CON LAW 2: WISEMAN
Chapter 1: A Prologue on Constitutional History
1. Historical tensions - relationship between law and politics-- social k v. republican
A. Social K theory: assumed that people are rational beings who seek to maximize their
prosperity and happiness
1) state of nature- when people live in the same society, they tend to invade each
other's prosperity and happiness in pursuing their own
2) people agreed to form govnts, bc the state of nature was an impediment to the
prosperity and happiness of all
3) the consensual governments- to prevent people from infringing upon the
interests of others
B. Republican Theory: in contrast to social k- republicans thought that individuals were
were not looking out for themselves, but instead, that they were willing to sacrifice
their private interests for the sake of the common good (civic virtue)
2. tension: individ rights v. states' rights
A. notion of constitution as protecting individual rights
1) this is the nationalist view- strong centralized fed- power to veto state lawsfederalist view
B. states' rights view: anti-nationalists/anti-federalists/ republicans
1) protects states against too much fed infringement
a. this view prevails right now on the court by a slim 5-4 majority
3. if we can shift with appointments, isn't law really politics?
A. if a new dem prez appoints justice- then shift to leftist view- would favor individual
rights more- would be 5-4 the other way
B. Brennen view: constitution should protect individual rights
C. Rhenquist view (majority 5-4 right now)- the constitutional purpose is to create an
appropriate balance between federal and state power -- the balance to be in favor
of the state
4. Constitutional Interpretation
A. Text:
1) constitutional interpretation begins with the text- always!
2) now: interpretation is becoming detached from the text
a) ex: 11th amendment: we interpret as to disallow citizens to sue their
own state- even though it does not say that
b) ex: the 1st amendment is really the only one that by its language limits
congressional power. the rest of the amendments just lay out the rights
and don't specify as to either feds or statesa. so in reality - the bill of rights are not by their terms only
applicable to cong/fed-- they are just understood this way
- wise has mentioned this example several times
3) also look at whether you are looking in the original or the amended const
4) text does not really get us anywhere- bc it is subject to interpretation
B. Precedent: body of law interpreting the text
C. Constitutional history
D. Constitutional theory
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1) what is the constitution for
E. there are gaps in the constitution
1) judicial review
2) procedure for impeachment
3) right to privacy
5. big thing is that these theories all shift over time
Chapter 2: An Introduction to Constitutional Decision Making
Section 1: Brown v. Board of Education: A Case Study
1. EPC: "no state shall . . . deny to any person within its jurisdiction the equal protection of the
laws"
A. this EPC lang is very general- big issue of how to interpret it
B. after the adoption of the 14th- 14th was not vigorously enforced and sup ct gave
14th a very narrow interpretation- in particular, the PIC
1) PIC- "no state shall make or enforce any law which shall abridge the privilages
or immunities of citz of the United States
2) so it fell to the DPC or EPC of 14th to protect other rights the framers argubly
thought were included in the PIC
3) DPC- applying bill of rights to states
2. Plessy v. Ferguson: upheld separate but equal
A. Louisiana statute: required railway companies to provide "equal but separate
accommodations for the white and colored races" and made it a crime for passengers
to violate the required segregation
B. ct first says no 13th violation- no attempt by the state to reestablish a state of
involuntary servitude
C. ct looked at the purpose/object of the 14th when determining how to interp EPC
1) majority says that purpose was to protect political equality and not social
equality
D. then- ct said- within state's police powers to make legislation to require seperation
and does not necc imply inferiority of either race to the other
1) test: reasonableness standard: is the state's regulation to discriminate reasb?
a) ct says this standard is very def to state legs
b) look at reasonableness with respect to
1. established usages, customs, and traditions of the people, and
2. with a vies to the promotion of their comfort, and
3. the preservation of the public peace and good order
2) reasb to require seg of schools, public accomadations (and therefore state has
the power to enforce these traditions)
E. Homer Plessy says that this stamps him with a "badge of inferiority"
1) ct says- that is the construction the colored race puts upon the statute- too bad
if he feels this way
2) ct says that it is not the place of the legislature to try to overcome social prej
by legislation
a) "if the two races are to meet upon terms of social equality, it must be
the result of natural affinities, a mutual appreciation of each other's
merits, and a voluntary consent of individuals"
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F. Justice Harlan's Dissent:
1) constitutional purpose:
a) no caste systems- no superior, dominant, ruling class of citz in america
b) our const is color blind
2) he focuses on "civil rights" and not distinction bt political and social
3) 13th and 14th removed race lines from our govnt system
4) const purpose of 13th and 14th:
a) "to secure to a race recently emancipated, a race that through many
generations have been held in slavery, all the civil rights that the
superior race enjoy"
b) "the law in the states shall be the same for the black as for the whiteall persons, whether colored or white, shall stand equal bf the laws of
the states"
5) w/ respect to civil rights- all citz are equal bf the law
6) the purpose of the statute was to really exclude blacks- no whites were trying to
ride in the blacks car
a) segregating the races bc the whites thought blacks inferior- not vice
versa
b) the effect of statute is stigmatizing blacks as inferior- therefore - the
the statute is unequal treatment
G. Plessy analysis:
1) Harlan said- fundamental objection to the statute is that it interferes with the
personal liberty/ freedom of choice of citz
a) bc if white and black choose to get on same train car- then the state
enforcing the statute infringes on their personal liberty
b) this seems to me like the Brennan/ nationalist/ view- strong fed power
to protect individual rights
1. kind of like social k- people form govnts to prevent people from
infringing upon the interests of others????? this analysis might
not be right???????
2) to me- the ct seems to go with the Rhenquist/ states' rights view
3) Judicial Review
a) ct in Plessy takes a conservative approach to judicial review
b) judicial review is anti-democratic
1. when second guessing leg judgment, there has to be a pretty
solid justification
2. so in brown- where does ct get off second guessing leg- even if
if there is a moral justificaiton???
c) Thayer's view: it must be clear that the leg is violative of the
constitution for judiciary to strike down
1. if the constitution is silent or ambiguious, then the court should
punt it back to the legislature and leave it up to them
d) race is not mentioned in the const- which is why there was such
disagreement on this issue
4) different views of the 14th and EPC
a) states can't discriminate
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1. prohibits states from affirmatively discrim on the basis of race
b) or: no state shall tolerate discrim on the basis of race
2. affirmative duty on states to enact leg which remedies discrim
3. Post Plessy
A. Coherence is a good value for the legal system to aspire to: is the way I am going to
resolve this issue coherent with the law as a whole?
1) is Plessy coherent with the law as a whole?
2) maybe not- it came in the Lochner era which upheld freedom of K theory
a) Plessy denies RR the right to K with blacks and whites to sit in the
same carriages- makes some Ks illegal
b) so law is less coherent after Plessy
B. text of 14th (epc) satisfied if when the state provides something- it is equal- state not
required to provide something in a way that is not seperate
C. bf Brown- NAACP challenged the equalness- not the seperateness
1) Sweatt v. Painter- ct makes UT admitt black person to law school bc the
seperate law school is not equal
2) first hint by ct of separateness being a problem
a) if he is not at UT- he misses out on the "intangible benefits"
4. Brown v. Board of Education
A. Brown I asked for reargument on original intent of framers of 14th
1) how to determine original intent of framers?
a) text: even if the framers had said they never wanted the EPC to strike
down separate but equal- does that really have any bearing?
b) precedent: Plessy says "equal" is satisfied by separate but equal
B. ct says- evidence of original intent is inconclusive
1) the state of public education at the time was that there wasn't much and was not
required- so can't really apply that htere
2) ct said- we can't turn back the clock- we must consider public education in the
light of its full development and its present place in American life throughout
the nation
a) but what if all 50 states had seg education when 14th adopted- would
that have any impact here?
1. the original intent would have been more important????????
C. Originalist View v. Evolutionist View of const interpret:
1) warren in Brown: more evolutionist view - language of the constitution
changes over time
D. Brown holding: separate is inherently unequal bc of the intangible benefits- even if
the facilities are equal-- stigmatic injury
1) must look to the effect of the segregation on pub ed- even if equal facilities
E. ct says the only way to determine if segregation in public schools deprives ps of
equal protection of the laws is to look at the state of education today
F. analysis
1) state has undertaken to provide the opportunity of education
2) it must be made available to all on equal terms
3) seperate is inherently unequal
4) so- ep violated bc blacks do not have equal educational opportunities
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G. cts reliance on doll tests
1) ct used to refute plessy's claim that blacks stamp the badge of inferiority on
themselves
2) critics saya) ct relied on social science to support it's conclusion
b) run the risk of science changing
1. O'connor view- science improves- point at which a fetus is
viable gets earlier and earlier
H. critics say this is an abuse of power of judicial review
1) orig const nor 14th mention education- education is reserved to the states
5. Post-Brown issues:
A. reverse incorporation
1) Bolling v. Sharpe: ct struck down segregation in DC under DPC of 5th (had to
use DPC bc EPC of 14th only applies to states, not feds. ct read in an ep
into the DPC of 5th
a) segregation not reasonably related to any legitimate governmental obj
2) reverse incorporation: reversing strictures against the state govnts and
applying them to the feds
B. separate is inherently unequal, regardless of context, because it stigmatizes- true
brown rationale
1) this allowed cts to apply brown rationale of epc to parks, transp, and pools
2) critics say- does brown really justify this bc the court relied on those doll
tests when making their decision- are cts now going too far
a) do cts have the power to 2nd guess leg judgment in this way?
Section 2: The Supreme Court's Role in Our Political System, A. Bases for Judicial Review
1. arguments against the power of judicial review:
A. structure: 3 co-equal branches- sop arg might mean that one cannot declare the
actions of another unconstitutional
B. text: it is not explicit in the constitution
C. it is anti-democratic- second guessing the judgement of the leg is anti-dem
2. Marbury v. Madison
A. Marshall- textual analysis
B. 2nd issue- is the statutory grant of power by judiciary act constitutional?
1) marshall uses textual analysis to say that that was outside cong's scope
2) says the const lists out which matters supreme court can have orig jurisd over
and mandamus is not one of them
a) should read this as an exclusive list, bc the framers knew how to give
power, and they didn't do it here
C. const prevails over the statute bc the const is the supreme law of the land- const will
always prevail when const and statute in conflict- ct's job to say what the law is
D. ct says, where the const explicitly limits cong's powers, that the ct can enforce those
limits.
1) theme- if we have a govnt of limited powers, the ct will enforce those limits
otherwise there is no point to having a const
3. Bourne v. Flores- our power of judicial review means we have the last word
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4. The Court's Supremacy in Constitutional Interpretation
A. after brown- the issue of remedies comes up.
1) normally, cts just remanded cases down to enter judgment consistent with the
ct's decision
2) but after brown, the lower cts were instructed to retain jurisdiction over the
litigation and "enter such orders and decrees as are necessary and proper to
to admit to public schools on a racially non-discriminatory basis and with all
deliberate speed to the parties to the cases"
B. Cooper v. Aaron: the city of little rock claimed it was wrong as a matter of const
law for the supreme court to enforce brown on the states (arg that went against
precedent- plessy, and was inconsistent with federalism(state's rights))
1) "no state legislator or executive or judicial officer can war against the const
without violating his undertaking to support it"
2) brown could can not be nullified either "openly and directly by state legislators
or state executive or judicial officers" or "indirectly by them through evasive
schemes for segregation whether attempted "ingeniouslu or ingenuously"
3) federal judiciary is supreme when determining the const- and the supreme
court has the final word on constitutionality
C. but the effect of ct ruling should not be stifiling of debate
1) cooper says states can't knowingly pass unconst leg
a) but states do this all the time to keep debate alive
1. roe- states pass statutes unconst under roe- for the purpose
that the const will be challenged and the sup ct will overrule
roe
b) what abt cong doing this- is it any diff than states doing it?
2) cooper dicta- everyone bound by decision- but not necc forever
a) it is important that these questions continue to be debated (like in
plessy)- maybe the cts get things wrong
b) but maybe passing statutes isn't the best way to keep debate open
D. are other govnt officials required to follow the supreme court decisions/interp of
const?
1) arg for: consistency, finality, stability, reliance
2) arg against:
a) sop: if prez has good faith belief that statute is const - shouldn't he
be able to rely on it
b) lincoln arg for ct to overrule dred scott- is this appropriate
c) justice, public debate, evolution
5. After Brown, Evaluation and Critique: Judicial Remedying of Violations
A. the typical remedy for a constitutional violation is an injunction- but after green
(enough deliberation- get the remedy in place now), lower courts became more
active in adopting very intrusive remedies
1) district courts were maintaining jurisdiction over the cases
2) in these cases, enjoining (repealing) the statutes is not enough, bc that would
not change anything
B. Swann v. Charlotte-Mecklenburg Board of Education: issue: whether lower ct judge
erred in adopting plan to rezone school districts and require extensive bussing to seek
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to meet a 71%/29% white black balance in as many schools as possible
1) the ct held that this was a permissible goal and was not a requirement or
quota
a) ct said a strict quota would not be permissible, but using these numbers
as a guideline was ok
2) constitutional violation requirement: the ct is justified in ordering what ever
remedy to remediate a past constitutional violation (ct ordered affirmative
action in remediating)
3) requirement to be a constitutional violation
a) segregation by law- per se (much harder to prove in the north)
4) limits on how far a court can go (dist ct has broad authority to remedy)
a) a racially neutral assignment does not go far enough in remedying- but
how far is too far?
b) when vestiges are gone- ct action/remedies over
C. when should the remedies end? when the constitutional violation has been remedied,
when there is no longer a dual school system, when the last vestiges of state
sponsored segregation has been eliminated
D. wierd issue: brown says- no classifications based on race. to fix this- cts use
classifications based on race
1) defense by swann ct- affirmative action is needed, bc otherwise, the vestiges
will remain forever
6. Post Swann:
A. Reed v. Rhodes: (wise clerked for the dist ct judge in this case)- very intrusive!
1) 6th circuit upheld dist ct's creation of an office that was staffed at state
expense that kept statistical data on how well the integration was working and
appointed someone who supervised integration
a) judge basically took power away from the school board and appointed
a desegregation administration
b) this was all upheld bc there had been a substantial constitutional
violation and the judge wanted "substantial justice"
2) this is institutional reform litigation
a) these types of cases are to reform public institutions (prison reform
falls here too)
b) remedy- not a stop doing what you are doing injunction
c) remedy: structural injunction: has a bunch of structural requirements
that the institution has to comply with and the cts have to retain
continuing jurisdiction
3) dangers with these big ole remedies
a) cts look like regulatory agencies instead of courts
b) wise's judge was basically administering the cleveland school system
B. after some of these big remedies- the ct begins to back off brown a little
C. the "constitutional violation" requirement was much harder to reach in the north, bc
it was de facto and not de jure
1) in the north- must prove state action of discrimination/ discriminatory purpose
a) intentional acts by the states to segregate the schools
2) in the south- const violation- per se- bc by law
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D. Miliken v. Bradley: detroit school system all black and the suburb school systems all
white. dist ct judge ordered inter-district bussing
1) holding- impermissible- bc no constitutional violation
a) no constitutional violation within one district that produced a significant
segregative effect in another district
b) there was no collusion bt detroit school system and the others to seg by
race
c) so the remedy here wasn't remedying anything
2) there must be an underlying constitutional violation- for which there is state
action
a) state inaction is not enough!!
