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Where does the federal government get its power? (Art. I, Sec. 8) Congress: commerce, tax & spend, preempt, necessary and proper, 14/5; Presidential powers are “vested” (Art. II, Sec. 1)
and in the “take care” clause (Art. II, Sec. 3); domestic or foreign?; Jackson test: (1) express or implied authorization of Congress (2) twilight zone where Congress has not approved or denied
(look to practice) (3) express or implied congressional denial
What are prohibitions on federal government power (external v. internal)? 10th Amend. – commandeering (Printz), maybe traditional state areas (Garcia?); 5th Amendment: DP; EPC; FREP
What are prohibitions on state power? (Art. I, Sec. 10) dormant commerce clause (Philadelphia, Kassel), 14th Amend.: DP, EPC, FREP, Privileges and Immunities (Slaugherhouse); 13-15th
Amend. (Civil Rights Act of 1866 passed under 13th, strengthened/codified by 14th), incorp
Where can we locate individual rights in the Constitution? SDP, EPC, Bill of Rights/incorporation, privileges and immunities?, natural law – Chase in Calder v. Bull
SDP (5th or 14th)
Standard of Review
EPC (5th or 14th)
Fundamental right (Cruzan-comp. indiv. refuse med. treat’mt, Pierce&Meyer - family,
privacy, Skinner-procreate, Glucksberg- palliative care?, Loving-choose marriage
partner, raise family, Roe/Casey-abortion, bodily integrity, Griswold - contraception)
Strict scrutiny (RBR)
ID Trigger
1. define right (narrowly - Glucksberg or broadly – Lawrence)
2. History/tradition (Bowers, Glucksberg, Roe)/precedent (Roe)/consensus/living
const. (Casey, Lawrence)
State Response
Cases: Barron,
Slaughterhouse, Bolling, Palko
(1937), Griswold, McDonald
FREP (San Antonio)
State action (Civil Rights, Shelley)
Facial suspect classification (v.
disparate impact intent analysis)
Intermediate(Craig v. Boren)
strict scrutiny (Korematsu, Loving)
1) discrete & insular/political process
2) history of discirm.
3) immutability (Varnum, Frontiero)
Ratchet up or down; general applic.
Privileges & Immunities
Due Process
Most BOR through selective
Modern sub. due process rights
(history and tradition)
Minimum baseline of fed.
Fundamental right for poor
Strict scrutiny
monopoly?/compelled participation
Ratchet up or down; more general applic.
EPC Tiers of Scrutiny
Rational Basis (most)
Means (fit – over or under
Rationally related
Intermediate Scrutiny
Substantially related
Strict Scrutiny (race)
Narrowly tailored
Judicial Review
Marbury v. Madison (1803): Marbury is entitled to his commission, but won’t get it b/c jursid.; courts can review the executive, except political questions – aggrandizement of power for the court; Judicial Review:
aggrandizes power for the judiciary because the court gets to declare unconstitutional acts of Congress (Judiciary Act); Martin v. Hunter’s Lessee (1816): judicial review of state court decisions
The “Problem” of Judicial Review: SM: Page 10: The Constitution is supreme - the court gets to interpret the Constitution b/c it hears cases arising under it - that interpretation trumps the other branches (judge’s oath,
historical contemplation of JR)
Countermajoritarian Difficulty: judicial review is not democratic because representatives of the people passed the laws and then the Supreme Court overturns, three arguments for resolving the countermajoritarian difficulty:
(1)There is no countermajoritarian difficulty because the Constitution reflects the true will of the people, so when the SC enforces the Constitution it reflects the true will of the people in the face of a false majority (def’n
people, interpretive problems, dead hand problem)(2)There is no countermajoritarian difficulty because the legislature is not necessarily democratic and the court might be (public choice theory, electoral college, Senate v.
