Constitution constrains the governing authority and limits its power
 Laws are meant to constrain the conduct of the people.
 In constitutional law it is about restraints on the government
 It gives government authority but also puts restraints on the powers of the government
 Examples of Limitations: Separation of powers (divided authority among the branches), Bill of
Rights (ensures certain rights and liberties are protected from any government), Federalism (2
governments that are in separate spheres but overlap and work together, division of authority
that is American invention)
Magna Carta - 13th century
 Didn’t protect everybody, only the barons, lords and noblemen trying to restrain the king
 Contained ideas of: Proportional punishment, separation of church and state (king wasn’t going to
decide things for the church), parliament has mostly repealed magna carta except religion aspect
and the idea of due process (39) and very early ideas of venue and court procedures
 Predecessor to the idea of due process
 Began idea that there could be restrictions on the king
 Didn’t create right to jury, but provisions in it made juries become more popular ("lawful
judgement of his peers")
English Bill of Rights
 Parliament got freedom of speech
 People could now petition the king and bring their grievances to the government, precursor to
idea of free speech
 Right to bear arms for Protestants
 Right to free elections
 No cruel and unusual punishment (also in our Bill of Rights, we took some parts word for word)
 Considered a parliamentary act and can be changed by the parliament, not made by the people,
gave broader rights but was still parliament restraining the king
John Locke 1690 - Two Treatises of Government
State of nature- no governments, all people were not to, unless it be to do justice on an offender, take
away, or impair the life, or what tends to
the preservation of the life, the liberty, health, limb, or goods of another.
 No limitations on how people interact
 State of liberty but not a state of license
 Problem was everybody could enforce the law, but it could be unfair with respect to punishment,
concern was that in state of nature everyone could punish everyone else so punishment wouldn’t
be magnanimous
People then created impartial governing bodies, form a political community
To leave state of nature and form political community, they had to be willing and give their consent
(consent of the governed necessary to form a political community)
Sovereign authority came from people, government doesn't come from kings or divine right, but from
the people.
Montesquieu
Legislative, executive and judicial
 thought legislative should be the king



Thought legislature should turn over and there should be limits on terms, elections so people
could decide, gives hope against corruption
Wanted enforcement of laws separate from people making laws and people deciding punishments
Influenced our separation of powers
United States -Revolutionary Era - State Constitutions
State constitutions actually came first, before US constitution
 Virginia Declaration of Rights was in June 1776, before we officially declared our independence
 Originally went against Montesquieu and gave power to state legislature, they did what was in the
short term interest and whatever people wanted to benefit them, trusted the people and
economy was bad
 Legislature had the power, they elected governor who would serve terms of two years
 Legislative power led to abuses
 1780s states experimented with better from of separation of powers
 Stared us on idea that we were going to have declarations of rights (bill of rights) that were
incorporated to constitution to protect peoples rights
 States bill of rights is in the beginning of constitution, but federal government has rights and
amendments at the end
 State constitution bill of rights were more like mission statement, principles we "ought" to
observe, did not sound like binding restraints, more philosophical
 Thought that civic virtue would take care of it and people would do the right thing and follow
these principles, did not work
First attempt at a charter to govern the states- Articles of Confederation 1781
 National level, created a congress that could: declare war, deal with treaties, conduct foreign
affairs, served as highest court to states, coined and borrowed money
 Didn’t have a lot of the powers we think of, no real authoritative president (only ceremonial
president of congress)
 No power of federal government to enforce the law at all, no ability of federal government to
make the states or the people do anything
 No power to tax, congress could only ask the states for money to pay off debts from revolutionary
war
Federalist papers- Madison, Hamilton and Jay
Washington, Franklin
Called together great convention to amend the Articles of Confederation
 Required unanimous consent to amend
 Madison decided to start over
Philadelphia convention (now constitutional convention) met in summer 1787
 Argued over slavery, 3/5ths compromise for purposes of representation and taxation arguments
 Did not use the word slave in constitution, Madison thought it would die out
 Compromised so the South would join
 Implications like Jefferson won presidential election because Virginia had 3/5ths
 Had to argue about power of states and congress, beginning of federalism
 Concern over representation and size of states, small states wanted to keep it one state one vote,
big states wanted more votes
 Also established the Electoral College for selection of president based on idea that people would
just vote on electors, not president. Changed since then
Constitution
Article 1: creates the legislative branch and structure.
-section 7: how bill becomes a law
-section 8: powers of congress, state v. federal
-section 9: what congress cant do
-section 10: what states cant do
Article 2: executive, says what the president can and cant do
-trusted Washington to figure it out
Article 3: judicial
Doesn’t say we have separate powers, but lays out the powers and checks and balances of the powers
of the branches
Article 4: how states interact with each other
Article 5: how the constitution can be amended
 2/3rds of both houses or 2/3rds of the states can propose or ask for a convention
 Ratified by 3/4ths of the states (legislatures or state convention, whoever proposes decides)
Article 6: Supremacy clause, supreme over state government when acting in its powers under the
constitution
Bill of Rights
1st amendment: freedoms
2nd: Right to bear arms
3rd: quartering soldiers in time of peace
4th: searches and seizures (crim procedures)
5th: life liberty or property (part crim and part civil)
6th: (criminal)
7th: jury trials, civil lawsuits
8th: excessive bail
9th: enumeration of constitution cannot restrain the people
10th: if federal gov doesn’t control, then its up to states
11th: state sovereign immunity
12th: voting for president
13, 14, 15: abolished slavery, started ensuring political rights for former slaves
16th: income taxes
17th: directly elect senators
19th: right to vote based on gender
21st: repealed prohibition
Modalities of Constitutional interpretation: with ex. Of birthright citizenship, GO IN ORDER IF
POSSIBLE, MOST IMPORTANT AT THE TOP
1. Text: citizenship clause- 14th amendment says all persons born or naturalized in the US AND
subject to the jurisdiction thereof to be a citizen.
 Jurisdiction is usually defined as government power over an individual
 Text is where you should always start, but is not always determinative
2. Structure: how the constitution is organized, what text shows but doesn’t say. Ex. Is idea of
separation of powers is implied by the structure of the constitutional text dividing the powers into
the 3 articles.
 2 arguments: 1- being where provisions are and how they're organized/placed 2- comparison of
the provisions and phrases/words of the constitution (ex. definition of jurisdiction in birthright
citizenship as compared to definition of every other use of jurisdiction)
3. Historical:
 look at historical arguments and the original meaning(original intent) of the text, how it would
have been interpreted/understood at the time.
 Look at what is happening at the time and what the writers are reacting to, what was the purpose
of the provision in light of the events.
 Look at the traditions
4. Doctrinal: doctrine=precedent, case law of the supreme court.
5. Prudential: practical effects
6. Ethical: moral implications, strong ethical arguments made by shared national commitments (like
"all men are created equal") ex. Of death penalty for people under 18
Originalist theory looks at the original intent and purpose, emphasizing different modes of
interpretation like text and history
Judicial Review: idea that the supreme court can review the constitutionality of legislative and executive
actions
For supreme court to hear a case, judicial power is limited to "case or controversy"
 Judicial limits on their separation of powers, keeps the judiciary in its appropriate role, which is
cases and controversies (lawsuits). Someone who has been harmed must be the one to sue for the
supreme court to be involved
 Washington's request for advice from supreme court was denied based on structural argument in
constitution limiting his requests to the executive branch.
 Hayburns case, supreme court couldn’t rule
 Chisholm v. Georgia: individual tries to sue state, Georgie argued they were sovereign and
couldn’t be sued. Supreme court says no, the people are the sovereigns not the states, so
individuals can sue a state.
 Right after Chisholm, the people created the 11th amendment to the constitution, which gives
states sovereign immunity.
Marbury v. Madison - written by Marshall
Marbury originally filed suit in the Supreme Court against Secretary of State, Madison, for a writ of
mandamus to get his commission, seeking original jurisdiction.
Held that Marbury couldn’t win because the court exercising original jurisdiction here would violate the
constitution.

