Constitutional Law Outline
Spring 2022 - Herman
I. The Constitution and The Supreme Court
Partisanship, Neutral Principles, and the Constitution
Federalist No. 10
- Faction - A number of citizens who are united and actuated by some common impulse of passion,
or of interest, adverse to the rights of other citizens, or to the permanent and aggregate interests
of the community - self-interested
- Two cures - remove its causes or control its effects - have to control it because liberty creates
factions, we want liberty
- Influence of factious leaders may kindle a flame within their particular states, but will be unable
to spread a general conflagration through other states
Partisanship
- Adams - “a division of the republic into two great parties…is to be dreaded as the great political
evil” - Washington warned against this as well
- Madison wanted an “extended republic” for exactly this reason - believed that in a large republic,
more factions and more distance, a permanent majority with a permanent minority was less likely
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Need a multiparty democracy like Madison says in Federalist No. 10, with its praise of fluid and
flexible coalitions
Neutral Principles - Idea linked to Herbert Wechsler, who believed in judicial review, but that the courts
must apply “neutral principles” that “transcend the case at hand”, judges should not make judgments with
their hearts
The Role of Courts in Constitutional Interpretation
Marbury v. Madison - Establishes the power of judicial review
- Ruled against Marbury, held that it could not constitutionally hear the case,
Marshall knew a ruling in favor of Marbury would be futile and that jefferson
would ignore it - this would undermine the court’s authority at the beginning of
its history
- Marshall likely saw the case as a unique opportunity: chance to claim the power
of judicial review, but in a context least likely to draw opposition
- “It is emphatically the province and duty of the judicial department to say what
the law is. Those who apply the rule to particular cases, must of necessity
expound and interpret that rule”
- Judicial review was deemed appropriate only in acts within the discretion of the
executive - Marbury establishes the power of the judiciary to review the
constitutionality of executive actions
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If there is a conflict between a law passed by Congress and the Constitution,
Constitution must control and the offending law will be void
Here, Marbury has a right to his commission as Justice of the Peace because he
was lawfully appointed to that position by the president’s signing his commission
- however, even though a writ of mandamus would have been an appropriate
remedy, Section 13 of the Judiciary act is unconstitutional because it allows the
Supreme Court to have original jurisdiction over actions for writs of mandamus directly conflicts with Article III which limits the cases in which the Court has
jurisdiction
Act seeks to expand the Court’s original jurisdiction, and is therefore
unconstitutional
II. The Federalist System
A. The Supreme Court and the States
Martin v. Hunter’s Lessee
- Question of whether the US Supreme Court may exercise appellate jurisdiction
over state court decisions about issues arising under the federal constitution, laws
or treaties
- Plaintiff brought a land dispute against Hunter’s Lessee in Virginia state court,
judgment for defendant - overturned by Supreme court which Virginia state
courts did not respect
- Supreme Court has authority under Article III to exercise appellate review of
state-court decisions
- State judges are not independent from federal laws, but are bound to follow the
constitution of the US at all times - thus follows that the Court is vested with the
authority to conduct appellate review by the Constitution in regard to laws, and
treaties in the United States
McCulloch v. Maryland
- Question of whether the State of Maryland could collect a Tax from the Bank of
the US
- Marshall used the case as an occasion to broadly construe Congress’s powers and
narrowly limit the authority of state governments to impede the federal
government
- Marshall stated that Congress has the power to create a national bank, also
contended that the states do not retain ultimately sovereignty because they
ratified the constitution - the people do THEY ratified the Constitution
- “In considering this question, then, we must never forget that it is a constitution
we are expounding” - point is that the Constitution is different from a statute and
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should therefore be interpreted differently, argues that Congress is not limited
only to those acts specified in the constitution, Congress may choose any means
not prohibited by the Constitution to carry out its authority - DRAMATIC
expansion in Congressional authority
Takes an extremely broad view of the necessary and proper clause, which still
continues today - but the necessary and proper clause must be used with a valid
exercise of another power of congress
B. The Powers of Congress
Federalism and the Commerce Clause
- Article 1 §8 of the Constitution contains specific powers of Congress - none is
more important than article 1§8 which states that “congress shall have the
power…to regulate commerce with foreign nations, among the several states, and
with the Indian Tribes”
- Gibbons v. Ogden - Marshall considered the scope of Congress’s commerce power
in evaluating the constitutionality of the federal law that authorized license
issued to Gibbons - prevented Ogden’s monopoly
- Court holds that commerce includes all phases of business, including navigation
Commerce Clause before 1937 - years after Gibbons and before the Civil War, supreme court rarely dealt
with challenges to federal legislation adopted under the commerce clause
- Before 1887 - Not much action with the commerce clause, court had little occasion to consider
scope
Cases between 1887 and 1937 - Court was controlled by conservative justices deeply committed to
laissez-faire economics and strongly opposed to government economic regulations
- “Dual federalism” philosophy the court espoused which was the view that the federal and state
governments were separate sovereigns and had separate zones of authority
- commerce was defined narrowly as one stage of business, separate and distinct from earlier
phases such as mining, manufacturing and production
- among the states was interpreted as requiring a direct effect on interstate commerce, yet the
court never formulated a clear or consistent way to distinguish direct from indirect
Cases from 1937 to 1995 - By 1937, enormous pressures for change because the economic crisis of the
Depression made laissez-faire economics seem untenable (Lochner)
NLRB v. Jones and Laughlin (1937)
- Act in question regulates all aspects of an industry, thus invading the reserved
powers of the states over their local concerns - appellant asserted that the
references in the act to interstate and commerce are colorable at best; act is not a
true regulation of such commerce or of matters which directly affect it
- Court holds that congressional authority is limited to transactions which can be
deemed an essential part of the “flow” of interstate or foreign commerce
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Power is plenary - activities may be intrastate in character when separately
considered, if they have such a close and substantial relation to interstate
commerce that their control is essential or appropriate to protect that commerce
from burdens or obstructions, Congress cannot be denied that power to exercise
that control
Dissent - says court departs from well established principles - that the power of
congress under the commerce clause does not extend to relations between
employers and their employees engaged in manufacture
United States v. Darby
- Issue of whether Congress has the power to prohibit the shipment in interstate
commerce of lumber manufactured by employees whose wages are less than a
prescribed minimum or whose weekly hours of labor at that wage are greater
than a prescribed maximum, and, second, whether it has power to prohibit the
employment of workmen in the production of goods “for interstate commerce” at
other than prescribed wages and hours
- Fair Labor Standards Act - Section 15(a)(1) - makes unlawful the shipment in
interstate commerce of any goods “in the production of which employee was
employed in violation of section 6(206) or 7(207)
- Court holds that while manufacture itself is not interstate, the shipment of
manufactured goods is commerce → prohibition of such a shipment by Congress is
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indubitably a regulation of the commerce
Motive and purpose of the present regulation are plainly to make effective the
Congressional conception of public policy that interstate commerce should not be
made the instrument of competition - whatever the motive and purpose,
regulations of commerce which do not infringe on a constitutional prohibition are
within the plenary power
Wickard v. Filburn
- Appellee owned and operated a small farm in montgomery county, grows extra
wheat for himself which never entered the stream of commerce
- Violates the Agricultural Adjustment Act of 1938 - Appellee argues the effect on
interstate commerce is “indirect” at best since it is a local activity
- Court says Commerce among the states is large and important - especially
regulation of prices - says Congress may regulate local activity
Heart of Atlanta Motel v. United States
- Appellant owns and operates a motel continuing a policy of refusing to rent
rooms to negroes - contends that Congress is exceeding its power to regulate
commerce
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Determinative test is simply whether the activity sought to be regulated is
“commerce which concerns more states than one” - power of congress to promote
interstate commerce also includes the power to regulate the local incidents
thereof, including local activities in both states of origin and destination, which
might have a substantial and harmful effect upon that commerce
Unavailability to African Americans interferes significantly with interstate
commerce
Rational basis test in either heart of atlanta or katzenbach
Katzenbach v. McClung
Test for Commerce Clause after 1937 - Congress could now exercise control over all
phases of business, no longer did they distinguish between direct and indirect, now they
could regulate any activity taken cumulatively - Congress could regulate any
activity if there was a substantial effect on interstate commerce - in some
cases they would even delete the word substantial
Lopez and the New Federalism
United States v. Lopez
- Gun-Free School Zones act of 1990 - made it a federal offense “for any individual
knowingly to possess a firearm at a place that the individual knows, or has
reasonable cause to believe, is a school zone”
- Lopez convicted for carrying a concealed handgun - challenges claiming that
§922 exceeded congress’ power to legislate under the commerce clause
- Court Identifies three broad categories of activity that Congress may regulate
under its commerce power, 1. may regulate the use of the channels of interstate
commerce 2. Empowered to regulate and protect the instrumentalities of
interstate commerce, or persons or things in interstate commerce, even though
the threat may come only from intrastate activities, 3. Commerce authority
includes the power to regulate those activities having a substantial relation to the
interstate commerce - proper test requires an analysis of whether the regulated
activity “substantially affects” interstate commerce
- §922 is a criminal statute that by its terms has nothing to do with “commerce” no
matter how broadly one may define the terms
- United States argues that the presence of guns in school zones affects commerce
because crime in school affects education, which then affects jobs and
productivity - if this argument were accepted, Congress could regulate virtually
any activity
- Rational basis test does not apply if Congress is not regulating economic activity may have an effect on economic activity
Breyer, Stevens, Souter and Ginsberg dissent
- Question is not whether “regulated activity sufficiently affected interstate
commerce” but rather, whether congress should have had a “rational basis” for so
concluding
- Must ask whether Congress could have had a rational basis for finding a
substantial connection between gun-related school violence and interstate
