related to those
objectives
and, after 1996:
3) Must show exceedingly persuasive
justification for the action. (U.S. v. VA.)
The burden of justification rests with the State,
Mississippi University for Women v. Hogan:
Court seems to go one step further: The interest
must be genuine and can’t be hypothesized: the
important interest can’t just be pretextual. In
supporting the classifications the state can’t rely on
archaic stereotypes or that women need to be
protected.
1994: JEB: Act of the government seems
entirely rational: preemptory challenges in
custody cases: O’Connor: like race, gender
matters, and that the state isn’t acting irrationally:
but the decision fails to provide an exceedingly
persuasive justification, because the law accepts
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and “must not rely on overbroad generalizations
about the differences between males and females.”
(U.S. v. VA)
M. Cheng
the very type of stereotype the law condemns:
though rational the law can’t support a stereotype.
Any type of stereotype is impermissible.
1996: U.S. v. Virginia: The classification is rational
based on the differences between men and women:
reiterates the exceedingly persuasive justification
standard: important government objectives,
substantial relationship, and must be genuine and
not post hoc. Classifications can’t be used to
support legal, social or economic subordination of
women.
2010: Idaho court struck down Idaho statute exempting
real property of the wife against execution of husband but
not vice versa.
Basis for increased skepticism about gender classifications:
1. If race discrimination is the paradigm of unfair classifications, one could say that there are parallels:
a. Both are ascriptive, immutable, and morally irrelevant.
b. There is a problem with treating men and women differently based on their membership in
groups.
2. There is a visible component of sex that is widely burdened with stereotypes in historic American
culture. Bradwell’s “natural timidity of women” was derived from cultural expectations rather than
biological. These stereotypes are linked with a tradition of exclusion from opportunity and power.
3. Explicit exclusion made it easier for employers not to take into account the skills of women and
produced even more exclusion. Vicious cycle: Women had less experience jobs making them less inclined
to accumulate education and working capital. By 1969, the number of women in state legislatures totaled
about 4%.
4. Differentiation on the basis of sex risk perpetuating prior oppression. What appears to be real
differences may simply be the result of prior discrimination and prejudice. (cf racial segregation of
schools.)
Viewing sexual discrimination
1. Original intent: doesn’t take us far. The promise of “equality” is not self evident, but rather responds to
societal concerns and ideals/aspirations read into the definition of equality. However, even Scalia is
willing to extend EP component of 5th Amendment to allow the living constitution to apply.
2. Women are not a discrete and insular minority after the 19 th Amendment. Women are also subject to
less ongoing segregation today.
3. While racial distinctions are said to be irrelevant to legitimate concerns, Ginsberg reminds us in US v.
Virginia, there are physical and social differences between men and women. Non-invidious social
differences allow us to accept a women’s only bathroom and not a Blacks only restroom. Utilitarian
roots produce many gender distinctions, rather than archaic stereotypes producing brands of
inferiority. However, given these differences, it become all too easy to use targeting at particular social
roles and physical characteristics as an occasion for generating the same set of exclusion.
Why isn’t gender analyzed under strict scrutiny? 14TH Amendment’s original intent was to eliminate racial
inequality, but we do have the 19th Amendment that can allow you to read the 14th Amendment to apply to
women, and women aren’t discrete and insular minority group and thus they don’t need as much protection: but
women have only been voting in the U.S. since 1920, there were many exclusions that were legal until 1970, and
general access to the public sphere by the remaining elements of prejudice and men and women take different
life paths (more women than men stay home with the children). But there are some real differences between
males and females that would them to be treated differently, because they aren’t similarly situated: physical
differences.
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TODAY: “Exceedingly persuasive justification”: The Court also now applies intermediate scrutiny in a rigorous
manner, which makes it closer to strict scrutiny than mere rationality review. Now defenders of gender-based
programs must show an “exceedingly persuasive justification” for the scheme, and the court will apply “skeptical
scrutiny.” The government’s action won’t often pass the mid-level review. Nevertheless, the plaintiff must prove
the statute was enacted with discriminatory intent to succeed (see Feeney above).
1.
History of Deference to Legislation: Mere Rationality Standard:
a. Bradwell v. State (1872): Bradwell applied for a license to practice law, but was denied
b.
c.
d.
e.
by the Supreme Court of Illinois, because a married women couldn’t be bound by either the
express or implied contracts attorneys and clients make. Bradwell challenges this holding
under the privileges and immunities clause of the 14 th Amendment.
i. Held: J. Fields: The holding was upheld, because admission to the bar wasn’t a
privilege and immunity of national citizenship; not substantially related to the
national rights. Ignores unmarried women—does not address what he sees as an
exception.
ii. Justice Bradley’s Concurrence: G-d created men and women differently, and each
should remain in the role that was ordained for each sex. Bradley was saying that
women should be subordinate to their husbands.
iii. Problem: women are born into an immutable group, they can’t change their sex, and
they will be subjugated to the will of their husband without recourse and this conflicts
with the equal protection clause.
Minor v. Happersett (1874): Court denied that federal privileges and immunities
included the right of women to vote in state elections. Women were not entitled to participate
in a political/professional realm reserved to men even if they were within the meaning of the
14th Amendment and citizens.
Goesaert v. Cleary (1948): Mere Rationality Standard: J. Frankfurter: Court
upheld Michigan law provided women could only obtain a bartender’s license if she is the wife
or daughter of the male owner, because Michigan had a reasonable belief that this law would
provide barmaids with protection and oversight. Because the law had some rational basis, the
Court refused to conclude the main reason the law was enacted was to allow men to
monopolize the field. “The Constitution does not require legislatures to reflect sociological
insight, or shifting social standards.”
i. Dissent: J. Rutledge/Douglas/Murphy: inadequate fit between ends and means.
Reed v. Reed (1971): Heightened Scrutiny: State interest in convenience isn’t a
legitimate state interest: Heightened Scrutiny under the deferential, old EP guise: State
courts sustained a preference for men over women in the appointment of administrators of
estates in order to avoid hearings as to the merits of the administrators.
1. Held: J. Burger (unanimous court): this was a denial of equal protection,
because: “giving a mandatory preference to members of either sex over
members of the other, merely to accomplish the elimination of hearings on
the merits, is to make the very kind of arbitrary legislative choice forbidden
by equal protection.” Though the Court purported to apply the mere
rationality test it was clearly putting more bite into the traditional standard.
Frontiero v. Richardson (1973): Almost getting to S.S. :
i. Facts: Court sustained an equal protection challenge to a federal law affording male
members of the armed forces an automatic dependency allowance for their wives, but
requiring servicewomen to prove their husbands were dependent on them [saves
government $, because husbands are not dependent on wives as often as wives are
dependent on husbands].
ii. J. Brennan: Classifications based on sex are inherently suspect and should be
subjected to strict scrutiny. (However, Brennan did not get a majority for this, only a
plurality, so S.S. was not set as precedent.) Sex is an immutable characteristic, and the
sex characteristic often bears no relation to the ability to perform or contribute to
society.
Any scheme that draws sharp lines between sexes solely to achieve
administrative convenience violates equal protection.
iii. Concurrence: Powell/Burger/Blackmun: concurrence in judgment, but felt that it was
unnecessary to treat sex as a suspect classification (should not apply S.S.). Court
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should wait to see if Equal Rights Amendment was passed, which would approve S.S.
for gender classifications.
iv. Concurrence: Steward: concurred in judgment and that gender classifications should
be subject to S.S., yet he was sure that ERA would be approved and thus advised
waiting until then to apply strict scrutiny to gender
v. Aftermath: Because there was no majority supporting S.S., the Court was not
consistent with applying S.S.
Modern trend: Retreat to Intermediate Scrutiny/”Exceedingly Persuasive Justification”: Test
requires (1) important ends and (2) substantially related means
2.
Craig v. Boren (1976) :
a. Facts: Equal protection challenge to a statute which prohibits the sale of “non-intoxicating”
3.2% beer to males under the age of 21 and to females under the age of 18. The state argued
the law was enacted to protect the public health and safety; there was statistical data
indicating arrests of males 18-20 yrs. old for drunk driving was more than female arrests
(though by only 2%).
b. Held: laws that establish classifications by gender must serve important governmental
objectives and must be substantially related to achievement of those objectives.
i. Applied to this case: the objective was traffic safety, which is an important
government function, but the statistics don’t support the conclusion that the genderbased distinction is substantially related to achievement of those objectives. The
disparity between males and females, 2%, can’t be the basis for the use of gender. The
Court required a closer fit between the means and the important government end.
Proving broad sociological propositions by statistics is a dubious business, and one
that inevitably is in tension with the normative philosophy that underlies equal
protection: overly broad generalizations are dangerous.
c. Concurrence: J. Powell: “This gender-based classification does not bear a fair and substantial
relation to the object of the legislation.
d. Concurrence: J. Stevens: This is objection b/the classification is based on “an accident of birth.”
e. Dissent: J. Rehnquist: Court errs in two areas: (1) conclusion that men challenging gender
based statutes that treats them less favorably may invoke a more stringent standard of judicial
review than the rational basis standard, and (2) The middle level review enunciated by the
majority is wrong and isn’t rooted in precedent, or the purpose of the 14 th Amendment.
3. Mississippi University for Women v. Hogan (1982): restated Craig standard by invalidating
the state-supported School of Nursing’s women-only admissions policy.
a. J. O’Connor: “Although the test for determining the validity of a gender-based classification is
straightforward, it must be applied free of fixed notions concerning the roles and abilities of
males and females.”
b. Remedy for past discrimination: O’Connor rejects this, seeing “now showing that women lacked
opportunities to obtain training in the field of nursing or to attain positions of leadership in
that field when MUW opened.”
c. Not affirmative action: O’Connor rejected the state’s argument that the single sex policy
compensated for discrimination against women and was education affirmative action. This
type of compensation would only be valid if members of the sex benefited by the classification
actually suffer a disadvantage related to classification. In this case the state would have to
show women had been discriminated in the field of nursing and not just in general in
education or employment. There was no such showing made by the state, to the contrary
nursing was solely viewed as a women’s occupation. Thus, the single-sex policy perpetuated a
stereotype about proper roles for women.
d. Diversity claim rejected: O’Connor also rejected the claim the single-sex school provided
women with a choice of educational environments, but this choice was only given to women.
The main issue to O’Connor was whether the legislative decision to grant this choice only to
women was substantially related to achievement of an important governmental objective. She
held it wasn’t.
e. No showing of substantial and directly related means to its proposed compensatory
objective. MUW’s claim that women are adversely affected by men in the classroom is
undermined by the fact that they allow men to audit.
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f.
Dissent: Powell/Rehnquist: object to the heightened scrutiny of a state effort to “provide
women with a traditionally popular and respected choice of educational environment.”
4. J.E.B. v. Alabama ex rel. T.B. (1994): peremptory objections to jurors on the basis of their
gender are unconstitutional.
a. Facts; Alabama sued J.E.B., father, to establish paternity and award child support on behalf of
T.B., the mother of a minor child. The state used most of its peremptory challenges to strike
male jurors. An all-women jury was empaneled.
b. Rationale: J. Blackmun: Unconstitutional.
i. The issue was “whether discrimination on the basis of gender in jury selection
substantially furthers the State’s legitimate interest in achieving a fair and impartial
trial.” The Court answered that it did not, because the assumption that women jurors
will have certain types of attitudes in certain cases (such as the paternity case in J.E.B.)
reinforced stereotypical assumptions about women.
ii. Test:
1. Serves important purpose
2. But is not substantially related. The Court will not reinforce these stereotypes.
There is no basis for the prediction that gender is an accurate predictor.
iii. The support has to be that which does not generate the very stereotype that the
law condemns.
c. Dissent: Rehnquist: “Use of peremptory challenges on the basis of sex is generally not the sort
of derogatory and invidious act which [the same] directed at black jurors might be.”
d. Dissent: Scalia: “Peremptory challenges coexisted with the Equal Protection Clause for 120
years. This case is a perfect example of how the system as a whole is evenhanded. [For] every
man struck by the government, petitioner’s own lawyer struck a women. To say that men were
singled out for discriminatory treatment in this process is preposterous.”
5. U.S. v. Virginia (1996): Stereotypical thinking rejected: The court is especially likely to strike
down a gender-based classification that is based on faulty generalizations about the differing abilities
and interests of the two sexes.
a. Facts: Virginia operated VA Military Institute, an all male military college to develop citizen
soldiers. The single sex policy was challenged under equal protection. Virginia defended the
policy: (1) VMI’s approach: rigorous physical training, no privacy, and adversative approach
would have to be materially altered if females were allowed to attend, and (2) the all male
school provided diverse choices for students entering college in Virginia.
b. Held: J. Ginsburg: Unconstitutional: (1) Virginia’s policy of excluding women was a violation
of women’s equal protection rights, and (2) the alternative women’s only program wasn’t
sufficiently comparable to VMI so as to redress the problem.
i. Exceedingly persuasive justification needed: Stricter tone to the application of the
middle level review: sex based classifications have to undergo skeptical scrutiny and
would be upheld only of the statute demonstrated an exceedingly persuasive
justification for any gender based government action.
ii. No “overbroad generalizations”: Gender based classifications can’t rely on
overbroad generalizations about the different talents, capacities, or preferences of
males and females, and can’t be used to create or perpetuate the legal, social, and
economic inferiority of women.
iii. As applied: Ginsburg rejects the claim that the VMI program would have to be
changed substantially if women were admitted. Most women might not like the
training methods, but Virginia’s fears were overblown.
1. FN p599: “We do not question the State’s prerogative evenhandedly to
support diverse educational opportunities. We address specifically and only
an education opportunity recognized by the lower crts as ‘unique’ an
opportunity available only at Va’s premier military institute, the State’ sole
single-sex public university or college.”
iv. Diversity Policy: Virginia’s argument that VMI created diverse educational
approaches was rejected, because it wasn’t the actual purpose.
