Constitutional Law
January 13, 2020
I.The Federal Judicial Power
Test Tip – only the current law, settled law, don’t include anything on dissent or prior rulings
14th amendment –
DP- due process
EP- equal protection
PI- privilege or immunity
January 15, 2020
Limited powers - Checks & Balances between the 3 branches of govt
How a bill becomes a law “just a bill”
Fed Govt is govt of limited powers
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Bill of rights (amendments 1-10)
14th Amendment – due process & equal protection from states / privileges and
immunities for national citizenship
5th Amendment – due process & takings clause – fed govt
9th Amendment – unenumerated rights – rights that predated constitution and rights
not listed specifically (we may have a right that isn’t listed – so it can be argued)
basically, saying we cant list every scenario
Article 4, Sec 2 – privileges & immunities clause – protects out of state-rs from
discrimination
Marbury v. Madison (1803)
Power of Judicial Review (not in constitution) – power to strike down laws passed by Congress,
strike down non-discretionary power of executive branch
RULE: Those who apply the rule to particular cases, must of necessity expound and
interpret that rule. If two laws conflict with each other, the courts must decide on the
operation of each. So if a law be in opposition to the Constitution; if both the law and the
Constitution apply to a particular case, so that the court must either decide that case
conformably to the law, disregarding the Constitution; or conformably to the Constitution,
disregarding the law; the court must determine which of these conflicting rules governs the
case. This is of the very essence of judicial duty.
JDX - Supreme Court has original jurisdiction over the case
Writ of Mandamus – order a govt officer to do something
Writ of Prohibition – order to stop doing something (easier to get)
CLAIM: Here, Writ of Mandamus (AKA Writ of Mandate) is to deliver the judge commission to
Marbury
ISSUES:
1) Does Marbury have a right to the commission? YES, lawfully appointed prior to signed &
sealed commission & not revocable (logic used - if letter was lost or burns in fire,
appointment isn’t void)
2) Does law afford him a remedy? YES. Is executive decision discretionary? Sec of State
action – mandatory or discretionary – here it’s mandatory –
RULE: Discretionary decisions aren’t reviewable by Court (modern example: pardon or
veto) only politically reviewable (meaning by people that vote for you). If you are legally
obligated to do it, the judiciary can review.
3) Can remedy come from supreme court in form of Writ of Mandamus? NO
a. Nature of Writ
b. Power of Supreme Court –
i. Power to Issue comes from Judiciary Act of 1789- can issue a writ of
mandamus to a person holding office under authority of US.
ii. JDX – Art 3, Sec 2 – conflicts with Judiciary Act – writ of mandamus isn’t
included in list of items for original jdx in constitution & all other cases
SCOTUS has appellate JDX
iii. HOLDING – it’s unconstitutional, SCOTUS isn’t the locale for the case;
legislature in adopting the Judiciary Act exceeded their powers without
requiring an amendment to the constitution (law contrary to constitution
is void)
1. Oath to protect the constitution
January 22, 2020
Source of SCOTUS Power
 Constitution Article 3 – duty to say what the law is
 Marbury v Madison – federal review– court can hear anything that is included in
constitution
 Article 6- supremecy clause (fed law supercedes all other laws)
 Balances the other branches of govt
Marbury v Madison (con’t)
1. Creates power for executive action review
2. Creates power for legislative action review
3. Interprets Article 3 of Constitution
HOW ARE JUDGMENTS ENFORCED?
Executive or Legislative branch must willingly comply with the judicial order
Re-election – the people won’t re-elect people that they don’t like
No absolute powers nor absolute rights for any branch or the people
When SCOTUS court says “only we interpret the constitution” in Marbury
Then that is the doctrine
Abraham Lincoln says – I have a duty to uphold scOTUS decisions, parties right to a decision
Court only has the power of the pen, it has no means to enforce. The president has to back the
decisions with the enforcement
Authority for Judicial Review of State Executive, Legislative, and Judicial Acts,
Martin V Hunter’s Lessee
Facts: ejection case after revolutionary war
Issue: can SCOTUS review state court decisions
RULE: constitution, historical precedent, textual: structure of the fed court system supports that
SCOTUS can review decisions on the highest state courts, or they wouldn’t have a job except
original jurisdiction cases
Anaylsis – need for federal uniformity in interpreting the constitution
HOLDING: yes, on appeals from highest state court
Cohens v. Virginia
Facts – sold lottery tickets against VA state law
Issue – can SCOTUS hear state case in criminal cases
RULE – constitution, historical precedent, textual: structure of the fed court system supports
Analysis – state judges can’t be as impartial because they are hired and fired by the people,
decisions that go against populous could lead to termination
HOLDING – YES- on appeals from highest state court
Cooper v Aaron (1958)
Facts – Little Rock 9 - black high school kids that went to school after desegregation to push
their rights, Governor tried to block them by having state guard keep from entry, President in
emergency order, sent National Guard to get them in
Issue – is state bound by federal law
Analysis – has to be one group interpreting the constitution, all states bound by US Constitution
HOLDING – yes, governor of a state has to abide by decisions of SCOTUS, SCOTUS has
supreme authority to interpret the constitution
II.Early Interpretations of the Original Constitution
CONSTITUTIONAL INTERPRETATION
Constitution is written in broad open text that is open to interpretation. For example, rights to
appoint executive staff are given to the president, but there is nothing about rights of termination.
So the SCOTUS had to make decisions on this.
Every type of interpretation is designed to put a constraint on judicial review
 Every method relies on the text as a source
 Every method also imposes limits on what sources judges can use to determine meaning
Methods of Constitutional Interpretation
Primary Sources
• 1) text of the Constitution
• 2) original constitutional history
• 3) overall structure of the Constitution
• 4) values reflected in the Constitution – protecting liberty, avoiding tyranny
Secondary Sources
• Judicial precedents
• Originalism-Specific Intent (only source – texts)
• Originalism-Modified/Abstract Intent
• Original Meaning/Understanding (Scalia)
• Tradition
• Process-based Theory
• Aspirationalism
• Textualism
• Pragmatic
• Purposive
• Structural
• Values-Based
• Precedential/Doctrinal
Originalism/specific intent
 Includes review of text of constitution
 Case precedent
 if at the time of the constitution was written, the issue hadn’t arose yet, then, if you’re
an originalist, the constitution doesn’t cover that and the states have a right to legislate
it & would be constitutional
o Assisted suicide – wasn’t even a thing then, so it would be ok for state to make
laws
 Constitution changes by amendment (not through judicial review)
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Power of the States – pretty much everything not covered by the constitution (state
sovereignty)
Originalism/modified/abstract intent
 Evolving social definitions
 Text of constitution
 Case precedent
Original Meaning.Understanding (new originalism)
 What justice Scalia describes
 Text of constitution, case precedent, founding era understandings/documents
 Scalia doesn’t go to the framers’ intent for source
Non-Originalists (modern approach)
 Justice Breyer – purpose
 pluralist (multiple sources)
 always starts with the text of the constitution
 case precedent
 no doctrine or legal rule that limits sources
 can include framers original intent
TEST TIP: we only use secondary types of analysis on test
TEST TIP: equal protection – don’t call it discrimination / there are no absolutes in articulation
of a particular right or freedom
TEST TIP: equal protection will be on the exam
DC v Heller
Facts:
 2nd amendment case - “A well regulated Militia, being necessary to the security of a
free State, the right of the people to keep and bear Arms, shall not be infringed.”
 DC banned hand guns in the home (even for police officers who could carry for work) all
other guns had to be dismantled, unloaded, with locks on trigger
ISSUE: did DC exceed their authority with the ban on handguns
Analysis – Majority uses original meaning / Stevens Dissent uses pluralist / Breyer Dissent –
thinks the case hinges on Standard of Review, not constitutional interpretation (note, this is just
dicta, can’t rely on it but gives lower courts his opinion so they can have this input for their
future cases: his opinion is that strict scrutiny shouldn’t be the level of review because then the
SCOTUS will be making policy)
Constitutional Analysis – prefatory clause announcing a purpose ““A well regulated Militia,
being necessary to the security of a free State,”, followed by an operative clause “the right of
the people to keep and bear Arms, shall not be infringed.” the prefatory clause only
introduces the reason for the operative clause. The prefatory clause doesn’t expand or limit the
operative clause. Then interpret the words, “the people” = citizen, “arms”=all weapons
HOLDING – ban is unconstitutional / violates civil rights and liberties
Standards of Review – speed bumps and high hurdles – rational basis, intermediate scrutiny,
strict scrutiny – court hasn’t established one for gun legislation
Test Tip: only majority opinions will be on exam, none of the dissents, focuses on current law
TEST TIP: do not give policy arguments / judges on the supreme court do not give policy
arguments because they would get out of their box (congress makes policy)
JUSTICIABILITY LIMITS
The Case or Controversy Requirement (cont.):
* absence of any element means = NOT “case or controversy”
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The five (5) jusiticiablity doctrines were developed by the Supreme Court to
satisfy the case or controversy requirement:
• 1) Prohibition Against Advisory Opinions
• 2) Standing (5 standing requirements) (is this the right plaintiff)
The basic --constitutional-- requirements of standing (Allen v. Wright):*
1. Injury- must be a concrete, particularized, and legally
cognizable harm to the plaintiff.
2. Traceable (Causation) - plaintiff’s injury must be fairly traceable
to action taken by the defendant
3. Redressability - the relief sought (e.g., damages, injunction)
must alleviate plaintiff’s injury and must be tied to the remedy
sought
• 3) Ripeness- Basic rule: plaintiff may not present a premature case or
controversy, often a consideration of when Court may rule on the
constitutionality of a law before it is enforced against the plaintiff (Poe v.
Ullman; Abbott Labs)
• 4) Mootness – plaintiff must present a live controversy at all stages of the
stages of the action, with exceptions of:
• Capable of Repetition Yet Evading Review: applies
to facts of short duration and that are capable of
repetition as to this plaintiff (Roe v. Wade; Moore v.
Ogilvie)
• Voluntary Cessation (Friends of Earth v. Laidlaw)
• Class Actions (Parole Comm’n v. Geraghty)
• 5) The Political Question Doctrine
Avoidance Principles
1. Constitutionality of legislation
2. Will not anticipate a question of constitutionality
3. Will not formulate a rule of constitutionality broader than required to address the
specific facts of the case before them
4. Only federal question cases or parts of cases, defers to the state
5. Validity of a statute someone not injured
6. Validity of a statute someone who benefitted from it
7. Act of Congress – requires that they first ascertain whether a construction of the
statute is fairly possible by which the question may be avoided
Court can’t issue advisory opinions – there has to be an actual case between litigants
1. Saves the court time
2. Preserves judicial legitimacy because it isn’t based on real facts
An opinion in which the world will be exactly the same after the opinion. Supreme Court doesn’t
give advice.
Political question doctrine
Political question doctrine - (doesn’t mean partisan policy)
Doctrine about separation of powers between the 3 branches of government
Judicial branch is asked to decide something that should be decided by congress or president
Presented in (1) elections, (2) challenges to restrictions on congressional membership, (3)
challenges to the presidents conduct of foreign policy, (4) challenges to the impeachment process
Political questions are nonjusticiable
Test Tip: Justiciability will not really be on the exam (except one we have cases on)
Article 3 - Supreme Court decides which cases it will hear or won’t hear, and can always change its
mind
Baker
Impeachment - “the sole power of impeachment” refers to senate power
But Supreme Court has a case about impeachment power, that it reserves its right to review
impeachment cases
POLITICAL ? TEST:
1. Identify the precise claim.
2. Ask does the claim implicate the separation of powers?
3. Determine whether the ultimate authority over the claim rests in one of the political (nonjudicial) branches.
BAKER V CARR
Baker v Carr sets for three inquiries (1) does the issue involve a resolution of questions
committeed to the text of the constitution to a coordinate branch of govt, (2) would
resolution of the question demand that the court move beyond areas of judiciation
intervention and (3) do prudential considerations counsel against judicial intervention?
Sets out political question doctrine Factors in order of importance - first ones more important
(Remember- no absolutes)
PROFESSOR SAYS…Impeachment - if not done right, could review process and send back
Disrespecting another branch isn’t great because could lose power
Unusual need to adhere to decision already made - they declare war - court could see it as
unconstitutional, but isn’t going to say anything because what’s done is done on this
See slides for cases
Pg 108 - gives examples of political questions
Court has limits because executives & congress have to follow its orders. If they refuse, then the
court doesn’t have any power. So, it self-limits to avoid losing its power. Therefore, it takes
cases that it thinks the other branches of govt will enforce. Sometimes when a claim is against
one of the other branches of govt, the court says that it’s a political doctrine case that the other
two branches need to figure out.
Powell v McCormack/ Congressional Self – Governance (1969) / justiciable
 Powell elected to the House
 House can only exclude if fails to meet qualifications of Article 1, §2 of Constitution: age,
citizenship and residence (within state where he was elected)
 House excludes him, but he meets the constitutional qualifications
 House says they have the right because constitution says Congress can “be the judge of
qualifications of its own members.
 Court Holds – that is limited to the three qualifications listed in Art 1 §2. Called “textual
commitment”
 Court says “people have a right to elect who they want to govern them”
 court can hear representative powers claim
Goldwater v Carter / political question doctrine / non justiciable
 Republic of China formed, includes Taiwan
 President Carter rescinds treaty w/Taiwan (no longer a sovereignty)
 Senate argues that was their right, not presidents, because they have right to ratify a
treaty
 Court holds – constitution silent about termination of a treaty and therefore this is a
political question to resolve between executive and legislative branches
 Powell Concurs – this court has recognized that an issue should not be decided if not
ripe for judicial review. Here, this issue between congress and president is not ripe until
the political branches reach a political impasse.
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Zivotofsky v Clinton
Congress passes statute, people born in Jeruselum can designate Isreal on passport as