commerce - as long as one views the commerce connection not as a “technical
legal conception” but as a “practical one” answer must be yes - economic links
between education and commerce is clear
United States v. Morrison
- Brzonkala brought an action pursuant to the VAWA alleging she had been raped
by a fellow student and the schools’ response had been inadequate
- Relevant part of the statute provided a federal remedy for victims of gendermotivated violence - Morrison moved to dismiss on the ground that Congress
didn’t have the power under the commerce clause to enact that provision
- Court follows in Lopez’s footsteps - argues that gender-motivated crimes of
violence are not in any sense economic activity
Souter, Stevens, Ginsburg and Breyer Dissent
- Mountain of data assembled by congress showing the effects of violence against
women on interstate commerce
- Partial estimates show that violent crime against women costs this country at
least 3 billion dollars a years
- 5 to 10 billion dollars a year on health care, criminal justice and other social costs
of economic violence
- Based on the data congress found that “crimes of violence motivated by gender
have a substantial adverse effect on interstate commerce, by deterring potential
victims from traveling interstate, from engaging in employment in interstate
business”
- Deters potential victims from traveling interstate
Gonzales v. Raich
Congress has the power to regulate activities that substantially affect interstate
commerce
- California authorizes use of marijuana for medicinal purposes - Raich and
Monson are residents who suffer and use marijuana, Monson cultivates her own
and ingests it in a variety of ways
- Agents of the DEA went to Monson’s home and destroyed all six of her cannabis
plants
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Wickard establishes that congress can regulate purely intrastate activity that is
not itself “commercial” in that it is not produced for sale, if it concludes that
failure to regulate that class of activity would undercut the regulation of the
interstate market in that commodity - similarities to this case are striking
Thus Congress may regulate the use and production of homegrown marijuana,
since it is part of an economic “class of activities” that have a substantial effect on
interstate commerce - established market for marijuana, which Monson’s plants
would affect
Affordable Care Act
NFIB v. Sebelius
- Congress passed ACA which aimed to increase amount of americans covered by
health insurance and decrease cost of health care - mandate requires most
americans to maintain “minimum essential” health care insurance coverage
- Government advances two theories for the proposition that Congress has the
authority to enact the mandate 1. Congress had the power under the commerce
clause - may order individuals to buy health insurance because the failure to do
so affects interstate commerce and could undercut the ACA’s other reforms 2. If
commerce power does not support the mandate, we should uphold it as an
exercise of Congress’s power to tax
- In response to argument 1. Wickard, farmer was commanded to buy wheat, but at
least then he was in the active production of wheat and the government could
regulate it because of its effect on commerce - government’s theory here would
effectively override that limitation and establish individuals may be regulated
under commerce clause whenever enough of them are not doing something the
government wants
- Mandate also cannot be sustained under the Necessary and Proper clause - each
of our prior cases upholding laws under the N and P clause involved exercise of
authority derivative of and in service to a granted power - mandate vests
Congress with the extraordinary ability to create the necessary predicate to the
exercise of an enumerated power - can’t just say Congress is doing something
“necessary and proper” must attach to one of the other enumerated powers here, congress would no longer be limited to regulating under the commerce
clause those who would by some preexisting activity bring themselves within the
sphere of federal regulation - Congress could reach and draw within its scope
those who would otherwise be outside of it
- Individual mandate may be upheld within Congress’s enumerated power to “lay
and collect taxes” - cannot be justified as a valid exercise of commerce power,
because the Commerce Clause does not empower Congress to compel individuals
to engage in commercial activity - possibility that people could participate in the
market someday is not enough, slippery slope
Ginsburg Dissent
- Would hold that Commerce Clause authorizes Congress to enact minimum
coverage position - sine 1937, precedent has recognized Congress’ large authority
to set the Nation’s course in economic and social welfare realm
- States cannot resolve the problem of the uninsured on their own - If an individual
state adopted universal health-care, unhealthy individuals would flock to the
state with universal health care and would result in increased spending on
medical services - state would then have to raise taxes, and private healthinsurance companies would have to increase premiums
- Rather than evaluate the constitutionality of the minimum coverage provision,
the chief justice relies on a newly minted doctrine, commerce power does not
permit congress to “compel individuals to become active in commerce by
purchasing a product”
- It is congress’ role not the court’s, to delineate the boundaries of the market the
legislature seeks to regulate - chief justice defines the health-care market as
including only those transactions that will occur either in the next instant or
within some proximity to the next instant - Congress could have reasonably
viewed the market from a long-term perspective, encompassing all transactions
virtually certain to occur over the next decade
- Congress is merely defining the terms on which individuals pay for an interstate
good they consume, establishing that they pay in advance for medical care establishing payment terms for goods in or affecting interstate commerce is
quintessential economic regulation well within congress’ domain
- Chief Justice plows ahead with his formalistic distinction between those who are
- “Broccoli horrible” - chief justice’s concerns that the commerce clause must be
confined to the regulation of active participants in a commercial market is a fear
that the commerce power would otherwise know no limits - concern is unfounded
Federal Preemption
§5.2 Preemption of State and Local Laws - Difficulty is deciding whether a particular
state or local law is preempted by a specific federal statute or regulation - no clear rule
for deciding whether a state or local law should be invalidated on preemption grounds
Three Situations where Preemption Claims Arise
First - express preemption occurs where there is explicit preemptive language
Second - implied preemption - “field preemption,” “conflict preemption” or if the state
law impedes the achievement of a federal objective where preemption will be found if
state law “stands as an obstacle to the accomplishment and execution of the full
purposes and objectives of Congress”
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Congress is often silent on the preemption question and even when they express a
desire for preemption, they rarely indicate the scope of preemption or provide
guidance for situations that will arise
Third - States generally cannot tax or regulate federal government activities
All it means is THE SUPREMACY CLAUSE - they can preempt as long as they’re acting
within an enumerated power, they can also enact how under the necessary and proper
clause
Policy Question: Very broad preemption doctrine allows federal government to control
and leaves less room for state and federal governments - very narrow one minimizes the
reach of federal law and risks undermining federal objectives
Tenth Amendment and Federalism as a limit on Congressional Authority- “The
powers not delegated to the United States by the Constitution, not prohibited by it to the
states, are reserved to the states respectively, or to the people”
- One approach is that the Tenth is not a separate constraint on Congress, but rather a
reminder that Congress may only legislate if it has authority under the constitution →
federal law never would be found unconstitutional as violating the 10th Amendment,
but could be invalidated as exceeding the scope of Congress’s powers under article 1
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of the constitution for violating another constitutional provision
Alternate approach is Tenth Amendment protects state sovereignty from federal
intrusion - reserves a zone of activity to the states for exclusive control and
federal laws in this area should be declared unconstitutional
Garcia v. San Antonio Transit Authority
- SAMTA was issued an opinion that it is not immune from the minimum wage and
overtime requirements of the Fair Labor Standards Act
- Congress has the constitutional authority to regulate the wages and hours of state
employees under the commerce clause - National League of Cities did not offer
how a “traditional” government function differs from a “nontraditional” one
- “Function” standard is unworkable so NLC is overruled
- Important that states be free to engage in any activities its citizens deem
appropriate, not just those that constitute “traditional government functions”
O’Connor, Powell, and Rehnquist
- With the abandonment of NLC, all that stands between the remaining essentials
of state sovereignty and Congress is the latter’s undeveloped capacity for selfrestraint (were doomed)
New York v. United States
Federal government cannot compel states to legislate in any particular way.
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Low-level radioactive waste policy act - court held 1. That the act’s monetary and
access incentive provisions are inconsistent with the Constitution’s allocation of
power to the federal government but 2. The act’s “take title” provision, requiring
states to accept ownership of waste or regulate according to instructions of
Congress, lie outside the enumerated powers - before 1985 Act only Nevada,
Washington, and South Carolina had radioactive waste disposal sites, so national
problem is being shipped to just three states
Congress can encourage states or provide incentives for states to govern in a certain
way - Congress can offer States the choice of regulating that activity according to
federal standards or having state law preempted by federal regulation → basically they
can impose the law themselves, or say to their constituents that it’s the federal
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governments fault so they don’t get blame
Federal government CANNOT compel states to regulate - accountability of state
and federal officials is diminished
Under Supremacy Clause, Congress could preempt state radioactive waste
regulation - but COngress violates the tenth amendment where it directs states to
regulate in that field
Dissents
- Act is a constitutional exercise of the Commerce Clause powers - represents a
compromise worked out between and among the states with COngress as a
referee, in invalidating the act, there is a lack of respect for negotiation among the
states
- Act is constitutional because the federal government already regulates state
actions in the administration of various environmental programs, public services,
military drafts, etc.
Printz Case - issue was whether the Brady Handgun Violence Prevention Act violated
the tenth amendment in requiring that state and local law enforcement officers conduct
background checks on prospective handgun purchasers - 5-4 court found the provision
unconstitutional
- Scalia’s majority emphasized that Congress was impermissibly commandeering
state officials to implement a federal mandate - observed that Congress had not
exercised that power historically - reaffirmed New York v. US and held that
congress violates the tenth amendment when it conscripts state governments
- Do the state and local entities have to follow congressional statutes? Yes they do.
Do they actually have to enforce congressional statutes? No they don’t. Do they
have to put on their federal hat?
Dormant Commerce Clause - principle that state and local laws are unconstitutional
if they place an undue burden on interstate commerce - inferred from Article 1 Sec. 8
- Commerce clause thus has 2 functions - authorization for congressional actions
and limiting state and local regulation
- Should the judiciary invalidate state and local laws because they place an undue
burden on interstate commerce?