By limiting the court here, Marshall increased the power of the court over all by creating judicial
review
1st issue: Marshall makes textual argument that once commission is signed by the president, its done.
The sign and seal is all that is required based on the text of the constitution.
Jefferson was arguing it was like a deed and had to be delivered.
 Marshall knew it was signed and sealed because he was the one who did it
Marshall says Marbury had rights to commission but no jurisdiction.
2nd issue: since he had a right, did he also have a remedy?
Issue about if he can sue the secretary of state who is working under order of the president, so can he
have remedy against something the president has done?
Marshall determines he can tell president what to do, can provide remedy to the harmed if it’s the right
kind of case
Political question doctrine foundation, says this is not political question because here he has individual
right
3rd Issue: whether he is entitled to the remedy for which he applies
Marshall selectively quoted Judiciary Act(giving court mandamus authority over original jurisdiction
when the act says appellate jurisdiction) to create constitutional problem
Then he has to consider whether they can exercise original jurisdiction here under the constitution
 Pg 50, constitution does not allow original jurisdiction, congress cannot expand the jurisdiction
of the federal courts beyond the limits of article 3. Can restrict jurisdiction but cannot expand it.
 Original jurisdiction in constitution must be over only states as a party, or ambassadors. (pg 50)
Now issue is can the court determine something is unconstitutional
 Marshall decides constitution is a set of rules and regulations that must be followed, because
writing it would be a vain attempt otherwise. (Constitution is regulatory)
 Marshall determines that judges have this authority from the constitution as the courts are meant
to interpret the law, that’s the role of the judicial branch (pg 52)
Marbury v. Madison
Judiciary can compel executive action
 Exceptions for discretionary acts of the executive. (political question doctrine-certain types of
cases judiciary wont resolve because they believe it's for the other branches of government)
SMJ of federal courts cannot exceed Article III limitations
Judicial review with respect to legislative acts and their constitutionality
 Constitution is regulatory that establishes limits that need to be abided by. Judiciary can make
that determination because its their job to interpret the law and whether it comports with the
constitution
Supremacy clause- supreme law of the land should be the constitution and the laws made pursuant
thereto
Martin v. Hunter's Lessee
Virginia court of appeals refused to obey the Supreme Courts mandate
The court looks to Article III of the constitution


Means that it must include appellate jurisdiction over state courts otherwise Supreme Court
would have no appellate jurisdiction at all (pg 58)
Wanted uniformity and to protect against possible state court prejudices
Eustis v. Bolles
Adequate and independent state ground doctrine- if state doctrine relies on adequate and independent
state grounds,
 Can supreme court come to a different outcome on review, could federal issue be outcome
determinative
Michigan v. Long
Could have left out the federal constitution and based to solely on Michigan constitution
Court needs state independent interpretation of their own law
Interpretation presumed not independent when intermixed (state and federal law interpretation) unless
there is a plain statement that points to state law being independent
Congressional power to limit jurisdiction in Article III S2
Congress able to make "exceptions and regulations"
ONLY ONE MULTIPLE CHOICE on the next two cases
Ex Parte McCardle
Congress repeals and limits supreme courts jurisdiction to prevent the court from hearing this case
Supreme Court says this is allowed because Congress has the right to limit and regulate them, and there
was another avenue for this to be heard
 Relies on Judiciary Act of 1789
 Congress was only taking away a new method/avenue that had recently been given to Supreme
Court
 Said they can't consider the motives of congress when deciding the jurisdiction of the court
United States v. Klein
Supreme Court says that Congress cannot control other branches (intrude on presidents pardon power)
by creating law disguised as being about jurisdiction to control appellate decisions
 Congress cannot increase its power by decreasing that of the other branches
 Cant invade separation of powers
CHAPTER 3- ESSAY QUESTION
Justiciability Doctrines - part of SMJ - defenses gov would have
Five doctrines on separation of powers
1. Prohibition on advisory opinions
2. Standing
3. Ripeness
4. Mootness
5. Political Question
Prohibition on advisory opinionsMuskrat v. United States
There was really no claim between the 4 individuals and the United States, there could be no remedy
from suing the United States
Case defined as a suit instituted according to regular course of judicial procedure
Purpose of the suit was concerning constitutionality, but was essentially a request of advice, advisory
opinion- suit was set up for the supreme court so they could see if it was constitutional
Can't do advisory opinions
Requirements NOT to be an advisory opinion:
1. Actual dispute between adverse litigants
2. Substantial likelihood that a decision for a claimant would have some effect
If these are both met, they can hear the case.
If they are not, it is an advisory opinion and is not allowed to be heard
JUSTICIABILITY DOCTRINE
Standing- want to ensure that the right party is bringing the suit
Massachusetts v. Mellon
No injury for Massachusetts
Supreme Court said this was not a sufficient direct injury as it was only abstract/ideological
Not claiming that the tax is unconstitutional, just that how the tax is being spent is wrong
Prudential concern that if we allow this kind of harm, everyone would have standing to sue for every
government program
Constitutional elements to standing - congress cannot override these
1. Injury in fact
a. Type of injury: has to be concrete(real, recognized by law, not abstract/ideological of
political power) AND particularized (affecting individual, you suffered it)
b. Timing of the injury: has to be actual (already happened) OR imminent
2. Causation (Traceability)- can the injury be fairly traced to the defendant or is it the independent
actions of a third party
3. Redressability
Lujan v. Defenders of Wildlife
Arguments:
 Affidavits of 2 members
 Ecosystem harms
 Endangered species act provided standing to any person to file suit
+ Court says there is no "actual or imminent" injury because the members had no actual plans or intent
to return.
The harm was speculative and not actual because the act had not had any impact yet
+The ecosystems harm argument was rejected because it was not concrete harm to the individuals,
must be shown that harm is real, the kind of injury that has been recognized by the law
+Concern that judiciary would be expanding its sphere into that of the executive outside of its Article III
limits, where there is a case or controversy where someone is injured
Congress can create rights by statutes that allow people to sue, need entitlement to sue
Hollingsworth v. Perry
It was not the people's right to assert the states interest and challenge the constitutional validity of
generally applicable state law, that is the job for the executive. California state law gave proponents the
right to defend proposition 8 in state law.
Summers v. Earth Island Institute
Majority said the harm was not imminent enough, there was no definitive on where or when a fire could
occur.
Majority wants a definitive about to happen, not just that its likely to happen
Allen v. Wright
Private schools were racially discriminating, plaintiffs sue IRS for their children not getting integrated
experience at public school because private schools are discriminatory. They sued IRS because they were
giving tax exempt status to private schools even though they were discriminating and allowing the
segregation.
 Not easy to trace liability back to the IRS
 Injury that their claiming (no integration in public schools) is an injury in fact, but they cannot
trace it back to the IRS, takes assumptions and a lot of steps in order to trace the injury to the
defendant frim the IRS
Massachusetts v. EPA
Claim harm to their coastal property interest because of global warming and the EPAs failure to regulate
greenhouse gases. Claiming direct injury to their state sovereign interest.
 Problem with redressability
Flast v. Cohen - taxpayer standing, MULTIPLE CHOICE Q
Plaintiffs(taxpayers) had standing if:
1. There is logical link between the tax and spending by Congress
2. Taxpayer must claim the congress is spending money conflicting the Establishment Clause
Very limited, has to be taxed and spent AND establishment clause, only example is religion (violation of
your religious conscious, the only ideological exception)
Court recognizes this exception for historical reasons, constitutionally the government cannot take
taxpayer money and give it to a church or toward any religion
Prudential elements to standing - congress can override these, they aren't constitutional
NO Zone of interest and generalized grievances anymore
1. Prohibition on Third-party standing: the injury suffered must be yours and in your interest, you
can only assert your rights not someone else's who was affected by the same thing.
 Exception factors: relationship of the plaintiff to the third party's rights (when peoples interests
are aligned), and obstacles to the third party bringing their own claim (when there are obstacles)
Singleton v. Wulff
Doctors want to assert their patients' rights to have an abortion that is not "medically indicated," so that
they will get paid to perform the abortions.
Doctors allowed to assert the patients' rights because of the obstacles (women's privacy and time limits)
and there is no conflict of interest between the doctors and patients, interests are totally aligned
Individual Rights - constitutionally protected and no gov can take them away from you
 Criminal rights, due process, etc
 Constitutional text: Articles I-VII had very few individual rights:
o Art I Sec 9: applies to congress, cant suspend habeas corpus, bill of attainder (legislature
trial)
o Art I Sec 10: things states can't do, can't impart the obligation of contracts
o Art III: provisions about criminal jury trials, rules on committing treason, venue
o Art VI: no religious test for office
 The fact that there were not many individual rights is what led to the Bill of Rights (1791)
Governmental power
-Federalism
-Separation of powers
Calder v. Bull
Ex post facto only applies to criminal laws
Supreme Court can't rule on state Issue of the state constitution
Justices argue about whether it is all based on constitutional text or can we co outside the writing
 Chase says act of legislature that violates the first principles of natural law (Lockean theory) even if
it's not written down, it can be held unconstitutional. Natural law can supplement the
constitutional text. Chase is living constitutionalist.
 Iredell disagrees. Concerned that natural law rights are not enumerated and cannot easily be
decided upon. Says he believes in natural law but that it's not something the court can rule on,
they must focus on the text. Iredell is textualist. Iredell prevails in this case because Supreme
Court doesn’t justify decisions through natural law alone.
Barron v. Mayor and City Council of Baltimore
P sues to recover damages to his wharf
Wanted to go to Supreme Court so argued federal question, saying it violated 5th Amendment
Held that the 5th amendment does not limit state and local legislation
Constitution meant to limit federal gov, not state gov with their own constitutions
Dred Scott v. Sandford
To sue in federal court, Dred Scott would have to be a citizen of the US, doesn’t matter if he was citizen
of a state
Argued that he was a slave and not a citizen
Supreme Court says they can never become a citizen
 Court says no jurisdiction, he is not a citizen, that slaves are property, conflicting "all men are
created equal" in declaration of independence
 Talk about provisions in constitution that indicate slaves are property and not citizens
o Importation of slaves clause
o Fugitive slave clause - if slave escapes, person who owns them could seize them themselves
or have them returned
 Constitution was not protecting slaves
 Court did not care about the shifting public opinion of slaves and the want for constitutional
change because the people must manifest an amendment to the constitution
 Rendered the Missouri compromise unconstitutional


