Constitutional Law Outline | Spring 2019
Bobbit’s Modalities: The mode Justices use when interpreting the
Constitution. These methods may be characterized as the forms of
constitutional argument or the modalities of constitutional interpretation.
1. Textual – which looks to the meaning of the words of the Constitution,
as an average contemporary American would interpret them today.
2. History – Which relies on the original intentions of the ratifiers of the
Constitution
3. Structural – which infers rules from the relationships that the
Constitution mandates between the structures it sets up.
4. Doctrine – which generates and applies rules from precedent.
5. Ethos – which derives rules from those morals and political
commitments of the American ethos that are reflected in the
Constitution.
6. Prudence – which balances the cost and benefits of a proposed rule,
“Strict Construction” consists of an exclusive reliance on the first three
forms.
I: Introduction: The Marshall Court and the Federal
Constitution.
A. The Constitution of the United States pg. 1-15 BLBAS (photocopy)
B. Interpreting the New Constitution: How and by Whom?
1. The Scope of Congressional Powers
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McCulloch v. Maryland (1819) (pg. 240)
Defined the scope of the US Congress legislative power and how it
relates to the state legislatures. The dispute in McCulloch involved
the legality of the national bank and a tax that the state of
Maryland imposed on it. In it’s ruling the Supreme Court
established that the “Necessary & Proper” clause of the Const. gives
the federal government certain implied powers that are not
explicitly enumerated in the Constitution and secondly that the
American federal government is supreme over the states, and so
states ability to interfere with the federal government is limited.
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The case established two important principles in constitutional law.
First, the Constitution grants to Congress implied powers to
implement the Constitution’s express powers to create a functional
national government.
Prior to the Supreme Court decision in McCulloch, the scope of the
U.S. government’s authority was unclear. Second the state action
may not impede valid constitutional exercises of power by the
federal government.
Marshall: (1) Yes, Congress had the constitutional power to charter
the Bank of the United States. This power is ultimately derived
from the Constitution’s grant to Congress of the general power to
“tax ad spend” for the general welfare. Congress is also given
general powers under the Necessary and Property Clause. (Art. 1
§8), functions to expand not limit Congress’s enumerated powers.
 A federally created institution because
federal laws are supreme to state law.
 *** Remember 10th amendment is but a
truism.
2. Judicial Review
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Marbury v. Madison (1803) “Who Decides?”
This case established the power of the Supreme Court to review the
constitutionality of federal executive actions and of federal statutes.
The Courts landmark decision established that the US constitution
is actual law not just a statement of political principles and ideals
and helped define the boundary between the constitutionality
separate executive and judicial branches of the American form of
government.
The Court held firstly that Madison’s refusal to deliver Marbury’s
commission was illegal, and secondly that it was normally for a
court in such situation to order the government official in question
to delivery the commission.
Judiciary Act of 1789 to establish the American federal court
system, since Art. III. After ruling that it conflicted with the
constitution, Marshall struck down the relevant portion of the Act.
Marshall ruled that American federal courts have the power to
refuse to give any effect to congressional legislation that is
inconsistent with their interpretation of the Constitution- a move
known as “striking down” laws.
 “It is emphatically the province and duty of the
judicial department to say what the law is”.
 Martin v. Hunter’s Lesse – Justice Story argued that
the Constitution presumed that the Supreme Court
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could review state court decisions. Story argued that
the Constitution creates a Supreme Court and gives
Congress discretion whether to create lower federal
courts. But if Congress chose not to establish such
tribunals then the Supreme Court would be powerless
to hear any cases, except for the few that fitting within
its original jurisdiction, unless it could review state
court rulings
 Supreme court review is essential to ensure
uniformity in the interpretation of the federal
law. The judiciary has the authority to review
the constitutionality of laws and executive acts.
3. Presidential Interpretation
Who should be the authoritative interpreter of the constitution?
 All government officials and institutions are required to engage
in constitutional interpretation.
 The executive must consider the constitutionality in deciding
what laws to propose, which bills passed by the legislature to
veto and what executive policies to implement.
 Three possible approaches of who should be the authoritative
interpreter of the constitution. (CHEM pg. 26-30)
 1. No Authoritative Interpreter – Each branch of the government
would have equal authority to determine the meaning of
constitutional provisions and conflicts would be resolved through
political power and compromise.
 2. Each Branch is Authoritative in Certain Areas – For each part
of the Constitution one branch of govt is assigned the role of
being the final arbiter of disputes, but it is not the same branch
for all parts of the constitution.
 Ex: Challenges to the president’s conduct of foreign
policy such as whether the Vietnam war was
constitutional pose a political question not to be
resolved by the judiciary. By declaring a matter to
be a political question, the Court states that it is for
other branches of government to interpret the
constitutional provisions in questions and determine
whether the Constitution is violated.
 The effect of the political question doctrine is that
for each part of the constitution there is a final
arbiter, but it is not the same branch for all
constitutional provisions.
 3. The Judiciary is the Authoritative Interpreter.
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The phrase presidential veto does not appear in the US Const,
but Art I, §7 requires every bill, order, resolution or other act of
legislation approved by Congress to be presented to the President
for their approval.
After that is done, there are several scenarios in which a bill may
or may not be enacted into law.
 The president may sign the bill within 10 days
(excluding Sundays). This enacts the bill into law.
 The president may return the bill to Congress with
a statement of objections within 10 days (excluding
Sundays). This is a "veto."
 If the president vetoes a bill, the president's
objections shall be considered by the Congress. Each
house may vote to override the president's veto. If
2/3 of each house agree to override the president's
veto, the bill is enacted into law.
 The president may do nothing, and after 10 days
(excluding Sundays) if Congress has not yet
adjourned, the bill is enacted into law.
 The president may do nothing, and if Congress
adjourns before the 10th day (excluding Sundays),
the bill is not enacted into law. This is known as
"pocket veto". (It can't be overridden)
 A pocket veto occurs when a bill fails to
become law because the president does not
sign the bill and cannot return the bill to
Congress within a 10 day period because
Congress is not in session
4. The Jacksonian Era & Slavery
“Using Natural Law to Protect Property”
Calder v. Bull (1798) CHEM pg, 636
This cases in which the court decided four important points of
constitutional law.
 1. Ex post facto clause in the US constitution applies only to
criminal laws that have at least one of four effects.
 1st. Every law that makes an action done before the
passing of the law, and which was innocent when
done, criminal; and punishes such action.
 2nd. Every law that aggravates a crime, makes it
greater than it was, when committed.
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3rd. Every law that changes the punishment, and
inflicts a greater punishment, than the law annexed
to the crime, when committed.
 4th. Every law that alters the legal rules of
evidence, and receives less, or different, testimony,
than the law required at the time of the commission
of the offence, in order to convict the offender
2. The Supreme Court lacks the jurisdiction to determine that
any law of any state Legislature is contrary to the Constitution of
that state.
3. No man should be compelled to so what the laws do not
require; not to refrain from acts which the laws permit.
4. Not a violation of the ex post facto clause if there is not fact
done by Bull, that is in any manner affected by the law or
resolution of Connecticut: it does not concern, or relate to any act
done by them.
Natural Law: is a philosophy asserting that certain rights are
inherent by virtue of human nature, endowed by nature
traditionally by God; and that these can be understood
universally through human reasons.
Majority Opinion: Judges ought to rely on natural law when
making their decisions.
Iredell Concurrence: courts cannot strike down statutes based
only upon principles of natural justice: the ideals of natural
justice are regulated by no fixed standard: the ablest and the
purest men have differed upon the subjects; and all that the
Court could properly say in such an event would be that the
legislature had passed an act which in the opinion o the judges
was inconsistent with the abstract principles of natural justice.
 The court cannot pronounce something void merely
because it is in their judgment contrary to the
principles of natural justice.
 Unresolved Question – what to do with natural
laws: what should the court do if confronted with a
statute that violates natural laws?
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Fletcher v. Peck (1810)
A majority of the Georgia legislature was bribed in 1795 to convey
approximately 35 million acres of state land to private companies at a
bargain price. The following year, Georgia’s legislature rescinded the
grant. However, large parcels of the land had already been sold to
investors. A lawsuit was filed based on warranty of title to determine
whether the 1796 rescission could affect the rights of one of the
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purchasers of the land. The United States Supreme Court took up the
question.
Can a state legislature take away rights that have vested by repealing
a law that is essentially a contract?
Supreme court ruled that state legislatures repeal of the law was
unconstitutional. The sale of a binding contract cannot be invalidated
even if it is illegally secured.
 Court refers to general principles, states can’t impair
obligations of contracts; property is a fundamental
element of freedom; property rights are vested. The
government interfering with vested rights in
unconstitutional.
 Additionally, the Contracts Clause of the United States
Constitution prohibits state legislatures from passing
laws that retroactively impair private contract rights. The
1795 conveyance of state land was a contract that cannot
be set aside under the Contracts Clause. The Contracts
Clause does not contain any exception for contracts where
the state is a party. In fact, the Contracts Clause can be
viewed as evidence that the founders of the United States
were concerned about rash decisions of state legislatures
and adopted the Contracts Clause to guard against these
sudden actions.
 Therefore, the Georgia legislature does not have the
authority to affect the rights of these third-party
purchasers, without notice of the fraud, based on both the
general principles of law and the Contracts Clause of the
United States Constitution. The judgment of the circuit
court is affirmed.
CHEM 720-22: NOTE OF SLAVERY
 Prior to the adoption of the 13th amendment, slavery was
constitutional. Prior to the adoption of the 14th amendment there was
no assurance of equal protection and thus no limit on race
discrimination.
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Priggs v. Pennsylvania
The Supreme Curt declared unconstitutional a state law that
prevented the use of force or violence to remove any person from the
state to return the individual to slavery. Con. Itself precludes PA law
with fugitive slave clause; statute does too, Fugitive slave Act in
constitution trumps state law.
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The Fugitive Slave Act of 1793 – adopted by the 2nd congress, required
that judges return escaped slaves. In Prigg the Supreme Court relied
on this act to invalidate the Pennsylvania law.
The times (1850s)
 Tensions with slavery – controversy if areas of LO
Purchase would be free or not
 New Fugitive Slave Act of 1850 – even stricter, appoints
judges, they get paid more if send slaves back to owners
 Missouri compromise (prohibited slavery past a certain
line above MI) repealed by Kansas – Nebraska Act- lets
states decide is slave or not- lead to Civil War
 Republican party created- wanted MI compromise,
committed to prohibition of slavery in territories
Dred Scott v. Sanford
Supreme Court declared the Missouri Compromise unconstitutional
and broadly held that slaves were property, not citizens.
Dred Scott a slave owned in Missouri was taken into Illinois a free
state. Scott sues for his freedom, claiming that his residence in Illinois
made him a free person.
SC held that slaves were not citizens and thus could not invoke federal
court diversity. Congress could not grant citizens to slaves or their
descendants; this would be a taking of property from slave owners
without due process or just compensation.
Although the SC thought it was resolving the controversy over slavery
(by judging the case despite finding that they did not have
jurisdiction.) this decision had the opposite effect. The ruling became
the focal point in the debate over slavery and by striking down the
Missouri Compromise, the decision helped to precipitate the Civil War.
Historical Modality
 Judiciary role is to only interpret Con in light of framers
intent!!
 Looks at history of slavers – inferior, were not citizens
when Con was made, state marriage laws (even free
states have laws against Africans- they not equals)
 Impossible to think that framers wanted to give ppl of
African descent rights! They have NEVER been citizens
 Large slave holding states would have never consented to
a Con that made blacks citizens
Textual Modality
 3/5ths clause- puts down slaves – not treated as citizens
 Fugitive slave clause – return slaves to master
 Naturalization law – confines citizenship to white race
(only “aliens being white free persons”)
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Militia law- “every free anle-bodied white male” must
enroll
 “except citizens of US, or persons of color” (distinction
made here
 Anti- Ethical Modality
 Judiciary job to interpret con is NOT to take into account
common norms
 Changes in world have no role
 Dissent (Curtis)
 Need to respect power of the state they can make ppl
citizens. Con is not pro-slavery
 Just b/c you don’t have certain rights doesn’t mean you
not a citizen (women cant vote)
 A4 § 2 (priv/immunities clause) – The Citizens of each
State shall be entitled to all Privileges and Immunities of
Citizens in the several States.--- not clear is theres such a
thing as state and national citizenship (*later he is right
there is no distinction according to 14th amend citizenship
clause)
 Taney rejects – no ppl who are citizens is who were
citizens at the time of the founding
 Dissent rejoinder - At time of founding blacks were
citizens! Some could vote
 Voting doesn’t mean citizen – some noncitizen aliens
could vote and some citizens couldn’t (women)
 Dissent – ppl don’t have vested rights of prop when they
willingly enter into free state with their slave
Times (1850s)
- Abolitionist – agree with Taney and think Con is horrible doc. That is
racist/allows slavery and cannot be enforced (Fredrick Douglass
disagrees)
- Fredrick Douglass (1860) Textualism view – Con is anti-slavery
- Con does not give the right to enslave/hold prop in another class of
people (slavery never mentioned)
- Must look at TEXT and construe strictly; not intent of writers (it was
made secretly -could never know; if ambiguity, must use innocent not
wicked meaning- look at consequences and what is most just
- 3/5th-actually encourages freedom. Wanted to end international slave
trade In 1808, fugitive slave provision about Irish ppl who became
servants under a K,
Lincoln v. Other Douglas
- Lincoln disagrees with Dred Scott b/c way to nationalize slavery
- Douglas says Pres view is irrelevant SC has spoken; Lincoln- no invokes
Jacksons veto to show decisions don’t stop at SC (im not taking away
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prop, he’s just concerned about territories- ct wrong saying K can make
territories free)
Counter-majoritarian argument – judges can’t have last word
Succession from the union
- Lincoln became pres- lost pop vote, only northern sates voted for him so
- 7 states announced succession from union and 8 states followed
- Debate: DO states have right to deport from the union? – Lincoln rejects
it (1st inaugural address) – once union made, cant be broken – Con
cannot have a provision for secession
o Lincoln really anti-secession- said if stay in union he would
allow Carwin Amend- prohibits Ks power to outlaw slavery
(wanted to protect/confine slavery to slave states)
South Carolina Succeeding and others
- Have duty that when any form of gov becomes destructive, its right of
ppl to alter or abolish it
