LAW 120: CONSTITUTIONAL LAW
Neil S. Siegel
Duke Law School
Fall 2016
Produced by a 4-person study group. One person was
assigned to add his/her class notes to this document and then
the other three added their comments in different colors. We
then edited the file as a group
1.
Constitutional Text, Historical Background, and Functions ............................................... 6
2.
I.
Introduction
6
II.
First Function: Separation of Powers / Checks and Balances
6
III.
Second Function: Federalism
6
IV.
Third Function: Rights
6
Law Story: The Bank of the United States ......................................................................... 8
3.
I.
McCulloch—Background
8
II.
McCulloch—Decision
8
III.
McCulloch—Aftermath
8
IV.
McCulloch—Upshot
8
V.
Seven Morals of the Story
8
Marbury v. Madison, Judicial Review, and Democracy................................................... 11
4.
I.
Introduction
11
II.
Marbury: Facts
11
III.
Marbury: Holding
11
IV.
Analysis—Four Questions
11
V.
Concluding Thoughts
12
Congressional Commerce Power: Intro and Eras I and II ............................................... 13
5.
I.
Introduction
13
II.
First Era
13
III.
Second Era
14
IV.
Big Picture
16
Commerce Clause: Third Era (1937-1990s) ..................................................................... 17
6.
I.
Transition to the third era
17
II.
What is “Commerce”?
17
III.
What does “among the several States” mean?
18
IV.
Taking Stock
19
Commerce Clause: Fourth Era (1991-present) ................................................................ 20
I.
Introduction
20
7.
II.
What is “Commerce . . . among the several States”?
20
The Anti-Commandeering Principle ................................................................................. 23
8.
I.
Introduction
23
II.
New York v. United States (1992)
23
III.
Printz v. United States (1997)
23
IV.
Questions
24
Taxing and Spending Powers............................................................................................ 25
9.
I.
Introduction
25
II.
First Question
25
III.
Second Question
26
IV.
Third Question
27
The Constitutional Law and Politics of the ACA ............................................................. 29
10.
I.
Background
29
II.
Constitutional Politics of Health Care Reform
29
III.
Two of the four questions presented in NFIB:
29
IV.
Holdings in NFIB:
29
V.
Assessment of Holdings
30
Congress’s Power to Enforce Constitutional Rights ......................................................... 32
11.
I.
Introduction
32
II.
First Question
32
III.
Second Question
33
The Constitutionality of the Voting Rights Act of 1965................................................... 35
I.
Introduction
35
II.
Background on Warren and Burger Court Decisions
35
III.
Background to Shelby County v. Holder (2013)
35
IV.
Shelby County v. Holder (2013)
35
V.
Questions
36
12.
Preemption, the Dormant Commerce Principle, and Article IV’s Privileges and
Immunities Clause ........................................................................................................................ 37
13.
I.
Transition
37
II.
Preemption
37
III.
Dormant Commerce Principle
38
IV.
Interstate Privileges and Immunities Clause of Article IV, Section 2
40
V.
In-State v. Out-of-State Tuition!
41
VI.
Transition to Unit III
41
Rise and Fall of Lochnerism; Protection of Economic Rights Since 1937....................... 42
14.
I.
Introduction
42
II.
First Question: Protection of economic rights during the Lochner Era
43
III.
Second Question: Protection of economic rights since 1937
45
Framework; Rational Basis Review; Rational Basis “Plus” ............................................. 46
15.
I.
Historical overview
46
II.
Introduction to equal protection
46
III.
The rational basis test
47
The Constitutional Law and Politics of Slavery ............................................................... 50
2
16.
I.
Introduction
50
II.
The Founding Era
50
III.
The Early National Era (1791-1828) and the Jacksonian Era (1829-1860)
50
IV.
Why Does this History Matter?
52
Adoption of the Reconstruction Amendments .................................................................. 54
17.
I.
Civil War History
54
II.
Section One of the Civil War Amendments
54
III.
Enforcement Clauses
54
IV.
Civil v. Social v. Political Equality
55
Restriction of the Fourteenth Amendment ........................................................................ 56
I.
Introduction
56
II.
Slaughterhouse
56
III.
Slaughterhouse versus Dred Scott
57
IV.
Subsequent Consequences
57
18.
Early Application of the Fourteenth Amendment to Race Discrimination; Creation of the
State Action Doctrine .................................................................................................................... 58
19.
I.
The End of Reconstruction
58
II.
Introduction to Race and the Constitution in the Republican Era (1877-1932) 58
III.
Congress during the Republican Era
58
IV.
The Supreme Court during the First Part of the Republican Era
58
Establishment of “Separate but Equal” ............................................................................. 60
20.
I.
Plessy v. Ferguson (1896)
60
II.
After Plessy
61
III.
Voting Rights
61
IV.
Birth of the Civil Rights Movement
61
Brown v. Board of Education............................................................................................ 62
21.
I.
Introduction
62
II.
Political Antecedents
62
III.
Legal Road to Brown
62
IV.
Brown Opinion
63
V.
The Invalidation of Other Jim Crow Laws
65
VI.
Post-Brown Desegregation Cases
65
The Suspect Classification Doctrine ................................................................................. 67
22.
I.
Introduction
67
II.
The Road to Loving and Beyond
67
III.
Discrimination against Asian Americans
68
When Is a Decision Made “on the Basis of Race”? ......................................................... 69
23.
I.
Facial racial classifications v. discriminatory administration
69
II.
Introduction to disparate impact (from p. 1166)
69
III.
Examples
70
IV.
Equal protection doctrine
70
Affirmative Action: From Bakke to Adarand .................................................................. 73
I.
II.
Introduction
Mediating principles of equality and affirmative action
73
73
3
24.
III.
Legal Doctrine
73
Affirmative Action in Higher Education .......................................................................... 76
25.
I.
Introduction
76
II.
Level of Scrutiny
76
III.
Compelling Interest
76
IV.
Narrow Tailoring
77
Affirmative Action in Higher Education II ....................................................................... 79
26.
I.
Fisher I – only top layer of the layer cake is being answered
79
II.
On Remand
79
III.
Fisher II
79
Gender and the Constitution—History; Frontiero and the ERA ...................................... 81
27.
I.
Historical Overview
81
II.
Four Morals of the Story (or more)
83
III.
The Politics of Sex Equality
83
IV.
Road to Intermediate Scrutiny
83
What Does Intermediate Scrutiny Prohibit? ..................................................................... 85
I.
Introduction
85
II.
Craig v. Boren (1976)
85
III.
Mississippi University for Women v. Hogan (1982)
85
IV.
United States v. Virginia (1996)
86
28.
Does Pregnancy Justify Sex Discrimination? Is Pregnancy Discrimination Sex
Discrimination? ............................................................................................................................. 88
29.
I.
Pregnancy as Justification for Sex-Differentiated Treatment of Men and Women88
II.
Distinguishing Sex-Based and Sex-Neutral Policies: Evolving Views of
Pregnancy
89
III.
Taking Stock of Sex Equality and the Constitution
91
Modern Substantive Due Process: Antecedents; Birth of Modern Era; Tradition........... 92
30.
I.
Classification-based equal protection versus fundamental rights
92
II.
Fundamental rights under due process versus under equal protection
92
III.
Introduction to fundamental rights under due process and equal protection
92
IV.
Antecedents of modern fundamental rights
93
V.
Modern example of fundamental rights: marriage
93
VI.
Constitutional protection for reproductive autonomy
93
Roe v. Wade; Abortion and Equal Protection .................................................................. 95
31.
I.
Introduction
95
II.
Recognition of the right to abortion
95
Supreme Court Decisions After Roe ................................................................................. 97
32.
I.
Introduction
97
II.
The politics and law of abortion in the 1980s and early 1990s
97
Abortion Restrictions after Casey ................................................................................... 101
I.
II.
III.
4
Introduction
The Court’s responses
“Partial-birth” abortion
101
101
101
33.
IV.
Other Regulations of Abortion
102
Same-Sex Intimacy and Discrimination on the Basis of Sexual Orientation I ............... 104
34.
I.
Introduction
104
II.
Historical Background
104
III.
Bowers v. Hardwick (1986)
104
IV.
Romer v. Evans (1996)
104
Same-Sex Intimacy and Discrimination on the Basis of Sexual Orientation II .............. 107
35.
I.
Changes in constitutional politics
107
II.
Lawrence v. Texas (2003)
107
Same-Sex Marriage I ...................................................................................................... 109
36.
I.
Modern history
109
II.
United States v. Windsor (2013)
109
III.
Post-Windsor developments in the federal courts
111
IV.
Level of Scrutiny in Windsor
111
V.
Animus
111
Same-Sex Marriage II ..................................................................................................... 112
37.
I.
Federal District and Circuit Court Opinions in Same-Sex Marriage Cases PostWindsor
112
II.
Obergefell v. Hodges (2015)
112
III.
Advice for life in the law 
113
Miscellaneous Notes ....................................................................................................... 114
5
1. Constitutional Text, Historical Background, and
Functions
I. Introduction
A. Plan for this opening class
B. Three Functions of the Constitution
 Separation of powers: creating a national government and dividing powers
 Federalism: defining relation between federal government and states
 Protecting individual rights
II. First Function: Separation of Powers / Checks and Balances
A. The establishment function
B. Three questions
C. The key tension
 Political parties
III. Second Function: Federalism
A. Definition
 Overlapping federal jurisdiction; both have the authority to regulate private
conduct within the same territory
B. Why two levels of government?
1. Why a federal government?
 Collective action problems!!
 National defense
 Raising tax revenue
 Issues of externalities and spillovers
 Issues of foreign affairs
 [Per MadDawg: just see the enumerated articles]
2. Why state governments?
 Because the state governments already existed and it would have been unthinkable
for them to be dissolved
 Local efficiency
 Value pluralism
 Social laboratories
 More opportunities for individual political participation
C. Limited, enumerated powers versus general, plenary powers
1. The question(s) one asks
 State has general, plenary powers
 Federal, has limited, enumerated powers
2. Textual basis for the distinction
D. Federal supremacy
E. Historical conflict
IV. Third Function: Rights
A. Now versus then
 Constitution of its own protects relatives few individual rights
B. Arguments against a bill of rights
6

Federalists: logically unnecessary because the constitution is limited already; why
say the government cannot do what it was never given the power to do
o However federal government could ban the interstate commerce of Jewish
authors
 By granting rights, there was a fear that those rights would be interpreted as the
only rights of individuals
C. Two basic legal questions about the Bill of Rights
1. Incorporation
 One exception: slavery provisions applied to individuals
 14th amendment, section 1: Due Process and Equal Protection Clauses have been
interpreted by the Supreme Court to apply most of the bill of rights to all
government action, not only the federal government
2. State action
7
2. Law Story: The Bank of the United States
I. McCulloch—Background

MD was trying to tax the bank of the US because it didn’t like the competition
II. McCulloch—Decision
A. Introduction
B. Questions presented
C. First Question: Does Congress have the authority to establish the bank?
 Constitutionality of the bank
 Next four are pieces of Marshall’s arguments
1. Past practice and acceptance
 Major issue: framers never brought the bank to a vote
 This has been approved before, which is relevant to the constitutionality
2. Whether the federal government is a compact of the states
 Did the states create the national government? No the people of the states created
the national government
3. Whether Congress may create the bank
 MD’s arg is that it is not an enumerated power and it is not necessary or proper
 Marshall: federal government is supreme if the end is in the Constitution, then the
means are permitted, so long as the means are not explicitly prohibited
4. The meaning of the Necessary and Proper Clause
 MD: Necessary means indispensable
 Marshall: Necessary means only kind of necessary, because otherwise Cong can’t
do didly squat
D. Second Question: May Maryland tax the national bank?
 Is this within the state’s sovereign power
1. Maryland’s argument
 Taxes is a concurrent authority, not an exclusive one
2. Marshall’s two responses
 Power to tax is the power to destroy. The power to destroy is incompatible with the
power to create the bank and federal power is supreme over state power
 Democratic process argument: the part may not tax the whole; the primary limit on
the power to tax is political because you can vote out the government that imposes
the tax; every state would otherwise have the power to tax the whole and
internalize the benefits
III. McCulloch—Aftermath
IV. McCulloch—Upshot
V. Seven Morals of the Story
A. Constitution outside the courts
 Constitutional argument was engaged in by all branches of the government and it
wasn’t clear that SC would have final say
B. Irreconcilable disagreement
 Anti-originalist argument: the First Congress had questions about whether their
acts were constitutional
C. Judicial supremacy versus departmentalism
8
D. Judicial supremacy versus judicial exclusivity
E. When the Supreme Court has—and does not have—the last word
 Does not have the last word when they uphold government actions and when the
legislature or president finds something unconstitutional
F. The Supreme Court’s legitimating function
 Legitimates federal government far more often than it has rejected it; the court has
tended to defend federal power at the expense of state power
G. How to make constitutional arguments—the eight “modalities”
1. Textualism
 Text, its organization, and rules for interpreting the text
2. Structuralism
 How the Constitution does or should function in practice
 What is the objective of this section or even the whole document
 It does not focus on specific provisions the way textualism does, and is thought to
supplement the text
o But, it also contradicts the text; it doesn’t supplement it
 What is the boundary of structural arguments? Other modalities. It does not
function on its own.
3. Purposivism
 Where structuralism meets textualism: the purpose of a constitution provision: like
textualism in that it looks at a particular provision, but like structuralism in that
you are looking at the overall meaning of the clause
4. Prudentialism (Consequentialism)—two kinds
 Implicitly and controversially insists that consequences matter
 Rarely absent in constitutional law
o Whether interpretation would have good or bad consequences?
o Who is the best decided?
 Supreme Court versus the people
5. Historical Interpretation
 Appeals to history as constitutional authority
 Is about people writ large, see #7
a. Pre-ratification history
 Originalism: text means what it meant when passed
b. Post-ratification history
(1)
Originalist use
 How did they understand right after ratification
(2)
Traditionalist use
 How have following generations understood the provisions
(3)
Anti-traditionalist use
 Mistakes and injustices of the past are warnings and spurs to change
6. Doctrinalism—Judicial Precedent
 Stare decisis
 Creates stability
 Precedent replaces reason with authority
7. Historical Practice
9
 Evokes longstanding political practice
 These especially come up with separation of powers arguments
 Is about government institutions, see #5
8. National Identity or Ethos
 Whether this interpretation is “American?”
 Conventional, societal morality; in the lens of norms society has developed
 Often lurking in opinions: McCulloch “Throughout this vast republic . . .”
10
3. Marbury v. Madison, Judicial Review, and
Democracy
I. Introduction
A. What is judicial review?
 Power of courts in cases properly before them to determine constitutionality of
government actions
B. Two kinds of judicial review—Vertical and Horizontal
 Vertical: reviews state and local government
 Horizontal: reviews federal enactment
C. A judicial review clause?
 None in the constitution; has to be inferred
D. Original understandings
 Not firmly established by framers; horizontal application was originally unclear
II. Marbury: Facts

Marbury was commissioned under Adams as a magistrate judge; Madison failed to
deliver
III. Marbury: Holding
A. Holding—Four Parts:
1. The Supreme Court may not afford Marbury a remedy by issuing a writ of mandamus
because the Court lacks subject matter jurisdiction.
2. The Court lacks subject matter jurisdiction because Section 13, which the Court reads
as granting it original jurisdiction to hear suits for mandamus, violates Article III and
is therefore unconstitutional.
3. Section 13 violates Article III because Congress may not enlarge the Court’s original
jurisdiction.
4. The Court may not follow Section 13 notwithstanding its unconstitutionality because it
has the power and duty to declare unconstitutional federal laws that it concludes are
unconstitutional.
B. Why address whether Marbury has a right and is entitled to a remedy?
1. Political explanation
 He was chastising Jefferson, while recognizing that he could not force Jefferson
because of politics
2. Legal justification
 It’s to show that the constitutional question is real and unavoidable
IV. Analysis—Four Questions
A. First, should Marshall have recused himself?
 Well, yes
B. Second, should the Court have reached the constitutionality of Section 13?
 Constitutional avoidance
1. Marbury’s entitlement to his commission
2. Different ways of reading the statute
a. Mandamus on appeals
b. Jurisdiction v. remedies
3. The point of this exercise—taking both law and politics seriously
C. Third, was Section 13 unconstitutional if read as the Court read it?
11
1. Marshall’s constitutional arguments
 Structural
 Textual
2. Responses
a. Ceiling v. floor
b. Ceiling v. starting point
c. The law today
D. Fourth, do federal courts have the authority to invalidate federal laws?
1. Marshall’s framing of the question presented
2. The actual question presented
3. Marshall’s arguments
a. Constitution as written limits
b. Those who apply the law must determine its validity
c. “Cases . . . arising under this Constitution”
d. Judicial Oath of Office
e. Supremacy Clause
f. The point of this exercise
V. Concluding Thoughts
A. Why is judicial review widely and deeply accepted today?
B. Marbury and the distinction between law and politics
12
4. Congressional Commerce Power:
Intro and Eras I and II
I. Introduction
A. Text

B.
C.
D.
E.
F.
Art. 1, Sect. 8, Cl. 3: “The Congress shall have the power to . . . regulate
Commerce with foreign Nations, and among the several States, and with the Indian
Tribes . . . .”
History
Practical importance
 Remember how much interstate commerce drove the transition between the
Articles of Confederation and the Constitution
Theoretical significance
Four eras
1. Early 1800s to 1877
 Broadly construes Gibbons
 Rarely used by Congress
2. 1877 to 1937
 Lochner Court
 Congress tried to deal with industrialization
 Limits the scope of the Clause and invalidates many federal statutes
3. 1937 to mid-1990s
 A Constitutional crisis occurs in 1937
 Does not invalidate any law Congress passed under the Commerce Clause
 (deemed an overreaction by critics)
4. Mid-1990s to present
 Begins with US v. Lopez in 1995
 Narrows commerce clause modestly
Three reasons for an historical approach
 Gives a sense of the dynamism of Constitutional law
o Interpretations are very historically contingent
 Court’s vacillations throughout history illuminates Federalism dilemma
o How do we avoid a conflict between the extremes of a Federal system and
limited enumerated powers and what the Federal government needs to do?
I.e., how do we balance Federalism with governmental efficiency?
 Very difficult to understand modern doctrine without the history
II. First Era
A. Gibbons v. Ogden (1824)
B. Facts and proceedings below
 Federal vs State licensee for operating a steamboat from New York City to New
Jersey
 Ogden was given the NY state license, and Gibbons the federal license
 New York courts held for Ogden
C. Three Questions Presented
1. Statutory Interpretation
13

1793 Federal statute: does the statute actually permit Gibbons to operate the route?
Supreme Court says yes
 If the Court had said “no,” the case would have been dismissed without even
addressing the Constitutionality of the statute (which probably was the correct
interpretation anyways, but oh well)
2. Preemption
 Does Federal regulation trump state?
 Cf. Supremacy Clause of Article 6: “This Constitution, and the Laws of the United
States which shall be made in Pursuance thereof; and all Treaties made, or which
shall be made, under the Authority of the United States, shall be the supreme
Law of the Land; and the Judges in every State shall be bound thereby, any
Thing in the Constitution or Laws of any State to the Contrary notwithstanding.”
 Preemption requires two things:
o That there is a conflict between the federal and the state law
o That the federal law is valid
3. Dormant Commerce Principle
 Even if Congress does not have regulation on something, can a state still regulate
it?
 Today state laws that place undue burden on interstate commerce are
unconstitutional
D. Interpretation of the Commerce Clause
1. What is the meaning of “Commerce”?
 Ogden (state licensee) is arguing that commerce is only buying and selling; does
not include navigation
 Supreme Court: rather, it is “intercourse between the states”
o Seems to include anything with goods, including navigation
2. What is the meaning of “among the several States”?
 Narrowest: crossing state lines
 Marshall: “intermingled with,” “concerning more State than one,” collective action
problem
 Broadest: “commerce” is not a limit (because everything is commerce); thus, it is
an unlimited power
 [Especially now, isn’t everything all completely intertwined (consider Breyer in
private conversations about the Commerce Clause)]
E. Big Picture
 Gibbons continues to influence after the 1937 constitutional revolution
III. Second Era
A. Introduction
B. The political reality
 Court is very economically conservative, libertarian
 Opposed to almost all government regulation of economy
 Justice Brewer spoke of the evils of redistribution of wealth
 1880s America starts to recognize the inequality dues to industrialization
 Interstate Commerce Act, Sherman Antitrust Act, etc.
C. Importance of the era
14

It is an era of robust judicial review
o There is a question of how much this is just politics versus good faith
 It is the first time the Court will consistently strike down Federal laws
 It does not end well for the Court because of the Great Depression and anti-New
Deal stances
D. Doctrinal Overview of Formal Distinctions
1. Commerce v. Production
a. U.S. v. E. Knight (1895) (pg 504)
 Sugar refiners; merger that creates a 98% monopoly on sugar production
 Brings into question the Sherman Anti-Trust Act
 Supreme Court permitted the merger and dismissed the Government’s action; the
Clause is about addressing commerce, but this case is addressing production
 The Federal Government does not have unlimited police powers
o It is limited to what was specifically enumerated in the Constitution:
commerce
b. Hammer v. Dagenhart (The Child Labor Case) (1918)
 Holding: Congress can’t regulate commerce if the purpose is to regulate
production [KS was the only one with this]; Court says that because the effect is on
production, the Act is unconstitutional
 Congress had tried to ban the interstate shipment of goods produced by child labor
o They used the textualist argument that this is literally commerce
o There is no entitlement to the national market
 Court was not concerned about the morality of child labor, but it is concerned
about the lottery:
c. Champion v. Ames (The Lottery Case) (1903)
 Federal Government bans the use of mail for the shipment of lottery tickets
 A company begins sending them by Wells Fargo
 Holding: Congress can use the Commerce Clause to attack harmful goods for
purposes other than strictly regulating commerce
 Supreme Court says that Congress only supplemented state police power (most
states had banned lottery)
d. Child Labor v. Lotteries
 Hammer: concerned about how Congress infringed on production
 Champion: concerned about the product itself
 It is a distinction between harmful products versus inherently harmless products
e. Is the Court’s narrow definition of “commerce” defensible?
 Does it make sense to distinguish commerce from other stages of business (i.e.,
production from manufacturing)
o Can this formal distinction (between stages) survive a functional analysis?
 Did the court adequately define its premise?
 What is the State’s proper role in this area?
2. How did the Court define “among the several States”?
a. Three formal distinctions
 Direct effects of commerce is within the scope of Congress’s power and indirect
effects on commerce is not
15


b.


c.