Dred Scott is saying law is unreasonable because it is taking away your property and outside of the
authority of gov to do, example of substantive due process case
Dissent:
Reconstruction Amendments - 13,14,15 are the kind of amendments that were missing from the Barron
case, these apply to the states
14th amendment most important in securing individual rights, ensures that the states are bound
13th amendment is only one based on private conduct, not government conduct. "Neither slavery or
involuntary servitude" (freed slaves)
 Still black codes that repressed "free" slaves and kept them in a kind of slavery
 Congress enacted Civil Rights Act, 14th amendment constructed with first clause(citizenship)
meant to overrule Dred Scott, also the privileges OR immunities clause(doesn’t mean very much
today, because Slaughterhouse cases), due process clause(important today), and equal protection
clause (important today)
Art IV of the constitution there is interstate privileges AND immunities clause that this Art is all about
interstate relations
Slaughterhouse cases
Compromise between two sides during Reconstruction
-neither side thinks it is right today
Purpose of the law was supposed to be for public health
Certain rights that exist to us because of the federal gov
This case says you have 2 citizenships, the state and US citizenships
Wanted to limit the authority of the federal government, took very narrow view of privileges or
immunities clause
Protection of privileges and immunities only meant for citizens of the United States
Plessy v. Ferguson
Claimed the segregation law violated the 13th amendment and 14th amendment on equal protection
 Not implied that one is inferior to the other, they're just saying that the cars are separate
 Limited equal protection clause to political rights, not social rights
 Reasonableness limitation, substantive due process
14th Amendment
Equal Protection of law- Government discrimination based on race with respect to political rights
 Supreme Court said as long as things were equal they could be separate, not worried about the
social rights, only political
Government would regulate rates on grain storage
 This was challenged by alleged violation of "life, liberty or property without due process of
law(which was thought to be a procedural guarantee)"

Court said that they were not violating their property, because the grain was "clothed in the public
interest" and government could therefore regulate it
Add that due process of law is not just
 procedural guarantee (notice and opportunity to be heard)
 there is also substantive (includes economic liberties- freedom of contract, pursue an occ.)
o We don’t do it on matters of substance/economic liberties anymore except in procedural
 Government had to have a good reasonable reason to regulate
Lochner v. New York
Bakery owner violating statute limiting work hours of employees
Argument that the government are interfering with the right to contract and liberty to employee and be
employed
 Sometimes the state can still have a good reason to interfere with your contract or regulate
 For the government to regulate they would have to prove a concern with health, safety, general
welfare and morals of the public
 "Direct and substantial" test: If it wasn’t something that had a direct and substantial relationship
to the health, safety, general welfare and morals of the public then it was an invalid interference
with the liberty of contract
 In this case, decided this is personal liberty and has no relation concern to public welfare
Dissent:
 Holmes: proposed different test
o Rational basis testo If its rational, we will uphold it, go with the legislature
o Says it is not the role of the court to use particular economic theory
 Harlan accepted the "direct and substantial" test
o But cites evidence that bakers are effected health wise that is a concern to public health
o Disagrees with the conclusion that it is not a concern
----------------------------------------------------------------------------Barron said Bill of Rights only applied to federal gov unless language said otherwise about the states
Expanding the idea of liberty in other directions
1. Economic liberties: freedom of contracts, pursue on occ.
2. Incorporation: bill of rights can be applied to the states on the liberties included in the bill of rights
a. Originally only fundamental and historical rights, kept adding protections
3. Non-textual (not in constitution) autonomy rights: no just economic liberties, but other types
a. Meyer v. Nebraska rights and liberties>>>
b. Don’t have right to get it from the government, but you have to the right to seek it and
obtain it on your own
Meyer v. Nebraska
Teacher violated Nebraska statute by teaching German to student who had not passed 8th grade
 Amid WWI
 Court said this interfered with several liberties
o Of parents to decide how to raise their children (still today)
o Of the child to obtain an education (gov can't take that away from you)
o Schoolteacher who spoke in German had a right to pursue his occupation


Liberty= basically ability to move around
o >>>More than that, "right of individual to contract, to engage in any common occupations of
life, acquire useful knowledge, to marry, establish a home and bring up children, to worship
God according to the dictates of his own conscience, and generally to enjoy those privileges
long recognized at common law as essential to the orderly pursuit and happiness by free
men.
o Economic liberties don’t still control but, The others stay today
Meyer still controls on procedural grounds
Nebbia v. New York
Court is saying that they don’t want to go against the legislature
Presume when reviewing a law that it is constitutional
 Presumption of constitutionality
West Coast Hotel
The end of Lochner cases, end of economic substance due process
Upheld amendment wage law for women and minors
 Apply rational basis test and presumption of constitutionality
 Say that presumption of constitutionality could fail in some cases
US v. Carolene Products Co.
Say that reviewing legislation for constitutionality should be more strict in some cases
 Maybe can't always trust the legislative process
 Need to look closer if legislation
1. Violated specific constitutional prohibition
2. Restricted political process that could otherwise repeal unwarrented legislation
3. OR resulted from "predjudice against discrete and insular minorites"
 OTHERWISE, use rational basis test
 Court creates dichotomy of preferred rights that need a higher level of scrutiny
 Other rights are not preferred and we use presumed constitutionality and trust the legislature
Williamson v. Lee Optical of Oklahoma
Opticians were upset about this law making people go to physicians to get eyeglasses
 Supreme Court upholds law because they should trust what the legislature decided on the basis of
public health, rational basis test - If people don’t like the law, they will get enough people and
change the legislature
 No real indication that they originally enacted this law for health reasons, just that that could have
been the reason
 Legislature doesn’t have to prove the "direct and substantial" relationship, as long as you can
create a possible reason that doesn’t seem "arbitrary and capricious" to a reasonable man, we
are going to presume it is constitutional and uphold it