- Now being in union is not in our best interest and we want to take back
the sovereign power we gave up
- It’s a peaceful exit, we not starting a way
- Use compact theory- country was formed through a compact agreed
upon by the states- states should be the final arbiters over whether the
fed gov had overstepped the limits of its authority
- 14 states deliberately refused to fulfill con duties/ our rights to property!
The Civil War (1861- 1865)
- South Carolina shot at Union through ships
- Lincoln- called militia, blockaded confederate ports/seized ships
o Suspended habeas corpus (ppl could be taken into custody w/out
gov giving justification for it) - said he had authority under Con
in times of war
Prize Cases (1863)
- Is it okay for pres to blockaid ports?
- Exec power- if there’s an invasion, pres can defend force with force and
doesn’t need to consult leg – even though K didn’t declare war, it was
declared unilaterally so okay
- He assumed necessary powers
- Lincoln argues that uncon measures can be taken and lawful when
becoming indispensable to the preservation of the Con
o Madison rejects- is it right to effectively legitimize w/e a pres
does in an emergency for self-preservation (what’s remedy if
pres overreaches)
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Lincoln Emancipation Proclamation
Before said: each state has right to control own gov, we not interfering
w/ your institutions of slavery!
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Said now: Under my power as commander in chief, all slaves in
rebellious southern states are free! (not across board, some state in
union still had it)
“uncon action can be lawful to preserve the union” – says authority
comes from war power (function of military necessity) and god
He breaks the con in order to save it
Dissent (Curtis)
Exec power can’t eliminate legal state laws. Where does war power end?
If you saying they can’t secede, then they still in union, then you can’t
take away their rights
Hes a dictator
Supporters of Lincoln overstepping power
this was a dictatorship entered to save the existing constitutional order
(he was great dictator/democrat- contradiction here)
5. The Civil War and Reconstruction.
Lincoln has been assassinated and Andrew Johnson is not President; he
agrees to welcome back the states if they ratify the 13th Amendment.
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13th Amendment – “Neither slavery nor involuntary servitude,
except as a punishment for crime whereof the party shall have
been duly convicted, shall exist within the United States, or any
place subject to their jurisdiction.” (Exception clause used today for
prisons)
 Section 2 – affirmative grant of power to Congress to
make laws/ legislate for what is prescribed in S1
 Southern states at this time were still discriminating
with black codes (marriage, can’t live in certain places,
congregate etc.)
 Congress outlawing slavery is not enough; they must now
give rights to slaves.
Civil Rights Act of 1866: All people born in US are citizens,
regardless of race or previous slavery conditions can make
contracts, sue, purchase , lease, sell real property, full and equal
benefit of all laws and proceeds for security of persons/ property.
 Congress got the power to enact this Act through 13th
Amendment S2.
 Congress passed but did not give blacks complete
equality; still segregation. To legitimize this, Congress
wanted to add amendments to the Const.
14h Amendment – “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
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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.”
 Some say the 14th constitutionalized the Civil Rights Act;
others say that it did much more.
 3 Clauses: 1) Privileges & Immunities Clause; (2) Due
Process Clause; (3) Equal Protection Clause. (Keep in
mind that these clauses do not mention race or color so
they go far beyond disadvantaged groups.
 Citizenship Clause: Overrides Dred Scott; anyone born or
naturalized in the US are citizens, also does not mention
a state citizen vs. national citizen. (issue today is that
people who are born in the US have illegal immigrant
parents.)
 S5 – “Congress shall have the power
to enforce, by appropriate legislation
the provisions of this article.”
 Congress can interpret S1 and pass
legislation to enforce it.
 The question here is what does the
clauses entail (what the hell does
equal protection of the law mean?)
Who has the last word of what S1
entails?
The Slaughter House Cases CHEM 520-22
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First case that interpreted the 14th amendment. The City of New
Orleans faced severe outbreaks of disease after its water supply was
contaminated with the refuse from slaughterhouses located about a mile
upstream on the Mississippi River. The Louisiana state legislature
sought to remedy this problem by centralizing the location of all
slaughtering away from the water supply. It did this by creating the
Crescent City Livestock Landing & Slaughter-house Co. (defendant) and
gave the company a monopoly over the entire slaughtering business in
and around New Orleans.
Butchers argue that monopoly hurt their right to pursue trade, invoke
 They argued that the restriction created involuntary
servitude, deprived them of their property without due
process of law, denied them equal protection of the laws
and abridged their privileges and immunities as citizens.
13th and 14th amendments; cant use the 5th amendment
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b/c only constrained by federal actors, does not apply to
states “nor be deprived of life, liberty or property without
due process of law; nor shall private property be taken for
public use without just compensation.
The SC says regulating butchering is a state police power by the 10th
amend; powers not enumerated default to the state. State powers are
inherent and don’t need to one enumerated like federal powers.
SC must be deferential to the states choice of means unless there is a
constitutional restraint.
The court also mentions that the purpose of the 13th & 14th amendments
was solely to protect former slaves.
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Bradley v. Illinois p. 391 BLBAS
This case solidified the narrow reading of the Privileges or Immunities
Clause of the 14th amendment and determined that the right to practice a
profession was not among these privileges.
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Woman applied for admission to the Illinois bar in accordance with a
state statute that permitted any adult of good character and with
sufficient training to be admitted to the practice of law. Because she
was a woman, however, the Illinois Supreme Court denied her
admission, noting that the "strife" of the bar would surely destroy
femininity. Bradwell appealed the decision to the United States
Supreme Court, arguing that her right to practice law was protected by
the Privileges or Immunities clause of the Fourteenth Amendment.
o SC upheld the decision of the Illinois court, ruling that the
Privileges or Immunities Clause of the 14th amendment did not
include the right to practice a profession, so it was properly
regulable by the states. CT refers to the Slaughterhouse Cases.
Minor v. Happersett (1874)
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Woman attempts to vote, Missouri state constitution forbids it, she is
denied and brings action, asserting violation of the Privileges and
Immunities act under the 14th amendment.
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The court then asked whether the right to vote was one of the
"privileges or immunities of citizens of the United States" at the time
of the Fourteenth Amendment's adoption in 1868. Citing a variety of
historical sources, it found that it was not. The court reasoned that the
Constitution of the United States did not explicitly give citizens an
affirmative right to vote and that, throughout the history of the nation
from the adoption of the Constitution, a wide variety of persons—
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including women—were recognized as citizens but denied the right to
vote.
6. Reconstruction & Reaction III: The Reconstruction Amendments
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Strauder v. West Virginia
Equal Protection used in race context. West Virginia enacted a
statute limiting jury service to white males over the age of 21
who are state citizens. An all white jury convicted Strauder, a
black man of murder. Strauder argues that his conviction by a
jury selected under the West Virginia statute violated the 14th
Amendment.
 P argues for a process where black men COULD
participate on the jury. He says “right to fair trial
by jury of his peers is denied”
 Court agrees with P 14th is assure that blacks have
same rights as whites; guarantees stopping
“unfriendly legislation”
 Statute denied right to blacks to participate on
juries (a guaranteed rights of citizens)
 States can give their own qualifications for juries
(age, sex) but it cant be based on race.
 Historical Modality (framers intent); state law
barring blacks from being on jury violates the equal
protection clause. Law in states should be the same
for blacks and whites.
 The Goal of Equal Protection clause was to protect
against subordination of a group.
(Republicans agreed on protecting blacks civil rights but split about political/
social rights; later suffrage is intentionally excluded from 14th amendmentits political privilege for competent men not natural right.)
The Civil Rights Cases CHEM pg. 533
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The Civil Rights Act of 1875 “ That all persons within
jurisdiction of the United States shall be entitled to the full and
equal enjoyment of the accommodations, advantages, facilities,
and privileges of inns, public conveyances on land or water,
theaters, and other places of public amusement; subject only to
the conditions and limitations established by law, and applicable
alike to citizens of every race and color, regardless of any
previous condition of servitude.”
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The law specifically prohibited discrimination on
the basis of race and color or on the basis of any
previous condition of servitude. In other words the
law prohibited private race discrimination and
provided both criminal and civil penalties.
The Court ruled that the 14th amendment applies to just state
and local government actions not to private conduct. Individual
invasion of individual rights is not the subject matter of the
amendment.
The central holding in this case is that the 14th amendment
applies only to the state government, not private conduct, “no
state shall”, this remains the law and is a central principle of
constitutional law. In other words, the Constitution offers no
protection against private wrongs no matter how discriminatory
or much they infringe fundamental rights.
 The 13th Amendment is the one provision that
directly regulates private conduct; “shall exist in
the United States, or any place subject to their
jurisdiction”. In other words the 13th amendment
forbids people from being or owning slaves. For
example the SC has said that the 13th amendment
forbids compelling a person tow work for another
individual to pay off a debt.
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Plessy v. Ferguson (1896)
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Upheld the constitutionality of racial segregation laws for public
facilities as long as the segregated facilities were equal in quality; a
doctrine that came to be known as “separate but equal”. The decision
legitimized the many state laws re establishing racial segregation that
had been passed in the American south at the end of the
Reconstruction Era.
 In 1890, the state Louisiana passed the Separate Car Act,
which required separate accommodations white on
railroads including separate railway cars.
 The court concluded that although the 14th amendment
was meant to guarantee legal equality of all races in
America, it was not intended to prevent social or other
types of discrimination. “Deny to any person within its
jurisdiction the equal protection of the laws.”
 “But in the nature of things it could not have been
intended to abolish distinction based upon color, or to
enforce social, as distinguished from political equality or a
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commingling of the two races upon terms unsatisfactory
to either.
It is now well settled that the requirement of equal
protection are the same whether the challenge is to the
federal government under the 5th amendment or to state
and local actions under the 14th amendment. The SC has
expressly declared that EP analysis in the 5th amendment
is is the same as that under the 14th amendment. But
technically equal protection applies to the federal
government through judicial interpretation of the due
process clause of the 5th amendment and to state and local
government through the 14th amendment.
 Read step EP analysis pg. 697
6. The Lochner Era “Substantive Due Process and “Liberty of Contract”
Historical Overview:
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Economic liberties generally refer to constitutional rights concerning
the ability to enter into and enforce contracts; to pursue a trade or
profession; and to acquire possess and convey property.
Beginning in the late nineteenth century and continuing until 1937 the
Court found that freedom of contract was a basis right under the
liberty and property provisions of the due process clause. The Lochner
Era is one in which the SC aggressively protecting economic liberties
under the Due Process clause.
 Many state laws such as minimum and maximum wage
hour statues were declared unconstitutional as violating
the 14th Amendment by impermissibly interfering with
the freedom of contract.
 It is extremely important to note that during this same
Era the court used federalism to limit the ability of
Congress to regulate the economy. From the late
nineteenth century until 1937, the Court narrowly
defined the scope of Congress’s powers under the
commerce clause, and it also found that the 10th
amendment reserved a zone of authority exclusively to the
states.
 Ex: If the federal government adopted
a min wage law it would have been
declared unconstitutional as exceeding
the scope of Congress’s powers or as
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violating states rights and the 10th
Amendment.
After 1937, the law changed
dramatically and the Court adopted a
policy of great deference to
government economic regulations. No
longer did the Court protect the
freedom of contract under the liberty
prong of the due process clause. Nor
did the Court impose limits on
Congress’s ability to regulate the
economy based on federalism or on
narrow definitions of federal powers.
Lochner v. New York CHEM pg. 643
The New York law provided that no employee shall “work in a biscuit,
bread or cake bakery or confectionery establishment more than 60
hours in any one week, or more than ten hours in any one day. The
Supreme Court declared the law unconstitutional as violating the due
process clause o the Fourteenth Amendment “ no state shall” because
it interfered with freedom of contract and because it did not serve a
valid police purpose.
The Court ruled the act was not within any fair meaning of the term
health law, but is an illegal interference with the rights of individuals
both employers and employees to make contracts regarding labor upon
such terms as they may think best, or which they may agree upon with
the other parties to such contracts.
 First, the Court and throughout this era stated that
freedom of contract is a basic right protected as liberty
and property rights under the due process clause of the
14th amendment.
 Liberty includes the right to enter into all contracts,
which may be proper, necessary, and essential to carrying
out a trade or profession. The Court in Lochner declared
that general right to make a contract in relation to his
business is part of the liberty of the individual protected
by the 14th amendment. The right to purchase and sell
labor is part of the liberty protected by this amendment.
 Second the Lochner court said that the government could
interfere with freedom of contract only to serve a valid
police purpose: to protect the public safety, public health
or public morals.
16
Third, the Court said that it was the judicial role to
carefully scrutinize legislation interfering with freedom of
contract to make sure that it served a police purpose.
 The court intended that many laws
that purport to be exercises of the
police powers in reality are to
redistribute wealth or to help a
particular group at the expense of
others.
Harlan Dissent: emphasized the need for judicial deference to legislative
choices. He stressed that the legislation was a reasonable way to protect the
health of bakers who suffered serious medical problems because of exposure
to flour dust and intense heat.
Homes Dissent: The majority decided this case based on an economic theory
that is largely unsupported by the popular will of the United States. It is
settled by various precedent decisions and state constitutions that state laws
can regulate the lives of individuals in many ways that are not supported by
the national legislature. However, the purpose of the United States
Constitution is not to require states to exercise their police powers uniformly,
but to instead give them the power to make their own judgments about what
laws are best for their individual citizens. The “liberty” protected by the
Fourteenth Amendment should not function to prevent the exercise of a
dominant opinion among states, that opinion being, in this case, that states
can constitutionally regulate the work hours of employees within their
borders. The majority ignores the reality of state regulations across the
country.

