CON LAW—MOSKOWITZ, Spring 08
1. Judicial Review
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Article I--Congress
Article II--Executive
Article III--Judiciary
Marbury
Court found that the constitution:
created authority for JR of executive acts;
Art. 3 is the ceiling of federal court jurisdiction
Congress cant expand/limit original jurisdiction of SC
Authorizes maximum original jurisdiction of fed. Courts
Can't authorize fed. Courts to hear cases beyond whats specified, cant
get jurisdiction by consent
Congress has the power to create exceptions and regulations to SC
appellate jurisdiction, but not original jurisdiction
“For every right there must be a remedy”-(but this is not always the
case)sovereign immunity
Establishes authority for Judicial Review of legislative acts
Holding: Judiciary Act 1789- Unconstitutional, b/c Congress cannot allow original
jurisdiction beyond the situations enumerated in the Constitution
Judicial power of the United States is extended to all cases arising under the
constitution (Article III)
The constitution is the supreme law of the land – this is the very nature of the
Constitution.
It is the duty of the judicial dept. to say what the law is.
Martin - Have authority to review to State Court Decisions- Sct. Says review is necessary (in State
courts) to ensure uniformity in interpreting federal law; avoids bias, expertise in the federal law.
Cohens- Criminal DF could seek SC review when they claim a const. violation; expertise in the
federal law, states hostility to enforce federal rights.
Limits on the Sumpre Court - Interpret by social standards, text, intent, tradition
Congress - can restrict jurisdiction, cancel terms, impeach judges, change the size of the
court, reverse the finding of the court through legislation
Interpretation
Originalist- Judges should confine themselves to the enforcing norms that are
stated or clearly implicit in the constitution
Non-Originalist- Const. should evolve by interpretation and not only
amendment
2. Protection of Civil Rights
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9th amendment intended to protect rights not specifically enumerated in Bill of Rights
Established Bill of Rights Applies only to Federal Governmenta. Barron, 1833 - PF sued city and the mayor for taking property in violation of the 5th
amendment deprivation of property w/out just compensation;
i.
5th Amendment not applicable to the states
ii.
Each state has its own constitution and can make their own laws
1. No indication 5th amendment was for the states b/c we have a very strong
faith in state constitutions
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b. Slaughterhouse- 1873, sued city b/c of butcher monopoly invoking 13, 14, DP, EP and P/I
but the Court rejects these arguments that the apply to the states. Is afraid it will tip the
balance between state and federal government
i.
13th amendment - bars slavery and involuntary servitude
1. Court says this only applies to slavery and servitude--doesn't apply here
ii.
14th Amendment
1. Equal protection - we are being treated differently than other business that
can slaughter meat
a. Court says Equal protection clause only applies to freed slaves
2. Due Process - Deprived of their liberty and property
a. Court says not a deprivation of liberty or property - it is a restraint of
trade (later overruled)
3. Privileges and Immunities - being deprived of their immunities as a citizen of
the US - other citizens can butcher
a. Court says the P/I protects states from denying citizens the rights of
national citizens
b. Rights of national citizens - access to seaports, right to travel, access to
federal courts, appeal to federal government
iii.
5th Amendment - Takings Clause - after Barron, the 5th doesn't apply to states
iv.
DISSENT: Natural and inalienable rights to be enjoyed by all not to be abridged by
state laws
c. Saenz- 1999-durational requirement--PF argued state law limiting welfare benefits
violated P&I clause. YES
i.
P&I always been read to protect the right to travel among and b/w the states freely
and says further that right to travel is a Fundamental Right
ii.
And P&I protects the Right for new residents to be treated like longer term
residents
iii.
DISSENT: this cases isn't about the fundamental right to travel, but a right to
welfare which isn't fundamental--state has created a good-faith residency
requirement
The Incorporation of Bill of Rights Into the Due Process Clause of the 14th Amendment
a. Theories:
i.
Strict Incorporation - the entire BOR applies to the states
ii.
Selective Incorporation - some, not all will be incorporated through the 14th--only
those rights that are fundamental
b. The Debate centers:
i.
Framers' intent, history
ii.
Federalism
iii.
Appropriate judicial role
c. Current Process for recognizing fundamental rights
i.
Rooted in history and tradition - Fundamental principles of liberty and justice at the
base of all our civil and political institutions
ii.
Whether it is a fundamental right essential to a fair trial
d. Twining - 1908 - recognized that BOR could be incorporated through the 14th "fundamental principle or liberty and justice"
e. Duncan- 1968 PF convicted of simple battery and sought a jury trial; state law only
required a jury trial for capital cases or hard labor. Is right to a jury required? YES.
Summarized what is needed to be incorporated
i.
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This is a fundamental principle of liberty so rooted… 14th am. Guarantee that is
applicable to the states
ii.
Deep commitment of nation to right to jury trial in serious criminal cases
Which Rights have been incorporated?
a. Have been incorporated :
i.
1st - establishment clause, free exercise clause, and protections of speech, press,
assembly, petition
ii.
4th - search and seizures, requirement for a warrant based on probable cause;
exclusionary rule, which prevents Gov from using evidence obtain in violation of
14th Amendment
iii.
5th - prohibition of double jeopardy, protection against self-incrimination, and
requirement that the Gov pay just compensation when it takes private property for
public use
iv.
6th - requirements for a speedy and public trial, by an impartial jury, with notice of
the charges, the chance to confront adverse witnesses and to have compulsory
process to obtain favorable witnesses, and to have assistance of counsel if the se
v.
8th - bail, cruel and unusual punishment
b. ** 5 provisions have not been incorporated**
i.
2nd, 3rd--quartering troops, 5th--grand jury, 7th--right to juries in civil cases in the
states, 8th--prohibition of excessive fines
Application of Civil Rights & Civil Liberties to Private Conduct: The State Action Doctrine
a. Constitution is not applicable to private conduct of individuals - exception through sect. 5
of the 14th to enforce
i.
Civil Rights Cases - 1883, Full and equal enjoyment of public areas regardless of
race, 2 cases brought by blacks for violations
1. Congress can't reach the private conduct of individuals
2. BOR to prohibit government action; step too far into local jurisprudence
a. Refusal to serve blacks civil injury not a “badge of slavery”
3. DISSENT: Intent of Act was to protect blacks from discrimination… 13th
amendment applies to individuals
State Action Doctrine - Constitution only applies to the government, but the govt. can enact
laws that require that private conduct meet the same standards that the const. requires of the
govt. This will maintain a “zone of autonomy” for the states and promote federalism.
EXCEPTIONS
a. Policy for state action - (1) preserves a zone of private autonomy (2) enhances federalism
by preserving a zone of state sovereignty
Public/Government Functions - Private entity must comply w/ const. if it is performing a task
that has been traditionally, exclusively done by the govt. or public bodies
a. Policy i.
Govt can't avoid constitutional obligations by granting private charters
ii.
Some acts are so inherently public in nature that they can be called state action
b. Marsh - 1946 Corporate owned town acting like a “regular” town w/ public center, post
office, etc. JW distributing religious literature and was stopped. Is this a 1st amendment
violation--YES
i.
This corporate owned town is performing a task traditionally, exclusively done by
the govt
ii.
Court suggested a wide expansion of state action, but the Court has never gone so
far to apply its reasoning
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1. The more open to the public, more circumscribed his rights are--could justify
all businesses
2. Balance the interests of the private property owner and the Constitutional
rights of those who use it
c. Jackson -1974 Lady that had power cut off; was this illegal deprivation of property w/out
DP--NO
i.
No public function here b/c it is a public entity, and regulation alone wont create a
public function exception--utility is not a exclusive, traditional public function
ii.
Only where the private entity is producing a traditional exclusive function of govt.
1. Not a sufficiently close nexus between the utility and govt
a. Must be so close that private actions can be seen as government
actions
d. Evans - 1966 - Private land conveyance to the city which prohibited blacks from using a
city park; city relinquished trustee allowed private trustees to take over but this WAS a
violation of the EP clause b/c the park was a public functioni.
City maintained, has a tax exemption traditionally to serve the public at large
ii.
City performed the maintenance of the park and thus was entwined in the
management or control of the park
e. Logan Valley v. Amalgamated - 1968 - picketing in front of shopping center. Do they have
1st amendment rights in a privately owned shopping center? YES
i.
Generally open to the public as a business area municipality, peaceful pickets OK
ii.
Use Marsh balance… can prohibit if the const. right in question causes undue
interference w/normal business of the private area
1. Here pickets related to the type of business they were picketing
iii.
Court stresses that it was the only way the workers could redress their grievances
f. Lloyd -1972 Peaceful anti-war handbill distribution within a mall told to go; is this 1st
amendment violation? NO
i.
Pickets unrelated to malls business; plenty of public areas they could’ve gone to and
would be an infringement of property rights for mall owner
ii.
Private property doesn’t lose private character just b/c its open to public
iii.
Distinguish Logan valley- where picketing was directly related in its purpose of use
of shopcenter--not the case here
g. Hudgens -1976 Labor picketers in private shopping center, were told to leave. 1st
amendment violation? NO
i.
Overrule Logan Valley: Argued the content based difference was improper;
shopping centers don’t meet the Jackson test for public functions (traditional govt.
function).
ii.
Open to the public doesn't always equate to public function - mall is private
property
iii.
Clear that the First Amendment doesn't apply to shopping centers
h. Terry -1953--ELECTIONS--Jaybird democratic assoc. barred blacks from preprimary
elections
i.
Voting is fundamental and b/c of the ties the organization had to the political
machine, this was a public function--Elections are traditional, exclusive functions of
government
1. Policy - instance of the govt trying to avoid constitutional violation
Entanglement - Point of contact between private party and government - authorized,
encouraged, or facilitated the unconstitutional conduct
a. Concepts to know:
i.
JUDCIAL & law enforcement actions - Lugar test only for only judicial state action
ii.
Government licensing & REGULATION - In general, govt. licensing or regulation by
itself is insufficient for a state action finding unless there is other govt
encouragement or facilitation. Simply conferring a benefit from the state is not
enough for state action nor is state monopoly. Look at degree of involvement
iii.
SUBSIDIES - Generally subsidies alone don’t justify application of Const, look to see
if government creates agency on the board (think of Amtrak case)
iv.
ENCOURAGE VIOLATIONS - laws that would "encourage" or allow private actors to
violate the Constitution
v.
ENTWINEMENT - (THSAA and Evans)
b. Judicial Law and Enforcement Actions
i.
Shelley, 1948 - Restrictive covenant which forbid blacks from buying land; can the
court enforce these RC? NO
1. State Entanglement when a state court enforces the RC-- court enforcement
is state sponsorship of racial discrimination
2. Examples: Prejudgment Attachment & Peremptory Challenges
ii.
Lugar - 1982 - court issuing a writ and sheriff enforcement was enough for state
action - FAIR ATTRIBUTION TEST- whether can fairly attribute the conduct causing
the deprivation of the federal right to the state:
1. 2 part Test for State Action Analysis for Entanglement:
a. Private actor invokes state authority - Deprivation must be caused by
exercise of some right/privilege caused by the state, or rule or conduct
imposed by state/person, or by a person for whom the state is
responsible
b. Party charged w/deprivation must be fairly said to be a state actor by
obtaining significant assistance from government officials
i.
Distinguish from Flagg b/c there sheriff only made arrangement-repossession was done by private actors
iii.
Edmonson - 1991 Peremptory challenge case - jurors cannot be excluded b/c of race
in civil cases
1. 2 part Lugar test used to determine if it triggers state action
a. PC have no significance outside of courtroom (laws create PC) - must
invoke state authority
b. State actors - judges, prosecutors- criminal defendant(State actor when
use PC)
c. Overt use of state procedure
2. Look at:
a. Extent actor relies on government
b. Traditional government function
c. Injury aggravated by government authority
c. Government Regulation - must be a close nexus between the state and the private
conduct - depends on whether the State has exercised coercive power or has provided
encouragement either overt or covert--mere approval or acquiescence isn't state action
i.
Burton - 1961 Case w/ café inside the parking garage. There is state action, and café
owners that refused to serve blacks violated EP.
1. Land and bldg. both publicly owned; maintenance, state flags flown and
mostly there was a “symbiotic relationship” b/w café and lot
a. Symbiotic Relationship - (1) publicly owned building, (2) mutual
conferred benefits (state benefited from the discrimination)
2. Court has never again found a symbiotic relationship, but Burton has never
been overturned
a. Court in Burton said that inaction by the govt was enough, but the
Court now says that it is NOT enough
3. HYPO - City of Gary leases out a large facility. The Nation of Islam wants to
lease the center, but says they will not allow whites into the center. Should
Gary allow them? Does leasing to them violate 14th Am?
 One time lease of the facility and probably not "mutually conferred
benefits"
 Probably doesn't convey to the public that the government
supports discrimination b/c the City leases the center to hundreds
of other organizations
Moose Lodge -1972 refused service to an Af.-Am, but is Moose Lodge has a
liquor license
Conferring a benefit from the state is not enough for state action. State
must significantly have involved itself in the discrimination (govt. didn’t help
create policies at the Moose lodge)
DISSENT: state had a monopoly and quota on the licenses selecting who
has them. State could've refused to grant the license
Subsidies - Outside of state assistance to segregated private schools with history of
segreation, the court has been unwilling to find a government subsidy to be the basis for
finding state action
Norwood - 1973 Textbooks being given to private and public schools since 1940,
including schools that discriminated against blacks.
Type of financial assistance; by giving tangible aid the state is supporting
private schools that discriminate--state action
Good intentions do not negate state's involvement in unconstitutional
activity.
Rendell-Baker - 1982 teacher was fired, claimed DP violation but court said NO
entanglement even though school received 90% of its $$ from govt.
Private schools have been providing education for a very long time
Education is not a tradition, exclusive function of the
government
Must be a nexus to the challenged conduct - in this case the govt
regulation or assistance is not directly involved in the discharge--no
encouragement of constitutional violation
Private actors that take on functions that serve the public do
not make its acts state actions--education is not been exclusively done
by state
Private contractors don't become state actors by reason of their
significance or even total engagement in performing public contracts
DISSENT: Nexus b/w school and state obvious
Blum -1982 Medicaid patients being transferred or discharged b/c the federal
govt made private hospitals periodically review patients to determine if they need
the same treatment. Patients claim deprivation w/out opportunity to be heard. Is
there state action? NO
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Regulation alone doesn't equal state action, must be some nexus b/w
state and challenged activity, here doctors and administrators made the
choice to transfer patients--all private actors
State responsible when exercising “coercive power” or encouragement
No suggestion that decisions were influenced by state's
obligations to adjust benefits
Healthcare not traditional, exclusive of state
Court is more likely to find entanglement if government's purpose is to
undermine constitutional rights
**look for nexus between the specific action being challenged**
Initiates Encouraging Violation of Rights
Reitman - 1967 CA law allowed landowners to rent to whoever they wanted to,
or didn’t want to and CA court conceded they had no power to limit private racial
discrimination but the act was a cont. violation
Would encourage and involve state in discrimination creating a right to
discriminate
DISSENT: State action must be affirmative to trigger const. violation…
the people voted for it, state being permissive here and not coercive
Romer, 1996 - CO passed an amendment that prohibitied any form of govt to
pass future laws to protect gays or lesbians
Violated equal protection to preclude these groups from using the
political process in the manner available to all other groups in the state
Likely to find if the government facilitates an action that would not otherwise
occur
Look for EP violations
Entwinement - Similar to entanglement
Brentwood - 2001 Group of schools together composed the athletic assn which
held and promoted athletic events/tournaments making up about 84% of the public
schools. Staff made up of teachers and offered retirement benefits. Is the
organization entwined w/ the state? YES
State exercises coercive power and significant encouragement; close
nexus b/w state and challenged action
Private character is overborne by the pervasive entwinement of public
institutions and public officials
Couldn't use Lugar - b/c the authorization was no longer in
statute
Very strong argument for symbiotic relationship -- many lower
courts have used the term symbiotic/entwinement
Tarkanian - regulating amateur sports is not a traditional, exclusive
function of govt
Economic Liberties - With reference to constitutional right to enter into K, pursue a
trade, acquire/possess/convey property
Intro Concepts:
Lochner Era - Court aggressively protected economic rights under the DP clause; strong
laissez-faire attitude… ends in 1937
Economic Substantive DP - Asks whether the govt. has an adequate reason for taking
away persons LLP… focus on sufficiency of the justification of govt actions
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Procedural DP - Refers to the procedures govt. uses to take away LLP…notice..etc.
Allgeyer -1897 - LA tried to punish a company for doing business w/LA resident w/out having
office or agent; does this violate DP? YES
Citizen free to enter into any K that’s proper; improper and illegal interference in
freedom of K
**First time SC invalidated a state law based on these principles**
Liberty is not just physical, but includes living, working, and pursuing livelihood of choice
Lochner Era
Lochner -1905 state law forbid bakers from working more than 60 hour weeks, etc.
Violated 14th amendment (substantive DP rights). Right to sell and purchase labor is a
substantive right
Freedom of K basic right protected as liberty and property rights under the 14th
Govt could interfere w/ freedom of K only for “police power” - protect the
public safety, public health, or morals
Judicial role to carefully scrutinize legislation interfering w/ freedom of K to
make sure it served a “police power” purpose
Is this a fair and reasonable exercise of police power, or is it
unnecessary, unreasonable and arbitrary…judicial review…
Here, no police power interests; needlesome interference w/ individual
rights
DISSENT: There is a safety issue; leave the state alone unless there is a clear
violation
Due Process clause protected against state laws that deprive individuals of liberty
Liberty include many of the 1st 8 Amendments (incorp) and not textual rights
Liberty includes freedom K
Limiting the hours of work violates that freedom unless it is passed to protect
public health
Holden - limit on coal miners was constitutional
Bunting - factory jobs limited to 10 hours a day was constitutional
Very difficult to distinguish between these and Lochner
Employers have a right to freedom of contract just as an employee
Interfering with labor unions
Coppage - Impermissible infringement; not a legitimate police power to
try and equalize bargaining power. No inherent right to join a union
Individuals should have the right to determine who they will
hire and under what circumstances
State should only interfere to serve a valid police purpose of protecting health, public
safety, or public morals
Muller -1908 Are laws which prohibit women from working more than 10 hours
a day a cont. violation? NO Maximum Hour Laws
Police Powers- Women have a specific role in preserving healthy
offspring, and as such there is a strong societal interest in protecting that--Protects society at large
Adkins -1923 Minimum Wage for Women and Kids is not constitutional - didn't
serve any valid police purpose
Court wont accept a doctrine that allows women of mature age to get
benefits a man cant
Only in exceptional circumstances is it allowed
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Society's problem, not the employer's problem to deal with
Courts should closely scrutinize legislation state laws that interferes with freedom of K
to make they are reasonable
Weaver -1926 Using shoddy in comforters, state passed a law making it illegal to
use shoddy b/c of a fear of bacterial infection.
Law was unreasonable b/c it allowed for other materials of equal or
greater harm to be used
Both parties agreed that shoddy could be treated and made safe -prohibition unreasonable and arbitrary b/c there are less restrictive means
available
DISSENT: Legislature thought it was dangerous stuff, SC should leave it
be
Nebbia -1934 Fixed prices in milk was constitutional
Milk essential for diet; milk is heavily regulated already and the purpose
behind the fixing is neither unreasonable nor arbitrary and a state can adopt
whatever economic policy that may reasonably deemed to promote public
welfare/health
END OF LOCHERNISM
West Coast Hotel - 1937 - minimum wage fix for women and minors was constitutional
Const. does not speak to the freedom of K- not an absolute right; protection of
women and minors is a state concern
Govt. not limited to regulating only to advance the public safety, health
and morals (police powers) and has interest to address unequal bargaining
power
Reasonable to its subject and adopted in the interests of the community
Govt. can regulate to serve any legitimate purpose and judiciary will defer to
legislature as long as its reasonable
Carolene -1938 - milk was being mixed with veggie oil, law prohibiting it is constitutional
Purpose is to protect the public; court will presume that a law is constitutional,
switching the burden to PF to show otherwise
Wont be unconstitutional unless there is no rational basis - Government
objective must only need be a goal that it is a legitimate for government to
pursue
Need not be actual purpose of litigation but any conceivable legitimate purpose
is sufficient- means chosen need be only reasonable way to achieve the ends
Challenger had burden, and it is extremely deferential to the govt… wont extend
to issues of fundamental rights or discrimination against minorities
At the end of the Lochner era, laws regulating business would be upheld as long as they
are “rationally related” to a legitimate government purpose which can be any goal not
prohibited by the Const. and any conceivable purpose is sufficient
Willamson -1955 - state law prohibited optician from fitting lenses w/out a prescription
(almost everything would need the involvement of optometrist or ophthalmologist. No DP
violation - the law need not be in every respect logically consistent w/its aim to be
constitutional.
Court going to defer when reasonable; court not going to balance the legitimate
purpose- legislature should do that
As long as there is a conceivable, legitimate, rational reason for the law it will be
upheld… DP no longer going to strike down these kinds of laws
Similar situation in Ferguson v. Skrupa (debt adjustors not allowed to practice
their profession sole monopoly given to lawyers “Its up to legislatures not courts to
decide on the wisdom and utility of legislation” Ferguson shows Court interprets DP
clause no longer protected a right to practice a trade or profession, or even
freedom K
Punitive Damages
BMW -1996 Case with the paintjob, HUGE punitive damages. Can the state
allow such gross damages? NO- this is a violate of substantive DP
When damages enter “grossly excessive” substantive DP may be
triggered; state cant punish for actions outside of its own borders as was
done here; fair notice
Three guideposts to determine if the award is grossly excessive
Degree of Reprehensibility - What is the enormity of the
offense? Here was purely economic, no physical harm
Philip Morris - jury needs to be instructed that harm to others
cannot be used towards punitive damages, but can be used to
decide reprehensibility
Ratio between punitive and compensatory - What is the ration
to the actual harm inflicted? Punitives must bear a reasonable
relationship to compensatory damages (8 or 9 times is looking like it
might be)
State Farm - not more than 9 times of compensatory damages
Sanctions for Comparable Conduct - What are fines for similar
conduct?
Only compare it civil--not criminal b/c it has a different standard
of proof
State Farm- 2003 Case where insurance company didn’t settle when they
should’ve; eventually, policy holder was awarded millions (even though he caused
the accident) Found violation of DP
Where an award is grossly excessive, it is an arbitrary deprivation of
property… similar to BMW case, same guidelines followed
Should be punished for what was done to PF not to entire country; no
bright line ratio, but typically single digit…
“Single-digit multipliers are more likely to comport with due
process, while still achieving the State’s goals of deterrence and
retribution , than awards with ratios in range of 500 to 1, or in this case
145 to 1. But citing Haslip they say more than 4:1 might be close to the
line of constitutional impropriety.”
DISSENT: No DP right against excessive or unreasonable damages… this
is a state decision
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Contracts Clause
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No state shall pass any law impairing the obligation of a K… applies only if a state or local law
interferes with existing K.
Doesn’t apply to federal govt. Challenges to federal interference of K must be brought
under DP clause where they will receive “deferential rational basis review”
K clause doesn’t limit gov. ability to regulate future K, applies only if state or local govt.
is interfering w/ performance of existing K
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Intro
Blaisdell -1934 Extensions given to MN homeowners to avoid foreclosure. Is this
extension a violation to the K clause? NO
Relationship b/w state power and emergencies: emergencies don’t create
power, but emergency may furnish the occasion for the exercise of power
Not for the advantage of a particular group, for the protection of society
Emergency existed in MN furnishing a proper occasion for the exercise
of power to protect vital interests
Legislation had legitimate end to protect society
Reasonable conditions existed--temporary relief mechanism due to the
emergency
Conditions extended not unreasonable and only temporary
Energy Reserves Group - 1983 - State regulating the price of natural gas in the intrastate
market, ruled it didn't substantially affect the K - governmental interference with existing
private K
1. Is there a
Substantial
impairment to the K?
o Sudden,
unexpected, and
substantial
retroactive
obligation (Allied
Structure)
o
Basically, if a substantial impairment, must meet rational basis
Allied Structure -1978 Pension plan case; law forced companies to pay a fee if they closed
down there MN office.
o Violated K clause
i.
This was a substantial impairment to the K;
1. Company had no reason to believe K would be so substantially changed
2. Law wasn’t to deal w/ a broad generalized economic or social problem --only
one group
ii.
Only case since 1934 overturned due to K clause
iii.
DISSENT: Requirement merely supplementing existing K, and there is a social
problem
o US Trust -1977 - governmental interference with governmental contracts subject to
heightened scrutiny - NJ and NY repealed laws that prohibited use of toll revenue b/c of
environmental issues--unconstitutional
i.
There must be a legitimate public purpose, upon reasonable conditions and of
character appropriate
1. Court almost suggests strict scrutiny
ii.
There are less restrictive ways to accomplish the same ends
Takings - Government can only take for public purpose and pay just compensation (5th through
the 14th)
o Common Law actions:
i.
Nuisance - use restrictions
o
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2. IF so, does the
3. AND is the impairment
impairment serve a
reasonably related to achieving the
significant and
goal?
o If the government is party to
legitimate public
purpose?
K--less deference to the
o Serving the
legislator as to need for law
general welfare(US Trust v. NJ)
-not certain
i.
Prohibit the state from
groups
acting in its own selfinterest
ii.
Zoning - government can set aside for different uses
Possessory
Regulatory
permanent, physical occupation
Complete destruction of all econ viable use = taking
(authorized by government)
(except background principle of property law)
If not - Penn Central
 Per se taking - no need to
argue the issue - just the first
Economic impact of the regulation
hurdle
 Diminution in property value standing
 Court then must
alone, however, cases up to 87% does
decide what is just
not equal takings
compensation
Extent to which the regulation has interfered
with investment-backed expectations
 Difficult issues arise when
the govt requires public
Character of the government action
access to property
 Physical invasion
 Taking - govt required
 Reg. serves a broad public service (v.
a private waterway for
special interest)
public use
 No takings requirement of
shopping centers be
open to speech
activities
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b. Is there a taking?
c. Is it property? Generally defer to the state law.
d. Is the taking for public use?
i.
If not, must give the property back, however court has defined public use so broadly
that almost anything = public use… rational basis test used
e. Is just compensation paid? Measured in terms of loss to owner not gain to the govt
(Brown)
POSSESSORY - Loretto -1982 Case where tenants where required to make room for cable
installation on their property. Found a takings
a. Wherever there is a “permanent physical occupation” no matter how minor there is a
taking
i.
Also, there is a taking where the govt. indirectly causes damage rendering property
valueless (Pumpelly)
b. Found a taking even w/out regard to public benefit
REGULATORY
a. PA Coal v. Mahon - 1922 - coal company had contracts with surface owners to mine
underneath, but any problem would be the owners problem--state law ended these
contracts--Court found that there was a takings
i.
Regulation rendered the land useless to the coal companies
ii.
DISSENT: Don’t have a right to create a nuisance- protecting public isn’t a taking
b. Miller -1928 Cedar rust case; PF forced to destroy his trees b/c of the fungus. Was this a
taking? NO
i.
Once one's property becomes a nuisance to another's property, govt can exercise a
takings without paying just compensation.
c.
d.
e.
f.
g.
1. Destroying one class of property to preserve a more beneficial one; in this
case apple trees were more important than the cedars that were destroyed
2. Prefer public over private concerns (besides, the trees could still be used for
$$)
Penn Central -1978 - owners of Grand Central wanted to build on top of the terminal
which was a landmark. Permit was rejected by the govt. NO takings
i.
Court holds the restrictions imposed are substantially related to the promotion of
general welfare
ii.
Is a taking if there is no economic viability left, not just b/c of a decrease in value
1. Historic buildings benefit quality of life for all
2. Not a taking just b/c you cant exploit property to the fullest potential, and
here Penn can still develop and get money
iii.
DISSENT: unfair burden on landowner b/c he cant improve his title
Lucas -1992 couldn’t develop beachfront land b/c So. Carolina passed law prohibiting
building on his property. Is this a taking? YES. 2 types of regulatory taking
i.
Regulation that compels property owner to suffer a physical invasion
ii.
Regulation denies all economically beneficial or productive use of land
1. 5th amendment violated if no legitimate state interest advanced, or owner
denied economic viability
2. Not every diminution is a taking
iii.
Govt. can escape compensation if it is shown there was a law barring the type of
activity being sought by property owner at the time of purchaseà nuisance
1. Must evaluate relationship b/w govt. action and property owners expectation
Lingle - 2005 - HI passed laws regulating the amount of rent private oil companies can
charge. Not a takings, but DP claim
i.
If the regulation doesn't substantially advanced governmental interest--pure
substantive dup process claim
Conditional Land Exactments - takings if either the govt regulation is not rationally
connected to the govt's reason for regulating or the burden imposed by the condition is
not roughly proportionate to the govt's justification for regulating
i.
Nollan - govt said Nollan could build a larger house if he allowed the govt an
easement
1. No police power here b/c the condition isn’t related to preventing harms
caused by construction, no public interest--only to give public a view of ocean
2. No direct correlation between the means and goals--was a takings
3. Is there an essential nexus b/w legitimate state interest and the permit
condition exacted by the city
ii.
Dolan -1994, wants to expand his business, but to do so Dolan must give 15% of the
land for a drainage system and walkway--no takings
1. Rough Proportionality Test--if met, no takings
a. Condition is rationally related to the govt's purpose for regulating
(benefit)
b. Burden created by the condition is roughly proportionate to the govt's
justification for regulating
Palazzolo - 2001, wetland property was conveyed to him after laws were enacted
restricting the type of development that could be done. Permits rejected for parts of the
land he owned. Not a takings
i.
Parcels must be evaluated as a whole for destruction of viable economic use -property still is economically viable
ii.
A new owner isn't completely barred from making a takings claim--even if the new
owner purchased the land after the law in question was passed
1. Private landowners shouldn't suffering the burden alone at the expense of
the public good
h. Agins test, however, overruled
i.
If law doesn’t substantially advance legitimate state interest or denies owner
economically viable use if land
ii.
This is a DP concern, not a takings test, and the substantial advance test suggests
means-ends to determine arbitrary nature of taking which triggers DP
i. Moratoriums and Takings
i.
Lake Tahoe, 2002 - city places a 32 month moratorium on building around the lake.
Plaintiffs claim a total taking by imposing the moratorium just like Lucas. City had
the moratorium to conduct studies and help rehab the lake back to its prior state
1. In Lucas the ban lasted only 24 months - So if the government says its only a
moratorium, will it ever be a takings?
2. Court said it wasn't a total takings b/c it was temporary
a. After the temporary takings, the value of the property would be
completely restored
b. Not a Lucas situation - Must look at the parcel as a whole
3. For a moratorium use Penn Central balance test
a. Maybe cases when a moratorium will be found as a takings
b. Court also said that the property value was probably increased due to
the moratorium
j. Is it for a Public Use?
i.
Midkiff, 1984 - Hawaii was trying to reverse the adverse effects of the land oligopoly
that made it very difficult for others to buy land
1. Basically the public use clause has been interpreted as public purpose
2. Public use because the takings will aid in public purpose of making land sales
easier
a. Court says "any conceivable public purpose" will allow the government
to take private property and pay just compensation
ii.
Kelo, 2005 - New London fell into economic hardship and in order to encourage
economical development, the city took land paying them compensation. Kelo and
others didn't want to give up their land
1. Court said that economic development may be public purpose and the court
is not going to used heightened scrutiny for economic development
a. Majority says in light of precedent it is definitely a public purpose
2. What distinguishes Kelo from other cases
a. Economically depressed area - jobless rate was twice that of the state's,
population was on the decline
b. Comprehensive plan - wasn't just to replace homes with one business,
but a plan with a principle employer with homes to follow
c. Procedurally fair - public had opportunity for input
3. Concurrence - have deference to legislature, but beware of favoritism to
private actors
k. Requirement for Just Compensation
i.
Brown v. Legal Foundation of Washington, 2003 - IOLTA - lawyers deposit client's
accounts into a single account. The interest accrued is used for funding legal
services for the poor
1. Earlier court decision said that interest is a property b/c it developed from the
principle
2. How do we decide just compensation?
a. Loss to the property owner - not the gain to the taker
Court rules the clients lost nothing b/c the client couldn't earn

