Con Law Short Outline
Federalism
1) Judicial Review
a) Constitution – Nothing specifically authorizes judicial review
b) Marbury v. Madison
i) Establishes power of federal courts to review and rule on constitutionality of actions by other
branches
ii) Why?  constitution is paramount, and any action that is in conflict is void, duty of judiciary to say
what the law is (institutionally suited), judicial power extends to all cases arising under the
constitution
c) Judicial Review of State Courts interpretation of Federal Question
i) Supreme Court can rule on constitutionality of decision by State courts (Martin v. Hunter’s Lesse)
(1) Why?  need uniformity, Art. 3 (appell. Jxn in all other cases, state’s biased)
ii) S. Ct. can review state decisions in criminal cases (Cohens v. Va.)
iii) State’s have no authority to resist federal judicial orders and must comply with constitution (Cooper
v. Aaron)
d) Supreme Court interpretations of cons. are binding on Congress (Dickerson v. US)
2) Necessary and Proper Clause
a) Federalism Generally
i) Vertical federalism – balance between fed and states
ii) Horizontal federalism- balance among co-equal branches
iii) Why is this good?  protect minority groups, enhance liberty, facilitates democracy
b) Congressional Power
i) Art. I, § 8, cl. 18 – Congress has the power “to make all laws which shall be N&P” to carry out its
function
ii) McCulloch v. Maryland
(1) Congress can use ANY MEANS that is 1) rationally related to the objective and 2) not
specifically prohibited
(2) Bank?
(a) Yes congress can establish bank under N&P (Necessary is broad, congress has to be able
to carry out powers)
(b) Pretext - let the end be legitimate/plainly adapted/consistent with letter and spirit 
Doctrine of Implied Powers
(3) Tax the bank?
(a) No MD cant tax the bank (power to tax is power to destroy – state power cant conflict
with federal power)
(b) EXCEPTION – MD can still do what originally allowed (tax land, wages)
c) Limitations on N&P
i) Law can still be overturned if not rationally related
ii) Congress cant change, add or remove terms in Const. based on N&P (Powell v. McCormick – tried
to take away seat because of improper use of funds – court says no)
d) Powers Reserved to States
i) Powers reserved to the states are those that existed before the constitution (ex. Police power)
ii) US Term Limits v. Thornton – states cant have term limits on reps (power did not exist before cons)
iii) Cook v. Gralike (state cant put instructions on ballot)
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Affirmative Commerce Power
1) Commerce Power – Art. 1, § 8, cl. 3
a) Congress has the power to “regulate commerce with foreign nations, Indian tribes and among the several
states  federal limit on state power
b) 3 main theories of Commerce Clause
i) Channels/Instrumentalities of Commerce
(1) can regulate the channels and instrumentalities of commerce including by prohibiting the cross
border movement of goods and people through the commerce prohibiting technique
(2) channels – activities reasonably related to highways, waterways & air traffic
(3) Instrumentalities – includes people, machines & other things used to carry out commerce
ii) In-Commerce
(1) congress can regulate wholly intra state activities on the theory that they are articles moving “in
the stream of interstate commerce”
iii) Affecting Commerce
(1) can regulate local activities if they affected interstate commerce in substantial way (use rational
basis test)
(2) catchall category
(3) Commercial Activity – if clearly commercial Congress can regulate even if purely intra state so
long as part of class that can be aggregated
(4) Non-Commercial – do not aggregate unless 1) closely connected to a larger regulatory scheme or
2) item being regulated crosses state lines or enters stream of commerce
(5) Findings – findings can help, but are not dispositive
(6) Jurisdictional Hook – including a jxn’l element is more likely to make a reg OK
(7) Traditional Domain of States – court less likely to find congress’ reg OK
(a) Ex: education law, family law, general crime)
c) External Restraints on Commerce Clause – go over these limits as well
2) Commerce Power – Pre 1937
a) Gibbons v. Ogden – congress can not regulate purely intra state things, but has sweeping interstate
commerce power
b) Channels/Instrumentalities (Includes Commerce Prohibiting)
i) Channels – activities reasonably related to highways, waterways, & air traffic
ii) Instrumentalities – includes people, machines, & other things used to carry out commerce
iii) Congress can use commerce power to achieve police power and regulate morality
(1) can regulate morality (e.g. lottery tickets and prostitution)
(2) Hippolite Egg – Can get to things that are no longer in commerce – SUPER BOOTSTRAPPING
= affecting + commerce prohibiting + N&P
iv) Hammer – cant prohibit sales of intrinsically harmless (limits Channels)
c) In Commerce
i) Swift - Congress can regulate stockyard because it operate in the stream of commerce
