Constitutional Law Outline

Megan Van Pelt Constitutional Law: Sanders: Outline 2016
Course Goals:
• Nature of the Constitution
• Constitutions create and control governments
• “If men were angels, no government would be necessary”
• Product of time, Culture, People (dual sovereignty)
• Principals of the constitution are general: Must apply now and later
• Constitutional law is shaped by a nation’s values and ongoing dialogue
between the people and the courts.
Marbury v. Madison: Supreme Courts Role in the Branches
Goals/ background: The role of judicial review
• The Constitution does not claim that the judicial branch trumps the
Legislative branch. However, the case highlights judicial review.
o Federal 78: Proof that this idea is in the air. The people
adopted the Constitution and we enforce the will of the people.
o Judiciary act created the lower courts (not listed in
o Article 3- Exception Clause allows the congress to bar courts:
This also allows the congress to decide the number of justices
that sit on the SC
• 1. Does Marbury have the right to the commission?
Yes. It is a vested legal right. Nothing more needed to happen for him
to have the job. The commission might be the proof behind him having
the job.
• 2. Does Marbury have a remedy?
o Political acts can be reviewed (votes or bills)
o AND Violating a duty can be reviewed (Legal Duty
o Here, it is an issue of legal duty that needs to be reviewed.
Judiciary branch can influence the executive but this is not
clearly stated in the constitution. CHALLENGE IT!
• 3. Can the Supreme Court give Marbury the Writ?
o Writ of Mandamus = a request of judicial order to make one
Megan Van Pelt § What can the SC hear? Appellate and Original
§ Judiciary Act 1789: allows for writs of mandamus in what
seems like original jurisdiction BUT we can have this.
Article 3 section 2 makes it clear that you can only issue
writs on appellate jurisdiction. (Sets the ceiling)
§ Judge interpretation? It’s their job and profession,
judicial oath, specific role, Must have the check on
*Judicial Review: Federal judge can strike down a law making a determination
on a constitutional matter.
*Article III Section II: SC has original jurisdiction for cases effecting
diplomats of other countries, in all other cases it’s appellate jurisdiction.
^^^ (Conflict) Judiciary Act Section 13: Writs of mandamus are available in
original jurisdiction (MUST THROW OUT)
Why do we have jurisdiction limitations?
• Preserve state sovereignty, Economic Preservation, Separation of
Powers/ Keep it all in check (Modern courts will check jurisdiction
Key Take Away:
• Federal courts may review executive conduct to determine legality;
The serve as a ceiling
• Constitution is the supreme law of the land
• Adjudicating a case: Federal courts may review a law or action
contrary to the constitution
Martin v. Hunter’s Lessee: Supreme Courts Role in states
-A federal court can’t impeach a state official, but can they correct their
legal issues? —You can’t appeal to the federal court until you get to the
highest level of state court. (federal question/ highest court… can appeal to
the supreme court)
Story’s argument:
1. Logic of Judicial Structure created by the constitution in Art. III:
Why would the S.C. exist if we couldn’t appeal to them?
Megan Van Pelt 2. Does this mess with state soveirgnty? States already have a
specified power Art. 1 Section 10/ States still must have some
3. Practical problems of leaving federal law to state judges:
Uniformity would be an issue/ less sympathetic for federal rights
Cooper v. Aaron: Once the Supreme Court decides a matter who else is
bound by it? Supreme Court binds all! (Distinctive role of judicial
A state failed to desegregate schools because it could lead to “undue
violence and disorder.” Article IV makes the constitution the supreme law of
the land and binding on the states because they take an oath.
*The expectation is that a holding is constitutional law- SC interprets it and
takes it as authoritative.
Evaluating Constitutionality: Which is the SC saying??
1. The challenged government law/action is permitted: In undertaking
this law/action, government has not exceeded its authority or violated
anyone’s constitutionally guaranteed rights.
a. This doesn’t mean government is required to do the action, just
that it is allowed to do so if it wants.
Megan Van Pelt b. This sort of decision leaves room for other institutional actors
(congress, president, states) to assert or act on their own views
about the action’s desirability or constitutionality.
2. This challenged government law/ action is prohibited: The action
exceeds the government’s authority or violates a constitutionally
guaranteed right.
McCulloch v. Maryland: Does congress have the power to create a bank?
-What does this tell us about the role of the federal government vs. the
-What does this tell us about the nature of the constitution?
Arguments by Maryland:
1. The states created the federal government to accomplish certain
things at the national level. The federal government is the creature of
the states. Its powers were delegated by the states; thus the federal
government is subordinate to the states.
n The constitution isn’t ratified by the states; it’s ratified by the
people. The people made this federal government supreme to avoid
resistance and denial of federal government.
2. How can a government of enumerated powers be said to be
“SUPREME”? Contradiction?
n Limited in its powers, supreme within sphere of action; Enumerated
Powers Art. 1 Section 8 (created with a purpose that has grown)
3. If the framers expected there to be a bank… we should see that
power granted in the Constitution, but we don’t.
n There are items in the constitution that relate to money. We could
use a bank as a tool so the government can be efficient.
n Ex) post office: criminal punishment for stealing mail.
n Some powers are inferred: THIS IS A MEANS TO ACHIEVE AN
4. In the “Necessary and Proper Clause” we should understand
“necessary” to mean “indispensable” or “the minimum required.”
Megan Van Pelt n Why would we want to deprive welfare of our legislature of the
right to use it’s own discression? Some powers are inferred. This is
necessary to achieve an end.
5. Maryland has a sovereign power to levy taxes within its borders, so it
should use its power responsibly to tax the bank of the US.
n Would the people of one state be willing to let another state
control the operations of the government? MD didn’t build this
bank. It belongs to all.
n Power to tax is the power to destroy; HOSTILE; Federal
government is sovereign and supreme in its own sphere.
***Commerce Clause Land!
What is the limit on this clause?
Megan Van Pelt n Federal Government does not have the power to police the people
of the states. Because the powers delegated to the feds are
limited. (10th amendment)
Gibbons v. Ogden: Commerce Clause is broadly defined by minimally used.
State law grants a monopoly for ferries to travel interstate- Gibbons has a
license given by federal law and claims he is superior.
n Why is this covered by the commerce clause?
o Navigation is part of intercourse (a connection or dealing
between persons or groups/ no mention of money or traffic)
o Among several states: intermingled between states (feds
can regulate)
n What is the power to regulate?
o Prescribe the rule which should be governed
o Inspection by the states: Safety, Carry out interests of the
o Purpose of commerce clause: Avoid monopolies and market
failures. We do not want to hurt national economy
n Evolution:
1890: commerce power is broadly defined by minimally used
1890-1937: (overlap with second industrial revolution: R.R., Child
Labor, Working Conditions, Monopoly Outrage) Conservative SC
narrowly defines the commerce power and uses the 10th
amendment as a limitation, sometimes invalidating federal laws.
