CON LAW MAP
Intro:
Marbury – SC’s role of judicial review; con is law, cts. role is to
interpret the law; thus, if statute is in conflict w/ con, cts must
strike it down
- framers’ intent, text, general structure and purpose of con,
and emphasizes that the con has written limits.
McCulloch – con not static; existence of implied fed powers:
nec/prop clause (A1§8) – ends must be legit (an enumerated
power) & means appropriate & plainly adapted to end;
rationally-related test still used today (motive is usu irrelevant)
Dred Scott – used framers’ intent to rule that slaves/ blacks
noncitizens; used 5th A sdp argument to deem Missouri
Compromise uncon.
COMMERCE CLAUSE (A1§8)
Gibbons (1884) – commerce incl all commercial intercourse;
congress can reg all matters (incl intrast) that have a
commercial connection w/ another st; no area of interst
commerce is reserved for st control.
1880-1937 – Court restricts commerce clause
Econ Regulations
- direct logical relationship test (EC Knight, 1895) – only
incidental and indirect relationship b/w manu and interst
commerce; thus, fed can’t reg manu.
- subst econ effects test (Shreveport, ‘14) – can reg activities
that have a close & subst effect on interst commerce;
qualitatively subst effects is key; manu vs commerce boundary
still alive.
- stream of commerce test (Holmes, Swift & Co., ‘05) – if
activity is viewed as being ‘in’ commerce or part of the current
of commerce, can be fed regulated.
Police/Moral Regulations
- Lottery case – fed can ban interst shipment of tix since
shipping is interst commerce (and lottery = evil); rationale
extended to prostitution (Hoke) and bad eggs (Hipolite) w/ the
latter upholding fed power to seize items after it arrived at
destination.
- Hammer v. Dagenhart (‘18) – fed can’t prohibit interst
transport of child labor goods; goods not evil although child
labor is; child labor relates to production & is not commerce & is
solely w/ st power
New Deal Barriers (1935-6)
- Schechter Poultry (‘35) – fair comp codes (wage/hr rules) of
NIRA was uncon; effect on interst commerce was too indirect as
D only bought & sold locally.
- Carter Coal (‘36) – EC Knight test; fed max hrs/min wage for
coal industry uncon; must be direct logical connection b/w object
of reg and interst commerce; production has only indirect effect.
Modern Trends (1937 - )
Economic Regulations
- Substantial effect test: Jones & Laughlin (’37) – fed labor
practices reg is con; manu/commerce & direct/ indirect
distinction rejected (EC Knight); labor dispute could burden or
obstruct commerce subst’lly
- Cumulative effect test: Wickard (’42) – high pt of commerce
power; acts which alone would have a min impact on interst
power (i.e., home-grown wheat), but in their aggregate have a
subst econ effect on interst commerce (20% of nat’l wheat mkt
made up of home-consumption wheat) can be reg.
Police Power Regulation
- Darby (’41) – overrules Hammer; fed can ban goods produced
by non-min-wage workers; motive for reg is irrelevant as long
as activity affects com; test: means reasonably adapted to the
attainment of a permitted end.
Civil Rights Legislation
- Heart of Atlanta (’64) – racial discrim in public accoms
burdens interst commerce by impeding interst travel; rational
basis test passes
- Katzenbach v. McClung (’64) – rational basis test passes even
w/o legislative evidence; BBQ got ½ food from interst travel;
cumulative effect applied to BBQ.
Lopez and Limits on Commerce Clause
Lopez (’95) – Gun Free School Act struck down; does not pass
substantial effects test; gun possession is not commercial & no
fed findings that said it affects comm; did not ban guns moved
in interst travel but all guns (statutes must be drafted to fall w/i
A1 powers); slippery slope/federalism worries; dissent: passes
rational basis test; no distinction b/w commercial and noncommercial (education is commercial anyway).
Significance of Lopez:
1.
Ct will take “subst’lly effect test” very seriously –
will evaluate the magnitude on the econ effect
more closely (lot more evidence required)
2.
