Constitutional Outline I. Introduction to Constitution a. Methods of Interpretation i. Originalism: original intent, asks what the framers wanted to do 1. Ex. The framers would have been shocked by the notion of the government taking away our handguns 2. Ex. Militia meant armed adult male citizenry when the Second Amendment was enacted, so that’s how we should interpret it today ii. Textualism: places emphasis on what the Constitution says 1. Ex. The Second Amendment says right to the people to keep and bear arms, so the people have the right to keep and bear arms 2. Ex. The Second Amendment says A well regulate militia, so the right is limited only to the militia iii. Structural Analysis: suggests that interpretation of particular clauses should be constituent with or follow from overarching structures or governing principles established in the Constitution 1. Examples are the democratic process, federalism, and the separation of powers 2. Ex. The Constitution sets up a government run by constitutional democratic process, with various democratic checks and balances, such as federalism and elections. To read the Second Amendment as facilitating violent revolution is inconsistent with this structure iv. Stare Decisis: looks to what courts have written about the clause 1. Ex. Courts have held that the Second Amendment protects weapons that are part of ordinary military equipment, and handguns certainly qualify 2. Ex. Courts have held that the second amendment was meant to keep the militia as an effective force, and they can be nicely effective just with rifles v. Pragmatism: considers the effect of various interpretations, suggesting that courts should adopt the one that avoid bad consequences 1. Ex. The Second Amendment should be interpreted as protecting the right to own handguns for self defense because otherwise only criminal will have guns and crime will skyrocket 2. Ex. The Second Amendment should be interpreted as not protecting the right to own handguns for self defense because otherwise we’ll never solve our crime problems vi. Polling jurisdictions: examines practices in the United States and even abroad 1. Finding out about what American people feel about things 2. Ex. The legislatures of all fifty states are united in their rejection of bans on private handgun ownership. Every state in the Union permits private citizens to own handguns. Practices in other countries are immaterial to the task of interpreting the U.S. Constitution vii. Fundamental values: appeals to widely shared values or beliefs 1. What the court believes and what everyone else should believe 2. Ex. Every person has the right and duty to defend themselves. Handgun ownership is essential to make that right meaningful 3. Ex. We all want to be free from fear in our daily lives and in the places in which we live them. Handguns engender fear b. Basic Skills i. The Constitution binds and controls only government entities NOT PRIVATE PARTIES OR BUSINESSES 1. To sue for a Constitutional violation, we must allege that a government or an agent of government is violating the Constitution. a. We say that there must be “state action” or a “state actor,” i.e. action by some government, federal or State, or some agent of a government. b. Examples i. cities, police departments, school systems, etc. are parts of State government ii. individuals who act for a government – the President, a mayor, an FBI agent, a teacher, etc. – are also called “state actors” iii. The question of who is a state actor can be complex, and we will discuss it in more detail later. For now, just think about the entities and actors that you are pretty sure are governments or agents for governments 2. Examples a. No state action: Joe's Sweatshop can fire employees for calling Obama a communist without violating the Constitution. Joe's sweatshop is not a government entity. b. State action: If Denver fires policemen for speaking against war, Denver will violate the Constitution. Denver is a government entity. c. State action: A policeman clubs a protester for criticizing Obama. The policeman is an agent of the government and therefore a state actor. ii. No entity can act without power to do whatever it has done or contrary to a Constitutional limit. 1. Therefore, analyzing a Con Law problem begins with three preliminary questions c. Basic Approach to Solving Con Problems i. Is there a state action? 1. Why: if private party then the constitution does not apply 2. Who or what is doing the action that I am challenging 3. State action: government actor or state government 4. Examples a. E.g. The federal government outlaws marijuana. The federal government is the actor. b. E.g. The FBI arrests Malcom for violating marijuana laws. The FBI is a federal entity, part of the Executive branch of the federal government c. E.g. Denver police officer Bobby Brutal put choke holds on black people when he gives them sobriety tests. Officer Brutal is an agent of Denver. Denver is part of the Colorado state government. ii. Does the actor have the power to act? 1. Where is the power to do this 2. If no power, then whatever they have done is un-constitutional 3. State powers to do something come from state's constitutions a. If state actor, we always say yes b. Ex. Colorado pass the broccoli act, do they have the power, we don't know what the Colorado constitution has 4. For federal actors, the question requires an answer a. What passage of the Constitutional text or what precedent interpreting the text authorizes the action? i. E.g. The federal drug laws are an exercise of Congress's commerce power. Article I, section 8, paragraph 3 ii. E.g. The copyright laws are an exercise of Congress's power over patents and trademarks. Article I, section 8, paragraph 8. iii. Ex. Congress were to say we don’t like aspirin abuse so we are going to pass a law that everyone should eat broccoli three times a day 1. Yes state action: broccoli act 2. Power to act: no power in the constitution for Congress to do this iii. Has whatever the actor done violate any constitutional prohibition or limit? 1. Most common are in the Bill of Rights and Fourteenth amendment a. E.g. Congress shall make no respecting an establishment of religion. Amendment I, b. E.g. All persons entitled to equal protection of the law. Amendment XIV. 2. Ex. Congress were to pass a law saying citizens should not criticize president Trump a. No because it violates the first amendment 3. Other prohibitions and limits are scattered through various articles a. E.g. No appropriation for Army for over two years. Article III, Section 8, paragraph 12. b. E.g. No money from treasury without appropriation by law. Article III, Section 9, paragraph 7. 4. If it violates then it is unconstitutional II. The Judiciary a. Congressional Limits on Court i. Article III, Section 1 1. Source: provides that the judicial power of the United States shall be vested in one Supreme Court and in such inferior courts as the Congress may from time to time ordain and establish 2. Scope: a. Article III delineates the jurisdiction of federal courts as limited to cases or controversies: i. Arising under the constitution, laws, and treaties ii. Affection foreign countries ambassadors iii. When the United States in a party b. Judicial review of congressional and executive actions: i. The judiciary has the power, although it is not enumerated in the text of the constitution, to review an act of another branch of the federal government and to declare that act unconstitutional, Marbury v. Madison, as well as the constitutionality of a decision by a state’s highest court, Martin v. Hunter ii. The central ideas of Marbury v. Madison are that (1) the constitution is paramount law, and (2) the Supreme Court has the final say in interpreting the Constitution c. Judicial review of state actions: i. The federal judiciary has the power, under the Supremacy Clause, to review state actions (ex. Court decision, state statutes, executive orders) to ensure conformity with the Constitution, laws, and treaties of the United States ii. Cohens v. Virginia: the supreme court had the authority to review state decisions 1. It was the American people in convention that ratified the constitution, if the people ratified it, the states are not sovereign the people are sovereign 3. Limitations: Eleventh Amendment a. Jurisdictional bar that prohibits the citizens of one state from suing another state in federal court i. It immunizes states from suits in federal court for money damages or equitable relief when the state is a defendant in an action brought by a citizen of another state or foreign county ii. Also bars suits in federal court against state officials for violating states law b. Exceptions to application of amendment: i. Consent, injunctive relief, damages to be paid to individual c. Not barred by the 11th amendment: i. Actions against local governments: only applies to states and state agencies, local governments are not immune from suit ii. Actions by the US government or other state governments are not barred iii. Bankruptcy proceedings: does not bar the actions of Bankruptcy court that impacts state finances ii. Congressional Exceptions Power: 1. Article III, Section 2, paragraph 2, of the Constitution provides that the supreme court shall have appellate jurisdiction, both as to Law and Fact, with such exceptions, and under such regulations as the congress shall make 2. The exceptions and regulations clause: a. One side believes that this provides Congress with broad powers to remove matters from the Supreme Court's purview i. Congressional control as a check on the judiciary's power b. Other side believes that Congress is limited in its ability to control Supreme Court jurisdiction i. Congress could create an exception to the Supreme Court's jurisdiction for review of matters of fact, but Congress could not eliminate the Court's appellate jurisdiction for issues of law ii. This power cannot be used in a manner that violates the Constitution 3. Ex Parte McCardle: court held that it did not decide case congress’s authority to create exceptions and regulations to the court’s of appellate jurisdiction a. Congress has the power to limit jurisdiction 4. Hamdan: when the court has the ability to decide the case on statutory merits rather than constitutional merits, they will decide on statutory merits a. We would rather not make a high problem with, if we make a mistake it is confined to the statute iii. Congressional Power over Inferior Courts 1. Congress may control the jurisdiction of the lower federal courts, pursuant to Article I, section 8, paragraph 9 2. Congress may "regulate" and make "exceptions" to the appellate jurisdiction of the Supreme Court. 