Court tends to side with business owners, but the precedents are
not consistent.
*Federal Gov. is taking notice of problems and attempts to
become more active in regulation… BUT SC is conservative and
wants to keep gov. out to protect the states.
(child labor and state labor are regulated by the states)
1937- 1990s: Supreme Court defines the Commerce power
much anything the federal government wants to do is OK!
*Reaction to conservative court
1990s- present: While not overruling previous cases, the Court
revives federalism concerns and sometimes places limits on the
federal authority over the states.
Megan Van Pelt There seems to be two camps of justices filtering through their
(Regulating labor and hours- state power!)
1. Realist Approach: Attacking Economic impact and social effect
2. Formal Approach: Respect state rights and draw distinct lines
(manufactory/ Commerce Travel/ retail)
Where is the line drawn?
Is the challenged law:
1. Regulating “articles” or “goods” that happen to travel in interstate
2. Regulating the channels or “instrumentalities” of interstate commerce,
or movement through the stream of interstate commerce?
(The court in 1890-1937 accommodated the channels)
1890-1937: Formal View
Hammer v. Dagenhart (child labor): Tension between Art. 1 and 10th amm.
Indirectly attacking child labor (state control).
Act: Stopping child labor because it’s immoral and creates cheap and unfair
(1. Unconstitutional, regulates the article and oversteps the boundaries
of government. These goods aren’t actually evil when they entire into
interstate commerce)
N. 4 (182): Act: authorized federal gov. to regulate rates and prescribe
standards of operation of the stockyard where livestock was kept for sale
or shipment of interstate commerce. Stockyards are a stop along the
current of commerce. Upheld. (2. Regulating the movement through the
stream of interstate commerce: FED GOV WINS)
Shreveport Rate Case: Regulating the Rail Road Rates.
-Federal Regulation of rate discrimination for interstate commerce is
upheld. We want laboratories of democracy to compete BUT want to make it
fair. (2. Regulating the channel; AKA the line itself: FED GOV WINS)
Megan Van Pelt US v. E.C. Knight Co.: The Sugar Monopoly Case: Sherman Act: goal was to
prevent 1 sugar company from dominating the market
The Sherman Act attempted to regulate the articles themselves, but this is
a state job! (1. Regulating the articles or goods that happen to travel;
Rail Road
(Commerce Channel)
The Store
Champion v. Ames: Lottery Ticket Case:
Federal Lottery Act: Prohibits interstate transportation of lottery ticket.
Sees to regulate the good. The lottery ticket itself is immoral/ inherently
dangerous. (unlike the clothes that children were creating)
(1. Regulating the good BUT CONSTITUIONAL)
A.L.A. Schechter Poultry Corp.:
National Industrial Revolution Act: Poultry code approved- fair competition
and labor regulations
BUT this is not interstate commerce- It’s all intrastate after commerce
travel has occurred. Extraordinary measures do not enlarge the federal
government power.
(1. Regulating the good UNCONSTITUTIONAL)
Carter Coal Case:
Act: gives workers the power to collectively bargain
(1. Regulating before congress is able to step into the game;
Summary: During this time the courts weren’t consistent, but there seems
to be a pattern. Federal Government can regulate the channels or individual
items that are immoral or inherently dangerous. But will not regulate the
articles themselves.
1937: CHANGE New Deal Era of Commerce Clause
Realist view
FDR is re-elected and he’s upset the SC keeps striking down his laws and
attempts to rid of them! Huge pressure on conservative court
Megan Van Pelt n Is this constitutional? Yes, Congress gets to pick the number of
n Fireside Chat: “Court Packing”: Spooked supreme court
n Key Components of New Deal Legislative Program: New regulation
of key industrial and business sectors: Fair competition, pricesetting, labor conditions and union rights, Banking and financial,
Social Security Program, Farm stabilization, federally funded
public works projects
Post 1937: Congress may regulate:
1. Goods, Persons, Activities, or Services that Cross state lines
*Articles or persons traveling in interstate commerce
*Instrumentalities of interstate commerce
2.Activities that occur within a single state that have a substantial economic
effect (Wickard) on, or a “Close and substantial relationship” (Jones &
Laughlin) to interstate commerce
(AKA they never invalidated a law)
Jones & Laughlin: Introduces the new test for this era: Emphasis on how this
activity effects interstate commerce. (How direct is this related to the
National Labor Relations Act: Regulation labor/ management conditions. The
right of employees to organize and bargain collectively.
-Denial of the right to collect led to strikes which stopped labor (this
effects interstate commerce!)
-Strikes hurt the entire company and ripple into burdening the
commerce. (1. Constitutional: Realist approach: Close and Substantial
Darby: (Over Rules Hammer):
Act fights unfair competition
(Constitutional: effects interstate commerce)
Wickard: BROAD Impact
Agricultural Adjustment Act: Regulate glut of wheat, Quota to fix too much
wheat and too low of price.
Megan Van Pelt *Filburn exceeds the quota for his self-use but it never actually leaves the
state. BUT he is failing to participate in the market by buying a selling from
others. This causes the price to drop and obstructs the commerce goals.
(1. Constitutional: Effects commerce, Substantial Economic Effect)
Heart of Atlanta:
Civil Rights Act: Prohibits discrimination in public accommodation
*Valid, this hotel advertises to out of state travelers and 75% are from out
of state. This discourages travel of an entire community. Disruption of a
(1. Constitutional: Substantial Economic Effect)
Katzenbach (Ollie’s Bar-B-Que): BROAD Impact
Civil Rights Act: Pubic Accommodations. Prohibits discrimination in
restaurants. Hook!
*Valid; discrimination of restaurants discourages travel and obstructs
interstate commerce for one can hardly travel without eating.
*Why should an interstate supplier have to hurt through Ollie’s choice?
*If we have had many of these places it will cause a huge effect!
(1. Constitutional: Substantial Economic Effect)
1990s – Present
The court does not question any of its post-1937 cases and maintains the
principle that federal law can regulate intrastate activity that has a
substantial effect on, or substantial relationship to interstate commerce.
However: The majority thinks that thinks that the court is going too far.
The connection between the regulated activity and the interstate commerce
it too attenuated. Piling inference upon inference.
Court NOW says: As a limiting principle on intrastate activity with
interstate effects, the activity being regulated must be economic in some
- This does not apply if the law is limited to regulating articles that
have moved or are moving in interstate commerce. That’s ok.
Megan Van Pelt Lopez: Perhaps congress is getting sloppy. Federal gov. is expanding very
Gun Free School Zone Act: Possession of a gun near a school = criminal
Invalid: The gun did not move interstate. No hook. Schools are not economic.
If it was the sale of the gun it could be regulated.
(1. Unconstitutional: Gun is not an economic activity: Drawing the line to
avoid the slippery slope)
Violence Against Women Act: A damage remedy for women who are victims
of crimes motivated by their gender.