place of birth
Sec of State won’t issue passport.
Court says that it’s not political. They are deciding if the statute is constitutional. If it is
constitutional, the Pres has to enforce it.
Nixon v US / political question / non-justiciable
 ISSUE: manner in which Senate tries his impeachment
 US judge is impeached, he wants judicial review
 Committee hears evidence, not full senate
 Judge Nixon removed from bench under this senate rule, he challenges
 Court says no, constitution says “sole” power belongs to congress, so textual
commitment for method it will use to try the impeached official
 HOLDING: courts can’t review impeachment decisions, it’s a discretionary matter,
political doctrine applies
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Dissent: “sole” applies to the power. But you don’t take 1 word and go to the mat with
it. If senate acted in a manner that violated its integrity, that wouldn’t be a political
question and would be justiciable. There is a thing called unfair impeachment trial.
PROFESSOR SAYS….
 Impeachment power is awesome power, any other SCOTUS could try same issue in
impeachment case and come out different. Even though they are supposed to follow
judicial deference. Factors for SCOTUS are discretionary. Its easily distinguishable based
on the different fact patterns.
 Impeachment is the only check on the judicial branch, federal judges are life
appointments unless 2/3 senate impeaches them.
 Because criminal isn’t always necessary or pertinent
 But the justices aren’t going to step in if they have nothing to gain by it because the
President still has to abide by their decision and he has no incentive to comply with
ejection order
Barron v Baltimore – 5th amendment didn’t apply to the states, only federal govt (this has since
been overturned/14th amendment (incorporation – all applies to states)
 Separation of powers – states have their own constitutions to protect citizens, Bill of
Rights on their own terms do not limit state powers
 Bill of Rights only applies to fed govt
 Constitutional interpretation / framers concerned about limiting federal government
Post civil war, 13-15th amendments apply to the states
Prigg v Pennsylvania – HOLIDNG: declared unconstitutional a state law that prevented the use
of force or violence to remove a person from the state to return the individual to slavery
 Violated Fugitive Slave Act (overturned 13th amendment)
 PA Liberty Law conflicts, because it frees the slaves, required hearing as to why a slave
shouldn’t be enslaved if someone is trying to enslave them
 Federalism – fed law supreme
 The people didn’t have rights under the constitution
 Case is about state having the power that they were trying to exert
HOLDING – SCOTUS – state law is unconstitutional, Fed Fugitive Slave Act is
constitutional because it’s implied from several articles protecting slavery, including Art 4
Dred Scott v Sandford (1856) – (federalism / congressional power)
 Congress in Louisiana purchase declares the north free and the south optional slavery
 Dred Scott lives in Illinois, his owner dies, he declares he is free and not property of the
estate
SCOTUS HOLDING - Dred is a slave and even if he moves to a free state, he is still a slave
African American slaves were not part of “people of the US”, b/c not a citizen, SCOTUS has no
jurisdiction to hear his case
Slavery is expressly protected in the constitution, congress can’t change that before allowed in
the constitution, that would violate the constitution
Would infringe property rights
TEST TIP – the weeds of these cases won’t be on test, the major take aways may be; ie textual
authority, federalism (state v federal power), proper division of power
Who controls – state or federal – think of these things as a personal matter and then look to
documents – medical marijuana, emissions testing, abortion – many things are left to the states to
decide, but then some the fed govt isn’t comfortable letting states decide and it depends on who
is in government
14th Amendment – makes people born on US soil citizens (post civil war amendment)
III.Scope of Federal Legislative and Executive Power (Separation of Powers)
Separation of powers is how to differentiate the legislative powers from the executive
powers
Legislative Power
Article 1 – legislative power “herein granted” is vested in congress
Congress has powers that are listed specifically or inferred from the constitution
Executive Power
Article 2 - exec power vested in Pres & VP for 4 year terms (vesting clause)
Alexander Hamilton says – notice art 2 doesn’t say “herein granted”
This allows argument that president has inherent powers
Pres shall be commander in chief (commander in chief clause)
Pres shall take care to enforce (take care clause)
Inherent Presidential Power – when Pres can act w/o constitutional authority
 Is the president acting within the granted power
• Is the statute constitutional?
• What if there isn’t explicit statutory or constitutional authorization?
• Is the president violating a constitutional provision
There is a scale of strong to soft theories of inherent power
We want a Pres who can act in the moment, especially when there is a crisis
We don’t want a tyrant or king
There isn’t a lot of black letter law (case law) in this area because most of it is considered
political issues, non-justiciable political doctrine matters
Youngstown Sheet Metal & Tube Co v Sawyer (inherent presidential power)
ISSUE: when can president act w/o express constitutional/statutory authority
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Steel workers set to strike
Pres took over steel mills as “protecting access to military resources” as Commander in
Chief to preserve military resources and protect nation (during Korean war), also trying
to avoid inflation prices for steel
This is domestic issue
FDR seized private company for war resource, so there was precedent
Steel mills sued as unconstitutional
no statute gave Pres this authority and
congress specifically created legislation that didn’t go this far, requiring mediation,
investigations instead (Taft-Hartly Act)
Pres argues that Taft Hartly only applies to non-wartimes
Art II: “Pres shall take care that laws are faithfully executed” and “be Commander in
Chief for navy & army”
HOLDING: congress is vested with lawmaking, which limits Pres authority – Pres action here is
unconstitutional because he exceeded the act. Pres is making a policy decision, not enforcing a
policy adopted by Congress. Pres shouldn’t act w/legislative nature. President can’t act unless
there is constitutional or congress authorized authority.
TEST TIP: Which argument will prevail in executive powers case?
It’s the court’s read of the facts
Separation of powers
Don’t use “inherent presidential power” on test, say “unenumerated powers” instead
Justice Jackson has the doctrinal value in this case – 3 zone analysis is the one we use to
evaluate the president’s actions
(1) Pres acts w/in express or implied authorization of congress, this authority is at
maximum (in the constitution or statutes)
(2) President acts in absence of congressional grant or denial of authority, he can rely
on own independent powers, but there is a twilight zone where the congress may
have concurrent power – where constitution is silent on the matter (until congress
tells him to stop). – fact specific circumstance, support from a read of the
constitution for faithful execution or take care clause, statutes, or Congress’s
inaction is tacit approval
(3) When pres takes measures incompatible with expressed or implied will of
congress, this is the lowest ebb of authority – he can rely only on his constitutional
powers minus any constitutional powers granted to congress
Executive Privledge:
When can it be envoked?
General authority - confidential communications
Specific authority – due process rights in criminal trials
US v NIXON
Issues: (1) can Pres decide whether extrusion of exec power is authorized
(2) whether executive privilege exists
(3) whether exec privilege applies to the tapes subpoenaed for criminal trial
Rejected claim of executive privilege and requiring President to comply with subpoena to
produce Watergate tape recordings and documents
Nixon – says he has the power to define when he can use executive privilege
SCOTUS – naw, that would usurp the balance of powers
1 HOLDING: SCOTUS determines when a President can use executive privilege or when it’s an
abuse of power to use it
2 HOLDING: exec privilege does exist, but it is not an absolute privilege, infers privilege of Pres
to hold confidential communications to protect military, national security or diplomatic secrets
3 HOLDING: no can’t use to impact criminal trial, evidence for criminal trial is essential for due
process, separation of powers, courts get to say what evidence is essential for criminal trial,
executive branch can’t exercise judicial power
TEST TIP: expect this on the exam, won’t be the exact facts, but will be real world and made a
Hypo – anything about communications
Office hours – competing aims of pres (corruption in foreign govt & personal interest) / political
doctrine
Trump – emoliant case by senators (trump takes $ from foreigners by having them stay at his
hotel) – dismissed for justiciability not on the merits / but look for case from hotels, which may
produce other results
Cheney v US
Way he was holding energy task force – holding meetings in secret
HOLDING: distinguished from Nixon, this is a civil case, production of evidence in civil
proceedings does not have same necessity because deprivation of freedom not at issue
TEST TIP: give me all of the reasonable arguments plaintiff and defendant will make,
distinguish precedent that works against you, or argue that it should be followed
Foreign Policy (overlapping authority)
Are foreign policy & domestic affairs different?
Test Tip: NO BRIGHTLINE RULES – SUPER GRAY AREA – DON’T MAKE ANY CLAIMS
OF ABSOLUTE
Can a Pres use executive agmts instead of Treaties?
 Pres makes treaties that are approved by congress
 Pres in best position to make agmts with foreign nations
Who has Power of War? Congress declares war or president can w/ approval from congress
Domestic affairs – when can pres act w/o explicit approval (Jackson 3 zones)
 Passage of a law can be implicit approval
Foreign policy – Pres isn’t supposed to act like a king, Pres always has to have some interplay
w/Congress in foreign affairs
Non-delegation Doctrine – congress can’t delegate its power to the Pres
President has gained more and more authority year after year by entering into executive
agreements that don’t require senate authority / SCOTUS – these agreements are constitution
US v Curtiss Wright Export
To avoid embarassment
HOLDING: pres has sole negotiating power w/ foreign govts
Dames & Moore v Regan
Pres has power to enter into executive agreements without advice and consent of the senate and
to settle claims incident to resolution of major foreign policy dispute when congress has
acquiesced to the president’s action
War Powers Act aka War Powers Resolution
 Bernie Sanders Video: Presidents got us into Vietnam & Iraq wars w/o congressional
approval / how long will these be on the books?
 Congress is supposed to restrict wars after 60 days
 Congress has power of the purse, so it should pull money for wars if it doesn’t agree
 People speak out against something, encourages congress to act, but without the
people’s support, congress will unlikely act because they want to be reelected
 Example: using drones to kill people – legislative branch could refuse to fund money
towards drone use
 President doesn’t have authority to pay for anything
 When US is attacked, Pres has authority to act (this is the 60 days)
 Issues – political doctrine
Congress can vote to approve – IE – Authorization Use of Military Force (AUMF) - Sept 11
2001- Pres has authority to use military force against any entity responsible for 9/11 attacks
(WHICH IS STILL ON THE BOOKS)
Nixon v Fitzgerald
 President has absolute immunity from civil lawsuits for all actions taken while in office
Clinton v Jones
 Clinton says he can’t be distracted with this case and take him away from running the
country
 Jones has right for her case to be heard on harassment case
 HOLDING: can’t invoke executive privilege here, court can work around your schedule
and will defer to presidential schedule / immunity doesn’t apply to acts that happen
before person becomes President
HOW TO ANALYZE ON TEST:
2 Step approach to assess constitutionality of President
(1) Is action within scope of Presidents power under Constitution (is in Pres box)? Jackson 3
step analysis. Ex. Travel ban – is this constitutional? Congress has authorized – so yes.
(2) Does the law violate some other constitutional provision or doctrine? (ie SoP, BoR,
federalism, 10th amend) ex. Travel ban – if it was racial ban, is it equal protection clause
violation?
OFFICE HOURS: regarding travel ban, the equal protection clause only protects people within
jurisdiction, so if someone isn’t here yet, can it protect them?
TEST TIP: if exam is on commerce, it will say, “is this act of congress a violation of the
commerce clause” so it won’t be about issue spotting
Congress Limitations & Powers
 Anything that is a law has engagement with executive branch (approval or veto)
 Congress can vote to override veto
 Issue: is congress violating state rights
 Issue: did congress violate civil rights & liberties (ie constitution)
 Issue: did state violate civil rights & liberties (ie constitution)
 Express & Implied rights
o Constitution could be silent (it doesn’t expressly say that congress can have a
bank)
o 10th Amendment – all rights not granted to congress are reserved to the states
o Implied powers exist to further the express (listed or enumerated) powers
o The Means – implied – create a bank
o To the End – express – raise taxes, tax and spend
o NOTE: when congress exrecises an express ppower like power “to regulate
commerce” it can exercise that express power for any legitimate constitutional
purpose (ie to eliminate type of racism)
TEST TIP: don’t use heart of atlantta & mcclung – she doesn’t test on them – she thinks they are
confusing
McCulaugh v Maryland (commerce clause)
FACTS:
 Maryland try to tax the bank of the US
 US didn’t pay
Analysis:
Can the fed’s bank? – YES.
 Congress has the power “to make all laws which shall be necessary and proper to carry
into execution” (prof says there is a lot more to it than this)
 Necessary doesn’t mean “essential” but anything that forwards the aim of the
constitution for generations
 Powers of govt are limited, but congress has implied powers
 Constitution must allow the national legislature discretion with respect to the means by
which the powers it confers are to be carried into execution to fulfill its high duties for
the benefit of the people
 Where a law is not prohibited, and is really calculated to effect any of the objects
entrusted to the gov to undertake, it’s not the courts job to undertake inquiry of it
(there has to be a connection)
 Precedent – first congress created a bank and they wrote the constitution – so it’s likely
that their intentions were that it would be constitutional, but you have to be careful
because even the first congress could violate the constitution – so it is not by itself
conclusive
 Precedent – confederate documents did limit congress by expressly prohibiting implied
powers, the constitution that follows did not, therefore, it must imply that they wanted
to remove that restriction
 Look at other ways we operate – post office express – but driving mail from office to
office isn’t, nor is criminalizing mail theft, but we consider these rights derived from the
right to operate the post office
Can a State tax a Federal corporation? NO
 Fed law is supreme
 Taxes are an absolute right and states & fed tax concurrently
 Taxes on a fed corp would limit the fed rights by the state
 Therefore, state can’t tax fed bank
States VS FED
 Congress must only act w/in authority granted to it (express & implied)
 States may act unless constitution prohibits it
 States can’t limit rights of congress

