COMMERCE CLAUSE
FRAMERS
“Congress shall have the power to regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes” + Necessary + Proper Clause
LOCHNER
1) Is the activity commerce or manufacture?
2) Is the effect on commerce direct or indirect?
Is the good regulated inherently dangerous?
Is the activity in the stream of interstate commerce?
3) Pretextual analysis – does Congress have a reason to regulate the good, or are you merely trying to regulate local activity?  there must be a purpose
CHAMPION v. AMES: Congress can regulate anything crossing state lines (or, narrowly, anything harmful crossing state lines)
HAMMER v. DAGENHEART: There is nothing inherently harmful about these products; this is just pretextual litigation trying to standardize age of child workers
 Court will not allow pretextual legislation
NEW DEAL
Substantial Effect Test: Congress can regulate activities substantially affecting commerce for any reason in the aggregate. Law will be upheld if Congress could
rationally have believed regulated activity substantially affected interstate commerce.
Note that first in three key cases, SCOTUS shut down recovery measures
Trigger: Substantial effect on interstate commerce in the aggregate
Decisionmaker: Congress is the initial decisionmaker (McClung)
Review: Very deferential rational basis review
BEFORE SWITCH:
SCHECHTER POULTRY: When effects are indirect, they stay within state power. People employed in slaughterhouses locally are NOT employed in interstate
commerce, so cannot regulate CC
CARTER COAL: “Commerce” in constitution is intercourse for purpose of trade  lead up, like production, is not commerce. Relation of employer and employee
is a local relation.
UNITED STATES v. BUTLER: Congress has authority to tax and spend for the general welfare, yes, but not to effectuate one of the enumerated powers, like CC.
Power to tax is not unlimited.
AFTER SWITCH:
NLRB v. JONES – Some actions may be intrastate in character but have such a close/substantial relationship to interstate commerce that Congress has control of
them. It has a “substantial relationship” to interstate commerce that its control is essential or appropriate by way of N&P clause  eliminates distinction between
manufacturer and commerce
UNITED STATES v. DARBY: overrules Hammer, eliminating pretextual inquiry. Court will not question underlying goal, but only whether act is means reasonably
adapted to attainment of a permitted end. So what if the effects end up being the same as police power effects? Congress has this power, and it is complete in itself.
WARREN
WICKARD v. FILBURN: even if defendant’s activity is local and not commerce, if there is a substantial economic effect if action was done in the aggregate on
interstate commerce it can be regulated, irrespective of “direct/indirectness”
Congress can regulate activities that they rationally think substantially affect interstate commerce in the aggregate for any reason
Trigger: substantial effect in the aggregate on interstate commerce
Initial Decisionmaker: Congress (better at deciding)
Judicial Review: Rational Basis
Note Civil Rights Act of 1964 prohibited discrimination in public accommodation places if their operations affect commerce, but government used CC, not 14th
Amendment, to regulate
HEART of ATLANTA v. UNITED STATES: Congress can rationally believe that discrimination in a hotel could substantially affect interstate commerce because it
had access to interstate commerce, advertised in national media, and served out of state customers
KATZENBACH v. MCCLUNG: reduced spending of black Americans because of discrimination has substantial effect on United States economy  where
legislators have a rational basis for finding a chosen regulatory scheme, Courts should defer
NEW
FEDERALISM
Modified “Substantial Effect” test: Congress can regulate activities that they rationally think can substantially affect interstate commerce. (Economic/commercial
activity or anything that crosses state lines)
Trigger: substantial effect in the aggregate, but not intrastate non-commercial activity or traditional state concern unless there is a jxnl hook or a comprehensive
regulatory scheme
Initial Decisionmaker: Congress
Judicial Review: Rational Basis
Economic = voluntary exchange; production (can regulate intrastate voluntary exchange as long as in the aggregate it effects interstate commerce)
Noneconomic = possession; violent crime (if the Court has to “pile inference on inference” to get to a substantial effect, Congress cannot regulate); traditional state
concern
SIBELIUS limit: cannot regulate inactivity or compel purchases.
UNITED STATES v. LOPEZ: Congress can only regulate use of channels of interstate commerce, instrumentalities of interstate commerce, and economic activities
that substantially affect interstate commerce. Gun Law Act has nothing to do with commerce or the economy and is not part of a larger comprehensive scheme.
Allowing use of commerce power to regulate non-commercial possession is unconstitutional.
UNITED STATES v. MORRISON: Violence Against Women Act is unconstitutional because violence is not a commercial activity and is non-economic, so can’t be
regulated as having a substantial affect on interstate commerce.
GONZALEZ v. RAICH: Individual use of marijuana cannot be isolated from larger interstate issue of marijuana market  establishing “comprehensive regulatory
scheme” exception
NATIONAL FEDERATION v. SEBELIUS: Congress gave power to regulate commerce, not compel it. Congress cannot dictate conduct of individual because of
prophesized future activity (can’t regulate inactivity) and can’t compel purchases because health insurance and health care consumption are not the same thing
SECTION 5 POWER
FRAMERS
RECONSTRUCTION
ERA
14th Amendment, §5 – “Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.” can
legislate to enforce §1, which grants citizens rights against the state.
