Constitutional Law Outline
I.
Introduction: The Marshall Court and the Federalist Constitution
A. Interpreting the Constitution
1. Scope of Congressional Powers
McCulloch v. Maryland (1815): Necessary and Proper Clause allows the Congress to do what is
necessary in order to exercise its enumerated powers, without an explicit constitutional provision
allowing the action.
The Constitution should be read as a “document intended to endure for the ages and,
consequently adapted to the various crises of human affairs.”
Enumerated Powers: These include the powers to tax, spend, borrow money, fund the military,
coin money, etc.
The power to tax is the power to destroy.
The federal government is limited in its powers but is supreme with its sphere.
Necessary does not mean indispensable, but instead something which is reasonably related to an
enumerated power. As long as the end is legitimate and the means are plainly adapted to that
legitimate end, the act is constitutional.
The supremacy of the federal government makes state sovereignty subordinate to the federal
government. Taxes on federal property and employees are permitted for revenue collection only,
not for regulating the federal government.
2. Modalities of Interpretation
a. Appeals to the Text
Tends to be the preserve of originalists and has two strands. One focuses on the intent of the
founders (Scalia) while another focuses on the original meaning of the words themselves
(Thomas).
b. Constitutional Structure
Infers the intended structure of the government from provisions of the Constitution. The powers
of the different branches of government create a constitutionally ordained balance of power that
must be maintained.
c. Prudentialism/Consequentialism
Focuses on the reasonable action and on the potential consequences of a decision. Will tend to
avoid decisions that are controversial with the public and other branches of the government.
d. History
Focuses on the historical events surrounding the adoption or rejection of certain provisions.
Constitutional meaning can be inferred from both pre and post ratification history. Can also be
used to argue for learning from the mistakes of the past to avoid similar errors in judgment.
e. Precedent
Looks to past court decisions, actions by Congress, the President and state or local governments,
as well as traditions. Precedents from state courts are not binding on the federal courts, but can
be used to provide persuasive arguments.
The blind adherence to precedent ignores the changes in circumstances over time as well as the
actual text of the Constitution. Precedent does help create and maintain a stable body of law,
though it can allow misguided decisions to remain in effect.
f. National/Narrative Ethos
Considers whether a decision is faithful to the identity or destiny of the nation, its deepest
commitments or an important aspect of national character.
3. Judicial Review
The principle of judicial review is not explicitly provided for in the Constitution. In Marbury v.
Madison (1803), the court established the power of the Supreme Court to review acts of
Congress and acts of the executive for constitutionality, creating the principle of judicial review.
The decision in Martin v. Hunter’s Lessee (1821) established the precedent that the Supreme
Court can review state court decisions.
Judicial Review in a Democratic Polity
The Countermajoritarian Difficulty
In striking down acts of Congress and state legislatures, the Court will stymie the will of the
people.
Justifications for Judicial Review
a. Supervising Inter and Intra Governmental Relations
Judicial review helps to prevent states from usurping federal powers and vice versa. It also
creates a uniform federal standard on certain issues.
b. Preserving Fundamental Values
The Court is unelected and is therefore not responsive to the vagaries of the people like a
legislature would be.
This puts the courts in a position to protect the fundamental values of the Constitution, even
when it is unpopular, i.e. Brown
c. Protecting the Integrity of the Democratic Process
The court is also well positioned to use constitutional review to reinforce freedom of
speech/press, protect voting rights and protect minorities from the tyranny of the majority. See
Footnote 4, Carolene Products.
The Countermajoritarian Difficulty Countered
Besides the Court, there are other parts of the federal government that are unmajoritarian, such as
the Electoral College or representation in the Senate. Furthermore, unelected cabinet members
can exert undue influence on the President.
The appointment of Justices by popularly elected Senators can serve as a counterweight to some
of the Court’s countermajoritarian tendencies. See Bork confirmation.
The Court can, in some cases, act as a counterweight to these unmajoritarian practices.
4. Presidential Interpretation
Each branch of government is responsible to some degree to interpret the Constitution.
The President can veto legislation that he considers to be unconstitutional and can refuse to
enforce a act that he considers to be unconstitutional. This practice was upheld in Meyer v.
United States.
Jackson’s Veto Message
Because the Bank of the United States takes away the power of the states to tax, Jackson believes
it is an unconstitutional entity and refuses to sign legislation that would extend its charter.
Jackson argues that the precedent set in McCulloch is not decisive authority of the Bank’s
constitutionality. This stands in direct contrast to the common law tradition of treating precedent
as being authoritative.
Jackson believes that each has the right to interpret the Constitution and act that interpretation.
AG Dellinger’s Guideposts to When Executive Refusal is Appropriate
1. The President should presume that all Congressional enactments are constitutional and
construe them in a way to avoid constitutional problems.
2. If the President believes that the Supreme Court would uphold an enactment as
constitutional, he should execute it regardless of personal doubts of its constitutionality.
3. Only when the President has doubts of an enactment’s constitutionality and believes that
the Supreme Court will overturn it that he should refuse to execute it.
4. Where both the President’s and the Court’s views are likely to converge, the President
should consider the consequences of refusing to enforce the enactment and the likelihood
of judicial resolution.
5. The President has an enhanced responsibility to resist unconstitutional encroachments on
Presidential power by the legislature, unless he believes that the Court would not rule in
his favor.
6. The fact that a previous President signed a piece of legislation should not prevent the
current President from refusing to enforce the law if he believes it to be unconstitutional.
7. In conclusion, the President has the authority to sign legislation containing desirable
elements while refusing to enforce constitutionally questionable elements.
II.
The Jacksonian Era and Slavery
Natural Law Tradition in America
The natural law is a concept that there are certain universal and immutable principles, including
the rights to “life, liberty and property” as expounded by John Locke and famously adapted in
the Declaration of Independence.
Natural law is law that transcends humanity and is a body of universal moral principles, while
positive law is law that has been written or declared.
Explicit Federal Constitutional Protection of Rights
Judicial protection of individual rights arose out of Article I, Sections 9 & 10, which forbade the
states from issuing bills of attainder, applying ex post facto law and impairing the obligations of
contracts.
These first two restrictions were also extended to the federal government as were limits on the
government’s ability to suspend habeas corpus.
Ninth Amendment
The Ninth Amendment stated that the rights of the people were not limited to those enumerated
in the Bill of Rights. This was done to allay fears that the Bill of Rights would be interpreted as
the outer limits of the people’s rights.
Tenth Amendment
The powers not delegated to the United States by the Constitution, nor prohibited by it to the
States, are reserved to the States respectively, or to the people.
Calder v. Bull (1798)
The Ex Post Facto Clause applies to criminal laws that have one or more of the following effects:
1. A law that makes an action that was done before the passing of the law and legal at that
time a criminal offense.
2. A law that aggravates a crime and makes it a greater offense than when it was committed.
3. A law that increases the punishment for a crime than when the crime was committed.
4. A law that changes the rules for legal evidence and receives less or different testimony
than was required at the time of the offense in order to convict the offender.
Fletcher v. Peck (1810)
The Court held that the right to property precedes the Constitution and did not need to be
enumerated to be recognized.
Acts of the legislature that take property without compensation are against natural law and the
social contract.
The primary function of government in a Lockian conception was the protection of private
property.
Slavery and the Constitution
Prior to the passage of the 13th Amendment, slavery was a constitutional practice. There were
several Constitutional provisions that protected slavery, including:
Article I, Section 2: Required the apportionment of the House to be based on the whole number
of free persons and three-fifths of “all others,” i.e. slaves.
Article I, Section 9: Barred Congress from outlawing the importation of slaves until 1808.
Congress did so at that time.
Article IV, Section 2: Contained the Fugitive Slave Clause, which required free states to
extradite escaped slaves.
Many saw slavery as something beyond the regulatory power of the federal government, while
states had full power to regulate or outlaw the trade.
By the 1830s, most Northern states had outlawed the slave trade. There were no slave states
further north than Delaware or further west than Texas. By the 1850s, free states began to
outnumber slave states.
Prigg v. Pennsylvania (1842)
This case centers on the conflict between the federal Fugitive Slave Act of 1793 and
Pennsylvania’s anti self-help law.
Under the federal law, an escaped slave must be extradited from a free state. This conflicted with
the Pennsylvania law that barred a person from being removed from the Commonwealth by force
for the purpose of enslaving that person, without a hearing to determine the person’s status.
The court held that the Pennsylvania law was unconstitutional because it violated both the
Fugitive Slave Clause and Supremacy Clause of the Constitution.
Not allowing slaveowners to recapture escaped slaves was deemed to be an action that divested
them of their property without due process, a violation of natural law.
States do not need to use their resources to enforce federal law.
Missouri Compromise of 1820
Missouri was admitted as a slave state and slavery was permitted south of Missouri on the
condition that Maine would be admitted as a free state and slavery would be banned north of the
36.5th parallel north or west of the Mississippi river, except where slavery pre-existed.
Kansas-Nebraska Act of 1854
Allowed for popular sovereignty on the slavery question for newly admitted states west of the
Mississippi river or north of the 36.5th parallel north.
Scott v. Sanford (Dred Scott Case) (1857)
The plaintiff was a slave who was brought to Illinois and Upper Louisiana (present day
Wisconsin) while his owner was stationed there in the military. The former was a free state while
the latter was a free territory under the Missouri Compromise. Because of this, the plaintiff
claimed that he was now free and sued for freedom in federal court.
To having standing to sue in federal court under diversity jurisdiction, both parties must be
citizens of different states. The plaintiff claims that he is a citizen of Missouri.
The court holds that black people, free or slave, cannot be considered citizens of the United
States. Chief Justice Taney holds that this is because their ancestors had been enslaved and a
“perpetual and impassable barrier was intended to be erected between the white race and the one
they had reduced to slavery.”
Taney cites evidence of numerous legal restrictions on freedmen across the country, such as
restrictions on voting rights and anti-miscegenation laws, as evidence of this fact.
Additionally, freeing a slave brought into federal territory violates the owner’s Due Process
Clause of the Fifth Amendment, by depriving him of his property without due process of law.
Taney considers the Constitution to be a pro-slavery document that bars black people from
becoming citizens upon obtaining freedom.
This decision is considered the anti-canonical decision in Supreme Court history, and was
overturned by the 13th, 14th and 15th Amendments, as well as the Civil Rights Act of 1866.