3. Congress has used the "exceptions" power to prevent the Supreme Court from hearing cases 4. Today it is an open question whether Congress can use its powers over the inferior courts and exceptions power to prevent the Supreme Court from ruling on Constitutional issues 5. The Court typically avoids directly ruling on Congressional authority to eliminate the Court's review of Constitutional cases by using one or another of various "avoidance" principles, some of which are stated in Ashwander 6. It is common for the Court to very narrowly construe statutes limiting its jurisdiction and to hold that the statues do not preclude review of Constitutional issues 7. Sheldon v. Sill: congress creates = congress can limit jurisdiction 8. Yerger: no article III power a. Under Judiciary Act iv. 3 main positions: 1. Policy: separation of powers 2. Historical: courts have evolved 3. Textual: court have created the courts and have the power b. Avoidance Principles i. Not binding on the court, these are self imposed rules ii. Keep the separation of powers, pass onto to Congress iii. Principles of judicial restraint iv. One way the court will use to avoid deciding constitutional v. Principles: 1. The court will not pass upon the constitutionality of legislation in a friendly, non-adversary, proceeding 2. The court will not anticipate a question of constitutional law in advance of the necessity of deciding it a. Not in conflict 3. The court will not formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied a. When it is broader it displaces congress in other areas 4. The court will not pass upon a constitutional question although properly presented by the record, if there is also present some other ground upon which the case may be disposed of a. Hamdan is an example: if they can rule on another ground then they should do that 5. The court will not pass upon validity of a statute upon complaint of one who fails to show that he is injured by its operation 6. The court will not pass upon the constitutionality of a statute at the instance of one who has availed himself of its benefits 7. Cardinal principle that this court will first ascertain whether a construction of the statute is fairly possible by which the question may be avoided a. Hamdan example c. Justiciability i. Can a court hear this case ii. If it is non-justiciable, then the case should be dismissed iii. Usually come up at the beginning of the case 1. Judgment on the pleadings: take the allegations in the complaint as true iv. Some are prudential: the court can follow them or not follow them v. Some are constitutional: congress can't change them and judges are supposed to follow them vi. Doctrines: 1. Advisory opinions: a. Court shall not render advisory opinions b. Constitution limits to cases and controversies c. Any matter that does not have a controversy is nonjusticiable d. Ex. The letter that Jefferson wrote to the court i. There is no controversy here, your asking for advice and that is completely your discretion 2. Standing a. Why: article III, section 2, paragraph 1 i. If is not a case or controversy then it is outside the judicial power ii. No standing for generalized grievances 1. Ex. Where the plaintiff claims a violation of the law 2. Ex. Constitution has resulted in an injury that is suffered by most or all citizens a. There is no taxpayer standing iii. Judicial efficiency: 1. want the courts to work on cases that matter 2. the fewer cases we have to decide then the more efficient 3. Promotes separation of powers by reducing number of court rulings 4. Reduces lawsuits by those with only an ideological stake in the matter 5. Helps ensure cases are well litigated which makes for better decisions b. Constitutional Standing requirements: i. Harm/injury: plaintiff must allege that he or she has suffered or imminently will suffer an injury 1. Direct, actual, imminent 2. Economic: if economic harm you likely have standing a. Ex. Abbott Labs v. Gardner 3. Also not tangible, like emotional distress or reputation 4. Aesthetic harm: an ugly structure that is build that harms the neighborhood 5. Cases: a. Lujan and Defenders: Harm has to be actual, either to the plaintiff personally or imminent to the plaintiff b. Clapper v. Amnesty: the economic harm is speculative c. City of LA v. Lyons: the injury is speculative, no standing d. ii. Causation: plaintiff must allege that the injury is fairly traceable to the defendant's conduct 1. Defendant's action must cause the harm 2. If harm to a right, plaintiff should be right holder, otherwise third party standing issue 3. Cases: Allen v. Wright iii. Redressability: plaintiff must allege that a favorable federal court decision is likely to redress the injury 1. Can the court make an order that will fix the harm 2. Cases: Linda v. Richards c. Prudential standing: i. Court made principles ii. Types: 1. No third party standing: one does not have standing because of an injury to someone else a. Rationale: i. Third parties might have more resources to bring suits ii. Protection of identity b. Exception: i. Based on closeness of relationship and likelihood of 3rd party suing on own behalf ii. Ex. Singleton v Wulff iii. Physician patient relationship 2. Generalized grievances a. No standing when asserted harm is generalized grievance share in substantially equal measure by all or a large class of citizens b. Ex. US v. Richardson c. Why we don’t want to have these: i. Creates a burden on the courts ii. Should be fixed through congress through the laws iii. Separation of powers 3. Plaintiff seeking standing must be within zone of interest protected by the statute in question 4. Organizational standing: if one member in a group can prove standing then that organization has standing a. US v. SCRAP: court allowed organizational standing 3. Ripeness: a. The ripeness doctrine prevents case from being heard before there is a concrete injury or an imminent threat of injury. b. The rule is justified because abstract cases are harder for a court to decide correctly than very concrete ones. c. Ripeness is typically an issue in cases challenging a law or rule before the law or rule is actually enforced. d. doesn’t matter if a long time before statute in question will take effect as long as inevitably it will take effect (Lake Carriers v. MacMullan and Regional Rail Reorganization Act) e. The two factors that must be considered: i. fitness of the case for judicial review 1. Look at now and in the future 2. Ex. Abbott Laboratories v. Gardner 3. are the factual and legal issues already defined enough so the court can make an authoritative ruling? How much clearer will the issues become if the court waits? 4. Cases that consist solely of legal issues are more fit than cases where the issues predominantly factual ii. hardship to the parties 1. Look at now and in the future 4. Mootness: a. The standard statement: A court will not hear a case unless a real, live controversy exists at all stages of review. b. Perhaps the simplest rule for determining whether a case is moot is: If the court rules in favor of the plaintiff, can the court make an order that would redress the claimed harm. c. Mootness bars ruling in a case after the conflict has ended; Ripeness bars ruling before the conflict has become concrete. d. Exceptions: i. Biggest exception: A case won't be dismissed, though it would otherwise be moot if the harm has stopped but is likely to recur. This exception "capable of repetition but evading review" is needed or illegal harms of short duration could not be reviewed. E.g. periodic illegal pollution. 1. Moore v. Ogilvie, Roe v. Wade 2. DeFunis v. Odegaard- no exception because Federal courts are without power to decide questions that cannot affect the rights of litigants in the case before them (need controversy) ii. Another exception: Voluntary cessation - if the bad guy stops the behavior (and therefore the harm) before judgment is entered, the bad guy could avoid an adverse judgment. 1. If it is reasonably likely to occur 2. Only if there is no reasonable chance that the behavior will not occur again should the case be dismissed. (This is very often the same of the "capable of repetition but evading review exception.) iii. Another exception: A class action representative can continue a class action even if the representative's individual case is moot, as long as others in the class are still viable. 5. Political Question a. Basic idea: avoid stepping on feet of another Federal branch b. Rule: a federal court will not rule on a matter in controversy if the matter is a political question to be resolved by one or both of the other two branches of government c. It is the relation between the judiciary and the other federal branches (not the federal judiciary to the states) that might raise a political question issue. d. The political question doctrine is "flexible" and not applied consistently. e. The Court has used the doctrine to avoid tough decisions. f. Baker v. Carr: i. The Baker factors are the black letter law ii. Not political question if between federal judiciary to the states g. Goldwater v. Carter: i. The president is in charge of foreign relations and we should not involve political question h. Zivotofsky v. Clinton: i. This is the supreme court’s job to decide whether the statute is constitutional i. Three main factors: (from Baker) i. Power given to another branch 1. Textual commitment a. If it is the job of another branch then we are not going to hear it b. Ex. Guaranty clause ii. Unfit for judicial decision 1. Lack of standards to decide as a court would 2. Need a policy question answered before court can decide a. If yes, then it would make it unfit for judicial decision iii. Prudential decision: 1. Avoid embarrassing or disrespecting another branch 2. Need to unquestionably adhere to decision of another branch 3. Avoid different answers from different branches on same question III. Congressional Powers a. Necessary and Proper Clause: Article 1, Section 8, Part 18 i. The Necessary and Proper clause is not itself a power. It gives Congress power to execute the other, "enumerated" powers. Think of it as "amplifying" the enumerated powers. ii. Clause: Cong. has power to make all laws which shall be necessary and proper for carrying into execution the foregoing powers and all other powers vested by this Const. in the gov't of the US, or in any dept. or officer thereof iii. McCulloch v. Maryland: 1. How to interpret the constitution: a. Cause it is an outline and not a legal code 2. Meaning of the necessary and proper clause a. It is an amplifier b. Supports idea that there are powers around the enumerated powers iv. United States v. Comstock: 1. The statute is narrowly construed to only address the legitimate federal interest b. Commerce Power: Article 1, Section 8, Part 3 i. The commerce power is the most important and most used Congressional power ii. Interstate (across states) Commerce rule: Congress has the power to regulate (1) the channels (highways, waterways, airways) and (2) the instrumentalities (cars, trucks, ships, airplanes) of interstate commerce, as well as (3) any activity that substantially affects interstate commerce, provided that the regulation does not infringe upon any other constitutional right. 1. United States v. Lopez 2. NFIB v. Sibelius: must be an activity 3. Gibbons v. Ogden 4. US v. Darby 5. Heart of Atlanta Motel v. US iii. Economic Intrastate (instate) Commerce rule: The Court will uphold commerce power regulations of intrastate activity that IS economic or commercial, if the Court can conceive of a rational basis on which Congress could conclude that the activity, in aggregate, substantially affects interstate commerce. 1. Gonzalez v. Raich: prohibition on personal cultivation and use of medical marijuana upheld due to effect on overall interstate trade) 2. Wickard v. Filburn: supreme court upheld a congressional restriction of wheat production, even when applied to a farmer growing only 23 acres of wheat for personal use a. The rationale behind the decision was that if every small farmer were allowed to grow an unrestricted amount of wheat, the combined effect could have an impact on supply and demand in the interstate market iv. Non-Economic Intrastate Commerce Rule: The Court will uphold commerce power regulations of intrastate activity that is NOT economic or commercial, if Congress has factually shown a substantial economic effect on interstate commerce (or if the regulation of intrastate, noneconomic matters is necessary to make a regulation of interstate commerce effective). 