Modern Approach - based not on rigid categories, but on courts balancing the benefits of
laws against the burdens on interstate commerce
Balancing Test Depends on whether there is Discrimination - if the court concludes that
a state is discriminating against out-of-staters, there is a strong presumption against the
law and it will only bee upheld if it is necessary to achieve a certain purpose
Two-Tier Test
1. Protectionist or discriminatory legislation is subjected to a “virtually per se rule
of invalidity” - court would use strict scrutiny and basically say to the state you
can’t discriminate against those out of state
2. Evenhanded regulation that incidentally burdens interstate commerce is
subjected to a balancing test weighing
● Whether the burden on interstate commerce is “excessive in relation to the
putative local benefits”
● Whether the local interest could be promoted as well with a lesser impact on
interstate activities
- Overall approach to dormant commerce clause can thus be simply summarized laws that do not discriminate are generally upheld and will be struck down only if
found to place a burden on interstate commerce that outweighs the benefits from
the law
City of Philadelphia v. New Jersey
- NJ law prohibits the importation of most “solid or liquid waste which originated
or was collected outside the state”
- Immediately affected private landfills in NJ, as well as cities in other states that
had agreements with these owners
- Principal economic unit is the nation…and as its corollary the states are not
separate economic resolution”
- Clear example of economic protectionism, which is a “virtually per se rule of
invalidity”
- Court says it does not matter whether the aim was to reduce the waste disposal
costs of NJ residents or to save remaining open lands from pollution - whatever
the ultimate purpose it may not be accomplished by discriminating against
articles of commerce coming from outside the state unless there is some reason,
apart from their origin, to treat them differently
Raymond Kassel et al v. Consolidated Freightways COrporation of Delaware
- Iowa law bars the use of trucks longer than 60 feet on interstate
- Court held that 1. The safety interest offered by Iowa to justify the statute was
insufficient to overcome the burden on interstate commerce 2. The motor carrier
demonstrated that Iowa law burdened interstate commerce by showing that
trucking companies wished to continue to use 65 foot doubles and now must
route them around Iowa, or detach the trailers or the doubles and ship them
through separately - law could actually increase the problem of highway accidents
3. Imposed a disproportionate burden on out-of-state residents and businesses,
and, therefore, statute was not to be accorded the “special deference”
traditionally accorded to state highway safety regulations
III. Checks and Balances in the Federal Government
A. The Role of President
The Scope of Executive Power
Youngstown Sheet and Tube co. v. Sawyer
- Truman wanted steel for wartime effort, workers went on strike because workers
weren’t being raised - Truman seized control of the mills by executive order
- Mill owners argue that this order amounts to lawmaking, which is not in the
power of the president - government contends that this order was made on
findings that the action was necessary to avert a national catastrophe - within the
aggregate of the President’s constitutional powers
- Court held that the President’s power must stem either from an act of Congress or
the Constitution - Power must come from the constitution - president argues
using the language “executive power shall be vested in a president” and “he shall
take care that laws be faithfully executed” and “shall be commander in chief of
the army and navy of the US”
- Cannot be supported as an exercise of military power - power to see that laws are
faithfully executed does not mean he is a lawmaker - this is making law, therefore
action cannot stand
- President may not engage in lawmaking activity absent an express authorization
from Congress or the text of the Constitution
Frankfurter - Taft-Hartley clearly and emphatically withheld this authority
Dissent
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These are extraordinary times, gives the example of Lincoln but lincoln was
actually at war
Justice Jackson Three-Part Test
(1) When the president acts with the express or implied authorization of Congress then the
President’s authority is at its greatest
(2) In the absence of either a congressional grant or prohibition, then the president acts in a zone of
twilight - Congress and the president may have concurrent authority - actual test on authority will
be dependent on the events
(3) When the president takes measures against the express will of Congress, his power is at the lowest
- This is where Truman’s actions were
The Travel Ban
Trump v. Hawaii - Foreign nationals needed to undergo a vetting process in order to
satisfy requirements for admission - president has the authority to restrict entry of
aliens which he deems “detrimental to the interests of the United States”
- Trump said it was necessary to impose entry restrictions of nationals from
countries who do not share adequate information for an informed entry
determination
- Immigration and Nationality act exudes deference to the president in every
clause and entrusts him with the decision of whether and when to suspend entry
- Trump’s directive was “NEUTRAL ON ITS FACE” according to the court, despite
the fact that Trump made numerous statements outside the written directive
insinuating that that it was meant to be a ban on muslims
- Sotomayor Dissent - To determine whether plaintiffs have proved an
establishment clause violation, court asks whether a reasonable observer would
view the government action as enacted for the purpose of disfavoring a religion to answer that the court has generally considered the text of government
policy…and any available evidence regarding the “historical background for the
decision under challenge, the specific series of events…” - court is encouraged to
take the history surrounding an action into account, here they didn’t
Presidential Powers, Privilege, and Immunities
Executive Privilege - Ability of the president to keep secret conversations with or
memoranda to and from advisors - important for national security, also necessary for
candid advice
United States v. Nixon
- Watergate scandal
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Nixon was asked to turn over tapes to use as possible evidence in the trial - Nixon
said he would disclose edited transcripts of the conversations - moved to quash
the subpoena
District Court denied the motion to quash, and ordered Nixon to provide all
materials subpoenaed
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Nixon argued that the court lacked jurisdiction to order the subpoena because the matter
was an intra-branch dispute between a subordinate and superior officer of the executive
branch and could not be determined by the judiciary - contended that a president's
decision is final in determining what evidence can be used in a given criminal case
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Argues absolute privilege of the president, argues that it is 1. Valid for protection
of communication between high government officials 2. Separation of powers
COurt holds that neither separation of powers nor confidentiality of high-level
communications can sustain an absolute, unqualified privilege of immunity from
judicial process under all circumstances
Confidentiality of the position is completely justified, however in this scenario
where there is belief that the president has committed a crime, the president may
lose the privilege of confidentiality
Must weight the importance of confidentiality against the fair administration of
criminal justice - allowance of the privilege to withhold evidence demonstrably
relevant to a criminal trial would cut deeply into the guarantee of due process of
law and gravely impair the basic function of the courts
Ordered that Nixon must disclose the requested transcripts - Nixon recognizes
the existence of executive privilege but refuses to make it absolute
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Presidential Immunity to Criminal and Civil Suits
- Criminal - no case has ever addressed this, Nixon was made a co-conspirator
because they weren't sure if they could indict a sitting president
- Strong argument that impeachment and removal should be the sole remedy since
criminal prosecution would interfere with the president's ability to perform, but
there is also the argument that no man is above the law
- Civil - president cannot be sued for injunctions nor for damages
- Sexual harassment claim against bill clinton from when he was governor of
arkansas - clinton moved to dismiss or at least have it stayed until he was no
longer president - supreme court ruled against Clinton unanimously, stevens
writing an opinion explaining that immunity exists to safeguard exercise of
discretion by an officeholder, thus no basis for “immunity of unofficial conduct” meaning it would not apply to conduct that occurred while he was not president
- ARgued against clinton’s claim that the suit would unduly interfere with the
president’s carrying out important and unique constitutional functions of the
office
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Court was not persuaded of the risk that the decision will generate a large volume
of politically motivated harassing and frivolous litigation, and the danger that
national security concerns might prevent the president from explaining a
legitimate need for a continuance
Frivolous litigation will be dealt with at the pleading stage or summary judgment
However, Stevens’s prediction about Clinton’s suit was wrong - civil suit against
Clinton took a huge amount of time and ultimately led to impeachment - Clinton
v. Paula Corbin Jones
War Powers and Anti-Terrorism - Constitution is an invitation for a power struggle
between the president and Congress over the control of the war power - congress has
power to declare war, while president is commander in chief
- Uncertain as to what actually constitutes a declaration of war
Hamdi v. Rumsfeld - question of whether the US could detain a citizen on US soil as an
“enemy combatant”
- No explicit congressional authorization is required, because the Executive
possesses plenary authority to detain pursuant to Article II of the Constitution
- Government asserts that Hamdi was (originally born in US) was a member of the
Taliban, and has been detained in the US after doing work in Afghanistan
- Government contends that because he was an “enemy combatant” they could
hold him indefinitely without formal charges or proceedings until it determined
that access to counsel or further process was warranted
- Court rejects the government’s assertion that separation of powers mandate a
heavily circumscribed role for the courts in such circumstances - position that the
courts must forgo any examination of the individual case and focus exclusively on
the legality of the broader detention scheme cannot be mandated by any
reasonable view of separation of powers, as this approach serves only to condense
power into a single branch of government
- State of war is not a blank check for the president when it comes to the rights of
the nation’s citizens
- Hamdi has not received proper process under the due process clause
Scalia Dissent - Where the government accuses a citizen of waging war against it, our
constitutional tradition has been to prosecute them for treason or another federal crime
Thomas Dissent - Executive branch has determined that Hamdi is an enemy combatant
and should be detained, falls squarely within the federal government’s war powers, and
we lack the expertise and capacity to second guess that decision
B. Administrative Agencies, The President and Congress
Appointment and Removal Power
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Article 2 §2 provides that president shall nominate, appoint ambassadors, other
public ministers, supreme court justices, etc.
Congress alone may vest the appointment of such inferior officers as they think
proper, in the president alone - Who are inferior officers?