At this point, the court is not going to change law unless it is egregious
Court shifts kind of from due process to equal protection
Begin expanding equal protection to fill the holes left when they left due process
Today both equal protection and due process can overlap
Skinner v. Oklahoma
Eugenics movement- Act that sterilized "habitual criminals" - Habitual Criminal Sterilization Act
Says law was unconstitutional because it was infringing on his due process, it was cruel and unusual
punishment, ex post facto, and equal protection
 Court says that it was equal protection, infringes on a fundamental right, expanding equal
protection
o Opens up discrimination based on not just race, but on who gets to exercise a fundamental
right
o Can now say there are certain fundamental rights
o Limits equal protection where you are classifying people(like here, larceners discriminated
against more than embezzlers) and treating them differently, and that the treatment is
infringing on their fundamental rights, you can apply strict scrutiny
 In this case, there was distinction between certain crimes and their punishments, disparity
between punishment
 If people are being treated differently (ex. larceners vs. embezzlers), you must prove they are
different
 Today this is both a due process and equal protection case
Korematsu v. United States
FDR signed executive order for security measures against those of Japanese descent, internment camps
During WWII, descendants of other races (German, Italian) did not have rules, exclusions, and camps like
this
Korematsu refused to go to the camp and was caught, argued he couldn’t be excluded from an area just
because of his ancestry due to equal protection
 Court says there is compelling governmental reason, to win the war and identify enemies to
ensure the safety of the country
 Now considered an embarrassing case of the Supreme Court, overruled since then
13 Amendment
 No slavery or individual servitude
14th Amendment
 Privileges or immunities of citizens of U.S. (Slaughterhouse)
o Equal Protection Clause
 Strict scrutiny
 Racial classification (Strauder, Korematsu, Brown)
 Discrimination regarding fundamental rights (Skinner)
 Rational Basis
 All other
o Due Process Clause- no person should be deprived of life, liberty, or property without due
process of law
 Incorporation (what rights are part of "liberty")
 Fundamental rights approach
 "Liberty" wasn’t all the bill of rights, only the fundamental rights where
neither liberty nor justice could exist (ex. Speech, religion, cruel or
unusual punishment) , but maybe not lesser rights like jury trial)
 Would have granted non-textual rights
 Total incorporation approach


Thought "liberty" meant all of the first 8 Amendments, a textual approach
to defining liberty.
 Would have granted NO non-textual rights
Selective incorporation approach
 This approach prevailed
 Fundamental from an American perspective
 almost incorporating every single one of the Bill of Rights, but they
did it on case-by-case basis
 excluding a few
 right to a grand jury indictment in the 5th
 right to a civil jury trial in the 7th (only applies in federal
court, not state unless otherwise stated in State
Constitutions)
 Rights that haven't ever been heard before Court
 3rd amendment right to quarter soldiers
 Excessive fine clause, Pending in supreme court
right now, likely to be passed and taken off of the
non-incorporated list
Railway Express Agency v. New York
Supreme Court says since this isn't racial classification or discrimination of fundamental right, this isn't
strict scrutiny, has to be a rational basis
Governmental interest in traffic distractions provides rational basis
Under rational basis this discrimination did not trigger heightened scrutiny under equal protection
clause
Brown v. Board of Education
NAACP started trying to dismantle "separate but equal" by starting with grad schools and law schools
and then went for public schools
Court held this case over a year to look at the history of separate but equal, Warren(well-liked liberal
republican) was appointed as chief justice and changed the previous 5-4 decision to a unanimous 9-0,
Frankfurter said this is first proof that god exists.
 Majority then rejects history's view of equal protection on issue of public schools, because public
education was so limited and new at the time of the clause's development
 Precedent had not resolved this issue, because it established they and to be equal and not
discriminating, here there was evidence it was equalized based on "tangible factors"
 Look at importance of public education as a function of state and local government
o Court says that the state isn't required to provide the education but when it does undertake
that responsibility, it has to do it in an equal way
 Thought the "intangible" factors were more important and that separate but equal created these
intangible harms to children and their education/development (sociological study of the colored
dolls vs. white dolls)
 "Separate educational facilities are inherently unequal. Therefore we hold that the P's are
deprived of the equal protection of the laws guaranteed by the 14th amendment "
 They limit this dismantling of separate but equal to the field of public education
Griswold v. Connecticut
Great structural argument by a total incorporationist, wanted the right of privacy to be in the text
 Establishes right of privacy
 Goes through Bill of Rights and finds rights that we could consider implied rights of privacy
 "zone of privacy created by several fundamental constitutional guarantees"
 The word privacy is not in the bill of rights, but it can be implied by the rights that are
enumerated
 Court says right of marital privacy is a fundamental right and can't be infringed upon by the
government
Concurrence:
 Goldberg says that the concept of liberty protects fundamental rights, but also is not confined to
the specific terms of the Bill of Rights, we can go outside of text and have non-textual rights
o Talks about how to determine if a right is fundamental, must look to the "traditions and
collective conscience of our people to determine whether a principle is so rooted there as to
be ranked as fundamental"
 Harlan agrees but is a fundamental rights person, believes this is a fundamental right under due
process of 14th amendment
 White agrees and talks about the Skinner case and strict scrutiny applied to fundamental rights
Dissent:
 Black says right of privacy is not real
o Thinks that since it is not in the constitution it is not a right
o Wants to follow the founder's intent to only change the rights by amending the constitution
o Not through a "natural justice" approach, thinks that the court is going back to Lochner
 Stewart says that the law of Connecticut is unwise but that since it doesn’t violate the constitution
it shouldn’t be restricted
Loving v. Virginia
Racial purity statutes adopted by states, Equal Protection and Due Process issues
 State argued that equal protection clause was applied because both races are being punished the
same
 Supreme Court rejects this because there is a racial classification in this case so it is under strict
scrutiny, "the fact of equal application does not immunize the state from the heavy burden of
justification which the 14th amendment has traditionally required of state statutes drawn
according to race"
 Supreme Court also argues Due Process issue, "Marriage is one of the basic civil rights of man,
fundamental to our very existence and survival." Since it is a fundamental right you get strict
scrutiny
Duncan v. Louisiana
Question whether or not to incorporate provision of bill of rights regarding jury trial in criminal cases
Dissent was fundamental right people (Harlan and Stewart) Looked at liberty more as fair system
Selective Incorporation Majority (White) said that it was a fundamental right from an American
Perspective
Total incorporation people (Black and Douglas) all concur since they have almost all the rights
Substantive Due Process
1. Define the liberty at stake
2. Is this liberty fundamental (or otherwise protected so that it receives heightened scrutiny)
a. Precedent?
b. History and traditions of our nation ("deeply rooted")?
c. Ethical values ("implicit in the concept of ordered liberty")?
a. Less legal, looks at current American perspective and values
3. Is there substantial infringement or impairment of the liberty at stake?
4. Apply the correct level of scrutiny
a. Strict Scrutiny:
a. Necessary/no other means/least restrictive means/narrowly tailored
b. to serve compelling government purpose
 If there's any other way to do it that doesn’t infringe on peoples freedoms as much
 Government has the burden of proving both elements
b. Rational Basis test
a. Has to be rationally related to legitimate government purpose
b. Burden on challenger to prove there is no legitimate government purpose and there is
no rational basis
c. Undue Burden test - abortion issues
a. Whether this law has the purpose of effect of placing an undue burden, which is a
substantial obstacle, to the woman from making her choice
b. Burden is balanced
d. Balancing:
a. government interest vs the individual interest
Substantive Due Process
1. Define the liberty at stake
2. Is this liberty fundamental (or otherwise protected so that it receives heightened scrutiny)
a. Precedent?
b. History and traditions of our nation ("deeply rooted")?
c. Ethical values ("implicit in the concept of ordered liberty")?
a. Less legal, looks at current American perspective and values
3. Is there substantial infringement or impairment of the liberty at stake?
4. Apply the correct level of scrutiny
a. Strict Scrutiny:
a. Necessary/no other means/least restrictive means/narrowly tailored
b. to serve compelling government purpose
 If there's any other way to do it that doesn’t infringe on peoples freedoms as much
 Government has the burden of proving both elements
b. Rational Basis test
a. Has to be rationally related to legitimate government purpose
b. Burden on challenger to prove there is no legitimate government purpose and there is
no rational basis
c. Undue Burden test - abortion issues
a. Whether this law has the purpose of effect of placing an undue burden, which is a
substantial obstacle, to the woman from making her choice
b. Burden is balanced
d. Balancing:
a. government interest vs the individual interest
Medical Autonomy
For example, the right to refuse medical treatment, government forced vaccination in response to
disease
1. bodily integrity would be the liberty at stake
2. It is fundamental, precedent in Jacobson v. Massachusetts, common law tradition, ethical right
3. Yes it is being infringed
4. Strict Scrutiny, there is compelling government purpose to infringe on liberties
Cruzan v. Director, Missouri Department of Health
Parents want to take unconscious woman off artificial feeding and hydration equipment, Missouri says
they lack the authority
 Asking right to refuse hydration and nutrition
 Concludes this is not a fundamental right because she is not making the choice to assert the right
herself, it is her family
 Majority assumes it is a liberty, but it doesn’t have to be decided because this issue is about who
can assert the right
 Precedent supports that this is a fundamental right, history-concept of informed consent, ethical
analysis also is very much the same as the right to refuse medical treatment
 If the patient was competent, it would be a fundamental right being infringed and likely have strict
scrutiny applied like the right to refuse medical treatment
 Missouri Court says parents had to prove with "clear and convincing" evidence the patients'
interest
o Since they had no clear and convincing evidence of HER interests, they could not make the
decision for her
Washington v. Glucksberg
Physicians and theirs terminal patients
Right to assisted suicide
Not a fundamental liberty:
 Long standing tradition of it not being allowed, almost every state banned
 No precedent for assisted suicide
 Most people don’t think it is implicit in the concept of ordered liberty, most of the states still ban
it as an expression of their commitment to the protection of all human life
 Right to die with dignity was too broad
Level of Scrutiny: not a fundamental right
a. Rational Basis test:
a. Preserving life
b. Preventing suicide
c. Avoiding involvement of 3rd parties and use of undue influence
d. Protecting family members/loved ones
e. Protecting integrity of medical profession
f. Avoiding movement to euthanasia
Court concerned about the pain involved with terminal illness and death, and the state preventing the
alleviating of that pain
Say they're not taking away a right to die with dignity, but that you cannot be assisted by a physician to
die
This is an on its face challenge
Types of challenges
Facial(on its face) challenge- Saying law always operates unconstitutionally
As applied challenge- challenging the law as to how it is applied to you and others like you
Reproductive Autonomy
Right to procreate
Skinner
Right to contraceptives
Griswold
Right to abortion
Roe v. Wade - Set up trimester framework, allowing abortions until second trimester, viability law
 Now trimester framework is over, Casey is now the law and "Undue burden" test
Planned Parenthood of Southeast Pennsylvania v. Casey
Looked at 5 provisions of Pennsylvania Abortion Control Act of 1982
"undue burden" test created by plurality opinion, not binding law because of this case but it became
binding in later cases
Upheld a lot of provisions that have been previously struck down as unconstitutional
Relies on implicit concept of ordered liberty in determining if liberty is fundamental (or heightened
scrutiny)
Also on stare decisis and the 19 years of precedent
 Throughout there is discussion on when a court should overrule precedent
o Lays out factors:
 Workability