1. The alternative all women’s school wasn’t an adequate remedy: To
remedy an equal protection violation the solution must place the victims in
the position they would have occupied in the absence of discrimination and to
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eliminate the discriminatory effects of the past. The alternative program was
in no way equivalent to VMI.
v. Objective must be the one that actually motivated the state: when the government
articulates a justification for gender based classifications it must describe its actual
state purposes, not rationalizations for actions in fact differently grounded.
c. Dissent: J. Scallia:
i. Objects to majority’s standard: the new exceedingly persuasive standard contradicts
the courts’ previous rulings. The new standard was really an unacknowledged
adoption of what amounts to strict scrutiny.
ii. Satisfied the middle level review: VMI satisfied the middle level of review, because it
served an important state interest in achieving education diversity, and the choice to
have an all male and all female school satisfied this goal.
iii. The majority’s approach ensures that single-sex public education is functionally dead.
6. Geduldig v. Aiello (1974): Denying benefits to pregnant women is okay b/no invidious intent
a. Facts: CA administered an insurance system for benefits to person in private employment
temporarily unable to work due to disabilities not covered by worker’s comp. The system was
challenged, under the Equal Protection Clause, because it excluded disabilities resulting from
pregnancy (pregnancy wasn’t the only exclusion).
b. Issue: whether the Equal Protection Clause requires a policy that attempts to keep the costs of
a state run insurance program down (affordable for low-income workers: CA tried to not allow
the cost of the program to increase above the one-percent contribution rate) must be
sacrificed in order to finance the payments attributable to disabilities associated with
pregnancy and delivery?
c. Held: No. There was no evidence the distinction based on pregnancy was a pretext to
discriminate against women. The policy that attempts to keep the costs of the program down
by not including every possible disability category need not be sacrificed in order to include
pregnancy as a disability covered.
i. There was no evidence of an invidious intent to discriminate between the sexes,
because the difference was between pregnant women and non-pregnant persons.
Once classification deemed facially neutral, then rational basis test will apply.
1. Exclusion of “disability that accompanies normal pregnancy and childbirth”
from CA’s disability insurance system did not constitute “invidious
discrimination” under the Equal Protection Clause.
ii. Under Williamson v. Lee Optical and REA v. N.Y. a state can take one step at a
time in addressing a problem and neglect other areas. There was a legitimate
interest in providing the insurance to all workers at an affordable cost, including this
category might raise the cost, and unduly burden low-income workers.
iii. The state’s legitimate interest in keeping the insurance system solvent and in making
benefits adequate were rationally related to the means chosen
iv. Note that women contributed 28% into the program and received back 38%, so if
anything men lose from the system.
d. Aftermath: Congress expressly overruled this by statute in the Pregnancy Discrimination Act,
which includes pregnancy discrimination in sex discrimination for employment. In
Washington v. Davis, disparate impact analysis for Title VII cases.
e. Court’s rationale is similar to that in Mass. v. Feeney: as long as the distinction isn’t
pretextual for sexual discrimination the Court will only look to see if the distinction is rational.
Fighting over classifications
Giving up on all classifications and declaring the Constitution gender-blind, can actually result in
discrimination against women. Recognizing that there are biological differences between the genders can
also cause “equality” questions.
Two tracks?
Compelling — “Necessity”
and
Classification
Age
Wealth
Constitutional?
NO: Mass.
NO: San
Legitimate — Rational…………… seems too easy.
Drug
dependency
NO: Beazer
Mental
Disability
YES:
Illigitimacy
Citizenship
YES: 1976:
YES: 1982:
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Bd. Of
Retirement
v. Murgia
(1976)
Antonio v.
Metropolitan
School
District
(1973)
(1979) (NY
transit
authority
refuse to
hire
methadone
dependant
people)
Cleburne
(1985)
Reason:
Not deeply
rooted, not
immutable,
not
discrete
and insular
minorities
Not deeply
rooted, not
immutable,
poor are not
discrete and
insular
minorities
Not
immutable.
Standard:
Rational
Basis
Rational
Basis
Rational
Basis
When
negative
attitudes
really lie
under
distinctions,
the court
will take
that into
account
Quasiheightened
Scrutiny
7.
Mython v.
Lucas
Clark v. Jeter
(1988)(striking
down a 6 year
statute of
limitations for
paternity suits
by non-marital
children where
no limit was
imposed on
marital
children)
This is a status
that is
unchosen and
immutable
Intermediate
Plyler
This is
unchosen
and
immutable,
creating a
shadow
class.
Strict
Michael M. Rotsker v. Superior Ct. (1981) Upholding a Gender Classification that benefits
women despite a problematic Substantially Related Requirement.
a. Facts: A CA statutory rape law punished males, but not females for participating in sexual
intercourse when the female was under 18, and not the male’s wife. Women do not have to
fear punishment when they make a claim.
i. He was 17, she was 16. There was reason that this was cohersive (rape) but prosecutor
decided to bring it as statutory rape for proof reasons.
b. Issue: is a gender-based law substantially related to the interest of preventing teenage
pregnancy? YES
c. Held: J. Rehnquist: Yes. Upheld the statute.
i. Real Gender differences: But the Court has upheld statute based on gender
classification when the classification isn’t invidious, but rather reflects that the sexes
aren’t similarly situated in certain circumstances: a legislature may provide for
the special problems of women.
ii. As Applied: The prevention of underage, illegitimate pregnancy, a central purpose of
the statute, is an important government interest.
1. Virtually all the harmful and inescapable consequences of teen pregnancy fall
on the female, and thus the legislature acted within its authority when elected
to punish only males who would suffer few consequences from his conduct
otherwise.
2. Also, the risk of pregnancy constitutes a substantial deterrence to young
females, but doesn’t for males. Criminal sanctions for males alone serves to
equalize the deterrents. If the statute covered females, females would be less
willing to report the incident.
d. Dissent: Brennan: The gender classification was designed to further outmoded sexual
stereotypes (the need to protect female’s chastity) rather than the need to reduce teenage
pregnancy, and thus the state can’t state a substantial relationship between the classification
and this newly asserted/pretextual goal. Rehnquist: even if the preservation of female chastity
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were one of the motives of the statute this doesn’t matter, because the Court won’t strike down
an otherwise constitutional law on the basis of an allegedly illicit legislative motive [U.S. v.
O’Brien].
e. Dissent: J. Stevens: The fact the statute applied to only one sex was clear sex discrimination,
and the fact that females would suffer greater harm is reason to apply the statute to them as
well.
i. Also, one could argue that this statute discriminates against women, because it takes
away the power of consent from women. Hence, once could argue this is an
unconstitutional statute on those grounds.
ii. This case demonstrates a recurrent problem: What should be the role of the
differences between men and women in equal protection analysis? Differences in
treatment can be justified when they correspond to relevant differences between the
sexes, because there are real differences between men and women. But it is the
search for what the real differences are that has been controversial.
f. Use of Biological Factors: Legislature’s use of biological factors can cause a disparate impact
on each sex, but only if there is proof that the disparate impact was intended by the lawmakers
will the statute be struck down on equal protection grounds. See: Mass. v. Feeney above.
8. Rostker v. Goldberg (1981) Problems with the Substantially Related Requirement: Draft
Registration
a. Facts: The Military Service Act required the registration of males, but not females.
b. Held: Upheld Act.
i. Legislative intent to retain the policy of men-only draft. Congress did not think it was
worth the “added burdens” of including women in draft and registration.
ii. The purpose of the registration was to facilitate any eventual conscription, and
Congress is given tremendous deference when dealing with military affairs and
national defense, and thus the test applied to gender classifications might differ
because of the context (Constitution itself requires such deference).
iii. The government’s interest in raising and supporting armies is an important
government interest, and Congress fully explored both gender-based, and genderneutral means of accomplishing this goal.
1. Congress found the use of the gender-based registration was appropriate: any
future draft would require combat troops, and females were statutorily
excluded from combat. Thus, Congress could conclude that they would not be
needed in the event of a draft, and therefore could exclude them from the
need to register.
2. Men and women, because of the combat restrictions, aren’t similarly situated
for purposes of a draft or draft registration. Also, the exemption of women is
closely related to Congress’ purpose in authorizing registration.
iv. Dissent: J. Marshall: excluding women from the registration requirement isn’t
substantially related to the achievement of a concededly important government
interest/maintaining an effective national defense. A gender-neutral means would
have been just as effective to attain this end, and thus the chosen method wasn’t
narrowly tailored to achieve the end.
9. Personal Administrator of Mass v. Feeney (1979)
a. Facts: Upheld MA law granting “absolute lifetime” preference to veterans for state civil service
positions. Over 98% of the veterans in Mass. were male. Feeney scored higher on the tests, but
lost jobs to lower scoring veterans.
b. Holding/Reasoning: Upheld Statute.
i. Rule: Arlington Heights / Washington v. Davis invidious intent
requirement in racially disparate impact cases.
ii. Holds that in determining whether there was an invidious intent, the question is
whether a law was made because of its disparate impact or in spite of its disparate
impact.
iii. Feeney conceded that hiring preference statutes were not per se invalid, but rather
that lifetime preference had a disparate impact on women. Court rejects this, saying
that if a hiring practice was invalid, it would be so across the board (“Invidious
discrimination does not become less so because the discrimination accomplished is of
a lesser magnitude.”)
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iv. “The history of discrimination against women in the military is not on trial in this
case.”
c. Concurrence: J. Stevens/White: the number of men disadvantaged by the law is large enough to
“refute the claim that the rule was intended to benefit males as a class over females as a class.”
d. Dissent: Marshall/Brennan: The result of this absolute preference is clearly an all-male
prerogative. A gender based civil service hierarchy has been established. It is so restrictive that
it cannot be reasonably be though gender-neutral.
Affirmative Action for Women, Using sex classifications to disadvantage men
1. Biological Differences: Discrimination against fathers over illegitimate children :
The Court has consistently applied the mid-level of review to claims of discriminations against fathers
of children born outside of marriage.
a. Caban v. Mohammed (1979): Court invalidated a N.Y. law granting the mother but not
father of an illegitimate child the right to block the child’s adoption by withholding consent.
i. J. Powell: The law was an overbroad generalization in gender-based classifications,
and no showing has been made that the distinction bears a substantial relationship to
the proclaimed interest of the State to promote the adoption of illegitimate children.
There is no universal difference between unwed mothers and fathers with regards to
the newborn infant.
ii. Dissent: J. Stevens: Argued there are real differences between mothers and fathers,
especially during the child’s infancy, and these differences were significant and made it
probable that the mother and not the father or both parents would have custody of the
newborn.
b. Parham v. Hughes (1979): Court rejected a sex discrimination attack on a Georgia law
denying the father (but not the mother) the right to sue for his illegitimate child’s wrongful
death. Had the father legitimized the child he could have brought the suit, but he hadn’t.
i. J. Stewart: The law didn’t invidiously discriminate against the natural father, because
mothers and fathers of illegitimate children are different/aren’t similarly situated,
because only the father can by voluntary unilateral action make an illegitimate child
legitimate. The statute didn’t distinguish between men and women, but rather fathers
who had legitimized the child and those that hadn’t.
ii. Dissent: J. White: The fact that only fathers can legitimize the child doesn’t dissolve
the sex discrimination in requiring them to legitimize the child before they can bring
the wrongful death suit.
c. Nguyen v. INS (2001) Upheld 8 USC 1409 providing that the citizenship of a child of an
alien father and a citizen mother is established at birth, while the citizenship of a child of an
alien mother and a citizen father could be established only if and when the father
acknowledged his paternity or was subject to an adjudication of paternity while the child was
still a minor. The distinction was challenged as a denial of equal protection.
i. Held: J. Kennedy: No equal protection violation.
1. This was substantially related to important government objectives: “ensuring
that a person born out of wedlock who claims citizenship by birth actually
shares a blood relationship with an American citizen.”
a. Male and female parents aren’t similarly situated with respect to
these interests: hospital records and birth certificates immediately
establish the blood relationship of the mother, and the mother would
have possession immediately after birth.
2. Also substantially related to governmental interest in the ensuring that the
parent and citizen parent have some demonstrated opportunity or potential to
develop not just a relationship that is recognized by law, but one that consists
of the real, everyday ties that provide a connection between child and citizen
parent, and in turn, the U.S.”
a. Problematic: says that for the citizen mother and child abroad, “the
opportunity for meaningful relationship between citizen parent and
child inheres in the very event of birth.”
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2.
3.
4.
M. Cheng
ii. Dissent: J. O’Connor: Not narrowly tailored. Also, it doesn’t really matter that the
mother must be present at birth – that won’t make her relationship more uniquely
verifiable by the INS.
1. Majority overstates the evidentiary difference between proof of maternity and
proof of paternity. The law is not based on “biological differences but instead
in a stereotype—i.e. ‘the generalization that mothers are significantly more
likely than fathers [to] develop caring relationships with their children. [The
very stereotype] that the law condemns.”
2. Points out that the child had been raised since age five by his citizen-father in
Texas.
3. DNA testing can used to determine paternity.
Kahn v. Shevin (1974) Property tax exemptions: Deferential standard to uphold a state
property exemption for widows, but not widowers. Mere rationality: Kahn v. Shevin (1974):
a. Facts: a state property tax exemption for widows was sustained, because it rested, “upon some
ground of difference having a fair and substantial relation to the subject of the legislation. The
tax law was reasonably designed to further the state policy of cushioning the financial impact
of spousal loss upon the sex for which that loss imposes a disproportionately heavy burden.”
The tax break was designed to rectify the effects of past discrimination against women.
i. J. Douglas: statute was “reasonably designed to further the state policy of cushioning
the financial impact of spousal loss upon the sex for which that loss imposes a
disproportionately heavy burden.” Sees this “designed to rectify the effects of past
discrimination against women.”
ii. Reduction of the disparity in economic condition caused by the long history of
discrimination against women has been recognized as an important governmental
objective.
b. Dissent: J. Brennan: There must be close judicial scrutiny of gender-based classification even
benign ones. Though the law served the compelling purpose it should be invalidated, because
it was not the most narrowly tailored means: the State should have narrowed the tax
exemption to only those widows who had been the subject of past discrimination.