States aren’t sovereign entities, can’t ignore federal law
Majority view – fed power comes from the people
Minority view – fed power comes from the states
Modern Example: Trump asked State of California to send CA national guard troops to Mexico
border to block entry of immigrants/refugees
What if state didn’t comply?
States are subject to Fed power
Commerce Power
“Congress has the power to regulate commerce with foreign nations, the states and Indian tribes”
Issue? Is this law w/in congress commerce power? Did they go too far?
Current definition of commerce- all aspects of business and life in the US
RULE: Congress may legislate on all commerce that has any effect on interstate commerce
Test Tip: we have to write in “the issue is …” and “the rule for this specific issue is …”
TEST TIP: focus on these cases more – Gibbons v Ogden, Gonzalez v Raisch, Jones & Laughlin,
Darby, Wickard, Heart of Atlanta (BUT KNOW WHEN TO PULL THEM OUT)
TEST TIP – TOOLBOX CASES – Wickard to Raisch
Era in cases that we use as a cautionary tale, so we can compare and say this is what the court
doesn’t want to do
Will not ask about commerce power in a manner that requires us to use all of the cases, only use
the ones we need for the issue asked – don’t regurgitate all of the rules about commerce clause
HOW TO ANALYZE ON TEST:
2 Step approach to assess constitutionality of fed law (act of congress)
(1) Is law enacted w/in scope of congress’ authority (power) under the constitution (or the
commerce power or whatever we’re looking at)
a. Vesting clause – “the necessary & proper clause” {WE DON’T NEED ON TEST for
commerce clause}
b. Economic vs non-economic (Wickard vs Lopez/Morrison)
(2) Does the law violate another constitutional provision or doctrine (ie SoP, BoR,
federalism, 10th amend)
TEST TIP: multiple choice questions will be from the slides & major takeaways in class
TEST TIP: step 1 above is where most of the analysis occurs, step 2 we will have 3 10th
amendment cases that we need to know and apply
Economics refers to “the production, distribution, and consumption of commodities” (Raich)
Must be activity for Congress to regulate (see Sebelius)
Congressional Power for Non-Economic Activities – must substantially affect interstate
commerce
 Factors:
(1) Not an essential part of larger regulation of economic activity (eg criminal, family,
education) can’t regulate (LOPEZ/Morrison) / if it is part of larger economic
regulation they can (CSA/Raich)
(2) Includes an explicit jurisdictional element (a location where crime took place)
(3) Congressional findings may help but NOT determinative factor
(4) Relies on reasoning linking the INTRA state activity and interstate commerce that is
too attenuated
 Cases: Lopez, Morrison
Considerations for scope of congress’ commerce power to regulate economic local activity
 Rational basis to conclude that economic activity cumulatively has a substantial effect
on interstate commerce
 Factors
o Essential part of larger regulation of economic activity (Wickard)
o Includes explicit jurisdictional element
o Congressional findings may help my not determinative
o Relies on reasoning linking intrastate activity to interstate commerce that is too
attenuated
 Cases: Raich, Wickard, Heart of Atlanta, McClung
TEST TIP: to determine if there is a jurisdictional element – Prof will put fact in that says “this
has an explicit jurisdiction” or “does not have an explicit jurisdiction” something about the crime
that ties it to the law. It is a drafting requirement.
TEST TIP:
(1) Identify the Government Action
(2) Does the Govt have power to do something?
(3) Does it cross the line into another branches authority?
Gibbons v Ogden (commerce power/ state monopolies) (1824)
FACTS:
 State of NY gave monopoly on ferries, licensed to Ogden
 Gibbons started ferrying items from NY to NJ
 Lawsuit for injunction to stop Gibbons
 Defense, monopoly violates commerce clause
Issue: can congress regulate what ships can be in the water?
Analysis: commerce clause
What is commerce- it exceeds just buying & selling
Includes navigation
Among the states- includes the commerce interior to the states (stream of commerce)
More states than 1
Things that happen within the state that impact other states, even where they are wholly intrastate
sales
But those things that are completely internal are left to the states
HOLDING:
Monopoly -unconstitutional – supremacy clause
Defining “commerce” – plain meaning is buying and selling / since the formation of govt,
everyone has understood that govt can legislate over navigation (boats/maritime law) and that
this is part of commerce (how things get where they need to go)
Defining “amongst the states” – would be inconvenient to mean between 2 men w/in the state, so
it must mean extending into other states or more states than 1
Commerce Different Views (not all still current holdings)
 Production isn’t commerce (employment, mining coal)
 Nat’l Industrial Recovery Act – prohibited child labor, started 40 hour work week and set
minimum wage & also regulated poultry sales for fair competition – SCOTUS holding:
unconstitutional
 Must evaluate direct and indirect impact on commerce to reach into the States’ zones,
only direct effect is constitutional for congress to legislate
 Stream of Commerce
 Sherman Antitrust Act – constitutional (price setting)
 Mining, production and manufacturing – reserved for states under 10th amendment
 The lottery case – states can have a lottery, but they can’t sell out of state tickets
 1890-1937 – courts hold commerce power to be a very limited power
 1927-1995- very broad federal commerce power
NLRB v Jones & Laughlin Steel Corp.
Steel has many locations, many employees
Case is about labor discrimination, layoffs and strikes
National Labor Relations Act – constitutional. – defines “affecting commerce” as burdening or
obstructing the free flow of commerce or leading a labor dispute that affects commerce
RULE: congress has constitutional power under commerce clause to pass national labor relations
act