Ct’s may focus on the quality (not the
magnitude) of what’s being regulated; i.e.,
commercial vs. non-commercial distinction
3.
Ct may begin to judge what is truly nat’l and
what is truly local (but how?)
Summary of Modern View of Commerce Clause
- 3 broad categories which Congress can reg:
1.
Channels of IC – i.e., roads, waterways
2.
Instrumentalities of IC – i.e., trucks
3.
Substantially affecting IC – test w/ bite!
a.
Magnitude of impact is key; if activity
is non-comm, need a strong
connection; few limits for commercial
activities
b.
Less fed deference to rational basis
test
c.
Traditional domain of sts will be left to
them unless the activity reqs a nat’l
solution.
d.
Evidence/findings: much more for local
or non-commercial activities.
10th Amendment & Commerce Clause
Generally applicable fed legislation
Absolutionist/Definitional Approach
- Nat’l League of Cities (’76) – fed min wage/overtime reg for st
and muni workers uncon; fed can’t regulate integral st functions
Political Process Approach
- Garcia (’85) – same reg applied to mass-transit system but
upheld; unless there’s a failure in the political process, Ct should
not kill a fed reg of st functions; Ct should not line-draw b/w
traditional functions and non-traditional – too subjective; st
sovereignty protected by inherent procedural safeguards in
representative govt
Balancing Approach (Blackmun)
- balance the degree to which fed interests are vindicated w/
the degree to which st automony is infringed upon
Plain Statement Rule
- Gregory v. Ashcroft (’91) – st judges are not incl in fed age
discrim statute since Congress did not explicitly mention them; if
fed wants to intrude upon a st’s traditional functions, it must
make it’s intent clear in the statute.
Fed legislation directed at the states
Financial Incentives
- South Dakota v. Dole (’87) – use of spending power to
condition st hiway funds based on drinking age is con; Congress
has authority to impose conditions on fed funds to incentivize sts
to follow nat’l guidelines (that are reasonably related to general
welfare/fed purpose; not too coercive; can’t violate const).
State Govts As Fed Regulators
- NY v. US (’92) – Congress can’t req sts to reg an industry in a
particular manner; can’t directly force the st to enact and
enforce a fed reg program; Congress can reg indivs directly, but
can’t directly regulate sts.
- Printz (’97) – Congress can’t compel st law officials to
perform certain duties (i.e., do background checks); fed can’t
commandeer st officials unless reg is generally applicable or fed
jud superiority being exercised over st cts.
Summary of 10th Amendment & Commerce Power
- fed can pass generally applicable law and if a st is reg as well
as pvt entities, then no 10th A limits.
- fed can’t force st govt to enact legislation or regulate in a
particular way or perform even ministerial functions.
- fed can ‘regulate’ thru incentives/tax & spend powers
- Lopez limits not that strong; Congress still has the last say
- §5 of 14th A can override federalism limits
2.
SUBSTANTIVE DUE PROCESS
3.
- Calder v. Bull (1798) – purpose of govt is to protect natural
rights (i.e., property); ct finds probate law uncon based on
natural law.
- Barron v. Baltimore (1833) – Bill of Rights do not apply to the
sts, only fed govt; any limits on st power can only be found in st
const.
SDP Before 1934 (Economic/Social Regulation)
- Slaughterhouse Cases (1873) – narrow reading of 14A & 13A;
14A applies only to blacks; P/I of 14A refers generally to US
citizens indy of P/I of indiv sts; sts retan power to govern P/I of
their own citizens; 14A interpreted based on its history.
Liberty to Contract and Laissez Faire
- Allegeyer v. LA (’05) – in-st insurance req uncon b/c it
interferes w/ freedom to K and right to live/work; first use of
SDP to strike down a st statute
Lochner Era (’05 – ’37)
- Lochner v. NY (’05) – st law limiting # of baker hrs worked
uncon; deprives baker of his liberty; motive of st was not
health/safety, despite st’s findings; law must have legit
objectives and direct relationship b/w means & legit ends;
redistributing econ/bargaining power is not legit end).