Social security benefits :
a. Weinberger v. Wiesenfeld (1975): invalidates S.S. provision allowing deceased man’s
wages to be payable to husband and minor children, but deceased woman’s wages payable only
to minor children. This is unjustifiable discrimination.
i. Based on the stereotype that “male workers earnings are vital to the support of their
families.”
ii. The ‘mere recitation of a benign, compensatory purpose is not an automatic shield that
protects against any inquiry into the actual purpose underlying a scheme.’
b. Califano v. Goldfarb (1977): applied Wisenfeld.
i. J. Brennan: invalidated provision in the Federal Old-Age, Survivors and Disability
Insurance Benefits program whereby a woman automatically received benefits based
on the earnings of her husband, but a man would receive such benefits only if he could
prove that he received at least half of his support from his wife.
1. Based on the stereotype that “wives are usually dependent”
2. Wisenfeld was inconsistent with Kahn and Wisenfeld should be applied.
ii. Concurrence: J. Stevens: relevant discrimination here was “against surviving male
spouses rather than against deceased female wage earners.”
iii. Dissent: Rehnquist/Burger/Steward/Blackmun: Kahn should be used to benign sex
classifications and that discrimination against men should not be treated as “invidious
discrimination.”
c. Caifano v. Webster (1977): Upheld SS Act’s formula for computing old age benefits as a
valid gender preference.
i. Female could exclude three more lower-earning years than a similarly situated male.
Craig Standard reinterated.
Rejecting the stereotype of financially dependent women
a. Orr v. Orr (1979) Alimony after divorce: Invalided law authorizing Ala. courts to impose
alimony obligations on husbands but not wives.
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b.
c.
M. Cheng
i. J. Brennan: applied Craig v. Boren standard—remedy was legitimate state objective,
but the means do not justify the scheme. Financial hearings are already in place to
determine need. Protection can be achieved without this. The advantage here is given
only to the financially stable wife with a ex-husband in need.
ii. Even “benign” classifications can reinforce stereotypes about the “proper place of
women and their need for special protection.”
Wengler v. Druggists Mutual Insurance Company (1980): Invalidated state law that
automatically allowed widows benefits, but only gave widowers benefits if they proved that
they were dependent on their wives’ income or were physically incapacitated.
i. J. White: discrimination against men and women. This is not a “benign” discrimination
and, under Craig Standard, found that means did not substantially serve the statutory
end of providing for needy spouses.
ii. Concurrence: J. Stevens: did not find that this was simultaneously discriminating
against women and men, however, agreed that state failed to justify the disparate
treatment.
Schlesinger v. Ballard (1975): upheld system that allowed women 13 years before mandatory
discharge for want of promotion, but men had to be discharged if they had been twice passed
over for promotion (even if under 13 years.)
i. J. Stewart: applied deferential rationality standard
ii. Dissent: J. Brennan/Douglas/Marshal: Strict Scrutiny should be used. This wouldn’t
even survive rationality review. Different treatment reflected the reality that men and
women are not similarly situated with respect to opportunities in the military.
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What are Fundamental Rights? Other Classifications
If the classification burdens a fundamental right or fundamental interest the classification will be subjected to strict
scrutiny regardless of the characteristic of the people who are burdened.
Meaning of fundamental:
 Rights, which are independently and explicitly guaranteed by some other constitutional provision.
Example: the right of interstate migration.
 Rights, which are both important and implicitly granted by the Constitution: large deviations in equality
as to them are viewed as suspect. Example: The right to vote in state elections.
Three principal areas where fundamental rights are at stake: (1) the right to vote, (2) access to the courts, (3)
the right of interstate migration.
Right of Access to Courts: Fundamental right: requires strict scrutiny: the right to appeal can’t be based on the
payment of a substantial amount of money, deny right to acquire divorce without payment, same for paternity cases ($
for blood tests), and right to appeal the termination of parental rights, but no on filing bankruptcy, no on denial of
welfare: (1) justice must be blind: not regard personal characteristics, (2) punishment is to be distributed in terms of
guilt or innocence and not based on wealth. See Emanuel.
The Right to Vote: The Court hasn’t required strict scrutiny, but the Court has said the right to vote raises substantial
scrutiny/must be substantially justified. The right to vote is the right to participate as an equal in society. 15 th, 19th,
and 24th Amendment (prohibits suspension of vote in federal elections for failure to pay poll tax.) But none affect the
right of states to regulate access to franchise.
Reynolds (1964)
Harper (1966)
Kramer & McDonald v. Bd of Elections (1969)
Richardson v. Ramirez (1974)
Crawford v. Marin Bd. (2008)
Macro v. Micro View of EP: Affecting the individual person: taking into account the nature of the classification
versus the nature of the application. See Plyler, Cleburne, Romer/Evans.
HYPO: Mayor sets aside box for watching annual parade. The trait of being willing to pay for a box seat the Mayor’s
parade does not seem to invoke EP. Neither does a box allocated to his political and buddies. However, this would
raise EP protection problems when Mayor allocates kidneys. What about only allowing mayor’s friends to pamphlet
outside the polling halls.
Education and Wealth: Not a fundamental right: mere rationality standard.
1. San Antonia Independent School District v. Rodriguez (1973): Economic disparity:
Rational Basis Standard Applied .
a.
b.
c.
Facts: Texas school financing system resulted in radical disparities between the richest and
poorest districts.
Holding/Reasoning: Rigid scrutiny is not required because poor people are not a “suspect
class” because none of the traditional indicia of suspectness:
i. The class is not saddled with disabilities; or subjected to such a history of purposeful
unequal treatment; or relegated to such a position of political powerlessness as to
command extraordinary protection from the majoritarian political process.
ii. Also, education is not a fundamental right.
Marshall Dissent:
i. There should be a spectrum of standards of review and not just strict scrutiny or
rational basis.
ii. Sliding scale approach: Court must evaluate:
1. The constitutional and societal importance of the interest adversely affected;
and
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The recognized invidiousness of the basis upon which the particular
classification is drawn.
Mental Handicap: “Quasi Suspect” Classification: Intermediate Scrutiny
2. City of Cleburne v. Cleburn Living Center: Heightened Scrutiny (aka Intermediate
Scrutiny) 4: mental retardation is a “quasi-suspect” classification, city can not
require a special use permit for mental hospital (protection from handicap
discrimination.) :
a.
Facts: Cleburne “hospital for the feebleminded” was denied a special permit, because negative
attitude of the majority of property owners within 200 feet and a school was right across the
street—they were worried that high school kids would harass the residents of the home
located in a 500-year flood plain the legal responsibility of the mentally retarded.
b. PP: Ct. App. 5th Cir. held that mental retardation is a “quasi-suspect” classification and the
ordinance violated the Equal Protection Clause because it did not substantially further an
important governmental purpose.
c. Rule:
i. Rational basis.
ii. Indulging private biases is not a legitimate interest.
d. Holding/Reasoning:
i. The mentally retarded are not a suspect or quasi-suspect class, because metal
retardation is a characteristic that the govt may legitimately take into account in a
wide range of decisions, and because the government has committed itself to assisting
the retarded. No heightened scrutiny.
ii. But, under rational basis, the zoning against the home for the mentally retarded is
unconstitutional (animus is not a legitimate interest and the relation to the 500 year
flood plane was unreasonable).
iii. But this is rational relation with a bite. Giving effect to private animosity – the belief
that certain individuals are less worthy of respect than others – is not a legitimate state
interest.
e. Concurrence: Stevens
i. All equal protection cases should use the “rational basis” standard.
ii. One should look to the entire situation and ask whether an impartial decision-maker
could come to the decision in question.
f. Concurrence: Marshall: Cleburne’s ordinance would be valid under the traditional rationalbasis test applied to Williamson v. Lee Optical. The scrutiny here is rational basis with “bite.”
i. The level of scrutiny employed in equal protection cases should very with the
importance of the interest adversely affected.
ii. Marshall’s spectrum analysis: level of scrutiny should vary with:
1. the constitutional and societal importance of the interest adversely affected
and
2. the recognized invidiousness of the basis upon which the particular
classification is drawn.
g. Notes: In 2001, Rehnquist said Cleburne did not stand for the proposition that animosity
toward a group is not a legitimate interest. The presence of hostility for a group alone does not
make something unconstitutional.
Sexual Orientation: Not a suspect class, mere rationality (see Freedom of Sexuality below)
Bowers v. Hardwick (1985): no constitutional protection for sodomy:
Held: consensual sodomy is not a fundamental constitutional right that invalidates laws of states that make it
illegal.
Romer v. Evans (1996): Hostility to homosexuals cannot constitute legitimate
governmental interest .
Rule:
A bare desire to harm a politically unpopular group cannot constitute a legitimate govt interest.
A law must bear a rational relationship to a legitimate govt interest.
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Holding/Reasoning: J. Kennedy: The CO amendment is unconstitutional.
Dissent: Scalia: Tolerant Coloradans want to preserve traditional sexual mores against the efforts of a
politically powerful minority.
Lawrence v. Texas (2003): homosexuality case: TX statute forbidding same-sex intimate relations
is unconstitutional under 14th Amendment’s EP clause.
Held: J.Kennedy: Statute violates the EP clause and there is no need to rely on the DP clause.
Age: physical characteristic about which one has no choice, but may be related to legitimate public interests.
Everyone at some point ends up being old, and everyone was young once. The Court holds that age isn’t typical
of a suspect classification, and thus is only subject to the mere rationality test: (1) Vance v. Bradley, and (2)
Gregory v. Ashcroft.
Drug Addiction: only partially the result of a chosen set of characteristics: The Beezer Case: drug
dependency isn’t like race: it isn’t immutable, and is related to real public interests.
The right to procreate: Fundamental Right deserving Strict Scrutiny
1.
See Buck v. Bell (1927): sterilization of mentally ill Carrie Back serves state interest
in public health
a. Skinner v. Oklahoma (1942): investigating the interest that is being
suffered (micro-view): Beginning of identifying certain interests that are
not necessary fundamental, but the restriction of which must be justified by
more than rationality: S.S. makes first appearance
b.
c.
d.
e.
Facts: Oklahoma deprives certain individuals of a right to have offspring. Those who are
defined as a habitual criminal, who have been convicted of two or more felonies involving
moral turpitude, are rendered sterile. Skinner is a convicted chicken thief.
Held: J. Douglas: The act violates the equal protection clause. The right involved here is one of
the basic civil rights of man, and thus the strict scrutiny standard should be applied.
i. It is morally problematic to say to some you may reproduce and to others you may not:
the capacity to reproduce is the capacity to be a member of society over time: requires
a higher level of justification. “We are dealing here with legislation which involves one
of the basic civil rights of man. Marriage and procreation are fundamental to the
very existence and survival of the race. The power to sterilize, if exercised, may have
subtle, far-reaching, and devastating effects… There is no redemption for the
individual whom the law touches… He is forever deprived of a basic liberty.”
ii. EP problem is that there is unfair treatment of criminals— certain types of crimes
that punishable by sterilization and other crimes, which are equally detrimental to
society, are not punished with sterilization. There is not a legitimate interest to justify
the as applied discrimination.
iii. This is similar to the kind of animus that is anathema to the EP guarantees (the
notion that some people are likely to infect the world with their inherent traits seems
to relate to racial exclusion at the core of the protections of EP.) This is particular
important in 1942, when American identity is bound up in the notion of equality that is
exactly opposite of Nazi Germany.
J. Jackson: REA case (advertising on trucks): the most powerful and least powerful are
placed in the same situation: politically it must be engaged in a way to persuade the bulk of the
population they must live with it as well: which wouldn’t be the case here, and thus the statute
should fall. There is a clear and pointed discrimination against one group of people.
The Court didn’t purport to overrule Buck v. Bell, but difficult to see how it could survive the
strong language of majority opinion. Perhaps this is the result of the WWII era, where thoughts
of creating master-race are unpalatable and eugenics movement is waning.
Voting Rights: usually triggers Heightened Scrutiny because of what is being allocated.
1964(XXIV): forbids exclusion from federal elections. However, constitution does not promise the right to
vote otherwise.
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Reynolds v. Sims (1964) : first crack at voting.
1965 Voting Rights Act
1966: Harper v. Board of Elections. (1966)
1969: Kramer
1969: McDonald v. Bd. Of Elections.
1974 Richards v. Ramirez
Bush v. Gore
2008 Crawford v. Maria
The trait being used to differentiate is not invidious. But Heightened Scrutiny is triggered
because of what is being allocated. Court accepts the idea that HS is required.
1.
Reynolds v. Sims (1964): beginning of voting rights cases:
a.
Facts: number of states have districting systems that yield situations in which the voting power
of individuals in some districts is greatly different in other districts. Ration in smallest district
has 40times more of a chance to elect an official than voter in largest district (unequal voting
power.) Power is held by 24% of the population.
b. Held: J. Warren: This is like Skinner v. Ok., a distinction that raises questions because of what
is being allocated.
i. Voting is an important right. Court cites Yick Wo, saying that voting is “preservative of
other rights” making it possible for them to defend other rights in the political process
ii. The notion of democracy makes no sense if the state can effectively determine the
relative weights of electorate at whim or hypothetical rationality.
iii. In the area of voting, unlike reproductive autonomy, giving a right to some individuals
gives them power over other individuals.
iv. At odds with equality: “To the extent that a citizen’s right to vote is debased, he is that
much less of a citizen”
2.
Harper v. Va. Bd. Of Elections (1966) Officially linking ability to participate and
ability/willingness to pay is at odds with equality :
a.
3.
4.