Congressional checks on the court – appointment, size, budget, public opinion, professionalism, amendment) (3)Countermajoritarian virtue: it is a good thing that the court is less democratic because it can protect minority
groups and life tenure prevents them from repercussions; other resolutions: (1) political accountability (2) deference to other branches (3) interpretive constraints (4) institutional: court’s legitimacy, least dangerous branch
Congressional Power and Limits:
Methods of Interpretation: history & practice, textual analysis, policy/consequences, nature of the document, democracy reinforcing
McCulloch v. MD (1819): the bank is “necessary and proper” to Congress’s enumerated powers–implied powers, strengthens congress. powers, it is in the powers section;; the means are aimed at a justified end; MD can’t tax
the national bank, b/c fed. did not consent to be governed– prohibitions on state power can be implied; textual analysis: necessary and proper; history/tradition/original intent of First Bank; defer; “a const. we are expounding”
Cooper v. Aaron (1958): judicial exclusivity in constitutional interpretation; when Arkansas refused to enforce Brown b/c believed it unconstitutional, SC interpretation binds
Commerce Clause (Article I, Section 3, Clause 8)
Gibbons v. Ogden: beyond Congress’s power to reg. commerce:(1)completely w/in a state (2)does not affect other states (3)does not interfere w/ exercise of fed. power
Early Commerce Limitations: (1) Production/manufacturing (Gibbons, E.C. Knight sugar; A.L.A. Schechter Poultry Corp; Carter Coal Co.); (2) Stream of Commerce (Stafford slaughterhouse case; A.L.A. Schechter Poultry
Corp) (3) Direct Effects Test (E.C. Knight; A.L.A. Schechter Poultry Corp; Carter Coal Co.); (4) Close and Substantial Relation (Shreveport rate cases); (5) Motive (Hammer v. Dagenhart child labor) (6) No Aggregation
Later Commerce Requirements: Congress can regulate Lopez (guns in schools) categories (1) use of the channels of commerce (Gibbons) and (2) instrumentalities of commerce (jurisdiction element, Darby – wage/hour laws
for goods produced for interstate commerce by people); (3) activities that substantially effect interstate commerce, but the following (Jones & Laughlin–vertical integration steel co., Darby): no inactivity can be regulated
(NFIB), econ. can be construed broadly, but it must regulate an econ, activity (Lopez, Morrison – violence against women), aggregate econ. only (Wickard -wheat for home consumption) is the commerce clause weaker in
areas of state concern, jurisdictional element, congressional findings? (Lopez, Morrison), necessary&proper - intrastate activities that are non-econ.can be regulated as part of a larger scheme (Raich–marijuana for private use)
Civil Rights Act of 1964 (discrimin. in pub. accomod.), Heart of Atlanta Motel (public accommodation houses travelers), Katzenbach v. McCling (Ollie’s BBQ sells meat from interstate commerce and feeds travelers)
Spending, Taxing (Article I, Section 8, Clause 1)
South Dakota v. Dole (1987): uniform drinking age spending power test: (1) in pursuit of the general welfare (2) conditioned unambiguously (must be voluntary to protect the state’s right to choose) (3) conditions must be
related to the federal interest regulated by the particular program; a relationship between the funding and the condition* (5% of fed. highway funds) (4) other constitutional provisions that prohibit it; NFIB adds coercion
Printz, NY, Garcia: no traditional government functions tests (Garcia overrules National League of Cities), but the general rule is that the federal government cannot commandeer the state legislature (NY radioactive waste
reg. unconst.) or the state executive (Printz gun reg. unconst. b/c requires state exec. to do background checks – pol. accountability & federalism problems); government has broad power to tax and spend
Dormant Commerce Clause: raises federalism, sep. of powers, EPC parallels
Philadelphia: garbage law; overtly protectionist laws are per se invalid;
No Congressional Action – State Passes Law
applies even if it is not stated expressly, but the regulation clearly maps on
Court Challenge
Kassel: law regarding truck length is facially neutral, but has incidental effects
on interstate commerce-balance the local interest (safety) with the burdens on commerce
Congress can reg. to undermine
Congress can permit reg.