o Perceived nature of effects versus magnitude
In the flow of commerce versus not in the flow of commerce
Inherently dangerous versus not inherently dangerous
Schechter Poultry Corp. v. U.S. (1935)
Federal Government regulated poultry farming wages
o Argued that all Schechter’s chickens were purchased out of state
o Wages were the largest part of the cost
o Therefore, wages have a huge effect on the supply and demand, so we can
control wages
o Further, states are in a race to the bottom for producing chickens cheeply
(…)
Supreme Court: wages have no direct, but only an indirect effect on Commerce
o Interstate competition and unfair practices between them is not a problem for
the Federal Government
o The flow of commerce had ended by the time the chickens arrived in New
York
o If Congress can regulate both, then Congress’s power is limitless
 Problem is how to draw a non-arbitrary line between them
The Shreveport Rate Cases (1914)
Government gets to regulate interstate rates and is trying to regulate intrastate
rates in Texas
Holding: Rates within Texas cannot be less for the same distance wholly within the
state
Rationale: if intrastate railroads could charge lower fees, interstate railroads could
be undercut
Why is this effect direct and it was indirect in the sick chicken case?
o Politics? Court invalidates all business regulation except that which
preserved the power of the railroad tycoons
IV. Big Picture
16
5. Commerce Clause: Third Era (1937-1990s)
I. Transition to the third era
A. Economic and political pressures
 Depression left many unhappy with Court's approach; there was a perceived need
for a national-level economic policy
 1936 election was a critical one; Roosevelt wins resoundingly with huge
congressional majorities; Democrats have large majorities in both houses of
Congress
 Roosevelt sees his win as the people's mandate on his New Deal programs,
economic declaration of rights, etc.
B. The Court-packing plan
 Roosevelt plans to “get around” Supreme Court by passing legislation that will
increase number of justices on court, then appoint justices who share his
constitutional philosophy
 Widespread outrage amongst those in Congress, including Democrats
 Roosevelt ultimately does not pursue this policy
o Nevertheless, by 1942, Roosevelt had made 8 consecutive Supreme Court
appointments
C. The Court responds?
 Around this time, Justices Roberts and Hughes “switch sides,” which some say
was in response to the institutional pressure placed by Roosevelt
 End of Lochner Era (economic substantive due process)
 Constitutional Crisis of 1937 → big changes were made between 1937 and 1942
 Balkin & Levinson: partisan entrenchment theory (describes how constitutional
revolutions and judicial doctrine occur through winning office and appointing
judges)
 Also stops striking down state and local economic regulations
II. What is “Commerce”?
A. NLRB v. Jones & Laughlin Steel Corp. (1937)
1. Analysis under then-existing law
 Under existing doctrine, the regulated activity here would have been considered
“production” or “manufacturing,”not commerce, and therefore the law would have
been unconstitutional. (the enterprise was a multistate enterprise)
2. Analysis under the new doctrine [QUESTION FOR SIEGEL]
 Here the court changes doctrine:
o Congress can regulate production when effect is “immediate and might be
catastrophic”
o This analysis considers both nature of the activity and its magnitude
o Goes broader- Congress is not limited to regulating exchange, it is based on
the magnitude of effects not the nature of the effect (ex. Direct vs. Indirect)
 Note: this is what I have, not that the analysis considers both nature of
the activity and its magnitude
B. Other cases
1. Wickard v. Filburn (1942)
 See below
17
2. United States v. Darby (1941)
 Court upholds provisions of Fair Labor Standards Act, which prescribed minimum
wage and maximum hours for employees engaged in the production of goods
related to interstate commerce, because of “injury to commerce and to the states
from and to which the commerce flows”
 Overrules Hammer (child labor case)
 No zone of conduct inherently reserved to the states (“the 10th Amendment is a
mere truism”)
o Collective action argument: would result in a race to the bottom without the
statute
III. What does “among the several States” mean?
A. Wickard v. Filburn (1942)
 Filburn grows more than allotted quantity of wheat under AAA, fined by feds, sues
federal government → collective action problems among farmers themselves
 Note: this case makes more sense from a macro perspective than from a micro
perspective
1. The AAA
 Act that allows Secretary of Agriculture to regulate wheat production; sets quota
2. Government’s two rationales
 Supply and demand rationales
o Supply: the law allows Farmer Bob, the producer, to grow 8 bushels; instead
he grows 10 bushels; the supply of the entire market has increased by two
which drives prices down
 affects price of wheat because less demand and more supply= lower
prices which doesn’t help farmers out a lot
o Demand: Farmer Bob, the consumer, normally needs 2 bushels from the
market and instead needs none; thus, the demand from the whole market is
less by 2, which drives prices down
 if he grows his own, then he takes himself out of the market and less
demand so lower prices.
3. Rational basis
 Rational Basis Test (BLR): Congress may regulate any activity that it rationally
believes has an effect on the interstate commerce in the aggregate→ aggregation
principle = result of cumulative effects
 The government doesn’t have to prove the effects, Congress just has to rationally
believe the arguments
4. Cumulative effects
 Throws out direct vs. Indirect
 Aggregate/cumulative effects are sufficient
 Very outer limit of the commerce clause
5. Is Wickard a hard case?
6. Doctrinal test post-1937
7. Breadth of holding
8. Federalism v. individual rights
B. The Constitutionality of the Civil Rights Act of 1964 (CRA)
1. The CRA
18
2.
3.
4.
5.
 Prior to this, no federal law prohibited private discrimination
Section 5 versus the Commerce Clause
 Commerce clause is essentially unlimited and Section 5 precedent only allowed
regulation of state, not private, activity. Wasn't sure the Section 5 rationale
wouldn't be overturned (this doesn't make sense???) [It does make sense because
Section 5 had been decided consistently as applying only to the states;
nevertheless, there is some indication that the justices would have upheld on
Section 5 grounds even though Congress didn’t try it on those grounds]
 The Supreme Court had not yet struck a single Commerce Clause based legislation
Heart of Atlanta Motel v. United States
 Congress was not restricted by the fact that the particular obstruction to interstate
commerce with which it was dealing was also deemed a moral and social wrong
 Why would this fall under the Commerce Clause? Why not under § 5 of the
Fourteenth Amendment?
o An 1880 case said Congress could only apply § 5 to a limited number of
circumstances so people weren’t sure if the Court would have upheld these
issues under § 5
o Took the path of least doctrinal resistance
 It doesn’t matter what the motivation is—it’s an effects test
Katzenbach v. McClung
 Ollie’s Barbecue
 Where the Court finds that the legislators, in light of the facts and testimony before
them, have a rational basis for finding a chosen regulatory scheme necessary to
the protection of commerce, the Court’s investigation is at an end
 Collective action approach: ask the functional questions of: (1) Why do we have
two levels of government? (2) Why does one work better than the other in terms of
resolving certain issues?
Are there any limits?
IV. Taking Stock






Congress can address moral and social wrongs so long as it has a Commerce-based
justification for the regulation (because the Court uses a rational basis test)
Possible approaches:
Second era was better at defining- direct v. indirect; harmful v. nonharmful, etc.
3rd- don't need limits on federal power to protect states
Collective action problems
Some other distinction to limit scope of federal power
19
6. Commerce Clause:
Fourth Era (1991-present)
I. Introduction
A. The “Reagan Revolution”
B. Reagan Republicans
C. Reagan’s constitutional vision
 Government is not the solution to our problems, it is the problem
 Advocates limited power etc. and such a philosophy among judicial appointments
D. The Reagan Administration’s methods
II. What is “Commerce . . . among the several States”?
 No longer two inquiries, the court collapses them.
A. U.S. v. Lopez (1995)
 Facts: Gun-Free School Zones Act case;
 Ruling: Congress can use Comm. Clause for: (See three categories below)
 First invalidation of the commerce power since 1936
1. Three categories
 What commerce clause can regulate:
o (1) use of channels of interstate commerce (means, i.e., roads, waterways)
o (2) regulate and protect the instrumentalities of interstate commerce (trains,
planes, etc.)
o (3) regulate activities having a substantial relation to interstate commerce –
those activities that substantially affect interstate commerce
2. Substantial effects analysis
a. The federal government’s arguments
 1) reduces willingness to travel to the areas
 2) less productive citizenry
b. Is there a substantial effect?
 (Not sure if this goes here) Beyond the scope of the Commerce Clause
 Court focuses on the economic/noneconomic issues
 Regulated activity: possession of a firearm in a place of work
 Is the economic/noneconomic divide sensible?
 Collective action focuses on whether activity is among the several states while
Court stops focusing on among the several states and just assumes it to be true if
the issue actually involves commerce
o Siegel thinks that from a collective action approach, Lopez was correctly
decided
c. Does the Court answer this question? Kind of avoids it, slippery slope, says its not
economic.
d. The distinctions drawn by the Justices
(1)
Majority Opinion (Rehnquist, C.J.)
 Court says this is not an economic activity; if you do this, you can do anything!
 This is regulating possession of firearms in school zone
 Defines Economic vs. Noneconomic activity as the new test
(2)
Concurring Opinion (Kennedy, J., joined by O’Connor, J.)
20

Embrace economic vs. Noneconomic analysis, but also add “traditionally state
regulated activity” (this is a historical practice argument)
(3)
Concurring Opinion (Thomas, J.)
 Concludes that the majority doesn’t go far enough; rejects the substantial effects
test → would rather go back to the direct/indirect test from pre-1937 (2nd era)
 Text & original history argument
(4)
Dissenting Opinion (Stevens, J.)
 Congress can regulate because guns are both articles of commerce and can be used
to restrain commerce (Guns are inherently articles of interstate commerce)
(5)
Dissenting Opinion (Souter, J.)
 just created a new economic vs. noneconomic distinction- brings us back to other
older eras
(6)
Dissenting Opinion (Breyer, J., joined by Stevens, Souter, and Ginsburg, JJ.)
 Apply test – interstate commerce effect in aggregate, could Congress rationally get
there
 Seigel: this is a good application of the rational basis test, but under this
application, nothing would fail the test. The majority is better at stating limits.
3. Analysis of revised statute and related statutes
a. New version of the Gun Free School Zone Act
 Revised statute proposed with narrower scope and empirical evidence (1996)
o it now applies only if firearm has moved in interstate commerce or otherwise
affected it.
o Court has not revisited the matter even though anything could have “moved
in interstate commerce”
b. Federal ban on possession of a machine gun
c. Modalities of constitutional interpretation
d. Lopez and collective action federalism
 can defend on collective action arguments- states can protect their schools without
collective action problems.
e. Lopez and Wickard
 doesn't overrule Wickard- says Wickard is economic while this isn’t
 Is economic vs. noneconomic the analysis or the conclusion? Is individualism vs.
collectivism actually driving the train?
B. U.S. v. Morrison (2000)
 rape by football players--> sued assailants under Violence Against Women Act –
p. 720
1. Christy Brzonkala and VAWA
 VAWA gives a federal civil cause of action in gender motivated violence (usually
under state law) cases
2. Commerce Clause and Section Five
 Court rejects section 5 authority- said that gender crimes are noneconomiccommerce clause only applies in cases of economic activity- with noneconomic,
can't look at aggregation in determining substantial effects.
 violence against women was neither particularly commercial in nature nor
particularly interstate in character
21

Only once the conduct regulated is actually economic will Supreme Court defer to
Congress on a rational basis test
3. Lopez and Morrison
C. Gonzales v. Raich (2005) (p. 721)
 uphold congressional laws criminalizing marijuana possession
1. State drug law and federal drug law
 California creates a medical exception to its drug laws
2. Angel Raich and Diane Monson
 Angel- suffers from medical problems, marijuana is prescribed by doctor not
bought or sold;
 Diane- same but grew it herself, violation of Controlled Substance Act
 An “as applied” challenge, not a facial challenge → they’re engaged in
noneconomic & non-interstate activity → 9th Circuit agreed with them
3. The Ninth Circuit’s decision
 sought injunction to law enforcement as applied to them- no economic activity or
interstate
4. The Court’s opinion
 reverses, upholds law because affects commerce
 The majority said this case was Wickard→ similar supply side problem → or
Congress would rationally so believe
5. Justice O’Connor’s dissent
 Plausible, need more than anecdotes- no actual proof that the marijuana will enter
the market
 Is this rational basis test the same as the test we have been talking about?
 No evidence of diversion; plausible not proven
 In dissent, defernce to government is too much, according to O'Connor
6. What Raich clarifies doctrinally
 cites Wickard as similar. Homegrown marijuana will affect the market because
some might end up sold illegally (supply side concern). Congress could rationally
believe this is economic (or part of a larger class of economic activity).
7. Questions about Raich
 What is economic activity? Inactivity vs. Activity?
22
7. The Anti-Commandeering Principle
I. Introduction
 States are not required to enforce or enact a federal regulating program.
A. Two invalidations during the 1990s
B. Whether Congress is regulating economic activity versus how
 In both cases, it was economic activity; the real problem is how they did it
II. New York v. United States (1992)
A. The policy problem
 States couldn’t tell other states to stop sending them the waste because of the
dormant commerce clause
B. The statute
 Low-Level Radioactive Waste Policy Amendments Act of 1985 provided three
types of incentives: 1) monetary incentives; 2) access incentives; and 3) the take
title provision
C. The holding
 The issue was the take-title provision
o State would either have to regulate the waste according to Congress’s plan,
or
o Take title to the waste
 The Federal Government may not compel the States to enact or administer a
federal regulatory program
D. The concern?
 There is a compromise of accountability when Congress forces the states to pass
certain laws
 State Governor’s association asks the Fed Government not to preempt, and states
presented Congress with this law
III. Printz v. United States (1997)
A. Question presented
 Is congressional action compelling state officers to execute federal laws
unconstitutional?
 Or, whether Congress can regulate state officers to perform background checks on
would be handgun purchasers until Federal system is up and running
B. Economic activity?
 Yes. There’s no problem with regulating economic activity, the problem is the
how—requiring state officials to perform the background checks
 There’s easy Commerce Clause justification for this
 Can’t do indirectly what you’re not allowed to do directly
C. Three modalities in the majority opinion
 1) historical: nobody has used this power before (but, Scalia provides no evidence
of Congress not acting for this reason)
 2) historical/structural: separation of powers (undermines the executive authority
of the president); Siegel: dissent and majority go back and forth and it doesn’t
amount to much
 3) precedent: New York v. US
23

Black letter law from NY and Printz: Congress may not force state officials to
enact, administer, or enforce a federal statute
IV. Questions
A. The modalities in the various opinions
B. The source(s) of the anti-commandeering principle
 KEY POINT: Source of the anti-commandeering principle is the structure of the
Constitution, NOT the text of the 10th Amendment → a structural commitment
C. Assessment of the anti-commandeering principle
1. Commandeering and accountability
 Commandeering undermines accountability because voters don’t know who to
blame
2. Commandeering and state regulatory autonomy
 Can’t commandeer no matter the circumstances → commandeering is proven if
situation is coercive
 Feds cannot force states to help in immigration and anti-terrorism
3. The best argument for the anti-commandeering principle
D. The significance of the anti-commandeering principle
 Many scholars think that this is symbolic
 Others argue about separate sovereigns
 Anti-commandeering principle eventually comes into play for NFIB-Medicaid
expansion
1. Before NFIB v. Sebelius
2. Now
 Federal Government cannot coerce states through incentives
24
8. Taxing and Spending Powers
I. Introduction
A.
B.
C.
D.
 General welfare clause
Transition
Constitutional Convention
 Under that Articles of Confederation, Congress lacked these powers
 Thus, Constitution is a very pro-tax document
Taxing and spending today
 Express authority to tax & implied authority to spend
Three questions:
1. For what purposes may Congress tax and spend?
2. What is the difference between a tax and a penalty for purposes of the Taxing Clause?
3. To what extent may Congress condition federal funds on the compliance by states with
requirements that Congress is not permitted to impose directly?
II. First Question
A. The issue
 Can Congress only tax in support of other enumerated powers? Limited viewMadison
B. The Constitution outside the courts
1. Madisonians v. Hamiltonians
 Madison: Congress can do so only pursuant to the other enumerated powers; i.e.,
you can only tax & spend in limited situations, it is not an independent power of
Congress (but the text doesn't give this qualification so his view is weaker)
 Hamilton: broader; Congress may have its own ideas about how to pursue the
general welfare- Congress possesses independent authority to spend in pursuance
of General Welfare (like disaster relief); doesn't have to be tied to express
constitutional authority
2. Contexts in which the issue arose
 Ex. Fire in Savannah and they wanted to send aid, but couldn’t because they
thought it was unconstitutional - not an issue in 2016 but back then was viewed as
unconstitutional
 This was an oft debated question in both Congress and the presidency
 Democrats: if not Madison’s view, then the power of the federal government
would be unlimited
 Today, Congress allocates all sorts of money toward disasters
o Madison: this undermines state sovereignty; turns Congress into a pork
contest
o Hamilton: insurance and risk pooling is a good idea; he has the stronger
textual argument
o Democrats vetoed lots of relief laws
C. The Constitution inside the courts
1. United States v. Butler (1936) – p. 644 – in Steward Machine v. Davis
 This is the first time the Court had a chance to look at this question
 The statute’s goal was to stabilize agricultural prices by subsidizing farmers to
keep them from producing more
25
 Supreme Court struck the statute down, embracing Hamilton’s view
2. Steward Machine Co. v. Davis (1937)- upholds tax on wages
 Connects the collective action problem to the general welfare power
 States can’t do old age benefits on its own
 Supreme Court says that Congress gets to identify for itself what is in the general
welfare of the US
 Court emphasizes how much more interwoven the states are today → collection
action problem: the idea that if you have these benefits imposed by states, then
people will flood to those states
 Rejects Madison's view and endorses Hamilton's
o Congress can tax and spend pursuant to the general welfare → law to this day
III. Second Question
A. Why the distinction matters (Tax vs. Penalty)
1. Circumvention of limits on the Commerce Clause
2. Scope of the Taxing Clause itself
 Imagine if Congress had passed a new tax of $25,000 for carrying a gun into a
school zone
 Would it be constitutional under Lopez? No, because the effect is coercive
o The point of the taxing clause is to raise money (and perhaps dampen
behavior), not eliminate certain behavior
 Ex: Cigarette tax: raises revenue because it does not destroy the
behavior, but it is more than a regular sales tax (showing that
Congress has the additional purpose of reducing the behavior)
 The point of the clause is to raise money, but two things are allowed:
 Taxes that are for the point of raising money
 Taxes that raise money but aren’t necessarily enacted for that
reason
o Here, other than wealthy ideologues, Congress would not raise any money →
if no one pays the tax, it is essentially a penalty
o You only raise revenue when you only dampen conduct
B. Three eras
1. Before the 1920s
 Broad deference to whatever Congress called to be within the general welfare
2. 1920s-1936 (See, e.g., The Child Labor Tax Case (1922))
 Aggressive judicial review, typified by this case.
 Child Labor Tax Case (Bailey v. Drexel Furniture Co.):
o Congress doesn’t prohibit child labor, it just taxes 10% on profits
o Requires company to know that it was employing child labor
o This is a response to Hammer v. Dagenhart
 Court strikes because:
o The scienter requirement is indicative of a crime
 Congress judged that the conduct was wrong → holding based on
congressional purpose/intent
o Also, the penalty was not proportional based on the number of children
employed
26
C.
1.
2.
3.
4.
o Here, their purpose is pretextual; their purpose is to stamp out child labor, not
to raise revenue
3. Post-1936 (See, e.g., United States v. Kahriger (1953)
 Era of deference
 We do not really know the edges of the tax power because the commerce power
goes so far
 As the Commerce Clause expands, there’s much less use of the Taxing Clause
Four possible ways to distinguish a tax from a penalty
No judicial enforcement at all; let Congress decide (Marshall in McCulloch)
Go with Congress’s label: if it called it a tax, it is a tax
Primary purpose test: is the statute designed to raise revenue or regulate behavior (Child
labor tax case)
Likely effects test: will the statute dampen but not stamp out or stamp out the behavior in
question
IV. Third Question
 To what extent may Congress condition its disbursements to the states?
A. Background
B. Current law
 Must be in the general welfare: this makes the issue effectively non-justiciable →
in practice though, this is rarely an issue now for courts
 4 requirements for making funds conditional (first found in Dole)
o The requirement must be clearly stated – can’t take states by surprise
o Relatedness or germaneness
o May not violate independent constitutional limits or require states to do so
o May not be coercive
C. South Dakota v. Dole (1987)
1. The statute
 Congress tries to make a national drinking age
 Withholds 5% of federal highway funds if the drinking age is not 21
2. The Court’s assumption
 Congress can’t directly regulate the drinking age because the 21st Amendment,
Section 2 suggests that states have authority to regulate alcohol
3. The holding and rationale
 Holding: 5% was not coercive and no question about the first and third
requirements
 Rational basis test
 Funds are to facilitate safe interstate travel and drunk driving relates to that (is
sufficiently related)
o Fear of potential spillover effect: people living near the borders would go to
South Dakota and then go back to their home states
o Germaneness turns on what is related to what → need relationship between
condition & spending
4. Justice O’Connor’s dissent
 Heightened scrutiny test
27

However, the drinking age is not related enough to the disbursement of highway
funds
 It is unrelated, too attenuated
 It is overinclusive because it stops teenagers who were not going to get on the road
from drinking
 It is underinclusive because it does not address all the other drunks on the road
 The purpose of the funds is the safe construction and maintenance of the roads →
going into who can use the roads is invading the state police powers
5. Justice Brennan’s dissent
 Even though he’s a broad nationalist, a huge liberal, the 21st Amendment reserves
regulation of alcohol to that states, period
 Congress cannot condition funds on waiving constitutional rights → views states
like citizens
6. Coercion
 What does it mean to call something coercive? At some point onerous conditions
becomes coercion.
 Must the State have a reasonable choice? A practical choice? Which is it?
 Since there’s no entitlement to highway funds, is that enough (consider Medicaid
expansion)
 It is a matter of degree: it is a very difficult problem to find the tipping point
7. Relation between coercion and commandeering
 Was this a case of first impression? Is this why majority and O’Connor apply
different tests?
28
9. The Constitutional Law and Politics of the ACA
I. Background
A. The ACA
 Major purpose is to significantly expand number of Americans with health
insurance and bring down healthcare costs; goal is nearly universal coverage
B. Constitutional challenges
 Goal: knock down one or both and hope the entire act gets struck down
1. Minimum coverage provision
 “Individual mandate:” requires most Americans to maintain minimum level of
coverage or face IRS penalty (i.e., a “tax”…)
2. Medicaid expansion
 ACA expansion required states to expand programs to cover all impoverished
adults under 65 up to 133% of the federal poverty level
o Before, Medicaid only required coverage of discrete groups; there was no
general poverty coverage.
o FYI: The poverty line for 1 childless adult is $11,000 today (133% = $16k)
 Federal government will pay 100% of new coverage, but decreases slowly after
2016
 Conditions access to all federal Medicaid funds on agreement to expand
II. Constitutional Politics of Health Care Reform
A. From off the wall to on the wall
 Predominant view was that both of these provisions were constitutional
 Why?
o Healthcare is certainly economic (by Lopez's economic vs noneconomic
distinction)
o Norm of conduct: courts don't strike down major social welfare legislation
o Medicaid expansion:
 Court had never struck down for coercive influence.
 If states aren't entitled to money anyways, how can threatening to
remove it be coercive?
 In a remarkably short time, legal experts changed opinion of how “off the wall”
these arguments were
 Why?
o Republican Party endorses this constitutional argument
o If a party gets behind a constitutional argument, it is de facto mainstream
o Just for fun: the Heritage Foundation developed the individual mandate in
response to HillaryCare
B. Everyone has some explaining to do
 Changing perspectives over time
III. Two of the four questions presented in NFIB:

There were two other questions: an obscure statute barring pre-enforcement, and
severability.
A. Constitutionality of the minimum coverage provision
B. Constitutionality of the Medicaid expansion
IV. Holdings in NFIB:
29
A. Minimum coverage provision
 Not within commerce clause- beyond the scope of commerce and necessary and
proper (5-4)
 But is within tax power (5-4)
B. Medicaid expansion
 Coercive expansion- coerces states and exceeds spending power (7-2)
 Proper remedy is to prevent government from withholding all funds of states that
decline to expand- just change the law instead of striking it down entirely (lose
only the new ACA $, not what you were previously entitled to (5-4)
V. Assessment of Holdings
A. Minimum coverage provision
 Has nothing to do with commerce because of the active vs. inactive distinction,
Wickard is the only one coming close to regulating inaction. But is this inactivity
or activity?
1. What was the government’s strongest argument/hook?
 Necessary and Proper
o Distinction between substantive independence vs. Derivative
 State: the requirement to provide healthcare is such a big deal that it
should not be derived from the need to regulate healthcare which
comes from the power to regulate commerce
 Necessary and proper are supposed to be closely related to the
substantive power
 It’s hard to describe the mandate as a means to an end as
opposed to an end in and of itself; therefore it should derive
from an enumerated power
 There are certain things that are means to ends and things that are
ends in themselves (distinction makes sense in principle) → these
things must be enumerated powers → individual mandates is one of
these things → response: how can this be? → Question: How do you
determine a means from an ends?
o Those in favor argued that the individual mandate is a means to an end of
regulating healthcare market; the individual mandate is the only way to carry
out the reforms of the insurance market
o The Court holds that it is necessary, but not proper
 Necessary and proper clause → adverse selection → ACA made this worse →
people waiting until they’re sick or injured to get health insurance → ACA is a
convenient means to an end
2. What was the government’s weakest argument/hook?
 Tax
o Argument: this functions as a tax, Congress did everything but call it a tax →
Rule: if a statute has two possible meanings, one of which violates the
Constitution, courts should adopt the meaning that does not do so (i.e.,
change the name from a penalty to a tax)
o Against:
 not framed as a tax; called and is a penalty→ this distinction matters
because it promotes unaccountability
30


could have done this as a tax;
court has never upheld a tax that Congress does not call a tax → the
court has previously said that a tax is really a penalty and is therefore
unconstitutional → question of form over substance
3. Analysis of the remaining hook
 Commerce Clause – this requires; does not just regulate; easier to say there’s an
economic effect from health care that is missing from cases like Lopez and
Morrison – 1/6 of the American economy → economic vs. noneconomic means
nothing if this isn’t on the economic side
 Wickard came close to requiring commerce → is there a difference between
requiring and regulating?
 Using “economic activity” presupposed that there’s activity to be regulated → this
is regulating inactivity
 State: the market is health insurance; Federal: the market is in health
 State: Congress defines the scope of the market; Federal: insurance is how people
pay for health care
B. Medicaid Expansion
 CJ/Kagan/Breyero 3 Factors:
 1) not separate and independent programs → conditioning future
access to money on partaking in something else;
 2) how much money; and
 3) money is already deeply entrenched (whether they received it
beforehand)
o CJ/Kagen/Breyer opinion was broader than Ginsburg’s and much narrower
than the joint opinion
 Scalia/Thomas/Alito/Kennedy- too much money to practically turn down(joint
opinion)
 Ginsberg/Sotomayor - states are not entitled to the money to begin with. Congress
has all of the power to end the program; the Government could just end the
program and repass it with the reforms
o Believes in relatedness principle, but no coercion
 Thus, Ginsburg is not prepared to find any spending unconstitutional
(unless it is unrelated)
1. Which of the three opinions was most persuasive?
2. Which was least persuasive?
31
10.
Congress’s Power to Enforce Constitutional
Rights
I. Introduction
A. The Civil War Amendments
 13, 14, 15
B. Self-execution
 Section 1 of each is self-executing, meaning it does not need implementing
legislation to bind;
 they bind state and local governments without further action by Congress
C. Enforcement clauses
 Each also says Congress has the power to enforce by enacting appropriate
legislation (13- Section 2, 14- Section 5, 15- Section 2)
 These are hooks for congressional legislation
D. Structural logic
 Note contrast between structural logic between Art. I, Sect. 8 and these
enforcement mechanisms
 Latter is power to intervene and regulate state policies or certain matter regardless
of collective action problem being present or not
E. Historical and contemporary debates
 Debates about what they mean and allow Congress to do
F. Two primary constitutional questions:
1. May Congress target private behavior using the enforcement clauses?
 Or just state action?
2. What is the scope of Congress’s power?
 Is Congress limited to remedying or preventing what the Supreme Court has
deemed a violation or can they act on their own understanding of constitutional
rights?
II. First Question
 May Congress target private behavior using the enforcement clauses?
A. Civil Rights Cases (1883)
 Congress can only regulate state action
 Congress cannot regulate private action under both the 13th and the 15th
o 13th amendment only applies to individuals with respect to slavery per se, and
not discrimination generally
o 14th § 5, cannot be used to target private acts, only state acts
 Which is why Congress primarily relied on the Commerce Clause and not § 5
B. Current Law
1. Thirteenth Amendment. See, e.g., Jones v. Alfred H. Mayer Co. (1968)
 In Jones, the Court held that Congress could prohibit private discrimination in
selling and leasing property under § 2 of the Thirteenth Amendment (section 1 is
limited to slavery, but section 2 gives Congress broad authority to target private
racial discrimination)
 Supreme Court changes from 1883 cases and now permits Congress to prohibit
private discrimination that is a badge and incident of slavery
32
2. Fourteenth Amendment. See United States v. Morrison (2000)
 VAWA: Violence Against Women Act
 Doesn’t fall under 13th Amendment because 13th Amendment only targets racism
 It is beyond § 5 of the 14th (Equal Protection) because:
o Violence is an individual’s act, not state action; thus:
o § 1 only addresses state actors, so § 5 only applies to the states
 Breyer’s dissent: but, even if Congress can only target States,
Congress is targeting state criminal justice actors (public prosecutors)
 Siegel’s Critiques:
 Narrow: even if this only applies to state actors, can’t the
remedy target other actors; picking up Breyer’s dissent;
remedy is against private actors
 Broad: §1 applies to more than just state actors (see
citizenship clause)
III. Second Question
 What is the scope of Congress’s power?
A. Two major views: nationalist and federalist
B. Nationalist view
1. Introduction
2. Katzenbach v. Morgan (1966)
 Congress centered nationalist view
o Uses § 5 of 14th to go beyond the Court’s constitutionality decision
 upholds 4(e) of the Voting Rights Act (addressing Puerto Ricans educated in
Spanish and barred from voting by New York)
 Narrow reading:
o statutory provision to enable nondiscrimination against them → statutory
remedy to prevent something unconstitutional → discrimination (against
Puerto Ricans) → Congress is finding facts
o 4(e) is remedial and thus constitutional
 Broader: embodying Congress’ own judgment about disenfranchising Puerto
Ricans
o Congress may be using its own measuring stick
o This decision is a choice of values
o Rational-basis review
o Deferential judicial review →McCulloch standard
 Test: Under the McCulloch standard, whether § 4(e) may be regarded
as an enactment to enforce the Equal Protection Clause, whether it is
“plainly adapted to that end” and whether it is not prohibited by but is
consistent with “the letter and spirit of the Constitution”
o Congress is permitted to make its own judgments about literacy tests that
differ from the courts → Congress has to defer to the Court about what it
can’t do → floor, not a ceiling
o It is a prophylactic measure
o In sum, Congress can interpret Constitutional rights more generously to the
individual than the Supreme Court, but not more strictly against the
individual
33

Dissent: it’s the Court’s job to interpret the Constitution, and Congress has to
follow what the court decides
o If Congress can raise the bar, why can’t it lower it?
C. Federalist view
1. City of Boerne v. Flores (1997)
 court centered federalist view
 only strikes down RFRA in application to states, still applies to federal law→
RFRA was beyond the scope of Congress’ power
 RFRA → speaks the language of strict scrutiny
 Is a 14th Amendment case because of incorporation
o As if the free exercise clause is in § 1 of the 14th Amendment – due process
clause
o To what extent can Congress go beyond that?
 City’s denial of permit to church = clear state action
 Why was RFRA unconstitutional as applied to the states?
o Acting under § 5, Congress can’t expand the scope, Congress can only
remedy items [the court has viewed as issues] (bracketed part is implied)
 Is Boerne correctly decided?
 Rule: Congruence/proportionality test: while preventive rules are sometimes
appropriate remedial measures, there must be a congruence between the means
used and the ends to be achieved. The appropriateness of remedial measures must
be considered in light of the evil presented.
o What does congruence & proportional mean?
 Look at what Congress has done in the statute and how far beyond
what the Court understands as the right in the statute
 Congress is not responding to how the Court views
rights/constitutional problems in the world → not congruent &
proportionate
 This is not an attempt to resolve something the court views as
a constitutional issue, Congress was trying to change the
meaning of the Constitution
o Remedy versus Court’s idea of the constitutional right
 “While the line between the remedy and change is difficult to discern,
the line exists and must be observed.”
 No deference; a form of heightened scrutiny
2. RFRA today: Burwell v. Hobby Lobby Stores, Inc. (2014)
34
11.
The Constitutionality of the Voting Rights Act
of 1965
I. Introduction
A. Section Two of the Fifteenth Amendment
B. The Voting Rights Act of 1965 (VRA)
 It was passed to oppose voting discrimination
 It addressed the whack-a-mole problem: racists were always coming up with new
and ingenious ways of discriminating.
C. Key provisions of the VRA
1. Section 2
 Bans any provision or procedure which restricts voting based on color
2. Section 5’s “preclearance” requirement
 Addresses whack-a-mole: certain states according to the coverage formula were
barred from making any change to voting methods without preclearance by the
Justice department
3. Section 4(b)’s “coverage formula”
 Defines covered jurisdictions as those that require tests to vote & had lower voter
turnout during 60s & 70s
4. Suspension of literacy tests and similar voting qualifications
5. The “bail out” provision
 Section 4(a)
 Released states and counties if they maintained a clean record
II. Background on Warren and Burger Court Decisions
A. South Carolina v. Katzenbach (1966) [not in reading]
 Various sections of VRA constitutional under the 15th amendment, § 2
 The Court was deferent to Congress
B. City of Rome v. U.S. (1980) [not in reading]
 Court did the same thing and went further
 Court has the authority to interpret meaning of the 15th amendment itself per § 2
C. The question after City of Boerne v. Flores (1997)
 Will the Court do to the 15th Amendment what it did to the 14th Amendment?
[what does this mean? Hold it as only applying to the states?]
III. Background to Shelby County v. Holder (2013)
A. Congressional reauthorizations over the decades
 VRA was last reauthorized in 2006 by a huge majority
B. Northwest Austin Municipal Utility District Number One v. Holder (2009)
 The public utility company said that it had had a clean record and wanted out of
preclearance
 Court practiced constitutional avoidance and held that it was entitled to be released
per the terms of the statute
 But, it expressed doubt as to the constitutionality of the requirement under §2 of
the 15th (possibly as a hint to Congress to update the law)
IV. Shelby County v. Holder (2013)
35

A.
B.
C.
D.
An Alabama county with a continuous history of discrimination challenged §§ 4b
and 5
The question thought to be presented versus the question answered
Roberts majority opinion
 Rule: A statute’s “current burdens” must be justified by “current needs,” and any
“disparate geographic coverage” must be “sufficiently related to the problem that it
targets.”
 The Court invalidated § 4(b) (the coverage formula) on the grounds of equal state
sovereignty → if you treat different states differently, then it must be justified by
current needs
o NOT a rational basis test
 Heightened scrutiny
 More demanding than congruence/proportionality
 The test for now is congruence/proportionality
 Notes: Siegel thinks coverage formula is under inclusive; Siegel gets upset when
discussing this case → Siegel thinks it’s missing an important component of its
legal analysis → looking at how Blacks have historically been treated
 Does not need to address § 5 because the Courts holding on 4(b) disposes of the
case
 Exceeded the powers enumerated in the 14th-15th
Thomas concurring opinion
 He would also find §5 of the VRA unconstitutional.
Ginsburg dissent
 She uses a rational basis test
 Two reasons for enacting the VRA:
o (1) continuance to facilitate completion in the impressive gains so far and
o (2) guarding against backsliding.
 These are compelling interests.
 Necessary and proper clause: When Congress acts to enforce the right to vote free
from racial discrimination, the Court asks whether Congress has rationally selected
means appropriate to a legitimate end, not whether Congress has chosen the means
most wise.
 This is like closing an umbrella in the middle of a storm because you are not
getting wet
V. Questions


36
Where is the doctrine of equal state sovereignty? First appears in Northwest Austin
The political reality was that Congress was constrained to one choice: either
reauthorize or do not; no change was feasible.
12.
Preemption, the Dormant Commerce
Principle, and Article IV’s Privileges and
Immunities Clause
I. Transition
A. Where we have been and where we are headed
B. Two scenarios for preemption:
1. Congress has acted—preemption
 Whether a valid Federal law conflicts with State law → if so, federal law trumps
 Act: by passing a law; preemption is the issue
2. Congress has not acted
 Difference between limits on federal power and limits on state power
o Here, we’re only talking about state power (dormant commerce principle &
privileges and immunities clause)
a. Dormant Commerce Principle
 It is inferred from the Commerce Clause
 Prohibiting state and local laws from placing undue burden on interstate commerce
b. Privileges and Immunities Clause of Article IV, Section 2
 These are limits on state and local powers. The federal government can't violate
these, only states can.
 Prohibits discrimination against out-of-state citizens
C. Basic normative question
 Here, we are talking about the limits of state power
 The Federal government cannot violate the dormant commerce clause; it limits
states
 How robust should judicial review be?
o Should there be a narrow interpretation of Federal conflict?
o Should there be a broad protection of unity?
II. Preemption
A. Preemption defined and described
 When there is a conflict between a valid federal law and state law, federal law
controls and state law is invalidated on federal constitutional grounds for as long as
the conflict endures--> if the federal law is changed, then the state law could go
back into effect
B. Examples we have already seen
 Gibbons (federal vs state license to go between NY and NJ)
 Gonzalez (Marijuana)
 McCulloch (bank)
 Katzenbach (Puerto Rican literacy requirement for voting)
C. Relationship to federalism
D. Congressional intent
 Based on congressional intent, but often laws are silent and intent is unclear
 Preemption cases are statutory interpretation cases → most don’t actually have a
con law issue
E. Presumption against preemption?
37

Rebuttable presumption against preemption when it is a matter of typical State
concern
F. A puzzle
 Expect liberals to be pro-preemption, but flipped here → conservative judges more
likely to side with preemption than liberal judges
III. Dormant Commerce Principle
A. Three questions
1. What is the dormant commerce principle?
2. Should there be a dormant commerce principle?
3. What is the doctrinal test? Three sub-questions:
a. Is the law discriminatory against out-of-staters?
b. What is the analysis if the law is not discriminatory?
c. What is the analysis if the law is discriminatory?
B. First Question: What is the dormant commerce principle? (aka negative commerce clause)
 A constitutional principle that courts can invoke to invalidate laws
1. The principle defined
 States may exercise authority to regulate interstate commerce until it places an
undue burden on interstate commerce, unless Federal law preempts
2. Text versus structure
 It is inferred from the Commerce Clause versus the plenary power of states
 Structural constitutional principle that state and local laws that place undue burden
on interstate commerce clause are unconstitutional
 Note: Siegel likes to call it the dormant commerce principle, not the dormant
commerce clause
3. The difference between the two commerce “clauses”
 Commerce identifies the scope of federal power and applies only to federal laws
while dormant is just limits on what state and local governments can do and only
applies when Congress has not acted
C. Second Question: Should there be a dormant commerce principle?
1. Arguments against
 Roberts says there shouldn’t be one
 There is no textual authority for it
 It is not needed because Congress can just act to preempt if too much of a burden
is being placed on interstate commerce
 He is concerned about giving Federal courts too much power
2. Arguments for
 Whack-a-mole problem → problems may appear “spontaneously” and Congress
might not be able to pass a law that resolves the issue
 Fears that Congress lacks the time and capacity to get every issue
 Centuries of precedent
 It is a collective action problem; a structural problem
 Protectionist laws accrue benefits to locals at the cost of foreigners without a vote
 Originalist argument: the constitutional convention was called to combat economic
balkanization
 Congress has cooperated with courts
38
o It could pass a framework statute enabling the court to do what it is already
doing
 Political representation argument: people are hurt by state laws that they were
unable to vote on because they are citizens of other states
3. Basic point
 Enables a significant expansion of federal power and limitation on states
 Economic prosperity for the entire country requires a dormant commerce principle
 Originalist argument from history of constitutional convention
 Congress is supportive → Congress could have done the same thing with a
framework statute
D. Third Question: Under what circumstances are state laws declared unconstitutional as
violating the dormant commerce principle?
1. Initial inquiry: Discrimination
 If the state law does not discriminate against out-of-state citizens, the law is likely
to be upheld.
a. The crucial determination
 This question is often determinative
b. Three ways it is decided if a state law is discriminatory
 Each of these three on their own is enough to trigger strict scrutiny
 It is very different than the equal protection clause where effect on its own is
insufficient to trigger strict scrutiny
(1)
Discriminatory on its face;
 If so, don't need analysis, easy to decide against the law
 E.g., only permitting locals to fish
(2)
Discriminatory purpose; or
 Facially neutral but intent was discriminating
 Illegitimate purpose: protectionism
 Legitimate discriminatory purpose: safety and health
 Issue is protectionism
(3)
Discriminatory effect
 Is enough to trigger heightened judicial scrutiny
 Ex: effect is to give businesses within the state an advantage
 Apple discrimination
2. Analysis if the law is deemed not discriminatory
a. Simple balancing test
 Benefit of the law vs. burden on interstate commerce
b. Problem with the test
 But, how do you quantify
3. Analysis if the law is deemed discriminatory
 Has to satisfy heightened scrutiny- must be necessary to achieve an important
government interest so no nondiscriminatory means is available. Different standard
than necessary and proper.
a. Strong presumption of unconstitutionality
 Must satisfy heightened scrutiny
b. Law must be necessary to achieve an important state interest
39

It is necessary (i.e., indispensable (stronger than McCulloch)) to achieve an
important governmental interest (2 part test)
c. Exceptions to the dormant commerce principle
(1)
Two exceptions:
(a) Congressional approval
 Congress can sign off, see (New York v. United States (1992), pg.23 (toxic waste))
o Supreme Court had tried to protect Congress via the Dormant Commerce
Principle
 Congress can do so as a normal Commerce Clause Power
 This is where the Congress can overrule the Supreme Court (and other federal
courts)
 Rather it is Congress that allows the activity under its own power
(b) Market participant exception
 A State can favor its own citizens if it itself participates in the market (i.e., State
Government contracts); state benefit programs with local business
 Question: Is the state regulating or acting as a market participant? If regulatory,
then can fall under dormant commerce principle, if market participant, then can’t
fall under dormant commerce principle
(2)
Arguments for and against market participant exception
 Contra: this is the very thing the principle is designed to combat; could this
circumvent the dormant commerce principle just by framing it differently?
 Locals pay the taxes, so locals should benefit
IV. Interstate Privileges and Immunities Clause of Article IV, Section 2
A.
B.
C.
D.
40
 It is question of what these privileges and immunities include
Constitutional text andCorfield v. Coryell (1823, sustained a NJ statute limiting clamfishing to state residents)
 Article 4, Section 2, Clause 1: “The Citizens of each State shall be entitled to all
Privileges and Immunities of Citizens in the several States.”
 14th Amendment, Section 1: “No State shall make or enforce any law which shall
abridge the privileges or immunities of citizens of the United States;”
Current doctrine
 Addresses:
o Discrimination with respect to other constitutional rights
o With respect to economic rights: livelihood
The basic rule
 Can only contravene the Clause if required (substantially related to) for important
state interests
Dormant commerce principle versus Privileges and Immunities Clause
 They do not cover the same grounds; overlap but have key differences
 Article 4 only applies to discrimination, citizens, and has no exceptions
 DCP applies to burdens, corporations, and has exceptions
 Dormant:
o Any discrimination of out of state interest
o Can be against corporations & can be invoked by corporations
o Exceptions exist
o Also includes burdens
 P&I:
o Only discrimination against out of staters with respect to fundamental rights
or earning a livelihood
o Only to citizens, not corporations or aliens
o No exceptions
o Only applies to discriminations
E. Privileges and Immunities Clause versus Privileges or Immunities Clause
 Article 4 vs. 14th Amendment
 14th is almost never used because the Supreme Court obliterated it
F. Analysis under Privileges and Immunities Clause—two questions:
1. Does the state law discriminate against out-of-staters with respect to the privileges and
immunities it provides its own citizens? Privileges and immunities means two things:
a. Constitutional rights
b. Earning a living- most cases fall into this category
 Means-end analysis smokes out illegitimate purpose (the means are properly
tailored to the ends)
 Toomer v. Witsell (Shrimp boat licensing; discriminated against out of staters,
struck)
 Cambden v. Cambden (Required 40% of city construction workers)
 Under the DCP a plaintiff would lose, but under Article 4, plaintiff could win
2. If “yes,” is the discrimination necessary to achieve a substantial state interest?
 Heightened scrutiny
o Cf. limiting bar admittance to state residents
G. Relatively recent example—Granholm v. Heald (2004) (not in the reading)
 In versus out wineries selling directly to New York or Washington
 The test is to smoke out illegitimate purposes
 Why wasn’t there an article 4 challenge in this case?
o There no discrimination against an individual
o Corporations are the ones bringing suit
V. In-State v. Out-of-State Tuition!