-Could impact travel, BUT not an economic activity
(1. Unconstitutional: Violence is not an economic activity)
Summary: Federal can regulate intrastate things that have a substantial
impact on commerce. But the issue must be economic and must be related or
moved in interstate commerce.
Raich: Regulation of MJ
-There is a national market for MJ and can regulate
-Possession or growing in backyard can be considered economic because it
could potentially be drawn into a national market. (Rational Basis for this
conclusion and that is all that is required)
*Not allowing regulation would undercut and frustrate the goals of
comprehensive policy.
National Federation of Ind. Business:
1. The commerce clause does not empower congress to legislate the
individual mandate clause: Justice Roberts
a. Here government is attempting to regulate inactivity- they are
bringing into existence something and then claiming that they
can regulate. (Just because you have a car doesn’t mean you are
in the market for a car) Here gov. is compelling activity.
b. There is an economic component, but it needs to be limited
2. Dissent: Ginsburg
Back to the tests (activity/inactivity)- but congress has a rational
basis. They are already engaged (Self insurance). Free Rider Problem.
Megan Van Pelt **This portion of the opinion is dicta because they base the finding on
the taxing
Commerce Clause Doctrine Summarized
Federal law may regulate:
-Articles, persons, activities, or services that move in interstate commerce
cross state lines
-Channels and “instrumentalities” of interstate commerce (think railroads,
river traffic, airports, interstate highways, stockyards)
-Activities that occur within a single state (i.e. there is no requirement to
show they travel or cross state lines) but have to have “substantial effect
on, or a “close and substantial relationship” to interstate commerce.
-In dicta, a majority of the current justices have said federal law may not
regulate “inactivity” or “create commerce” that doesn’t already exist (NFIB)
Concerning the 3rd category (substantial effects) …
-Such a regulation is allowed because purely local activities should not be
allowed to create “burdens and obstructions” on interstate commerce, or to
subvert the goals of federal policies concerning nationwide markets or
industries that are within federal power to regulate.
-The court and individual justices have sometimes suggested that the
Necessary and Proper Clause should also be thought to play a role in
allowing regulation of in-state activities with presumed interstate
-Congressional “motive” behind a law doesn’t matter. A court must only be
satisfied that Congress had a “rational basis” to conclude that the regulated
activity has substantial interstate effects. Where the law is justified under
“substantial effects” approach, courts do not make case-by-case inquiries or
-The regulated activity must be economic in some way.
-The Court since 1995 has become more sensitive to federalism: protecting
areas of traditional state responsibility and not allowing the commerce
clause to become a general “police power.” But it has not returned to the pre
1937 Court’s formal line-drawing between what is purely “local” (in state
sales) and what is commerce.
*** Taxing and Spending Power Land!!!
Megan Van Pelt 10th Amendment: Powers not delegated to U.S. by the constitution are
reserved to the states.
Pre 1937: Very formal and willing to follow
Post 1937: Rejects 10th, but feds can’t coerce the states.
Why does the government tax?
1. Revenue raising (Make Money) and Regulation (Smoking)
Doremus: Narcotics tax: Geographic uniformity. Moral purpose is okay!
Bailey/ Drexel: Child labor tax. Unconstitutional: Not imposed for legitimate
revenue raising (punitive). DRAWS A LIMIT
Why does this look like a tax??
-It’s collected like a tax.
Why it’s unlike Drexel (child labor tax)?
- Not a heavy burden/ No scienter requirement/ Done through IRS
- This is nothing new for the federal government to regulate
“Don’t strike it down if it can be saved constitutionally.”
*** Spending Power!
Butler: Agriculture Adjustment Act: tax on processors of agricultural
commodities (subsidized farmers)
1. Is the 10th amendment a limitation on the spending clause?
a. Yes, invades reserved rights of the states (Conservative
Approach) (No longer good law)
2. What is the understanding of spending clause?
a. 2 Options:
Megan Van Pelt i. Madison: limits to referencing to enumerated power (not
an independent grant)
ii. ***Hamilton: Spending and taxing are independent if its
for general welfare. (goes past enumerated power)
Ex: federal funding for disaster relief
Dole: Outer limits of spending clause!
Withheld Federal highways funds from states that didn’t prohibit drinking age
to 21. 5% of highway funding is not coercion (Constitutional)
-Congress could regulate speeds of 55 mph on interstate highways:
Coerced states if they refused to follow they wouldn’t get $. BUT
-There is no enumerated power to determine drinking age. (use spending
-- Must justify under the spending power: Allow the government
to achieve objectives through bribing.
-- General good of highway safety
--Federalism and political accountability (incentives that states
may take)
NY v. United States: Revival of the 10th amendment. Bribes are still
acceptable but there’s a limit
Congress orders states to handle and dispose of nuclear waste according to a
federally designed plan—You must abide by rules or else (unconstitutional)
-The 10th amendment, in reserving certain powers to the states (here, dealing
with the safety and disposal of nuclear waste), prevents the federal
government from interfering with a state’s decision about how to exercise
those powers.
(this serves a federalism principle of liberty and political
-Congress may “hold out incentives” for states to regulate matters within
their boarders as the federal government thinks best, because states are
free to decline the incentives
-OR, Congress could regulate private nuclear waste producers directly
through the Commerce Power (and could, if necessary, pre-empt any
conflicting state laws).
-HOWEVER… Congress may not simply commandeer the legislative processes
of the States by directly compelling them to enact and enforce federal
regulatory program.
1. Pursuit of general welfare (Butler)
2. States must understand bargain and knowing and voluntary
Megan Van Pelt 3. Reasonable relationship to federal interest
4. Cannot violate other constitutional limits (Ex. Ban bumper stickers in
exchange for funding—first amendment)
Congresses Power under section 5 of 14th:
Reconstruction Amendments (Each has a federal enforcement clause):
-13: Abolish Slavery
-14: Equal Protection/ Due Process
-15: Voting Rights: Can’t be denied by race
n Seek change between state and federal government: give federal
government more power to make states follow these equality rules.
n Originally first ten amendments applied to federal government then
changed to apply to states through due process clause (vehicle of
the bill of rights)
Section 5 Power: When congress passes laws that impose new obligations or
restraints on the states in the name of enforcing the 14th amendment, what
happens when the view of congress about the meaning of a particular right
conflicts with the SC view.
Held: A law requiring English literacy as a condition for voting does not violate
the 14th or 15th amendments as long as the requirement is fairly administered
and not a pretext for denying the right to vote.
-Doesn’t matter the race. “must be able to read and write”—seems to
be a fair way to determine if someone is literate not a scheme.
-- literacy and illiteracy are neutral on race, creed, color, sex
Megan Van Pelt -- Contrast this to a law in Alabama that was struck down because it
required a person to read a section of the constitution and explain it. (made it
clear that this was a device to keep out diversity.