Presidential Power: Article II General Grant of Power
Steel Seizure (1952): Truman seizes the steel mills for the Korean War effort; Jackson sets up the three zones, but cautions that each time we validate presidential action, power expands/amends Constitution because it is
based on practice and precedent: (1) express/implied authorization of Congress (2) twilight zone where Congress has not approved or denied (look to practice) (3) express/implied congressional denial
Curtiss-Wright Corp.: broad presidential power in foreign affairs; (1) interventionist (2) quick figurehead; international power was inherited by the federal gov. directly from Britain; broad constitutional international power
Rights of Individuals and Minority Groups in Historical Perspective
Calder v. Bull (1798): Chase: Natural Rights; Iredell: rights are enumerated written down
Barron v. Baltimore (1833): can’t sue state under 5th Amend. takings b/c no 14th incorporation yet (Iredell)
Dred Scott (1857): no jurisdictionl bad originalist argument - slaves are not citizens under Const.; finds SDP property right to invalidate Missouri Compromise; rights on both sides: right to property v. freedom from slavery
Slaughterhouse (1873): 3 visions for ending slavery: (1) race equality (13th) (2) full citizenship (P&I) (3) labor exploitation (DP); rejects DP argument b/c these are white butchers, and 14 th Amend. is about race-based slavery
not labor (monopolies allowed under 5th Amend. DP); overrules Dred Scott; rejects 14th P&I b/c only protects rights of federal citizenship , no natural rights, no incorporation of BOR; federalist balance–upholds police power
Bradwell (1873): women lawyers denied the right to practice, not a P&I of citizen.; Minor v. Happersett (1875): right to vote not a P&I for women b/c 15th Amendment
Strauder (1880): state action requirement; right to jury empanelled w/o regard to race; statute tried to empanel by all-white jury
Civil Rights Cases (1883): 14th Amend. is a state action requirement, gov. can’t discriminate on the basis of race; 13th Amend. acts directly on indiv. w/ respect to slavery only (Reconstruction not race, labor, or citizen.)
Plessy (1896): facially neutral, Plessy imposes stigma; defers to state interest (v. Dred Scott where overruled); but nurses show that it is about inferiority/superiority; law naturalizing social position (formalism v. realism)
Formal Freedom: Naturalization of Bargaining Power
Lochner v. New York (1905): can’t limit bakers’ hours b/c employee and the employer are deprived of their right to contract; economic sub. due process right to property; trumps state interest in health and safety b/c bakers
have bargaining power; critiques: (1) protects the wrong right under due process to contract – realist critique (2) interprets the wrong text – procedural only (3) judicial activism, defer to state interest; realist critique
Muller v. Oregon (1908): limiting women’s working hours is upheld as law because their physical differences allow for limiting the right to contract
Early Privacy Cases
Meyer (1923): only English could be taught in private or public school; DP protects the right to bring up a family, etc.; Pierce v. Soc’ty of Sisters (1925): court strikes down a law that prohibits private schools – no gov.
interference with family life; Adkins v. Children’s Hospital (1923): given 19th Amend., women don’t need special protection, overturned on DP grounds (overruled in West Coast Hotel)
New Deal Revolution II and Individual Rights
Nebbia v. New York (1934) (Cf. Jones & Lauhglin): beginning of the end of sub. DP; state can reasonably reg. health of milk through price fixing if real and sub. relation to goal; business related to public interest is a matter
of degree can be reasonably reg.; West Coast Hotel v. Parrish (1937) (Cf. Darby): overrules Adkins, upholds minimum wage law; rejects sub. DP; defers to legislature; realist based on Great Depression
Williams v. Lee Optical (1955) (Cf. Wickard): only rational basis review, not looking into legis.’s motive for requiring dr. visit before optician, no due process to strike down economic legislation
Modern Classification-Based Equal Protection
Rational Basis Review and the Origins of Strict Scrutiny
Railway Express Agency v. New York (1949): distinction between advertising vehicles and newspaper vehicles with advertisements is a valid distinction; all laws classify; EPC requires rational basis review; only have to
apply the law more broadly if invalid
Carolene Products n.4 (1938): three characteristics for heightened scrutiny: (1) enumerated in the BOR (2) right to vote and other political rights when political process isn’t functioning (3) discrete and insular minorities
Korematsu (1944): exclusion order; court gives heightened scrutiny to race–immediately suspect, but defers to military; dissent uses RBR and upholds; Jackson’s precedent concern w/ military; over/under inclusiveness
Shelley v. Kraemer (1948): racially restrictive covenants violate the 14th Amendment when enforced by courts –state action; state action might police the federalism divide and prevent gov. from acting on indiv.; BUT, realist
critique – the gov. is implicated in the status quo (Marbury – Steel – Korematsu – Shelley; undermines Plessy and Civil Rights Cases);