1. Not economic or commercial examples: 2. United States v. Morrison: federal civil remedy for victims of gender motivated violence held invalid 3. United States v. Lopez: federal statute regulating possession of a firearm within 1,000 feet of a public school struck down v. Two reasons there is a broader scope today: 1. Commerce has changed a. We no longer purchase things that are from the vicinity 2. Relative roles of the state and federal governments a. Usually we look to the federal government to do many things i. Ex. Depression, pension b. Rise and fall of states rights vi. Commerce Power operates in two ways simultaneously: 1. Narrow power 2. Create limits (usually linked to 10th amendment) vii. Cases: 1. Restricting commerce powers: a. Lopez b. Morrison c. Obamacare 2. Putting limits an all powers (federal powers): a. NY v. US b. Printy c. Reno th c. 10 Amendment of the States i. Rule: The federal government may not commandeer state governments to carry out federal commands ii. Task of ascertaining the constitutional line between federal and state power: 1. Whether an act of congress is authorized by one of the powers delegated to congress in article 1 2. Redefine the power to reduce the power iii. Whether an act of congress invades the province of state sovereignty reserved by the tenth amendment 1. Defining limits iv. Cases: 1. New York v. U.S.: a. Federal legislation cannot commandeer, but it can attach conditions for receipt of federal funding b. Where congress has the authority to regulate private activity under the Commerce Clause, we have recognized Congress’s power to offer states the choice of regulating that activity according to federal standards or having state law pre-empted by federal regulation 2. Reno v. Condon: only case where federal statute was constitutional a. Federal government can regulate states as an employer (not being regulated as a state) that applies regulation to all in same field and not specifically at state, not commandeering 3. South Carolina v. Baker: The court will uphold a statute where the law regulates state activities rather than seeking to control influence the manner in which states regulate private parties 4. Printz v. US: Problem with 10th Amendment, does double security (being subject to two governments) mean more security against government interference? Still have potential for both to take your liberties away- idea from Hughes in Printz v. US a. Must have accountability- know it is a federal program, not state d. Taxing and Spending i. Article I, section 8: congress shall have power to lay and collect taxes ii. The taxing and spending powers are independent (not limited) by the other enumerated powers. In other words, Congress can tax and spend for any purpose that is within the meaning of "general welfare" or "common defense." It need not restrict its spending to carrying out only the enumerated powers. iii. There is no "general welfare" power. iv. The federal government may impose conditions on its grants to the states, as long as those conditions are related to the federal program, non-coercive, in pursuit of the general welfare, and clear. v. Conditions on grants to state governments: vi. The court has upheld that congress may place strings on such grants, as long as the conditions are expressly stated and as long as they have some relationship to the purpose of the spending program vii. Cases: 1. United States v. Butler: a. Answers a basic question about whether the taxing and spending powers can only be used to pursue actions authorized by other enumerated powers -- like the Necessary and Proper clause -- or whether they can be used for any purpose in the "general welfare." What's the answer? b. Any purpose in the general welfare c. Ability for government to make laws for the general welfare–this is incorrect; it's not unlimited power to pass laws for the general welfare, it's for tax and spend laws d. The court adopted Hamilton's view: clause confers power separate and distinct from those enumerated and congress consequently has the substantive power to tax limited only by the requirement that it shall be exercised to provide for the general welfare 2. South Dakota v. Dole: a. The congressional act violates the Tenth Amendment because it is commandeering the state b. State legislature will forego 5% of its funding if it decides to keep the drinking age 19, which is not a significant amount and not coercive c. Rules: i. In pursuit of general welfare ii. Congress can condition the State's receipt of federal funds if it unambiguously enables the states to knowingly choose and be cognizant of its consequences iii. Be related to federal purpose iv. Conditions may be barred by other constitutional provisions 3. NFIB v. Sibelius: a. Individual mandate: i. Essential attribute of a tax is revenue: a tax if there is a reasonable relationship to revenue; a tax can always be something that is a means of carrying the thing out ii. Using judicial restraint (avoidance principle): not going to find this unconstitutional if I can find a way to rule it constitutional b. Medical expansion: i. State does not have a choice here as opposed to SD v. Dole ii. Roberts would repeal Medicaid and start over with the Medicaid expansion program and reenact that iii. Breyer and Kagen also voted with Roberts on this issue iv. Precedential value, but might not come up e. Powers under Section 5 of the 14th Amendment i. 14th amendment: section 1 1. Privileges and Immunities of citizens 2. Equal protection - discrimination 3. Due process a. Procedural: i. Right to attorney, right to trial b. Substantive i. Fundamental rights ii. Bill of rights ii. The 14th Amendment prohibits state actors (not the federal government or private parties) from violating many parts of the Bill of Rights (because of the due process clause's protection of liberties) and from discriminating (because of the Equal Protection clause) unfairly. iii. Section 5 of the 14th Amendment empowers Congress to enforce the 14th Amendment. Congress may not expand existing 14th Amendment protections, create new ones, or change the nature of a right that the Court has already described. iv. RULE: Congress must 1) point to a history or pattern of STATE violation of the right Congress is enforcing and 2) must ensure the law is "congruent and proportional" to solving the violation, i.e. the law must be narrowly tailored to addressing the violation. v. Congress can remove the states' 11th Amendment immunity when it uses the section 5 power. 1. Changes article III 2. Combined with case law (Hans v. Louisiana), people cannot sure a state in federal court 3. Cannot sue state: a. Where state is named as a party b. Cannot sue a state officer for past damages to be paid from state treasury c. For violating state law 4. Can sue state: a. Action is against local government b. States and feds can sue state c. Suring a state officer for an injunction vi. vii. viii. ix. x. d. Sue a state officer for future monetary relief i. Ex. Welfare payments from treasury 5. Congress cannot remove a state's sovereign immunity a. Unless under Section 5 of the 14the amendment Section 5 of the 14th Amendment can only be used to regulate states, not private parties The 13th Amendment bans slavery and DOES apply to private parties. The 15th Amendment limits both States and the federal government. It prohibits denying the right to vote to citizens based on race or color. Two views of congress's power under section 5: 1. Narrow: think the court should be the only branch of government that can determine what is impermissible discrimination a. Congress power is limited to implementing rights as the court has described those rights b. City of Boerne v. Flores 2. Broad: congress should be able to determine that some things are discriminatory and unfair to minorities, even if the court thinks they are okay a. Katzenbach v. Morgan and Morgan Cases: 1. United States v. Morrison: a. Morrison argues that the 14th amendment does not extend to him and they can’t bring suit against him since he is a private citizen and not a state actor i. The court agrees b. State action is aimed at individuals who have committed criminal acts motivated by gender bias i. This remedy is different from any of the section 5 remedies the court has previously upheld ii. Commonwealth of WA must afford her a remedy, no the United States 2. Katzenback v. Morgan & Morgan: a. The majority lets congress use its section 5 power to outlaw discrimination that the court itself found okay in the Lassiter case b. Brennan believes section 5 is a metaphorical N&P clause for congress to remedy or amplify the equal protection clause i. Congress could go so far as to outlaw something that would in the future violate the equal protection clause ii. Congress needs the power to lead on stopping discrimination and in order to do this, it needs to have the power to enforce legislation under the equal protection clause c. They upheld the state act action, Voting Rights of 1965, instead of the NY law 3. City of Boerne v. Flores: a. Assertion of judicial power b. Congress says it is a violation of substantive right c. Court says you have power to remedy but not interpret i. Need to be congruent and proportional 1. Congruent: what is the problem a. Did congress have reason to believe that there was a lot of religious discrimination out there b. Court says there is not 2. Proportional: a. The penalty needs to proportional to the harm b. The remedy was too broad, it was too substantive c. Imposes a heavy burden of litigation on the states 4. Shelby County v. Holder: a. Court concluded: i. States must look to the federal government for permission to implement laws that they would otherwise have the right to enact and execute on their own ii. The act applies to only nine states, other states are allowed to change their voting process iii. Things have changed in these states dramatically, voter turnout no approach parity b. Ginsburg dissenting: i. Congress concluded that for two reasons section 5 should continue in force: 1. Continuance would facilitate completion of the impressive gains thus far made 2. Continuance would guard against backsliding f. Power to Preempt State and Local Laws i. General rules: 1. Some federal powers are exclusive -- treaty power, declaring war, coining money, foreign relations, etc. 2. There are few areas that remain exclusively the power of the states. To the extent these areas are exclusive, they are protected from federal interference by the Tenth Amendment's noncommandeering commandment or the amorphous, philosophical notions of things that are "exclusively local" or traditionally local. The latter category changes, as we have seen, based on who is on the Court. a. Ex. Police powers 3. Most government power is concurrent, i.e. the States and the federal government CAN regulate the same subjects. 4. Preemption is an issue only where both a State and the federal government have passed laws affecting the same subject. 5. Because of the Supremacy Clause, when State and federal laws are inconsistent, the State law is void and the federal law is enforceable. In other words, the federal law "preempts" the State law. a. Based on what part of the constitution, the supremacy clause ii. Types of Preemption: 1. Preemption may either be express or implied: a. Express preemption: congress's command is explicitly stated in the statute's language i. Ex. We preempt… ii. Ex. Regardless of state law… iii. Case: Lorillard Tobacco Co. Reilly 1. The federal law preempts state law because Congress explicitly states that the state regulations are preempted b. Three types of implied preemption: i. Field preemption: where the scheme of federal regulation is so pervasive as to make reasonable the inference that Congress left no room for the states to supplement it 1. Federal law will preempt if there is a congressional intent to have federal law occupy a particular area of law 2. Federal law occupies the entire area or field 3. Ex. Immigration law 4. Case: Arizona v. US: a. The federal law does preempt state law because federal government has field preemption over foreign relations ii. Conflict preemption: where compliance with both federal and state regulations is a physical impossibility or where state law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress 1. Case: Florida Lime v. Paul a. There is no confliction in this case, California measures by oil content and Florida does not b. Example of confliction: The federal orders forbade the picking and marketing of any avocado testing more than 7% oil, while the California test excluded from the state any avocado measuring less than 8% oil iii. State law impedes the achievement of a federal objective 1. Preemption will be found if state law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress 2. Frustrated the federal purpose 3. Case: Pacific Gas & Electric a. The state law was not preempted by the federal law because it did not impede the achievement of the federal objective 2. In analyzing whether there is preemption, it is critical to try to determine what the intent of the federal law is. It is the intent of the federal law, that determines whether the state and federal laws are inconsistent. The primary indication of Congressional intent is the text of the federal law. iii. How to answer this question: 1. Federal action and state action 2. Did congress intent to preempt all state laws? a. Start with the statute g. Dormant Commerce Clause i. General Notes: 1. The "dormant commerce clause doctrine" is a doctrine not an actual clause in the Constitution. It is based on Congress's Commerce power. 