ii) Schecter Poultry – limits the mouth of the stream of commerce – if the goods are for local
disposition, then congress cant reach
iii) Carter Coal – limits the source of the stream of commerce – congress cant reach growth or
production
d) Affecting Commerce
i) E.C. Knight – can not regulate indirect affects on commerce, only direct affects – manufacturing is
an indirect affect on commerce
ii) Shreveport Rate Case – can regulate things with close & substantial relation to interstate
3) Commerce Power 1937-1985
a) Channels/Instrumentalities/Commerce Prohibiting Technique
i) Darby – congress can limit goods produced not in accordance with federal guidelines
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(1) Super bootstrapping – regulation of interstate activity on the grounds that they had been tied to
bans on cross border movements
ii) Limit – other constitutional constraints – ex: 13th –cant stop black people moving
b) In Commerce Theory
i) Currin v. Wallace – congress can reach intrastate activity as long as its controlling things incommerce
ii) Mulford – OK if for regulation to be effective it must reach all sales
c) Affecting Commerce
i) Can regulate activities that despite, intra state character, have such a close and substantial relation to
interstate commerce – Jones and Laughlin Steel
ii) Aggregation Technique – can regulate member of a group if collectively affect interstate commerce
– Wickard  also OK if part of a comprehensive scheme
d) Civil Rights
i) Allows us to aggregate the affects of discrimination to use commerce clause to out law it
4) Commerce Power 1986 – Present
a) Generally
i) For affecting commerce – use the substantially affecting commerce (less deferential – needs to be
clearly a commercial activity)
ii) For non-economic activities – OK to regulate if part of comprehensive scheme or jxn’l hook
b) US v. Lopez
i) Economic activities test – this is about a gun in a school, not an economic activity
(1) Care more about the nature of the economic activity rather than the effect
(2) Could regulate if there was a jxnl hook or recently in commerce or comprehensive scheme
ii) Dissent – Schools are economic activities – spend billions a year
c) US v. Morrison
i) Non-economic activity – link to interstate commerce is too indirect – cant aggregate non-economic
activity (unless part of comprehensive scheme)
ii) Morrison Hole – no categorical rule against regulating effects of non-economic activity
d) Ways around Morrison and Lopez
i) Construe a statute narrowly so that it doesn’t include a cons’l ? – Migratory Bird Case
ii) Characterize activity as economic (Alfabco)
iii) Use other 2 prongs  in commerce or instrumentalities/channels (Robertson)
iv) Exception  comprehensive scheme allows aggregation of non-economic activity
(1) Gonzales v. Raich – allows aggregation of marijuana sales to say that congress can outlaw home
grown weed – also – problem of enforcement (regulate all sales)
5) External Constraints of the Commerce Clause
a) Tenth Amendment
i) Coyle limit – congress cant regulate states in the exercise of their essential powers
(1) May not apply if the state is acting alongside or as a private party (ex: selling stuff)
ii) Defect in Political Process
(1) Pre-1985 – Integral Operations Test – cant regulate traditional state functions(N. L. of Cities)
(2) Post – 1985 – regulating cities does not matter (Garcia)
iii) Congressional Commandeering
(1) Congress cant compel states to enact laws (NY v. US)  Test is the law generally applicable?
(2) Congrees cant force state executives (cops) to administer laws (Printz)
(a) Exception – OK if only required to pass on info
(b) Exception –can regulate activities in the marketplace(sale of info in the marketplace(Condon)
(c) Exception – conditional preemption, conditional spending, use clause other than commerce
b) Eleventh Amendment
i) Citizens cant sue the home state in federal court ( Hans v. La)
ii) Congress cant make states amenable to suit in federal suit (Seminole Tribe)
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iii) State cant be sued in federal court for violation of federal rights (Alden v. Maine)
iv) Exceptions
(1) Injunctions against state officials, state v. state or fed. v. state, actions against cities, 14th, 13th,
state can waive
6) Tax Power
a) Congress cant do through taxes what it cant do directly  no penalty taxes (Child Labor Tax Case)
b) If a tax raises revenue then it is presumptively valid (Kahringer)
c) Go through both commerce clause analysis and tax analysis
7) Spending Power
a) Must spend for the general welfare – justified under the N&P clause -Broad view after New Deal
(Stewart Machinery)
b) Limitations  conditional spending (SD v. Dole)
i) 1) spending must be for the general welfare, 2) condition must meet be a clear statement, 3) must be
germane(related) to federal interest, 4) cant be barred by ind. cons. Bar, 5) cant be coercive