Effect on commerce is focus, not source of labor dispute
US v Darby (1941)
Issue: can congress prohibit interstate sale of lumber produced by people not making minimum
wage and working more than the max hours per week? Can it restrict employees wages & hours
if they produce products for interstate commerce? Does 10th amendment restrict?


Fair Labor Standards Act – forbits interstate commerce for goods produced under
conditions detrimental to health & wellbeing
HOLDING: constitutional to restrict labor conditions for products that enter interstate
commerce b/c congress can determine the means for executing the labor laws act
Wickard v Filburn


Agriculture adjustment act – limits wheat harvest to stabilize supply & demand
HOLDING: congress has a right to limit how much wheat is harvested (reach goes that
far)
RULE: IF ACTION HAS A SUBSTANTIAL AFFECT ON INTERSTATE COMMERCE, CONGRESS
CAN LEGISLATE IT – is there a rational basis to connect {IF THERE IS ANY
CONNECTION,THERE IS ALWAYS A CONNECTION}
Heart of Atlanta Motel v US (1964)
Hotel wanted to prohibit black guests from staying there
Guests come from interstate
The court used commerce clause to end racial discrimination in hotels
Based on need for a whole group of citizens to travel within US
Katzenbacj v McClung
BBQ restaurant with seating for 220 made black people take out dine only
Substantial portion of food came from interstate
Served interstate diners
Hodel v Indiana
A court may invalidate legislation enacted under the Commerce Clause only if there is no
rational basis for the congressional finding that the regulated activity affects interstate
commerce, or that there is no reasonable connection between the regulatory means selected and
the asserted end.
RULE: in another case, Judge Renquist reminded us that the commerce power is not unlimited. It
can’t reach to commerce where there is no connection to interstate commerce or there is no
substantial effect on commerce.
Perez v US
Loan sharking has interstate effects
TEST TIP: we aren’t getting into any analysis on the issue being a rational connection, just
explaining how it would be reviewed.
Jones & Laughlin:
Whether Congress has a rational basis to conlude that activity regulated considered in the
aggregate has a substantial effect on interstate commerce”
TEST TIP: what is the likelihood of succeeding? It is difficult to determine who will succeed
under the Lopez/Morrison analysis because it is highly discretionary. It’s good for our client if
our client is the one who wants to challenge the commerce power.
US v Lopez
RULE: 3 channels which congress may use commerce power
(1) Regulate the use of channels of interstate commerce
(2) Regulate and protect the instrumentalities of interest commerce, or persons or
things in interstate commerce even though the threat may come only from
intrastate activities
(3) Regulate those activities having a substantial affect ion interstate commerce, local
commerce (intrastate) that impacts interstate
a. Wickard Test – threshold test – impacts interstate
b. Lopez / Morrison Analysis – substantial affect in purely local activity
c. How to know which one applies – use Gonzalez or Raich
TEST TIP: #3 is the one that she will likely test us on in the exam – apply a legal test, not an
economic test (DON’T GO TO HOW MUCH MONEY IS SPENT)
HOLDING: requires substantial affect
FACTS: Congress passed gun zone act to keep guns 1000 feet from schools
Govt argument – impact on education would impact economy, impact on safe neighborhoods
reduces travelers
Board or specific governmental regulation? THIS WAS A TINY, SPECIFIC LAW
Is it essential to the regulation? IT’S THE ONLY ELEMENT OF THE LAW
Is there a jurisdictional issue? LACKED A JURISDICTIONAL ELEMENT
Court could not find substantial effect on commerce
Goes too far and would remove state authority
PROF: everything we do today has an impact on interstate commerce. The test is if it has a
substantial effect. This is the factors listed above for non-economic activity regulation. If it lacks
any of the factors, it is less likely that the congress has the power. However, the court has the
discretion to make that decision. None of the factors are dispositive. If it has all of the factors, it
still isn’t even a sure thing that the judge will go in your favor. It’s going to end up depending on
who you get as a judge and where you are litigating the case.
Congressional findings are based on witness reports, this is economists, experts, etc which tie the
regulation to interstate commerce
Relies on reasoning linking the intrastate activity and interstate commerce that is too attenuated –
the answer is not what is the economic impact, the question is whether the law itself relies on
reasoning linking the local intrastate activity (bringing gun to school) and interstate commerce
that is too attenuated. In Lopez, they aren’t being deferential to congress at all. They are
evaluating if the reasoning is too attenuated.
TEST TIP
PROF: will give underlying reasoning of law
RULE: Verbatim…
“relies on reasoning linking the intrastate activity and interstate commerce that is too attenuated”
Then say verbatim…
The side that wants the law to cross the line will say it is too attenuated.
The side that wants to uphold the law, will say it is not too attenuated.
OFFICE HOURS: does she want us to then follow this with “here’s the facts that they will look
at”
“If we allowed Congress to regulate this, it would leave nothing for the states”
“it would create a federal police power”
“too many links in the chain”
DO NOT SAY direct or indirect. This is wording from another case and we don’t want to
confuse.
If you can make it like Lopez & Morrison, you can make it like congress doesn’t have power to
regulate
US v Morrison
Morrison raped a woman at his college
She sued based on violence against women act
Congress tried to say that violence against women impacted the economy
HOLDING: this is too far, it would make any crime have a substantial impact on economy and
therefore wipe out division of state and fed.
RULE: CONGRESS MAY NOT REGULATE Non-Economic, violent criminal conduct based
solely on that conduct’s aggregate affect on commerce
The law is too stretchy as far as linking the reasoning for the law to the commerce clause
Gonzales v Raich
Controlled Substances Act – Constitutional w/in Commerce Power
Medical MJ in CA – state oks
Relies on Wickard where the production of product for home consumption impacts the interstate
market pricing
Here, MJ is 0 sales interstate, but allowing it for home consumption might allow it to seep into
interstate market
DISTINGUISHES FROM LOPEZ & MORSSION – “activities governed by CSA is
quintessentially economic (production, distribution & consumption of commodities) , where
lopez & morrison are criminal activities” The overall CSA satisfies the economic definition,
selling drugs is lucrative business. The Gun Control Act and Violence Against Women Act
primary purpose is to regulate criminal acts.
TEST TIP: is activity or item in question a commodity? Then, prediction is Congress will win.
“IN FACT, WE NEED NOT DETERMINE WHETHER ACTIVITIES TAKEN IN THE
AGGREGATE IMPACT INTERSTATE COMMERCE, BUT WHETHER THERE IS A
RATIONAL BASIS FOR CONGRESS TO CONCLUDE THAT IT DOES”
HOLDING – congress can prohibit intrastate manufacture and possession of MJ for medical
purposes legal under state law because the product could get into commerce
RULE: CONGRESS CAN REGULATE PURELY LOCAL ACTIVITIES WHEN CONGRESS
HAS A RATIONAL BASIS FOR BELIEVING THAT FAILING TO REGULATE WOULD
INTEREFERE WITH THEIR ABILITY REGULATE INTERSTATE COMMERCE, OR
WHERE ONE STATE IMPACTS OTHER STATES ACTIVITIES, WHERE UNIFORMITY IS
NECESSARY
Other Congressional Actions like the CSA:
 Stand alone statutes within broad regulatory scheme
Clean Water Act – passed pursuant to commerce power
CSA governs the sale of illegal drugs
CWA governs manufacturing
NOTE: Any law that conflicts with the SCOTUS cases is null and void, where there is a state
law in conflict with a federal law that hasn’t been decided, it is possible the fed law could be
unconstitutional and would need to be decided.
Taxing & Spending Power
Butler
Congress has the right to tax and spend for the general welfare of the people
Goes beyond enumerated powers
Most current leading case
Upholding Agricultural Act
NFIB v Sebelius
Affordable Care Act – requiring individuals to purchase insurance
Can commerce act reach individuals? No
Congress does not have the power under the commerce clause to enact the individual mandate of
the affordable care act because the mandate does not regulate pre-existing activity
Congress can’t make people buy stuff (can restrict activity, but not create activity)
Is it covered by commerce clause – maybe, not answered in this case, split judges
Is ACA a tax?
Yes, congress can tax people for not getting health insurance
Can tax for general welfare, thereby creating an individual mandate
PRIMARY HOLDING: w/in TAXING POWER
TEST TIP: won’t have to apply this case on the exam
No taxing power questions on test
Commerce Power Hypos
#1 :
Safe Skies Act – felony to assault pilot or flight crew on any domestic or int’l flight
Like waterways travel case
Joe arrested on flight from LA to Miami for threatening flight attendant
CONSIDER THE QUESTION:
Is act constitutional? (TWO STEPS)
 Not local activity – its interstate activity – Congress has the power to reulate the
instrumentalities and people that move in interstate commerce (Lopez, Heart of
Atlanta)
 Does it violate 10th Amendment?
o No, this law isn’t requiring states to legislate, nor does it commendeer state
officials to enforce fed law
Is act authorized under commerce power? (ONE STEP)
 Not local activity – its interstate activity – Congress has the power to reulate the
instrumentalities and people that move in interstate commerce (Lopez, Heart of
Atlanta)
#2
Second hand smoke – costs $2 Billion due to health care expnditures and lost work time
NO SMOKING BY CHILDREN ACT – prohibits smoking by child related facility, including
schools, day cares, childrens hospitals and orphanages
Julie arrested for violating act
Arguments Julie’s attorney will make
Commerce Power
Issue – is this act w/in commerce clause authority
Rule – congress can regulate non-economic activity when it substantially affects interstate
commerce,
Similar to gun control act case (LOPEZ) this case is about regulating behavior of an individual
Jurisdictional element – not explicit (cigarette would have to be from specific place)
TEST TIP: prof wants us to say “if court finds an economic activity, it will apply the Wickard
test … If court finds it is not an economic activity it will apply the Morrison/Lopez test…”
Is smoking a cigarette a commercial activity? – no. she isn’t selling cigarettes, she is just
smoking it.
**REVIEW ANSWER OUTLINE IN SET 7 Of Powerpoints**
Congressional findings – increases health care costs, decreases worker productivity;
Julie will argue – these are too attenuated
Not connected to a broader regulatory scheme
In this course, just put economic/non-economic rule in toolbox, say its from Raich
But don’t need to get into it ourselves for application.
Economic is regulation of the production, distribution and consumption of a commodity for
which there is an established market.
Non-economic is everything else.
ON EXAM – WE WILL BE ASKED TO ARGUE FOR BOTH SIDES
ON EXAM – do not go into “is this just buying and selling” b/c commerce is all aspects of
business and life in the US
10th Amendment limiting congressional power
TEST TIP:
Issue: Does this law commandeer the states and therefore a violation of 10th Amendment? Where
the power should be reserved for the state.
Rule: Law that violates 10th amendment when the law commandeers states where it (1) requires
them to adopt legislation or (2) to enforce federal law
SCOTUS enforces 10th Amendment, which reads
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States,
are reserved to the States respectively, or to the people.
Analysis:
New York v US
Who can regulate disposal of radioactive waste within the states?
LowLevel Radioactive Waste Policy Amendment Act of 1985 – requires states to acquire the
waste to dispose of it if they can’t accommodate it at a disposal site within the state (TAKE
TITLE)
Congress may not commandeer state legislatures
BUT…
(1) With spending power, can direct funding based on its wishes
a. Attach conditions on receipt of federal funds, provided that the condition is
related to the purpose of the federal spending
(2) Offer states ability to regulate according to federal laws or have theirs pre-empted
a. OSHA
b. Clean Water Act
c. Resource Conservation & Recovery Act
HOLDING: monetary & access incentives are constitutional under spending power
HOLDING: offering to regulate or take title is commandeering –
 Congress can’t make a state regulate
 Congress can’t make a state take title
This is unconstitutional coercion
Printz v US
Brady Bill – Hand Gun Act – requires background checks for sale of guns that cross state lines.
Temporary requirement of state police to run background checks on gun buyers in order to
enforce federal law, until feds could do them
HOLDING: Congress can’t commandeer States law enforcement officers to enforce FED law
TEST TIP: are officers or state employees involved? (prof mentioned health care workers
w/congressional act on coronavirus)
Reno v Condon
Driver Privacy Protection Act – regulates privacy of info obtained by DMV, it is generally
applicable, meaning it applies to all databases not just states
Prohibits states from selling driver information
Commerce Clause – Yes
The information is sold interstate
10th Amendment- Congress has the power to regulate database owners (including state database
owners) and disclosure of personal info in the DMV records
It is not a law that regulates only states
A state wishing to take part in commerce must subject itself to federal regulation
It would not be outside the law
TEST TIP: which side wants to support 10th amendment and which doesn’t. Do
commandeering/not commandeering
ALSO, for Reno v Condon – does Act by Congress regulate everyone or only state
The Dormant Commerce Clause
ISSUE: Is a law discriminatory against out of staters or are instate & out of staters treated the
same? Likely unconstitutional pursuant to commerce clause if it discriminates against out of
staters. This is where congress expressly legislates, not states. Where it is non-discrimintory –
there is a presumption of constitutionality, where it would be stuck down only if the law burdens
on interstate commerce outweigh its benefits. In facially neutral, strict scrutiny requires both
discriminatory purpose and discriminatory effect.
PURPOSE FOR LAW:
(1) How means fits the ends
(2) How law fits its purpose
Balancing test – needs of state vs interstate commerce free flow
Interpretation of the commerce clause as imposing limits on state power
People can challenge state laws as unconstitutional if they impact interstate commerce
(Arguments are similar to equal protection arguments)
TEST TIP: Not testing on this for essay
On multiple choice – she would say use our intuition if something is discriminatory
Exceptions: state law doesn’t violate commerce clause when it is acting as the seller or buyer, vs
regulating.
Facially Neutral & Facially Discriminatory Laws
Test Tip: not testing on anything but "virtual nullity" of 14th amend in multiple choice
City of Philadelphia v New Jersey (discriminatory on its face)
NJ prohibits importation of waste
HOLDING: where simple economic protectionalism is effected by state legislation, the law is
void
States can’t block the flow of interstate commerce
Hunt, Gov of NC v WA State Apple Commission (discriminatory effect)
NC adopts law requiring USDA grading system, forbidding state grading system
WA uses state grading system, superior to USDA
Increases cost for WA to do business with NC
HOLDING: unconstitutional, NC had alternatives (could have allowed both grading systems on
containers)
Dean Milk v City of Madison, WI (discriminatory on its face)
Madison prohibits sale of milk marked as pasteurized unless it was done in a plant within 5 miles
of the city center square (or in Madison) under the guise of health benefits for citizens
Dean is from Illinois
HOLDING: unconstitutional, other means to protect health, such as inspection of the milk
Maine v Taylor & US
Maine prohibits import of live bait fish, legitimate state interest is to protect fisheries from
parasites
Taylor ordered 158000 fish to be delivered to him in Maine.
Shipment intercepted.
States have power to regulate matters of legitimate local concern
Violations – state burdens interstate commerce outweigh the benefit to the locality are “clearly
excessive in relation to benefits”
State has to show that it serves a “legitimate purpose” and that non-discriminatory alternatives
aren’t available
HOLDING: Maine law upheld – state doesn’t have to wait for disaster to occur
Loren Pike v Bruce Church
Cantaloupe company on CA AZ border stopped from packaging in CA
AZ wanted to retain reputation for superior AZ cantalopes
Cost to build packing plant in AZ is $200,000
This cost outweighs the benefit of reputation
HOLDING: unconstitutional
ARITCLE IV PRIVILEGES AND IMMUITIES CLAUSE
The citizens of each state shall be entitled to the privileges and immunities among the states.
(article XIV – state can’t abridge privileges or immunities clause – court says this protects
virtually nothing/is a nullity slaughterhouse cases)
Slaughterhouse Cases - how court interprets 13 & 14th amendments and how it differs from
current interpretations
14th Amendment is a virtual nullity "no state shall make or enforce any law which shall abridge
the privileges or immunities of citizenship of the US"
Scholarly discussion - should the 14th amendment make the bill of rights (amendments 1-8)
applicable to the states
Holding in Slaughterhouse cases - privileges & immunities applies to a shorter set of rights than
the bill of rights
Incorporation - being interpreted broadly
THE CIVIL RIGHTS CASES
Constitutionality of a civil rights act - In the Civil Rights Cases - (or the ANTI CIVIL RIGHTS
CASES)
Majority Opinion:
 13th amend - only applies to abolishing slavery - doesn't apply to discrimination,
Congress lacks authority to protect rights of formerly enslaved Americans (since
overruled)
 Congress lacks authority under Sec 5 of the 14th Amendment to regulate private
conduct (this is still good law)
 state action doctrine
 hotels, theaters, inns, etc are places of public agents subject to government regulation
(Harlan dissent)
who is litigating civil rights cases - citizens denied access to hotels, theaters
public accommodation laws - state
Court said that Congress doesn't have power to pass Civil Rights Act of 1875 - but this has
changed
Recently, baker refused to make gay couple a wedding cake - violation of Colorado's civil rights
laws, baker challenged law as violating his right under 1st amendment
baker loses - balance of rights
2015 pizza parlor does same thing - religious freedom – COURT SAYS Not right
STATE ACTION DOCTRINE (will be on MC on test, not essay) - states can't deny any race
or class equal protection, doesn't have to do with individual invasion of individual rights (people
can discriminate, state can't)


