Con Law Outline
1. Intro
a. Intro & Founding Documents
i. Background & Formation
1. Great ambiguity to whether there was a “United” States or just 13
sovereign states
ii. Articles of Confederation
1. Showed the interest in federalist structure
2. Only National Entity was congress
a. No separation of powers
3. No federal taxing power under the articles
4. Weak central government
5. Equal state suffrage
6. Required unanimity for amendments
iii. Problems of the Articles:
1. Inability to raise funds
2. Inability to secure treaty compliance by states
3. Inability to regulate commerce between states and with foreign
nations
iv. The Constitution (Map of)
1. Legislative (map of sections)
a. 1: Powers granted to congress
b. 2: Composition of the House
c. 3: Composition of the Senate
d. 4: Congressional power to regulate elections
e. 5: Congressional procedure
f. 6: Compensation of Senate & Representatives
g. 7: Procedures for enacting laws
h. 8: Specific powers of congress
i. 9: What congress can’t do
i. Suspend Writ of Habeus Corpus
ii. No Bills of attainder or ex post facto laws
iii. Give preference to the ports of one state
iv. Grant titles
v. Affect slave trade prior to 1808
j. 10: What states can’t do
i. Enter into Treaties
ii. Print money
iii. Grant titles
iv. Bills of attainder/ex post facto laws
2. Executive
a. 1: Executive power shall be vested in the president
b. 2: Particular powers of the president
i. CiC
ii. Pardon
3.
4.
5.
6.
7.
iii. Treaties
iv. Appointments
c. 3: Presidential duties
d. 4: President is removable by impeachment
Judicial
a. 1: Supreme court exists (states can make others)
b. 2: Cases in which courts have jurisdiction
c. 3: Definition of treason
Relations among the States
a. Full faith and credit
b. Power to make new states
c. Republican government
Amendment Process
a. Method 1: 2/3 approval of House + Congress & ratification
by (1) legislature in ¾ states or (2) conventions in ¾ states
b. Method 2: Application of legislatures by ¾ of states
followed by ratification
c. Limits: Cannot change the senate system without consent,
no revision to article 1
Supremacy of Federal Law
a. Officials must make an oath to support the constitution
Effectiveness
a. Only 9 states out of 13 to make the document valid
2. Separation of Powers
a. Introduction to the Separation of Powers
i. The nature of the constitution
1. 2 views of the constitution
a. Meaning does not change
i. David Josiah Brewer: Meaning of the constitution
does not change at all
1. Framers were deliberate in choosing general
language which can apply to different
circumstances
2. The meaning of the document itself does not
change
b. Meaning does change
i. Oliver Wendell Holmes: Meaning can change (like
an “organism”)
1. The meaning evolves as the nation evolves
2. “Dead Hand” Objection
a. Thomas Jefferson: “No society should have a perpetual
constitution” (every constitution ends after 19 years
i. The living should decide their form of government
b. James Madison: “Government must be enduring, not
constantly changing” (practicality concern)
3. Methods of Constitutional Argument
a. Text
b. Historical Context
c. Structure
d. Precedent
e. Policy
ii. Intro to Separation of Powers
1. Montesquieu liked separation of powers (lots of thinkers of this
time liked Montesquieu)
2. Under the Constitution: No single provision spells this out, but the
structure of the first 3 articles shows this
3. Mixed powers:
a. Veto (legislative + executive)
b. Senate advice & consent role for branch appointments
(legislative + executive)
c. Congressional power of impeachment (legislative +
judicial)
d. Executive’s power to appoint federal judges subject to
senate advice and consent (all three)
iii. Youngstown Sheet & Tube
1. President Truman stepped in to stop a steel production strike in
order to keep the war effort maintained
2. Since there is no statute authorizing Truman he points to 3 things
to show he is allowed
a. Article 2 S1: Executive vesting clause
b. Article 2 S2: Role as CiC
c. Article 2 S3: Laws carried out by executive
3. Black (Majority):
a. Textualist/Originalist argument
b. Believes that the president is engaging in legislative
activity through his actions
c. Thinks that the CiC role does not allow seizure of industry
d. “Take care” does not work as there are no laws that are in
question here
4. Frankfurter:
a. Seizure is not authorized by Congress
b. Precedential argument
c. Says you cannot use text of constitution alone, must the the
“gloss” of history of the document and America
5. Douglas (FratGOD)
a. Structure and textual
b. Makes the argument that the 5th amendment says you have
to pay for seizures, connects it to the president seizing the
plant and saying says that since only congress can pay ->
he has overstepped his bounds
6. Jackson (important opinion for the levels of presidential acts)
a. Makes the argument that presidential power depends on the
relationship that the president has with acting congress
b. Framework:
i. Presidential acts with the backing of congress
(strongest level)
ii. Presidential acts with neither authority, but neither
denial of congress (middle)
iii. Presidential acts against the will of congress
(lowest-zone that happens in this case)
c. Says that role as CiC does not cover this
d. Says that president should not be able to get a power by
going to war (Hitler)
e. 3rd amendment shows the president has no authority under
similar conditions
7. Clark
a. Focuses mostly on judicial practice and precedent
8. Vinson (dissent)
a. Says that in terms of practice, many previous times in
which a president has responded to an emergency and
congress has always let these stand
b. Says president needs to have more of an active role than a
“messenger boy”
b. Judicial Power and Judicial Review
i. Brutus 11
1. Brutus:
a. Worried that judiciary will interpret the law to expand
powers
b. Worried that the judiciary are isolated since they have life
appointments
c. Worried that the states will be at a loss for power if the
judiciary acts to enhance federal power
ii. Publius (Federalist response/Federalist 78):
1. Argues the judiciary is the least dangerous of the branches as it
cannot reach out with either “sword” or “purse” powers
2. Says the judiciary has no means to enforce its judgments
3. Believes the court will do its job by reviewing constitutionality
iii. Marbury v. Madison
1. Marbury was appointed, but commission was never delivered
2. Opinion authored by James Madison:
3. Marbury 3 questions:
a. 1. Does Marbury have a right to an appointment?
b. 2. If he has a right that has been violated, is he entitled to a
remedy?
c. 3. If he is afforded a remedy, is it a writ of mandamus?
i. 3.1: Is the mandamus the proper remedy?
ii. 3.2: Can the court provide a mandamus?
4. Right to appointment (1)?
a. Yes, due to textual and structural reasoning found in article
2
b. 3 factors for this
i. Nomination of the President
ii. Advice of the Senate
iii. Commission (takes effect after signature)
5. Remedy (2)?
a. Existence of a right implies a remedy
b. President cannot destroy the office
6. Is a Mandamus the proper remedy (3.1)?
a. Yes
7. Can the Mandamus be issued (3.2)?
a. No
b. Since this is a question of appellate jurisdiction, this is not a
question for the Supreme Court
c. Division between original and appellate court
8. Judicial review
a. Trying to put something in the original jurisdiction that was
appellate is not constitutional (debate on the “Grand
Statesman” theory in which Marshall set up his opinion to
expand power”
iv. Lincoln-Douglas Debates
1. Lincoln (Departmentalism): Law is for that particular case, not
always for other cases
a. Other branches can express their own, individual
constitutional judgments
2. Douglas (Judicial Supremacy): Pronouncements must be respected
by other departments
v. Ex-Parte Merryman
1. Writ of Habeus Corpus was suspended
2. Tawney does not recognize the suspension
3. Judiciary cannot actually do anything when the executive branch
does not comply (Hamilton in Fed 78 irl)
c. Limits on “Judicial Power”: Standing, Case & Controversy Requirement &
Political questions
i. Correspondence of the Justices
1. Background: War between France & UK, would help the executive
if the justices can say how the us should treat all the various
treaties
2. Justices decide they should not provide help
a. Justices cannot issue advisory opinions
b. Established practical precedent of how judicial power is to
be constructed
ii. Ex-Parte Levitt
1. Challenging the appointment of Huge Black through the
incompatibility clause (article 1, section 6, clause 2)
2. Levitt claims he has a general interest in making sure the law is
being followed, court says this is not a sufficient alleged injury
3. Could have been prevented if president did not appoint Black or
Black himself declined
4. Justiciability Doctrines:
a. Standing (Bouncer)
b. Ripeness (injury must have happened or is about to happen)
c. Mootness (cannot be too late)
iii. Mass v. Mellon
1. Maternity act, plaintiffs claiming that congress is interfering with
local state affairs
2. Claiming an injury through taxation
3. Conceivable that Frothingham suffered an injury, but does not
work here since she is being the same as other citizens at large
a. The injury could have been actual, but it was not particular
iv. Summers v. Earth Island
1. Majority (Scalia):
a. Lawsuit about the powers conferred by Congress in the
forest service
b. Claim seen as too speculative (example of ripeness)
c. Gives test for standing:
i. Under threat of suffering injury in fact that is
concrete as well as particular
ii. Actual & imminent
iii. Fairly traceable to action of defendant
iv. Must be likely that a favorable decision will redress
or prevent the injury
d. Procedural injuries do not count
2. Kennedy: May be different circumstances where congress provides
standing
3. Breyer (Dissent): Statistical threat of injury is very high
v. Nixon v. US (Political Question Doctrine)
1. Background:
a. Nixom was a judge who made false statements to protect
3rd party individuals
b. Nixon says impeachment was not proper because he was
not tried by the whole senate (focuses on the word “try”
says that it means a whole jury trial must take place)
2. Majority:
a. Court says that “try” does not limit the senate
i. Political question
ii. Constitution delegates the question to either
legislative or executive
b. How to determine a “political question”
i. The constitution points to a branch of government
whose responsibility it is
ii. Lack of judicially discoverable and manageable
standards for resolving the question
c. Court blends historical, textual & structural arguments
d. Says important for congress to have power of impeachment
3. White (concurrence)
a. Decide the case on the merits, not just the political question
b. In the specific scenario, senate acted ok, but court should
also judge if they acted ok
d. The Legislative Power: Specificity and Delegation
i. Map of Article I
1. Vesting Clause
2. House
3. Senate
4. Elections
5. Rules of Procedure
6. Compensation
7. Procedures for Lawmaking
8. Powers of Congress (congress gets powers from other places too)
9. Prohibitions on Congress
10. “No State Shall...”