ii) Attack by changing purpose of program or change condition
Dormant Commerce Clause
1) Dormant Commerce Clause
a) Generally
i) States can not “unduly burden” or “discriminate against” interstate commercedoesn’t apply to
private parties
ii) Arises from the negative implications of the Commerce Clause  no textual basis
b) Analysis
i) Transportation Rule – if the safety interest is legitimate, then defer to state (Kassel)
ii) Facially Discriminatory – virtually per se invalid
iii) Facially Neutral but subject to strict scrutiny if 1) discriminatory in purpose/effect or 2)
extraterritoriality effects
iv) Facially Neutral  apply Pike balancing test
(1) The regulation must be rationally related to a legitimate state interest
(2) burden on interstate commerce must be outweighed by states interest in enforcing its own
(3) Look for less restrictive Alternative if trying to invalidate
v) Look for an exception – Market Participant, Congressional Consent, etc
vi) Less restrictive alternatives 2) Facially Neutral Laws
a) Transportation Rule – if the safety interest is legitimate, then defer to state (Kassel)
b) Apply deferential balancing AKA Pike Balancing Test
i) Look at Burden on Interstate commerce v. Benefits to Public/Health/Safety/Welfare
ii) Burden must be clearly excessive (lots of deference)
iii) Stricter review if effects are obvious
3) Facially Discriminatory Laws  virtually per se invalid
a) Facially discriminatory laws are subject to a virtually per se rule of invalidity when legislation is
protectionist in nature regardless of the purpose of the legislation
i) Types 1) block commerce at state borders, 2) treat out of state diff. than in state
ii) Surrogate representation does not help much in making law valid
b) Export Restrictions (Pa v. WV)
i) Anti-Hoarding Principles (Hughes, New England Power, Sporhase, Camps N/O)
c) Import Restrictions(Philadephia v. New Jersey)
d) In-State Processing Requirements (Dean Milk, South Central Timber) – this is hoarding resources
i) Exception – if local government is performing traditional gov’t function – OK (United Haulers)
e) Exception – Facially Discriminatory will be upheld if there is no other alternative (Maine v. Taylor)
4) Facially Neutral but Discriminatory in Purpose or Effect
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a) Purpose  use PIKE TEST
i) If it’s a protectionist purpose than most likely invalid (Bacchus)  must be protectionist, not just
economic  be careful how to define purpose
b) Effect  use PIKE TEST
i) Discriminatory in effect – can be from eliminating a comparative advantage (Hunt)
(1) Cant regulate activities occurring in another state that will affect your state
ii) De Facto Tariff (usually state imposing a minimum price) (applying a use tax on out of state OK)
iii) Exception – if discriminatory effect is accidental and interstate market is protected – OK
(1) Exxon v. MD – DCC does not protect particular firms – just market
State Taxes
a) 4 requirements to prove validity (Complete Auto Transit Case)
i) 1) reasonable or substantial nexus to the state, 2) tax must be fairly apportioned, 3) must bear a fair
relation to benefits granted to taxpayer by the state, 4) cant discriminate against interstate commerce
ii) No charitable services exception (Camps N/O)
Extraterritoriality
a) State A cant regulate commerce going on in State B
i) EX: cant certify your price is lowest in country (Brown Forman Distillers v. NY)
Exceptions to the DCC
a) Market Participant Exception
i) State may impose burdens in the market in which it participates (Reeves v. Stake)
ii) Exception – not allowed for national resources, foreign commerce(South Central Timebr)
iii) Exception – downstream regulation (south central timber – not OK; White – OK(working for city))
iv) Probably can still use under equal protection and P&I clause
b) Congressional Consent Exception
i) Congress can give a state permission to violate the DCC if they are extremely clear (Prudential Ins)
ii) Exception – congress cant consent if it still violates the 14th - EPC(Metro Life)
c) Subsidy Exception
i) In-state subsidies are generally permitted  no rebate/refund scheme at same time (de facto tariff)
d) Quarantine Exception  can prohibit items if problem is from transportation
e) State Self Promotion – OK if gov’t performing a traditional gov’t function
f) No Less Restrictive Alternative – OK – Maine v. Taylor  very rare
Other Challenges to State Power
a) Privileges and Immunities Clause – Art. IV,§ 2
i) Inquiry
(1) Does clause apply?
(a) Is there discrimination, can apply if discriminatory in effect, no market participant exception
(b) Doesn’t matter state or local law, corporation cant bring this challenge,
(2) Is a fundamental right involved?
(a) Fundamental – rights relating to commerce, private employment(not public),
(b) Non-fundamental right – Recreation(Baldwin)
(3) Balancing
(a) State interest v. evil law is preventing (is law rationally related to eliminating evil?)