Held: Douglas: aspirational argument: certain kinds of inequalities are invidious. Like Reynolds,
the exclusion of opportunity to vote upon the basis of payment of poll taxes is not consistent
with obligation to provide EP. Ability to pay money is at odds with notion of equality.
i. Implicit historical argument: Va. Poll tax was adopted in 1902 in order to
disenfranchise Blacks by requiring $1.50 (a day’s wages), thereby excluding lowincome workers. By 1966, the Court is willing to say this is invidious
Kramer v. Union School District: property qualifications are invalid :
a. Held: J. Warren (657): when the law grants the right to vote and denies it to others, the court
must determine whether the conclusions are necessary to invoke a compelling state interest.
(Strict Scrutiny for differentiations in access to vote.) S.S. only applies to absolute denial of
franchise exclusively denied by the state.
b. The legitimate differentiations are Age/Citizenship/Residency
McDonald v. Bd. Of Elections commission (1969): SCOTUS refuses to strike down a
rule that denies the ability to cast absentee ballots to pre-trial detainees. This is not
an absolute denial of franchise and thus does not invoke S.S. :
5.
Richard v. Ramirez (1974): Puts conviction of crime in separate circumstances
regardless of the fact that there is not showing of compelling interest :
a.
6.
Harper and Kramer don’t apply because of section 2 of 14th amendment (section 2 decreases
representation of states that restrict the franchise of male citizens over 21, exception for
convicts and those who have participated in rebellions.
Crawford v. Marion Bd. of Elections (2008):
a. Facts: Issue is whether decision of state to preclude voting by individuals who don’t have
picture IDs is subject to challenge on EP. The center says that the cost of obtaining a picture ID
for each that don’t have it is greater than the inflated equivalent of $1.50 poll tax so is covered
by Harper.
b. Held: exclusion is different from Harper because
i. The exclusion is not absolute exclusion.
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c.
7.
8.
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ii. No invidious intent and satisfies standards of Harper (effort to insure accuracy of
voting is a compelling state interest.)
iii. However, there is still an obligation to evalute whether the degree of instrusion on the
voting right is more than the degree of threat to the integrity of the system. The
Majority says that P’s have not made their case as to this.
Concurrence: Scalia/Thomas/Alido: skeptical of the Harper/Kramer cases in any event because
if the touchstone of EP is invidious intent, there is no invidious intent proven here. They would
limit the Harper/Kramer cases to only where electoral right is limited to money or property
holdings.
Tennessee v. Lane: Exclusion from bringing suit have to be justified by something
that looks like S.S. Exclusion from opportunity to bring suit or defend in federal court triggers
something like S.S.
With respect to property qualifications, the Court's most recent account is contained in
Quinn v.
Millsap (1989) (invalidating as a denial of equal protection a requirement that
members of a "board of freeholders," who considered the reorganization of city
and county governments, be landowners)
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Scope of Congressional authority to enforce 13th 14th, and 15th Amendments
Enforcement Clauses: 13th (2); 14th (5); 15th (2)
Issue: May Congress act only to remedy constitutional violations, or may Congress use this authority to
interpret the amendments and even adopt interpretations contrary to that of the Supreme Court?
Congress is allowed to regulate state behavior under C.C. but not apply damage clauses because that
violates 11th.
Historical Trends:
XIII (1865)
(1866) 42 USC 1901,
42 USC 1982 (provides that all citizens have “the same right, in every State and Territory, as is
enjoyed by white citizens thereof to inherit, purchase, lease, sell, hold and convey real and personal
property.”
18 USC 242
(Protects rights to property, making contracts, and pains/penalties based on race)
XIV (1868) (Section 5 = enforcement clause)
1871 Civil Rights Act: KKK Act (Sect 1984/private remedies for denial of constitutional rights “under
color of law” and those who conspire to deprive equal privileges)
1875 Public Accommodations Act (prohibited all owners of public accommodations from excluding on
basis of race)
1875: Jury Exclusion (on the basis of race)
Ex Parte Virginia (1880) (14th Amendment is sufficient basis to pass the jury exclusion statute. The
scope of the power delegated to the federal government under Section 5 is to be judged by McCulloch v.
Md. Standards/necessary means to carry out legitimate federal power).
Civil Rights Cases (1883)
US v. Harris (1883): enforcing a prohibition on denials of EP by state cannot be applied to public
parties: public accommodations act and prosecution of private parties is unconstitutional. Section 5 of
14th amendment justifies corrective action but does not extend to laws seeking to exact obligations of
equality from individuals who are not acting as agents of the state. Question of Commandeering
Doctrine—it can do so if it is validly enforcing a constitutional amendment.
Lassister v. Northampton Election Board (1959) (upheld literary test barring Puerto Ricans.)
1965: Civil Rights Act: Voting Rights Act
Background: devices to racially exclude the right to franchise were popping up everywhere. Congress began to
address these problems acting in pursuant to 2 of 15th Amendment (enforcement clause) and Section 5 of the
14th Amendment to pass procedures: 1) suspending literary tests in areas where it could be shown that less than
50% of the population was voting 2) suspended ability of those covered areas to change the rules unless they
were signed off by the Justice Department or approved by a court (not to be racially exclusionary in purpose or
effect) and 3) prohibited the exclusion of individuals that had went to American schools that were taught in
Spanish (Puerto Rico) Issue: is this a valid Congressional exercise? Can Congress treat these two sections
just like the Necessary and Proper Clause?
SC v. Katzenbach (1962) (by including 14-5, Congress sought to grant the same power expressed by
Necessary and Proper Clause. McCulloch v. Md. Test.)
Katzenbach v. Morgan (1966): invalidates Lassiter, 15-2 is granted same power expressed by Necessary
and Proper Clause.
1968: Jones v. Alfred Mayer Co. (seminal case holding that Congress could prohibit private discrimination
in selling and leasing property. Private real estate developer who refused to sell housing or land to Blacks was
in violation of 42 USC 1982, which applies to prohibit private discrimination. Congress had power under 13 th
Amendment to adopt the law ad has broad legislative power under 13th “rationally to determine what are the
badges and incidents of slavery, and the authority to translate that determination into effective legislation.)
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1980: City of Rome v. US: whether or not prohibition was legitimate way of implementing 15 th amendment. : if
Congress can show there is a risk then Congress can set up a system to prevent the risk: the Court will defer to
Congress.
13th, Section 2
Jones v. Mayer (1968)
1950-1990
NY v. US (1992)
US v. Lopez (1995)
Seminole Tribes
(1996)
14th Section 5
Katzenbach v. Morgan
(1966)
Oregon. v. Mitchell (1970):
extends prohibition of
literary test to nation as
whole. Will defer to
Congress’ determination
based on threat of
violation of 14th to say it’s
likely to be
unconstitutional
City of Rome v. US (1980):
Enough evidence so that
Congress can reasonably
conclude that
discriminatory intent.
15th Section 2
SC v. Katzenbach (1966)
Backdrop of rise of 10th
amendment.
City of Boerne v. Flores
(1997): Congruence and
Proportionality Test;
US v. Morrison (2000):
builds on C&P Test: statute
has to be targeted at
preventing constitutional
violations or remedies that
require the violator to
remedy the violations
Bd. of Trustees v. Garett
(2001): in defining the
scope of the constitutional
violation, Cleburne only
applies to actions that are
irrational in narrow Lee
Optical sense
Hibbs (2003)
Tenn v. Lane (2008): Has
there been discrimination
that has an impact on
other constitutional
guarantees? (Yes, here,
fundamental right to
access to courts.)
US v. Ga (2006):
Northwest Austin
Municipal Utility District
No One v. Holder (2009)
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CURRENT STANDARD:
UNCLEAR IF
MCCULLOCH
STANDARD IS STILL
THE STANDARD
M. Cheng
CURRENT STANDARD:
CONGRUENCE &
PROPORTIONALITY
TEST
CURRENT STANDARD:
UNCLEAR IF
MCCULLOCH
STANDARD IS STILL
THE STANDARD
The 15th Amendment: forbids discrimination upon the basis of race.
9. Ex Parte Va (1880): 14th Amendment is sufficient basis to pass the jury exclusion statute
a. Facts: court review prosecution under Jury Exclusion Act, where the prosecution was brought
against Va judge for refusing to seat Black jurors, and state of Va brings habeas corpus action
on behalf of judge, saying this is interference with Va’s sovereignty.
b. Held: 14th Amendment is sufficient basis to pass the jury exclusion statute. The scope of the
power delegated to the federal government under Section 5 is to be judged by McCulloch v. Md.
standards (necessary means). Every addition to the federal power reduces state power, 14 th
amendment carves out parts of sovereign immunity. This is still good law. Everyone agrees that
Congress can provide remedies for actions that courts would find violate 13 th, 14th, and 15th
Amendments. It can do so:
i. Without regard to presence of other authorization under constitution
ii. Good law as to the impact on federalism.
iii. Implies that 14th and 15th amendments are provisions that allow federal government
to impose obligations on states that would otherwise violate 11th Amendment.
c. This affects Garrett, Hibbs, and Tennessee/Lane which deals with whether or not Congress can
impose damage remedies on states pursuant to Congressional Acts.
10. South Carolina v. Katzenbach (1966): McCulloch v. Md. Test used to construe
Section 2 of 15th Amendment like Necessary and Proper Clause: Validates VRA and
allows Congress to interpret the amendments rather than only forbid violations in
general terms :
a.
Voting Rights Act empowered AG to suspend literacy tests and other restrictions on voting in
those states where less than 50% of the citizens had voted or were registered. Once these
findings were made, the state could not adopt any new standards with regard to voting without
obtaining preclearance from the AG.
b. Held: J. Warren: upheld VRA’s constitutionality as exercise of power under 15-2: enforcement
clause of the Fifteenth Amendment gave Congress "full remedial powers" to prevent racial
discrimination in voting, the Act was a "legitimate response" to the "insidious and pervasive
evil" which had denied blacks the right to vote since the Fifteenth Amendment's adoption in
1870.
i. Congress’ enforcement power under §2 of the 15 th Amendment: permits it to
outlaw practices which the Court would not on its own find to violate §1 of that
Amendment as long as these practices are reasonably related to practices that would
violate §1.
ii. Congress was confronted by “insidious and pervasive evil… and concluded hat the
unsuccessful remedies which it had proscribed in the past would have to be replaced
by sterner and more elaborate
iii. “Congress may use any rational means to effectuate the constitutional prohibition of
racial discrimination in voting. The basic test to be applied [under Sec.2] is the same as
in all cases concerning the express powers of Congress with relation to the reserved
powers of the States. MuCulloch.” §2: reads like the Necessary and Proper Clause: let
the ends be proper and all means that are reasonably related to that end are
acceptable: McCulloch v. Maryland standard.
iv. Yet, in Strauder: Court said that states could have educational requirements in jury
selection and Guinn and Beal was prosecuted for not allowing people to vote. Finally,
Lassiter said that literacy test of N.C. was not unconstitutional. But literacy tests have
served to deny African-Americans the right to vote, and if there is a history of such
restriction Congress can attack it.
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14th Amendment Enforcement: Section 5 cannot be used to regulate private activity, but
rather only state activity.
This is contrast to the 13th Amendment, which Congress can use to prevent private discrimination.
Since the 1883 Civil Rights Cases, the Court has understood the 14th Amendment’s equal protection and due
process clauses to constrain only “state actors”.
Congress is allowed to regulate state behavior under C.C. but not apply damage clauses because that
violates 11th.
11.
Katzenbach v. Morgan: (1966)(726) Enforcement Clause/Sec. 5 of the 14th
Amendment replaces Necessary and Proper Clause as a means to find implied
powers. Thus Congress may independently interpret the Constitution and even
overturn the Supreme Court as long as they are not diluting constitutional rights.
(a way to knock down state laws) :
a. Facts: A federal statute enacted pursuant to the Enabling Clause of the 14 th Amendment
trumps any state constitutional or statutory provision in conflict with federal law. A registered
voter in NYC, challenged §4(e) of the Voting Rights Act of 1965, which provides any person
who has successfully completed 6th grade in an accredited school in Puerto Rico can’t be denied
the right to vote because of lack of English proficiency. P claimed the law pro tanto prohibits
enforcement of NY election laws based on English proficiency (must be able to read and write
English.)
b. PP: Congress, in the VRA, was overturning Lassister v. Northampton Election Board
(SCOTUS, 1959: upheld literary test barring Puerto Ricans.)
c. Held: the law was a valid exercise by Congress of its powers under §5 of the 14 th
Amendment: The law aimed to enforce the EPC. Enforcement Clause of 14 th Amendment
replaces Necessary and Proper Clause as a means to find implied powers: A way to knock down
state laws.
i. Rationale: (1) Imposition of voting qualifications is problematic under the 14th
Amendment, (2) Remedial: Congress is making a finding of fact and Court will defer to
it Defer to Congress in EP because believe that those local legislatures are superior to
court in fact finding. [REA], (3) In absence of legislative history, there is evidence of
federal power to intervene.
1. Court will defer to Congress’ rational decisions
ii. J. Brennan’s argument a much broader structure:
1. Prophylactic (guarding from or preventing the spread of occurrence of
disease): guarding from spread of discrimination against PRs
2. Remedial: Congress could have concluded that granting PRs the right to vote
would empower them and help them to eliminate discrimination against them
and help them participate in the political process.
3. Definitional: Congress can define something to be violation of 14 th
Amendment even if the Court has not done so and allow for the vindication of
constitutional rights. Accords Congress the authority to define the
meaning of the 14th amendment.
a. “By including Sec.5 the draftsmen sought to grant to Congress, by a
specific provision applicable to the 14 th amendment, the same broad
powers expressed in the Necessary and Proper Clause.” Anything
reasonably related to the power to enforce the 14th Amendment
should stand.
4. You can defer to congressional findings to gain facts supporting a claim there
is a violation of the 14th Amendment. Congress has the authority to declare if
something violates the 14th Amendment.
5. Footnote 1: Limits: addresses Dissent’s concern that this would allow
Congress to use their authority to dilute or even negate rights. Congress’
power under §5 is limited to adopting measures to enforce the guarantees
of the Amendment. §5 grants Congress no power to restrict, abrogate, or
dilute these guarantees. [Implies that guarantees can be expanded, just not
contracted].