interest off their funds. Any funds that could accrue interest
could not have been included in the fund

Equal Protection

Overview
What is the classification?
Exists on the face of the law, distinction drawn in law itself -- generally struck
down
Facially neutral but a discriminatory impact or effect -- must show a
discriminatory intent/purpose
What level of scrutiny should be applied?
Strict
o
o
o
When to use:
Suspect class 
Race, aliens
(sometimes),
national
origin, ethnic
backgrounds
non-textual

fundamental
rights
Govt must prove:
compelling

interest of the
govt
Correlation to

the means and
goals - means
are necessary
(no less
discriminatory
alternative)
Not unduly

burdensome
Intermediate
Rational Basis
o When to use:
o Challenger must
Gender, nonprove:

marital
Legitimate govt

children
interest
o Govt must prove:
Means are

Important
rationally

interest of
related
the govt
Presumption of

Means are
Const. validity

o When to use:
substantially
related
Everything that

doesn't fit in
strict or
intermediate
Factors court looks at to determine level of scrutiny:
Immutable characteristics: characteristics person didn’t choose and can’t change

(race, national origin, gender, marital status of one’s parents)
Ability to protect oneself through the political process

History of discrimination

Stereotypes/insular minorities

Does the particular gov’t action meet the level of scrutiny? These two look at the fit
between the means and the ends and analyze them for their appropriateness
Underinclusive law - doesn’t apply to individuals who are similar to those to whom

the law applies- ex’s Railway, *16 year old driver’s
1. Concern gov't targeting politically powerless group, or exempts those with
clout
Overinclusive law - applies to those who need not be included in order for the gov’t

to achieve its purpose- Covers more people than it needs to in order to
accomplish its purpose—ex’s Korematsu, NYC Transit v. Beazer
1. Risk burdening powerless group who would have othewise been spared if
they had more clout.
 A law can be both underinclusive and overinclusive.
Rational Basis Analysis
The gov’t has a legitimate purpose if it advances a traditional police power: protecting
safety, public health, or public morals. Virtually any goal not forbidden by the Constitution
will be deemed sufficient to meet the rational basis test (presumption of validity).
Flexible- court’s can create rational basis with a bite (see Romer, or Lawrence)
Questions to Ask
o