Frederick Douglass on the Constitution
Unlike Taney, Douglass considers the Constitution to be an anti-slavery document. This is
because it contemplates the elimination of the international slave trade in Article I, Section 9.
Additionally, Douglass believes that the text is at worst ambiguous and can be reasonably
interpreted by judges to be anti-slavery.
III.
The Civil War and Reconstruction
A. Secession and The Union
The Secessionists believed that secession was valid and that the Revolution against the British
had the precedent that the people had the right to revolt against a government that does not
represent their interests.
President Lincoln believed that the Constitution created a perpetual and indissoluble union
between the states and that secession was illegal.
Emancipation Proclamation
Lincoln initially did not allow his commanders to free slaves and believed that the Dred Scott
decision had precluded any action by the president or legislature to outlaw slavery.
Lincoln depended upon his powers as commander in chief to issue the proclamation, which
allowed the military to seize the property of rebels in any territory captured from the
Confederacy. This property included slaves.
Justice Curtis, in a letter to President Lincoln, expressed concerns that the proclamation
exceeded executive powers because it overrode valid state laws about the regulation of citizens
and their property. Additionally, the proclamation deprived citizens of property without due
process of law.
Civil Rights Act of 1866
Following the freeing of the slaves, Congress wanted to protect the freedmen from abuse. When
some expressed fears that granted civil rights to freedmen would grant them suffrage, a line was
drawn between civil, social and political rights.
Civil Rights: The right of blacks to be protected under the law as a citizen.
Social Rights: The right of blacks to be treated equal to whites in social contexts. i.e. attending
the same schools, using the same transportation, interracial marriage, etc.
Political Rights: The right of blacks to vote, hold office or serve on juries.
The Civil Rights Act was intended only to grant the first set of rights to the freedmen.
B. Constitutional Amendment
Thirteenth Amendment
The Thirteenth Amendment granted Congress the power to pass legislation to outlaw slavery.
The implication of the Amendment is that the Constitution may have originally been pro-slavery.
C. Reconstruction and Reaction I: The Fourteenth Amendment
Fourteenth Amendment
Section 1
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are
citizens of the United States and of the state wherein they reside. No state shall make or enforce
any law which shall abridge the privileges or immunities of citizens of the United States; nor
shall any state deprive any person of life, liberty, or property, without due process of law; nor
deny to any person within its jurisdiction the equal protection of the laws.
Section 5
The Congress shall have power to enforce, by appropriate legislation, the provisions of this
article.
The Fourteenth Amendment thus provided freedmen with birthright citizenship and made illegal
for the states to take actions to discriminate against them.
The Fourteenth Amendment is the wellspring of many constitutional rights and much
constitutional litigation.
D. Reconstruction and Reaction II: Privileges and Immunities and the Status of
Women
Slaughterhouse Cases (1873)
This case was a challenge to a Louisiana law that mandated all slaughtering done in the City of
New Orleans be done at a single slaughterhouse in order to confine the practice to a single
location in the city and prevent the spread of disease.
The city’s butchers argued that this state sanctioned monopoly deprived them of their privileges
and immunities as citizens of Louisiana, of which would include the right to earn a living in their
chosen field.
The Court ruled against the butchers, holding that the Privileges and Immunities Clause affected
on the rights of United States citizenship and not state citizenship. In 1873, the privileges and
immunities of American citizenship were few, such as the right to travel between states or use
navigable U.S. waterways.
This decision had the effect of rendering the Privileges and Immunities Clause a nullity.
Women’s Citizenship in Post-Bellum Era
Women were not given the franchise and had only recently been given the right to own property
in their own names.
Bradwell v. Illinois (1873)
This case was a challenge to the State of Illinois denying a law license to a woman under the
Privileges and Immunities Clause.
The Court solidified their narrow reading of the Clause by holding that the right to practice a
profession was not a privilege or immunity of a United States citizen.
The court used arguments referring to the separate spheres of men and women in justifying the
decision.
Minor v. Happersett (1875)
The court held that women did not have the right to vote, because voting was not an inherent
right of citizenship protected by the Privileges and Immunities Clause.
The Court reasoned that because the Constitution did not grant citizens the right to vote,
something the Court believes that the Constitution would have make explicit if it intended to do
so.
E. Reconstruction and Reaction III: The Reconstruction Amendments and Race
Strauder v. West Virginia (1880)
A black man who was convicted of murder by an all-white jury challenged a West Virginia law
that barred black men from serving as jurors.
The Supreme Court held that the exclusion of black jurors denied the plaintiff equal protection of
the law in violation of Section 1 of the Fourteenth Amendment.
Did not mandate that the jury pool had to be proportionate to the population, only that black men
not be excluded from the jury pool by law.
Civil Rights Cases (1883)
The Civil Rights Act of 1875 banned states from allowing discrimination in restaurants, inns and
places of public amusement. When several such businesses discriminated against black
customers, they sued for enforcement of the provisions of the Civil Rights Act.
The Court ruled against the plaintiffs and held the Civil Rights Act of 1875 to be
unconstitutional. This is because the Fourteenth Amendment authorized Congress to regulate
only state action and not the actions of private individuals.
Additionally, the Court did not consider the “mere discrimination on account of race or color” to
be a “badge of servitude” in violation of the Thirteenth Amendment.
Plessy v. Ferguson (1892)
This case was a challenge to a Louisiana law that mandated that black and white passengers ride
in separate railcars. The plaintiff claims that the law is in violation of the Equal Protection
Clause of the Fourteenth Amendment.
The Court holds that the Louisiana law did not violate the Equal Protection Clause. The Court
holds that the Fourteenth Amendment was meant to provide only legal equality between the
races, not social equality.
The infamous phrase “separate but equal” comes from this case. The majority held that as long
as the facilities in use were equal, than it was perfectly legal to allow these facilities to remain
segregated by race.
Harlan’s Dissent
Harlan believes that the Constitution is “color blind” and should “neither know nor tolerate
classes amongst citizens.”
Harlan believes that the Equal Protection Clause extends to social as well as legal equality.
IV.
The Lochner Era
A. Substantive Due Process
Substantive Due Process is a principle that allows courts to protect fundamental rights from
government interference, even if the procedural protections are present or the right is not
specifically mentioned in the Constitution.
Substantive Due Process draws on the Due Process Clauses of the 5th and 14th Amendments,
which bars the federal and state governments respectively from depriving citizens of life, liberty
or property without due process of law.
Lochner v. New York (1905)
This case is a challenge to a New York statute that restricts the amount of hours a baker can
work to ten in a single day and sixty in a single week.
The Court held that the New York statute did violate the Due Process Clause of the 14th
Amendment by denying freedom of contract.
The court read the liberty and property prongs of the Due Process Clause together to synthesize a
constitutionally protected right of freedom of contract.
Any law that dictates the terms of an employment contract must be a reasonable exercise of the
state’s police power. The majority believes that the law in this case is not and the court closely
scrutinizes New York’s motivations for passing the law.
The decision reads the Constitution as a document that endorses the system of laissez faire
capitalism.
Harlan’s Dissent
Justice Harlan believes that the law passed by New York was a legitimate use of legislative
authority and state police powers. He believes that the Court gave insufficient weight to the
legitimate health concerns of the legislature in passing the law.
Holmes’ Dissent
Justice Holmes accuses the majority of engaging in judicial activism by reading the Constitution
to “embody a specific economic theory”. In Holmes’ opinion, there are numerous other ways in
which the state can interfere with freedom of contract, such as bans on usury or Sunday trading,
that the Court would likely uphold.
Holmes’ dissent is among the most famous and commonly cited dissents in the history of the
Court. There is near universal agreement that Lochner was wrongly decided and is an infamous
example of judicial activism.
Kopich v. Kansas (1915)
A challenge to Kansas law that forbade so-called “yellow dog” contracts, which were
employment contracts that had a clause that made a worker promise not to join a union.
The Supreme Court overturned this law on the same grounds as Lochner; that it is a state action
that interfered with an employee’s freedom of contract.
Muller v. Oregon (1908)
This case was a challenge to an Oregon law that limited the number of hours women could work.
Like the previous cases, it was challenged as an interference to an employee’s freedom of
contract.
Unlike in the other cases, the Court held that the state had a legitimate interest in protecting
women and their capacity to perform maternal functions which outweighed the woman’s
fundamental right to contract.
Laws that paternalistically protected female workers were the only exceptions to the Lochner
principle while it was operative law.
This case was overturned by the decision in Adkins v. Children’s Hospital in 1923, which
repudiated sex-based distinctions in freedom of contract due to the passage of the Nineteenth
Amendment three years prior, which granted women the right to vote.
B. Federalism and National Powers
Commerce Clause Powers
Commerce Clause: Article I, Section 8, Clause 3
Congress shall have the power to regulate commerce with foreign nations, amongst the states and
with Indian tribes.
Gibbons v. Ogden (1824)
This case was a dispute between the holder of a federal ferry license between New York and
New Jersey and the holder of a license for the same ferry route issued by the New York
legislature.
Congress issued the plaintiff his license under a law that allowed Congress to regulate the
coasting trade.
The court held that the Commerce Clause allows Congress to regulate the navigation of
waterways because commerce is more than the mere traffic of commodities, but also includes
navigation.
Champion v. Ames (1903)
This case challenged the Federal Lottery Act of 1895, which made it illegal to send lottery
tickets across state lines. The plaintiff was convicted under this act for shipping Paraguayan
lottery tickets from Texas to California.
The plaintiff argues that the trafficking of lottery tickets does not constitute as commerce.
The five justice majority of the Court holds that the Act is Constitutional. This is because
Commerce Clause power is plenary in nature and can be used as Congress sees fit within
constitutional limits. This includes proscribing an entire class of products, such as lottery tickets.
Congressional power to regulate interstate traffic is plenary, meaning it is complete in and of
itself.
Dissent
The dissent does not believe lottery tickets to be articles of commerce, and thus believes them to
be beyond the reach of Congressional regulation under the Commerce Clause.
Hammer v. Dagenhart (1918)
This case was a challenge to the Keating-Owens Act of 1916, which prohibited products made
using the labor of children under fourteen from the stream of interstate commerce. The law was
challenged as exceeding the power of Congress under the Commerce Clause.