Majority in Morrison largely avoided this functionalist/formalist dispute by relying
heavily on the text of article II, expressly allowing Congress to empower the federal
courts to appoint inferior officers → once court concluded that independent counsel
was an inferior officer, it saw no problem with the appointment being vested in the
lower federal courts
Removal Power
- No provision of the COnstitution concerning president’s authority to remove
executive officials - principle from the case law generally says president may
remove executive officials unless removal is limited by statute
- Congress may limit removal both if it is an office where independence from the
president is desirable
Morrison v. Olson - Title VI of the Ethics in Government Act allows for the appointment
of an “independent counsel” to investigate and if necessary prosecute high-ranking
government officials for violations of federal law
- If attorney general receives information he believes is sufficient to constitute an
investigation of an official he must perform a preliminary investigation, and if
there are grounds to believe that that official did violate federal law, independent
counsel is appointed
- Independent counsel can be removed from office by the attorney general and only
for good cause - otherwise must be believed that the investigation has been
substantially completed
- Court determines that the independent counsel in this case is an inferior officer
because: they are subject to removal by the AG, empowered to perform only
certain, limited duties, office is limited in jurisdiction, office is limited in tenure independent counsel is appointed only to accomplish a single task
- Appellees argue that even if it is an inferior officer, Congress cannot place the
power to appoint such an officer outside the Executive Branch - contend that the
clause does not contemplate congressional authorization of “interbranch
appointments”
- Separation of powers argument - two issues: 1. Whether the provision of the act
restricting the AG’s power to remove the independent counsel to only those
instances in which he can show good cause, impermissibly interferes with the
president’s exercise of his constitutionally appointed functions 2. Whether the act
violates separation of powers by reducing the president’s ability to control the
prosecutorial powers wielded by the independent counsel
-
-
-
-
Do not see how the president’s need to control the exercise of that discretion is so
central to the functioning of the Executive Branch as to require that the counsel
be terminable at will by the president
Because the independent counsel may be terminated for “good cause” the
executive, through the AG, retains ample authority to assure that the counsel is
competently performing his or her statutory responsibilities
Conclude that it does not violate the appointments clause for Congress to vest the
appointment of independent counsel in the special division; that these powers do
not violate article III and that the Act does not violate the separation-of-powers
principle by impermissibly interfering with the functions of the executive branch
Decision of the court of appeals is therefore, reversed
Scalia Dissent
- Concept of a government of separate and coordinate powers no longer has
meaning - DOOM
- “Executive power shall be vested in a POTUS” does not mean some of the
executive power but all of it
- Court places bright line rule with an imprecise balancing test for determining
appropriate distribution of power within executive
- Act divests president of substantial control over prosecutorial functions of the
independent counsel and upsets the balance of power among branches of
government - term “inferior” at the time of the constitutional convention meant
subordinate, and the independent counsel is subordinate to no one - sounds like
Justice black defining the executive - would probably say that impeachment and
elections should be the only check on the president
Legislative Authority, Delegation, and the Administrative State
§3.11.1 The Nondelegation Doctrine and Its Demise - Rise of the Administrative State
- Only in the last century that Congress has routinely delegated its legislative power to executive
agencies - began with creation of the ICC in 1887, began new era for federal government: creation
of agencies with broad powers - virtually all possess rule-making power an drools have the force
of law
- Do not possess only legislative power, also have the executive power to enforce the regulations
they have promulgated and the judicial power to adjudicate violations of their rules - combination
of functions within a single agency seems in conflict with separation of powers
Nondelegation Doctrine - one solution - states that congress may not delegate its legislative power to
administrative agencies, forces politically accountable congress to make policy choices rather than leave it
to unelected officials - in the 80 years since Schecter, not a single federal law has been declared
impermissible
- Reflects judgment that broad delegations are necessary in the complex modern world and that the
judiciary is ill equipped to draw meaningful lines
-
-
Scalia has urged a resurrection of the nondelegation doctrine - normatively, court’s refusal to
enforce a nondelegation doctrine can be criticized as undermining government accountability as
political decisions are made by unelected administrative officials and as undermining the basic
philosophy of separation of powers embodied in the constitution
Conversely, broad delegations can be deemed essential in the modern world requiring technical
and detailed regulations that probably exceed scope and ability of congress
Legislative Veto - Declared unconstitutional in INS v. Chadha, was initially intended as a check on other
administrative agencies, where Congress included in statute provisions authorizing Congress or one of its
houses or committees to overturn an agency’s action by doing something less than adopting a new law
- Supreme court declared this to be unconstitutional - Burger’s opinion is a syllogism, says
Congress may legislate only if there is bicameralism, passage by both the house and Senate, and
presentment, giving the bill to the president to sign or veto - cites federalist papers, says the act is
essentially legislative in purpose and effect
- White’s dissent argues the need for it as a check on legislative power, although veto was not
contemplated by the framers of the constitution - burger’s opinion highly formalistic, whites was
more functional
INS v. Chadha - East Indian born in Kenya with British passport, lawfully admitted to
US, INS ordered cause for why he should not be deported - conceded that he had
overstayed visa, files application for suspension of deportation - immigration judge
granted because CHadha hed met all requirements, and it would be “extreme hardship”
- Representative Eilberg introduced resolution opposing “granting of permanent
residence to six aliens” including chadha - act was not submitted to senate or presented
to president
- Burger - Not every action taken by either house is subject to bicameralism and
presentment - whether actions by either house are an exercise of legislative power
depends on “whether they contain matter which is properly to be regarded as
legislative in its character and effect”
- Examination here shows that the act was legislated in purpose and effect, altered
legal rights, duties and relations of persons….When the AG performs his duties,
he is not exercising “legislative” power - he is acting within his capacity of the
INS, and his actions are subject to check by the terms of the legislation that
authorized it
- This one-house veto is clearly legislative in both character and effect and is not so
checked
- Congress originally made the choice to delegate to the attorney general, the
authority to allow deportable aliens to remain in this country in certain
circumstances - can’t take it back just because they disagree in this case → must be
altered or revoked by bicameral passage
White - Don’t regard the constitution as a blueprint, not about lines, about checks and
balances
-
Legislative vetoes are necessary tools in passage of legislation in a modern
government - absence of a constitutional provision providing for a legislative veto
should not be dispositive, Constitution is flexible in addressing modern
circumstances - Constitution does not permit Congress to delegate legislative
power to the executive without fulfilling presentment and bicameralism concerns
- elements need not be always met in all legislative actions
IV. Individual Rights: Liberty and Due Process
The Bill of Rights and Techniques of Constitutional Interpretation
Originalism v. Nonoriginalism
- Originalism - view that “judges deciding constitutional issues should confine themselves to
enforcing some norms that are stated or clearly implicit in the written constitution
1. Argue that the very nature of interpreting a document requires that its meaning be limited to its
specific text and its framers’ intentions
2. Second, more commonly, argue that their approach is desirable to constrain power of unelected
judges in a democratic society
- Nonoriginalism - view that courts should go beyond that set of references and enforce norms that
cannot be discovered within the four corners of the document
1. Maintain that it is desirable to have the Constitution evolve by interpretation and not only by
amendment - cumbersome amendment process makes it likely few amendments will be added
- Claim that nonoriginalist view is necessary if COngress is to meet changing standards of modern
society
2. There is not an unambiguous, knowable framers’ intent that can be found to resolve
constitutional questions
3. Some nonoriginalists argue that non originalism is preferable because it is the approach intended
by the framers
Levels of Scrutiny Defined
Minimal Level of Review - the “rational basis test” - all laws changed under due process clause or equal
protection clause must meet at least rational basis review - law will be upheld if rationally related to
legitimate government purpose - extremely deferential to government
Middle Tier of Review - “intermediate scrutiny” - law will be upheld if it is substantially related to an
important government purpose - purpose must be more than a legitimate goal, must be “important” government has the burden of proof
Most intensive type is Strict Scrutiny - law will be upheld if it is necessary to achieve a compelling
government purpose - court must regard the government’s purpose as vital, as “compelling” - law must be
shown to be “necessary” as a means to accomplishing the end - requires proof that the law is the least
restrictive or least discriminatory alternative - government has burden of proof
- Used in discrimination based on race or natoinla origin, generally for discrimination against
aliens and interference with fundamental rights
Olmstead v. US - Petitioners convicted of violating prohibition laws, evidence used was
evidence obtained from phone conversations, government wire-tapping led to the
contents of these phone conversations being entered into evidence, petitioners were
unaware - argue violation of fourth amendment
Holding:
- No. Actual language of Weeks states that the taking of papers and letters is a
violation of the fourth - amendment says nothing about telegraph or telephone
messages and therefore does not forbid
Brandeis Dissent - Of course phone messages should constitute violation of the fourth
amendment - cites justice Marshall in McCulloch - never forget it’s a constitution we are
expounding
- Rule is the protection of a man’s right to be LEFT ALONE
Death Penalty
Blackmun Dissent - Death penalty experiment has failed - continues to be “fraught with arbitrariness,
discrimination and mistake” - tried to develop rules to make it increasingly more fair - court continues to
feel that the desired level of fairness achieved in each case
Scalia - fifth amendment “depriving of life, liberty or property” means death penalty does not fall under
cruel and unusual punishment - death penalty has been narrowed without benefit of any textual or
historical support
District of Columbia v. Heller - Scalia - 2nd amendment explicitly mentions “right of the
people” same way it does in the first and fourth amendments, refers to individual rights
not collective rights - applies to weapons that were not specifically designed for military
use, uses rationale from armstead - bear means to carry, but in the context of arms it
connotes carrying for purposes of confrontation, concludes that this was the meaning it
had in the 18th century
- States must be free to regulate who can possess firearms based on certain safety
concerns, however, if heller does not fall within those categories, the DoC’s
prohibition is unconstitutional
Stevens, Souter, Ginsburg, Breyer Dissent - Question is if second amendment, in
addition to a militia, protects the right to possess and use guns for nonmilitary purposes
“A well regulated militia, being necessary to the security of a free state” - shows that
purpose of second amendment is to preserve the militia, which is necessary to the
security of a free state, and recognizes that it must be “well regulated” - cites marbury cannot be presumed that any clause in the constitution is intended to be without effect
“The Right of the People” - addresses Scalia’s arguments of “the people” - discusses how
the difference would have been the same as in the first and fourth amendments, but
court limits it to law-abiding citizens - whereas “the people” in the first and fourth
relates to all people - words here refer back to object announced in the amendment’s
preamble
United States v. Carolene Products
Footnote 4 - construct for when the courts are not going to defer to the majority - court can tell the whole
country what to do, most of the time courts will bend to the majority
- If what is being restricted by legislation is a fundamental right (deeply rooted in the nation’s
history and tradition) or is discrmination, strict scrutiny will be used to impose a heavy burden on
those provisions that disrupt the rights of certain people
- Another special job is to make sure everyone has access to the political process
DUE PROCESS CLAUSES - Fifth and Fourteenth Amendments
Distinction Between Procedural and Substantive Due Process
- Procedural due process refers to the procedures that the government must follow before it
deprives a person of life, liberty or property - concern what kind of notice and what form of
hearing government must provide
- Substantive due process asks whether the government has an adequate reason for taking these
things away - need sufficient justification, which depends much on the level of scrutiny used
- It is possible to distinguish procedural and substantive due process based on the remedy sought if plaintiff is looking to have a government action declared unconstitutional as violating a
constitutional right, substantive due process is involved - but when a group is seeking to have a
government action declared unconstitutional because of the lack of adequate safeguards,
procedural
Substantive Due Process - criticisms - cannot be separated from attacks on how the Supreme Court has used
the doctrine over the course of American history - historically used to protect economic liberties and freedom
of contract -now used to protect rights of privacy and personal autonomy → supporters say that it uses the due
process clause to protect rights and only allows interference if there is sufficient justification
Procedural Due Process - Three Questions:
(1) Has there been a deprivation
(2) Of life, liberty or property
(3) Without due process of law?