3) (should the court create a super school district to incorporate all of metro
detroit??)
a) does the state's failure to do this violate any constitutional principle-- or
b) does that go way too far?
c) is epc supposed to reach all the way to state indifference of people's
choice of housing patterns
E. Miliken 2:
1) remedy: adopts substantive remedies within the detroit school dist at state
expense- but takes those suburb districts out of the picture-- ct says this is fine
2) principle that equitable remedies must be tailored to the violation-- there must
be a nexus between the violation and the remedy
a) in miliken 2, this is a geographical tailoring
b) may be temporal tailioring too
1. the original nexus between violation and remedy may erode
over time, so much that the continued remedial intervention
would become unjustified
3) this remedy does go a long way, bc uses state funds- but it is ok bc there was
a const violation by the state in the detroit dist- but just not the surrounding
districts
F. Freeman v. Pitts: dekalb school system no longer under their desegregation order and
but the schools still segregated- dist good faith complied with deseg order
1) ct says ending intervention is fine- bc the segregation now in dekalb is a
consequences of private choices, not state action- so it does not have any
constitutional implications- and there is no longer a const violation to remedy
2) racial balance is not to be achieved for its own sake
3) state has nothing to do with the reseg that occurred bc of population shifts and
white flight
4) freeman still consistent with brown
a) separate is inherently unequal unless it is the product of private choices
1. bc where does the ct get off second guessing private choices?
b) brown's rationale is that people who are seperated are stigmatized
1. but when private people make these choices, there is somewhat
less of an argument for the stigmatizing rationale
2. another reason why hard to get at seg in the north
G. school districts being funded by prop taxes
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1) race related to wealth and wealthier dist have wealthy schools and vice versa
a) but we are not intentionally funding education to give poor blacks a
poorer education
2) equalizing funding
a) args for: would not be one really good or one really bad school in dist,
people less likely to choose where to live based on the quality of the
schools
b) args against: this is socialist
H. there must be a constitutional violation for a court to order affirmative action to
remedy.
I. but can a state affirmatively act on its own bc the goal of integration is important
enough to justify doing it?
1) is this a constitutional violation in itself? race conscious assignment of
students to schools?
2) will the state be able to show a compelling interest to overcome the ss analysis?
Section 3: Brown and Theories of Constitutional Decisionmaking:
1. Issues:
A. how should courts approach the task of resolving constitutional ambiguity?
B. when should they exercise the power of judicial review and second guess the
judgment of representative legislatures?
1) countermajoratarian difficulty: power of judiciary to declare unconstitutional
acts enacted by elected legislators
2. Originalist Theories of Judicial Review:
A. issues concerning originalist theories
1) premise of originalisim: that the constitution is the product of a super-majority
so there is no countermajoratarian difficulty, so long as the court gives effect to
the original meaning when excerizing the power of judicial review
a) if a law can be shown to be inconsistent with const, then it is invalid.
b) therefore, the ct is only enforcing the "original deal" for which there is
ongoing consent- and its action is neither countermajoratarian nor
violative of the consent of the government
2) probs with this formalist theory
a) that majority does not exist today- it was white male prop owners
b) even if arg that a contemp majority is represented in this social k and
each generation has the power to amend the const-- that still does not
work here, bc originalists give the const its original meaning. so if we
give const meaning according to the contemp majority- that runs afowl
of originalism!
c) dead hand argument- dead old white guys govern us
d) intent about intent prob: arg that the framers intended the const to
evolve over time as foundation of common law
1. but how do we figure out who's intent- framers, leg who
ratified? really hard to figure out
e) indeterminacy prob: how do we figure out what the original
understanding an theories we are looking at were?
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B. Textualist Theory: the text is the authoratative law
1. textualists would say ct should only strike down legislation when it conflicts
with the plain meaning of the constitution (thayer's view)
a. ex: where the const specifically says- leg enact no ex post facto
2. very conservative- very deferential to leg- only strike down if plainly unconst
3. when text vague or ambiguous- Thayer says judges should simply not
invalidate current majority preferences.
a. ex: people with red hair can't sue for discrim. this may survive under
the textual epc analysis- bc it does not plainly violate
b. textualists would take alot of stregnth out of judicial review
4. to which plain meaning do we give effect?
a. plain meaning at time of framing?
1) probs: look at the contemporary materials of the time? that
would require us to understand the law as it was understood
200 yrs ago-2) big notice problem here: how do we know what law governs
our behavior if we have to understand meaning as it was
understood 200 years ago
b. should we read the provision in light of the whole const?
1) scalia would say yes bc bolling wrong bc reads epc into 5th
2) another way to overcome bolling prob? denial of liberty-substantive as opposed to procedural aspects of const?????
C. Original Understanding: strike down legislation only if it violates the framer's
original understanding of the constitution. (to the extent we can discern what that
understanding is!)
1. text: text is the best evidence of original understanding/meaning
2. where the text is ambig- look to the contemporary (of that time) materials to
resolve the ambiguity (scalia/bork)
3. there was originalist ev that brown was wrong and originalist ev that brown
was right
4. if we take originalism seriously and think brown right- really hard to reconcile
a. mcconnel says that if the state legs passing seg leg had done their
research, they would know it was unconst
5. prob: if you have to do this kind of research and digging to figure out the
law, then that is a problem
D. Purposivist Theory: strike down legislation only if it violates a constitutional purpose
1. 2 inquiries to make:
a. what was the congressional understanding of the immediate effects of
the enactment on conditions then present
b. inquire to discover what if any thought was given to the long-range
effect, under future circumstances, of provisions necc intended for
permanence
2. bork thinks brown consistent with original purpose
a. equality and segregation are mutually inconsistent
b. the framers of orig const favored seg, but subsequent text favored
equality
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c. so- once it bc clear that seg and equality were inconsistent- one had
to go.
d. also, equality is on the face of the text and seperation is not
e. thinks way in which brown was decided set us down a bad path- cases
decided on policy as opposed to principles when leg already made
decisions
3. bickel: thinks brown consistent with original purpose bc he reads the evidence
to suggest that a compromise was struck at the time of adoption of 14th that
would allow an elastic reading of the amendment- to allow seg in short term
but not long term
3. Legal Process Theories of Judicial Review: strike down leg that is the product of a broken
process
A. Wechsler: decisions should be principled: ones that rest on reasons with respect to
all the issues in the case, reasons in that their generality and their neutrality transcend
any immediate result that is involved
1. we can't articulate a neutral principle on which brown is based
2. brown estb seperate inherently unequal on suspect grounds and then started
applying to segregation in parks
B. Ely: Representation Reinforcing: brown correctly decided bc rep reinforcing
1. thinks the const should be interpreted wholistically- const as a procedural
doc: process and procedure
2. ely's defn of broken process: malfunction occurs when the process is
undeserving of trust, when:
a. the ins are choking off the channels of political change to ensure that
they will stay in and the outs will stay out, or
b. through no one is actually denied a voice or a vote, representatives
beholden to an effective majority are systematically disadvantaging
some minority out of simple hostility or a prejudiced refusal to
recognize commonalities of interest, and thereby denying that minority
the protection afforded other groups by a representative system
1) ie- minority interests are not properly represented in political
process
2) this sounds similar to carolene products fn 4- discrete and
insular minorities
3. judges are in a much better position to notice that the process is broken than
are the legislators who are engaged in the process
4. ely says brown meets both prongs- theory is specifically tailored to justify
brown.
5. ely says that const is a procedural doc and has changed over time to become
more inclusive and representative
6. probs with ely's theory:
a. const may be more substantive than ely admits
b. identifying when the process is broken
7. ely's focus is the process:
a. ex: majority black richmond city council adopts minority set aside and
white companies sue to enjoin
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b. ely would look at how it was adopted- as long as council members
elected- all views rep- does not matter that majority black - bc if
program not product of broken process- then ely upholds
C. Public Choice Theory: takes economic theory and applies it to the political process
1. economic theory: we are all rational maximizers of our own satisfaction
2. legislators are rational maximizers: what satisfies legislators is being reelected
- they act how they need to to get reelected
3. the whole theory of the representative process is not representative at all
a. bc they are all back scratching each other to keep their positions
4. process is irrelevant, bc it is corrupt
5. focus only on the product of the process. look at the product independent of
the process that produced it
D. Passive Virtues: supreme court's desirable course of action to do nothing definative
1. bickel's theory: the supreme court gets to make the constitutional history they
decide to make- they can avoid controversial cases if they want to
2. they can kick it out on a standing issue or decide it very very narrowly and
avoid the constitutional question.
4. Evolutive Theories of Judicial Review: the meaning of the const changes over time-- least
deferential to leg judgment
A. Republican and Feminist Theories: take the view that the perspectives of some
people who have been excluded have not been taken account of in constitutional
theory/ doctrine
1. ely would say- that as the franchise has been extended, that they are included
now, so as a procedural matter, excluded groups now have representation
2. but repub/feminists- take a more substantive view: it takes more than
extending the franchise to correct former exclusion and we must make the law
more responsive to minority concerns
3. ackerman: constitutional moments: moment at which the meaning of the
const shifts dramatically. (new deal and adoption of reconstruction amend)
a. critics say new deal produced no amendments to const
B. Radical Feminism and Critical Race Theory: not only that women and people of
color need to be represented in american const law, but that am const law needs to
be "reconcieved" from the vantage point of women and people of color
1. principle point: neutral law in a non-neutral societal context is not truly
neutral, but rather supports the status quo
2. the law must do something affirmative
C. these views are much less deferential to leg judgment bc they take a diff view of
society to which law is addressing
D. look at all of the above theories on a spectrum- ely is kind of a centrist
Chapter 3: The Constitution and Racial Discrimination
Section 1: Racial Classifications After Brown
A. Facial Racial Classifications that Disadvantage Minorities or Evidence Racial Hostility
1. Interpretation of EPC: "no state shall deny to any person within its jurisdiction the ep of
the laws"
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A. very general language
B. textualist- would say that it assures protection on more grounds than race
C. original purpose- argue that was to assure protection to blacks (bork's view)
D. we know now that EPC not limited to blacks
2. legislative classifications based on race are subject to strict scrunity (ww2 cases)
A. SS1) the ends: must be compelling
2) the means: must be necessary (and/or?) narrowly tailored
B. classifications that get SS- race, natl origin, religion, alienage (only when states
classify)
3. the higher the level of scrutiny, the lower the level of deference to leg judgment
A. countermajoritarian issue here
4. rational basis: lowest level of scrutiny: almost complete deference to leg judgment
A. the ends: must be legitimate
B. the means: must be rationally related
5. Rhenquist would have an even lower level of scrutiny:
A. the ends: permissible
B. the means: concieveably related (if the ct can imagine anything which might justify
this leg, then the ct will defer to the leg judgment)
6. Anti-discrimination concept: 2 views
A. the constitution should be colorblind
B. race should be taken into account when the state makes its decisions bc of the
history of race in our country:
1) purpose of this: there is a distinction betweena. discriminatory race based classifications which discrim to the disadv of
the minority and
b. benign race based classif - which benefit the minority
7. Loving v. Virginia: Supreme Court struck down Va's antimiscegenation law (Warren 1967)
A. facial racial classifications automatically get SS
B. equal application does not immunize statute from SS if statute classifies on basis of
race.
C. ct basically does not decide on originalisim/ framers of 14th's intent, because info
inconclusive. -- but this still leaves the door open to originalisim
1) the framers were probably opposed to interracial marriage
D. classification in loving that whites and blacks can't marry fails SS
1) even if we accept racial purity as a legit end-- the statue still fails bc the means
aren't narrowly tailored- still lets whites marry everybody else- just not blacks
E. ct says it does not survive DP analysis either
1) depravation of substantive due process: deprevation of liberty- the right to
marry, which is a fundamental right (no amount of procedural due process
could justify this statute)
8. SS = fatal in fact:
A. no race based classifications have survived in the sup ct since WW2 cases
9. RB: rational in theory, but very permissive in fact
10. race matching adoption hypo:
A. gets SS, bc on its face- will probably fail ends means test
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B. but as a matter of public policy- the agency could reveal the race of the children
to the prospective parents- just the state can't match it up themselves
B. Facially Neutral Classifications: Classifications that are Neutral on Their Face, but may be
Accompanied by Discriminatory Intent or Discriminatory Effect
1. Yick Wo v. Hopkins: held that "as applied," the statute allowing the board to use their
discretion in granting laundry permits to laundry owners in wooden buildings violated epc
A. 2 ways to challenge a statute1) facial: statute is invalidated- totally unconstitutional. remedy: injunction
against the statute
2) as applied: unconstitutional as applied to p or ps and the ordinance survives
the as applied challenge. remedy: applying it the right way towards the ps
a) conservative approach-- what the ps here in yick wo did
B. dp challenge would have been the facial challenge- "naked and arbitrary" power upon
the govnt- discretionless authority is a dp prob
C. EP challenge- "as applied" -- this is what the ct here decides it on
1) EPC problem: discriminatory impact
2) the people responsible for enforcing this ordinance enforced it inconsistentlyand therefore, the application to the chinese- had a discrim impact
D. a discriminatory impact is sufficient to constitute an equal protection violation when
similarly situated people are not treated similarily
E. this is a case where the impact is so stark, than intent can safely be infered
F. intent alone is not enough. there must be an impact/effect (hypos- a stigmatic injury
claim here would be too weak) (ie, if the board applied it fairly, but the intent of the
statute had a bad motive)
1) Gomillion v. Lightfoot: similar holding as in Yick Wo- alabama legislature
redraws the city limits of tuskeegee and draws out all the blacks
a) intent to discrim and discrim impact
b) we might be able to infer intent from impact if there was not evidence
of it
2) Palmer v. Thompson: Jackson, Miss closed down all its public pools rather
than integrate.
a) ct held that there is no effect. bad motives is not enough. there is no
state action going on that affects blacks diff from whites (no state
subsidies to private white pools or anything)
b) prob: there is no remedy when there is no impact. the remedy could be
to order jackson to provide integrated pools. but then - the city could
pass the same ordinace with diff reasons-- then there would be no
bad intent and no discrim effect
c) even the brown stigmatization arg won't work, bc no impact
2. Washington v. Davis: Supreme Court upheld a written personnell test given by the wash
dc police dept which a disproportionate percentage of black applicants did not pass.
A. ct holds: disparate impact alone is not enough to constitute an ep violation. there
must be some discriminatory purpose
B. the degree of the impact is relevant to whether we can infer intent. and we do need
intent for epc to be violated
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3.
4.
5.
6.
1) like in yick- where the impact was so stark- it can evidence entent
C. for the intent requirement to be met: there must be intent to discrim against these
particular ps-- here, even though the statistics showed blacks suffered- no intent
against these ps, so no violation--purposeful action by state
1) ga death penalty case: no violation of ep where black crim d showed statistical
evidence that racisim built into the death penalty system in ga, bc there was
nothing in the record applying to that particular p
Arlington Heights: the burden only shifts to the state when there is proof of intent- that a
discrim purpose has been a motivating factor in the decision, then judicial def no longer
justified. Disparate impact alone is not enough to shift the burden
A. the burden shifting only occurs when a racial motive is disclosed
B. then the govnt can show that they would have acted in the same way even without the
racial animus
C. factors to determine intent
1) extent of impact
2) historical background of the decision
a. are there a series of official actions taken for invidious purposes?
3) specific sequence of events leading up to the challenged decision
4) depatures from the normal procedural sequence
5) substantive departures
6) leg/ admin history
Feeney: "in spite of" and not "because of"
A. the govnt may adopt a policy knowing that it will have a disparate impact if it is
choosing that policy in spite of the disparate impact, not because of the disparate
impact.