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iii. Dissent: J. Harlan: There was no Congressional fact-finding to support a violation and
therefore no reason to believe that Congress has done so. Also, the question of
whether something violates the Constitution is the Court’s role. NY did not violate the
14th Amendment, so it could not be regulated by federal law. Also, if Congress can
12.
United States v. Guest (1966)(718) Initially allowed regulation of private actors
under Section 5 :
a.
b.
c.
13.
City of Rome v. U.S. (1980)(737): Expansion of the 15th Amendment: Congress has
the authority under Section 2 to interpret the meaning of the 15th :
a.
b.
c.
d.
e.
f.
14.
Facts: federal law which makes it a crime for two or more persons to go “in disguise on the
highway, or on the premises of another, with intent to prevent or hinder his free exercise of
enjoyment of any right or privilege.”
Held: interference with the use of facilities in interstate commerce violated the law, whether or
not motivated by a racial animus. However, did not expressly reach the question of whether
Congress could regulate private conduct under Sec.5, though 6 justices (three in concurring and
three in dissent: Clark/Black/Fortas and Brennan/Warren/Douglas) expressed thought it
could.
US v. Morrison (2000): expressly reaffirmed Civil Rights Cases and rejected Guest.
Constitutional challenge to the civil damages provision of the Violence Against Women was
upheld to defeat the law. The law exceeded the scope of the commerce power and 14 th
amendment Sec.5 powers. Majority in Guest was only dicta (Rehnquist)
Facts: City had annexed a substantial number of outlying areas and thus altered the racial
composition of its electorate and also had adopted an at-large system for selecting citiy
comissioners (when there are five seats, voters can vote for five candidates). Voting Rights Act
of 1965 required pre-clearance by the Attorney General or the D.C. District Court of any voting
plan changes made in covered jurisdictions (see Katzenbach v. Morgan). Georgia and all its
municipalities are covered jurisdictions. Rome, Georgia sought to alter its electoral scheme and
sought pre-clearance (must prove no purpose to dilute vote). DC found no intent to
discriminate. The Attorney General declined to pre-clear and Plaintiff sought relief from
enforcement of the Act.
Mobile v. Bolden, decided on the same day, held that at-large election systems are
constitutional unless there is discriminatory purpose.
Held: the bail out provision of the Voting Rights Act is constitutional, Rome’s changes were not:
Congress can “prohibit changes that have a discriminatory impact.” If Congress finds a
discriminatory effect, no purpose need be shown. Any enforcement method that was
appropriate could be used. Court will defer to Congress: upheld Katzenbach v. Morgan: if
Congress can show there is a risk then Congress can set up a system to prevent the risk: the
Court will defer to Congress.
Dissent (Rehnquist/Stewart): Mobile v. Bolden: says not prohibition of at large unless
invidious intent. Changes were not violative of §1 of the 15 th. Remedial use was rejected:
couldn’t justify the limits placed on Rome.
Summary: Wherever a practice has a discriminatory impact/effect on minorities and might
be used for discriminatory purposes, Congress may ban that practice; true even if Fifteenth
Amendment barred only purposeful discrimination. The case represents an expansion of the
Court’s view of these powers: Whenever a practice has a discriminatory impact on minorities,
and might be sued for discriminatory purposes, Congress may ban that practice; even if the
jurisdiction has compelling evidence the practices aren’t being used for discriminatory
purposes.
Presently, the prophylactic and fact finding/remedial functions are still in force.
City of Boerne v. Flores (1997)(738): Congruent and Proportionality Test: 14-2
gives Congress the power to enforce not to define constitutional rights: cannot use
14-2 powers to prevent local governments from unintentionally burdening
individuals religious freedom in certain ways.
a.
Facts: Religious Freedom Restoration Act (RFRA) was unconstitutional as exceeding the scope
of Congress’s Section 5 powers. Act was adopted in 1993 to overturn Employment Div., Dept.
of Human Resources of Oregon v. Smith (1990) which had narrowly interpreted the free
exercise clause of the 1st amendment. The case had involved Native Americans and peyote: a
statute, which is neutral on face, but has impact on religious practices, it is still constitutional.
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b.
c.
d.
e.
f.
g.
15.
M. Cheng
The invidious intent must be directed at religious practice. Flores: Local zoning authority
voted to deny a church a building permit because its building was classified as historical
landmark. Decision was challenged under the Religious Freedom Restoration Act of 1993.
Constitutionality of the act was raised. RFRA: which said there is a heightened scrutiny
requirement: state must show a compelling government interest as to why the state should be
able to restrict religious rights: restore the compelling interest test.
Held: J. Kennedy: RFRA was unconstitutional and Congress has no right to specify the
substantive contours of constitutional rights. Congress can’t use the 14th Amendment
enforcement powers to prevent local governments from unintentionally burdening individuals’
religious freedom in certain ways. Congress has been given the power to enforce not decide
what constitutes a constitutional violation. 14th is Remedial, and not Substantive.
i. The Congruence and Proportionality Test: There must be congruence and
proportionality between the injury and the means adopted to remedy that end.
Congress’ action was not specifically tailored: it affected all levels.
ii. Arguments
1. Cites Marbury/Madison four times. Congress’ intention was overt: to impose
on the states its vision of what the 14th Amendment means.
2. Language of 14th differs from N&P Clause: it is the language of enforcement
not substantive.
3. Backdrop of modern rise of 10th amendment (NY/US and US/Lopez) and
Commandeering Doctrine. If Congress had the power to substantively define
constitutional rights, then they could find a loophole to 10th amendment.
Distinguishing from Katzenbach v, Morgan and City of Rome?: or could just require
Congress to do a better job proving the discrimination. And also the congruence and
proportionality seems to replace the impact/prophylactic test.
i. Unlike the previous cases, there is no evidence of ongoing pattern or detailed record in
the RFRA.
ii.
Modern Approach: proportionality and congruence is the test [scope of the statute and
likelihood of Constitutional violation.] Must be relation between the evil and the statute
Dissent: O’Connor/Souter/Breyer: did not challenge narrow view of Congressional power
under Sect.5, but focused on the need for the Court to reconsider Smith.
Potential Criticism:
i. 9th Amendment clearly supports idea that Constitutional protection of rights is the
floor, not the ceiling. It is a clear and open invitation for government to provide more
rights than the constitution accords.
ii. Meaning of “enforce” in Section 5: “urge” or “to give force to”? Can congressional
expansion of rights be seen as enforcing b strengthening the 14th amendment?
iii. Kennedy’s use of Marbury v. Madison equates a supreme court decision failing to find a
right in the constitution with the conclusion that no right can be created by Congress.
However, the former does not entail the latter. Just because a right does not exist
within the constitution according to the court, that does not mean the right cannot
exist through other legal sources such as federal or state legislation.
Aftermath of Boerne v. Flores: Five cases where Court has considered whether the law can
used to sue a state government. Boerne is applied in first three to find that the law is invalid
exercise of Section 4 powers an precluded the suit against the state government. (Florida
Prepaid Postsecondary Education Expense Board v. College Savings Bank, Kimel v. Florida
Board of Regents, and University of Alabama v. Garrett.) However, in the two most recent cases,
the court found statutes to fit with the Section 5 power (Nevada Department of Human
Resources v. Hibbs and Tennessee v. Lee.)
US v. Morrison (2000)(747): expressly reaffirmed Civil Rights Cases and rejected
Guest.
a.
Facts: Violence Against Women authorizes victims of gender-motivated violence to sue for
money damages. Act was enacted based on detailed findings of the inadequacy of state laws in
protecting women who are victims of domestic violence and sexual assaults. Congress found
that gender-motivated violence is a substantial constraint on freedom of travel by women
throughout the country. Christy Brzonkala, raped by football players at VA Tech, sued for civil
damages.
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Enforcement Clauses (13th §2; 14th §5; 15th §2)
b.
c.
16.
University of Alabama Bd. of Trustees v. Garrett (2001)(751): State government
cannot be sued for violating Title I of the Americans with Disabilities Act, which
prohibits employment discrimination against the disabled and requires
reasonable accommodation for disabilities by employers:
a.
b.
c.
d.
17.
M. Cheng
Held: J. Rehnquist/O’Connor/Kennedy/Scalia/Thomas The law exceeded the scope of the
commerce power and 14th amendment Sec.5 powers. Majority in Guest was only dicta
(Rehnquist) Congress cannot regulate a noneconomic activity by finding that, looking at it
cumulatively, it has substantial effect on interstate commerce.
i. Identical Justice split as Lopez but goes significantly further than Lopez in limiting
C.C..
ii. Thomas again concurs, but thinks Majority should go further in limiting scope. He
objects to the “substantial effects” test as a way of justifying congressional action
under C.C saying this is inconsistent with the original understanding of Congress’
powers and with this Court’s early C.C. cases. Says this is a rootless and malleable
standard that encourages Federal Government to persist in its view that C.C. has
virtually no limits and we will continue to see Congress appropriating state police
powers under the guise of regulating commerce.
Dissent: Souter: judicial deference to congressional fact-finding
Facts: Garrett was the director of nursing at the U of Ala., Birmingham hospital. She was
diagnosed with breast cancer and took time off to have surgery, chemo, and radiation. When
she returned, she was informed that her position was no longer available. Her key argument is
that the elaborate legislative history made this act different from other laws. SC rejects this.
Held J. Rehnquist: state governments may not be sued for violating Title I of the ADA.
i. ADA is a substantial expansion of rights compared to the Constitution. Under EP,
discrimination based on disability only needs to meet rational basis (rationally
related to legitimate state interest.) ADA requirement for reasonable accommodation
of disabilities is significantly greater than constitutional requirements.
ii. ADA is not “proportionate” or “congruent” to preventing and remedying constitutional
violations because “the legislative record of the ADA simply fails to show that Congress
did in fact identify a pattern of irrational state discrimination in state employment
against the disabled.” Found Breyer’s dissent, which listed numerous references in LH
to government discrimination against the disabled as mostly anecdotal and
insufficient.
iii. “In stark contrast” with Voting Rights Act of 1965, which provided sufficient
Congressional findings. “In order to authorize private individuals to recover money
damages against the States, there must be a pattern of discrimination by the States
which violates the 14th Amendment, and the remedy imposed by Congress must be
congruent and proportional to the targeted violation. Those requirements are not met
here.”
iv. Footnote: Court is not declaring ADA unconstitutional as applied to state
governments, but rather only holding that state governments could not be sued
by individuals for violation. Federal government could still sue the state to enforce
the law and that suits against individual government officers for injunctive relief were
also permissible.
Concurrence: Kennedy/O’Connor: ADA is a “milestone on the path to a more decent, tolerant,
progressive society” but there is nonetheless inadequate evidence of constitutional violation to
sustain an exercise of Sect. 5 power.
Dissent: Breyer/Stevens, Souter, Ginsburg: it would be reasonable to conclude that remedy
before use constitutes an ‘appropriate way’ to enforce the EP protection. Uses LH to infer
general societal practices that are heavily discriminatory and that implicate state governments,
including evidence of municipal government violations. Court should defer to Congress’
findings.
i. Majority response: Congress did not have findings based on state discrimination, but
rather found that public institutions was not affected in same way as private entities.
Nevada DHA v. Hibbs (2003) (756): gender based discriminations triggers
intermediate scrutiny and 14-5 power (no need for congressional finding of
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Enforcement Clauses (13th §2; 14th §5; 15th §2)
M. Cheng
pervasive constitutional violations when Congress is dealing with areas that
receive heightened judicial scrutiny):
a.
b.
18.
Tennessee v. Lane (2004) (753) : Congress has greater latitude to legislate under
14-5 when dealing with a claim that receives heightened judicial scrutiny because
it is a fundamental right:
a.
b.
c.
d.
19.
Facts: D climbs on his hands and knees to get into a second-floor courtroom because it was not
accessible to those with disabilities. Sues state government under Title II of Americans with
Disabilities Act, which prohibits states and local governments from discriminating in
government programs, services, and activities.
Held: J. Stevens: Suit is not barred by state immunity.
i. Well established fundamental right of access to the courts. Congress has greater
latitude to legislate under Sect. 5 when dealing with a claim that receives
heightened judicial scrutiny, whether it is a fundamental right or a type of
discrimination that receives heighted scrutiny.
ii. Does not address whether states can be sued under Title II when there is not a
fundamental right that is implicated
Dissent: Rehnquist/Kennedy/Thomas: Have to look wider than this P: “The majority
identifies nothing in the legislative record that shows Congress was responding to widespread
violations of the DP rights of disabled persons… it sets out on a wide-ranging account of
societal discrimination.” This “as-applied” reasoning is wrong: even if there is one courthouse
out there that is architecturally inaccessible, this is not a violation of DP.
Dissent: Scalia: regrets signing onto the “congruence and proportionality” test which he sais is
a “flabby test, and is a standing invitation to judicial arbitrariness and policy-driven decisionmaking. Worse still, it casts this Court in the role of Congress’s taskmaster.” He would limit
Sect. 5 to remedying conduct that itself violates a provision of the 14 th Amendment, but
grandfather “prophylactic legislation” like the Voting Rights Act in the area of race
discrimination.
US v. Georgia (2006) (754) : when there is actual violation of provision of 14th
Amendment, state sovereign immunity is abrogated :
a.
b.
20.
Facts: Family leave provision of the Family and medical Leave Act (FMLA) requires employers,
including government employers, provide employees with unpaid leave for family and medical
care. Hibbs is a male suing under this.
Held: J. Rehnquist: Valid congressional abrogation of state sovereign immunity. Fits
within scope of 14-5 and thus can be used to sue state governments.
i. “FMLA aims to protect the right to be free from gender-based discrimination in the
workplace” and Congress recognized social realities and intended the law to prevent
gender discrimination.
ii. Distinguished from Garrett b/this is gender discrimination which triggers
intermediate scrutiny and thus “it is easier for Congress to show a pattern of
constitutional violations.”
iii. NOTE: Congress never found any unconstitutional gender discrimination. However, if
it is a claim that receives only rational basis review, it is unlikely to be enough to
allow suits against state governments.