Rights-Privileges Distinction - classic articulation was in the ruling of Oliver W. Holmes that government
did not have to provide due process before firing a police officer for his political activities: “petitioner may
have a constitutional right to talk politics, no constitutional right to be a policeman” under this view,
government was not required to provide due process if a person was fired from a government job, had
government benefits terminated or had a license revoked - privileges not rights
Deprivations of “Property” - primary issue is defining property, tried in Roth, defined property not based
on the importance of the job to the individual, but rather on the expectation of continued employment - in
sume, there is a property interest requiring due process if there is an entitlement - 2 possible alternative
ways of defining when there is entitlement; each has some support in the case law, though the latter has
been favored by the supreme court
- Either define entitlement based on the importance of the interest to individual’s life OR define it
based on reasonable expectation to continued receipt of a benefit
What Procedures are required? - mullane v. Central Hanover establishes notice and
opportunity for hearing appropriate to the nature of the case
- Mathews v. Eldridge - court articulated a balancing test for deciding what
procedures are required when there has been a deprivation. Three factors: 1.
Private interest that will be affected. 2. Risk of erroneous deprivation and 3.
Government’s interest.
The Privileges and Immunities Clauses
Slaughter-House Cases - Act intended to remove noxious slaughterhouses from the
more densely populated part of the city - does this abridge the privileges and immunities
of citizens of the United States?
- No. Court gives lengthy history of where the thirteenth, fourteenth and fifteenth
amendments come from - says that these laws apply only only for protection of
black Americans
- Says that fourteenth amendment declares persons may be citizens of the United
states without regard to their citizenship of a particular state
Saenz v. Roe - Statute limiting maximum welfare benefits of California to newly arrived
residents - limits the amount payable to a family that has resided for less than 12
months - should newly arrived citizens enjoy the same benefits as other citizens of the
same state?
- Right to travel is firmly embedded in our jurisprudence - privileges and
immunities clause protects the right to travel by allowing citizens to move freely
between states, securing right to equal treatment in alls tates when visiting, and
securing the rights of new citizens to be treated the same as long-term citizens
living in the state
The Fourteenth Amendment: Incorporation and “Substantive Due Process”
Incorporation of Bill of Rights into the Due Process Clause of the Fourteenth Amendment
- Application could not be through the privileges or immunities clause because of Slaughter-House
cases
- Debate centered on three issues: 1. Over history, whether framers intended for the fourteenth
amendment to apply the bill of rights to the states 2. Incorporation debate was over federalism 3.
Role of the judiciary
Current Law as to What’s Incorporated - Supreme Court never endorsed total incorporationist approach did find almost all provisions to be incorporated though
- Court has articulated varying tests for deciding whether a provision of the bill of rights is
incorporated - question is whether a right is among the fundamental principles of liberty and
justice which lie at the base of our civil and political institutions, whether it is basic in our system
of jurisprudence, and whether it is a fundamental right essential to a fair trial
Duncan v. Louisiana - dispute over whether appellant battered some white guy, trial
judge found Duncan had committed simple battery - Duncan argued he was not given
6th amendment right to trial by jury - is the right to a jury trial among those
fundamental principles of liberty and justice…?
Yes. Sixth Amendment right to a jury trial applies to state court proceedings through the
fourteenth amendment.
McDonald v. Chicago - New Chicago law prohibits similar things to Heller, Chicago
argues that their laws are constitutional because the second amendment has no
application - is the second amendment right to keep and bear arms incorporated in the
concept of due process? - must decide whether the right is deeply rooted in the nation’s
history
- Yes. Second amendment applies. Bill of rights guarantee applies to the states if it
is fundamental to the nation’s scheme of ordered liberty or deeply rooted in the
nation’s history. Guns are?? Very broad.
Stevens Dissent - Court asks wrong question, question is whether the constitution guarantees individuals
a fundamental right enforceable against the states to possess a functional personal firearm, different and
more difficult inquiry than asking if fourteenth amendment incorporates - rigid historical test is not
appropriate in this case - cases are often about whether the guarantee in question was “fundamental in the
context of the criminal processes maintained by the American states” - firearms have a fundamentally
ambivalent relationship to liberty - can be used for hunting and self-defense, also for crime
Economic Substantive Due Process - Supreme Court rejected first attempts to use due process
clause to protect economic rights from government interference - Murray’s lessee and Slaughter House
- Under the pressure of social discontent because of low wages, bad working conditions and
monopolies, legislators had begun to act in the 1870s and 1880s - corporations’ lawyers had been
pressing the couts to protect more vigilantly the rights of property against legislative regulation
Lochner v. NY - NY statute provided no employee shall “work in a bakery more than 50
hours in any one week, or more than 10 in one day” - Peckham says that this interferes
with the right of contract between the employer and the employees - part of the liberty
protected under the fourteenth amendment - right to purchase or sell labor is part of
that liberty - a state may not regulate the working hours mutually agreed upon by
employers and employees as this violates their fourteenth amendment right to contract
freely under the Due Process Clause - substantive right to contract
Holmes Dissent - Settled by various decisions of this court that state constitutions and state laws may
regulate life in many ways which we as legislators might think as injudicious or if you like as tyrannical as
this… interfere with the liberty to contract by states - purpose of the US Constitution is not to require
states to exercise their powers uniformly, but to instead give them the power to make their own judgments
about what laws are best for their individual citizens - FEDERALISM
Williamson v. Lee Optical - Oklahoma Statute that prohibited an optician to fit or
duplicate lenses without a prescription from an optometrist or an ophthalmologist federal district court had upheld, saying it failed the rational basis test because a
prescription was unnecessary if a person broke a pair of glasses; optician could measure
the power of the lenses and duplicate them without a new prescription - may state law
prohibit the fitting of lenses without an optician without prescriptive authority from a
licensed optometrist without violating the fourteenth amendment?
- “Oklahoma law may exact a needless, wasteful requirement in many cases. But it
is for the legislature, not the courts, to balance the advantages and disadvantages
of the new requirement” - more federalism, Williamson shows that so long as the
court can conceive some legitimate purpose and so long as that law is reasonable,
the law will be upheld - OVERINCLUSIVE
- State may regulate a business if its legislature determines there is a particular
health and safety problem at hand and that the regulation in question is a
rational way to correct the problem
Substantive Due Process and Health Measures
Jacobson v. Massachusetts - board of health for Cambridge imposes a vaccine mandate
for smallpox considering how prevalent it had become - mandate that all inhabitants be
vaccinated or revaccinated, Jacobson said no, argued that this was in derogation of his
14th amendment rights - was any right given or secured by the constitution invaded by
the statute?
No. Court ignores privileges and immunities clause because the slaughter-house cases
have essentially foreclosed them.
- Substantive because he’s not arguing about procedure he’s due, just saying that
government has no business infringing upon liberty
- State has the authority to enact reasonable laws under its police powers to protect
the public health and safety of its citizens
- Liberties that are afforded to citizens in by the Constitution may be restricted
in certain situations - ex: military draft → would extend to public health crisis
Griswold v. Connecticut - Griswold gave information, instruction and medical advice to
married persons and means of preventing conception - statute provided that “any
person who uses any drug, medicinal article or instrument for the purpose of preventing
conception shall be fined not less than fifty dollars imprisoned not less than sixty days
nore more than one year” - appellants were found guilty as accessories fined $100 each
and claim that the accessory statute as so applied violated the Fourteenth Amendment case concerns a relationship with zone of privacy created by several constitutional
guarantees - does the bill of rights contain an implied right of privacy permitting the use
of contraceptives by married persons?
-
-
-
Yes. implied right of privacy exists within the bill of rights, prohibiting a state
from preventing married couples from using contraception. Cites NAACP v.
Alabama - “freedom to associate and privacy in one’s associations” - freedom of
association was a peripheral first amendment right
Law cannot stand in light of the principle that a “governmental purpose to
control or prevent activities constitutionally subject to state regulation may not
be achieved by means which sweep unnecessarily broadly and thereby invade the
area of protected freedoms”
Deal with a right of privacy older than the Bill of Rights - Marriage is a coming
together for better or for worse, hopefully enduring, and intimate to the degree of
being scared
Fundamental Rights
1. Is there a fundamental right?
- Government usually will be able to prevail only if it meets strict scrutiny - many theories for
deciding what is a fundamental right, typically use history to determine whether it is
2. Is the right infringed? - If its prohibited then obviously, but is it infringed if it burdens the
exercise of a fundamental right - argue
3. Is there sufficient justification for the government’s infringement of a right? If a right is deemed
fundamental, government must present a compelling interest to justify an infringement
(alternatively if not fundamental, only legitimate purpose required)
4. Is the means sufficiently related to the purpose? - Government must show that the law is
necessary to achieve the objective
Roe v. Wade - texas statutes made it a crime to “procure an abortion” or to attempt one
except with respect to “an abortion procured or attempted by medical advice for the
purpose of saving the life of the mother” - appellant says they improperly invade a right
possessed by women to choose to terminate the pregnancy 0 right is in the concept of
personal “liberty” embodied in the fourteenth amendment’s due process clause, or in
personal marital, familial or sexual privacy - Does the constitutional right to privacy
protect a woman’s right to choose to have an abortion?
Yes. The Constitutional right to privacy does protect this right.
- Court has recognized a right of personal privacy, or a guarantee of certain areas
or zones of privacy, does exist under the constitution
- Court or individual justices have found the roots of that right in the first, fourth
and fifth amendments - penumbras of the Bill of Rights, Ninth Amendment, and
Griswold
- Court’s decisions recognizing a right of privacy also acknowledge that some state
regulation in areas protected by that right is appropriate - a state may properly
assert important interests in safeguarding health - privacy right involved,
therefore, cannot be said to be absolute
-
Abortions may be regulated by a state after the first trimester and may be
completely prohibited after the point of “viability” of a fetus unless necessary to
preserve the health of the mother
Planned Parenthood v. Casey - Pennsylvania abortion act - requires that a woman
seeking an abortion give her informed consent prior to the procedure - specifies that she
be provided with certain information at least 24 hours before the abortion is performed
- requires informed consent of one of her parents, married woman must sign a
statement indicating she has notified her husband - are these measures
unconstitutional?