Where the case is disparate impact without discrim intent-- the level of review is RB. discrim
intent is SS
Other possible arguments, interpretations
A. Steven's natural consequences test: he suggests a torts standard of intent: one is
deemed to intend the natural consequences of his deeds (feeney rejected this view)
B. Judge Tuttle: specific intent to discrim should not be required to find a violation of
ep. a state could deny ep through "arbitrary thoughtlessness": impact is enough
C. disproportionate impact of written personnel test is the result of prior discrim. so it's
continued use is arguably an explotation by govnt of disparities caused by prior
discrimination
D. Wiseman things the Arlington Heights burden shifting when proof of intent does not
go far enough
1) bc if the state can meet the standard to show the would have acted the same
way even without racial animus, it leaves the disparate impact statute in place
and allows states to put policies into effect that have disparate impact on
people.
E. Other Robust interpretations of EPC that Wiseman likes
1) when disparate impact is pointed out to the govnt, the burden should shift to the
govnt to justify the continued use of the test/statute, etc.
2) or even more robust: shift the burden to the govnt to evaluate the policy:
a) to make sure that the policy serves other important ends that the
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government couldn't easily achieve otherwise- to justify the
classification that it knew would have a disparate impact
1. there would be a big countermajoritarian difficulty here though
F. we have a statistical disparity, and the government in allowing that disparity to exist
is violation the ep of those people. (rejected by wash ct bc no purposeful discrim
against those particular ps)
Section 2: Limitations on Judicial and Congressional Power to Address Racial Discrimination:
The State Action Doctrine and Congressional Power to Enforce Constitutional Rights
A. Establishing State Action and Congressional Power Limitations
1. The Civil Rights Cases: the issue was whether congress had the authority to enact section one
of the civil rights act of 1875- which provided for all persons to be "entitled to the full and
equal enjoyment of the accommodations, advantages, facilities, and privileges of inns, public
conveyences of land or water, theatres, and other places of public amusement"
A. congress has enforcement power when acting under the civil war amendments- they
are acting within the power granted to them by those amendments
1) here- ct says that cong didn't have the power to enact this legislation
B. Reasons ct cites as why cong was beyond the scope of their section 5 of 14th
authority:
1) cong can act to correct actions of the state that violate section 1 of 14th"no state shall,"-- this correction/nullification of state action is part of thier
enforcement powers
a. and the subject matter here is "individual invasion" of rights- which
is why they were wrong to act. can only act when there is "state
invasion"
b. cong can't regulate states by regulating individual rights
2) statute makes no reference to violations of the 14th amendment.
a. cong can't leg this broadly over individual invasion of individual rights
b. although the invasion may be redressable, cong can't act to redress
cong can't correct unless there is state invasion
3) slippery slope
4) just bc states are prohibited to act in a way, that does not mean that cong can
totally reg all that stuff- ct says dumb arg
C. 14th: the remedy to be provided must be based on the wrong: state action
D. 13th: enforcement power under section 2 of 13th: no state action requirement
1) cong has power to pass any laws "necc and proper" for abolishing all badges
and incidents of slavery
2) ct held that here, cong exceeded their authority, because excluding someone
from a hotel is not a badge or incident and there are state remedies
E. implicit in civil rights cases- cong can act where a state has failed to act within the
confines of the civil war amendments.
1) like if a state has turned a blind eye to some type of race discrimin- then cong
can act.
2) but cong can't act where, like here, it is an ordinary civil injury properly
cognizable by the state until the contrary appears
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F. ct says: reconstruction is over- at some point man needs to take the rank of mere
citizen and no longer be the special favorite of the laws
G. Harlan Dissent:
1) dissent on 13th: these are places of public accomadation/ quazi-public that
this is badge or incident and can be reached
2) dissent on 14th: everyone is a citizen of the state they reside. so he thinks that
cong can enforce provisions of 14th by enforcing the affirmative grant of
citizenship of the us and state where they reside- the grant of citz comes with
rights that can be enforced by the leg and cong (no one has expressed this
view since, though- pretty much rejected totally)
H. various holdings of civil rights cases:
1) state action is not action by quazi public entities (has changed)
2) state action is comission and not omission (same)
3) cong can redress affirmative acts of the state only (same) - 14th
4) 13th can reach some private conduct and cong can leg about some private
conduct-- but only such conduct that constitutes badges!
I. generally, omission won't rise to the level of state action
J. other arguments/ alternatives
1) state action could be read to cover all private conduct-- it is going to be done
within the jurisd of the state- so the denial by the state can be interp by a
state's failure to act.
2) where we are currently does not preclude arguments for moving on down the
scale towards omission/ private actors
3) sometimes state constitutions are more protective of individual rights than the
fed const. maybe there may not be a state action req under the state const
B. State Action: The Public/ Private Distinction Today:
1. 2 functional justifications in the civil rights cases for limiting congressional authority to only
reach state action and not private action:
A. federalism: state action doctrine strikes a balance between national and state power.
it preserves a zone of state sovrignty
1) the civil rights cases held that federal constitutional rights do not govern
individual behavior and, furthermore, that cong lacks the authority to apply
them to private conduct
B. individual autonomy: state action preserves a zone of private autonomy
1) the state action req preserves an area of individual freedom by limiting the
reach of federal law and federal judicial power
2) private actors have the freedom to ignore the constitution and the limits
contained within it
2. the state action doctrine functions as a way of protecting individual autonomy against federal
judicial and legislative power. it is not operating in a neutral context
3. issue: have to look at whose/ what autonomy it is that you are going to protect?
A. state action doctrine protects the discriminator's autonomy and not the victim's
B. state action req is a balancing act of balancing autonomies: the autonomy to exclude
on the basis of race v. interference with that autonomy by the fed leg of jud
1) state action req is a regulator as to when that interference is permitted
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4. Who qualifies as a state actor?
A. any government actor- all the way down to local govnt
B. privatized prisons
C. public defender- is not: her duty is to the client
D. elections are
5. big theme here: the more important the federal interest being implicated, the more likely the
ct will be to find state action.
A. this is where the cts will imply comission by the state
6. cts will also find state action by private entities if they meet the criteria of the public function
exception and the entanglement exception
A. Public Function: there is state action in the exercise by a private entity of powers
traditionally exclusively reserved to the state. (jackson: a utility is not a state actor
because there have been private utilities running for a long time. even though
utilities are an essential public service, -- it is not traditionally the prerogative of the
state)
1) policy rationale:
a. govnt should not be able to avoid the const by delegating its tasks to a
private actor
b. there are some acts that seem inherently governmental in nature and a
private entity performing them therefore also should be limited by the
const
2) Elections/ White Primary Cases:
a. elections are public functions, even if carried out by private entities
b. cts used the "duck test"-- if it walks like a duck and quacks like a duck,
it will be treated like a duck
c. also present here is the 15th amendment quesiton: is the infringement
voting rights enough to raise the stakes here because it is such a heavy
public policy interest?
1. here- where there is such an important fed interest, we will
allow intervention by the ct
3) Private Property:
a. Marsh v. Alabama (Justice Black): company town was a preforming
"state action" because all of the facilities of the town were for the
benefit of the public (public function). ct said that lady passing out
religious material could not be denied freedom of press and relig
1. balancing test here: interest in individual autonomy v. societal
interest in avoiding erosion of constitutional rights by private
actors performing public function
b. Pruneyard
4) Regulating Schools:
a. generally cts have found private schools to not be public functions- bc
they would still exist but for the state (even though opponents say that
education of children is a public function of the state)
b. Brentwood Academy: the ct did find that a private entity regulating
high school athletics was a state actor based on the government's
"pervasive entwinement" with it's activities
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1. Souter: state action may be found only if there is such a "close
nexus between the state and the challenged action" that
seemingly private behavior "may be farily treated as that of the
state itself."
2. confusion here- bc this is the entanglement test.
3. ct analyzed on a very fact specific, case- by- case basis.
a) the association includes most public schools located
within the state
b) has historically been seen to regulate in lieu of the state
board of education's exercise of its own authority
B. The Entanglement Exception: the constitution applies if the government affirmatively
authorizes, encourages, or facilitates private conduct that violates the constitution.
1) issue: what degree of govnt involvement is sufficient to make the const
applicable
2) Judicial and Law Enforcement Actions
a. shelly v. kramer: issue: whether the ct's enforcement of a racially
restrictive covenant between two private parties constitutes state action.
1. ct held that cts can't enforce racially restrictive covs
2. worries about shelly reaching too far
a) every time the ct's power is invoked to enforce a k, is it
state action? no
b) is every private k when enforced subject to RB review?
no.
c) does shelly say that something which would be a
violation of EP if the state did it is a violation of EP if
if the state enforces it bt private parties?
3. no real answers to limiting shelly: what we do know is:
a) shelly does not go so far as to require every k to meet a
rational basis (state always has to meet RB)
b) where we draw the line has alot to do with:
1) whether a fed interest is implicated, and
2) how important is that fed interest
c) ct much more likely to find state action by cts when a
weighty fed interest is implicated
b. edmondson v. leesville concrete co: sup ct held that in civil cases, equal
protection prohibits private civil litigants from using preemptory
challenges in jury selection.
1. the ct applied the lugar 2 part test
a) the deprivation must be caused by the exercise of some
right or privilage created by the state, or a rule of
conduct imposed by the state, or by a person for whom
the state is responsible.
1) here- preemptory challenges have no significance
outside of a court of law. congress created
the right to premptory challenges
b) whether the private party can be deemed a state actor
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1) is the actor performing a "traditional govnt
function?"
a. preemptory challenges and jury selection
are traditional govnt functions
b. the fact that the government delegates
some portion of their power to private
litigants, does not change the govnt
character of the action
c. is the jury a "quintisential govnt body"
2) extent to which the actor relies on govnt
assistance/ benefits:
a. a private party could not exercise its
preemptory challenges absent the overt,
significant assistance of the court
b. the govnt has created the legal
framework governing the challenged
conduct and ina significant way has
involved itself with invidious discrim
3) whether the injury caused is aggravated in a
unique way by the incidents of govnt authority
a. stigmatizing arg: the injury to exclude
jurors would be the direct result of
govnt delegation and participation
b. these excluded jurors are being
stigmatized inside the courthouse
c) Georgia v. McCollum: a crim d is a state actor for purposes of jury
selection. same rationale as edmondson
d) these jury selection cases: autonomy at stake: being able to select a
jury most likely to find in your favor v. defending the dignity of the
prospective jurors.
3) Government Licensing and Regulations: Moose Lodge:
a) generally govnt liscencing and reg is insuff to find state action
b) in moose lodge- the ct held that the state grant of a liquor liscence to a
private club was not sufficient govnt entantlement for the const to apply
c) here- autonomy to exclude wins out against the federal interest of antidiscrimination
d) moose lodge does not meet the burton "symbiotic relationship"test
1. burton parking lot case- parking lot on public lands, parking
lot open to the public at large, govnt generated revenue by the
customers who were customers of the resturant, govnt
responsible for upkeep and maintence with public funds
2. burton ct said: the state, through the parking authority, has not
only made itself a party to the refusal of service, but has elected
to place its power, property, and prestige behind the discrim
e) moose lodge facts: private land, does not hold itself out as a public
accomadation, does not provide a service that would otherwise be
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provided by the state, privately owned building
f) is state granting of liquor liscence "indifference" or "endorsement?"-is state endorsement of discrim state action?
g) wise's possible interpretation:
1. state control conduct within their borders and the state
endorsing this conduct is state action and a violation. states
failing to enact leg to protect against discrim are not giving ep
h) douglass dissent:
1. the state has granted something to the club which enables the
club to exist. without the liquor license, the club would fold upso the club is a creature of the state
2. liquor liscence quotas:
C: Congressional Authority to Enforce Civil Rights: Enforcement Power
1. Regulating State Action: The Race Cases
A. what is the scope of cong's enforcement power under 13th, section 5 of 14th, and section 2 of
15th?
B. Voting Rights Act of 1965:
1. empowered the atty gen to suspend literacy tests and other restrictions on voting in
those states where less than 50 percent of citz had voted or were registered to vote
2. once these findings were made, the state could not adopt any new standards with
regard to voting without obtaining pre-clearance from atty gen
C. EP litigation can only reach intent (Wash v. Davis). But: EP legislation can reach more
conduct-- it can reach discriminatory effects
D. South Carolina v. Katzenbach: (Warren)
1. the court upheld the constitutionality of the VRA: cong can reg effects of discrim
without finding intent to discrim
2. upheld bc:
a. mcculloch test: very deferential
1) if the ends legitimate:
2) and the means related
b. ends means analysis:
1) the statute's remedies, which apply without the need for prior
adjudication, were an appropriate response to the demonstrated
ineffectiveness of case-by-case adjudication
c. the act could only apply to places where there were "local evils"
d. suspension of "tests and devices" for 5 years
3. how the court got around Lassiter, which held that literacy tests don't violate 15th
a. history of use of literacy test to discrim-- "read and understand tests"
b. lassiter language: "of course, a literacy test, fair on its face, may be employed
to perpetuate that discrimination which the 15th amendment is designed to
uproot"
c. temporary
4. did ct uphold here bc there is an intent predicate, history of the use of literacy tests
in a discrim way, or is the VRA reaching effects without finding a discrim intent?
a. ct emphasizes that the provisions of the VRA were a REMEDY for proven
21
violations of the 15th amendment. but- alot of the dicta seems to suggest that
it is prospective too
b. "congress knew that continuance of the tests and devices in use at the present
time, no matter how fairly administered in the future, would freeze the effect
of past discrimination in favor of unqualified white registrants"
1) this seems to be remediating effects of past discrim
c. "court has recognized that exceptional conditions can justify legislative
measures not otherwise appropriate"
1) "cong had reason to suppose that these states might try similar measures
in the future in order to evade the remedies for voting discrimination
contained in the act itself"
2) but this seems to be prospective
E. Katzenbach v. Morgan: Ps challenged portion of the VRA which sought to partially overturn
Lassiter. VRA: no person who has completed sixth grade in a Puerto Rican school, shall be
denied the right to vote bc of failure of english literacy test (Brennen)
1. here- the ct is going a step farther- south carolina v katzenbach- ct can regulate as to
discrim effects, even if there is no discrim intent
2. here: ct goes one step farther: cong now given the power to avert the danger of state
action that would violate epc
a. 3 levels of congressional power under section 5 of 14th
1) prohibit constitutional violations
2) redress state action that violates ep
3) authority to avert the danger of state action that would violate epc**
a) this principle allows cong to reach a whole bunch of conduct
that is not suspect
b) here in morgan- there actually is an intent predicate. but: the
holding does not seem to require it, which is why this is a
dangerous principle
3. institutional competence issue:
a. ct is restricted to finding violation of epc where intentional discrim
b. but this constraint should not apply to cong, bc they have more fact finding
ability- capacity to investigate and find facts on societal discrim more
generally
4. ct held: this provision is a proper exercise of the powers granted to cong by section
5 of the 14th amendment. bc:
a. remedy for discrim
1) cong could have concluded that granting puerto ricans the right to vote
would empower them and help them to eliminate discrim against them
b. cong could find that literacy tests deny ep (even though contrary to lassiter)
1) this is important: bc this gives cong the authority to DEFINE the
meaning of the 14th amendment
2) but the ct says this is proper exercize of cong's ENFORCEMENT
powers
5. cong remedial legislation will be upheld under section 5 of 14th if:
a) the enactment is plainly adapted to the end of EPC
1) here- VRA is "plainly adapted" to secure the rights of puerto ricans-
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properly enforcing the EPC
b) cong remedial leg is not prohibited by, but consistent with the letter and spirit
of the const
1) yes. even though does not apply to non-am flag children, ct said ok and
that cong can take a one-step-at-a time approach.