Market participation exception in dormant commerce principle
There is no fundamental right to an education (privileges and immunities clause)
It is not directly impacting the need to earn a living. (privileges and immunities
clause)
VI. Transition to Unit III
41
13.
Rise and Fall of Lochnerism; Protection of
Economic Rights Since 1937
I. Introduction

A.
B.
C.
D.
E.
42
No deprivation of property, 5th- federal, 14th- states (where the respective due
process clauses are found)
Examples of the kinds of questions at issue
o May a state impose minimum wage/ max hour laws? May the federal
government?
o What economic freedoms/rights exist under the constitution?
o May a state prohibit employers from barring a union?
The Framers and economic rights
 Contracts Clause Art. 1 § 10
Progressives v. conservatives during the Republican (or Lochner) Era
 Industrialization: Progressives say it means more regulation of economy is
necessary
 Conservatives wanted to impose substantive due process to protect freedom to
contract
1. State courts
 State courts moved before SCOTUS to protect economic rights under substantive
due process (Feds under 5th Amendment Due Process Clause, states under 14th
Amendment)
2. Federal courts
 5th Amendment
Our focus
 Economic rights under substantive due process
 Constitutional hooks: 5th is for federal government; 14th is for state and local
Two possible ways of interpreting the Due Process Clauses
1. Procedural due process
 Refers to procedures government must do before taking away life, liberty or
property
o e.g., notice, hearing, etc.
2. Substantive due process
 Idea that Due Process Clauses refer to adequacy of government's justification to
take away life, liberty, or property.
o e.g., you can't do this to me
 Protect economic rights through substantive due process
 The way to understand the difference is to see what a person wants—if you’re
saying “there are certain things you can’t do to me” then it’s substantive due
process, if you’re asking for an unbiased magistrate, then it’s procedural due
process
 Death penalty:
o I’m mentally handicapped. You can’t do this to me. = Substantive Due
Process
o The prosecutor withheld evidence from my trial that would have exonerated
me. = Procedural Due Process
F. Two ways that substantive due process has been used
1. Economic rights (then)
 Lochner Era
 Especially freedom to contract
2. Individual autonomy (now)
 Still around today (e.g., reproductive/gay rights)
 Privacy – origins in Lochner era family rights
G. Road Map
II. First Question:Protection of economic rights during the Lochner Era
A. The Lochner Era
 Protection of individual autonomy; privacy
 Supreme Court struck down many state laws as violating due process
 Corporations are persons for the purposes of due process
B. Four reasons to understand the protection of economic rights during this era
 Four reasons why we need to understand Lochner in a post-Lochner world
 1. Court’s actions were important →first time it regularly struck down state laws
 2. Court’s failure/refusal to protect economic rights is a perceived reaction to evils
of Lochner
 3. Much of modern con law especially regarding individual rights law is a reaction
to this era. This has led to a struggle to find a model of judicial review that doesn’t
follow Lochner.
 4. Lochner forces us to think about basic questions such as what rights does the
Constitution protect and how the court should interpret it.
C. Three themes running through the Court’s decisions
1. Theme 1:
 Liberty of due process clause protects economic rights (especially freedom of
contract and employment contracts) - I.e., Freedom of contract with very little
government interference
a. Lochner v. New York (1905)
 Facts: Law restricting bakers' hours per day and week challenged. Justification was
health of bakers; not enough bargaining power by bakers to negotiate effectively
due to the surplus of bakers.
o Problem: employers & employees can’t contract out of this → restrictions on
liberty of contract on both sides
 Court applies economic (substantive) due process; finds that the baker is not a
dangerous profession, so this is not within police powers
o The Court was concerned with redistribution of wealth → employers have all
of the power and therefore all of the wealth
b. Allgeyer v. Louisiana (1897)
 Facts: LA law effectively prohibited doing business with out-of state marine
insurance companies
 Prohibited contracts with companies that were not licensed
 Struck down unanimously
c. Coppage v. Kansas (1915)
43

Facts: Kansas state law prohibits “no joining unions” section of employment
contracts; employer who violates sues.
 Prohibited "yellow dog" contracts
 Struck down 6-3
d. Adkins v. Children’s Hospital (1923)
 Law setting minimum wage for women and children in DC is challenged
 Court strikes down 6-3
2. Theme 2:
 State can infringe liberty only for valid police power purpose (ends)
a. (1. Safety, 2. health, 3. Welfare (community welfare), 4. morals). The court
determines this with no deference to the legislature.
3. Theme 3:
 The state regulations must be necessary to achieve (means) valid police power
purpose (I.e. indispensable) → it’s the role of the Court to ensure this
o See Weaver v. Palmer Bros. (1926)
 Law preventing shoddy mattresses invalid because not necessary –
could require sterilized shoddy
 Tries to smoke out an invalid purpose
D. The kinds of progressive legislation invalidated by the Court
 Protection of unions, minimum wage, maximum hours, etc.
E. Evaluating the Lochner Court
1. Criticisms
o Court is protecting wrong values
o Court is striking down democratically enacted laws with a concept not
strongly present in the constitution
o Court should have been more deferential
o Charges of inconsistencies because upholding max hours laws but not
minimum wage.
o Ignores the disparity of bargaining powers
o Seems arbitrary and or inconsistent
2. Defenses of Lochnerism
o Importance of practicing trade or profession and freedom to do that is critical
right
o Constitutional commitment to laissez-faire
o Importance of freedom of contract
o Need for limits on government regulation of business due to interest group's
protectionist propensities
F. Pressures ensuring the demise of Lochnerism
1. Economic
o Economic reality of times (Depression)
o Lots of people were unemployed
o Disparity of bargaining power
2. Political
o Virtually everyone is affected- FDR popularity and court packing plan
o Democratic president & majority in both houses
3. Intellectual
44
o Rise of legal realists
o Court is making clear political value choices and failing to adequately
respond to changing social conditions
III. Second Question: Protection of economic rights since 1937
A. Introduction
 Total downfall of Lochnerism
 Only place it remains is economic due process of punitive damages
 Constitutional limits on punitive damages [I have this too, but how is this related to
economic rights?]
 No protection of economic rights (?) [yup, no protections since]
B. Cases signaling the end of the Lochner era
1. West Coast Hotel v. Parrish (1937)
 Court upholds minimum wage for women statute; overturns Adkins
 viewed as ending of Lochner Era
 "The Constitution does not speak of the freedom of contract"
 The court recognized that equalization of bargaining power is a legitimate end of
government
2. United States v. Carolene Products (1938), footnote 4, and the double standard
 Federal government prohibits the sale of milk with coconut oil
 Milk product case
 Court establishes deferential rational basis review
 Regulations are constitutional within legislative discretion
 Footnote 4 – double standard – p. 579
o Deferential for economic rights
o Less deferential in three cases
 1. Violation of specific constitutional rights
 2. Political process failure
 3. Prejudice against discrete and insular minorities
o Thus, economic legislation triggers rational basis review and discrimination
triggers heightened scrutiny
C. The three themes of the post-Lochner Era, post-1937
o 1. No longer protect freedom to contract under Due Process Clause
o 2. State can act to pursue any objective not contrary to Constitution (which is
contrary to the court's previous limited interpretation of states' police powers)
o 3. States can choose any rationally related means to achieve the end
D. Examples
1. Williamson v. Lee Optical (1955) p. 584
o Facts: Legislature says only optometrists or ophthalmologists can fit glasses
o Court upholds, making up it's own justification
o Reinforces disparities in bargaining power
2. Ferguson v. Skrupa (1963) – p. 504
o Facts: Kansas only allows lawyers to debt adjust
o Courts upholds and says, “We are not a Superlegislature”
o Gives deference to the legislature
45
14.
Framework; Rational Basis Review; Rational
Basis “Plus”
I. Historical overview
 Equal protection
A. The first 80 years or so Equal protection clause was added in 1868, but wasn’t used for the first 80 years
 not really used during this time
 1927 Buck v. Belle (forced sterilization of mentally retarded; “three generations of
imbeciles is enough”)
o Court read the equal protection clause to apply narrowly to race and so did
not apply in this case
B. From the 1950s to today
 With Brown, the clause has gained much more power
 The clause is potent legal authority
II. Introduction to equal protection
A. First Question: What provisions concern equal protection?
 Wikipedia: “In reverse incorporation, the equal protection clause of the 14th
amendment has been held to apply to the federal government through the due
process clause located in the 5th amendment.”
1. The Equal Protection Clause
 14th Section 1, expressly limited to states and local governments
2. The Due Process Clause of the Fifth Amendment
 interpreted by the court as having an equal protection component
 Ex. Federal affirmative action that has been invalidated was invalidated on equal
protection principles
o 5th amendment includes equal protection principles from the 14th (through
reverse incorporation)
3. A word on the modalities
B. Second Question: What is the framework for equal protection cases?
1. Two examples
 Would apply deference to legislative decisions: thus, they would not be subject to
the Court’s equal protection clause scrutiny
 State bar exam requirements
 Driver's license
2. Two other examples
 These are subject to equal protection challenges and so would be struck
 No women lawyers
 No African American driver's licenses
3. The differences between them
 It’s a difference between a merit based exam and safety considerations versus
 Discrimination on the basis of an irrelevant, immutable quality
 There must be a reasonable relation between the discrimination and objective
sought
4. The blackletter doctrine—three questions:
46
a. First, what is the classification?
 sometimes facially discriminatory
 facially neutral but with a discriminatory effect (discriminatory effect is not
enough for heightened scrutiny alone, must also have a discriminatory purpose)
b. Second, what is the level of judicial scrutiny?
 3 tiers
(1)
Rational basis Review
 law has to be rationally related to government purpose (most deference)
 Unless assigned to a different level of scrutiny, all laws go here
(2)
Intermediate Scrutiny
 Must be substantially related to an important government purpose
 Especially for sex discrimination
(3)
Strict Scrutiny
 As articulated in RFRA, the law must serve a compelling governmental interest
and be the least restrictive means of furthering that interest
 law must be necessary to a narrowly tailored compelling government purpose
c. Third, does the classification meet the level of scrutiny?
(1)
Ends
 Is the purpose sufficient?
 Race: the purpose must be compelling
 Economic: can be just about any purpose for economic classification
(2)
Means (“fit”)
 Is the classification sufficiently related?
 Economic--> rational relationship
 Racial--> very tight purpose
III. The rational basis test
A. Introduction
 Minimum level of review (almost anything triggers this)
 Law must be rationally related to a legitimate government interest
 Question is: is it conceivable?
B. Two analytical questions
1. First Question (ends): How is it determined if there is a legitimate purpose? Two subquestions:
 how does the court decide?
a. First Sub-Question: Actual versus conceivable purpose
(1)
Railroad Retirement Board v. Fritz (1980)
 pg. 589
 Railroad pension law which would give current workers double benefits at the
expense of those already retired
 any conceivable legitimate purpose is enough
 Dissent says that the test should be against the actual purpose
o Otherwise, we permit post hoc creation of a “purpose”
o The majority is terrified of returning to Lochner, but this is an easy and
deferential test; all we would ask is what the legislature actually thought
(2)
Clearly established law
47
b. Second Sub-Question: What constitutes a legitimate purpose
 There are some limits to deference, but not many
 There is a question of why here and not so deferent elsewhere
2. Second Question (means): How is it determined if a law is rationally related to its
legitimate purpose?
 so arbitrary as to be irrational
a. Underinclusiveness—e.g., REA v. New York (1949), pg. 586
 Regulation: cannot sell ad space on vehicles (allows trucks owner’s to advertise
their own products on their trucks)
 under regulates --> doesn't fully vindicate the purpose of the law (the more
underinclusive, the more irrational it seems but the court rarely invalidates laws)
o Not all similarly situated people are treated the same way
o Problem: people with less political power are being picked on
o Very rarely will the Court overturn a law as being underinclusive because the
Court is more okay with legislatures taking one step at a time
b. Overinclusiveness- overregulates
 Regulates more people than it needs to vindicate the purpose (in practice courts
don't strike these down)
c. Both?
 Ex. Japanese internment camps; applied to all of Japanese ancestry on the West
Coast, even those with clear loyalty to the US and did not apply to even suspect
Germans or Italians
 Mandatory UNC alumni review session during game Duke-UNC game
C. City of Cleburne v. Cleburne Living Center (1985)
 1 of 3 times where court invalidates a law as irrational
1. Facts
 city prohibits group home permit for intellectually disabled residents
2. City’s asserted justifications
 pg. 1492
 Concern for harassment from students across the street
 Negative attitudes from surrounding neighborhoods
 Congestion of streets
 Flood plain (yeah…they went there)
3. Rational basis review?
 court applies this after analysis pg. 1492
 Court: because the class is fairly represented and not historically discriminated
against, it’s not a special class
 These are all private biases which the state cannot give direct or indirect effect to
them; this is a powerful principle.
 Some say what court did is consistent with past analysis, but others say this is
"rational basis with bite" or rational basis plus
 This is an example of potential conflict between what court does and what court
says
o Palmore v. Sidoti
48

This situation is per se impermissible (one argument was reducing
housing prices)
 Court is worried about extending protected status to additional classes
 Court says it’s applying rational basis review, but is it really?
 Rational basis with bite/rational basis plus/rational basis double plus/searching
rational basis
o Used when Court thinks there is prejudice
 Distinction between what the Court said and what the Court did → case turned on
this
4. University of Alabama v. Garrett (2001) on Cleburne
 Is Title I of ADA allowed under § 5 of 14th amendment? No congruence and
proportionality so unconstitutional
 said rational basis review is used for disability discrimination
5. Compare the Americans with Disabilities Act of 1990 (ADA)
 Includes disparate treatment and requires businesses to make necessary
accommodations unless it is too much of an undue burden
 ADA was created to fix difference between formal and substantive equality
 Congress went beyond the constitutional requirements and protected more than the
minimum (see also RFRA)
 requires reasonable accommodation
49
15.
The Constitutional Law and Politics of Slavery
I. Introduction
A. The gravity of the subject
B. The difficulty of comprehending the subject
 So many discriminatory laws, we can’t understand the mindset
II. The Founding Era

The economy was built on slavery, and no way the South would have ratified it
without slavery protections.
A. Pro-Slavery Provisions
 Constitution didn’t prohibit slavery anywhere
 Art. 1 § 9: clause disabling Congress from prohibiting importation until 1808
 Art. 5: rare entrenchment provision prohibiting altering of Art. 1 § 9 until 1808
 Art. 4 § 2 cl. 3: Fugitive Slave Clause
 Art. 1 § 2 cl. 3: allocated seats in the House by one per white male and 3/5 of all
others
 Art. 1 § 8 cl. 15: thought behind this was slave insurrections
 Was it a pro-slavery document? No, doesn’t guarantee it anywhere. Reasonably
thought of as a mixed bag.
B. Anti-Slavery Provisions, at Least Potentially
 Commerce Clause: can talk about interstate transportation
 Territories Clause: does not expressly mention slavery, but could be interpreted to
prohibit slavery in territories, but reverse could also be true
 Congress seems to have power to ban slavery after 1808
C. The 1780s
 Some northern states freed slaves, others adopted measures that gradually
abolished slavery
 Some southern states made it easier for slave owners to free slaves
 Some free Blacks could vote in some states
 All states discriminated by race.
III. The Early National Era (1791-1828) and the Jacksonian Era (1829-1860)
A. Two explosive issues
1. Federal power to pass fugitive slave laws
 Such as Fugitive Slave Act of 1793
2. Federal power to prohibit slavery in American territories
 Single most important issue in US prior to Civil War → would affect the number
of free state and slave state representatives in Congress
B. Two doctrinal areas of disagreement
1. Constitutional structure
2. Constitutional rights
 Slave owners: due process clause of 5th Amendment protects your right to take
your property anywhere in the US
 Due process clause could be used to argue right to liberty of free men (substantive
due process right) and procedural due process – a lot of these cases are about
50
C.
D.
E.
F.
allegations that people are slaves → who is right depends on if you believe in
substantive due process and which way it cuts
 For procedural due process, no one was arguing that alleged slaves were persons
The Constitution in Congress: compromise, not principle
 Missouri Compromise – permitted slavery in territories south of 36 degrees 30 and
banned slavery north of it
 Vindicates no one’s constitutional principles, was just a temporary fix.
 Not consistent, just trying to hold the country together.
The status of free blacks
 Viewed as neither citizens of their state of residence nor US citizens by white
citizens
The situation in the Northern states
 Didn’t allow slavery but didn’t promote equality either
 “Separate but equal” started in Boston public schools in 1849
A pro-slavery Supreme Court
 Very protective of slave owners’ interests
 Northern population was almost double the southern population
 More pro slavery justices because the senate controlled who got on the court and
made sure that a majority of the circuits were in slave states, which was how
justices were chosen
1. Prigg v. Pennsylvania (1842)
a. First holding
 Congress had the constitutional authority to pass the Fugitive Slave Act of 1793
 Storey reasoned that “shall be delivered” implied Congress, not the states had to
collect the runaway slaves
 Infers Congressional authority where it is not expressly mentioned
 Slaveholder issues due process clause protects right to bring slaves wherever.
 Abolitionist issues due process free slaves would lose substantive (liberty)
and procedural (of whether they are free) due process rights if entering the south.
b. Second holding
 Invalidates state personal liberty laws (1826 Pennsylvania Statute)
 State laws are blurred because they have the potential to limit the constitutional
rights of slave owners
 Does this interfere with the Due Process Clause (procedurally)? Not if the 5th
Amendment doesn’t apply to slaves or alleged slaves
 This holding was viewed as essential to the preservation of the union
2. Compromise of 1850
 California admitted as a free state, Colorado and New Mexico had the right to
choose
 Fugitive Slave Act of 1850
o Passes an even more protective slave law- authorizes recapture of slaves,
helping was a crime, bystanders had to help. Biased proceeding for proof of
fugitive status.
o Helping a slave is a crime
51
o Can obtain a certificate from a federal marshal identifying someone as a
slave
3. Dred Scott v. Sandford (1857)
 Former slaves sued for freedom because they resided in a free state
 Potentially first substantive due process case (7-2 decision)
 First time since Marbury that the Court invalidated a federal law as
unconstitutional
 Opinion is originalist—tries to interpret it as it would have been at the time
a. First holding
 Former slaves could not become US citizens, therefore, there was no federal
subject matter jurisdiction over this case (no diversity of citizenship)
b. Second holding
 Congress had no authority to regulate slavery in territories
 Federal power argument and individual rights argument 5th amendment
substantive due process holding protecting rights of slaveholders
 2 reasons:
o 1) Territories Clause refers only to area that existed at the time of the
Constitution’s ratification → beyond the scope of federal power
o 2) 5th Amendment Due Process Clause (individual rights) – protecting rights
of slave holders
 Why isn’t a ban on slavery in the territories the only thing that’s
unconstitutional? Why not also in the states?
 The 5th Amendment only applied to the federal government at the
time
 Constitutionality of the Missouri Compromise → the Court shouldn’t have decided
this because it had already determined that it didn’t have jurisdiction → can’t
decide on the merits after deciding that you don’t have jurisdiction
G. Kansas-Nebraska Act of 1854
H. H. Democratic Senator Stephen Douglas’s proposed federalism solution
 Trying to hold Democratic party and the country together by touting popular
sovereignty – letting the people decide for themselves
I. And the war came
IV. Why Does this History Matter?
A. Potential relevance to the present
 Same-sex marriage
B. The problem of constitutional evil
 What would you do if you see the Constitution as a moral evil because of the
Fugitive Slave Clause?
C. Our own potential blind spots
D. The proper role of prudential reasoning in constitutional law.
 Why does the history matter?
o Inequalities are echoes of slavery
o Consider the Japanese internment camps during World War II
o “Unjustified optimism that the American Constitutional system produces
happy endings”
52
o “I used to be arrogant, but now I’m perfect”
53
16.
Adoption of the Reconstruction Amendments
I. Civil War History
 Three important developments:
A. Congressional ban onslavery in the territories and in the District of Columbia
 Congress ignored the second holding in Dred Scott and prohibited slavery
 Siegel thinks the second holding was dicta so this was ok
B. Lincoln Administration’s declaration that free blacks are U.S. citizens
 Lincoln ignored the first holding; “sometimes exigencies trump the Constitution”
C. Emancipation Proclamation
 Freed the slaves in Confederate territory as people
 Repudiates the Supreme Court’s (Taney’s) interpretation of the Due Process
Clause. Lincoln refuses to follow some of Taney’s decision.
II. Section One of the Civil War Amendments
A. Thirteenth Amendment (1865)
 Prohibits slavery and involuntary servitude, except as punishment for a convicted
crime
B. Fourteenth Amendment (1868)
 All born/naturalized are citizens; over rules Dred Scott
 Privileges or Immunities Clause; Due Process Clause
 Makes states liable for violations; this is unprecedented
C. Fifteenth Amendment (1870)
 The right to vote is extend to blacks; enforced against states
 Rationale: otherwise southern racists would be over represented
 Now greater southern representation in Congress
D. Disagreements during Reconstruction over each amendment
 Lots of disagreements
 Should and did the amendment create a new order or mild adjustment
 (Consider Shelby County)
 Racial practice they were abandoning was clearer than what they were adopting
 Per originalism, certainly it was not demanding color-blindness
 Were the necessary? To what extent? What is the meaning of the language?
E. The moving force behind the amendments
 Republican party was trying to bring Confederates back in line and keep the US in
Republican power
F. Self-execution
 Floor Manager, Sen. Howard, calls § 5 absolutely necessary; necessary and
indispensable
 Thus, this Congress would demand much more deference than Shelby gives
 § 1 of above amendments
III. Enforcement Clauses
A. Location and language
 Each amendment has one
 “Appropriate” comes from McCullough
B. Structural logic
54
C. Disagreements, then (e.g., Civil Rights Act of 1866) and now (e.g., City of Boerne, Shelby
County)
 Why was the Civil Rights Act of 1866 passed?
o Concern that the 13th Amendment didn’t cover what was in the act
o It was passed to address the Black Codes, etc.
 Congressional Republicans came to believe that the 14th was necessary
IV. Civil v. Social v. Political Equality
A. Civil v. social equality
 With the equal protection clause, how can it prevent discrimination on contracts,
suits, etc., but how not marriage and schools
 Equal protection only covers civil and not social equality
B. Civil v. political equality
 Why did the 15th have to permit the vote to blacks?
 Because civil rights are not the same as political rights
 Voting is based on local law
 Female citizenship did not entail suffrage
C. The conceptual framework
 The contours were unclear and deeply debated; back then all of these rights were
not civil rights as we know them today
 Most Congresses accepted these distinctions
 Civil rights: right to contract, own property, fair court proceeding, work
 Social rights: marry, associate, education
o Argument: 14th Amendment doesn’t protection social rights/equality
 Political: political privileges, including the right to vote
 Jury and public office is in the grey zone between civil and political
o Seigel thinks they’re more political
 Three distinctions were doing a lot of work
o Now, they hold no force
o But, they last much longer than we would think (until Loving in 1967)
o § 1 of 14th Amendment was thought to only protect civil rights, but civil
rights didn’t mean what we think of today
 What is the basic purpose of these distinctions?
o Needed to win votes (realist perspective)
o How oppose Black Codes without raising to full equality
o Freedom of association: whites wanted to still keep blacks at arm’s length in
social (and business) spheres
 Social fears that you will be forced to associate with people you don’t
want to
o Basic: expand and limit the guarantees of equality to Black men
55
17.