State Action Doctrine: 14th Amendment only applies to state action  you cannot regulate private individuals
Trigger: constitutional violation by the STATE. Only government can violate the constitution. Does not address the “state’s neglect” argument (i.e. what if state is
neglecting its duties to protect?)
CIVIL RIGHTS CASES: allowing Congress to regulate private discrimination would supersede state legislatures. You must identify a constitutional violation by the
state before you use your enforcement powers. Gov’ts act (prohibiting racial discrimination in places of public accommodations) is primary and direct, not
corrective. Three propositions established:
1) 13th Amendment does not prohibit most racially discriminatory practices other than involuntary servitude
2) 14th Amendment does not empower Congress to forbid discrimination by private persons
3) 14th Amendment does not of its own force prevent private discrimination, as distinguished from discrimination imposed or supported by the state
WARREN
HARLAN DISSENT: freedom from discrimination by other private citizens is a privilege/immunity, and places of public accommodation are quasi-public
Trigger: Constitutional violation
Decisionmaker: Congress (decides how to address violation). Note Congress is allowed to do a pretextual inquiry on State’s motivations.
Review: Rational basis  court doesn’t want to usurp congressional power
Rule: Court gives deference to Congress’ conclusions
SOUTH CAROLINA v. KATZENBACH: prophylactic legislation is allowed, so when tests are constitutional on their face but applied in a discriminatory manner
based on who was taking the test, we can ban them. Note this is the enforcement clause of the 15th Amendment. Congress can sweep more broadly in order to
deter/remedy a constitutional violation as long as there is a reasonable relationship between excess breadth and need to combat unconstitutional conduct.
KATZENBACH v. MORGAN: CIVIL RIGHTS CASES said there must be a constitutional violation, but Congress decides that. Congress can ask different
questions than Court, so even if SCOTUS would have upheld law on rational basis, Court must also apply rational basis to Congress’ decision that it is
unconstitutional. Congress doesn’t have to follow Court’s test, but must follow its meaning
NEW FEDERALISM
Note that if SCOTUS was reviewing law, if it was facially challenged in court, they would ask: is this law rationally relate to a legitimate state interest?
Test: Congruence and proportionality; is this law congruent and proportional to the prohibitions of the Constitution as the Court applies it or what the Court
would strike down? Congressional action under §5 must be congruent and proportional.
CITY OF BOERNE v. FLORES: Congress can enforce but cannot alter meaning of 14th Amendment  it is remedial, rather then substantive. Congress cannot
use §5 to expand rights. There must be “congruence” and “proportionality” between the injury to be prevented/remedied and the means adopted to that end. Court
essentially now changes the test to a violation only being something the court would invalidate
MORRISON: VAWA giving victims a federal civil cause action is not congruent and proportional because not all states have a record of gender violence  this is a
remedial clause, so you must be remedying a constitutional violation in particular
BAMA v. GARRETT: §5 actions must be based on a pattern of unconstitutional discrimination and is subject by rational basis review.
NEVADA DEP’T OF HUMAN RESOURCES v. HIBBS, 2003: Congress is allowed, under §5, to do more than proscribe unconstitutional power. They can be
prophylactic. FMLA is a response to States continuing to rely on stereotypes in the employment leave context, which cannot justify gender discrimination.
Prevention of this justifies Congress’ §5 actions.
TENNESEE v. LANE, 2004: §5 ADA enforces a variety of constitutional guarantees, infringements of which are subject to more searching review, including DP
rights to access to courts
SHELBY COUNTY v. HOLDER: Voting Rights Act data too old to be congruent and proportional with law requiring us to single out states to evaluate their
voting laws in violation of “equal sovereignty”  overturns VRA section. This is strange because in Morrison, Civil Rights Cases, court explicitly said §4 (15 th
Amendment) was only an enforcement clause and couldn’t uphold country-wide legislation. Here, Roberts is saying the fact that it is singling districts out is the
problem.
Scope of congruence: Congress can go a little beyond what the Constitution prohibits because it is good to have prophylactic legislation (South Carolina)  if there
has been a record of state violations, congress has more leeway
Scope of proportionality: how far Congress can go beyond Constitutional limits depends on the record that Congress has created of States’ constitutional violations
TAXING & SPENDING POWERS
FRAMERS
LOCHNER
Article I, §8 – “Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay Debts and provide for the common
Defense and General Welfare of the United States; but all Duties, Imports and Excises shall be uniform throughout the US.”
Court wants to limit Congress from using powers for pretextual purpose
NEW DEAL
BAILEY v. DREXEL FURNITURE: Congress enacted Child Labor Tax, court overruled, arguing that this tax is not related to the amount of the departure from
law (say, employing 500 kids all year long vs one kid for a day), and is only related to knowing crimes (scienter is usually associated with penalties, not taxes). We
cannot gives such controlling magic to the term “tax  Incidental motives of taxes are fine, but they cannot be a mere penalty
Rule: Congress has the authority to tax and spend for the general welfare – not just to effectuate one of the enumerated powers
SOZINSKY v. US: a tax isn’t a tax because it has a regulatory/burdensome/restrictive effect. No pretextual analysis, though you can use these factors to determine
if it is a tax or a penalty
UNITED STATES v. BUTLER: spending power can be used for the furtherance of general welfare  as long as spending doesn’t violate another Constitutional
provision, Congress can uses its taxing/spending power in any way and is not limited by enumerated powers in the Constitution. But, if it does enter an arena
reserved for the states, as a means to an unconstitutional end, it is unconstitutional.