1. What is the
classification?
2. Is the classification rationally related to a legitimate
governmental interest?
c. Legitimate Purpose
i.
Romer v. Evans, 1996 -Amendment prohibited any state or local law that protected
homosexuals against discrimination on the basis of their sexual orientation
1. Court used a 2-part analysis and determined that the amendment violated
the particular powerless groups’s EP rights b/c THERE WAS NO LEGITIMATE
PURPOSE IN SINGLING OUT A PATICULAR GROUP AND PRECLUDING IT FROM
USING THE POLITICAL PROCESS, and was motivated solely by sheer animosity.
ii.
Fritz, 1980 - ANY CONCEIVABLE PURPOSE should be sufficient whether a legitimate
actual purpose is required -- doesn't need to motivate the law
1. Where there is are plausible reasons for Congress's action, Court ends inquiry.
2. In Fritz - law was passed so that retired RR workers couldn't collect from the
RR retirement system and social security
iii.
FCC v. Beach - those attacking rationality of legislative classification have the burden
to negate every conceivable basis which might support the classification
iv.
Tenstion between actual purpose and conceivable purpose
1. Legislature is not required to articulate actual reasons for passing a law
2. Doesn't matter if the purpose used in court was actually what motivated
congress
d. Reasonable Relationship
i.
SUBSTANTIAL UNDERINCLUSIVENESS - Railway Express v. New York - banned all
advertising on the sides of trucks, but allowed ads for businesses the trucks are
being used. New York goal to prevent distraction of pedestrians/drivers by
regulating advertising on vehicles
1. Irrelevant that the law was underinclusive - the law doesn’t include all of
those who are causing the problem
ii.
iii.
iv.
a. Should be able to start somewhere in eradicating all evils. Govt may
proceed one step at a time.
2. Base on practical considerations, not theoretical inconsistencies
SUBSTANTIAL OVERINCLUSIVENESS - New York City Transit v. Beazer - TA refused to
hire all methadone users, because of a safety concern for its travelers
1. Court said its risking hiring methadone users and that its okay to ban them all
a. Legitimate safety concern and the easiest way to promote safety is to
generally exclude all drug users- any alternative would be less precise at
achieving end than total ban on those using drugs. Too risky to hire
methadone users
b. Was a policy decision not aimed at an individual or group
LAWS BOTH UNDER AND OVERINCLUSIVE - Vance v. Bradley - Court upheld a
mandatory retirement age of 60 for foreign service. Gov interest have physically fit
officers, physically fit officer over age limit attacks the statute
1. Law overinclusive - b/c some 60 and up can be physically fit to work,
underinclusive- some below age limit are not physically fit to work
LAWS ARE ARBITRARY AND UNREASONABLE 1. Moreno, 1973 - federal law that excluded from participation in Food Stamp
program any household containing a person who is unrelated to any other
members of the household.
a. Court ruled that the law was passed to harm a politically unpopular
group (hippies) and thus unconstitutional
b. There must be a reference to public interest
2. Texas v. Cleburne Living Center, 1985 - Cleburne made it harder for group
homes for the mentally retarded to achieve zoning permission than for other
group living arrangements to do so.
a. law is arbitrary and has no real legitimate purpose except to
discriminate against mentally retarded
i.
Zoning procedure was found to violate even mere rationality Justifications based on prejudices are not legitimate gov purposes
b. Mentally Retarded NOT QUASI- SUSPECT CLASS - use rational basis
i.
legislators are more prepared to deal w/ mentally retarded &
Court avoids Judicial Oversight
ii.
Large diversified body, varying degrees of mentally retarded, not
uniform class
iii.
Opening up flood gates for all immutable characteristics
iv.
Mentally retarded not politically powerless
c. Government may not avoid EPC by responding to the desires of the
body politic

Classifications Based on Race and National Origin

Proving existence of a race or national origin classification
Facial Classifications - De Jure Segregation - segregation imposed by law - Strauder,
Korematsu, Loving, Palmore, Plessy, Brown, Johnson
Neutral Laws - neutral on its face and racially discriminate is only subject to strict
scrutiny if the purpose of the law was intentional racial discrimination
Face of the Law - Race specific classifications that disadvantage racial minorities



Strauder v. West Virginia, 1879 - Court declared unconstitutional a law that only allowed
white men who are 21 to serve on jury, because it expressly “singled out” and
disadvantaged blacks
The 14th amendment is to assure blacks can enjoy civil rights and should be
protected by feds when states deny
Korematsu v. US, 1944 - Example of Court’s tremendous deference to Military in times
of War
Strict Scrutiny
Compelling interest - nationally security
Means necessary - no less restrictive means - found a link between race
and disloyalty
Impossible to bring about an immediate segregation of the
disloyal and loyal
All legal classifications on race immediately suspect
Racial antagonism never a justification, but public necessity can be
Face of the Law - RACIAL CLASSIFICATIONS Burdens BOTH whites and minorities
Loving v. Virginia, 1967 - outlawed interracial marriage. State claimed that blacks
weren’t disfavored b/c whites were blocked from marrying blacks just as much as blacks
were blocked from marrying whites. Made it a crime for white person to marry outside
the Caucasian race.
Court found it was enacted to protect the “racial purity” of whites - Restricting
the freedom to marry solely because of racial classifications violates EP -- induces
racial prejudice
McLaughlin v. FL - Court declared unconstitutional a FL law that prohibited the habitual
occupation of a room at night by unmarried interracial couples
Palmore v. Sidoti, 1984 - State court divested mother of custody of her infant child
because of her remarriage to a person of a different race—father wanted custody b/c he
didn't want his child to be raised by a black man
Inevitable that child will be more vulnerable and suffer from social
stigmatization if allowed to remain w/white mother and black boyfriend
But the effects of racial prejudice cannot justify racial classification
removing infant child from custody of its natural mother (who was a fit
mother and had proper custody)
Violation of equal protection for a state court to use race as a factor in
determining who would have custody of the child
Face of the Law - Segregation
SEPARATE BUT EQUAL - Plessy v. Ferguson, 1896 - Louisiana enacted a law that required
separate railway cars for blacks and whites. In 1892, Homer Adolph Plessy--who was
seven-eighths Caucasian--took a seat in a "whites only" car of a Louisiana train. He
refused to move was arrested.
Separate-but-equal doctrine - separate facilities for blacks and whites satisfied
the Fourteenth Amendment so long as they were equal
Doesn't imply inferiority
14th amendment doesn’t protect social equality only political equality
Brown v. Board of Education I, 1954 - State imposed segregation itself creates a sense of
inferiority, separate but equal is impermissible in the context of public education, but it
may be used in other situations

Implied inferiority, lessens security for rights others enjoy, may reduce to
subject race
Segregation based on race constitutes a racial classification and must meet strict
scrutiny under EP
Criticisms of Brown -- By relying on social science evidence the ruling could
easily be overturned If that evidence proved to be false. The court did not directly
address the issue of whether or not segregation was morally wrong, and it only
addressed segregation in educational context
Cases that followed Brown - desegregated other contexts of southern
life: public beaches, municipal golf courses, public restaurants, courtroom
seating
Johnson v. California, 2005 - California Department of Corrections used race to assign
temporary cell mates for new prisoners.
Court held that prison racial-segregation policies are subject to strict scrutiny
because of the process of segregating inmates based on race alone
Didn't answer the issue--remanded to use strict scrutiny analysis
The Court rejected the claim that because the policy was "neutral" - because all
prisoners were "equally" segregated - the policy was not subject to strict scrutiny.
Racial classifications must receive strict scrutiny even when they may be said to
affect the races equally
Using discrimination to further penological interests may lead to a slippery slope
- where do we stop? Lunch, recess, separate prisons for races
Facially Neutral Laws - facially neutral will receive rational basis, but if you can prove purpose or
intent will trigger racial classification and Strict Scrutiny
Washington v. Davis, 1976 - All police officers were required to take Test 21 which
examined verbal ability, vocab, reading, and comprehension. Blacks failed more often
than Whites. Blacks Claim the test bore no relationship to job performance and that it
had a highly discriminatory impact in screening out blacks
Court found the law constitutional, served a legitimate gov’t purpose --having a
smarter police department.
Must show DISCRIMINATORY intent or purpose (difficult to prove)-Discriminatory impact standing alone does not trigger SS--only Ratl Basis
From totality of facts, impact is not irrelevant, but is not
enough.
* Equal Protection Clause guarantees equal treatment, not equal results.
Exception to Washington v. Davis - Civil Rights statutes, can and often
do, allow violations to be proven based on discriminatory impact without
evidence of discriminatory purpose
McCleskey v. Kemp, 1987 - claimed EP violation b/c the death penalty was given more
often to black defendants
Can't just rely on statistical data--stats alone are not evidence that would
support an inference that racial considerations played a part in sentencing
Also had to prove that the Georgia legislature enacted or maintained the death
penalty because of an anticipated racially discriminatory effect.
No evidence of discriminatory effect on plaintiff
Must be more than intent as volition or awareness, but need to have shown
Georgia maintained practice because of disparate impact
Mobile v. Bolden, 1980 - Black citizens of Mobile challenging constitionality of the city’s
at large method of electing its commissioners, 35 % of city black, never had a black
commissioner.
At large electoral system does not violate the rights of the cities black voters in
contravention of the 15th amendment
Blacks register and vote w/out hindrance, and there freedom to vote
has not been denied or abridged by anyone --wasn't racially motivated
Rogers v. Lodge, 1982 - the court held that an at-large election system was
unconstitutional because there was sufficient proof of an discriminatory purpose behind
election system.
Prima Facie Voter Dilution
Minority must be sufficiently large and geographically compact to be
majority of district
Must be politically cohesive
Racially polarized must be shown, so that white bloc could defeat
minority candidates
DISCRIMINATORY EFFECT IS REQUIRED - Palmer v. Thompson, 1971 - 5 public swimming
pools, 4 used by whites only, 1 by blacks only, city council decided to not allow
desegregation, and instead decided to shut-down pools. Blacks filed suit in order to
compel City to re-open pools and integrate.
No Constitutional guarantee that state will keep open swimming pools. Closing
of all swimming pools to all its citizens doesn't constitute a denial of EP
Discriminatory purpose alone is insufficient to prove that a facially neutral law
constitutes a race or national origin classification--must have effect
HOW TO PROVE DISCRIMINATORY PURPOSE Feeney, 1979 - MA veterans were given absolute preference to civil service
occupations. Women claimed gender discrimination
Simply the consequences won't prove--state wanted to benefit the
broad group of veterans--almost impossible to prove discriminatory purpose
Discriminatory purpose implies more than intent as volition or intent as
awareness of the consequences
Implies that the decision maker selected or reaffirmed a course of
action at least in part b/c of, not merely in spite of its adverse effects
Arlington Heights v. Metro. Housing, 1977 - involved a challenge to city’s refusal
to rezone a parcel of land to allow construction of low and moderate income
housing. Historically zoning permits had been for single-family homes, so denial of
zoning permit for housing projects, was not a departure from normal procedure,
because also they had never granted a zoning permit of this type.
Types of evidence to find intent
 Disparate Impact - may be so clearly discriminatory as to allow no other
explanation
 Racially Neutral Law adopted without discriminatory intent, but
impact may be so clearly discriminatory as to allow no other
explanation that that it was adopted for impermissible purposes –
Yick Wo
 Broader History - look for a departure from normal procedures
 Substantive departures - particularly if the factors usually
considered important by the decision maker strongly favor a

contrary result, but the action appears to have been taken for
invidious purposes
 Specific History of the decision - specific sequence of events leading up
to the challenged decision
Evidence of Discriminatory Purpose Shifts the Burden to the
government
The discriminatory use of peremptory challenges by a prosecutor denies equal
protection (Batson v. Kentucky)- overruled Swain v. Alabama which required the
proof of systematic discrimination over a series of cases, and allowed discrimination
to be proved in the instant case
Prongs for prima facie case of discrimination
 To show that it is more likely than not that race was used as the basis
for the peremptory challenge- Defendant must show that he is a
member of a cognizable racial group, and that the prosecutor has
exercised peremptory challenges to remove from the venire members
of the defendant’s race.
 The burden shifts to the prosecutor to offer a race-neutral explanation
for the peremptory challenge- clear and reasonably specific
explanation- it doesn’t have to be persuasive or plausible
 The court evaluates the plausibleness of the explanation and determine
whether the explanation is persuasive or whether the Def has
established purposeful discrimination.
Edmonson v. Leesville Concrete Co. - SC rules Batson applies in Civil
Litigation
Criminal Defendants cannot exercise peremptory challenges in
discriminatory manner
J.E.B. v. Alabama - SC holds Batson to apply gender-based discrimination
in the use of peremptory challenges, as well as all other heightened scrutiny
classifications- Alienage, illegitimacy, race, gender, fundamental
constitutional rights
JURY MEMBERS HAVE RIGHT TO BE FREE FROM DISCRIMINATION-don’t look at
defendants rights or prosecutions rights
REMEDIES for violations of EP - invalidate the law OR Issue an injunction prohibiting the
offending conduct
Problems with School Desegregation
Brown II, 1955 -- Local school districts have to comply with Brown I and the
district courts will best serve that purpose --full compliance with them "with all
deliberate speed."
School's responsibility and they must act in good faith
Court's are guided by equitable principles because of flexibility
Massive Resistance
Aaron v. Cooper - Arks governor called in national guard to stop blacks from
integrating in Little Rock H.S., president Eisenhower called in federal troops to
assure blacks were admitted to the school; However; Cooper didn’t end efforts by
Southern States to escape Brown and prevent desegregation.
Griffin v. Co. School Board - closed public schools rather than desegregate- court
declared Unconstitional- TOO much deliberation and not enough speed
Goss v. Board of Education - allowed students to transfer where they were racial
minority to ones where they would be in the racial majority- (Whites go from
mostly black school to mostly all white school)
Green v. County School Board - declared unconstitutional freedom of choice
plan (school choice)
School boards have affirmative duty to take whatever steps might be necessary to
convert to a unitary system in which racial discrimination would be eliminated root and
branch.”
Also School Board- burden proof to show acted in good faith in their efforts to
comply
Availability of more promising means may be lack of good faith
Civil Rights Act of 1964 - HELPED DESEGREGATION GREATLY - Prohibited discrimination
by schools receiving federal funds: JUICIAL POWER TO IMPOSE REMEDIES
Swann v. Charlotte-Mecklenburg, 1971 - General Holding- Federal Courts have
broad authority in formulating remedies in desegregation cases
Mathematical ratios - are a useful starting point to achieve and identify
goals, but are not the goal and have limited use in the court's discretion
One Race Schools - shifts burden upon school authorities to satisfy the
court that their racial composition is not the result of present or past
discriminatory action on their part
Remedial altering of attendance zones = there are limits on courts, but
gerrymandering of school districts and attendance zones is not beyond the
broad remedial powers of a court
Transportation - Local school authorities may be required to employ bus
transportation as a tool of desegregation, but objection may be valid if time
or distance of travel poses a risk the health of the children or significantly
impinge educational process. District Court must weigh the soundness of
transportation plan.
Milliken v. Bradley, 1974 - Detroit in violation, suburbs not in violation, tried to
get all to comply with desegregation, but Court says cannot force suburbs b/c no
violation of constitution has occurred in these areas.
Limits were place on the remedial powers of the court so that the scope
of the remedy is defined by the nature and extent of the constitutional
violation
 Interdistrict remedies aren’t allowed unless an interdistrict violation can
be shown.
WHEN SHOULD FEDERAL DESEGREGATION END? 1990’s 3 cases hastened the end of
federal court desegregation orders.
Dowell, 1991 - the remedy must stop once the effects of the original intentional
discrimination have been eradicated. There is a violation of equal protection only
where the segregation is the result of intentional government action
School district lines were originally drawn by officials who had a desire
to separate students based on race. Court imposed a desegregation decree
(injunction) to remedy the discrimination.
Court found that if school board makes a sufficient showing that they
have complied w/ orders to create a unitary system, the court may remove
the injunction. If once the injunction is lifted the system goes back to a dual

one, there is no violation of equal protection if there was no intent to resegregate.
Freeman v. Pits - Once a portion of a desegregation order has been met the
court should focus its efforts on the part that remains to be met
Racial Classifications Benefiting Minorities
What level of scrutiny should be used for racial classifications benefiting minorities?
1978 - Regents of University of California v. Bakke - No majority opinion on level
of scrutiny
1980 - Fullilove b. Klutznick - No majority opinion of level of scrutiny
1987 - U.S. v. Paradise
1989 - Richmond v. Croson - Court expressly held that strict scrutiny should be
used in evaluating state and local affirmative action (14th).
1990 - Metro - Court held that congressionally approved affirmative action
programs only need to meet intermediate scrutiny (5th).
1995 - Adarand v. Pena - Court overruled Metro and held all racial classifications
imposed by federal, state or local governmental actors must be analyzed by
reviewing court under strict scrutiny
Court reaffirmed strict scrutiny Grutter and Grantz 2003 - Federal racial
classifications like those of a state must serve a compelling governmental interest
and must be narrowly tailored to further that interest
What purposes for affirmative action programs are sufficient to meet the level of
scrutiny?
Compelling interest
Narrowly tailored means
1. Diversity in higher education
1. Necessary - must be consideration
i.
Elementary & secondary - 4
of race neutral alternatives
justices have said no
2. Flexible - individualized
2. Remedy past identified discrimination
determinations (no strict quotas)
by entity adopting affirmative action
3. Can't unduly burden rights of noni.
NOT societal discrimination - Must
minorities
be from state action in the area to
i.
No terminations/lay offs
use aff. action
4. Temporary - must be an end point
ii.
NOT role models - for minority
communities
iii.
NOT enhancing services provided
to minorities
3. Adjudicated by Court
i.
Enhancing Diversity
1. Bakke, 1978 -Interest of diversity is compelling in the context of a universities’
admission program
2. Grutter and Gratz - Universities have a compelling interest in creating a diverse
student body and they may use race as one factor among many to benefit
minorities and enhance diversity. The benefits of diversity are substantial
because they:
a. promote cross-racial understanding,
b. break down racial stereotypes, and
c. enable student to understand people of different races.
d. Enhancing services provided in minority communities
i.