- Muller v. Oregon (’08): 10 hr day for women statute OK;
means reasonably related to legit ends
– Bunting v. Oregon (’17): max hrs. law for both men &
women OK (relied on extensive findings to demonstrate link b/w
means & ends)
- Adair v. US & Coppage v. Kansas: ban on yellow dog Ks are
uncon
- Adkins v. CHOP (’23) – min wage for women uncon as it
violated freedom to K; wages aren’t suff’ly related to the
health/protection of women
- Buck v. Bell (’27) – forced sterilization of imbeciles is con and
doesn’t violate sdp of law; legislature decided this was in the
public interest so we must give it deference.
Decline of the Lochner Era SDP
- Nebbia v. NY (’34) – as long as statute is not arbitrary or
capricious & means selected have rat’l relationship to ends, then
OK; Lochner test but more deference to legislature
- West Coast Hotel (’37) – Adkins overruled; min wage law for
women con; protecting women’s health & redressing econ
exploitation/inferior bargaining power are legit ends; wages
have relationship to these ends
- Carolene Products (’38) – min rational basis test; full
deference to legislature even w/o explicit findings; as long as the
facts don’t preclude rat’lity, con’ality will be presumed;
means/ends test abandoned
- Lee Optical (’55) – full deference to legislature; any rational
basis, even if hypothesized and not the true basis, seems to be
legit.
SDP and Fundamental Rights
- Rochin v. CA (’51) – police broke into home, pumped his
stomach; laws can’t offend fund. trad’s of decency and fairness
- O’Connor v. Donaldson (’75) – π committed for 15 years,
never got treatment; mere intol. or animosity can’t const’lly
justify deprivqtion of personal lib.
- Washington v. Glucksberg (’96) – suicide not a fund. right
Summary of Approach to SDP
- no st econ reg has been struck down on sdp grounds since ‘37
- reg must fall in the very broad police power of st; have a
minimal rational relation to ends (this is presumed); and not be
arbitrary or irrational.
- jury awards given less deference than legislatures; if there is
a gross disproportion, ct will apply a stricter rat’l-basis test, but
will presume rationality as long as procedural protections exists
and there was no bias (TXO (’93))
- Carolene Products F4: Cts should give less deference to
legislature, when a law:
1.
facially conflicts w/ explicit con text
2.
restricts political processes
3.
prejudicial to discrete & insular minorities
- cts will intervene where:
1.
conflict w/ Const. text
exclude means where types of coercion offend
trad. notions of decency
exclude ends where gov. uses public animosity
THE EQUAL PROTECTION CLAUSE
- rat’l rel. (presum of const.) where no susp. class or fund. right
- cts give deference to leg. in defining obj.
- EPC of does not apply to fed. gov., but since Bolling, cts have
read the 5th to include eq. pro. w/ the DPC
- Railway Exp. Agcy v. NY (’49) – leg. prohib. evils of ads on
cars not req. to rid all ads to comport w/ EPC (1 step @ time)
- USDA v. Moreno (’73) – food stamp prog. only for households
(rel’d persons) uncon.; bare Cong’l desire to harm pol. unpop.
group not legit gov’t interest
- US RR Ret. BD v. Fritz (’80) – grandfather clause in dual ben.
stat. ok; cts will not intervene where plausible reasons for Cong.
act (conceivable basis std)
Equal Protection and Race
- Strauder v. W Va (1880) – exclusion of blacks on juries uncon.