(b) Look for less restrictive alternative (will usually kick it out)
b) Preemption  based on supremacy clause
i) Inquiry
(1) Express Preemption – congress says that a statute preempts state law
(2) Implied Preemption
(a) Conflict preemption – if there is a direct conflict – federal wins
(b) Field Preemption – congress clearly intends to occupy the field – federal wins
(i) Look for savings clause
(3) Savings Clause – in statute where fed consents to state regulation in a certain area
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ii) Traditional State Field Presumption – if congress regulates in a field that is traditionally a state issue,
then there is a presumption that state is OK, unless clear statement by congress (Rice v. Santa Fe)
Separation of Powers
1) Executive Encroachment on the Legislature
a) Executive cant make the laws
b) Steel Seizure Case – president cant seize steel mills – gives analysis of executive Action
i) Jackson concurrence
(1) Zone 1 – Authorization – congress says yes – powers are at their broadest point
(2) Zone 2 – Concurrent – congress is silent – president can exercise independent powers
(3) Zone 3 – Contradiction – congress says no – powers are at their lowest – only enumerated power
c) Line Item Veto – even if power is authorized, the president cant legislate (Clinton v. NY)
i) Court says this violates presentment clause
d) Congressional Acquiescence – this gives president broader power (Dames & Moore v. Regan)
i) Implied power + emergency = broad authority  president has broader power in an emergency
2) Foreign Affairs Power
a) President has broad power in foreign affairs (Curtis Wright – Pres. made sales to Bolivia illegal)
b) Executive Agreement takes precedent over state policy (US v. Belmont)
3) War Powers
a) War Powers Act – limits president – can make war, but must report to congress, and bring home if they
say so
b) Enemy Combatants
i) Suspension Clause – can suspend in time of rebellion or invasion or public safety requires
(1) In Art. 1 - implies that only congress can suspend
ii) Trial and Punishment
(1) Ex Parte Milligan  if citizen and NOT in military AND Not in war zone – full protections
(2) Ex Parte Quirin  unlawful combatant on US soil can be tried and detained – even citizen
iii) Detention
(1) Quirin – lawful combatants can be detained for the duration
(2) Johnson v. Eisentrager – if held overseas, no jxn over non-citizens captured overseas
(3) Rasul v. Bush – US has sovereignty over Gitmo – get trial as to legality of detention
(4) Hamdi – US citizen captured overseas and held in US – gets due process as to enemy combatant
status  military can hold for duration if found enemy combatant
(a) Padilla – US citizen captured in US  probably gets more process than Hamdi
(5) Hamdan  can’t try non-US by military commission while being held in Gitmo
(a) Have to try by reg. constituted court in accordance with UCMJ  Gitmo is not extraordinary
circumstances  AUMF doesn’t authorize commission = zone 3
(b) Plurality says must use Geneva convention
c) New Legislation  Military Commissions Act
i) Defines unlawful combatants, strips Gitmo of habeas, authorizes military commissions
4) Congressional Encroachment on the Executive
a) Congress cant delegate legislative authority to another branch – agencies can be given rule making
authority but congress must give guidance
b) Legislative Veto is unconstitutional (INS v. Chadha – single house veto violates bicameralism and
presentment clause
i) Key is how you define status quo – if its he goes, house overturns – Not OK
ii) 2 house veto is also un-constitutional (US Senate v. FEC)
5) Power of Appointment
a) President can appoint Superior officers and congress can delegate appointment of inferior officers to
department household
b) Congress cant appoint officers who have executive powers (Buckley v. Valeo)
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c) Principal officers (cabinet, ambassadors, federal judges) – cant take away this power
d) Lower Level – congress can limit by giving it judiciary or heads of departments (Morrison – courts can
appoint independent counsel)
Removal Power
a) Constitution is silent on removal – could be implicit part of executive power
b) (Bowsher v. Synar) – Congress cant get give power to execute the laws to some who congress has the
power to remove without impeachment  here, uncons to be able to remove Comptroller Gen.