2. General rule: The doctrine is only relevant where Congress has not acted. If Congress has acted, by passing a relevant law, the issue is preemption (and whether Congress properly exercised the commerce power) not the dormant commerce clause. 3. Specific rule: if congress has not enacted legislation in a particular area of interstate commerce, then the states are free to regulate, so long as the state or local action does not: a. Discriminate against out of state commerce; b. Unduly burden interstate commerce; or c. Regulate extraterritorial (wholly out of state) activity 4. Know the arguments in favor of the dormant commerce clause doctrine and those against. 5. State laws that discriminate against out-of-state competition to benefit local economic interests are generally invalid. Such laws are "strictly scrutinized" and if a court finds alternatives that don't discriminate but which accomplish the State's (extremely important) purpose, the State's law will be voided. 6. State laws that burden interstate commerce are valid only if the legitimate local benefits of the law outweigh the incidental burden on interstate commerce -- an actual balancing test. ii. Arguments for and against the dormant clause: 1. For: a. Originalist argument: Framers intended to prevent state laws that interfered with interstate commerce i. Could infer from the commerce clause b. Textual: commerce power implies c. Pragmatic argument: The economy is better off if state and local laws impeding interstate commerce are invalidated i. We want a well functioning market d. Structural argument: there should be a political check available if government harms one and laws that harm out of state business are not subject to such a political check 2. Against: a. The drafters of the constitution could have included a provision prohibiting states from interfering with interstate commerce b. Congress has the power to regulate commerce and congress can act to invalidate state laws that unduly burden interstate commerce i. This should not be a task for an unelected federal judiciary ii. This is an argument based on separation of powers (reviewing state laws should be done by congress and not by the courts) and federalism (minimizing the instances where state and local laws are invalidated c. Thomas argument: i. Not written in the constitution iii. How to Solve a Dormant Clause: 1. Has the state acted? 2. Has congress acted here? If yes-> preemption 3. Is the law facially discriminatory? a. Express/facially: the words of the text distinguish i. Case: 1. City of Philadelphia v. New Jersey: It was held unconstitutional because it expressly prohibited out of state waste 2. Dean Milk v. City of Madison: expressly discriminatory because it says in the statute that you have to get milk within certain miles of Madison 3. Maine v. Taylor: express discrimination b. If yes-> per se invalid and burden shifts to government to show: i. Purpose=important ii. Means=necessary, no alternative iii. Burden=on state 4. Is the law facially neutral but the purpose OR the effect to be discriminatory against out of states (West Lynn=purpose, Hunt= disparate impact) a. Yes-> per se invalid and burden shits to government to show: i. Effect: 1. Favors in state and disfavors out of state 2. Takes the world as it is found a. Ex. WA is doing something different which makes NC law discriminatory (Hunt Washington Apples) 3. Think about markets to find relevant business group a. Ex. Refiners or retailers (Exxon Corp v. Governor of Maryland) ii. Purpose: 1. Court has said purpose (of the state’s program taken as a whole) is enough to be found discriminatory (West Lynn Creamery) 5. If not discriminatory, does the law have an undue burden on interstate commerce? a. Balance legitimate local benefits vs. burden (Loren, Pike) b. State laws that are non-discriminatory and burden interstate commerce are valid only if the legitimate local benefits of the law outweigh the incidental burden on interstate commerce i. Southern Pacific v. Arizona ii. Justice Scalia thought the balancing test cannot actually balance anything because those things are incommensurable, very difficult to compare two different measurements c. Balancing tests: i. If the court concludes that a state is discriminating against out of staters, then there is a strong presumption against the law and it will be upheld only if it is necessary to achieve an important purpose ii. If the court concludes that law is nondiscriminatory, then the presumption is in favor of upholding the law, and it will be invalidated only if it is shown that the law's burdens on interstate commerce outweigh its benefits iii. Where the statute regulates even handedly to effectuate a legitimate local public interest, and its effects on interstate commerce are only incidental, it will be upheld unless the burden imposed on such commerce is clearly excessive in relation to the putative local benefits 1. Ex. Loren Pike v. Bruce 6. Does an exception apply? a. Two exceptions where laws that otherwise would violate the dormant commerce clause will be allowed: i. If congress approves the state law 1. A clearly unconstitutional, discriminatory state law will be allowed if approved by congress because congress has plenary power to regulate commerce among the states 2. Ex. Western & Southern Life a. Congress has plenary power (absolute authority) under the Commerce Clause, which means we no longer are using DCC-only question now is preemption ii. Market participation exception: a state may favor its own citizens in receiving benefits from government programs or in dealing with government owned businesses 1. Ex. Reeves v. William Stake a. The state can exercise the market participation exception because the state runs the cement plant and is therefore a market participant and valid 2. Ex. South Central Timber a. The state may not invoke the market participation doctrine to immunize downstream regulation of the timber processing market in which it is not a participant b. Limit on the market participation exception because it doesn’t allow the state to extend in another market, the processing of timber is a different market c. The state could subsidize by reducing price if processing is done within the state h. Privileges and Immunities Clause i. There are two Privileges & Immunities clauses: article 4, section 2 1. The first, in the 14th Amendment protects the privileges and immunities of being a U.S. citizen. 2. The second, in Article IV, section 2, bars discrimination against out-of-staters (citizens) as to the privileges and immunities offered by a particular State. We are concerned in this section only with the Article IV provision. ii. Only bars discrimination in a few things: mostly, those involving important commercial activities (e.g. pursuing one's livelihood not recreational opportunities) and fundamental liberties. iii. To defend discriminatory state action, State must show substantial justification for discriminating, such as nonresidents are primary cause of the problem that the State is attempting to fix. State must also show no less restrictive way to accomplish State purpose. iv. Does not protect aliens or corporations. v. Difference between the dormant commerce clause and privilege and immunities clause: 1. Privileges can only be used if there is discrimination against out of staters a. The dormant can be used if there is a burden on interstate commerce regardless of whether there is discrimination 2. Privileges is expressly limited to citizens a. Dormant can be used by corporations and aliens IV. 3. The exceptions to the dormant clause do not apply to the privilege clause a. Market participation and if congress passes law vi. Basic questions to analyze privilege and immunity clause: 1. Has the state discriminated against out of staters with regard to privileges and immunities that it accords its own citizens? a. The privileges and immunities of citizens: i. When a state is discriminating against out of staters with regard to constitutional rights and ii. When a state is discriminating against out of staters with regard to important economic activities 1. With regard to their ability to earn a livelihood 2. If there is such discrimination, is there a sufficient justification for the discrimination? vii. Cases: 1. Toomer v. Witsell a. Unconstitutional because even though the statute squarely meets with privileges and immunities it overlooks the purpose of the clause, to prevent discrimination, and the statute was clearly discriminatory 2. Lester Baldwin v. Fish & Game a. Not under the privileges and immunity clause because, even though it is discriminatory, it is constitutional since it was recreational and does not fall under purview equality access 3. New Hampshire v. Piper a. NH’s right to limit bar admission to in-state residents is constitutional because it falls within purview of P&I – lawyer’s role in national economy is a fundamental right i. Multitude of alternatives to get at concerns of the prohibitions of out-state bar licenses The Executive Branch a. Inherent Powers i. Article II, sections 2 and 3 list powers given to the Executive. ii. A major unresolved issue is the extent of the Executive's powers beyond those listed. iii. Some argue that the Executive has no powers beyond those listed. In this view, the Executive is like Congress, limited to those powers specified. iv. Others argue that the Executive has an inherent power to "do what must be done." This view of executive powers is sometimes called the "stewardship" view. v. Three Categories of Executive and Congressional actions: (Youngstown) 1. When the president acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate a. By statute b. Short rule: where president act is authorized by statute or constitution 2. When the president acts in absence of either a congressional grant or denial of authority, he can only rely upon his own independent powers, but there is a zone of twilight in which he and Congress may have concurrent authority a. In between congress has said that you can do it but it hasn’t said that you can't do it b. These cases have to be decided by a case by case basis, in a practical manner c. Short rule: when president acts without authorization and congress is silent i. May have concurrent power with congress ii. Here may depend on imperatives of events and contemporaneous imponderables 3. When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional power minus any constitutional powers of Congress over the matter a. Short rule: when contrary to congress i. Not necessarily unconstitutional but presidential power is at its lowest ebb vi. Cases: 1. In re Neagle a. No constitutional provision that authorizes what Neagle does, acting as