Facts: paraplegic inmate in GA prison suing under Title II because prison officials deliberately
refused to accommodate his needs in fundamental mobility, hygiene, and meical case.
Held: Scalia (unanimous): Can sue for violation that had violated 8 th Amendment, which is
being remedied through 14th.
i. Distinguishing: there is no doubt that Sect. 5 allows Congress the power to enforce
Amendment provisions by creating private remedies against states for actual
violations of those provisions. Because Title II creates a private cause of action for
damages or States for conduct that actually violates the 14 th Amendment, “Title II
validly abrogates state sovereign immunity.”
Northwest Austin Municipal Utility District No. One v. Holder (2009) (745):
constitutional avoidance/should outdated provisions still trigger Congressional
14-5 power? :
136
Enforcement Clauses (13th §2; 14th §5; 15th §2)
a.
b.
c.
M. Cheng
Facts: Section 5 of Voting Rights Act requires pre-clearance for all changes to state election law,
but provides also for exceptions (bailouts)
Held: J. Roberts: uses constitutional avoidance to refrain from ruling on constitutionality of
Section 5 of VRA, but holds that district can apply for a bailout (exception) to VRA via
application under Section 4’s exemption of “political subdivision”
i. “political subdivision” is interpreted by Court to include the utility district and thus
invokes the bailout provision.
ii. Section 5 may be outdated: “The statute’s coverage formula is based on data that is
now 35 years old, and there is considerable evidence that it fails to account for current
political conditions.” Section 5, to cure the evils of the time, “went beyond the
prohibition of 15th Amendment by suspending all changes to state election law—
however innocuous. It also differentiates between the States, despite our historic
tradition that all States enjoy ‘equal sovereignty. The evil that section 5 is meant to
address may no longer be concentrated in the jurisdictions singled out for
preclearance.”
iii. Declines to reach the question of whether the VRA extension was rational under
Katzenbach or “congruent and proportional” to remedial purposes under
Boerne. Rather, the issue is resolved on statutory grounds.
Dissent: J. Thomas: dissent from decision not to reach the constitutional question. He thinks
Section 5 is unconstitutional because of “lack of current evidence of intentional discrimination
with respect to voting.” Constitutionality of Sect. 5 depends on proven existence of intentional
discrimination, which no longer exists. There is no reason to keep it.
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Individual & Fundamental Rights
M. Cheng
Individual Rights protected under DP or EP or both
Steps:
(1) Is there a fundamental right?
- YES: Strict Scrutiny
- NO: Rational Basis
(2) Is the right infringed?
(3) Is the government’s action justified by a sufficient purpose?
(4) Are the means sufficiently related to the goal sought?
Major differences between DP and EP is how the constitutional arguments are phrased:
DP
EP
Law denies a right to everyone
Law denies a right to some, but not to others
Constitutional issue is whether the government’s
Constitutional issue is whether the government’s
interference is justified by a sufficient purpose.
discrimination as to who can exercise the right is
justified by a sufficient purpose.
Strict Originalists: only rights found in text are fundamental rights
Moderate Originalists: udiciary should implement the framer’s general intent, but not necessarily specific views
Nonoriginalists: court can protect non-enumerated rights and those not intended by framers
19201930
19301940
Bodily integrity
Family
Autonomy &
Child Raising
Buck/Bell
(1927)
Meyer/Nebraska,
(1923)
Pierce/Society of
Sisters (1925)
Sexual Activity
& Procreation
Sex discrim.
brought into
center of EP
analysis
Abortion
Reed, 1970
(rational
basis higher
than mere
Roe (1973)
Snyder
(1934)
Pailko (1937)
19401950
19501960
19601970
19701980
Rochin (1952):
shock the
conscience
1963:
Selective
Incorporation
Skinner/OK
(1942) state
cannot force
sterilization of
criminals
Griswold (1965)
Married people
have right to use
contraceptives
Bell/Wolfish
(1979)
Loving/Va.
(1967) racial
regulation on
marriage triggers
S.S.
Moore/E.
Cleveland, 1977
some SDP right
for related
Eisenstadt
(1972) EP to
protect
individuals as
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Individual & Fundamental Rights
M. Cheng
families to live
together.
Zablocki (1978)
recognizes right
to enter into
marriage calling
for heightened
scrutiny (for state
statute requiring
that all people
settle child
support issues
before getting
married.)
19801990
Cruzan (1990):
Unjust when
balanced out
Turner/Safely
(1987)
invalidated
prohibition of
prisoners
entering into
marriage
well as married
couples to
control their
reproductive
rights through
contraception.
Requires
something more
to justify
intervention.
Carey (1977)
tentatively
suggests
language of S.S.
but this is still
very shaky
(everyone agrees
it should be
heightened, but
the Court may
not be willing to
go down the
route of S.S.)
Bowers (1986)
governmental
preference.)
Frontiero,
1973
Geduldig,
1974
Rotsker,
1981
MUW, 1986
Michael H (1989)
19902000
Riggens/Nv,
(1992) Unjust
when balanced
out
Romer (1996)
VMI, 1996
People/Casey
(1992)
Lanier (1997)
Glucksberg
(1997)
20002010
Sac/Lewis
(1998)
Chavez/Martinez
(2003)
Troxel, 2000
recognizes a
fundamental
interest of
parents in
controlling
(though not
exclusively
controlling)
raising of
children. All court
members are
willing to say
Lawrence/Texas,
(2003)
Gonzales/Carhart
(2007)
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Individual & Fundamental Rights
M. Cheng
that the state
determination
that a judge,
dealing with an
intact family with
no divorce,
cannot determine
that anyone have
access to the
children without
giving the
parents’ view
weight violates
SDP.
Family Relations and Parental Rights
Individuals’ desire to live together, to marry, to raise children in a certain way have come in conflict with state’s
desire to regulate zoning, marriage, child-rearing or other areas of public concern. Family interests are
fundamental, meaning the state has an interest, but parents’ interest trumps. There cannot be total usurpation by
states.
Arguments:
1. Ability to form families and edcaute children is fundamentally important to human dignity and identity
2. Preserving autonomy of family and education underpins the autonomy of the citizenry. (1) There must
be counterbalancing institutions so that a state cannot occupy all fields of human life (family constitutes
one of those area) and (2) with respect to children particularly, autonomy of education underpins the
structure of self government (analogous to political process argument in Carolene Products)
Meyer v. Nebraska (1923): 14th Amendment includes other rights, like freedom of
teaching and freedom of inquiry, fails mere rationality test:
1. Facts: Nebraska state law: a foreign language can only be taught to someone who has passed the 8th
grade. (invokes police power)
2. Held: J. McReynolds: violation of 14th DP: struck down state law prohibiting teaching of foreign
languages to young children.
a. The term “liberty” used in the 14th Amendment included many non-economic, but nevertheless
important, rights; right of teachers to teach, and of students to acquire knowledge. The interest
in liberty includes “not only freedom from bodily restraint but also the right of the individual to
contract, to engage in any of the common occupations of life, to acquire useful knowledge, to
marry, to establish a home and bring up children and to worship G-d according to the dictates
of …conscience.”
b. Court applied mere rationality test, but concluded statute was “without reasonable relation to
any end within the competency of the State.”
3. Dissent: J. Holmes/Sutherland: differed with the majority "with hesitation and unwillingness" because
he thought the law did not impose an undue restriction on the liberty of the teacher since it was not
arbitrary, was limited in its application to the teaching of children, and the State had areas where many
children might hear only a language other than English spoken at home. "I think I appreciate the
objection to the law, but it appears to me to present a question upon which men reasonably might differ
and therefore I am unable to say the Constitution of the United States prevents the experiment being
tried."
Pierce v. Society of Sisters (1925): State law that requires children to attend public schools is
unconstitutional under DP :
1.
Held: Violation of substantive DP: Parents have a substantive due process right to direct the
upbringing and education of their children.
a. Court struck down state statute requiring children to attend public school, which would
prevent them from attending private and parochial schools.
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Individual & Fundamental Rights
b.
M. Cheng
Decision rested on “liberty of parents and guardians to direct the upbringing and education of
children under their control.” The state cannot standardize children by forcing them to go
to public school: “The child is not the mere creature of the state; those who nurture him and
direct his destiny have the right, couples with the high duty, to recognize and prepare him for
his additional obligations.
Griswold (1965):
Loving v. Va (1967): invalidated Va. statute prohibiting interracial marriage and declaring
freedom to marry as fundamental right (violation of 14th DP): fundamental right to marriage
requires heightened scrutiny
141
Individual & Fundamental Rights : Reproductive Rights
M. Cheng
Right to Control Pregnancy through Contraceptives: a fundamental right that is not
mentioned in the text but constitutionally protected.
Griswold v. Connecticut (1965): Right to privacy (contraceptives) protected under “penumbra” of
the Bill of Rights and not the DP of 14th
1.
2.
3.
2.
3.
4.
Facts: Connecticut statute forbade use of contraceptives, making use a criminal offense, and forbade
aiding or counseling of others in their use. Ds, directors of local Planned Parenthood Ass’n and its
medical director, convicted of counseling married persons in use of contraceptives.
Held: J. Douglas: Statute struck down.
a. Penumbra argument: Several amendments guarantee protect the privacy interest and create
a “penumbra” or “zone” of privacy. The right of married people to use contraceptives fall in this
penumbra.
i. 1st protects zone of intellectual privacy, 4th protects zone of individual privacy, etc.)
ii. Kreimer doesn’t buy this argument, though acknowledges its connection to the
incorporation area.
b. Declined to use Substantive Due Process: “Overtones of some suggest that Lochner should be
our guide. But we decline that invitation as we did [in many other cases.]”
i. Criticism: Heart of case wasn’t the search but the giving of counseling: force facts to fit
in more traditional 14th Amendment privacy meaning. The penumbra approach is
ultimately a DP analysis because BofR is applied to the states through 14 th.
c. Examples of penumbra: 1st Amendment: protection of speech and press has “emanations”
which create a “penumbra”: protects: freedom of association, not explicitly stated in
Constitution. Likewise, 4th Amendment: band on unreasonable search has penumbra: protects
privacy interests, as do 3rd, 5th, and 9th Amendments. Collectively, these Amendments establish
a zone in which “privacy is protected from governmental intrusion.” The statute violated the
14th Amendment’s interest in liberty.
i. Criticism: Fact Constitution protects specific acts of privacy shows it wasn’t meant to
cover other rights not mentioned.
d. Statute invalid because: “Would we allow the police to search the sacred precincts of marital
bedrooms for telltale signs of the use of contraceptives?” “The very idea is repulsive to the
notions of privacy surrounding the marriage relationship.”
J. Goldberg and the 9th and 14th Amendments: 14th Amendment protects all fundamental rights,
whether or not explicitly listed in Bill of Rights. 9th Amendment (“enumeration in the Constitution, of
certain rights, shall not be construed to deny or disparage others retained by the people”) supports this
view, because it “shows a belief of the Constitution’s authors that fundamental rights exists that are not
expressly enumerated in the first 8 Amendments.” The 14 th Amendment, like the 9th Amendment does
against federal government, protects fundamental rights against state action. Right of “marital privacy”
is among the fundamental rights. Statute unconstitutional: not necessary to fulfill a compelling state
objective.
J. Harlan: Ordered liberty approach: DP should be applied under 14th: Similar to J. Goldberg: 14th
Amendment’s due process clause: doesn’t merely incorporate specific Bill of Rights guarantees, but
instead, “stands…on its own bottom,” to protects those basic values, “implicit in the concept of ordered
liberty.”
a. “The tradition is a living thing.” Harlan suggests that the protection of rights is worked out
both in society and in courts. Taking that into account, this imposition is so unjustified by any
utilitarian and public policy oriented claim as to be at odds with that evolving living tradition.
b. Harlan stops short of finding a general right of privacy for sexual relations: rejected idea
adultery, homosexuality, fornication, and incest were protected by the same right to privacy.
State encourages marital relations so can’t use criminal law to regulate intimate details. But
state forbids the other types so can regulate details.
J. White’s means-end test: Would have upheld statute if it was “reasonably necessary for the
effectuation of a legitimate and substantial state interest.” Statute, here, too broad: fails rational basis
test: no need to ban birth control for married couples to achieve the objective of lowering promiscuity:
White would have upheld if applied only to non-married couples.
Dissents:
a. J. Black: only rights explicitly protected by Bill of Rights are protected by 14th Amendment: nor
right of privacy.
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Individual & Fundamental Rights : Reproductive Rights
b.
M. Cheng
J. Stewart: failed to find a right of privacy in any specific guarantee and rejected Goldberg’s 9 th
Amendment analogy (He later reversed this view).
Eisenstadt v. Baird (1972): Court invalidated statute that permitted contraceptives to be
distributed only by registered physicians and pharmacists and only to married people.
1.
2.
Rationale: discriminated against unmarried people. Invoked equal protection and substantive due
process grounds: rights to access to contraceptives must be the same for married and unmarried. Right
of privacy: “right of individual, married or single, to be free from unwarranted government intrusion
into matters so fundamentally affecting a person as the decision whether to bear or beget a child.”
Expands Griswold: recognizes a right to control reproduction as a fundamental right and recognizing
this right for unmarried as well as married people.