Lochner Era Cases: Federalism and National Powers: Where the SC is
shooting down legislation left and right because of the NARROW READING
OF CONGRESS COMMERCE CLAUSE POWERS.
Champion v. Ames 1903

Congress enacted the Federal Lottery Act of 1895 (FLA) which prohibited
the buying and selling of lottery tickets across state lines. Charles
Champion (defendant) was indicted by U.S. Marshall Ames (plaintiff) for
bringing Paraguayan lottery tickets into the United States and shipping
them from Texas to California in violation of the FLA.

Issue: Does the trafficking of lottery tickets across state
lines constitute interstate commerce that Congress may
prohibit under the Commerce Clause.

Yes. Congress alone can regulate all aspects of interstate
commerce and can do so in whatever manner it deems
appropriate. Congress’s plenary power includes the power to
17
prohibit items (such as lottery tickets) that are deemed to be
harmful to the welfare of the people of the United States.


Hammer v. Dagehart 1918
Congress passed the Keating Owen Act, out of concerns over child
labor conditions in mills and factories. United States attorney alleged
that the Act was an unconstitutional exercise of Commerce clause
powers.
Congress inappropriately attempted to regulate interstate commerce
for the underlying purpose of seeking to standardize child labor
regulations among the states. The regulations bear no relationship to
the goal of promoting interstate commerce as required by the
constitution.
 Taxing Power, 518-520
 Spending Power, 521-524
Constitutional Innovation During the Progressive Period – 17th, 18th & 19th
amendments.
New Deal Constitutionalism
7. Emergence of the Modern Paradigm of Constitutional
Scrutiny.
The Great Depression (Backdrop)



Nebbia v. NY (1934)
Government is now getting more involved in the economy in ways
they could never in the Lochner.
The question in Nebbia, is whether the state regulation violate
the Due Process Clause of the 14th Amendment.
To combat the effects of the Great Depression, New York adopted
a Milk Control Law in 1933, which established a board to set a
minimum retail price of milk. It set the price of a quart of milk at
nine cents. Nebbia a storeowner violated the law by offering two
quarts of milk and five cent loaf of bread for a total of 18 cents.
 The Court that since the price controls were not
“arbitrary, discriminatory, or demonstrably
irrelevant” to the policy adopted by the legislature
to promote the general welfare, the regulation was
constitutional.
18



Regulations are not inappropriate way to serve the
public interest; when industry is tied to into public
interest it is more subject to the state police powers.
Rational basis review which is used for economic
regulations, requires that the law is not
unreasonable or arbitrary and also there is a
reasonable relationship between the law and the
interest that it serves. The law here meant to
protect farmers from dying/help competition milk
was selling to public.
Different reading of the DP clause – all public
business are subject to control in the interest of the
public good. DP only demand the law not be
unreasonable/ arbitrary and the means to be
relevant (doesn’t overrule Lochner but says it does
not make sense.)
Home Building & Loan Association v. Blaisdell CHEM pg. 662



During the Great Depression in 1933, Minnesota responded to a large
number of home foreclosures in the state by passing the Minnesota
Mortgage Moratorium Law which extended the amount of time for
mortgagors to redeem their mortgages from foreclosure contrary to the
terms previously agreed upon in the mortgage contract.
Banks challenged for violating Contracts clause 10th amend “ No state
shall.. Make any law impairing the obligations of contracts.
The SC upheld the Minnesota law and dismissed the framers intent for
the contracts clause as being irrelevant.
 The SC upheld the Minn law because it was an emergency
measure of limited duration, “to protect the vital interest
of the community.” The court stressed that the law “was
not for the mere advantage of particular individuals but
for the protection of a basis interest of society.”
 Blaisdell, is extremely important for limiting the scope of
the contracts clause. It reaffirms that the government can
interfere with existing contracts if it has a valid police
purpose, and it describes the police power broadly enough
to include debtor relief, protecting people from foreclosure
of their mortgages as a valid governmental objective.
 Does a state law interfere with contracts clause? (1) Is
there a substantial impairment of a contractual
19



relationship? (2) If so, does it serve a significant and
legitimate public purpose; and (3) is it reasonably relating
to achieving the goal? The test is very similar to
traditional rational basis review.
SC – “We must never forget that it is a constitution we are expounding
a constitution intended to endure for ages to come and consequently, to
be adapted to the various crises of human affairs. The framers intent is
not controlling in contemporary constitutional adjudication.
1935-1937 – SC shot down a lot of legislation for economic emergency,
stating gov lacked power under the commerce clause, which controleed
intrastate activity. (New Deal recovery measures stuff with President
Roosevelt) President Roosevelt threatens to “crowd the bench” up to 15
justices, until he has judges that agree with him.
“The switch in time that saved 9” Was this switch/change of reading
the con from coercion or responsiveness? Does SC respond to
majorities? The notion that SC is insulated from the times is a fantasy
they are influenced by the times and the public.


West Coast Hotel v. Parrish (1937)
This case upheld the constitutionality of minimum wage
legislation enacted by the state of Washington overturning an
earlier decision in Adkins v. Children’s Hospital (federal
minimum wage legislation for women was an unconstitutional
infringement of liberty of contract as protected by the due
process clause of the 5th amendment). The decision is usually
regarded as having ended the Lochner era, a period in American
legal history during which the Supreme Court tended to
invalidate legislation aimed at regulating business.
The State of Washington passed a law, which regulated the
minimum wages paid to female and minor employees. Elsie
Parrish (plaintiff) was employed as a maid at a hotel owned by
the West Coast Hotel Co. (defendant). Together with her
husband, Parrish brought suit in Washington state court to
recover the difference between the wages she was paid by West
Coast Hotel Co. and the minimum wage fixed under Washington
state law. West Coast defended the suit on the grounds that the
state law violated its Due Process right to freely contract under
the Fourteenth Amendment.
 The SC ruled that the constitution permitted the
restriction of liberty of contract by state law where
such restriction protected the community, health
20
and safety or vulnerable groups. (in this case
women)





Carolene Products Co. (1938) | Modern Constitutionalism
In 1923, Congress passed the Filled Milk Act (FMA), which
criminalized the shipment in interstate commerce of skimmed milk
compounded with any fat or oil other than milk fat, so as to resemble
milk or cream. Carolene Products Co. (defendant) owned a milk
processing plant. The United States government (plaintiff) indicted
Carolene Products in district court for violating the FMA. Carolene
was accused of shipping a product called “Milnut” that consisted of a
compound of skim milk and coconut oil.
Carolene argued that the FMA infringed on their liberty to contract
freely under the due process clause of the 5th amendment and violated
the Commerce Clause , “Congress shall have the power to regulate
commerce with foreign nations and among the several states”.
SC ruled – it was not for the courts to overrule because it was
supported by substantial public health evidence and was not arbitrary
or irrational. In other words the court applied rational basis review.
(economic regulation)
This case is well known for its statement of two principles. (1) The first
concerns the presumption of constitutionality to be accorded to
legislation regulating economic activity when challenged under the
Due Process Clauses.
 “Regulatory legislation affecting ordinary commercial
transactions is not to be pronounced unconstitutional,
unless in the light of the facts made known or general
assumed it is of such a character as to preclude the
assumption that it rest upon some rational basis within
the knowledge and experience of the legislators.”
The second principle emerges from immediate qualification of the first
principle in the famous FOOTNOTE FOUR, where he suggested that
such deferential review would not be appropriate “when legislation
appears on it’s face to be within a specific prohibition of the
Constitution, such as those of the first ten Amendments.
 A higher level of scrutiny (i.e. less deference) should apply
to the cases involving; (1) If legislation appears to be on
its face a prohibition of the Constitution; a specific
constitutional prohibition such as in the Bill of Rights (110 amend); (2) when legislation restricting peoples ability
to participate in the political process to overturn the
legislature (like their right to vote and gerrymandering –
manipulating district boundaries for a political advantage
because legislation must represent the people) (3)
21

legislation directed at discrete and insular minorities,
such that they cannot adequately represent themselves
through the political process. (groups that have been
saddled with such disabilities or subjected to such a
history or purposeful unequal treatment or relegated to
such a position of political powerlessness as to command
extraordinary protection from the majoritarian political
process.)
Also the Court has emphasized that race is an immutable
trait. It is unfair to discriminate against people for a
characteristic that is acquired at birth and cannot be
changed. For all of these reasons, it is firmly established
that race and national origin classifications must meet
the most exacting standard of judicial review. Such
discrimination will be tolerated only if the government
can prove that it is necessary to achieve a compelling
government interest.
Williamson v. Lee Optical

An Oklahoma state law made it unlawful for any person not licensed
as an optometrist or ophthalmologist in the state to fit lenses to a face
or fashion existing lenses into a frame unless given a prescription by a
state-licensed optometrist or ophthalmologist. Lee Optical (plaintiff) of
Oklahoma brought suit in district court against Williamson
(defendant), the official charged with enforcing the Oklahoma state
law, on the grounds that it violated the Due Process (right to contract)
and Equal Protection Clauses of the Fourteenth Amendment.

SC upholds applying rational basis review; state legislature had a
legitimate interest in requiring a prescription from a licensed from eye
doctor. Although opticians were qualified to refit lenses without
prescriptions, the Court reasoned that requiring prescriptions in every
case would encourage more frequent eye examinations, which may
enable early detection of more serious eye conditions. – If a legitimate
governmental interest lies as reasoned by the Court, the law can
survive a Due Process challenge.
 The Court further held that there was no Equal
Protection violation because legislatures were permitted
to deal with problems "one step at a time, addressing
itself to the phase of the problem, which seems most acute
to the legislative mind." Thus, that opticians were so
impacted while sellers of ready-to-wear glasses were
exempted may have been a signal that the sellers did not
22
represent a portion of the problem that loomed large in
the legislature's mind.
Notes on Incorporation of the Bill of Rights Against the states (554562) – A series of SCOUTUS decision s interpreted the 14th Amendment to
“incorporate” most portions of the Bill of Rights, making these portions for
the first time, enforceable against the state governments.
National Power in the Wake of the New Deal: The
Emergence of the Modern Regulatory State.




Schecther Poultry v. US (1935) Before West Coast,
SC strikes down signature Act of the new Deal to get economy back up.
Was a decision by the SCOTUS, that invalidated regulations of the
poultry industry according to the nondelgation doctrine ( ) and as an
invalid use of the Congress power under the commerce clause. This
was unanimous decision that rendered the National Industry Recovery
Act of 1933, a main component of President Roosevelt’s New Deal
unconstitutional.
SC said government lacked the power under the commerce clause, this
controlling intrastate activity. Last case before switch in time to save
9.
NLRB v. Jones and Laughlin Steel Corp. (1937)
US labor case that declared that the National Labor Relations Act
(NLRB) of 1935 was constitutional. It effectively spelled the end to the
Courts striking down of New Deal economic legislation and greatly
increased the US Congress’s power under the Commerce Clause.

In 1935, Congress passed the National Labor Relations Act (NLRA),
which created the National Labor Relations Board (NLRB) (defendant)
to enforce federal fair labor practice standards, including the right of
employees to unionize. After Jones & Laughlin Steel Corp. (JLSC)
(plaintiff) fired ten employees that attempted to unionize at one of its
Pennsylvania plants; the NLRB sanctioned the company for engaging
in discriminatory employment practices in violation of federal
standards. JLSC brought suit alleging that the NLRA was an
unconstitutional exercise of Congress’s interstate commerce power, and
the lower courts agreed. The NLRB appealed to the Supreme Court.

SC rules that Congress does have the authority to regulate labor
disputes that have a close relationship to interstate commerce. Justice
Hughes writing for the majority stated that the court must reconsider
its prior decisions about the limits of Congress’s power to regulate
23
interstate commerce. The activity’s impact on interstate commerce is
the relevant consideration in determining if Congress can regulate the
activity. The Commerce Clause authorizes Congress to regulate
manufacturing activity if it has a close and intimate relation to
interstate commerce.
Wickard v. Filburn (1942) – Broad Comm Clause Interpretation
 Decision that dramatically increased the regulatory power of the
federal government. Sets a precedent for an expansive reading of
the US Constitutions Commerce Clause for decades to come.
 An Ohio farmer, Roscoe Filburn was growing wheat to feed
animals on his own farm. The US government had established
limits on wheat production, based on the acreage owned by a
farmer, to stabilize wheat prices and supplies. Filburn grew
more than the limits.
 In other words the distinctions which were crucial in the earlier
era between commerce and production and between direct and
indirect effects on commerce were no longer followed.
 Therefore even though Filburn’s wheat only had a
negligible impact on interstate commerce. Congress
could regulate his production because cumulatively
homegrown wheat had a substantial effect on
interstate commerce (think of if everyone was doing
it?). “It is not enough to remove him from the scope
of federal regulation where as here his contribution
taken together with that of many others similarly
situation is far from trivial.
United States v. Darby (1941) OVERULED HAMMER v. Dagenhart
 Darby broadened the scope of the commerce clause and increased
Congress’s power to pass economic legislation.
 In the current case the Court found that earlier argument appearing
neat and comprehensive only by ignoring the true complexities of an
issue, and explained that Congress was aware that businesses produce
their goods without thought to where they will go and product is pulled
and shipped to meet the orders of the day. The Court also concluded
that the requirement to keep records was entirely appropriate, as a
matter of enforcing the Act.
 Bosniak: Congress had the authority to regulate
interstate commerce and has the power to choose the
means any means that are reasonably related, even if
that means regulating intrastate activity.
 Darby involved a challenge to the constitutionality of the fair Labor
Standards Act of 1938, which prohibited the shipment of interstate
24