NEW FEDERALISM
STEWART MACHINE v. DAVIS: All rebates of taxes are some measure of temptation, but that’s not necessarily coercion. Four factors we consider:
 Proceeds of tax are not earmarked for special group
 Unemployment compensation law, not a condition of the credit, has had the approval of the state and couldn’t be a law without it
 Condition isn’t linked to an irrevocable agreement, since state may repeal unemployment law
 Condition is not directed at the attainment of an unlawful end
SOUTH DAKOTA v. DOLE: regulating via spending is constitutional if:
 It is for general welfare
 Condition must be unambiguous
 Must be related to issue at hand (not pretext for something else)  conditions must be directly related to main purpose for which funds were expanded,
for example
 States cannot be forced to violate constitution
 (implied) no coercion
NFIB v. SEBELIUS: modifies DOLE test. Congress can give money and dictate its use (earmark). But not if there is coercion. We must ask if something huge is
being taken away? Court held that the exaction the Act imposes on those without healthcare is a tax, per DREXEL factors. You can tax an omission and use it to
encourage things (like buying houses). Medicaid expansion was coercion, however, because the inducement is more than “relatively mild”. The shift is in kind, not in
degree, and state is not threatening to withhold new funds, but withdraw existing funds.
ANTI-COMMANDEERING – ONLY TRUE TENTH AMENDMENT PROTECTION
NOTES
Tenth Amendment restricts powers of Congress by giving federal government the right to regulate individuals, not the State. Congress is limited in what it can
require/force States to do. However, Congress can get around these limits by threatening to withhold funding; government funding is the lifeblood of many state
activities, so federal government still retains influence.
Note that while anti-commandeering forbids forcing a state official or legislature to enforce/pass a law, a state judiciary can still hear a federal cause of action.
NEW FEDERALISM
Congress can pre-empt by prohibiting laws within their enumerated powers – can’t FORCE but can PROHIBIT.
NEW YORK v. UNITED STATES: Congress cannot require a State to legislate. Grants with conditions (DOLE) or acts that States can choose to let pre-empt
their laws (HODEL) are allowable. However, “take title” provisions are not. It offers no other option than to enforce legislation enacted by Congress. Even States
cannot consent to diminishing their own sovereignty.
PRINTZ v. UNITED STATES: courts cannot force State’s officers to enforce federal actions. Making states use their own resources to enforce the federal
government is unconstitutional.
Note that the Spending Power workaround (granting/withholding funds) does not need a jurisdictional hook like the Commerce Clause does.
STATE’S RIGHTS/ESSENTIAL STATE FUNCTIONS
FRAMERS
NEW FEDERALISM
Tenth Amendment protects essential state functions delegated to the States.
NATIONAL LEAGUE OF CITIES v. USERY: Tenth Amendment affirmatively limits Congressional power. Here, there is a State right – the right to autonomy
in essential State functions, like employee regulation. It is one thing to regulate individual businesses, but another to regulate States.
 Overturned on federalism grounds.
GARCIA v. SAN ANTONIO METROPOLITAN TRANSIT: Overrules NATIONAL LEAGUE. Congress CAN regulate State employees’ minimum wages.
Rules that give State’s immunities based on “traditional” functions is unworkable – why should courts be able to decide? Instead, look at “residuary/inviolable
sovereignty”, like procedural protections or if it violates any constitutional provision. State interests are better protected by procedural safeguards of the federalism
structure than by judicially created limitations on federal power.
DORMANT COMMERCE CLAUSE
FRAMERS
NEW FEDERALISM
Developed by courts – this restraints states from passing laws that put burdens on interstate commerce in order to protect national economy. This is unofficial –
SCOTUS decisions have been provisional.
PIKE v. BRUCE CHURCH: if a statute regulates evenhandedly to effectuate legitimate public interest with only incidental effects on interstate commerce, it will
be upheld unless burden is clearly related to local benefits. Test asks if it is clearly excessive and if it can be done with lesser impact?
HUGHES v. OKLAHOMA: Adapts PIKE into established three-part test:
1. Does challenged statute regulate evenhandedly with only incidental (as opposed to discriminatory/oppressive) effects on interstate commerce?
2. Does state statute serve a legitimate local purpose?
3. Could state purpose be promoted in an alternative way without discriminating against interstate commerce?
Since HUGHES v. OKLAHOMA, court uses a “virtually per se” rule of invalidity. When state law overtly discriminates against out-of-state economic
interests, it’s no longer worried about State’s ultimate purpose. Per se invalidity entails strict scrutiny, but if not obviously invalid, we still use HUGHES test.
Market Participation Exception:
HUGHES v. ALEXANDRIA: If State enters market for purchaser, it can restrict trade to its own citizens or business within the State.
REEVES v. STAKE: States can sell cement to in-state purchasers first.
INTERSTATE PRIVILEGES/IMMUNITIES
NOTES
Entails what rights States must afford to citizens of another State.
Privileges and Immunities Clause: Article IV, §2 – “The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.”