c) regardless of whether the practices themselves are constitutional
6. this is very deferential to the legislature: "it is enough that we perceive a basis upon
which the congress might resolve the conflict as it did"
a) congress has to have some authority to say that something is violative of the
epc. cong shouldn't have to wait until judiciary says every little thing is a
violation before they can legislate
7. Harlan's dissent: cts role is to interpret the substantive meaning of the const and
cong's role is to enforce.
a) cong should remediate wrongs
b) ct should identify wrongs
c) the issue here is not whether the statute is appropriate to cure an established
const violation
d) but the issue is: whether there has been a const violation
e) harlan worries that this gives cong the power to dilute rights also
f) not enough factual data about pureto ricans and voting rights
8. basically: cong can have the first word, but the ct always has the last word
F. Oregon v. Mitchell: fractured court
1. ct upheld suspension of literacy tests to all state and natl elections in US
a) harlan and 7 others thought that vra amendment const under section 2 of 15th
1) congress could have determined that racial prejudice is prevelant
throughout the nation and that literacy tests lead themselves to
discriminatory application
2) even without specific instances of discrim application/ effects- cong
could have determined that there is enough of danger of unconscious
discrim to authorize cong power
3) cong can act to avert the danger
4) court concluded that cong could rationally have determined that these
provisions were appropriate methods of attacking the perpetuation of
perpetuation of earlier, purposeful racial discrimination, regardless of
whether the practices they prohibited were discriminatory only in
effect.
b) maybe harlan changed here bc of the more nationalist issues than in katz
2. ct upheld provision lowering voting age to 18 in fed elections, but not for state
a) stewart- no discrete and insular minority
b) brennen- very deferential- believes that morgan stands for the proposition
that section 5 of 14th allows cong to make its own determination on the matter
c) brennen's arg here is a little diff than katz. here- he focuses on
1) federal fact finding (cong) and state fact finding (state leg)- supremacy
clause- feds control
2) therefore: "where we find that the legislators, in light of the facts and
testimony before them, have a rational basis for finding a chosen
23
regulatory scheme necessary, our investigation is at an end"
a. so where we have fed fact finding and state, feds control
d) upheld only to feds bc voting age is an area traditionally reserved to the states
1) so cong had exceeded enforcement power there
G. City of Rome v. U.S.: (Marshall)
1. VRA only granted preclearance where jurisd proved no discrim intent and no discrim
effect
2. Rome proved no intent-- but ct still denied preclearance bc the changes would have a
discrim impact
3. under section 2 of 15th4. cong may prohibit practices that aren't violative of section 1 of 15th, so long as the
prohibitions attaching racial discrim are "appropriate"
5. "congress could have rationally concluded that because electoral changes by jurisd
with a demonstrable history of intentional racial discrim in voting create the risk of
purposeful discrim, and it was proper to prohibit changes that have a discrim impact"
a) so here- there is an intent predicate
6. so- does averting the risk legislation always have to have an intent predicate (historical
discrim) even if there is no intent proven? seems like it
7. basically here- seems like ct suggested that cong has the authority under section 2 of
15th to interpret meaning of 15th amendment
8. here- even though no constitutional violation- no discriminatory purpose- cong can
still prohibit practices that only have a discrim impact
9. different interpretations of cong power:
a) narrow reading: case is simply approving a remedy for violations of voting
rights. allowing proof of discrim impact to show violation of the act was meant
as a remedy for a proven history of denial of voting rights
b) broad reading: sees case as authorizing cong independently to interpret the
the meaning of the 15th and even adopt a view contrary to sup ct (wash v davisimpact alone insufficient to establish liability)
10. this case is the nationalist perspective: oregon v mitchell and rome and katzenbachthe nationalist perspective- nation's history of racial discrim-- use national view to
broaden scope of cong powers
11. Rome is probably the high water mark
2. Regulating State Action: The Religion Case
H. City of Bourne v. Flores:
1. sup ct in oregon v. smith held that the free exercise clause cannot be used to challenge
neutral laws of general applicability (peyote case)
2. in response, cong adopted the religious freedom restoration act (RFRA) with the goal
overturning smith and prohibited the government from substantially burdening a
person's free exercise of religion, even if the burden results from a rule of general
applicability unless the govnt can demonstrate the burden:
a) is in furtherance of a compelling governmental interest and is
b) the least restrictive means of furthering that compelling govnt interest
3. ct in bourne struck down rfra: this is not an appropriate use of cong's enforcement
power under section 5
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a) you don't enforce a right by changing what the right is
b) ct said- we already told you what the right means, so cong does not have any
indy authority to determine what it means
1) it may be ok for cong to determine what right means when ct has
been silent- but that is not the case here.
4. cong is limited to making laws that prevent or remedy violations of rights recognized
by the supreme court, and these laws must be "proportional" and "congruent" to the
constitutional violation
a) "there must be a congruence and proportionality between the injury to be
prevented or remedied and the means adopted to achieve that end"
b) "lacking such a connection, legislation may become substantive in operation
and effect"
5. the remediation must be prop and cong going to the purpose of the EPC. when cong
changes the rights, the remediation is no longer going enforcing the "provisions of the
14th amendment"
a) "remedial legislation under section 5 should be adopted to the mischief and
wrong which the 14th intended to provide against"
6. reasons why VRA is congruent and prop and RFRA not
a) RFRA only places "incidental burdens"- unlike literacy tests
b) VRA- there are examples of gen app statutes that target race- not really so with
relig
c) limiting factors of VRA: more limited in scope and direction
1) termination dates
2) geographic restrictions
3) egregious practices
7. if ct allowed RFRA- then any law is subject to challenge at any time (historic
preservation law at issue in bourne)
8. big issue to look at: can you justify this legislation as remedial- or is it substantive!
a) no way this RFRA can in any way be justified as remedial
I. Kimmel: ADEA- age: age gets rational basis. ADEA can't apply to states as employers
1. ADEA is not remedial leg under section 5 of 14th- but more of an attempt to redefine
states legal obligations with respect to age discrim
a) cong has never identified any pattern of age discrim by the states, nor any
discrim that rose to the level of a constitutional violation
2. didn't meet proportionate and congruent- not "appropriate leg" under section 5
J. Garrett: ADA- disability: disability discrim gets rational basis
1. here- we have the cleburne precedent, but rhen says does not matter- we are not
making states have a rb with teeth with respect to disability
2. also here, more factual record than with kimmel
3. but ct says: only look at activities of the States- does not matter about all the evidence
societal discrimination
K. Kimmel and Garrett: age and disaiblity- cong only has the authority to remediate
1. age gets the lowest level of scrut (kinda so with disability- but cleburn makes unclear)
2. so cong has to find a history of states discriminating on the basis of age/disability:
a) cong must compile a substantial factual record that states have been
discriminating: pattern
25
1) ** every single state must have evidence of pattern of discrim bf cong
can leg prospectively on age and disability for the entire country
b) must be proportional and congruent to the wrong being remedied
3. cong can't reach conduct that would not have violated the constitution
4. states only have to meet a very low threshhold
3. Regulating Private Conduct
L. Jones v. Alfred H. Mayer Co.
1. cong does have the power under the enforcement clause of 13th to bar private
racial discrimination in the sale or rental of property- civil rights act of 1866
2. the 13th has no state action requirement
3. 13th was self-executing- adoption of amendment abolished slavery- so congress
does have the power under the enforcement clause of 13th to abolish badges and
incidents of slavery
4. low level of review to cong leg enacted under 13th: rational: congress has the
authority to determine what the badges and incidents of slavery are
5. how do cong determine badges and incidents?
a) classify as: lingering effects of slavery? narrow
b) or: lingering effects of intentional discrimination? broader
6. pretty clear though, that badges and incidents is not wide enough that everything
that can't be reached under section 5 of 14th can be reached under 13th
7. where do we draw the line?
a) both the language and leg history of the act have suggested to many observers
that cong was attempting only to outlaw state statues or practices that
interfered with the property rights of racial minorities
M. Runyon(1976): upheld jones: enacted under cong's enforcement authority under 13th and
reaches some private conduct-- ct stuck with jones approach
1. ct continued to uphold runyon bc of stare decisis factors
N. Patterson (1989): interpret act (now act 1981) narrowly in the employment context holding
that the civil rights statute did not apply to racial harassment on the job
1. but ct did not overrule runyon, just said that employment discrim is not a badge
or incident
2. ct held that stare decisis is more important in statutory cases than in constitutional
cases, bc it is easier for cong to get it right and cts to get it wrong
3. ** see casey case in fundamental rights for treatment of stari decisis in const cases
O. does this 13th low level of review survive kimmell and garrett???????????
P. generally, congress does not have to state under what authority they are acting/legislating.
1. if cong says enacting under a certain sourse, and it is the wrong source, the court will
will try to find another way and still uphold it
Q. but recent trend: ct requiring cong to create a factual predicate for legislation
1. to enact leg under 14th, cong must show a history of discrim
2. to enact under 13th- cong must show that it is a badge and incident
Section 3: The Affirmative Action Controversy: Benign Racial Classifications or Reverse
Discrimination
A. Affirmative Action and the Equal Protection Clause: 1978-88
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A. Regents of the University of California v. Bakke: (1978)
1. UC davis reserved 16 spots in med school class for minorities
2. ct struck down:
1. 4 struck down under title VI bc it was discrimination by a recipient of
federal financial assistance
2. Powell- struck down bc didn't survive SS: Powell says:
a. all racial classifications should get ss- his analysis
1) ends/ purpose must be:
a) constitutionally permissible
b) and substantial
2) means: must be necessary to achieve the purpose
b. powell though ends fine:
1). ameliorating the effects of past discrim
2) diversity in student body (like michigan)
c. but powell didn't think means narrowly tailored
1) other ways to promote diversity besides dumping on one
applicant
2) likes the harvard plan- race as a plus factor
d. powell thinks remeding societial discrim is too amorphous a
concept of injury and that regents don't have the institutional
competence to make this determination
e. give ss to all: it does not matter that whites are not a discrete
and insular minority
3. Brennen 4 would have upheld: wanted to apply intermediate scrut and make
determination bt invidious and benign classifications
1. they thought there was enough evidence for the factual premises
B. Fullilove v. Klutznick (1980):
1. without a majority opinion: the ct upheld a federal statute requiring 10% of fed
funds for state and local govnt bld projects must be spent getting goods and
services supplied by minority business owners
2. Marshall, Brennen, and Blackmun: statute survived "intermediate scrut"
3. Berger, White, and Powell- upheld- but didn't state what scrut
4. Berger said:
1. cong may legislate without compling the kind of factual record appropriate
with respect to judicial or admin procedings
a. this is very deferential to cong- even when making racial classificaitons
b. this may not still stand after kimmel and garrett- may require a big
record
2. cong made no "preambulory findings" but concluded that cong did have a
sufficient factual basis to conclude discrimination
3. also- statute limited
a. allocated money on a one-shot basis
b. administrative waiver provisions when compliance with the
requirement was too difficult
5. Powell said: it survived SS
1. institutional competence:
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a. cong is competent to identify past sociatal probs so they can remediate
it. bd of regents wasn't
2. enforcement power
a. cong has enforcement power under section 5 of 14th- regents of calif
does not
3. statute survived bc: "serves the compelling govnt interest in eradicating the
continuing effects of past discrim identified by cong"
a. statutes that attack perpetuation of effects are const. permissible
C. Wygant v. Jackson Board of Education (1986) - no majority
1. ct struck down a collective bargaining agreement bt school board and teacher's union
that lay offs are done by seniority except with respect to maintaining minority
percentage
2. Powell, Berger, Rhen, and O'Connor
a. school district's defense was not remedial: minority students to have role
models
b. also, practice had no connection to discriminatory hiring practices
D. Affirmative Action in a Theoretical Context:
1. original intent analysis: would the framers have approved of aff action in this kind
of context, (bakee, fullilove, wygant)
2. representation reinforcing theories of ely:
a. decisions that are the product of a broken process should be second guessed,
but should otherwise be left alone because they are decisions of a
representative process
b. ely's theory: deferential to the legislature
c. so was the process by which the board or regents adopted this quota system
sufficiently representative
3. progressive approaches: you have to be race conscious in order to address prior and
ongoing discrimination: functional v. formal equality
a. Thomas Sowell: the constitution should be colorblind: formal equality
b. Patricia Williams: bc of historical subordination- neutral/colorblind
application won't work: need functional equality that produces equal
results
c. current sup ct doctrine- formal equality approach
B. The Triumph of "Skepticisim," "Consistency," and "Congruence" in the Supreme Court:
1989-1995
A. City of Richmond v. J.A. Croson: plurality opinion
1. issue: city counsel passed a law that made city construction ks be subbed out to
30% mbes. ct upheld this in fullilove
2. mbes: eskimos, aluets, chinese, indians, blacks, and hispanics
3. O'Connor: delivered the opinion:
4. richmond says it is remedial and prospective- wider minority participation
5. O'Connor: we don't want all 50 states and all city counsels deciding remedies
a. cong has a specific constitutional mandate to enforce under section 5 of
14th.
1) even though states and local govnts are commanded by 14th to not
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deny ep- cong is the one who can actually enforce it
b. institutional competence:
1) congress has competence to determine societal discrim- states and
locals don't
2) but ct here suggests that they may be competent to remediate discrim
locally if it identifies the discrim with particularity required by 14th
a) so city may be able to redress "lingering effects"
1. specificity of discrim can count of as lingering effects
that city is remediating
b) so if richmond had more specifically tailored, then maybe ok
1. "It is beyond dispute that any public entity, state or fed
has a compelling interest in assuring that public dollars,
drawn from the tax contributions of all citizens, do not
serve to finance the evil of private prejudice"
6. so: all race based classifications by state/local get SS regardless whether benign
a. rational: here- the majority of city counsel is blacks- so this is not a kind of
benign purpose by whites trying to help blacks
b. to identify classification as benign it implies that the majority is granting
something to the minority -- but classifications based on race carry a danger
of stigmatic harm
c. wise thinks this reference to racial politics is gratituous: the makeup of the
legislature has no bearing on constitutional principle
7. also- here- this leg is not remediating anything- "there is nothing approaching a pf
case of a constitutional or statutory violation by anyone in the richmond construction
industry"
a. mere recitation of benign remedial purpose is insufficient- race classif gets ss
b. 2 prongs to ss: ends must be compelling and means must be narrowly tailored
1) here - it isn't remediating anything, so no compelling purpose- so means
can't be narrowly tailored to it
8. Stevens: thinks prospective goal can meet the compelling interest test- does not think
it has to be remediating
9. ct kinda suggests that state can local govnt can only address its own prior discrim
10. Scalia- kind of like that- but more harsh
a. his ss would always be fatal in fact
b. const requires colorblindness unless--- the state has actively discrim and needs
make it right
1) can act on the basis of race only by stopping action that is on the basis
of race
c. "there is only one circumstance in which the state may act by race to undo the
effects of past discrimination: where that is necessary to eliminate their own
maintence of a system of unlawful racial classification
11. Kennedy thinks it is messed up that when enacted by a state, leg can be an ep
violation, but when enacted by cong is a ep guarantee
12. Marshall, Brennen, Blackmun: still want to apply intermediate scrut
13. Richmond catch phrase: equal protection analysis "is not dependent on the race of
those burdened or benefited by a particular classification"
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B. Metro Broadcasting v. FCC (1990):
1. Brennen, White, Marshall, Blackmun, Stevens: Brennen wrote opinion
2. intermediate scrut for benign fed classifications:
a. does the classification
1) serve important governmental objectives, and is it
2) substantially related to the achievement of those objectives
3. does not matter if remedial- can be prospective too
4. uses racial diversity as an appropriate proxy for viewpoint diversity
5. O'Connor, Rhen, Scalia, and Kennedy dissent: O'Connor writes
a. in fullilove:
1) cong exercizing enforcement power against the states
2) fullilove was remediala) here- didn't offer much evidence
C. Adarand Constructors, Inc. v. Pena:
1. issue- general contractor hired sub that was minority bc they would recieve
federal compensation.