No. Holding of Roe v. Wade said (1) woman has the right to choose without undue
interference (2) state may restrict abortions after fetal viability as long as it passes a law
that exempts pregnancies that endanger the woman’s life or health (3) state has a
legitimate interest from the outset of the pregnancy in protecting health of the woman
and life of the fetus
- Undue burden test: a state regulation places an undue burden on a woman’s right
to an abortion and is invalid if its purpose or effect is to place a substantial
obstacle in the path of a woman seeking an abortion before fetus attains viability
- court holds these would not be undue burdens
Maher v. Roe - Connecticut Welfare Department passed a regulation limiting state
medicaid benefits for first trimester abortions to those that are “medically necessary” plaintiff had been denied funding for an abortion under the regulation, brought suit
against Maher on the grounds that this violated her fundamental right to an abortion
under the Constitution and her right to equal protection of the laws - is a state law
limiting government funding for abortions and not childbirth for indigent women
unconstitutional?
No. Indigent women denied abortion funding do not constitute a suspect class. Roe does
not create an unlimited, unqualified right to an abortion; merely protects a woman from
unduly burdensome interference with her freedom to decide when to terminate her
pregnancy.
Dissent - Connecticut’s law constitutes a restriction on the ability of indigent women to obtain abortions.
A lack of funding for one option results in a lack of choice that forces indigent women to choose to
continue with their pregnancies.
Gonzales v. Carhart - Partial-Birth Abortion Ban Act of 2003 - proscribes a particular
manner of ending fetal life, most abortions do not take place in this trimester, abortion
procedure was the impetus for numerous bans on “partial-birth abortion” this is a
completely intact D and E - may congress ban a specific type of partial-birth abortion
provided its restrictions on the practice are narrow and clear and the ban does not
constitute an undue burden on a woman’s right to an abortion?
Yes. Act does not on its face impose a substantial obstacle. Restrictions are narrow and
clear and ban does not constitute an undue burden on a woman’s right to choose.
- Act proscribes a method of abortion in which the fetus is killed just inches before
completion of the birth process…act expresses respect for the dignity of human
life - bond between mother and child, this decision requires a painful moral
decision
- In a decision so fraught with emotional consequence some doctors may prefer not
to disclose precise details of the means that will be used…confining themselves to
the required statement of the risks the procedure entails - likely the case with the
abortion procedures here
Ginsburg Dissent - Decision tolerates, applauds, federal intervention to ban nationwide a procedure found
necessary and proper in certain cases by the american college of obstetricians and gynecologists - blurs
the line between previability and postviability abortions - court blesses a prohibition with no exception
safeguarding a woman’s health, upholds an act that surely would not survive under the close scrutiny that
previously attended state-decreed limitations on a woman’s reproductive choices
June Medical Services LLC v. Gee - Act 620 required any doctor who performs abortions
to hold “active admitting privileges at a hospital that is located not further than thirty
miles from the location at which the abortion is performed or induced and that provides
obstetrical or gynelogical health care services”
- Court held that there was not a very strong connection between the admitting
privileges law and health
- State argues that the record does not show that Act 620 will burden every woman
in Louisiana - court says while true, a state’s abortion-related law is
unconstitutional on its face if “it will operate as a substantial obstacle to a
woman’s choice to undergo an abortion” in “a large fraction of the cases in which
it is relevant”
Other Privacy Interests - Sex and Marriage Equality
Bowers v. Hardwick - respondent charged with violating Georgia statute prohibiting
sodomy - challenges constitutionality of the statute insofar as it criminalizes consensual
sodomy - whether the Federal Constitution Confers a fundamental right upon
homosexuals to engage in sodomy
Holding: No. Only fundamental liberties that are implicit in the concept of ordered
liberty or deeply rooted in the nation’s history and tradition may be considered
fundamental constitutional rights deserving of heightened protection.
- We think it evident that none of the rights announced in those cases (pierce,
meyer, griswold, and roe) bears any resemblance to the claimed constitutional
right of homosexuals to engage in acts of sodomy that is asserted in this case - no
connection between family, marriage, procreation, etc.
- Proscriptions against it have ancient roots - sodomy was a criminal offense at
common law and was forbidden by the original 13 states
Lawrence v. Texas - Officers enter an apartment where they found two gay men having
sex - charged under statute that said a person cannot commit deviate sexual intercourse
with another individual of the same sex - Whether the petitioners were free to engage in
private conduct under the Due Process Clause of the Fourteenth Amendment
Holding: Yes. Reversed Bowers v. Hardwick. Says penalties of Bowers have more farreaching consequences, touching upon the most private human conduct in the most
private of places.
- “History and tradition are the starting point but not in all cases the ending point
of the substantive due process inquiry”
- Casey decision confirmed that our laws and tradition afford constitutional
protection to personal decisions relating to marriage, procreation, contraception,
family relationships, child rearing and education “these matters, involving the
most intimate and personal choices a person may make in a lifetime, choices
central to personal dignity and autonomy, are central to the liberty protected by
the fourteenth amendment”
- Romer v. Evans - court struck down class-based legislation directed at
homosexuals as a violation of the Equal Protection Clause - court concluded that
the provision was “born of animosity toward the class of persons affected, further
that it had no rational relation to a legitimate governmental purpose”
Rule: Equality of treatment and due process right to demand respect for conduct
protected by the substantive guarantee of liberty are linked in important respects, and a
decision on the latter point advances both interests - if protected conduct is made
criminal and the law which does so remains unexamined for its substantive validity, its
stigma might remain even if it were not enforceable as drawn for equal protection
reasons - Due Process Clause includes right to liberty in individual decisions concerning
sex
Obergefell v. Hodges - Obergefell and Arthur wanted to consummate their love in
marriage before Arthur died of ALS - traveled from Ohio to Maryland, where it was legal
- Ohio law however does not permit Obergefell to be listed as the surviving spouse on
Arthur’s death certificate - brought suit to be shown as surviving spouse
Holding: Right to personal choice regarding marriage is inherent in the concept of
individual autonomy. Like choices concerning contraception, family, relationships,
procreation, and childrearing - decisions concerning marriage are among the most
intimate that an individual can make
- “Nature of marriage is that, through its enduring bond, two persons together can
find other freedoms, such as expression, intimacy, and spirituality. This is true
for all persons, whatever their sexual orientation. There is dignity in the bond
between two men or two women who seek to marry and in their autonomy to
-
make such profound choices” - right to marry is fundamental because it supports
a two-person union unlike any other in its importance to the committed
individuals
Right to marry also protects children and families and is a keystone of our social
order
Provides constitutional protection for Family Autonomy - first recognized right to marry in Loving v.
Virginia - declared antimiscegenation statute unconstitutional
Court concluded no difference between same-sex and opposite-sex couples when it comes to the
importance of marriage for couples, for their children, and for society - recognized that traditionlaly
marriage was between opposite-sex, but said that a tradition of discrimination could not argument
- Primary argument by the states was that the prohibition was based on procreation - court held
that same-sex couples will still procreate regardless
V. Equality and The Constitution
Equal Protection Methodology: Rational Basis Review - always the default test
unless you have a suspect classification under footnote 12
- Why are they telling those people that they can, but I can’t? Nature of the equal
protection claim
REA v. New York - Law banning advertising businesses on vehicles used solely for
advertising, business were allowed to advertise on vehicles which had another purpose
connected with the business - Appellant is a nationwide express business that sells the
space on its trucks for advertising - advertising is for the most part unconnected with its
business - does the regulation violate the equal protection clause
Holding: No. Regulation draws line between advertisements of products sold by owner
of the truck and general ads - argued that unequal treatment based on this distinction is
not justified by the aim and purpose of the distinction.
- Local authorities may have concluded that those advertising on their own wares
do not present the same traffic problem in view of the nature or extent of the
advertising which they use - court cannot say this judgment is not an allowable
one - no requirement of equal protection that all evils of the same genus be
eradicated or none at all
- State law that is underinclusive does not necessarily violate the Equal Protection
Clause because a state may rationally decide to address a public problem in
phases
Legitimate goal? (END) - preventing people from being distracted while driving
Over or under-inclusive (MEANS to that END)
Williamson v. Lee Optical - see above - Although Oklahoma law might be arbitrary,
wasteful and overinclusive in many cases - absolutely necessary in other cases where
directions from a prescription are required for fitting glasses
New York City Transit Auth. v. Beazer - Transit authority methadone policy. Is this
policy legal under the equal protection clause? Respondents have not been arguing against
the special rule for narcotics - argue that methadone users should not be covered by that rule
→ that this rule is too OVERINCLUSIVE
Holding: Any special rule of classification that may be adopted is less likely to be
precise, will be more costly and will still discriminate against someone. So fuck it
everyone’s out.
- State regulation that is over-inclusive does not violate the Equal Protection
Clause if it is rationally related to a legitimate state purpose
City of cleburne - CLC purchased home intended to become a home for the mentally
retarded, city said under zoning regulations they would need a special use permit
because they had determined that the proposed group should be classified as a “hospital
for the feebleminded” - council voted 3 to 1 to deny special use permit - CLC filed suit
saying they were discriminating against the mentally retarded - issue - is this a violation
of the equal protection clause, and did this require intermediate scrutiny
Holding: Mentally retarded are not a quasi-suspect class and not subject to intermediate
scrutiny - rational basis review is appropriate.
- Doubtless there have been and will continue to be instances of discrimination
against the retarded that are in fact invidious - appropriate method of reaching
such instances is not to create a new quasi-suspect classification and subject all
governmental action based on that classification to more searching evaluation
Factors: 1. Is the class 2. 3. Is the class politically powerless? Mentally retarded are not, as they have been
able to attract the attention of lawmakers to provide for their rights 4.
-
Refsual to recognize the retarded as a quasi-suspect class does not leave them
entirely unprotected - legislation that distinguishes between the two must be
rationally related to a legitimate governmental purpose - standard affords
government the latitude necessary both to pursue policies designed to assist the
retarded in realizing their full potential,and to freely and efficiently engage in
activities that burden the retarded in what is essentially an incidental manner
Romer v. Evans - Amendment 2 allows discrimination based on sexual orientation basically says that LGBTQ+ individuals have no protected status - should LGBTQ+
individuals be considered a protected class?