The Court held that the law exceeded the power of Congress under the Commerce Clause.
This is because the Commerce Clause was not held to allow Congress to regulate manufacturing
of goods made with child labor.
This can be distinguished from past decisions that allowed Congressional bans of “inherently
evil” things, like lottery tickets, alcohol or prostitution from interstate commerce. The Court did
not believe that goods manufactured with child labor were immoral.
The disparate regulation of wages and conditions from state to state may create economic
inequality between the states, but such regulations are within the police powers of the states and
are beyond Congressional control.
Congress could not address the fact that the states had unequal labor laws, as that was within
their police power under the 10th Amendment.
Holmes’ Dissent
Congress can regulate in this case because the goods made were manufactured in one state and
sold in another, which is interstate commerce in his view.
Holmes believes that the entire manufacturing process should be put under federal purview under
the Commerce Clause.
The exercise of federal Commerce Clause powers should not be curtailed because of the fact that
it “might interfere with the domestic policy of any state.”
In terms immorality, Holmes views the products of child labor to be just as immoral as the
articles Congress is allowed to ban. It is illogical that prohibition is “permissible against strong
drink but not against the product of ruined lives.”
“If there is any matter upon which the civilized countries have agreed, it is the evil of premature
and excessive child labor.”
Constitutional Innovation in the Progressive Period
17th Amendment: Allowed direct allowed election of US Senators.
18th Amendment: Prohibition. Only Amendment to be repealed.
19th Amendment: Granted women the right to vote.
V.
New Deal Constitutionalism
A. Emergence of the Modern Paradigm of Constitutional Scrutiny
The Great Depression and its associated economic turmoil unleashed a wave of state and federal
legislation that attempted to stabilize the economy and relieve the penury of the citizenry by
various means.
These various acts of legislation faced constitutional challenges, many premised on Lochnerian
argues, such as the freedom of contract and economic substantive rights.
Nebbia v. New York (1934)
This case was a challenge to the constitutionality of a New York law that created the Milk
Control Board to control the price of dairy, so as to support struggling dairy farmers. A grocer
who sold milk below the minimum price challenged his fine and conviction on Due Process
grounds.
The Court applied a rational basis test to the law and held that the right to contract was not
absolute and needed to be balanced against the state’s interest in maintaining the public welfare.
In this case, the law was rationally related to the state’s goal of maintaining the welfare of the
dairy farming industry and was not “unreasonable, arbitrary, or capricious.” As such, it was not
unconstitutional, but a legitimate use of state police power that the Court had no authority to
strike down.
Home Building and Loan Ass’n v. Blaisdell (1934)
This case was a challenge to a Minnesota law that imposed a moratorium on banks and other
lenders foreclosing on the property of delinquent borrowers. The lenders argued that this was a
violation of the Contracts Clause, which was understood as barring states from passing debtor’s
relief laws.
The Court did not dispute this reading of the Contracts Clause, but refuses to invalidate the
Minnesota law, despite it being contrary to it because of emergency circumstances.
The Court justifies the law on the grounds that the law was a justifiable use of state police power
in the public interest in light of the dire economic conditions of the time.
Despite the decisions in Nebbia and Blaisdell, the Court would frequently overturn New Deal
legislation from 1935 to 1937.
The Court contained three progressives, the arch-conservative Four Horsemen and two swing
justices. All of the Four Horsemen were over seventy years old.
This lead to President Roosevelt proposing a plan in early 1937 to add one justice to the court for
every justice over the age of seventy, in an effort to get favorable decisions. While this plan
failed, Roosevelt was ironically able to appoint eight justices following a string of retirements
and deaths in the late 1930s and early 1940s.
The decision in West Coast Hotel was handed down during the drama of the court packing
controversy, and both swing justices joined the Three Musketeers against the Four Horsemen to
hand down a pro-New Deal decision. This led to some allegations that the Court was responding
to political pressure.
West Coast Hotel v. Parrish (1937)
This case was a challenge to a Washington State law that set a minimum wage for female
workers. The challenge hinges on the freedom of contract principles expounded in Lochner and
the rejection of such legislation in Adkins.
The Court instead ruled that the Constitution allowed for the restriction of liberty of contract by
state law when the restrictions protected the community, health, safety or vulnerable groups.
This decision was an overturning and sharp rebuke of the decision in Lochner, holding that the
right to liberty of contract was a qualified right, subject to “reasonable regulations and
prohibitions, imposed in the interests of the community.”
The Court applies a rational basis test for legislation that regulates wages or working hours,
requiring a legitimate end of the state and the means used to be rationally related to that end.
Carolene Products v. United States (1938)
This case was a challenge to federal law that prohibited the shipment of “filled milk,” or skim
milk compounded with fat, in interstate commerce. The law was challenged on both Due Process
and Commerce Clause grounds.
The Court held that the law was presumptively Constitutional and properly within legislative
discretion. This was because it related to the legitimate end of insuring public health and the
means of banning such products from interstate commerce was rationally related to this end.
Footnote Four
While the Court will apply a rational basis or minimum scrutiny and presume most legislation to
be Constitutional, Footnote Four describes certain legislative acts that might give rise to a higher
level of scrutiny. Strict scrutiny will be applied when:
1. A law appears on its face to violate a provision of the US Constitution, especially in the
Bill of Rights,
2. A law restricts the political process that could repeal an undesirable law, such as
restricting voting rights, organizing, disseminating information etc., or
3. A law discriminates against "discrete and insular" minorities, especially racial, religious,
and national minorities and particularly those who lack sufficient numbers or power to
seek redress through the political process.
Williamson v. Lee Optical (1955)
This case challenged an Oklahoma law that required a prescription before new lenses could be
placed in eyeglass frames, a law that disadvantaged opticians, who could not write prescriptions.
This law was challenged on Equal Protection grounds.
The Court held that state laws regulating business are subject to a rational basis review and that
the Court does not have to consider all possible motives for legislation the end is legitimate and
the means are rationally related to the legitimate end.
The Court on rational basis review and Lochnerism: "The day is gone when this court uses the
Due Process Clause of the Fourteenth Amendment to strike down state laws, regulatory of
business and industrial conditions, because they may be unwise, improvident, or out of harmony
with a particular school of thought."
The Court on the Equal Protection Clause: "The prohibition of the Equal Protection Clause goes
no further than invidious discrimination.”
B. National Powers in the Wake of the New Deal: The Emergence of the Modern
Regulatory State
The Commerce Clause provides the justification a large amount of diverse legislation, including
most of the legislation that created the modern regulatory state.
A.L.A. Schechter Poultry Corp. v. United States (1935)
This case challenged a provision of the National Industrial Recovery Act of 1933, which allowed
for local codes to be written regulating the sale, slaughter and price of chicken, among other
things.
Schechter’s company was cited for violations of these codes and argued that the powers granted
in the Act exceeded Congressional Commerce Clause powers, since all of the chicken he sold
was within the State of New York.
The government argued that since most of Schechter’s chickens came from out of state, the code
was legitimately regulating interstate commerce.
The Court held that the NIRA violated the Commerce Clause, because it regulated an intrastate
activity. Although the sale of live poultry was interstate commerce, the stream of commerce
stopped at the slaughterhouse, since all of the meat was sold to in state buyers.
This act of regulation violated the Tenth Amendment, because it interfered with the state’s police
powers, regulating an activity “far removed from interstate commerce.”
FDR Constitution Day Speech
Supreme Court had struck down many of the New Deal laws. President Roosevelt claims that the
Constitution is a people’s document and the president has the power to act unilaterally in
national emergencies.
NLRB v. Jones and Laughlin Steel (1937)
This case was a challenge to the National Labor Relations Act of 1935, which created the NLRB.
The NLRB stepped in after J&L had fired ten employees from their Aliquippa, Pennsylvania
plant.
The Supreme Court ruled that the NLRA was a valid use of Commerce Clause powers to
safeguard worker’s rights to self-representation.
United States v. Darby Lumber Co. (1941)
This case was a challenge to the Fair Labor Standards Act of 1938, which barred from interstate
shipment goods that were produced by workers paid less than the federal minimum wage.
The government justified the legislation on Commerce Clause grounds, while the defendant
argued that the Act violated the Tenth Amendment by reaching into matters that were local in
nature.
The Court upheld the FLSA, holding that Congress had the power to regulate working conditions
under the Commerce Clause.
The Act served the legitimate end of regulating the national economy by preventing states from
allowing substandard labor practices to gain an advantage in interstate commerce.
Commerce Clause powers extend to intrastate activities that are related to interstate commerce
and some of the goods are produced for interstate commerce.
The Court held that the Tenth Amendment is “but a truism” that does not in any way strip
Congress of its enumerated powers under the Constitution.
Wickard v. Filburn (1942)
This case was a challenge to a provision in the Agricultural Adjustment Act of 1938, which
penalized farmers for going over their allotted amount of wheat they were allowed to grow on
their farms. The law was meant to prevent prices from being driven down by excessive sale of
crops on the open market. The defendant exceeded his allotted amount of wheat, but did not sell
it, instead using it to feed animals on his farm.
Since the wheat in question was never sold, let alone sold across state lines, the defendant argued
that his actions did not constitute interstate commerce and that the Act was unconstitutional for
regulating such activities.
The Court held that the AAA was a Constitutional use of Commerce Clause powers. This was
because even growing wheat for personal use beyond the allotted amount would have an effect
on interstate commerce, since the farmer did not buy the wheat on the open market.
The Court looked not at the effect of a single actor like the defendant, but instead looked at the
cumulative effects of thousands of actors behaving as the defendant did, which would have a
substantial effect on the price of wheat on the interstate market.
As such activities that are local in nature but still have a substantially effect on interstate
commerce can be regulated by the federal government.
The Necessary and Proper Clause allows Congress to regulate production and consumption to
further their regulation of interstate commerce.
Since the regulation of wheat production was rationally related to Congress’ goal of supporting
crop prices in the interstate market, the law is a Constitutional exercise of Commerce Clause
powers.
This case broadly expanded federal powers under the Commerce Clause and laid the foundation
of the administrative state in the second half of the 20th century.
The Commerce Clause was used to expand federal criminal law enforcement and as a
workaround to the limitations of the 14th Amendment in civil rights legislation.
VI.