c) Old Analysis
i) Myers (1926) – congress can’t place restrictions on the President’s ability to remove purely
executive officers(essentially overruled by Morrison)
ii) Humphrey’s Executor (1935) – limits Myers to purely executive officers. If the officer has a quasilegislative and quasi-judicial function, then congress can specify removal proceedings
d) Current Analysis
i) Congress can place limits on the right to remove purely executive officers, so long as the restrictions
do not “unduly trammel” on the President’s executive authority (Morrison v. Olson)  independent
counsel case – this person needs to be independent
(1) Counter – all executive power vests in the president and only he can remove – Scalia dissent
Congress can delegate legislative powers to with a judicial role to judicial branch
a) Courts make rules(evidence, procedure), this is within their power to make sentencing guidelines
because within their original power (Mistretta v. US)
b) Like interlinked powers in Loving v. US
Immunity
a) Generally, legislators, prosecutors, and judges have absolute immunity if they are acting within their
official jurisdiction
b) Types of Immunity
i) Absolute (no matter what)
ii) Qualified (get immunity as long as you don’t violate cons or statutory rights)
iii) Temporary (limited to a specific time frame or purpose)
c) Legislative Immunity
i) Speech and Debate Clause – absolute immunity for senators and reps when acting within their
official jxn (can still be liable if accept bribes or speech not made in legislative process)
d) Judicial Immunity
i) Judges and prosecutors get absolute immunity for official acts  still subject to crim prosecution if
you act illegally
e) Executive Privilege  applies to both president and other executive officials (at different strengths)
i) Court – not the president – decides if there is executive privilege
ii) US v. Nixon – Nixon is subject to criminal court order and must turn over tapes (in camera
inspection protects Pres.) – due process need for fair trial is > regular executive privilege
(1) Get absolute immunity if protect military, diplomatic, or sensitive national security
(2) Executive privilege not easily trumped by congressional committee – need is less than in a
regular court case (Pres. Campaign Activities v. Nixon)
iii) Pres cant be subject to injunction except in extenuating circumstances – US v. Nixon (No in Miss. v.
Johnson b/c exercising normal rights)
(1) Executive officials and cabinet members can be enjoined  Marbury v. Madison
iv) Pres – immunity against $ damages in civil suit while acting in official capacity (Nixon v. Fitzgerald
(1) Other executive officer – gets qualified immunity  has to be within official act
v) Pres - No immunity for non-official act (Clinton v. Jones – before pres. and BJ not official act)
Impeachment  Art. II, § 4
a) House impeaches by majority and senate may convict by a 2/3rds vote  applies to Pres, VP, civil
officers  just get removed from office – no criminal sanction
b) Must be convicted of treason, bribery or other high crimes and misdemeanors  what is this
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i) Serious indictable acts – Nixon case
ii) Abuse of Power or Trust (even if not criminal, this is CL view) – Judiciary Committee
iii) Only Public Acts – Clinton
iv) Protecting the public – impeachment could be anything to protect the public
c) Judges – there is a lower threshold to impeach judges (judges for life, and president has political check)
d) Justiciability – impeachment is a non-justiciable political question
Jurisdiction
1) Judiciability- court created doctrines which define and limit the ability of Art. III courts to hear the case
a) Textual limits – court can only hear a case or controversy specified in cons  no advisory opin
b) Political ? – court cant hear political or discretionary issues from other branches
c) Impeachment – non justiciable political question b/c check on judiciary – Walter Nixon
i) Could review if violate const  ex: half senate can convict instead of 2/3rds
2) Case and Controversy Requirement : standing, ripeness, mootness
a) Standing
i) Constitutional Principles
(1) Injury in fact (suffer actual or threatened injury)
(a) Concrete injury  Mass v. EPA – loss of coastline is concrete inj.
(2) Causation (injury is fairly traceable to the challenged action)
(3) Redressability (injury likely to be redressed by a favorable decision – focus on remedy)
ii) Prudential Standing
(1) No third party standing – have to assert your own legal rights, not a third parties
(a) Can assert 3rd party if closely related or genuine obstacle for 1st and close relation
(b) Association can asset if one member with standing
(2) No generalized grievances (no abstract ? of wide public significance or political ?)
(a) No taxpayer standing (municipal tax exception)
(i) Can challenge under establishment clause (limited if exec. funds on faith initiatives)
(3) Zone of Interest – P’s complaint must be within one of the interests protected or regulated by
statute
b) Mootness – subsequent events cant make the suit pointless
i) Exception – capable of repetition, yet evading review (ex: abortion – has to repetitive to you)
ii) Exception – voluntary cessation rule – d ceases, but court feels like harm might come again
iii) Exception – class action – need continuing injury to class
c) Ripeness – need an actual conflict with judiciable facts
i) Assures that parties are zealous advocates
ii) Can use threatened harm to get injunction, but needs to be fairly imminent
d) Necessity
i) Court will rule on constitutionality only if it has to – prudential limit
3) Congressional Control of Jurisdiction
a) Checks on judiciary
i) Impeachment, self-imposed limits, amendments, court packing, judicial appointments, exceptions cl.