School Desegregation, Symmetrical Classifications, Intent Requirement, Race-Based Affirmative Action
Brown I (1954): the original intent of 14th Amend. with respect to edu. was unclear, framers left 14th open for interpretation, social studies show this stigma leads to inequality in achievement (+Sweatt and McLaurin); perhaps
justified by Carolene rep. reinforcement theory, but no clear standard of review and no clear remedy overrules Plessy – doesn’t matter that law is facially neutral
Bolling v. Sharpe: decided with Brown in DC on 5th Amend. DP grounds; discrim. can be so violative it implicates DP; precursor to reverse incorporation
Brown II (1955): “all deliberate speed” district courts must integrate; tension: (1) const. violation requires de jure harm (2) but the remedies suggest de facto concerns; disobedience concerns; upsets the status qup
Green: the county school board creates a freedom of choice plan, but people don’t chose integrated schools, but the court requires a de facto integration, anti-subordination remedy
Swann: the issue is neighborhood seg., which means that schools won’t be integrated; busing within the school district is fine in order to achieve int, because the entire school district must achieve de facto int.- state must fix
harms not of its own making Keyes: only one instance of de jure seg., but court still requires entire district to integrate
Milliken: district court overreached by requiring other school districts to help integrate the inter-city school district of Detroit; if there is a de jure violation in a district, the remedy is limited to measures to only that district
(leads to white flight) Missouri v. Jenkins: attempts to create magnet schools that will encourage students to cross district lines for better edu.; the court holds that you can improve predominantly African American schools,
but you can’t try to entice whites to move from other districts
Facial Classification
Jure(AntiDe Facto (Anti-subordination,
yes (Korematsu, Loving)
Classification, Formalism)
Strict Scrutiny yes – (Yick Wo, Feeney)
Intent (no) (b/c of)
Unequal opportunity
Not to be classified
Integration/equal opportunity
compelling interest (racial purity)
Rational Basis Review (Wash. v. Davis)
Nature of the
cannot act this way)
narrowly tailored
legitimate gov. interest & reasonably related
Private action
Change the law
Busing, resources, redistricting
Loving v. Virginia (1967): misceg. statute; citing Korematsu, facial racial class. subject to strict scrutiny, compelling interest, narrow tailoring, racial purity not CI
Washington v. Davis (1976): police recruitment test; the statute is facially neutral and the intent is innocent, nonetheless leads to a disparate impact; only rational basis; anti-class. is the right (not anti-subord.), state action
Yick Wo: laundry permits to Chinese Americans; the law did not have any facial discrimination or intent, but the enforcement effect was so stark it is not equal; Gomillion: gerrymandering removed all African American
voters from the district demonstrating an intent to deny the vote even though facially neutral; Village of Arlington Heights: housing complex rezoning; intent can be pattern, chosen strategically for impact, historical
background, changing procedures, totality of circumstances; Massachussets v. Feeney: law preferring veterans; intent means the law was chosen because it harmed minority group, mere knowledge of impact insufficient
Grutter v. Bollinger: this is a facially racial classification, but it passes strict scrutiny because it protects the compelling government interest of diversity (defer to univ. of MI) and it is narrowly tailored; the interest is not
remedying past discrimination, can’t do that in an anti-class./state action jurisprudence so SS applies; race neutral means are superior; holistic not quota, but data is suspect; sunset provision causes concurrence
Gratz v. Bollinger (2003): cannot survive SS because the review is not holistic or individualized; it is not narrowly tailored and the point system does not allow everyone to compete for the same spots
Ricci v. DeStefano (2009): Title VII of the Civil Right act asks employer to take race into account so as not to cause disparate impact; in conflict with anti-class. b/c gov. can’t do this; firefighter test (Wash. v. Davis)
Fisher v. UT (2013): (1) 10% plans (2) additional admissions where race is one factor in an individual admission; Kennedy clarifies that you can only defer on the CI, not the NT means which are subject to strict scrutiny
Parents Involved (2007): Seattle and Louisville school systems attempt re-integration w/o de jure violation; plurality SS; CI not present, limited to: (1) diversity in higher edu. (2) de jure violations, harms of own making; not
narrowly tailored, pure racial balancing; Kennedy – might be other CIs, no goodies on the basis of race, but other more NT race neutral means might be appropriate to achieve diversity; Breyer – when gov. confers a benefit
we don’t need SS, but this survives SS; CI - ending racial inequality; narrow tailoring: you can use race-based means to achieve the compelling interest if it is beneficial and not merit-based; 1) these means are more narrow
than Grutter 2) the alternatives were not as good 3) race is only one factor; Thomas – gov. can’t tell benefits from harms, colorblind; fight over Swann – de facto ok?