2. holding: all racial classifications, whether fed, state, or local govnt actor must
get ss
a. must be narrowly tailored to further compelling governmental interests
3. ep under 5th is same as ep under 14th
a. wise didn't think that O'Connor needed to read ep into 5th out of 14th by
reverse incorporation
1) he says this ought to be a part of dp: fundamental principle of
justice- similarily situated people should be treated similarly
4. O'Connor overrules Metro Broadcasting
5. race based classifications should be treated in 3 ways:
a. skepticisim:
1) bc there is a history of improperly motivated race based classif
b. consistency
1) all race based classif regardless of who is beneif or if it is defensable
as benign all get the same level of scrut- strict
2) wise thinks: we can determine what is invidious and what is benign
c. congruency: ep in 5th is the same as under 14th
1) but wiseman does not think there is a textual basis for congruence
6. 5th and 14th recognize personal rights- which is why the group classif get ss to make
sure personal rights not infringed upon
7. Stevens dissent:
a. thinks consistency rationale is unpersuasive: he thinks he can tell diff bt
invidious and benign classif
1) there is no consistency bt gender and race
a) bc all gender class (whether invidious or benign) get
intermediate scrut, an affirmative action program on behalf
of women will survive scrut more easily than one on behalf of
blacks- dosen't make a whole lot of sense
b. he thinks that enhancing diversity is a compelling interest and that this reg
would survive ss
30
c. forward looking interests can be compelling
8. Scalia concurrence: never a compelling interest- ss is always fatal in fact
9. Thomas Concurrence: objects to aa programs bc there is no distinction bt benign
and invidious classifications.
a. benign stigmatize just as much
1) teaches that minorities cannot compete without their patronizing
indulgence
2) engender attitudes of superiority by majority
3) stamp minorities with a badge of inferiority and may cause them to
develop dependencies or adopt an attitude that they are entitled to
preferences
D. Issues raised by the Mich/ Grutter case:
1. Bakee didn't pass bc of quotas- quotas aren't "narrowly tailored"-- there are other
ways/ means
2. in Bakee- Powell said that diversity might be a "compelling interest"
3. the court will probably find a "compelling interest" here- diversity in classroom and
profession is a good thing- here prospective goal may be compelling interest
4. the issue will come up as to whether it is narrowly tailored/necessary
a. and this all turns on how the compelling interest is classified
1) if interest is racial diversity:
a) there is no other way than to take race into account
2) but: if the interest is viewpoint diversity:
a) there may be other ways to achieve and taking race into account
may not be narrowly tailored
b) is race an appropriate proxy for diversity/ viewpoint diversity?
C. Facially Neutral Classifications and "Majority-Minority" Electoral Districting: Affirmative
Action, Reverse Discrimination, or Something Else Altogether? Re-Districting Cases
A. we can draw a bright line between facial racial classifications and facially neutral classif
1. facially racial class get SS
2. facially neutral get RB- Wash v. Davis test: intent + impact required
a. therefore, they will almost always pass
3. facially racial with benign purpose- SS- will likely fail
4. facially neutral that have benign purpose- const
a. even if have race in mind when adopting, but bc neutral on face- red flag not
raised
B. but elected officials simply can't avoid racial considerations in electoral re-districting
C. Shaw v. Reno: O'Connor: 5-4 majority:
1. to get federal pre-clearance, fed atty gen said NC had to add another majority-minority
district in the east.
2. but NC drew some crazy kind of district instead bc they wanted to protect the
incumbent.
3. Ps object that the "redistricting legislation is so extremely irregular on its face that it
can rationally be viewed only as an effort to desegregate the races for purposes of
voting, without regard for traditional districting principles and without suficiently
compelling justification"
31
4. holding: SS applies to:
a. facially racial classifications and
b. statutes that are neutral but on their face are unexplainable on grounds other
than race.
5. is there discrim intent here that is constitutionally suspect- political apertited?
6. would think since facially neutral would get DI/ wash v davis test- but it does not
a. wash test:
1) proof that intent was a "motivating factor"
b. voting test:
1) proof that intent was a "predominant factor" - higher standard?
7. it is kind of hard to articulate the ep harm, here too, bc everyone still gets to vote
a. everyone is always outnumbered by some other group
8. NC says their compelling interest is complaince with DOJ directive
a. but this is kinda crazy- if drawing the lines this way is presumptively unconstSS/ then it does not become constitutional becausae the voting rights act
says you have to- no bootstrapping
9. criteria that may defeat a claim of racial gerrymandering: traditional districting
principles:
a. compactness
b. contiguity
c. respect for political subdivisions
10. White's Dissent:
a. he does not think there is a discriminatory effect: no ep harm bc everyone
can vote- someone will always be in the minority
1) remember public pool case- discrim intent- but no impact- so no
violation
b. he thinks that compliance with voting rights is a compelling interest and
taking race into account is the only way to narrowly tailor
11. Stevens Dissent:
a. he says this is a benign racial classification- still thinks he can tell the
difference bt benign and invidious
b. here- benign bc minority voting stregnth is enhanced
D. if trying to get dems and not blacks- then can draw lines for blacks bc they are loyal demsis regular ole gerrymandering and not constitutionally suspect motives
Chapter 4: Gender Discrimination and Other Equal Protection Concerns:
Section 1: Minimal Equal Protection Scrutiny (The Rational Basis Test)
A. Stevens thinks there should only be one level of scrut for everything: RB: still get ok
result, bc race- almost never rational, gender- sometimes
B. basic premise of EPC: like cases treated alike, similar situated people be treated similarily
C. Questions to ask:
1. whether a classification treats similar situated people dissimilarily
2. and if so- should we or should we not defer to leg judgment?
D. leg classification may be over-inclusive, and/or under-inclusive
1. ex: law prohibits people drinking under 21 so that only responsible adults will drink
2. but the leg line has to be drawn somewhere, so we usually defer to that line
32
E. RB lowest level of review:
1. ends: permissible goal
2. means: rationally related
F. Railway Express: (Douglas 1949)
1. issue: NYC law that says no ads on sides of trucks unless they are by the businesses
of the trucks
2. P's EP claim: similar situated trucks are treated dissimilarly and that is irrational
3. ct says: it may be arbitrary, but the leg are authorized to draw the line somewhere
4. Ps did raise a DP claim: said they were deprived of their liberty to k.
a. ct merely says that it is for the local authorities- very deferential
5. this railway express rb is the lowest level of rb scrut:
a. the ct can defer to leg judgment even if the leg didn't give a reason- the ct can
make up a rb
b. the fact that the legislature can reach some of the evils (ads) but not all of them
is ok, even if it is politically motivated.
1) don't have to have all or none to regulate
6. Jackson's Concurrence:
a. agrees with ct that no ep or dp claim
b. thinks better to rule under ep than dp bc:
1) ep: allows the legislature to act
a) if a classification is invalid because it is under or over inclusive,
the legislature can just redraw that classification line
b) ep challenges line drawing
2) dp: invalidation of statute on dp disables leg to act at all
a) there is a line up to which the leg may come, and then it can go
no further. can't cross the lineb) ex: no regulation of ads on trucks at all
7. sometimes cts req a higher RB- they require a rational basis in fact from the leg
G. There is more than one rational basis test. So what should cts presume about the leg process?
1. Legislators are rational- very deferential to leg
a. optimistic view- the legislators will deliberate in the public interest most of the
time and -- views cts as institutionally incompetent to second guess most
policy judgments made by legislatures
2. Cts should only second guess when a constitutional principle is implicated
a. cts should defer to the leg when policy issues
b. prob: how do you draw the line bt policy and principle?
3. Public Choice Theory: economic analysis applied to leg process
a. rent-seeking legislatures and representation-reinforcing courts
b. this theory says that legislators have their reelection in mind when they make
laws
1) strong version: leg are only/always concerned with reelection
a) interesting but false
2) weak theory: sometimes legislators are motivated by re-election
a) true- but not interesting
H. Is equal protection in the economic arena an under-enforced constitutional norm?
1. could say that nyc acted unconstitutionally, but that ct just refused to invalidate
33
2. reasons why ct upheld
a. federalism
b. institutional competence
I. Willowbrook:
1. holding: it is possible to be a class of 1. epc can protect a class of one from being
treated differently than similiarly situated people.
2. issue: P didn't get the zoning variance, but others in her place did
3. generally: ep claims are that the classification makes some people different from
others in the class
a. wiseman thinks this case would have been better under dp:
1) lady was deprived of her liberty by the denial of the variance. no legit
purpose is served by denial of variance
b. is ep usually class and dp usually one person????????????????
J. FCC v. Beach Communications (1993)
1. this low level of RB review is a "paradigm of judicial restraint"
2. "In areas of social and economic policy, a statutory classificaiton that neither proceeds
along suspect lines nor infringes upon fundamental constitutional rights, must be
upheld against ep challenge if there is: any reasonably conceivable state of facts that
could provide a rational basis for the classification."
3. ct says: we never require leg to justify- the ct can just use their own rb to justify
a. but what about Kimmel and Garrett?
1) maybe this has changed?
2) or maybe it has changed in that we only req of feds. not state and local
bc of federalism/ 11th amendment?
K. p. 300-301: RB drivers license hypos:
1. wealth based classifications are not suspect: they get the lowest level of review
2. if not suspect classification, then try to say that a constitutional principle is violated
a. try to bootstrap a constitutional violation: person can't vote without a driver's
license
3. alienage- gets heightened scrut- but would denying dl to non-citz pass rb?
4. sexual orientation? (always lowest level)
L. Alienage:
1. SS when states classify on alienage
2. not with feds though: lenient RB review
M. see notes 2/26/03 beginning for chart
N. US Dept of Agriculture v. Moreno (1973): (Brennen)
1. this case is RB with teeth
2. no food stamps to people who live together unrelated- intent- hippie communes
3. this failed the RB test- bc it was RB with teeth
4. "For if the constitutional conception of 'equal protection of the laws' means anything,
it must at the very least mean that a bare congressional desire to harm a politically
unpopular group cannot constitute a legitimate government interest"
Section 2: Sex and Gender-Based Discrimination:
A. Women Outside the Constitution: The Traditional Jurisprudence of Difference
A. Bradwell v. Illinois (1873)
34
1. upheld illinois' denial of a married woman's application for a law license
2. license to practice law in illinois is not a privilage or immunity of united states
citizenship: no denial of const p or i
B. The Jurisprudence of Equal Treatment and Heightened Scrutiny of Sex-Based Distinctions:
A. litigation strategies of womens' movements
1. after Bradwell- feminists said that the jurisprudence of difference should be repudiated
because it subordinated women as humans and citizens. even when gender differences
"protected" or "benefited" women, special treatment of women only perpetuated
gender stereotypes of women as the weaker sex who need protection at the grace of
men
2. currently- more women's groups are beginning to accept jurisprudence of difference
as a "jurisprudence of equal treatment"
1. From Rational Basis to Intermediate Scrutiny (and Beyond?) in Gender Cases:
A. Reed v. Reed (1971) (Berger):
1. Sup ct struck down idaho statute which preferred a male over a female in a tiebreaker situation as to who would be the administer of the estate
2. Ct applied RB: "the classification must be reasonable, not arbitrary, and must rest
upon some ground of difference having a fair and substantial relation to the object of
the legislation, so that all persons similarly circumstanced shall be treated alike"
a. "this is the very kind of arbitrary legislative choice forbidden by the Equal
Protection Clause"
b. ct said gender did not have a rational relationship to the ability to administer
an estate
3. but: is this really railway express RB, or is it something higher?
a. is it RB + "fair and substantial relation"?
B. Frontiero v. Richardson (1973, plurality)
1. issue: a federal law allowed a man to automatically claim his wife as a dependant and
therefore recieve a greater allowance for quarters and for medical benefits. A woman
though, had to prove that her husband was dependant on her for over half of his
support
2. Brennan, White, Marshall, Douglass (Brennan writing): gender classif are inherently
suspect and should get ss
a. rationale:
1) gender immutable characteristic and "the imposition of special
disabilities upon members of a particular sex would seem to violate
the basic concept of our system that legal burdens should bear some
relationship to individual responsibility"
2) history: "our romantic paternalism put women not on a pedestal, but in
cage"
C. arguments about what level of scrut to give to gender
1. args that support ss
a. long history of discrim
b. gender classifications usually based on stereotypes instead of impt govnt
interests
c. sex is an immutable characteristic
35
1) should be ss for people whose traits were not chosen and can't be
changed
d. under-representation in political process
2. args supporting intermediate scrutiny:
a. historical: 14th- original intent- only to outlaw racial discrim
b. biological differences make it more likely that gender classifications will be
justified
c. women are a political majority and are not a "discrete and insular minority"
1) Ely
d. if apply strict- then harder for gender affirmative action to survive
D. Craig v. Boren: ct finally decided on intermediate scrutiny for gender classificaitons
1. (Brennen 1976)
2. intermediate scrutiny test:
a. ends: important governmental objectives
b. means: substantially related to those objectives
3. Stevens again says he wants it all RB and apply as a sliding scale- he just can't let it
go!