the security guard b. Court’s argument is that the executive has some powers to make sure that the government can operate i. Implied powers exist 2. Youngstown Sheet & Tube v. Sawyer a. It is unconstitutional, the president only has the power to do what the constitution authorizes or what is authorized by statue b. Justice Jackson concurring: i. Relying on practical ideals ii. These categories are pragmatic, based on his experience in government and the world has changed iii. For the case at hand, the seizure is in the third category 1. This action is seizing property and congress has acted which is contrary to congress authorization 2. Dissenters say that it should be in first or second category as commander in chief c. Justice Douglas concurring: i. Emphasizes the fact that president can move quickly is not critical point in determining power b. LIMIT: Separation of Powers Bars Some Congressional Additions to Executive Power i. Congress increases Executive power by making statutes that the Executive then executes. This is most of what Congress and the Executive do. ii. The Court's main limit on this arrangement is to enforce the "separation of powers" doctrine. iii. Administrative agencies: 1. Created in the executive branch by congress by statute 2. Authorized to make binding rules & judge whether rules are met 3. This is done for pragmatic reasons: a. Insulation from political forces b. Places where expertise can collect c. More efficient, move more rapidly 4. How to control them - non-delegation doctrine iv. Ways congress can control agencies: 1. Non-delegation doctrine: a specific application of separation of powers a. Prevents the Congress from giving law-making power to the Executive- Panama Refining, Schecter Poultry i. Separation of powers: Exec. cannot amend a law, function of Congress-Clinton v. NY b. Modern era- broad delegations of rule-making power to the Executive is common and accepted i. Congress can delegate power to executive if law giving power to the executive has an intelligible principle (then not violating non-delegation doctrine) -Whitman 1. “requisite”, “adequate”= directing agency ii. Rationale: Congress incapable of making detailed rules needed in today’s complex world 2. Legislative vetoes: a. A check on the actions of administrative agencies b. congress can act, give power to an agency to do something but if it doesn’t like it then it can strike down what the agency has done through votes c. created to allow Congress some control over the Executive's execution of laws, are unconstitutional because they allow one house of Congress to amend laws. This violates the bicameralism and presentment requirements. d. Rationale for veto: congress gets advantages of administrative agencies while maintaining some control e. These remain in all these statutes with vetoes because no one has challenged them v. Cases: 1. William J. Clinton v. City of New York a. The state action is the Line Item Veto Act, allows the president to strike out parts of the law b. The court concludes that the president is amending a law i. This is in first of Jackson’s categories c. Justice Breyer dissenting: i. The executive is not amending the statute ii. The same thing could be done if congress split the bills into pieces iii. Three considerations in mind: (p. 340) 1. Act represents a legislative effort to provide the president with power to give effect to some, of the expenditure provisions contained in a single massive appropriations bill 2. The court has permitted the development of administrative agencies and if we a. Institutional arrangements: the world has changed and we should allow this institutional arrangement 3. As long as the branches agree why are we getting involved 2. Schecter Poultry and Panama Refining a. The court found that there were no limits to the administrative agencies and therefore, was unconstitutional 3. Whitman v. American Trucking a. The court says as long as there is an intelligible principle then the administrative agency has the power b. The intelligible principle was air pollution and to protect the public health 4. Immigration & Naturalization Service v. Jagdish Rai Chadha a. Presentment clause: provides the President with a limited and qualified power to nullify propose legislation by veto (president veto power) i. The powers conferred on Congress were the powers to be most carefully circumscribed b. Bicameralism: all members deliberate and vote as a single group i. Before a law can pass, it has to go through both houses, and needs to be presented to the president for signature c. The legislative veto in this case was not one of the exception provisions in the constitution (four provisions) d. Therefore, we conclude that congressional authority is not be implied and for the conclusion that the veto provided for is not authorized by the constitutional design of the powers of the legislative branch, the veto is unconstitutional e. Justice White dissenting: i. The veto power is already placed in nearly 200 statutes 1. If the veto power was changed then all these statutes would have to be changed ii. It is efficient, convenient, and useful iii. It is an important indispensable political invention that allows the President and Congress to resolve major constitutional and policy difference, assured the accountability of agencies, and preserves congress's control over law making c. Foreign Affairs & War Powers i. Foreign Affairs: US v. Curtiss-Wright 1. The Executive's foreign affairs powers are less constrained than Executive's war powers. 2. The President's war powers as originally framed and stated in the Constitution's text are quite different than the President's war powers today. 3. The Executive foreign affairs and war powers are listed in Article II, section 2. Each power has a corresponding check by Congress. 4. The framers fairly clearly wished to avoid a standing army or giving the President too much control over the military. 5. The President can make executive agreements with other countries. 6. The Executive has made arguments for nearly absolute power based on inherent Article II powers during war, specifically, the ii. iii. iv. v. vi. "War on Terror." Only one Justice has bought these arguments. The Court has failed to rule on the broadest Executive claims. Any pragmatic reasons why the president should have these powers: 1. It must be someone to do this 2. It makes sense to have a single person doing this 3. Secrecy weighs in favor of having only the president War Powers Resolution 1973: 1. The act attempts to restore some balance between the President and Congress 2. The president retains the needed power to move quickly with military force but provides Congress with some oversight powers and ultimately some veto power over force commitments 3. The President needs to consult with Congress every six months 4. The constitutionality of the act has not been tested nor has congress ever attempted to use the Act to compel a president to remove forces 5. Constitutional: 6. For: 7. Against: violation of the commander and chief power, avoids the declaration of war requirement War Powers: Hamdi v. Rumseld 1. Modeled after Revolutionary War precedent 2. Worry about standing army giving President too mush power 3. Congress: a. Section 8: b. to raise and support armies, two year limit i. Primarily if standing army c. Create navy - no limit i. Hard for navy to control the populous and requires longer appropriations Torture: 1. The Bush administration argued that its black sites and torture regime were authorized by inherent powers 2. Cites Curtiss case but not Youngstown Declare war: 1. Congress must authorize before we go to war a. Section 8, part 11 2. Can raise an army 3. The commander in chief is in charge of the army 4. Why different today: a. The new technology has now advanced war tactics to air strikes or drone strikes that can happen in minutes instead of taking months to raise an army b. Not only have a standing army but larger and based everywhere compared to back then c. The expectations that the president will win the war d. Standing army e. The elimination of the draft vii. Cases: 1. U.S. v. Curtiss-Wright a. Executive power over foreign affairs is broader than over domestic affairs b. The national government's foreign affairs powers are broader and the President's unique role requires broader powers c. We need a president to be in charge of things 2. Zivotofsky v. Kerry a. This case falls into the third category exception: i. Third exception: when the President takes measures incompatible with the expressed or implied will of congress he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter b. Therefore, it is unconstitutional because it contradicts, congress cannot command the president to contradict an earlier recognition determination in the issuance of passports c. Justice Roberts dissenting: i. The authorities are shared with congress, so they hardly support an inference that the recognition power is exclusive ii. It is not the power of the president but it is a duty iii. These are not at odds because the statute has nothing to do with recognizing a foreign government 3. Hamdi v. Rumseld a. The government then presses two alternative positions: i. It argues that the statute applies only to the control of civilian prisons and related detentions not to military detentions ii. It maintains that the statute is satisfied because Hamdi is being detained pursuant to the Act of Congress b. The government two main arguments: i. Also claim that the president has the inherent powers under article 2 to detain ii. The other is the statute, Authorization for Use of Military Force c. Justice addresses the statute argument: i. We conclude that the AUMF is explicit congressional authorization for the detention of individuals in the narrow category we describe and that the AUMF satisfies the statute that a detention be pursuant to an Act of Congress ii. If she can decide on statutory grounds instead of constitutional grounds the consequences are given power to executive and the flip side is she could let a potential terrorist out d. Justice Thomas dissenting: i. We should have one person in charge, the president ii. There is no limit, if the president says it then it is fine e. Justice Scalia dissenting: i. Offers the government alternatives 1. Constitution suspension clause, article 1 article 9 clause 2, allows congress to suspend habeas corpus, this provides a better way to keep people like Hamdi locked up d. Checks on the President i. Two primary mechanisms to keep a check on the president: 1. Civil suits and criminal proceedings 2. Impeachment (article II, section 4) a. Article I, section 2: provides that the house of representatives has the sole power to impeach b. Then the case is tried before the senate c. Two questions: i. What are high crimes and misdemeanors? 1. Limited to acts that violate criminal law and that can be deemed a serious threat to society or political views 2. Some sort of infraction as decided by Congress ii. What procedures must be followed when there is an impeachment? 