Katzenbach (327): The court allowed congress to selectively ban literacy
tests where doing so would advance the equality and political rights of a
specific group, Puerto Rican Immigrants.
RULE: Congress can forbid practices that are not themselves
unconstitutional, if the law is aimed at preventing or remedying
constitutional violations. But what it means to “prevent” or “remedy”
becomes controversial in later cases.
Congressional Powers under the enforcement provisions of the reconstruction
amendments (14th section 5, 15th section 2)
n Enforcement and remedial measures for discriminatory practices are
permitted. For example,…
o Congress has authorized injured parties to file lawsuits for
damages or injunctive relief against officials who deny
constitutional rights (KKK) Federal criminal penalties for
interference with exercise of civil rights
o DOJ or Private Plaintiff may sue states or local jurisdictions
over discriminatory voting practices
n Employment Division v. Smith (1990):
n Held: Neutral rules of general application do not violate the first
amendment’s free exercise clause even if they burden someone’s
ability to exercise his free religion
n Ex:) Native American religion could be penalized for ingesting
peyote, an illegal drug, even though it was part of a ritual
n - Discriminatory intent, not merely effects, is what matters under
the first amendment. Law manifesting overt and deliberate
discrimination against religion still get strict scrutiny.
Megan Van Pelt n -First amendment is made applicable to the states through the
14th amendment, congress may use its §5 power to ‘enforce’ the
First amendment in appropriate circumstances
n In response to Smith, Congress passes RFRA, which imposes strict
scrutiny on all free exercise claims a more demanding test than the
first amendment, congress may use its §5
City of Boerne: In the name of “enforcement” Congress may not alter the
meaning of a constitutional right, either expanding or contracting it, in a way
that conflicts with a SC interpretation. ( must be congruent and proportional)
-Denied a building permit in historic district. Is the RFRA a proper exercise of
congress enforcement power? No, ratcheting up the strict scrutiny. This is
changing the constitution (okay when applied to federal gov. not states)
-Constitution: Neutral rules of general application are OK! / Strict Scrutiny
(attempt to change SC) NO!
n Preventive or prophylactic remedial measures have had a mixed
record, and the court recently seems more hostile toward them:
o Oregon (1970): Upheld a congressional ban on all literacy
tests as appropriate exercise of 14th and 15th amendment
enforcement clauses.
§ “In enacting the literacy test ban of Title II, Congress
had before it a long history of the discriminatory use
of literacy tests to disfranchise voters on account of
their race… as to nation as a whole, congress had
before it statistics which demonstrate that voter
registration and voter participation are consistently
greater in states without literacy tests.”
o City of Boerne: The court found RFRA was not remedial or
preventive. Rule: a remedial or preventive measure must be
“congruent and proportional” to the problem (here, religious
discrimination) that Congress is claiming to address.
o Shelby County: Invalidates the Voting Rights Act “coverage
formula” for pre-clearance because it was outdated and did
not reflect current realities of discrimination. RULE: Current
burdens must be justified by current needs
Employment Division v. Smith (1990):
Held: Neutral rules of general application do not violate the first amendment’s
free exercise clause even if they burden someone’s ability to exercise his free
Megan Van Pelt Ex:) Native American religion could be penalized for ingesting peyote,
an illegal drug, even though it was part of a ritual
- Discriminatory intent, not merely effects, is what matters under the
first amendment. Law manifesting overt and deliberate discrimination
against religion still get strict scrutiny.
-First amendment is made applicable to the states through the 14th
amendment, congress may use its §5 power to ‘enforce’ the First
amendment in appropriate circumstances
***Modern Revival of the 10th Amendment:
The 1990s revived the 10th amendment. However, the amendment is not a
shield by federal government.
National League: Traditional Government Functions Test
The commerce clause did not empower congress to enforce the minimum wage
and overtime provisions of the Fair Labor Standards Act against the states in
areas of “traditional governmental functions.” The court found that the wages
Megan Van Pelt and hours of state employees effects interstate commerce but statute
Garcia: Traditional government functions test is unworkable
State interests are more properly protected by procedural safeguards
inherent in the structure of the federal system than by judicially created
limitations—Congress can extend fair labors standards act
NY. V. United States 354:
Congress wants the states to dispose of low-level nuclear waste according to
federally regulated plan
-Congress “may hold out incentives” for states to regulate matters within
their borders as the federal government thinks best because states are free
to decline.
-Or, Congress could regulate private nuclear waste producers directly through
the commerce power (and could if necessary pre-empt any conflicting state
-However, Congress may not simply commandeer the legislative processes of
the states by directly compelling them to enact and enforce a federal
regulatory program.
-The tenth amendment does not shield activity within states from federal
regulation, and doesn’t prevent the federal government from preempting a
conflicting state law, but it does protect states sovereignty and integrity by
forbidding federal “commandeering” of the states own inherent law making
(Serves federalism principles of liberty and political accountability)
Printz: Gun Background check – Congress may regulate (deepen NY Principles)
The Brady Law: Reagan’s Press secretary (badly injured)
-instant check system
-local police chiefs did check system (burden)
- Unconstitutional to commandeer states
Dormant Commerce Clause page 245 bock quote:
n Judicially Inferred from Art. 1, § 8 commerce power.
n State or local laws are unconstitutional if they place an undue
burden on interstate commerce, even if congress has not acted. –
Courts can step in!!
n Rational: It is wrong for states to selfishly protect their own
interests at the expense of other states and the nation as a whole.
Megan Van Pelt n “When a state proceeds to regulate commerce with foreign nations,
or among the several states, it is exercising the very power that is
granted to congress and is doing the very thing which congress is
authorized to do”
Goes to discrimination:
1. Facial (Clear): Will most likely be unconstitutional unless local interest
outweighs or
2. Neutral: Discriminatory effect outweighs its justification
City of Philadelphia: NJ law prohibits importations of outside waste (advanced
environmental law) BUT violates commerce clause because it is facial
n There is no distinction between NJ waste and other waste. Does the
State Police Power outweigh the inconvenience to other states?
n Facial Discrimination: undue burden on out of state people… ex)
could chose to only except organic trash as long as it is the same
for each state.
n Also a market economy issue. Landfill will make less. We can’t just
protect one state interest.
Hunt: Apples coming into NC must only apply U.S. grade. The burden is on
Washington to repackage (not using their grading system)
Neutral: But has a heavy discriminatory effect on the Washington Apples
Dormant Commerce Clause: Court interprets congressional silence
Megan Van Pelt -Judicially inferred from Art 1, § 8 commerce power.
-- Should the judiciary be doing congresses job?
-State or local laws are unconstitutional if they place an undue burden on
interstate commerce, even if congress has not acted
--Rational: It is wrong for states to selfishly protect their own interests at
the expense of other states and the nation as a whole
-The Dormant Commerce Clause means the Court is essentially interpreting
Congressional silence.