(discriminatory purpose)
- Yick Wo v. Hopkins (1886) – city denied laund. permits to 200
Chinese & 1 white; EPC applies to non-US citizens too
(discriminatory application of facially neutral law)
- Plessy v. Fergie (1896) – separate but equal not viol. EPC;
sep. rail carriages was legit because promote order & pub.
peace; soc. equal. not goal of 14th
- Korematsu (’44) – imminent danger of war, compelling need
to prev. spying, & mil. matter justify internment (rigid scrutiny
w/ race laws, but here urgent pub. nec’y satisfied ends)
The Brown Revolution
- Brown I (’54) – sep. schools for black & white uncon; separate
is not equal; badge of inferiority (adduced from expert test’y)
- Bolling v. Sharpe (’54) – sep. schools in DC; uncon. under 5th
A.
- Brown II (’55) – implement Brown w/ all deliberate speed
- Loving v. VA (’67) – miscegenation law uncon; protecting
racial integrity not a permissible st. obj. (freedom of marriage)
- Palmore v. Sidoti (’84) – cannot remove child from custody of
parent b/c of racial considerations (parental rights)
Effect Theory
- Guinn & Beal v. US (’15) – literacy req’ment to vote, but
grandfathered white illiterates; uncon. b/c impact would deprive
blacks right to vote
- Hunter v. Erickson (’69) – law required maj. approval before
fair housing ordinance could be amended; uncon. b/c impact
minorities that needed the ord. by making more diff. to use it
- Griggs v. Duke Power (’71) – emp. test barred most blacks; ct
used 3-part test: 1) there were disc. consequences; 2) emp. test
not related to job capabilities; 3) π’s interest strong; absence of
disc. intent does not justify procedures
- Lau v. Nichols (’74) – 1000 of 2800 Chinese students given
supp. eng. classes; uncon. b/c unavail’ty of eng. class has disc’y
effect
Purpose Theory
- Washington v. Davis (’76) – racially disproportionate impact of
emp. test relevant, but not dispositive in finding const’ty;
invidious qual. of a racially disc’y law must be traced to a racially
disc’y purpose; facially neutral laws use rat. rel. test, not s/s
- Evidence of intent: Arlington Heights (’77) – suburb’s refusal to
grant rezoning const.; official action not uncon. solely b/c results
in rac’ly disproportionate impact; need to show disc’y purpose:
a.
historical background
b.
spec. sequence of events
c.
departures from normal procedures
d.
substantive departures
e.
leg. history
f.
members
burden shifts back to Δ once invidious intent shown
- Mass v. Feeney (’79) – pref. to vets on civ. ser. positions
const.; ask if facially gender-neutral law was passed “because
of” or “in spite of” neg. impact; “because” invalid, “spite of” valid
- Voting schemes: Rogers v. Lodge (’82) – at large elections
dilute black votes; facially neutral, but if operated as purposeful
device to further rac’l disc., then uncon.; use clearly erroneous
std to determine if invidiously motivated
- Hunter v. Underwood (’85) – moral turpitude crimes barring
right to vote uncon.; where racial motivation or racially disc’y
impact is shown, use Arlington standard
- Stats to prove intent: McClesky v. Kemp (’87) – capital
sentencing proc. rac’ly administered; showing of disc. on an
aggregate basis insuff.; must prove no conviction but for race
Summary of Modern Approach
- in abs. of explicit classification (which is s/s), EPC requires:
a.
invidious intent
b.
it can be inferred
c.
it is a matter of fact – clearly erron. std
d.
Δ must prove that would have made same dec.
absent intent – but for test
Benign Classifications and Gerrymandering
- 2 facts for rac’l gerrymandering: 1) rep. done on geographical
basis; 2) certain political outcomes
- Gomillion v. Lightfoot (’60) – square dist. transformed into 28sided dist. uncon; appearances matter; redist. would remove all
but 4 black voters from city, depriving them of municipal vote
- Mobile v. Bolden (’80) – at large voting dist. const’l although
no blacks ever elected; must show more than all white result
- Rogers v. Lodge (’82) – see supra
- Shaw v. Reno (’93) – reapportionment plan resulted in hook
shaped dist. w/ black maj. uncon.; facially irrational distr.
scheme to segregate voters by race uses s/s.; viol.