does this rule work or have lower courts had trouble applying it
 Reliance
 Usually businesses that have spent money relying on this
 But here a lot of women have come to rely on this as a protection for them
 Legal principles that have changed
 Development of law that would leave this law as obsolete
 Factual premises that have changed
 Like here, the advances in medicine and technology, made it safer to have
abortions later and safer for unborn to live earlier, different viability dates
Moved away from trimester system from Roe v. Wade
Now look if it is pre-viability or post viability
 Pre-viability it is up to the women and the state cannot put any regulations or restrictions, undue
burden test
 Post-viability the state can regulate
Undue Burden Test - used only in abortion issues
 Whether this law has the purpose of effect of placing an undue burden, which is a substantial
obstacle, to the woman from making her choice
Look then at each provision with undue burden test
 Informed consent requirement and 24 hour waiting period court ruled not undue burden


Signed statement required from spouse, 1% of abortion really effected by this law in abusive
relationship, creates undue burden for this 1% of women wanting abortions
Parental notification or consent for minors is not an undue burden as long as there is a bypass
option
Whole Woman's Health v. Hellerstedt
States started establishing laws that would close abortion clinics
 Physician admitting privilege
 Surgical center requirements
These are found to be undue burdens to women and that the state could not make laws that did this
Undue Burden test
 Purpose or effect, because law was vague an illegal abortion could have been done accidentally by
doctors
 Substantial obstacle, balancing benefits and burdens (issue with that is changing the facts allows
different results)
 Before viability
 Upheld:
o Parental consent
o Waiting periods
o Informed consent
o Federal government partial-birth abortion
 Invalidated:
o Spousal consent
o Nebraska partial-birth abortion ban - vagueness
o Admitting privileges requirement for physicians (Tx)
o Ambulatory surgical facilities (Tx)
Fundamental rights protected
 Right to Marry (Loving, Skinner)
 Right to control upbringing of children (Meyer)
 Right to custody
 Right to live with/keep together extended family (Moore) NOT FUNDAMENTAL, Protected liberty
based on balancing test
Moore v. City of East Cleveland
City ordinance not considering grandmother housing her grandson as a family
Family is blood related and the right/liberty at issue is the right to live with extended family
Did not apply strict scrutiny, more of a balancing approach, never called this a fundamental right
Court talked about deeply rooted in history, look at precedent, look at implicit in the concept of ordered
liberty
Compare nuclear family to the extended family in history
Not saying it has to be a compelling government interest, didn’t do strict scrutiny or rational basis, used
a balancing test somewhere in between
 Balancing: government interest vs the individual interest
o She has interest in protecting her family and keeping them together and government hasn’t
shown compelling interest in overruling that
Michael H. v. Gerald D.
Paternity case where father is from extramarital affair where mother is married to another man
State says that a child born to a married woman is presumed to be a child of the marriage and may only
be rebutted by husband or wife
The right to parental privileges when the mother is married to someone else in this case is being looked
at very narrowly
Scalia says this right is not found in precedent or history and not a fundamental right
Bowers v. Hardwick
Found that "right to engage in homosexual sodomy" was not protected as fundamental right, used
rational basis test
Dissent thought it was right to engage in particular forms of private consensual sexual activity and that it
should be a fundamentally protected right
Lawrence v. Texas
Man convicted of crime for engaging in sexual intercourse with another man
Looks at liberty to have privacy and dignity in their home
Says Bowers should be overruled
Never says the right is fundamental, just that it is a protected liberty, applies form of balancing test like
in Moore but in language like it is rational
Right to intimate non-procreative sexual conduct in private
Obergefell v. Hodges
Challenges in 4 states where the states define marriage as union between a man and woman
History of marriage had almost always been opposite, sex but that the institution of marriage has
evolved over time
Says that the substantive due process liberty in question here is The Right to Marry, which is already
supported by precedent like Loving
 But all precedent was dealing with opposite sex couples but that it doesn’t mean the right to
marry isn't extended to same sex
 Majority says that this is about an already existing fundamental right to marry, as same sex right
to marry should be found under umbrella of right to marry
 Factors(all supported by precedent) that support right to marry for same sex:
o It’s a personal choice hinging on autonomy, and is a part of who you are that shouldn’t be
intruded on by the government
o Importance of marriage as an institution for individuals in two person union
o Safeguarding the family
o Importance of marriage to a society
States argued this wasn’t just about right to marry being fundamental, it was more narrow about right
to same sex marriage
This opinion mostly focuses on Due Process with a little Equal Protection
Full Faith and Credit only applies to judgments not licenses, and marriage is a licensing not a judgment,
had to use equal protection for that argument
Incorporation
District of Columbia v. Heller
Said that right to bear arms was individual right given to the people and not just for militia
Textual and structural and historic argument about how individual rights are mentioned throughout in
comparison to the right to bear arms
Court says individual right is being infringed in this case but he does not use strict scrutiny, only level he
gives for the second amendment is that it is not unlimited
 He says it is not a rational basis, it is some kind of heightened scrutiny but he doesn’t define it,
only says that it is not unlimited
McDonald v. City of Chicago
Argument is that the second amendment doesn’t apply to the states and the only way for it to apply
would be incorporation as a liberty under the 14th amendment
Plaintiffs argued it should overturn Slaughterhouse as privileges and immunities or it should be a liberty
under the due process clause
Under incorporation, he says we should look at if it is fundamental from an American perspective
Procedural Due Process
Everything under substantive due process definition of "liberty", is also covered under procedural due
process
Procedural due process is about notice and the opportunity to be heard
 Not trying to say that the state can't take this away from you, but they must give you notice and
opportunity to be heard
 Just means they must give you safeguards before things are taken away
Justiciability Problems (pg 99)
1. Advisory Opinion, not a concrete injury and so no injury-in-fact (no tangible harm), political