--Thus, it follows that congress could cure a state’s unconstitutional action
through legislation that authorizes what the state wants to do.
Ex) Philadelphia, Congress, as a regulation of interstate commerce, could pass
a law authorizing states to prohibit the importation of waste from other
states, to attach a special condition to out of state waste, etc.
- States may also favor their own instate interests in areas where
they operate as market participants
n State laws that burden interstate commerce by intentionally
discriminating against the commercial/economic interests of other
states will always be struck down.
o Sometimes such discrimination is “facial” as in Philadelphia
o Sometimes the law is facially neutral; its discrimination is
hidden behind ostensibly proper state interests, but is reveal
by the laws discriminatory impact, as in Hunt
n Sometimes a state may exercise its police powers in a way that
incidentally burdens interstate commerce, but is not found to be
intentionally discriminatory. In such cases, a court will engage in a
balancing test. It will invalidate the law only if the state law’s
burdens on interstate commerce exceed its local benefits.
o Minnesota v. Clover leaf creamery: Even though there was
some incidental burden on out of state commercial/economic
interests, the court thought these were outweighed by
Minnesota’s environmental interests
n The motive behind a law may be probative, but it is not dispositive.
An intent to advantage instate over out of state interests is only a
problem if it actually burdens interstate commerce in some
meaningful way.
*** Federal Pre-Emption
n Constitutional question when state and constitution conflict
Megan Van Pelt Arizona: Federal government has inherent power to conduct foreign relations!
Express Preemption: Congress leaves no doubt about intent
Implied Preemption:
a. Field Preemption: Regulations doesn’t leave room for state to have a
say. Feds “occupy the field.”
b. Conflict Preemption: Mutually exclusive (impossible to comply with
both) State law stands as an obstacle
Here: Not express preemption.
§3= field preemption, because congress intends to occupy the field.
Court infers that congress wouldn’t want this, but congress could come
back and OK
§5= Conflict preemption because it is an obstacle that frustrates
Megan Van Pelt Art. II: Doesn’t have a lot of detail: Power is vested (1 person); Commander
and chief of the army; power to nominate and fill vacancies
Youngstown (370): “Korean War” : Invasion of North Korea into South Korea…
U.S. jumped in to help out, but there was a nation wide strike in the steel
mills (can’t produce items for the war effort)—Presidential seizure of the mills
Presidential power to act must come from 1. Constitution or 2. Act of
congress – Neither apply here
1. Constitution doesn’t work here, theater of war does not apply to
domestic industry: It’s clear the president doesn’t make the law
2. Congress already refused the Taft Act (same thing)
n n n n Constitutionally the president executes the law, he doesn’t make
the law, justifying taking of the property under “commander in
chief power” goes too far. Commander and chief of the army NOT of
the country (limited by the legislature)
n There was no congressional authorization. Congress had considered
but rejected this approach in 1947. Also, 2 other statutes govern
seizure of private property. So we can’t say this is a new problem
that congress never considered.
n *** Sanders says this is kay: Jackson Concurrence:
o Provides framework for assessing constitutionality of a
president’s action based on its relationship to what Congress
has approved or forbidden (expressly or impliedly)
Megan Van Pelt § President is strongest when acting pursuant to
congressional authority. All of his power plus all of
§ Middle zone of uncertainty when congress hasn’t act.
President can only rely on inherent constitutional
powers. Depends on events; no abstract theory or hard
§ President is weakest when acting in a way incompatible
with the expressed or implied will of congress.
§ Upshot: Presidential powers are not fixed; they can
fluctuate in the situation
n Dissent: Pragmatic View: This is an emergency and someone had to
o Truman wasn’t being a dictator—he kept congress informed
and pledged to follow their instructions
o Key issues on which dissent and majority seem to disagree:
§ Should national emergencies create/expand presidential
§ How significant is it that congress apparently
acquiesced? Truman reported and congress did nothing
to stop him—they just said nothing
U.S. v. Nixon (424-427):
Employers of Nixon reelection committee broke into democratic national
committee headquarters at Watergate. The senate committee set up to
investigate and question White House participation. Heat gets closer to the
white house (president is not the criminal but a 3rd party asked to be
subpoenaed.) Tapes show that president knew what was going on!
-President argues that matter was intra-branch between executive powers
and not subject to judicial review since branch was the exclusive authority.
-- The court found that the subpoena of the president was OK-Executive Privilege: The ability to not cooperate with judicial process.
-Does the court have jurisdiction? Yes, president was a third
party brought in./ Court says what the law is.
** The legal process prevails here! The executive is outweighed. (must be
limited and narrow) Think what is really needed!
Article III Section 2: Cases and Controversy Requirement
1. All cases arising under federal law concerning admiralty and
effecting foreign ministers and
2. Controversies between parties
Megan Van Pelt Habeas Corpus
Hamdi (389): Case concerning executive power and the extent to which the
courts can play a role. Habeas not suspended here… What due process is
owed here?
-Congress gave power to executive under AUMF!: Congress gave president
broad authority but not specific in regards to detention but “necessary and
Summary: Temporary detention of enemy combatant is implicitly authorized by
the AUMF, thus satisfying federal law () that no citizen may be imprisoned by
the US government except pursuant to an act of congress.
n Detention is understood to be an incident of war powers.
n Court does not reach the question of indefinite detention
n Where detention is justified—ie where there is statutory
authorization and the detainee is shown to be an enemy combatant—
a citizen who has taken up arms against United States can be
detained in the same way as non-citizens. Ex parte
In presuming the existence of habeas corpus unless suspended by Congress,
the Constitution protects against arbitrary detention
Unless congress has suspended habeas corpus, a citizen held prisoner within
the united states must be given and opportunity to challenge the basis for his
confinement before a neutral decision maker.
n The Due Process Clause informs the nature of the required habeas
proceeding. (This proceeding does not determine the guilt of
innocence of any crime, it simply verifies that there is some valid
basis for detention—here, that the prisoner is an enemy combatant.
BIGGER PICTURE OF HAMDI: No bright line rules. Just balance!
Megan Van Pelt n This is a case about the separation of powers and how we identify
proper limits to executive power. It provides a model for analysis,
not bright line rules..
o Context seems relevant. Executive power questions must be
decided case-by-case. This case is about a US citizen being
held without a trial on US soil. Issues like enemy combatants
held abroad, military tactics and strategy are not in play.
§ Remember Jackson in Youngstown: Executive power
questions often depend on the “the imperatives of
events and contemporary imponderables rather than on
abstract theories of law.”