National Legislative Power: Recent and Contemporary Debates
A. Civil Rights Legislation and the Warren Court
Under the 14th Amendment, only government action could be outlawed and have specific
legislation directed at it. In order to reach discriminatory acts of private individuals, Congress
had to exercise its Commerce Clause powers.
Civil Rights Act of 1964
Discrimination in places of public accommodations was outlawed if their operations effected
interstate commerce.
This included hotels with more than five rooms and restaurants serving goods that travelled
through interstate commerce.
United States v. Heart of Atlanta (1964)
A challenge to Title II of the Civil Rights Act of 1964, which banned discrimination in public
accommodations if their operations effected interstate commerce by the owner of the 216 room
Heart of Atlanta motel as being beyond Congressional power.
The Court ruled in favor of the government, holding that Congress acted within the scope of its
Commerce Clause. While there would have been other ways to do this, it was still a valid
exercise of Congressional powers.
The business was strategically located near the junctions of I-75 and I-85 as well as two major
Georgia highways, and 75 percent of the motels guests were from out of state. As such, the
motel’s operations had a sufficient justification for Congressional regulation.
Katzenbach v. McClung (1964)
In this case, Ollie’s Barbeque, a restaurant in Birmingham, Alabama refused to seat black
customers, only allowing them to take out orders. The government sought to enforce the Civil
Rights Act against him, justifying the enforcement of the Act on Commerce Clause grounds.
The Court found that the Civil Rights Act was justified under the Commerce Clause. This is
because the Civil Rights Act was designed to prevent the artificial dampening of interstate
commerce and travel caused by racial segregation in public accommodations.
While the restaurant itself did not have a substantial impact on interstate commerce, the
aggregate actions of businesses engaged in segregation had a “highly restrictive effect on
interstate travel by Negros”, artificially dampening interstate commerce.
Encouraging interstate commerce is a legitimate end of Congress and the Court found that
Congressional action was rationally related to this end, based on Congressional findings.
B. The Reach of the Commerce Clause
United States v. Lopez (1995)
This case was a challenge to the Gun Free School Zone Act of 1990, which made possession of a
handgun near a school a federal offense. Congress justified this legislation on Commerce Clause
grounds. This was because of the negative impact of gun violence on schooling and the
importance of schooling in creating a skilled workforce for industry.
The Court rejected Congress’ Commerce Clause rationale and held that the GFSZA exceeded
Congressional power to regulate interstate commerce.
In the majority opinion, Chief Justice Rehnquist identified three broad categories of activities
Congress could regulate under the Commerce Clause:
1. The channels of interstate commerce
2. The instrumentalities of interstate commerce, or persons or things in interstate commerce
3. Activities that substantially affect or substantially relate to interstate commerce
The Court found that education was too far removed from interstate commerce to be regulated
under the Commerce Clause, and that allowing such a regulation to pass muster under the
Congress Clause would make Congress capable of regulating anything distantly related to
interstate commerce.
The Court specifically looked to four factors in determining whether legislation represents a
valid effort to use the Commerce Clause power to regulate activities that substantially affect
interstate commerce:
1. Whether the activity was non-economic as opposed to economic activity; previous cases
involved economic activity
2. Jurisdictional element: whether the gun had moved in interstate commerce
3. Whether there had been congressional findings of an economic link between guns and
education
4. How attenuated the link was between the regulated activity and interstate commerce
If a criminal activity does not have a substantial effect on interstate commerce, enforcement is
left to the police power of the states, reserved to them by the 10th Amendment.
United States v. Morrison (2000)
This case was a challenge to the constitutionality of the Violence Against Women Act of 1994,
which allowed for a federal civil remedy to victims of gender-based violence, even if no charges
had been filed by the states. Congress invoked the Commerce Clause in passing the Act.
The Court held that Congress exceeded its Commerce Clause power in passing VAWA, because
Congressional Commerce Clause powers should be used only to regulate interstate economic
activity.
Much like in Lopez, the Court does not find the activity being regulated by VAWA to have
enough of an impact on interstate commerce to justify Congressional intervention in a subject
that would normally be under the purview of the state’s police powers.
Gonzales v. Raich (2003)
This case was a Challenge to the Controlled Substances Act of 1970, in that it allowed the
government to regulate intrastate growth of legal medical marijuana by having the DEA seize
and destroy it.
The Court upheld the Constitutionality of the CSA, holding that its passage was well within
Congressional Commerce Clause powers. Additionally, the Court justifies the intervention in
intrastate conduct on the aggregate principle expounded in Wickard v. Filburn.
This aggregate principle applies to this case because the federal government has a legitimate
interest in regulating and controlling the interstate growth of medicinal marijuana for personal
use because it could be diverted into the illegal market.
As such, the majority holds that seizing medical marijuana is a means rationally related to the
federal government’s legitimate goal of controlling the interstate marijuana trade.
O’Connor’s Dissent
The federal government used the CSA to invade the police powers of the State of California. The
State of California decided to permit the intrastate growth and use of small amounts of marijuana
for medicinal purposes, which is a legitimate use of state police power. This use of state police
power was stifled by the federal government in this case.
Thomas’ Dissent
Allowing the federal government to regulate the mere possession of a small amount of marijuana
for personal, medicinal use where there is not evidence of a transaction is an extreme overreach
of Congressional Commerce Clause powers. To allow this would be to interpret the Commerce
Clause as granting the federal government unlimited regulatory powers.
C. Necessary and Proper Clause
Necessary and Proper Clause, Article I, Section 8: The Congress shall have 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 Constitution in the Government of the United States, or in any
Department or Officer thereof.
National Federation of Independent Business v. Sebelius (2012)
This case was a challenge to the constitutionality of the individual mandate of the Affordable
Care Act of 2009, colloquially known as Obamacare. The individual mandate required that all
individuals either purchase health insurance or make a shared responsibility payment.
Congress passed this law in order to reduce the cost of health care by spread around the costs of
insurance more evenly and reducing the number of unpaid hospital bills.
The federal government argues that the Act is justified under the Commerce Clause, Necessary
and Proper Clause and the Taxing and Spending Power.
The Court holds that the individual mandate exceeds Congressional power under the Necessary
and Proper Clause.
While Congressional authority under the Necessary and Proper Clause is rather broad, it must be
“derivative of a granted power” to be a valid exercise of power.
Unlike the law in Wickard, which involved regulating preexisting economic activity, the
individual mandate compels non-actors to enter the market. The Commerce Clause presupposes
existing commercial activity.
The federal government cannot regulate economic inactivity that will have an aggregate effect on
interstate commerce. Allowing the government to regulate inactivity would allow for regulation
of a vast amount of behaviors.
Dissent
The states were unable to solve the free rider/collective action problem or regulate the insurance
market. Only federal intervention in the insurance market could effectively regulate it.
Comstock v. United States (2010)
This case is a challenge to the Adam Walsh Child Protection Act, which required the civil
commitment of certain people already in federal custody.
The plaintiff was convicted of possession of child pornography and was deemed to be a sexually
dangerous person and was subject to civil commitment after serving his sentence.
The Supreme Court upheld the constitutionality of the Act under the Necessary and Proper
Clause. The Court has five considerations on which it based this decision:
1. The Necessary and Proper Clause grants Congress broad power to enact laws that are
"rationally related" and "reasonably adapted" to executing the other enumerated powers.
2. The statute at issue "constitutes a modest addition" to related statutes that have existed for
many decades.
3. The statute in question reasonably extends longstanding policy.
4. The statute properly accounts for state interests, by ending the federal government's role
"with respect to an individual covered by the statute" whenever a state requests.
5. The statute is narrowly tailored to only address the legitimate federal interest.
D. The Taxing and Spending Power
Taxing and Spending Clause, Article I, Section 8, Clause 1: The Congress shall have Power To
lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common
Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be
uniform throughout the United States.
Sebelius (cont.)
Although Congress did not invoke the Taxing and Spending Power in passing the ACA, the
federal government added an argument that the individual mandate was tax on people who did
not purchase health insurance.
The Supreme Court held that the individual mandate was a valid exercise of Congressional
taxing and spending powers, despite Congress not invoking that power.
The Court is bound to the canon of constitutional avoidance, which dictates that a federal court
should avoid ruling on constitutional grounds if a decision can be reached on other grounds.
It is plausible for the individual mandate’s shared responsibility payment to be a tax because:
1. It is collected by the IRS
2. It is due at the same time as income taxes
3. It is used as a means of revenue collection.
Courts have historically given deference to Congressional taxation powers, with the only limit
being that penalties cannot be enforced under the guise of taxes.
The taxing and spending clause has been interpreted broadly, with any spending for the general
welfare that does not violate the Constitution being a legitimate exercise of the power.
Congress also has the power to define what the general welfare is, as well as attach conditions to
money given to the states, allowing the federal government to influence state policy decisions.
South Dakota v. Dole (1987)
The state of South Dakota challenged the National Minimum Drinking Age Act of 1984, which
withheld 10 percent of federal highway funds from states that did not maintain a minimum
drinking age of 21. South Dakota, which had a drinking age of 19 for beer challenged the law.
The Court held that the NMDA was a valid exercise of the spending power because there was a
rational relationship between building safe highways and the regulation of alcohol sales.
The Court allows Congress to attach conditions to spending bills, so long as the spending
withheld is not coercive.
Otherwise, the Court gives Congress wide deference in its exercise of spending powers.
E. Implied Limits on Federal Regulation of the States
The court has in recent decades, the Supreme Court has brought back the Tenth Amendment as a
constraint on federal power.
Anti-commandeering: The federal government cannot compel the states to enforce certain
federal laws.
New York v. United States (1992)
This case was a challenge to the Low-Level Radioactive Waste Amendments Act, which forced
the states to “take title” of and assume liability for radioactive waste in state if the state failed to
comply with the law.
The Court held that this provision of the Act violated the Tenth Amendment, because it coerced
the states into enforcing federal law.
Printz v. United States (1997)
This case is a challenge to a provision in the Brady Act, which had local law enforcement
perform the required background checks for handgun purchases while the federal database was
being set up.
The Court held that this provision violated the Tenth Amendment, because it commandeered
local officials into implementing federal policy.
The Court looked at the historical practice of Congress avoiding the practice of using state
officials to enforce federal laws, as well as the structural concerns over separation of powers, in
that having states enforce federal law encroached on the powers of the executive branch.