b) Supreme Court Jxn
i) Appellate for all cases under federal law
ii) Original and Exclusive – state v. state
iii) Original and Non-Exclusive – foreign officials, US v. State, State v. Citizen from other state
iv) Congress decides Supreme Court jxn – but constitution defines the outer limit of jxn
(1) Ex Parte McCardle – congress can strip habeas under act, but not under constitution
(2) Ex Parte Yerger – repeal of habeas jxn, doesn’t apply to original constitutional jxn
c) Congress cant tell the court how to decide a case (US v. Klein)
d) Congress cant reopen the case (Spendthrift Farm)
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e) Exceptions clause – how far –differing views – can take it all, everything but core functions, must be
some forum for const. issues, external constraints
Constitutional Protection of Individual Rights
1) History of Individual Rights
a) Guarantee of individual right is protects only against government acts
b) Pre-Amendment Protection –Art.1, § 9&10 – protections of habeas, prohibition of ex post facto
c) Barron v. Baltimore – 5th amendment does not apply to state governments only national gov’t
d) Post Civil War – 13th, 14th, 15th amendment
i) 14th – P&I, Due process, equal protection
e) Initially due process (14th) clause was not held to limit state power (Slaughterhouse Case)
i) P&I does not apply – 2 separate groups of citizens
ii) Due Process does not apply
iii) Equal Protection – does not apply because only protects freed slaves
f) Right to travel is fundamental under the equal protection clause (Shapiro v. Thompson) – cant exclude
new residents from welfare benefits
i) Cant limit welfare benefits for new state residents to what they got in earlier state (Saenz v. Roe)
ii) There are less restrictive alternatives
2) Incorporation – does the 14th include bill of rights?
a) Selective Incorporation/Fundamental Rights (Cardozo, Frankfurter, Harlan)
i) Only fundamental rights are protected against state interference
(1) Critique – judge has too much power
b) Total Incorporation (Black)
i) 14th amendment makes all items in bill of rights applicable to states
(1) Critique – still vague interpretation, total incorporation limits judges
c) Incorporation Plus Approach (Murphy)
i) Everything in the bill of rights plus fundamental rights
d) Modern Approach
i) Technically selective incorporation, but really total incorporation plus approach
ii) Hook, Line and Sinker approach to Interpretation  rights mean the same at the federal level as they
do at the state level
(1) Exception – unanimous jury verdict – just same scope, not guaranteed so not same at state level
(2) Exception – 12 person jury – constitution doesn’t require (Williams)
3) Substantive Due Process
a) Rise and Decline of Substantive Due Process
i) Calder v. Bull – natural rights are allowed as a pre-constitutional right that is guaranteed by life
(1) Dissent – Iredell – court has too broad of discretion to decide natural rights
ii) Fletcher v. Peck – Marshall endorses natural rights view
iii) Dred Scott – Taney relies on natural rights to legitimize slavery (seen as weakness of this view)
iv) Munn v. Ill – law upheld that interferes with economic liberty and freedom to K
v) Santa Clara v. Southern Pacific – person within the 14th includes corporations
b) Economic Substantive Due Process
i) Lochner v. NY – court strikes down mans hours of work week because it interferes with right to K
state goal of health and welfare is not a legit way to do
(1) Rational Basis Test – is there a rational basis to purpose of the law & is law appropriately related
(2) Less restrictive alternatives to protect health are available
(3) Court doesn’t like state regulating economics
ii) Mueller v. Oregon – court upholds law regulating hours for women (based on Brandeis Brief)
iii) Bunting v. Oregon – court upholds hour regulation for men & women
c) Decline of Economic Substantive Due Process
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i) Nebbia v. NY (1934) –upholds milk boards fixing of prices
(1) New Test – ENDS/MEANS analysis - law must have a real and substantial relation to legitimate
state purpose
(2) Legit state purposes – health, guard against unemployment, provide safe milk
(3) Much more deferential to state now
ii) West Coast Hotel – court upholds minimum wage law for women – destroys Lochner view
(1) OK to Regulate labor market/preventing exploitation/stopping unfair trade
iii) Williams v. Lee Optical – court is very deferential – court says in some instances there might be a
legit state interest (hypothetical goals)
iv) Carolene Products – court rejects due process challenge to shipment of filled milk
(1) Presumption of constitutionality if there are any facts to support legit state interest
(2) FN4 – no presumption if law is against
(a) Specific prohibition of constitution
(b) Restricts the political process
(c) Discriminates against discrete and insular minorities
4) Current Analysis
a) Questions to Ask
i) Is there a fundamental right? (right to privacy, marriage, abortion, child rearing, education, intimate)
(1) If yes – apply strict scrutiny
(2) If no – presumption of constitutionality unless FN4
ii) If its an economic right or a non-fundamental right, then apply the rational basis test
(1) Rational Basis test - Law needs to have a reasonable relation to a proper legislative purpose
(2) Economic Rights are in the world of Lee Optical – very deferential
(3) Carolene Products FN 4 – there is a presumption of constitutionality unless, the law is against a
(a) Specific prohibition of constitution, restricts the political process, discriminates against
discrete and insular minorities
5) Non-Fundamental Rights
a) Kelly v. Johnson – no fundamental interest if you’re a cop to decide how you look, state interest in
uniformity is higher
b) Whalen v. Roe – court rejects privacy challenge to government collecting information on the drugs
people are taking
c) DeShaney – Court says that the state has no affirmative duty to the child unless he is in custody. Hard to
get an affirmative duty (state cant hurt you, but doesn’t have to help you)
6) Right to privacy
a) Right to bear children
i) Griswold v. Connecticut – court says that married people have a right to privacy that includes access
to contraception
(1) Majority (Douglas) – privacy is from the penumbras of the 1,3,4,5,9 and14th amendmentworried about snooping/investigating your personal life
(2) Concurrence (Harlan) – liberty stands alone- fundamental rights are protected – worried about
too much disclosure of people’s personal lives
(3) Concurrence (Goldberg) – fundamental right to procreate, state is trying to prevent extramarital
sex, this is not strong enough – worried about protecting personal autonomy
ii) Eisenstadt – extends right to contraception to non-married people – gives more traction to the idea
that people have a liberty interest in determining whether they want to bear or beget a child
iii) Skinner – decided on equal protection grounds – no sterilization of person convicted of 3 felonies.