colorblindness, and reinforces perception that persons from
same race think and vote alike, regardless of other factors
- Miller v. Johnson (’95) – bizarrely shaped dist. is evid. that
race was predominant motivating factor
- Bush v. Vera (’96) – s/s applies w/ showing that race was
predominant factor in districting
Affirmative Action
- Regents of U.C. v. Bakke (’78) – 16 of 100 slots to UC
reserved for min. apps; to justify use of suspect class. must
show: 1) substantial & const’ly permissible purpose; 2) nec. to
accomplish purpose; b/c UC could not show Bakke would not
have gotten in but for program, ct orders his acceptance; still
allowed UC to take race into account in admissions; (Powell – s/s
for any racial class.: compelling interest and necessary to
accomplish; diversity of stud. body is compelling int.; also, aff.
action only where particularized injury shown)
- Fullilove v. Klutznick (’80) – 10% fed. funds set aside for min.
businesses const.; deference to Congress, b/c Cong. doesn’t
need to be colorblind
- Richmond v. Croson (’89) – city plan to set aside 30% to MBE
uncon.; no direct evid. Richmond had discr’d, & 30% was much
greater than 10% & not the fed. gov’t involved (Fullilove); racebased gov. action must be nec. to achieve compelling interest,
presump. of uncon.; only gov’t obj. that passes is redressing
clear past discr.
- Metro Broadcasting v. FCC (’90) – minority pref. policies of
FCC const.; ct applied intermediate scrutiny, means chosen by
FCC subst. rel. to important gov. interests—reducing 98% white
ownership in industry; i/s appropriate when whites disc. against
- Adarand v. Pena (’95) – add’l comp. for gen. contractors who
hired min. businesses, remanded; all gov’t racial class. subject
to s/s (overruled Metro’s i/s, and Croson’s city gov. action
distinction); s/s is not strict in theory & fatal in fact—narrowly
tailored to address lingering effects of racial disc. justifies race
based methods
Summary of Affirmative Action and Race
Quantum Theory of Equal Protection
- Bottom level: EP=similar treatment to similar circumstances
a.
rational relation to legit. state end
b.
almost everything meets rat. rel
- Highest level: racial classifications are inherently suspect
a.
s/s (compelling st. int., nec. to accomplish)
b.
comp. int.=1) imminent invasion in time of war;
2) remediating racial disc.; 3) all other means
avail. fail
c.
almost everything fails s/s
- Middle Level: Brennan, Marshall, Blackmun
a.
important gov’t int., substantially related means
b.
remediating societal disc. is important interest
c.
Metro meets this standard
- Justice Stevens: impartiality standard
a.
gen. notion of impart’y to protect EP
b.
judge indiv. as indiv.
GENDER DISCRIMINATION
- can analogize race & gender: 1) both immutable; 2) class.
often unrelated to leg. pub. purposes; 3) visible diff.; 4) hist. of
exclusion from power; 5) hist. of stigmatization
- Bradwell v. Ill (1872) – license to pract. law refused to
married woman; ct held P/I does not cover women as citizens to
engage in any occupation; ct used stereotypical and archaic
assumptions
- Reed v. Reed (’71) – unarticulated heightened scrutiny; sex
cannot be sole classifcation
- Frontiero v. Richardson (’73) – male service-members had
auto. dependency allowance for wives, females had to prove
husband’s dependency; ct viewed gender as susp. class. w/ s/s
- Craig v. Boren (’76) – prohibition sale of alc. to under 21
males, and under 18 females; ct used i/s instead of Fronteiro’s
s/s—class. by gender must serve imp. gov’t obj. and be
substantially rel. to achievement; archaic and overbroad
generalizations fail
- Miss. Univ. for Women v. Hogan (’82) – male denied
admission into women’s coll.; ct’s new i/s w/ exceedingly
persuasive justification; Univ. failed to show imp. obj.