RECONSTRUCTION
ERA
NEW DEAL
NEW FEDERALISM
Court usually applies intermediate scrutiny – there must be a substantial non-discriminatory reason.
MCCREADY v. VIRGINIA: courts CAN give exclusive planting oyster rights to instate State citizens.
Note it is not until Civil War that federal government realizes they need to protect citizens of a State against the State itself – see individual rights/P&I below.
TOOMER v. WITSELL, PENNSYLVANIA v. WEST VIRGINIA: overturned MCCREADY
BALDWIN v. MONTANA: Court held “only with respect to privileges and immunities bearing on the vitality of the nation” are out-of-state citizens protected.
These include commercial rights, but not recreational rights.
NEW HAMPSHIRE v. PIPER: Discrimination against non-residents only allowed where there is a substantial reason for treatment difference and the
discrimination practiced is substantially related to State’s objective. Establishes current doctrinal test (means-end-fit analysis, looking for substantial relationship:
1. Substantial (intermediate) reason for the state law that’s more than merely legitimate?
2. Substantial relationship tighter than rational relationship?
DUE PROCESS RIGHTS
FRAMERS (IN THE
RECONSTRUCTION
ERA)
Fourteenth Amendment, §1: All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of
the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall
any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of
the laws.
Bill of Rights used to fear the government – now, it fears the States.
Substantive Due Process protects fundamental rights (Bill of Rights) + “some other” rights. But what are those rights?
 Bill of Rights and Equal Protection rights

LOCHNER
Unenumerated economic and personal rights
o Justified by the Ninth Amendment
o Traditional/Historical fundamental rights  liberty is a big one
o Personhood/Mystery rights  chose for yourself the meaning of life and liberty
SLAUGHTERHOUSE CASES: kills P&I clause. Court reads P&I clause narrowly to only assert federally created rights against the states. This does NOT
include provisions in Bill of Rights, which are good against federal government but not the states. Opinion includes “right to navigable waters”. Court interprets
Clause as mere vehicle for asserting already existing rights. Two dissents:
 Field: Fourteenth Amendment is connected to Article IV P&I clause, which gives rights to citizens of other states, whereas Fourteenth Amendment
gives rights between citizens of the United States or citizens of the same states. Rights are created by State law. This would mean States can’t discriminate
against groups of their own citizens and only grant right to certain citizens. This ends up in EPC, below.
 Bradley: Fourteenth Amendment P&I clause protects Bill of Rights fundamental rights and allows you to assert those against the state. This is textually
sensible. This ends up being the reading of the DPC.
“Police Power” says State has inherent authority to regulate the conduct of its citizens when regulation is necessary for public interest.
Legislatures shouldn’t destroy vested rights or enact “class legislation” that imposes a burden on specific groups.
ALLGEYER v. LOUSIANA: liberty “is freedom of enjoyment in all faculties, to use them, live and work, earn his livelihood, pursue all avocations
COPPAGE v. KANSAS: right to make contracts is property and liberty right. Employees generally have less independence to make deals as employers, but we
cannot limit those without infringing upon employer’s rights
LOCHNER v. NEW YORK: Right to make a contract is a liberty interest protected by Fourteenth Amendment. State has police powers, so they can regulate
health/safety/morals/general welfare of public, including certain types of contracts. Valid exercise of police power to infringe upon liberty rights must be
“fair, reasonable, and appropriate” as opposed to “unreasonable, unnecessary, and arbitrary.” Here, no material danger to public health that warrants this
exercise of power.
 Harlan dissent: Power of courts to review legislative action in respect to matter affecting general welfare exists only if statute has no real or substantial
relation to public health, welfare, morals, safety it purports to protect, and is a beyond all question a palpable invasion of rights.
 Holmes dissent: Fourteenth Amendment “liberty” is perverted if it only prevents natural outcome of a dominant opinion.
LOCHNER TAKEAWAYS:
 Principle 1: common law is a neutral baseline [goes away b/c of Erie where CL is state law, and West Coast Hotel]
 Principle 2: redistribution is not in the public interest [goes away b/c of Blaisdell, where everyone is worse off w/o redistribution, so redistribution may
be in the public interest even if it appears it’s playing interest]
 Principle 3: Laws are ok if they serve the public interest [we still believe/say this…but the legislature gets to decide what’s in the public interest after
West Coast Hotel]
MUELLER v. OREGON: state limiting women’s workday is constitutional because historical oppression and womanhood puts them at disadvantage
BUNTING v. OREGON: court uphold ten-hour maximum factory work-day
NEW DEAL
ADKINS v. CHILDREN’S HOSPITAL: overrules MULLER, invalidating minimum wage law for women, stating after Nineteenth Amendment, women have
enough rights now. Besides, wages don’t affect health and safety.
General rule: economic regulations will be upheld as long as they are rationally related to serve a legitimate governmental purpose.
NEBBIA v. NEW YORK: court can regulate setting minimum price for milk, even if it couldn’t regulate private individuals. Means fits end analysis: means
shall have a real and substantial relation to object sought to be obtained. Business can be regulated for adequate reasons, including preventing ruthless
competition that destroys entire price structure.