1. Senate have a committee to hear the evidence and make a recommendation or must senate sit as a tribunal to hear the case V. ii. The president can be civilly liable for private unofficial acts that are not part of the presidency iii. The president is not liable for discretionary official acts iv. Cases: 1. Nixon v. Fitzgerald a. Supplying that information would not be so burdensome 2. Clinton v. Jones a. Court finds the president can be found civilly liable i. Doctrine of separation of powers does not extend immunity to unofficial acts of sitting president ii. If congress feels the president should have more protection, they can pass legislation to do so 3. US v. Richard Nixon: a. The court concludes that the things that are being subpoena are not diplomatic or military secrets and therefore the executive privilege does not extend here b. It is a public interest and therefore needs to be produced 4. Alexia Morrison v. Theodore Olson: a. We hold today that the provisions of the act do not violate the appointment clause, the limitations of Article III, or interfere with the president's authority in Article II of separation of powers b. Principal officers are selected by the president with the advice and consent of senate c. Inferior officers, congress may allow to be appointed by the president alone, head of departments, and by the judiciary State Action & Scrutiny Framework a. State Action Requirement i. One cannot sue private parties for Constitutional violations; Only state actors -- states, federal government, cities, school boards, police officers, etc. -- can violate the Constitution. ii. During the Civil Rights Era, the Court pushed the definition of state action to get at some private race discrimination. 1. Exceptions to the state action doctrine: a. Public function: If a private actor is behaving of a public actor then we will consider that public action to be state action b. Entanglement: involves a joint enterprise between private and state actor, if these two entities are involved enough we will treat as state action i. Private actor is acting from standards set by government, government benefiting (still may not be enough) ii. Court ruling on case = state action 1. Shelley v. Kramer iii. General rule: can only sue a state actor iv. Cases: 1. United States v. Stanley a. Section 1 of the fourteenth amendment concerns only state actions and therefore, you can't enforce this against private actors b. Textualism argument, this is what is written in the constitution c. Justice Harlan dissenting: i. The interpretation of the constitutional provisions should be interpreted as the intent with which they were adopted ii. To protect fundamental rights, not being discriminated against being a person of color 2. Shelley v. Kraemer a. The prohibitions of the Fourteenth amendment extend to all action of the state denying equal protection of laws, whether it be action by one of these agencies or by another i. The action of the states to which the amendment has reference, includes action of state courts and state judicial officials b. The states have denied petitioners the equal protection of the laws and therefore, the action of the state courts cannot stand c. Private action brought into state action via court's participation in enforcement b. Judicial Restraint v. Judicial Activism: Carolene Products Footnote i. How to balance democracy with the power of the Court to essentially veto acts of the Executive and Congress is difficult and the balance point is unclear. Leaving all democratic actions unreviewed is unacceptable; reviewing all democratic actions carefully would replace the democratic branches with rule by the Court. ii. One way to describe "judicial restraint" is in terms of how often the Court "overrules" the democratic branches. iii. The Carolene Products footnote is important because it outlines what will become our modern structure of equal protection and our fundamental rights jurisprudence. iv. The footnote is also important because it describes one form of judicial restraint: if the political process could solve the problem, leave the problem to the democratic branches. VI. 1. So, look closely only at 1) those things that affect groups that cannot use the political process because of prejudice and discrimination; 2) things that impair the functioning of the political processes -- voting and speech rights. v. Footnote paragraphs: presume constitutionality of state action (judicial restraint) unless… 1. 1st paragraph: fundamental rights a. Bill of rights b. Deprivation of liberty without due process c. Substantive due process d. Use strict scrutiny 2. 2nd paragraph: political rights, political process is messed up a. Deprivation of liberty without due process which is strict scrutiny b. Fundamental rights – substantive due process 3. 3rd paragraph: discrimination against minorities a. Politically powerless then they need protection because they can't advocate for themselves b. Usually apply strict or intermediate scrutiny c. Equal protection analysis d. Religion and discrete or insular 4. Why important? a. Good example of perfectionism b. Brought in to the third question, how the constitution should be interpreted Equal Protection a. Intro and Default Standard i. Equal protection cases = discrimination cases 1. Discrimination means dividing people or entities into groups and treating those groups differently ii. 5 questions to ask when breaking down equal protection issues: 1. What is the constitutional basis or state action? 2. What is the classification? a. Is there an express classification? i. E.g.: specifically says classification of law (male, female) b. Is there classification by administration? (implied) i. Made a classification by way it was administered c. Or by impact (plus intent) (discrimination) i. Washington v. Davis and Personnel Administrator v. Feeney 3. What is the appropriate level of scrutiny? a. Strict scrutiny b. Intermediate scrutiny c. Rational basis 4. Does the particular government action meet the level of scrutiny? 5. FIT: a. Under-inclusive: things that cause problems that are not covered by a law b. Over-inclusive: things that don’t cause problems but that are nonetheless covered by a law c. Fit means rationally related to the purpose for rational basis (fit proves the means are adequate) iii. Constitutional basis: 1. State action: the equal protection clause of 14th amendment provides that that no state shall deny… a. This clause applies only to states and localities 2. Federal action: although there is no federal equal protection clause, the supreme court has held that the fifth amendment due process clause includes the rights guaranteed by the equal protection clause a. Thereby making discrimination by the federal government subject to review under the same standards as discrimination by the states iv. Levels of Scrutiny: 1. Race, alienage, or national origin: strict scrutiny a. Test: the law must be least restrictive means to achieve a compelling governmental interest i. The state must show that its action is necessary to achieve a compelling state purpose b. Since the state action must be necessary, if there is an alternative way of achieving the state purpose, that state will not be able to show that the law is actually necessary c. This test is applied if a fundamental right or a suspect classification is involved (race, ethnicity and national origin) d. State actions subject to strict scrutiny are almost always invalidated i. The government has the burden of proof 2. Gender or non-marital birth: intermediate scrutiny a. Test: The state must show that its action is substantially related to an important government purpose i. Important purpose and substantially related to important purpose b. These classifications are called the quasi-suspect classes c. Burden of proof: the government has the burden d. These cases generally go against the state actor 3. Every other classification: rational basis scrutiny a. The plaintiff must show that the state action is not rationally related to a legitimate state purpose i. Purpose has to be legitimate ii. Means have to be rationally related to the purpose b. Burden of proof: burden is on the challenger to overcome this presumption by establishing that the law is arbitrary or irrational c. These states usually win these cases, unless there is a reason to think the state action was the result of animus (hatred or great prejudice against a group of people) d. Cases: i. Railway Express Agency v. New York: v. Proving discrimination: 1. To trigger strict or intermediate scrutiny, there must be discriminatory intent on the part of the government a. The fact that legislation has a disparate effect on people of different races, genders, without intent, is insufficient b. Discriminatory intent can be shown facially, as applied, or when there is a discriminatory motive 2. Types: a. Facial discrimination: a law that, by its very language, creates distinctions between classes of persons is discriminatory on its face i. Ex. An ordinance states that only males will be considered for a city’s training academy for firefighters b. Discriminatory application: a law that appears neutral on its face may be applied in a discriminatory fashion i. If the challenger can prove that a discriminatory purpose was used when applying the law, then the law will be invalidated ii. Ex. A city’s ordinance concerning the police academy says nothing about gender, but in practice only men are considered for admission c. Discriminatory motive: a law that is neutral on its face and in its application may still result in a disparate impact i. By itself, however, a disparate impact is not sufficient to trigger strict or intermediate scrutiny, proof of discriminatory motive or intent is required to show a violation of the Equal Protection Clause ii. Ex. A city’s paramedic training school is theoretically open to both men and women, but the entrance test includes a height requirement that disproportionally excludes women iii. Arlington Heights v. Metropolitan Hous. b. Cases for levels of scrutiny: i. Strict Scrutiny: Race and National Origin 1. For and Against Strict Scrutiny: a. For: i. Argue that all racial classifications, whether invidious or benign, should be subjected to strict scrutiny ii. The constitution requires that the government treat each person as an individual without regard to his or her race, strict scrutiny is used to ensure that this occurs iii. All racial classifications stigmatize and breed racial hostility, and therefore all should be subjected to strict scrutiny b. Against: i. Supporters of affirmative action argue that there is a significant difference between the government using racial classifications to benefit minorities and the government using racial classifications to disadvantage minorities 1. Achieving social equality requires affirmative action at this point in American history 2. Applying strict scrutiny would greatly impede such remedial efforts because relatively few affirmative action programs have survived this rigorous review ii. Major difference between a majority discriminating against a minority and the majority discriminating against itself 2. Cases: a. Dred Scott v. Sandford: i. Taney declares that no black man can be a citizen and that congress has no power to abolish slavery 1. Cites the declaration of independence, all men are created equal a. Distinguishes it, this is not the constitution 2. The framers of the constitution has thought of the black race as property a. Couldn’t have intended for them to be anything else or else they would have been hypocritical b. Originalist argument, this is the correct argument ii. Textual argument: 1. 