Constitutional Law
Jody Blanke
Professor of Computer Information
Systems and Law
The Constitution
 Separation of Powers
 Art. 1 – The Legislative Branch
 Art. 2 – The Executive Branch
 Art. 3 – The Judicial Branch
 Checks and Balances
The Enumerated Powers Clause
 Art. 1 Sec. 8 of the Constitution
 Authorizes Congress
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to collect taxes
to coin money
to establish a postal system
to raise and support Armies
to provide and maintain a Navy
to regulate interstate commerce
to protect the writings of authors and the
discoveries of inventors
Preemption
 If Congress is authorized to make
law, and does so with the intent that
it be the only law, that law will
preempt any state law
Preemption
 Figure A
 Ex. FAA
 Ex. Patent Act
 Figure B
 Ex. Cipollone (1993)
 Ex. Silkwood (1984)
 Ex. Federal AntiSpam Act
1st and 14th Amendments
 1st Amendment
 “Congress shall make no law …”
 14th Amendment
 “No State shall make or enforce any law
which shall …”
 Most protections/restrictions apply to
both federal and state governments
State Action
 Public vs. private
 The Fourteenth Amendment prohibits
states from certain discriminatory behavior
 Citadel case (1995)
 school can have a males-only admissions policy
as long as it receives no public funding
 Augusta National Golf Club
 Moose Lodge v. Irvis (1972)
 Issuance of liquor license is not state action
Commerce Clause
 The interpretation by the Supreme
Court of the scope of the commerce
clause has changed dramatically over
the years
 Early on, the interpretation was fairly
broad
 Gibbons v. Ogden (1824)
 Congress, rather than New York, had the
authority to regulate steamboats on the
Hudson River
Commerce Clause
 With the advent of the Industrial
Revolution and Big Business, the
interpretation narrowed considerably
 Hammer v. Dagenhart (1918)
 The Court refused to let Congress regulate
with “social legislation,” e.g., child labor
laws
Commerce Clause
 New Deal legislation pushed by F.D.R.
and passed by the Congress was
struck down by the Supreme Court in
several 5-4 decisions
 Schechter Poultry (1935)
 Congress lacked the power to regulate
intrastate poultry processing activity
 The “Court Packing” Incident
 Why not have 13 Supreme Court
justices?
Commerce Clause
 Supreme Court finally permits
Congress to regulate intrastate
activity if it effects interstate
commerce (in 5-4 decisions)
 Jones of Laughlin Steel Corp. (1937)
 Wickard v. Filburn (1942)
 intrastate activity may have a cumulative
effect on interstate commerce
Commerce Clause
 Supreme Court upheld the
constitutionality of the Civil Rights Act
of 1964 on the basis of interstate
activity
 Heart of Atlanta Motel v. U.S. (1964)
 motel catered to interstate travelers
 Katzenbach v. McClung (1964)
 restaurant served food that was part of
interstate commerce
Commerce Clause
 Supreme Court finally draws an outer
boundary to interstate activity
 U.S. v. Lopez (1995)
 Gun-Free School Zone Act
 U.S. v. Morrison (2000)
 Violence Against Women Act
Dormant Commerce Clause
 State laws cannot unduly burden
interstate commerce
 Georgia would not be able to require
all restaurants in the state to serve
only dairy products from Georgia
dairy farms
 Maine v. Taylor (1986)
 But, Maine was permitted to ban the
importation of live bait fish
Freedom of Speech
 Political speech
 great deal of protection, but not absolute
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ex.
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dangerous speech
fighting words
defamation
obscenity
 Commercial Speech
 can be regulated for aesthetics
 Cincinnati v. Discovery Network (1993)
Freedom of Religion
 Free Exercise Clause
 great deal of protection, but not absolute
 ex. human sacrifice
 Establishment Clause
 separation of church and state
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school prayer
“In God We Trust”
The Pledge of Allegiance
The Ten Commandments
Eminent Domain
 Kelo v. New London (2005)
 90-acre development plan
 115 privately owned properties
 Poletown v. Detroit (1981)
 GM wanted to keep 6,000 jobs in Detroit
 Poletown was 465 acres, had 3,000
residents, 16 churches, 100+ businesses
 Chattanooga, Baltimore
Equal Protection
 Can a state ever pass a law that
treats black people differently than
white people?
Rational Basis Test
Strict Scrutiny Test
Intermediate Scrutiny
Equal Protection
 Rational Basis Test
 applies if no suspect class or
fundamental liberty interest is involved
 i.e., a good reason
 State v. Ri-Mel (1987)
 Minnesota required all for-profit health
clubs to post a bond – no such requirement
for not-for-profit health clubs
Equal Protection
 Strict Scrutiny Test
 applies if a suspect class or fundamental liberty
interest is involved, e.g., race or religion
 there must be a “compelling state interest”
 i.e., a very, very, very good reason
 Affirmative action
 Grutter v. Bollinger (2003) – U. Mich. Law
School
 Gratz v. Bollinger (2003) - undergraduate
Equal Protection
 Intermediate Level Scrutiny
 applies to protected class, i.e., not quite a
suspect class, e.g., gender or age
 classification must be “reasonably related” to
legitimate government purpose
 i.e., a very, very good reason
 Craig v. Boren (1976)
 Oklahoma law prohibited the sale of 3.2% beer
to males under 21 and females under 18
 .18% of females and 2% of 18-20-year olds
were arrested for DUI
Fisher v. Univ. of Texas (2013)
 7-1 majority remanded the case for
further review under a more
demanding standard that will require
colleges and universities to
demonstrate that “available, workable
race-neutral alternatives do not
suffice” before taking account of race
in admissions decisions.
Fisher v. Univ. of Texas (2013)
 Justice Kennedy’s majority opinion:
 “Strict scrutiny does not permit a court
to accept a school’s assertion that its
admissions process uses race in a
permissible way without a court giving
close analysis to the evidence of how the
process works in practice.”
Fisher v. Univ. of Texas (2013)
 Justice Thomas’s concurring opinion:
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“Grutter was a radical departure from our strict-scrutiny
precedents. In Grutter, the University of Michigan Law
School (Law School) claimed that it had a compelling
reason to discriminate based on race. The reason it
advanced did not concern protecting national security or
remedying its own past discrimination.”
“Contrary to the very meaning of strict scrutiny, the Court
deferred to the Law School’s determination that this
interest was sufficiently compelling to justify racial
discrimination.”
“I would overrule Grutter and hold that the University’s
admissions program violates the Equal Protection Clause
because the University has not put forward a compelling
interest that could possibly justify racial discrimination.”
Fisher v. Univ. of Texas (2013)
 Justice Ginsburg’s dissenting opinion:
 “The Court rightly declines to cast off the equal
protection framework settled in Grutter. Yet it stops
short of reaching the conclusion that framework
warrants. Instead, the Court vacates the Court of
Appeals’ judgment and remands for the Court of
Appeals to ‘assess whether the University has offered
sufficient evidence [to] prove that its admissions
program is narrowly tailored to obtain the educational
benefits of diversity.’ As I see it, the Court of
Appeals has already completed that inquiry. . . . For
the reasons stated, I would affirm the judgment of
the Court of Appeals.”