Bill of Rights only applies to government actors (state, cities, state schools like UCLA,
etc) it does not apply to private actors (loyola law school, business)
state laws can provide protections
TEST TIP: it will have government actor, a city, state, etc it will not be a private action
essay isn't going to be on state action doctrine
Two Exceptions to the State Action Doctrine (where a private actor must comply with
Constitution):
(1) Public Function Exception - if a private entity performs a task traditionally,
exclusively performed by the government, the constitution applies
 Marsh v Alabama - private company ran a town, citizen tried to operate religion,
town denied access, citizen sued, town tried to hold 1st amendment right - town
lost because they took on govt role by running town
(2) Entanglement Exception - if the government affirmatively authorizes, facilities, or
encourages unconstitutional conduct, the constitution applies
 examples: parking lot is govt owned, restaurant is in a govt building, 80% of kids
are at public school,
 the public entity is so entangled with the government, the exception is
applicable here
Test Tip: this isn’t on exam – only need to know 2 exceptions Public function & Entanglement
for MC.
Equal Protection Clause - no state shall deny to any person within its jurisdiction the equal
protection of the laws
SUBSTANTIVE DUE PROCESS – what kind of laws state can pass
Toolbox Cases: for exam
*priority cases for exam, usually last cases on section for modern laws
Roe, Casey, Whole Women’s Health – government action regulating an abortion – but not on
Essay
*Lawrence (*lexture for key takeaways) & *Obergerfeld – Modern Substantive Due Process
cases- tested on exam
*Bowers – overturned by Lawrence – so not on exam, *dissenting opinion by justice Blackman
is more helpful for us on exam to make argument under substantive due process
*Gluxberg – really pay attention to this case- on exam
Pierce & Meyer – remain good law (Lochner era cases, substance isn’t very helpful, “liberty”
means unenumerated fundamental rights for parents to raise their children)
Moore- good law
Micheal H – good law
Loving v VA – good law
Griswald v CT – good law, with caveats, not lead opinion, but concurring opinion is used today
INCORPORATION CASES – little need to apply, but still good law – we just have to know
what incorporation is, we will not have to apply it on exam
Carolene & Williamson – good law for rational basis testing
Other cases are foundational – not on exam, Lochner era


Due Process Clause of 5th amendment – issue is whether govt interference is justified by
a sufficient purpose (best used if law denied right to everyone)
Equal Protection Clause of 14th amendment – issue is govt discrimination as to who can
the right is justified by sufficient purpose (law only prohibits some discrimination is
better method to argue)
Deprive “liberty” – can’t take citizen’s rights, unenumerated liberties
Infringing non-fundamental rights can be justified by reasonable basis test – govt must have
compelling interest to justify infringement & only has to be a reasonable way to achieve the goal
and govt isn’t required to use a less restrictive alternative
 Govt purpose can be anything, so long as it isn’t unconstitutional
Fundamental Rights (remember, there are no absolute rights, just higher scrutiny to regulate
“more searching judicial inquiry”)



Govt can’t infringe w/o strict scrutiny “more searching judicial inquiry”
Strict scrutiny is “govt action must be necessary to achieve a compelling process”
Rights classified as fundamental:
o Family autonomy
o Procreation
o Sexual activity & orientation
o Medical care decision making
o Travel
o Voting
o Access to the court
o Freedom of speech
o Freedom of religion
o Safeguard from unwarranted search & seizure (4th amend)
o Self-incrimination / double jeopardy (5th amend)
o Speedy trial before impartial jury (6th amend)
o Right to bail / prohibition of cruel & unusual punishment (8th amend)
How to answer question:
1. Is there a fundamental right? Use constitutional interpretation to answer
a. Originalists – rights are limited to those explicitly stated in Constitution or
intention of framers / courts overstep when granting more
b. Non-originalism – court can give more rights
c. Moral consensus of society
d. Prefect role of govt
e. Natural law principles
2. Is that right infringed?
a. Direct and substantial interference with a right (not much discussion about this
in court decisions)
3. Is the govt justified by sufficient purpose?
a. Compelling purpose for law / goal / end
b. Examples: winning a war, children receive adequate care
c. Just need to show that it is permissible, where the court can conceive any goal
not prohibited by the constitution, legitimate public purpose, doesn’t have to be
the actual goal of the law (just anything that the court can conceive)
4. Are the means sufficiently related to the goal sought?
a. Law is NECESSARY to achieve objective (no alternative less restrictive) / means
b. Must prove no other less intrusive law works
US v Carolene Products (economic regulation not a violation)
ISSUE: Is Congress’s Filled Milk Act a violation of due process?
Rational Basis Review - is there a connection to legitimate govt action? (pg 638)
 Could Rest the Decision Wholly on the Presumption of Constitutionality (Prof Fav part)
 Gives deference to Congress, who received scientists give reports that filled milk is bad
for citizens
 Health of public – legitimate govt
 Universally used product - milk
Right to contract
Post 1937, the default is to defer to Congress for ordinary commercial transactions
(unless there is another law that requires you to apply something different)
Footnote 4 – this is what the opinion has been about for a long time (but it’s not really used
anymore), when court applies more than rational basis includes infringement on fundamental
rights, political process (voting), & prejudice against “discrete & insular minorities” in the voting
process, then court will apply strict scrutiny or another method more than rational basis
(heightened scrutiny)
 Discrete & insular - where numerical minority wouldn’t be able to vote out the bad
politician
TEST TIP – won’t use footnote 4 as doctrinal, it is a theory as to when the court should apply
heighten or strict scrutiny
Williamson v Lee Optical (economic regulation unlikely to violate due process)
 Is state law requiring ophthalmologist exam to get new glasses made as opposed to
giving existing glasses to optician and have another copy made or put lenses from old
glasses in new frames



This law was meant to line the pockets of eye doctors, but the court still was deferential
to the state (for the legislature to decide)
even if the law is needless, wasteful, the legislature gets to decide
Court upheld state law

Rational in law school, isn’t really rational, can conceive any goal for govt purpose

If the people don’t like what the legislature is doing, they vote them out
TEST: use her format for issue;
Hypo: does this law passed violate the due process clause constitution?
Rule: if the law in question infringes on a fundamental right, it gets strict scrutiny, if it doesn’t,
then it has to pass the rational basis test.
Fundamental right – use toolbox case
Strict Scrutiny needs (1) legitimate purpose & (2) no other alternative which is less intrusive
Under strict scrutiny, the infringement of a fundamental right is presumed
unconstitutional
Compare what we have cases on as legitimate purposes, then say it is like this or not
(there isn’t a list of what is a legitimate purpose)
Rational basis need (1) some connection to legitimate govt purpose
Arguments – (1) show that the right is already protected as a fundamental right
2) the right should be a fundamental right, based on the other rights
TEST TIP: Anything pre-1937 – don’t use
Incorporation – bill of rights limit rights of states
 Court looks at due process clause of 14th amendment and determines whether the
provisions of the bill of rights are violated, specifically to individual liberties
o unauthorized state/city police search is a violation of the 14 th amendment
o State / city can’t violate 4th amendment
o FBI- would violate 4th amendment by unauthorized search
 Selective incorporation (Palko v Conn) – justices pick some parts of the amendments
that are incorporated and some that aren’t. for example, 1 st amendment is fully
incorporated, 5th grand jury for criminal indictment isn’t incorporated, 7th jury trial in
civil cases isn’t incorporated, 3rd amendment – quartering soldiers has never come
before the court
o TEST that court applies – “principle of justice so rooted in the conscience and
traditions of our people to be ranked as fundamental” “basic in our system of
jurisprudence” (PALKO TEST)
o ISSUE: whether the liberty being protected is so rooted in the conscience of our
people to be ranked as fundamental (need for exam)
o It’s a subjective test, so you end up using your own politics
o What it means to apply this test: whether trying someone twice for a crime, is a
principle of justice that is so part of the American legal tradition, and the

conscience of the people, looking backward, is something that as a matter of
history, so rooted in our history, that it must be protected, and this kind of
liberty the citizens have based on our history
In 2020, all rights are incorporated
Substantive due process is about liberty (autonomy) / when can the government infringe on your
freedom
THERE ARE NO 9th AMENDMENT RIGHTS – on MC – don’t choose 9th Amendment
DO NOT DO ANY 9th Amendment analysis
Never choose 9th Amend on MC as an amendment violated by law
Lochner Area – 1900-1936 – liberty to contract as limit on right, but this has been overturned it’s
no longer a fundamental right to contract
Post Lochner – laws regulating the economy and “ordinary” legislation do not infringe upon a
fundamental right; so the standard is “does the govt has a rational basis for the law”
TEST: we won’t have to do Lochner substantive due process in either MC or Essay
Lochner v New York (1905)
Issue: whether or not the NY law that set wage & hours for bakers violates due process clause of
14th Amendment by violating fundamental right to contract
Analysis: version of heightened scrutiny, a version of substantive due process
States have police power – the means to protect health & welfare of citizens
Bakers can negotiate terms in contract to protect themselves
RULE: State legislature can’t make a law that violates civil /fundamental rights
In 2020: there is no fundamental right to contract
Harlan dissent: should allow states to protect wellness of its citizens
Holmes dissent: court shouldn’t be involved in economic policy making
Muller v Oregon (1908)
State labor law, sets women’s max hours to 10 a day in factories & laundries
“the physical well-being of woman becomes an object of public interest and care in order to preserve
the strength and vigor of the race”
Court Upholds state law, doesn’t violate liberty to contract, public policy outweighs
Adkins v Childrens Hospital (1923)
 DC has minimum wage for women
 "[in] view of the great—not to say revolutionary—changes which have taken place since
[Muller], in the contractual, political, and civil status of women, culminating in the Nineteenth
Amendment, it is not unreasonable to say that these differences have now come almost, if
not quite, to the vanishing point."

HOLDING: violates freedom of contract
Weaver v Palmer Bros. (1926)
 A statute banned the use of cut up fabrics in the manufacturing of bedding based on
concerns over public health. The statute did allow for the use of other secondhand fabrics
after sterilization.