In Bakke, Powell rejected argument that training more Black
doctors will increase the number of doctors desiring to practice in
the Black community.
e. Providing role models for minority communities - REJECTED as a
compelling justification for affirmative action programs.- Wyatt
3. Parents Involved in Community Schools, 2007 - Two School systems involved -Seattle - used a race tie breaker, never had past discrimination-- Louisville schools had a baseline of race that must be met - blacks had to meet a certain
percentage, had past discrimination and finally reached unitary status
a. Is there a compelling government interest?
i.
Diversity in education
a. 4 justices say that it isn't compelling interest in elementary
and secondary education
b. 1 justice disagrees (Kennedy)
1. Advocates an indirect use of race which is
constitutionally permissible
i.
Not direct use of race to affect individual
students
ii.
Narrowly tailored means
a. Race as a determinative factor - no individual assessment
b. Opinion seems like the dissent in Grutter
i.
When the government steps in making determinations on race
breeds ideas of inferiority
c. Dissent is troubled between the irony of Brown I which prohibited the
separation of races, but in this case, the school boards are trying to
integrate
iii.
What techniques of affirmative action are sufficient to meet the level of scrutiny?
1.
Racial Quotas - Court made it clear that racial quotas will be allowed only if need to
remedy clearly proven past discrimination.
a. Paradise - proved intentional discrimination against Blacks in hiring and
promotions and thus allowed the remedy of every white hired, a qualified
black must be hired--important that it was only for a short period of time
2.
Using race as one factor in decisions to help minorities
a. In Bakke - race could be used a plus factor in a particular applicant’s file but all
applicant’s files were to be reviewed on equal footing;
b. In Grutter, ruled universities have a compelling interest to create a diverse
student body and that they may use race as one factor among many to
benefit minorities and enhance diversity. Must be temporarily and limited by
need. The means used can’t unduly harm any racial group. Critical mass is
valid provided that it’s not a rigid framework or quota;
3.
Deviations from seniority systems
a. In Wyatt, Court declared unconstitutional a city’s attempt to achieve faculty
diversity in its schools by laying off white teachers with more seniority than
black teachers with less seniority who were retained
i.
not narrowly tailored and other less intrusive means of hiring goals
were available.
DRAWING ELECTION DISTRICTS TO INCREASE MINORITY REPRESENTATION
i.
The use of race in drawing election districts must meet strict scrutiny

1.
It is permissible only if shown to meet a compelling government interest
2.
Long history of use of racial discrimination in elections
ii.
There are two ways in which it can be demonstrated race was used and strict scrutiny
should be applied
1.
If the district has a bizarre shape
2.
If cannot be inferred from shape, if it is proven race was a predominant factor in
drawing the lines
a. For strict scrutiny to apply, the plaintiffs must prove that other legitimate
districting principles were subordinated to race
iii.
Justifications which are sufficient to meet strict scrutiny
1.
The views of the Justice Dept (sec. 5 of Voting Rights Act), about desirability of
maximizing minority districts do not constitute a compelling interest
2.
1982 amendments--unclear.
a. Justice O'Connor believes it is compelling interest
iv.
In Easley, differentiated between using race for political reasons (unconstitutional) and
affirmative action (constitutional).
1.
Those who claim that a legislature has improperly used race as a criterion to create
a district must show, at a minimum, that the legislature subordinated traditional
race-neutral districting principles to racial considerations.
2.
Race must be the predominant factor motivating the legislature's districting
decision.
a. Unexplainable on any grounds other than race.
3.
Legislature must have discretion to exercise the political judgment necessary to
balance competing interests and courts must exercise extraordinary caution in
adjudicating claims that a state has drawn district lines on the basis of race.
a. Especially appropriate in this case b/c the State has articulated a legitimate
political explanation for its districting decision
Gender Classifications - Intermediate scrutiny - important objective and means are substantially
related to that objective.
i.
Biological differences make it more likely for government interests to be justified.
1.
Also, women are political majority not isolated from men.
ii.
In the past the court applied rational basis - Reed v. Reed, - Gender was used as the “tie
breaker” for determining who would be administrator/trix of estate. This is the first time
Supreme Court invalidated a gender classification and deemed gender a suspect class
1.
Court determined that gender was irrelevant and that other gender-neutral factors
could have been used to break the tie (e.g. eldest child) and declared the law
unconstitutional. Gender is irrelevant in that it has not rational relationship to the
ability to administer an estate.
iii.
Frontiero v. Richardson, 1973 - first used strict scrutiny but only got 4 votes. Gov
presumed wife was dependant on husband, thus husband wouldn’t have to show
anything. But wife would have to demonstrate that her husband was dependant on her by
offering proof.
1.
Men allowed to claim their wives as dependents w/o regard to whether she was in
fact dependent on him whereas women not allowed to claim their husbands as
independents unless he was in fact dependent on her for over 50% of his support.
2.
Court used strict scrutiny b/c gender was considered an inherently suspect
classification (like race).
iv.
v.
vi.
vii.
viii.
Intermediate scrutiny for gender classifications - Craig v. Boren, 1976 - Oklahoma forbid
the sale of 3.2 beer to males under the age of 21, and to females under the age of 18.
State’s purported goal was to enhance traffic safety.
1.
This statute violated the equal protection rights of males aged 18 to 20, b/c it was
not substantially related to the achievement of important governmental objectives.
a. To remedy the problem the court could have just moved the age for men
down to 18 or move woman up to age 21 for drinking purposes. The stats just
weren’t enough for the court to basis a ruling upon (2% of men in that age
group involved in drunk driving incidents)
Sex-based classification that seems to reinforce stereotypes about the “proper place” of
women, probably can’t survive IS - US v. Virginia, 1996
1.
Virginia maintained VMI as an all-male college b/c of the state’s view that only men
could handle the school’s harsh, militaristic method.
a. Require an "exceedingly persuasive justification" for any gender-based
classification--sounds like intermediate
i.
Must not rely on overly broad generalizations about the different
talents, capacities, or preferences of men and women
Pregnancy discrimination is NOT gender discrimination - Geduldig v. Aiello, 1974 - only
needs rational basis
1.
Pregnant v. nonpregnant - while the first is exclusively women, the second is not-Congress overruled Geduldig through law
Gender classifications based on Role Stereotypes - generally won’t be allowed (Societal
and Economical stereotypes). The entity seeking to remedy past gender-based
discrimination must show its individual discrimination in the past, not society’s past
discrimination
1.
Orr v. Orr, 1979 - court invalidated Alabama law that allowed women but not men
to receive alimony in case of divorce. The court explained that under the statute
individualized hearings assessing the parties’ relative finances already occur and
needy males could be helped along with needy females without and additional
burden upon the state.
2.
Miss. Univ. for Women v. Hogan, 1981 -The stereotype here is that some
occupations are primarily reserved for women and not men. It perpetuated the
stereotype that women should be nurses and not men.
a. State claimed a compensatory purpose, but failed to establish that the alleged
objective is the actual purpose underlying the discrim. classification
Exceptions:
1.
Michael M., 1981 - Statue made men alone criminally liable for sexual intercourse.
State’s interest in preventing illegitimate pregnancy. 17 boy has sex with 16. The
statute made it a crime to have sex under age 18, but only males were prosecuted.
The gender base law was adopted because of sexual stereotypes valuing the
chastity of young women.
a. Court upheld that law because it could attack the problem of teenage
pregnancy and sexual activity by regulating and punishing men and not
women. The means were sufficiently related to the goal.
2.
Rostker v. Goldberg, 1981 - Court accepted stereotypes that woman were biological
inferior or not capable of combat so they upheld a male only draft registration.
Staffing woman would burden the military effectiveness of putting together an
army quickly

a. Govt proved an important govt interest - *Court always gives deference to
Congress on military affairs.
b. Practice was not reached because of traditional thinking about women.
ix.
Gender classification benefiting women designed to remedy past discrimination and
differences in opportunity generally are permitted
1.
Califano v. Webster, 1977 - important govt interest to reduce the economic
disparity between men and women caused by the long history of discrimination
against women. Remedying past societal discrimination is an important govt
interest.
2.
Schlesinger v. Bower - Court upheld a Navy regulation that allowed women to have
13 years to receive promotion, while only allowing men 9 years. The court deiced it
was constitutional b/c it was a legitimate goal to compensate for lack of
opportunites
x.
Gender classifications benefiting women can be based on biological differences between
men and women.
1.
Nguyen v. INS, 2001 - Citizenship for a child born outside of US depends on gender.
Born to US mother--citizen, born to unwed father must go through 3 steps.
a. Important Govt interest - (1) ensure parent-child relationship with US parent
(2) perpetuate "real" relationships
b. Classification not based on stereotype but on the rational difference between
in the connection from birth of a mother and unwed father.
Alienage Classifications - Equal Protection Clause explicitly says no “person,” but person does
not mean “citizen.”
i.
Level of scrutiny - strict scrutiny -- exceptions
1.
Rational basis when related to self-gov’t and democratic process (e.g. police,
teachers, probation officers, voting)
a. State laws prohibiting aliens from positions at the heart of representative
govt -- directly in the formulation, execution, or review of broad public policy
b. Foley v. Connelie - police officer, upheld law excluded aliens from being NY
state troopers
c. Ambach v. Norwick - Aliens couldn’t be school teachers within NY schools
because teacher has opportunity to influence students.
d. Cabell v. Chaves-Salido - rational basis review-probation officer
2.
Acts of Congress and the Executive use rational basis - Classification created by
state and local use strict scrutiny
a. B/c of the role of Congress and the President in matters of immigration and
foreign policy
b. Deference is given to decisions made by Congress and President, not federal
administrative agencies
ii.
Strict scrutiny (General Rule)
1.
A state can’t deny welfare benefits to aliens, because such a classification based on
alienage cannot be shown to be necessary to the achievement of a compelling state
interest. A state has a legit interest in protecting the fiscal integrity of its programs,
but it is not compelling. (Graham v. Richardson).
2.
Alienage is subject to heighten scrutiny because the discrete and insularity of
minorities. Have no political power
3.
Can hold positions that are not related to legitimate govt interests

a. In re Griffiths - A state can’t prevent resident aliens from practicing law,
because such a classification can’t survive strict scrutiny
b. Sugarman v. Dougall - NY law prevented aliens from holding civil service jobs.
4.
Bernal v. Fainter - strict scrutiny-notary public
iii.
Undocumented Aliens and Equal Protection-- Plyler v. Doe - Plaintiffs were aliens and
children.
1.
*Illegal Alienage is not a suspect classification and Education is not a fundamental
right
2.
Children of illegal entrants have no control over their parents conduct or their own
status, and legislation directing the onus of a parent’s misconduct against his
children does not comport with fundamental conceptions of justice.
a. If a state denies free public education to illegal aliens, this will be subjected to
rational basis , however, sounds like rational basis with bite and meet a
substantial govt interest
3.
Saving money is not legitimate because excluding these children won't make the
system better.
Classifications Against Non-Marital Children - Intermediate Scrutiny
i.
Court has said that imposing burdens on illegit kids for something they can’t change or
bares no rational relationship to individual’s ability to contribute or participate in society.
ii.
Illegitimacy is different from race and gender which receive heighten scrutiny in that
illegitimacy doesn’t carry a clear badge and the degree of discrimination has not reached
the disparity that blacks and women faced.
iii.
Three types of Classifications:
1.
Laws that deny benefits to all non-marital kids but grant them to marital children-Always declared unconstitutional
a. non-martial kids couldn’t bring wrongful death action, but martial kids could-unconstitutional
b. Prevented parents from suing for the wrongful death of their non-marital
kids--unconstitutional
c. state assistance program was only given to families with two married adults
and a child--unconstitutional
d. law that created a legal obligation to support marital kids, but not non-marital
kids--unconstitutional
e. prevented non-marital kids from inheriting from their dads, while marital kids
could inherit from either parent
2.
Laws that provided a benefit to some non-marital children, while denying the
benefit to other non-martial children are evaluated on a case-by-case basis under
intermediate scrutiny.
a. court upheld state law that non-marital kid could inherit from his dad only if
parental was established during dad’s lifetime…state’s interest: important
interest in preventing fraud.
b. Court upheld provision in Social Security Act that allowed kids to receive
survivor benefits only if they could establish paternity and that the father was
financially supporting them. *Law was constitutional because it didn’t
preclude any kid from receiving benefits and reduced administrative burdens
on the government.
3.
Laws that create statues of limitations for the time period for determining paternity
for those with an interest in the child…these laws must provide enough time to

establish an interest in the child and must be substantially related to the State’s
interest in preventing false claims.
a. Court has been consistently hostile to limitation periods on establishing
paternity. Rules unconstitutional on a state law that required paternity for an
unmarried dad had to be established within a year of the kid’s birth b/c it
harms the interests of the child
i.
Two step analysis:
 period must be significant long in duration to obtain judicial
declaration of paternity
 Any time limitation placed on opportunity to obtain opportunity
must be substantially related to the State’s interest in avoiding
the litigation of stale or fraudulent claims. Court found a 2 year
and 6 year statute limitations unconstitutional.
Other Classifications - all use Rational Basis
Age - Rational Basis – not a suspect or quasi-suspect classification, the reason it isn’t is
because they haven’t experienced a history of discrimination, they have a voice in the
political process, and it is only temporary. The rational basis test is used (Mass. Bd of
Retirement v. Murgia).
A state required all state troopers over 50 to retire in order preserve a physically
fit police force.
B/c there is some slight overall rational relation between age and fitness, the
retirement rule does not violate equal protection.
Disability - Rational Basis – B/c mental status is not a suspect or quasi-suspect
classification (City of Cleburne).
A city made it harder for group homes for the mentally retarded to achieve
zoning permission than for other group living arrangements to do so.
This zoning procedure violated even rational basis.
Wealth – B/c wealth is not a suspect or quasi-suspect classification, the rational basis
test is used. The court will uphold a statute if it finds that the legislature could reasonably
have believed that its statute might help achieve some legitimate state objective.
Although for some time it appeared that the court would use heightened scrutiny.
Poverty is not immutable, and most discrimination is just from the impact of
laws.
Abortion payments - rational basis
Sexual Orientation – Classifications based on sexual orientation face only rational basis
review if they treat homosexuals differently from heterosexuals
Fundamental Rights Under Due Process and Equal Protection
9th Amendment used to provide a textual justification for the court to protect nontextual rights, such as the right to privacy.
Is there a
fundamental right?
Is it a liberty
deeply rooted
in history and
tradition?
Is it an
interest
Is the right
infringed?
Consider the
“directness and
substantiality of
the interference.”
Does it
completely
Is the gov’ts
action
justified by a
sufficient
purpose?
1.
If
fundam
ental,
Are the means sufficiently
related to the goal sought?
a.
Under strict scrutiny, the
law must be necessary to
achieve the objective. For
example, are there any
less restrictive means to
accomplish the goal?
traditionally
protected by
society?
Is it so
rooted in the
conscience of
the people as
a
fundamental
liberty?
If
yes,
strict
scrutiny
.
If
no,
rational
basis.
b.