VII.
The Modern Debate over Racial Equality
A. Brown and Its Legacy
Under the Equal Protection Clause, no state shall deny any person equal protection of law.
For the first half of the 20th century, equal protection of law was understood as protecting solely
equality of legal rights. This was the crux of the separate but equal principle from Plessy.
Brown v. Board of Education (1954)
This case was a challenge to the practice of school segregation, as well as the separate but equal
principle expounded in Plessy. All but one of the plaintiffs in the initial case had lost their cases
in the lower court, with the Delaware court finding the schools in question to be unequal.
The Supreme Court overturned Plessy and held that separate schools were inherently unequal.
The Court could not find an original intent of the framers of the 14th Amendment as to its
relation to public schooling because public schooling was nonexistent at the time of ratification
and there was no consensus as to the Amendment’s meaning.
The Court instead decided to interpret the 14th Amendment in the light of the current moment.
The Court found that segregation, even if facilities were equivalent, was an inherently unequal
practice contrary to the Equal Protection Clause because of the negative psychological effects it
had on black children.
Segregation created an inferiority in black children, disincentivizing them from learning and
perpetuating the racist status quo.
The Court decided this case in light of its ethical commitment.
Bolling v. Sharpe (1954)
This case was a companion case to Brown, challenging the segregation of Washington, D.C.
public schools under the Due Process Clause of the 5th Amendment. The 14th Amendment had
been modeled on the 5th Amendment, but the latter lacked an Equal Protection Clause.
The Court ruled segregation by the federal government to be unconstitutional under the Due
Process Clause of the 5th Amendment. This was achieved through reverse incorporation, which
applied the Equal Protection Clause to actions of the federal government.
The concepts of equal protection and due process were held to be closely related and both part of
American ideal of fairness.
The court held that it was unthinkable that the Constitution would impose less of a duty onto the
federal government than the one imposed upon the states.
Brown II: Required that the decision in Brown be made with “all deliberate speed.” This requires
a good faith effort on the part of the states to integrate their schools.
Lower federal courts were used to enforce desegregation, as well as other Congressional
legislation on the 14th Amendment.
Griffin v. County School Board of Prince Edward County (1964)
In response to an order to integrate the county’s school system in June 1959, the County Board
of Education shut down the county’s public school system and instead disbursed tuition grants
for all students, regardless of race, for private schools. Since there were no private schools in the
area that took black students, this had the effect of depriving black students of access to
education.
The Court held this practice to be unconstitutional and ordered the schools reopen. It was held
that denying black students the action to education was a violation of the Equal Protection
Clause.
This case was the first time that the Supreme Court ordered a county government to exercise its
power of taxation. It was this unusual level of intervention that caused Justices Clark and Harlan
to dissent, holding that federal courts are empowered to order the reopening of public schools in
Prince Edward County.
Some states offered what were called freedom of choice plans, which allowed parents to choose
which schools they wanted their children to attend. This had the effect of perpetuating the
segregation of schools in the area.
Green v. County School Board of New Kent County (1968)
The Court held that freedom of choice plans were constitutional, but that many of them were
ineffective at implementing integration. The specific freedom of choice plan of New Kent
County was held to be unconstitutional.
Following the decision, the county school board organized the schools along grade level and not
racial lines.
The Meaning of Desegregation and Busing
There was disagreement as to what desegregation meant. Given the extent of residential
segregation at the time, many school districts that were not explicitly segregated were not
integrated either.
Some courts responded to this de facto segregation by ordering inter-district school busing.
Swann v. Charlotte-Mecklenburg Board of Education (1971)
While resistance to integration was relatively weak in North Carolina, the situation was more
complicated in the City of Charlotte, due to deeply intrenched residential segregation. As a result
of this, most of the city’s black students still attended schools that were de facto segregated.
A district court judge had ordered mandatory busing as the only way to redress the racial
imbalance and a fractured decision by the Fourth Circuit upheld the order.
The Court upheld the order and held that mandatory busing was an adequate remedy for
segregated schools, even when this segregation was the result of selection of students based on
geographic proximity and not on an intentional policy of segregation.
Milliken v. Bradley (1974)
A district court judge ordered busing to remedy racially imbalanced schools in Detroit, which
were the product of the city being among the most residentially segregated in the country. Much
like the City of Charlotte, the City of Detroit had no explicit policy of segregation, but the
district court and Sixth Circuit both held that Detroit and the State of Michigan had a
responsibility to integrate the Detroit school system,
The Supreme Court reversed these lower court decisions, holding that school districts were only
responsible for desegregation if they had explicit segregationist policies in the past.
The Court held that desegregation was the “dismantling of a dual school system,” not the
creation of a racial balance within “each school, grade or classroom.”
The Court also emphasized the importance of local control over schools.
B. The Anti-Discrimination Principle: Anti-Classification and Anti-Subordination
There are two schools of thought in anti-discrimination: Anti-Classification and AntiSubordination.
Anti-Classification: This school of thought is opposed to laws that classify citizens based on
race.
Anti-Subordination: This school of thought is opposed to laws that perpetuate the inferior status
of one race relative to another, even when such an intent is not explicitly stated.
Suspect Classification Doctrine
Koreamtsu v. United States (1944)
This case was a challenge to the executive order which excluded all people of Japanese descent
from the West Coast states and sent them to internment camps. The plaintiff claims that the
mandatory relocation is a violation of the Due Process Clause of the 5th Amendment.
The Court, citing Footnote Four from Carolene Products, will apply strict scrutiny to acts of the
government that discriminate on the basis of race.
Strict scrutiny requires that the ends of the government be compelling and the means be narrowly
tailored.
Despite stating that strict scrutiny will be applied, the Court showed deference to the military’s
judgment and held that the interment was warranted on national security grounds.
Dissent
Justice Murphy saw Japanese exclusion as “falling into the ugly abyss of racism,” and objected
to the Court’s upholding of a plainly racist action.
He used the differing treatments of German and Italian Americans compared to Japanese
Americans to prove that the internments were motivated by racial animus and not military
necessity.
Justice Murphy’s dissent is also the first time the word “racism” appears in a Supreme Court
opinion.
Justice Jackson objects to the level of deference shown to the military by the majority. He
recognizes that the Court may not be able to enforce its decision, but still would rule the
internment to be unconstitutional.
While an unconstitutional military will last for as long as an emergency and may be rescinded
sooner, the Court legitimizing such an action will have lasting consequences. The principle of
racial exclusion in times of emergency then “lies about like a loaded weapon, ready for the hand
of any authority that can bring forward a plausible claim of an urgent need.”
While Korematsu is considered an anti-canonical decision and was overturned in Hawaii v.
Trump in 2018, it is also the first case to hold that strict scrutiny should apply in cases of race
based discrimination.
C. Defining Discrimination “Based On” Race
1. Discriminatory Intention
Loving v. Virginia (1967)
This case is a challenge to Virginia’s anti-miscegenation statute, which banned interracial
marriage. The plaintiffs argue that this statute violates the Equal Protection Clause of the 14th
Amendment. The state argued that it was not a violation, since both parties would be punished
equally.
The Court strikes down the statute as unconstitutional, being in violation of the Equal Protection
Clause.
The court applied strict scrutiny because the Virginia law clearly involved racial classifications.
Applying strict scrutiny, the Court found that the Commonwealth’s justification of preserving
racial integrity was not compelling or even legitimate.
The law is a clear example of a race based distinction, which the Court finds to be inherently
suspect.
Reasons for Strict Scrutiny in Racial Classification
Political Process Rationale: Since racial minorities often lack adequate representation in the
political process, judicial intervention is justified so such groups can have their rights protected.
Immutable Characteristic: Since race is a characteristic beyond the control of the individual, it is
unfair to burden someone on the basis of race.
Facially Neutral Laws
A law does not have to be discriminatory on its face to be a violation of the Equal Protection
Clause. A facially neutral law can be unconstitutional if it was passed with a discriminatory
intent.
Ho Ah Kow v. Nunan (1879)
This case was a challenge to a San Francisco ordinance that required all men in county jail to
have their heads shaved. The law does not specify any racial categories, but was passed to target
Chinese men, because it was a custom at the time for Chinese men to shave the front of their
scalp and keep the remaining hair in a long braid or queue.
The Court held that the ordinance was a violation of the Equal Protection Clause, because the
law imposed a cruel and demeaning punishment to a person under the jurisdiction of the United
States.
Although the law was facially neutral, it was commonly understood as targeting Chinese men,
being colloquially known as the “Queue Ordinance.”
Facially Neutral Law Without Proof of Race Based Intent
Griggs v. Duke Power Co. (1971)
This case challenged the practices of the Duke Power Company, which required employees have
a high school diploma for its higher paid jobs. While this company policy was facially neutral, it
had the effect of shutting black employees out from higher paid positions.
Title VII of the Civil Rights Act of 1964 outlawed discrimination in employment based on race,
color, religion, national origin or sex. There are exceptions based on bona fide occupational
qualifications.
The Court, ruling on the grounds of Title VII and not the Constitution, held that if job
qualifications have a disparate impact on minority groups, the business must demonstrate that the
qualifications are reasonably related to the job for which the qualifications are required.
Washington v. Davis (1976)
This case is a challenge to the hiring practices of the Washington, D.C. Police Department,
which included test of verbal skills (Test 21) which had a disproportionately negative impact on
black applicants. The plaintiffs sued under both the 5th Amendment Due Process Clause and
Title VII of the Civil Rights Act of 1964, claiming that the tests constituted impermissible
employment discrimination.
The Court that under the Equal Protection Clause a law is not unconstitutional if it has a racially
disparate impact, only if it is passed with a discriminatory motive.
Massachusetts v. Feeney (1979)
This case was a challenge to a Massachusetts law that gave absolute preference for veterans in
hiring for civil service position. At that time, 98 percent of veterans were men, which caused the
law to have a disproportionate impact on women.
The Court held that this law did not violate the Equal Protection Clause because of the law’s
gender neutral language.
2. Race and the Criminal Process
United States v. Clary (1994, Eastern District of Missouri)
This case challenged the 100 to 1 sentencing disparity between possession of crack cocaine and
possession of powder cocaine. 92.6 percent of all violators caught with crack were African
American and the plaintiffs argue that the law was motivated by racial animus, with the
congressional record showing that crack dealers were portrayed as young black men. Thus it is
argued that the sentencing disparity is a violation of the 5th Amendment.