commerce of goods made by employees who were paid less than the
prescribed maximum number of hours. The Court upheld the Act as a
lawful exercise of Congress’s commerce clause authority. The Court
flatly rejected the claim that the law violated the 10th amendment and
declared: “The 10th amendment states but s truism that all is retained
which has not been surrendered.”
The court expressly overruled Hammer v. Dagenhart, and its view that
control of production was left to the exclusive regulation of the states.
The Court made it clear that a law is constitutional so long as it is
within the scope of Congress’s power; the 10th amendment would not
be used as a basis for invalidating federal laws.
Notes on Fiburn, Darby, & NLBR
 These cases expansively defined the scope of Congress’s commerce
clause power. No longer did the Court distinguish between commerce
and other states of business such as mining, manufacturing and
production; instead Congress could exercise control over all phases of
business.
 No longer did the Court distinguish between direct and indirect effects
on interstate commerce; rather Congress could regulate any activity
that taken cumulatively that had an effect on interstate commerce.
 A federal law would be upheld so long as it was within the
scope of Congress’s power, and the commerce clause was
interpreted so broadly that seemingly any law would meet
this requirement. The law of commerce clause during this
era could be simply stated: Congress could regulate any
activity if there was a substantial effect on interstate
commerce.
 A court may invalidate legislation enacted under the
Commerce clause only if it is clear that there is no
rational basis for a congressional finding that the
regulated activity affects interstate commerce, or that
there is no reasonable connection between the regulatory
means selected and the asserted ends.
 Laws adopted under the Commerce clause to illustrate
the breadth of the SC interpretation of the commerce
clause. (1) Regulatory Laws; (2) Civil Rights laws (3)
Criminal laws pg. 268.
Civil Rights Legislation & the Warren Court
Notes of the Civil Rights Acts – pg. 648-658
 Civil Rights Act of 1964 – in part prohibits private employment
discrimination based on race, gender, or religion, and which
25
prohibits discrimination by places of public accommodation such
as hotels and restaurants. Congress enacted this legislation
under its commerce clause power and the SC upheld it on that
basis.
 Logically it would seem that Congress would use
power under section 5 of the 14th amendment to
pass this legislation. However the SC ruled in 1883
held that Congress could only regulate government
conduct under the 14th amendment not private
conduct. So at this time Congress was unsure as to
whether they could use their 14th amendment
powers, Congress thus chose to use the Commerce
clause.
Heart of Atlanta Motel v. United States.(Civil Rights Case pg. 269)
 The Court upheld the Constitutionality of title II of the Civil
rights Act, which prohibited discrimination by places of public
accommodation. The heart of Atlanta Motel was located in
downtown Atlanta and had 216 rooms and about 75 percent of
their registered guest were from out of state.
 The upheld the application of the Act to the Motel, which had a
policy of refusing to provide accommodations to blacks.
o The Court said that in evaluating the law and its
application, “the only questions are” (1) whether Congress
had a rational basis for finding that racial discrimination
by motels affected commerce, and (2) if it had such a
basis, whether the means it selected to eliminate that evil
are reasonable and appropriate.
 The court concluded that the voluminous testimony
presents overwhelming evidence that
discrimination by hotels and motels impedes
interstate travel.
 The Court notes that it did not matter that Congress motive in
part was moral; many federal laws had been adopted under the
commerce power to remedy moral wrongs.
 The Court also said that it did not matter that the hotel was
purely or local character. “If it is interstate commerce that feels
the pinch, it does not matter how local the operation which
applies the squeeze.”
26
Katzenbach v. McClung CHEM pg. 269


The Court upheld the application of the Civil Right Act to a small
business: “Ollie’s barbeque”, a family owned restaurant. The courts
recitation of the facts emphasized the interstate connection of the
restaurant.
For example 46 percent of the meat purchased came from out of state.
However the decision was not based on the interstate impact of this
particular restaurant. Rather the Court found that Congress rationally
concluded that discrimination by restaurants cumulatively had an
impact on interstate commerce.
 The Court found that the testimony before Congress
afforded ample basis for the conclusion that established
restaurants in such areas sold less interstate goods
because of the discrimination, that interstate travel was
obstructed directly by its, that business in general
suffered and that many new businesses refrained from
establishing there as a result of it.
Notes on Katzenback & Heart of Atlanta Motel – These decisions reflect
the breadth of Congress’s commerce power. Based on Wickard racial
discrimination by hotels and restaurants looked at cumulatively across the
country surely has an effect on interstate commerce, Nor should it matter
that Congress’ primary purpose was based more on moral judgment to
eliminate discrimination than on concern for enhancing the economy. The
Court has been consistently unwilling to limit Congress to acting
under the commerce clause only to advance economic efficiency.


Jones v. Alfred Mayer Co, (1986)
Jones (plaintiff) brought suit in federal district court against Alfred H.
Mayer Co. (Mayer) (defendant) alleging that Mayer refused to sell a
house to Jones simply because Jones is African American. Jones relied
on 42 U.S.C. §1982, which grants the right to all citizens of the
United States to “inherit, purchase, lease, sell, hold, and convey
real and personal property.” The district court dismissed the
complaint on the ground that §1982 only applies to state action and
does not reach private actors who refuse to sell real estate.
Congress may make whatever laws are necessary and proper for
enforcing the 13th amendments abolition of slavery and the negative
effects of slavery. (Can Congress enforce the 13th Amend by passing
laws that govern the actions of purely private actors.)
27

Based on the “Enabling Clause” of the Thirteenth Amendment,
Congress may make whatever laws are necessary and proper for
enforcing the Thirteenth Amendment’s abolition of “all badges and
incidents of slavery in the United States.” There is nothing present in
the Thirteenth Amendment itself or the legislative history surrounding
the adoption of the Thirteenth Amendment that suggests it only
applies to discriminatory conduct by state officials. The Amendment
itself permits Congress to pass laws that address all forms of racial
discrimination, including discrimination against African Americans in
the housing market.
 Congress acted rationally in passing §1982 to address this
type of discrimination, as permitting race-based housing
discrimination to go unchecked can have significant
detrimental effects on racial groups. Thus, §1982 is a
valid exercise of Congressional power to enforce the
Thirteenth Amendment by prohibiting discriminatory
conduct; even when that conduct is performed by private
individuals.
The Reach of the Commerce Clause:



United States V. Lopez (1995) CHEM pg.273
Between 1936 & April 1995, the SC did not find one federal law
unconstitutional as exceeding the scope of Congress’s commerce power.
Then in this case the by 5-4 margin, the SC declared unconstitutional
the Gun Free School Zone Act of 1990, which made it a federal crime to
have a gun within 1,000 feet of a school.
Alfonso Lopez was a 12th grade student, when he was arrested for
carrying a concealed gun. He was charged with violating the Gun Free
School Zone Act, which made it a federal offense for any individual
knowingly to possess a firearm at a place that the individual knows or
has reasonable cause to believe is a school zone.
 Lopez appealed on the ground that the Act was an
unconstitutional exercise of Congress’s commerce power.
The SC ruled the act unconstitutional not based on the absence of
adequate findings by Congress rather; the court concluded that the law
was unconstitutional because it was not substantially related to
interstate commerce.
 The court returned to the notion that Art I limits
Congress’s legislative powers to those that are express or
implied in the Constitution.
28


After reviewing the history of decisions under the
commerce clause, the Court identified three types of
activities that Congress can regulate under this power (1)
Congress can regulate the use of the channels of
interstate commerce; The Court cited Heart of Atlanta
Motel Inc. v. United States, which upheld the federal law
prohibiting discrimination by hotels and restaurants as
an example of protecting the channels of interstate
commerce. (2) Congress may legislate “ to regulate and
protect the instrumentalities of interstate commerce”; the
court said that this includes the power to regulate powers
and things in interstate commerce, the court here cited
several cases that upheld congressional power to regulate
the railroads under its commerce power. (3) Finally the
court said that Congress may regulate those activities
having a substantial relation to interstate commerce.
Chief Justice said that prior case law was uncertain about
whether an activity must affect or substantially affect
interstate commerce to be regulated under this approach.
The more restrictive interpretation of congressional power
is preferable and that the proper test requires an analysis
of whether the regulated activity substantially affects
interstate commerce. (Guns near a school does not
substantially affect interstate commerce.)
U.S. v. Morrison
This case presented the question as to whether the civil damages
provision of the federal Violence Against Women Act is constitutional;
The issue before the Supreme Court was whether the civil damages
provisions of the Act could be upheld, either as an exercise of
Congress’s commerce clause authority or as a permissible under
Congress’s power pursuant to section 5 of the 14TH. In 5-4 decision, the
Court held that Congress lacked the authority to adopt the provision
under either of these powers.
 The provision authorizes victims of gender motivated
violence to sue for money damages Congress enacted the
Violence Against Women Act based on detailed findings of
the inadequacy of state laws in protecting women who are
victims of domestic violence and sexual assault.
 For example, Congress found that gendered motivated
violence costs the American economy billions of dollars a
year and is a substantial constraint on freedom of travel
by women throughout the country.
29







The case was brought by Christy Brzonkala, who allegedly was raped
by football players while a freshman at Virginia Polytechnic Institute.
The players were not criminally prosecuted and ultimately avoided
even sanctions by the university. She filed suit against her assailants
and the university under the civil damages provision of the VAWA.
The Court here reaffirmed the three part test for Congress’s commerce
authority that was articulated in Lopez; Christy defended VAWA civil
damages law based on the third part of the commerce test on the
ground that violence against women has a substantial effect on the
national economy.
 Gender motivated crimes of violence are not in any sense
of the phrase economic activity. While we need not adopt
a categorical rule against aggregating the effects of any
non-economic activity in order to decide these cases, thus
far in our nations history our cases have upheld
Commerce Clause regulation of intrastate activity only
where that activity is economic in nature.
 The Court thus concluded, “We accordingly reject the
argument that Congress may regulate noneconomic,
violent criminal conduct based solely on that conduct’s
aggregated effect on interstate commerce. The
Constitution requires a distinction between what is truly
national and what is truly local.
Thus, Morrison goes further than Lopez in limiting the scope of
Congress’s commerce power by narrowing the ability of Congress to
regulate based on findings of substantial effect on interstate commerce.
At least in areas that the Court regards as traditionally regulated by
the states, Congress cannot regulate noneconomic activity based on a
cumulative substantial effect on interstate commerce.
Gonzalez v. Raich
In this case the court held that Congress constitutionally may use its
power to regulate commerce among the states to prohibit the
cultivation and possession of small amounts of marijuana for medicinal
purposes.
Although California has created an exemption to its state marijuana
laws for medical uses, no exception exist to the federal law.
In 1970, Congress passed the Comprehensive Drug Abuse Prevention
& Control Act to combat illegal drug use in the United States. Shortly
after Congress enacted the Act, which categorized illegal drugs into
different schedules and prevented their sale purchase, and possession
in the US; California enacted the Compassionate Use Act that allowed
the use of medical marijuana within the state by persons needing it for
legitimate medical purposes. Angel Raich and Diane Monson
30
(plaintiffs) were California residents who both legally used marijuana
to treat legitimate medical issues. Despite receiving approval from
California state officials, federal agents seized and destroyed Raich’s
marijuana plants. Raich brought this suit against Alberto Gonzales,
Attorney General of the United States (defendant), seeking injunctive
and declaratory relief prohibiting the enforcement of the federal CSA.
 The SC upheld the federal law, explaining that for almost
70 years Congress had the authority to regulate activities
that have a substantial effect on interstate commerce. The
Court concluded that marijuana looked at cumulatively,
including that grown for medical purposes, has a
substantial effect on interstate commerce. Court cites
Wickard; in their decision which held that Congress may
regulate the amount of wheat that farmer’s grow for their
own home consumption.
 This case stands for the proposition that intrastate
production of a commodity sold in interstate commerce is
economic activity and this substantial effect can be based
on cumulative impact.
Congress Power to Regulate Activity but NOT inactivity:
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NFIB v. Sibelius pg. 281
This case indicates another additional limit on Congress commerce
power: it may not regulate economic inactivity.
The Patient Protection & Affordable Care Act sought to remedy the
problem of 50 million Americans being with health insurance. A crucial
mechanism is that it requires that almost all individuals have health
insurance and those that do not must pay a penalty to the IRS.
The said that the individual mandate is a tax and within the scope of
Congress’s taxing power.
The Court ruled that the individual mandate was not a valid exercise
of Congress’ commerce (interpret as tax). “The individual mandate
however does not regulate existing commercial activity. It instead
compels individuals to become active in commerce by purchasing a
product on the ground that their failure to do so affects interstate
commerce. Construing the Commerce Clause to permit Congress to
regulate individuals precisely because they are doing nothing would
open a new and potentially vast domain to congressional authority.
Necessary & Proper Clause:
U.S v. Comstock
31
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
Is one of the most important cases focusing on the necessary and
proper clause and it strongly reaffirms the approach taken in
McCulloch v. Maryland,
A federal statute, the Adam Walsh Child Protection Act of 2006,
authorized federal courts to order the indefinite confinement of
individuals in the custody of the FBI of Prisons who are deemed to be
sexually dangerous. Earlier in another case Hendricks, the Court ruled
that it does not violate due process for a state to indefinitely imprison
such individuals even after they have completed their prison
sentences. The issue in Comstock, is whether Congress had the
constitutional authority to provide for such indefinite detentions.
 The SC upheld the federal law and stressed that this was
permissible as an exercise of Congress’s power under the
necessary and proper clause. Justice Breyer quoted at
length “We have since made clear that in determining
whether the necessary and proper clause grants congress
the legislative authority to enact a particular provision we
look to see whether the statute constitutes a means that
is rationally related to the implementation of a
constitutionally enumerated power. The Court explained
that the relevant inquiry is simply whether the means
chosen are “reasonably adapted” to the attainment of a
legitimate end under the commerce power or under other
powers that the Constitution grants Congress the
authority to implement.
 Using this approach the court decided that the indefinite
commitment of sexually dangerous individuals fits within
the scope of the necessary and proper clause. The Court
stressed that Congress has the power under the necessary
and proper clause to prescribe the sanctions for crimes it
creates.
The Taxing & Spending Powers:


NFIB v. Sibelius (tax part)
By a vote of 5-4, the Court upheld the individual mandate component
of the ACA as a valid exercise of Congress’s power to lay and collect
taxes. “The Congress shall have the power to lay and collect taxes,
duties, impost and excises, to pay the debts and provide for the
common defense and general welfare of the United States…”
The Affordable Care Act’s requirement that certain individuals pay a
financial penalty for not obtaining health insurance may reasonably be
characterized as a tax, because the constitution permits such a tax, it
is not our role to forbid it, or to pass upon its wisdom or fairness.
32
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Further the court ruled that while the section 5000A penalty is treated
as a tax for constitutional purposes, it is not a direct tax, and therefore
is not required to be apportioned among the states according to the
population. The Court concluded: “A tax on going without health
insurance does not fall within any recognized category of direct tax.
South Dakota v. Dole
As the Court held, Congress has the broad power to spend funds to
advance the general welfare. Congress may spend in any way it
believes would serve the general welfare, so long as it does not violate
another constitutional provision.
Congress may place conditions on such grants, so long as the
conditions are expressly stated, have some relationship to the purpose
of the spending program and are not unduly coercive. This was
affirmed in South Dakota v. Dole,
A federal law sought to create a 21-year-old drinking age by
withholding a portion of federal highway funds from any state
government that failed to impose such a drinking age. Specifically five
percent of federal highway funds would be denied to any state that did
not create a 21-year-old drinking age.
 The SC approved this condition on federal money. The
Court emphasized that the condition imposed by Congress
was directly related to one of the main purposes behind
federal highway money creating safe interstate travel.
 The court recognized that at some point the financial
inducement offered by Congress might be so coercive as to
pass the point at which pressure turns into compulsion.
But the Court said that in this case, the condition of
federal highway money was a relatively mild
encouragement and was constitutional even if Congress
might lack the power to impose a national minimum
drinking age directly, we conclude that encouragement to
state action is a valid use of the spending powers.
SC held that Congress may place strings on grants to state and local
governments so long as the conditions are expressly stated. The
conditions on the money can not be ambiguous.
So in sum, Congress possesses expansive power to spend for the
general welfare so long as it does not violate another constitutional
provisions. Congress may impose conditions on grants to state and
33
local governments so long as the conditions relate to the purpose of the
spending, are clearly stated and not unduly Coercive.
 Spending Power Summary CHEM pg. 287-290
10th Amendment &Federalism CHEM pg. 326-327;332-340
 10th 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.”
o The main question whether or not the 10th amendment is a
judicially enforceable limit on Congress’s powers; can deferral
laws be declared unconstitutional as violating this constitutional
provision?”
 One approach is that the 10th amendment is not a
separate constraint on Congress but rather is simply a
reminder that Congress only may legislate if it has
authority under the Constitution.
 Under this approach a federal law never would be
found unconstitutional as violating the 10th
Amendment but it could be invalidated as
exceeding the scope of Congress’s powers under Art
I of the Constitution or for violating another
constitutional provision.
 The alternative approach is that the 10th amendment
protects state sovereign from federal intrusion. Under this
approach, the 10th Amendment is a key protection of
states rights and federalism. The 10th amendment
reserves a key protection of states rights and federalism.
 The 10th amendment reserves a zone of activity to
the states for their exclusive control and federal
laws intruding into this zone should be declared
unconstitutional by the courts.
Printz v. US

Constrains Congress’s power to regulate guns – mandate to require
states to do background checks on firearms.

