CONSTITUTIONAL LAW OUTLINE
PROF. KREIMER – SPRING 2010
COURSE OVERVIEW.................................................................................................................................... 7
THEMES ........................................................................................................................................................................................ 7
RECURRING QUESTIONS........................................................................................................................................................... 7
JUDICIAL REVIEW ....................................................................................................................................... 7
Timeline ...................................................................................................................................................................................... 7
MARBURY V. MADISON (MARSHALL, 1803) ........................................................................................................................... 8
Significance.................................................................................................................................................................................. 9
Alternatives................................................................................................................................................................................. 9
OTHER CASES .............................................................................................................................................................................. 9
McIntyre v. Wood (1813) ........................................................................................................................................................... 9
McClung v. Silliman (1821) ....................................................................................................................................................... 9
Kendall v. Stokely (1838) ........................................................................................................................................................... 9
NECESSARY AND PROPER CLAUSE ........................................................................................................ 9
MCCULLOCH V. MARYLAND (MARSHALL, 1819)............................................................................................................... 10
Timeline .................................................................................................................................................................................... 10
Significance................................................................................................................................................................................ 11
ORIGINAL INTENT .................................................................................................................................... 11
DRED SCOTT V. SANFORD (TANEY, 1857) ........................................................................................................................... 11
Problems ................................................................................................................................................................................... 12
COMMERCE CLAUSE .................................................................................................................................12
HISTORY ..................................................................................................................................................................................... 12
Federalist Papers… importance of the states. ............................................................................................................................. 13
Federal/State Power Debate: State Autonomy .........................................................................................................................................................13
Nature of the Debates: ....................................................................................................................................................................................................13
THE EARLY YEARS (1824 – 1936) .......................................................................................................................................... 13
Gibbons v. Ogden (Marshall, 1824) ......................................................................................................................................... 13
Between 1887 and 1937...................................................................................................................................................................................................14
Paul v. Virginia (1869) .......................................................................................................................................................................................................14
Kidd v. Pearson (1888) ........................................................................................................................................................................................................14
E.C. Knight (Fuller, 1895) ...................................................................................................................................................... 14
Direct Logical Relationship Test ...................................................................................................................................................................................14
Shreveport Rate Case (Sullivan, 1914) ..................................................................................................................................... 14
Substantial Effect Test.....................................................................................................................................................................................................14
New idea .............................................................................................................................................................................................................................15
Champion v. Ames (Lottery Case) (Harlan, 1903) .................................................................................................................. 15
Hipolite .................................................................................................................................................................................................................................15
Hoke .....................................................................................................................................................................................................................................15
Hammer v. Dagenhart (1918) .................................................................................................................................................. 15
NEW DEAL, NEW RULES (1936 – 1995) ............................................................................................................................... 15
Background ............................................................................................................................................................................... 15
NLRB v. Jones & Laughlin Steel (1937)  “Everything changes” ........................................................................................ 16
Wickard v. Filburn (1942) ...................................................................................................................................................... 16
U.S. v. Darby (Stone, 1941) .................................................................................................................................................... 16
Result of these cases ................................................................................................................................................................... 16
SOCIAL COMMERCE CLAUSE .................................................................................................................................................. 17
Heart of Atlanta Motel v. US (1964) ...................................................................................................................................... 17
Katzenbach v. McClung (1964) ................................................................................................................................................ 17
Other cases ................................................................................................................................................................................ 17
Maryland v. Wirtz (1968) ...................................................................................................................................................................................................17
Perez v. US (1971) ..............................................................................................................................................................................................................17
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Hodel v. Virginia Surface Mining (1981)............................................................................................................................................................................17
REINING IT IN (1995 - ???) ...................................................................................................................................................... 17
Pre-Lopez ................................................................................................................................................................................. 17
Where we’re going to end up....................................................................................................................................................... 18
US v. Lopez (Rehnquist, 1995) ............................................................................................................................................... 18
US v. Morrison (2000) ............................................................................................................................................................ 19
Post-Lopez and Morrison .......................................................................................................................................................... 19
Cleveland v. US (2000) .......................................................................................................................................................................................................19
Jones v. US (2000)...............................................................................................................................................................................................................19
Reno v. Condon (200) ..........................................................................................................................................................................................................19
Solid Waste Agency v. US Army Corp (2001) ...................................................................................................................................................................19
Pierce County v. Guillen (2003) ...........................................................................................................................................................................................19
Sabri v. US (2003) ..............................................................................................................................................................................................................19
Gonzales v. Oregon (2006) ..................................................................................................................................................................................................19
Gonzales v. Raich (Stevens, 2005) ............................................................................................................................................ 19
Gonzales v. Carhart (2005) .................................................................................................................................................................................................20
What does it mean? ..........................................................................................................................................................................................................20
FEDERALISM .............................................................................................................................................. 20
STATE SOVEREIGNTY AND THE 10TH AMENDMENT ......................................................................................................... 20
Overview ................................................................................................................................................................................... 20
Three approaches to State Sovereignty ........................................................................................................................................................................20
State’s Role in Constitution ............................................................................................................................................................................................20
Substantive Values of Federalism ..................................................................................................................................................................................21
SPIRIT OF THE 10TH AMENDMENT......................................................................................................................................... 21
Overview ................................................................................................................................................................................... 21
Cases ........................................................................................................................................................................................ 21
Coyle v. Oklahoma (1911) ...................................................................................................................................................................................................21
US v. California (1936).......................................................................................................................................................................................................21
New York v. US (1946) .....................................................................................................................................................................................................21
Maryland v. Wirtz (1960) ...................................................................................................................................................................................................21
Fry v. US (1975) .................................................................................................................................................................................................................21
National League of Cities v. Usery (Rehnquist, 1976) .............................................................................................................. 22
Garcia v. San Antonio (Blackmun, 1985) ............................................................................................................................... 22
South Carolina v. Baker (Brennan, 1988).........................................................................................................................................................................23
MACARTHUR RETURNS TO THE PHILIPPINES .................................................................................................................... 23
Gregory v. Ashcroft (O’Connor, 1991) ..................................................................................................................................... 23
South Dakota v. Dole (Rehnquist, 1987) ................................................................................................................................. 23
Why the song and dance of federalism if Congress can work around it? .............................................................................................................24
COMMANDEERING DOCTRINE ............................................................................................................................................. 24
Overview ................................................................................................................................................................................... 24
New York v. US (O’Connor, 1992) ........................................................................................................................................ 24
Printz v. US (Scalia, 1997) ..................................................................................................................................................... 25
Reno v. Condon (2000) ............................................................................................................................................................ 25
Haywood v. Drown (2009) ....................................................................................................................................................... 25
End result ................................................................................................................................................................................. 25
DUE PROCESS ............................................................................................................................................. 26
NATURAL RIGHTS .................................................................................................................................................................... 26
Overview ................................................................................................................................................................................... 26
What protections do we see in the Constitution that prevent tyrannical deprivations of property, liberty or both? ..................................26
Calder v. Bull (Chase, 1709) .................................................................................................................................................... 26
Barron v. Baltimore (1833) ...................................................................................................................................................... 27
Fletcher v. Peck (1810) ........................................................................................................................................................................................................27
PRIVILEGES AND IMMUNITIES CLAUSE ............................................................................................................................... 27
Overview ................................................................................................................................................................................... 27
Slaughterhouse Cases (Miller, 1873) ......................................................................................................................................... 28
Crandall v. Nevada (1867) ..................................................................................................................................................................................................29
Saenz v. Roe (1999) ................................................................................................................................................................. 29
Edwards v. CA (1941)........................................................................................................................................................................................................30
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Sosna v. Iowa (1975) ...........................................................................................................................................................................................................30
Vlandis v. Kline (1973) .......................................................................................................................................................................................................30
Difference between Due Process and Equal Protection ................................................................................................................ 30
RISE OF SUBSTANTIVE DUE PROCESS .................................................................................................................................. 30
Overview ................................................................................................................................................................................... 30
Lochner v. NY (Peckham, 1905) ............................................................................................................................................. 30
Post-Lochner ............................................................................................................................................................................. 31
Muller v. Oregon (Brewer, 1908) .......................................................................................................................................................................................32
Bunting v. Oregon (1917).....................................................................................................................................................................................................32
Adkins v. Children’s Hospital (1923) ...................................................................................................................................... 32
Buck v. Bell (Holmes, 1927) .................................................................................................................................................... 32
FALL OF SDP, RISE OF RATIONAL BASIS............................................................................................................................. 33
Overview ................................................................................................................................................................................... 33
Nebbia v. New York (Roberts, 1934) ...................................................................................................................................... 33
West Coast Hotel v. Parrish (1937) ......................................................................................................................................... 33
Williams v. Lee Optical (1955) ................................................................................................................................................ 33
Punitive Damages ..................................................................................................................................................................... 34
TXO Production Corp. v. Alliance Resources (1993) ..........................................................................................................................................................34
Other cases.........................................................................................................................................................................................................................34
RATIONAL BASIS EXCEPTION................................................................................................................................................ 34
Carolene Products (1938) ......................................................................................................................................................... 34
Footnote 4 ..........................................................................................................................................................................................................................34
SUMMARY OF DP FROM LOCHNER ON................................................................................................................................ 35
SDP REVIVED: FUNDAMENTAL RIGHTS ............................................................................................................................. 35
Overview ................................................................................................................................................................................... 35
Two tests ............................................................................................................................................................................................................................36
When is something more required? ..............................................................................................................................................................................36
Rochin v. California (Frankfurter, 1951) ................................................................................................................................. 36
O’Connor v. Donaldson (1975) ................................................................................................................................................ 36
Other Cases .............................................................................................................................................................................. 36
Jacobson v. Massachusetts......................................................................................................................................................................................................36
Wilkins v. Gaddy .................................................................................................................................................................................................................36
Tennessee v. Garner (1985) ..................................................................................................................................................................................................36
Winston v. Lee (1986) .........................................................................................................................................................................................................37
Bell v. Watson .......................................................................................................................................................................................................................37
U.S. v. Lenier .......................................................................................................................................................................................................................37
County of Sacramento v. Lewis .............................................................................................................................................................................................37
Chabass v. Martinez .............................................................................................................................................................................................................37
US v. Georgia .......................................................................................................................................................................................................................37
Hope v. Peltzer......................................................................................................................................................................................................................37
EUTHANASIA ............................................................................................................................................................................. 37
Cruzan v. Missouri Department of Health (Rehnquist, 1990) .................................................................................................. 37
Washington v. Glucksberg (Rehnquist, 1997) ........................................................................................................................... 38
SECOND AMENDMENT ........................................................................................................................... 38
District of Columbia v. Heller (Scalia, 2008) ........................................................................................................................... 38
EQUAL PROTECTION............................................................................................................................... 39
OVERVIEW ................................................................................................................................................................................. 39
History...................................................................................................................................................................................... 39
EP and SDP............................................................................................................................................................................ 39
Issues/Debate ........................................................................................................................................................................... 40
Benefits of EP ........................................................................................................................................................................... 40
Different Tiers of Review ........................................................................................................................................................... 40
EP: RATIONALITY REVIEW OF ECONOMIC REGULATION ............................................................ 40
OVERVIEW ................................................................................................................................................................................. 40
Railway Express Agency (REA) v. New York (Douglas, 1949) ............................................................................................. 41
MINIMUM RATIONALITY......................................................................................................................................................... 41
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Williamson v. Lee Optical Co. (Douglas, 1955) ....................................................................................................................... 41
New Orleans v. Dukes (1976) ................................................................................................................................................. 42
New York City Transit Authority v. Beazer (Stevens, 1979) ................................................................................................... 42
U.S. Railroad Retirement Board v. Fritz (Rehnquist, 1980) .................................................................................................... 42
ARBITRARY OR ANIMUS .......................................................................................................................................................... 43
Village of Willowbrook v. Olech (Per Curiam, 2000) ............................................................................................................... 43
USDA v. Moreno (Brennan, 1973) ......................................................................................................................................... 43
Allegheny Coal v. Hahn .......................................................................................................................................................................................................43
Logan v. Zimmerman Brush Company .................................................................................................................................................................................43
Summary .................................................................................................................................................................................. 43
EQUAL PROTECTION AND RACE.......................................................................................................... 44
THE EARLY YEARS ................................................................................................................................................................... 44
Overview ................................................................................................................................................................................... 44
Strict Scrutiny ....................................................................................................................................................................................................................44
Why is race different? ......................................................................................................................................................................................................44
Strauder v. West Virginia (1880) ............................................................................................................................................ 44
Yick Wo v. Hopkins (1886) ................................................................................................................................................... 45
SCREWING UP BIG TIME......................................................................................................................................................... 45
Overview ................................................................................................................................................................................... 45
Plessy v. Ferguson (Brown, 1896) ............................................................................................................................................. 45
Korematsu v. US (Black, 1944) ............................................................................................................................................... 46
Ex Parte Endo (1944) ........................................................................................................................................................................................................46
EP, RACE, AND EDUCATION .................................................................................................................. 46