prohibit?
Is there a
direct and
substantial
interferenc
e with the
right?
Is there
an undue
burden
standardplacing a
substantial
obstacle on
women
seeking
abortions?
2.
compelli
ng
interest.
If not
fundam
ental,
legitima
te
purpose
.
i.
Overinclusive and
Underinclusive
measure the fit of
the means of the
end.
Equal Protection v. Substantive Due Process
i.
Equal Protection – Government discrimination as to who can exercise right, right is
denied to some, but not all.
ii.
Substantive due process – Whether government interference with a right is
justified, right is denied to everybody.
Family Autonomy - Fundamental rights are not absolute. States may impose reasonable
regulations if they have a compelling interest (strict scrutiny).
a.
Right to marry
i.
Loving v. Virginia - Virginia law prohibited a white person from marrying outside the
white race. White guy married to black women.
1. Acknowledged the right to marry is a fundamental right
ii.
Zablocki v. Redhail, 1978 - Prevented from getting a marriage license without
approval of trial court because law said you couldn’t get married unless you paid
child support on your child. Redhail wanted a marriage license, but he owed money
in back child support so court didn’t grant him license.
1. State has alternative means to address the late payments, thus it fails
because it is not "sufficiently" related nor is it closely tailored to the means.
2. However, even though marriage is a fundamental right, the state can impose
reasonable regulations (e.g. 12-year-old can’t get a marriage license, can’t
marry 1st cousin).
3. Reasonable regulations that do not interfere with the decision to enter into
marriage may be ok.
iii.
Boddie v. Conn., 1971 - b/c the right marry is a fundamental right and a person can't
be married to two persons, laws infringing upon divorce violate DP
b.
Right to custody of one’s children
i.
A natural parent’s desire for a right to companionship, care, custody, and
management his children is an interest far more crucial than any property right.
ii.
c.
d.
Under the “Brennan approach," there is a fundamental right to a natural parentchild relationship b/c state has a compelling interest in preserving the family unit.
iii.
Stanley v. Illinois, 1972 - dad lived with mom for 18 years, mom died and state took
kids away from dad because he hadn’t been married to the kid’s mom.
1. The State law violated both DP and EP because it terminated the natural
parent’s rights without a showing that he was unfit to raise his children.
2. Procedure by presumption is always cheaper than individual determinations,
but runs the risk of infringing rights/interest of a parent and child.
iv.
Lehr v. Robinson, 1983 - unmarried, biological father was denied the right to raise
his children for failure to pay child support
1. fundamental right is only extended to biological fathers who have established
a relationship with the child
a.
Mere existence of a biological link does not merit equivalent
constitutional protection
v.
Michael H v. Gerald D, 1989 - Court held that even an unmarried father who
participated actively in the kid’s life is not entitle to DP if the mom is married to
someone else. The Court held that a State may create an irrebuttal that a married
woman’s husband is the father of her child, even if it negates all of the biological
father’s rights. Court held that biological father has no liberty interest in his child
when the mother is married to someone else.
1. No tradition of protected a father’s rights when the kid was conceived from
an adulterous relationship--court wants to avoid judicial activism
Right to keep family together
i.
Moore v. City of East Cleveland, 1977 - Housing ordinance limited occupancy of a
dwelling unit to members of a single family. Because P’s family, living together in
her home, fit none of ordinances definitions of what consisted of a family, she was
convicted of a criminal offense.
1. The family isn’t beyond regulation but when the government intrudes upon
family living arrangements it is likely unconstitutional.
2. Gov’s interests were good--employed a rational basis, but not related to the
means upon which they were trying to complete their goal
3. Fundamental right to live with your blood relatives
ii.
Two limits on Moore:
1. Must be related--Belle Terre (city could prevent college students getting
together to rent out house through zoning); Key differences between foster
and biological parents--Smith v. Org. of Foster Families (protecting liberty
interets of foster parents would do so at the expense of natural parents, thus
there doesn't need to be a hearing every time a child is removed from foster
care)
2. Court refused to find an infringement to find a right to keep the family
together unless there is a direct and substantial interference.
Right to control/upbringing of children
i.
Meyer v. Nebraska, 1923 - During WWI, school teacher unlawfully taught the
subject of reading in the German language to a 10 year old kid.
1. The court held that the right to teach and the right of parents to engage him
so to instruct their children are within the liberty of the amendment.
ii.
e.
Pierce v. Society of the Sisters of the Holy Cross - the Compulsory Education Act of
Oregon required every parent to send their child to a public school and failure to do
so is declared a misdemeanor.
1. The child is not a mere creature of the state, parents have the right nurture
and direct the child’s destiny.
iii.
Right to make parenting decisions is not absolute and can be interred with to
protect a child
1. Court has given great deference to parents
iv.
Troxel v. Granville, 2000 - Dad committed suicide. Dad’s parents sought visitation
rights for their grandkids. Washington Statute allowed anyone to visit the child, if in
the best interest of the child
1. A parent’s right to direct the upbringing (care, custody, control) of her
children is “fundamental.” The state may not award visitation rights to a
child’s grandparents over the objection of the child’s fit custodial parent,
unless the state first gives “special weight” to the parent’s wishes.
2. No majority holding-two interpretations of the holding:
a.
Broad holding: A parent has a fundamental interest in deciding who will
spend time with the child.
b.
Narrow Holding: Too broad law as applied in this situation where the
parent was fit and regular grandparent visitations still occurred.
Reproductive Autonomy
i.
Right to procreate (connected w/ right to marry and right to privacy) is a
fundamental right and thus subject to strict scrutiny.
1. Buck v. Bell, court originally upheld state sterilization.
2. Skinner v. Oklahoma, 1942 - Habitual criminals whose felonies involved moral
turpitudes (e.g. chicken thieves and embezzlers) were sterilized.
a.
Classification involved a fundamental right and law failed strict scrutiny.
ii.
Right to use contraceptives is fundamental right - flows from right to marry, right
not to procreate, and right to privacy.
1. Griswold v. Connecticut, 1965 - Planned Parenthood can’t be prohibited from
supplying contraceptives to single or married adults who want them.
a.
Rejected that the right to privacy was found under due process clause
of EP
b.
instead the general right to privacy is found in the various guarantees
within the Bill of Rights create penumbras, or mists, that establish a
right to privacy. Together, the 1st, 3d, 4th, 9th Amendments, create a
new constitutional right, the right to privacy in marital relations.
c.
Concurrence: 9th amendment protects these types of unenumerated
rights
d.
Dissent: not a right, public should go to their legislatures to protect
these types of things.
2. Eisenstadt v. Baird, 1972 - University professor was giving out contraceptives
to students, not married couples.
a.
The court held fundamental right to control reproduction for the
individual. Reaffirmed Griswold and extends the right privacy in the
area of bearing and begetting a child. Gov’s interest were punitive in
preventing sex before marriage and under taken for health
f.
reasons…the court deemed these Gov interests are inadequate and
served no legit Gov purpose, thus, passed a rational basis standard.
3. Carry v. Population Services International, 1977 - Law violated the rights of
those under age 16 to have access to contraceptives
a.
Limiting the distribution of birth control unduly restricted access and
infringed upon the right to control procreation
Right to an Abortion:
i.
Roe v. Wade, 1973 - Texas law prohibited all abortions, except those necessary to
save the life of the mom.
1. Is a fetus a “person”? - no b/c DP protects “persons” and it would open up a
lot more suits against the state court is in no position to answer
2. Right of privacy is broad enough to encompass the right of a women to chose
to terminate her pregnancy prior to viability.
a.
Found as part of liberty under the Due Process clause of 14th, and not
the penumbra of rights as used in Griswald v. Connecticut
3. What is the constitutional right at issue? - fundamental right to privacy,
procreate, use of contraceptives
a.
Right of abortion is not absolute - must balanced against the state's
interest in protecting prenatal life
4. Trimester framework
a.
1st trimester - abortion choice left to mother/physician; court only
allowed regulation that would be required in other medical procedures
(e.g. must be performed by a doctor)
b.
2d trimester - Gov can not outlaw abortions but state can reasonably
regulate abortion if related to the mother’s health
c.
3d trimester - viability; state can ban abortion, except when life or
health of the mother is at risk
5. There is a point when the health of mother or unborn because so involved
that the state has interest.
a.
These interests grow with the pregnancy, and the compelling point is at
viability (around end of 2nd trimester).
ii.
Right to abortion as it stood under Roe v. Wade has been largely overhauled by
1. Planned Parenthood v. Casey, 1992 - overturns the trimester approach, but
retains the core of Roe - States have more ability to regulate abortions
a.
Abortion can be banned post viability so long as there is an exception
for medical emergencies.
i.
State has a legitimate interest in the health of mothers in
preserving potential life.
b.
State may regulate only if it doesn’t place an “undue burden” on the
woman’s right to choose a pre-viability abortion.
i.
“undue burden” - has the purpose or effect of placing a
substantial obstacle in the path of a woman seeking a pre-viability
abortion.
c.
Apparently, abortion is no longer a fundamental right, but a core liberty
interest
d.
Wait period of 24 hours before getting the abortion may be
troublesome, but no undue burden
i.
e.
f.
Seemingly overruled Akron which found that a 24 hour waiting
period was unconstitutional
Informed consent of truthful, non-misleading infor about the nature of
the procedure, health risks, probably gestational age of fetus, info
about childbirth and a list of adoption services are not undue burdens
i.
May overrule Thornburgh (unforeseeable psychological effects
and information about the fetus at two weeks)
Record keeping is not an undue burden - even abortions that are state
funded and are publicly available, but the identity must not be known
Roe
Casey
Protect Mom's
Trimester Health
1st


2nd
3rd


Protect
Potential Life
Until end,

mortality
rate in
abortion
may be less
than
childbirth
No
regulation
No
regulation
May

regulate
abortion if it
reasonably
relates to
the
preservation
and
protection of
maternal
health
No
regulation
May

regulate or
prohibit with
EXCEPTION
for the
preservation
of the life or
health of the
mother
State may
choose to
regulate or
even
prohibit in
promoting
interest in
potentiality
of human
life
Point in
Pregancy
PreViability
Type of
Regulations


PostViability

Throughout 
No
Restrictions
or
Prohibition
s
Informed
notice
regulations
ok as long
as no
undue
burden
In
promoting
interest of
potential
life, may
restrict or
prohibit
with
exceptions
for
preservatio
n of life or
health of
mother.
Measures
to ensure
woman's
choice is
informed,
and

b.
c.
measures
designed to
advance
purpose as
long as
purpose is
to persuad
purpose as
long as
purpose is
persuad
woman to
choose
childbirth
over
abortion.
To ensure
health and
safety of
mother
Webster, state statute that says human life begins at conception upheld as
constitutional.
i.
Scalia wanted to outright overrule Roe.
ii.
O'Connor said this is not an abortion case.
Government Regulation of Abortions
i. Stenberg v. Carhart, 2000 - unclear what the statute is prohibiting, but it was
partial birth abortion
1. Contained no exception permitting the prohibited procedures to protect
the woman's health
2. Unduly burden a woman's right to abortion b/c it burdened a woman's
choice to which procedure
3. This was the first time the Court used the “undue burden” test was used
in evaluating laws regulating abortion. No level of scrutiny is used.
a.
An undue burden will exist if a regulation will likely prevent a
significant number of women from getting abortions.
b.
Prohibits the most common method of abortions
4. Didn't have health exception
ii. Gonzales v. Carhart, (supplement) - congress made clear that it only prohibited
partial birth abortions, but no health exceptions
1. Act similar to Stenburg, but is more precise in its coverage so it survives
the facial attack.
2. Regulations which do no more than create a structural mechanism by
which the state, or the parent or guardian of a minor, may express
profound respect for the life of the newborn are permitted, if they are
not a substantial obstacle to the woman's right to choose.
d.
e.
f.
3. The Act's purpose is to prohibit abortions which would coarsen society
to the humanity of not only newborns, but all vulnerable and innocent
human life.
a.
Also an interest to protect integrity and ethics of medical
profession
4. Not undue burden because there are alternative methods available.
5. An act is not invalid on its face where there is uncertainty over whether
the barred procedure is ever necessary to prevent a woman's health,
given the availability of other abortion procedures that are considered
to be safe alternatives.
Spousal Consent/Notice
i. Planned Parenthood v. Danforth, 1976 - The state may not give a pregnant
woman’s spouse a veto right over the woman’s abortion decision.
1. In fact, the state may not even require that the woman notify her
spouse of her intent to get an abortion, even if the state exempts cases
of spousal sexual assault or threatened bodily injury.
2. The state can’t grant power for something it itself doesn’t have power
to grant.
ii. Casey - undue burden to require spousal notification of abortion even though
exceptions were in place b/c it didn't account for all reasons why a woman
wouldn't want to get spousal consent
Minor’s Right and Parental Notice/Consent to an Abortion :
i. Bellotti v. Baird, 1979 - Requiring consent is OK if a judicial bypass is in place
(chance for minor to tell judge an abortion is for the best). The state may
also require that this parental consent be informed, even if this requires an inperson visit by the parent to the facility, and even if it involves a 24-hour
waiting period.
1. Court recognized three reasons justifying the conclusion that the
constitution rights of minors can’t be equated with those of adults:
a.
The peculiar vulnerability of minors
b.
their inability to make critical decisions in an informed, mature
manner, and the
c.
importance of the parental role in child rearing
ii. H.L. v. Mathison - Upheld Utah law that required doctor to notify, if possible, a
parent if the girl receiving the abortion was a minor. *No need for judicial
bypass.
Government Restrictions on Public Funding of Abortions: Rational Basis
i. Roe did not give an unqualified right to an abortion
ii. Maher v. Roe, 1977 - States may refuse to give public funding for abortions
even though they give such funding for other types of operations. Also, states
may prohibit public hospitals from performing abortions. The Gov is not
Constitutionally obligated to pay for abortions or use public facilities for
them.
1. Difference between state interference and state encouragement of
alternative activity
2. Denial of public funding placed the women in no different position then
if there were hospital…the indigent women still has the same range of


choices as a wealthy woman. The state may make a value judgment
valuing child birth over abortion and may give funding for childbirth.
iii. Harris v. McRae, 1980 - having a constitutional right does not create a duty for
the Gov to subsidize the exercise of the right. Your have the right to travel,
but Gov doesn’t have to give you bus money.
Right to Refuse Treatment - liberty interest, but not clear if it is a fundamental right
a.
Cruzan v. Director, Missouri Dept. of Health, 1990 - competent adult has a 14-A liberty
interest in not being forced to undergo unwanted medical procedures.
i.
States can demand a clear and convincing evidence standard in when a guardian
seeks to remove treatment (includes nutrition and hydration) of a person diagnoses
to be in a persistent vegetative state.
1. State has an interest to protect incompetent life
ii.
All depends how you define the right
1. Scalia - says it’s a right to suicide
2. O'Connor - right to bodily integrity
3. Rehnquist - right to refuse treatment
iii.
Court recognizes a liberty interest - but isn't clear if it is a fundamental right
iv.
Court doesn’t say what is sufficient to constitute clear and convincing proof of a
person’s desire to terminate treatment.
v.
doesnt address the issue where a competent person designates a guardian to make
the decision of terminating medical treatment.
vi.
Washington v. Harper - Prisoners have substantive due process right/liberty interest
to be free from the involuntary administration of antipsychotic drugs for several
reasons:
1. Prisoners possess significant liberty interest in avoiding the unwanted
administration of drugs under DP.
2. The force injection of medication into a non-consenting person’s body
represents a substantial interference with that person’s liberty.
3. The liberty interest wasn’t protected because there was no notice and no
opportunity to be heard for the inmate.
b.
Right to Physician Assisted Suicide--REJECTED
i.
Washington v. Gluckberg - Terminally-ill patients do not have a general liberty
interest in committing suicide. The Court rejected the right to physician assisted
suicide. Washington law was upheld under Rational Baiss because The state has
several legitimate countervailing interests in preserving life:
1. Protecting the integrity and ethics of the medical profession,
2. Protecting vulnerable groups, and
3. Stopping the path to voluntarily and euthanasia.
ii.
Vacco v. Quill - Equal Protection case
1. Circuit said that terminally ill patients can't have the right to "hasten" death
by refusing treatment, while everyone else can't hasten death
2. Court rejects this argument - Difference between intent and causation
a.
Terminally ill patients can't hasten death through medication b/c
doctors are proactive in causing their death--killed by medication
b.
Refusing treatment is not proactive b/c the patient dies from natural
causes
Constitutional Protection for Sexual Orientation and Sexual Activity
a.


Bowers v. Hardwick - no fundamental right of homosexuality - state has a right to ban
and criminalize homosexual sodomy--overruled
b.
Lawrence v. Texas - seems to be a liberty interest to make decisions in their private lives
such as sexual intimacy and privacy of the home
i.
Gives them a right to make their choices within the privacy of their home.
1. Laws and tradition allow protection to personal decisions relating to
marriage, procreation, contraception, etc.
ii.
Does not use language for a fundamental right--no talk about strict scrutiny, nor is it
rational basis b/c dissent presents reasons for RB
1. Rational basis with bite/heightened scrutiny?
Constitutional Protection for Travel: Fundamental Right
a.
Saenz v. Roe - Majority: 3 components for the right to travel:
i.
Protects the right of a citizen of one State to enter and to leave another State
(Commerce Clause)
ii.
Right to be treated as a welcome visitor (Art. IV sect. 2)
iii.
Right to Migrate - newly arrived citizen has the same P & I enjoyed by other citizens
1. The right of free ingress and regress to and from neighboring states [Articles
of Confederation]
2. Portable Benefits - duration residency requirements are unconstitutional
when they deny welfare benefits, non-emergency hospital or medical care,
any economic programs. Right to vote and right to divorce(1 year ok) have
been regulated by durational residency requirements.
b.
There is no fundamental right to international travel, so the court would only apply
rational basis.
i.
can be denied social security benefits while out of the country
ii.
can revoke the passport of the CIA agent
iii.
can prohibit travel to Cuba- Regan v. Wald
Right to Vote - voting is preservative of all other rights - fundamental right
a.
Right to Vote in Federal Elections
i.
Art. I sect. 2 - elect Senators and Reps
ii.
15th Amendment - Race
iii.
19th Amendment - Sex/gender
iv.
24th Amendment - Poll taxes in elections for federal office
v.
26th Amendment - right to vote to all citizens who are 18 years or older; can’t be
abridged by any State or the Federal GOV.
b.
Right to Vote in State elections is not in the text - voting is preservative of all other rights fundamental right
c.
Restrictions on the Right to Vote Strict Scrutiny: can be outright or dilution
i.
Poll taxes - Unconstitutional - denial of equal protection for all elections, state,
local, and federal. Voter qualifications have no relation to wealth. Paying of tax has
no relation to voting, (this is invidious discrimination). (Harper v. Virginia State
Board of Elections)
ii.
Property ownership requirements for voting
1. As a requirement for voting b/c want to limit to those who are primarily
interested are unconstitutional if not narrowly tailored. The court said it
wasn’t permissible to measure interest by property ownership or presence of
children in school system. (Kramer v. Union Free Sch Dist.).
a.
d.
e.
Law unconstitutional where a statute provided only property owners
could vote on whether a municipal utility could issue municipal bonds.
All citizens of a city have an interest in the availability of municipal
services (Cipriano, Kolodziejski)
2. Special Purpose Election - use rational basis - Salyer, 1973 - Law constitutional
where voting was limited in a water storage district election to property
owners and the apportioned votes according to assessed evaluation of the
land within the district.
a.
Landowners had far greater interest
b.
Water district had some governmanetal authority--but it does not
provdie a general public services ordinarily attributed to a governing
body
3. One-acre = one vote. Ball v. James extends Salyer further in that 40% of its
water went to urban areas for non-agrarian use. Property ownership can be a
condition for voting if some are more directly affected than others and if the
governing body has limited authority.
a.
Those landowners were subject to the acreage-based taxing power of
the water district
b.
According to Salyer - selected class of voters for a special public entity
doesn't need to only be the only ones affected
i.
Key Question - whether the effect of the entity's operations on
them was disproportionatelly greater than the effect on those
seeking the vote
iii.
Durational residency requirements for voting
1. Durational requirements: a city can exclude non-residents from city elections,
but it can not exclude members of the armed forces who moved into the area
in connection with the military regardless of how long they have lived there
or how much property they own. – Holt and Karington
a.
Distinction - denying vote on how long they lived in the city v. denying
vote on how they got to the city
2. One year durational residency requirement for voting unconstitutionalverses-50 day residency requirement for voting constitutional
Rational Basis:
i.
Literacy tests
1. These tests are constitutionally permissible as a qualification for voting,
though they have been outlawed by federal statute.
2. RB because the standards were designed to promote intelligent use of the
ballot.
3. The states have broad to determine the conditions under which the right of
suffrage may be exercised ABSENT, OF COURSE DISCRIMINATION WHICH THE
CONSTITUTION PROHIBITS.
ii.
Criminal
1. Can't deny the right to vote to those being held waiting for trial--must provide
absentee ballots
2. Person convicted of a felon can be permanently disenfranchised (crimes of
moral turpitude didn't pass b/c the court found that the provision was passed
to disenfranchise blacks)
Dilution of the Right to Vote - Reynolds v. Sims
i.