ii. Post Roads Debate
1. “Congress shall have the power to establish post offices & roads”
(Article 1. Section 8. Clause 7.)
2. “For” Delegation:
a. President has more expertise
b. Quicker
c. Inevitability (executing laws)
d. Impartiality (local concerns)
3. “Against”:
a. Power
b. Accountability
4. “Both”:
a. Give the power, but have the ability to take it back later
iii. Misretta v. US
1. Mentioned Schecter Poultry -> Case in which court found that
Congress had ceded too much power to the executive (but takes a
much different direction shortly after)
2. Dealt with the guidelines of the sentencing commission
3. Majority (Blackmun):
a. Does not go too far based on past precedent
b. Test: intelligible principle: guides the delegation (very
general)
i. 11 factors for sentencing guidelines
ii. Abstract goals: Fairness, knowledge of human
behavior
iii. Shows that there is an intelligible principle
4. Dissent (Scalia):
a. Non-delegation doctrine exists
b. Exercise of power must be 1 of 3 powers
i. Views this as an exercise of pure legislative power
(not permitted)
iv. US v. Lovett
1. Congress attached a rider to their apportionments (you cannot pay
certain individuals
2. Majority (Black):
a. This essentially is a bill of attainder, not allowed to have
that
3. Frankfurter: Must use constitutional avoidance to see this as
something else than a bill of attainder
4. Case shows that congress cannot specifically target individuals
e. Bicameralism & Presentment
i. Intro
1. Presented to President
2. Bills are not automatically dead with a veto (very rare, but they can
still be passed)
a. If president does nothing -> after 10 days the bill becomes
a law
3. Congress:
a. House
i. Based on Population
ii. Elected by individual districts
iii. 2-year terms
iv. Election is held every 2 years
v. 435 members
b. Senate
i. Each state has equal representation
ii. Elected by state as a whole
iii. Members serve for 6 years
iv. 1/3 stand re-election every 2 years
v. 100 members
ii. INS v. Chadha (LIKES THIS CASE!)
1. Background:
a. Indian British subject living in Kenya previously, because
of circumstances he has no country
b. Judge gave him authority to stay (given by congress), but
then congress voted to deport him
2. Majority (Burger):
a. Emphasized text & history of the constitution
b. Said that policy matters of convenience do not matter
c. Not a circumstance where one house can act alone
d. Congress using executive power
e. Veto is invalid as it does not pass the bicameralism &
presentment test
i. Not part of the 4 circumstances where one house
can act on their own
3. White (Dissent)
a. Functionalist/Policy-based argument
b. When congress gives some power away, it may want to
keep some
4. Severability: Question of whether the whole statute or just part of
the statute is unconstitutional
5. Rehnquist: Veto is not severable in this case
6. Resulting from this case: Congress has lost their veto to the
President
iii. Clinton v. New York
1. Background: Question of line-item veto
a. Purpose of which is to bring the budget in line with revenue
2. Stevens (Majority)
a. Art 1 S7 has specific ways to have this done and this
violates
b. Contemplates vetoing portions, but not entire bill
c. Different than “spending upto” as you are actually
changing the text in this case
3. Breyer:
a. Not a big deal or a threat, congress can just legislate around
4. Kennedy:
a. SOP exists for a reason (protect liberty)
5. Scalia:
a. This procedure is more of a delegation (not Art 1, S7)
b. Question is settled by history as being ok
f. Executive Power: Power to Appoint
i. Intro & Map of Article II (sections)
1. Vesting Clause
2. Various powers
a. Commander in Chief
b. Power to Pardon
c. Power to appoint (w/senate approval)
d. Power to require opinions in writing
e. Power to make treaties (w/senate approval)
3. Other Powers
a. State of the union
b. Receive ambassadors
c. “Take care that laws be faithfully executed”
ii. Federalist 76
1. Hamilton describes three ways of appointment:
a. Single man appointing
b. Congress appointing
c. Man appointing with the added check of Congress
2. Says that 1 man is better than congress
a. Congress would be concerned by local matters and have a
diversity of distracting views
3. Why use the senate check? -> It is a useful/silent check that would
ensure that only qualified individuals were appointed
iii. Buckley v. Valeo
1. Commission is not following the requirement of Article II
a. Not all are being appointed by the president
2. Article II has a very specific offices of how these offices are to be
filled
3. Congress is using the necessary and proper clause, but using it too
broadly
4. White (dissent)?
iv. National Labor v. Noel Canning
1. Pro-Forma sessions being used to block Obama from appointing
people
a. What does “recess of the senate” mean?
i. Majority:
1. Uses a broad interpretation with functional
consideration
2. The purpose of this is to sustain the need to
staff the agency during the vacancies
3. Early history does not tell much -> intra
session recesses were uncommon
4. Later on -> more frequent intra-session
recesses
ii. Dissent:
1. Functionalist considerations -> concerned
the president will turn this into a weapon
2. Exception should not swallow the rule
3. Much less necessary than in early US
4. No need for expansionist view
b. What does “vacancies that may happen” mean?
i. Majority:
1. Both vacancies before and during recess
2. Not preferred w/ natural meaning -> but
much more practical
3. Recession
4. Past considerations and historical practice
ii. Dissent:
1. Vacancies must have come into being during
recess
2. Cannot get around this if historical practice
was only doing the wrong thing for a long
time
3. Efficiency should not go over individual
liberty
c. Are pro-forma sessions to be ignored?