3/5 of person 2. Fugitive slave clause 3. Can't abolish slavery in the next 30 years iii. Conclusion: by original understanding black people are property and cannot be citizens 1. This ruling makes the compromise law unconstitutional b. Plessy v. Ferguson: i. Legislation can't overcome voter prejudices, the races need to work out there differences voluntarily and then we can have integration ii. This is a social problem and not our problem to solve iii. Why this case is right argument: 1. Original understanding of the framers of the 14th amendment (originalism) a. The intent is that the races don't mix 2. The actual text of the 14th amendment (textualism) a. Equal protection: these cars are equal c. Brown v. Board of Education: i. The court says that the schools are equal 1. If they were unequal then all they would have to do is equalize them 2. There would be no constitutional violation ii. Equal schools that are segregated violate the constitution: 1. To separate children from others of similar age and qualifications solely because of their race generates a feeling of inferiority as to their status in the community that may affect their hearts and mind in a way unlikely ever to be undone 2. Separate but equal is inherently unequal 3. Textual argument: 14th amendment we don't know what the original understanding was 4. The opinion is pragmatic but also the separate but equal is inherently unequal is a fundamental values argument iii. The court is looking to the future, the impact is very wide spread 1. Why because he wants to make the country better and the values of the constitution 2. Perfectionist argument: interpret the constitution more to reflect our values d. Korematsu v. US: i. We uphold the exclusion order as of the time it was made and when the petitioner violated it 1. When under conditions of modern welfare our shores are threatened by hostile forces, the power to protect must be commensurate with the threatened danger a. This could be seen as a compelling purpose b. Use the term "most rigid" c. Equal protection strict scrutiny standard e. Palmore v. Sidoti f. Grutter v. Bollinger ii. Intermediate Scrutiny: Gender and Non-Marital Birth 1. Development of intermediate scrutiny standard: a. Craig v. Boren: i. Facts: 1. The interaction of two sections of an Oklahoma statute, prohibits the sale of nonintoxicating 3.2% beer to males under the age of 21 and to females under the age of 18 2. Craig sues for not being able to purchase beer until age 21 3. State's argument: men are more likely to get drunk and cause more problems than women 4. The object of the statute is an enhancement of traffic safety ii. Analysis: 1. The protection of public health and safety represents an important function of state and local governments but the statistics cannot support the conclusion that the gender based distinction closely serves to achieve the objective 2. Brennan wanted strict scrutiny but he cuts a deal to get a heightened standard for women 3. While such a disparity is not trivial in a statistical sense, it hardly can form the basis of employment of a gender line as a classifying device 4. We conclude that the gender based differential contained in the law constitutes a denial of the equal protection of the laws to males aged 18-20 b. Application of the intermediate scrutiny standard: i. U.S. v. Virginia ii. Geduldig v. Aiello iii. Michael M. v. Superior Court of Sonoma County iv. Rostker v. Goldberg iii. Rational basis: all other classifications 1. The rational basis "with Bite" cases: a. Burden of proof is on the plaintiff not government b. The cases in this section are the exceptions i. The burden of proof shifts to the government c. How to explain these cases: i. Presence of animus towards a certain group can make the law unconstitutional ii. Quasi suspect class or precursor to suspect iii. Standard rules if it reaches national basis, 99% are constitutional, but they can reach a result that is unjust and therefore, court creates exception 1. Recall the 3rd party standing exception 2. Either change the rule or create an exception 3. Some justices really like broad, inflexible rules d. Cases: Romer v. Evans, U.S. Department of Agriculture v. Moreno, and City of Cleburne v. Cleburne Living Center 2. The default standard: a. Railway Express Agency v. New York: i. There are two classes of people, he prefers equal protection over the fundamental rights 1. Instead we should use equal protection because we can come back and adjust the fit of these things 2. Is better as a matter of judicial restraint b. New York City Transit Authority v. Beazer: i. The court concludes that this law is constitutional because of rational basis a. The fit is alright and not terrible so we are going to let it slide ii. It is not important enough for the court to look more into it iii. We could: 1. Restrict it to only drivers 2. Require drug testing for certain positions iv. VII. Fundamental Rights a. How to answer a fundamental rights question: i. Is there a fundamental right? ii. Is the constitutional right infringed? 1. If fundamental right infringed, strict scrutiny 2. Must be direct and substantial interference iii. Is the government’s action justified by a sufficient purpose? iv. Are the means sufficiently related to the goal sought? b. Fundamental rights: 1. 4 sources: a. Textual - Bill of rights i. Habeas, speech, religion b. Non-textual but text linked – Privacy i. In text find reflections of underlying ideas ii. Griswold c. Non-textual but originalist based rights – Self Defense i. Heller d. History and Tradition – Marriage, Childrearing, parental rights i. Broad v. narrow/specific- Scalia footnote in Michael H ii. What is the Standard of Review: 1. Standard of review in substantive due process cases is generally twofold: a. Strict scrutiny: if a governmental action that infringes upon a fundamental right b. Rational basis: if the interest infringed upon is not fundamental, then there need be only a rational basis for the regulation 2. Strict scrutiny: a. Test: the law must be the least restrictive means to achieve a compelling governmental interest i. Least restrictive means: 1. For the law to be the least restrictive means to achieve the government’s interest, there cannot be a way to achieve the same interest that is less restrictive of the right at issue 2. A law will not fail simply because there are other methods of achieving the goal that are equally or more restrictive 3. Under strict scrutiny, the law should be neither over-inclusive (reaching more people or conduct than is necessary) nor under-inclusive (not reaching all of the people or conduct intended) ii. Compelling interest: 1. Generally something that is necessary or crucial, such as national security or preserving public health or safety b. Burden of proof: the burden is on the government to prove that the law is necessary to achieve a compelling governmental interest c. Applicability: this test is applied if a fundamental right is involved 3. Rational basis: a. Test: a law meets the rational basis standard if it is rationally related to a legitimate state interest b. Burden of proof: i. Laws are presumed valid under this standard, so the burden is on the challenger to overcome this presumption by establishing that the law is arbitrary or irrational ii. In court, the government’s stated interest in enacting the law need not be one that it offered when the law was passed 1. Any legitimate reason will suffice 2. This factor distinguishes rational basis review from strict scrutiny, when the government must defend the interest that it stated at the outset iii. Fundamental rights in level of scrutiny: 1. Strict scrutiny: a. Some rights are so deeply rooted in our nation’s tradition and history that they are considered fundamental: i. The right to travel ii. The right to vote iii. The right to privacy (marriage, sexual relations, abortion, child rearing, and the right of related persons to live together) b. A law interfering with the fundamental rights of travel and privacy will generally be upheld only if it is necessary to achieve a compelling governmental interest c. With regard to the fundamental right to vote, the level of scrutiny can depend on the degree to which this right is restricted 2. Rational basis: a. Government infringement upon nonfundamental rights, those related to social or economic interests such as business, taxation, lifestyle, or zoning, requires only a rational relationship between the law and a legitimate governmental interest iv. Mistake & wrong ideas in past=more judicial restraint 1. Courts should not make up fundamental rights and go beyond judicial power of making policy, constitution is not meant to show any ideology- Holmes Lochner, Scalia VMI, Buck v. Bell, Skinner v. Oklahoma 2. Freedom of contract is NOT a fundamental right, apply rational basis to all economic regulations-Lee Optical 3. Other problem- once becomes fundamental right, remove issue from democracy and democratic branches don’t have ability to compromise- Scalia dissent, Casey a. However, if believe fundamental, race equality, then no compromise is appropriate b. Constitutional appropriately protects fundamental rights (Carolene footnote) c. If not fundamental, democracy and comprise is appropriate 4. How avoid these problems of getting it wrong in future? a. Look at consequences of getting it wrong and whether they have dramatic consequences- Hughes idea from Roberts dissent in Obergefell c. Cases: d. Application of Bill of Rights to the States i. Incorporation: 1. Slaughterhouse: cannot use the immunities clause to the bill of the states a. Main privilege: i. Interstate travel: 1. The right to enter and leave another state 2. The right to be treated as a welcome visitor while temporarily present in another state 3. For those travelers who elect to become permanent residents, the right to be treated like other citizens of that state ii. Voting, petition for redress 2. Saez v. Roe: a. Three important takeaways: i. It protects the right to travel between states under the 14th Amendment Privileges and Immunities clause 1. The first use of the clause that has survived later overruling ii. The court's discussion of the two political capacities of citizens iii. Thomas's dissent b. e. Right to Make Decisions about Family, Children, Procreation & Sex i. Parenting Rights: 1. If it interferes with the right parents have to educate their children in a certain way, it is unconstitutional (Meyer v. Nebraska) 2. Unreasonably interferes with the liberty of parents and guardian to direct the upbringing and education of children under their control, it is unconstitutional (Pierce v. Society Sisters) ii. Contraception (Marital v. Non-Marital) & Privacy: 1. Griswold v. Connecticut: a. Contraception is a non-textual right such as parental and right of association b. Textual hooks indicate a right to privacy of some sort and these hooks also act as a limit c. Goldberg concurring: i. The ninth amendment allows that there is a textual provision that allows other non-textual rights ii. A limit could be that we look at the tradition and collective conscious of the people d. Harlan concurring: i. Stands on its own bottom: the due process clause doesn’t mention any specific rights ii. History, tradition, and judicial awareness e. White concurring: i. This does not meet rational basis ii. The fit is bad f. Black dissenting: i. The constitution makers knew the need for change and provided for it, amendments made by people's elected representatives ii. Must be textual g. Stewart dissenting: i. The constitutional way: if the law before use does not reflect the standards of the people of Connecticut, the people can freely exercise their true ninth and tenth amendment rights to persuade their elected representatives to repeal it ii. This law is silly and should go to the polls 2. Eisenstadt v. Baird: a. If Griswold is no bar to a prohibition on the distribution of contraceptives, the state could not, consistently with the Equal Protection Clause, outlaw distribution to unmarried but not to married persons b. The right we limited to Griswold it isn't limited to marriage iii. Abortion and Decisions Affecting Courses of Life: 1. Roe v. Wade: a. A women's right to privacy i. From the ninth and fourteenth amendment ii. Basing it off the Griswold decision b. The state's health interest is the interest in keeping women and other people safe from bad medical procedures i. Can occur at the second trimester c. There is a state interest in protecting potential lives i. Viability begins roughly at the beginning of third trimester 2. Roe & Planned Parenthood v. Casey: a. Stare decisis: we have decided this in the past i. We never restricted this to textual rights ii. We have never been restrictive to rights that were prevalent at the time the fourteenth amendment was passed iii. She is shooting down a originalist argument, Loving v. Virginia b. Define your place in the universe, this language