Geographical area not a basis for drawing districts, only population is permitted.
Malapportioned equals vote dilution.
1. Court held that both houses of a state legislature must be proportionate by
population because the EP Clause demands it. One person-one vote equals
for any legislative body all districts must be about the same in population.
ii.
Less deviation is allowed in in apportionments for House of Rep then compared to
apportionment for state legislators (9.9% seems to be the max)
1. States must make an honest and good faith effort in constructing districts as
nearly of equal population as practicable (doesn’t have to be mathematically
precise) b/c dilution is unconstitutional
a.
It is irrelevant if the voters vote for malapportionment, it is still
unconstitutional.
b.
If any deviation--it must be justified - .7 difference was unconstitutional
b/c there was not justification
iii.
*Principle of one person-one vote is extended to local government.
iv.
General ROL: whenever a state or local Gov decides to elect persons by popular
election to perform Gov functions EP requires that each qualified voter must be
given an opportunity to participate in the election so that equal numbers of voters
can vote for proportionally equal number of officials
f.
Inequalities in Counting Votes W/in a State - Bush v. Gore - must be uniform standard,
doesn't have to be the best, just uniform
i.
The right to vote is a fundamental right. The right to have all votes weighed equally
is also a fundamental right.
1. The “intent of the voter” standard doesn’t insure non-arbitrary treatment of
voters necessary to secure the fundamental right.
2. The state court should have set standards to ensure uniformity in its
application. The standard used to accept or reject contested ballots varies
from county to county and even within a single county.
3. Further, there is disparate treatment because “overvotes” (voting for more
than one candidate) don’t get scrutiny to discern the “intent of the voter” like
“undervotes” do.
ii.
Very NARROW HOLDING - tries to limit it to the current circumstances
Access to Courts - right to be heard is an essential aspect of due process
a.
If you have a 6th A right in the criminal context - free attorney for the first trial plus one
appeal (plus transcript)--that is as far as the Court is going to go
b.
Fundamental right where the State holds a monopoly on the means for vindicating that
right (divorce/marriage)
i.
Divorce - Boddie v. Connecticut - Welfare participant couldn’t afford $60 filing fee.
Alleged a violation of DP
1. When civil litigation is involved, access to the courts is usually not
fundamental. Only for various family-law proceedings (e.g. divorce, paternity
suits, termination of parental rights) is the state barred from charging fees.
ii.
State must provided a meaningful opportunity to be heard to fulfill the
requirements of the EP clause- thus constitutionally required2waive filing
fees4indigent
c.
Bankruptcy - Gov is not required to waive filing fees for indigents who seek to file
bankrupt.
i.
d.
e.
f.
g.
US v. Kras - Welfare participant couldn’t afford filing fee for bankruptcy.
Distinguished Boddie on two grounds:
1. Divorce relates to constitutional right to marry
2. State had a monopoly on granting divorces, while bankruptcy is not the only
method for solving the problem.
a.
However, less focus on state monopoly (can only declare bankruptcy in
court).
Denial of welfare benefits doesn’t constitute a constitutional right - Ortwein v. Schwab H Gov not obligated to waive filing fees for judicial review of adverse welfare decisions.
MLB v. SLJ - appealing parental/custodial rights which is fundamental right raise children.
Couldn't pay fee for records, so court made state waive fee b/c it had monopoly to
grant/deny parental rights.
Look for a fundamental right between persons
PRISONERS RIGHT OF ACCESS TO COURTS
i.
State and its officers may not abridge or impair prisoner's right to apply to a federal
court for a writ of habeas corpus.
ii.
Unless the state provides reasonable alternatives in assisting inmates with postconviction proceedings, it may not enforce a regulation that bars inmates from
assisting other prisoners.
1. It is fundamental that access of prisoners to the courts for the purpose of
presenting their complaints may not be denied or obstructed.
iii.
Bounds v. Smith pg. 995
1. ISSUE: whether states must protect the right of prisoners to access to the
courts by providing them with law libraries or alternative sources of legal
knowledge.
2. Inquiry is whether law libraries or other forms of legal assistance are needed
to give prisoners a reasonably adequate opportunity to present claimed
violations of fundamental constitutional rights to the courts.
3. HOLDING: the fundamental constitutional right of access to the courts
requires the prison authorities to assist inmates in the preparation arid filing
of meaningful legal papers by providing prisoners with adequate law libraries
or adequate assistance from persons trained in law.
iv.
Lewis v. Casey pg. 996
1. Prisoners must show actual injury, a constitutional principle that prevents
courts from undertaking tasks assigned to the political branches.
2. The right Bounds established is the right of access to courts, not the right to
law libraries in prisons.
a.
They are only means for ensuring a reasonably adequate opportunity to
present claimed violations of fundamental constitutional rights to the
courts.
3. An inmate cannot show relevant actual injury simply by establishing that his
prison's law library or legal assistance is subpar in a theoretical sense.
a.
Inmate must go one step further and demonstrate that the alleged
shortcomings in the library or legal assistance program hindered his
efforts to pursue a legal claim.
4. Rational basis standard must be applied if prison officials are going to be able
to make the decisions regarding institutional operations.

Right to Education - not a fundamental right, only fundamental when the right in complete
deprivation
a.
San Antonio Independent School Dist. v. Rodriguez - Involved a challenge to funding in
Texas system of funding public school through local property tax assessment. The system
meant that poor areas had to tax at a higher rate but spent less on education. Wealthy
areas had less tax and spent more on education. Challenged on two grounds:
i.
EP wealth discrimination - but wealthy not suspect class
ii.
Denial of fundamental right to education
1. Not a complete denial - can't measure education equality by dollars inequity
in funds doesn't necessary mean a difference in quality
iii.
Federalism - Court should not interfere with local school districts
b.
Kadrnas v. Dickinson Public School - State law authorized local school systems to charge a
bus fee. Poor family brought claim.
i.
Court reaffirmed that education is not a fundamental right and used rational basis.
Education was not denied because the fee didn’t preclude the student from
attending the school.
1. Under rational basis the burden of proof is arbitrary and irrational.
c.
Refusal to find education fundamental right is consistent with court's refusal to find
affirmative rights fundamental.

PROCEDURAL DUE PROCESS
Identify - Has there been a
Property OR
Liberty
o Damage to reputation?
deprivation?
Must have
o Must be intentional, more
reasonable
 Suggested by
than negligence or
expectation of
Roth, Goss
deliberate indifference
continued receipt
 Davis - need
o Emergency situations of benefit
something more
was it "conscience
than just
 look to K,
shocking?"
State
reputation--must
o Doesn't protect from 3d
statutes,
also have a loss of
parties
public
a tangible benefit
education
or change in legal
 Constitution is not
an affirmative
status
o
document--it is
Rt to engage in
negative
occupation
What Process is required?
Solely a question of
federal law
o Constitution
determines the
procedures to be
followed Matthews
Balancing
1. Private interest affected
2. Risk of erroneous
deprivation and probable
value of safeguards
3. Govt's interests and
burdens
Substantive D.P.
Procedural D.P.
Whether the government has an adequate reason for
taking away a person’s life, liberty, or property
Whether there sufficient
justification for the
If fundamental right - compelling reason
If not - rational reason
b.
government’s action
Remedying a lack of adequate
safeguards
What is a “Deprivation”?
Is Negligence Sufficient to Constitute a Deprivation?
i.
Daniels v. Williams (1986) - A prisoner claimed that his freedom from bodily harm,
a protected liberty interest, was denied without due process when he tripped on a
pillow that was negligently left on a staircase by a prison guard
1. Deprivation only if there is an allegation of an intentional violation by
government or government officers.
2. DP is designed to protect from arbitrary abuse of power, not a lack of due
care
ii.
Davidson v. Cannon (1986) - Prisoner claimed that he was threatened by another
inmate. He reports it, and nothing is done.
1. The Court ruled that the allegation of government negligence was insufficient
to state a claim under the Due Process Clause - court almost bought
"deliberate indifference"
iii.
County of Sacramento v. Lewis (1998)- Motorcycle Case- EMERGENCY EXCEPTION The case involved a high-speed police chase that ended tragically. An officer
mistakenly heard another officer and chased a boy on a motorcycle. The high-speed
chase ended in a crash which killed a passenger, another teenage boy.
1. In emergencies--government can be held liable only if its officers’ conduct
shocks the conscience
a.
Shocks the Conscience Standard--- Deliberate indifference doesn’t apply
b/c by definition requires time to deliberate
b.
Requires that officers acted with the intent of causing harm to the
victim.
c.
The definition of emergency is based on whether there was the
opportunity for deliberation before the officers acted.
2. What does shock the conscience of the federal judiciary?
a.
In an emergency must show an intentional act
b.
If not an emergency, the officer deliberates before acting – deliberate
indifference
When is the Government’s Failure to Protect a Person from Privately Inflicted Harms a
Deprivation? “Liberty” does not include protection from private wrongdoers
i.
DeShaney v. Winnebago County Dept. of Social Services (1989) - The guardians of a
4-year-old child sued the Department of Social Services for its failure to protect the
child form beatings his father inflicted that ultimately resulted in irreversible brain
damage. The Πs maintained that the department was informed of the abuse over a
26-month period, but did not respond.
1. Government generally has no duty to protect individuals from privately
inflicted harms
a.
No violation of the constitution because the child was not in the
custody of the government and because the abuse occurred in the
hands of a private party
2. Two Narrow exceptions
a.

Where the government has limited the ability of a person to protect
himself or herself, such as when there is incarceration or
institutionalization.
b.
Where there is a special relationship between the government and the
injured individual, such as when the government took an affirmative
step to place the person in danger – government has literally deprived
individual of liberty
3. DP is a limitation on a state's power to act, not a guarantee of minimal levels
of security
a.
NO affirmative obligation
ii.
Town of Castle Rock v. Gonzales (2005)-follow & extend Deshaney
1. asserted a property right based on a restraining order to protect the Π and
her children. The children were taken by the husband and she reported
several times to the police. She was told to wait. Eventually the husband
showed up, killed himself and the children.
a.
She sued under a deprivation of property w/out due process of law
theory
2. To have a property interest in a benefit, a person must have more than an
abstract need or desire and more than a unilateral expectation of it, he must
have a legitimate entitlement to it.
a.
A benefit is not a protected entitlement if government officials may
grant or deny it in their discretion.
3. The benefit a third party may receive from having someone else arrested for a
crime generally does not trigger protections under DP, neither in procedural
or substantive manifestations.
a.
Does not mean states are powerless to provide victims with personally
enforceable remedies.
Is It a Deprivation of “Life, Liberty, or Property”?
a.
Rejection of Privileges/Rights Distinction
i.
Goldberg v. Kelly (1970) - New Forms of Property- THERE HAS TO BE AN ELEMENT
RELIANCE (you can’t have a property interest in something you don’t yet have)
1. Court recognized that welfare benefits, once bestowed, become property
requiring due process before termination – there must be notice and a
hearing of minimal due process
2. Look at the degree of loss and person's interest in avoiding the loss v.
government's interest in summary adjudication
b.
What is a Deprivation of Property? Government must provide due process before it
deprives someone of real or personal property
i.
Board of Regents v. Roth (1972)- Roth was hired for a year and fired, the K was only
for a year
1. The existence of an entitlement is determined by an independent source such
as state law and the rules or understandings that it creates- REASONABLE
EXPECTATION TO CONTINUED RECEIPT OF THE BENEFIT regardless of the
importance of the interest.
ii.
Perry v. Sinderman - college didn’t have tenure system, but the faculty guide “we
wish faculty to feel they have permanent tenure as long as teaching services are
satisfactory"- property interest was secured by binding understanding fostered by
the college administration
c.
1. Court made it clear that it was defining property based on a reasonable
expectation to continued receipt of a benefit
iii.
Bishop v. Wood (1976) - “permanent employee” under state law- but nonetheless
Cop held his position at will (or the behest) of the city b+c city retained right to right
to fire him the individual at will
iv.
RULE: Gov can prevent property interest- make it clear that it retains the right to
retain the property interest at-will
v.
Loudermill---- doesn’t overule Bishop even though it ignores permanent right
created by state law and defers to Constitution, b/c deals with procedural due
process after right has been established- different issue than Bishop
1. In deciding if there is a property interest in a government job, the relevant
inquiry is the expectations created by the law and customs surrounding the
position. – this is the current standing under property
vi.
Property
1. Important benefit (government programs)
2. Reasonable expectation created by state law (government employment)
What is a Deprivation of Liberty? Constitutional rights are a liberty interest
i.
There are two different ways for the Court to approach this and define liberty:
1. The Court could determine what is “liberty” based on the importance of the
interest at stake.
2. The Court could determine whether there is a liberty interest based on the
expectations engendered by state law.
ii.
Reputation as a Liberty Interest---When is harm to reputation a deprivation of
liberty?
1. In Goss v. Lopez, the Court said that reputation is a liberty interest, and found
a property interest in students attending school
a.
Property interest exists in public education - created by statute
b.
Liberty interest in damage to reputation
c.
What process is required?
i.
Notice and opportunity to be heard - minimal rudimentary
d.
What about paddling a student?
i.
Chance of erroneous paddling is minimal b/c usually the teacher
paddles after observing the conduct and the teacher if wrongfully
paddles is subject to tort law
e.
The total exclusion from the educational process for more than a trivial
period is a deprivation of property and liberty requiring due process.
2. Paul v. Davis (1976)---only a liberty interest, and no state law gave a legal
interest in continued enjoyment of good reputation.
a.
The Louisville, KY police chief circulated a flyer of those known to have
committed shoplifting. The Π, whose picture and name was included,
objected saying his reputation, a liberty interest, was denied without
due process.
b.
Reputation alone isn't a liberty right
i.
Must be stigma plus loss of tangible benefit or change in legal
status
ii.
Doesn't apply to the private sector, only termination by the
government
d.
3. Owen v. City of Indepenendence - due process is required when there is harm
to reputation plus it must be accompanied by a tangible detriment----(ex:
losing your job based on defamatory remarks- your reputation harmed and
lose your job, or in WI case harm to reputation and not being able to buy
liquor in store cuz of government actions)
iii.
Liberty Interest for Prisoners
1. Morrisey v. Brewer- revocation of parole is deprivation of liberty - can be
employed if not on parole(or w/family- based on significance of parole
interest to the parolee
2. Shift approach - prisoners have liberty interest in goodtime credits awarded
under state law- liberty interst based on prisoners expectations as a result of
the promise from the law
3. Prisoners no liberty interest in remaining in min, as opposed to a max.
security
4. Existence of parole system is not enough to create liberty interest in parole,
specific requirements by the law that transform parole from a mere hope to a
mere entitlement-state law must make mandatory
5. Prison has to provide due process before administrative segregation bc state
law created interest
6. liberty interest in being free from unwanted anti-psychotic drugs
7. GENERAL RULE- USUALLY PRISONERS HAVE NO LIBERTY INTEREST IN BEING
CONFINED IN ONE PLACE AS OPPOSSED TO ANOTHER
a.
No liberty interest in transfer from min secure in Hawaii to max secure
in CA
b.
No liberty in having review of request for commutation of life sentence
c.
No liberty interest in visitiation even from family-cuz languge of
regulation not mandatory enough
d.
Deprived of liberty once they are transferred from prison to mental
hospital
8. Wilkinson v. Austins - 23 hours a day in darkness, liberty interest in transfer
from max to super max
a.
Inquiry for Liberty Interest - Sandin - isn't the language of the
regulations regarding the conditions, but the conditions themselves
i.
"imposes atypical and significant hardship on the inmate in
relation to the ordinary incidents of prison life"
ii.
If a liberty interest is found - run through Matthews Test
b.
Up until this case, a liberty interest for prisoners could be found, either
if prison statutes and regulations were written in mandatory language
and created such an interest, or if the interest was so important that
the Court would deem it to be a part of liberty
What Procedures Are Required?
i.
Basic Safeguards
1. Notice of charges
2. Opportunity for hearing
3. Impartial decision-maker
ii.
Mathews v. Eldridge (1976)--Was deprived of disability benefits without an
opportunity to be heard. What is the difference between this and Goldberg then?
e.
Goldberg was based on need, and the procedures are a medical assessment in this
case
1. Black Letter Law: Court gave a balancing test (Mathews Balancing Test),
balancing the importance of:
a.
the interest involved—the more important the interest, more
procedural safeguards required
b.
the ability of additional procedures to increase the accuracy of factfinding
c.
Risk of erroneous deprivation and value of erroneous or substitute
procedures - the cost to the government/government interest- onerous
burdens
iii.
Government Employment - Court has said that due process is satisfied if the
government provides a fired employee both an informal pre-termination
proceeding where it is possible to respond to charges and then a later posttermination hearing
1. The Court has also found that continued employment by the government is a
“significant” interest for the individual
2. The interest to the individual and the need to avoid errors justifies requiring
an informal pre-termination proceeding despite costs.
iv.
Family Rights
1. Supreme Court has been inconsistent in the degree of due process it has
required in cases concerning parental rights.
2. Lassiter--The Court said the Constitution does not require counsel in hearings
for permanent termination of parental rights
a.
Govt must show clear and convincing evidence to deprive a parent of
parental rights
b.
Only when personal liberty is being deprived is counsel given to
indigent fighting parental custody
c.
Apply Matthews test
v.
Jones v. Flowers (2006) - tried to give notice that property taxes were due, mail
returned back never opened, gov made no further efforts-NOTICE
1. “Additional reasonable steps" are required after a mailed notice is returned
undelivered.
a.
DP does not require that every property owner receive actual notice,
but the Gov must make a sincere effort.
b.
Gov knew that its first effort to notify Jones had failed. Thus, the Court
ruled that the Gov should have taken additional steps, such as remailing the notice or posting a notice on the house's door.
2. The Court held that the notice must be reasonably calculated to notify the
owner. When mailed notice of a tax sasle is returned unclaimed, the State
must take additional reasonable steps to attempt to provide notice to the
property owner before selling his property, if it is practicable to do so
vi.
Adversarial hearing required for fundamental rights
ULTIMATELY- the nature of the procedures required is a constitutional question to be
answered by the judiciary, not a statutory question for the legislature