Restriction of the Fourteenth Amendment
I was absent
I. Introduction

A.
B.
C.
D.
What does a legal privilege suggest? What about a privilege vs. an immunity?
o Privilege = legal entitlement to do something
o Immunity = protection against something
Intuition
 Do privileges or immunities mean enumerated and unenumerated rights?
Fourteenth Amendment Framers
Early decisions
 Does the Court adopt Howard’s view? No, because of the Slaughterhouse Cases –
first time Court will interpret the reconstruction amendments
General question: incorporation
 Howard thinks privileges or immunities incorporates Bill of Rights (p. 350); others
disagree (see p. 359)
 Does § 1 of the Fourteenth Amendment incorporate the Bill of Rights against the
states? Does it protect substantive rights?
 Cruikshank – explicitly expresses anti-incorporation of Bill of Rights in Fourteenth
Amendment
II. Slaughterhouse
A. Facts
 LA enacted a statute entitled “An act to protect the health of the city of New
Orleans, to locate the stock-landings and slaughter-houses, and to incorporate the
Crescent City Live-Stock Landing and Slaughter-House Company”
 No actual evidence of corruption
1. The law and its stated purpose
 To remove slaughterhouses from the densely populated part of the city
2. The stated rationale for a monopoly
 Same as rationale for the Act
 Health, safety, etc.
3. The plaintiffs
B. The Court’s analysis
1. Thirteenth Amendment
 Just look at purpose and evil it was designed to remedy (slavery) and this is not
that
2. Equal Protection Clause
 Doesn’t apply here because the state action has nothing to do with race
3. Due Process Clause
 It’s about fair procedures, not substantive rights → no deprivation of property
without due process of law
4. Privileges or Immunities Clause
 History suggests it’s intended to protect fundamental rights
 What does it actually protect now? According to decisions it protects things
already protected before the war and things the state is incapable of protecting.
a. The privilege asserted by the butchers
56
 Right to engage in a chosen occupation (the trade of being a butcher)
b. The Court’s response
 Virtually read the clause out of the Constitution → Court says Privileges or
Immunities Clause protects things already protected prior to the Civil War and
things that are incapable to be violated by the states and things that were likely not
on the minds of the framers (all federal privileges)
 The Court could have said:
o (1) Butchers’ right to be butchers hasn’t been taken away
o (2) The ability to choose one’s trade isn’t a privilege of national citizenship
or, if it is, it’s not violated here (see (1))
c. The basic purpose of the Fourteenth Amendment
 Not intended to change significantly the relationship between the federal and state
governments → not intended to give Congress the right to ensure that states are
permitting basic rights
 But isn’t this the point of the 14th? This is connected to the meaning of the war.
d. The narrowness of the Court’s reading
 Response: what are they talking about? Amendments say “no State shall” and
gives Congress authority → meaning assigned to the amendment similar to
meaning assigned to the war
 Very narrow interpretation of P or I. This reading virtually reads the clause out of
the Constitution.
e. How the Court pulled it off
 Textual argument → Clause 1 of § 1 of Fourteenth Amendment mentions both
state and national citizenship whereas Clause 2 only mentions national citizenship
and state citizenship contains lots of rights that states protect whereas national
rights are very narrow
 Distinction between national and state citizenship: state citizenship contains lots of
rights, but P or I of national citizenship is very narrow.
III. Slaughterhouse versus Dred Scott


Dred Scott Court puts a lot of weight on national citizenship whereas this Court
does not
Slaughterhouse distinguishes state and national citizenship
IV. Subsequent Consequences





Court uses due process clause as a means of incorporation of the Bill of Rights
Selective incorporation will prevail, but in practice, it’s total incorporation
Seventh Amendment doesn’t apply to states, nor does the Fifth Amendment
o But 14th Amendment also has a due process clause
Court hasn’t had a chance to decide whether the Third Amendment & excessive
fines of Eighth Amendment apply to states
Due Process Clause vs. Privileges or Immunities Clause
o Due Process Clause concerns people whereas Privileges or Immunities
Clause says citizens so they are not perfect substitutes
57
18.
Early Application of the Fourteenth
Amendment to Race Discrimination; Creation of the
State Action Doctrine
I. The End of Reconstruction
A. Changing commitment to racial equality: 1865-1875
 The commitment waned  business enterprise took precedence over civil rights.
Memory of war faded.
 The South was always hostile and the North grew tired of it
B. Date of the end of Reconstruction
 Disputed election of 1876- election compromise Republicans can have the
presidency but pull troops from the south
C. Timing of the Civil Rights Act of 1875
 Came at the end of Reconstruction; it prohibits racial segregation and
discrimination in places of public accommodation. Was only passed after a section
about desegregated public schools was taken out.
 Came at a time when there wasn't widespread political support
 Invalidated by The Civil Rights Cases
 Act was struck down by the Supreme Court
II. Introduction to Race and the Constitution in the Republican Era (18771932)
A. Road Map
B. Overview
 During this time, Southern racism is legitimized and strengthened
III. Congress during the Republican Era
A. Late 1870s and 1880s
 Congress offered some weak voting protections laws
B. Formation of a bi-partisan coalition in Congress
 United by a desire to promote business interests
C. Emboldening of political elites in the South
IV. The Supreme Court during the First Part of the Republican Era
A. Overview
 Legitimizing and strengthening South
B. Strauder v. West Virginia (1879)
1. Statute
 Jurors must be white men
 Defendant claimed that his rights were violated by categorical exclusion of blacks
2. Majority opinion
 This is a civil right, thus protected by the 14th amendment
 Equal Protection violation
 narrow interpretation
3. Dissent
 This is a political right, so not protected by the 14th.
 This is a debate about what category we're talking about: civil or political
C. The Civil Rights Cases (1883)
58
 Seen before with Section 5 of the 14th amendment (cf. Katzenback)
 Act prohibited discrimination in public accommodations (but privately owned?)
 This is where the court creates the state action doctrine
1. Majority opinion
 8-1 holding that act is unconstitutional; it is beyond the scope of the Civil War
amendments
 (There was no enumerated power support pre-war, so only the amendments can
supply the needed Constitutional hook)
 [1875 addressed privately owned public accommodations...what does this mean?]
a. Thirteenth Amendment
 Section 1: Does relate to private conduct, but only to discontinue conduct that is
chattel slavery, which here it is not
 Section 2: slavery was a long time ago, so you're just a citizen now; no more
special treatment
o Also, applying this section to private action would drive the slavery argument
into the ground
b. Fourteenth Amendment
 Only applies to state (government) action, not private action
 [before this case, it was not so clear that the amendments could not apply to private
action
 For example, the amendments do not apply to certain private businesses that
require state licenses to operate, but isn't this a mingling of state and private action
that should be subject to the amendments?
c. What the majority fears
 Slippery slope Congress could regulate all private action. Forced social
association between whites and blacks, which whites opposed.
 Court is really concerned about enforced social equality; forced association
2. Harlan dissent
 Quasi-public discrimination- not social rights, these are core civil rights because
roads and inns are public goods.
a. Thirteenth Amendment
 Section 2 should be applicable because it shouldn’t just apply to literal slavery, but
also other types of slavery
 This is the type of legislation that the amendment was meant to protect
 "Don't destroy the basic animating principle of the amendments"
b. Fourteenth Amendment—alternative arguments
 Don't just look at "no state shall," also look at Citizenship clause is not directed at
states and Congress can regulate against private parties. No state action required
under Section 5.
 Even if state action is required, it's met here because they're public licensees
3. Who has the better of this debate?
 Now, the 13th amendment allows Congress to prohibit private racial discrimination
(see Civil Rights Act of 1964), but the 14th is still limited to state action
59
19.
Establishment of “Separate but Equal”
I. Plessy v. Ferguson (1896)
A. Statute
o Louisiana statute requires racial segregation in railroad cars (exception:
nurses attending children)
B. Holding
o Law upheld; "separate but equal" complies with equal protection; all races
are treated alike and told where they can and cannot sit
o It is race neutral
C. Face, purpose, effect, social meaning
o Look at what Louisiana tort law says at the time
o These are 4 lenses through which to view separate but equal as
problematic/inconsistent with equal protection
o Effects: are these cars tangibly equal?
o Social meaning: badge of servitude
o Separate but equal is inherently unequal (Unsure which one this goes with)
o My four were
 Face of the law
 Application: effects
 Social meaning: badge of servitude
 And I wasn't sure of the last one, but I had both: definition of race
belies intent; function of the larger regime; it's probably "intent"
broadly understood
D. Rationale (Majority)
o This falls under the state police power, as it is a public interest issue; it is
within police power to maintain health and safety
o 1) This (racial segregation) does not fall under the protected civil/political
equality, but is an unprotected social equality
o 2) On its face, this law treats everyone the same in terms of telling them
where to sit, and that’s good enough for separate but equal
o 3) Court contests what plaintiff insists is the obvious social meaning of the
law
 Not a badge of inferiority; only "in their heads"
o Note: the Court viewed Strauder (jury case) as implicating civil rights, but
here, the Court viewed it as a social right
E. Dissent (Harlan)
o 1) This is civil equality, not social equality (Harlan is fine with social
discrimination)
 He upholds where blacks do not get to go to school when there are
only enough funds for a white school
o 2) Look beneath the surface: obvious racist reason
 Social meaning: badge of inferiority
o How to determine social meaning [I have this as "what evidence belies the
state's purpose?](I don't think this is Harlan, but Siegel brought it up here):
o Other laws (how they treat others)
o Legislative history
60
o Who passed the law?
o One drop of blood rule
o 3) “We allow Chinamen in the white car, so isn't separation of blacks even
worse?”
o Four bases for finding a constitutional problem: one its face, purpose, …, …
F. Charles Black
 One of the lawyers on Brown
 The Lawfulness of the Segregation Decisions
 Argument: Purpose, effect, and dominant social meaning are unequal
 The social meaning of segregation is undeniable
G. Mediating principles of equality
1. Anti-classification
 Color blind
 Focuses on face, some [narrowly construed] on purpose
 Focuses on individuals
o Focused on individuals that are treated differently because of race
2. Anti-subordination
 Color conscious
 Less concerned with face, more concerned with purposes, effects, and social
meanings
 Focuses on groups, not individuals
o Groups that have historically been oppressed/discriminated against → race of
a group matters
 Government acting in ways reinforcing discriminatory status
 It is unclear which of these two Harlan invokes; probably both; under Louisiana
law, both are the same, which is probably why Harlan uses both without conflict
II. After Plessy



Is Strauder consistent with Plessy?
o Strauder implicates civil rights and these are social
o Strauder specifically excluded blacks but the law in Plessy was neutral in
appearance favoring neither race
After Plessy, every aspect of life in South is segregated
Voting Rights – Holmes adopts defeatist attitude in Giles
III. Voting Rights
A. Giles v. Harris (1903)
 Court upholds state const. requirement that was used to discriminate against blacks
in practice, but, on its face, did not state an intent to discriminate
 Holmes adopts defeatist attitude towards voting rights: we can't really address this
 This is probably inspired by a desire to preserve institutional legitimacy
IV. Birth of the Civil Rights Movement

Founding of NAACP
61
20.
Brown v. Board of Education
I. Introduction



One of the 2-3 most important cases
Brown was intensely controversial; it was relentlessly attacked as illegitimate
Now, the Supreme Court debates the meaning of Brown, not the equal protection
clause
o Constitutional theories must account for Brown, not the other way around
o Supreme Court in Brown made a bet with Constitutional destiny
II. Political Antecedents









New Deal Era 1933-68
Changing partisan commitments
Debate about the causes of progress
Dramatic changes in American society and to status of African-Americans during
this time
Shift in democratic party views during this time → more in line with Republican
party, away from Jim Crow South views
Truman plays huge role in armed force desegregation
Increasingly influential Civil Rights Movement
Three major influences on the Supreme Court
o Influential civil rights movement persuades courts to apply “separate but
equal” test, and only after, tried to get courts to overturn Plessy’s test
o Protests (MLK): especially the violent response to non-violent protests
o Civil Rights Act
Other ways outside the Court influenced inside:
o Questions of immorality
o Falseness of genetic superiority
o Horrors of the Holocaust
o Blacks fighting and dying in World War II
o Cold War rhetoric of the moral superiority of democracy over communism
o Black migration north, greater political power
III. Legal Road to Brown
 Great migration north of blacks
 More urbanization
A. Initial strategy
 Margle Report
o Advocated desegregation in states because the states failed to give equal
schools
 NAACP held back the Margle Report until Plessy could be shown to fail
 First, they targeted law schools and other graduate schools
o Marshall thought it was funny that Southern states were so resistant to child
integration and not as much to graduate integration
o The idea was to start where the resistance was weakest
 “Green follows white” – money follows whites
B. State of Missouri ex rel. Gaines v. Canada (1938) – p. 1094
62
 State offers to comply with Plessy by sending students out of state
 Court says no
 Paying Black tuition but denying admission to state schools is insufficient
 The state itself must provide equal access
C. Sweat v. Painter (1950) – p. 1097
 Texas law school for Blacks vs. UT law school
o The law school for Blacks was inferior in every way
 Alumni, prestige, etc. counts for Plessy’s equal test; thus, the newly formed Black
law school could not compete with UT
D. McLaurin v. Oklahoma State Regents (1950) p. 1097
 Black student admitted to state university to pursue a grad program not offered at
the school for blacks. Court ruled that blacks could not be required to sit in
separate sections of the classroom, library or cafeteria.
 Segregating within schools is impermissible
o Notice how powerful a test it is, once the court takes equality seriously
 “Green follows white”
o Politicians send their money to where whites are
 It was very expensive to keep segregated schools
o Nevertheless, southern states dashed the hope of the NACCP that states
would integrate to save money
IV. Brown Opinion
A. Procedural history
 1952 Court could not come to an agreement on the case
 Set it for reargument; stalled
 The summer of 1953, Justice Vinson dies and Warren was named chief justice
 Warren worked tirelessly to make the opinion unanimous
 It was a short opinion designed for public consumption
o However, the opinion was vulnerable
B. Four questions
1. Did the Court properly frame the question presented?
 Are tangibly equal separate schools violating 14th Amendment equal protection?
o Whether tangibly equal schools can be racially segregated. No.The schools
weren’t tangibly equal.
 The norm is to decide on the narrowest grounds.
 The narrowest and easiest ruling would be just to say that the schools were not
physically equal and apply Plessy because there were actually significant material
inequalities.
 But the court wanted to tackle whether separate was equal so they answered the
broader question. Also, if they went narrrow, this would go on forever
 The central question is whether “separate” can be constitutional, so he says that
separate cannot be equal
2. Did the Court adequately deal with the original understanding?
 The Court focused on the original intent of the framers of the 14th Amendment
o Was the history inconclusive?
 If you mean original intent, Brown is wrong
63

The Court’s primary point is that the Constitution is a living Constitution and times
have changed
o Is it just changes in fact or is it also changes in social and political values?
 Court is inconclusive
 It says that education now is different than it was when the amendment was passed
o But, it seems that education was explicitly carved out
o It would not have been ratified if people at the time had thought otherwise
o Distinctions between races and their educations were assumed
o There were even DC public schools that were segregated at the time of the
amendment
 Prevailing opinion: this case is an embarrassment for originalism
 What about the original semantic meaning of the words?
 Living constitutionalism: times have changed
o But, is it just changes in facts
o Or is it changes in meanings
3. Did the Court adequately justify its holding? (that even tangibly equal, separate
schools are unconstitutional)
 The court looks at two things: effects and social meaning
 The Court looked at meaning, then focused on effects → the question according to
the Court is an effects analysis
 This is an effects analysis: effects to the hearts and minds unlikely to be undone
 Blacks don’t learn as well [unintegrated? What??]
 Substantiates claims (footnote f)
o Doll study: even Black children were picking white dolls
o Segregationists seize on the social science studies and lambast the decision
for having no basis in law
o The studies were suspect
o Segregation studies found integration to be much more damaging
o Should the Court have relied on social science research?
 But, does Brown turn on a scientific question
 Separate but equal is inherently unequal, so how could it turn on empirical data
 Does Brown actually turn on effects?
o Why “inherently unequal”?
4. Anti-subordination or anti-classification?: Brown versus Bolling
 Brown: anti-subordination decision
o No references to classification
o Focus is on Black school children, not their separation
o Tough case for originalists
 Bolling turns on the 5th Amendment (because it was a federal case)
o It focused on the face of the law
o “Classification based solely on race must be scrutinized with particular care.”
o It is an anti-classification decision
o May be impossible for originalists to support
 Distinction doesn’t matter because they Both compel the same outcome
 Very difficult to use an original understanding argument in Bolling.
64


Rationales for both (holding?):
o Effects (Anti-Subordination)
o Social meaning (Anti-Subordination)
o Facial (Anti-Classification)
Why the difference between the two cases?
o Korematsu had already been decided using anti-classification
 It argued the 5th Amendment on its face
V. The Invalidation of Other Jim Crow Laws
A. What the Court did
 After bus boycotts, the Supreme Court said that segregated busses violated equal
protection
 The Supreme Court extended Brown to all public services without opinions
 The Court validated what lower courts did without writing opinions
 They provided an invitation to do away with racial segregation altogether
o Problem: Brown explicitly stated that it only applied to education
B. Was the Court justified?
 Brown had been clear that its decision only applied to education, but immediately
applied elsewhere
 It is controversial not to write opinions or give reasons because it fails the
guidance function
 But, the Court was worried that Brown wouldn’t be accepted
 This is dangerous for the Court to do as a matter of course, though this wasn’t a
matter of course
 No reason would satisfy the South and would rather only enflame them
 No. This is not a matter of course, these are extenuating circumstances, but giving
reasons would only make things worse.
VI. Post-Brown Desegregation Cases
A. Brown II and “all deliberate speed”
 Brown did not implement a specific remedy
 Ordered all lower courts to formulate remedies with “all deliberate speed”
 This is controversial because it sent mixed messages
 Does this reconcile with Cleburne? ADS?? lets local courts take bias and
community prejudice into account whereas Cleburne doesn’t let these beliefs be
taken into account.
B. Concerns about compliance
 If it had given a specific remedy, it could have been defied with impunity
 Did the Court enable this anyways?
C. School desegregation litigation over the decades and today
 Brown II just says “with all deliberate speed” which is open ended
 Is this consistent with Cleborne (mental home denied a permit)
o Argument against the permit: prejudice of the local community
o Court quoted Palmore
 Government cannot validate private biases as a reason for state action
o Compare with “all deliberate speed”
65







66
Court directs district courts to take into account private biases for the
sake of compliance
 Court feared its own inability to enforce its decision
Look at how many ways the court […?]
o Normally, the first docketed case is listed first
 Instead, court picked a case from Kansas to show that it was not
picking on the South
 Reargued twice
 Achieved unanimity
 “All deliberate speed”
 Limited the holding
 Expanded the holding in subsequent cases without opinions
 Not moralizing
 Does not address anti-miscegenation laws
Cooper v. Aaron; Griffin v. Prince Edward County (p. 1115)
In coming decades, court took a hands-off approach
Green v. New Kent County (p. 1117)
Southern Manifesto: the unwritten dissent to Brown
o Put forward non-frivolous constitutional arguments
 Liberty, federalism, judicial deference
o Most of these arguments beg the question: they assume that there isn’t a
constitutional right
Today: most schools are still de facto segregated
21.
The Suspect Classification Doctrine
I. Introduction

Race is a suspect classification (gets higher scrutiny) - emerged about 15 years
after Brown→ black letter law
II. The Road to Loving and Beyond
A. Naim v. Naim (1956) – p. 1140
 Virginia’s Supreme Court upheld their miscegenation statute and dared the US
Supreme Court to overrule it
 Supreme Court ordered Virginia to reconsider in light of Brown
 Virginia doubled down and the US demurred
 1 year after Brown – struck down interracial marriage – too much too soon, if
marriage allowed, then results in mixed race children → hard to maintain white
supremacy
B. Developments in the political branches
 1964 Civil Rights Act
o 1964 Johnson elected by a landslide as a race liberal
 1965 Voting Rights act
C. McLaughlin v. Florida (1964) – p. 1140
 Statute punished interracial cohabitation more than same race cohabitation
 Court holds that statute violates equal protection because it uses a racial
classification, which was precisely what the 14th was passed to counter
 Relies on Korematsu, Hirabayashi, Brown, and Bolling for strict scrutiny standard
 Interprets Brown as anti-classification, which it didn’t really say
D. Loving v. Virginia (1967)
 Bans on miscegenation are unconstitutional per Equal Protection Clause
 The statute used racial classification and thus, it must survive strict scrutiny
(which, of course, it does not)
 Anti-classification:
o It is based on race
o Even though it applies equally to blacks and whites, still a racial
classification
 Anti-subordination:
o Still seems like white supremacy: it does not prohibit other non-white races
from intermarrying
 [But, cried Virginia, “descendants of Pocahontas are allowed to marry
whites”]
o Purpose is hostility of whites to blacks
o Social meaning is to subordinate
 McLaughlin and Loving together are the origin of suspect class doctrine
o They both reinterpret Brown as an anti-classification decision
 Problem is that statute uses racial classification, so needs strict scrutiny, doesn’t
pass
 Anti-subordination – still seems like white supremacy → whites can’t marry
nonwhites, but doesn’t prohibit other nonwhite races intermarrying → so what is
it?
67

More anti-classification (main support is this, but uses anti-subordinate elements),
but still no conscious distinction.
o Why does anti-classification reasoning seem more prevalent? Classification
is easier to quantify and argue → it’s a less provocative way of talking about
the unconstitutionality of subordination
 McLaughlin and Loving are the modern origin for suspect classification doctrine
E. Palmore v. Sidoti (1984)
 Trial court reassigned the child of a divorced couple to the father because the white
mother married a black man
 Court isn’t condemning conduct of mother: it is just that the best interests of the
child would best be served by a single race household
 The Supreme Court invalidates judgment taking custody away from woman who
married black man.
 Court says can’t give effect to private biases by allowing government to take racial
classification into account
III. Discrimination against Asian Americans

Mistake to see all minorities subject to same form of discriminatory
antisuborination
A. What Korematsu evidences
 It has never been overruled
 It is still cited for using strict scrutiny for racial classifications (even though it
didn’t actually use strict scrutiny)
 Compelling interest: national defense
 Narrow tailoring:
o Is both over and under inclusive
o Over: indiscriminate and indeterminate detention; the government never
released those who clearly were not a threat
o Under: descendants of Germans and Italians were left alone
 Strict scrutiny for racial classifications → except this wasn’t the analysis that the
Court used
 Compelling interest = public safety
o Problem: narrow tailoring → executive order is overly broad → courts tend
to defer to government in times of war
o Burden on government to show narrowly tailored compelling government
interest
 Model minority
o Disguises the history of discrimination
o Disguises the diversity of Asians
o It is used to denigrate other minorities, i.e., blacks
B. The inadequacy of the black/white paradigm
68
22.
When Is a Decision Made
“on the Basis of Race”?
I. Facial racial classifications v. discriminatory administration
A. Blackletter law
 Even if it is not overt (facial) classification, if it is as applied discrimination, it is
unconstitutional
B. Examples
1. Yick Wo v. Hopkins (1886)
 Chinese laundry case
 Intent to discriminate is clear from the results
 Rule: Though the law itself be fair on its face and impartial in appearance, yet if it
is applied and administered by public authority with an evil eye and an unequal
hand, so as practically to make unjust and illegal discriminations between persons
in similar circumstances, material to their rights, the denial of equal justice is still
within the prohibition of the Constitution.
2. Ho Ah Kow v. Nunan (1879) (circuit court decision)
 Hair cut requirement was to humiliate Chinese inmates
 Rule: Where an ordinance, though general in its terms, only operates upon a
special race, sect or class, the Court may justly conclude that it was the intention of
the body adopting it that it should only have such operation, and treat it
accordingly.
3. Guinn v. United States (1915) – p. 1163
 Exemption for literacy test if the person’s ancestors were eligible to vote…prior to
the passage of the 15th amendment [really?! How was that supposed to fool
anyone?]
4. Gomillion v. Lightfoot (1960) – p. 1163
 Racist gerrymandering
 Can infer racial discrimination
 One of Siegel’s favorite cases
II. Introduction to disparate impact



(from p. 1166)
How disparate impact works. Under Title VII, plaintiffs can challenge facially
neutral employment actions with a disparate impact on one of the Act’s protected
classes. Once the plaintiff shows that some employment practice causes a disparate
impact on minorities or women, the burden shifts to the employer to show that the
challenged practice is justified by business necessity. If the employer makes such a
showing, the practice is lawful, unless the challenging party can show that the
employer has alternative ways to meet its business needs with lesser exclusionary
impact. Courts do not require employers to adopt alternatives that are less effective
or more expensive.
Rationales for disparate impact liability. Why impose disparate impact liability?
Disparate impact liability is commonly understood to redress at least three kinds of
discrimination that are common in societies that have recently repudiated
centuries-old traditions of discrimination.
69
o The first is covert intentional discrimination. Once a society adopts laws
prohibiting discrimination, discrimination may simply go underground.
When discrimination is hidden, it is hard to prove. Disparate impact tests
probe facially neutral practices to ensure their enforcement does not mask
covert intentional discrimination.
o The second is implicit or unconscious bias. Discrimination does not end
suddenly; it fades slowly. Even after a society repudiates a system of formal
hierarchy, social scientists have shown that traditional norms continue to
shape judgments in ways that may not be perceptible even to the
decisionmaker herself. Disparate impact tests probe facially neutral practices
to ensure their enforcement does not reflect implicit bias or unconscious
discrimination.
o The third form of bias is sometimes termed structural discrimination. An
employer acting without bias may adopt a standard that has a disparate
impact on groups because the standard selects for traits whose allocation has
been shaped by past discrimination, whether practiced by the employer or by
others with whom the employer is in close dealings. Disparate impact tests
probe facially neutral practices to ensure their enforcement does not
unnecessarily perpetuate the effects of past intentional discrimination.
o Where disparate impact liability is used to ensure that job requirements are in
fact job related—i.e., that requirements reflect the functional needs of the
job, rather than hidden intentional discrimination, unconscious
discrimination, or the legacy of past discrimination—disparate impact
promotes equal opportunity. This is the Court’s assumption in Griggs.
 The disparate impact test of Griggs was codified in the Civil Rights Act of 1991,
which requires an employer to “demonstrate that the challenged practice is jobrelated for the position in question and consistent with business necessity.” In
order to establish a prima facie case, complainants must specify the particular
practices alleged to have a disparate impact.
A. Different ways of stating the question
 When is a law that is facially neutral with respect to race treated as a racial
classification?
B. Why it matters
 This matters because it means the difference between rational basis review (for
non-racial issues) and strict scrutiny (race issues).
III. Examples
 Facially neutral but disparate impact
A. Employment exams
 Ricci: Firefighter test; multiple choice vs. field test
B. Crack v. powder cocaine sentencing
 Crack penalties were 100 times greater than powder. 90% of crack sentences were
for blacks.
C. Death penalty
 Criminal defendant more likely to be sentenced to death if victim is white
IV. Equal protection doctrine
70