Scrutiny of Gender-Based Classifications
Reed v. Reed (1971): unconstitutional estate statute using gender as a tiebreaker; the court says it is doing RBR, but then does not defer to the state’s rational explanation – later cases call this heightened scrutiny;
administrative convenience is not an important interest
Frontiero v. Richardson (1973): proof of dependency for military benefits; 5th Amend. EP component of DP; administrative convenience not a CI; reasons for SS for gender: (1) history of sex discrimination (2) sex is like
race (3) still discrimination today (4) immutable characteristic (5) sex bears no relationship to ability to contribute to society (6) Title VII in the ERA; good textual argument, but original intent & political process problems
Craig v. Boren (1976): intermediate scrutiny for gender classifications; male v. female near beer drinking age; important governmental objective substantially related means; traffic safety is important, but means are under and
over inclusive, need closer fit; sex discrim. questions: (1) does it classify on basis of sex? (2) does it reflect stereotype or real diff. the state can take account of?
Geduldig v. Aiello (1974): California statute excludes pregnancy disability – not gender class./discrim. (Title VII rejects this, pregnancy is gender discrim.); RBR state’s legitimate interest in cont. to provide coverage
United States v. Virginia (1996): intermediate scrutiny somewhat inc. to “an exceedingly persuasive justification”; state interests: (1) single sex education provides a diversity of educational approaches (2) adversative
approach would have to be changed; overbroad generalizations about men and women are not enough to support a sex classification, even if it reflects a fair amount of truth, but government can take account of “real
differences”; VWIL not comparable, relies on/perpetuates gender stereotypes so not tailored enough; note unlike Grutter does not defer to university’s goal; protect the non-stereotypical woman
Nguyen v. INS (2001): parents of unmarried children born abroad; intermediate, sub. related means; important interests: (1) bio. assurance of parent-child relationship (2) demonstrated opp. to develop a relationship – mother
at birth, but father only if before age 18; O’Connor questions means; classification succeeds if based on biological differences; note we are deferring to Congress
Gender-Based Affirmative Action
Califano v. Goldfarb (1977): overturns the SS statute on intermediate scrutiny because it discriminates against women who are independent, pay into the system and then don’t get rewards from the system for their families;
privileges defying stereotype; efficient law, but administrative efficiency not an important interest
Califano v. Webster (1977); upholds provision of SS allowing women to deduct more low paying years b/c there is an imp. interest in remedying past history of discrimination (gov. can think about sex, but not race; **no
state action requirement); Kahn (FL property tax exemp. for widows, not widowers) & Ballard (more promotion yrs. in military for women): court protects those who defy stereotypes
Rational Basis Review ?