The District Court upheld the constitutionality of the sentencing disparity, stating that Congress
was motivated by the dangerous nature of crack cocaine and not racial animus approving the
sentencing ratio.
The fact that Congress could and did foresee disparate impact on black people is not sufficient to
prove discriminatory intent.
McCleskey v. Kemp (1987)
In this case, a black inmate on death row in Georgia appeals his death sentence, arguing
intentional discriminatory acts by the state. Among the evidence included complex statistical
models that showed that black defendants were four times more likely to be condemned than
white defendants.
The Court held that the statistical evidence did not prove discriminatory intent, because the
disparity did not prove conscious, deliberate bias on the part of law officials involved with the
plaintiff’s case.
The Court holds that disparate impact is not proof of discriminatory intent.
D. Affirmative Action
Affirmative action is a presumptively race based decision, but it is permitted in some
circumstances.
Bakke v. Regents of University of California (1978)
This case is a challenge to the affirmative action program used by the University of California,
which had a mandatory racial quota in admissions at its medical school. The plaintiff challenges
this racial quota as being against both the Equal Protection Clause of the 14th Amendment and
the Civil Rights Act of 1964.
The Court held that strict racial quotas in university admissions violated the Civil Rights Act.
The Court applies strict scrutiny to this case, because of the use of racial classifications.
It is not a compelling interest to remedy past discrimination, unless it is the past discrimination
of an actor’s own past discrimination.
The compelling interest Powell cites is the interest in maintaining a diverse student body. The
means of using a racial quota is not narrowly tailored enough.
The use of race as a plus factor would be narrowly tailored enough, as it would not be a rigidly
applied system that shuts applicants out solely on the basis of race.
City of Richmond v. J.A. Croson Co. (1989)
The Court held that the city of Richmond’s minority set aside program, which set aside 30
percent of city contracts to minority business enterprises, was in violation of the Equal Protection
Clause.
The city failed investigate any race neutral methods that could rectify the problem of a lack of
minority owned construction businesses and the 30 percent goal did not actually correspond to
any actual measured injury.
Adarand Constructors, Inc. v. Pena (1995)
This case was a challenge to the requirement that federal contractors give a certain amount of
contracts to “disadvantaged” businesses, typically those owned by racial minorities or women.
The Court held that racial qualifications used by the federal government must be narrowly
tailored to further a compelling government interest. Reverse incorporation of the Equal
Protection Clause was used to hold the federal government to the same standard as the states.
Grutter v. Bollinger (2003)
This case was a challenge to the affirmative action program in place at the University of
Michigan Law School. The plaintiff argued that the school, in seeking to ensure a “critical mass”
of students from minority groups, were operating a disguised quota system. The University
argued that achieving this critical mass was a compelling government interest.
The Court held that the school’s interest in obtaining “critical mass” was a compelling interest
and the means the university used were narrowly tailored. As such, the school’s admissions
system satisfied strict scrutiny.
The Court did state that affirmative action should not be allowed to persist, in the interest of
creating a colorblind society. The Court predicts that the use of racial preferences in admissions
would no longer be necessary in 25 years.
Dissent
Justice Thomas holds that the use of racial preferences in the admissions process of a state school
is a violation of the Equal Protection Clause and will be just as illegal in 25 years as it is at the
moment of the decision.
The court ignored the fact that more narrowly tailored programs create equally diverse
classrooms and that there is evidence that the university was operating on a quota like system.
VIII.
Gender Classifications and Gender Equality
A. The Intermediate Scrutiny Standard
Prior to the 1970s the court applied a rational basis test to laws that distinguished on the basis of
sex. This changed as a result of political and social changes that changed the role of women in
society.
Fronteiro v. United States (1973)
This case is a challenge to a Department of Defense policy that allowed wives of servicemen to
get automatic access to benefits, but did not allow the husbands of servicewomen to collect such
benefits unless they were dependent upon their wives for more than half of their support. The
DOD argued that this sex based distinction was necessary for administrative convenience.
The Court held that legislation that drew sharp distinctions between the sexes could not be
constitutionally justified simply on the basis of administrative convenience. The court did not
apply a clearly standard of review, but did apply more than a rational basis test.
Justice Brennan wanted strict scrutiny to be applied, but the rest of the Court decided not to
apply strict scrutiny because the pending Equal Rights Amendment would have made such
application automatic.
The Court’s decision to defer to the political process meant that strict scrutiny would not become
the standard of review used in sex discrimination cases.
Intermediate Scrutiny
Instead, sex discrimination cases apply the intermediate scrutiny standard of review first applied
in Craig v. Boren (1976).
To satisfy intermediate scrutiny a the law or policy being challenged must further an important
government interest by means substantially related to that interest.
United States v. Virginia (1996)
This case is a challenge to the all-male admissions policy of the Virginia Military Institute. The
4th Circuit had ordered VMI to either allow women admission, create a separate academy for
women or not take state funding. VMI chose the second option, but the academy for women was
less prestigious and of a lower quality than VMI.
The Court held that the exclusion of women from VMI was unconstitutional under the Equal
Protection Clause. The Court applied intermediate scrutiny.
The form of intermediate scrutiny that the Court applied, however, was one in that required the
showing of exceedingly persuasive justification for a government action.
Justice Scalia’s lone dissent argues that this requirement is closer to strict scrutiny than it is to
intermediate scrutiny, while not following the standard of either of these levels of scrutiny.
B. What is Discrimination “On the Basis of Sex”
Massachusetts v. Feeney (1979)
The Court held that the absolute preference for veterans was not unconstitutional under the Equal
Protection Clause.
The Court applied intermediate scrutiny and found that the hiring of veterans to reintegrate them
into society was an important government interest and the absolute preference was substantially
related to this interest.
The policy, according to the majority, does not in any way intend to discriminate on the basis of
sex.
Dissent
The dissent, in applying strict scrutiny, would find that the policy was not narrowly tailored to
the reintegration of veterans into society.
This is both because the policy grants all veterans, no longer how far removed they are from their
service, preference and that the preference is absolute when using veteran’s status as a plus factor
would achieve the same result.
Additionally, the dissenters hold that the proof of discriminatory intent should come from the
fact that the veteran’s absolute preference would have an obvious negative impact on female
applicants, since only 2 percent of women in MA were veterans.
Geduldig v. Aiello (1974)
This case was a challenge to a California state-run disability insurance program that does not
cover pregnancy related injuries that occurred in the absence of complications. The State of
California justified this exclusion injuries from normal pregnancy because it saved the program
money.
The Court held that this was not discrimination on the basis of sex because it did not limit access
to benefits for all women. The Court applied a rational basis test for discrimination based on
pregnancy or childbirth and found that California’s actions were a reasonable way to save the
system money.
Title VII and Pregnancy
Under Title VII of the Civil Rights Act, discrimination based on pregnancy or childbirth is
barred and courts are to apply strict scrutiny to such claims.
Nevada Dept. of Human Resources v. Hibbs (2005)
This case is a challenge to the Family Medical Leave Act of 1993, which the plaintiff argues was
an unconstitutional exercise of congressional power under Section 5 of the 14th Amendment, in
that it allowed states to be sued, contrary to the sovereign immunity guaranteed to the states in
federal court by the 11th Amendment and can only be abrogated by valid exercise of
congressional powers under Section 5 of the 14th Amendment.
The Court held that the FLMA was a valid exercise of congressional power under Section 5 of
the 14th Amendment, and as such the Act could validly override state sovereign immunity.
The FLMA was a valid exercise of Congressional power because it was passed in order to
remedy sex based discrimination by the states. The sex based discrimination in question was the
failure of the states to allow paternity leave.
Although this case did not overturn Geduldig, the logic used by the majority stands in diametric
opposition to the logic of that prior decision.
IX.
Modern Substantive Due Process: Privacy, Sexual Autonomy, Guns, Tradition
A. Privacy Constitutionalized
Fundamental Rights: These are rights that are protected under the 14th Amendment and are
incorporated against the states. For a right to be fundamental, it must be implicit in the concept
of ordered liberty or deeply rooted in the history and tradition of this Nation.
Fundamental rights doctrine was a workaround to the limitations on privileges and immunities
imposed by the Slaughterhouse decision, allowing the Court to incorporate sections of the Bill of
Rights to apply to the states under the Equal Protection and Due Process Clauses.
Skinner v. Oklahoma (1942)
The Court struck down an Oklahoma statute that required repeat offenders to be sterilized,
holding that the right to marry and procreate were fundamental rights.
Griswold v. Connecticut (1965)
This case was a challenge to the Connecticut law that outlawed contraception. It was argued that
the Connecticut law was against the 14th Amendment’s Due Process Clause. Connecticut claims
the law is justified because it furthers the end of preventing adultery.
The Court held that the Connecticut law was unconstitutional, violating the fundamental right to
privacy, which was first applied in this case.
The right to privacy is not explicitly provided for in the Bill of Rights, but is an unenumerated
right that emerges from the “penumbras and emanations” of the Fifth Amendment right against
self-incrimination and the First Amendment right to free association.
Justice Goldberg holds that the right to privacy was a right that was retained by the people under
the Ninth Amendment, which presupposes the existence of rights not enumerated in the Bill of
Rights.
The Court holds that privacy in the marital relationship is a fundamental right, given the
importance of the marital relationship in society. Restricting the use of contraceptives by married
couples is not narrowly tailored to the state end of preventing adultery.
Dissent
Justice Black, although in disagreement with the Connecticut law as a matter of policy, cannot
find Constitutional grounds on which to invalidate it.
Black argues that the Constitution does not contain a right to privacy and criticizes the majority’s
interpretation of the Ninth and Fourteenth Amendments.
In particular, Black is perturbed by the Court embracing substantive due process and sees this as
a return to the Lochner era, where the Court dictated matters of policy to the states in accordance
with their own views.
The right to privacy in sexual relationships was expanded to unmarried couples in Eisenstadt v.
Baird (1972).
Level of Abstraction
Michael H. v. Gerald D. (1989)
In this case, Michael had an affair with Gerald’s wife Carole, who gave birth to Victoria, who
was Michael’s biological daughter, but Gerald’s legal daughter. Michael was denied visitation
rights by a California family court and argues that as Victoria’s biological father, he has a
fundamental right to paternity over Gerald.