question because issue between executive president and congress
2. No injury in fact- not actual or imminent Lujan case ("someday intentions are not enough"),
Ripeness because a hardship has not yet occurred and could use additional facts
Equal Protection Framework - smoke out invidious discrimination
1. Identify classification:
a. Text/face
b. Effect/impact and purpose - Multiple choice EXAM question about impact
i.
To look at discriminatory purpose/intent - "because of" desire
1. Impact: sometimes the impact is so great on its own that there is no other way
to explain it other than a result of the evil mind
2. Historical background:
a. Sequence of events
b. Departure from normal procedure
c. Departure from normal substantive standards
3. Legislative and Administrative history
2. Determine if classification is suspect or semi-suspect
a. Precedent
i.
Race and national origin
ii.
Alienage
b. Factors
i.
History
ii.
Political power
iii.
Whether the classification is immutable (if it's something someone can't change)
iv.
Legitimacy
3. Apply level of scrutiny
a. Strict Scrutiny- Necessary to serve a compelling governmental purpose
i.
Look at necessity:
1. Need/alternatives
2. Flexibility
3. Duration
4. Impact on innocent 3rd parties
5. Some rule at quotas
ii.
Compelling governmental purpose:
1. Remedying past government discrimination
Washington v. Davis
Classification (on its face) of the statute was whether the applicants passed or failed the test. A rational
basis test would apply. Would not be a good argument
Instead they argued that the test put other races at a disadvantage and as a result they were not
allowed to join the force (effect/impact and purpose)
 No equal protection clause that applies to the federal government so have to use due process
clause of the 5th amendment
Village of Arlington Heights v. Metropolitan Housing Dev. Corp.
Try to claim an effect/impact and purpose classification based on race
 Court looks at purpose and impact to look for a discriminatory purpose
Personnel Administrator of Massachusetts v. Feeney
Veteran preference was allowing more men to be hired than women.
In this case there is another way to justify this, the program is preferencing veterans but doesn’t limit it
to men, allow for nurses and women, just don’t hire them
Awareness of the impact is not enough.
For purpose you have to show that the effect is desired, you're doing it because of its impact on this
particular group
United States v. Paradise
City of Richmond v. J.A. Croson Company
Societal discrimination isn't enough, has to be governmental discrimination that can be remedied
Adarand Constructors Inc. v. Pena
Decided strict scrutiny for all classifications
Identify Classification
 Text
 Purpose and effect
o Factors:
 History of deiscrimination
 Lack of political power


Immutable
General legitimacy of purpose (is it based on prejudice)
Invidious discrimination based on prejudice
Level of scrutiny:
 Strict Scrutiny: Suspect
o necessary or least restrictive means, need/no alternative.
 Race
 National origin
 Alienage
o Compelling governmental purpose
 Public health
 Win war
 Protect children
 Protecting constitutional rights of those who have been discriminated against
 Remedying past government discrimination
o Fundamental rights:
 Right to vote
 Right to interstate travel
 Intermediate Scrutiny: Quasi-suspect
o Substantially related, not substantially broader than necessary
 Gender
 Legitimacy (being a bastard or not)
o Important substantial government interest
 Remedying societal discrimination
 Traffic safety
 Rational Basis:
o Rationally related to a legitimate government purpose
 Age
 Wealth/financial condition
 Intellectual disability
 Disability
Rational Basis with Bite (heightened rational basis)
In general, we think that the purpose could be prejudicial, even though it generally could make sense as
a classification, the classification is suspect as to being invidious
Where we think there is invidious discrimination with illegitimate purpose (any invidious purpose)
US Department of Agriculture v. Moreno
Government amendment excluding households with unrelated people from food stamps, based on
rational basis of trying to prevent fraud, but court didn’t apply normal rational basis because they
already had provisions preventing fraud and this was more of prejudice against "hippies." Violated 5th
amendment due process clause.
City of Cleburne v. Cleburne Living Center
Lower courts held that mental retardation was "quasi-suspect"
Supreme Court has to decide whether it is quasi suspect classification or rational basis


Use rational basis with a Bite, go through the factors of purpose
Even though rational basis applies it doesn’t mean they are allowed to make rules for invidious
purpose
City argues that law rested on factors like negative attitude of property owners nearby(citizen
prejudice), objections to location like near a school(where there were mentally disabled students) and a
flood plain(not concerned for other groups not needing this permit), also concern with the size of
home(also not considered for other types of homes permits)
 These are not legitimate governmental purpose, they are based on fear and prejudice
o Cant convert citizen prejudice to government prejudice
Court holds this ordinance is invalid as based on invidious purpose and prejudice
Equal protection (constitutionally) only applies to the government (in suing the government)
 Has to be citizen suing the government to use equal protection clause, constitutional claim
o If it is individual private concern, have to use a statute to sue
 Unless 13th Amendment, which concerns purely private conduct (slavery)
Romer v. Evans
Colorado had Liberal and Conservative areas, Liberal areas were enacting ordinances protecting
homosexuals
Conservatives passed Amendment 2, repealing and preventing ordinances that would protect anyone
based on their sexual orientation
Court says Homosexuals are being excluded from the same process that everyone else can use to try
and fight discrimination, attempting to get laws for protection passed
 By taking away these laws in the way that they did, they have created a classification that is
invidious
Used Rational Basis with a Bite because court believed law was invidious
Broad exclusion of individuals from seeking protection or redress from discrimination
United States v. Windsor
ON EXAM
Say is it is a textual classification, if not go through purpose and effect
And then level of scrutiny
State Action- Government action. No state shall in Fourteenth amendment
 Has to be the state that violates your rights to get constitutional claim
 When can conduct of a private actor be attributed to the state/government?
o Public policy: want to limit the extension of state action, but also concerned about
government trying to get out of constitutional requirements/obligations by delegating
functions to private individuals
 Not just one test for state actors, only by sifting facts and using case comparisons
Marsh v Alabama
 Town mostly owned by private company
 Petitioner passing out religious materials on sidewalk was arrested, argued first amendment
 Looked and operated to the public like any other town