HOME BUILDING & LOAN v. BLAISDELL: This is a contract clause case, not police power. Question is whether legislation addresses a legitimate end and
measures taken are reasonable/appropriate. This is necessary to avert catastrophe (failures in parts of the economy will affect others) and make all groups better
off. Redistribution is sometimes okay and common law/common state of things is not a neutral baseline.
WEST COAST HOTEL v. PARISH: Liberty safeguarded by constitution is liberty in social organization, requiring protection against anything that menaces
safety/morals/welfare of people, thus is necessarily subject to restraints of DP and regulation.
CAROLENE PRODUCTS: establishes rational basis test for legislature: do facts preclude assumption that the statute rests upon some rational basis within
knowledge and experience of legislators? If no, it’s constitutional.
FOOTNOTE FOUR TEST: Court will presume Congress got it right (rational basis), but will conduct more searching inquiry if an action indicates
process was “perverted”:
 Laws that restrict text of Constitution (BoR) or take away fundamental rights
 Laws that restrict political process
 Laws that discriminate against “discrete and insular” minorities:
o Discrete: visible or distinct interests/preferences
 Visible: can be targeted/oppressed by different treatment
 Distinct: oppressed by identical treatment
o Insular: hard to exit from group or cohesion
 Does membership in that minority group represent a large component of your identity?
 People don’t form coalitions within your group
CAROLENE PRODUCTS establishes two tiers of scrutiny:
 Heightened: race, religion, national origin, sex
 Rational basis: age, disability, scotch drinkers, felons, sexual orientation
WARREN
WILLIAMSON v. LEE OPTICAL: rational basis review with deference and no pretextual analysis for non-discrete and insular minorities.
GRISWOLD v. CONNECTICUT: Right of privacy emanates from the “penumbras” of the amendments in the Constitution, and this relationship is in zone of
privacy. This law is unnecessarily broad as it prevents their use, and is unconstitutional  doesn’t rely on DPC of Fourteenth Amendment explicitly because it
doesn’t want to relate to Lochner.
 Goldberg concurrence: concept of liberty protects fundamental personal rights rooted in tradition/conscience.

NEW
FEDERALISM/MODERN
Black dissent: DP clause can’t be sued to strike down laws that violate “fundamental principles of liberty and justice”, but only laws that violate
Constitution.
BOLLING v. SHARPE: segregated DC schools were unconstitutional based on Fifth Amendment DP/violation of deprivation of liberty without reasonably
related gov’t objective. Flunks rational basis review.
 Roosevelt thinks this indicates SDP does have something to do with arbitrary/oppressive classifications
Test: Fundamental rights get heightened scrutiny/liberty interests get rational basis review.
ROE v. WADE: Right of privacy is fundamental or implicit in concept of ordered liberty and is broad enough to include woman’s decision to abort. Abortion
must be limited reasonably based on maternal health. State needs a compelling interest to protect, and law must be narrowly constructed to only achieve those
results. Compelling point is viability or mother’s health, and when state has a compelling interest it can regulate abortions to extent it reasonably relates to interest.
MICHAEL H: traditional analysis used to determine fundamental rights (based on whether that right is traditionally protected). This is about the level of
generality you define liberty  specifically, minority rights will always be excluded. The more general you get, the more minority rights will be included.
PLANNED PARENTHOOD v. CASEY: Liberty is at the heart of this; right to define one’s own life. Pre-viability regulations on abortion must pass undue
burden test: State may not enact regulation that has purpose of effect of placing substantial obstacle in path of a woman seeking a pre-viability abortion.
 This is a subjective test. See STEINBERG v. CARHART and GONZALEZ v. CARHART for two diametrically opposed opinions applying the same
test.
Tier
Classification
Strict Scrutiny
(anti-deferential)
-Suspect
-Fundamental right
State’s
Interest
Compelling
SS “minus” (weak
- Grutter)
IS
(no deference)
Actual/Conjectural
Burden
Fit
Examples
Actual (no pretext or
other motivation)
State
-Necessity
-Narrowtailoring
-Least intrusive
means
-Near perfect fit
-Race
-Alienage
(states)
Unclear—gives some
deference to the
asserted interest, not
quite as demanding
-Semi-suspect
Important
Actual (cannot be a
pretext or any other
motivation)
-Affirmative
action
State
Substantial
connection (can
vary in degree
of demand—IS+
-Sex
-Illegitimacy
-Stereotype: less
deference
EQUAL PROTECTION CLAUSE: RACE
FRAMERS (IN THE
RECONSTRUCTION
ERA)
RECONSTRUCTION
ERA
Fourteenth Amendment, §1: All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the
State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State
deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
ANTI-CLASSIFICATION (CURRENTLY CONTROLLING):
ANTI-SUBORDINATION:
 Racial discrimination is always unconstitutional – immutable and
 We ban unfriendly discrimination that implies inferiority
unchosen characteristics make racial classifications invidious and we
 Oppressive racial discrimination is unconstitutional, and law should look
should always minimize use of racial classifications
to social meaning/political process to determine whether legislature seeks
 Prohibited characteristics: race, sex, US citizenship if done by states
to benefit/burden groups
 Interested in balancing harms, not smoking out intent
 Interested in smoking on invidious intent
 Symmetrical
 Asymmetrical
 Easier for judges
 Harder for judges  they must make choices about social meaning
 No heightened scrutiny for disparate impact b/c no overt
 Heightened scrutiny for disparate impact
classifications
 No heightened scrutiny for affirmative action
 Heightened scrutiny for affirmative action
STRAUDER v. WV: fails both anti-subordination and anti-classification. Law is motivated by hostile discrimination and results in branding black people as inferior by
not allowing them to participate in jury pool (anti-classification). Laws that disallow people always brand a group of people as inferior. Law discriminates based on color
(anti-classification). Also establishes political process theory (if majority does something to minority, it’s likely to be oppressive)
 Fields dissent from different case says there’s a different between civil, political, social rights, and political rights are not protected.