- US v. Virginia (’96) – female denied admission to VMI; ct
reiterated exceedingly persuasive justification std and found no
imp. obj.; Scalia dissent: VMI’s adversarial sys. is legit; should
use only i/s
Real Differences
- Geduldig v. Aiello (’74) – preg. not included in disability; ct
held that abs. showing that preg. used to discr. against one sex,
legis. free to include or exclude preg. on reasonable basis, just
like any other physical disability; because deemed facially
neutral, rat’l test used
- Michael M. (’81) – males and not females punished in stat.
rape found const’l.; ct used i/s; leg. may not make overbroad
generalizations based on sex; under EPC, diff. things can be
treated diff’ly—sexes not similarly situated in certain circumst.
- Rostker v. Goldberg (’81) – selective service is const’l.; men &
women diff’ly situated b/c of combat retrictions; gov’t has imp.
gov. int. in raising an army
Summary of Modern Approach
- ’81-’97: ct began w/ rat. rel. (Reed), then moves to i/s
- since ’97, ct moved to exceedingly persuasive justification (US
v. Virginia)
- cannot base sex disc. on overbroad & archaic generalizations
- ct is drawn to idea of similar treatment
- once classified as neutral, rational relation is appropriate test
- where sexes diff’ly situated, sex based distinctions ok
OTHER LEVELS OF EQUAL PROTECTION
Wealth and Education
- San Antonio Ind, Sch. Dist. v. Rodriguez (’73) – use of local
tax base results in rich & poor schools; no susp. class., no s/s;
education not a fund. right, no s/s;
Alien Status
- Plylar v. Doe (’82) – stat. denied free educ. to illegal aliens
uncon.; aliens not susp. class, but more than ration’y needed:
children not vol. aliens, educ. important, penalize children for
parents’ crime; preservation of st. $ not a subst. st. interest
Mental Retardation
- City of Cleburne v. CLC (’85) – zoning ord. req. retards to get
special permit for grp home uncon; use rat’l basis test
Homosexuality
- Romer v. Evans (’96) – st. provision protecting homosexuals
repealed in amend.; uncon. b/c st. can’t classify grp of ind.’s to
make them uneq. to everyone else; use rat’l relation
Fundamental Interests
- fund. right=independently & explicitly guar. by Const. or
important & implicitly granted by Const.
- fund. interests=not Const’ly nec.; positive rights; though imp.,
cts won’t intervene if st. decided to deprive them all
- category of fund. int. allows flexibility in SC; by looking at the
benefit or burden placed on a class, cts can gauge level of
scrutiny to correspond to importance of benefit or burden
(instead of simply looking at whether there is classification)
Right to Have Offspring
- Skinner v. OK (’42) – sterilization of habitual criminals uncon;
fund. right gets s/s
Right to Vote
- Harper v. W. VA (’66) – annual poll tax uncon; right to vote is
fund. so s/s
- Kramer v. Union Free Sch. Dist. (’69) – vote in sch. dist.
election only if own property in dist. or parent of child in school;
uncon. under s/s b/c exclusion of franchise to non-prop.
bachelors was not narrowly tailored
Welfare Benefits
- Dandridge v. Williams (’70) – AFDC prog. had max. grant limit
regardless of family size or std of need was ok; ct used rat’l test
Access to Courts
- Griffin v. Ill (’56) – st. must provide indigent crim. w/ trial
transcript; ability to pay bears no rat’l rel. to guilt or innocence;
st. not req’d to provide app. review, but can’t exclude based on
prop. once it does
- Douglas v. CA (’63) – st. must appoint counsel for indigent
crim. on his first appeal; uncon’l line drawn b/t rich & poor
- Boddie v. CT (’71) – st. can’t deny access to cts for divorce
b/c inability to pay; due process denied b/c cts the only means
of resolving conflict—dissolving marriage
- M.L.B.v. S.L.J. (’96) – paying in advance fees for appeal on
termination of parental rights uncon; fund. right at issue
Summary of Fundamental Interests
- ct. unwilling to extend heightened scrutiny outside access to
courts, voting, and reprod. rights
- welfare/housing/educ.=rat’l basis
- ct. severely limited fund. int. doctrine to limited classifications
STATE ACTION
- modern cts: state action is prerequisite to assertion of rights
under Amend’s 1-8 and 14; sts are the primary guarantors of
rights, and fed. gov’t may protect rights only when st. fails
Early Interpretation of State Action
- Civil Rights Cases (1883) – CRA of 1875 provided equal prot.