State argues that town is owned and regulated by private company
It was operating/performing like the government
Public function exception: where private actor becomes a public function
o Marsh - company owned town
o Shopping center is not a public function/state actor, doesn’t act in manner similar to
government
o White primary cases - political party primary elections, even though private group the
election is still a public function
o Eminent Domain
Shelley v. Kraemer
Group of people signed restrictive covenant, petition to not allow anyone not white to buy property in
the area, some people didn’t listen and sold their property, group wanted to stop sale and enforce their
petition
 No legal means to undo it except going through state
 Government is necessary here to accomplish the objective they want
o Significant Encouragement or Government Coercion - if it can only be accomplished by using
government channels and therefore making it state actor
 Government coercion - Government is compelling or requiring something by law
 Significant encouragement - Where government assistance is necessary(Shelley) to
accomplish the objective or where government is acting with its own intent to
discriminate
 Government purpose to use private actors to discriminate or otherwise violate
constitutional rights
Burton v. Wilmington Parking Authority
Private restaurant operating in public parking garage rejecting serving someone based on race
Symbiotic relationship- Private individual becomes state actor
 Distinguished by Burton factso Public property
o Used for public purpose
o Mutual benefits exchanged between government and private party
 Money going to government that was necessary for the viability/financing of the
project
 Restaurant was getting parking places and traffic/increased business
Moose Lodge v. Irvis
Private club that has liquor license from the state
 Not Symbiotic relationship - Private club in Private building is different from Burton, because
mutual benefits not enough also need public property and public purpose
 Not government coercion or significant encouragement
The government doesn’t encourage your discrimination just because they issue licenses to you Moose
One thing the government did that was of some concern to be state action for some purposed:
anyone who has liquor license must comply to state regulation that private need to comply with


constitution and bylaws of the private entity. Discrimination was allowed in the Moose Lodge
under their own constitution and bylaws.
Could be said to be government coercion because they were telling them to adhere to their
constitution and bylaws because it contained racially discriminatory policies
Gov was saying you have to comply with all your own constitution and laws, here those were
racist, so the gov was enforcing or encouraging their racism in their bylaws
Jackson v. Metropolitan Edison Co.
Public function - it must be traditionally exclusively reserved to the state, historically something the
government has done
 Government has not historically been in exclusive control of providing power
This is a necessary utility, although subject to regulation, that is not enough to be state actor
Eminent domain (example of public function)- private entities taking private land for supposed public
purposes must comply with constitution as it is public function
 No symbiotic relationship, regulation not enough for close nexus between state and private
Flagg Brothers v. Brooks
Brentwood Academy v. Tenn Secondary School Athletic Ass'n.
Entwinement- largely overlapping identity between the government and the private entity
 Distinguished by Brentwood facts
If not state action, disprove all the theories
IF yes state action, only need to prove one theory
Gov enabling isn't enough, it has to be necessary that the gov is involved
Heavy regulation or contract with government is not enough to make state actor
Federalism and Separation of powers - Power is divided to ensure that there is competition between the
powers and so no one branch can have too much power, idea that it prevents tyranny
Federalism is vertical separation between federal and state
 Division between federal gov and state govs, area of overlap between them (concurrent
authority)
 When there is conflict in concurrent authority between federal and state, federal rules
(Supremacy Clause)
o Federal gov has defined powers
o State gov has residuary powers
Separation of powers is horizontal between branches of government
 Powers and spheres are overlapping, more than one branch is required to do a lot of things
On exam, beginning of chapter 9 is good summary of things to know about powers
McCulloch v. Maryland
Congress power to incorporate Bank under constitution
Idea was the states were the ultimate sovereigns
Necessary and Proper clause cannot be used by itself, you must have another power, an enumerated
power to base the implied power on
Two meanigs to necessary
Absolute
And convenient
It is listed with the powers not the limitations
There has to be an end that is both legitimate and within the constitution
Need to know what power you're trying to go to and it has to be one within the constitution
You can use means that are adapted to that end, useful and convenient ways to get to that end
 Means must be legal within the constitution, cannot be prohibited by constitution
 Must be consistent with the letter and spirit with the constitution
o Federal gov can't do whatever it wants
Necessary and proper test
1. Identify the end and make sure it's within the constitution, what power, what it is trying to
accomplish
2. It has to be necessary, its adapted, convenient and useful way to accomplish that end result
3. Is it proper, not prohibited, doesn’t give unlimited power, is it consistent with the spirit of the
constitution
States have no power to tax the federal gov and they never had that power, cannot impede or burden
constitutional law passed by congress
 Also cant discriminatory tax gov employees
Gibbons v. Ogden
Examines Interstate commerce clause- commerce among the states
Power of congress to regulate commerce among the states
The court defines commerce not only as "traffic" and the buying and selling point of sale theory, they
expand the definition to commercial "intercourse" including navigation
The court defines "among the states" as meaning between more than one state
 =So commerce is intercourse between more than one state
Limit on the federal to be supreme, states cant interfere but they don’t have to help, cant commandeer
them what to do
Supremacy Clause gives power to federal over state, state statute has to yield to the federal statute,
Doctrine of Preemption
Commerce Clause - Looking for authority of congress to act
Negative/Dormant Commerce Clause - looking for restrictions on the states
 States cant unduly burden interstate commerce
 distinction between national and local necessities
 Called negative because places a negative restriction on the states from enacting legislation which
unduly interferes with interstate commerce ??? Later in notes
Dual federalism
 Idea that there was a strict line between federal and state powers and they can't touch each other
Missouri v. Holland
Congress used treaty power of the federal government
 Treaties must be negotiated by president with the advice and consent of the senate (2/3rds)
o Self-executing treaties - becomes supreme law of the land once it is ratified
o Non self-executing - requires congress to enact legislation to implement it
Wickard v. Filburn
Court says even if activity is local and not regarded as commerce, if it has to have substantial economic
effect on interstate commerce it can be reached by congress for regulation
Substantial effect on interstate commerce in the aggregate, not just this activity but all the similar
activities of others, then we conclude that it can be regulated
Don’t just look at individuals activity but the aggregate, look at what this is doing in the aggregate if
everyone (like here all farmers) are doing the same thing
Gives federal government more power to regulate
Heart of Atlanta Motel v. US
Motel denied African Americans from getting rooms
People traveling and moving state to state is interstate commerce, so this was restricting interstate
commerce
 Also focused on the racial discrimination, moral concern basis
 Tried to claim they were arguing under 14th amendment
o But not state action so doesn’t work
Here congress is using commerce clause because it crosses state lines, regulate moral concern by saying
that you interfere with interstate commerce by not allowing black people to stay at motel
 Necessary and proper clause operates similarly to commerce, substantial effects test regulates
commerce under same idea of necessary and proper clause
Katzenbach v. McClung
African Americans could not come sit in the restaurant
Restaurant got 46% of its food from out of state, aggregation principle, that’s enough to establish
interstate commerce, use rational basis for it having a substantial effect on interstate commerce
Commerce test
Identify what is commerce
Then substantial effect
(rational basis)
EXAM QUESTION Powers not granted to congress under Articles that is now granted under the
constitution- power to regulate commerce and tax
Commerce Clause - congress can regulate as long as it meets rational basis
1. Use of channels(the way things move from state to state, ex. River or railroad tracks) of interstate
commerce
2. Instrumentalities(vehicles of commerce, ex planes, trains, automobiles) of, or persons and
things(people or companies) in, interstate commerce
3. Substantial effect on interstate commerce in the aggregate
a. Like necessary and proper clause + commerce clause
United States v. Lopez
Committed state and federal crime when kid brought gun to school
Federal took over with criminal prosecution
 Argued that bringing gun to school didn’t fall within the interstate commerce clause power
Under federal law mere possession of the gun at school was enough to establish the crime, didn’t need
transaction or interstate commerce
 Gov argued that it had substantial effect on interstate commerce in the aggregate (#3) because
people would be afraid to go to school and get educated which would effect it
 Possession is not usually an economic/commercial activity
 Court says to aggregate underlying act being regulated needs to be commercial or economic
activity, or part of larger regulatory scheme connected to economic activity
 Here there wasn’t any, statute didn’t require that
Even if threat is just within the state, an instrumentality is regulated by congress (ex. Plane traveling in
one state from Houston to Dallas)
Gonzales v. Ranch
Medical marijuana on woman's farm
 Unlike the wheat case, she is not operating a commercial farming operation
 She argued that she didn’t sell it and wasn’t engaged in interstate commerce, its more like a
vegetable garden
 Supreme Court doesn’t think that distinction makes a difference from the wheat case
 Only need to determine if there is a rational basis, government concern is that it could affect
conditions of other markets, marijuana is not something that is trackable through commerce,
there is an interstate market for it
this case holds that even if particular activity isn't commercial or economic, if overall activity of