The Court held that an adulterous natural father does not have a fundamental right to assert
paternity over the marital father. Justice Scalia held that under the traditions of the Nation, such a
man does not have a fundamental right to paternity rights, given the importance of the unitary
nature of the family.
Scalia’s Footnote (joined by Rehnquist, explicitly repudiated by Kennedy and O’Connor)
Scalia proposes a rule that would require the most specific applicable right be advocated for be
applied to the analysis, in order to avoid judicial overreach.
The protection of a fundamental right often requires it to be stated in the broadest terms possible,
thus Scalia’s proposal would make it difficult for the Court to find violations of fundamental
rights.
B. Abortion, Autonomy, Equality
Roe v. Wade (1973)
This case is a challenge a Texas law that outlawed abortion. The plaintiff challenged this law
under the right to privacy found under the Due Process Clause of the 14th Amendment. Texas
claimed the compelling interests of protecting maternal health and protecting future life were
furthered by its anti-abortion law.
The Court held that a woman had a fundamental right to access abortion, which meant that any
regulations of such a right would have to satisfy strict scrutiny. The Court created a trimester
framework to balance the fundamental rights of the woman and the interests of the state in
protecting fetal life and maternal health.
In the first trimester of pregnancy, the states can pass no laws that restrict access to abortion,
because neither maternal health nor the life of the fetus is a compelling state interest at that time,
leaving the decision to the woman and her doctor.
From the end of the first trimester of pregnancy to the point of fetal viability, protecting maternal
health became a compelling interest of the state, allowing for the state to make regulations
reasonably related to protecting maternal health.
At the point of viability, the third trimester, the state interest of preserving potential life becomes
compelling and states can regulate or even ban late term abortions as long as there was an
exception for cases where the mother’s life was in danger.
Dissent
The dissent does not see a privacy right and believes that the Court fashioned this right using
substantive due process and engaged in judicial activism.
Criticisms of Roe
The decision in Roe was controversial both politically and legally. Politically the decision
inspired a conservative, anti-abortion backlash and abortion became a politically salient issue.
Legal scholars and judges, including some who agree with the result, have criticized the decision
on multiple grounds.
Archibald Cox, Watergate Prosecutor and Contemporary: "[Roe's] failure to confront the issue in
principled terms leaves the opinion to read like a set of hospital rules and regulations.... Neither
historian, nor layman, nor lawyer will be persuaded that all the prescriptions of Justice Blackmun
are part of the Constitution."
Ruth Bader Ginsburg: "[Roe was] about a doctor's freedom to practice his profession as he thinks
best.... It wasn't woman-centered. It was physician-centered.
John Paul Stevens: Roe should have been decided solely on the privacy issue and the trimester
framework was not as acceptable from a legal standpoint and should have been avoided.
William Saletan, Liberal Journalist: "Blackmun's [Supreme Court] papers vindicate every
indictment of Roe: invention, overreach, arbitrariness, textual indifference."
John Hart Ely, Professor, Yale School of Law: Roe "is not constitutional law and gives almost no
sense of an obligation to try to be…What is frightening about Roe is that this super-protected
right is not inferable from the language of the Constitution, the framers’ thinking respecting the
specific problem in issue, any general value derivable from the provisions they included, or the
nation's governmental structure."
Lawrence Tribe, Professor, Harvard School of Law: "One of the most curious things about Roe
is that, behind its own verbal smokescreen, the substantive judgment on which it rests is nowhere
to be found."
Planned Parenthood v. Casey (1992)
This case was a challenge to several abortion laws passed by the Commonwealth of
Pennsylvania that restricted women’s access to abortion. This laws included requiring doctors to
give women informed consent, requiring spousal notice and parental consent for minors. These
laws were challenged on the grounds that they improperly regulated a woman’s fundamental
right to abortion.
The majority of the Court upheld the central holding of Roe, that access to abortion is a
fundamental constitutional right that touches on “intimate and personal choices…central to
dignity and personal autonomy.” Applying the undue burden standard, the Court struck down the
spousal consent requirement but upheld the other two laws.
Casey and Stare Decisis
The Court holds that stare decisis has to apply to the core holdings of Roe because of reliance
interests. The Court holds that many people have ordered their lives around the possibility of
getting an abortion and that taking away that right would be unfair.
Past decisions can be overturned only when society’s understanding of certain rights have
changed, such as separate but equal.
The Court is also worried about legitimacy, feeling that the Court should not merely overturn
past decisions because of political pressure. Overturning too many cases would also strain the
public’s faith in the courts, since only so much error can be imputed to past courts.
The Court feels that overturning too many past decisions makes it appear that the Court is
responding to outside pressures and personnel changes and not making principled decisions.
The Court abandoned the trimester framework from Roe, and created the undue burden standard.
Under this, the state can regulate abortions at any point from viability and beyond without
restrictions, and can regulate access to abortions so long as the regulation does not create an
undue burden on the woman.
It was held that the spousal notification requirement placed an undue burden on women because
is exposed some women to the threat of domestic violence and retaliation and gave a husband
veto power over his wife’s choice.
The other laws are upheld as not being an undue burden.
Dissent
Roe was wrongly decided and the Court should have struck it down entirely instead of heavily
modifying it.
There is no fundamental right to privacy issue in relation to abortion, if there even is a
fundamental right to privacy at all.
The standard of review for abortion cases should be rational basis.
Abortion cannot be a fundamental right because there is no long standing tradition of treating it
as such in American society. In fact, the opposite is true, since traditionally, American states
were allowed to legally proscribe abortion.
Gonzales v. Carhart (2007)
This case was a challenge to the Partial-Birth Abortion Ban Act of 2003, which banned the lateterm termination of pregnancy via intact dilation and extraction, colloquially referred to as partial
birth abortions, if it affects interstate or foreign commerce. The Act was passed by Congress on
Commerce Clause grounds, but was challenged by the defendant on Due Process grounds, in that
it created an undue burden to a woman’s fundamental right to access abortion.
The Court held that the PBABA did not create an undue burden to a woman’s right to access an
abortion. The Court states that it is assuming that the holdings of Roe and Casey are valid for the
sake of this decision, implying some justices do not think they are valid.
The Court found that a central holding in Casey was that the state had an interest in protecting
fetal life and that this law was furthering this interest in a manner that did not impose an undue
burden.
The Court showed a high level of deference to Congressional findings that stated that D&X
procedures were never needed to protect women’s health, even when the District Court found
contrary evidence.
Instead, the Court found Congress could regulate as they pleased on the subject when the
medical community had not yet reached a consensus.
The concurrence by Justices Thomas and Scalia question whether Congress could justify such a
law on Commerce Clause grounds, but do not rule on those grounds since the issue never came
up.
The two concurring Justices also state that current abortion jurisprudence has no basis in the
Constitution.
Whole Woman’s Health v. Hellerstedt (2016)
This case was a challenge to a Texas law, House Bill 2, that required doctors who performed
abortions to have admitting privileges at a hospital with in 30 miles of the clinic and that
abortion clinics meet the same standards as outpatient surgical facilities, which would require
upgrades to the facilities and their staff. This had the effect of cutting the number of abortion
clinics in the State of Texas by more than half. Texas claims that the laws are motivated by an
interest in maintaining the safety of women receiving abortions, while Whole Woman’s Health
claims that it is motivated by creating undue restrictions to abortion access.
The Court holds that Texas cannot place undue burdens on the delivery of abortion services and
that the challenged provisions of H.B. 2 did just that.
This is because the Court found that this restrictions prevented women from exercising their right
to access pre-viability abortions and that the laws were not justified on the grounds of protecting
the health of the women.
Undue burden is described as being one which creates substantial obstacles to abortion access.
C. Sexual Orientation/Identity
Bowers v. Hardwick (1987)
This case was a challenge to a Georgia statute that outlawed sodomy, both by heterosexuals and
homosexuals and called for 1 to 20 years of imprisonment for violations. Hardwick was caught
engaged in homosexual acts by a police officer who was serving a warrant, and was subsequent
arrested, although the charges were later dropped. The plaintiff claims that such laws violated the
right to privacy.
The Court rejects the plaintiff’s argument that anti-sodomy laws violate the right to privacy and
holds that there is no fundamental right to engage in homosexual acts.
This is because there is no historical precedent such a right being deeply rooted in the history and
tradition of the Nation or implicit in the concept of ordered liberty. Justice White brusquely
dismisses such an argument as “facetious at best.”
He also adds a slippery slope argument, that if the state isn’t allowed to punish homosexual acts
that occur within the home, the state wouldn’t be able to punish any sex crime that occurred
within a home.
Justice Powell concurs with the decision, but has 8th Amendment concerns about the possibility
of 20 year sentence for a consensual act.
Dissent
Justice Blackmun argues that the majority is willfully blind to the privacy issues in this case,
stating that sexual intimacy is “a sensitive, key relationship of human existence, central to family
life, community welfare, and the development of human personality.” As such the right to
privacy should be extended to it.
Justice Stevens wrote a separate dissent about the state’s selective enforcement of the law against
only homosexuals, since previous Court decisions declared the right to privacy in heterosexual
relationships.
Romer v. Evans (1996)
This case is a challenge to Amendment 2, an amendment to the Colorado Constitution passed by
referendum that forbade the passage of anti-discrimination laws for gays and lesbians by
localities. The State of Colorado claims that they are preventing gays from obtaining special
treatment, while the plaintiffs argue it is a violation of the Equal Protection Clause of the 14th
Amendment.
The Court held that Amendment 2 did not satisfy even a rational basis review and was an
unconstitutional denial of equal protection of the law to gay residents of Colorado.
Justice Kennedy states that the law’s purpose was not to ensure that gay people did not get
special treatment. Instead the amendment denied gay people protection of laws that protect other
minority groups from arbitrary discrimination.
Such a resulting disqualification of a class of people from protection of the laws is
unprecedented in the Court’s jurisprudence and that animus towards gay people is the only
possible explanation for such a sweeping and broad provision.
This imposition of a disadvantage on a single minority group on the basis of animus is not even a
legitimate government interest. As such, Amendment 2 does not even meet the rational basis test.
Dissent
Justice Scalia argues that the Court’s decision in this case is inconsistent with the decision in
Bowers. This is because if it is legitimate to criminalize homosexual acts, then it should be
legitimate to deny “special protection” to anyone with a propensity for such acts.