§ Youngstown: War is not a blank check to the
executive. On matter affecting US citizen, the
judiciary will not forego its traditional role in
protecting individual rights/liberty
n The courts approach indicates it prefers to avoid evaluating broad
or unusually aggressive claims of Executive Power under Article 2 if
a matter can instead be resolved by looking into ordinary laws
enacted by congress.
o Where detention is concerned, the Executive is expected to
honor laws made by Congress (Even if we have to stretch to
make things fit)
Noel (45 Supp.)- Issue: Art. 2 Section 2- President has the power to fill up
all vacancies that may happen during recess of the senate: Framer’s
anticipate 1 recess…
-Constitutionality of president’s power is flexible and difficult to figure out…
1. Court refused the idea of a bright line rule
2. Vacancy doesn’t have to happen during the recess.
3. Proforma session for 5 minutes counts to stay in session
What about executive action on guns??
-Congress could address and clarify the problem
-Executive agency has to implement regulatory schemes (Fill the gaps)
Judicial Power extends to:
1. A case; or
2. A controversy
(Can’t invalidate legislature merely because unconstitutional)
Megan Van Pelt AKA: No advisory opinions, can’t decide political action, must have
standing, can’t decide premature or moot issues
1. Reduces branch friction- prevents court from reaching merits
2. Concrete disputes only- not hypothetical or abstract
3. Promotes ends of individual autonomy—must actually have an injury
STANDING: Citizens don’t have standing to sue in federal agency based on
influence on 3rd parties
Allen v. Wright (82-89): Parents of black school children brought a nation
wide class action against IRS- for not carrying out its obligation to deny taxexempt status to private schools that discriminate based on race.
No standing: They were simply part of the group not direct participants
Mass (97) Exam Writing: Mass has standing because it’s the gov backing its
n Specific injury- impact on coastal lands
**Slavery and Reconstruction: Fundamental change. USA = Singular
Art. III Standing1. Injury in fact: Concrete and imminent
2. Casual Connection between injury an illegal conduct (Mass v. EPA
Causal Connection)
Megan Van Pelt 3. Must be “likely” NOT speculative
Reconstruction Amendments:
Dred Scott: Spending time in free states, made him free?
-Thrown out because he doesn’t have standing…
Jurisdiction to hear the case? No he wasn’t a citizen. (similar to Marbury)
-5th amendment right to property would be crossed if granted as free.
Megan Van Pelt Civil Rights Case (1556): Still Less than equal-Act: “Entitled to full and equal enjoyment of the accommodations, advantages,
facilities, and privileges of inns, public...
*Unconstitutional Act!!
- The 14th amendment is prohibitory in its character upon the states.
Invasion of individual rights is not the subject matter...
-This steps in and lays rules for private citizens
** Green light to states that discrimination is okay!
Marsh: Drawing the line between private and public to create state action
n “traditional public function” A town owned by a private corporation.
Subject to state regulation!
Shelley: Restrictive Covenant preventing sale of property to blacks. Covenant
is the hook into the court. Because it is between private buyers the covenant
is upheld.
**motive can be racial but must have neutral action
Burton (1582): Government entity sued for discrimination of lessee--- Coffee
shop refused black service
-There is an intertwined and symbolic relationship here
1. Public ownership
2. Indispensable part of success
3. Mutual benefit of success in business
Hypo: A state agency supplies loans to open a restaurant. Could a black
person sue for your racist behavior?
-No ongoing relationship. So separate and attenuated.
-Weight the factors
Jackson: Electric Company- not traditionally public. Doesn’t say what satisfies
the test but what wouldn’t..
--monopoly- not state action
--Regulation—not state
State Action Doctrine:
Megan Van Pelt -As a general rule, the Constitution only places restrictions on government
action. This is underscored by the Civil Rights Cases, Which held that 14th
amendment only applies to states, not the conduct of private citizens.
--The supreme court has found certain exceptions to this principle, including:
1. Where a private entity carries out a “public function” traditionally
done exclusively by the government, such as operating a town (Marsh)
or a state prison, the constitution does apply!
2. Where the private party and the government are in a “symbolic
relationship, so that the wrongful action of the private party can be
attributed to the government (Burton)
3. MORE RECENTLY, Court has said it looks for a “sufficiently close
nexus” between the government and the private entity. But gov
regulation or gov-granted monopoly are not enough to provide this
nexus (Jackson)
4. Shelley held that a court can enforce a racially discriminatory
restrictive covenant as state action, but this case seems confined to
the specific context of racial covenants, and other forms of court
enforcement in actions between private parties have not been held to
create state action.
**Privileges and Immunities Clause
- Privileges and Immunities: Nullity: So narrow and no meaning (was it
intended to be broad?)
- Are the bill of rights the only rights available what about natural?
1. Ocean is (human autonomy) with islands of regulation – LIBERAL
2. Ocean is (government regulation) with islands of rightsCONSERVATIVE
Megan Van Pelt - 9th amendment: Highlights natural rights. The enumeration in the Constitution,
of certain rights, shall not be construed to deny or disparage others retained
by the people.
Slaughter House: Narrow view of 14th. Monopoly of slaughterhouse: Butchering
business in the zone says it violates others natural rights of engaging in a
profession of choice.
n General regulation is okay for health reasons
1. Ammendments were passed to preserve rights of African Americans:
This is not the type of claim for due process
2. 2 distinct citizenship spheres: STATE and FEDERAL
a. State makes the choice to not protect the rights of the business
and federal government does not have the right to step in (we
cling to the two separate spheres)
Summary: Good evidence that the drafters of the 14th amendment intended
the “privileges and immunities clause” to empower federal courts to identify
Megan Van Pelt and protect various unenumerated “natural rights” (such as the right to labor
and to earn a livelihood) against interference by state governments:
n “Privileges and immunities” of federal government citizenship are
much more limited than the “privileges and immunities” of state
citizenship, and the 14th amendment has nothing to do with the
o Even if the right to labor in one’s chosen trade is a natural
right of all humans, it is a matter for state law and cannot
be enforced through the 14th amendment
n This ruling has never been overruled… Privileges and immunity
render a virtual nullity, the court will have to look elsewhere for
constitutional unenumerated rights.
**LOCHNER ERA: Judicial judgment on Legislative Branch
-The Court has a hostile stance towards Legislative regulation of businesses
(1880s-1930s) The focus is on substantive due process
-Concerned with Lazze Faire: letting things take their natural course
(Judicial activism)
-Liberty of Contract: Limit on police power-ability to sell labor freely
-“liberty”: Broadly defined! Natural rights are protected
-Focus on DUE PROCESS 14th and 5th
Due Process: Proper Procedure (Hamdi)
Substantive: Look at what the law does and its effects to see if
the police powers are appropriate
Lochner: labor law: restricting workers to 60 hours a week to protect health
and safety of workers
-Unconstitutional! - Court protects right to labor and freedom of contract
-Judicial Activism!
Bigger question: When is it appropriate for courts to overturn the legislation?
**Demise of Lochnerism! Court will back off
After 1937: Court sharply reversed: Legal realism and substantive due process
concerning business is discredited.
-There is now deference towards elected law makers. There is a presumption
of constitutionality and reviewed under rational basis.
Court Revolution!