Anti Commandeering reading of the 10th amendment – it prevents
Congress from doing certain things. If Congress acts within its powers
to do something and state law is the opposite, then supremacy kicks in
(McCulloch – Congress can create a bank and state cannot interfere
with it.)

Congress can not do certain things because the 10th amend prohibits
them, Congress cannot commandeer/command states to act in certain
ways.
34

But it is also the case that Congress can legislate in other
ways that can mandate state action.
The Modern Debate Over Racial Equality
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Backdrop CHEM pg. 734-735:
Brown v. Board of Education overturned Plessey v. Ferguson
Brown, one of the five cases decided together involved a challenge to
the segregation of the Topeka Kansas public schools.
Modality – historical looks at the intent of the framers when making
14th (what was their opinion of school … there was not schools) difficult
and not enough for this problem anyway.. must look at present and
take into account changes.
Holding – Education is really important, so important that it cant be
distributed in a discriminary way
The SC stated the issue as “ Does segregation of children in public
schools solely on the basis of race, even though the physical facilities
and other tangible factors may be equal deprive the children of the
minority group of equal educational opportunities?
 The Court answered this question by declaring that state
mandated segregation inherently stamps black children
as inferior and impairs their educational opportunities.
“To separate them from others of similar age and
qualifications solely because of their race generates a
feeling of inferiority as to their status in the community
that may affect their heats and minds in a way unlikely
ever to be undone.
 Separate educational facilities are inherently unequal.
Bolling v. Sharpe
Reverse incorporation (Equal Protection guarantee in the 14th
amendment will be read into the liberty prong of the 5th
amendment Due Process lecture 3/11)
In Bolling the Court did not address school desegregation in the
context of the 14th amendment’s EP clause, which applies only to the
states, but rather held that school segregation was unconstitutional
under the Due Process Clause of the 5th amendment. The Court
observed that the 5th amendment lacked as in the 14th amendment.
The court held however that the concepts of EP and Due Process are
not mutually exclusive, establishing the reverse incorporation doctrine.
A group of parents from the Anacostia neighborhood of Washington,
D.C., petitioned the BOE of the District of Columbia to open the nearly
completed JPSJ High as an integrated school. The school board denied
the petition and the school opened admitting only whites.
35

While 5th Amendment lacks an EP protection clause, the concepts of
EP and DP both stemming from our American idea of fairness are not
mutually exclusive. While EP is a more explicitly safeguard against
discrimination, the Court states that discrimination may be so
unjustifiable as to be violative of due process; referring to the
technicalities raised by the cases location in the District of Columbia
(14th applies to states, DC not a state.)
 SC links the 14th amendment EP clause into the liberty
prong of the 5th amend; so segregation violates DP clause.
 Whether incorporation or reverse incorporation, in each
case the concept of liberty in the due process clause of the
5th or the 14th amendment is being read substantively to
include certain substantive rights. (Reading liberty in the
Due process clause meaning among other things equal
protections clause.)
 There is nothing in the Bill of rights that says EP
applies to the federal governments that’s why it’s
called reverse incorporation. (State protections
applied to fed government)
 Liberty is used to read substantive rights into the
Due process Clause.
Massive Resistance & Remedies CHEM pg. 751-757

Remedies: The Problem of School Segregation:
In examining the problem of fashioning remedies in school desegregation cases five
topics are examined.
o (1) First the history of massive resistance is reviewed; (2) The problem of
proving discrimination in the schools’ context is considered; (3) The
fashioning of remedies what courts can and cannot do and under what
circumstances is discussed; (4) the section examines supreme Court decisions
concerning when federal desegregation remedies should be ended; (5) the
section concludes by considering the most recent SC decision on school
desegregation, which limited the ability of school boards to use race as a
factor in assigning students to schools to achieve desegregation.
o The reality is that most children in the United States are educated only with
their own race. In 2012-2013, in the Boston public schools, only 12 percent of
the students were white. In part this is because of the SC created since the
1970s, discussed below to proving discrimination, to federal courts fashioning
remedies, and to continuation of desegregation efforts.
De Jure & De Facto Discrimination CHEM pg. 757-758
The Antidiscrimination Principle: Anti Classification & Anti-Subordination
 Keyes v. School District No. 1, thus held that absent laws requiring school
segregation, plaintiffs must prove intentional segregative acts affecting a substantial
part of the school system. Such proofs shift the burden of proving that other
segregated schools within the system are not also the result of intentionally
segregative actions.
36
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
The Court therefore drew a distinction between de jure
segregation, which existed throughout the south, and de facto
segregation, which existed in the North. The latter constitutes a
constitutional violation only if there is proof of discriminary purpose.
 This approach is consistent with the Supreme Court cases,
holding that when laws are facially neutral, proof of a
discriminatory impact alone is not sufficient to show an equal
protection violation; there must also be a discriminatory
purpose
Thus, proof of racial separation in schools is not sufficient to establish
an equal protection violation or provide a basis for federal court
remedies. As is true in other areas of equal protection law, there must
be either proof of laws that mandated segregation or evidence of
intentional acts to segregate the schools.
 Proof of intentional discrimination as to a substantial part of
the school system will justify a system wide remedy, unless
the school system can demonstrate that the segregation in
those areas was not a consequence of its segregative acts.
Race-Specific Classifications Disadvantaged Racial Minorities
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Korematsu v. United States (1944)
Case where the SC upheld the constitutionality of the evacuation of
Japanese Americans. The Court accepted the government’s claim that
there was a serious risk to national security from Japanese Americans
who were disloyal to the United States and that there was no way of
screening to identify such individuals.
Justice Black writing for the court “Like curfew, exclusion of those
Japanese origin was deemed necessary because of the presence of an
unascertainable number of disloyal members of the group, most of
whom we have no doubt were loyal to this country. It was because we
could not reject the finding of the military authorities that it was
impossible to bring about immediate segregation of the disloyal from
the loyal that we sustained the validity of the curfew order as applying
to the whole group.
The Court emphasized that it was upholding the order because it was
wartime and hardships are part of war. Korematsu, is objectionable
because the government used race alone as the basis for predicting
who was a threat to national security and who would remain free.
The racial classification was enormously overinclusive: All Japanese
Americans were evacuated and interned because a few might be
disloyal. The racial classification also was enormously under inclusive:
Those of other races who posed a threat of disloyalty were not interned
and evacuated. Even though winning the war undoubtedly was a
compelling purpose, the means was not necessary to attaining that
end.
37
o Perhaps these cases are best understood as examples of the
Courts tremendous deference to the military especially in time
of war. Yet it can be argued that the Constitution and the
Courts role are most important precisely in such times when
pressure and even hysteria to violate rights and discriminate
will be most likely to occur.
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Loving v. Virginia overruled Pace v. Alabama
The SC declared unconstitutional a states miscegenation statute that
made it a crime for a white person to marry outside the Caucasian
race.
The Court express repudiated the states argument that the law was
permissible it burdened both whites and minorities. The court said “we
reject the notion that the mere equal application of a statute
concerning racial classifications is enough to remove the classifications
from the 14th amendments proscription of all invidious racial
discriminations. There can be no question but that Virginia
miscegenation statutes rest solely upon distinction drawn according to
race.
There can be no doubt that restricting the freedom to marry solely
because of racial classifications violates the central meaning of the EP
clause.
The Court concluded it’s opinion with a short section ruling that it also
violated the Due Process clause, because it deprived its people of a
constitutionally protected rights without due process of law. It held
that the freedom to marry is a fundamental right, and therefore that
depriving Americans of this liberty on an arbitrary basis such as race
was unconstitutional.
 The freedom to marry has long been recognized as one of
the vital personal rights essential to the orderly pursuit of
happiness by free men. Marriage is one of the basic civil
rights of man.” Fundamental to our very existence and
survival. To deny this fundamental freedom on so
unsupportable a basis as the racial classifications
embodied in these statutes, classifications so directly
subversive of the principle of equality at the heart of the
14th amendment, is surely to deprive all the states
citizens of liberty without due process of law.
What is Race Dependent pg. 1160-64

Washington v. Davis
Applicants for the police force in Washington Dc were required to take
a test, and statistics revealed that blacks failed the exam much more
38
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
often than whites. The SC however held that proof of a discriminatory
impact is insufficient by itself to show the existence of a racial
classification.
Justice White writing for the majority said that the Court never had
held that “ a law or other official act without regard to whether it
reflects a racially discriminatory purpose is unconstitutional solely
because it has a racially disproportionate impact. The Court explained
that discriminatory impact, standing alone does not trigger the rule
that racial classification are to be subjected to the strictest scrutiny
and are justifiable only by the weightiest of considerations.
In other words laws that are facially neutral as to race and national
origin will receive more than rational basis review only if there is proof
of a discriminatory purpose. The court justified this conclusion, in part
based on its view that the purpose of the equal protection clause “is the
prevention of official conduct discriminating on the basis of race. The
Court also emphasized that allowing discriminatory impact to
suffice in proving a racial classification “would raise serious
questions about and perhaps invalidate, a whole range of tax,
welfare, public service, regulatory, and licensing statutes that
may be more burdensome to the poor and the average black
than to the more affluent white.”
Village of Arlington Heights v. Metro Housing Corp.,
Case heard by the SCOTUS dealing with a zoning ordinance that in a
practical way barred families of various socioeconomic, and ethnoracial backgrounds from residing in a neighborhood. The Court held
that the ordinance was constitutional because there was no proof that
“discriminatory purpose was a motivating factor in the Village’s
decision.”

The Court stated that the challenging party has the burden of showing
that 1) the official action affects a protected class in greater proportion
than others, and if such is established, 2) that the official action was
intended to discriminate against a suspect or protected class.

Determining the intent of the official action can be difficult (outside of
rare cases where racial discrimination is obvious on the face), and the
court suggested that a fact intensive balancing test considering many
factors including but not limited to: 1) the impact of the challenged
decision (whether it disproportionately impacted one race); 2) the
historical background of decisions under the official action, particularly
if unequally applied in situations involving race; 3) the specific
sequences of events leading up to the decision challenged in the case,
including departures from normal procedures in making decisions and
substantive departures, (i.e., if the decision maker would have made a
different choice had the applicant been white, then race was the
39
deciding factor); and 4) the legislative history where there are
contemporary statements made by the governmental body who created
the official action.

Footnote 21 introduces an idea of causation to these cases. Namely, it
states that the petitioner must prove respondent had 1) an improper
intent (i.e. that his intent was to discriminate against another race).
After this is proven, the burden of proof shifts to the respondent, who
must prove that 2) the improper intent did not actually affect the
outcome of his decision. Thus, the court is saying that to satisfy this
test, you must prove improper intent, a disparate impact, and
causation in-fact (i.e. that the improper intent is the cause of the
disparate impact). If causation in-fact cannot be proven, "there would
be no justification for judicial interference with the challenged
decision," as "the complaining party in a case of this kind no longer
fairly could attribute the injury complained of to improper
consideration of a discriminatory purpose."
Facially Neutral Laws with a Discriminatory Impact or with
Discriminatory Administration CHEM pg. 740-743
The Requirement for Proof of a Discriminatory Purpose.
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
Some laws that are facially race neutral are administered in a manner
that discriminates against minorities or has a disproportionate impact
against them. The SC has held that there must be proof of a
discriminatory purpose in order for such laws to be treated as racial or
national origin classifications.
Mobile v. Bolden – The Court declared: “Only if there is purposeful
discrimination can there be a violation of the EP clause this principle
applies to claims of racial discrimination affecting voting just as it does
to other claims of racial discrimination.