Right to Abortions: A constitutionally recognized right
Three arguments for SCOTUS’ legitimate might to intervene to protect reproductive autonomy of women:
1. Initial argument: as a matter of liberty and privacy, the state cannot require citizens to refrain from
activities that don’t harm others.
a. There is a level of protection invoked for child bearing and rearing choices
b. The plurality says that were we to reject the proposition that the DP analysis allows protection of
these interests, we would have to say that the state could intervene on the basis of nothing more
than a rational basis to require abortion and sterilization, which the court says is outside the scope
of the liberty that is recognized by the constitution. Court approves lower court cases where the
lower cases have found that required sterilization and abortions are not constitution. Thus,
implicitly, “we have turned our back on Buck v. Bell.
c. Problems
i. State interfered with prostitution, suicide, gambling, and drugs.
ii. there is something at stake that is plausibly a state interstate: harm to the fetus. This is
unlike marriage and
2. Bodily Integrity: imposition of pain and physical burden is at least as great as the pain and burden that
the D suffered in Rochin
a. Mr. Rochin’s treatment was a result of some voluntary action that he made. Likewise, the
argument is that a chosen pregnancy is not necessarily a voluntary waiver of bodily autonomy visà-vis the state.
i. Rehnquist dissent in Roe/Wade: a statute that required a woman to risk her life for the
benefit of an unborn child would violate Substantive DP. Thus, some recognition of the
right to bodily integrity is implicit in constitution.
b. Bodily Integrity cases do not give absolute prohibitions. Rather, Court is using balance approach;
finding things acceptable if there is a reasonable basis for intrusion. Larger justifications are
justified by larger justifications.
i. German abortion case: the dignity of life begins at the time where life is discernable
ii. Majority of SCOTUS acknowledges that after viability, prohibitions against abortions can
be justified
3. Not only does a prohibition against abortion involve conscription of individuals to risk their bodies
(‘involuntary labor”), it is also conscription against a particular group.
a. This is a type of conscription is likely to lock women into a social role and lock in an identity for
life. This is a type of conscription linked to a history of failure to regard women as equal citizens
(linked to assumptions about women as child-bearers only.)
b. EP concerns add to the other two lines of cases.
c. Heightened scrutiny would be required if you can show invidious intent and not just natural
choices. But this brings in the question of physical structure and real differences.
****Roe v. Wade: (1973); Recognizes a constitutional right to abortion (fundamental right
triggering S.S.); state interest in “potential life”
1.
Facts: Texas law made it crime to get an abortion except for saving the life of the mother.
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Individual & Fundamental Rights : Reproductive Rights
2.
3.
4.
5.
6.
7.
8.
M. Cheng
Held: J. Blackmun the right to privacy is broad enough to encompass the decision to terminate a
pregnancy prior to viability (fetus can survive on its own outside of the womb.) Right to privacy extends
throughout the entire pregnancy.
a. Right to abortion was divided into trimesters:
i. 1st trimester: State can’t ban or even closely regulate abortions. State has no valid
interest in protecting mother’s health; the mortality rate is higher for pregnancy than
for abortions at this point.
ii. 2nd trimester: State may protect its interest in the mother’s health, by regulating the
abortion procedure in ways that are reasonably related to her health. Ex. The
procedure must take place in hospital, but a flat ban is not permitted: no protection
here for the fetal life.
iii. 3rd trimester: State may regulate even prohibit abortions except if necessary to
preserve the life or health of the mother.. Exception: when the life or health of mother
is threatened unless abortion is granted. Fetus is viable and therefore state has
compelling interest in preserving fetal life.
Rationale: Right to privacy is fundamental and requires S.S.
a. Test
i. At the point of viability (end of 2nd trimester), the state’s interest in protection
“potential life” is compelling, except in cases when the mother’s health is at risk.
ii. The state statute was narrowly drawn so that it fulfilled only that legitimate state
interest;
iii. Fetus is not a person within 14th Amendment: only able to protect fetus’ rights after
viability: during the third trimester.
b. Alternative rationale: (1) Equal protection concern [i.e. sex discrimination: only woman bear
burden on pregnancy: deny them right to abortion: sex discrimination]; (2) Involuntary
servitude [make one use her body for the benefit of another]: (3) regulation of private morality
is impermissible.
c. Why use strict scrutiny for abortion?
i. Human dignity is bound with control of reproductive capacity: Intimate character of
pregnancy. Problem: what is the source for this?
ii. Liberty embodied by Mills: State can’t require individual from refraining from
actions that don’t harm others. No direct physical impact. Problem: abortion does
involve harm to others.
d. Precedent: Pierce, Meyer, Skinner, and Loving.
i. Bodily autonomy from state: bodily integrity: control over one’s body is essential to
Democracy (Rochin) Problem: Not absolute, small intrusions on citizens’ bodies is
justified by reasonable governmental objectives—magnetic detector, drug testing.
e. Effect of imposition on people determined by sex: affects only women. Women: could be
considered a discrete and insular minority. No obligation to reach out and protect others [Bad
Samaritan]. Bound up with traditional set of women roles and is likely to reinforce women’s
roles.
i. Problem: (1) Geduldig—not discrim against women, but discrimination against
pregnant; persons; (2) Reed v. Reed—rational relation.
f. 3 conceptual moves in Roe: (1) There is no constitutional issue at all, (2) Not only is there a
constitutional issue, but the initial rights can be counterbalanced by compelling state interest,
narrowly drawn to express the interest, and (3) State has compelling state interest in
preserving fetal life, but only at the point of viability.
Concurrence: (Stewart) Reversed his position in Griswold and accepted both the Griswold and Roe
rationale as substantive due process cases. Freedom of personal choice in matters of marriage and
family life is one of the liberties protected by the Due Process Clause of the 14th Amendment.
Concurrence: (Douglas) 14th Amendment protected freedom of choice in the basic decsions of one’s
life respecting marriage, divorce, procreation, contraception, and the education and upbringing of
children. Only subject to regulate where there is a compelling state interest.
Dissent: (Rehnquist): Abortion should be left to the legislative process. Only a mere rationality test
should be applied. The trimester model was judicial legislation.
Dissent: (White) Court has imposed its own value scheme. Relative weights which should be assigned
to these 2 interests should be left to the people and to the political process.
Major Criticisms
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a.
9.
Right to abortion is not in text or intended by framers so should not be protected by the Court
i. Defense: other rights that Court has protected concerning family and reproductive
autonomy are not textually/intentionally supported either.
ii. This becomes a interpretation debate
b. Court gave insufficient weight to state’s interest in protecting fetal life (it should have been
considered compelling)
i. Defense: Court acted correctly when it declined to determine when life begins and
leaves it each woman to decide this question
ii. Defense: even if the fetus is regarded as a person, the law should not force the woman
to be incubator against her will for another.
c. Court was wrong to use DP rather than EP as basis for its decision. The proper argument is that
laws prohibiting abortion apply exclusively to women and thus should be unconstitutional
based on gender discrimination
i. Defense: nothing is gained by using EP. Intermediate scrutiny would validate these
laws if state’s interest in protecting fetal life passes the test.
Why viability?
a.
From Roe to Casey: Efforts to Overturn Roe
1. Roe 7 Justices
2. Akron 6 Justices
3. Thornburg 5 Justices
4. Webster 4 Justices
**Abortion procedures: Doe v. Bolton: (1973): Companion to Roe; Ga. Abortion law invalidated
Court held that a state may not require abortions be performed only in accredited hospitals; state may not
require the consent of a hospital staff abortion committee or of any physician other than the women’s own
personal physician. Physical must be permitted to consider all relevant factors. State could not bar abortions
for those who did not live in the state.
**Planned Parenthood v. Danforth (1976): Court struck down a spousal consent requirement.
Woman is more directly and immediately affected by the pregnancy. Also struck down the
requirement of a female under 18 getting the consent of her parents first.
**Maher v. Roe (1977): Mere rationality review: States may refuse to provide Medicaid funding
for non-therapeutic abortions: not necessary to protect mother’s health or life.
1.
2.
3.
4.
Court sustained a Connecticut regulation granting Medicaid benefits for childbirth but denying them for
non-therapeutic medically unnecessary abortions.
Equal Protection analysis: deferential mere rationality review was necessary: no suspect
classification and no fundamental right to an abortion so no strict scrutiny.
a. This placed no obstacles in the pregnant woman’s path to an abortion so it did not violate the
fundamental right established by Roe: freedom to decide whether to terminate pregnancy.
Applying mere rationality: rationally related to legitimate goal of encouraging normal childbirth: policy
of paying for childbirth but not abortion was a rational means to accomplish the state’s goal.
J. Brennan’s dissent: seriously erodes the principles of Roe v. Wade: would coerce indigent pregnant
women to bear a child would not have others chose to have: violated Roe: women could not make free
choices of whether or not to have the child or not.
**Carey v. Population Services Int’l (1977): Strict Scrutiny for laws restricting access to
contraceptives; NY law thus unconstitutional.
1.
2.
Facts: NY law makes it a crime for (1) anyone to sell or distribute contraceptives to minors under 16
(2) anyone other than licensed pharmacist to distribute contraceptives to persons over 15 and (3)
anyone to advertise or display contraceptives.
Held: Fails under S.S.; infringes on right to restrict procreation.
a. Violates rights of those under age 16 to have access to contraceptives.
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b. Fails narrow tailoring: Court doubted that prohibiting distribution of contraceptives would
deter teenage sexual activity and thought it irrational that a state would want unwanted
pregnancy to be the punishment for fornication.
**Belotti v. Baird (1979): Abortions for minors:
Balance between deference for parents’ wishes and deference to individual rights.
While parents cannot have an absolute veto, the state could require parental consent unless child could show
that it would not be in the best interests to disclose to parents.
**Harris v. McRae (1980): Rejected Constitutional attack on federal funding limitations that
barred payments for most medically necessary abortions.
1.
2.
Simply does not follow that a woman’s freedom of choice carries with it a constitutional entitlement to
the financial resources to avail her of the full range of protected choices. As in Maher restricting the
funding did not put indigent women in worse position than had there been no funding initially. No
fundamental right or suspect classification: minimum rationality tests: abortion was sufficiently
different from other medical procedures: funding latter but not forma was not irrational.
J. Brennan’s dissent: Majority: got it wrong: previous decisions show that the State must refrain from
wielding its enormous power and influence in a manner that might burden the pregnant woman’s
freedom to choose whether or not to have an abortion.
**Akron v. Akron Center for Repro Health (1983): Strikes down counseling (inform women
seeking abortions about the development of the fetus and that the “unborn child is a human life
from conception.)
1.
2.
Court struck down abortion regulations enacted by the City of Akron, and affirmed Roe v. Wade. State
cannot impose a blanket rule that all abortions after the first trimester be performed in a hospital,
because such a requirement would bar abortions in outpatients’ faculties that are not part of an acute
care, full-sized hospital. But the state could require certain abortions be performed only in hospitals.
O’Connor’s dissent: advocated moving from trimester model to one that an abortion regulation is not
unconstitutional unless it unduly burdens the right to seek an abortion. Standard would be applied to
the entire length of the pregnancy without reference to any trimester. Roe is on collision course:
viability to pushed back to conception while maternal health is closer to birth.
**Thornburgh v. American College of Obst. & Gyn (1986): Court reaffirmed Roe v. Wade: holding a
woman’s right to make the choice freely is a fundamental right
1.
2.
Facts: PA statute requires giving women 7 pieces of info 24 before abortion (possibility of
unforeseeable physical and psychological effects, availability of prenatal and childbirth medical care,
father’s liability to pay for children, there is literature that describe physical and psychological
characteristics of “unborn child” at two week gestational increments.)
White’s dissent: There is no authority and Roe was wrong.
**Webster v. Reproductive Health Services (1989): State may prohibit all use of public facilities
and publicly employed staff in abortions: Seems to recognize that state has compelling interest in
protecting fetal rights, though does not overrule Roe
1. Facts: MI statute says life begins at conception and thus no public facilities or staff or public funds can
be used to “encourage or counsel” a woman to have an abortion. Abortions after 20 weeks were only
allowed if test was done to ensure that fetus was not viable.
2. Held: Plurality, Rehnquist/White/Kennedy(no majority, not precedent); Statute is constitutional:
state’s refusal leaves pregnant women with the same choices if the State had chosen not to operate any
public hospitals at all.
a. Trimester distinctions in Roe to balance the rights of the mother and the state’s interests was
invalid and not backed by any constitutional support.
b. No reason to support the idea that state’s interest in protection potential of human life comes
in only at viability (arbitrary point)
3. Scalia concurrence: plurality opinion seems to overrule Roe/Wade, but we need to do it more
explicitly.
4. O’Connor concurrence: addresses only specifics of MI law and does not touch the question of whether
Roe/Wade should be overruled
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5. Dissent: Blackmun/Brennan/Marshall: the statute was too broad: broad definition of public facility:
some small connection with state made it a state facility; state attempting to dissuade people from
having abortions.
**Rust v. Sullivan (1991): Government may, as a condition of funding family-planning clinics,
insists that the doctor or other professional not recommend abortion, and not refer clinic
patients to an abortion provider.
Court extended Maher/Roe to a restriction on abortion counseling from any project receiving federal
family planning funds. Due Process Clause: affords no affirmative right to governmental aid, even with
liberty that the government may not otherwise interfere.
No obstacle = just can’t have a subsidized abortion.
** Planned Parenthood v. Casey: (1992): Upheld Roe (government may not ban abortions prior to
viability) but may regulate abortions before viability as long as it does not place an “undue
burden” on access to abortions (Undue Burden Test). In this case, 24-hour wait is okay (does not
place an undue burden on women.)
1. Facts: PA act required informed consent; 24 hour waiting period; spousal notification; inform parent.
Each provision was challenged as unconstitutional.
2. Held: the state may restrict abortions so long as they do not place undue burdens on the woman’s
right to choose. The argument that abortion is a fundamental right was rejected. The Roe v. Wade
Trimester model was rejected. Complete inability of the state to restrict 1st trimester abortions was
rejected.
a. Stevens/Blackmun voted to reaffirm Roe.
b. Rehnquist/White/Scalia/Thomas voted to overturn Roe completely.
c. O’Connor/Souter/Kennedy voted to reaffirm central holding of Roe, but to allow state
regulation that did not unduly burden the woman’s fundamental right to choose.