1. FDR & Court Packing:
2. Great Depression: Free market isn’t great
Megan Van Pelt 3. Legal Realism: Challenging that law is nuetral
Nebia(766): Upheld the price fixation of milk. Regulation is OK!
West Coast: Upheld minimum wage for women because the right to contract is
not absolute (public good trumps). Regulation is OK!
Carolene Products 770: Filled Milk Act
n Court is willing to accept legislative view: Presumption of
Constitutionality. Upheld with facts known and inferred
n Rational Basis: Lowest level of judicial review satisfies upholding the
n It’s the legislative branch’s problem. Elect new people
n FAMOUS FOOTNOTE 4: Expectation of deference to legislature:
o 1. Fundamental Rights/ Discrimination/ Political process
Williamson v. Lee Optical (771): Upheld with hypothetical facts!
Law: “Lens crafter cannot fix without a new prescription”
Megan Van Pelt -Legislature may want to have eyes checked to prevent disease (leaning over
backwards to find a presumption of constitutionality)
Plessy v. Fergueson (468): Upheld without any inquiry into a rationality of
means/ ends connection
Law: required equal but separate accommodations for r.r. UPHELD
-Legal rights: voting, property, contract (14th amendment protects)
-Social rights: Must be equal. BUT separation is okay.
The citizens interpret the meaning of the separation as inferiority. But social
inequality is not protected under the constitution.
Road to Brown:
-Chipping away at the moral problem with separate but equal. Indirectly
attacking separation by looking at the equality factor.
Bolling v. Sharpe: DC is controlled by federal gov./ 14th amendment only
applies to the states
n Equal Protection clause is implied in the 5th amendment. Due process
covers this.
Cooper v. Aaron: Constitution is the law of the land!
Megan Van Pelt Equal Protection: Classification
1. Rational Basis: Rational basis to legitimate gov. interest
“Driving at 16 and not 15”/ Marry at a certain age.
2. Modern Strict Scrutiny: Court give rigorous scrutiny to race,
ethnicity, or national origin
a. Requires a COMPELLING government interest and
b. Narrowly tailored to impose
(not just taking congresses word for it anymore)
*** Racial classifications trigger heightened scrutiny: Strauder (521): State law exclude blacks from juries: justifies strict scrutiny
*The purpose is not only race but to halt discrimination
-Whites and blacks are equal before the law!
Korematsu (523): World War 2/ Japanese relocation camps
*Rigid and strict scrutiny is expressly stated- creates a heavy presumption
against constitutionality unless:
2. Narrowly tailored
(here there is deference towards the military. Its about the war)
*Modern: This is obviously not narrowly tailored. They are sweeping in
everyone that is Japanese… (blank check to the military)
Loving (527): Virginia criminal offence to have interracial marriage
Megan Van Pelt Modern Equal Protection:
1. Purpose of the law (naked discrimination?)
2. Fit between means and ends
n Rational Basis Review: Must serve a
o legitimate government interest, and
o the discrimination must have a rational relationship to that
n Strict Scrutiny Review: CONTRAST: Discrimination based on race,
ethnicity, or national origin gets STRICT SCRUTINY! Laws purpose
must serve:
o A compelling government interest and
o It must be narrowly tailored to impose no more discrimination
that necessary to achieve the compelling interest
n Intermediate Scrutiny: Gender: There must be
o Important Government interest and
o Substantial relationship to the interest and the discrimination
Is there discrimination??
1. Facial Classification: uses a characteristic to determine law or policy
a. Most facial classification survive rational basis review (minimum
age for driver’s license)
b. For race/ethnicity/national origin/ gender: facial classifications
are presumptively unconstitutional and receive heightened
Megan Van Pelt scrutiny. The assumption is that such a classification is “suspect”
and may rest on some invidious purpose or assumption. The
function of heightened scrutiny is to “smoke out” such invidious
c. Even when it does not involve heightened scrutiny for race or
gender, a facial classification will fail rational basis review if a
court determines that it has an “invidious purpose”- that is, that
it is based on “irrational prejudice” or “animus” toward the
affected group. (ex: city denies permit to group for mentally
handicapped home)
2. Facially Neutral Law/ Policy that is administered or enforced indicating
invidious purpose:
a. Laundry permits denied to Chinese (Yick wo)
b. Drunk driving roadblock where only minority drivers are stopped
3. Facially Neutral law/policy that was designed or intended to achieve an
“invidious purpose”:
a. The laws “disparate impact” does not, standing along, violate
equal protection. Only intentional discrimination does
(Washington v. Davis) BUT a facially neutral law designed or
intended to achieve an invidious discriminatory purpose is
i. Ex. Country used at-large election with knowledge and
intent that it will disadvantage black (rogers v. Lodge)
ii. Compare: Pers. Admin. Of Mass v. Feeney: A state gov.
established a hiring preference for veterans. It was
predictable that in operation men would be advantaged.
Not unconstitutional as long it was veteran preference not
female. To be unconstitutional, a government must select
a particular course of action at least in part “because of”
not merely “in spite of” its adverse effects upon an
identifiable group.
Washington 540: Police force test discriminated. Equal between blacks and
whites. Standing along Not unconstitutional
Rogers (545): Bad motives to intentionally discriminate
Mass v. Feeney: Knowing there will be a disparate impact does not make it
discriminatory- predicted the veteran preference would favor males
Gamillion: Changing zoning only to fence out blacks
*Gerrymandering doesn’t count to trigger 14th amendment
Megan Van Pelt Plaintiff may claim: neutral law is a pretext for discrimination: How do we
find invidious purpose??:
1. Disproportionate Impact (not alone)
2. Historical background of discrimination
3. Timing of the law in response to events
4. Government departs from normal procedures
5. Statement from members
n The purpose of the law is not the same as the motives of the law
o We are looking for objective measures (purpose) Not motives
o To get strict scrutiny you must persuade the court of racial
n Now looks at strict scrutiny in affirmative action cases.
***Affirmative Action
Bakke: Split decision: 4 against 4 for affirmative action: Compelling interest
Croson: State and local authorities receive strict scrutiny. (strict scrutiny of
all race-based action by state and local government)
n 30% of contractors must be contracted to minorities: 30% seems to
be pulled out of the air.
n Why does this violate?
o 30% is not tied to discrimination (not narrowly tailored)
o Perpetuates inferiority
Megan Van Pelt o Not a complete ban on affirmative action. (BUT must be tied
to specific discrimination in the town)
Andarand 567: Federal authorities receive strict scrutiny
n Protection means government is color blind. Everyone starts on equal
playing ground:
o Skeptism: race classification
o Consistency: The standard of review for race doesn’t matter
if the race is burdened or benefited
o Congruence: 5th amendment equal protect is the same as the
Grutter v. Bollinger 580:
University of Michigan (Public: constitution applies)
-Admission policy must pass strict scrutiny test (Croson and Adarand)
*Student body diversity is a compelling state interest that can justify the use
of race in university admissions: Ed benefits
*Narrowly tailored: does not use a quota system. Just a plus system.