A.
B.
C.
D.
If facially neutral, does it require evidence of racially motivated purpose? In mid
1970s, yes. Impact alone is not enough.
Blackletter law: Washington v. Davis (1976)
 DC police test where minorities failed at a higher rate than whites
 Must prove racially discriminatory purpose to establish a racial classification if law
is facially neutral, not just disparate impact (Court doesn’t read disparate impact
into equal protection clause)
o Note: racially discriminatory effect is ok
 Rational basis review
 But Davis doesn’t explain what a discriminatory purpose is.
 In other contexts, what is purpose?
o Torts: intend the act, though maybe not the result
 It is enough to know the foreseeable consequences of action
 Steven’s concurrence adopts this definition
o Criminal law: requires that the result be your specific intent, conscious object
The Meaning of purpose: Personnel Administrator v. Feeney (1979) p. 1175
 Upheld state law giving hiring preference to veterans over non-veterans
 “Discriminatory purpose” implies more than intent as volition or intent as
awareness of consequences. It implies that the decisionmaker selected or
reaffirmed a particular course of action at least in part because of, not just in spite
of, the adverse effects upon an identifiable group.
 Thus, this adopts the criminal law definition of intent
o Specific intent to harm
 Why shouldn’t foreseeable consequences suffice?
Evidence of discriminatory purpose: Village of Arlington Heights v. MHDC (1977) p.
1173
 Challenge to city’s refusal to rezone land from single to multi-family classification
 The mere showing of discriminatory effect was not sufficient, plaintiffs had to
show intent to discriminate was a motivating factor, even if it was not the sole,
dominant or primary factor. Even proof that a decision was motivated in part by a
racially discriminatory purpose did not necessarily result in its invalidation.
Factors:
o Impact of the official action
o Historical background of the decision
o Specific sequence of events leading up to the challenged decision
o Departures from normal procedural sequence
o Substantive departures
o Legislative or administrative history
 Motivating factor- but then government can show they would have made the
decision regardless. If yes, not discriminatory purpose. If no, then discriminatory
purpose.
 Court indicated that such instances are rare
o Has to be on basis of Yick Wo or Gomillion
 Extremely difficult to prove Feeney challenges
Effect of showing proof of discriminatory purpose
 3 Steps:
71
o Plaintiff shows race was a motivating purpose
o Government has burden to show that it would have made the same decision
without the discriminatory purpose
o Court decides if it really would have
 If discriminatory purpose, strict scrutiny and law is struck down under equal
protection.
 Technically don’t have to do a strict scrutiny analysis because they kinda already
did it no way there’s a compelling governmental interest
 Court established a burden shifting framework in Arlington Heights
o Reality: if you find discriminatory purpose, the law is struck down
 Court is supposed to apply strict scrutiny
E. Contrast with Title VII: Griggs v. Duke Power Co. (1971)
 This case deals with Title VII of the Civil Rights Act of 1964; this is statutory
interpretation, has nothing to do with 13, 14, or 15 amendments
 Disparate impact is sufficient for prima facie case of employment discrimination,
but then the burden shifts to the employer to show legitimate business purpose. If
so, then burden shifts to plaintiff to show other alternative way of accomplishing
goal.
 Rule: The Act proscribes not only overt discrimination but also practices that are
fair in form, but discriminatory in operation. The touchstone is business necessity.
If an employment practice which operates to exclude blacks cannot be shown to be
related to job performance, the practice is prohibited.
 Rule: Good intent or absence of discriminatory intent does not redeem
employment procedures or testing mechanisms that operate as “built-in
headwinds” for minority groups and are unrelated to measuring job capability.
F. Anti-classification versus anti-subordination
 Disparate effect is not disparate treatment itself.
 Anti-classification perspective (colorblindness) is unconcerned with disparate
impact because there is no disparate treatment of individuals by the government
o Disparate impact is not disparate treatment in and of itself
 Anti-subordination
o The problem is the end result (i.e., what matters is the effect)
 More substantive view of equality
 Disparate impact matters
 What matters is whether the Government is making
historically oppressed minorities feel inferior
o Such effects should trigger some scrutiny; it does not need to automatically
strike down the law
 [Anti-classification is a means test; anti-subordination is an effects test]
G. A haunting question
 Are Davis and Feeney doing what civil, political, and social equality distinctions
are doing in the 19th century? Is history repeating itself? Is the court sacrificing the
interests of blacks for the interests of whites still?
72
23.
Affirmative Action: From Bakke to Adarand
I. Introduction
A. A reminder
B. Origins of the term “affirmative action” in American politics
 Language first used by JFK and LBJ
 Designed to correct the effects of historical discrimination
 Executive Orders: Started in government contracting and employment
 Nixon administration supported employment affirmative action
C. What the term refers to today
 Refers to use of government of explicit racial classifications in programs designed
to help racial or ethnic minorities/women typically when conventional ideas of
merit are at hand
 It became more controversial when it was introduced in the University and other
more visible institutions
D. When the Court first used the term
 Greene v. County School Board (school desegregation case)
o Context of school discrimination
o Idea was that it wasn’t enough for schools to simply stop engaging in de jure
segregation; instead, it must actively counter past discrimination; remedial
grounds
o All cases of affirmative action require strict scrutiny
E. Road map
 Court took a long and winding path to conclusion: all racial classifications
(including affirmative action) triggers strict scrutiny
 Looking in the abstract, not in the details
II. Mediating principles of equality and affirmative action
A. Anti-classification
 Would almost never justify affirmative action on ground that government should
not discriminate against individual
 Race conservatives use this to try to strike down affirmative action programs
B. Anti-subordination
 Affirmative action is a positive, does not fall within any type of subordination or
historically subordinated groups.
 Constitutional wrong is racial stratification, not classification
 Relevant question is what are purposes / effects / social meanings of policy?
 It may or may not subordinate further, but proponents emphasize how it raises the
stature of those it advantages
C. Under-determinacy of mediating principles
 These are not wholly determinative principles, though; they do not answer whether
affirmative action is justifiable
o Can criticize affirmative action from an anti-subordination perspective
 Social meaning: stigma, subordinated, "badge of inferiority"
o Can defend affirmative action from an anti-classification perspective
 Individualized / holistic review
III. Legal Doctrine
73
A. Three questions for affirmative action
1. Level of scrutiny
 Strict scrutiny is used for racial classifications regardless of context (started in
Bakke)
o What the Court means by strict scrutiny differs in the context of higher
education
2. (Im)permissible goals (ends)
3. (Im)permissible techniques (means)
B. First Question: What level of scrutiny is used?
 Strict scrutiny
1. The path to strict scrutiny
a. Regents of University of California v. Bakke
 UC Davis Medical School case
 No agreement in constitutional standard
 4 justices say intermediate scrutiny
 4 justices rule on statutory grounds
 Powell says affirmative action triggers strict scrutiny
o But did he actually apply it?Doesn’t seem to apply Loving style strict
scrutiny- gives deference to the university (presumes good faith instead of
unconstitutionality)
o [But what was the controlling standard of review?]
b. Fullilove v. Klutznick – p. 1238
 Government quota program upheld
 Never been overruled but has been overwhelmed
 No plurality level of scrutiny
c. J.A. Croson v. City of Richmond – p. 1241
 Strict scrutiny should be used for state and local policies
 Court distinguishes this from Fullilove because that was federal
d. Metro Broadcasting v. FCC
 Intermediate scrutiny for federally approvedaffirmative action programs (5-4)
e. Adarand Constructors v. Pena – p. 1995
 Overrules MetroBroadcasting (5-4)
 Strict scrutiny for all programs (no distinction between federal, state, or local)
 O'Connor stresses that some programs could definitely survive strict scrutiny
 Scalia rejects her contention
f. Grutter v. Bollinger
 I have that these are discussed “tomorrow”
 See below
g. Fisher I
 See below
h. Fisher II
 Court reaffirms that strict scrutiny is the test in these three cases
2. Arguments for and against strict scrutiny
 Strict scrutiny still debated today.
C. Second question: What goals are sufficient to meet the level of scrutiny?
74
 Four goals- compelling interest test or just important interest test?
1. Remedy past discrimination—four scenarios
 1. Helping individual proven victim imposing on proven violators (I have: Helping
proven victims of discrimination by directing proven violators penalties)
 2. Directing remedial order against proven violator with other benefitting (e.g.,
U.S. v. Paradise)
o Helps people who are not necessarily proven victims against proven violators
 3. Directing remedial order against field where discrimination existed but no proof
of particular individual violator or victim (Fullilove; seems suberseeded and
rejected by Croson)
 4. Government effort to remedy societal discrimination
 This is a spectrum – most conservatives accept 1, but definitely reject 4.
2. Provide role models
 For minority children (e.g. rejected by Wygant). Children should see teachers who
show racial diversity.
 Court says that this is not interest that survives strict scrutiny
3. Increase services in minority communities
 Court rejects this in Bakke as legitimate and important but not compelling
 Doesn’t necessarily have the intended effects
4. Enhance diversity
 Grutter: diversity is compelling interest in education setting
o It’s the only reason that qualifies under strict scrutiny
 First suggested in Bakke by Powell, Reaffirmed in both Fisher cases
D. Third Question: What techniques are permissible?
1. Set-asides (a.k.a. quotas)
 Rejected over and over
o Bakke: struck down by 5 justices
o Fullilove: allowed, but highly doubtful that it is still good law
o Paradise: Yes, but could be distinguished as a remedy
o Croson: quota invalidated (probably eliminates quotas, even though
distinguishable
 Probably only allowed to remedy clearly proven past discrimination
2. Disrupting seniority systems
 Wygant(p. 1239) strikes this down
3. Using race as one factor in decision-making
 Powell allows this in Bakkeand the Court reaffirms this in Grutter and Fisher II
 Grutter allows in higher education
4. Adding a set number of points to admissions scores of minority applicants
 Gratz: This is impermissible
 2 justices in majority in Grutter and Gratz (7 find them indistinguishable)
5. What other techniques should be allowed?
 Targeted outreach and recruitment
o Many race conservatives are okay with this, while others are not
75
24.
Affirmative Action in Higher Education
I. Introduction
A. Controversy
B. Road Map
C. Complexity
II. Level of Scrutiny
A. Loving-style strict scrutiny
 Presumption of unconstitutionality
 Narrow tailoring for a compelling government interest
 Government bears the burden, no deference afforded
 Very unlikely a program would be upheld
B. Strict scrutiny in Grutter
 Loving is higher and gives no deference; Grutter is lower and defers for the sake of
affirmative action
o Basically, Loving applies when you have a negative use of race and Grutter
applies when you use race for a beneficial purpose (affirmative action)
 Not the same as Loving
 Presumes good faith
 Court defers to law school that
o Diversity is a compelling educational interest; it is essential to its mission
o Diversity needs a critical mass to further the school’s mission
 Narrow tailoring is not present here
C. Implication
 If Loving-strict scrutiny were applied, it probably would have been
unconstitutional (anti-classification perspective)
 Loving-strict scrutiny is not appropriate in this situation (this is only true from an
anti-subordination perspective)
 Could be unconstitutional because strict scrutiny is the test and the Court didn’t
apply it, but could also be constitutional because the test could be wrong in this
case (Grutter)
D. Why not announce and apply intermediate scrutiny?
 (O’Connor had been saying strict scrutiny is not fatal in fact [what relevance does
this have??])
III. Compelling Interest

25 years limit doesn’t make sense if interest is actually diversity → makes more
sense if interest is remedial
A. Questions about the asserted compelling interest
 Defended on “diversity” grounds because of Powell’s opinion in Bakke
o Wanted diversity for the educational benefits of diversity
 Thomas: just lower the LSAT scores and then have a lottery
o But we want diversity and elite status
o You do not have a compelling interest in being elite
 University is concerned about only certain diversity factors: racial and ethnic
division
 What if there were a negative point system for whites and Asians
76
o It would be functionally the same
o They’d strike it without a second glance
o However, it does not seem that the Bakke test can actually strike it
 It requires remedial logic, but it also must remain hidden
o Other evidence of remedial purpose: 25 year limit to the court’s opinion
 This is an anti-classification opinion using anti-subordination rationales
B. Why not announce and allow a __________ rationale?
 “Remedial”
 The Court would be signing off on race as a reason/remedy for societal
discrimination → concerns about how this would affect the present and the future
 Why just remedial and not also integration
o All groups should be represented at elite institutions
IV. Narrow Tailoring
A. Stated purpose of the narrow tailoring requirement
 Ensure that the means is chosen carefully so that there is little or no possibility that
there is an impermissible purpose (racially prejudicial purpose)
B. Four components of narrow tailoring
 Individual consideration- Grutter court focuses on this
 Avoid an imposition or excessive burdens on white applicants
 Consider race neutral means/alternatives
 Place a time limit (sunset provisions)
C. Individualized consideration and the actual purpose of narrow tailoring
 Individualized consideration is decisive (in both Grutter and Gratz)
 The court does not require a school to actually consider race neutral means
 Yet, if the end is race conscious, why can’t the means me?
o It suggests that the court is using narrow tailoring to vindicate an interest that
is different than Loving’s interest
 Why is race as a plus factor less problematic than a quota?
o Why is 20 points out of 100 too many?
o It’s an appearance thing
o One is flexible, one is mechanical
o One treats as an individual, one treats as a class
 One interpretation: this is only a difference in appearance, not in practice; it hides
race as a factor from the public eye
D. Anti-balkanization principle
 Powell and O'Connor (and later Kennedy) are not race conservatives or race
liberals, not anti-classification or anti-subordination; they are anti-balkanization
 Both allow and restrict affirmative action and other principles in order to allow
social cohesion and avoid balkanization
 Government may act to ensure that no race feels like outsiders so long as the
government does not use means that would unduly stimulate racialresentment
o Revealing this real test would be self-undermining
o Is it defensible to say that constitutional requires a lack of transparency?
o Does this depend on the Court fooling people that there is a difference
between a quota and a plus factor
77
o This seems more of a political judgment than a legal
78
25.
Affirmative Action in Higher Education II
I. Fisher I – only top layer of the layer cake is being answered
A. UT Austin’s admissions program: a layer cake
 2 layers → 75% is Top Ten Percent Plan & 25% is Grutter style holistic review →
because of Hopwood (case which invalidates holistic Bakke style review)
 Unconstitutionality of racial balancing comes from unconstitutionality of quota →
Bakke; reaffirmed in Grutter
B. Top Ten Percent Law
 Conscious object is to get a diverse class by leveraging the rampant segregation
within the state
 It’s formally race-neutral, but is part of a race-conscious attempt to preserve racial
and ethnic diversity
 By saying it’s race-conscious, does that make it race discriminatory under Davis
and Feeney?
o The question is: Has Texas imposed the law at least in part to hurt whites?
Hard argument to make
C. Holding and rationale regarding holistic review component
 Grutter style holistic review → race can be used as a factor
 5th Circuit didn’t apply the truly rigorous strict scrutiny needed by Grutter → no
deference for strict scrutiny → 5th Circuit deferred to the good faith judgment of
university administrators (gave too much deference) on the question of narrowly
tailoring and the adequacy of race-neutral alternatives
 Kennedy is concerned with whether the school has sufficiently considered
formally race-neutral alternatives
 Put in place after Grutter and Gratz
 Rule: If a nonracial approach could promote the substantial interest about as well
and at a tolerable administrative expense, then the university may not consider
race.
II. On Remand
A. Fifth Circuit’s decision
 Said there was no less restrictive alternative
 Supreme Court required 5th Circuit to investigate whether the university used
narrow tailoring via true Grutter strict scrutiny.
B. Predictions when certiorari was granted again
 That the university was going to lose- reversal
III. Fisher II
A. Holding
 Petitioner did not show by a preponderance of the evidence that she was denied
equal treatment at the time her application was rejected
 Rule: The University of Texas’ use of race as a factor in the holistic review used to
fill the spots remaining after the Top Ten Percent Plan was narrowly tailored to
serve a compelling state interest.
 Previous precedent had established that educational diversity is a compelling
interest as long as it is expressed as a concrete and precise goal that is neither a
quota of minority students nor an amorphous idea of diversity.
79
B. Rationale
 Kennedy is saying that this is an important issue and there was a lot of evidence in
support of it
 Kennedy says the burden is on the university, but the opinion revolves around the
plaintiff’s inability to come up with good race-neutral alternatives
 The fact that race is being used so little is the hallmark of narrow tailoring →
disabling the distinction between formally race-neutral and race-conscious
 The government must define with specificity what the interest it has in using race
as a factor
 Plaintiff’s arguments for race neutral alternatives were not viable- but plaintiff
shouldn’t have had the burden. Doesn’t see any alternatives that are race neutral
and further the compelling interest.
C. Alito dissent
 For a program to be narrowly tailored, you have to tell the Court what the interest
is with specificity→ the University didn’t do this
 How do you determine what a critical mass is? Problem: the moment you define
what a critical mass is, the moment the Court strikes it down
 Haven’t defined that interests that the plan has been designed to serve; how do we
know the other plan wasn’t producing those results? Need numbers and definition
of critical mass. But if you define critical mass, the court will strike it down as a
“quota” or balancing
 Claims to help diversity but in reality is haring another minority- Asian Americans
D. What happened?
 Siegel thinks Kennedy moved sidesbecause he’s never upheld affirmative action
before
80
26.
Gender and the Constitution—History;
Frontiero and the ERA
I. Historical Overview
A. History of subordination
 Women regarded as citizens, but not permitted to vote (except for New Jersey
briefly).
 Why? Because of virtual representation through head of household; only propertyholding white men could vote → realm of domestic relations subject to state
regulation → merger of identities → fiction of marital unity (rules of coverture)
 Voting had been limited to those with enough independence to use the elective
franchise responsibly, i.e., landed white men
B. Founding and the Early National Era (1791-late 1820s)
 Commitment to the idea of separate spheres:
o Husband as breadwinner & wife as caregiver
o Relationship of restrictions placed on women & women’s role in family and
society – state based regulations → has to do with social status and power →
public/private distinction
o Irony is that this is what Parliament said to the colonists → that they were
being virtually represented
 Response: Are you kidding me?
o When women tried to make this argument (Abigail Adams), they were told
the same thing/ignored
o Marriage was a merger of the two into one person. Same legal identity.
Commitment to the idea of separate spheres of social life for men and
women.
C. Early-to-Mid 1800s
D. Fight for Voting Rights
 Women’s rights activists working with abolitionists organized in the hopes that
voting rights for black men would also result in voting rights for white women
 § 2 of 14th Amendment – first case of clear gender discrimination in the
Constitution
 However, it was never just about voting
o Also concerned about domestic relations
o Status based restrictions
E. Post-Civil War Supreme Court
 Rationally reflecting real differences between men & women → reason for
allowing gender discriminatory state laws
 Sex equality was placed on the backburner by emphasis on race
1. Bradwell v. Illinois (1873) p.391
 Conflict between a free labor interpretation of the 14th Amendment and states’
rights views
 Illinois Supreme Court refused Myra Bradwell a license to practice law solely
because she was a woman
 Rule: The right to admission to practice in the courts of a State in no sense depends
on citizenship of the United States. The right to control and regulate the granting of
81
F.
G.
H.
I.
82
licenses to practice law in the courts of a State is one of those powers which are
not transferred for its protection to the Federal government, and its exercise is in
no manner governed or controlled by citizenship of the United States in the party
seeking such licensure.
 Bradley Concurrence: reading the 14th Amendment in light of the ideology of
separate spheres
2. Minor v. Happersett (1875) p.397
 Virginia Minor attempted to register to vote in St. Louis → she was refused
 Privileges or Immunities Clause didn’t guarantee women the right to vote
Nineteenth Amendment (1920)
 All coverture rights are abolished and women get the right to vote
 Question of whether this amendment gave women broader equality rights
 After a while doesn’t keep sex classifications at bay and continues this for decades.
Judicial decisions
 Western states started first, because they wanted to incentivize women to move out
there.
o Women were doing the same things as men anyways because there weren’t
enough people in the west
1. Lochner Era
 Adkins v. Children’s Hospital- invalidated minimum wage law for women
2. Goesaert v. Cleary (1948) – p. 1375
 Women couldn’t be bartenders unless bar was owned by their father or husband
3. Hoyt v. Florida (1961) – p. 1376
 Women can serve on juries only if they want to
 Have to opt-in
 As a consequence, very few women are serving on juries.
Developments in the executive branch and Congress
 Success first in the executive branch, then Congress, then Supreme Court.
 JF Kennedy established a commission of women to organize women nationally
 Congress passed an equal pay act
o A southern representative introduced anti-sex discrimination to Title VII as a
poison pill
o Oops…it passed anyways
The “race-sex analogy”
 Feminists pushed this- Idea that just as there’s been race discrimination, there has
also been sex discrimination(analogous) and should be treated as a suspect class.
1. Pauli Murray
 African-American lawyer who tries to explain why sex discrimination is wrongat a
time when courts (of mostly men) wanted family roles to stay the same. Did this
by calling stereotypes to attention. She used the word “stereotyping.”
2. Ruth Bader Ginsburg
 Elaborated on the analogy in constitutional litigation
 Reed v. Reed – 1971- first case where Supreme Court said a statute violated the
Equal Protection Clause because it discriminated on the basis of sex
 Immutable and highly difficult to change
J.
K.
L.
M.
3. Differences between racial subordination and gender subordination
 Segregation vs. degradation
 Segregation/Chattel slavery vs. role differentiation → paternalism
 Arguments about real biological differences hold more sway for sex arguments
than race arguments
 Political minority vs. politically underrepresented
 4 Criteria:
o 1. Stressed basis of stereotype was on highly immutable, highly visible trait
o 2. Also, historical subordination
o 3. Cites lack of political power
o 4. Irrelevant trait to how/ability to contribute to society
Founding of the National Organization for Women (NOW) (1966)
 Founded in an attempt to press the EEOC (Equal Employment Opportunities
Commission) to enforce the prohibition of sex discrimination in the workplace
“Dual strategy” of litigation and the Equal Rights Amendment (ERA)
 Emerges by the late 1960s. Sought constitutional change through litigation.
Congress acts again
 Applied Title 7 (employment; see Griggs) to the states
 Passed Title 9 (Education – no discrimination based on sex)
The Court begins to follow
 Justices pointed to Congress’ actions to begin to regard sex as a suspect category
II. Four Morals of the Story (or more)






(1) Endurance – the endurance of sex discrimination – social subordination of
women in American history
(2) A lot of American history is people throwing others under the bus to get their
desired outcomes; race equality advocates subordinated women who in turn
subordinated gays who subordinated polyamorous
(3) Recency – dramatic changes of women’s rights in the U.S. are a recent
phenomenon
(4) Ideology of the separate spheres – does full equality mean formal or
substantive equality? A purely formal approach would likely not make sense
(5) Role of the Court – Supreme Court lags much more than it leads
(6) Conventional narrow understanding of the 19th Amendment – not an inevitable
reading of it or perhaps even correct
III. The Politics of Sex Equality

Nixon, Ford, and Carter all supported it, it’s after Reagan’s election that we start to
see more of the current political landscape
IV. Road to Intermediate Scrutiny
A. Meaning of intermediate scrutiny
 Intermediate scrutiny is the test for sex-based discrimination and is presumptively
unconstitutional
 Burden on government to prove that it is substantially related to an important
government interest
 Sex-based discrimination is unconstitutional
B. Beginning of doctrinal evolution
83