THE FEDERAL LEGISLATIVE POWER

Introduction: Congress and the States---

Basic principles of American gov’t:
Congress may act only if there is express or implied authority in the Constitution
States may act unless the Constitution prohibits the action
In evaluating the Constitutionality of any act of Congress, there are always two
question:
Does Congress have the authority under the Constitution to legislate?
If so, does the law violate another constitutional provision or doctrine, such as infringing
separation of powers or interfering with individual liberties?
Throughout American history, Congress’s powers have been defined relative to
the states
Some of the most important political battles have been fought over how power
should be allocated between the federal and state governments (slavery, civil rights
movement, new deal legislation, etc)
Where is the grant of federal power found in the Constitution? Article I, §8: powers of
federal gov’t are enumerated.
Clause 18 of §8 says that Congress can pass all laws that are necessary and
proper to effectuate the enumerated powers in §8.
Where is the grant of state power found in the Constitution? 10th Amendment
Powers not delegated to the United States by the Constitution, nor prohibited
by it to the States, are reserved to the States respectively, or to the people
1937-1995- Not a single federal law was declared unconstitutional as exceeding the
scope of Congress’s commerce power.
McCulloch v. Maryland (1819), US Bank, Maryland was taxing the bank
Marshall says Congress' power to create national bank is implied by the power to lay
and collect taxes, to borrow money, and to regulate commerce.
Invokes the “necessary and proper” clause 18 of Article 1 §8.
Congress must be allowed to use discretion:
Let the end be legitimate, let it be within the scope of the constitution,
and all means which are appropriate, which are plainly adapted to that end,
which are not prohibited, but consist with the letter and spirit of the
constitution, are constitutional.
The states have no power, by taxation or otherwise, to retard, impede, burden, or in any
manner control, the operations of the constitutional laws enacted by congress to carry
into execution the powers vested in the federal government.
The people are sovereign, not the states.
Three Main Points of Mculloch:
By rejecting “compact federalism,” McCulloch emphatically declares that the
Fed Gov is supreme over the states and that the states have no authority to negate
federal actions.
The Court expansively defines the scope of Congress’s powers.
The Court limits the ability of states to interfere with federal activities.
What Role Should Concern Over Protecting State Have in Defining Congress’s Powers?
Throughout American History, a central issue has been the extent to which
concern over protecting the prerogatives and institutions of state governments
should matter in defining the scope of Congress’s legislative power.
The Supreme Court has defined the scope of Congress’s powers under three
crucial constitutional provisions:

The Commerce Power

Trends in Interpretation of Commerce Clause
1800-1890 Broad-Gibbons v. Ogden [NY monopoly granted to ferry boats]
1890-1937 Narrow-U.S. v. Knight [Sherman Antitrust couldn’t be used to stop a
monopoly in sugar refining]
1937-1990s Broad-NLRB v. Jones & Laughlin Steel [steel business was apart of stream of
commerce]
1990s- Narrow-United States v. Lopez [gun-free zone didn’t effect commerce]
Now- Uncertain-Gonzales v.
The Initial Era: Gibbons v. Ogden (1824) - NY granted a monopoly for operating steamboats on
NY waters, NJ citizen was prohibited from chartering his boat through NY waters
Commerce includes all phases of business, including navigation, which was the issue in
that case.
He calls the power plenary power
Second, the Court considered the meaning of “among the states.” Means intermingled
with. Adopted #2- required line drawing and case by case inquiry
The Court said that as “comprehensive as the word ‘among’ is, it may very properly
be restricted to that commerce which concerns more States than one . . . The
completely internal commerce of a State, then, may be considered as reserved for
the State itself.”
The sole check on Congress is the political process, not judicially enforced limits to
protect the states
The 1890s-1937: A Limited Federal Commerce Power- Lochner Era- 1st time court aggressively
used its judicial review powers to invalidate state and federal laws
DEREGULATION BY FEDERAL AND STATE GOVERNMENT
PRINCIPLES OF LOCHNER ERA: Dual Federalism was embodied in three
important doctrines:
The Court narrowly defined the meaning of commerce so as to leave a
zone of power to the states
Court restrictively defined among the states as allowing Congress to
regulate only when there was a substantial effect on interstate commerce.
Court held that the 10th Amendment reserved a zone of activities to the
states that even federal laws within the scope of the commerce clause were
unconstitutional if they invaded that zone. COURT more likely to uphold
federal law when it concerned moral regulations: lotteries, and sexual
behavior
What is “Commerce”? 1890-1937
United States v. E.C. Knight Co. (1895)—The U.S. gov’t attempted to use the
Sherman Antitrust Act to block the American Refining Company from acquiring four
competing refineries. The acquisition would have given the company control of over
98% of the sugar refining industry
"Commerce succeeds to manufacture, and is not part of it."
Distinguishes trade in interstate commerce vs. production and
manufacture of goods
Was seen as way to preserve the autonomy of the states
Carter v. Carter Coal Co. (1936) - The law contained detailed findings as to the
relationship between coal and the national economy and declared that the


production of coal directly affected interstate commerce. The law provided for local
coal boards to be established to determine process for coal and to determine, after
collective bargaining by unions and employers, wages and hours for employees.
Congress didn't have the power to fix the price of the coal and protect
workers b/c Congress doesn't have the power to regulate the goods
manufactured inside the state
The mere fact that something is intended to be shipped outside
of the state doesn't subject it to federal regulation
Production is purely a local activity
They took a very lasseiz faire approach to economy and commerce.
What Does “Among the States” Mean?- Required a direct effect on interstate
commerce- but court inconsistent in its approach
"close and substantial relation to interstate commerce" - The Shreveport Cases,
1914
The Court upheld the ability of the Interstate Commerce Commission to
set intrastate railroad rates because of their close and substantial relation on
interstate commerce. Specifically, a railroad was ordered to charge the same
rates for shipments to Marshall, Texas, whether from Shreveport, Louisiana,
or from Dallas, Texas.
Congress can regulate by all appropriate legislation:
Protection and advancement
To promote growth and safety
To foster, protect, control, and restrain
To have a close and substantial relation to interstate traffic, look at the
severity, efficiency, maintenance without hindrance or molestation.
“Direct effect” on interstate commerce. – ALA Shecter Poultry Corp., 1935 Federal Code for NYC designed to ensure the quality of chickens.
Not a sufficiently “direct” relationship to interstate commerce.
Congress can only regulate when there is a direct effect on interstate
commerce, otherwise Congress could virtually regulate anything.
Stream of Commerce - Can't use it, the code concerned the operation of
businesses within NY (chickens were immediately slaughtered and sold
there).
Does the Tenth Amendment Limit Congressional Powers? “The powers not delegated to
the United States by the Constitution, nor prohibited by it to the States, are reserved o
the States respectively, or to the people.”
There are two ways of looking at the Amendment:
The 10th Amendment is not a separate constraint on Congress, but
rather is simply a trusim that Congress only may legislate if it has authority
under the Constitution.
Under this approach, a federal law will never be found
unconstitutional under the Amendment, but it could be invalidated as
exceeding the scope of Congress’s powers under Article I.
Protects sovereignty from federal intrusion. The 10th Amendment is a
key protection of states’ rights and federalism. It reserves a zone of activity to
the states for their exclusive control, and federal laws intruding into this zone
should be declared unconstitutional by the courts.

Lottery Cases (Ames) (1903)— Congress can prohibit lottery tickets (or any other
good) that crosses state lines
Motivation for the prohibition is irrelevant
Hammer v. Dagenhart (1918)- A federal law prohibited the shipment in
interstate commerce of goods produced in factories that employed children under
the age of 14 or employed children between the ages of 14 and 16 for more than
eight hours per day or six days per week.
The Court declared it unconstitutional because it controlled production.
The Court said that regulating the hours of labor of children was entrusted to
state authority.
Court distinguishes Lottery Cases by reasoning that the harm
does not travel with the product as it does with the lottery tickets.
1937s-1990s: Broad Federal Commerce Power - Congress's Power is expanded
NLRB v. Jones & Laughlin Steel Corp. (1937)-FDR- Involved a constitutional challenge to
the National Labor Relations Act, which created a right of employees to bargain
collectively, Jones fired 10 union member employees
Court finds a very indirect link between the firing of union members to
interstate commerce
The firings could cause a strike and halt a product---lots of things would
need to happen to effect IC
Does Congress have the right to regulate the labor practices of this business?
The Court explained that the Steel Corp. was clearly a part of interstate
commerce. It was the fourth largest produce of the steel factories in
Pennsylvania and many other states and categories. The Corp. also employed
several hundred thousand employees
In light of these findings the Court explained that the steel business was part of
the stream of commerce and that labor relations within it had a direct effect on
commerce. The Court’s opinion left no doubt that the decision marked a major shift
in the law.
Court is back to 1890s/Marshall view - Congress's power is plenary activities are
interstate if they have close and substantial relation to IC
United States v. Darby (1941)---OVERRULED HAMMER- Min Wage for employees
allowed eliminated manufacture exception created by Hammer. Fair Labor Standards Act
of 1938 that prohibited the shipment in interstate commerce of goods made by
employees who were paid less than the prescribed minimum wage.
The Court rejected the view that production was left to state regulation
(Hammer). Manufacture is not of itself interstate commerce, but the shipment of
manufactures goods interstate can be regulated by Congress
A law is constitutional so long as it is within the scope of Congress’s
power.
Wickard v. Filburn (1942)---substantial effect is defined by the aggregate effect on the
market--doesn't have to be commercial
Congress reasoned that they could regulate the production in this instance of
wheat not to enter the market because cumulatively home grown wheat had a
substantial effect on interstate commerce.
Congress can regulate the national market of goods
3 cases adopt broad definitions and among the states, and reject the 10th amendment
as a limit.




Commerce includes all stages of business, no longer is distinction drawn
between commerce and other stages such as mining, manufacture, and production.
Congress can regulate any activity, intrastate or interstate, that has a substantial
effect on interstate commerce.
Can regulate activities that themselves have little effect on interstate
commerce if the activity, looked at cumulatively throughout the country has a
substantial effect on commerce.
10th amendment does not reserve a zone of activities for exclusive state control
Civil Rights Laws. Congress enacted this legislation under its Commerce Clause power. Did not
regulate under 14th Amendment because under the 14th Amendment Congress could only
regulate gov’t conduct and could not regulate private behavior – it only could control state
action.
Heart of Atlanta Motel, Inc. v. US (1964) - Most of the motel's business comes from
interstate travelers (75%)
Congress found that discrimination has an adverse effect on interstate
commerce
Motive is irrelevant - Congress clearly passed the law to stop
discrimination, not help interstate commerce
Court agreed and used rational basis to evaluate
Katzenbach v. McClung, Sr. and McClung, Jr. (1964) - Ollie's bbq was a family owned
restaurant in Alabama, 46% of the meat that it purchased annually came from out of
state. Ollie's argued that serving blacks would hurt business.
Court’s decision not based on the interstate impact of the restaurant. Rather,
the Court found that Congress rationally had concluded that discrimination by
restaurants cumulatively had an impact on interstate commerce. The court upheld
the Civil Rights Act and its application to Ollies BBQ because “the power of Congress
under the commerce clause is broad and sweeping.”
Regulatory Laws:
Hodel v. Indiana (1981) - upheld a federal law that regulated strip mining and required
reclamation of strip-mined land.
A court may invalidate legislation enacted under the Commerce Clause only if it
is clear that there is no rational basis for a congressional finding that the regulated
activity affects interstate commerce, or that there is no reasonable connection
between the regulatory means selected and the asserted ends.
Dissent said that they left the word substantial effect, showing that the
regulated activity has a substantial effect on that commerce.
Criminal Laws: Perez v. US (1971) - When should Congress be enacting criminal laws under the
Commerce Clause?
The Court said that there are three ways Perez affects commerce:
Channels of Interstate Commerce
Instrumentalities or persons/things of interstate commerce
Intrastate activity that substantially affects interstate commerce
Perez fit in this third category - loan sharking
Congress under the CC into the 1990s
Regulate use of channels of Interstate Commerce
Regulate instrumentalities, things, and persons in interstate commerce
Regulate intrastate activity that substantially affects interstate commerce - may not be
commercial


Use Rational Basis
The Tenth Amendment Between 1937 and the 1990s - Court said that 10th A was a truism
National League of Cities v. Usery, 1976 - deviated from this view. The Court 5-4
declared unconstitutional the application of the Fair Labor Standards Act, which required
the payment of the minimum wage to state and local employees.
State sovereignty issue - Court found that requiring states to pay their
employees the minimum wage violated the Tenth Amendment because forcing
state and local governments to pay their employees the minimum wage would
require that they either raise taxes or cut other services to pay these costs.
They held that Congress violates the Tenth Amendment when it interferes with
traditional state and local government functions.
Blackmun concurs have to balance the interests of the state and federal
government
Garcia v. San Antonio Metropolitan Transit Authority (1985)- Overruled National League
of Cities. Garcia focused on whether the application of the Fair Labor Standards Act to
state and local governments violated the Tenth Amendment. (5-4 decision) This is not
traditional sovereign (government) function. Blackmun offered two reasons for
overruling Usery.
Usery had proved unworkable--just got it wrong earlier
State is protected by the political process--not a role for the judiciary. States
are protected by federal funding, federal laws creating immunization, and through
State representatives
Is he abdicating any judicial review? Sounds like it, unless the judiciary
thinks the political process has broken down. Blackmun says the States know
how to protect themselves through the political process, and that they have
representation in Congress.
There were three dissenting opinions.
Justice Powell’s dissent focused on the majority’s first major point as to
whether it was possible to define “traditional” or “integral” governmental
functions. He argued that the Court could define the parameters of the 10th
Amendment just as the Court has defined numerous other ambiguous
constitutional provisions.
Justice O’Connor’s dissent responded to the majority’s second major
point and challenged the view that the political process would adequately
protect the interests of state governments.
Justice Rhenquist wrote a short dissent lamenting the majority’s
approach, but predicting that, in time, the conservative’s position on the 10th
Amendment again would prevail.
1990s-???: Narrowing of the Commerce Power and Revival of the Tenth Amendment as a
Constraint on Congress.
Redefining what is “Commerce Among the States”?
United States v. Lopez (1995) - The Supreme Court declared unconstitutional
the Gun-Free School Zones Act of 1990, which made it a federal crime to have a gun
within 1,000 feet of a school.
The Court ruled that the relationship to interstate commerce was too
tangential and uncertain to uphold the law as a valid exercise of Congress’s
commerce power.
So does regulating gun laws substantially affects interstate
commerce? Rational Basis review
 Can affect education, so when people are not receiving proper
education, it can affect commerce
 Rehnquist didn't buy it
The Court identified three types of activities that Congress can regulate
under the Commerce Clause:
Congress can regulate the use of channels of interstate
commerce.
Congress may legislate to regulate and protect the
instrumentalities of interstate commerce, this includes the power to
regulate persons and things in interstate commerce.
Congress may regulate those activities having a substantial
relation to interstate commerce. The more restrictive interpretation of
congressional power is preferable and that the proper test requires an
analysis of whether the regulated activity substantially affects interstate
commerce.
Why was it ruled unconstitutional?
No jurisdictional element mandating a link to interstate
commerce
 In the civil rights cases - the law said businesses involved in
interstate commerce cannot discriminate
Criminal statute - not commercial activity, purely criminal
No Congressional findings establishing link to interstate
commerce
 How can Congress have a rational basis if they found no link? Not
at the time to passing the law
US v. Morrison, 2000 - The Federal Violence Against Women Act authorizes
victims of gender-motivated violence to sue for money damages. Congress enacted
it based on findings of the inadequacy of state laws in protecting women who are
victims of domestic violence and sexual assaults. Congress found that gendermotivated violence costs the American economy billions of dollars a year and is a
substantial constraint on freedom of travel by women throughout the country.
Plaintiff, allegedly was raped by football players. The players were never prosecuted
and did not even receive sanctions from the University. She filed suit against the
players and the University.
Can the civil damages provision of the Act be upheld, either as an
exercise of Congress’s commerce clause authority or as permissible under
Congress’s power pursuant to §5 of the 14th Amendment?
No. Congress lacks the authority to adopt the provision under
either of these powers. The Court reaffirmed the 3-part test for
Congress’s commerce clause authority that was given in Lopez.
Congress may regulate:
the channels of interstate commerce
the instrumentalities of interstate commerce and persons or
things in interstate commerce, and
activities that have a substantial effect on interstate commerce
by showing:

Aggregate effect
These first three ask if Congress had a rational basis for
finding activity affects interstate commerce
But (from Lopez) if Congress is regulating non-economic activity then
there must be and we abandon aggregate affect approach:
Jurisdictional element--No
Purely criminal activity, or some commercial activity--purely
criminal
Regulates an area of traditional state concern - like educations
and crime
Congressional findings---Congress found many, 4 years of
hearings cost billions
 Cannot rely on Congressional findings ONLY
Congress mistakenly relied on a “but-for” causal chain in their analysis.
The Court said by upholding this reasoning a slippery slope would ensue and
any crime could be upheld if it had an aggregated nationwide impact.
Thomas in concurrence - substantial effects inconsistent with
Commerce Clause
Souter in dissent: Stressed the need for judicial deference to
congressional fact-finding.
Gonzales v. Raich, 2005 - Controlled Substances Act takes away Raich's
marijuana - California has an exception for medical marijuana
Is anyone challenging Congress's power to pass the CSA? No.
Issue - Raich wasn't selling or buying - not engaged in interstate
commerce
Stevens relies upon Wickard - the important thing is that
Congress is regulating commerce in general
However, Wickard's decisions could affect the market price,
Raich could not - it was solely for her own consumption
How does Stevens reconciles this - the Farm acts were passed to
control the size of the wheat market and the CSA was passed to
control the size of the marijuana market
This would create a gaping hole in the CSA b/c the
marijuana market would expand and be more available
Scalia Concurrence - resurrects the necessary and proper clause
Can regulate intrastate activity if failing to regulate the intrastate
activity will affects the overall market
Morrison goes further than Lopez in limiting the scope of Congress’s commerce power,
by limiting it to a finding of substantial effect on interstate commerce.
DISTINGUISH MORRISON AND LOPEZ---Also in areas traditionally regulated by the
states, Congress cannot regulate noneconomic activity based on a cumulative effect on
interstate commerce.
Interpreting Federal Statutes - Court is trying to narrowly construe statutes to avoid
federal/constitutional clash
United States v. Jones (2000) - The Supreme Court unanimously held that the federal
Arson Act does not apply to arson of a dwelling. Ginsburg said that applying the Act to
arson of a private residence would raise serious constitutional issues concerning