Scalia argues that the Court is engaging in judicial activism and picking a side in the culture
wars.
Lawrence v. Texas (2003)
This case is a challenge to a Texas law that outlawed “deviant sexual intercourse with
individuals of the same sex. The case was argued both on Equal Protection grounds, in that it
targeted only homosexuals and on liberty and privacy grounds, in a direct attempt to overturn
Bowers.
The Court held overturned Bowers, holding that homosexuals had a protected liberty interest to
engage in private sexual activity and that moral disapproval of such an activity was not a
legitimate justification to criminalize such activity.
The issue in question is not the mere question of whether the right to have homosexual sex is a
fundamental right, but whether homosexuals have a fundamental right to privacy like
heterosexuals do.
The right to privacy had previously been used to protect the sexual autonomy of heterosexuals
from government intrusion and the Court is extending that same right to homosexuals.
While traditional conceptions of liberty are important, the Court should consider developing
mores when considering fundamental rights.
While condemnation of homosexuality is firmly rooted in Judeo-Christian morality, it was never
a long standing legal tradition in the United States, and the majority cannot use their control of
the criminal justice apparatus to uphold or enforce such views.
Additionally, recent trends in the United States and the Western world show a trend of increased
decriminalization and tolerance.\
In sum: Bowers was wrong when it was decided and was even more wrong when it was
overturned.
Dissent
Justice Scalia criticizes the majority for not adhering to the rigid application of stare decisis
called for in Casey, calling their application of it opportunistic and inconsistent.
Additionally, he argues that there is a long standing tradition of recognizing that homosexuality
is wrong and that any repeal of such laws should occur through the democratic process.
Additionally, Scalia believes that this too is an activist decision, motivated by the legal
profession’s embrace of the so-called “homosexual agenda.”
Scalia believes that it is a matter of time before the Court sanctions gay marriage, like the
Canadian Supreme Court had done shortly before this decision.
United States v. Windsor (2013)
This case was a challenge to the Defense of Marriage Act of 1996, which defined marriage as
being between one man and one woman for the purposes of federal law, thereby denying
recognition to state sanctioned same-sex marriages. The plaintiff argues that DOMA violates the
Due Process Clause of the 5th Amendment.
The Court ruled that DOMA was unconstitutional, although the exact grounds on which it was
struck down were unclear.
On one hand, it was argued that DOMA denied couples in same sex marriages equal protection
of the law, in violation of the reverse incorporated equal protection requirement of the 5th
Amendment Due Process Clause.
On the other hand, the Court also held that the federal government was acting contrary to
federalism interests by not recognizing state sanctioned marriages as valid. This is because it is
the states that have the police power to regulate marriage and not the federal government.
The decision continues that denying recognition of same-sex partnerships is denying
homosexuals equal dignity compared to the rest of the population.
Dissent
Justice Scalia vociferously objected to the decision, claiming that the Court should be involved
in this case. In particular he criticized the Obama administration for continuing to enforce
DOMA while failing to defend it.
He additionally criticized the muddled reasoning of the majority and accuses them of engaging
judicial activism.
Additionally, Scalia claims that the decision effectively characterizes those who are opposed to
same-sex marriage as “enemies of the human race.
In allegedly characterizing opponents of same-sex marriage as being opposed to human decency,
Scalia believes that the Court has given an argument to opponents of same-sex marriage bans at
the state level.
Obergefell v. Hodges (2015)
This case is a challenge to state level bans on same-sex marriage on the grounds of the Due
Process and Equal Protection Clauses of the 14th Amendment.
The Court held that the fundamental right to marry is guaranteed to same-sex couple under the
Due Process and Equal Protection Clauses of the 14th Amendment. As such, all fifty states, the
District of Columbia and the Insular Areas are required to perform and recognize same-sex
marriages on the same terms as marriages of opposite-sex couples, with all of the accompanying
rights and responsibilities.
The Court cited both Loving v. Virginia, which recognized marriage as a fundamental right and
Lawrence v. Texas, which recognized the right to privacy interest in sexual autonomy for all
consenting adults, regardless of sexual orientation as precedential for finding a fundamental right
for all to marry, regardless of sexual orientation.
Bans on same sex marriages significantly burdened the liberty and equality of same-sex couples,
denying them access to benefits and legitimacy offered to opposite-sex couples. Such bans were
found to violate both the Due Process and Equal Protection Clauses on these grounds.
The Court justified in intervening in this case because of the substantial and continuing harm and
instability and uncertainty caused by differing marriage laws between the states. While the Court
recognizes the importance of the democratic process, protection and recognition of fundamental
rights should not be left to the whims of the democratic process.
The majority dismisses arguments that allowing same-sex marriage will harm the institution of
marriage through the severing of the tie between marriage and procreation, since elderly and
infertile people are allowed to marry.
The majority points out that opponents of same-sex marriage will be protected by the First
Amendment, and will still be allowed to freely express their opposition.
Dissent
Each dissenting Justice wrote separate opinions, on which some other dissenters joined.
The recognition of same-sex marriage has no constitutional basis, and the majority is stretching
the recognition of substantive rights to the breaking point. (Roberts)
The dissenters see implications for religious liberty and believe that the opinion’s language
unfairly attacks opponents of same-sex marriage. (Roberts)
A ban on same-sex marriage would not have been considered to be a violation of the 14th
Amendment at the time that it was adopted. (Scalia)
Same sex marriage is not a fundamental right because it is not rooted in the traditions and history
of the nation (Alito)
The principle of substantive due process is to be rejected because it “invites judges to do exactly
what the majority has done here—roam at large in the constitutional field guided only by their
personal views as to the fundamental rights protected by [the Constitution].” (Thomas and
Scalia)
Additionally liberty has historically meant freedom from government action, not a right to a
government entitlement. (Thomas and Scalia)
Justice Scalia also criticized the Justice Kennedy’s use of rhapsodic prose in his decision,
comparing it to the “mystical aphorisms of a fortune cookie.”
D. Guns and “Self-Defense”
Second Amendment: A well-regulated militia being necessary to the security of a free state, the
right of the people to keep and bear arms shall not be infringed
Historical Interpretations of the Second Amendment
United States v. Cruickshank (1876)
The Supreme Court refused to apply the 2nd Amendment to the states holding that:"The right to
bear arms is not granted by the Constitution; neither is it in any manner dependent upon that
instrument for its existence. The Second Amendment means no more than that it shall not be
infringed by Congress, and has no other effect than to restrict the powers of the National
Government."
United States v. Miller (1939)
The Supreme Court upheld the National Firearms Act of 1934, which required short barreled
shotguns and automatic weapons be registered with the ATF and a $200 tax be paid if the
weapon were ever sold.
This was because it was held that the Second Amendment does not protect those weapons that do
not have “reasonable relationship to the preservation or efficiency of a well-regulated militia.”
District of Columbia v. Heller (2008)
This case was a challenge to the Firearms Control Regulation Act of 1975, which banned
handguns from the District of Columbia, only allowing the possession of rifles and shotguns in
the home, provided that these weapons were left “unloaded and disassembled or bound by a
trigger lock.” The lead plaintiff, Dick Heller, was a licensed police officer who could carry a
handgun at work, but couldn’t keep one in his home.
The Court holds that the right to bear arms is an individual right of the “people” unrelated to
service in the militia, and the 2nd Amendment protects the use of that arm for traditionally legal
purposes, such as self-defense.
As a result, the handgun ban and the requirement of keeping rifles and shotguns unloaded and
disassembled were in violation of the Second Amendment.
Scalia looks back to the history of the right to bear arms, looking at the Anti-Federalist’s fears of
the government disarming the people, the interpretation of the 2nd Amendment from the
founding to the 19th century by courts, legislators and scholars and early drafts that 2nd
Amendment to prove that it was originally understood to be an individual right.
The 2nd Amendment right is not unlimited. It is not a right to keep and carry any weapon
whatsoever in any manner whatsoever and for whatever purpose.
Examples of valid restrictions include:
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Concealed carry bans
Barring felons and the mentally ill access to firearms
Laws forbidding the carrying of firearms in sensitive places, such as schools or
government buildings
Imposing conditions and qualifications on commercial sale of firearms
Banning the carrying of dangerous or unusual weapons (a la Miller)
Scalia comes up with a common use standard to justify bans on dangerous or unusual weapons
from civilian possession, such as machine guns or other military grade weaponry.
The handgun ban and trigger lock requirement is an unconstitutional infringement on the right to
self-defense and to bear arms and would fail to pass constitutional muster under any standard of
review.
This is because both requirements impose harsh restrictions on the use of commonly used arms
in the home for self-defense. This is especially acute given the importance of self-defense in the
home.
Dissent
Justice Stevens criticizes Justice Scalia’s reading of the Amendment and views the right to bear
arms as being contingent upon service in the militia and was thus a collective right.
Like Scalia, Stevens is able to find sources from around the time of the founding to bolster his
viewpoint that the founders did not recognize the right to bear arms as an individual right, but
instead as a collective one.
Additionally, Stevens believes that the decision in Miller endorses a collective right
interpretation of the 2nd Amendment, and that stare decisis should apply.
McDonald v. Chicago (2010)
This case is a challenge to an ordinance by the City of Chicago that banned the possession of
handguns. This was challenge on 2nd Amendment grounds, with the hope that the 2nd
Amendment would be incorporated against the states as a fundamental right.
The Court held that the 2nd Amendment right to keep and bear arms for self-defense was a
fundamental right applicable to the states by the Due Process Clause of the 14th Amendment. As
such, the City of Chicago’s ordinance was unconstitutional.
The firearms mentioned in the Heller decision are assumed permissible and are not directly dealt
with in this case.
Much like in Heller, the Court holds that the right to bear arms is not an unqualified or
unrestricted right, and cites the regulations cited in that case as being valid.
Dissent
Justice Stevens dissents, citing Cruikshank, stating that “The so-called incorporation question
was squarely and, in my view, correctly resolved in the late 19th century,” when that case
refused to incorporate the 2nd Amendment.
Justice Breyer wrote: "In sum, the Framers did not write the Second Amendment in order to
protect a private right of armed self-defense. There has been, and is, no consensus that the right
is, or was, 'fundamental.'"