4. Rhen dissents on institutional competence: cts not competent to make these types of
factual determinations
E. Post- Craig v. Boren cases:
1. Califano v. Webster (1977):
a. ct upheld provision of social security act allowing female wage earners to
exclude more low wage years than males
b. holding: this type of redressibility is fine and does not violate IS
1) "reduction of the disparity in economic condition between men and
women caused by the long history of discrimination against women
is an important governmental objective"
2) but "the mere recitation of a benign, compensatory purpose is not an
automatic shield" that protects a statute against inquiry
3) "the only discernible purpose of this statute's more favorable treatment
is the permissible one of redressing our society's longstanding disparate
treatment of women"
2. J.E.B. v. Alabama: (1994, Blackmun)
a. extended Batson to gender: can't use preemptory strikes on the basis of gender
3. Mississippi Univ for Women v. Hogan: (O'Connor, 1982)
a. ct ruled that exclusion of men from all female nursing school violated EPC
b. burden of party seeking to uphold gender classificaiton: show an "exceedingly
persuasive justification for the classification"
c. burden only met by showing at least that the classification serves:
1) impt govnt interests, and
2) the discriminatory means are substantially related to achievement of
those objectives
d. historically- almost all women nurses in miss
d. Burger, Blackmun, Powell, Rhen Dissent: threat to educational diversity
F. VMI: (Ginsburg, 1996)
1. ct held VMI's rule excluding women was unconstitutional- ct applied IS
36
a. ct said that that parallel program at that other college didn't fly because it was
not the equivalent to the VMI program
2. unconst bc it was based entirely on gender stereotypes
a. justification "must not rely on overbroad generalizations about the different
talents, capacities, or preferences of males and females"
b. basically, can't use sex as a proxy for something else
3. party to uphold classificaiton: "exceedingly persuasive justification" for that action
4. justification can't be post hoc- asserted only for the purposes of litigation
a. ct said that even though contemporary justification of diversity of educational
diversity might be an important interest, it does not work, bc it is post hoc. the
rule at issue was adopted for an illegitimate purpose
b. wiseman thinks not allowing post hoc justifications is wrong- bc what about
oklahoma opening OMI for men today and asserted ed diversity as interest.
that may work and wiseman thinks it is messed up that va may have a harder
burden to meet just bc of their history
5. here ct does distinguish between benign and invidious classifications:
a. says sex based classifications will survive IS (here it is kind of cranked up IS)
if used to redress: compensatory classifications redressing prior sex-based
discrimination: but cts say they can't tell the difference in race cases
b. wiseman thinks this is pretty messed up too. thinks that what courts are really
doing is applying two diff levels of scrunity based on the type of classification
1) wise thinks that if compensatory classification- that it does not have to
meet this vmi cranked up "exceedingly persuasive" standard, but
discriminatory classifications do have to meet the exceedingly
persuasive
c. maybe ct can distinguish bc of the fact that men and women really are diff in a
way that different races are not
6. VMI also tries to justify with the fact that they wanted to preserve the adversative
method of education
a. but that is based on stereotypes- you can still teach women by the adversative
method
7. ct does not buy the whole other school deal- they compare it to Sweat and the
"intangible benefits"
8. Rhen Concurrence: concurred- but thought it was cranked up scrut (wiseman's view)
9. Scalia Dissent: ct should preserve values of the epc, not revise them-- standard
originalist interpretation
10. Stevens view: men and women are different- why he always wants to apply RB, bc
sometimes the classifications are rational
2. Deference to Traditional Gender Classifications Based Upon "Real Differences"
1. There are two lines of though:
A. Principle of Equal treatment: ginsburg, prof Williams
B. the Exception for Real Differences: Scalia, prof Epstein (lends support to
Stevens, the classifications are sometimes rational)
2. Parham v. Hughes: (1979, Stewart for the plurality)
A. ct upheld a Georgia statute that allowed the mother but not the father of a
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child born outside of marriage to bring suit for the child's wrongful death
B. ct applied RB bc:
1) this is discrim between types of fathers (those who legitimate and those
don't legitimate their children)
2) this is not discrim between men and women- it is not a gender based
classif- so it gets RB
3) real differences: women don't have to legitimate their children
C. White's dissent: it is sex discrimination: treating fathers diff than mothers
D. Powell's concurrence: it is sex discrim, but it would meet the IS level of
review- so he concurrs
E. remember: very important at the outset how you characterize the
classifications
3. Caban v. Mohammed (Powell, 1979)
A. ct struck down a NY law requiring the consent of the mother, but not the
father, for the adoption of their non-marital child.
B. ct said it was a classification based on sex and rejected the "real differences"
argument
4. Nguyen v. INS (2001, Kennedy)
A. ct upheld a federal statute that accorded American citizenship automatically,
upon birth, to a child born out of wedlock in a foreign country to an American
mother, but denied citizenship to such a child whose only American parent
was her father, unless the child were legally legitimated or paternity
established.
B. ct upheld under IS bc:
1) important govnt interests:
a) assuring that a biological parent-child relat exists
b) parent and child have had the opportunity and potential to
develop a real connection, and thus a connection with the US
2) these interests were furthered in a substantial manner
a) "just as neutral terms can mask discrimination that is unlawful,
gender specific terms can mark a permissible distinction. the
equal protection question is whether the distinction is lawful"
b) here: "the use of gender specific terms takes into account a
biological difference bt the parents"
C. Scalia and Thomas concurr
D. O'Connor, Souter, Ginsburg, Breyer Dissent: (O'Connor writes):
1) she says this does not meet the post-VMI heightened scrut
2) the whole "opportunity to develop relationship" rests totally on
gender stereotypes and hypotheticals and VMI said we can't rest classif
on stereotypes
E. Does this distinction really make sense? What justifies this DT of mothers and
fathers?
1) shouldn't this be a rebuttable presumption? shouldn't it give the father
the opportunity to prove paternity?
a) but it does: bf the child's 18th birthday
2) does the child of an American male have an EP claim?
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a) is this child similarily situated to a child of a female GI?
b) or is he not- are we just back at "real differences?"
5. Michael M. v. Superior Court of Sonoma County: (1981, Rhenquist plurality)
A. ct upheld calif statute penalizing males only for statutory rape and not the
females
B. ct said met IS:
1) the statutory sex discrim was substantially related to the goal of
preventing illegitimate pregnancy, an important state interest
C. ct said just equalizing: bc sex has a natural deterrent for females: risk of
pregnancy, while the statute equalizes the deterrent for men, bc otherwise
they would not have deterrent
D. this case would probably not come out the same way now after VMI: bc
the "actual historical purposes" were very patronizing, protectionist towards
women. and we know after VMI that we look at "actual historical purposes"
not just "contemporary justifications"
6. Rostker v. Goldberg: (1981, Rhenquist)
A. again, ct upheld requiring men, but not women to register for the draft
B. ct said it passed IS
C. but the dissent argued that it was totally based on stereotypes
D. basically- this case gives high deference to military judgment
3. Classifications That Have a Disparate Impact Upon Women:
1. There are two ways to prove gender classification:
A. classification exists on the face of the law
1) VMI
2) Craig v. Boren
B. facially gender neutral law: have to prove:
1) discriminatory impact of the law
2) discriminatory purpose behind the law: discrim intent
2. Guelding v. Aiello (1974, Stewart)
A. ct upheld state statute to allow a state's disability insurance system to exclude
pregnancy-related disabilities, but include disabilities affecting only men
B. ct upheld under RB: said statute not a denial of EP
1) ct said the exclusion of pregnancy met rational basis review because
the state has a legitimate interest in maintaining the fiscal integrity of its
program and making choices in allocating funds
2) ct said: not gender discrimination: does not divide between men and
women-- it only divides between pregnant and non pregnant people
3) neutral on its face: (wash v davis test) only DI, so gets RB review
C. arg against this holding:
1) the law distinguished between people capable of becoming pregnant
and those not capable of becoming pregnant-- so totally a sex-based
distinction
D. Wiseman's views:
1) how you characterize the classification/ frame the issue is huge
2) in guelding- this classification takes it out of IS and into RB
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3) thinks that a classification that has such a DI on basis of sex should get
heightened scrut and should require some justification by the govnt
E. cong effectively overruled guelding with the PDA
3. Personal Administrator of Massachusetts v. Feeney: (1979, Stewart)
A. sup ct upheld a state law that gave a preference in hiring to veterans even
though it had a substantial discriminatory impact against women (only 1.8%
veterans in mass were female)
B. just like wash v. davis:
1) Disparate impact is not evidence of discrim intent (even here where it
was really huge)
2) so then the burden shifts to the state to show that the classif was
adopted in spite of and not because of the effect
a) here- the rule was adopted to benefit veterans, not harm women
C. Marshall dissent: he thinks that here, the disparate impact is so
disproportionate that intent can be inferred
1) wiseman thinks: intent in this situation is problematic, bc they didn't
chose the policy to discrim against women. he thinks maybe just
unconscious bias and maybe should just make the govnt justify: bc this
has such a DI on basis of sex and should get some heightened scrut
2) marshall says: under arlington heights, a discriminatory purpose can be
inferred by looking at the "degree, inevitability, and foreseeability of
any disproportionate impact as well as the alternatives reasonably
available"
a) thinks this "overwhelming impact" was "inevitable and
forseeable"
b) "although neutral in form, the statute is anything but neutral in
application
C. Critiques of Abstract Equality and the Emergence of a Jurisprudence of Difference
1. Formal Equality: equal treatment before the law regardless of sex
A. probs: some of the most harmful gender discrimination is upheld bc the laws are
gender neutral (guelding and feeney)
B. Ohr v. Ohr: ct invalidated an alabama law that allowed women but not men to recieve
alimony in the case of divorce.
A. ct invalidated bc said law was based on stereotype- women dependant
B. this case plus the no fault divorce lead to "feminization of poverty"
2 Jurisprudence of Difference: functional equality: men and women are different. they are
they are not similiarly situated, so there is no EP problem when treated differently
3. Calif Fed. Savings and Loan Assn v. Guerra:
A. issue: california statute protecting women's jobs when they go out on maternity leave
1) statute implicitly grants a right of reinstatement to employees who must leave
work due to pregnancy, childbirth, or related medical conditions
B. ACLU's amici brief: they are all for formal/abstract rights:
1) says it is protectionist legislation: Bradwell (no women admitted to the bar)
rationale: perpetuates stereotypes of women
2) if for formal equality- maybe the best solution is to extend the statute to say
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4.
5.
6.
7.
"parental" leave instead of "maternity leave
a) if you like the "difference" view- you could compromise here and
it be formal, but still still ok. (bc generally, formal equality tends
to facilitate social inequality, but this would be a good way to move
forward)
C. Coalition of Reproductive Equality Briefs: adhere to the "differences" view:
1) men and women are not similarily situated, men aren't forced to make the same
choices women are, therefore to treat diff- no ep violation
2) coalition thinks this statute is narrowly tailored enough to apply only to
females and be ok
Affirmative Action in the Workplace: male and female applicant- equally qualified- you
prefer the woman: constitutional?
A. assuming it is a govnt program, it will prob get IS
1) but will likely survive, bc after VMI these types of benign classif may be
upheld bc they may not have to meet "exceedingly persuasive": don't req
the high level of justification from the govnt.
B. race: SS: Aderand
C. anamoly: AA for gender more likely to survive than AA for race even if apply strict
IS to gender and strict SS to race
Sex Segregation in Schools:
A. gets IS: const if govnt can meet the "substantially related" test
B. ex: all girls elementary school:
1) interest: giving girls the best education possible
C. Rhen says: how are cts able to make all these determinations about what is
substantially related and what is a sufficient interest?
1) he thinks this is way less objective than SS or RB
D. IS is like a balancing test: cts have to way the interests- judgment call
1) Wiseman thinks this seems more legislative than judicial
Catherine MacKinnon: Towards a Feminist Theory of the State: all current jurisprudence
is flawed:
A. problem with the sameness/ formal equality approach:
1) the law in its neutrality takes a male point of view: so saying as long as women
are like men, they will enjoy the rights and privileges of men
B. prob with difference analysis:
1) if women are treated differently than men, the law is still that the man is the
measure of all things to which women are compared
C. gender bias is built into the law as it is now
D. maybe this is a reason why the formal approach , but that is "rich and responsive" is
good (parental leave)
1) she wants govnt to be proactive- but maybe this is a good way to do it while
still adhering to formal equality
Bray v. Alexandria Women's Health Clinic (1993, Scalia)
A. ct held that people blocking access to abortion clinics were not engaged in a form of
gender discrimination in violation of federal civil rights statutes:
B. Scalia used Guelding reasoning (even though guelding had been overruled by PDA)
1) scalia said two categories:
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a. those protesting abortions
b. those recieving abortions
2) therefore, women were in both groups.
a. seems messed up, though, bc the only ones having abortions were
women
b. categorization of classification is importatn
C. said women seeking abortions were not a protected class
1) related issue: but is abortion a fundamental right?
8. Critical Feminist View: EPC messed up bc only applies to state action
A. arguments after Morrison
1) state protects men from violence bc almost all violence against men occurs
in public-- state law protects
2) but by failing to act in any way- men are protected
3) and by failing to make a fed gender/women violence statute- the state is not
protecting women. bc most violence against women occurs in home- not
in public -- and state laws notoriously aren't good about domestic violence
a. rationale that this type of domestic stuff should be left to the state
to regulate- family matters-b. but critical fems argue that this is harming women
Chemenirsky's classifications:
Two ways to prove gender classification:
1. facial
1) craig v. boren
2) vmi
2. facially neutral gender law
1) feeney
When is it Discrimination:
1. cases that turn on classifications:
1) guelding
2) bray
Gender classifications benefiting women:
1. stereotypes: gender classifications based on stereotypes : generally not allowed
1) Ohr v Ohr
3) Caban v. Mohammed
a. Paraham upheld: distinguishable bc the classification is bt types of
fathers
4) miss univ for women v. hogan
5) cases where stereotypes were upheld
a. michael m
b. rostker v. goldberg
c. these cases seemed to have turned on the "real differences"
2. remedial: gender classifications benefiting women designed to remedy past discrim
and differences in opportunities are generally upheld
a. Califano v. Webster
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3. "real / biological differences": gender classifications benefiting women can be based
on biological differences between men and women
1) Nyguen v. INS
Section 3: What Level of Scrutiny for Other "Suspicious" Classifications:
A. Wealth:
1. wealth based classifications are not suspect. they get the lowest level of scrut
2. MLB v. SLJ: (Ginsburg, 1996)
A. this is one of those mixture EP/DP cases
B. DP issue: essential fairness of the state ordered proceedings
1) but: due process does not require the state to provide an appeal
C. EP issue: ct looked at the "character and intensity of the individual interest
at stake on one hand, and the State's justification for its exaction on the
other hand"
1) stakes of P: loss of her children if barred from appealing bc of lack of money
to appeal
2) stakes for state: pecuniary interest in not paying for appeals
D. so the P's interest won out and ct ruled that the state could not constitutionally apply
the fee requirement to MLB
3. these mixture cases:
A. EP cases always involve line drawing
1) and if the line is just wealth- the line/classification gets RB
B. but: if there is a permissible legislative classification but a fundamental interest is
implicated by falling on one side of the line, the level of scrutiny will get cranked up
C. in these cases- need to ask: is the state's reason for drawing the line in the first place
sufficient to outweigh the fundamental interest implicated by falling on the wrong
side of the line?
4. question: bc there is no dp right to appeal- ct analyzes under ep. but if losing children is a
fundamental interest- then why couldn't they still analyze under dp and not even look at ep??
B. Physical or Mental Disability
1. disability is not suspect class: gets RB review:
2. City of Cleburne v. Cleburne Living Center: (White, 1985):
A. ct held that a city ordinance that required a special permit for the operation of a group
home for the mentally disabled was unconstitutional
B. ct held law failed RB test
C. reasons ct rejected IS for disability:
1) difficult to define class: some fine almost fine, others severe problems
a. slippery slope
2) leg dealing with issue: even though historical discrimination, the leg is now
taking steps to correct it
3) disabled now have political power: again, the legislature is responding to the
issue- so don't need heightened scrut
a. but arg: if this is the case, we don't need IS or SS for anything, bc leg
has been dealing with race, sex, etc
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D. ct did not consider the facial challenge- they considered the rule "as applied"
1) why didn't they consider facial?
a. maybe bc facially it met RB???????????