i. Majority: No
g. Executive Power: Power to Remove
i. Decision of 1789
1. 4 theories of removal
a. President’s power alone due to the combination of vesting
clause + duty to “take care” (Madison held this view)
b. Advice and consent of the senate + president
c. Congress only: Constitutional silence puts the power in
congress’ hands
i. Necessary and Proper clause
ii. Congress creates, has power to remove
d. Only explicit test we have is impeachment
2. Outcome: Leave the decision to the president
ii. Myers v. US
1. Background: Statute required congressional approval for removal
2. Majority (Taft):
a. Text, history, past practice
b. Debates of Johnson are not relevant
c. Power is for the president
3. Dissent:
a. Congress creates these offices, should have the say on how
they are staffed
b. Brandeis discusses the nature of the case -> inferior officer
(congress can vest the power in someone else besides the
president)
c. Congress has set requirements before -> signals that
president does not have exclusive authority
iii. Humphrey’s Executor
1. Humphrey was removed because Roosevelt did not want him
2. Court ruled that the removal was wrong as the case is
distinguishable from Myers based on the “quasi-executive role”
iv. Morrison v. Olson
1. Background: Watergate (Nixon has to fire 2 until they finally
follow his orders)
2. Majority (Rehnquist):
a. Proper test is whether the limitation will impede the
president (new rule/standard that sweeps away the old
Myers/Executor)
b. Independent counsel is a member of the executive
c. Not an attempt by congress to increase their power, this
does not impede upon the president
d. President still has control through AG
e. AG can both launch investigation & have good cause
removal power (enough for the court)
3. Dissent (Scalia):
a. Separation of powers is more important
b. President should have all executive Power
c. Humphrey’s executor was bad, but contained a good
standard of an acceptable removal of pure executive
d. Views executive power as an important safeguard
(executive branch may fear others branches will go after
them)
e. Response to the feat that it is self-interest of executive:
i. Functionalist: Always an issue for every branch
ii. Structural system in place to check these
iii. Congress can institute impeachment proceedings
and courts can refuse the case
iv. Voters will not like a president who abuses power
f. Thinks majority is giving a murky rule
g. Says that this case “comes as a wolf”
h. Separation of powers is not the most efficient, but does not
need to be since it is designed to protect liberties
h. War and Foreign affairs powers allocation between President and Congress
i. Power to “Declare War” & CiC
1. War Powers:
a. Congress:
i. Seemingly a lot of enumerated powers
ii. Spending powers (president must go to congress to
fund military)
iii. Necessary and Proper clause
b. President:
i. Executive Vesting
ii. CiC
ii. Madison’s Notes
iii. Practice and Precedent
1. Not many formal declarations of war (WWII)
2. Some major military actions authorized by Congress (9/11)
3. Many more not actually authorized (Korea)
iv. War Powers Resolution of 1973
1. Background: Congress has believed that President has gone way
past what the Gulf of Tonkin resolution allows and want to curve
the president’s ability to go to war without a declaration
2. Proper ways to go to war:
a. Declaration
b. Statute
c. National Emergency
3. President must gibe timely report to Congress
a. Triggers the running of a 60-day statutory period
b. Congress can choose to extend this period if they desire
4. If Congress does nothing, troops must be removed
5. Congress can always remove troops if they decide to by joint
resolution
6. President may not use treaties or apportionments from congress as
authorization to go to war
v. Nixon Veto statement
1. Constitutional + Policy Based Objections
a. Constitutional:
i. Impedes on executive as CiC
ii. Congress should need to explicitly disprove, should
not be able to do so without engaging in some type
of positive action
iii. Concurrent resolution would work without
Presidential approval (can’t do this)
b. Policy:
i. US will be tied and people will know this, may hold
out waiting for US to leave
ii. Tie president’s hands and not allow them to act
vi. Korematsu v. US
1. Background:
a. Pearl Harbor and Racism
b. Highest zone (1) of presidential authority is being seen here
c. Congressional statute that made it criminal offense to
violate order at the time
2. Korematsu Defense:
a. Order is a violation of due process (impedes liberty through
freedom of movement)
b. Law in place applies to US citizens only because of their
race
3. Majority (Black):
a. Acknowledges that measures like the one in this case that
affect racial populations require great scrutiny
b. Says that there is a national security justification here
c. Court needs to accept the reasoning of the military
4. Concurrence (Frankfurter):
a. Strong proponent of judicial deference and thinks the
actions here are permissible
5. Roberts (dissent):
a. Problematic that no matter what Korematsu does, he is
harmed
b. Does not think that it is right that the only way for
Korematsu to access courts is to sacrifice his liberty
6. Murphy (dissent):
a. Does not agree with facts and thinks this is just racism
7. Jackson (dissent)
a. Thinks this is similar to Ex-Parte Merryman in that he is
skeptical of what the court can actually do to challenge the
executive
b. Concerned that the court is giving their blessing to the
actions and that later this case will be used as a “loaded
gun”
c. Court should not distort the constitution just to make
military action acceptable
i. Impeachment
i. Curie on impeachment of Andrew Johnson
1. Debate on the definition of “high crimes”
2. House decides to impeach with the violation of the tenure of office
act
3. Senate decides he should not be impeached
ii. US v. Nixon
1. Background: Trying to get tapes, but Nixon resists claiming
executive privilege and saying the action is beyond the scope/
justiciability of courts
2. Jurisdictional charge: Court says it is ok that there is no prior final
judgement as the situation is unique
3. Justiciability:
a. Inter-Branch Dispute-> Court says that the previous
executive order that allows this has the force of law
4. Executive privilege defense:
a. Court acknowledges EP, but says not in this case
b. Gives 2 justifications when it is ok
i. Confidential communications regarding decisions
ii. National Security/Foreign Relations
iii. Law Professor’s Letter
1. Clinton should not be impeached, should have a high barrier for
impeachment
2. President should only be impeached if official executive powers
have been abused
iv. Canady statement on impeachment of Clinton
1. House should launch impeachments if they think they have merit,
Senate can defeat them if they don’t agree
3. Federalism
a. Intro to Federalism: Preserve the sovereignty of states, but limit it
i. Map of Federalism provisions
1. Powers of the Federal government can be found:
a. Article 1: Congress
b. Article 2: President
c. Article 3: Courts
2.
3.
4.
5.
6.
Restrictions on the states are found in Article 1, Section 10
Obligations on the states are found: Article 4, Section 1
Admission of new states: Article 4, section 3
Supremacy of federal law: Article 6
States power in terms of the “national government”
a. Article 1, section 2: House
b. Article 1, Section 3: Senate (altered)
c. Article 2, section 1: President (altered)
d. Article 5: Amendments
7. Supremacy Clause (Article 6, Clause 2)
a. Clearly favors the federal government
b. The question for determination is what is “in pursuance”
th
8. 10 amendment says that whatever is not delegated goes to the
states
ii. Federalist No. 10
1. Talks about factions (which can be both majorities and minorities)
2. Admits that it is impossible to get rid of factions through practical
means
a. Would have to either extinguish liberty or ensure everyone
in the country had the same views
3. Instead thinks of how to mitigate effects of factions
a. Use Republicanism
i. Bigger republic is better as there is better odds of
good people, more factions ensuring individual
influence of factions is diluted, and federalism will
still address the concerns that are local
iii. McCulloch v. Maryland
1. Debate concerning the national bank
2. Questions:
a. Is the bank constitutional?
b. If so, can Maryland tax the bank?