to enjoyment of public places; ct. held that 14 th A applied only to
state action; Cong. could not reg. private conduct under 14th
The Rise of State Action
- Shelley v. Kraemer (’48) – property covenant restricting
purchase by blacks & Mongols; black purchased, lower ct.
enjoined; ct’s action ruled uncon. b/c actions of state cts are
state actions w/in meaning of 14th
- broad reading=anytime person’s decision to discr.
enforced or left undisturbed by st’s legal system, then
state action exists; ends private/public distinction
- narrow reading=state action where a ct is asked to
affirmatively use its power to enforce discr’y law
Symbiotic Relationship
- Burton v. Wilm. Parking Auth. (’61) – restaurant refused to
serve black man; parking garage owned by st; ct held st action
was present b/c restaurant essential to operation of the garage
Nexus Relationship(Created, Coerced, or Encouraged)
- Moose Lodge v. Irvis (’72) – private club w/ st liquor license
refused to serve blacks; ct held granting license not st action;
gov’t was not significantly involved w/ invidious disc.
Public Functions Test
- Jackson v. Metro. Edison (’74) – elec. serv. terminated w/out
notice/hearing; ct held that mere fact that business was subj. to
st regulation does not=state action; no suff’ly close nexus
- Flagg Bros. v. Brooks (’78) – warehouseman sold goods
entrusted to him; ct held that his sale of bailed goods under UCC
not a public function; public functions analysis will only apply w/
functions trad’lly w/in exclusive control of gov’t
Decline of State Action: The Modern Retreat
- ‘30s-‘60s: ct expanded reach of action under Const.;
contracted after ‘60s
- st normally can be held responsible for priv. decision only
when exercised coercive power or has significant encouragement
(overt or covert) such that choice is deemed that of the state
- Rendell-Baker v. Kohn (‘82) – priv. sch. using publ. funds
discharged certain employees; not st action b/c similar to
corporations w/ contracts w/ the gov’t
- Brentwood Acad. v. Tenn. Sec. Sch. Ath. Assn. (2001) –
interscholastic athletic assn enforced rule against member sch.;
ct held there was state action because of significant
“entwinement;” 84% of members of assn are public schools;
board members allowed to use retirement prog.for st
employees; dissent: “entwinement” is departure from
precedent; st action should only be where there was symbiotic
rel’shp, nexus, or public function
CONG’L POWER UNDER THE RECONSTRUCTION AMEND’S
- 1930s-1960s”: fed. gov’t legally paralyzed; limited commerce
clause, so no reaching into priv. sector; politically, couldn’t use
13-15 A’s b/c “Solid South” entrenchment
The 13th Amendment
- Jones v. Alfred H. Mayer Co. (’68) Congress’ Power to Modify Constitutional Rights
- 15th A – SC v. Katzenbach (’66) –
- 14th A – Katzenbach v. Morgan (’66) –
- §2 of 15th A – Oregon v. Mitchell (’70) –
- expansion of the 15th A – City of Rome v. US (’80) –
- substantive changes – City of Boerne v. Flores (’97) –
Return to Substantive Due Process
Early Non-Economic Cases
- education – Meyer v. Nebraska (’23) –
- child rearing – Pierce v. Society of Sisters (’25) –
Sexuality
- Bowers v. Hardwick (’86) –
Reproductive Autonomy
- Griswold v. CT (’65) –
- Eisenstadt v. Baird (’72) –
- Roe v. Wade (’73) –
- Doe v. Bolton (’73) –
- Planned Parenthood v. Casey (’92) –