2) the state's reasons were pretextual- did not meet RB
E. but this is not railway express RB: this is some kind of cranked up RB
1) this court looked for a RB in fact. Cts usually don't do this with RB
F. rule from cleburne?: a facial classification as applied must have RB in fact: RB with
teeth
G. Stevens concurrence: still thinks that classify all as RB. he concurrs with the
judgment bc classification on mental disability is not presumptively irrational
H. Marshall dissent: he would have struck down the statute on its face
1) bc: there is nothing in this case that will prevent the city from denying a
permit to the next retarded home
2) as long as they can come up with a RB in fact, they are not precluded from
denying special permit
3) mad bc this changes nothing
C. Sexual Orientation:
1. Heightened Scrutiny? (still unclear)
A. similarities bt discrim on basis of sexual orientation and other discrim
1. long history of discrim
2. laws based on stereotypes and prejudices and not "real differences"
3. research that sexual orientation is immutable, and not by choice
B. almost all of the app cts have used RB review for discrim based on sexual orientation
1. Exception: Watkins v. United States Army:
a) ct held army's policy of excluding gays violated ep SS
b) status v. conduct arguments:
1) if we classify as to status: that may raise more eyebrows
2) but: if we classify as to conduct- ok - we do it all the time : criminals
3) but if we assume homosexual conduct is criminal then is it ok to use
status as a proxy for conduct?
a. should the govnt be allowed to presume conduct on basis of
status
2. Rational Basis:
A. Romer v. Evans: (Kennedy, 1996)
1. issue: colorado amendment 2 repealed all state and local laws that prohibited discrim
against gays, lesbians, and bisexuals and prevented future laws to protect these people.
this amendment passed by popular vote
2. sup ct held that amendment 2 impermissibly discrim on the basis of sexual orientation
3. this failed RB bc:
a) it precluded people from suing if they were arbitrarily or irrationally fired:
won't even let them in the court house door
b) there is no rational basis for denying them access to the courts
4. establishes principle that: animus against homosexuals, even when purported as a
"moral" basis for a law, is insuff to meet RB test
5. Scalia Dissent:
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a) greater includes the lesser arg:
1) state can prohibit homosexual conduct: Bowers v. Hardwick
2) so: permissible for state to pass laws disfavoring the conduct
3) therefore: state can pass laws preventing the state from bestowing
special protections for homosexual conduct
b) basically args that if state can reg conduct- it can reg status too
c) scalia says- not animus, but "moral disapproval"- which is permissible
d) scalia says the amendment should be read narrowly- it really only precludes
"special rights"
1) wiseman agrees with this narrow reading
6. this case raises the question of what level of deference we should give to laws enacted
by popular referendum-- more or less?
a) adoption of laws by referendum- lacks any deliberation
1) direct democracy- good
2) fear of tyranny of the majority- bad
3. Sex = Sexual Orientation Discrimination?
A. Baehr v. Levin (1993, sup ct of hawaii)
1. ct cranked up the scrutiny under the hawaii const.
2. discrim based upon sex: loving analogy: women can't marry another woman. like
white can't marry black was racial discrimination
a) arg that it turns on the classification of one of the partners
3. hawaii legislature later moots this
Chapter 5: Protecting Fundamental Rights
Section 1: Should Courts Ever Enforce Unenumerated Rights?
A. question: what unenumerated rights are constitutionally protected and which are not- and
on what basis are they or are they not protected?
1. 9th amendment as a textual basis for enforcement of unenumerated rights?
a) "rights retained by the people"
1) but in 1791 or now?
2. strong natural law basis
B. The Slaughter House Cases (1873)
1. claim that the PIC of 14th was meant to apply the Bill of Rights to the States
2. article 4, section 2 PIC: prevents a state from denying citizens of other states the
privileges and immunities it accords to its own citizens
3. PIC of 14th: "No state shall make or enforce any law which shall abridge the
privileges or immunities of citizens of the United States"
4. ct limits PIC of 14th to apply only to the privileges and immunities of national
citizenship
a) bc if they interpret it too broadly, feds could legislate about things that are
state's job to legislate about
5. PIC of 14th has been rendered a nullity. because after slaughterhouse- it only applies
to rights that existed before it's enactment
C. after Slaughterhouse- PIC of 14th dead, so attention shifted to the DPC of 14th
1. incorporation doctrine: specific (but only some) provisions of the 1st 8 amendments
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get incorporated through DPC to have effect on the states
D. Palko v. Connecticut: (1937, Cardozo)
1. ct held that the double jeopardy clause in the 5th amendment does not apply to
states. feds can't do double jeopardy, but states can
2. this protection does not extend to state criminal defendants bc:
a. it is not "implicit in the scheme of ordered liberty" - andb. "justice can still be done"
3. justice can still be done without the double jeopardy clause
4. rights that get applied to the states through DPC of 14th are those that are "implicit
in the scheme of ordered liberty"
4. DPC of 14th does not draw all of the rights of the federal bill of rights under its
protection
5. wiseman thinks: that bc this and some of the amendments don't specify as to who
makes the laws, they can be applied to the states anyway and avoid the incorporation
problem. bc some say "congress shall make no laws" and other bill of rights don't
specify
E. Adamson v. California (1947, Reed)
1. ct held: state prosecutor can point out that a crim d didn't testify and dp not offended.
even though feds can't do it under 5th amendment
2. DP arg:
a. ct said that d can have a fair trial without granting to the defendant the right
not to testify against one's self
1) justification: civil law countries don't have this rule
b. so does not "violate the concept of ordered liberty" and "justice can still be
done"
3. PIC arg: (Ps got nowhere with this)
a. ct said: privilege against self-incrimination is not a privilege of national
citizenship
4. Frankfurter Concurrence:
a. DPC is not a summary of the bill of rights
b. the question is not: whether a substantive provision of the bill of rights has
been violated
c. the question is: whether due process has been violated
d. this would deprive the states the opportunities for reform in their legal process
designed for extending the area of freedom
5. Black Dissent:
a. thinks DPC of 14th incorporates all of substantive provisions of the Bill of
Rights to the states
1) prob with this view: is the 5th DPC incorporated against the states
through the 14th DPC--- this is a textual problem with black's arg
6. Murphy Dissent:
a. goes further than black as to the scope of DPC
1) DPC of 14th incorporates substantive provisions of 1st 8 amendments
and can go even broader to include unenumerated rights
F. Total v. Selective Incorporation:
1. total incorporationists: believed that all of the Bill of Rights should be deemed to be
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included in the dpc of 14th amendment
a. Black, Douglas, Murphy
2. selective incorporationists: believed that only some of the bill of rights were
sufficiently fundamental to apply to state and local govnt
a. Cardozo, Frankfurter
3. debate over history/ original intent of framers of 14th
a. total: believed framers intended to apply
b. selective: believed framers did not intend it to apply
4. federalisim
a. total: federalisim is not a sufficient reason for tolerating violations of
fundamental liberties
b. selective: desirability of preserving state and local governing autonomy by
freeing them from the application of the bill of rights
1) frankfurter- states capable of advancing individual rights
5. approproate judicial role:
a. total: selective incorporation: judges too much discretion in determining
which rights are fundamental
b. selective: total would make less room for democracy
6. Current Doctrine of Incorporation: Selective Incorporation Doctrine
a. can incorporate some things against the state. but for the most part, now,
the rights in the bill of rights have been incorporated to the states
1) palko and admason have been overruled
G. How you recognize the right determines whether it is applicable against the states/ whether
you incorporate it
1. early model: if it is "implicit in the concept of ordered liberty"
2. shifted to: "fundamental to the American scheme of justice"
3. ex: freedom of religion
a. is it because dp protects against the states and incorporates the text of the
first 8 amendments, or
b. is it because the dpc protects just regular fundamental rights, and freedom of
religion is a fundamental right (frankfurter)
H. Skinner v. Oklahoma (Douglas, 1942)
1. issue: oklahoma statute required surgical sterilization for individuals who have been
convicted three or more times for crimes of "moral turpitude"
a. blue collar thieves stealing money: crime of moral turpitude
b. white collar embezzler stealing money: not a crime of moral turpitude
2. this is a case in which equal protection is used where the government discriminates
among people as to the exercise of a fundamental right
3. oklahoma is permitted to distinguish between thieves and embezzlers because thieves
might have violent tendencies: therefore, the state can impose different penalties
a. this is a rational distinction
4. and we know that sterilization is within the police powers
5. however, EP is violated bc:
a. even though the line is rational, the consequence of falling on one side of
the line and not the other implicates a fundamental right: right to have
children
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6. the court appeared to use SS here. but it is not totally clear. so in these cases where
ep is used bc of a fundamental right- it will all turn on what level of review/scrut the
ct applies
a. RB: factual basis for the legislation presumed: ct will presume that stealing
is inhereited
b. higher form: shifts burden to govnt to prove factual basis for legislation
H. Buck v. Bell: (1927, Holmes)
1. Va's statute of forced sterilization of mentally retarted
2. args by P:
a. EP arg: statute was under inclusive as to violate ep bc only applied to
institutionalized persons
1) ct rejected- bc at that time, ep was the last resort of constitutional
args and really no good
b. DP arg: intruded into her bodily integrity in violation of substantive DP
1) ct said: there is a sufficient state interest in promoting the public
welfare to justify the statute against substantive dp attack
a) like forced vaccinations- public health interest
2) ct also said: there was some procedural dp involved, so there was no
violation of substantive dp
3. this is a fundamental right: so why isn't heightened scrutiny implicated? because it
is a rational distinction (see cleburne- applied RB but it failed RB)??????????
a. but why didn't ct apply SS bc fundamental right????????????????
I. Unenforced Textual Rights: The Second Amendment:
1. as long as arms are bearable, do we have the right to bear nukes?
2. does a federal law against bearing nukes violate 2nd amendment?
3. is any regulation of this right an infringement?
4. shouldn't this be incorporated as to the states?: is it "fundamental" to american
principle of justice?
5. so far, this right has not been incorporated as to the states: so theoretically, states
could pass a law banning guns
Section 2: Protecting Economic Liberty and Property:
B. The Rise and Decline of Liberty of Contract and Substantive Due Process Review
1. Lochner v New York (1905, Peckham)
A. Economic Substantive DP: liberty of K
B. ct declared unconstitutional a ny law that set the maximum hours bakers could work
C. NY said the law was within their police powers- to protect the baker's health
D. ct held:
1. liberty right interfered with: freedom of K
2. and it was not rational to treat bakers this way
E. case is representative of the notion of substantive DP:
1. DPC protects against govnt interference with substantive DP
2. no amount of procedural DP allows govnt to interfere with subst DP
2. since new deal- this SS/ Lochner approach to social and economic legislation almost
completely abandoned
A. very low scrut now, any concievable basis ct can think of: Williams v. Lee Optical
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B. but, substantive DP lives on at the state level
C. The Takings Clause:
1. nor shall
A. private property
B. be taken
C. for public use
1) a limitation on the govnt's authority to take
2) construed really broadly and easily satisfied-- like police powers
3) public use = police powers = substantive due process
a. ends legitimate
b. means rationally related
c. therefore, high deference to legislative judgment
d. the govnt is not acting arbitrarily
D. without just compensation
2. Pennsylvania Coal v. Mahon (1922, Holmes):
A. support rights under penn law were a seperate property right
B. kohler act: required the coal company to leave some coal in place under the buildings
on the surface
C. Holmes: a taking could exist if the government "went too far" in regulating the uses
of private property, even though the government did not physically invade or take
title to the property
D. this case set the analysis for regulatory takings
3. Penn Central v. NY: (1978, Brennen)
A. basic premise: when a taking is alleged, conduct an ad hoc factual inquiry/ balancing
test
1) wiseman likes to think of as a multifactor test instead of a balancing test
B. have to balance the state's interests v. property owner's intersts
1) state's interests: how much value to the state
a. also look at the character of the government action:
1. if it is a perm physical invasion (loretto)- per se takings
2) property owner's interests:
a. investment backed expectation
b. economic impact on claimant
c. is it substantial individualized harm?
C. the Ps are not contesting "public use"
1) basically saying that the government has not acted arbitrarily, and there was
not a dp violation
D. so next question: is there a takings?
1) ct says: no conceptual severence- you can't treat air rights seperately
2) threshhold question: what is the appropriate denominator? outcome depends
how you classify!
E. so-- have to determine how to classify the property interest
1) wiseman thinks should look at state law- and if alienable- treat it as sep prop
interest
2) so under wiseman:
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4.
5.
6.
7.
8.
9.
a. penn central comes out diff: ny law recog air rights as transferable,
therefore, 100%/100% -- takings
b. keystone the same:
1. ct held: under penn law, support rights alienable. but ct says
no conceptual severence/ not severable- so no takings
2. wiseman: support rights alienable- but didn't take all- coal co
still got to take coal, just not all of it: same result- no takings
F. keystone, penn central, lake tahoe: no conceptual severence
Nollan:
A. issue: govnt imposed condition on bld permit to let people walk laterally across
the beach
B. ct said: takings bc the essential nexus is not met between the condition and the
govnt goals
1. condition: lateral easement
2. goal: people see beach from street
C. wiseman says:
1. ct should have decided this as a dp case to justify takings
a. the govnt is acting arbitrirarly
b. easement is a "permanent physical invasion"
Dollan:
A. ct said the exaction/permit had to meet a "rough proportionality test"
Wiseman takings analysis:
1. end: depriving you of dp by regulating arbitrirarly
2. means: regulation goes too far: takings
3. has an essential property right been destroyed?
1. ex: right to exclude, use, or dispose?
2. if so- takings
4. penn central balancing test
1. where assess the 95% loss
Lucas:
A. 100% economic use gone: takings
B. ct also said that if the state could have identified any background principles of
nuisance or property law to justify- then maybe avoid it being a takings
C. so now, post lucas, true nuisance exception: the government can regulate all the
value out of the property
Eastern Enterprises
Phillips v. Washington Legal Foundation (1998, Rhenquist)
A. ct held that the money in the atty accounts is the private property of the client
for takings purposes, and thus the interest is owned by the client bc of the
interest follows principle rule
B. ct says no background principle of property law justifying creating an exception
in this case: principle is client's, interest follows principle, interest is client's prop
for takings purposes
C. prop is not defined by it's value
1. does not matter that the money by itself would not generate any interest
alone. it is only bc it is in that big account
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2. loretto- that increased the value- still a takings