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U.S v. Clary
Clary was convicted of possession of cocaine with intent to
distribute. Federal law imposed minimum sentences of 20 years
for possession of 50 grams of crack cocaine (cocaine base), or
5,000 grams of powder cocaine. Congress based this discrepancy
on the potency addictiveness and low price of crack. In practice
92.6 percent of those convicted of possession of crack were black.
Approximately the same percentages of these convicted of
possession of powder cocaine were white.
Is a facially neutral law that has a disproportionate adverse
impact on an identifiable group constitutional if the effect
cannot be traced to a discriminatory purpose?
40
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Yes. A facially neutral law that has a disproportionate adverse
impact on an identifiable group is unconstitutional if the effect
can be traced to a discriminatory purpose. To be
unconstitutional based on a disparate impact, the law must be
passed because of, and not merely in spite of, its discriminatory
effect. In this case, the sentencing guidelines are constitutional.
There is no evidence that Congress passed the sentencing
guidelines for the purpose of having a discriminatory effect on
black individuals. Although the guidelines in practice may have
a disparate impact on black individuals, and although Congress
may not have accounted for the foreseeability of that impact, it
is the intent behind the law that is the key inquiry. There is no
evidence that Congress had intent to discriminate. Accordingly,
the sentencing guidelines are constitutional. The judgment is
reversed, and the case is remanded for resentencing.
McClesky v. Kemp
In this case the SC held that proof of discrimination impact in the
administration of the death penalty was insufficient to show an equal
protection violation. Statistics powerfully demonstrated racial
inequality in the imposition of capital punishment.
The SC however said that for the defendant to demonstrate an equal
protection violation, he “must prove that the decision makers in his
case acted with discriminatory purpose.” Because the defendant could
not prove that the prosecutor or jury in his case was biased, no equal
protection violation existed.
Moreover the Court said that to challenge the law authorizing capital
punishment, the defendant “would have to prove that the Georgia
Legislature enacted or maintained the death penalty statute because
of an anticipated racially discriminatory effect.
 Davis, Bolden, Kemp, clearly establish that proof of a
discriminatory impact is not sufficient by itself to prove
an equal protection violation; there also must be proof of a
discriminatory purpose.
 It should be noted that civil rights statues can and often
do allow violations to be proved based on discriminatory
impact without evidence of a discriminatory purpose. For
example Title VII of the 1964 Civil Rights Act allow
employment discrimination to be established by proof of a
discriminatory impact, and the 1982 amendments to the
Voting Rights Act of 1965 permit proof of discriminatory
impact to establish a violation of that law. But the Court
has said that under the Constitution, proof of
41
discriminatory impact is by itself insufficient to establish
a denial of EP.
Affirmative Action:

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
University of California v. Bakke
Another important objective of affirmative action is enhancing
diversity. Entirely apart from remedying past discrimination, race
might be used in decision making to provide more diversity than would
exist through a completely color blind system.
The University of California, Davis Medical School practiced a policy
whereby it reserved sixteen out of one hundred places in its entering
class for members of racial minority groups. A special committee was
appointed to administer this admissions policy. Allan Bakke (plaintiff)
brought suit against the Regents of the University of California
(defendant) on the ground that this policy was unconstitutional. Bakke
challenged the policy in California state court after his application for
admission was rejected even though applicants were admitted under
this special policy with grade point averages, MCAT scores, and
benchmark scores that were significantly lower than Bakke’s averages
and scores.
o Whether a public university receiving federal funds may
constitutionally exhibit a preference for racial minorities in its
admissions policy?
o Rule – Strict Scrutiny if it is a race dependent decision then
strict scrutiny should apply no matter whose benefitted and
burdened. It would be preferential treatment for some groups to
have less strict standard; Consistency theory – skepticism is
always the appropriate standard.
This justification for affirmative action is most frequently invoked with
regard to decisions by colleges and universities, both in admitting
students and in hiring faculty members. The argument is that race is a
powerful factor in influencing a persons experiences and perceptions.
Education is enhanced when there is a diverse student body and
faculty.
Justice Powell argued that the interest is compelling in the context of a
university’s admissions program. Ideally such diversity would occur
through a race blind admissions and hiring policies.
City of Richmond v. Croson
42
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The SC invalidated an affirmative action program in Richmond,
Virginia that set aside 30 percent of public works monies for minority
owned businesses. The Court emphasized that the set aside was not
narrowly tailored because it also benefited Spanish speaking, oriental,
Indian, eskimo or aluet persons, that may never have suffered from
discrimination in the construction industry in Richmond. The Court
also said “there does not appear to have been any consideration of the
use of race neutral means to increase minority business participation
in city contracting.
In 1983, the City of Richmond, Virginia adopted the Minority Business
Utilization Plan that required primary contractors to whom the City
awarded construction contracts to subcontract at least thirty percent of
the contract to one or more Minority Business Enterprises. The thirty
percent set aside did not apply to primary contractors that were not
themselves controlled by minority group. The City adopted the plan
after studies suggested that very few contracts were awarded to MBEs
despite the city’s large minority population. No direct evidence existed
however of any discrimination against MBSs by the City or its prime
contractors. The J.A. Croson Co. (plaintiff), a primary contractor, lost
its contract with the city after failing to designate thirty percent of the
value of its contract to MBEs. Croson sued the City of Richmond in
federal district court, which upheld the constitutionality of the MBUP.
May a city constitutionally use a set aside plan requiring prime
contractors to give thirty percent of their business to minority
controlled subcontractors?
Majority- Here strict scrutiny is the appropriate standard of review to
judge the constitutionality of the City’s actions in attempting to
remedy discrimination.
To pass strict scrutiny, the City must demonstrate that it used
narrowly tailored means to accomplish a compelling state interest.
In short the Court held that the city of Richmond’s minority set-aside
program was unconstitutional under the EP clause. The Court found
that the city failed to identify both the need for remedial action and
that other non-discriminatory remedies would be insufficient.
 We, therefore hold that the city has failed to demonstrate
a compelling interest in apportioning public contracting
opportunities on the basis of race. To accept Richmond’s
claim that past societal discrimination alone can serve as
the basis for rigid racial preferences would be to open the
door to competing claims for “remedial relief” for every
disadvantaged group. The dream of a Nation of equal
citizens in a societal where race is irrelevant to personal
opportunity and achievement would be lost in a mosaic of
shifting preferences based on inherently immeasurable
43
claims of past wrongs. Courts would be asked to evaluate
the extent of the prejudice and consequent harm suffered
by various minority groups. Those whose societal injury is
though to exceed some arbitrary level of tolerability then
would be entitled to preferential classification. We think
such a result would be contrary to both the letter and the
spirit of a constitutional provisions whose central
command is equality.



Adarand Constructors v. Pena
The SC held that set asides created by federal law also must meet
strict scrutiny. Adarand involved a challenge to the federal
government’s practice of giving general contractors on government
projects a financial incentive to hire minority businesses as
subcontractors. The Supreme Court did not rule on the
constitutionality of the program, but rather remanded the case for it to
be evaluated under strict scrutiny.
Rule: Skepticism, consistency, congruence – does not matter who is
benefitted/burdened, all race base classifications get strict scrutiny
even if intent is benign or invidious. Consistency means that when
someone is treated differently because of race that person falls within
equal protection.
Congruence Principle- so that the 5th and 14th analyses are the same.
Court said racial classification must serve a compelling government
interest and must be narrowly tailored to further that interest. Court
refused to hold benign racial classifications to a lower standard
because it said it wasn’t clear what was benign.
CHEM pg. 770
Grutter v. Bolinger (White Woman, Michigan Law)
 The University of Michigan Law School followed an unofficial policy
that sought to achieve student body diversity by giving substantial
weight to the race of each applicant in making admissions decisions, in
addition to its consideration of other academic and non-academic
variables. Barbara Grutter (plaintiff) was a Caucasian Michigan
resident who applied to the Law School with a 3.8 grade point average
and 161 LSAT score. The Law School rejected her application, and she
filed suit in federal district court against Bollinger, the university
president, and other university officials (defendants) alleging her
denial of admission was a violation of the Equal Protection Clause of
the Fourteenth Amendment.
 Yes. The Court previously addressed the use of race as a consideration
in higher education admissions in its decision in University Regents v.
Bakke, 438 U.S. 235 (1978). In Bakke, the Court was unable to reach a
44
majority on the question of whether it was unconstitutional to consider
race as an important factor in admissions for the purpose of remedying
past discrimination against minorities. Student body diversity is a
compelling state interest that justifies the use of race in university
admissions. The proper standard for reviewing this issue is strict
scrutiny. In determining that the Law School’s policy passed strict
scrutiny, a certain amount of deference is given to the Law School’s
admissions department in their determination that diversity is
essential to its educational mission. The Law School cites significant
benefits as reasons for its policy, including the promotion of crossracial understanding, the breaking down of racial stereotypes, and the
enabling of students to better understand persons of different races.
Any one of these benefits constitutes a compelling state interest for
strict scrutiny. Additionally, the Law School uses narrowly-tailored
means to accomplish its purpose because it does not employ a quota
system as outlawed in Bakke to achieve diversity. The Law School
provides an individual, holistic review of each of its applicants and
reasons that alternative methods of achieving the Law School’s
purpose risk sacrificing both academic excellence and other types of
diversity in the school. However, the Law School should cease racial
consideration in its admissions policies after instances of past
discrimination have been sufficiently remedied. The admissions policy
does not violate the Fourteenth Amendment, and the decision of the
court of appeals is affirmed.
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
Gratz v. Bollinger
Gratz and Hamacher (plaintiffs), both Caucasians, applied for
admission to the University of Michigan’s undergraduate program.
Both were denied admission and filed suit in federal district court
against Bollinger (defendant), a University of Michigan administrator,
seeking to challenge the University’s admissions policy on the grounds
that it violated the Equal Protection Clause of the Fourteenth
Amendment. The challenged policy ranked applicants on a 150 point
scale that accorded different point values to factors such as grade point
average, test results, and personal achievements. However, an
applicant automatically received twenty bonus points if he or she was
a member of an underrepresented minority group, attended a
predominantly minority or disadvantaged high school, or was recruited
for athletics. Some applicants were flagged for additional personal
consideration, but most were admitted solely based on the point
system.
Chem pg. 777: The Court invalidated an affirmative action program for
undergraduate admissions that added 20 points to the applications for
minority students. The Court ruled that the undergraduate program
45
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was not sufficiently narrowly tailored to meet strict scrutiny used for
government racial classifications. The bottom line is that the Court in
Grutter and Gratz adhered to the position articulated by justice Powell
in Regents of the University of California v. Bakke almost 40 years
ago: Diversity is a compelling interest in education and universities
may use race as a factor to ensure diversity, but quotas or numerical
quantification of benefits is impermissible.
The underlying question is whether this is a distinction that makes a
difference. Practically speaking can colleges and universities effectively
add points so long as it is not done explicitly and officially? Is there
really a difference between a college having a set aside and a college
using race as a factor in admissions decisions and keeping track of the
number of minority students to ensure critical mass.
Voluntary Desegregation Efforts (Parents involved v. Seattle) CHEM
pg. 762

VIII. Gender Classifications and Gender Equality
The Intermediate Scrutiny Standard
Frontiero v. Richardson, pp. 1381-1388
 In this case four justices took the position that gender classifications
should be subjected to strict scrutiny. A federal law allowed a man to
automatically claim his wife as a dependent and thereby receive a
greater allowance for quarters and for medical benefits. A woman
however only could gain these benefits if she could prove that her
spouse was a dependent on her for over half of his support.
 Brennan for plurality – “classifications based on sex, like
classifications based upon race, alienage or national origin are
inherently suspect and must therefore be subjected to strict judicial
scrutiny.
o Brennan explained – “There can be no doubt that our Nation has
had a long and unfortunate history of sex discrimination.
Traditionally such discrimination was rationalized by an
attitude of romantic paternalism, which in practical effect put
women, not on pedestal but in a cage. Characteristics that
justify strict scrutiny of racial classification also are present as
to gender discrimination: Women still face pervasive, although
at times more subtle, discrimination in our educational
institutions, in the job market and in the political arena.
46
o Moreover, since sex, like race and national origin, is an
immutable characteristic determined solely by birth, the
imposition of special disabilities upon members of a particular
sex would seem to violate the basic concept of our system that
legal burdens should bear some relationship to individual
responsibility.
 Because there was not a majority supporting strict scrutiny in this
case, the level of scrutiny for gender classifications remained
uncertain. Finally in Craig v. Boren, the Supreme Court agreed upon
intermediate scrutiny as the appropriate level of review for gender
classifications and declared, “ To withstand constitutional challenge,
previous cases establish that classification by gender must serve
important governmental objectives and must be substantially related
to those objectives. Since Boren the Court on many occasions, has
reaffirmed and applied intermediate scrutiny for gender classifications.
The Court has held that intermediate scrutiny is to be used for both
gender classifications discriminating against women and those
discriminating against men.