PLESSY v. FERGUSON: (deferential – rational basis review) mere legal distinction
between races doesn’t re-establish voluntary servitude. Establishes “separate but
equal”; Fourteenth Amendment protects absolute equality but doesn’t establish
distinctions and doesn’t enforce social equality. This law doesn’t enforce stigma.
While police power must be reasonably used to promote public good rather than
annoy/oppress a certain class, acknowledging race doesn’t establish inferiority.
 Harlan dissent: separation is a “badge of servitude”/stigma
WARREN
Court is deferential which makes no sense  majority to whom they defer is
enacting the oppressive legislation. Under anti-classification, PLESSY would be
struck down.
BROWN v. BOARD: (non-deferential) separate educational facilities are inherently
unequal. Court looks to tangible factors such as effect of segregation on children,
including feeling of authority. Court looks at effect, not intent. EPC is about equal
treatment of ALL races.


Roosevelt argues this is about inequality of social meaning  segregation
implies one group is better than the other
See also BOLLING v. SHARPE: segregated DC schools were
unconstitutional based on 5th Amendment DP/violation of deprivation of
liberty without reasonably related gov’t objective. Flunks rational basis
review.
LOVING v. VIRGINIA: (suspect classification doctrine) restricting freedom to
marry based on racial classifications violates EPC. Equal application of state
with racial classifications isn’t enough  all classifications are invidious and are
subject to strict scrutiny, so law must be necessary to accomplish some
permissible state objective.
MODERN
AFFIRMATIVE
ACTION
If a statute classifies individuals based on race, then it should be analyzed Judge determines whether law is oppressive or stigmatizing; then, if so, they
under strict scrutiny.
apply strict scrutiny.
PALMORE v. SIDORI: (both anti-classification and anti-subordination) societal attitudes are not a sufficient justification or racial classifications. Law that divests
parents of custody based on interracial marriages violates the EPC. Best interest of a child is substantial government interest, but State cannot reach it through racial
prejudices, even SOCIETAL racial prejudices.
JOHNSON v. CALIFORNIA: (anti-classification approach) all racial
classifications, even those that seem to benefit the minority, are subject to strict
scrutiny.
 Concurrence argues not all cases should get strict scrutiny – remedial
programs are not the same
Compelling interest in educational cases is educational diversity and encouraging the robust exchange of ideas  societal discrimination on its own isn’t enough.
Narrow tailoring means minimizing unfair infliction of harm on innocent parties.
ADARAND v. PENA, 1995: strict scrutiny for State and federal government applying any racial classifications. “Benign” classifications by federal government can be
treated skeptically. The government constraints for racial classification policies, in general, are: 1) benefits go to an injured party (e.g. injured by government in the past);
2) preference can’t be too big; 3) time limit.
ANTI-BALKANIZATION IDEA (Kennedy and O’Connor)
All racial classifications inflict harm, but some are benign/worth it. “Goals are good, costs aren’t that high.” In these cases, strict scrutiny would not always be fatal. See
GRUTTER and FISHER II.
GRUTTER v. BOLLINGER, 2003: educational diversity at Michigan is a compelling interest. Court uses strict scrutiny “minus”, saying uses race as a holistic factor
amongst many benefits minorities and enhances diversity while being narrowly tailored. Court defers to Michigan on good faith judgment that this is the most effective
means. Narrowly tailored here means: individual assessment, no quota or points, not mechanical. O’Connor imposes a cut-off
GRATZ v. BOLLINGER, 2003: Michigan undergrad points system is not narrowly tailored; it was a simple 150-point scale. Similar to “sweet mystery of life”, this
wasn’t holistic and individualized but instead is harmful because government puts a person in a racial category and treats them different.
FISHER II, 2016: Texas’s system of holistically considering race, without a specific quota, to promote educational diversity which is working is not unconstitutional
even under strict scrutiny standard. Essentially follows to ANTI-BALKANIZATION theory above.
DISPARATE
IMPACT
PARENTS INVOLVED, 2007: busing system to promote racial diversity by
instituting quotas is unconstitutional because it is a classification. Racial balance
for its own sake is illegitimate/unconstitutional. Program was not for
educational/diversity benefits or critical mass but merely for statistical reasons.
 Kennedy concurrence: diversity in education/avoidance of de facto
segregation are compelling interests, but this program wasn’t narrowly
tailored. It classifies people solely based on race, limiting a person’s
liberty, autonomy and dignity.
HO AH KOW v. NUNAN, 1879: Facially neutral law adopted for race-dependent, disparate impact reasons but applied to everyone still unconstitutional, as it’ not
justified as a measure of discipline/sanitary regulation.