OVERVIEW ................................................................................................................................................................................. 47
EARLY CHALLENGES ............................................................................................................................................................... 47
Missouri ex. Rel. Gaines v. Canada (1938) ............................................................................................................................. 47
Sweatt v. Painter (1950)........................................................................................................................................................... 47
McLaurin v. Oklahoma (1951) ............................................................................................................................................... 47
THE WONDER YEARS.............................................................................................................................................................. 47
Brown v. Board of Education (Warren, 1954) ......................................................................................................................... 47
Bolling v. Sharpe (Warren, 1954)............................................................................................................................................. 48
Summary .................................................................................................................................................................................. 48
IMPLEMENTING BROWN ......................................................................................................................................................... 48
Brown v. Board of Education II (Warren, 1955) ...................................................................................................................... 49
The Situation ............................................................................................................................................................................ 49
Griffin v. School Board of Prince Edward County (1964) ...................................................................................................................................................49
Green v. New Kent County School Board (Brennan, 1968) ...................................................................................................... 49
Swann v. Charlotte-Mecklenburg Board of Ed (Burger, 1971) .................................................................................................. 49
DE FACTO SEGREGATION...................................................................................................................................................... 50
Keyes v. School District (Brennan, 1973) .................................................................................................................................. 50
Milliken v. Bradley (Burger, 1979) ........................................................................................................................................... 50
Missouri v. Jenkins (White, 1990)......................................................................................................................................................................................51
Board of Ed. Of Oklahoma City v. Dowell (Rehnquist, 1991).........................................................................................................................................51
EP: THE BOLLING LINE ..........................................................................................................................51
STRICT SCRUTINY UPHELD .................................................................................................................................................... 51
McLaughlin v. Florida (White, 1964) ................................................................................................................................................................................51
Anderson v. Martin (1964)..................................................................................................................................................................................................52
Loving v. Virginia (Warren, 1967) .......................................................................................................................................... 52
Palmore v. Sidoti (Burger, 1984) .............................................................................................................................................. 52
STRICT SCRUTINY FAILS.......................................................................................................................................................... 52
Johnson v. California (O’Connor, Kennedy, 2005) .................................................................................................................... 52
EP AND FACIALLY NEUTRAL LAWS ...................................................................................................... 53
IMPACT APPROACH .................................................................................................................................................................. 53
Overview ................................................................................................................................................................................... 53
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Guinn & Beal v. US (1915) ................................................................................................................................................... 53
Hunter v. Erickson (White, 1969) ........................................................................................................................................... 54
Griggs v. Duke Power (1971) ..............................................................................................................................................................................................54
Lau v. Nichols (Black, 1974) .................................................................................................................................................. 54
DISCRIMINATORY INTENT APPROACH ................................................................................................................................ 54
Overview ................................................................................................................................................................................... 54
Washington v. Davis (White, 1976) ......................................................................................................................................... 55
Arlington Heights (1977) ......................................................................................................................................................... 55
Hunter v. Underwood (Rehnquist, 1985) .................................................................................................................................. 55
Edwards v. Aguillard (Scalia’s Dissent, 1987)......................................................................................................................... 56
AFFIRMATIVE ACTION ............................................................................................................................ 56
OVERVIEW ................................................................................................................................................................................. 56
Two Views of Racial Integration ............................................................................................................................................... 56
O’Connor, Rehnquist, Kennedy, etc. ...........................................................................................................................................................................56
Marshall, Brennan, Ginsburg, Breyer ...........................................................................................................................................................................56
Four Views of Colorblindness ................................................................................................................................................... 57
Scalia (Richmond v. J.A. Croson Co.) .................................................................................................................................................................................57
Kennedy (Metro Broadcasting v. FCC)..............................................................................................................................................................................57
Kennedy (Rice v. Cayetano) ...............................................................................................................................................................................................57
O’Connor (Shaw v. Reno)..................................................................................................................................................................................................57
HIGHER EDUCATION .............................................................................................................................................................. 57
Overview ................................................................................................................................................................................... 57
Regents of University of California v. Bakke (Powell, 1978) ..................................................................................................... 58
Grutter v. Bollinger (O’Connor, 2003) ..................................................................................................................................... 58
Gratz v. Bollinger (Rehnquist, 2003) ....................................................................................................................................... 59
Summary .................................................................................................................................................................................. 60
EMPLOYMENT AND CONTRACTING ..................................................................................................................................... 60
Wygant v. Jackson Board of Education (Powell, 1986) ............................................................................................................. 60
Fullilove v. Klutznik (Burger, 1980) ........................................................................................................................................ 60
Richmond v. J.A. Croson (O’Connor, 1989) ............................................................................................................................ 61
Adarand Constructors, Inc. v. Pena (O’Connor, 1995)............................................................................................................. 61
ROBERTS COURT AND AFFIRMATIVE ACTION ................................................................................................................... 62
Various Approaches ................................................................................................................................................................. 62
Parents Involved v. Seattle Schools (Roberts, 2007) ................................................................................................................... 62
Ricci v. DeStefano (Kennedy, 2009) .......................................................................................................................................... 63
EP AND CITIZENSHIP .............................................................................................................................. 63
OVERVIEW ................................................................................................................................................................................. 63
Wong Wing v. US (1896)........................................................................................................................................................ 64
Wong Kim Ark (1898)............................................................................................................................................................ 64
PROTECTIONS NOT AFFORDED TO NON-CITIZENS ........................................................................................................ 65
Graham v. Richardson (1971) .............................................................................................................................................................................................65
Traux v. Rache and Takahashi ...........................................................................................................................................................................................65
Cabell v. Chavez-Salido (White, 1982) .................................................................................................................................... 65
Mathews v. Diaz (Stevens, 1976) ............................................................................................................................................. 65
Plyler v. Doe (Brennan, 1982) .................................................................................................................................................. 66
EP AND GENDER ....................................................................................................................................... 66
OVERVIEW ................................................................................................................................................................................. 66
Race vs. Gender......................................................................................................................................................................... 66
Similarities ..........................................................................................................................................................................................................................66
Differences .........................................................................................................................................................................................................................67
Standard of Review ................................................................................................................................................................... 67
EARLY CASES ............................................................................................................................................................................ 67
Bradwell v. State (1873) ........................................................................................................................................................... 67
Minor v. Hapersett (1874) ...................................................................................................................................................................................................67
HEIGHTENED SCRUTINY UNDER RATIONAL BASIS ......................................................................................................... 68
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Goesaert v. Cleary (Frankfurter, 1948) .............................................................................................................................................................................68
Reed v. Reed (Burger, 1971) ..................................................................................................................................................... 68
Frontiero v. Richardson (Plurality, 1973) ................................................................................................................................. 68
INTERMEDIATE SCRUTINY ..................................................................................................................................................... 69
Overview ................................................................................................................................................................................... 69
Craig v. Boren (Brennan, 1976) ............................................................................................................................................... 69
Mississippi University for Women v. Hogan (O’Connor, 1982) ................................................................................................ 69
J.E.B. v. Alabama (Blackmun, 1994) ..................................................................................................................................... 70
US v. Virginia Military Institute (Ginsburg, 1996) ................................................................................................................. 70
SEX DIFFERENCES AND EQUALITY ...................................................................................................................................... 71
Overview ................................................................................................................................................................................... 71
Geduldig v. Aiello (1974) ......................................................................................................................................................... 71
Michael M. v. Superior Court (Rehnquist, 1981) ..................................................................................................................... 72
Rostker v. Goldberg (Rehnquist, 1981)..................................................................................................................................... 72
Caban v. Mohammaed (Powell, 1979) ...............................................................................................................................................................................72
Nguyen v. INS (Kennedy, 2001) .............................................................................................................................................. 72
Personnel Administrator of Massachusetts v. Feeney (1979) ...................................................................................................... 73
Parental Obligations Cases........................................................................................................................................................ 73
EP: SUSPECT CLASSIFICATION AND OTHER LEVELS..................................................................... 74
OVERVIEW ................................................................................................................................................................................. 74
How to determine “suspect” classifications? ..............................................................................................................................................................74
Wealth/Economic Status  Rational Basis ...............................................................................................................................................................74
Three Approaches ............................................................................................................................................................................................................74
SUMMARY/EXAMPLES OF CASES:......................................................................................................................................................................74
WEALTH AND EDUCATION .................................................................................................................................................... 75
San Antonio Independent School District v. Rodriguez (Powell, 1973)...................................................................................... 75
MENTALLY HANDICAPPED .................................................................................................................................................... 75
City of Cleburne v. Cleburne Living Center (White, 1985) ....................................................................................................... 75
SEXUAL ORIENTATION ........................................................................................................................................................... 76
Romer v. Evans (Kennedy, 1996) ............................................................................................................................................. 76
Lawrence v. Texas (O’Connor’s concurrence, 2003) .................................................................................................................. 76
CONGRESSIONAL POWER UNDER RECONSTRUCTION AMENDMENTS ................................... 76
HISTORICAL BACKGROUND ................................................................................................................................................... 76
Ex Parte Virginia (1880) ...................................................................................................................................................................................................76
Civil Rights Cases (1883) ....................................................................................................................................................................................................77
South Carolina v. Katzenbach (Warren, 1966) ........................................................................................................................ 77
Katzenbach v. Morgan (Brennan, 1966) ................................................................................................................................... 78
US v. Guest (Brennan’s concurrence, 1966) .............................................................................................................................. 78
Rome v. United States (Marshall, 1980) .................................................................................................................................. 78
STATES’ RIGHTS PUSH BACK.................................................................................................................................................. 78
City of Boerne v. Flores (Kennedy, 1997) .................................................................................................................................. 78
United States v. Morrison (Rehnquist, 2000) ........................................................................................................................... 79
DISABILITY CONTEXT ............................................................................................................................................................. 79
Northwest Austin Municipal Utility v. Holder (Roberts, 2009) ............................................................................................... 79
WATCH OUT, KIDS! SDP IS BACK! ........................................................................................................... 80
OVERVIEW ................................................................................................................................................................................. 80
SDP vs. EP ............................................................................................................................................................................. 80
History...................................................................................................................................................................................... 80
Court Retains SDP in a few areas: ........................................................................................................................................... 80
WHERE SHOULD COURT LOOK TO INTERVENE? ............................................................................................................... 81
RIGHT TO EDUCATE CHILDREN ........................................................................................................................................... 81
Meyer v. State of Nebraska (McReynolds, 1923) ...................................................................................................................... 81
Pierce Sisters v. Hill Military Academy (McReynolds, 1925) .................................................................................................... 82
FAMILY AND FUNDAMENTAL RIGHTS ................................................................................................................................. 82
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Loving v. Virginia (1967) ........................................................................................................................................................ 82
Zablocki v. Redhail (Marshall, 1978) ...................................................................................................................................... 82
Turner v. Safley (O’Connor, 1987) Extends Zablocki.............................................................................................................. 82
Moore v. East Cleveland (Powell, 1977) ................................................................................................................................... 82
Belle Terre v. Boraas (1974) ................................................................................................................................................................................................82
Troxel v. Granville (O’Connor, 2000) ...................................................................................................................................... 82
Michael H. v. Gerald D. .......................................................................................................................................................... 83
RIGHT TO PRIVACY: CONTRACEPTION AND REPRODUCTION ....................................................................................... 83
Skinner v. Oklahoma (Douglas, 1942) .................................................................................................................................... 83
Griswold v. Connecticut (Douglas, 1965) ................................................................................................................................. 83
Where should court look to intervene? ........................................................................................................................................................................84
Eisenstadt v. Baird (1972) ...................................................................................................................................................................................................84
Carey v. Population Services (1977) .....................................................................................................................................................................................84
RIGHT TO PRIVACY: ABORTION AND REPRODUCTIVE DECISIONS ............................................................................... 84
Roe v. Wade (Blackmun, 1973) ............................................................................................................................................... 84
Post-Roe Cases .......................................................................................................................................................................... 84
Minors’ Decisions to have Abortions ...........................................................................................................................................................................85
Funding Decisions: No strict scrutiny (no undue burden) ......................................................................................................................................85
Planned Parenthood of Southeastern PA v. Casey (O’Connor, 1992) ....................................................................................... 85
Stenberg v. Carhart (Breyer, 2000) ........................................................................................................................................... 85
Ayotte v. Planned Parenthood of Northern New England (2006) .......................................................................................................................................86
Gonzales v. Carhart (Kennedy, 2007)....................................................................................................................................... 86
FUNDAMENTAL RIGHT TO SEXUAL FREEDOM? ................................................................................................................ 86
Bowers v. Hardwick (White, 1986) .......................................................................................................................................... 86
Lawrence v. Texas (Kennedy, 2003) ......................................................................................................................................... 86
Course Overview
Themes
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Liberties protected by intervention
Equality among members of the American polity
Federalism
Recurring Questions
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As between individual citizens and residents, the states and local authorities and the federal government, who has the
right to decide?
In addressing the question of who has right to decide, what are the side constraints? What are the demands of equality?
How should a court reason towards the answers to these questions?
What are the relative statuses, and how should the court address text, history, precedent, and foundational
requirements in conceptualizing these powers and limits?
What weight, if any, should courts give to the intentions of the Framers?
Judicial Review
Timeline
1776  Declaration of Independence
 Establishes claim to proposition that United States come together to claim independence
1778  Articles of Confederation
 Made to run war and grants some limited legislative capacity
 Endures for length of war
1783  Treaty of Paris
 Each state has separate legislative, executive, and judicial bodies
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 Articles of Confederation establishes governing body for limited purposes
1787  Constitution proposed to establish a national entity ordained and established by people
1788  ratified, Washington elected
1789  Judiciary Act sets up lower courts, jurisdiction, and elements of SCOTUS
1790  Bill of Rights adopted; amend, limit, and clarify prior structure
1792  Washington re-elected
GOLDEN AGE ENDS
1796  Alien/Sedition Acts
 Give President authority to unilaterally deport aliens
 Prosecutors can sue and imprison detractors of government
1800  Jefferson/Burr elected by House of Representatives
1801  Adams appointed Secretary of State, John Marshall to SCOTUS
February 17  Jefferson elected and takes office on March 2
Dec. 1801  Marbury appeals to SCOTUS, who issues order to show cause why mandamus should not be granted
Marbury v. Madison (Marshall, 1803)
Facts
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Feud between federalists (Adams) and Jeffersonian Republicans
Under Adams, Marbury’s commission to serve on SCOTUS was never delivered. Jefferson’s Secretary of State,
Madison, refuses to uphold.
Marbury seeks writ of mandamus directly from SCOTUS because, under Judiciary Act of 1789, there were no lower
federal courts with federal question jurisdiction
While SCOTUS demanded Madison show reason not to issue mandamus, this is ignored and Republican-led Congress
suspended SCOTUS until 1803
During trial, Madison does not show up to explain why a mandamus should not be issued. Marshall is in a difficult
position – Jefferson will not execute commission (even if ordered). Therefore, threatening the strength of the
judiciary. However, Marshall has to comment on the power of judicial review.
Issues
1. Does Marbury have a right to his commission?
2. Do laws give him a remedy?
3. Can SCOTUS hear this case and issue a remedy?
Holding
1. Marbury is entitled to the commission and to judicial relief
a. A Congressional statute dictates the steps and obligations. The right is enforceable, and the executive branch
has an obligation to comply with the law
2. There is a remedy under US laws
a. Judicial relief  executive branch may have discretion but it doesn’t mean they’re immune from the law
i. This is a “government of law, not of men”  guards against inequality, instability, whims of new
administration
ii. Courts won’t hold officials responsible if they are engaging in political activities BUT because
there’s a law, there’s an obligation to deliver the commission
iii. While the Court cannot dictate the relationship between the Pres./Secretary of State, and cannot
directly order the Executive (issue a writ of mandamus to a political person/executive branch),
the Court can apply the law directly on the Secretary of State (Admin. Task)
b. Civil liberties  rights that affect individuals must be enforceable when prescribed by law and individuals
must have access to courts
i. Authority comes from Judicial Act of 1789, §13
ii. It is the duty of the court to provide relief when individual rights have been violated
3. SCOTUS cannot issue a writ because it doesn’t have jurisdiction
a. The Judiciary Act is unconstitutional because it violates Article III
i. Art. III grants SCOTUS original jurisdiction over certain types of cases and appellate jurisdiction
over everything else  this is original jurisdiction but not enumerated
1. SCOTUS has only appellate jurisdiction
ii. Congress can’t give jurisdiction where the Constitution doesn’t grant it  Constitution is a series
of written limits on what the government can do
1. Gives scope and power to the government; people have embedded powers and legislature
is bound to follow its limits
b. SCOTUS can decide when laws are unconstitutional
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i. Court has a duty to interpret legislation to see if it conflicts with Constitution, and, if there is, make
a determination
ii. Authority to decides cases arising under Constitution implied the power to declare unconstitutional
laws conflicting with this basic legal character
iii. Judges would violate their oath if they enforced unconstitutional laws
iv. Constitution is the supreme law in the land – mentioned first (true will of the people). Limits
government, not the states. When there is a conflict with law, Constitution wins:
1. Supremacy Clause – Article VI
2. Framework of Constitution (Congress cannot judge their own actions)
3. Written – point of Constitution is to limit the gov’t
4. People established the Constitution. No branch can be omnipotent – people are the
original source of power.
