Constitutional Outline

Constitutional Outline
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
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
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.
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
1. To sue for a Constitutional violation, we must allege that a
government or an agent of government is violating the
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
1. Most common are in the Bill of Rights and Fourteenth
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
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
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
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
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
i. Congressional control as a check on the judiciary's
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
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
a. Ex. Abbott Labs v. Gardner
3. Also not tangible, like emotional distress or
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
b. Clapper v. Amnesty: the economic
harm is speculative
c. City of LA v. Lyons: the injury is
speculative, no standing
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
iii. Be related to federal purpose
iv. Conditions may be barred by other constitutional
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
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
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
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
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
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
a. Based on what part of the constitution, the supremacy
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
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
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
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
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
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
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
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
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
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
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
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
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
1. With regard to their ability to earn a
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
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
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
iii. For the case at hand, the seizure is in the third
1. This action is seizing property and congress
has acted which is contrary to congress
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
i. Congress increases Executive power by making statutes that the
Executive then executes. This is most of what Congress and the Executive
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
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
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
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
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
e. Justice White dissenting:
i. The veto power is already placed in nearly 200
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
6. The Executive has made arguments for nearly absolute power
based on inherent Article II powers during war, specifically, the
"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
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
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
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
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
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
ii. There is no limit, if the president says it then it is
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
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
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
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
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
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
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.
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
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,
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
d. State actions subject to strict scrutiny are almost always
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
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
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
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
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
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
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
a. Equal protection: these cars are
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
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
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
b. Use the term "most rigid"
c. Equal protection strict scrutiny
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
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
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
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
3. Some justices really like broad, inflexible
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
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
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
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
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
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
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.
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
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
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
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
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.
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
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
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
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
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
i. There is nothing that has changed in the legal
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
1. Juris prudential argument
f. Black letter law: whether the state has placed an
undue burden on the women's right to decide
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
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
e. Brennan dissenting:
i. Critiques of footnote:
1. If we follow we are narrow
2. Ties us to the past, the society of the
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
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
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
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
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
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
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
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
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
c. Interpretive model: judicial review that goes beyond
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
1. It was only intended to limit the federal
government instead of the state
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
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
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