YICK WO v. HOPKINS, 1886: Facially neutral law’s discriminatory administration exclusively targeting a particular racial group denies equal protection. Court can
hold neutral law unconstitutional if it is administered based on race. This is about the laws application  the law was administered in a racially dependent fashion
GRIGGS v. DUKE POWER, 1971: (anti-subordination-esque) Disparate impact gets strict scrutiny under Title VII of Civil Rights Act, regardless of neutral intent.
Defendant must demonstrate business necessity and evidence that practice that serves to exclude a group is related to job performance. Test is meant to smoke out
intentional discrimination. Lack of overt bad intention is not enough.
Current disparate impact test says practices/laws will be struck down by CRA:
 Intentional discrimination, as you get SS
 Facially neutral test is applied in a race-conscious manner (this is intentional discrimination
 If you choose something “because of” its disparate impact (pretext gets you struck down)
 However, if you just selected something “because of” or “in spite of” DI, you get heightened scrutiny and must show business necessity.
WASHINGTON v. DAVIS, 1976: disparate impact along doesn’t get SS in Constitution  you also must prove discriminatory purpose. Only rational bases review if
there is no evidence of discriminatory intent. 14th Amendment only cares about intentional discrimination. DI by itself gets only rational basis review – to get strict
scrutiny, intent to discriminate must be motivating factor.
RICCI v. DESTEFANO, 2009: After city threw out tests results because white candidates outperformed minorities, white firefighters sued that they were discriminated
against. Despite good intentions, City made its employment decision because of race (discriminatory intent) and violated Title VII. Disparate treatment not allowed
unless employer can demonstrate strong basis that, if it hadn’t taken action, it would’ve been liable under DI theory.
EQUAL PROTECTION CLAUSE: SEX
FRAMERS (IN THE
RECONSTRUCTION
ERA)
MODERN
Fourteenth Amendment, §1: All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the
State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State
deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
HOYT v. FLORIDA: law that only has women on jury when women request it is okay
REED v. REED: overturns HOYT, stating law that prefers men over women as estate administrators is banned by 14th amendment
FRONTIERO v. RICHARDSON, 1973: (anti-subordination) allows for heightened scrutiny for situation where fringe benefits require extra steps for women and
perpetuate stereotypes. Classifications based on sex, like race, are inherently suspect and must be subject to heightened scrutiny. Government’s interest is legitimate but
not compelling, and state is not narrowly tailored. Uses factors to determine if sex is a discrete/insular minority:
 History of discrimination
 Visibility of sex characteristics as important trait in determining class group
 Sex has no relation to ability to perform
 Congress actions that indicate discriminating based on this is invidious
GEDULDIG v. AIELLO, 1974: SCOTUS upheld state-run employment disability insurance program that covered all work and non-work related disabilities except for
disabilities that result from normal pregnancy.
CRAIG v. BOREN, 1976: establishes intermediate scrutiny standard. New test: Government must show that use of sex-based criteria is substantially related to
achievement of important government objectives. Application of group-based generalizations to individuals is dangerous and in tension with EPC.
PERSONNEL ADMINISTRATOR of MA v. FEENEY, 1979: Court held veterans preference forever in hiring as constitutional. When basis classification is rationally
based, usually uneven effects are not unconstitutional. When a statute gender-neutral on its face is challenged based on disparate impacts, ask two questions:
1) Whether the statutory classification is indeed neutral in the sense that it is not gender-based?
2) Does the adverse effect reflect invidious gender-based discrimination? (purposeful discrimination is the standard)
MICHAEL M v. SUPERIOR COURT OF SONOMA COUNTY, 1981: California only made statutory rape a crime against women. SCOTUS held that because only
women can get pregnant and that is what the court is trying to prevent, no problem there, even if it places a burden on men
MISSISSIPPI U FOR WOMEN v. HOGAN, 1982: if statutory objective is to “protect” members of one gender because they are presumed lesser/weaker, objective is
illegitimate. No state interest in program that only allows women in nursing, especially because woman are overrepresented in nursing schools.
J.E.B. v. ALABAMA ex rel T.B.: you cannot use peremptory jury challenges based on sex
VMI, 1996: Two gendered schools are unconstitutional. VA cannot provide a “unique” opportunity for men only and a “lady” school for women. Under EPC, genderbased government action must demonstrate exceedingly persuasive justification. Justification must be genuine. Sex classifications may be used to compensate women,
promote equal employment, or to advance people, but not to perpetuate inferiority of women. VWIL does NOT provide equal opportunity, and courts may not used
fixed notions to exclude individuals. Remedial school is not enough because it’s too difference.


Roosevelt contracts between formal and substantive equality. Formal equality (no fitness changes) that has disparate effects on women  is that
unconstitutional? Maybe not if they were already in place.
Is the real distinction here that sex is not hierarchical, but gender is?
TUAN ANH NGUYEN v. INS, 2001: law granting automatic citizenship to children born to American mother but not father out of the country doesn’t violate EPC.
Two government interests at stake: importance of ensuring biological parentage and ensuring child and parent have relationship. However, this is riddled with
assumptions about gender and parenting, many which were untrue in this case.