Significance
o
o
o
o
Establishes judicial review
o President and Congress are subject to law
o SCOTUS’s role is to determine whether or not other branches are complying with the law
o SCOTUS can invalidate statutes and apply laws to executive
Judiciary limits
o Can only respond to issues or consider cases and controversies that come before them  only bind parties in
the case
o Have to give a reason for their actions; bound by precedent
o Appointed by political actors
o Depends on executive and other courts to enforce their determinations
Constitution is a written limit
o Judiciary decides whether law or Constitution governs
Marshall’s smart
o He established judicial review while declaring unconstitutional a statute that he read as expanding the Court’s
powers.
o Politically he had no choice but to deny Marbury relief (or risk weakening the authority of the court).
o He established the power of the judiciary and a role for the federal courts that survives to this day.
o The Supreme Court did not declare another federal statute unconstitutional until 1857 in the infamous case
of Dred Scott v. Sanford (invalidating the MO Compromise)
Alternatives
o
o
Alternatively, SCOTUS could have held: 1) commission does not vest as a matter of law until its delivery, 2)
commission is the unreviewable discretion of the exec., or 3) dismissed for lack of original jurisdiction only (argument
nothing before that determination should have counted)
Marshall could read Constitution as a floor (not a ceiling) (minimum not a maximum) of Constitutional rights to
determine rights of SCOTUS. Therefore, Judiciary Act would have been Constitutional.
Other cases
McIntyre v. Wood (1813)
o
Lower courts don’t have original jurisdiction over federal question claims because Congress didn’t give them authority
McClung v. Silliman (1821)
o
Can’t get relief for federal question claim in state court because it’s at odds with authority of federal courts  no
authority granted by Congress
Kendall v. Stokely (1838)
o
Go to DC courts for federal question claims because they have plenary jurisdiction within DC and don’t need a special
grant of jurisdiction
Necessary and Proper Clause
9
McCulloch v. Maryland (Marshall, 1819)
Timeline
1781  Articles of Confederation
 Limited grants of authority and powers not expressly delegated are reserved for the states
 Lots of problems  trade wars; national government is broke because has no taxing power of its own and can’t
undertake Congressional initiatives
1787  Constitution and George Washington
1789  First Bank of US
 Debated between Hamilton and Jefferson
 Washington decides Congress does have authority to create the Bank
1801  Jefferson is president and is stuck with the bank
1803  Louisiana Purchase
 No authority granted in Constitution to purchase land for US
 Jefferson decides this is not a problem
1809  Madison as president (from Jefferson’s party)
1811  First Bank expires and Madison makes no effort to re-establish bank
1812  War of 1812
 US needs an army and naval forces but has no cash reserves
 If there had been a bank, they could have gone there to fund it
 Pieced together sufficient funds from private loans
1816  Second Bank of US
 Joint public/private entity
1819  McCulloch v. Maryland
Facts
o MD law taxes a federal bank (note: law did not tax banks chartered in MD).
o Fed says that taxation is unconstitutional; McCulloch is the head of the bank in MD
Issues
1. Can Congress establish a bank?
2. Can Maryland tax the bank?
Holding
1. Congress has authority to authorize the bank  Rational means of getting to a legitimate end
a. Looks to Constitutional language
i. 10th amendment states only powers “not granted” are reserved for states rather than reserving
powers “not expressly stated,” as in A of C.
1. Suggests some powers are implied from explicit grant of other powers
ii. Necessary & Proper Clause. This is not a limitation to federal power. The clause lacks language
requiring “absolute necessity,” while in other § of the Constitution the language is evident. Also,
“and proper” qualifies the strict and rigorous meaning of necessary. Therefore, since there are
degrees of necessity, this clause is more “convenient and useful” than absolute.
iii. Does not read like a legal code: set of principles. Must be broad and easy to understand. By the
people; should be read to benefit the people.
b. Structure of Constitution
i. NPC is located in list of enumerated powers NOT limitations
1. Implies there is a choice of means and Congress is able to determine the means.
ii. Dictates of reason – must be able to carry those broad powers into effect. Even without the N&P
Clause, the structure of the document allows for a choice of means implicitly granted to the federal
government.
1. Hamilton: It is constitutional if it does not abridge a pre-existing right of any State or any
individual. The scope of state’s right depends on the “spirit of the Constitution.”
iii. Also important to keep in mind that the Constitution was established by the people and that it
should be interpreted in a way that will provide the maximum benefit to the people
1. Can’t expect the federal government to rely on state banks to a achieve its ends  state
banks are beyond its control, and they would be at the mercy of those banks
c. Powers are not limitless  Legitimate Means Test
10
2.
i. If the end is legitimate, the means are plainly adapted to meet that end, and the means are not
prohibited somewhere else, then it’s ok
ii. Not legitimate  affirmatively prohibited by Constitution, passed under a pretext to pursue some
other objective
Maryland cannot tax the bank  “Power to tax is the power to destroy”
a. Constitutional structure
i. Congress is within its rights to create the bank, and it would be untenable to put states in the
position to destroy the ability of Congress to achieve legitimate ends
1. Supremacy clause, Art. IV  states can’t destroy entity of federal government
2. Would be at odds with presupposition of country and Constitution
ii. Inherent political checks against state using taxes to destroy its own constituents that don’t apply to
states taxing federal structures
1. Necessarily have an effect on citizens from other states who will have no recourse 
shouldn’t expect citizens from other states to trust those states will exercise discretion
while taxing them
iii. States granted exclusive authority to tax in Constitution, so they are subordinate to it and the fed is
exempt
1. Also worried about line drawing
iv. However, state can tax land on which bank is found
Significance
o
o
o
Court grants Fed. Government means (implied powers) to accomplish enumerated powers but retains the
authority to impose limits (those not plainly adapted to meet the enumerated powers).
Established several crucial aspects of Constitutional law:
o (1) Declared that the federal government is supreme over the states and that the states have no authority to
negate federal actions;
o (2) Court expansively defines the scope of Congress’s powers;
o (3) Court limits the ability of the states to interfere with fed. activities
Rational review of Legitimate ends
o Court reserves power to strike down statutes beyond NPC
o “If the end is legitimate, all means which are appropriate, which are plainly adapted to that end, which
are not prohibited, but consistent with the letter and spirit of the constitution, are constitutional”
o Limitations
 Plainly adapted
 Specific prohibitions of fed authority
 Presumption of state authority
 Legitimate end
Original Intent
Dred Scott v. Sanford (Taney, 1857)
Background/Facts
1787  Northwest territories (IL, OH, MI) acquired  slavery is prohibited in area
 Shortly before the establishment of the Constitution, the convention and the First Congress forbad slavery in the
Northwest territories
1803  Louisiana Purchase
1820  Missouri Compromise
 Admits Missouri as a slave state and admits Maine with slavery forbidden to balance the Senate
 Slavery within Louisiana Purchase prohibited north of southern boundary of Missouri and permitted below the
northern boundary of Missouri
 Only two states explicitly excluded blacks from the list of voters  in many states they could vote
 Dred Scott taken through Illinois (free by state law), the northern areas of the Louisiana purchase (Minnesota, free by
federal law)  ends up in MO
 Scott brings diversity action against Sanford, arguing that he and his family are now free after passing through Illinois
and Minnesota
 Cause of action is for assault by Sanford  if the Scotts are free, then Sanford is not permitted to assault them
because they are not his property
 This is the first case since Marbury in which SCOTUS declared a Congressional law invalid
11
Issues
1.
2.
3.
Result
1.
2.
3.
Conflict of Laws
Is the case properly within the jurisdiction of federal courts?
Do they have to recognize the Missouri Compromise?
Missouri municipal courts are not required to recognize freedom given by IL laws
Case is not properly within jurisdiction of federal courts because Scotts are not citizens of MO and thus have no
standing to bring a diversity action
a. Rejects “Spirit” Understanding: Taney rejects reading the Constitution based on the “spirit and ideal
upon which the nation was founded” because this risks no constitutional restraints at all.
b. Doctrine of Original Intent using TEXT  Citizenship is not defined in the Constitution.
i. Original intent can be inferred from the Constitution
ii. §9 of Article I: Congress cannot prohibit slavery prior to 1808  stop-gap
iii. § 2 of Article IV escaped slaves must be returned (slaves are part of a separate class) (note: Fugitive
Slave Clause distinguishes between free/slave, not race).
iv. §2 of Article I: “3/5 Clause” This implies that there are free AAs, as it distinguishes between those
held in servitude and “free persons”
c. Determining “Subjective Intent” of the Framers:
i. Framers and signers of the Declaration of Independence owned slaves, thus, these documents could
not have included blacks. It would be hypocritical
1. Framers are not building a govt based on their imperfect example
ii. Legislation such as Naturalization Act and Militia law only consider white men.
1. The language of the Militia law is “free, able-bodied whites;” which suggests there are
white people who are NOT free. Also if all citizens were white, why make this distinction?
Critics suggest whether or not a person is free, not race, should determine
citizenship).
iii. §2 of Article IV (Privileges and Immunities): Citizens must be entitled to all privileges and
immunities of the other states. According to Taney, this includes travel between states, right to
sojourn, right to speak freely
1. If AAs are citizens, they could do all of these things and incite slave rebellions, thereby
destabilizing institution of slavery
2. No way slave states would have signed onto the Constitution if they thought AAs were
citizens and could do all these things
Missouri Compromise is unconstitutional because it violates 5th amendment by depriving slave owners of property
a. Structure and spirit of Constitution
i. Can’t deprive citizen of property just by bringing property into a different territory  not fair
ii. This shows a lack of due process, and it’s unconstitutional
iii. Sees protection for slavery implicit in Constitution
b. This reading is at odds with his subjective intent of Framers’ reading in the first half
Problems
o
o
o
o
o
Original intent is a bad way to go about things because the nation is constantly changing and interpretations of the
Constitution should change with it
Don’t want to read Constitution in such a way that it prevents later generations from making necessary changes
Taney could have gotten the actual intent wrong  this seems likely
McCulloch says that Constitution is flexible and must be read to benefit public
This is what happens when judges think that they’re entitled to necessities of time and can invalidate provisions by
elected officials
Commerce Clause
History
o
o
o
12
Art I, §8: Power to regulate commerce with foreign nations and among the several states
Congress has plenary power over interstate commerce and activities that have national economic effect (to the
exclusion of state legislative power).
The difficulties with interstate commerce was one of the reasons why the framers felt that the A of C needed to be
rewritten:
o
o
As industrialization transformed a local-based system to an increasingly interdependent national economy,
it became increasingly difficult for states to regulate industries.
Questions arose as to the extent to which Congress had authority over activities not really Interstate
Commerce.
 The debates focused on the definition of “commerce” and “interstate.”
Federalist Papers… importance of the states.






Federal powers have narrow function, while states manage the rest. (45 – fed powers are “few and defined”)
In conflict, states prevail due to institutional checks. Fed power is derived from the states with respect to
existence and operation. States elected senators (in the past), federal representatives, and are necessary to amend the
Constitution.
Today, while senators are directly elected, local support is still critical to national elections. Ex. Mass. v. EPA (granting
state standing because it represented cumulative interests of the people).
 This view is criticized because some issues cannot be addressed at local level, ex. environmental pollution.
To ensure fed power does not eclipse the state, states are vested with more power. People are more loyal to states
because local autonomy is a purer, more intimate form of democracy. (This view is criticized because this leads to
local oppression of minorities.)
Federalist 39 (Madison): in determine boundaries between federal authority, the Supreme Court is supposed to do
something
Double security (Madison – Federalist 51). Each will control itself, AND control each other. Minority will not be
tyrannized by majority due to Constitutional checks and the diversity inherent to society (ie, people can “vote with
their feet”). (This view is criticized because exiting an oppressive locality is not that easy).
Federal/State Power Debate: State Autonomy
Pro: Experimentation; choice about where you want to live; national decision-making not responsive to local needs
Con: economic inefficiency without large state; less cultural difference
Nature of the Debates:
 What is “commerce”?
 What is “interstate”?
 How deferential should the Court be to Congressional intent?
 How do you determine if Congress’ intent is legitimate?
 What standard do you apply?
The Early Years (1824 – 1936)
Gibbons v. Ogden (Marshall, 1824)
Facts
o NY state grants Gibbons monopoly over ferries between NY and NJ.
o Fed license grants Ogden right to ferries between NY and NJ under CC.
o P says fed law does not apply because navigation is not commerce and because it is within NY waters
Two questions
1. Is it commerce?
2. Is it among the states or internal?
Two answers
1. Commerce is not just limited to buying and selling  commercial intercourse
a. Navigation falls within this sphere
2. “Among” the several states includes all commerce that concerns more than one state
a. Rely on discretion of Congress not to be despotic
b. Has to be looked at in the context of economy in which it is construed
Significance
o If something is interstate commerce, states can’t interfere; if it’s just commerce, states can do what they want
o Deference to the legislature/role for the judiciary: The CC is a power to regulate and has no limits except the
Con.
o The question of whether the activity falls within the Commerce Clause is a judicial concern, but once it does, whether it actually
furthers federal interests is up to the legislature.
o Marshall: “Sole restraint” from abuse is “wisdom and discretion of Congress.” However, the political
process is the sole restraint.