3. Maryland’s argument: Constitution should be viewed like the
articles of Confederation in that the states hold ultimate authority
4. Marshall:
a. Rejects Maryland’s argument, says that the states do not
give the constitution authority, but actually the people do
b. Argument focuses on text and structure
i. Concedes that there is no specific clause enabling
this to be a power
ii. Focuses on the power to collect taxes and couples
this with the N&P clause
iii. Says that a grant of power implies discretionary
choice, says this is not a substantive power (which
would have had to be explicitly granted)
iv. N&P Clause:
1. Marshall says necessary can vary on context
2. Using article 1 section 10 argues that it is
not always “absolutely necessary”
3. Does not want the constitution to be unduly
narrow
v. Test:
1. Legitimate, within constitution, and not
prohibited
5. Other takeaways from Marshall’s opinion
a. Bank is for the citizens of all the US, not just Maryland
b. “Power to tax is the power to destroy”
c. States have protection from the federal government, but
feds do not have that luxury
b. Growth of the Commerce Power
i. Gibbons v. Ogden
1. Case that involves law on waterways between NY & NJ
2. Ogden argues that commerce should receive a narrow construction,
excluding navigation
3. Marshall rejects the strict construction and opts for a “fair
construction”
4. Outlines specific limits for commerce clause:
a. Activities that are completely within a state (intrastate)
b. Says that congress can reach in if several states are
involved
5. Marshall clarifies that states cannot do the things left to the Federal
government (supremacy of federal)
ii. Lightning Round: N&P clause
1. Wilson: Delaware dams a navigable river, but court finds it ok
because Congress did not address it specifically
2. New York: Ships reports were required in New York, ok because
the police power of the states was used
3. Cooley: Pilots from Philadelphia must be used, fine by the court
4. US v. EC Knight: Anti-trust claim against sugar manufacturer,
court does not step in as manufacturing is different than commerce
5. Champion v. Ames: Court prohibited the transport of lottery tickets
6. Shreveport: Court holds that commerce clause can regulate a
railroad within one state as it has to do with transport
7. Caminetti: Prostitution (bad moral) cited as the reason for
upholding across state lines
8. Hammer v. Dagenhart: Court strikes down child labor law
regulation as it was not directly related to commerce and dealt with
primarily manufacturing
9. Bailey: Essentially the same case, but with taxes
10. Schecter Poultry: Court strikes down regulations affecting
employee hours
11. Carter: Struck down regulations affecting miners
12. National Labor: Upheld regulations on labor, signals shift in court
views
iii. Wickard v. Filburn
1. Background:
a. Agriculture Adjustment Act
b. Wickard had violated the regulation concerning the
growing of Wheat
i. Had grown extra Wheat, but refused to store by
required means or pay a fine
2. Commerce power is upheld as court says that you can use an
“aggregate test” to see that the activity in state does affect
commerce
iv. Heart of Atlanta
1. Motels/Hotels are deemed as affecting commerce
2. Hotel argues: Hotel is only affecting Atlanta, it is not affecting
interstate commerce
3. Court responds:
a. Commerce clause can be used as hotel serves transient
guests and the hotel takes part of commerce
4. Companion case: Katzenbach (BBQ)
a. Court upholds commerce clause because the products
traveled in interstate commerce
c. Limits on the Commerce Power and the Role of the N&P Clause
i. US v. Lopez
1. Background: Law that says you cannot have a gun in a school zone
a. Statute is fulfilled as long as you have a gun, does not
matter where it comes from
b. New test emerges from the case: Focuses on whether
activity is economic or non-economic
2. DOJ argument: Based on precedent, all that needs to be established
is that there is a logical basis for congress to believe commerce has
been affected
3. Majority (Rehnquist):
a. Discusses first principles
i. Cites Federalist 45 as an example of dividing power
to help ensure liberty
ii. Maintains the view that the national and local
governments are still distinct despite expanded
nature
b. 3 categories that are acceptable to use commerce clause:
i. Channels of interstate commerce
ii. Instrumentalities + Things that have moved in
interstate commerce
iii. Things with a substantial relation to interstate
commerce
c. Rehnquist argues that only the 3rd category apples here
(hence, it must be fulfilled to succeed the challenge)
i. Talks about how the real test is “substantial effects”
instead of just “effects” because everything affects
commerce
ii. Distinguishes from Wickard by saying this case
does not involve economic activity like Wickard
(this becomes a key dividing line)
iii. Concerned that federal policing power will develop
through use of the commerce clause
4. Concurrence (Thomas)
a. States that the court has expanded the clause way too much
and needs to be mindful to reel it back in the future
b. Talks about how commerce clause has begun to swallow
the other enumerated powers
c. Acknowledges you have to balance this case with Stare
Decisis in Mind
5. Dissent (Breyer)
a. Outlines his own 3 principles
i. Local Action
ii. Cumulative Effects
iii. Deferring to congressional judgment
b. Argues that Rehnquist does not provide boundaries and that
past cases would say that the DOJ did enough to fulfill the
standard
6. Note: US v. Morrison represents the high-water mark for a
stringent commerce clause standard
ii. Gonzales v. Raich
1. Background: Medical Marijuana growers have their plants seized
by feds through commerce clause
2. Majority (Stevens):
a. Does not think that Raich’s argument that they are not part
of the commercial market is relevant
b. Takes a broad interpretation and says that economic
activity is within commerce clause
c. Says that it does not matter what the state did in terms of
legislation (California)
3. Concurrence (Scalia):
a. Congress should be using the N&P clause in this case
b. Concerned with the overall scheme of federalism
c. Thinks that Marijuana is too much of a fungible good and
that it could easily enter the federal stream of commerce
4. Dissent (O’Connor):
a. Policy of federalism highlighted by referring to states as
“laboratories” (can test out things in the individual state
without having the entire country having to take part
b. Concerned that Lopez is not be treated as anything save for
a “drafting guide”
c. Argues that there is no actual evidence that the government
is providing in terms of this type of Marijuana entering a
commercial stream
d. Distinguishes between small grower of medicinal
Marijuana and a normal grower
5. Dissent (Thomas):
a. Thinks that the government should allow states to have
some latitude and that a regulatory framework is enough
here
d. State Sovereignty as. Limit on Federal Power
i. Printz v. US
1. Background:
a. Case concerned with the Brady gun Bill that required
CLEO to conduct background checks while a federal
database was being created
b. Print argued that the Government has no power to compel
the state officials (Majority agreed)
2. Viewing the opinions side by side (Majority = Scalia) (Dissent =
Stevens)
a. Textual:
i. Scalia: No textual authority on the issue, therefore
you must look to other sources of argument
ii. Stevens: The necessary and proper clause provides
textual evidence for this type of action to be
permitted
b. Historical:
i. Scalia: No evidence that the government’s policy or
anything similar has been allowed in the past
1. Distinguishes what has happened with
courts are something similar, but different
because they are applying laws of other
jurisdictions
ii. Stevens: Historical evidence suggests otherwise
from what Scalia is claiming
1. Early historical authority has shown that this
power has been used
c. Structure:
i. Scalia: Recognizing this power will undermine dual
sovereignty as the federal government will be able
to carry out plans without having to actually spend
their own resources
1. Believes that the federal government should
have to create their own bureaucratic
structures instead of relying on the states
2. Also believes that this is an area of
executive authority that congress is
encroaching on
ii. Stevens: If the federal government is not permitted
this small power, this will backfire and cause them
to actively pursue expansion of their power
d. Accountability:
i. Scalia: If the federal government exercises this
power, the state and the feds will just point fingers
at each other and neither will ever take
accountability if something goes wrong
e. Court precedent:
i. Scalia: NY v. US shows that the federal government
can never compel state executive branch officials
1. Says that implementation of law will always
contain some matter of “policy” so that the
distinction the dissent stresses is not a
distinction at all
ii. Stevens: Says that this is different because there is
no policy making involved, only an execution of the
law
1. Uses the case of Testa to argue this has
happened before
th
ii. Intro to 11 Amendment and State Sovereign Immunity
1. The concept of sovereign immunity arose from the English Court
System because the King controlled the courts and it would not
make sense for him to be sued as he would preside over his own
case
iii. Chisholm v. Georgia (Old Case, each judge says what they think)
1. Iredell (dissenting from others):
a. Says that jurisdiction can only be exercised by the authority
that has been given to congress in creating the courts
b. Since both the federal and state courts have jurisdiction for
this case, this implies that only recognized actions of
legality can be used
c. Says that in traditional English common law, the writ of
assumpsit would not allow you to sue the King -> naturally
follows that a sovereign could not be sued in this case
2. Blair:
a. Says that the text is simple and is clearly saying a state may
be sued
3. Wilson:
a. Real source of authority for sovereigns like states lies with
the people
b. People therefore decide whether or not a state is suable ->
text of article 3 seems to show that they have decided this is
ok
4. Jay:
a. Constitution clearly shows that 2 states can be sued, it
logically follows that a state must be suable since they can
be a party in actions between 2 states
5. Note: Court essentially rules that Article 3 allows the states to be
sued, but 11th amendment was shortly after adopted based on
Iredell’s dissent
iv. Hans v. Louisiana
1. Background: Citizen suing their own state
2. Court responds that even though there is sort of a gap in the
constitution where this is not explicitly denied, it is not permitted
a. Court recognized that Chisholm was decided incorrectly
and quickly corrected, suggests that there is no way that a
person could sue their own state
b. Also expressed that if the founders felt the need to say
anything the answer is obvious from the text that is given
v. Limits on State Sovereign Immunity:
1. Waiver
2. Enforcement Power: 14 Amendment
3. Injunction actions against state officers
e. Taxing and Spending
i. Intro to the Tax Power