Sterilization was reasonable alternative to prohibition on reusing fabrics
Fundamental right to contract, can’t tell them to make the product a certain way,
infringing on right to run business
HOLDING: violation of 14th Amendment, reasonable alternative would have achieved
the end
Nebia v NY (FALL OF “LIBERTY TO CONTRACT”) (1937)





Nebia owns a store and sells 2 gallons of milk & a loaf of bread for 18 cents
NY sets minimum price of milk at 9 cents a gallon
Following a lengthy discussion of the Due Process Clause, the Court held that since the
price controls were not "arbitrary, discriminatory, or demonstrably irrelevant" to the
policy adopted by the legislature to promote the general welfare, the regulation was
constitutional.
In an opinion authored by Justice Owen Roberts, the Court reasoned that regulations
are not an inappropriate way to serve the public interest. When industry is particularly
tied into a public interest, it is more subject to the state police powers. Courts may not
override policy decisions by states in this area on the grounds of due process unless
rational basis review is not satisfied.
Rational basis review, which is used for economic regulations, requires that the law is
not unreasonable or arbitrary and also that there is a reasonable relationship between
the law and the interest that it serves. Price regulations are not per se beyond the
framework of due process.
Switch in Time Saves 9 – Roberts switched his vote to sway majority, and FDR chilled out on
the court, not adding more justices
 Political pressure on the court from FDR New Deal to force judges to retire, which
justices didn’t want (because Roberts changed position, this issue was dropped)
 Switch in Time Saves 9 – if they don’t start getting it together, the Pres would keep
adding judges and therefore the composition of the court would change
West Coast Hotel (1937)
 Employee claims wages which she did not receive between what she was paid and the
state minimum wages
 Court finds for employee

The West Coast decision heralded the end of the Lochner era
WHAT’S ON EXAM – RECORDING – 3/23 at beginning of recording and end.
Essay portion: will be from one of these: commerce clause, SDP, EP (on exam)
Focus on
 Dc v Heller, sections that set forth holding, why the law is unconstitutional & description
of 2nd amendment as protecting arms rights as not an unlimited right (prohibits felons) /
don’t need interpretation part
 Not testing justiciability
 Political questions doctrine (thinks she left this open, but low likelihood) / how highly
discretionary it is
 3 zone analysis of Youngstown, how to apply it
 Wickard, lopez, riach,
 Butler (tax power), only part 3 of sebelius (taxing)
 NY, Pritz, Reno (relisten to lecture on this)
 Williams v Lee Optical (how low the standard is for rational basis
 Loving, Michael H
 Glucksburg (we cite this for the rule in substantive due process(SDP))
 Bowers, Lawrence, Obergefell (give confidence in doing SDP)
 Abortion cases – lectures
 Plessy, Brown 1 & 2 , Loving, Korematsu (all EP cases)
 All week 14 cases are super important
 All week 15 cases are super important
Griswold v Connecticut (listen to the video again for 3-25-2020 about an hour in)
(Reproductive autonomy)
 Connecticut banned doctors from prescribing contraceptives to married couples
 Planned parenthood did it
 SCOTUS says: personal autonomy & privacy is priority here, you can’t go into the marital
bedroom and tell them how to be intimate
 Court cites to concurring opinion of Harlan regarding SDP (violates basic concepts of
liberty)
Current Majority Rule:
 Court has discretion over which description of Asserted Interest to accept; Consider
BUT NOT BOUND BY Palko Tradition & History analysis; Precedent-based
Reasoned Judgment as to whether interest should be new fundamental right
 protection of non-textual rights requires “careful description of the asserted
fundamental liberty interest.”
 Plaintiff description typically broad (i.e. “parenthood” is a fundamental right)
 Defendant description typically narrow (i.e. “fatherhood rights of men who have
affairs with married women and get them pregnant” is not a fundamental right)
(rejected) Dissenting View:
Consider ONLY Palko Tradition & History analysis & Court must adopt narrow
description of Asserted Interest
non-textual rights protected only if = “a tradition,” stated at the most specific level of
abstraction for protecting the right
**IT COULD BE THAT THIS FLIPS WITH CURRENT COURT**
NON-FORMULAIC CONSIDERATIONS FOR ARGUING NON-FUNDAMENTAL
LIBERTY INTEREST SHOULD BE A FUNDAMENTAL RIGHT
1. Both plaintiff and defendant argue their view of correct way to DESCRIBE the
liberty interest infringed by the law
2. Apply “history and tradition” (Palko v. CT) test
3. Plaintiff will be sure to note that “history and tradition” test is a “starting point not
a stopping point”/defendant will acknowledge this is accurate based on Lawrence v.
TX; Obergefell v. Hodges
4. Plaintiff and defendant will make arguments asking Court to follow or distinguish
its substantive due process precedent cases (i.e. Griswold; Moore; etc.) based on
whether law infringes on decisional autonomy and/or spatial autonomy in ways
similar to the Court’s analysis in prior majority SDP cases
5. Plaintiff will argue that Court can rely on other considerations as Justice Kennedy
did in Lawrence and Obergefell cases
Loving v Virginia (marrigage autonomy)
 Massegination – cross race marriage banned in VA
 Loving’s get married in a state where it isn’t illegal
 Move to VA, get kicked out of state
 SDP & EP claims
 Fundamental right to marry (based on race) BROAD/(narrow)
o Narrow use of case – what is problematic about govt action, regulating on basis
of race,
o Broad use – never interpreted broadly by supreme court to make an easy case of
other marriage issues
Zablocki v Redhail
Prevented from getting a marriage license
Wisconsin law prohibited a man who hadn’t paid child support to get married again
This violated the due process clause of the 14th Amendment
Strict scrutiny – (1) legitimate govt purpose AND (2) that law is only way to achieve that
purpose
(1) Taking care of children is valid govt purpose
(2) Withholding marriage license not the only way to achieve it
a. Ie garnish wages
HOLDING: right to marry is fundamental, which means that messing with it requires a whole
heck of a lot, interrogate with suspicion the motive
Michael H v Gerald D (Parental Rights) (1989)
CA Law – kids presumed to belong to married husband, unless challenged by paternal father
within 2 years of birth
FACTS: intl model, french oil exec, married and live in Playa del Rey
Model has affair with neighbor, husband moves to NYC
Neighbor paternity test proves child is his, he wants visitation
HOLDING: Bio father doesn’t have a constitutional right over marital father (NOT A
FUNDAMENTAL RIGHT)
So this case applies rational basis
NOTE: judgement of the court – means that the reasoning isn’t applicable on future cases (does
not set precedent) because it didn’t have a majority of judges approve it
NON-FUNDAMENTAL RIGHT ARGUMENT
1. Both plaintiff and defendant argue their view of correct way to DESCRIBE the liberty
interest infringed by the law
1. Plaintiff – right of natural father to be with his biological child
2. Govt – civil code presumes married husband to be father (WINS) (COURTS
PROTECT MARITAL FAMILY, ADULTERY ISN’T SUPPORTED Michael H)
3. New law, how p is going to describe it, follow lead of Michael H or Bowers,
Moore
2. Apply “history and tradition” (Palko v. CT) test
1. Plaintiff – biological fatherhood, paternal relationship disrupts marriage
2. Govt – history protects family (WINS) (COURT HAS NEVER HELD THAT
MULTIPLE FATHERS ARE RECOGNIZED)
1. Good defense lawyers do not go to court and ask for judge to support a
dissent, which is bad law DON’T SAY STOP AT STEP 2, WE HAVE TO
CONTINUE FOR ALL OF THE STEPS
2. Both sides have to acknowledge the majority rule as good law (Palko
Majority)
1. Current Majority Rule:
2. Court has discretion over which description of Asserted
Interest to accept; Consider BUT NOT BOUND BY Palko
Tradition & History analysis; Precedent-based Reasoned
Judgment as to whether interest should be new fundamental
right
3. protection of non-textual rights requires “careful description of
the asserted fundamental liberty interest.”
4. Plaintiff description typically broad (i.e. “parenthood” is a
fundamental right)
5. Defendant description typically narrow (i.e. “fatherhood rights
of men who have affairs with married women and get them
pregnant” is not a fundamental right)
3. Plaintiff will be sure to note that “history and tradition” test is a “starting point not a
stopping point”/defendant will acknowledge this is accurate based on Lawrence v. TX;
Obergefell v. Hodges
4. Plaintiff and defendant will make arguments asking Court to follow or distinguish its
substantive due process precedent cases (i.e. Griswold; Moore; USE ALL TOOLBOX
CASES THAT ARE POSSIBLE, etc.) based on whether law infringes on decisional
autonomy and/or spatial autonomy in ways similar to the Court’s analysis in prior
majority SDP cases
1. What have we done in the past about the topic on the table?
2. Arguing something that isn’t already a fundamental right – see also footnote 6 of
Michael H
3. Govt saying that the child’s dad is someone other than who it is Michael H
4. How can I make this fact pattern align with the case law? Use the cases, not
the powerpoint slides (TAB CASES, CITE SPECIFIC)
5. Protecting decisions that should be autonomous without government
deciding for your
1. Family choice – who is family, who you live with
2. Parental choice- knocking up a married woman, taking birth control
3. Sex choice – who you have sex with & how
4. Argue to the judge that precedent is on your side
5. Is it a govt power that should stay in Professors box or does it cross
the line?
6. Why should the government get to control these decisions, can people
not make good choices on their own, what’s impact of what we
consider to be a bad choice,
5. Plaintiff will argue that Court can rely on other considerations as Justice Kennedy did in
Lawrence and Obergefell cases
“The individual’s right to make certain unusually important decisions that will affect his own or
his family’s destiny. The court has referred to such decisions as implicating basic values as being
fundamental and as being dignified by history and tradition.” Bowers v Hardwick
“The character of the courts language in these cases bring to mind the origins of the American
heritage of freedom – the abiding interest in individual liberty makes certain state intrusions on
the citizens right to decide how he will live his own life intolerable.” Bowers v Hardwick
Unlisted, unenumerated, non-textual fundamental rights – what we are dealing with for
substantive due process rights
Where the constitution has been found to prohibit the government from regulating these rights
ECONOMIC RIGHTS AREN’T PROTECTED
Does this regulation infringe on a fundamental right?
If it does not, then we have to use rational basis test
Lee Optical / Carolene Products
If it does, then the govt has to meet the higher standard of strict scrutiny.
Using rational basis – has a presumption of constitutionality
Using strict scrutiny – has a presumption of unconstitutionality
Moore v City of East Cleveland
**Used a lot in string sites (can get it on lexis)**
Cleveland housing ordinance limits “family” to nuclear family
Criminal to live with grandkids
Reason – reduce traffic & overcrowding
History & Tradition – family protected
Can govt say grandma can’t live with grandkids? This is nuts. She got 5 days in jail. WTF
Pg 991 – what is being protected is a freedom of personal choice
Myers v Nebraska – don’t dig into reasoning because they are Lochner cases
Could site as a “we don’t want to go back to this”
But not required to cite this case
NE had law, no foreign language classes until kid passes 8th grade
Pierce v. Society of Sisters
don’t dig into reasoning because they are Lochner cases
Buck v Bell
Counter precedent – sterilization of poor dumb white ladies was constitutional
Skinner (strict scruitinty)
Sterilization of criminals that convicted of 2 felonies
Requires strict scrutiny – SDP case
WA v Glucksburg (rational basis review)
Physician assisted suicide – terminally ill patients sue state under 14th amendment
WA statute – prohibits assisted suicide
HOLDING – constitutional, not a violation of due process
History & legal traditions support criminalization of assisted suicide
Religion – sinful, immoral
Suicide in itself is a crime
WA reason - Washington's statute sought to protect vulnerable groups, such as the poor,
elderly, and disabled from abuse, neglect, and mistakes.
It’s a legitimate interest
Plaintiff reasoning – to die with dignity, control one’s death, akin to denying medical treatment
WA- it’s not like denying medical treatment
Patients tried to push this as a right that should be fundamental
TEST TIP DON’T DO ALL TOOLBOX CASES or OUTLINE DUMP – know which ones
matter and are related to the facts presented to us in exam
Don’t argue as D that you need to ignore precedent
Explaining history:
Say things like “At the time this is being decided, many states allow same sex marriage or
prohibit assisted suicide, etc…
“there is a general reluctance to grant new fundamental rights”
PARAGRAPH TO TAB IN GLUCKSBURG to Articulate part of SDP Rule (pg 1078)
Starts description of the rule
“our established method has 2 parts”
Do 2nd first and 1st second
(1) Require in SDP cases, careful description of asserted fundamental liberty interest (D & P
each have to do) (broad/narrow) “This is how you should describe the interest not the
narrow thing that the D is requesting you to use” “this description gets plugged into the
history & traditions test”
(2) Specially protects liberties deeply rooted in the traditions and history of our country
TEST TIP: don’t stop here, do other 3 steps
Rational Basis Review Purpose of the govt only needs to be legitimate
- Saving life (Glucksberg)
- Preserving family (Michael H)
• Not reasonable:
- Separating race, religion, etc (fundamental rights) something that should
be a fundamental right
-
Usually everything is rational
Bowers v Hardwick (handout)
Also, initial suit filed included Plaintiffs Jane and John Doe, who also wanted to have oral and
anal sex in their home. Since they hadn’t been charged, the court ruled that they didn’t have a
claim and dismissed them from the case.
Hardwick was caught in the act when a police officer entered his home and bedroom. He was
arrested for sodomy with another man, then the charges were dropped. He then filed this suit.
Description of Interest – Plaintiff – oral and anal sex by consenting adults in their own home
Defense – (something criminalized) gay sex
Tradition & History – gays have always been prosecuted and its always been considered wrong
or criminal
**OPINION USES CASES WE READ to COMPARE** Here are our arguments that we can
use
DEF: Easily distinguished from earlier cases, none of these cases resemble what is going on
here, so many states deem it criminal
PLAIN: marriage, loving, interracial
Slippery slope argument – don’t want to go down this road, because it will lead to problematic
ruling in the future, “allowing gay sex just because it occurs in the home, leads to adultery,
incest, kid rape, etc.) OR PARADE OF HORRIBLES
Response to slippery slope is to put something on the slope that prevents things from falling
down the slope. Ask the court to define it and exclude the others explicitly. Make a
distinguishing argument.
Legitimate Govt Purpose – morals (DON”T FOLLOW THIS)
In later cases - Morality remains a legitimate govt purpose, but it alone can’t satisfy the govt
purpose, the govt needs something else to support law
White supremecy – legit govt purpose – would lose because of Loving v VA
TEST TEMPLATE – use Bowers BLACKMAN”S DISSENT because it has the 1-5 steps
2nd paragraph- fundamental right
ii.a. court adopting reasoned precedent based analysis – decisional autonomy
We understand how a plaintiffs attorney would make the argument
ii.b. the space is his home, there is precedent that the govt shouldn’t have power to regulate
without justifying it; even if there is a fundamental right protected, there are no absolute rights,
the court can take a rightaway
iii. now that we have established that there is a fundamental right, we see if it will survive strict
scrutiny
GA said – public health, gay sex transmits disease and promotes crime
Plaintiffs – say sex doesn’t increase crime, nor spread disease / religion isn’t a justification /
morals aren’t justification
See footnote 4 & 5 on page 37
Court – GA you need to give evidence of this, you can’t be conclusory
Rational Basis w/BITE
Used when govt lacked legit purposes
In conflict w/lee optical
Lawrence v Texas
The beginning of this case does history – revisiting it – sodomy was criminalized no matter who
was involved in it and Bowers was wrong to narrow it based on sexual orientation
Trad & history is a starting point, not a stopping point. Consider other things.
Court shifts to various (pg 46 & 47)
- Model penal code, recommends against laws of this sort
- EU court of human rights, UK, US State courts
- Precedent
• On exam, it’s the opposite of what we see in glucksburg, we won’t have to analyze these
other courts, but should describe what other things that can be taken into consideration
Overturns BOWERS
Kennedy didn’t want to go as far as Bowers dissenters in giving his opinion, makes the precedent
murky, so it makes it harder to argue about adult, consensual sex in private
• Scalia – this applies rational basis w/bite review, it doesn’t apply strict scrutiny – it is a
version of rational basis where the plaintiff wins
• Scalia – this case does not make sexual autonomy a fundamental right
Obergefell v Hodges
•
One sentence in this case supports the right to fundamental right to sexual autonomy
Equal Protection
1. Does Texas law violate ep clause?
2. How does the law classify?
a. Simply look at the words of the law, the face of the law, facial classifications, its
in the terms, text of statute
b. She will give words of the law in exam
c. “applies to African americans” is facially racial
d. “same sex couples” singled out is facial sexism
i. Rational basis plus bite (Romer v Evans) see Lawrence v Texas
Lawrence v Texas
Doesn’t give us heighten scrutiny, but we want to argue that sexual orientation should be given
heightened scrutiny (quasi suspect or suspect) court should change how it is viewed as this
classification
How do courts deem laws targeting these groups?
Racial classifications are deemed suspect
gender are deemed quasi suspect
Facial sexual orientation questions have not yet been deemed quasi suspect, they are NON
SUSPECT
Lawrence v Texas is a facial sexual orientation question
The default is rational basis review, but as attorneys for the plaintiff, we want to argue that the
interpretation of the law requires a higher level of scrutiny.
Cite lee optical to support defense, this law doesn’t regulate
“We have consistently held … that some objectives, such as “a bare … desire to harm a
particular unpopular group” are not legitimate state interests… When a law exhibits such a desire
to harm a politically unpopular group, we have applied a more searching form of rational basis
review to strike down such laws under the EP clause.” Obergefell (handout pg 50)
This law was adopted with a bare desire to harm “this particular group”
Therefore, this law does not satisfy a legitimate government purpose
Any law regarding marriage – pull out Obergefell
Sexual orientation cases – Obergefell doesn’t help because it doesn’t provide for higher scrutiny
/ if you want to say that the case requires rational basis plus, then it “a bare desire to harm this
politically unpopular group” and then we have to support it (romer v evans)
Romer v Evans- we find something in the fact pattern that shows the state wanted to harm the
unpopular group, just passing the law can’t be it. It has to be a little more. Some reason, racism,
bigotry, whatever by showing that white men can do it. We’re really protecting children if the
law is against teachers, marriage is the sanctity of marriage,
Defense must give an explicit denial of “a bare desire to harm”
Test tip:
In conclusions, govt usually wins rational basis review questions
There is no settled current precedent that requires the court to apply a high level of scrutiny here.
Infringes on a fundamental right and therefore subject to strict scrutiny
It also infringed upon an unpopular political group, so it is also subject to rational basis plus
Majority opinion in Lawrence is SDP, not EP case
SDP addresses a law that applies to all. SDP says that “liberty” in constitution applies to this act,
it’s not saying it is a fundamental right.
“yet while that approach may have been appropriate for the asserted right there involved (dr asst
suicide), it is inconsistent with the approach this court has used in discussing other fundamental
rights, including marriage & intimacy” Obergefell (handout pg 68 p3)
The above sentence can imply that marriage and consensual adult sex are fundamental rights.
Obergefell does not mean that there is a fundamental right to gay sex
Obergefell EP argument starts on pg 69 of the handout
Obergefell. - Laws banning same sex marriage violate the EP clause
Marriage has changed substantially over time, women used to be property, interracial couples
can marry, same sex couples can marry
Part 3, pg 64, personal choices- the court has traditionally protected certain decision
NOTE-limitations of the opinion, don’t overstate them (no fundamental right to same sex / it’s a
fundamental right to marriage)
History and tradition guide, but do not set the limit for discussion (This is the sentence in
Obergefell where it means we need to continue to pass step 2 in analysis)
If past alone ruled the present, there would never be these new cases
Nature of injustice – as society changes, what society thinks govt should and shouldn’t do
changes,
Conclusion – marriage is a right available to same sex couples
Argument for plaintiffs attorney – fundamental right, triggers strict scrutiny
Defense wants court to determine it is or isn’t
{REVIEW RECORDING 4/13 10:40 AM)
4 principles of marriage must apply to same sex marriage
Easy to distinguish this case –
Numerous ways govt could treat you different based on sexual orientation that don’t have to do
with marriage
Marriage safeguards children and families – pigeon holing what is making these laws
unconstitutional (importance of marriage to the children)
Pg 68 – any case in SDP jurisprudence, sexual autonomy – middle paragraph – court reminds us
how to protect a new fundamental right / glucksburg “careful description of fundamental rights”
Liberty interests that go on to become fundamental rights and ones that do not
VII. Limits on Government Power: Equal Protection
Exclusion-Motivated (“Jim Crow”) Racial Classifications
Plessy
Brown I & Brown II
Korematsu
Loving
Palmore
Exclusion-Motivated (“Jane Crow”) Gender Classifications
Frontiero
Craig v. Boren
U.S. v. Virginia
Orr v. Orr
Non-Suspect Classifications (Rational Basis & RB+ Review)
Equal Protection
14th Amendment - “All persons born or naturalized in the United States, and subject
to the jurisdiction thereof, are citizens of the United States and of the State wherein they
reside. No State shall make or enforce any law which shall abridge the privileges or
immunities of citizenship of the United States; nor shall any State deprive any person of
life, liberty, or property, without due process of law; nor deny to any person within its
jurisdiction the equal protection of the laws.”
Richmond – inclusion cause
Racial classification – always strict scrutiny
How a law classifies?
Non-suspect classification, get rational basis review
Sexual orientation is non-suspect right now
We should argue that facial sexual orientation regulations should be a suspect classification
Theory of “Suspect” Classifications
(when should a classification trigger heightened scrutiny)