national market is part of larger regulatory scheme of economic activity, there is substantial effect
in the aggregate and congress can regulate
Taxing Power and Spending Power
Independent power of congress, don’t have to trace it to another power, can tax and spend on anything
that they think is in the general welfare
Even when it can't regulate an activity directly, it can tax it and then use the money to enact
congressional objectives
Limits
 Direct taxes: real property or poll tax - apportioned according to population
 Indirect taxes (activities): have to be uniform
 No taxes on exports coming from a state
Spend in the general welfare (taxing and spending like social security) as long as no specific
constitutional guarantee violated
US v. Kahriger
10% tax on illegal gambling, way to prosecute for financial crimes through tax regulation, indirect
method of enforcing gambling laws
Argued that this wasn’t a tax because the court wasn’t going to get any money
Court said regardless of intent it still works
- this is a proper tax under limitations
 Tax has to have some possibility of raising revenue
South Dakota v. Dole
Contract the federal gov is entering into with states
Law required states to change drinking age being raised to 21 to get 5% of highway funds
21st amendment lifted prohibition and gave states regulatory power over alcohol
Rules with respect to the ability of Congress to condition funds in turn for regulatory requirements on
the state
1. Within the general welfare
2. Cant violate any constitutional guarantee
3. Condition needs to be unambiguous and state needs to have notice
4. Condition needs to have some relationship to the program at issue
5. Condition can't be so coercive that the state is essentially left with no other choice
Commerce clause
1. Channels of interstate commerce
2. Instrumentalities and persons or things of interstate commerce
3. Substantial effect on interstate commerce
National Federation of Independent Business v. Sebelius
Court first argues commerce clause, that Individual mandate has substantial effect on interstate
commerce, cost shifting problem
Previous cases about substantial effect relied on activity, this is not activity, but trying to compel people
into commerce
Says you cannot compel someone to engage in commerce by purchasing a product
 Looks at precedent - Wickard
 Looks at text and structure of the word "regulate" instead of the word creation
Necessary and Proper Clause
1. Constitutional end, healthcare market- commerce
2. Necessary - convenient or useful
3. Proper - not prohibited by constitution consistent with letter and spirit of constitution
Argues independent mandate is necessary but not proper
 Necessary= It is a convenient and useful way to achieve the end
 Can't be proper because it would go beyond commerce (but in Rhodes opinion that it what
necessary and proper does)
Next argument is that the mandate may be upheld as within Congress' enumerated power to "lay and
collect taxes"
Tax
1. General welfare etc.
2. Direct tax - apportioned
3. Indirect tax - uniform
4. No taxes on exports coming from a state
Roberts says it can be a tax because of its function
 Upholds mandate as indirect tax
Then the court discusses the Medicaid expansion
Spending with Conditions
1. General welfare
2. Unambiguous conditions
3. Some relationship to program
4. Not coercive
5. No independent constitutional bar
Roberts thinks this expansion could not have been anticipated by the states when they accepted the
original Medicaid, but this isn't just changing conditions, this is essentially a new program with a new
goal
Enforcement Power of the Reconstruction Amendments -Congressional Power, power to enforce the
guarantees in those amendments "by appropriate legislation," gives Congress power to remedy the
state deprivation of rights protected by the amendments
Has to be state deprivations
Voting Rights Act (probably not on exam)
Section 1- definitions
Section 2- voting devices cannot have effect of diluting minority voting and provides that you can sue
that it has the effect
Section 3 - the way judiciary could order preclearance as remedy for past deprivations
Section 4 - legislative formula for preclearance coverage that congress made, benchmarks and if not met
then placed under preclearance
Section 5 - Preclearance, means that must ask for permission, it must be approved before change
1. Identify the right that congress is wanting to enforce (level of scrutiny)
2. Identify extent of past constitutional violations (judged by the level of scrutiny)
3. What are the means used to get there and are the congruent(necessary) and proportional(proper)
to the extent of past constitutional violations (this is a heightened form of scrutiny)
Enforcing Rights - Congress
"Enforce"
 Remedy
 Preventative (not defining)
o Has to be congruent and proportional
If religious people and non-religious people are being treated the same, then use rational basis
Religious free exercise guarantee- neutral law of general applicability, Supreme Court applied rational
basis
RFRA - strict scrutiny (applied to states, local gov, and federal) - substantial burden on religious belief
City of Boerne, Tx v. Flores
Church said RFRA was violated when they were not allowed by the city to expand their church
The city said RFRA was unconstitutional
Court looks at precedent
Congress can't define rights
If right congress is trying to enforce is rational basis they're probably creating a new right
If the right they're trying to enforce is heightened scrutiny they're probably enforceable
The higher the level of scrutiny of the right congress is trying to enforce, the more likely it is that
congress enforcement will be upheld
Preemption
Based on Supremacy clause that says if a federal law and state law conflict, federal law prevails
To find when there is conflict, there are types of preemption
1. Express preemption - federal law that says all contrary state law is preempted. Has a clause in the
law that specifically provides for preemption of contrary laws
2. Implied preemption a. Field preemption - congress has operated so extensively it has regulated a particular subject
matter so extensively there is no room for state law
b. Conflict preemption (two types)
i.
Impossibility conflict preemption - where you can't comply with both federal and
state law. Federal law and state are directly conflicting.
ii.
Obstacle conflict preemption - state law is undercutting federal law. It is placing an
obstacle in what is the goal of the federal government
ON EXAM (at least one multiple choice)- Preemption analysis gives both a state and federal law
 Preemption comes up all the time in tort law
Pacific Gas and Electric v. State Energy Resources
Both federal and state law are about atomic energy but
California law about economics and federal law about safety
Both could be complied with
If both had been about safety, Cali law would have been preempted
But here they had different goals
Ingersoll-rand co v. McClendon
Claimed he was fired because they didn’t want to contribute to his pension plan anymore
Texas courts adopted that as an unlawful reason to fire someone
Supreme court overrules because this is preempted by ERISA