Holding: Amendment withdraws specific legal protection from the injuries caused by
discrimination and forbids reinstatement of these laws and policies.
- Cannot accept the view that Amendment 2’s prohibition on specific legal
protections does no more than deprive homosexuals of specific rights amendment imposes a special disability upon those persons alone
-
Lose protections taken for granted by most people because they already have
them or don’t need them
If a law neither burdens a fundamental right nor targets a suspect class, we will
uphold - not the case here, Amendment 2 imposes a broad undifferentiated
disability on a single group - breadth is so discontinuous that the amendment
seems inexplicable by anything but animus toward the class it affects; lacks
rational relationship to legitimate state interests
Series of Questions - Equal Protection Problem
Q1. What is the Classification?
Q2. What is the appropriate level of scrutiny? certain suspect classifications like race, nationality,
religion, anything a state does that is going to discriminate on that will get strict scrutiny - seen in
Korematsu
Q3. Does the government action meet the level of scrutiny?
Race and the Constitution
State v. Post - Whether slavery can exist within the limits of this state under its present
constitution and laws
- 1804 - NJ adopted legislation of a gradual plan for abolition, passed an act
declaring that every child born of slave, after the 4th of july that year, should be
free, but remain servant of the owner of the mother till of age - establishes how a
lot of legislation is pointed in the direction of abolishing slavery - have to see
whether it is abolished in the new New Jersey Constitution
- NJ Constitution states that “all men are by nature free and independent and have
certain natural and unalienable rights, among which are those enjoying and
defending life….” - Nevius says this is difficult to comprehend
- “If they had really meant to abolish slavery they would’ve said that” - meaning of
provisions must be interpreted in light of the nature, condition and laws of
society
Dred Scott - Dred Scott (slave) at one point brought to Illinois and resided there for two
years. Later on brought to Louisiana where he starts a family - later he and his family
are sold to John Sandford. Scott brings action in federal court, arguing that his time in
Illinois and Louisiana freed him and his family.
Issues: Can a negro, whose ancestors were imported become a member of the political
community? Whether the class of persons in the plea in abatement compose a portion of
these people, and are constituent members of this sovereignty? They are not, were not
meant to be included under the word of the constitution - at the time it was written they
were subordinate and inferior. Must not confound the rights of citizenship that a state
may confer in its own state with rights to be citizen of the US.
- Essentially Scott and other persons of African descent, slaves or free, are not
citizens of the US and not entitled to Constitutional protections
Reconstruction, Jim Crow, and School Segregation
Plessy v. Ferguson - Supreme Court upheld laws mandating “separate but equal
accommodations,” said that under this standard they do not violate equal protection
- “We cannot say that a law which authorizes or even requires the separation of the
two races in public conveyances is unreasonable, or more obnoxious to the
Fourteenth AMendment than the acts of Congress requiring separate schools for
colored children in the district of Columbia, constitutionality of which does not
seem to have been questioned, or the corresponding acts of state legislatures”
Brown v. Board of Ed. - White schools had one teacher for every 28 pupils; black schools
one teacher for every 47 - white schools were brick and stucco; black schools were
rotting wood, etc. - “Does segregation of children in public schools solely on the basis of
race, even though the physical facilities and other ‘tangible’ factors may be equal,
deprive the children of the minority group of equal educational opportunities”
- “Conclude that in the field of public education the doctrine of ‘separate but equal’
has no place. Separate educational facilities are inherently unequal.”
Brown II - Supreme court remanded the cases to the lower courts to use traditional
equity principles to fashion remedies “to admit to public schools on a racially
nondiscriminatory basis with all deliberate speed the parties to these cases”
De Jure and De Facto Discrimination - De jure segregation is potentially discriminatory segregation
imposed or allowed by government-enacted laws, regulations or accepted policy
- De facto - Legislation does not overtly segregate students by race, but nevertheless school
segregation continued
Strauder v. West Virginia - Black man convicted of homicide by an all white jury, WV
statute limited jury service to “white male persons who are 21 and who are citizens” Whether every citizen has a right to trial by a jury impaneled without discrimination
against his race
Holding: Fourteenth amendment has a common purpose - securing to a race recently
emancipated all the civil rights that the superior race - ick - true spirit and meaning of
the amendments cannot be understood without keep in view the history times when
they were adopted
- Fourteenth Amendment was designed to assure the colored race the enjoyment of
all the civil rights that are enjoyed by white persons
- Fourteenth Amendment prohibits states from enacting laws that deny any of its
citizens equal protection of the law
Korematsu v. US - after attack on Pearl Harbor, Executive order 9066 - Korematsu is
the only case where the court has applied strict scrutiny to a race discrimination case
and still upheld the law
-
-
-
Japanese-Americans were ordered to move to relocation camps in light of the
United States’ involvement in WWII - state laws restricting the rights of persons
based on race subject to strict scrutiny and will only be upheld if they further a
“pressing public necessity”
Objectionable because the government used race alone as the basis for predicting
who was a threat and would remain free - racial classification was enormously
overinclusive
November 10, 1983 - Federal judge overturned Korematsu’s conviction
Loving v. Virginia - Miscegenation statute that made it a crime for a white person to
marry outside the Caucasian race - court declared unconstitutional, expressly
repudiated the state’s argument that the law was permissible because it burdened both
whites and minorities
- “We reject the notion that the mere equal application of a statute concerning
racial classifications is enough to remove the classifications from the Fourteenth
Amendment's proscription of all invidious racial discriminations”
- “There can be no question but that Virginia’s miscegenation statutes rest solely
upon distinctions drawn according to race. The statutes proscribe generally
accepted conduct if engaged in by members of different races…there can be no
doubt that restricting the freedom to marry solely because of racial classifications
violates the central meaning of the Equal Protection Clause”
- A state may not restrict marriages between persons solely on the basis of race
under the Equal Protection and Due Process Clauses of the Fourteenth
Amendment
When Does Heightened Scrutiny Apply?
Washington v. Davis - plaintiff was an African American man who applied for admission
to police department with another african american man - both denied, brought suit
alleging that the department used racially discriminatory practices by administering a
verbal skills test - Court held that a state-sponsored racial classification violate equal
protection provisions in the Fifth Amendment’s Due Process Clause only if it is shown to
have both a disproportionate impact on a particular race and is motivated by invidious
racial discrimination - no one saying black men can’t be police officers - here there is no facial
evidence of discrimination
Purposeful Discrimination may be proved by:
- Smoking gun evidence of overt racism - Hunter v. Underwood
- Inference from facts (Gomillion v. Lightfoot, 28-sided election district)
- Grossly disproportionate enforcement of neutral statute - Yick Wo v. Hopkins
Yick Wo v. Hopkins - Ordinance passed in San Francisco requiring operators of
laundries in buildings not made of brick or stone to apply for a permit to continue
operation - 320 of the laundries were constructed of wood - Yick Wo and 200 other
laundry operators of chinese descent applied for permits, all but one of their requests
were denied - 80/81 similarly situated ones that were not of Chinese descent were
granted permits - rule - facially neutral law applied in a discriminatory manner on the
basis of race or nationality violates the Equal Protection Clause of the Fourteenth
Amendment
McCleskey v. Kemp - McCleskey put on death row, alleging that capital sentencing
process is administered in a racially discriminatory manner in Georgia - cites Baldus
study which uses statistics to show that black on white and black on black crimes have a
higher rate of capital punishment than white on black and white on white crimes
Holding: No. Statistics no good. Study must show that the purposeful discrimination
“had a discriminatory effect” - must prove decisionmakers in his case acted with
discriminatory purpose
- Baldus Study is not in Yick Wo territory. Yick Wo there was actual (smoking gun)
evidence of how the state was treating chinese laundromats, and it was also 100%
of the time
- Here, number of other factors at play bringing about McCleskey’s death
Race-Specific Classifications Designed to Benefit Minorities
Regents of the University of California v. Bakke - UC Davis Med School policy of setting
aside 16 spots for minority students - Powell said strict scrutiny should be used for
affirmative action “racial and ethnic distinctions of any sort are inherently suspect and
call for the most exacting judicial examination” - Powell Concluded set-aside was
unconstitutional, but that it was permissible for race to be used as one factor in
admissions decisions to enhance diversity. - under EPC of the 14th amendment, public
university may not discriminate based on race in its admissions policies, even if doing so
benefits members of minority races
Adarand Constructors, Inc. v. Pena - O’Connor - although the court is adopting strict
scrutiny as the appropriate test for all affirmative action, wanted to “dispel the nation
that strict scrutiny is strict in theory, but fatal in fact” - “when race-based action is
necessary to further a compelling interest, such action is within constitutional
constraints if it satisfies the ‘narrow tailoring’ test” - all racial classifications imposed by
federal, state or local government must be analyzes under strict scrutiny - constitutional
only if they are narrowly tailored to further compelling governmental interests
Affirmative Action, Race, and Higher Education
Grutter v. Bollinger - Law school policy required admissions officers to consider race as
a factor when making admissions decisions so as to improve student body diversity “critical mass” Court ruled that colleges and universities have a compelling interest in
creating a diverse student body and that they may use race as one factor, among many,
to benefit minorities and enhance diversity - All racial classifications “must be analyzed
by a reviewing court under strict scrutiny” - not all are invalidated by it…when racebased action is necessary to further a compelling governmental interest, such action
does not violate the constitutional guarantee of equal protection so long as the narrowtailoring requirement is satisfied
Gratz v. Bollinger - University of Michigan has a point system for its applicants - 150
point scale - up to 110 for academic performance, up to 40 for other nonacademic
factors - applicant received 20 points if they were an underrepresented minority - 100
points or over generally gained admission - court invalidated this program - giving race
20 points has the effect of making the factor of race decisive, individual review is
provided after admissions counselors automatically distribute the points for every
minority applicant - because the University's use of race is not narrowly tailored violates equal protection
Parents Involved in Community Schools v. Seattle School District - school districts
voluntarily adopted assignment plans relying upon race to determine which school
certain children may, classifies children as white or nonwhite - relies upon an individual
student’s race in assigning the student to a particular school, so racial balance at the
school falls within a predetermined range - can public schools assign students to
particular schools solely on the basis of rae in order to achieve racial integration - No.