--Reasoning From Race? pp. 1388-1396 (through n.5)
--Intermediate Scrutiny, pp. 1399-1405
United States v. Virginia (VMI), pp. 1413-1433
SC declared unconstitutional the exclusion of women by the Virginia
Military Institute (VMI). Virginia in response to an order from the
United States Court of Appeals for the 4th Circuit had created the
Virginia Women’s Institute for leadership at Mary Baldwin College.
The Court found this insufficient to excuse VMI’s gender
discrimination; women were denied an opportunity available only for
men.
Ginsburg applied intermediate scrutiny and said that parties who seek
to defend gender based government action must demonstrate an
exceedingly persuasive justification for that action. The burden of
justification is demanding and it rests entirely on the State.
 The Justification must not rely on overbroad
generalizations about the different talents, capacities or
preferences of males and females. VMI’s exclusion of
women was found unconstitutional because it was based
entirely on gender stereotypes. Indeed the Court
emphasized that successful gender integration of the
federal military academies belied any claims of a need to
exclude women from VMI.
Although it is clearly established that intermediate scrutiny is the test
for gender classifications, there have been occasional cases since Craig
v. Brown where gender classifications have been upheld without the
47
Court expressly using intermediate scrutiny or mentioning a level of
scrutiny.
 Michael M & Rostker v. Goldberg, is an example of this.
In one case a federal law upheld a federal law requiring
men, but not women to register for the draft; the other
states statutory rape law punished men for having sex
with girls under 18 but did not punish women for having
sex with a man under the age of 18. In neither case did
the Court articulate a level of scrutiny, and in both the
Court showed great deference to the government.
B. What is Discrimination “On the Basis of” Sex?
--Pregnancy As Justification For Sex-Differentiated Treatment, pp.
1442-1445
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Personnel Administrator of MA v. Feeney, CHEM pp. 791
There are two main ways of proving a gender classification; they are
identical to the two methods of demonstrating a racial classification.
First the gender classification can exist on the face of the law; that is
the law in its very terms draws a distinction among people based on
gender.
 All of the cases discussed thus far concerning gender
discrimination are of this type.
Second, if a law is facially gender neutral, proving a gender
classification requires demonstrating that there is both a
discriminatory impact to the law a discriminatory purpose behind it.
In Personnel v. Feeney, the SC upheld state law that gave a preference
in hiring to veterans even though it had a substantial discriminatory
impact against women. Helen Feeney repeatedly took civil service
examinations for particular positions and received among the highest
scores in the state but was placed below list of veterans with lower
scores. At the time the litigation was commenced, “over 98 percent of
veterans in Massachusetts were male; only 1.8 percent were female.
And over one quarter of the Massachusetts population were veterans.
Nonetheless the SC rejected the claim of gender discrimination. The
Court said that the law providing a preference for veterans was gender
neutral and that discriminatory impact was not sufficient to prove the
existence of sex based classification; there also must be proof of a
discriminatory purpose. The Court concluded that “nothing in the
record demonstrates that this preference for veterans was originally
devised or subsequently re-enacted because it would accomplish the
collateral goal of keeping women in a stereotype and predefined place
in the Massachusetts civil service. The ways of proving a
48
discriminatory purpose based on gender is identical to the ways to
prove a discriminatory purpose based on race.
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Geduldig v. Aiello, CHEM pp. 792-793 Overruled by PDA
The SC held that is was not a denial of EP for a state’s disability
insurance system to exclude pregnancy related disabilities, but include
disabilities affecting only men. California disability law provided
payments for disabilities lasting more than 8 days and less than 26
weeks, but denied coverage for disabilities caused by pregnancy. The
SC held that this was not a gender classification warranting more than
rational basis review. The Court explained, “ There is no risk from
which men are protected and women are not. Likewise, there is no risk
from which women are protected and men are not.
The court goes on and elaborates – “The lack of identity between the
excluded disability and gender as such under this insurance program
becomes clear upon the most cursory analysis. The program divides
potential recipients into two groups: pregnant women and nonpregnant persons. While the first group is exclusively female, the
second includes members of both sexes.
The Court said that the exclusion of pregnancy met rational basis
because the state has a legitimate interest in maintaining the fiscal
integrity of its program and making choices in allocating its funds.
 Court assumes that pregnancy is not a sex-based
characteristic? The entire burden from the exclusion of
pregnancy is borne by women, making the discriminatory
nature of the statute obvious. The exclusion would not
only impact those pregnant but also those capable of
becoming pregnant: women.
o Congress overruled Geduldig, when it enacted the Pregnancy
Discrimination Act, which defined sex discrimination to include
pregnancy discrimination and prohibits discrimination on that
basis. Although Geduldig impact has been negated in the area of
pregnancy by the Pregnancy Discrimination Act, its reasoning is
still applied by the Court in other context.
Nevada Dept. of Human Resources v. Hibbs, CHEM pp. 319
 William Hibbs worked for the Nevada Department of Human
Resources in its Welfare Division. He requested leave from the
Department under the FMLA in order to care for his wife, who
had been in a car accident and undergone neck surgery. The
Department granted the request and told Hibbs he could use the
full 12 weeks of FMLA leave intermittently as needed between
May and December 1997. He used the leave intermittently until
August 5th of that year, after which he did not return to work. In
49
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October the Department informed Hibbs that he has exhausted
his FMLA leave and was required to report to work by
November 12. When he failed to report he was fired.
The SC held that the family leave provision of the Family and
Medical Leave Act fits within the scope of Congress’s section 5
powers and can be used to sue state governments. The FMLA
requires that employers, including government employers,
provide their employees with unpaid leave time for family and
medical care.
Held that the family leaves provision is a valid congressional
abrogation of state sovereignty immunity. FMLA aims to protect
the right to be free from gender-based discrimination in the
workplace. The Court said that Congress, recognizing social
realities, found that the absence of family leave policies
disadvantaged women in the workplace.
Although the FMLA is gender neutral in that it requires leaves
be granted to both men and women, and Hibbs was male, the
Court said that Congress clearly intended the law to prevent
gender discrimination in employment.
IX. Modern Substantive Due Process: Privacy, Sexual Autonomy,
Guns, Tradition
A. Privacy Constitutionalized

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
Griswold v. Connecticut, pp. 1505-1523
SC declared unconstitutional a state law that prohibited the use
and distribution of contraceptives. A Connecticut law said: “Any
person who uses any drug, medicinal article, or instrument for the
purpose of preventing conception shall be fined not less than fifty
dollars or imprisoned not less than sixty days nor more than one
year or both fined and imprisoned.” The law also made it a crime to
assist, abet, or counsel a violation of the law.
The case involved a criminal of Estelle Giswold, the executive
director of the Planned Parenthood Legaue of Connecticut and a
doctor who openly ran a family planning clinic from November 1 to
November 10, 1961. They were prosecuted for providing
contraceptives to a married woman.
The SC found that the right to privacy was a fundamental right.
Justice Douglass found that privacy was implicit in many of the
specific provisions of the Bill of Rights; “The foregoing cases suggest
that specific guarantees in the Bill of rights have penumbras (the
rights guaranteed by implication in a constitution or the implied
powers of a rule.) Formed by emanations from those guarantees
50
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that help give them life and substance. Various guarantees create
zones of privacy … We have had many controversies over these
penumbral rights of privacy and repose. These cases bear witness
that the right of privacy, which presses for recognition here, is a
legitimate one.
Douglass then concluded that the Connecticut law violated the
right to privacy in prohibiting married couples from using
contraceptives. Douglass said: “Would we allow the police to search
the sacred precincts of the bedrooms for tell tale signs of the use of
contraceptives? The very idea is repulsive to the notion of privacy
surrounding the marriage relationship.
In a attempt to avoid substantive due process, Douglass who had
lived through the Lochner era found privacy in the “penumbra” of
the Bill of rights. This approach does not seem to accomplish the
goal of avoiding substantive due process because the bill of rights is
applied to the states through the due process clause of the 14th
amendment; the penumbra approach is thus ultimately a due
process analysis.
 Also it is important to note that Douglass did not focus
on a right to avoid procreation or to make reproductive
choices. Rather, Douglass focused on the need to
protect privacy of the bedroom from intrusion by the
police and the ability to control information about
contraceptive use. It was not until later cases,
discussed that the Court expressly protected access to
contraceptives as a part of reproductive autonomy.
--Interpretive Issues, pp. 1523-1530
--The Reach of Griswold, pp. 1530-1533


--“Tradition as Source of Fundamental Rights,” pp. 1533-1537 (note
Especially:
Michael H. v. Gerald D. CHEM pp. 838
The SC went even further in limiting the rights of non-married fathers.
The SC held that even an unmarried father who participated actively
in the childs life is not entitled to due process if the mother was
married to someone else. Specifically, the SC ruled that a state may
create an irrebuttable presumption that a married woman’s husband is
the father of her child even though it negates all of the biological
father’s rights.
Michael H. involved a married woman who conceived a child as a
result of an affair. The biological father was regularly involved in the
child’s life and sought a court order granting visitation rights.
California law however created a presumption that a married woman’s
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husband is the father of her child if they were cohabitating and if the
husband is not impotent or sterile. The California law allowed this
presumption to be rebutted only within two years after the child’s birth
and only if the husband or wife filed a motion in court. The California
court relied on this statute to deny the biological father all parental
rights, including visitation.
The SC held that this was constitutional. The Court said that the
biological father fits into have a liberty interest in a relationship with
his child because there was no tradition of protecting the father’s
rights when the mother is married to someone else. Plurality – What
counts is whether the states in fact award substantive parental rights
to the natural father of a child conceived within and born into an
extant marital union that wishes to embrace the child. We are not
aware of a single case, old or new that has done so. This is not the stuff
of which fundamental rights qualifying as liberty interest are made.
B. Abortion, Autonomy, Equality
--Did Roe “Cause” the Abortion Conflict? pp. 1560-1563



Roe v. Wade
Of course is the key case recognizing a constitutional right to
abortion. Roe involved a challenge to a Texas law that
prohibited all abortion except those necessary to save the life of
the mother.
Blackman focused on the right to privacy; this right of privacy,
whether it be founded in the 14th amendment conception of
personal liberty and restrictions upon state action, as we feel it
is or in the 9th amendments reservation of rights to the people is
broad enough to encompass a woman’s decision whether or not
to terminate her pregnancy.
 It is notable that the Court did not find privacy in
the Bill of Rights as Douglass did in Griswold in
the penumbras of the Bill of Rights, but instead as
part of the liberty protected under the due process
clause.
The Court observed, however that the right to abortion is not
absolute and that it must be balanced against other
considerations, such as the states interest in protecting prenatal
life. The Court said that strict scrutiny was to be used in
striking the balance because the right to abortion was a
fundamental right.
52
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The Court reiterated that where fundamental rights are
involved regulation limiting these rights may be justified only by
a compelling interest and legislative enactments must be
narrowly drawn to express only legitimate state interest at
stake.
The Court rejected the states claim that fetuses are persons and
that there was a compelling interest in protecting potential life.
The Court observed that there was no indication that the term
person on the constitution ever was meant to include fetuses.
Moreover the Court noted that there was no consensus as to
when human personhood begins, but rather enormous
disagreement among various religions and philosophies. The
Court said: “We need not resolve the difficult question of when
life begin, when those trained in the respective disciplines of
medicine, philosophy and geology are unable to arrive at any
consensus, the judiciary at this point in the development of
mans knowledge is not in a position to speculate as to the
answer.
Court decides that the state has compelling interest in
preserving mothers life after first trimester because after this
point abortions are more dangerous. The compelling point is
viability, this is because the fetus then presumably has the
capability of meaningful life outside the mothers womb.
Thus, the Court divided pregnancy into three trimesters. During
the first trimester, the government could not prohibit abortions
and could regulate abortions only as it regulated other medical
procedures, such as by requiring that they be performed by a
licensed doctor, During the second trimester the government
also could not outlaw abortions, but the government may if it
chooses regulate the abortion procedure in ways that are
reasonably related to maternal health. Finally for the stage
subsequent to viability the government may prohibit abortions
except if necessary to preserve the life or health of the mother.
Abortion and Equality, pp. 1564-1565
Decisions After Roe v. Wade, pp. 1573-1578 or CHEM 856-857


Planned Parenthood of Southeastern Pennsylvania v. Casey
CHEM pp. 860
By a 5-4 margin the Court reaffirms Roe, and that states cannot
prohibit an abortion prior to viability.
Overruled the trimester distinctions used in Roe, and also the use of
strict scrutiny for evaluating government regulation of abortion.
Instead the plurality said that government regulation of abortions
53
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prior to viability should be allowed unless there is an “undue burden”
on access to abortion.
“Liberty finds no refuge in the jurisprudence of doubt” – obviously this
is meant to explain the shift in Justice O’Connor position from
Webster, where she said that the Supreme Court should not reevaluate
Roe until the Court reviewed a law prohibiting abortion. – In this case
they still reevaluated Roe, even though the Penn law before the Court
did not prohibit abortions.
The joint opinion reviewed the cases protecting family and
reproductive autonomy and concluded that these fundamental rights
are protected event though they are not mentioned in the text of the
constitution. The joint opinion said that the right to abortion is
constitutionally protected because of the importance of the choice and
the intrusion in forcing a woman to remain pregnant against her will.
 “The liberty of the woman is at stake in a sense unique to
the human condition and so unique to the law. The
mother who carries a child to full term is subject to
anxieties, to physical constraints, to pain that only she
must bear, her suffering is too intimate and personal for
the state to insist, without more, upon its own vision of
the woman’s role; the destiny of the woman must be
shaped to a large extent on her own conception of her
spiritual imperatives and her place in society.
The opinion then went into a lengthy discussion about the importance
of stare decisis and the circumstances that justify overruling an earlier
precedent. The joint opinion explained that the Court is warranted in
overruling precedents if the earlier decisions had proved unworkable, if
there was an evolution of legal principles that undermined the
doctrinal foundation of the precedents, or if there was a change in the
factual predicate for the decision. The opinion concluded that the basic
decision in Roe was based on a constitutional analysis, which we
cannot now repudiate.
The Court reaffirmed the viability standard set in Roe but overruled
the trimester framework; they did not consider it to be apart of the
essential holding in Roe. The trimester framework suffers from these
basic flaws in its formulation: it misconceives the nature of the
pregnant woman’s interest: and in practice it undervalues the states
interest in potential life, as recognized in Roe.
The test for evaluating the constitutionality of a states regulation on
abortion is whether it places a “undue burden” on access to abortion.
This was the courts way of reconciling the states interest with the
woman’s constitutionally protected liberty. Undue burden is a
shorthand way of saying that the state regulation has the purpose or
54
effect of placing a substantial obstacle in the way of a woman’s access
to abortion.
 The Court says that to promote the states profound
interest in potential life, throughout pregnancy the state
may take measures to ensure that the woman’s decision is
informed and measures designed to advance this interest
will not be invalidated as long as their purpose is to
persuade the woman to choose childbirth over abortion.
These measures must not place an undue burden on the
right.
 The Court upheld the 24hr-waiting period; the
requirement that the woman be told of the
availability of detailed information about the fetus
and the reporting and recording requirements.
However the Court said that spousal notification
requirement is unconstitutional.