when the characteristic has a
history of being the basis for
purposeful discrimination
when the characteristic is an
immutable trait
when the characteristic makes
group member relatively political
powerless compared to non-group
members



makes it likely the law’s
classification on basis of this
characteristic is based on
stereotypes
makes it unfair to treat people
differently on basis of this
characteristic because it cannot be
changed
makes it less likely those who share
this characteristic can protect
themselves from unfair treatment
through the majoritarian electoral
process
Focus on the classification / not the class of people
Defense should argue that it is dissimilar for the classification we are arguing about, while there
is some discrimination, defending against adding the classification to suspect classes, not nearly
to the same degree and magnitude as those on race, so it does not make sense for the court to
review these cases with the same level of scrutiny as those of race.
Plaintiffs point to the jim crow era cases to say the discrimination is the same (prof says it isn’t
though – so be careful)
Using the Jim Crow cases –
Plessy- separate but equal case, issue in case, whether LA law to seat whites and blacks separate
on train car violated EP – “protecting people of African decent, obviously”
Corporations are persons – getting immense protections from EP clause
Modern debates about the meaning of the constitution, how much of an insult it is to be making a
“Plessy v Ferguson argument”
Brown v Board of Education
Limited way to use this case – if fact pattern involves a govt action imposing a jim crow law,
facially racially law
Footnote 5- first look at what 14th amendment means
Strikes down Plessy v Ferguson
Court sends back to district courts to address remedies
On exam, we are going to list precedent for our argument for EP
Footnote 12- bowling v sharpe (dc case) – jim crow laws also violate SDP clause of 5th
amendment
 EP & SDP stem from American ideal of fairness
 Congress can violate EP & SDP of 5th amendment (court calls them equal protection
principles)
Brown II
 Remedies
 Personal v private needs
 Most times, public interest is aligned with the winner – however, here, court switches
public & private interests, says losers are the private interests who want to maintain
segregated schools and the public interest is to end segregation/ try not to pose too
great a burden on segregated schools to burden school districts, by allowing gradual
admittance of black kids, “prompt and reasonable start” to admissions
 “with all deliberate speed” – deliberate means slow
 “early as possible” – doesn’t give any timeframe
Modern – segregated schools only get heightened scrutiny if there is a facial racial classification,
if there isn’t something in the policy that specifically mentions race, then it will only get rational
basis review or plaintiff can prove that the govt action was adopted because of its exclusionary
impact on race or gender / disparate impact isn’t enough to get heightened scrutiny, has to be
“we did it because we wanted it to be racist or sexist” Plaintiff’s lawyers have to prove purpose.
See Fini.
TEST:
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Facial gender classification
Non-facial gender classification
Facially gender neutral
Can substitute race in any of the above
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DO NOT ONLY SAY Facially Neutral – it’s missing the description of gender/race
Need to state the following in our rule (only ones that we are arguing):
If plaintiff is arguing one and defendant arguing another, then can include both.
Rational basis allows loose fit between what law does and what law seeks to accomplish
Strict scrutiny requires narrow fit between “” “”
Intermediate scrutiny is somewhere in between.
Koramatsu (strict scrutiny case) pg 762
 All persons of Japanese ancestory
 Issue: race alone determines who is incarcerated
 The means prong is problematic in this case – this law seeks to keep Japanese people
from west coast military bases
o This didn’t help at all
o No spies were caught
o No one convicted of a crime
o The goal wasn’t met with this law
o Its over inclusive because too many Japanese people were interned, applied to
people who were not harmful to national security, citizens of the US
o What the law does and what goal is was not sufficiently linked (not a tight fit)
o Its under inclusive because no spies were interned
 Failed to accomplish goal of security at all
 Poor fit
 In lieu of having an evidentiary trial which would have proved people
were threats to natl security
Not sufficiently a govt purpose – saving $ isn’t sufficiently a gov purpose like national security
Over-inclusive / under inclusive
When it has to do with military action, court defers because they don’t want to overstep their
authority and stay in good graces of exec and leg branches
If court struck down a military outcome and then it resulted in something bad, SCOTUS doesn’t
want to be accountable for that.
Racial profiling –
Travel bans –
Loving v Virginia
 Racially restrictive laws trigger strict scrutiny
 Issue: does banning interracial marriage violate EP?
 State of VA passed the law banning whites from marrying outside race
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HOLDING: unconstitutional, violates EP, triggers sctrict scruitiny
A state law making the criminality of an act depend upon the race of the actor is
invalid. It is the very purpose of the Fourteenth Amendment to uphold one’s free
will to marry, as well as eliminate racial discrimination and the Virginia statute
clearly violated these principles.
 DEFENSE LAWYER – DON’T USE PLESSY V FERGOSON – IF WE
TREAT EVERYONE THE SAME, THEN IT COMPLIES WITH EP. THIS
IS A FAULTY ARGUMENT. WHATS UNDERLYING THE POLICY IS
AN ENDORSEMENT OF POLICY OF SEGREGATION
 RULE: Marriage is one of the "basic civil rights of man," fundamental to existence
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and survival. To deny this fundamental freedom on so unsupportable a basis as the
racial classifications embodied in Va. Code Ann. §§ 20-58, 20-59, classifications so
directly subversive of the principle of equality at the heart of the Fourteenth
Amendment, is to deprive all the state's citizens of liberty without due process of law.
The Fourteenth Amendment requires that the freedom of choice to marry not be
restricted by invidious racial discriminations. Under the United States Constitution,
the freedom to marry, or not marry, a person of another race resides with the
individual and cannot be infringed by the state.
Plaintiff – if you can argue that Loving is on your side, it’s a good position, because it is
the least criticized case
“at the very least, the EP coause demands that racial classifications, expecially suspect in
criminal statutes, be subject, to the “most rigid scrutiny” Korematsu v US.
If racial classifications “are ever to be upheld, they must be shown to be necessary to
the accomplishment of some permissible state objective, independent of the racial
discrimination” Loving v Virgina
Even though this case didn’t allow it, govt can still use race classification to protect
national security if can differentiate from where they went wrong here