Sex classifications that are based on sexual stereotypes typically violate equal
protection
1. Reed v. Reed (1971)
 Government sets up categories for administering estate
 Statute provided that it would go to the man in event of a tie
 Rational basis (presumptively constitutional; burden on plaintiff)
o Siegel: the statute should have survived rational basis
 First Supreme Court case to invalidate a sex classification
2. Frontiero v. Richardson (1973)
 Federal law – facial classification
o Female dependents automatically get benefits in the military, but not male
 4 votes for strict scrutiny, 4 for rational basis, 1 for ??
 Brennan’s plurality opinion – given real pervasive differences in male and female
roles at the time, why wasn’t the statute right? What’s the problem with this sex
classification?
 Ginsburg: You can’t pass statutes that reinforce stereotypes (e.g., that men are
breadwinners and women are caregivers)
 Was the response to the perceived problem irrational?
o No, because of pervasive differences in sex roles in society as it was
o Administrative convenience is a rational basis
 Holding: sex classification based on traditional stereotypes violates the equal
protection clause (at least ordinarily)
84
27.
What Does Intermediate Scrutiny Prohibit?
I. Introduction
II. Craig v. Boren (1976)
 – p. 1400-1401
 “Near-beer” has 3.2% alcohol → Oklahoma regards this as non-alcoholic
 Women 18-21 can drink and buy the beer
 Men 18-21 can drink the beer, they just can’t purchase it
A. Holding
 Oklahoma law only allows women to purchase near beer underage.
 Court rules that it violates Equal Protection Clause of 14th Amendment
 First time court applies intermediate scrutiny to sex classifications
 Is the current law
B. Analysis
 Majority had a problem with the means here; stereotypes may be right on average,
but it is overly broad
o “Broad sociological propositions”
 Problem with the tailoring: men can drink it, but they can’t buy it & it’s not
considered alcoholic
 The Court is interpreting the Equal Protection Clause as protecting men
o Is there a problem with this?
 In dissent, Rehnquist notes that the stats show that men at this age are more likely
to drive drunk
 RBG had recently observed the Swedish sexual revolution
C. Reflections
 Criticism is that this was an underwhelming case for intermediate scrutiny to come
about
 Protects men, is that good?
III. Mississippi University for Women v. Hogan (1982)
 – p. 1437
A. Holding
 Facts: State law maintains nursing school for women only; male P wants to attend
 Court invalidates on grounds of perpetuating stereotype of nursing as women's
work
 Reaffirms intermediate scrutiny (State must provide an "exceedingly persuasive
reason" to overwhelm)
B. Analysis
C. Comparison with male-only draft registration
 Goldberg case
 Court proclaims deference to Congress on draft
 Not consistent with intermediate scrutiny
 Assumption that it is permissible to have male only combat policy
 To argue that this is something other than sex role stereotypes is difficult
 Would be able to differentiate and say we are only applying rational basis in
military context
85
IV. United States v. Virginia (1996)
A. Statement of current law: intermediate scrutiny or strict?
 Reiterates intermediate scrutiny
 But "exceedingly persuasive justification" needed
B. The meaning of intermediate scrutiny: anti-classification or anti-subordination?
 Debate about whether this is actually intermediate or strict scrutiny
 Money quote (page 1417): "“Inherent differences” between men and women, we
have come to appreciate, remain cause for celebration, but not for denigration of
the members of either sex or for artificial constraints on an individual’s
opportunity. Sex classifications may be used to compensate women “for particular
economic disabilities [they have] suffered,” to “promot[e] equal employment
opportunity,” to advance full development of the talent and capacities of our
Nation’s people. But such classifications may not be used, as they once were, to
create or perpetuate the legal, social, and economic inferiority of women."
 Ginsburg uses anti-subordination reasoning
C. Liability
1. Virginia’s two rationales
 1. Diversity in educational opportunities
 2. Adversative approach (method of training)would have to be altered (inherently
unsuited to women)
2. The Court’s responses
 1. No evidence that diversity is an actual interest. Under intermediate scrutiny,
conceivable interests are not enough
 2. This is a self fulfilling prophecy about traditional sex role stereotyping
D. Remedy
 Virginia offers Mary Baldwin VWIL as remedy
o See Sweatt v. Painter
o Separate, unequal
o Remedy itself promotes traditional sex role stereotypes that the Court is
trying to prevent
 Basically, are you kidding me?
E. Scalia dissent
 Vehement dissent
 It is his view that when a practice not expressly prohibited by the text of the Bill of
Rights bears the endorsement of a long tradition of open, widespread, and
unchallenged use that dates back to the beginning of the Republic, the Court has no
proper basis for striking it down.
o Ginsburg's counter: a prime part of the history of the Constitution is the
extension of constitutional rights to people once ignored or excluded
 History of constitutionalness is the test
 In part a textualist argument because not expressly prohibited by the text, an
argument from tradition: Why does the text of the Equal Protection Clause protect
against racial separate but equal schooling but not sex separate but equal
schooling?
o This is the problem
86

His view of the majority holding: under the constitutional principles announced
and applied in this case, single-sex public education is unconstitutional.
F. Constitutionality of separate but equal schooling
 Is this Sweat v. Painter or Brown v. Board? Does this case declare all single-sex
school unconstitutional?
87
28.
Does Pregnancy Justify Sex Discrimination?
Is Pregnancy Discrimination Sex Discrimination?
I. Pregnancy as Justification for Sex-Differentiated Treatment of Men and
Women
A. Introduction
 The question is 1) whether and when should a biological difference be sufficient to
justify differential treatmentand
 2. When does regulation of pregnancy become subject to heightened scrutiny
B. Michael M. v. Superior Court of Sonoma County (1981) – p. 1443
1. Facts and governing law
 There was a criminal law that only permitted men to be convicted of statutory rape
 Applied intermediate scrutiny (via Craig v. Boren)
2. The Court’s response
 Upheld the law because the state had an important interest in preventing teen
pregnancy
 Reasoning: this equalizes the risks of pregnancy (behaving in “dangerous
activities”); thus, it is substantially related
 Critiques
o There was no legislative record of that, so the court made it up for the case
o This rationale does not make sense because it immunizes half the participants
o Seems to confirm the sex stereotype of male sexual drive versus female
chastity/virginity
C. Nguyen v. INS (2001)
1. Holding
 Sex classifications that benefit women based on real biological difference are
permitted
 The law: It is easier for a citizen mother to convey citizenship than a father to a
child born abroad
 The court says that although this is a sex classification, it is consistent with
intermediate scrutiny
2. Analysis
 The Court applies intermediate scrutiny
 The government has two interests
o There is no question about maternity, but there is about paternity
 Is there any evidence that this is an interest? NO
o To convey citizenship, there must be the potential to form a relationship with
the child and the mother at least has that opportunity during the birthing
process
 This is also a made up interest. Watered down interest → opportunity
for a relationship, not an actual relationship
 Response/Questions
o Is the sex classification related to an interest in a blood-basis [for conveying
citizenship]?
 DNA test on its own would be fine, but an 18 year old time limit does
not ensure [what??]
88


o This does not suggest this is an actual interest
 Actual attachment to the US for a citizen is an important interest;
uncontroversial under intermediate scrutiny
o But, sex classification as a means to reach this interest clearly fails in this
case (see this case’s facts)
o The Court waters down the interest to preserve the statute: the governmental
interest is not an actual relationship with the citizen, but the opportunity for a
relationship
Dissent: the government has no interest in merely the opportunity of a connection
with the citizen (and thereby the US)
o Opportunity means nothing, the government should have an interest in the
actual relationship
What is this case really about?
o Deference to Congress? Then it should have said so.
o Fear of American fathers having to worry about children they’ve sired
abroad?
 Probably so…[because Tony Kennedy went on all these foreign trips]
o Real biological differences?
II. Distinguishing Sex-Based and Sex-Neutral Policies: Evolving Views of
Pregnancy

The question is no longer sex classification, it’s whether the real biological
differences show sex classification whether real differences inform whether
there is a sex classification to begin with
 Real biological differences versus sex role stereotyping
A. Review: Establishing a sex classification—two possible ways:
1. Face of the law
2. Discriminatory purpose—Personnel Administrator v. Feeney (1979)
B. Introduction to discrimination on the basis of pregnancy
1. Of beer and bathrooms
2. More important matters
C. Geduldig v. Aiello (1974) – p. 1463
1. Facts
 A government insurance program provided comprehensive coverage of all
disability except pregnancy
2. Analysis
 Issue: is this a sex classification?
 No.
 This is a rational basis test because there is no sex classification.
 No heightened scrutiny because there is no disability that men or women receive
that the others don’t
o No difference of benefits; (implying that there would be a sex classification if
it had provided coverage for pregnancy!)
o All non-pregnant persons are fully covered
 Types of equality
o As for formal equality, there are women on both sides
o As for substantive equality, only women get pregnant, so not equal
89

Substantively, yes there is classification because:
o 1) Gendered impacts
o 2) Potential gender bias
 Pregnancy has long been referred to to limit women
 Why is the government seeking to save money in this particular way?
o What about if the bureaucrats assume that women stay home? Does that
make sense of the program?
o Some issues that only affect men are covered, though other issues that only
affect women are covered too
 Is it really because pregnancy is a choice?
o Other (and bad) choices result in covered conditions
 If you want to incentivize abortion, then have policies like this
 Final result: Pregnancy discrimination is categorically not sex discrimination under
the equal protection clause
3. Geduldig versus Nguyen
 Sex discrimination doesn’t exist versus It’s justified (G v. N)
 Ignore real physical differences to ignore sex discrimination vs. emphasize real
physical differences to justify (G v. N)
 Rational basis vs. Intermediate(G v. N)
4. Implications
 If it is not discrimination, can the government fire women when she gets pregnant,
bar women from public training, require that female soldiers either leave or get
abortions if pregnant
 Does this law reflect or reinforce gender norms?
D. Pregnancy Discrimination Act of 1978 (PDA)
 An amendment to Title VII of the Civil Rights Act
 Congress defined pregnancy discrimination as sex discrimination
o Defined as a matter of statutory law what the Court refused to do under the
Constitution
 Lately, courts have interpreted this narrowly, though it is solidly entrenched
E. Nevada Department of Human Resources v. Hibbs (2003)
1. Section 5, not Section 1
 § 5 used the congruence and proportionality test from City of Boerne
2. Family and Medical Leave Act of 1993 (FMLA)
 It entitles eligible employees to take up to 12 work weeks of unpaid leave annually
for any of several reasons, including the onset of a serious health condition in an
employee’s spouse, child, or parent(“Family care leave” provision)
 Discrimination against mothers and mothers-to-be
 It is valid commerce clause legislation
 Created a federal entitlement to 12 weeks for pregnancy
 At issue is the 12 weeks of leave granted to a person to care for his/her family
 The discrimination in state leave policies justifies Congress’s reform under §5 as a
prophylactic
3. Hibbs versus Geduldig
 Court is concerned about unjust discrimination: “women are caregivers”
90
o Sex not the leave policy per se reinforces gendered obligations
 Court is also concerned about mere formal equality
 Kennedy dissented in Hibbs and invoked Geduldig
 Geduldig is more anticlassification; Hibbs is more anti-subordination and
concerned with formal equality.
4. Changes in the Court’s composition (Roberts and Alito)
 Different view of the matter
5. Coleman v. Court of Appeals of Maryland (2012) – p. 1476
 Self-care provision exceeded Congress’s § 5 power
 Ginsburg’s dissent
o Why are we looking at sex discrimination narrowly now when we were
looking at it broadly earlier
o Look at the statute as a whole: employers are less likely to discriminate
against women if men take self-care leave
III. Taking Stock of Sex Equality and the Constitution
A. The Court’s jurisprudence and the goals of the women’s movement
 Defined sex classification more broadly to include discrimination against pregnant
women
 Attacked facial sex classification.
B. Modalities of constitutional interpretation
 Equal protection clauses refer to persons not men; this would be a difficult for
originalists to uphold
91
29.
Modern Substantive Due Process:
Antecedents; Birth of Modern Era; Tradition
I. Classification-based equal protection versus fundamental rights



Classification-based
o What gets you to heightened scrutiny is the classification; with regard to
equal protection
o Moving from classification based equal protection to modern substantive due
process
Fundamental rights
o Nature of implicated liberty interest gets you to heightened scrutiny
o Substantive due process fundamental rights
Both of these can be found in Loving
II. Fundamental rights under due process versus under equal protection




Restriction on access to the right, not classification
Can always bring a fundamental rights claim under substantive due process but not
always under equal protection
This only sometimes matters
Difference has to do with what gets you to heightened scrutiny because there is a
better chance of winning. The classification gets you to heightened scrutiny. Under
the second, the nature of the liberty interest gets you there.
III. Introduction to fundamental rights under due process and equal protection
A. Overview
 Can bring a fundamental rights claim always under due process, and sometimes
equal protection. Ex. Marriage ban no equal protection claim but due process
claim
 Fundamental rights- restriction on access to the right, not nature of classification
 Some kind of infringement on some kind of liberty interest, etc.; some sort of
dignity interest: bodily integrity, liberty interest, autonomy, capacity to form a life
plan, intimacy
o A cluster of rights that tend to center around rights that people have over a
lifetime
 Typically triggers strict scrutiny, but not always
 Textual fundamental rights: voting, freedom of speech
 Non-textual fundamental rights: housed under due process clause (5th and 14th
amendments)
B. Analytic structure—the four questions
 1) Is it a fundamental right?
o Yes – strict scrutiny
o No – rational basis review
 2) Has the government infringed the right?
o Will sometimes be obvious, will sometimes be the key issue
 3) Is it supported by a sufficient government interest?
o Strict scrutiny: compelling state interest
 4) Are the means sufficiently related to the ends?
92
IV. Antecedents of modern fundamental rights
A. Rights
 During Lochner era
1. Meyer v. Nebraska (1923) – p. 1506
 Violates liberty of due process clause for state to prohibit teaching of German to
children
2. Pierce v. Society of Sisters (1925) – p. 1507
 Violates liberty of due process clause for state to require students to attend public
schools
 Parents possess the right to decide upbringing of children
3. Jacobson v. Massachusetts (1905) – p. 1506
 Court upheld a compulsory smallpox vaccination scheme
B. Limits
 Things that survive strict scrutiny are decisions to save children’s lives or from
injury (ex. Operations a parent won’t consent to)
V. Modern example of fundamental rights: marriage



Not mentioned at all in the Constitution
Protected under family autonomy
Cf. Loving (1967)
VI. Constitutional protection for reproductive autonomy
A. Introduction
B. Procreation
 Constitution protects this unless there is a compelling government interest
1. Buck v. Bell (1927) – p. 1506
 Upheld sterilization of mentally disabled persons ("Three generations of imbeciles
is enough")
 Compelling interest
 Court has never overruled this case
2. Skinner v. Oklahoma (1942) – p. 1507
 Sterilization of a criminal offender upon a third conviction of a felony “involving
moral turpitude”
 Overturned using strict scrutiny- violates equal protection because white collar
crimes, such as embezzlement, were excluded from the Act’s jurisdiction
3. Equal protection v. due process
 Remember: Skinner decided under Equal Protection, not Due Process
C. Contraception
 Why is this a fundamental right?
 Protects right to use and purchase as a fundamental right.
 Not sure where this goes: not about privacy but control over marital decisionimplication for abortion later on.
1. Griswold v. Connecticut (1965)
 Privacy of the marital relationship is a protected freedom
o The right to contraception is in the penumbra of the peripheral right to
privacy of marital relationships
 Does NOT protect ability to decide whether to procreate
93
o Court's concept of marriage is distant from procreation
 Says various amendments together create a right of privacy
 Subsequent Courts have reinterpreted Griswold as a substantive due process case;
which is the only way for the right to be incorporated against the states
 Harlan’s Concurrence
o An invocation of the history of tradition (living tradition)
o “traditions from which we’ve developed and traditions from which we’ve
broke”
 Black’s and Steven’s Dissent
o Look, Court shouldn’t be protecting rights that aren’t explicitly stated in the
text of the Constitution
2. Eisenstadt v. Baird (1972)
 Right to contraception, has nothing to do with marriage
 The right of privacy is the right of the individual, married or single, to be free from
unwarranted governmental intrusion into matters so fundamentally affecting a
person as the decision whether to bear or beget a child.
o Brennan is anticipating Roe
 Applies equal protection concept of Reed v. Reed
 Content of right changes from privacy of marital relationship to right to bear or
beget a child
3. Contraception as a sex equality right
 The Court has always looked at contraception as a liberty right, but it is also an
equal protection right?
 Is this about sex and procreation or is it about control?
 Gendered impacts
o Condoms were freely available for "health"
o Gave men more control than women in preventing pregnancy
4. Constitutional politics of contraception
 View through congressional hearings is that Griswold is now the black letter law
 Borke rejected Griswold and was voted down
 Roberts and Alito endorsed Griswold and the result of Eisenstadt; they learned
their lessons
 Seems like Eisenstadt is black letter law and not subject to overruling like Roe
could be.
94
30.
Roe v. Wade;
Abortion and Equal Protection
I. Introduction


To what extent does the court protect abortion?
Principle that individuals can control their individual autonomy conflicts with idea
that state can protect its citizens, including fetuses[...protect innocent human life,
defined to include fetuses]
II. Recognition of the right to abortion
A. Introduction
 46 states limited abortion
 Some were starting to liberalize
 One problem with the abortion question is that there isn’t a clear answer
 Public opinion hasn’t changed much since the ‘70s
 Partisan polarization on the issue has increased dramatically
o More Republicans than Democrats supported abortion in 1973
 Contrasts with Brown where there is now broad, nearly universal consensus
B. Roe v. Wade
1. Three possible judicial responses
 1) Criminal abortion doesn’t implicate any constitutional rights. Leave the issue to
the states or federal government.
o Not acceptable by either side
o Rehnquist and White
 2) Fetus has a fundamental right to life under liberty of due process or equal
protection. States are not permitted to allow abortion. Abortions are impermissible
as a matter of constitutional law.
 3) A pregnant woman has the right to abortion in specified circumstances.
o This was the Court’s holding.
2. What the Court held
 3 part holding
o Unrestricted 1st trimester
o Regulated 2nd trimester to protect health of the mother
o States may ban abortion, except for life and health exceptions in 3rd trimester
o Restrictions must meet strict scrutiny (abortion deemed fundamental right)
3. Analysis of the holdings
 Right to privacy in Griswold encompasses right to terminate pregnancy.
 This is simply substantive due process
 Critique: it is very doctor-centric; it ignored women
 Are the stakes similar for women with contraception and abortion?
o Seems so from the perspective of a pregnant woman
o From the perspective of the state? No, because of the question of the status of
the fetus
C. Abortion and equal protection
 Setting aside the status of the fetus:
 Sex equality arguments for abortion rights instead of liberty arguments
95

96
o There are gendered impacts, like contraception
For what reasons do governments restrict access to abortions?
o Women’s health
o Protecting fetal life
o Religious views about sanctity of life
o Opposition to contraception
31.
Supreme Court Decisions After Roe
I. Introduction


Thrust of equality arguments focus on gender burdens
Abortion restrictions arena – not only about fetus life, also about women
o Most respectable (?) equality argument
A. The question
 What is the current constitutional standard for determining restrictions on
abortion?
B. Location of the answer
 Casey
II. The politics and law of abortion in the 1980s and early 1990s
A. The abortion politics of the Reagan and Bush I administrations
 Legal conservatives made reversing Roe highest priority
 Administrations pursued this goal using presidential rhetoric, litigation, and
judicial appointments
B. Webster v. Reproductive Health Services (1989) – p. 1576
 Missouri law prohibits public funds or facilities to encourage women to have
abortions, required viability testing
o Missouri statute prohibited use of public employees and facilities to perform
or assist abortions that were not necessary to save the mother’s life
 No majority opinion, but law is upheld on rational basis and didn’t overrule Roe
explicitly.
 Rehnquist, White, Kennedy
o They say not necessary to overrule Roe
o State has compelling interest in fetus life
o Abortion is not a fundamental right
o Only need to meet rational basis review
o Would in fact overrule Roe
 Scalia
o Would explicitly overrule Roe
 O'Connor
o Insisted on deciding only the narrow question
o Consistent with Roe, so no need to overrule
o Argues for judicial restraint
o Scalia went ballistic towards O'Connor
 Liberals dissented
C. Changes in the Court’s composition
 Souter (unknown on abortion) and Thomas (pro-life) soon join the court
D. Planned Parenthood v. Casey (1992)
 Current law
 The existence of Casey is a compromise between pro-life and pro-choice sides
 Casey unleashes abortion restrictions that Roe never allowed
 Court is invoking stare decisis but overruling things
1. Statute (Pennsylvania)
 Didn’t prohibit abortion
97

Variety of provisions, none of which prohibit abortion before viability:
o 24 hour wait period
o Informed consent
o Spousal notification
o Reporting requirements
o Parental consent
2. Tone of the joint opinion (O'Connor, Kennedy, Souter)
 "Liberty finds no refuge in a jurisprudence of doubt."
 Compromise
 Tone of an authority deciding the matter definitively (so much for that...)
3. Holdings
 Reaffirms core of right protected in Roe
o State may not regulate before viability
 State may regulate after viability (with life and health exceptions)
 Principle that State has legitimate interests from the outset of the pregnancy in
protecting the health of the woman and the life of the fetus that may become a
child
 Court abandons strict scrutiny (but abortion is still fundamental right)
 New test: Undue burden test
o An undue burden exists, and therefore a provision of law is invalid, if its
purpose or effect is to place a substantial obstacle in the path of a woman
seeking an abortion before the fetus attains viability.
 Note the “or” → either purpose or effect by itself is enough for a
substantial obstacle (undue burden)
o State may regulate before viability as long as it does not place undue burden
on woman seeking abortion (i.e., places substantial obstacle)
o Purpose or effect (placing such an obstacle)
o But states have subsequently really only looked at effects
o States can still act with purpose of discouraging abortion → distinction
between persuasion and prevention [I have this as the "central compromise"]
 States can try to persuade women not to have an abortion, but can’t
prevent them from having an abortion
 Court overrules trimester distinctions in favor of viability distinctions
 Court upholds 24 hour wait period
o Finds that purpose is to consider properly
 Court strikes down spousal notification
o O'Connor outraged by this – wife is going to have good reason to not inform
husband
4. Questions
 What were the reasons for reaffirming the core rights? (Why can’t they overrule
Roe?)
o 1. institutional integrity / legitimacy
 Is all of this talk self-undermining?
 If the Court is responding to public opinion, is that necessarily
a bad thing?
 Difficulty in Court knowing what public opinion is
98