NYC Transit Auth. v. Beazer (1979): law prohibiting NY TA from hiring methadone users survives RBR b/c state interest in safety; White dissent-under/over inclusive belies intent to harm an unpopular group–RBR w/ bite
U.S. Department of Agriculture v. Moreno (1973): legis history says Food Stamp Act aimed at hippies; under regular RBR the state interest in preferring the traditional household/preventing fraud by excl. non-family
household would be sufficient justification, but struck down because of animus not a legitimate interest; RBR with bite; bare desire to harm and unpopular group is not a legitimate interest
Cleburne (1985): zoning law prohibits mental instit., but allows hospitals, nursing homes, etc.; White thinks the interests (1-concern middle school children will harass 2 -flood plain) are suspicious b/c not a good fit and belie
the real interest in being prejudice against the mentally retarded, require actual rationality under RBR; look at means/fit to determine if it is an illegitimate interest
Modern Substantive Due Process
Griswold v. Connecticut (1965): contraceptives; it is a legit. interest to regulate morality, however the means are problematic here because it infringes on the fund. right to marital privacy (not necessarily deregulation of sex);
Harlan does SS sub. DP, but the majority shies away from it, incorp. penumbra of rights unstated SOR; 9th Amend. arguments; White continues to demand RBR with bite; suppresses outliers (only Mass. and Conn. laws)
Eisenstadt v. Baird: strikes down a statute that made distributing contraception to unmarried people illegal; EPC regular RBR it would be valid to classify married or unmarried; extends Griswold, no marriage requirement
Carey v. Population Services: strikes down a NY law on sub. DP that prohibits anyone besides pharmacists from distributing condoms; protects individual’s decisions in matters of childbearing from unjustified gov. intrusion
Roe v. Wade (1973): there is a fund. right to abortion based on the privacy cases; fund. right = SS, NT, CI; competing interests: 1) the mother’s health (2) the unborn fetus; the interests become compelling at the 2nd trimester
for mother, 3rd for fetus; dr.-patient choice 1st trimester; state can regulate starting 2nd trimester, state can proscribe abortion 3rd trimester; more states have abortion than contracep. laws; criticisms: (1) raw judicial power
making up rights (2) activist decision that looks like legislation (3) history/tradition is faulty (4) court is inconsistent in saying it doesn’t take a position on when life begins
Casey (1992): adopts undue burden test instead of trimesters, fund. right, SS; interest in the mother/regulate throughout, can prohibit abortion at 3rd trimester; stare decisis: workability, reliance, evolution of the law, change in
facts(Adkins-West Coast Hotel, Plessy-Brown, Bowers-Lawrence); upholds Roe; court upholds: informed consent, underage parental consent, 24 hour provisions, and report requir’mt, but rejects the spousal notice
Right to Die
Cruzan (1990): a comp. individual has fund. right to refuse medical treat’mt based history and tradition; state interest in determin. indiv. intent and preserving human life; there is no fundamental right for the family to decide,
the state interests are thus legitimate and rationally related and clear and convincing standard passes; Dissent - Brennan/Stevens say this is an asymmetrical burden/state is defining life
Washington v. Glucksberg (1997): uphold the law b/c there is no fund. right to physician assisted suicide; RBR rationally rel. to state interest in preserving life, protecting the integrity of the medical profession, protecting
vulnerable groups, avoiding the slippery slope to euthanasia; Rehnquist says define the scope as narrowly as possible, Breyer wants a “right to die with dignity”
Putting it All Together
Sexual Orientation
Bowers v. Hardwick (1986): neutral law prohibits sodomy; DP there is no fund. right to homosexual sodomy; this law survives RBR b/c morality is legit. state interest; scope of the fund. right is key
Romer v. Evans (1996): EPC, RBR; the Co. amend. is unconst. b/c bare desire to harm an unpopular group, morality is not adequate interest, doubts cited interests
Lawrence v. Texas (2003): sub DP: state cannot prohibit same-sex sodomy (fund. right?); precedent recognizes privacy rights; living constitutionalism; stare decisis; RBR - moral disapproval not a legitimate interest (Scalia);
O’Connor - EPC under RBR ?