Gonzalez v. Carhart, CHEM pp. 863-865
The Court again used the undue burden test, though this time to
uphold a federal law prohibiting “partial birth” abortion.
The key question after Casey, is what constitutes an “undue burden”
on the right to abortion.
 However there are some problems in general with
applying the undue burden test.
 First the undue burden test combines three distinct
questions: Is there a fundamental right; is the right
infringed; is the infringement justified by a
sufficient purpose; are the means sufficiently
related to the end sought? The undue burden test
combines the latter three questions. Obviously
Undue Burden pertains to whether there is an
infringement of the right, but the joint opinion in
Casey also uses it to analyze whether the law is
justified. – There is no level of scrutiny articulated
in Casey evaluating the undue burden test. Undue
burden is confusing to apply because it combines
three distinct issues.
 The Court thus seems to be saying that an undue
burden exists only if there is proof that the
regulation will keep someone from getting an
abortion. However, it must be questioned why
burdens, no matter how substantial, are allowed
unless they are actually proven to prevent
abortions. Also, it is unclear how challengers will
55
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

be able to prove that particular regulations create
insurmountable obstacles to obtaining abortions.
Third there is the issue of how many women must
be adversely affected by a regulation of abortions in
order for it to be considered an undue burden.
The proper focus of constitutional inquiry is the
group for whom the law is a restriction, not the
group for whom the law is irrelevant.
Casey the focus is on whether a law is an undue
burden likely to keep some women from having
access to abortion By Contrast in Gonzales v.
Carhart, the Court said that for a law to be
unconstitutional there must be a showing that it
would be an undue burden for a large fraction of
women. This is a significant change in the law and
one that will make it more likely that courts will
uphold regulation of abortion.
Whole Woman’s Health v. Hellerstedt,
Texas passed a law, placing a series of restrictions on abortion
clinics within the state. The requirement that abortion providers
have admitting privileges at a hospital within 30 miles took
effect. In the time since the admitting privileges requirement
took effect the number of abortion clinics in Texas declined from
42 to 19.

On June 27, 2016, the Court ruled by a 5–3 vote that Texas cannot place
restrictions on the delivery of abortion services that create an undue burden
for women seeking an abortion, therefore the sections of Texas law H.B. 2
challenged here are invalid.[23] In an opinion written by Justice Stephen
Breyer, the court struck key provisions of the law – requiring doctors who
perform abortions to have difficult-to-obtain "admitting privileges" at a local
hospital and requiring clinics to have costly hospital-grade facilities - as
violating a woman's right to an abortion.[24] Observing that these provisions do
not offer medical benefits sufficient to justify the burdens upon access that
each imposes, the majority concluded: "Each places a substantial obstacle in
the path of women seeking a pre-viability abortion, each constitutes an undue
burden on abortion access, and each violates the federal Constitution."[25] The
majority opinion struck down both provisions "facially", that is, the very words
of the provisions are invalid, irrespective of how they might be implemented
or applied.[26] According to the ruling, the task of judging whether a law puts
an unconstitutional burden on a woman's right to abortion rests with the
courts and not the legislatures

See other con law outline.
Sexual Orientation Intro, pp. 1630-1632
56
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Courts unclear as to what level of scrutiny should be used for
sexual orientation discrimination, go with rational basis.
Bowers v. Hardwick, Chem pp. 881
Where the Court ruled that the right to privacy does not protect
a right to engage in private consensual homosexual activity.
Michael Bowers was arrested in his apartment for engaging in
homosexual activity. A police officer came into his apartment on
a unrelated matter and was directed to his room. The officer
witness homosexual behavior and arrested Harwick.
 Georgia Sodomy law- “A person commits the
offense of sodomy when he performs or submits to
any sexual act involving the sex organs one person
and the mouth or anus of another.”
The Supreme Court in a 5-4 decision upheld the Georgia statute.
They began by stating that earlier decisions relating to privacy
permitted to matters of family and reproduction; homosexual
activity, he argued did not fit within these rights. We think that
none of the rights announced in those cases bears any
resemblance to the claimed constitutional right of gays to
engage in acts of sodomy that is asserted in this case. No
connection between family, marriage or procreation one the
hand and gay activity on the other has been demonstrated.
White said that the Court should protect rights as
fundamental only if they are supported by the Constitutions
text, the framers intent, or a tradition of being safeguarded.
White said that neither text nor tradition justified finding a
fundamental right to engage in gay activity.
Romer v. Evans, pp. 821-23
The SC has not yet ruled as to whether discrimination based on sexual
orientation warrants the application of intermediate or strict scrutiny.
Discrimination based on sexual orientation has many characteristics
that are present in other areas where heightened scrutiny is used.
There have been two cases invalidating laws discriminating
against gays and lesbians; one used rational basis and the other did
not indicate the level of scrutiny being applied.
In 1996, the SC used rational basis test to invalidate a Colorado
initiative that encouraged discrimination based on sexual orientation.
Colorado Amendment 2 repealed all state and local laws that
prohibited discrimination against gays, lesbian, and bisexuals. The
popular approved initiative also prevented future laws to protect these
individuals.
57
Justice Kennedy – “Gays by state decree, are put in a
solidary class with respect to transaction and relations in
both the private and the governmental sphere.” The
amendment withdraws from gays but no others, specific
legal protection from the injuries caused by
discrimination and it forbids reinstatement of these laws
and policies.
 The Court said that the initiative failed even rational
basis review. “the amendment has the peculiar property
of imposing a broad and undifferentiated disability on a
single named group, and exceptional and invalid form of
legislation.
 The Concluded that there was no legitimate purpose for
denying gays, lesbians, and bisexuals the same use if the
political process available to everyone else. The only
apparent purpose behind the law was animosity toward
the class of persons affected, and this fails even the
rational basis test.
Romer v. Evans is significant because it was the first time the Court
has invalidated discrimination based on sexual orientation. Although
the used just rational basis review, the decision indication judicial
willingness to protect gays lesbians and bisexuals from discrimination.

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
Lawrence v. Texas, overruled Bowers
A state cannot prohibit private, consensual homosexual activity
The Court expressly overruled Bowers v. Hardwich. Lawrence arose
when police in Texas received an anonymous tip of a disturbance in an
apartment. They went to investigate and entered the apartment; they
found two men engaged in sexual activity. The men were convicted and
fined $200 under a Texas law prohibiting deviate sexual intercourse;
defined as sexual activity between same sex couples.
Lawrence is important in many respects: (Focusing on privacy and due
process)
 First, Lawrence means that laws in 13 states prohibiting
private consensual homosexual activity are
unconstitutional; these statutes are usually the basis for
discrimination against gays and lesbians.
 Second, Lawrence is a powerful affirmation of a right to
privacy under the Constitution. The Court has
safeguarded privacy even though it is not enumerated in
the Constitution for almost a decade, in decisions
involving family autonomy, contraceptive and abortion.
58
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
Third, more than any case in American history,
recognizes that sexual activity is a fundamental aspect of
personhood and that it is entitled to constitutional
protection.
Finally Lawrence is the most important decision to
date recognizing the rights of gays and lesbians to
equal dignity and equal treatment under the
Constitution.
Note on Sexual Orientation, Equal Protection and Level of Scrutiny, pp.
1683-1690
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U.S. v. Windsor, pp. 822-23
Congress passed DOMA in response to a movement that was going on
at the time to legalize same sex marriage. DOMA said that if a same
sex couple got married one state, another state did not have to
recognize it. DOMA also defined marriage for purposes of federal law
as a union between one man and one woman.
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In 2007, Windsor and her partner decided to go to Canada and get
married. They returned to NY and the state recognized their marriage
as legal. In 2009 Windsor’s partner died and left her everything.
Windsor tried to claim the exempt tax provided to survival spouses
under federal law. She was denied based on the federal definition of
marriage under DOMA.
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Windsor sued in federal court arguing that DOMA definition of
marriage violated the 5th amendment.
SC strikes down DOMA, stating that the exclusion of same sex
marriage in DOMA definition violates the Due process clause.
The legislative history of DOMA proves that it was only enacted due to
an impermissible desire to disadvantage gays and lesbians. The court
quoted the House Report on DOMA, which said the act was based on
“both moral disapproval of homosexuality and a moral conviction that
heterosexuality better comports with traditional (especially Judeo
Christian) morality. This is consistent with Romer – govt cannot base a
law on disapproval of homosexuality.
 The Court concluded that DOMA was unconstitutional
because it failed to serve a legitimate government
purpose. The Court declared “the federal statute is invalid
for no legitimate purpose overcomes the purpose and
effect to disparage and to injure those whom the state by
its marriage laws sought to protect in personhood and
dignity. By seeking to displace this protection and
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treating those persons as living in marriages less
respected than others, the federal statue is in violation of
the 5th amendment.
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Obergefell v. Hodges,
SC ruled that it is unconstitutional for states to deny same sex couples
the right to marry.
James Obergerfell and his partner wanted to get married, after John
became terminally ill. At the time they were living in Ohio, a state that
banned same sex marriage. So the couple went to Maryland and got
married. When the partner John passed away, Ohio refused to list
James as the surviving spouse on the death certificate. Obergefell and
13 other affected by the same sex marriage ban sued the officials
responsible for enforcing the ban.
The parties argued that by denying them marriage rights it violated
the 14th amendment.
 2 questions before the Court; (1) Does the 14th
amendment require states to issue marriage licenses to
same sex- couples? (2) Are states required to recognize
lawful out-of-state marriages of same sex couples?
Yes to both questions, same sex couples have a constitutional right to
marry under the 14th amendment. The marriage right must be
recognized across states. Justice Kennedy; the right to marry is a
fundamental right protected by the Due Process Clause. (Court cites
Loving v. Virginia, state statute struck down for prohibiting interracial
marriages. & Lawrence v. Texas, holding that same sex couples have
an equal right to intimate association.) The Court offers four principles
and traditions behind the constitutional right to marry;
 1. The right to choose whether and whom to marry is
inherent in individual autonomy.
 2. The right protects the intimate relationship between
two people.
 3. The right to marry protects children and families by
giving legal protection to homebuilding and childrearing.
 4. Marriage is the keystone of the social order and the
foundation of the family unit.
 The deep social importance of marriage is evident in the
governments provision of numerous benefits to opposite
sex couples, including tax benefits, inheritance rules,
evidentiary privileges and medical decision making
authority.
Kennedy also notes that Due Process and EP are interrelated when it
comes to marriage - Same sex couples are entitled to the same state
benefits that opposite sex couples enjoy.
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Roberts Dissent – The Constitution does not define marriage. The
states should be free to define it. Americans should have an
opportunity to redefine marriage through the democratic process. He
also fears that Majority ruling will lead to the legalization of
Polygamous relationships.
Alito Dissent – The Constitution is silent on same sex marriage. The
issue is reserved solely for the states.
Thomas – The Due Process clause guarantees only procedural rights.
The Due Process Clause does not provide a basis for creating new
substantive rights. Majority reading dangerously stretches the
Constitutional text.
Scalia Dissent – The majority opinion is a threat to American
Democracy.
“Tradition as a Source of Fundamental Rights,”
Where do they come from and who says what they are?
o Liberty Prong of the 14th and 5th amendment (DP clause)
o Talked about in Lochner Era (freedom of contract)
D. Guns and “Self-Defense”
--DC v. Heller; McDonald v. Chicago, pp. 1732-1772 (Excerpts to be
assigned)
--CHEM, pp. 956-96
Exam Outline for Answer
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The first distinction one should make is whether the law being
challenged is a federal law or a state law.
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The next issue is to confront exactly what constitutional objections can
be made to the law at issue.
If not told what issues to address and the law at issue is a federal law
consider what source of power congress appears to be utilizing to enact
the law and whether it could be argued that the law exceeds:
 The scope of Congress’s regulatory authority die to limits
on the commerce power and the spending power or
restrictions rooted in state sovereignty (10th amend)
 Next consider whether the law exceeds one of the
affirmative limits on federal power designed to protect
individual rights. The only individual rights limits on
federal power we studied were 5th amendment DP & EP
limits on the power of Congress, so these are the only
limits you need to consider if a federal law is being
challenged.
If a state or local law is being challenged first consider whether you are
told of the existence of a related federal law. If you are, this is a clear
signal that the questions involve an issue of preemption. If there is a
preemption issue and the regulation at issue impacts economic
interests, you should look to see whether there might also be a
dormant Commerce Clause or Privileges and Immunities Clause of
Article IV, Section 2 argument available. (not sure if Bosniak covered
preemption)
 Finally you should consider whether any due process or
equal protection issues could be raised. If you spot a due
process issue, you should consider whether the question
may involve an EP issue as well and visa versa since
many laws can be challenged on both grounds.
After identifying the various constitutional issues that are involved,
you must start by identifying the standard of review a court would use
to analyze each constitutional issue.
 Sometimes this will be apparent once you identify the
issue since a single standard is always used for some
types of constitutional challenges. For example, all
challenges arising under the Privileges and Immunities
Clause of Article IV, Section 2 utilize the same test: (1)
Does the state have a substantial reason for treating
nonresidents differently; and (2) Does the degree of
discrimination against nonresidents bear a substantial
relation to the state's objective? This test is always
applied after considering three preliminary hurdles: (1)
does the state law discriminate against nonresidents of
the state; (2) is the law being challenged by a flesh and
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blood nonresident; and (3) does the discrimination affect
the exercise of a right essential to interstate harmony?
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Similarly, there are several due process standards and which one
applies depends on whether the right at issue is fundamental or
nonfundamental. These characterization issues are critical to the
remainder of the analysis because the standard applied is often
outcome determinative. Each side will, of course, try and characterize
the law at issue differently. The government will always want to
characterize the law in such a way as to apply the most deferential
standard of review available (such as minimum scrutiny in due process
and equal protection cases) and the party challenging the
constitutionality of the law will always want to characterize the law in
such a way as to apply the most rigorous, least deferential standard of
review available (such as strict scrutiny in due process and equal
protection cases). Both sides must also be prepared to argue in the
alternative, in case the court rejects the characterization they suggest.
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Once an applicable standard of review has been identified,
it is necessary to apply the facts of the question to the
standard. This often, but not always, involves an
evaluation of both the legislative means as well as the
legislative ends and the extent of the relationship between
the two. In writing an exam answer, try and avoid reaching
conclusions without providing a supporting rationale for
your conclusions. This is particularly true when you apply
the facts to a standard of review. For example, in applying
the strick scrutiny test don’t just say that the means
employed are narrowly tailored, but explain, using the facts
provided, why the means are narrowly tailored and why
there are no less restrictive alternative means available that
would be equally effective in achieving the government’s
objective.
Questions on the exam will ask you to analyze the
arguments available to each of the parties so you have to
first be an advocate for one side and then an advocate for
the other side. You will not be asked how a judge would
decide the case so you do not need to consider how the case
will ultimately be resolved. In organizing your answer to
an exam question, you can choose to describe a single issue
and then provide both the challenger’s argument on that
issue and the government’s responsive argument on that
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issue before going on to the next issue or you can describe
all of the arguments available to the challenger before
going on to describe all of the arguments available to the
government. The choice between these two organizational
techniques is a matter of personal preference.
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