1. First power expressed in Article 1, Section 8
2. Express limits:
a. Uniformity
b. No taxes against exports
c. Must tax in proportion to census data
3. Hylton v. US
a. Case involved a debate on whether or not a tax on carriages
is a direct tax
b. Court ruled that this was not a direct tax
c. Direct taxes would be a “head tax” or a tax on and
4. Pollock Farmers Loan
a. Case concerning income tax
b. Court says this is a direct tax that must be apportioned
c. 16th amendment is passed in response to Pollock saying that
apportionment does not apply to income taxation
ii. Implied Limits on the Power to Tax (Lightning Round)
1. License Tax Cases:
a. Tax power can be used to indirectly attack activities
congress could otherwise not reach
b. Court says it does not matter the reason for taxing these
activities
c. Court says that tax power cannot be used to authorize
things a state already has a law against
2. Veazie Bank (inverse of McCulloch)
a. Court rules that it is not for the judiciary to draw the line on
whether or not a tax is excessive
b. In dicta, court touches on how the limits on taxation
may arise from the constitution itself
3. McCray
a. Case concerns a tax on margarine
b. Very clear that the tax was meant to help protect the
milk/butter industry
c. Court says that the potential abuse of taxation power is
not for the court to decide (people can decide through
political process of voting)
4. Note: Cases 1-3 all recognize a hands-off view in terms of taxation
5. Bailey v. Drexel Furniture
a. Court invalidates a tax that Congress had placed on
companies that used child labor
b. Court finds that the taxation was a penalty, and not
designed to raise revenue
c. Court finds that it is reasonable for congress to tax
certain activities that they do not like, but they cannot
create a regulatory regime
6. Steward Machine
a. Unemployment compensation program offered states
federal tax incentives if they took part
b. Court holds that it does not matter that tax power is
essentially inducing the states
c. This case represents a shift to expand congressional powers
(1937)
7. US v. Kahriger
a. Tax placed on bookies, court chooses to uphold it even
though it does not produce a lot of federal revenue
b. Court says that taxes that generate revenue are permitted
(does not matter how small)
iii. Intro to the Spending Power
iv. Assumption Controversy
1. Controversy of whether or not the states should have their debt
absorbed by the federal government and then pay back through
taxation
2. Plan was to help the US develop a line of credit
3. Some states did not like as they had paid off their debts already
(Virginia)
4. Eventually compromise is reached in which DC is promised to be
located in Virginia
v. 2 views of the Spending Power: Madison and Hamilton
1. Madison:
a. Thinks that the courts would be unable to police effectively
the guidelines of “general welfare” for the spending power
b. Offers alternative in which congress may spend money
only in support of other enumerated powers
2. Hamilton:
a. Spending is unlimited as long as “general welfare”
requirement is fulfilled
vi. US v. Butler
1. Agricultural adjustment act (similar to Wickard) where congress
has laid a tax on farmers and used these funds to create a scheme
of regulation
2. Court rules that the power to tax is not limited to other enumerated
powers in Article I, but still adopts the view that in this case the
spending was unconstitutional and used as a work around
vii. Helvering v. Davis
1. Social security act is being challenged
2. Court takes the broad general welfare view of the spending clause
and says that congress can condition states through the spending of
federal funds
viii. South Dakota v. Dole
1. Background:
a. Case involves the drinking age of South Dakota being 19,
while congress attempts to change it to 21 using the
spending power
b. 21st amendment says that each state decides their alcohol
laws
2. Majority (Rehnquist):
a. Says that the only question in this case is whether or not
congress can use the spending power here (says they can)
b. Outlines a 4-part test to judge if it is constitutional
i. Spending must be for the general welfare
ii. Spending provisions must be unambiguous in the
sense that states know what conditions they have
agreed to
iii. Restrictions must somehow be collected to the
regulatory program (in the case at hand this is
justified by saying that teenagers drinking makes
highways more dangerous)
iv. Independent constitutional bar -> says that this does
not apply here as congress is not forcing the states
to do something unconstitutional (SD could have
raised the drinking age to 21 on their own)
v. 5th factor that Rehnquist adds: Whether or not
the condition that has been created is
unnecessarily coercive
1. Says that this is not the case here and the
states are given a genuine choice
3. Dissent (O’Connor)
a. Thinks Rehnquist framing of the issue is spot on, but the
answer he takes is wrong
b. Argues that the condition element is not proximate enough
here (not enough connection between highway safety and
teenage drinking)
c. Says that the related test should be whether or not the
condition relates to the funds themselves (Congress would
give money to the states, but the money must be spent on
highway safety)
d. Believes 21st amendment is what governs here
f. NFIB
i. National Federation of Independent Business v. Sebelius
1. Overview of the case:
a. Individual Mandate
i. Commerce Clause
ii. N&P
iii. Taxing
b. Medicaid Expansion
c. Severability
2. Issues of the case:
a. Is the individual mandate unconstitutional? (No)
i. Is it an exercise of the commerce clause? (No)
ii. Is it an exercise of the necessary and proper clause?
(No)
iii. Is it an exercise of the tax power? (Yes)
b. Is the Medicaid expansion constitutional? No
i. Is the requirement supported by spending powers?
No
c. Severability?
i. If there are unconstitutional provisions, are they
severable? Yes
3. Individual Mandate
a. Roberts (Majority)
i. Begins with an intro discussing federalism as well
as saying that the “anti-injunction act” does not
apply
ii. Not in opinion: But Lopez test would show this is
an activity that is fully intrastate, but affects
congress based on aggregate effects
b. Is this a valid exercise of the commerce clause?
i. Roberts says no
ii. Focus on the commerce clause wording saying
“regulate” implies that activity must already exist
and cannot force the creation of an activity
1. Examples: Congress has the power to create
money as well as regulate money (not just
the power to regulate)
iii. Believes that giving the power to force people into
commerce is leading too much to a federal policing
power
iv. Says that this case is distinguishable from Wickard
as there is no economic activity, but only inactivity
c. Valid exercise of N&P?
i. No here as well, activity does not arise from any
enumerated power
ii. Power that is attempted to be exercised would have
to be enumerated as it is so powerful
d. Taxation?
i. Says that the court must attempt to interpret things
in a constitutional light if one is available
ii. Says that it does not matter that the legislation
refers to a “penalty”
iii. Bailey case is consulted to determine whether or not
this is a tax
1. Nature of exaction
2. Scienter Requirement
3. Who collects the revenue
iv. Roberts says these 3 factors show that this exaction
is, in fact, a tax
v. Says this evidence is shown by congress not caring
about all the people not buying insurance (they
would care if this was a penalty)
vi. Says that it is ok here to tax an inactivity, why?
1. Constitution already has contemplations of
taxes on inactivity (head tax)
2. Taxation power is subject to various other
limits
e. Concurrence (Ginsburg):
i. Also agrees that the anti-injunction act does not
apply
ii. Agrees that the “penalty” is just a tax with a
different name
iii. Differs on views of the commerce clause and the
N&P clause
iv. Ginsburg on the activity/inactivity distinction?
1. Views not buying insurance as economic
activity and states that even if there is a
distinction between action and inaction it
does not apply here
v. Argues that the nature of the healthcare problem
requires a federal solution in order to minimize the
chance of “selection effects” that states would face
alone
vi. Says that if the solution cannot be made by the
states, implies the feds have authority to address
(dissent really does not like this)
vii. “Broccoli Horrible”
1. Says that this is dramatic as the connection
to healthcare is much more direct than
vegetables
2. Democratic process should alleviate
people’s concerns
3. Debate here is more of individual liberties
f. Joint Dissent:
i. Says that Congress could have made the penalty a
tax if they wanted to, intentionally made it a penalty
and called it a penalty to signify
4. Medicaid Expansion:
a. Roberts:
i. Expansion is coercive as it is threatening to take
away a pre-existing program and has a much more
significant financial inducement than Dole
b. Ginsburg (dissent):
i. This is not taking away anything as it is just a
change to the program of Medicaid itself and states
constantly decide whether or not they choose to
participate
5. Severability:
a. Roberts: Ok not to destroy the whole act, the
unconstitutional portion can be severed
b. Joint dissent disagrees and says the whole act must go
6. Additional Notes:
a. Marks: Says that you should interpret decisions like
Sebelius as the 5 justices deciding the case on the narrowest
grounds
ii. Commerce Clause Review: fix this
1. Does the law? (Lopez Test)
a. Regulate channels of interstate commerce?
b. Regulate internalities of interstate commerce?
c. Regulate any persons or things moving in interstate
commerce?
i. Yes -> Valid exercise
ii. No -> Move to next section
2. Next Section: Is there a substantial aggregate effect?
a. Yes
i. Is it commercial or economic?
1. Yes
a. Is there an “activity”?
i. Yes
ii. (previous yes) -> does it pass
substantial effects test? If yes
then can be regulated
iii. No -> Cannot be regulated
(NFIB)
2. No
a. Is there a national regulatory plan?
i. Yes (go to question of
activity above)
ii. No (cannot regulate –
Lopez/Morrison)
b. No -> Not valid
4. Individual Rights
a. Intro to individual rights
i. Intro to the Intro
1. Rights that are given usually need structures to enforce them
a. North Korea has some of the most rights given, but no way
to enforce these rights
b. Australia has almost no rights given, but the structures of
enforcement are very functional
2. Madison letter to Jefferson: Bill of Rights will always be violated
as it already happens in Virginia (called bills of rights “parchment
barriers”)
ii. Calder v. Bull
1. Background:
a. Case concerning a will, Connecticut legislature ordered a
new trial
b. Plaintiffs arguing that this was an Ex Post Facto law
2. Majority:
a. Ex Post facto law is a term of art (not here)
b. Connecticut’s unique constitution allows a mix of powers
which is ok here
c. Mini-Debate on the power of courts to intervene on
egregious laws
i. Chase:
1. Laws that violate first principles are not
valid
ii. Iredell:
1. Written constitution is the manner to limit
rights abuse, the court must enforce this
iii.
iv.
v.
vi.