NEVADA DEP’T OF HUMAN RESOURCES v. HIBBS, 2003: Congress is allowed, under §5, to do more than proscribe unconstitutional power. They can be
prophylactic. FMLA is a response to States continuing to rely on stereotypes in the employment leave context, which cannot justify gender discrimination. Prevention
of this justifies Congress’ §5 actions.
SESSIONS v. MORALES-SANTANA, 2017: What about a law that requires men US citizens to live in the US for ten years before being able to pass off unwed
citizenship, but a woman only needs to live in the US for 1? SCOTUS says this is unconstitutional, because why does a man need more time to “assimilate to US
culture” than a woman.
 Gov’t argues it’s because women exert more influence on children so men need to be “more American” to balance it out
o this is patently based on sexism.
EQUAL PROTECTION: OTHER CLASSIFICATIONS
FRAMERS (IN THE
RECONSTRUCTION
ERA)
Fourteenth Amendment, §1: All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the
State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State
deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
MENTAL DISABILITY
CITY OF CLEBURNE v. CLEBURNE LIVING CENTER: Mentally disabled individuals are NOT entitled to quasi-suspect classification and are only entitled to
rational basis review. They are undeniably different, immutably so, but we do not mistrust gov’t to, guided by professionals, make decisions. Second, there is no
proof that the legislature has prejudiced this group. Third, political response shows that the group is not politically powerless. Under rational basis, court affirms
below judgment saying this violated EPC: why do nursing homes need no special permit but this home does? Why would people not wanting to live near them
count as a special interest that is compelling?
ZADVYDAS v. DAVIS: court ruled an alien ordered removed because of criminal record who no country would take couldn’t be kept indefinitely in custody,
because it would violate DP. Such non-criminal custody must be “narrow”, and this unlimited custody would not be.
ALIENAGE
GRAHAM v. RICHARDSON, 1971: “person” in 14th Amendment means aliens and citizens. Classifications are allowed if they have a reasonable basis, but
classifications based on aliens, because they are “discrete and insular”, are subject to close judicial scrutiny. First, court has rejected concept of constitutional rights
depending on if a benefit is a “right” or a “privilege” (entitlement doctrine). Second, Court has recognized that saving of welfare costs cannot justify invidious
classifications. Aliens, after all, pay taxes like everybody else. These kinds of laws essentially violate federal policy because they would allow citizens to be limited to
states that would want them.
BERNAL v. FAINTER, 1984: Political function exception for state laws that discriminate on basis of alienage. Role must be discretionary power, involving a basic
government function, that puts them in a position of direct authority over other individuals. This is necessary for political self-determination. Two-part test to
determine whether discrimination falls within this exception:
1) Examine specificity of classification: one that is overinclusive or underinclusive undercuts claim that it fits legitimate political ends.
2)
SEXUAL
ORIENTATION
Even if classification is tailored, may be applied only to persons holding state elective or important non elective exec/leg/judicial position, officials who
participate directly in formulation, execution, or review of public policy” and hence perform functions at the heart of representative gov’t.
BOWERS v. HARDWICK, 1986: Sodomy is not a fundamental right. Fundamental rights are those which are implicit in concept of ordered liberty, where liberty
wouldn’t exist without them or deeply rooted in this nation’s history/tradition. And this doesn’t fail rational basis because it’s morality based.
ROMER v. EVANS, 1996: Law that prohibits sexual orientation discrimination claims is unconstitutional. This amendment withdraws from homosexuals and no
others specific protections regarding discrimination. This does more than “eliminate special rights”  it eliminates safeguards others may enjoy or seek without
constraint. No matter how local or discrete the harm, any protection is BANNED until the state changes its mind.
LAWRENCE v. TEXAS, 2000: Overturns BOWER. Right to privacy is the right of an individual to be free from unwarranted gov’tal intrusion into matters so
fundamentally affecting a person. Law here is not merely preventing an act: they seek to control a personal relationship that is within the liberty of persons to
choose without being punished as criminal. Sexuality is merely on conduct expression of the bond between people. Doesn’t fully establish if this involves a
fundamental right or not. Does this mean we apply heightened scrutiny to certain non-fundamental rights?
OBERGEFELL v. HODGES, 2015: Right to marry is a fundamental right. But court has assumed opposite sex marriages. So let’s look at what rationalization we
used and see if it applies to same-sex marriages:
 Right to personal choice regarding marriage is inherent in concept of individual autonomy
 Right to marriage is fundamental because it supports a two-person union unlike any other in its importance to committed individuals
o “coming together for better or worse”
o LAWRENCE held that same-sex couples have same right to enjoy intimate association
 Right to marry safeguards children and families and draws meaning from related rights of childrearing, procreation, education.
 Marriage is a keystone of our social order
 This is about a right to marry, not a right to “same-sex marriage”
 This is both a fundamental DP right and an EPC right
Executive Branch, in Holder letter, decided sexual orientation deserves heightened scrutiny, where classification must be substantially related to an important
government objective and a tenable justification must describe actual state purposes, not rationalizations for actions in fact differently grounded.
Factors considered:
o Has group suffered history of discrimination
o Does group have immutable, obvious, distinguishing characteristics
o Is group a minority/politically powerless
o Whether characteristics distinguishing groups have relation to legitimate policy objectives