**Does banning Affirmative Action violate equality?
Wygant: Strict scrutiny applies
*Compelling state interest: social sciences/ data/ statistics (no mathematical
*Narrowly tailored: Not a quota or a percent… one factor out of many to
Megan Van Pelt Gratz v. Bollinger (595):
Giving racially diverse significantly more points is not narrowly tailored!
Blunder approach/ holistic review feel safer.
Hypo 1: Affirmative action to make up for the wrongs in history is NOT A
n But if there was systematic discrimination and leaving out in a
particular city or government then it is okay. Must have specifics
Hypo 2: What if evidence shows underrepresentation in promotions?
n Affirmative action- to hire more diverse
n NOT A COMPELLING INTEREST, should address the specific problem
Schuette: Window into changes in our courts thinking about race—prior
holistic review is permissible but not required
Must find 2 things to be unconstitutional:
1. Created racial classification into boxes OR
2. Impelled by intent to discriminate
*Political Restructuring is not enough to trigger.
UNIT 8: Gender and the Constitution
Reed (631): Equal qualification as executive of a will goes to male
Here- Rational Basis (not announced)
n Race gets strict scrutiny and everything else is rational basis
n Animus, Arbitrary, and No good justification
Megan Van Pelt Frontiero (1973): Strict Scrutiny (4 votes, need 5)
Men could automatically claim female as dependent whereas women had to
prove that husband was dependent (status)
n Race and gender are similar: history of discrimination and something
one cannot change
Craig v. Boren (1976): Men disadvantaged by having to wait longer to buy beer
New Test:
Intermediate: 1. Important government objective 2. Substantially related
*Women are still different. There are gender stereotypes but it leaves the
door open to NOT invalidate all sex based policies
-- Got the majority by not applying strict scrutiny
US v. Virginia (647): Military school
Equal Protection Test:
1. Government purpose or interest and
2. The fit between that purpose/interest and the classification or
discrimination being challenged
Strict: Compelling interest/ narrow tailoring
Megan Van Pelt Intermediate: important gov. interest/ substantial relationship
Rational Basis: Gov. Purpose/ Rational Relationship (minus animus)
***Rational Basis Plus
Rational Basis Review: Strong presumption of validity. Courts don’t want to
tamper with validity
Beazer (498): Rational basis to exclude methodane users. 1. To preserve
safety 2. Not arbitrary
Rational Basis Plus: Targeting groups with histories/ Reason to suspect
animosity (Express or constructive)
n Carolene Products F.N. 4: Prejudice against a discrete minority:
ratchet up or down
Moreno (504): Exclude food stamp program to unrelated people.
“unrelated people’s provision” Prevent hippies
n A bare congressional desire to harm a particular group (a politically
unpopular group) cannot constitute a legitimate government interest
Cleburne (505): Home for mentally handicap
--Denied building
-- evidence of discrimination and singled out a group!
UNIT 9: Equal Protection: Rational Basis Review and Beyond
Romer (675): Rational Basis Fails
1. Disability on a single group
2. Animus
*Classifies a single group and then denies protection across the board
Windsor (83): States recognized same sex marriage in HI but not in Indiana.
Federal gov. does not recognize gay marriage.
DOMA: Recognizes marriage between male and female
Specific Harm: Federal tax, morally unequal, dignity, children burdened
Purpose: Moral disapproval
**This is inherent and not a choice—law fails on improper purpose
Unit 10: How should the constitution be interpreted?
Megan Van Pelt Originalism: Scalia- Conservatives: attach importance to order, respects the
past, moves slowly towards change, clear lines of permissible and
impermissible—anchored to text
Living Constitution: Common Law constitution, Political Progressives, liberals
(respect for individuals). Sex, gender, and race fall away
UNIT 11: Due Process and the Incorporation of the Bill of Rights
Due Process: Unenumerated Rights: life, liberty, property AND protects Bill of
Rights in the states
J. Stevens: Procedures are hallowing without substance
Slaughterhouse Cases: made privileges and immunities clause narrow
Incorporation: Ratify constitution and adopt Bill of Rights
n Looks at each safe guard and asks if due process applies
n Gitlow: 1st free speech applies to states
n Powell: 6th Right to counsel for capital applies to states
n Wolf: 4th unwarranted search and seizure applies to states
n Louisiana: 8th cruel and unusual punishment applies to states
n NOT 5th: Grand jury not
n NOT 7th: Right to trial by jury
Gun Rights Cases:
Heller (48): FEDERAL Individual right: looks to history, dictionaries, and text
of constitution. What was the public understanding at the time it was written
(Not absolute)
Megan Van Pelt McDonald: STATE
Part of ordered liberty and deeply rooted in this nation’s history and tradition
Individual right: Apply it to the states through the due process clause
Unit 12: Modern Substantive Due Process
EXAM POLICY INTERPRETATION: Griswold (841): Connecticut State LawProhibits contraceptive to married
n Nothing in constitution speaks expressly to sexuality
n How do we strike this down? This is an invasion!!
Reluctant to look at Lochner… we don’t want to sit as a super legislature
n Look at due process and prenumbra of bill of rights
J. Douglas looks to see the common thread is the right to privacy (physical
autonomy)/ Space
-- This right is not absolute
Roe v. Wade (854):
n Privacy under 14th amm. Extends to women’s right to have an
abortion (9th isn’t broad enough)
n Not a right to life argument… right to privacy
(strict scrutiny)
Interests= right of the woman and the government: health concerns
(third trimester)
Casey (874): No more trimester view- viability
n Undue burden is the new standard: substantial obstacle in the path
of a woman seeking an abortion
Megan Van Pelt Casey (873): -­‐‑Prior to viability women can choose abortion -­‐‑After viability: states may prohibit *States can send messages that favor or hate on abortion as long as they do not place an undue burden on the woman. -­‐‑24 hour waiting period is not a burden -­‐‑Notifying the spouse is a burden *No bright line rule and this creates battles Family Privacy: *under substantive due process there must be a heightened basis. The court is no longer protecting an economic right like in Lochner. They look to the family and what happens in the home. (Compare these cases to Beazer and Lochner) Moore (909): Heightened basis! Ordinance limiting occupancy is a dwelling. What kind of housing situations do we want? -­‐‑Moore sliced deeply into the family. -­‐‑With substantive due process the courts look at tradition: “liberty is deeply rooted”… Sanctity of the home. Stanley (918): Regulation of family is under state law. n Presumption that father is unfit to care for children (similar to Beazer but this is a family relationship and gets heightened scrutiny) Troxel (917): Statute allow courts to determine visitation rights. This was way too broad. The court didn’t give any weight to mom’s choice (skeptical review without a label) Zoblocki (913): right to marry = fundamental right denied to a single group -­‐‑singling out a particular group is not okay