13
Between 1887 and 1937
o During this period, several federal laws were invalidated as exceeding the scope of Congress’ commerce power or as
violating the 10th amendment
o This is a period when the Court aggressively used its judicial review power to invalidate several laws
o During this time the court generally adopted a philosophy of dual federalism – fed and state governments were
separate sovereigns, had separate zones of authority, and that it was the role of the courts to protect the states by
protecting the zone of activities reserved to the states
o The court accomplished this through 3 doctrines:
o Narrowly defining commerce to leave a zone of power to the states (EC Knight)
o Strictly defining what was meant by “among the states” and allowing Congress to act only when there was a
substantial effect on ISC (Shreveport)
o Using the 10th amendment to reserve a zone of activities to the states and invalidating an federal law which
intruded upon that zone
o NOTE: Court was not consistent in applying these principles. It was most likely to follow them when
considering federal economic regulations (Hammer), but least likely to apply them and most willing to uphold
federal laws when morality was at issue (Lottery Cases)
Paul v. Virginia (1869)
o
o
Can VA out of state insurance regulate insurance contracts?
Court says contracts are between individuals and are not transactions of commerce; local transactions are governed by
local law
Kidd v. Pearson (1888)
o
o
o
IA forbids manufacture of liquor within borders  can manufacturer claim that he intends to ship booze out of state,
so it’s interstate commerce?
Court says there’s a difference between buying and selling and primary acts of manufacture (actual production)
o Since everything is potentially subject to interstate transportation, Congress would have ability to regulate to
exclusion of states  too much for dual federalism system
Recognizes distinction between commerce and manufacturing to maintain separate spheres
1887  Interstate Commerce Act
1890  Sherman Anti-Trust Act
E.C. Knight (Fuller, 1895)
Government argues that D is barred from buying other sugar refineries by the Sherman Anti-Trust Act because it
would create a monopoly
o Is this commerce?
o Court says NO  Manufacture of sugar occurs within the state itself, so Sherman does not apply
o Manufacture is NOT interstate commerce and is beyond regulatory powers of Congress
o Worried that if manufacturing is commerce all economic activities would be within fed regulatory scope
o Look to direct vs indirect effects  trying to draw boundary
Direct Logical Relationship Test
o Direct effect on interstate commerce is necessary for CC to apply
o
Shreveport Rate Case (Sullivan, 1914)
Facts
o
D charges RR higher rates for interstate commerce than intrastate  disproportionately more expensive to cross
border; RRs indirectly causing a barrier to interstate commerce by keeping prices lower in TX
o Congress compels RR to equalize prices and foster trade between states
o D claims statute regulates intrastate commerce
Decision
o This is within commerce power  otherwise states could regulate interstate commerce through intrastate commerce
o RR is an entity engaged in interstate commerce, so it’s subject more regulation regarding its interstate activities than
other industries might
Substantial Effect Test
o If a transaction has a close and substantial economic effect on interstate commerce, regulation is within the commerce
power
o Considers degree of impact as well as the type of activity
14
o Congress may regulate activity having substantial intrastate effects even if the regulation affects intrastate commerce
New idea
o If we can regulate interstate transportation, could we expand the regulation of transportation to other things that are
not transportation? (Answer below!)
Champion v. Ames (Lottery Case) (Harlan, 1903)
Facts
o Fed Lottery Act of 1895 forbids interstate transportation of lottery tickets
o Government says that transportation is commerce, so it’s clearly within sphere of fed authority
o State thinks they should get to regulate lotteries because it’s an exercise of the state’s police power
o Not clear that end is legitimate  wiping out moral scourge of lottery is for the states
Decision and Effect
o As long as fed regulates interstate commerce directly, the motive is irrelevant
o In an increasingly interconnected economy, it’s difficult for states to regulate primary activity that affects them if it
happens in other states  need backing of fed
o Using limitation of interstate transportation to choke off undesirable behavior is ok as long as the restriction is not
arbitrary
o Congress can also regulate goods that are harmful to interstate commerce itself, harmful commercial items, and noncommercial items that are transported in interstate commerce
Hipolite
o
Upholds prohibition on contaminated eggs
Hoke (The Mann Act)
o
Upholds Mann Act barring transportation of women for sex
Hammer v. Dagenhart (1918)
o Fed law prohibits transport of goods produced by child labor
Decision and Effect
o Unconstitutional because infringes on state spheres of autonomy  beyond CC
o 10th amendment precludes fed from exercising CP as way of interfering with independent decisions of those
states
o There is a prohibition, but it doesn’t prevent the harm  interstate transportation is not necessary to the people using
child labor
o Product regulated isn’t harmful; the means of manufacture is
o Seems like using Direct Relationship Test  not regulating interstate activity but intrastate manufacturing
Dissent (Holmes)
o Not up to SCOTUS to figure out what Congress has in mind when they’re given CC power in unqualified terms
o No limit on fed power to regulate interstate commerce  if product is shipped interstate, then Congress can regulate
it
So what we have now is a question about whether it’s commerce or manufacturing and whether it’s national or local
Commerce
Manufacturing
National
CP
??
Local
??
No CP
New Deal, New Rules (1936 – 1995)
Background
o
o
o
Initially, after the ruling in Hammer, Court was not friendly to Congress legislation. Focused on Direct Relationship
Test.
Then comes the crash in 1929  FDR starts generating federal programs but realizes that he might run into
limitations imposed by E.C. Knight et. al.
SCOTUS is not having any of it
15
Alton RR strikes down provisions requiring RRs to provide pensions
Schechter Poultry (1935)  National Industrial Recovery Act interferes with D’s sale of chickens in exclusively
local sales and is unconstitutional
o Carter Coal (1936)  Labor provisions in Bituminous Coal Act are too indirect. There must be a direct
connection between object of regulation and interstate commerce
 Dissent  Directness is an issue of degree
However, during the New Deal, SCOTUS increasingly deferred to Congress if the activity regulated “substantially
affected” interstate commerce or under a “cumulative effect” theory or if it was “rationally related.” No close
nexus with interstate commerce was required.
As such, the Commerce Clause became the basis for broad assertion of national regulatory authority, and the scope of
the 10th Amendment’s reservation of power narrowed.
o
o
o
o
NLRB v. Jones & Laughlin Steel (1937)  “Everything changes”
Facts
o
NLRB found that J&L were engaging in unfair labor practices affecting interstate commerce by laying off 10 workers
for union activities
Holding and Effect
o NLRB is upheld because there is close relationship between labor practices and interstate commerce
o Unions are essential to industrial peace  worried that a strike would be very disruptive and possibly violent, which
would cause all manufacturing to come to a halt
o Critical to the big picture
o Congressional authority is not limited to transactions essential to flow of interstate commerce
o The distinction between production and commerce is not determinative  also have to distinguish between national
and local
Wickard v. Filburn (1942)
Facts
o Filburn grew wheat on his farm for personal use in excess of federal quota provisions
o Is there a substantial effect on interstate commerce?
Holding and effect
o Putting all the Filburns together could have an effect on interstate commerce  aggregation
o Determination based on finding that the larges variable affecting wheat prices is personal consumption
o Cumulative Effect Theory  Congress may regulate activities when, in aggregate, they would have an effect on
interstate commerce even if on their own they don’t do anything
o Allows regulation of a class of activity
o The effect is indirect but it is substantial
o Outer limits of substantially affecting commerce  furthest court has gone
U.S. v. Darby (Stone, 1941)
Facts
o Fair Labor Standards Act bans interstate commerce of goods made by workers paid below minimum wage
Holding and effect
o Law upheld and Hammer overruled because of use of interstate commerce channels
o SCOTUS cannot review intent of the regulation  Congress may choose means reasonably adapted to the legitimate
end
o 10th amendment is a truism  once it is determined that something falls within interstate commerce, the inquiry is at
an end
o States get whatever fed doesn’t
o Since goal is legitimate, they can use any means to achieve that goal
o Rejects Hammer distinction between harmful and harmless products; as long as there is a substantial effect on interstate
commerce, it may be regulated
Result of these cases
o
o
o
Instead:
16
Repudiated distinction between commerce/productive activities
Repudiated rejection of things that are interstate commerce (direct/indirect)
Repudiated idea that a motive to control/interfere with a state’s interests is determinative – the 10th amendment
just acts if this is within the authority of interstate commerce
o
o
o
Should look at whether or not there is a substantial effect on ISC
Leaves the question of regulation of things that are interstate commerce in Congress’s discretion
New Deal – involves a demonstration that there is a substantial nexus (industrial warfare; someone raising 6 tons
of wheat)
Social Commerce Clause
Heart of Atlanta Motel v. US (1964)
Facts
o Title II of CRA of 1964 bans exclusion of blacks from public accommodations
o Motel is located on interstate highway
o Is this a correct use of interstate commerce power?
Holding and effect
o CRA is upheld because of racial discrimination’s disruptive effect on interstate commerce
o When the activity regulated concerns more than one state and has a real and substantial relation to the national interest
it is within CP
o Rational basis for finding that segregation has an effect on interstate commerce
o Recognition of racial discrimination’s disruptive effect on interstate commerce
o If Congress has analyzed the empirical effect and has evidence, Court will come to conclusion that there is an
empirical claim
o Still need a rational basis
Katzenbach v. McClung (1964)
Facts
o
o
o
P’s restaurant excludes blacks and purchases 46% of its food through interstate commerce
Restaurant is NOT located near interstate highway
Claim is that by buying food moving through interstate commerce the actions of Ollie’s BBQ will reduce the flow of
interstate commerce
o Trial court found that Ollie’s would lose business if it dropped segregation policy
Holding and effect
o Act is upheld under CC because interstate commerce is involved
o SCOTUS will not second guess if Congress had a “rational basis” for finding racial discrimination affected interstate
commerce
o Also uses aggregate test from Wickard
Other cases
Maryland v. Wirtz (1968)
o
Fair Labor Standards Act expanded to people engaged in enterprises engaged in interstate commerce
Perez v. US (1971)
o
o
Fed law bars loan-sharking, which is normally local.
SCOTUS upholds Act because loan-sharking is a lucrative source for interstate crime
Hodel v. Virginia Surface Mining (1981)
o
o
o
Fed passes law that limits circumstances under which strip mining can occur
Congress could believe that taken in aggregate there could be run-off affecting environment in other states and
farmland, which would affect agriculture
SCOTUS says this is enough
Reining It In (1995 - ???)
Pre-Lopez
o
Congress gets comfy and feels less and less compelled to make a record showing there’s an actual impact on interstate
commerce
17
Where we’re going to end up
o
o
o
In order to address the emergence of a national administrative state, SCOTUS imposed constraints on
Commerce power for the first time in 60 years (Lopez). Note: after Lopez Congress added “guns…that have moved in
interstate commerce.”
However, SCOTUS frames the means in which Congress may penetrate traditional state functions in Raich
(comprehensively regulatory scheme, clearly expressed regulatory intent). Under this modern view, Congress may
regulate (economic activity):
o Channels of interstate commerce, i.e. roads, waterways, regardless of Congress’ motivation (moral,
economic) (Shreveport – Rehnquist mentions in Lopez)
o Instruments of ISC (RR, telephones, trucks, machines), or
o Activities “substantially affecting interstate commerce,” not merely trivial.
Court now considers the difference between:
o Economic v. Non-economic
o Comprehensive Regulatory Schemes v. Single-Issue Legislation
o Federalism v. Traditional State Concerns
US v. Lopez (Rehnquist, 1995)
Facts
o Lopez is convicted for gun possession in a school under Gun-Free School Act of 1990, which bans guns near school
o Congress has no record showing there’s an impact on interstate commerce
Holding and reasoning
o Unconstitutional because not related to interstate commerce
o Possession of guns is not an economic activity
o Congress has not found any substantial effect on interstate commerce  NO EVIDENCE AT ALL
o “Substantial effect” alleged is not visible to naked eye  if there were a tighter connection, things could have
been different
o Reaches areas in which states have historically been sovereign, and it’s important to distinguish between what
is truly local and what is truly national in this regard
o Court says there must be a distinction between the truly national and the truly local  education is traditionally local
activity
o If Congress wants to get into areas of local control, they better have a really good explanation for how it
affects interstate commerce
o Worried about a line drawing problem if they let Congress regulate without findings
o State clearly that they are NOT OVERRULING previous cases
Concurrences
o Thomas  “Substantial effects” test violates Constitution because if Congress could regulate everything, then there
would be no need to enumerate powers  go back to Framers/pre-1937
o Kennedy  Congress has to look into this more to see if there really is an impact, and SCOTUS must intervene if they
don’t
Dissent
o Breyer  Under a rational basis test, the effect of violence on education, and therefore the economy, it is rational
o Souter  Deference to the legislature is a paradigm of judicial restraint
Various interpretations
o A narrow reading (Kennedy) suggests it merely requires Congress include interstate language in the statute and
conduct due diligence identifying the relationship between the regulated activity and interstate commerce. Protect
Federalism. (But See Morrison).
o A broad reading (Majority) suggests Commerce power is limited. Not “visible to the naked eye” – need to show
how related to ISC. Distinguishes between economic/non-economic activities. Regulation of non-economic
activity (marriage, family law) is local. (However, this distinction is ambiguous and states are not necessarily better at
regulating non-economic activities better than fed government)
o A third interpretation is that the distinction turns on national v. state spheres. The court favors deference to
“traditional state concerns,” such as education and criminal laws. (However, this distinction is ambiguous. Public
schools are only a recent “state concern” since they were not established until mid-1800s)
o A more likely interpretation is that a Lopez-like inquiry (ie, a higher standard of review) only applies to
regulated activities not directly related, or obviously related, to interstate commerce
Significance
o Must be substantial effect not just some effect
o Departure from deferential stance towards Congress BUT does not overrule any prior cases
o To be within Commerce Clause:
18
1)
2)
3)
4)
The activity must have a substantial effect
Be economic/commercial in nature
Must be clearly drafted to fall within interstate commerce
It may require Congress provide actual evidence of the relationship between the regulated activity and
interstate commerce
US v. Morrison (2000)
Facts
o VA Tech student sues under Violence Against Women Act seeking federal civil remedies
o Congress has tons of findings on how violence against women affects interstate commerce
o Also say that local prosecution is insufficiently attentive to assure the national interest
Holding and Effect
o Where non-economic activity is involved, no aggregation is permissible for CC purposes
o Gender motivated crimes are not an economic activity, and the regulation must primarily be within an economic
activity
Problems
o What about all of the Congressional findings?  Aren’t enough here, but that could be because it’s non-economic or
because the connections don’t make sense  the findings are inadequate
o What kinds of connection are sufficiently direct to be visible to the naked eye?
o Who gave SCOTUS authority to judge what’s local vs. national? It seems like Congress has that authority; how does
SCOTUS justify the fact that they can second-guess Congress?