Motivated by substantive due process concerns
iv) Cary v. Population Services – extends the right of contraceptives to minors – state has a stronger
interest in protecting minors, but not so strong as to prohibit access to contraceptives
(1) Applies strict scrutiny because of the right to bear kids
b) Right to Raise Children/Education
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i) Meyer v. Nebraska – court overturns conviction of school teacher for teaching German. Court says
you have a liberty interest in choosing how you want to bring up your children.
ii) Pierce v. Society of Sisters – Court strikes down Oregon law that requires kids to go to public
school. Says that this interferes with your right to bring up children as you want to.
iii) Troxell v. Granville – parent can deny the grandparent visitation rights granted by the state, because
they have a right to bring up the child as they want
c) Right to Abortion
i) Roe v. Wade – court strikes down Texas law criminalizing abortion (7-2)
(1) Majority (Blackmun) – this implicates the fundamental right to have a child. State interest only
becomes compelling after viability. A fetus is not a person for the 14th amendment
(a) Trimester approach – 1st –woman may choose; 2nd – state can outlaw in reasonable way
relating to maternal health; 3rd – state may regulate post viability but must have health
exception
(2) Dissent (Rehnquist) – this is not a fundamental right, use the rational basis test; this is a private
transaction with no tradition to support it
ii) Planned Parenthood v. Casey – reaffirms woman’s right to choose
(1) Court rejects trimester approach for the undue burden test – state can make laws in the interest of
the fetus prior to viability so long as they are not an undue burden on her choice
(a) Spousal notification is an undue burden – look at people this affects to decide (bad
relationship)
(b) After viability must have a health exception
(c) Undue Burden exists if the statute or regulation, in purpose or affect, places a substantial
obstacle in the women’s choice
(2) Stare Decisis – 4 conventions on when to overturn that don’t apply here
(a) 1) the decision has become unworkable, 2) there is no reliance on the decision, 3) no longer
based on sound constitutional principles, 4) factual assumptions have changed
(b) Also – think of big social changes  things like great depression, emancipation proc.
iii) Ayote v. Planned Parenthood
(1) Facial invalidation is not always the correct remedy for an abortion law – use as applied
challenge
(a) Court can make a declaratory judgment to correct constitutional infirmity  judicial bypass
d) Right to methods of abortion
i) Stenberg v. Carhart
(1) Majority (Breyer) – law prohibiting D&X without providing an exception for the health of the
mother is unconstitutional – need health exception
(2) Dissent – Health exception is not necessary because this is just one type of abortion
ii) Gonzales v. Carhart – challenge to federal partial birth abortion ban
(1) Majority (Kennedy) – casey’s health exception does not apply for choice of method. Where the
state has a rational basis to act, it does not impose an undue burden. Act is not invalid because
there is no evidence that it is ever medically necessary
(a) This act can be challenged through an as applied challenge
(2) Dissent (Ginsburg) – this would not survive a strict scrutiny standard – all laws must safeguard a
woman’s health. Purpose of the health exception is to help women in exceptional circumstances
e) Not Funding/Providing Abortion is NOT a Fundamental right
i) Harder to get an affirmative right from the state
(1) DEPENDS ON HOW YOU DEFINE STATUS QUO
ii) Maher v. Roe – Court upholds law for Medicare benefits for childbirth, but not for medically
unnecessary abortions.
iii) Harris v. McRae – OK to refuse funding for medically necessary abortions.