2. This does not apply when dealing with
principles that are unenumerated
3. Appropriate remedy for an abuse of power
like this is a state convention or using the
political process
Bill of Rights (w/in constitution)
1. Limits on suspending Habeus Corpus
2. Bills of attainder are not allowed
3. Ex Post Facto laws are prohibited
4. Cannot impair contracts
5. Interstate rights
6. Trial by jury and limitations on treason
7. No religious test for any public office
Barron v. Baltimore
1. Background: City dreges the water and ends up making a dock
Barron owns less functional
a. Barron claims this is an unconstitutional taking of property
b. Dispute deals with Amendment 5
2. Majority (Marshall):
a. Interprets the bill of rights only on federal governments, not
the governments of the states
b. This is logical as the bill of rights is in the constitution and
is meant for the government being created by the
constitution (states already exist at the time)
c. Marshall argues that when provisions apply to states, the
constitution makes it very textually clear to distinguish
i. Article 1 s 9: “No bills of attainder…”
ii. Article I s 10: “No state shall pass any bills of
attainder…”
d. Marshall believes that the remedy in these cases is not in
the constitution, but through the states
e. Amendment 14 essentially overturns this case
i. Note on amendment 14
1. Allows the bill of rights to reach the states
2. Almost all of the major rights from the bill
of rights have been incorporated
Slavery in the constitution
1. Taxation provision
2. Provision saying slavery cannot be affected before 1808
3. Return of fugitive slaves outlined
Dred Scott
1. Question of whether Dred Scott is a citizen
2. Tawney rules that it is impossible to conceive of Black people are
citizens or as having being given rights of the constitution
3. Black people (does not matter if they are slaves) are excluded from
citizenship
4. Tawney goes even further and says that slavery cannot be
prohibited by congress
vii. Reconstruction
1. 13 amendment: Prohibits slavery
a. Prohibition is not limited to certain forms of government
b. Section 2 gives explicit power for congress to make
legislation that is necessary in the enforcement of the
amendment
2. 1866 Civil Rights Act
a. Passed to combat the “black codes”
b. Tried to help with basic civil rights
3. 14: Prohibits states to intrude on rights
a. Section 1: New definition of citizenship, prohibits
infringement from the government
b. Section 2: Exclusion of non-voting citizens (effectively
abolishes 3/5 compromise)
i. Wants to prevent magnification of southern power
without them allowing people to vote
c. Section 3: Excluded from federal office any person who
had taken the constitutional oath and then became a
confederate
d. Section 4: US will not pay for any confederate debts
e. Section 5: Congress has the power to enforce the
amendment by appropriate legislation
4. Closer to look at the 14th
a. Section 1:
i. Begins with a definition -> Goes directly against the
Dred Scott decision
ii. Next, lists prohibitions on state governments
1. Cannot make any law which will abridge the
privileges or immunities of citizens
2. Cannot deprive the life, liberty or property
of citizens without due process
3. New language used: Cannot deny the equal
protection of the law
iii. Section 5: Specific power given to enforce by
appropriate legislation
b. Congress’s Power to Enforce the Reconstruction Amendments
i. The Civil Rights Cases
1. Court finds that private discrimination does not amount to a badge
of slavery while Harlan in his dissent took the opposite view
2. 3 categories of “things” are outlined in the case in which black
people were denied
a. Inns, places of public conveyance, and places of
amusement
3. These places are found to operate under a presumption that they
are open to all people
4. Court says that it is up to the states if they want to apply
5. Bradley’s view: This application can only be within the
constitution if it is under the scope of the reconstruction
amendments
6. Discussion of 14th amendment:
a. Only states are seen are regulable under the 14th
amendment
b. The court infers the “no state shall” text of the amendment
as showing that the states are exclusively affected (this text
does not apply to private individuals)
c. Court says that an interpretation of the amendment that is
too broad would put all the power into the hands of the
federal government
d. Court touches on how the amendment effectively covers all
the states, and not just the southern states
7. Discussion of 13th amendment:
a. The 13th amendment has mechanisms for more direct and
primary enforcement (state action is not a concern here)
b. Badges/incidents of slavery are seen as addressable
c. Majority talks about how former slaves cannot be seen as
“favorites of the laws”
8. Court holds that the civil rights act of 1875 was unconstitutional
9. Dissent (Harlan)
a. 13 amendment discussion:
i. Applies to more than just the ending of the
institution of slavery, the amendment is there to
help erase all the effects that slavery has left
(including racial discrimination)
ii. Believes that it is permissible for congress to pass
amendments in order to combat this discrimination
iii. Views the denial of African Americans to these
“public places” as resulting in a badge of slavery
b. Believes that the “citizen clause” of the 14th amendment
should prohibit racially-based discrimination
c. Quasi-Public function of the actors in the case makes them
essentially part of the states
d. Says that African Americans are not favorites of the laws
and never have been
ii. United States v. Morrison
1. Concerned with the Violence Against Women Act (VAWA)
2. Court found that Congress did not have the authority to enact
VAWA under the commerce clause as it was a non-economic
activity
3. Although the government argued it was authorized under the 14th
amendment, the court did not agree
a. Government’s theory: Congress has a clear record that
there has been a failure to provide adequate redress for
women and therefore it is appropriate to have a federal
response
b. This theory is rejected because it fails the standard of
congruence and proportionality
iii. City of Boerne v. Flores
1. Man trying to expand his church, but was unable to because of a
preservation statute
2. Background:
a. Congress had passed the RFRA which required
constitutional accommodations and contained exceptions
for religion
b. Congress is using section 5 of the 14th amendment to
enforce this restriction against the states
3. Court finds that this use is exceeding the scope of the legislation
4. Court says that congress does not have the power to interpret the
meaning of the 14th amendment, and only have the power to
enforce it
5. Congress counters with saying that imposing a blanket requirement
as they have helps to prevent against aggregate religious
discrimination, but court says this fails the congruence and
proportionality standards set
6. Main Takeaways:
a. Congress does not have the authority to determine the
meaning of amendments
b. Test of congruence and proportionality is outlined
iv. Fitzpatrick v. Bitzer
1. Question for the court: Whether a state can have it’s sovereign
immunity stripped when reconstruction amendment powers are
invoked
2. Court determines that reconstruction amendments allows the
sovereign immunity to be stripped and states can be brought in
court (applies to both the 13th and 14th amendments)
c. Racial Segregation and Desegregation
i. Plessy v. Ferguson: Ok to take account of social attitudes (separate is ok),
but Harlan says colorblind constitution
1. Allows for “separate but equal” if the “reasonable” requirement
has been met
a. Plessy was 7/8 white, but not allowed to sit in the whites
car
b. Plessy argued his equal protection clause rights had been
violated and the inherent nature of separation violates his
rights
2. Justice brown says that the 14th amendment is not meant to affect
what happened in this case
3. Majority distinguished between civil equality and social equality
with the key argument being that the law does not mandate social
equality
4. Majority says there must be a reasonable justification for the
exercise of police power such as this case and Louisiana was
permitted in taking account the role of social relations
5. Court counters Plessy’s argument of inherent discrimination by
saying that there is no actual inferiority in separation, but it is only
made up by African Americans
6. Plessy argues that whiteness is essentially a property right he has
been deprived of, but court says he was never entitled to it in the
first place
7. Majority says that the law must acknowledge the differences in
society
8. Dissent (Harlan):
a. Says that there is no racial distinctions allowed under the
constitution
i. Claims that there are violations of the 13th as well as
the 14th amendments
ii. Argues that the legislature should be the one to
determine the reasonableness
iii. Says that the constitution is color-blind and that the
very nature of separation is a violation of civil
rights as the constitution prohibits race-based
distinctions
iv. Talks about how you can look at the purpose of the
legislation when passed as well as the effects
1. Talks about how the law is just a not very
well-hidden attempt at protecting right
superiority and promotes racial hate
v. Harlan talks about how Chinese people are not and
never will be citizens and how whites will always
dominate the US
9. Jim Crow begins to rise as a result of Plessy
ii. Early Desegregation Cases
1. Missouri Ex Rel Gaines (1939)
a. Black man tries to be admitted into Mizzou law school, but
is denied and offered to go to a law school in a different
state for which they will pay for
b. Supreme court says this violates separate but equal
2. Sweatt v. Painter (1950)
a. Black man tries to get into University of Texas law school,
but the school says they will make a separate school for
only black students
iii.
iv.