Post-Lopez and Morrison
Cleveland v. US (2000)
o
o
Fed regulation of video poker is invalid because this is within the state’s traditional police power
It’s not a fraudulent attempt to obtain property
Jones v. US (2000)
o
o
House used as collateral in an out-of-state loan with gas coming in from out of state was not commercial for CC
purposes
Construe statute narrowly to require building to be commercial locus of interstate commerce
Reno v. Condon (200)
o
Info in drivers license applications are articles of commerce because the states often sold them, so Congress can
prevent release of the data
Solid Waste Agency v. US Army Corp (2001)
o
Can’t control wetlands that aren’t connected to navigable waters in some other way
Pierce County v. Guillen (2003)
o
o
Fed law bars allowing highway safety info into court for tort proceedings; state says this is within state realm
SCOTUS says it’s interstate commerce because the information eventually affects the traffic safety system
Sabri v. US (2003)
o
o
o
Fed can prevent bribes if development authority receives federal money
Appropriate under combination of Spending Power and Necessary and Proper Clause
Bribery of those receiving federal funds will interfere with ability to use funds for proper means
Gonzales v. Oregon (2006)
o
o
o
Can AG define use of controlled substances used for euthanasia as not authorized under Controlled Substances Act?
NO  if state approves practice of medicine, AG can’t use the statute this way  outside statutory authority
Court limits fed power as an interpretive tool
Gonzales v. Raich (Stevens, 2005)
Facts
o Two Ps grow pot for pain; CA legalizes medicinal marijuana, but the fed CSA bans local cultivation and use of pot
o CA lets patients have up to 3 lbs of pot  this is a lot
Holding and Effect
19
o
o
o
Court upholds it because home consumption in the aggregate will affect the market for pot (Wickard)
This is different from Oregon and Lopez because the statute provides a comprehensive framework for regulating
commerce of drugs
SCOTUS will be more deferential if it is part of a broader regulatory scheme rather than single-subject legislation 
rational basis analysis
o Suggests that Congress expressly intended to interfere with the state/fed balance
Dissent
o This is not economic at all, involves no interstate activities, states get to control medical practice
o Letting states do this lets us experiment with fewer consequences  laboratories of experiment
o Scalia  Valid under CP and N&P; in order to implement regulation of economic activity, Congress may also regulate
non-economic activity
o O’Connor  Connection between regulated activity and interstate commerce is even less tenuous than in Lopez;
encourages broad regulation of everything
o Wickard gave actual evidence of effect on interstate commerce
o Pot in issue was never in the stream of commerce, nor were supplies for growing it
Gonzales v. Carhart (2005)
o
Upholds partial birth abortion ban because activity of medical professional is a commercial activity, and Congress can
regulate commercial activities
What does it mean?
o Looks like SCOTUS wants to get Congress’s attention more than actually throw up boundaries
Federalism
State Sovereignty and the 10th Amendment
Overview
Fed government may:
(1) Exercise broad Commerce power,
(2) Enact incentives, and
(3) Override Federalism limits via the 14th Amend. (See Substantive Due Process section)
Questions regarding state sovereignty involve issues regarding:
1) Where the federal/state boundary is (Usery suggests the boundary is at “traditional state functions”) and
2) Whether the legislature or judiciary should determine the boundary (Garcia suggests the legislature determines the
boundary; although, Ashcroft requires the legislature do so unambiguously).
Today, the 10th Amendment largely fails as an independent check on the Commerce Clause (save Lopez)
Three approaches to State Sovereignty
o Definitional (Usery)
o Define traditional state functions that may not be curtailed
o However, it is difficult to rigidly define traditional state functions, as well as problematic. Also, some
concerns go beyond state boundaries
o Balancing (Usery concurrence)
o Evaluate fed interests v. state interests
o Difficult to evaluate (state education v. national economy)
o Undermines certainty and predictability, and when officials have no guidance, they may act unconstitutionally
o Judges have too much discretion
o Political Process (Garcia)
o States may seek remedy via the political process; courts only enter to fix gaps in this process
o Assumes states’ power is still robust
o Blackmun convinced framers did not set up an explicit state autonomy guarantee; set up representative
system
State’s Role in Constitution
o State executive and legislatures are presumed
20
Art. I §4  only upon state’s application will fed intervene to protect the state; also guarantees each state a
Republican form of government
o Art. IV, §2  demand of the executive of the state presumes a state police power
State judiciary presumed
o Art. IV, §1  Full Faith and Credit; presupposes judicial proceedings and legislative body
o Art. III  Does not establish lower courts to enforce fed statutes because there is an assumption that there
are state judiciaries
Amendments
o Enacted via legislatures of 2/3 of states or ¾ of state legislatures
Supremacy Clause (Art. IV)
o Judges in every state, which suggests there are state judges, there is separate state law, and state judges have
power to enforce
o
o
o
o
Substantive Values of Federalism
o Benefits of Fed Government
o Public Goods  states are inadequate providers due to free riders
o Redistribute resources  considers inequalities between states
o Protect basic rights against tyranny of local majority  CO anti-gay legislation
o Benefits of State Government
o Policies may be tailored or more responsive to local issues  government is closer to people
o Vote with feet  accommodates diverse preferences and ideologies; people may move to a locale where laws
are more favorable (not easy to do)
o Laboratories of experiment  checks federal power and prevent tyranny
Spirit of the 10th Amendment
Overview
o
o
o
o
o
10th amendment reserves all power not expressly granted to the fed to the states
10th amendment wasn’t used for 40 years following Carter Coal in 1936
If a function is integral and traditional, Congress may not interfere with states’ authority (Usery)
Have to balance state and local interests
SCOTUS can only interfere if there is a failure of the political process; otherwise balancing should take place in the
existing political structure (Garcia)
Cases
Coyle v. Oklahoma (1911)
o
Congress can’t tell a state where to have its capital
US v. California (1936)
o
o
Try to apply federal safety act to RR owned by CA
SCOTUS says no limitation on plenary power to regulate commerce even though it’s a sovereign RR
New York v. US (1946)
o
o
o
o
Fed taxes production of mineral water produced by state at Saratoga Springs
SCOTUS says that, while activities uniquely undertaken by states get immunity, if other entities do it too, then there is
no immunity
4 justices  certain activities immune from any taxation
Black  immunity for states no matter what they do
Maryland v. Wirtz (1960)
o
o
Court upheld Fair Labor Standards Act, which removed an exemption previously granted to employees of state
schools and hospitals
States should not be immune because this is a delegated power, so the truism of the 10 th amendment kicks in
Fry v. US (1975)
o
Court upheld Economic Stabilization Act of 1970 freezing jobs affecting commerce, including state employees
21
National League of Cities v. Usery (Rehnquist, 1976)
Facts
o Congress expands FLSA to all state/municipal employees in 1974
Holding and Reasoning
o Expansion is invalid because it infringes on state sovereignty, even though it is within CC
o If a function is integral and traditional, the intervention of federal authority in such a way that impedes states’ ability
to do these things is not within Congress’s authority under the commerce clause
o Have to balance national and local interests
o Text of Constitution presupposes state functions
o 10th Amend. “expressly declares Congress may not exercise power in a fashion that impairs state’s integrity.”
Raises costs to states. States must retain identity as separate sovereigns.
o Precedent presupposes traditional state functions.
 Coyle v. Smith where power to locate state capitals is held to be with state government
 This is diff from Fry because Fry did not displace state discretion, it merely froze them (during a
time of emergency)
Significance
o Definitional Federalism  Commerce power is limited by “traditional state functions” derived from a) 10th
Amend, b) precedent, and c) structure of government (federalism). Thus, some state activities are immune from fed
regulation; this carves out “islands of state autonomy” from growing sphere of fed Commerce. This overrules
Wirtz.
o However, a boundary delineating state functions will be subject to pressure and absolute protections may not
be beneficial (i.e., in Fry like emergencies)
o Unclear why “innovative” state functions are excluded. Also, after Usery the definition of “traditional
state functions” itself is unclear.
o Definition of “Traditional State Functions”:
o Historical test? Based on state functions at time of framing. But see police, fire depts., which did not exist at
time of framing.
o Functions test? Based on functions critical to state govt. But see parks.
o SCOTUS grants Congress greater deference with respect to 13, 14, 15th Amend, which are not within
Usery scope.
o Deference to 14th Amendment: Fitzpatrick v. Spitzer, court upheld equal treatment under CRA of 1964
Concurrence (Blackmun)
o Balancing test between enumerated rights and explicit prohibition
o Fed interest in national security/environment vs. state interests in autonomy
Problems
1. Identifying magnitude of interests  forces courts to make empirical predictions about what will occur; not their
strong suit
2. Level of analysis  short-term benefit against long-term detriment
3. Incommensurability  how do you get around two competing problems?
4. Definition of constitutional or unconstitutional will shift with background circumstances
5. Structure of law is to vindicate rights and stem future litigation  how can litigators follow this?
6. In balancing interests, judges end up valuing the importance of the state of the world for two sets of political actors
a. Substitute what they think is important for what the government thinks is important, which seems like a
misallocation of decision-making capacity
b. Real protection is supposed to come from operation of a political system itself, not through court’s
intervention
Garcia v. San Antonio (Blackmun, 1985)
Facts
o FLSA is extended to apply to municipal transit authority
Holding and Reasoning
o FLSA is upheld because “traditional government function” is an unworkable guide
o Rejects distinction of traditional state functions in Usery because it grants fed judiciaries too much discretion in
deciding what is a traditional state function
o Ultimate balancing should take place through the constitutional system that has been set up  default system is
structure of process; any intervention has to be tailored to a failing in that process
Significance
o Overrules Usery
22
o
o
o
o
Relies on Congressional restraint to determine the boundary of state/fed power; seems to undermine Marbury v.
Madison, which reserved power of judicial review
Asserts state sovereignty is sufficiently protected thru the political process,
SCOTUS may only intervene if 10th Amend. is invoked, i.e., when there is a failure in the political process which
prevents states from having its political interests represented.
Note: 1985 – Amendment to FLSA eliminated retroactive liability for overtime pay (political system works how he
thinks it should)
South Carolina v. Baker (Brennan, 1988)
o
o
o
o
Claim is that there has been a failing in the process
Whoever has bearer bonds can collect the interest, and fed wants to make sure bonds are registered so they can track
who has the bonds/money
Only a small number of states issue bearer bonds, so there’s an imposition if they’re not tax-exempt because the bonds
aren’t registered
SCOTUS says there’s no failure of political process because they can enter into the political process and make a deal,
and they weren’t’ singled out
MacArthur Returns to the Philippines
o
o
o
o
o
One reading  Court brings state sovereignty back
Other reading  Constitutional importance of fed-state balance requires that political system be activated where there
is a substantial incursion on core state functions
Have to have a plain statement that Congress intends to interfere with state sovereignty (Gregory)
Spending power is allowed to regulate if it is for (1) general welfare; (2) is a clear and unambiguous act; (3)r elated to a
federal interest; (4) not banned by other constitutional provision (South Dakota v. Dole)
Spending power can’t be used coercively
Gregory v. Ashcroft (O’Connor, 1991)
Facts
o State constitution imposes mandatory retirement age (70) for state judges, while ADEA fed law bars age discrimination
Holding and Reasoning
o Plain statement rule
o In areas that involve a radical change in the balance between state and federal authority in areas crucial to
state governance, Congress must act clearly and unambiguously
o This allows states and localities to know that this problem is coming down the chain and avoids states being
hit with a bill they didn’t know anything about
 Avoids a failure by allowing states and localities the opportunity to resist
o Consistent with Garcia  effort to respond to political failure
Concurrence and Dissent
o White  There is no clear statement rule. Flies in the face of Garcia by putting a balancing test back in
o Dissent  Majority created another island, which disregards Garcia
Significance
o Congress must demonstrate substantial effect (Lopez) AND clear statement of intent to regulate States
o Affirms Congress’s discretion within right to delineate fed/state boundary
o Recognizes traditional state functions test because SCOTUS must determine when there is a shift in state/fed power
to determine if the plain statement rule applies
o PROBLEM  requires court to identify what the interests are, which leads to a scattering in subsequent cases
o Zoning regulation not a core state function
o Alaska v. EPA (2004)  allows EPA to supersede decisions by state regulators
South Dakota v. Dole (Rehnquist, 1987)
Facts
o
Under Spending Power, fed statute withholds a percentage of fed highway funds from states that allow purchase of
alcohol under 21 years of age
o State argues this conflicts with the 21at Amendment, which repealed Prohibition and suggested regulation of alcohol is
a state concern
Holding and Reasoning
o Uphold fed law because the 21st Amendment does not bar indirect federal regulation; law regulates spending power,
not alcohol
o Conditions on federal funds are allowed if:
23
For general welfare
Clear and unambiguous act of Congress (Ashcroft)
Related to federal interest  connection between purpose of funds and purpose of funds and purpose of
conditions
o No independent Constitutional bars
o States retain power or discretion as to whether to accept funds or maintain age limit  5% is not coercive
o Limit to using spending power when pressure turns into compulsion
Dissent (O’Connor)
o Minimum drinking age is not sufficiently related to the fed interest of interstate highway construction
Significance
o Congress gets to draw federalism line  has discretion to determine public welfare and fed/state interests
o Conditions must be:
o Related to the funds
o Must not be coercive
o In pursuit of general welfare
o
o
o
Why the song and dance of federalism if Congress can work around it?
1. Particular channels through which Congress must go means they have to adopt certain forms  federalism is on the
table
2. These forms encourage states to interact with Congress  bargain, refuse to give into fed
3. Expressive role to etiquette of federalism  SCOTUS is indicating that part of the duty of legislature confronted with
federalism is to take it seriously
4. SCOTUS can always come up with new requirements if federalism balance tips too far
Commandeering Doctrine
Overview
o
o
o
Commandeering  coercing states into doing what the fed wants; forces states to regulate their citizens
o Worry is that blame will fall on state officials rather than the fed because people won’t know to write to fed
reps and not state officials
Fed cannot require state legislatures to regulate (NY v. US), nor state executive to perform specified functions (Printz)
Two exceptions
o “Generally applicable fed law” that applies to all entities (public, private, individuals), as in Garcia, (AND
NOT specific, direct laws affecting state sovereignty)
o Supremacy Clause  federal laws CAN bind the judiciary. There is no clear boundary as to how far federal
government may coerce state legislatures/executives.
o Does not apply to Reconstruction Amendments
New York v. US (O’Connor, 1992)
Facts
o
Nuclear waste is a NIMBY problem, so states get together to make sure radioactive waste is kept in state or pays other
states to take it, but no one does it
o 1984  governors go to Congress and ask for help, and they enact Low-Level Radioactive Waste Policy Amendments
Act with three kinds of incentives
o Monetary, access, and imposed a “take title” sanction (if a state failed to provide for disposal of internally
generated waste, it takes title and is liable for damages)
Holding and Reasoning
o First two incentives are fine (South Dakota v. Dole)  they’re not coercive
o Take-title sanctions are a problem because they’re commandeering  imposing liability on the states to take title of
nuclear waste, which passes the line from encouraging to coercion
o Compels states to override the state legislative system and regulate its own citizens
o Comes from:
o Intent of the original framers  Rather than employing the states as intermediaries (NJ plan), the VA plan
was direct regulation of authority on individuals rather than the states. That is the FRAMEWORK within
which the Constitution was formed. To go back to enlisting states as intermediaries is to o against the intent
of the framers.