D. this prop is takable: what is remedy?
1. JC.
2. JC measured by what takee has lost, not what takor has gained
3. here: takee has lost nothing, bc they wouldn't have the interest anyway
E. issue of remedies:
1. state can always choose the remedy
a. they can stop: injunction
b. or they can pay JC
F. recent case: Brown:
1. it is a takings, but it is a compensated takings (no JC) so no violation of the
takings clause
a. this case makes JC an element of liability, not remedy for takings
2. wise says: they didn't have to say no takings- govnt can still chose to pay JC
and still consider a takings bc the JC is nothing
3. prob with this case: seems to apply only to dollar amounts. otherwise, the
right to exclude, right to dispose, would be worth nothing
10. Palazzolo v. Rhode Island: (Kennedy, 2001)
A. holding: takings claim is not defeated because the owner bought the property postregulation
1. notice does not preclude a takings claim
B. can't have two background principles of state law: pre reg and post reg
1. but in reality, we do this all the time
11. Lake Tahoe: (Stevens, 2002)
A. issue: 32 month moratorium
B. ct answers the denominator problem: no temporal severence either. if FSA- then
can't sever the time periods
1. the denominator is the whole parcel: all four dimensions
C. with a moratorium: you know your investment backed expectations will be returned
to you
D. dissent arg: but this is the exact same action as if state passed reg, and then 32
months later it repealed it. and that would be a takings
Section 3: Equal Protection and "Fundamental Interests:"
A. Voting:
1. there is no fundamental right to vote, but there is a fundamental right to have your vote count
the same as anyone else's
2. hypo: giving veterans 2 votes:
A. is there a RB? yes. this is a justifiable distinction- line bt veterans and non vetswe do it all the time
B. but bc the consequence of falling on one side of the line or the other implicates a
fundamental interest- level of scrut gets cranked up
3. Reynolds v. Sims (1964, Warren)
A. issue: whether the malapportionment of the alabama districts constitute an ep
violation.: rural v. urban voters (rural counted more)
B. there is a RB for not redistricting-
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C. but the scrutiny gets cranked up bc the fundamental right to have your vote counted
equally is implicated
1. sufferage can be denied by dilution
2. Ely: representation reinforcement is a constitutional value
D. the ct applies an effects test, bc there is no intent by alabama to discrim against urban
voters
1. wash v davis is not implicated, bc when a fundamental right is implicated,
intent is not needed
2. we don't allow leg "in spite of" and not "bc of" analysis to apply to EP when
a fundamental right is implicated
a. we just have to be satisified with the other EP cases that are DI but
no intent- and still ok, even though these hybrids with no intent aren't
4. Bush v. Gore (2000):
A. there is no right to vote for prez: but: once the state decides to elect by election-then that right is fundamental
B. ep problem: the standard by which to determine the intent of the voter: some
counties allow dimpled chads and others don't
1. one county a dimpled vote counts: intent to vote
2. other county dimpled vote does not count: no intent to vote for that candidate
C. the EP prob is the abstract standard
D. the DP prob: implication of fundamental right
E. way to solve this ep violation
1. adopt a standard and apply it to all
B. Basic Rights for the Least Advantaged:
1. San Antonio Independent School District v. Rodriguez (Powell, 1973)
A. 2 holdings
1. wealth based classifications are not suspect for EP purposes: no SS
2. education is not a fundamental right for DP purposes
B. EP:
1. the "class" is too amorphous: "class"- ill defined
2. ep does not require totally equal advantage
C. fundamental interest:
1. not a fundamental interest, so scrut does not get cranked up
2. not fundamental interest, even though it is one of the "impt functions
of state government" (Brown v Board)
3. right to education is not anywhere explicitly or implicitly guaranteed by
the constitution
4. ct does not allow Ps to bootstrap by using "effective speech" or "informed
voting"
D. the court here characterizes as "individual rights"
1. but wiseman says: if more of a public minded way of thinking- maybe there
is a public good in having an informed electorate
E. here- this scheme meets RB scrutiny
F. is there any argument that bc every state constitution recognizes a constitutional right
an education that we should raise up to SS
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1. but: if we apply SS here- then we will go down slippery slope that
everything is a federal constitutional right
G. reconcile with brown:
1. here- there are inequalities above the baseline
2. brown suspect/ here not suspect
2. Phyler v. Doe: (1982, Brennen)
A. ct struck down texas statute which withheld fed funds to educate children of illegal
immigrants bc failed RB test
B. failed RB
1. children have no control over their status
2. state has no legitimate interest in denying children education on the basis of a
status they can't control
a. seems kinda crazy, bc texas did have a legitimate interest- lack of
funding-- texas probably not acting irrationally
C. this is not a DP case- bc education is not a fundamental interest
D. and it is rational to draw the line bt immigrants and citizens
1. but failed RB bc no "legitimate interest"
E. this is totally RB with teeth (Cleburne)
3. Edgewood Independent School Dist v. Kirby (sup ct of tex: 1989)
A. same issue as san antonio, except under the state constitution
B. the word "efficient" is in the state const, so ct does a cost-benefit analysis and did not
think the disparity was efficient education
1. book says this is utilitarian reasoning
2. wise just thinks they have to bc of the word "efficient"
C. The Right to Travel:
1. the right to travel is a fundamental right, getting SS.
A. it is not explicit, but is kind of drawn out of the PIC
2. Saenz v. Roe (1999, Stevens)
A. issue: california statute which says that you have to live in calif for one year bf you
can receive calif price welfare benefits. (you would get the amount of benefits from
your old state)
B. fundamental right to travel implicated : PIC:
1. the right to travel: "the right of the newly arrived citizens to the same
privileges and immunities enjoyed by other citizens of the same state"
C. ct here does not accept calif's fiscal justifications
1. usually fiscal justifications ok under RB, but not for SS
D. portability of benefit
1. this is distinguishable bt divorce, hunting liscence, and out of state tuition
because you take those with you
2. and is welfare not a portable benefit bc you consume it in calif
E. Rhenquist Dissent:
1. your right to travel is not implicated, because once you arrive in the state and
stay- you have stopped traveling
F. Thomas Dissent:
1. historical/ originalist view:
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2. cites old case where no one but NJ fishers could fish in NJ
a. said that the PIC did not guarantee equal access for all public benefits
b. PIC only encompassed fundamental rights that belong to all citz of US
Section 4: Fundamental Privacy Rights:
A. Early cases, Meyer and Pierce, stand for the idea that the Constitution protects certain zones
of privacy from government control.
A. Contraception and Marriage:
1. Poe v. Ullman (1961, Frankfurter)
A. issue- conn. anti-contraception statute
B. ct- ducked the issue- said case not ripe
C. Harlan, Dissent: the liberty protected by the DPC has a substantive component
1) if DP was merely procedural, one could be deprived of life, liberty, and
property as long it was done by a fair procedure
2) subst DP: guards against tyranny
3) the legislative process is usually deemed to meet procedural DP
a) so if there were no subst component- you could never have a DP claim
against state for its laws
4) feels that there are lines that the legislature simply may not cross!
5) Harlan says that the substantive DP is not just the 1st 8 amendments:- Harlan's
incorporation doctrine: it may include 1st 8, but is not limited to
a) it is rights "which are fundamental, which belong to the citizens of all
free governments"
b) "due process has not been reduced to any formula"
c) it is "the balance struck between liberty and organized society"
D. Black's objection to Harlan's incorporation doctrine:
1) (rigid textualist): worries that allowing judges to decide what "liberty" means
substantively without any textual basis is basically just using their policy
preferences and pretending they are constititutional
2) get strait on the recursive incorporation problem: the fact that there is DPC in
5th means that it is substantively different from the rights in the other 8
amendments-- recursive incorporation??????????????
E. DP balancing test: the more impt the liberty (subst) of what you are being deprived of
the more procedural DP you should get.
1) JL and JR case:
a. it was state action to commit a child to a mental institution
b. the child does have a dp interest in not being committed
c. so there is procedural dp due to the child: but not much
1. the intrest wasn't that important: so as long as the parent and
doctor recommended it- that was enough
F. Harlan's dissent: substantive sense of DP: legislation must be rationally related to a
a legitimate purpose
1) liberty is a "rational continueium which, broadly speaking, includes a freedom
from all substantial arbitrary impositions and purposeless restraints, and which
also recognizes, what a reasonable and sensitive judgment must, that certain
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interests require particularly careful scrutiny of the state need asserted to
justify their abridgement
2) so: SDP protects those liberties that are fundamental
a. picking your nose is not a fundamental right
b. so it will get the lowest level of review
2. Griswold v. Connecticut: (Douglass, 1965)
A. ct held the anti-contraception statute impinges on the constitutionally protected right
right of privacy
B. privacy is not mentioned anywhere in the const: it is a penumbra
1) "specific guarantees in the Bill of Rights have penumbras, formed by
emanations from those guarantees that help give them life and substance.
Various guarantees create zones of privacy"
2) argument that there is a theme of privacy running through the constitution
3) 9th amendment lends support:
a. contemplates that there are other rights that are not enumerated
C. ct says that this statute violates the zone of privacy because to enforce, police would
have to have access to the marital bedroom, which is a threshold the law may not
cross
D. Douglass does not think that this right was protected under the liberty of the DPC of
the 14th--- but really, his pneumbra approach is a DP approach bc of incorporation
of bill of rights and their penumbras through 14th
D. the ct gives some form of heightened scrut, bc a fundamental interest is implicated
E. Goldberg Concurrence: focuses on 9th instead of DP
1) he does not worry about zones and pneumbras, he says that under the 9th
amendment, privacy is fundamental right which is protected
a. says that privacy is one of the rights "rooted in the traditions of our
people"-- so it meets 9th amendment test
F. Why might the 9th amendment not be a good substitute for liberty under 14th to
guarantee fundamental liberties? 9th: "rights retained by the people"
1) history as a constraint- rights retained in 1791-- textual limit
2) but if it is the rights retained by the people now, where is the limit
** see p. 491, 492
G. Harlan's Concurrence: SDP of 14th protects not only 1-8, but those rights that are
fundamental
1) privacy is a fundamental right
H. White: Concurrence: thinks that the legislation is arbitrary, and is therefore a
depravation of liberty without DP under 14th: no RB
1) Harlan's distinction: it is a violation of DP under 14th, but for diff reason-because privacy is a fundamental right
I. Black's Dissent: privacy is nowhere in the const
1) offers no judicial restraint on how cts make decisions
2) Harlan says that there are so may vague terms in the const, that tying judges
to the terms in the text won't constrain judges either
3. Eisenstadt v. Baird (1972): issue: ban of sale of contraceptives to non-married people
A. ct held that now the state can't interfere with the non-marital privacy either.
1) ct said they applied an EP, RB analysis
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4. Carey v. Population Services (1977, Brennen plurality)
A. banning the sale of contraceptives to minors interfered with the privacy of minors
6. Bowers v. Hardwick: where ct draws the line
B. Abortion
1. Roe v. Wade:
A. there is a constitutional right to an abortion, falling within the right to privacy
B. ct here did not find privacy as protected by the penumbras of the bill of rights, but
they did find it as part of the liberty protected under the dpc of 14th
1) this may have been the ct's attempt to be kind of a textualist
2) wise thinks- this might case might have been better decided on epc going to
gender discrim
C. SS applied to abortion legislation, bc abortion is a fundamental right: balancing test
1) where "fundamental rights are involved, regulation limiting these rights may be
justified only by a compelling state interest and the regulation must be narrowly
drawn to express only legitimate state interests at stake"
D. "Person" in the constitution was not meant to include fetuses-E. Trimester system:
1) 1st trimester: state's interest in reg abortion: never compelling
2) the state's interest can be "compelling" after the 1st trimester bc that is when
abortions become more dangerous to mothers than childbirth
a. the compelling interest is maternal health
3) 2nd trimester: govnt can't outlaw, but can regulate abortions in a way that it is
reasonably related to maternal health
a. the compelling interest is maternal healgh
4) 3rd trimester: abortions can be prohibited unless it is needed to protect the life
of the mother
a. the state's compelling interest is in potential life/ viability
5) but this seems to suggest that constitutional rights are contingent upon the
advancements of science, in that the state's interests will become compelling
as viability gets earlier
6) these tests are essentially balancing tests
F. Rhenquist Dissent:
1) abortion is not a right to privacy: he draws the boundaries for unenumerated
rights much closer
2) says this trimester framework is akin to legislation and is not appropriate for
the judiciary
2. Katherine McKinnon: says abortion laws are paternalistic
A. women are competent to make a life or death decision; regulations against abortion
suggest that women are incompetent to make this decision
1) wise thinks this is a "refreshing" way to analyze
2) 2 extremes: protecting potential life v. woman's choice
3. Planned Parenthood v. Casey: (plurality: O'Connor, Kennedy, and Souter)
A. ct held 5-4 that states cannot prohibit abortions prior to viability
B. ct overruled the trimester framework in Roe and use of SS
1) ct instead said that the test for evaluating the constitutionality of a state reg of
abortion is whether it places an "undue burden" on access to abortion
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C.
C.
D.
E.
E.
F.
a. the undue burden standard is the "appropriate means of reconciling the
State's interest with the woman's constitutionally protected liberty . . . a
finding of an undue burden is shorthand for the conclusion that a state
reg has the purpose or effect of placing a substantial obstacle in the
path of a woman seeking an abortion of a nonviable fetus"
b. but however: "to promote the state's profound interest in potential life,
throughout pregnancy the state may take measures to ensure that this
interest will not be invalidated as long as their purpose is to persuade
the woman to choose childbirth over abortion"
1. and these measures can't be an undue burden
basically- now a state can regulate from the beginning of pregnancy-- diff from roe
1. casey ct says that the interest becomes compelling at the point of viability, so
states don't have to meet SS prior to viability??????????--- so they can regulate
just not prohibit prior to viability?
a. Roe: no state interference during 1st trimester
b. Casey: state has a legitimate interest at the beginning of the preg
2. so the right to terminate pregnancy at the beginning of pregnancy is not
fundamental, because if it were- it would get SS prior to viability???
a. right to abortion is sui generis: it is different- not like any other right
3. casey ct says: because a state has a legitimate interest in protecting potential
life, SS is too high of a standard
4. roe had the 2 compelling interests, and here- now only one??????????
ct here draws from Harlan's dissent in Poe and makes clear that the rights rooted in
SDP of 14th are not just confined to first 8 amendments
ct takes classic liberal view that the government can't make choices for individuals
Scalia dissent: typical originalist view
1. if there were no abortion statutes on the books at time of framing of 14th, then
14th could not have been intended to invalidate them
Casey seems to be lowering the bar on fundamental rights
Stare Decisis issue:
1. it has been said that stari decisis is less important in constitutional cases. want
the ct to overrule roe. so this opinion is trying to create some criteria for
treating precedent with respect (why they don't overrule roe)
2. 4 factors as to how to treat constitutional precedent
a. whether the central rule of the case/precedent has proved unworkable
1) brown and roe, unique in their importance
b. whether the rule's limitation on state power could be removed without
serious inequity to those who have relied upon it or significant damage
to the stability of the society governed by the rule in question.
1) here- women have relied upon Roe
c. whether the law's growth in the intervening years has left Roe's central
rule a doctrinal anachronism discounted by society
d. whether the premises of fact have so far changed in the ensuing time
that the central holding is now irrelevant or unjustified
3. Institutional Integrity:
a. roe and brown show institutional integrity
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b. if we overrule roe- we undermine our institutional integrity/ legitimacy
C. Consensual Sexual Activity
1. Bowers v. Hardwick (White, 1986)
A. ct held: the states have the constitutional authority to criminalize homosexual
soddomy. homosexual soddomy is not a fundamental right
B. this is pretty much an originalist opinion: this right wasn't ever protected, so it is not
protected now
C. ct says this does not follow from other privacy cases
D. Blackmun's dissent: this case is about "the most comprehensive of rights and the
right most valued by civilized men, namely, the right to be left alone"
E. this case will likely be overruled
F. distinction bt gay and abortion
1) The legislature can choose which moral views we should accept but they can't
do that when a fundamental right is implicated
G. how you frame the right is very impt:: is it fundamental?
H. apply 4 stare decisis factors to Bowers
Section 5: The Right to Die:
1. Washington v. Glukesberg (1997, Rhenquist)
A. ct held: there is no fundamental right to physician assisted suicide
B. subst DP test: rights and liberties that are
1) "deeply rooted in this nation's history and tradition and are implicit in the
concept of ordered liberty"
a. the deeply rooted- is narrow
b. implicit- more broad
2) require a "careful description of the asserted fundamental liberty interest"
a. "careful"-- this clause is narrow
1. ex: the right to be left alone would be too broad
C. characterization of the right determines the outcome of the case
1) threshhold question in these cases turns on "careful description"
a. do we take care to describe the right as one that will get const
protection, or
b. do we describe the right as one that won't get const protection?
D. characterization here:
1) the right to physician assisted suicide?
a. probably won't be constitutionally protected
2) the right to die with dignity?
a. this might be "deeply rooted"
E. O'Connor's Concurrence: doctors can still protect dying patients from pain and if that
pain medication hastens death, it is not physician assisted suicide
1) is this a sound distinction??
---2. City of Sacramento v. Lewis (1998, Souter)
A. there is no substantive DP violation when a state agent commits conduct that would
be a tort
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B. prongs of SDP claims:
1) Does the P have a claim that has specific constititutional protection?
a. if yes- then we look at Subst DP
b. if not- we don't look at subst dp??
2) Has subst DP been violated?
a. "we have understood the core concept (of dp) to be protection against
arbitrary action"
3) test for arbitrary action by executive in subst dp (we know leg test is RB)
a. state conduct by the executive branch must "shock the conscience"
to be arbitrary in a constitutional sense
C. "shock the conscience" has to be pretty egregious conduct
1) very fact specific, ad hoc test
D. an earlier case drew the line for state agencies constitutional violation way beyond
torts claim
1) so basically- you can have a tort claim against them- but they will still have
soverign immunity
E. Scalia- wants to prevent the ct from ever recognizing any new rights
F. what was that - that was then and this was now stuff??????????
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