Congress’s power under the Commerce Clause. To avoid “constitutional doubts” it would
interpret the law to not apply to such acts.
Solid Waste v. U.S. Army (2001) - Wanted to fill a gravel pit, but Army refused, envoking
the Water Pollution Control Act to save migratory bird rule.
Can the Engineers deny the permit on the basis of migratory birds?
Nothing is clear from Congress that the Clean Water Act was meant to
reach abandoned gravel pits
Court ruled that the gravel pit could be filled in
Need clear indication Congress wanted result.
Concern is heightened when there is traditional state power at risk
Court construes to avoid unless clear congressional intent otherwise
Pierce County, Washington v. Guillen (2003) - Involved two separate accidents at
intersections in the State of Washington and the local gov’ts had recently conducted
studies of traffic conditions at both locations. The Πs sued the local gov’ts and sought
access to the traffic studies. A federal statute provides that if a local gov’t does a traffic
study as part of applying for federal funds, the study would not be discoverable.
Congress’s concern was that local gov’ts would not conduct the investigations if they
could be used as evidence against them in suits arising form accidents.
Regulating use of channels of interstate commerce (highways) is part of the
Commerce Clause
Congress had reasonable/rational belief it would lead to greater safety
Gonzales v. Oregon (2006) – p. 24 of Supplement – Assisted Suicide statute
The Attorney General has no authority to give his own interpretation about a
federal statute.
Does the Tenth Amendment Limit Congress’s Authority?
Gregory v. Ashcroft (1991) - State court judges in Missouri challenged a provision of the
Missouri Constitution that set a mandatory retirement age as violating the federal Age
Discrimination in Employment Act.
Court rules that in statutory construction
Must be clear that the statute is to invade the domain of state sov'ty
federal law will be applied to important state government
activities only if there is a clear statement from Congress that the law
was meant to apply.
Doesn't apply to state judges - avoids constitutional question
Court then refused to apply I to preempt the Missouri
mandatory retirement age.
New York v. United States (1992) - Congress created a law with a duty for states to
provide for the safe disposal of radioactive wastes generated within their borders. The Act
provided monetary incentives for states that comply, and allowed states to impose a
surcharge on radioactive waste received from other states. The law provided that states
would “take title” to any wastes in their borders that were not properly disposed of by a
certain date, and would also be liable for all damages resultant therefrom.
The Court ruled that Congress, under the Commerce Clause, could regulated the
disposal of radioactive waste
BUT that the “take title” provision of the law was unconstitutional because
Commandeering state legislators that denies the states choices to deal
with the problems
State officials couldn't be accountable for their actions b/c they were
compelled by the federal govt
Federal government may not compel the States to enact or administer a federal
regulatory program. So it appears that if a federal law compels state legislative or
regulatory activity, the state is unconstitutional even if there is a compelling need of
the for federal action, or if state "consents."
Difference from Garcia - the FLSA subjected both state governments and private
parties to legislation
State May give incentives to encourage state to regulate in a particular way, but
may not compel.
Under spending power may attach conditions on federal funds
Where congress has authority to regulate private activity under the
commerce clause, the court has recognized congress' power to offer states
the choice of regulating that activity according to federal standards or having
state law preempted by federal regulation.
Printz v. United States, 1997 - Brady Handgun Act said state law officials had to
temporarily perform background checks for people who bought handguns
Unconstitutional (5-4 ) violated 10th. Very unusual for Congress to
commandeering state executive officials. The law may violate separation of
powers.
Federal government may not issue directives requiring states to address certain
problems, nor command states' executives to administer federal regulatory
schemes.
In dissent: Stevens disagreed saying, “When Congress exercises the powers
delegated to it by the Constitution, it may impose affirmative obligations on
executive and judicial officers of state and local gov’ts as well as ordinary citizens.
Reno v. Condon, 2000 - it simply restricts the ability for states to sell the ID information
to private entities
This does not violate the 10th because it is not infringing here or
commandeering the states, doesn’t require regulating the states as owners of
databases not regulating the states as sovereigns
Court says they are not regulating not just states, but private entities too
They way the statute reads - prohibits the state and private selling
Affirmative obligation vs. prohibition
Prohibition as in "don't do it" compared to the affirmative obligations in
NY and Printz
Congress can regulate commerce among the states
State Sov'ty Issues
Does congress have a rational basis for its actions?
Regulate use of channels of Interstate
Commerce
Regulate instrumentalities, things, and persons
in interstate commerce
OR - Regulate intrastate activity that substantially
affects interstate commerce - may not be commercial
1.
Aggregate
2.
Can use rational basis - does Congress have a
Is the law encroaching it?
o Prohibition v. affirmative
obligations
Are state officials being
compelled?
o Commandeering the
legislature or executive
branch to do something
Is there some limitation?
3.
rational basis for this?
If regulation non economic activity
i.
Jurisdiction element - on the face of the
law a national market
1. Possession of guns near
schools/violence against women v.
interstate market in drugs
ii.
Congressional Findings
1. Cannot rely on Congressional
findings only
iii.
Congress cannot be regulating laws
(education and crime) that are
traditionally handled by the state
iv.
Regulating purely criminal activity or does
it have some economic undertones?
1. Ex. - loan shark
Does the regulation target only
states, or private actors too?
THE TAXING AND SPENDING POWER - Article I, § 8 states that “Congress shall

Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for
the common Defense and general Welfare of the United States; but all Duties, Imposts and
Excises shall be uniform throughout the United States.”
For What Purposes May Congress Tax and Spend?
US v. Butler (1936) - law sought to stabilize production in agriculture by offering
subsidies to farmers to limit their crops. By restricting the supply of agricultural products,
Congress sought to ensure a fair price and thus to encourage agricultural production.-Adopted broad power, not limited to enumerated powers, but can't use to
bypass constitution
Unconstitutional violated the 10th b/c it regulated production which was left to
the states (later this was changed)
Chas. C. Steward Mach.Co. v. Davis (1937) - tax imposed by the Social Security Act
Constitutional - the tax was uniform throughout the country
Congress has the same rights as the state for laying taxes
Natural rights are as taxable as other rights
Sabri v. United States (2004) - challenge to an anti-bribing statute that only applies as
long as the government entity has received at $10,000 of federal funds
Sabri argued that Congress had to show a nexus between the bribe and federal
funds
Nothing is required when Congress is acting within its enumerated
power - in this case, the Necessary and Proper Cause
Congress wants to make sure that taxpayer dollars are being used for
general welfare and not for projects that are undermined by corrupt public
officers.
Rational reasonable means test. As long as Congress could rationally, reasonably
means for bribery to occur they could regulate and don’t have to have a
jurisdictional link.
Thomas concurrence - doesn't like the Court invoking the Necessary and Proper
clause, and thinks the Court should use the Commerce Clause

Conditions on Grants To State Governments - Congress may place strings on grants to state and
local governments, so long as the conditions are expressly stated and they have some
relationship to the purpose of the spending program. Might be in areas otherwise unable to
regulate.
South Dakota v. Dole (1987) - Congress will withhold 5% of funding for interstate
highways if the drinking age is 21
Limitations to Spending set forth in the case
Must benefit the general welfare - conceivably covers a myriad
conditions
Conditions must be clear, unambiguous - states must have notice of
what they are rejecting/accepting
Conditions must be related to federal programs - some correlation
between the funding and the act congress is trying to advocate
Nexus in this case - protect the safety of interstate highways
Can't be coercive
What about if they said you lose all your federal funding? UNCONSTITUTIONAL

CONGRESS’S POWERS UNDER THE POST-CIVIL WAR AMENDMENTS

After the Civil War, three amendments were added to the Constitution-- All have the "power to
enforce by appropriate legislation"
13th – abolishes slavery/badges and incidents of slavery (§2)
14th – EP, DP, P & I/ only state action (§5) - two theories
Is narrow and accords Congress only authority to prevent or provide remedies
for violations of rights recognized by the Supreme Court
Congress cannot expand the scope of rights or provide additional rights
Alternative approach also accords Congress authority to interpret the 14th
Amendment to expand the scope of rights or even to create new rights
Congress may create rights by statute where the Court has not found
them in the Constitution, but Congress cannot dilute or diminish
constitutional rights
15th – Vote (§2)
We know that necessary and proper only requires rational basis, so what does
appropriate legislation require?
13th Amendment - cannot regulate private actions
a.
Civil Rights Cases, 1883
i.
Court recognizes that the 13th Amendment can reach private conduct --but must
relate to slavery
b.
Congress has regulated private conduct in discrimination to sell property and private
contracting
i.
In addition to regulating private conduct relate to slavery, in the 1960s Congress
rationally believed it was eliminating badges and incidents of slavery
c.
13th Amendments can reach private conduct in two ways:
i.
Any conduct related to slavery
ii.
Congress rationally believed it was eliminating badges and incidents of slavery
14th Amendment - cannot regulate private actions
a.
US v. Morrison (2000) - federal law creates a civil action for someone subjected to
violence based on gender, Congress found that state laws were inadequate protecting




women from domestic violence, woman was raped by VT football players sued players
and University
i.
Congress tried to Commerce Clause, but the court didn't buy it despite many
findings that it does effect interstate commerce
ii.
Sect. 5 of the 14th - cannot regulate private activity and this was a crime committed
by private actors
1. Guest in dicta mentioned that enough state involvement could change private
action into state action
a.
Court says that it isn't going to let dicta effect 100 years of analysis
iii.
Can the civil damages provision of the Act be upheld, either as an exercise of
Congress’s commerce clause authority or as permissible under Congress’s power
pursuant to §5 of the 14th Amendment?
iv.
Breyer's Dissent - why can't Congress provide a remedy for private action?
1. Congress has a right to pass remedial legislation in areas where the states
haven't addressed yet as long as it is congruent and proportionate
What Is the Scope of Congress’s Power?
a.
Katzenbach v. Morgan and Morgan (1966) - Voting Rights Act of 1965, no person who has
completed sixth grade in a Puerto Rican school, where instruction was in Spanish, shall be
denied the right to vote because of failing an English literacy requirement.
i.
Court in Lassiter - literacy tests do not violate EP--Literacy tests may have a
disproportionate impact, but there is no intent
ii.
Court said that Congress in the Voting Rights Act could prohibits some literacy test-using their right to enforce in sect. 5 so long as it is Rational
1. How can this happen?
a.
OK to expand constitutional norms - in this case, equality
b.
Not OK to restrict them
iii.
Harlan dissent - violates separation of powers, once the Court says that literacy
tests don't violate EP, then Congress can't say it does. He also claims Congress
violated NY's state sov'ty
b.
City of Boerne v. Flores, 1997 - Congress enacted the Religious Freedom Restoration Act in
facially neutral laws of general applicability triggers strict scrutiny
i.
Court, however, for facially neutral, general applicable laws don't violate free
exercise
1. Is RFRA a valid enactment under section 5?
a.
Court says that section 5 only permits Congress to "enforce" the 14-A,
not alter the Constitution
b.
What does it mean to enforce? Means remedial--not plenary power
Must seek remedy or deter violations of 14-A
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Power to enforce should be exercises narrow
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ii.
For a valid law of remedial measure must be:
1. History of constitutional rights violation by the state
2. Means must be "congruent and proportionate"
a.
No termination date--would go on forever
b.
Required to meet strict scrutiny
CONGRESS’S POWER TO AUTHORIZE SUITS AGAINST STATE GOVERNMENTS
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11th Amendment: “The Judicial power of the United States shall not be construed to extend to
any suit in law or equity, commenced or prosecuted against one of the United States by Citizens
of another State, or by Citizens or Subjects of any foreign state.”
Since Hans v. Louisiana, states have been immune to suits both by their own citizens and
by citizens of other states.
There are three ways around the Eleventh Amendment to hold state governments accountable
in federal court:
State officers may be sued in federal court, even when state governments cannot be
sued
Ex parte Young exception - state officers may be sued for injunctive relief
Sue state officials in their individual capacity for damages to be paid by them
States can waive immunity - must be clear
Congress power to abrogate acting pursuant to section 5 of the 14-A - must be clear in
the statute (Fitzpatrick v. Bitzer)
Congress May Authorize Suits Against State Pursuant Only to § 5 of the 14th Amendment
Pennsylvania v. Union Gas Co. (1989)
Supreme Court held (5-4) that Congress may override the 11th Amendment and
authorize suits against state governments pursuant to any of its constitutional
powers, so long as the law in its text expressly authorizes such suits.
Seminole Tribe of Florida v. Florida (1996) - overruled Union Gas - If Congress is enacting
under section 5, 14-A - can they abrogate Article I?
Even when the constitution vests in congress complete law-making authority
over a particular area, the 11th amendment prevents congressional authorization of
suits by private parties against unconsenting states.
Kennedy dissent - Article I confers patent power and commerce clause, and
congress under the necessary and proper clause should be able to address
violations of laws in these areas
Cases Denying Congress Authority to Act Under § 5 to Authorize Suits Against State
Governments
Generally, areas requiring rational basis/low scrutiny - Congress will not be able to meet
the "congruent and proportionate test"
History of constitutional rights violation by the state
Means must be "congruent and proportionate"
Florida Prepaid, 1999 - violated patent rights, directly infringed another's patent
Court says you cannot use Art. I power to abrogate the 11th Amendment
Tries to use section 5 of the 14th - it guarantees that property cannot be deprive
without due process of law
Looks at the Boerne test for a valid abrogation
History of constitutional rights violation - no history of state
patent infringement
Means must be congruent and proper
Central Virginia, 2006 - can you sue under bankruptcy? Yes, one of the rare exceptions
in which the state consented
What is the difference?
Uses in rem jurisdiction - not a direct
Not abrogation - the states in adoptiong the constitution, the states
waived immunity for bankruptcy
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Very fact of ratifying the constitution and accepted uniform
bankruptcy laws
Kimel v. Florida, 2000 - Age Discrim - ADEA - state employer may be sued for money in
federal ct
Court doesn't allow it - must be:
Legislative history of constitutional violations
Irrational basis for the bias will be very difficult to prove
Means must be congruent and proportionate
Supreme Court interpretation of Age Basis - use rational basis - state only needs
to so rational age bias
Congress on the other hand, mandates a higher standard
Invalid abrogation of Congress's sect. 5 power to allow a state employer to be
sued in federal court
Dissent - should be enough that Congress perceived an age bias--more
deference to Congress
Univ. of Alabama v. Garrett, 2001 - ADA title I employment discrimination - Garrett went
through cancer treatment, then was demoted
Act on its face has clear abrogation
Legislative history of constitutional violation
Not enough to show a pattern of state employer violations
Congruent and proportionate
Age or Disability bias only needs to be rational
Simply, don't want to take the cost of hiring disabled persons is
enough
Congress in the ADA requires reasonable accommodations
Congress’s Greater Authority to Legislate Concerning Types of Discrimination and Rights that
Receive Heightened Scrutiny
Nevada Dept. of Human Resources v. Hibbs (2003)
Court held that the family leave provision of the Family and Medical Leave Act
of 1993 (FMLA) fits within the scope of Congress’s §5 powers and can be used to
sue state governments. The FMLA requires that employers, including government
employers, provide their employees with unpaid leave time for family and medical
care.
Valid congressional abrogation of state sovereign immunity--deals with gender
bias (intermediate scrutiny)
Legislative history of constitutional violation--Yes
Be easier to find a record of constitutional violations with intermediate
scrutiny
Couldn't bring an equal protection claim--needed intent
Are the means congruent and proportionate? Yes
Created a benefit for all eligible employees, provided unpaid leave, and
provided exceptions.
Tennessee v. Lane (2004) - ADA title II - mandates that govt facilities are equally
available to disabled persons - Lane paraplegic crawled up the stairs of court room
Why is this different than Garrett? Has to do with the right of access to the
courts--heightened scrutiny
Stevens upholds the law
In deciding this - access to the courts is a fundamental right
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Congruent and proportionate measure as applied to the
fundamental right by mandating accessibility
US v. Georgia (2006) - prisoner was disabled and filed suit against the state under the
ADA for 8th Amendment cruel and unusual punishment
Congress has a right to provide a remedy for money damages when the
violation under the ADA was 8th A when normally the person wouldn't be able to
get a remedy for money damages
Bringing suits against a state in state court
Alden v. Maine, 1999 - suing the state under the FLSA b/c the state didn't pay overtime-wanted money damages for past unpaid overtime
Tried first bringing the suit in federal - FLSA was valid law under the 10th
Amend, but not under the 11th
The FLSA was passed under the Commerce Clause - 11th amendment
cannot be abrogated by the Commerce Clause
So what about suing in state court?
Not a 11th Amendment problem, but--state sov'ty issues
State would never ratify the constitution if it allowed states to
be sued in the state courts
11th Amendment only bars suit against the state and the state's agency
Can sue the county, municipality or enjoin the state to force it make
future payments in overtime
The probation officers can sue the federal secretary of labor--but it is
problematic b/c the secretary of labor is in charge of millions of employees
To have a legitimate remedial measure:
Clear abrogation by Congress
Must be § 5, 14th amendment
History of constitutional rights violation by states
Congruent and Proportional means used
Ask:
What is the constitutional right at issue?
What is the level of scrutiny?
It is easier to find valid abrogation when a fundamental right/heightened scrutiny is at
play.