24
o
o
Direct regulations results in the protection of liberties of the citizens. The states serve as a
counterbalance to the federal government; this would be eroded if they were intermediaries (importance of
dual system – Federalist papers)
Erode accountability – people would be confused about who was in authority and thus wouldn’t know who
to hold accountable
Dissent
o White  Fed law merely enforces states’ own agreement; not worried about federalism here
o Stevens  Point is to preserve existence of states as a counterbalance to the federal government. But when it
regulates the activities of the US – not as regulators but as participants, there is no limitation. Federal government has
authority over individuals and states, which would allow fed gov’t to command states to implement legislation.
o Skepticism from the dissenters: (1) In Garcia we said that, to preserve sovereignty – before Courts intervene there has
to be a showing of a failure of the political process; (2) The problem with the AoC and the debates in Constitutional
Convention show that the issue was that the federal government didn’t have enough power.
Significance
o Commandeering Doctrine: No matter how great the fed interest, Congress cannot regulate by conscripting state
legislatures.
o While it does not have power over states, fed government DOES have authority over individuals (See
Federalist 15). In other words, federal government can regulate individuals directly, but states are not
mechanisms for federal gov’t to regulate.
o Fed law may encourage incentives, but it cannot be coercive or punitive.
Printz v. US (Scalia, 1997)
Facts
o Brady Bill requires state/local law enforcement to conduct background checks on prospective gun buyers
o Does not require them to respond or throw anyone in jail
Holding and Reasoning
o Statute is unconstitutional because it commands the state executive to administer or enforce a federal program
o Commandeering disrupts political accountability
o Budget constraints are implicit limits on federal power, but commandeering would expand federal power exponentially
by using state agent
o Making LEOs do check is a violation of separation of powers  runs around executive; Pres should be executing laws
Dissent (Stevens)
o Majority would have fed government create huge national bureaucracy to implement policies
Significance
o Commandeering doctrine cannot be used to conscript state executive officials (or agents of the state)
Reno v. Condon (2000)
Facts
o Federal law limits sale of DMV data by states. SC argues that it makes them unwilling implements of state policy
Holding and Reasoning
o Law is upheld because it regulates the states themselves; doesn’t require the states to regulate their citizens
o This is a generally applicable law that applies to all entities that hold DMV data
o Limits commandeering doctrine
Problems
o What does this do to Printz?
o Suggests that can only invoke commandeering doctrine when fed is trying to impinge on states’ sovereign rights
o Fed can achieve its goals as long as it goes through etiquette of federalism
Haywood v. Drown (2009)
o
o
Judges of each state are bound by federal law and must administer it
Dissent  Thomas (with Roberts, Scalia, and Alito) raises questions about whether fed actually can’t require state
judiciary to apply fed law
End result
o
o
o
Can’t require states to make laws (NY v. US).
Can’t require state officials to regulate people outside the state (Printz).
However, allows the state to keep house in particular kind of order (Reno v. Condon) and allows Congress to provide
incentives that are likely to persuade most states to go along (SD v. Dole).
25
o
Garcia has not been overruled, Usery has not been reinstated, and the FLSA still applies to state employees (subject to
Alden v. Maine which held that sovereign immunity precludes suits against state govs to enforce the FLSA).
Due Process
Natural Rights
Overview
o
o
o
o
While there are many protections embedded in the Constitution, there is no explicit constraint, or substantive
limitation, fed with respect to individual rights
Limitations on state governments are even less explicit
Nonetheless, SCOTUS has looked outside constitution (Calder) to consider what fundamental liberties are
Natural law saw a written constitution as a reaffirmation of a social compact preserving preexisting fundamental rights
 rights entitled to protection whether or not they were explicitly stated in the document
What protections do we see in the Constitution that prevent tyrannical deprivations of property, liberty or both?
o What provisions do we see in the body of the Constitution that prevent tyrannical deprivations of property, liberty, or
both?
o No bills of attainder or ex post facto laws  Article I, §9 (Legislative action that singles out people when they
violate laws; Laws that make things illegal even though they were legal at the time they happened)
o How do we know that the passive voice of Article I, §9 applies to the federal government?
 Article I, §10 tells the states that they can’t pass bills of attainders or ex post facto laws
o Article III, §2, 3  trial by jury in state where crime took place, specifications for treason
o Article IV, §4  republican form of government
o Article I, §2  can vote in federal elections if you have the authority to vote in the state elections  says nothing
about how states can decide who gets to vote
o Article IV, §2  privileges and immunities clause  as long as a law applies equally to foreigners and citizens, it’s
ok
o Article IV, §1  Full faith and credit clause  protects creditors
o Major lack of protection for protection of liberty against states, and liberty from fed is less than overwhelming,
too
o What about the bill of rights?
o First amendment  speech, religion, assembly
o Second  right to bear arms
o Fourth  unreasonable search and seizure
o Fifth  due process, takings clause (just compensation)
o Written in passive voice  interpreted to apply to fed only, not states
o Marshall looks to how Art. I, §9 was written  passive voice  implies for fed
o Also, historically, BOR arose out of states’ concern for limitations on federal power, so it must apply to federal
government
o Still no protection for state deprivation against liberty
Calder v. Bull (Chase, 1709)
Facts
o First court says that the will is invalid and should go to Calder.
o CT legislature intervened and required a new hearing. Bull wins.
o Calder appeals to SC  argues that this is reaching back in time to change title of a property.
o Court determines ex post facto laws apply only to criminal punishments.
o State legislature demands approval of a will ex post facto (retroactively), despite a contrary probate decision.
Holding and Reasoning
o Upholds the state law because Calder didn’t have a vested property interest here
o Government actions outside its sphere of protecting property and general welfare cannot be considered law.
o Can be justified when it goes to some public end.
o Certain actions government can take that should not be seen as law if it is not within the purposes of the government’s
establishment.
o Nature of a republic to meet certain agreed upon ends
o Must have legitimate reason for action.
26
Looks to a natural law theory, saying there are certain vital principals that governments must protect (taking property
from A and giving it to B UNLESS for a legitimate public purpose)
Dissent (Iredell)
o A court does not have the power to declare a law void simply because it violates natural justice.
o The nation has adopted a constitution to define the legislative power and to impose limits upon it. If a law
violates the constitution, it is clearly void.
o Courts not supposed to determine legitimate ends (Congress’s role)– just whether or not the Constitution has been
violated.
o Only explicit constitutional limits on legislative power are judicially enforceable.
o Iredell’s notion eventually prevailed
Significance
o Establishes Natural Rights Theory of social compact that cannot be violated: “An ACT of the legislature (for I
cannot call it a law) contrary to the great first principles of the social compact, cannot be considered a rightful exercise
of legislative authority.”
o Establishes trend to invalidate legislation apart from explicit constitutional limitations. This protects rights not
explicitly protected by Constitution.
o This justifies interventions that are for an adequate public purpose, to promote the general welfare, for ex.
o
Barron v. Baltimore (1833)
Facts
o
o
Barron sued the City for ruining the use of his wharf in the harbor.
The City had diverted the flow of streams when constructing streets, which deposited sand near the wharf, making the
water too shallow.
o Barron argued that the state violated the 5th amendment protection that private property should not be taken for
public use without just compensation
Holding and Reasoning
o The 5th amendment restrains the power of the fed government, and is not applicable to the states
o Protections included in the Bill of Rights apply only to the fed government, and NOT the states.
o “ The constitution was ordained and established by the people of the US for themselves, for their own
government and not for the government of the individual states.” – Marshall
o In the main part of the constitution, the framers made it clear when they intended a limitation to apply to state power.
If the framers intended that the bill of rights limit the power of the states, they would have done it in the same way
they did in the original constitution, and would have expressly declared their intention. Use passive voice.
o The Bill of Rights was intended as a security against the intrusion of the fed gov, not the state gov (historical
reasoning)
Significance
o Bill of rights does NOT apply to states
o Superseded by the 14th Amendment
Fletcher v. Peck (1810)
o
Marshall’s opinion suggested invalidating a GA effort to revoke a land grant based on natural law, claiming that the
result could be justified by “general principles, which are common to our free institutions”
o (Johnson). Concurrence relied on general principle and on the “reason and nature of things”
Privileges and Immunities Clause
Overview
o
o
o
Prior to the Civil War, the Constitution gave citizens very little protection against state action
o The adoption of the 13th, 14th, and 15th amendments changed this – incorporated the Bill of Rights to apply
to the States as well
o These amendments have led to the protection of a wide range of individual rights, both procedural and
substantive
o However, the early court opinions regarding these amendments refused to give them a broad interpretation
 The court saw the amendments as dealing solely with the problems of slavery and emancipation
13th amendment  no slavery or involuntary servitude
o Can go to court and say that a state action that interferes with that right is subject to enforcement by the fed
courts
14th amendment  Provides a series of constraints and limitations on state power, and a series of rights to citizens of
the United States
27
Overturns Dred Scott  all persons born or naturalized are citizens of US AND the states in which they
reside
o No state shall abridge P & I of citizens of US
o States can’t deprive any person (NOT CITIZEN) of life, liberty or property without due process of law
o No person within jurisdiction of US shall be denied equal protection of the laws
15th amendment  can’t prohibit a citizen from voting based on race, color, or previous condition of servitude
Between Slaughterhouse and Raenz, no cases successfully used P&I clause to expand substantive individual rights
o
o
o
Slaughterhouse Cases (Miller, 1873)
Facts
o
Louisiana legislature passed a law granting a corporation the exclusive right to have slaughterhouses, landings for
cattle, and stockyards within 3 parishes, including New Orleans, for 25 years, and prohibiting all other persons from
building or keeping slaughterhouses and stockyards in these areas.
o Each butcher can still slaughter, but must do so at a specified place and pay for the use of the house.
o Ps challenge the law as creating a monopoly and depriving a class of citizens (butchers) from the ability to work.
o Involuntary servitude under the 13th
o Violation of the privileges and immunities under the 14 th
o Denies equal protection and deprives Ps of their property without due process of law, violating the 14th
Holding and Reasoning
o Amendments do not limit state police power or give fed govt broad power to censor state actions.
o To place civil rights within fed power would constitute a perpetual censor on state legislation.
o The law is proper under the police power of the legislature, since it is intended to remove the
slaughterhouses from the populated part of the city for reasons of convenience, health and comfort.
 Means are legitimate
o 13th Amendment is limited only to abolish slavery of African Americans
o 14th Amendment did not clearly mandate expansion of fed power. Therefore, it does not expand greatly the P&I
guaranteed by Art. 4, §2, which barred discrimination against non-citizens.
o 14th Amend only protects P&I given to US citizen (born), not to state citizen (reside) (makes a distinction).
o This includes rights connected w/ the national union (habeas, interstate travel, petition and assemble).
o It does NOTapply to states regulating their own citizens (including butchery).
o Notes entitlements to establish the states (see Crandall v. Nevada)
o Historically, it was meant only to bar reimposition of discrimination after 13 th Amend. It merely granted US
and state citizenship to blacks. This is an unnatural reading in deference to federalism. Does not disrupt
federal government/state government balance.
o 15th Amend. Equal protection only applies to bar subordination of blacks.
o Case does NOT overrule Barron.
Dissent (Fields)
o Law fails because it scope is so broad, suggesting it is not in pursuit of legitimate public interest, and it is not applied
equally
o 13th and 14th amendments are mutually enforcing  states can’t deprive individuals of the status of being “free men”
within the republican society
o 13th Amendment should be read to eliminate the possibility of imposing comparable disabilities on anyone, not just
AAs
o Means you have the right to dispose of your labor, to establish your economic autonomy, without being
subjected to the power, avarice, vanity, vengeance of others
 Butchery law effectively makes the butchers subject to the avarice of others
o 14th amendment asserts state restrictions are allowed only if imposed equally on all citizens within a state
o P&Is are the ones laid out by Bushrod Washington  nothing new in 14th amendment
o All citizens of US are equally entitled to exercise those opportunities and powers that make up the definition
of an autonomous citizen within the state as well as within the US  if only applies to citizens of US, then
14th amendment was meaningless
 Right to obtain protection, obtain and retain property, pursue happiness, subject to the limitations
for the public good  can’t be abridged by the states
 If the legislation is not for the public good, that begins to eat away at the quality of right that
constitutes the basis of a free republic
o Butchers of New Orleans are subject to limitations on their ability to earn a living
 If the limitations were a truly adopted in pursuit of general welfare that would be perfectly fine
 This, instead, looks like an effort to vest in a particular and narrow class of people to the exclusion
of everyone else the opportunity to have access to one of the common vocations of life
28
Significance
o Interprets Reconstruction Amendments very narrowly
o Majority defers to federalism and in the process renders P&I ineffective in protecting individual liberties
o Only recourse left is SDP
o Starts from federalism and views amendments as outliers
o Fields views the amendments as changing the meaning of federalism all together
Crandall v. Nevada (1867)
o
o
o
Court invalidated a tax on passengers leaving the state through common carriers and state a person’s right to “come
into the seat of the national government.”
Read to imply a right to move freely throughout the country
Not based on any specific constitutional provisions
Saenz v. Roe (1999)
Facts
o
CA passed law limiting maximum welfare benefits payable to families that had resided in the state for less than 12
months to the amount payable by family’s prior state of residence
o Amounts were typically much less than what CA provided to longer-term residents
o State argued that this had no impact on interstate travel and that new entrants were not any worse off
o Fed law authorized states to apply rules of another state’s welfare family if they moved to another state and lived there
for less than 12 months
Holding and Reasoning
o Unconstitutional because constitution protects right to interstate travel and states can’t discriminate amongst their
citizens
o Violates both P&I and citizenship clauses of 14th amendment
o Interstate migration on the basis of equality is a right of the union of states
o Right to travel is firmly established and includes 3 components
o Right of a citizen to enter and leave another state (Edwards v. CA)
o Right to be treated treated as a citizen rather than an alien (P&I of Art. IV, §2)
o Right to be treated like any other resident of that state if you wish to become a permanent resident (P&I of
14th amendment)
 Cites Miller’s Slaughterhouse opinion, saying he claims this is one of the P&I privileges
o Citizenship clause of the 14th  equates citizenship with residency, and does not permit degrees of citizenship based
on residence.
o No hierarchy of similarly situated citizens is permissible based on the location of their prior
residence.
o Citizens of the US have the right to choose to be citizens of the state where they reside and the state cannot
select its citizens.
o NOTE: The citizenship clause limits states as well as the national gov
o Court explicitly rejects the economic justification for the distinction, citing the citizenship clause, and also rejects any
purpose to deter welfare applicants from migrating to CA
o Court distinguished welfare benefits from Sosna and Vlandis claiming that welfare benefits could only be enjoyed in
the state, whereas an individual could simply obtain a divorce or an education and leave the state. Those benefits can
be enjoyed elsewhere
o Regarding the federal law, Court holds that Congress cannot authorize the states to violate the 14 th.