v.
vi.
vii.
b. Supreme court says this is a violation of separate, but equal
as the new school will not have the same prestige or
renowned nature of the University of Texas
3. McLaurin v. OSU Regents (1950)
a. Black student applied to Oklahoma State for a graduate
degree in education, and although he is admitted he is
forced to sit in an isolated part of the class and eat lunch
alone
b. Supreme Court says this violates the equal protection
clause
Brown v. Board I: Plessy is no longer good law, equal protection prohibits
discrimination
1. Unanimous decision in which the court said that separate but equal
violates the equal protection clause of the 14th amendment
2. Used lots of social science to show that separate but equal are
inherently unequal and violate the 14th amendment
3. States varied greatly on their interpretation of brown
Bolling v. Sharpe
1. Essentially the same as Brown, but took place in DC so the 14th did
not really apply (DC is a federal jurisdiction is under 5th
amendment and not 14th)
2. Court uses the reverse incorporation doctrine to say that the
“liberty” includes the 14th amendment within the 5th amendment
a. Says that it is unthinkable that a lesser duty would fall on
the federal government
b. Classifications on race are seen to require particular care
Brown v. Board II
1. Dealt with how to implement the remedy of Brown I
2. Court left the decision to the lower courts, but stressed “all
deliberate speed”
3. Did not really help much as the situation did not really changed
until congress altered the conditions are funding
Loving v. Virginia
1. Background: Mix raced couple married in DC, then went to
Virginia where they were charged with violating the state’s statute
against inter-race marriages, and then sentenced to jail
2. Virginia argues symmetry in laws, therefore no discrimination
3. Court says that the Virginia law violated due process clause of the
14th amendment
4. Says that strict scrutiny is required for laws that talk about race
a. Must show a compelling state interest
b. Law must be narrowly tailored to reach the effect
5. Court says Virginia did not meet the standard in this case
6. Court says there was a violation of the equal protection and due
process clause
Palmore v. Sidoti: Adoption Case
1. Child removed from family’s care because of ethnic concerns
2. Court holds that it is not acceptable to look at society’s
considerations when making decisions (goes against Plessy)
3. Never proper for the law to take account of prejudice
d. Equal Protection, Disproportionate Impact and Affirmative Action
i. Washington v. Davis
1. Background: Police test that black officers claimed discriminated
against black people, court says these procedures did not violate
the Equal Protection Clause
2. Test is the same for all candidates
3. Court says the test needs both
a. Discriminatory intent
b. Disproportionate impact (to be considered invalid)
4. At the time there was evidence that DC was actively trying to get
more Black officers
5. Dissent (Brennan):
a. Wants the burden to shift to the police and them to show a
bona-fide reason for the test
ii. Taxman v. Piscatamy: Hypo about 2 identical teachers, but one is kept
solely because she is black
iii. Regents of California v. Bakke:
1. Bakke applied to the UC Davis medical school and challenged his
denial saying that, but for affirmative action he would have been
admitted
2. UC Davis has a quota in place to reverse seats for minorities
3. Separate opinions in Bakke:
a. Stevens: Title VI prohibits race-conscious admissions
b. Brennan: Lower Scrutiny for race-conscious admissions
c. Powell: Race conscious admissions subject to strict
scrutiny, some diversity programs may withstand scrutiny
(accepts that “academic diversity” but UC Davis is not
fulfilling the narrowly tailored requirement)
iv. Intro to Affirmative Action
1. Quotas are not allowed, you must use a holistic approach
v. Grutter v. Bollinger
1. Main takeaway:
a. Courts should defer to judgment of those who are in the
best position
b. Wanting a diverse class is seen as a compelling state
interest
c. Past discrimination is not a compelling interest
2. Background: Grutter applied for admissions into UM and was
denied, Grutter argued that the racial preferences violated equal
protection clause of the 14th amendment
3. O’Connor Majority:
a. Strict scrutiny must be applied
b. Accepts Powell position as diversity for diversity
c. Says that there is a compelling interest in racial diversity
for education benefits
d. Says that UM looks like the Harvard plan (holistic
approach)
i. Program in Gratz was unconstitutional
e. Government has to support argument and periodically
renew that determination
4. Thomas Dissent:
a. Skepticism at the educational benefits of a diverse class
i. Court should examine this and not just believe UM
b. Does not believe that UM has a need to be an elite school
c. Argues there are race-neutral alternatives that UM can use
to achieve their goals
e. Rational Basis Scrutiny, Intermediate Scrutiny & Sex Discrimination
i. General rule of “rational basis”: Lenient standard
1. Railway Express (1949)
a. Railway express sold ad space on their trucks, but the NY
legislature passed a lw prohibiting ads on trucks are
prohibited unless the person who placed the ad owns the
actual truck using the justification of traffic safety
b. Railway express argued the law made no sense as you
could still have ads on the trucks and therefore the safety
concern does not really work
c. Court defers to the judgement of the legislature and
upholds the law
2. Williamson v. Lee Optical (1955)
a. Law prohibited anyone other than a licensed eye doctor
from selling glasses, no real factual basis for prohibition
and most likely basis was lobbying
b. Supreme court says the statute is fine as all that is required
is an articulated rational basis
ii. Equal Protection & Sex Based Discrimination: Intermediate Standard
1. Grosaert v. Cleary (1948)
a. State law against females saying they could not work at a
bar unless their husband or family member was bartender
b. Case says that a rational basis is to be used for sex-based
discrimination
c. Majority (Frankfurter)
i. Says it would be constitutionally permissible for the
state to have a blanket ban on women working at
bars
ii. Defers to the judgment of the state
iii. Implies that health, safety and moral concerns
justify the police power
d. Dissent (Rutledge)
i. Law does not make sense as the law does not really
ensure a man is at the bar with a woman (the law’s
purpose)
2. Frontiero v. Richardson (1973)
a. Case is proceeded by Reed v. Reed and court says the
rational in reed was insufficient
b. Challenge in the case is related to spousal benefits
i. Men automatically are given dependency status,
while women have to prove (justification being that
men are seen as being the “breadwinner”)
c. Court did not agree on standard
d. Brennan:
i. Strict standard of scrutiny should be used as there is
a history of discrimination, sex is irrelevant to the
government’s purpose, sex is immutable and highly
visible, and women have previously been denied
political participation (also the Equal rights
amendment shows that views are shifting)
ii. Air force test fails the test of strict scrutiny (mere
convenience does not withstand strict scrutiny)
e. Powell:
i. Court should not take an affirmative stance as the
ERA is about to be voted on and will give a much
clearer picture of a standard that should be applied
3. Craig v. Boren (1992) (resolves the scrutiny question for sex)
a. Different age requirements for a certain beer in Oklahoma
depending on your sex
b. Majority (Brennan):
i. Heightened level of scrutiny is needed
ii. Standard to use: Important government interest +
substantial relation to the advancement of these
objectives
iii. Court disagrees with Oklahoma’s justification of
traffic safety, says that this is an important interest,
but it is not substantially related
c. Dissent (Rehnquist)
i. Court uses a standard of scrutiny that seemingly
comes from nowhere
ii. Court should not apply a higher standard as the law
targets men and not women
iii. Beyond Sex and Race
1. City of Cleburne v. Cleburne Living Center
a. Wanted to create a group home in Texas, but permit was
denied
b. Majority (White):
iv.
v.
vi.
vii.
i. Says how the purposes of different scrutiny
standards is that some groups cannot rely on the law
to protect law
ii. Says that there should be no heightened standards in
this case
iii. Laws benefitting the retarded suggest the group is
not politically powerless
iv. Numerous nuances within the group suggest there
are reasons for the group to be protected
v. Concerned that applying the heightened standard
here will result in heightened scrutiny for other
groups in similar circumstances
vi. Says that a rational basis should be used instead
vii. White respond’s to city’s justifications
1. General neighborhood preferences of not
wanting the home -> Not valid just because
neighborhood feels this way
2. Proximity Near School -> Not valid as there
are already retarded children within the
school
3. Proximity of being on a flood plain -> Does
not make sense as buildings like a hospital
are on the flood plain
4. Concern of overcrowding -> No connection
towards denying the permit
c. Dissent (Marshall):
i. The factors the city outlines would have survived
rational basis standard
ii. Court is applying heightened scrutiny but
pretending they are
Other suspect classifications
1. Age? No
2. Alienage? Yes (intermediate)
3. Illegitimacy? Yes (intermediate)
4. National Origin? Yes (strict)
5. Religion? Treated under free exercise and establishments clause
6. Sexual Orientation? Court has not determined
7. Wealth? No
A note on “fundamental interest” strand of the equal protection doctrine
1. Procreation (Skinner v. Oklahoma)
a. Also protected under substantive due process
2. Marriage (Zablocki)
a. Also protected under substantive due process
3. Voting (Harper v. Virginia)
Draw the tiered scrutiny framework
Scrutiny Table
viii.