3. Joint Opinion: reaffirmed the essential holding of Roe v. Wade:
a. Recognition of the right of a woman to choose to have an abortion before viability and to
obtain it without undue influence from the state.
b. Confirmation of the right of the state to restrict abortions after fetal viability with
exception for woman’s life or health.
c. Recognition of the state’s legitimate interest from the outset of pregnancy in protecting
health of the woman and life of the fetus.
d. Special nature of abortion dictates that it is left to the woman—it impacts her in a uniquely
personal way.
e. Where a constitutional provision has not proved unworkable, and where overturning it would
damage reliance interest, and faith in court system, stare decisis dictates that the decision not
be overturned.
i. Not unworkable: factual underpinning is the same.
f. Reliance: people have organized intimate relationships and made choices in reliance on the
availability of abortion in the event that contraception should fail.
g. Overrules Roe’s trimester system: Trimester fails since it completely devalues human life in
the first 2 trimesters.
4. Undue Burden Test = anything that has the purpose or effect of placing a substantial obstacle in the
path of a woman seeking an abortion of a non viable fetus. State may create a structural mechanism by
which the state may express profound respect for the life of the unborn and does not place a
substantial obstacle in the woman’s path. After viability: retain Roe rule. May proscribe all abortions
not needed to protect the life of the mother.
a. As applied to PA statute:
i. Counseling/Informed consent: upheld because it doesn’t stop women from having
abortions (opposite of Akron)
ii. 24 hr waiting period before abortion: upheld
1. Trial court found that practically this causes more than 24hrs wait for women
who have traveling difficulties and financial problems.
iii. Spousal notification: invalidated.
iv. Parental consent: upheld.
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5. Concurrence (in part): (Stevens) Should have used Strict Scrutiny. State has legitimate interest in
protecting fetal life. State can express the preference for fetal life, but it cannot coerce a woman’s
decision. 24 hour period was unconstitutional. Pre-abortion counseling was unconstitutional.
6. Concurrence (in part): (Blackmun) Should have used Strict Scrutiny. Roe’s Trimester framework
should be maintained. All provisions were unconstitutional.
7. Dissent: (Rehnquist) Roe was wrong. All provisions are constitutional. Abortion is not a fundamental
right, nor ever was. No historical tradition. Rational relation to state interest is the appropriate test.
This is an area not up to the court’s discretion. Should leave it up to the states. Maj. did not even apply
stare decisis.
8. Dissent: (Scalia) Abortion is not a right protected by the Constitution: (1) no textual support; (2)
history has allowed it to be proscribed. Stare decsis was not applied here. (3) Maj. has given no
guidance.
Hypothetical: State legislature in Idaho wants to pass 24-hour waiting period—constitutional? Who knows!?!
Maybe if one can prove that to these poor rural women are discriminated as applied to them—then it’s
unconstitutional. Can’t tell whether or not it is an undue burden without reference to state and statute. All
turns on whether a DC can be persuaded by substantial obstacle test.
**Stenberg v. Carhart (2000): First time Court expressly adopted and applied the Undue Burden
Test to strike down state law banning partial-birth abortions
1.
2.
3.
4.
Held: statute banning partial-birth abortions is unconstitutional.
Undue Burden Test
a. Is a right infringed?
b. Is the infringement justified by a sufficient purpose?
c. Are the means sufficiently related to the end sought?
d. Problem: there is no level of scrutiny articulated
Internal tension:
a. Undue burden = “if [the law’s] purpose or effect is to place a substantial obstacle in the path of
a woman seeking an abortion before the fetus attains viability.” Yet also says that state can
protect its interest by making sure that women have all the information possible. This is
circular (all obstacles are informative-based, and all information can be seen as an obstacle.)
Offers no guidance on which obstacles are considered overly burdensome.
Potential answer: Court seems to imply something is unduly burdensome if it will prevent a woman
from getting an abortion (Casey says spousal notification probably can; but 24-hour waiting probably
won’t)
**Gonzales v. Carhart (2007): Upheld Partial Birth Abortion Ban Act: Distinguished Stenberg and
facially upholds ban under 5th amendment DP (regardless of the fact that the procedure was
banned for all women, even in cases when the woman’s health is at risk.) Landmark (first time a
procedure is banned even though it might be necessary for patient’s health.)
1.
2.
3.
4.
Facts In 2003, Congress passed and the President signed the Partial-Birth Abortion Ban Act. The
controversial concept of partial-birth abortion is defined in the Act as any abortion in which
the death of the fetus occurs when "the entire fetal head [...] or [...] any part of the fetal
trunk past the navel is outside the body of the mother." (DNX.) Dr. Leroy Carhart and other
physicians who perform late-term abortions sued to stop the Act from going into effect. Attorney
General Alberto Gonzales appealed 8th circuit decision in favor of Cahart & Co.
PP: district courts have been inconsistent with their decisions about whether or not this
procedure is justified.
Arguments
a. Carhart: With this application the Act would ban most late-term abortions and thus be
an unconstitutional "undue burden" on the right to an abortion, as defined by Casey.
b. Gonzales: The Act's lack of an exception for abortions necessary to protect the health of
the mother rendered it unconstitutional under Stenberg v. Carhart, regardless of
Congress's finding in the Act that partial-birth abortions are never medically necessary.
i. Women can use another procedure (DNE: by killing the fetus before it is
delivered, then the Act is not violated.)
Held: J. Kennedy (5-4) The statute is facially constitutional under 5th amendment DP even
though it lacks an exemption for partial birth abortions necessary to protect mother’s
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6.
7.
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health.
a. Act is not unconstitutionally vague and did not impose an undue burden on the right to
an abortion. Under the most reasonable interpretation, the Act applies only to a specific
method of abortion and thus not unconstitutionally overbroad, and did not place an
undue burden on the decision to obtain an abortion.
b. Congress, after finding D&X never to be medically necessary, could validly omit a health
exception from the ban, even when "some part of the medical community" considers the
procedure necessary.
i. To require the exception whenever "medical uncertainty" exists would be "too
exacting a standard to impose on the legislative power [...] to regulate the
medical profession."
c. The Court left open the possibility that an as-applied challenge could be brought
against the Act if it were ever applied in a situation in which an intact D&E was
necessary to preserve a woman's health.
i. Problem: who has time to do an as-applied challenge to get a preliminary
injunction? Seems practically non-viable.
Concurrence: Thomas/Scalia: refrains from addressing whether Congress had the power to
enact this ban under Commerce Clause. Also, the current jurisprudence on abortion right has no
constitutional basis.
Dissent: Ginsburg: disputed the majority's claim that the opinion was consistent with the Casey
and Stenberg precedents and said, "The Court's hostility to the right Roe and Casey secured is
not concealed.”
Aftermath
a. Concern: what will happen when Congress has another finding that says this may be
medically necessary? Will they change? (Kreimer has doubts)
b. Kennedy goes out of his way to craft this opinion in a way that strongly suggests that
availability of abortion options is a crucial element of this.
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Individual & Fundamental Rights: Freedom of Sexuality
Sexual Orientation: Not a suspect class, mere rationality:
Bodily Integrity
Sexuality
Bowers v. Hardwick (1986)
Glucksberg (1996)
Upholding ban on assisted suicide
on a rational basis standard
because there is no fundamental
right in being assisted when
committing suicide
M. Cheng
Abortion
Roe v. Wade (1973)
Akron (1983)
Strikes down
counseling
Thornburg (1986)
Choice = fund.
PP v. Casey (1992)
Adopted but altered Roe
Romer v. Evans (1996)
Stenberg v. Carhart (2000)
Undue Burden Test
Lawrence v. Texas (2003)
Gonzales v. Carhart (2007)
Ban on partial-birth abortions
upheld
**Bowers v. Hardwick (1985): no constitutional protection for sodomy under rational
basis standard (not a fundamental right):
1.
2.
3.
4.
5.
6.
Facts: Michael Hardwick was observed by a Georgia police officer while engaging in the act of
consensual homosexual sodomy with another adult in the bedroom of his home. After being charged
with violating a Georgia statute that criminalized sodomy, Hardwick challenges the statute's
constitutionality.
Procedure: Hardwick failed to state a claim, the court dismissed. On appeal, the Court of Appeals
reversed and remanded, holding that Georgia's statute was unconstitutional. Georgia's Attorney
General, Michael J. Bowers, appealed to SCOTUS.
Held: White: consensual sodomy is not a fundamental right (thus rational basis standard)
a. Morality alone is sufficient to draw a rational basis.
b. Court has acted to protect rights not easily identifiable in the Constitution only when those
rights are "implicit in the concept of ordered liberty" (Palko v. Connecticut, 1937) or when
they are "deeply rooted in the Nation's history and tradition" (Griswold v. Connecticut,
1965, Married people have right to use contraceptives.)
i. The Court held that the right to commit sodomy did not meet either of these standards.
White feared that guaranteeing a right to sodomy would be the product of "judgemade constitutional law" and send the Court down the road of illegitimacy.
Concurrence: Burger: "To hold that the act of homosexual sodomy is somehow protected as a
fundamental right would be to cast aside millennia of moral teaching."
Concurrence: Powell: (Powell was the deciding vote): the punishment for sodomy could raise 8 th
amendment issues.
Dissent: Blackmun: “[o]nly the most willful blindness could obscure the fact that sexual intimacy is 'a
sensitive, key relationship of human existence, central to family life, community welfare, and the
development of human personality.'"
**Romer v. Evans (1996): homosexuality case: Hostility cannot constitute legitimate govt.
interest.
1.
Facts: Colorado enacted a constitutional amendment in response to legislation banning discrimination
against homosexuals. Part one repeals prior protection and second banned legislation giving
homosexuals a protected status. Outlaws a prohibition against discrimination based on sexual
orientation/conduct.
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2.
Rule: Fails Rational Basis Test: A bare desire to harm a politically unpopular group cannot constitute
a legitimate governmental interest.
3. Holding/Reasoning: J. Kennedy: The CO amendment is unconstitutional.
a. Fails rational basis test:
i. Breadth of statute and its lack of a defined goal mean a lack of rational relationship to a
legitimate state interest.
ii. There is no legitimate state interest because animus toward homosexuals doesn’t
count.
b. But, this is rational basis with bite: Court will strike down legislation motivated by “animus”
or hostility b/c desire to harm unpopular group cannot be a legitimate government objective.
c. When making classifications based on sexual orientation, there must be another state interest
besides hostility.
i. Doctrinally unstable - claiming that a state cannot classify a group of individuals to
make them unequal and not overruling Bowers, Kennedy creates a tension.
d. Evidence
i. History is only a starting point, but not an ending: 25 states that prohibited sodomy
have reduced to only 4 that have enforced. There is a pattern of non-enforcement.
ii. MPC does not consider these statutes essential to morality
iii. The Western World: European Court has found statutes at odds with requirements of
liberty
iv. 5 states are not following Bowers and are interpreting their own liberty and DP clauses
to favor a fundamental right.
v. Romer (animosity of individuals is not a legitimate basis for adverse action) and Casey
(importance of self-definition in important areas.)
4. Dissent: Scalia
a. Tolerant Coloradans want to preserve traditional sexual mores against the efforts of a
politically powerful minority.
b. The Court is made up of a bunch of elite lawyers who don’t understand traditional American
values.
c. Bowers v. Hardwick says homosexual conduct can be a crime, so this amendment should be
completely fine.
d. Other moral provisions, like those against polygamy, are constitutional, so this one is too.
e. There’s a justification for treating a widely held moral belief as illegitimate if it’s analogous to
other moral beliefs that have been treated as illegitimate.
f. Homosexuals are not politically unpopular – they’re loved by the media and got 46% of the
vote.
g. The court has usurped democratic decision-making, like the Lochner court.
5. Role of the Court: Does the Court have the power to evaluate “what serves only to oppress” for the
nation?
a. Turn to political process instead
i. Congressional statutes are easier to override than congressional interpretations.)
ii. Stare Decisis can impose a restraint on the Court.
b. Stay with the Courts
i. Majority may target minorities.
ii. Consistency: Stare Decisis means that Court must live with the decision that they make
today. Court will not be inconsistent like the Legislature, who is pressured by political
interests.
c. Kreimer: Judges aspire to impartiality. Courts are required to confront individual cases
(legislature can make decisions without really seeing the people affected.) They must issue
reasons for their decisions. Any individual can walk into court (pale in comparison to
organizational costs of affectively addressing the legislature.)
****Lawrence v. Texas (2003): homosexuality case: TX statute forbidding same-sex intimate
relations is unconstitutional under 14th Amendment’s EP clause.
1.
Facts: Houston police were dispatched to Lawrence’s apartment in response to a reported weapons
disturbance and found him and another man engage din a sexual act. Both were charged and convicted
under Texas law of “deviate sexual intercourse, namely anal sex, with a member of the same sex (man).”
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2.
3.
4.
5.
M. Cheng
Lawrence and Garner were each fined $200 and ordered to pay $141.25 in costs. The two challenged
the statute as a violation of the Equal Protection Clause of the Fourteenth Amendment.
PP: The Court of Appeals considered defendants’ federal constitutional arguments under both the Equal
Protection and Due Process Clauses of the Fourteenth Amendment. After hearing the case en banc the
court rejected the constitutional arguments and affirmed the convictions. The court held that Bowers v.
Hardwick was controlling regarding the due process issue.
Held: J.Kennedy: Statute violates the EP clause and there is no need to rely on the DP clause.
Concurrence: J. O’Connor: does not join majority in overruling Bowers but says that this is a violation
of 14th amendment’s EP Clause.
a. Hostility towards a certain group does not mean legitimate state interests standard. TX statute
“makes homosexuals unequal in the eyes of the law by making particular conduct—and only
that conduct—subject to criminal sanction.”
b. TX’s argument that this is a promotion of morality as a legitimate state interest is problematic.
The Court has rejected this.
c. Question becomes “whether, under EP clause, moral disapproval is a legitimate state interest to
justify by itself a statute that bans homosexual sodomy but not heterosexual sodomy. It is not.”
Aftermath: Don’t Ask Don’t Tell: is mere hypothetical rationality and morality enough?
152