Dissent
o Thomas  P&I of 14gh amendment only considered fundamental rights, not every public benefit established by
positive law
o Rehnquist  rejects idea that right to become a citizen of another state is component of right to travel
o Once you arrive in other state, travel right has ended
o States have right to assure that only persons who establish a bona fide residence receive benefits
 State has right to use residency requirement to prevent those who simply intend to take benefits and
run (points to in-state tuition and divorce)
Significance
o Interstate travel is protected as an incident of US citizenship by 14 th amendment, P&I, and CC
o Part of this right is that states may not discriminate between “degrees of citizenship”
o Basis of federalism is that citizens can freely choose other states to live in to their benefit
29
Edwards v. CA (1941)
o
o
o
Court invalidated a law making it a misdemeanor to bring indigent people into CA if they were not CA residents
Relied on CC claiming it’s not ok to restrain movement of persons and property across state borders
Douglas’s concurrence says right to move freely is incidental to P&I of 14 th amendment
Sosna v. Iowa (1975)
o
o
Court upheld one-year residency requirement before brining divorce action against a non-resident
Based opinion of fact that most other states had residency requirements for divorce and domestic relations are the
exclusive province of the states
Vlandis v. Kline (1973)
o
o
Court upholds residency requirements for in-state tuition rates at state university
Due process requires an opportunity for students to show that they are bona fide residents entitled to in-state rates
Difference between Due Process and Equal Protection
Three Differences between equal protection analysis and due process analysis:
1. In equal protection analysis, the issue is classification rather than the imposition of prohibition – justifying a distinction rather
than violating someone’s right. Equal protection asks, why this person?
2. Due process is phrased in terms of life, liberty or property, so must there must be a deprivation of that. In Fritz, plaintiff not
deprived of current property, only future benefit; in Olech, not property, but equal protection.
3. Aspect of equal protection, as Jackson argues, less intrusive than due process. If government intervention violates due process,
government may not intervene; if intervention violates equal protection, government may impose it on everyone.
Rise of Substantive Due Process
Overview
o
o
o
o
History. The rise of substantive DP was a result of “natural rights approach” influence. While the Constitution
provided some protection of individuals (Ex post facto laws, Bill of Rights, Civil War Amends), these protections are weak.
o For ex., Bill of Rights is narrow in scope and does not expressly limit state power; Civil War Amends were
narrowly interpreted, at first.
Due process Clause  over the next few generations, the Court begins to conclude that the DP clause applies the BOR against
the state. Court begins to ask which rights are fundamental.
o 1897: Takings Clause – Chicago Case
o Incorporate Criminal Justice
o By End of Warren Court (Duncan v. LA), all of the BOR – with 7th and size of juries in 5th as exceptions –
incorporated against the states
o Santa Clara Count Cases (1896)  corporations are individuals in terms of the 14th amendment
Definition  Substantive DP suggests any statute that is so contrary to the requirements of natural justice cannot
be called a law.
o It violates the minimum DP required by a just govt.
o To deprive a person of liberty without Due Process of law, asserts the gov’t interfered with liberty arbitrarily
and/or unreasonably.
o Laws cannot be arbitrary or unreasonable; must have some minimum level of reasonableness, justice
and reference to the ends for which the law was established
Issues/Debates
o Lochner allows government intervention in economic spheres only if there is a legitimate end and the
means further the end.
o Disagree as to whether the legislature or judiciary should analyze (1) how “real” or “substantial” the
end is, and (2) how “direct” the relationship.
Holmes dissent’ in Lochner argues preference for self-rule by the republic and suggests the legislature is best;
Iredell’s dissent in Calder argues the judiciary is best because it is bound by the Constitution.
Lochner v. NY (Peckham, 1905)
Facts
o
o
o
NY law prohibits bakers from working for more than 10 hours a day or 6o hours a week.
Lochner was convicted and fined for allowing an employee to work for more than 60 hours in 1 week
Is the law a valid exercise of the state police power, or an unreasonable interference into the right to enter into a
contract and the right to purchase and sell labor?
Holding and Reasoning
30
o
o
o
o
o
State law is unconstitutional because it interferes with individuals’ freedom to enter contracts and the right to
purchase/sell labor
Denial of SDP
There’s a set of legitimate ends for which the government can regulate  safety, health, morals, general welfare of
public
o Don’t see that in play here
 No connection between working more than 10 hours a day and dirty bread
 10 hours in arbitrary in terms of bakers’ health
 Nothing immoral about working more than 10 hours a day
The act must have a direct relation to achieve a legitimate end
Worried about an arbitrary redistribution of wealth/power
o Prohibiting one side from bargaining takes the power and gives it to one side only  like taking property
from A and giving to B (Calder)
o Government is supposed to stop this from happening rather than facilitating it
Dissent
o Harlan  Finds a clear relationship between hours worked and health  if there is room for debate, judiciary should
defer to legislature
o Holmes  Whether a state law’s end is legitimate or not, it is the sphere of the legislature, not the courts
o Redistribution may be constitutional.  provides great deference to political-decision-making in
econ affairs. (note: Marbury held legislature should not be left to decide its own limits)
o Liberty is found in the right of the majority to express their preferences in law
Significance
o Liberty is more than freedom from incarceration  includes participating freely in economic sphere
o To judge whether a law of “arbitrary,” both majority and dissent consider whether economic regulations (a) have a
legitimate end, + (b) direct relationship between means chosen and that end in order to satisfy substantive DP.
o Only certain limited ends are acceptable (promotion of safety, morals, or welfare of the public, yes;
redistribution, no)
o Today, Lochner is criticized because (a) its an unduly broad reading of “liberty,” (b) it narrows permissible
legislative objectives, and (c) by strictly scrutinizing the means, it represents inappropriate judicial intervention in the
legislative process.
Post-Lochner
o
o
From Lochner to the mid 1930s, court invalidated several laws under SDP
o Price regulation: Court imposed many restraints on laws that interfered with the free market by controlling
prices
 Munn was read narrowly to allow price controls only for a business “affected with a public interest”
 Price regulation was allowed in private sector areas that were not so affected
 Williams v. Standard Oil Co. (1929) – State leg. Doesn’t have the con. power to fix prices unless the
business is “affected with a public interest”
o Restraint on competition
 Court invalidated restraints on competition that prevented entry into a certain business
 New State Ice Co. v. Liebmann (1932) – Court invalidated an OK law that treated the manufacturer
of ice like a public utility, requiring a certificate of convenience and necessity before entering the
business
o Health regulations
 Court did recognize state interest in curtailing business practices that defraud consumers and injure
their health
 When these statutes were invalidated, the court criticized the means rather than the ends
 Weaver v. Palmer Bros. Co. (1926) – Court invalidated a total prohibition of the use, in the
manufacture of bedding materials, of shoddy. Other second hand materials could be used as long as
they were sterilized. Protection of health did not justify such an extreme measure.
 IN DISSENT - Holmes argues that the total ban was justifiable since the legislature could have
regarded the danger as great and inspection inadequate. Also notes that the majority’s scrutiny was
too strict
o Important to note however that most challenged laws were upheld
However, court’s intervention during the Lochner era was substantial, and the modern court insists that it
has rejected the Lochner approach
31
Muller v. Oregon (Brewer, 1908)
o
o
o
State law imposing max hours for women is upheld given evidence/documentation of a relationship between hours
and workers’ health.
Healthy mothers were essential for healthy offspring, the physical well being of women is a concern of the public
interest.
o Brandeis presents court with massive brief saying women are not in an equal bargaining position due to a
series of disadvantages in society, and working more than 10 hours per day interferes with childbearing
The differences between the sexes justifies differences in legislation and can sustain legislation that is meant to
compensate for the burdens placed on the weaker sex
Bunting v. Oregon (1917)
o
o
State law imposing max hours extending to all factory workers is upheld given scientific evidence/documentation
of a relationship.
o Frankfurter presents court with tons of data supporting the claim that OR’s prohibition really does have a
connection with health
This case effectively overruled Lochner
Adkins v. Children’s Hospital (1923)
Facts
o
o
Case concerns a law that requires a fixed minimum wage for women and children in DC.
D is a hospital, which had agreed upon rates of wages and compensation with the woman it employed. However,
some of these wages were below the minimum wage prescribed by the law.
o Hospital argued the law was a violation of the due process clause of the 5 th.
o Case concerned another situation where a woman was employed by a hotel at a rate she agreed to.
o Hotel let her go since it was not able to pay her the new minimum wage imposed by the law
Holding and Reasoning
o Court invalidates the law given that mature women cannot be subjected to restrictions upon their liberty of contract,
which could not lawfully be imposed on men under similar circumstances  Lacks legitimate public end.
o Court distinguishes from Muller claiming that the differences emphasized in that case and held as the basis of the
decision have by now “come almost to the vanishing point.”
o Law only takes into account the needs of the employee and ignores those of the employer by requiring him to pay a
certain amount irrespective of the ability of his business to pay that amount.
o It also does not allow the employer to take into account the merits of the employee.
o Law exacts from the employer an arbitrary payment for a purpose and upon a basis having no causal
connection with his business, or the contract or the work the employee does.
o A law based solely on the purpose to ensure the subsistence of workers, requiring the employer to pay a
certain amount without any consideration of the services rendered and the situation of the employer is not
valid
Dissent (Holmes)
o If court can fix the maximum hours women can work, it should be able to fix the wages they can make
o Rejects idea that there are no differences between men and women
Significance
o Corporations may claim DP
o If there is no public end, it is an arbitrary exercise of government power
Buck v. Bell (Holmes, 1927)
Facts
o
Forced sterilization of mentally impaired after many opportunities for hearing and appeals
o Superintendent has to show that it’s in the best interest of patient and society, and that patient’s condition is
hereditary
o Inmate and guardians are notified; guardian can retain counsel
o State reasons that this policy will promote the health of the patient and the welfare of society
o Carrie Buck argues that the operation violated her constitutional right to bodily integrity and is a violation of 14th
amendment DP and EPC
Holding and Reasoning
o Upholds the law because it advances public welfare
o There is enough process in the law, and it was followed here
o Since the state and the board determined that this was in the best interest of the state AND Carrie Buck, the judiciary
must defer
32
o Public welfare sometimes requires citizens to give up rights  draft, forced inoculation
Significance
o When means are tied to legitimate ends, then the court will uphold
o Shows what happens when Holmes’s Lochner mentality is taken too far
Fall of SDP, Rise of Rational Basis
Overview
o
o
o
o
o
During the Great Depression, the importance of government’s role in the economy was recognized.
o NO economic regulation has been struck down on DP grounds since 1937.
SCOTUS has almost completely withdrawn from the business of reviewing state legislative economic
regulation for substantive DP violations.
The only requirements are (a) legitimate end must fall w/in broad state police power, and (b) means are minimally
rational to assure the law is not arbitrary.
o The presumption is that there is a relationship.
SEE TIE WITH THE COMMERCE CLAUSE!
Rational basis is a very low bar
Nebbia v. New York (Roberts, 1934)
Facts
o NY law establishes minimum price for milk in order to guarantee returns to the producers
o Worried that if producers don’t get enough money there will be more contaminated milk
Holding and Reasoning
o Public health worry is a legitimate end  contaminated milk would affect health and safety of people
o But setting a minimum retail price doesn’t guarantee profits will go back to producers
o Also people will have less money to buy milk, won’t buy as much, and profits will go down
o As long as laws are passed to further a legitimate end and the means seem to have a reasonable relation to that end,
then DP is satisfied
o “A state is free to adopt whatever economic policy may be reasonably deemed to promote public welfare”
Significance
o Signifies a change from Lochner  applies Holmes’s dissent
o As long as there is a legitimate end, court defers to the legislature on whether there is a reasonable relation to the
proper legislative purpose
West Coast Hotel v. Parrish (1937)
Facts
o State minimum wage law for women
Holding and Reasoning
o State law is upheld because redistribution to redress economic exploitation is a legitimate end
o Government may legitimately seek to balance inferior bargaining power of women  community is not bound to
provide a subsidy for unconscionable employers
o Minimum rationality
Significance
o Overrules Adkins  impedes on freedom to contract, but concluded that a readjustment of economic bargaining
power was a legitimate limitation on that freedom of contract
o Economic relationships are a creation of government  states may regulate them
Williams v. Lee Optical (1955)
Facts
o State law bars optician from fitting lenses without a prescription from an ophthalmologist
Holding and Reasoning
o Upholds law in deference to legislature/political process
o Balancing of costs and benefits for encouraging eye exams is for the legislature
o “Might be thought” to have a rational basis
o Mostly looks like doctors lobbied to prevent competition
Significance
o For a state law to survive, all it needs is a rational means to a legitimate end
o Ultimate deference to legislature  they “might have concluded” that this was related, so it’s constitutional
33
o
o
Have to rebut not only actual reasons for legislation BUT ALSO hypothetical reasons
Statutes will only be struck down when they are arbitrary and capricious
Punitive Damages
o
o
o
Deference to legislature carries over to deference to jury decisions. As long as procedural protections existed and
there was no bias (passion/prejudice), verdict ok
But punitive damages are a bit of an exception.
o Following Lee Optical, no matter how large the verdict - provides some punishment to wrongdoer; provides
some incentive for future wrongdoers - OK
o The issue is whether punitive damages today are arbitrary or capricious. If Lee Optical and Carolene Products
apply, courts cannot find punitive damages as violating DP.
o So in invaliding damages SCOTUS is moving past the Lee Optical standard
o Instead, they’re applying some notion that punitive damages can’t be grossly excessive or completely
unreasonable, “jarring one’s constitutional sensibilities”
o Can’t just use DP when you want to: Scalia and Thomas don’t buy argument above - “Due process clause
is not a residual category of unknown rights that you can grab when your sensibilities are violated.” No
review of punitive damages.
Criticisms of Punitive Damages
o They violate DP because they are based in “passion” and “caprice.”
o They have no legitimate end, since it exacts so much cost for limited public benefit.
o They are in tension against ex post facto notion because they are retroactive.
TXO Production Corp. v. Alliance Resources (1993)
o
o
o
o
o
Jury awarded $19,000 in compensatory damages, $10 mill in punitive damages.