Palmore v Sidoti
 White couple divorces, mom gets custody, wife marries black man, ex husband sues for
custody because new husbands race
 EP case
 HOLDING – nope
RACE CONSCIOUS GOVERNMENT ACTION – subject to strict scrutiny, but not all race
consciousness violates EP. Govt can state a good reason in very limited circumstances.
NOTE: it is not majority view to say that if a law omits application to whites then it is still racial
classification. So, we don’t use this argument on exam
TEST – Defense – Say strict scrutiny, and that govt has a compelling purpose – there are no
cases to use for this
How does law classify?
STRICT SCRUTINY COMES WITH PRESUMPTION OF UNCONSTITUTIONALITY &
REQUIRES LEGIT GOVT PURPOSE
IT IS A HIGH STANDARD OF REVIEW
P – can’t get over legitimacy hurdle
D – can get over legit govt purpose hurdle
Can we avoid the temptation to use things that we learned outside of class
USE what we learned in class
GENDER CLASSIFICATION
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Quasi suspect
Intermediate scrutiny
Facial gender classifications
o Reed v Reed (1971) – estate divestation – law put male rights above female
rights – holding – this is not right – should be equal – 1st gender case
 Whether the law with gender classification violated EP clause
 SCOTUS is shifting away from high deference to govt
 Still using rational basis review in this case, but it was the first step on the
road to higher levels of scrutiny
 Law fails rational basis review
 MEANS: Govt purpose was administrative convenience, because default
didn’t require govt to hold hearings to determine competence
 Not consistent with rational basis rule
o Pedestal cases – laws in question protect women
Frontiero – doesn’t set rule for gender classifications
 Airforce woman wasn’t getting income for quarters that all men in her class were
getting
 Issue: is having different benefit packages for men and women a violation of EP
 Govt argued “administrative relief” however gave no evidence that they were saving $
by giving all men the benefit without administrative process to determine if the men
actually were supporting spouse
 Plurality opinion, not majority opinion (so it’s not precedent)
 HOLDING: yes.
 Frontiero Factors – show what should be argued to have higher scrutiny
o FACTORS: (1) history of discrimination; (2) political powerlessness;
(3) immutability of characteristics; and (4) no relationship between the
characteristic and ability to contribute.
o History – “attitude of “romantic paternalism” which, in practical effect, put
women, not on a pedestal, but in a cage” (Frontiero)
o Immutability – determined by birth, can’t change that you’re a woman (well you
can… but…)
o Political – women are discriminated against, don’t have a lot of political power at
this time, women didn’t get right to vote until 1920s, didn’t have as may
opportunities to go through the political process, no woman ever been US
president, look at stats for members in govt, for LGBTQ 10% of population is a
minority group, so if they all got together can’t beat the majority alone
o Nexus – ends have to meet the means
Craig v Boren – site for intermediate scutiny
 Law prohibited near beer alcohol sales to men under 21 and women under 18
 The Court reversed, holding that the gender-based differential constituted a denial
of the equal protection of the laws to males who were 18 to 20 years of age. The
Court held that gender did not represent a legitimate, accurate proxy for the
regulation of drinking and driving, and therefore, the classification was not
substantially related to the achievement of a legitimate government objective. The
court also noted that U.S. Const. amend. XXI did not save the gender-based
discrimination from invalidation.
 SCOTUS agrees on intermediate scrutiny
o Applies ends means analysis
 GOAL: traffic safety, fewer drunk drivers – this is an important govt
purpose
 Means – reduce alcohol sales to men 18-21
 Facial gender classification
 Is this use of gender law, effectively related to the goal
 The law doesn’t fit properly
 Intermediate scrutiny is scrutiny
 Court looks at this deeper
 Will law make roads safer
 Law has to achieve the purported purpose
US v VA – best place to understand intermediate scrutiny
 VA public university
 Facial gender classification – women can’t go to the school
 Court HOLDING – yes, it is a violation of EP
 Remedies
o Making a different university for women only isn’t the proper remedy / it would
never be equal
 Court applies intermediate scrutiny
o Real differences v gender stereotypes
 Explain how it works in real world
 When strict scrutiny is applied – it’s presumptively unconstitutional
 When intermediate is applied- there is no presumption about the
constitutionality of the law
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When rational basis is applied- it’s presumptively constitutional
P’s best argument –purpose is grounded in a negative gender stereotype
about women
 When a purpose is grounded in a stereotype – it will fail
intermediate scrutiny
o Women should be nurses, men shouldn’t
o Men have money, women don’t
o Women can’t make it at military institute
 Purpose argue that it is to maintain gender hierarchy
o Can’t perpetuate the legal, social, & economic inferiority
of women
D’s best argument – there is a “real difference” between men and
women
 When the govt wins, it is because the court believes that there
was a real difference between men and women
o Women going into combat – requiring men to enlist, but
not women – there is proof that men are physically
stronger than women (generally)
FACIAL Gender classifications aren’t presumptively unconstitutional
Assess by cases where the govt wins or where the govt loses
We won’t predict who will win, but we need to explain the best way to argue using the courts
opinions about gender cases
Ok for govt to use gender classification to promote equal opportunity (US v VA, Webster)
Not ok for govt to use racial classification to promote equal opportunity (see case that overturns
Plessy)
If it is a facial racial classification, apply strict scrutiny and say that the govt should lose.
Examples of applying intermediate scrutiny come in Orr v Orr (women can’t be executors of an
estate) (govt loses),
Rostker v Goldberg – women can’t go into combat – (women are weaker than men isn’t there,
instead, current military rules only allow men, purpose of draft is to identify who can go into
combat) (govt wins)
Non-suspect classifications
 State only applies non-suspect classifications
o Age (MA Board of Retirement v Murgia)
 Indicators of suspectness (frontier factors) aren’t as strong with age as
they are with gender, but court hasn’t gone there, even though there
isn’t anything that says you have to meet all factors
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Rational basis review
o Legit purpose
o Rationally related
o Fit can be loose
o Williams v Lee Opitcal (EP)
Railway Express
Ads on the side of the vehicle, your truck, you can have it, but you can’t have an ad on a truck
you don’t own
 Govt purpose- traffic safety by people reading signs
 Doesn’t matter who owns the vehicle, if it has a distracting ad it could cause accidents
 Law need not actually accomplish its goals
 Rationally related is a very low bar
 Doesn’t need to be the actual purpose of the law (Lee Optical)
Rational Basis Plus
Texas v Clebrune Living Center (plaintiff wins)
 Plaintiff atty that wants to argue that plus factor should be considered
 Needs to argue govt action being evaluated for constitutionality under EP was grounded
in a bare desire to harm the targeted group
Romer v Evans
Repealed civil rights protections for gay and lesbians, amending the state constitution
Court holds that it does violate EP
Rule court applied is (didn’t do frontiero factors) – it focused on bare harm
 Court said govt didn’t have any purpose for the law
Under regular rational basis review- court can hypothesize the govt purpose
Rational basis plus – govt has to provide purpose
 Application of rational basis where court determines that govt lacks a purpose
and that only purpose is bare desire to harm
 Challenge is that neither in Romer v Evans or Texas, court hasn’t given criteria of
where they will find a bare desire to harm
 We need to explain that there isn’t criteria, but should try to show that could be
the only purpose
Richmond v Crowson
 Very few uses of race will have a tight fit
 Court has never met one that they like
 Court says it is not capable to discern uses of race that are for good and for evil
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Govt doen’t get over strict scrutiny
Dissent- there was a lot of evidence of smoking gun discrimination, there is no amount
of evidence that is good enough
o PROF: Except upper education, where academic freedom, universities get to
select who attends
 Still apply strict scrutiny even if it is a university
 Still presumptively unconstitutional
In Koramatsu – govt gets over strict scrutiny
Doctrine for Modern EP
How to argue a facially neutral racial law
(SEE SLIDE LAST CLASS)
(1) Racially exclusionary effect (Thompson)
(2) Racially discriminatory purpose (intent) (palmetto)
Facially gender neutral
(1) Gender exclusionary effect
(2) Gender discriminatory purpose (WA v Davis)
Palmer v Thompson – facially race neutral
Plaintiff argues that it should still be treated as a racial classification subject to heightened
scrutiny
Standard of review – plaintiff argues in each for heightened scrutiny
 Wa v davis – rational basis (govt won)
 Personnel administrator v Feeney – rational basis (govt won)
 Arlington Heights – rational basis (govt won)
 Golduldig – rational basis
Issue is: does the govt action violate EP clause
Rule: facial/ non-facial
Exclusionary effect
Purpose- how you prove the existance of a non-facial classification
Effect – a height and weight requirement that results in 75% men qualifying, it’s gender effect
Purpose requirement
Personnel admin v Feeney
99% of veterans are men
Co promotes veterans mainly
Feeney trys many times for job and doesn’t get it
MA argues that this foreseeable that it will exclude women
Key phrase: the way you prove the existence is that govt adopted policy because of its
exclusionary effect, not in spite of (works for gender and race) to prove non-facial gender or
racial classification (Feeney)
It is hard to prove that a policy is adopted because of, not in spite of
MA had policy because it wanted to help veterans
In Goduldig- CA wanted to exclude disabled because they wanted to save money
Arlington Heights- explains what type of evidence to bring to show “because of”
 Govt still won
 Court says what to bring into evidence (probably needs to have a high
evidentiary burden)
o Extreme disparity (feeney)