“The Court must take care to speak and act in ways that allow people
to accept its decisions on the terms the Court claims for them, as
grounded truly in principle, not as compromises with social and
political pressures having, as such, no bearing on the principled
choices that the Court is obliged to make. Thus, the Court’s
legitimacy depends on making legally principled decisions under
circumstances in which their principled character is sufficiently
plausible to be accepted by the Nation.”
o 2. Stare decisis – standing by thing decided
 Not most defensible argument
 Only invoke stare decisis when you’ve run out of arguments on the
merits
 Stare decisis is not your best argument, esp. if the other side argues
on the merits; it is somewhat foolish to lead with stare decisis when
the dissent so vigorously opposes on the merits
o 3. Profound stakes for women
 Builds on elements of Roe and adds in equality argument not found in
Roe
 “The ability of women to participate equally in the economic
and social life of the Nation has been facilitated by their
ability to control their reproductive lives.”
 Who is the right holder here?
 It was the doctor in Roe, here, it’s the woman
o These are arguments on the merits
Does the Court say fundamental right exists same way as in Roe?
o Still protecting liberty values under Substantive Due Process
o Adds equal protection rationale (women's role) under substantive due process
o Right holder shifts to pregnant women (from doctor)
Is stare decisis the best argument?
o Replaces reason with authority
o Is replacing strict scrutiny with undue burden consistent with Roe and stare
decisis?
 This is essentially overruling Roe on this aspect
 Are substantial obstacle and persuasion reconcilable? (tax as
discouragement vs. penalty as destroying behavior distinction is
similar to persuasion vs. prevention)
 Have to remain in a persuasion capacity as opposed to a
roadblock
o Dissent says court is being selective in stare decisis
o For hugely important question of constitution, stare decisis seems like poor
way to reach outcome
o Siegel: When judges are just applying the principles, they don't point out that
that is what they are doing. Whenever they say that that is what they are
doing, it's a lie.
What about the institutional integrity?
99
o Court must have legitimacy with people, not be a compromise bowing to
social and political pressure
o Is it necessarily a bad thing that court is taking into account public opinion?
100
32.
Abortion Restrictions after Casey
I. Introduction
A. General question
 Some of this class’s restrictions are between Roe and Casey
B. Road map
II. The Court’s responses
A. Waiting periods
 Overrules old precedent to say they’re ok
 Before Casey, the Court always struck waiting periods
 With Casey, the Court upheld a 24 hour period
 The plurality did not find that this period implicated equality and thus was not an
undue burden
B. Denial of government funding for abortions
 Court repeatedly upheld, even under strict scrutiny
 The claim is that if the government pays for birth, it must also pay for abortion
 Rather, the Court makes a negative construction of the right: it is a restriction on
government action, not an obligation
 Per Casey, the state can choose sides, so this is okay
C. Parental notification and/or consent for unmarried minors’ abortions
 The state may require notice or consent, so long as there is a judicial bypass
(meaning the minor can go to a judge and get permission instead of getting
permission from parents)
o A question: but do judicial bypasses actually work?
 Is having a judicial bypass realistic? Do minors know about it? Does
it matter if the judge is pro-life?
 The Court views minors as different than adult women
D. Spousal consent and/or notification
 Spousal consent: Planned Parenthood v. Danford
 Notification:Casey
 Requiring spousal consent is unconstitutional; it perpetuates sex role stereotypes
 Either is unconstitutional
o Assumption here is if you tell your spouse then you’re less likely to get an
abortion
o Do the fathers have a constitutional interest?
E. “Informed consent” requirements
 They are permitted if they are “truthful and non-misleading” under Casey
 How does that compare to religious and one-sided information; a question of
ideology
 Siegel: I don’t think it can turn on the effects, that is, the quantity of abortions
reduced
III. “Partial-birth” abortion
A. Stenberg v. Carhart (2000)
 Constitutional challenge to a state ban on partial-birth abortion
 Struck 5-4
101

Court invalidated the Nebraska law on multiple grounds, but most importantly
because it lacked a health exception as required under Casey
 Kennedy vehemently dissented
B. The federal Partial-Birth Abortion Ban Act of 2003
 Federal act
 Many democrats voted for it, including Biden
 Was used as a wedge issued for pro-life: publicize the graphic nature of this
method of abortion
o If this is unacceptable, then it’s not a far stretch to say all abortions are illegal
C. Gonzales v. Carhart (2007)
 A constitutional challenge to the federal ban
 Upheld 5-4
 Changeof composition of court? O’Connor  Alito
 Why is it constitutional?
o The law regulated the medical profession
o The law only addressed a method
o The purpose was to express respect for the dignity of human life, not to
impose a substantial obstacle
o The effect also did not impose a substantial obstacle
 It was only one rarelyused (was it rarely used?) method
 Access remains for other methods
 There’s no medical consensus on safety, thus, no health exception
was necessary
o Kennedy distinguishes this from abortion generally
 Ginsburg wrote the angriest opinion of her career; an equality based argument
D. Questions
 A. and C. are simply inconsistent
 Assuming Casey, can Federal government have an interest in the dignity of the
fetus (was Gonzales correctly decided)?
 Does it make sense to believe in a constitutional right to abortion, but prohibit a
method of abortion?
IV. Other Regulations of Abortion
A.
B.
C.
D.
Longer waiting periods
Requirements to view a sonogram or photos
Requirements to submit to an ultrasound, vaginal or otherwise
Flat-out bans pre-viability based on various rationales
 Heart beat or fetal pain laws
 Like 18-20 weeks
E. “Informed consent” requirements that make various assertions
F. TRAP laws—e.g., Whole Woman’s Health v. Hellerstedt (2016)
 “Targeted Regulation of Abortion Providers”
 Two regulations in Texas
o Admitting privileges to local hospitals
 Abortionists usually could not get because they do not admit enough
patients (because it is such a safe procedure for the woman)
102
o Ambulatory surgical centers
 For fetal protective regulations, the line is the difference between persuasion and
prohibition (Casey)
 Women’s health-based restrictions:
o State may try to further the health of women
o However, if it has such bad effects on access to abortion—it is an undue
burden—the restriction can be found to be pretextual
th
 5 Circuit deferred to Texas’ claims of benefit
 Supreme Court issue: should the Court defer to the state or should it investigate the
effects (benefits and burdens)
 Holding: Struck 5-3
o Must balance the benefits and burdens and not accept the state’s findings of
benefits
o Effect is the problem here (the Court makes no mention of the state’s
purpose)
o Court doesn’t say there’s an impermissible justification here
 Instead, shows how it’s both over and under inclusive
o You can’t relabel an interest in fetal life as an interest in women’s health and
then go after prevention
 Alito:
o Res judicata
o Not enough in the record to show causation
o He doesn’t argue about women’s benefit because all three purported benefits
are definitively countered by the majority
o Yes, this will reduce access, but what about the medical justification?
 Counter: other procedures are much more dangerous
 The majority does not say that there is an impermissible purpose to avoid being
incendiary; doesn’t call Texas out
 Siegel: If the holding had been otherwise, the Court would have endorsed a
roadmap to end abortion in the US
o This highlights a crucial anti-circumvention function of the court
o A state cannot just relabel interest in the fetus as interest in the woman
G. Other limitations
 Telemedicine
 Intrusive access to medical records by inspectors
 Breast cancer warning
 Depression warnings
103
33.
Same-Sex Intimacy and Discrimination on the
Basis of Sexual Orientation I
I. Introduction
A. Road Map
B. Two clarifications
 1) We’re going to proceed chronologically as opposed to doctrinally
 2) We’re not just going case by case
o Need to know the historical background
 Due process cases: Bowers, Lawrence, Winsor, Obergefell
II. Historical Background




Movement begins in late 1960s after Griswold
Stonewall Riots
Inspired conservative backlash
Conventional wisdom was that only gays got AIDS
III. Bowers v. Hardwick (1986)
 Substantive due process
A. Question presented?
 Does the Federal Constitution confer a fundamental right upon homosexuals to
engage in sodomy and hence invalidate the laws of the many States that still make
such conduct illegal and have done so for a very long time(under strict scrutiny)?
 Justice White doesn’t frame it neutrally- invokes history and other states’ laws
B. Holding
 5-4 decision
 No fundamental right to engage in private, homosexual sodomy
 2 part test (Glucksberg test):
o 1) is the right implicit in the concept of ordered liberty
o 2) Deeply rooted in history and tradition
o Good at excluding things, but not good at including them
C. Dissent
 (Stevens) Moral opposition is not a sufficient reason for upholding a law
prohibiting the practice
 Most influential of the opinions on future decisions
IV. Romer v. Evans (1996)



6-3
Classification based equal protection
The Supreme Court has never held that anything other than rational basis review
applies to these cases(but did they actually analyze it like that or was it strict
scrutiny in disguise?)
A. Amendment 2 (Referendum)
 Struck down and prohibited sexual orientation discrimination claims
 The laws affected were garden variety anti-discrimination laws. Needed because
other arbitrary groups aren’t discriminated against like gays.
B. State interests
 Expressing a moral judgment that homosexuality is wrong
104
 Conserving scarce law enforcement resources
 Protecting the freedom of association values
C. The Court’s response
 Rejects them and determines that purpose here is animus
o “breadth was so discontinuous with the reasons offered for it that the
amendment seems inexplicable by anything but animus toward the class that
it affects”
 1) Animus is never a valid reason
 2) If you preclude a group from using an ordinary process, then it violates equal
protection
D. Questions
1. Rational basis review?
 Requires only a conceivable interest
 Court says all State’s interests are either inconceivable or animus
 Even under rational basis review this is simply arbitrary or irrational
o On a broad reading of the state's amendment, nothing at all could be done to
protect gays, even if that were the only basis of the discrimination
 Is it still defensible? No. Siegel says yes it’s possible, if actual rational basis
review is used. Case becomes easier under heightened scrutiny.
2. Animus?
 Amendment 2 is motivated by animus and animus flunks rational basis review
 Is it social meaning or subjective intent?
 Animus does not pass rational basis. Siegel things this is the motivation. Court
concludes that animus is why people voted for the law, but how did they know?
3. Why not announce a level of scrutiny?
 Criteria for heightened scrutiny:
o Immutability
o History of discrimination
o Political powerlessness
 Discrimination in all settings would result in heightened scrutiny and Court/public
isn’t prepared for it
4. Is Justice Scalia right?
 He says it’s a cultural struggle not a fit of spite and the Constitution doesn’t
address it so the Court should stay neutral
 He is effective in refuting the argument.
 All social issues have similar arguments so until when should the Court stay out of
it?
5. Amendment 2 as class legislation?
 This is directed at sexual classifications minorities
6. Relation to HB2
 Requires bathrooms to be segregated by sex
 Modifies existing NC statute prohibiting discrimination to cover only sex
discrimination, not gender discrimination
 Repeals local ordinances that prohibit gender discrimination
 Gets rid of a private right of action
105





106
Argument about animus or prejudice – is this present here?
o Evidence used to support bill is nonexistent
o Questions of rationality
The constitutional question will eventually have to be decided
Does this violate antidiscrimination law? EEOC, Title VII of Civil Rights Act
Does this survive under judicial review under Romer? Animus
Eventually may be decided by court—will do statutory or regulatory analysis to
avoid the constitutional question, but eventually the constitutional question will
need to be decided.
34.
Same-Sex Intimacy and Discrimination on the
Basis of Sexual Orientation II
I. Changes in constitutional politics



By 2000, Public opinion nationally on criminalizing same-sex sexual conduct
changes significantly.
1999, Gallup Polls showed public opinion for gay rights had dramatically
improved → first time majority of US was in favor of same-sex marriage.
Distinct minority of states that still criminalize same-sex intimacy
II. Lawrence v. Texas (2003)
 Similar to Loving because policing outsiders, only a minority of states ban this.
A. Scalia’s point in Romer
 He outlined the tension between Romer and Bower
 Traditional morality is a rational basis for legislation. See Bower.
B. Facts
 Contested but police entered house on weapons disturbance suspicion and found
two men engaged in sexual act.
 Question of why wasn’t this brought under 4th Amendment
C. Majority opinion—liberty or equality?
 Relies on liberty of due process clause § 1 of 14th Amendment – liberty of people
to engage in private acts in their home.
 Protects autonomy and intimacy and overrules Bowers.
 But there are equality values infused throughout this opinion.
o "Invitation to discriminate"
o "Equality of treatment"
o "Entitled to respect"
o "Demean their existence"
 Links liberty and equality at bottom of 1664.
o “Equality of treatment and the due process right to demand respect for
conduct protected by the substantive guarantee of liberty are linked in
important respects, and a decision on the latter point advances both interests”
 Sexual intimacy is part of a cluster of rights that invoke both equality and liberty
arguments
 Substantive equality anti-subordination reasoning
 Similar reasoning in Casey: where court vindicated the right on the due process
clause with equality reasoning
D. O’Connor concurrence
 Unconstitutional based on classification based on equal protection.
 Would not have overturned Bowers
 "It seemed kind of lame"
E. Scalia dissent
 Claims majority is:
o Inconsistent with respect to precedent but is this consistent with stare
decisis? “Bowers was wrong when decided”- one theory of getting by stare
107
decisis. Unlike Casey which just fixed Roe because of changing times. Roe
wasn’t wrong at the start.
o Merits: Substantively, if the promotion of majoritarian sexual morality is not
even a legitimate state interest, then laws against bigamy, adultery, incest,
bestiality, etc. cannot survive rational basis review.
 2 arguments:
o 1) Precedent
 Majority is ignoring precedent
o 2) On the merits
F. Questions
 Specificity vs. generality changes frame of connection to history and tradition
o How to characterize the right at stake – Is it the right of same-sex sodomy or
the right of privacy in the home?
 The narrower framing emphasizes the differences
 The more general framing emphasizes the similarities
 How does the court interpret due process? Limit to original (Glucksberg) meaning
or evolving over recent time? Court takes latter route. Either way needs to be
explained.
o Note: Court isn’t being counter-majoritarian because a minority of states had
laws like this, but it is anti-federalist
 What are the limits on scope of government regulation? How do courts interpret
this?
 What level of scrutiny did the Court apply here?
o Seems to apply rational basis, but did it really?
o Does mere moral opposition without more qualify as a legitimate state
interest? If not, then no legitimate interest here
o Court doesn’t actually say what level of scrutiny it applied. Why? Giving
itself more flexibility → formally ramping up the level of scrutiny would
have decided a lot of issues that the Court may not have been prepared to
discuss
o Does the Court effectively decide these issues when it doesn’t provide a level
of scrutiny?
 Is the Court taking sides in the culture war? Is Justice Scalia? Is the question of
what a fundamental right is easily separable from culture?
G. Miscellaneous
 In Lawrence, the court said they used rational basis review, but did they actually
do it? Is moral opposition enough to strike down a law? Court says no legitimate
government interest, so why not announce a level of scrutiny? Still early in gay
rights so the court is leaving itself flexibility in how they can respond to future
cases.
108
35.
Same-Sex Marriage I
I. Modern history


Baker v. Wilson (1972)
o Court gives the back of its hand to a Minnesota gay couple → was a
mandatory appeal
o Court summarily affirms Minnesota Supreme Court decision rejecting same
sex marriage
Baehr (Hawaii Supreme court, 1993)
o Came close to striking down opposite sex marriage statute
o Strict scrutiny applied
o Congress became concerned that Hawaii would legalize gay marriage
 So it passes DOMA
 Section 2: States don't have to recognize other states' same sex
marriages (not at issue in Windsor)
 Section 3: amended Federal Dictionary Act to define marriage
and spouse in federal law to only include man-woman
relationships
 Many states passed “mini DOMA” laws while others passed “super
DOMA” actslimiting all civil unions and domestic partnerships. Ex.
Prop 8- CA.
 Vermont court said these acts were unconstitutional, but left
remedy to legislature (allowing gay marriage or civil union)
 Lawrence – 2003
 Goodridge – MA Supreme Court – 2003
 Invoked Lawrence, holds that state constitution requires same
sex marriage
 CT and IA courts also invoke Lawrence in declaring same sex
marriage legal
 Many other state courts rejected same sex marriage, though.
 Creates backlash and George W. Bush endorses federal marriage
amendment
 Many state statutes and constitutions ban same sex marriage (23) at
state level
 Proposition 8 controversy – overturns California Supreme Court
decision
 But public opinion changes
 By 2012, Obama and Biden endorse same sex marriage and advocates
have clean sweep in 2012 election for state level initiatives
 More states legalize
 As support increases, opponents' arguments against change over time
and are more respectful
II. United States v. Windsor (2013)


Where the US Supreme Court first weighs in on limitations of same-sex marriage
The Obama administration said heightened scrutiny should apply and that it would
enforce but not defend DOMA
109
A.
B.
C.
D.
E.
F.
G.
110
o Raises tricky jurisdictional issues: adversariness, controversy, and standing
 Edith Windsor and the government both agree that § 3 is unconstitutional – Article
III case in controversy
Question presented
 Is section 3 of DOMA constitutional?
Holding
 § 3 of DOMA violates the due process clause of 5th Amendment
Majority’s rationale according to Chief Justice Roberts
 Federalism – this is unconstitutional because marriage decisions have traditionally
belonged to the states
o Siegel: But this just isn't true
 Majority applied a rational basis test
 What evidence of animus was the Court relying on?
 The decisive evidence of animus is that Congress was going so broadly when it
enacted DOMA
o Federal overreach, extraordinary evidence of animus
 Question then turns to whether states can do what they did with the mini DOMA
acts
o Should they be left alone?
Majority’s rationale according to Justice Scalia
 He does what he did in Lawrence again
 Ordinary evidence of animus
 If you’re concerned that children are humiliated that states won’t recognize their
parents’ marriage, then will they be more humiliated that states won’t even allow
them to marry
o Give me a break
 He thinks there’s a lot more to it than simply federalism
o The true federalism holding would be that DOMA is unconstitutional under
necessary and proper clause
 Would have had no implication on state bans
 Majority of states still ban same sex marriage but Kennedy frames it as if NY is
upholding equality values everywhere
Who is right?
 Both Roberts and Scalia believe the Court to be saying DOMA was motivated by
animus
Why write such an opinion?
 Debate is about individual rights (equality, liberty, etc.)
 Federalism is a way station
 If you think of the doctrine as being in transition the same way the political and
cultural doctrines were in transition, then this case makes sense
o A way for the Court to nudge the discussion in a certain way without yet
requiring it
 How much of this is the Court not wanting to make a decisive stand on this issue?
Anticlassification or antisubordination?

In holding that DOMA violates the due process clause, is the Court reasoning from
an anti-classification or an anti-subordination perspective?
o Robust anti-subordination reasoning
 It’s from the perspective of those that are excluded
o Purpose, effect, 2nd tier marriage language. Same here as racial and gender
equality arguments, just transposed.
III. Post-Windsor developments in the federal courts
A. How should federal courts have responded to Windsor when facing state bans?
 The Supreme Court extended an invitation in Windsor and the federal courts
accepted it → “lean on me” scenario; "reciprocal legitimization"
 Model is to predict Supreme Court decisions – one method for lower courts
 Must make best decision based on existing precedent – a different method
 Windsor provides resources to strike down state bans but conservative ones could
use a narrow Windsor holding (only limited to existing state laws) to uphold them.
 What would the federalism holding have been?
o DOMA is unconstitutional based on necessary and proper clause. And the
court doesn’t want to go there. (Commerce clause argument might be
problematic).
B. See Obergefell Appendix A in the Court’s full opinion online
 Lists all the federal and state court decisions that invalidated state bans on samesex marriage. Courts overwhelmingly struck down state bans after Windsor.
o The 9th Circuit read Windsor as requiring heightened scrutiny
IV. Level of Scrutiny in Windsor


Seems to be rational basis review, but under rational basis, any conceivable reason
works
o Some interests: consistency, financial considerations, let’s wait and see,
honoring opinion of past Congresses, fairness
o Kennedy doesn’t care/entertain above reasoning
Court is applying heightened scrutiny it just doesn’t say so. Claims animus as a
reasoning for passing the law and that is not a legitimate interest. But is this a
slippery slope? Is it subjective? Was it really the main motivation?
V. Animus





Was the Court right that DOMA was only motivated by animus?
Question of how do you actually know what’s in the minds of people?
Is it useful or helpful? You don’t need animus to strike down federal or state bans
so why go there? Did all really vote on the basis of animus? Why needlessly tar
them as bigots?
The Court might really be after social meaning
Is animus the best description of what is actually going on?
111
36.
Same-Sex Marriage II
I. Federal District and Circuit Court Opinions in Same-Sex Marriage Cases
Post-Windsor
II. Obergefell v. Hodges (2015)
A. The Court’s four options
 1. Reject any claim to Constitutional protection and uphold States’ claim that that
marriage is defined as between a heterosexual couple
 2. Modern Substantive due process, liberty, fundamental right to marry(4th and
10th circuits said this)
o What is the scope of this right?
 3. Equal Protection based on sexual orientation
o Restricting marriage to opposite sex couples is not a facial discrimination,
but subtler. A gay man can marry a woman, so gays aren’t prohibited from
marrying at all.
o Instead, the parties had to show a discriminatory purpose; because of, not
merely in spite ofdifferential sexual orientation application (via Davis v.
Feeny)
 4. Equal protection based on sex
o Cf. ban on racial classification (formal facial classification)
 Who you can marry depends upon your sex and your partner’s sex
o The argument against this refers to traditional sex role stereotypes
B. Holding
 Chose the due process right to marry(#2)
 States must license same-sex marriages and recognize marriages licensed in other
states
C. Rationale
 Liberty argument with equality thrown in
 Kennedy says the institution of marriage has been changing for over a
millennia(arrangedconsensualcovertureequal partnership, etc.)
 The reasons we value marriage today fails to preclude same-sex marriage
o An exercise of personal choice, which is central to self-definition
o Supports a two person union unlike any other union
o Safeguards children and family
o Marriage is the keystone of our social order
o The idea of marriage is dynamic → Kennedy doesn’t focus on deeply rooted
tradition, instead he focuses on more recent history
 Must ask what question? What makes marriage fundamental? Why is it valued
today?--> uses these concepts instead of tradition.
D. Why liberty over equality?
 Kennedy writes a love letter to the institution of marriage
 The liberty argument reaches the broadest audience (broader than an equality
argument)
 There would have been wider implications if it had based its opinion based on
equal protection of sexual orientation, like discrimination in other settings.
112

The circuits who wrote from due process were much more respectful of opponents
of same-sex marriage than the circuits who wrote from equal protection of sexual
orientation
 Did using the due process argument open up new conflicts?
o Plural and incestuous marriages?
o But, other kinds of marriages with >2 people has greater implications to
estate, divorce, family law, etc.
 Lots of equality reasoning in the opinion (pp. 195-97, n. 5)
 Due process is less constrained by classification requirements than equal
protection
 Siegel thinks there will be more problems if Kennedy leaves before he finally gets
around to actually announcing a higher standard of scrutiny
E. Dissents: authority and nature of tradition
 The core of the debate is over the authority and nature of tradition
o If your test is objectively deeply rooted, then same-sex marriage has only
been around since 2008
 Robert’s dissent is the principle dissent
 He goes out of his way to be friendly to LGBT
o He says no one is talking about overrulingLawrence
 The Constitution is the accumulated wisdom of past ages
 Rational basis review
 Embraces Glucksburg
F. State interest(s)
 Roberts won’t reverse Lawrence, but what is the state interest?
 Harm to opposite-sex marriage
o Heterosexual couples will marry less/will be more prone to divorce if samesex couples of allowed to marry because marriage becomes an institution that
focuses on the couple as opposed to the welfare of the children
 Difference of perspective: marriage as romantic vs. child-centered
 Because moral and religious arguments were precluded by Lawrence, the state’s
hands were tied
 Heterosexual couples can accidently become pregnant unlike same-sex couples
G. The issue of bigotry now
 Can people oppose gay marriage without being bigoted?
 We’re not bigots, say the dissenters. Are they right?
 Are we bigoted for discriminating against child molesters?
 Siegel thinks this issue is much more nuanced/complicated than white supremacy
H. The issue of bigotry fifty years hence
 This perspective should humble us and our moral judgments
III. Advice for life in the law 
113



114
37.
Miscellaneous Notes
Palmore Principle: a representative channeling animus of a 3rd party is as
unacceptable as his/her own animus
Cases where the court says one standard of review and uses another:
o Grutter
o Cleborne
o Reed
Williamson court supplied a rational basis for the law where none was provided by
the government