Compelling interest of remedying the effects of past intentional discrimination
- Clear that the racial classifications are not narrowly tailored to the goal of
achieving the educational and social benefits - in design and operation the plans
are directed only to racial balance, pure and simple, an objective this court has
repeatedly condemned as illegitimate
- Public schools cannot assign students to schools solely on the basis of race for
racial integration - narrowly-tailored, race-conscious objectives to achieve
general diversity in schools is permissible
Heightened Scrutiny and Gender
Gender Classifications
Craig v. Boren - Establishes intermediate scrutiny as the appropriate level of review for
gender classifications - “to withstand constitutional challenge, previous cases establish
that classifications by gender must serve important governmental objectives and must
be substantially related to those objectives” - court had declared unconstitutional an
Oklahoma law that allowed women to buy beer at age 18, but men had to wait till 21 conurt concluded that gender discrimination was not substantially related to the
government interest in traffic safety
TOP TIER → strict scrutiny (race, religion, ethnicity, national origin, SOMETIMES alienage) →
requires → compelling governmental interest → plus → necessary to serve end
MIDDLE TIER → Intermediate scrutiny (classification based on sex, some others, children not born in
wedlock is another) → requires → important interest (craig v. boren, must be the actual purpose, can’t
just make something up) → plus → substantial relationship
DEFAULT → rational basis → requires → legitimate interest → plus → rationally related to end
United States v. Virginia - School for soldiers refusing to allow women soldiers,
overinclusive because they’re allowing no women at all, while some women will still be
able to and will appreciate the adversative method - Supreme Court declared
unconstitutional, Virginia argued that they had created a school for women, Court said
this was insufficient to excuse VMI’s gender discrimination; women stilll were denied an
opportunity available only for men - Ginsburg applied intermediate scrutiny and said
“parties who seek to defend gender-based government action must demonstrate an
exceedingly persuasive justification for that action…burden of justification is demanding
and rests entirely on the state” - gender classifications must be substantially related to
an important government purpose that can be demonstrated by the government
Gender Classifications Benefiting Women
Rostker v. Goldberg - upheld male-only draft registration - court premised its holding
on the fact that women, unlike men are not eligible for combat and that Congress and
the president had evidenced an intent to retain that policy in the future. Court said that
the exclusion of women from combat justifies Congress’s decision to have only men
register for possible constriction - recognized that women could serve in noncombat
roles, but said that “Congress simply did not consider it worth the added burdens of
including women in draft and registration plans…most significantly, COngress
determined that staffing noncombat positions with women would be positively
detrimental to the important goal of military flexibility” - congressional requirement
does not violate the fifth amendment because women cannot statutorily participate in
combat and are not similarly situated as men
Califano v. Webster - Provision in the social security act that calculated benefits for
women in a more advantageous way than was used for men - court upheld, saying that
the difference in the formula wasnot based on stereotypes, but rather the perimssible
goal of “redressing our society’s longstanding disparate treatment of women” court
concluded that using a formula that helped women was constitutional because it
“operated directly to compensate women for past economic discrimination”
VI. Implementing the Fourteenth Amendment
Civil Rights Cases - Consolidation of five cases where plaintiffs alleged a violation of the
Civil Rights Act of 1875 - can Congress pass an act that prohibits discrimination by
individuals? Court held the Act was unconstitutional and adopted a restrictive view as to
the power of Congress to use these provisions to regulate private behavior. Thirteenth
amendment - Court recognized that it applies to private conduct; it prohibits people
from being or owning slaves, not from discriminating. Fourteenth Amendment - only
applies to government action and cannot be used to regulate private behavior, can only
prohibit discrimination by state actors
United States v. Morrison - Constitutional challenge to the civil damages provision of
the VAWA, authorized victims of gender-motivated violence to sue under federal law.
Court held that the law is not constitutional under Congress’s §5 power - “time honored
principle that the Fourteenth Amendment, by its very terms, prohibits only state action”
- Damages provision of VAWA was deemed to exceed the scope of Congress’s §5 powers
because it “is not aimed at proscribing discrimination by officials which the fourteenth
amendment might not itself proscribe; it is directed not at any state actor, but at
individuals who have committed criminal acts motivated by gender bias” - can Congress
create civil remedies for victims of gender-motivated violence under either the
Commerce Clause or Section 5 of the Fourteenth Amendment? No. Gender-motivated
violence by private actors is neither an economic activity, nor a state action
- Does not come under the three categories of activity for commerce under US v.
Lopez - channels of interstate commerce, instrumentalities, and
activities that substantially affect interstate commerce - gendermotivated violence substantially affected interstate commerce,
regulated activity itself must be economic though - gender-motivated
violence is non-economic criminal behavior
- Congress cannot create civil remedies for the conduct of private actors
- Morrison showed us that Congress cannot regulate noneconomic activity no
matter how much it has on interstate commerce - also cannot regulate private
conduct
- §5 - court emphasized that the fourteenth amendment allows congress to regulate
only state action, not private action, civil damages provision in the act is aimed at
private individuals - here the language of the statute was aimed at private
individuals not state actors
City of Boerne v. Flores - Court declared the Religious Freedom Restoration Act
unconstitutional as exceeding the scope of Congress’s §5 powers - Church in Texas was
prevented from constructing a new facility because its building was classified a historic
landmark - Church sued under the Religious Freedom Restoration Act - court held that
Congress under §5 of the FOurteenth Amendment they may not create new rights or
expand the scope of those rights, limited to laws that prevent or remedy violations of
rights recognized by the Supreme Court, and these must be narrowly tailored “proportionate” and “congruent” - to the constitutional violation - Congruence and
Proportionality Test - City of Boerne v. Flores - Must be congruence and proportionality between the
means congress uses and the preventive or remedial ends it hopes to achieve
Nevada Department of Human Resources - Court held that the family leave provision of the FMLA fits
within the scope of Congress’s §5 powers and can be used to sue state governments - FMLA requires that
employers, including government employers, provide their employees with unpaid leave time for family
and medical care- held that the family leave provision is a valid congressional abrogation of state
sovereign immunity - Rehnquist stressed that the “FMLA aims to protect the right to be free from genderbased discrimination in the workplace” - court said that Congress recognized social realities and found
that the absence of family leave policies disadvantaged women in the workplace - although FMLA is
gender neutral the court said that Congress clearly intended the law to prevent gender discrimination
Voting Rights
Shelby County - Voting Rights Act is passed - employed extraordinary measures,
required states to obtain federal permission before enacting any law related to voting drastic departure from basic principles of federalism - §4 of the act applied that
requirement only to some states - equally dramatic departure - requirements are still in
effect 50 years later, despite being unprecedented and scheduled to stop after 5 years by 2004, voter-registration figures were nearly equal between white citizens and black
citizens - court held that a federal law that departs from fundamental principles of
federalism must be justified by current needs - this law had outlived it’s usefulness
Ginsburg - if it’s working why would you change anything, this prevents backsliding
Action v. Inaction
DeShaney v. Winnebago County - Father abusing the child an insane amount, to the
point that the child suffered from brain damage - did the social workers and county
officials' failure to stop such abuse constitute a violation of the child’s liberty interests
under the Due Process Clause of the Fourteenth Amendment?
- Under substantive due process, no affirmative duty of the state to act to protect
individuals from deprivations of their life, liberty, or property by other citizens,
unless those citizens are prisoners held in custody against their will by the state
State v. Private Conduct
Jackson v. Metropolitan Edison Co. - Privately owned and operated electricity company
authorized to deliver electricity to York, Pennsylvania - Jackson misses payments and
service was terminated - claimed that she could not be deprived of electricity without
notice and a hearing before an impartial body - For the purposes of the Fourteenth
Amendment, an action of a private entity will only be treated as state action if there is a
sufficiently close nexus between the state and the challenged action of the private entity
so that the action of the latter may be fairly treated as that of the state itself
Entanglement Doctrine - concludes that the state of Pennsylvania is not sufficiently
connected with respondent’s action in terminating petitioner’s service so as to make
respondent’s conduct in so doing attributable to the state for purposes of the Fourteenth
Amendment, company enjoys at least a partial monopoly and it elected to terminate
service in a manner which the PPUC found permissible
Shelley v. Kraemer - State Coercion as Entanglement - once a court enforces a private
agreement, it becomes state action because the judges enforcing it are paid by the state
Thirty property owners in St. Louis signed and recorded a restrictive covenant, provided
that no races other than Caucasians welcome for the next 50 years - SHelleys (black
family) bought a house without knowledge of the covenant, white property owners in the
subdivision brought suit in circuit court. Court held that state enforcement of a racially
restrictive covenant constitutes state action and is violative of the Equal Protection
Clause - the covenant itself is not, but the court cannot enforce it because this would
make it state action - court is a state actor when it enforces a substantive rule that
violates individual rights under the fourteenth amendment
Equal Protection and the Fundamental Interest in Voting
Kramer v. Union Free School District - New York Education Law provided that in
certain New York school Districts residents who were otherwise eligible to vote in state
and federal elections could only vote in the school-district election if they (1) owned or
leased taxable property within the district or (2) were parents of or had custody of
children enrolled in the local public school - Morris Kramer did not, brought suit to say
he should have a vote - does a state statute that denies the right to vote in school-district
elections to some district residents who are otherwise qualified violate the equal
protection clause of the fourteenth amendment? - Yes. Right to vote is fundamental.
Requirements in §2012 are not sufficiently tailored to limiting the franchise to those
“primarily interested” in school affairs - classifications must be tailored so that the
exclusion of appellant and members of his class is necessary to achieve the articulated
state goal
Crawford v. Marion County Election Board - Constitutionality of an Indiana Statute
requiring citizens voting in person on election day, or casting a ballot, to present photo
identification issued by the government - is the requirement of providing voter ID
narrowly tailored to serve the government interest in counting only votes of eligible
voters? - Government has an interest in counting only the votes of eligible voters cannot conclude that the statute imposes “excessively burdensome requirements” on
any class of voters. Facial challenge must fail where the statute has a “‘plainly legitimate
sweep”