iv) Rust v. Sullivan – Feds can refuse to provide funding to organizations that give abortion counseling
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f)
g)
h)
i)
j)
k)
v) Webster v. Reproductive Services – Upholds law prohibiting state employees from conducting
abortions – court does not have to rule on value judgment by the states
Right to Marriage
i) Loving v. Va. – strikes down law on interracial marriage – marriage is one of the basic civil rights of
man
ii) Zablocki v. Redhail – strikes down law prohibiting marriage if delinquent on child support payments
based on EPC – right to marriage is fundamental – there were less restrictive alternatives
iii) Cal. v. Jobst – Court upholds negative financial consequences for disabled person who gets married
– does not harm freedom to marry – not helping does not = interfering
Extended Family Households
i) Moore v. East Cleveland – court invalidates zoning law that requires close family relationship to live
together – allowed to live with extended family (grandparents) – history establishes this fundamental
right
ii) Belle Torre v. Borass – no privacy right in family zoning that excludes unrelated people from living
together
iii) Roberts v. US Jaycees – court rejects freedom of association claim by male business associations
(1) Court identifies “freedom to intimate association”
(a) Factors – 1) smallness of group, 2) selectivity in choosing members, 3) seclusion from others
in functioning, 4) emotional enrichment from close ties
Parenthood
i) Troxell v. Granville – parent can exclude grandparents from visiting
ii) Michal H – Court upholds biological father denial of custody rights. Tradition dictates that married
family should take precedence
(1) FN 6 (Scalia) – if tradition defines right, do it as narrowly as possible – Most justices disagree
Sexuality
i) Bowers v. Hardwick – court upholds GA sodomy law
(1) Majority – this is not a fundamental right, right is to have homo sex, state int is health/morality –
this is compelling.
(2) Dissent – this is about right to be let alone
ii) Lawrence v. Texas – court strikes down Texas law prohibiting homo sodomy
(1) Fundamental right because we protect right to make decision regarding sex – issue as to level of
scrutiny – majority says Roe and Casey lead to this decision
(2) Overrules Bowers – no reliance, change in precedent with Casey, states have changed laws
Gay Marriage – No fundamental right
i) Lawrence says this does not apply to gay marriage
ii) Marriage is public sodomy is private; marriage is positive right
iii) Loving does not create right b/c based on EPC not fundamental right
iv) 11th circuit says no right to gay adoptions
Death
i) Cruzan – there is a fundamental right to refuse treatment for a mentally competent person; if
incompetent –state can permissibly limit with clear and convincing evidence standard
ii) Wa. v. Glucksburg – no fundamental right to commit suicide
Procedural Due Process
1) Analysis
a) Was there a deprivation or threatened deprivation of life, liberty or property?
b) If there is a loss or threat, was due process afforded?
c) What process is due? – Mathews Test
2) Property
a) Claim of Entitlement
i) Goldberg v. Kelly -Termination of welfare benefits is a deprivation of property – need a hearing first
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b) Employment
i) Roth – non-tenured professor has no property right in his job – get claim of entitlement with just
cause requirement (aka removed only under certain conditions)
ii) Perry – non-tenured has property b/c de facto tenure
iii) Bishop v. Wood – PD job says he can be fired for certain things not ONLY fired for certain things –
no entitlement
c) State Law determines property rights not what process is due
i) Court rejects Rehnquist’s bitter with the sweet approach in Arnett
ii) Loudermill  court determines what procedure, not state
d) No property right in restraining order – hard to get affirmative right (Town of Castle Rock)
3) Liberty
a) Reputation – needs to pass deprivation plus test – damage reputation and damage some other interest
i) Wisc. v. Constantineau – deprivation plus b/c PD said man was a drunk and told liquor store owners
he could not buy booze
ii) Paul v. Davis – PD advertised that man was a shoplifter. No deprivation b/c no other loss (no plus)
b) Prisoners
i) Meechum – transfer to harsher prison does not require a hearing – state has no for cause limit on
ability to transfer you to harsher environment
ii) Viteck – transfer to mental institution is highly stigmatizing and requires a hearing before transfer.
This is huge infringement on liberty interest = deprivation of right
iii) Hewitt – prisoner has liberty interest in being in solitary – need a hearing
iv) Sandan - prisoner to solitary is fine if this is treatment that prison entails – limits Hewitt
4) What process is due?
a) Process is a spectrum from meeting to full blown trial
b) Mathews v. Eldridge
i) Process depends on 3 factors
(1) Individual interest, risk of error/probable value of additional procedure, government interest
c) Goss v. Lopez – kid suspended from school gets min. process – meeting with principal
5) Punitive Damages
a) BMW v. Gore – excessive punitive damages is a due process violation (procedural and substantive)
i) Evaluating damages – Gore Guideposts
(1) Degree of reprehensibility, disparity between harm and award, difference between remedy and
civil penalties authorized or imposed
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