is actually from Justice Kennedy c. What will limit the courts ability - reasoned judgment i. This judgment will come from the court d. Stare decisis and should follow earlier precedent for Roe: i. There is nothing that has changed in the legal arguments ii. People have relied on Roe iii. The culture has changed in response to Roe iv. Unwilling to disturb those settled expectations e. Roe rule is difficult for us to apply but not impossible i. The argument: I want all legal rules to be clear, can't decide these cases on a case by case basis, broad rules ii. O'Connor responds by saying that liberty is more important so case by case basis is essential 1. Juris prudential argument f. Black letter law: whether the state has placed an undue burden on the women's right to decide abortions g. Preserves the basics/framework as in Roe iv. Children & Custody: 1. Stanley v. Illinois: a. Right of the father is a parental right which is a fundamental right b. This right is infringed and therefore, strict scrutiny c. Also treating mothers and fathers differently triggers strict scrutiny 2. Michael H. V. Gerald D.: a. There is no precedent that states that States have awarded substantive parental rights to a natural father of a child conceived within an extant marital union that wishes to embrace the child b. This limit is tradition c. Do not strike down the presumption: i. The father does not have a right of biological father ii. The rights of father by marriage are d. Scalia Footnote: i. Protecting rights of adulterous father and not rights of biological fathers 1. That is the one that he can get a clear answer to it ii. I am going to look at the case as narrowly as I possible can and then search for history and tradition to that narrow point 1. If I don't find it or against then I will move up a step iii. Biological father is broader and would cover more cases iv. Favors extremely narrow definitions of rights v. No protection of the rights of adulterous fathers e. Brennan dissenting: i. Critiques of footnote: 1. If we follow we are narrow 2. Ties us to the past, the society of the past v. Marriage: 1. Obergefell v. Hodges: a. Standard of limit: requires courts to exercise reasoned judgment in identifying interests of the person so fundamental that the State must accord them its respect b. The limit is reasoned judgment c. Today we know that marriage can be broader and going to interpret this right d. Four principles and traditions: i. The court's relevant precedents is that the right to personal choice regarding marriage is inherent in the concept of individual autonomy ii. Court's jurisprudence is that the right to marry is fundamental because it supports a two person union unlike any other in its importance to the committed individuals iii. Protecting the right to marry safeguards children and families and thus draws meaning from related rights of childrearing, procreation, and education iv. The court's cases and the nations traditions make clear that marriage is a keystone of our social order e. These principles and traditions are not textual i. Fundamental values ii. Pragmatism f. Might be perfectionist: i. Looking forward g. The court now holds that same sex couples may exercise the fundamental rights to marry h. Roberts dissenting: i. These are the types of things that can best be solved by the democratic branches ii. This is a government of law and not of men 1. From Marbury v. Madison 2. Judges are acting like kings iii. People are mostly likely to feel better if they get a chance to be hear even if the decision does not go in their favor i. Scalia dissenting: i. Majoritarian: leave the decision to the majority and democratic process j. Thomas dissenting: i. There is no substantive due process in the constitution 1. All these fundamental rights are wrong 2. If there were, this right doesn't exist ii. Fundamentalist: 1. Looking backwards, this is how the constitution was supposed to be read VIII. vi. Guns 1. District of Columbia v. Heller: a. The court does legislate: i. Scalia is making a policy decision, I cannot consider the impact of my decision on American society ii. Because this policy decision was incorporated into the constitution I am going to apply that policy decision to the modern era, I am bound and therefore, do not care b. Fundamentalist: looking backward to the constitution Approaches, Theories & Credibility a. There are innumerable ways to interpret the Constitution. Notable broad categories are fundamentalism/originalism, perfectionism, and majoritarianism. b. Judges also approach judging with different styles. Notable are minimalists and broad rulers. c. Adding to the picture are many ways of argument, e.g. fundamental values, pragmatism, logic, textual. d. Ways of Using the Constitution as Authority i. Sustein Excerpt: 1. Fundamentalists: a. Backward looking b. Their goal is to return to what they see as the essential source of constitutional meaning, the views of those who ratified the document c. Believe originalism is the proper approach for constitutional interpretation and that the constitution should be read to fit with the original understanding of the founding generation d. Judges have no authority to depart from the understanding of the constitution e. Have a broad and ambitious theory of constitutional interpretation f. Narrow rulings leave a great deal of unpredictability and also increase judicial discretion g. Advantages: i. Not going to subject to personal views, going to look back at the constitution which gives stability ii. There are too many modern things, the old days were the good old days h. Disadvantages: i. Not taking into the effect the modern changes of society ii. We wouldn't have a constitution, it has only survived in the modern era because judges have updated it 2. Perfectionists: a. Justice Brennan, Thurgood Marshall and William Douglas b. Believe that the constitution is binding but they believe that the continuing judicial task is to make the document as good as it can be by interpreting its broad terms in a way that casts it ideals in the best possible light c. Judges are obliged to fit previous laws, but if the law leaves ambiguities and gaps, judges must try to make it better rather than worse d. Democratic perfectionists: believe where the constitution is ambiguous, judges should interpret it to promote democracy rather than to compromise it e. Rights perfectionists: constitution should be read to protect the essentials of human dignity, including a right to make the most fundamental choices free from the constraining arm of the government f. Advantages: i. Allows progress, adjusts interpretation of the constitution to the modern times g. Disadvantages: i. Can make big mistakes ii. Too much power given to judges iii. Get to pick and choose which rights they want to pick iv. Seems like there is no limit on these powers 3. Majoritarianism: a. Asserts that the majority of the population is entitled to a certain degree of primacy in society and the rights to make decisions that affect the society b. Willing to give the benefit of every doubt to other branches of government, to uphold the actions of those branches unless they clearly violate the constitution c. Because the constitution is often ambiguous, those who decide on its meaning must inevitably exercise discretion d. Advantages: i. Constrains the court power ii. Gives a safety valve e. Disadvantages: i. Minorities will not be able to assert this power because they will never be the majority ii. Do not decide fundamental rights questions 4. Minimalists: a. Dislike ambitious theories, including originalism, and who do not want to do much more than is necessary to resolve cases b. As a matter of principle, they do not want to take sides in large scale social controversies c. Favor shallow ruling over deep ones, seek to avoid taking stands on the biggest and most contested questions of constitutional law d. Minimalists attempt to reach incompletely theorized agreements to which the most fundamental questions are left undecided e. Practical necessity in a diverse society f. Allow people to show one another a large measure of mutual respect g. Believe that a free society makes it possible for people to agree when agreement is necessary and unnecessary for people to agree when agreement is impossible h. Sandra Day O'Connor i. Means of judging j. Case by case basis k. Common law l. Advantages: i. Better to make tiny changes than big ones all at once because if you make a mistake you made a mistake in one case not a mistake that affects many other cases ii. If you want to get the right decision it is easier in one case instead a bunch of cases iii. Easier to make exceptions on a case by case basis m. Disadvantages: i. Same as broad ruler ii. Very hard to figure out a rule iii. If deciding case by case then we don't have that many cases to decide a rule from ii. Scalia Law of Rules: 1. Broad ruler: a. General rule of black letter law that can be applied to multiple cases b. Advantages: i. Lower courts have consistency 1. The law is clear and gives guidance so they know what they are doing ii. More judicially constrained on lower courts and as well as the supreme court iii. Predictable and prevents arbitrary iv. Looks more fair 1. Too much discretion given to a decision maker can be a bad thing v. Give lower courts courage 1. The judges can say that I didn't make this rule and I am just applying it therefore, can be more courageous c. Disadvantages: i. Judges have no discretion, have to follow the rule even if it means injustice ii. Have to look into the future to formulate a broad rule 2. Discretion conferring approach: a. Advantages: i. All generalizations are to some degree invalid, and hence every rule of law has a few corners that do not quite fit ii. Perfect justice can only be achieved if courts are unconstrained by such imperfect generalizations iii. Writing a decision narrowly, thereby leaving greater discretion to the future courts b. Disadvantages: i. It does not satisfy this sense of justice very well ii. It is ill suited to a legal system in which the supreme court can review only an insignificant proportion of the decided cases iii. There is no predictability 3. Sticking close to the facts, not relying upon overarching generalizations, and thereby leaving considerable room for future judges is the genius of common law system 4. Does not agree with minimalists iii. Grey Unwritten Constitution: 1. Interpretivism: a. This comes to be called originalism b. The group pushing interpretivism was the federalist society c. Interpretive model: judicial review that goes beyond interpretation d. Criticisms: i. The interpretive model cannot be reconciled with constitutional doctrines protecting unspecified essential or fundamental liberties, or fair procedure, or decency ii. The due process clause: 1. Requires only that deprivations of life, liberty, or property be authorized by law duly enacted, rather carried out by arbitrary executive action 2. All the rest of the due process doctrine must go: a. Fundamentally fair procedures in criminal and civil proceedings cannot be reconciled with the interpretive model b. Everything labeled substantive due process would be eliminated 3. Would lose substantive due process iii. The application of the provisions of the Bill of Rights cannot be justified under an interpretive model 1. It was only intended to limit the federal government instead of the state government iv. All the fundamental interests that trigger strict scrutiny under the equal protection cause would have to be discarded v. Modern applications of the provisions of the Bill of Rights based on their capacity to grow or develop with changing social values would have to be discarded vi. The federal government could discriminate against African Americans 1. The only equal protection clause is in the 14th amendment and it only applies to the states 2.