Strict
Intermediate
Rational Basis
Applies to:
Suspect Classifications
Quasi-Suspect Classifications
(Race and National Origin) (Sex, Alienage, Illegitimacy)
Non-Suspect
Classifications
State interest
required:
Compelling
Important & Genuine
Only needs to
be legitimate
Law's Relation
Necessary & Narrowly
Tailored
Substantially Related
Rationally
Related
f. The Demise of the Privileges or Immunities Clause and the Emergence of
Substantive Due Process
i. Slaughter-House Cases
1. Louisiana Law made moving slaughter houses into a monopoly
outside NO
2. Slaughter House workers argued a violation of the 14th amendment
3. Privileges and Immunities
a. Found in both the 14th amendment and in Article 4 (created
to ensure you did not suffer discrimination from being from
out of state)
4. Cortfield v. Coyrell: P+I only applies to fundamental rights
5. Miller:
a. 2 types of citizenship (US & State) and the privileges only
applies to US citizenship
i. Very limited subset of rights
ii. Do not want to upset the balance of federalism
b. Equal protection clause is not meant to stretch outside the
narrow bounds of recently freed slaves
c. Says no property is being denied for the butchers
6. Dissent:
a. Upholds the challenge under due process
b. Should be able to judge the reasonableness of the
legislature
ii. Buck v. Bell
1. Virginia law passed an act requiring a sterilization of certain
people, Buck argued the statute violated the due process of law and
equal protection of laws as protected by the 14th amendment
2. Holmes:
a. Says the law is fine as there are processes in place to ensure
proper procedure
b. Disregards equal protection argument as legislature has
discretion in the passing of laws
c. Substantively, the law is fine as there is a legitimate
government interest
3. Shows the different ways to protect rights
a. Procedure, Equality, Substantive Due Process
iii. Lochner v. New York (1905)
1. Law limiting the hours that people can work, owner of a bakery
said this violated 14th amendment right to liberty
2. Majority says the law is invalid
a. Says there are no health concerns in the case and by
allowing the case it will lead to a slippery slope for similar
rulings for other professions
3. Dissent (Harlan)
a. Due process can be limited if using the proper police power
b. Majority is being too strict and should defer to the
judgment of the legislature
4. Dissent (Holmes)
a. Does not agree with the seemingly Laissez-Fair approach
iv. Note on West Coast and the Interring of Lochner
v. Court Packing plan defeated, but signaled a switch in the court’s doctrinal
approach
g. The Reemergence of Substantive Due Process
i. Griswold v. Connecticut (1965)
1. Law in Connecticut that prevents the use of contraceptives
2. Majority (Douglas)
a. Court is not going to follow Lochner
b. Rights of Bill of Rights have “penumbras” (outer layers)
that allow the actual rights to have force
i. Example is NAACP v. Alabama (freedom of
association from freedom of speech)
c. Finds the right to privacy from the 1st, 3rd, 4th, 5th, and 9th
amendments (essentially have to read the “values” behind
these amendments
3. Concurrence (Goldberg)
a. Focus should be on the 9th amendment as it shows that the
framers knew there were additional rights that were not
enumerated
b. Rights that exist from the 9th amendment are only rights
that are “fundamental” and must be supported by history
and tradition (this distinction is narrow because of
federalism and separation of powers)
4. Harlan
a. Use the due process clause, not the 9th amendment
i. What matters is whether there is something
“fundamental”
5. Dissent (Black)
a. Constitution contains no right to privacy and the 9th
amendment should not be used to expand federal power as
it is expressly meant to limit the federal government
b. Responses to Black:
i. Concerns of the preferences of judges is not unique
to the issue at hand (happens in all walks of law)
ii. Constitution that is strictly limited to the text is not
enough in a modern world
ii. Eisenstadt v. Baird (1972): Affirmation of Griswold
1. Non-married couples have right to contraceptives
iii. Roe v. Wade
1. Court choose to relax the mootness requirement here, because if
they did not they would not be able to rule on anything
2. Legal question is whether the right to privacy covers abortion
3. Definition of the right
a. Can argue that abortion affects large amount of people so it
is not “private”
4. Competing state interests include the health of the mother and the
potential life of the fetus (strict scrutiny is appropriate here)
5. Court says they are not going to deliberate on when life begins,
and they are also not going to defer to state’s judgment on when
life begins
6. Framework for the trimesters
a. 1. No concerns here
b. 2. Concerns for the health of the mother
c. 3. State’s interest in potential life becomes compelling
7. The court reserves the exception to preserve the life of the mother
8. Dissent (White):
a. Right to privacy does not extend to abortion
9. Dissent (Rehnquist):
a. No longstanding condition showing abortion is welcomed
in the US, court is creating their own right
h. Substantive Due Process, Abortion, and Stare Decisis
i. Planned Parenthood v. Casey
1. Background: After Roe, abortion becomes a highly politicized
issue
2. 5 provisions of a Pennsylvania law are being challenged, but the
court upholds Roe
3. Court says that due process + Stare Decisis is on their side
4. Lists 4 factors for stare decisis considerations
a. Workability
i. Roe is seen to be workable
b. Reliance
i. Reliance is seen through the broader societal
reliance
c. Development of a new doctrine
i. Doctrinal basis of Roe (Griswold) is fine and has
been built upon
d. Facts
i. New Medical technology does not affect the core
holding of Roe
5. Court brings up the cases of Brown and Lochner to show cases in
which Stare Decisis should have been overruled, and uses these
cases as distinguishable from Roe
6. Majority lists the additional factor of not crumbling to political
pressure on divisive issues as it would show legitimacy
a. Dissent has a problem here
7. Majority is not going to adhere to trimester framework, point of
viability instead
8. States can emphasize the preference for birth, so long as they do
not create “substantial obstacle”
9. Court overrules Akron and Thornton cases
10. Spousal notification requirement is not seen as an undue burden
a. Important to note that it does not matter how small of a
percentage of the population is affected, only how the
affected population is affected
11. Dissent (Rehnquist):
a. First question for stare decisis is if the case was originally
decided wrongly
b. Then you should use rational basis test
12. Scalia:
a. Court should not try to solve this controversy as it will
continue either way
i. Substantive Due Process and Limiting Principles
i. Washington v. Glucksberg
1. Right to die
2. Majority (Rehnquist)
a. How to find a fundamental right
i. Is the right deeply rooted in tradition?
ii. Have the plaintiffs carefully described the right?
b. Petitioners are using the Cruzan case to frame their right,
Rehnquist distinguished Cruzan
c. Says that with rational basis, the law here is fine
3. Concurrence (Souter)
a. Agrees with decisions, but says the right framework is from
Poe v. Ullman
b. Believes that narrowly tailored is not required as rights can
evolve through common law
ii. Note on Bowers v. Hardwick
1. Challenge on statute against Sodomy
2. Majority (White):
a. Looks to tradition and says there is not a base there
b. Applies rational basis test and says state’s concern is
enough
3. Dissent (Blackmun)
a. Argues that extrapolation of individual autonomy came be
found from earlier cases
b. You do not need tradition, just need to have a fundamental
right from the concept of individual liberty
iii. Lawrence v. Texas
1. Very similar to the Bowers case, only real difference is the law in
this case only applies to gay couples
2. Court consciously does not limit this to an equal protection claim
as they believe it would allow these anti-gay laws to stand
3. Question of Stare Decisis
a. Court does not address workability (statute largely believed
to be workable)
b. Change in doctrine? 2 cases that show the doctrine has
changed
i. Scalia argues 2 cases that show the opposite
c. Reliance? Kennedy says no reliance on the laws here
i. Scalia argues reliance in all the laws that have been
passed
d. Facts? Kennedy says the development of progressive
attitudes around the issue is a change
e. Kennedy lists the wrongly decided nature of Bowers is a
fundamental Factor
4. Scalia emphasizes how this is a fundamental issue and the court is
seemingly going away from their framework of being steadfast on
fundamental issues
5. Kennedy strikes down the laws
6. Kennedy cares about the last 50 years, does not care about deeply
rooted historical practice
7. Kennedy’s standard of review is ambiguous, Scalia says it is
rational basis
8. Scalia lists a bunch of controversial things he says is going to
become legal