Varnum v. Brien (2009): sexual orientation gets intermediate scrutiny b/c: (1) history of discrimination (2) ability to contribute to society (3) immutability (4) political power (relative, not absolute); state interest in: (1) childrearing concerns (2) traditional marriage (3) conservation of resources, not closely related
United States. v. Windsor (2013): DOMA def’n of marriage as a man and a woman, violates EPC component of 5 th Amendment liberty prong DP; RBR? there is no interest presented and discrepancy between federal at state
evidences bare desire to harm; if DP fund. right to marriage, too many laws would be scrutinized
McDonald v. City of Chicago (2010): Alito/majority says following Heller that 2nd Amend. right of self-defense is fundament, implicit in concept of ordered liberty (history); Breyer thinks should not be incorp.: (1) doesn’t
protect minorities (2) the right at issue is not one that underlies other rights (3) criminal procedure related; Thomas wants to go back to P&I – Stevens rejects; Scalia and Stevens argue history v. living constitutionalism
FREP: strict scrutiny kicks in when there is a fundamental right infringed by the government that is essential and people are denied access on the basis of ability to pay (Griffin-indigents must be provided trial transcript;
Douglas-indigents must be provided counsel if a right to appeal granted; Harper-cannot deny vote based on $1.50 poll tax; Bodie-can’t pay for divorce fee when state has monopoly on marriage)
Skinner v. Oklahoma (1942): OK sterilization of habitual criminals; EPC b/c treats thieves and embezzlers diff. (aimed at poor); SS for fund. right to procreation/marriage
Dandrige (1970): no fund. right to welfare for food and shelter; Lindsey v. Normet: no fund. right to housing
San Antonio v. Rodriguez (1973): EPC - absolute equality is not the guarantee and relative deprivation is not enough; no SS for wealth classifications (poverty); FREP - a FREP right must be explicitly protect by the
Constitution or implicitly essential in the structure of the Constitution, nexus between the FREP right and fund. rights ; gov. monopoly/compelled participation from gov.?
Congressional Power and Individual Rights
Katzenbach v. Morgan and notes (1966): upholds enfranchisement of Puerto Rican voters under 14/5 despite Lassiter approving lit. tests b/c Congress can: (1) pass preventive measures (2) under-enforcement by Court (3)
complex remedies (4) majoritarian; Harlan dissent concerned Congress will interpret Const.; perhaps Congress can expand right, but can’t take away (Boerne); can commandeer under 14/5 power
City of Boerne (1997): disparate impact on religious groups (Smith says RBR); under 14/5 if (1) SCOTUS has found Section 1 right, Congress can: (2) institute remedial/preventive legislation, but it can redefine the sub. law
(3) must have “congruence and proportionality” between the injury to be prevented/remedied and the means used (4) private action; reasserts Court role to interpret (Marbury); federalism
United States v. Morrison (2000): VAWA civil damages & states’ failure to adequately prosecute crimes against women state action requirement: 14-5 does not apply to private individuals only the state (Civil Rights)
Nevada v. Hibbs (2003): gender neutral sick care upheld, but not self-care in Coleman, depends on need under 14/5 to remedy past gender discrim.; Gins. argues defer
Shelby County v. Holder (2013): overturns Voting Rights Act coverage formula under 14/5 because there is not the same current need; Gins. argues defer
Policy Considerations
Remove an issue from politics: Dred Scott, Roe/Casey, Lawrence, Windsor?,Brown(potential backlash)
History: originalism; McCulloch for 2nd bank, Steel Seizure – president works on history/precedent,
jurisdiction overreaching: Marbury, Dred Scott, Windsor/Perry
tradition, Curtiss-Wright – states never had int. power, incorporation - fund. in concept of ordered
positive rights: FREP, gender affirmative action (Webster), integration (if de jure harm), Grutter race
liberty, SDP – history/tradition determines fundamental, EPC – history of discrimination (repudiate)
affirmative action, Shelley?, realism v. negative rights: state action require’mt, Wash v. Davis
Ghosts: Lochner, Plessy, Dred Scott, Brown, Roe Absolute (DP) v. Comparative Rights (EPC, FREP)
pro-federalism: commerce clause–Morrison/Lopez; Slaughterhouse; 14/5 (Boerne), Windsor,
Who Interprets: Court-Marbury&14/5; Congress–McCulloch/Steel Seizure; Exec. -Korematsu/Curtisscommandeering–Printz; RBR – Railway Express/Lee Optical; state experimentation, Plessy
Wright; state – Cooper v. Aaron; Court has final say on deference
anti-federalism: dormant commerce clause – Kassel, Recon. Amend., Progressive Amend., commerceFormalism v. Realism: Plessy v. Brown; Lochner v. West Coast Hotel
Darby/Wickard, no traditional state areas test–Garcia, incorporation, SDP–Brown, Roe, Lawrence, EPC
Revolutions: commerce; SDP Lochner-W. Coast, Griswold-Roe, Lawrence-Windsor; Brown-Swann