Upheld against DP challenge because it was not based in “passion/ bias.”
o Judiciary defers to jury, as it does with the legislature
Court upholds this because to be a valid exercise of the state’s police power, the state must pursue an appropriate and
legitimate end, and the act must have a direct relation to that end
Rehnquist’s concurrence  jury cannot decide on redistributionist impulses
Significance
o There was a rational basis for the decision; it could have been reasonable. Potential reasonableness, not
actual reason for decision, considered in evaluation.
o But one can second-guess a jury determination when there’s a gross disproportion.
 Jury isn’t popularly elected
 Jury must follow instructions of the Court.
Other cases
o BMW v. Gore (1996) - $4000 compensatory damages  $2 million in punitive
o State Farm v. Campbell (2003) - $1 million  $145 million
o Phillip Morris v. Williams (2007) - $84,000  $79 million
Rational Basis Exception
Carolene Products (1938)
Facts
o State law bars commerce of “filled milk”
Holding
o State law upheld under mild scrutiny
o Unless there is overwhelming evidence that precludes a rational basis, then judiciary will not overturn the legislature’s
determination
o Deference to economic legislation
Footnote 4
o Three instances where there is less deference to the legislature and greater judicial scrutiny than rational basis is
appropriate
o First  Legislation falls within specific prohibitions of constitution
o If seeking to enforce prohibitions in Constitution not second-guessing legislature; enforcing prohibitions 
Marbury v. Madison
o Bill of rights, Reconstruction amendments
34
Leaves room for judicial judgment but on the basis of a constitutional text and an initial commitment of the
polity to a set of values
Second  Political process is not likely to work or fails
o Legislatures are usually better at getting things right than the judiciary  when courts intervene, they shortcircuit the institutional self-governance and legitimate political process for self-interest
o BUT if legislation interferes with the political process, then it’s unable to self-correct
 Gives courts greater justification to intervene
 Ex.  If bakers can’t organize PACs, then it seems unlikely that they’ll be able to gather enough
power to repeal legislation prohibiting them from forming PACs
o Anything that would undermine democratic legitimacy by undermining the system that allows for change is
subject to stricter review (Blackmun in Garcia)
Third  Discrete and insular minorities
o Three basic arguments
 Flaw in society  minorities are unable to protect their own interests because they are excluded
from the political process  self-reinforcing system of exclusion
 For certain groups, there is prejudice  majority is unable to sympathize with the minority
o Particularly applies to religious and racial minorities
 Insular  cut off from opportunity to interact with other groups in society (segregated), so
it’s difficult to make political alliances
 Cumulative problems  minority may be consistent losers all the time, so the application
of prejudice is self-entrenching
 McCulloch logic  people targeted can’t tell the legislature they’re being oppressed because they
don’t have a voice (like taxing bank and affecting non-MD citizens)
 Undermines the political process that ordinarily protects minorities
o
o
o
Summary of DP from Lochner On
o
o
Two inquiries
o Was imposition one that had the end of furthering the public good (health, safety, public welfare, morals?)
 Imposition helping one at the expense of another was a tyrannical and arbitrary imposition
o Was the means sufficiently connected with the end to persuade the court that there was a direct and
substantial relationship?
 This comes to mean that there must be a “rational” relationship between means and ends 
could a legislature believe that there is a connection between the particular deprivation imposed by a
statute and some legitimate end?
 Minimum hypothetical rationality (Carolene Products)
Court has since decided that redistribution was ok because it was a legitimate end  departure from Lochner (see West
Coast Hotel)
SDP Revived: Fundamental Rights
Overview
Substantive DP is more appropriate with respect to fundamental rights.
This considers aggression against a person’s bodily integrity as more harmful than a threat against property.
(Rochin).
o Fundamental rights are deeply-rooted in history, common law, traditions, common moral perception and a “shocks the
conscience” standard (Rochin).
o Laws infringing on fundamental rights require greater judicial scrutiny than “rational basis.”
Two-Tiered Scrutiny for Fundamental Rights:
o Laws must have(1) compelling state objective and
(2) very close (“necessary”) relationship between means and ends.
Deference to Legislature:
 Excludes certain means, where types of coercion offend traditional notions of decency, (interference with bodily
integrity) because aggression against the person is more of a threat to free society than aggression against property.
(Rochin)
 Excludes certain ends, because the government cannot use public animosity as grounds for denying liberty,
(animus isn’t a justifiable purpose). (Donaldson)
o
o
35
Two tests
 Strict scrutiny (Rochin)
 Balancing test (minor impositions like vaccines)
When is something more required?
o First  “Too close to the rack and screw”
o Certain sorts of outrageous impositions that are so much at odds with contemporary notions of dignity and
human decency that they are per se at odds with the traditions of our people
o US v. Georgia  not ok to keep disabled inmate in own waste
o Hope v. Peltzer  inmate chained to hitching post for better part of a day; too much disregard for human
dignity to constitute anything but cruel and unusual punishment
o Roper v. Simmons, Atkins v. Virginia  can’t use capital punishment for juveniles or mentally disabled; points to
proportionality issues in 8th amendment
o Second  Case by case balancing approach
o 4th amendment
o
Rochin v. California (Frankfurter, 1951)
Facts
o Rochin convicted of possessing morphine after police forcibly pumped his stomach
Holding and Reasoning
o Legitimate end in curbing drug use, and all procedures were followed BUT unconstitutional because it shocks the
conscience  violates DP
o Methods too close to the rack and the screw
o 13th amendment bar on slavery suggests bodily integrity
o 8th amendment has constitutional protection against cruel and unusual punishment  not hard for court to
extend this to pre-conviction treatment
o 5th amendment bar against self-incrimination also protects Rochin
o DOES NOT bar all bodily restraints (draft, blood tests)
Significance
o To determine acceptable restraints, consider (a) traditions, (b) history, (c) common law, (d) morality
o Also delineates fundamental rights
o Differs from Lochner-like DP because
o Does not second guess government motives  curbing drug use is legitimate
o Considers bodily liberties as opposed to economic liberties  bodily integrity is not based in law; it differs
from economic liberty
o Considers textual arguments
O’Connor v. Donaldson (1975)
Facts
o P was civilly committed to mental institution against his will for 15 years
Holding and Reasoning
o Violates DP because dislike or animosity is not a legitimate state interest justifying deprivation of liberty
o Mere public intolerance can’t justify the deprivation of a person’s personal/physical liberty  simple dislike is not a
legitimate basis for state action
o State can’t confine a non-dangerous individual
o Prima facie right to physical liberty  state interest must be greater
Other Cases
Jacobson v. Massachusetts

MA can require an individual to subject himself to smallpox vaccinaction to avoid a smallpox epidemic
Wilkins v. Gaddy

If assault is carried out maliciously and sadistically rather than in a good faith effort to restore discipline, it shocks the
conscience and violates DP
Tennessee v. Garner (1985)

36
Shooting down fleeing misdeamenant in the back is “unreasonable seizure.”
Winston v. Lee (1986)



Judge orders an incision be made in a D’s shoulder to extract a bullet to determine if it was from a security guard.
SCOTUS says unreasonable because if you compare the magnitude of the intrusion (cutting someone) with the
governmental need (legitimate interest), the intrusion is more.
Balancing Test
Bell v. Watson

Orders that you can’t impose deprivation (life, liberty, property without due process) on those being detained pre-trial if
you can’t do it to those already convicted of a crime.
U.S. v. Lenier





Judge sexually assaulted individuals in his courtroom.
Prosecuted under a statute that criminally punished actions that deprived individuals of Con.
Rights under color of state law.
Argued he acted under color of state law, but how was he to know it was a deprivation of constitutional rights when it isn’t
in the Constitution?
SCOTUS – remanded (reversed Circuit letting him go) saying that they should employ the shock the conscience standard
when officials violate due process.
County of Sacramento v. Lewis



Police officer trying to run a fleeing individual off the road hits a bystander instead; this is a violation of rights of
bystanders if the advertent action were undertaken with an intent to cause harm or terrorize
Souter (maj.) says that DP is not just procedural  it is to prevent officials form using their power in a way that “shocks
the conscience.”
Scalia (dissent): “Shock the conscience” is not in the Constitution
Chabass v. Martinez






Struggle and officer shoots man in the face.
While in hospital, interviewed by other police officers.
Question whether or not the interview “shocks the conscience.”
Not prosecuted so 5th Amendment doesn’t apply.
Justices acknowledge that, under Rochin, egregious abuse in questioning would be a DP violation but there is a split on
whether it arises to this level
On remand, the lower court says that it does
US v. Georgia

Can’t keep a disabled inmate sitting in his own waste all day
Hope v. Peltzer


Inmate chained to hitching post in an uncomfortable position for better part of day
Too much disregard for human dignity to constitute anything but cruel and unusual punishment
Euthanasia
Cruzan v. Missouri Department of Health (Rehnquist, 1990)
Facts
o
State law requires “clear and convincing evidence” that woman in vegetative state would want to die in order to
remove her feeding tube
Holding and Reasoning
o State interest in protect life is higher than individual liberty interests under SDP  balancing test!
o Missouri has a right to create a procedural system to protect the lives of its citizens
o Cruzan also has a right to die without being subjected to involuntary medical care
o Right to refuse medical treatment is not a part of our historical tradition, neither is suicide
o Decision to place procedural limitations is not an unreasonable way to balance these issues
Dissent (Brennan)
37
o
Cruzan deserves the right to die with dignity, and no government interest outweighs this
Washington v. Glucksberg (Rehnquist, 1997)
Facts
o
o
o
State law bars physician-assisted suicide
Two Ps are asking for physician-assisted suicide, and sue saying state law violates 14th amendment
Jane Roe  69 years old, 6 months left to live with metastasized cancer to bones  says that prohibiting the medical
treatment that would allow her to alleviate her pain is a violation of her due process
Holding and Reasoning
o State law is upheld because there is no fundamental right to suicide
o While DP guarantees implicit liberties, court is reluctant to expand DP because “guideposts for responsible decision
making in the area are scarce”
o If legislation interferes with a fundamental right, Court won’t accord same degree of deference  BUT suicide isn’t a
fundamental interest; not deeply rooted in Nation’s history and tradition
o Statute only has to withstand rational basis scrutiny because there’s no additional showing
o Rationally-related state interest:
o State had an unqualified interest in the preservation of human life
o Integrity of medical profession
o Protection of vulnerable groups (elderly, poor)
o Protecting terminally ill from prejudice, societal indifference
o Slippery slope argument to involuntary euthanasia
o Cruzan distinguished: Cruzan’s right to decline unwanted life-saving treatment derived, not from abstract concepts of
personal autonomy, but from the long legal tradition against battery, protecting the decision to refuse unwanted
medical treatment.
Concurrences/Dissents
o O’Connor/Breyer  Patient might have a limited right to have a physician prescribe medication to alleviate suffering,
even if such medication would kill her
o Reserves right to be free from pain as a fundamental right
o Stevens and Souter  “As applied” cases aren’t foreclosed (future plaintiff might succeed with a claim that a particular
ban on suicide has infringed that particular patient’s autonomy-based due process interest of being free from pain)
o If assisted suicide were less susceptible to abuse (the individual made a rational decision absent influence),
then balancing test may apply with respect to public and individual interests
Second Amendment
District of Columbia v. Heller (Scalia, 2008)
Facts
o
A DC statute made it a crime to register a handgun and carry an unregistered firearm, so it was illegal to have a
handgun in DC.
o Moreover, lawfully owned firearms had to be “unloaded and dissembled or bound by a trigger lock or similar device”
unless located in a place of business or being used for lawful recreational activities.
o The legislature found that crime is more likely to happen with use of guns, accidental deaths are higher with handguns,
etc.
o Does the 2nd amendment protect an individual right to self-defense or a collective right to engage in the militia?
Holding and Reasoning
o Both requirements of the DC statute are unconstitutional because the individual right outweighs the state interest
o The right to bear arms shall not be infringed (fundamental right)  have to do the balancing test
o To “keep” is to “have” and to “bear” is to “take into a confrontation.” Yet the DC statute prohibits having guns in
the home.
o The right to arms for self defense was a pre-existing right that the 2nd Amendment just codified, rooted in the English
system negotiated with the monarchy.
o After 1787, the history (scholarly commentaries and post-Civil War legislative history suggesting individual
protections of right to bear arms for self defense for African Americans) verifies an individual rights interpretation
of the 2nd Amendment.
o We shouldn’t look at Miller because it didn’t examine the history of the 2nd Amendment.
o Evolving meaning: It is enough to know that the American People have considered handguns as the primary
means of self-defense, so we’re not really looking at the public meaning at the time of the Framing, but
rather at what the People have understood to be legitimate weapons.
38
Dissent (Stevens)
o The 2nd Amendment is really about the militia’s right to keep and bear arms, or at least the People’s right to keep and
bear arms in conjunction with service in the militia.
o The constitutional guarantees of Pennsylvania and Vermont spoke of the right to personal defense, but those of MA,
VA, and NY spoke of right to bear arms linked with the militia.
o It can’t be presumed that any clause in the constitution is intended to be without effect (see Marbury).
o Boston law (at time of framing) was similar to the DC law
o The drafting history of the Bill of Rights points toward intentional focus on the militia because federalists assured
anti-federalists that states could propose the Bill of Rights, one of which often proposed by states (VA, NC, NY)
would be the right to bear arms in a militia (NH proposed a general right to carry arms), and Madison adopted the
militia-based version. This shows Madison’s conscious choice to adopt a choice of words that doesn’t explicitly say
there is a non-militia based right to bear arms.
o The Court in Miller concluded that the 2nd Amend. Involved a right to bear arms that could be used in the militia, so
sawed-off shotguns didn’t qualify.
o If you’re really interested in contemporary meaning, there are a series of contemporary limitations that were every bit
as burdensome to the individual use of firearms as a trigger lock requirement is in the home.
o The problem with Scalia’s look to the Peoples’ acceptance of handguns as the primary means of protection is that it
allows the 2nd Amendment to shift quickly in meaning with regard to public popularity rather than historical meaning
of fundamental rights.
Notes
o There is a difference between Rehnquist’s historical analysis in Glucksberg (determining if the right is fundamental) and
Scalia’s in Heller (supposedly looking for original intent – what Madison was thinking/original public meaning)
because if Scalia were taking the Rehnquist approach, he would have to deal with the problem that in the 1930s, when
the tradition in case law and public debate swayed toward a reading of the 2 nd Amendment with regard to the militia.
So we are dealing in this case with the public meaning after enactment – not the drafting history and contemporary
values.
o Scalia’s argument that the People now understand the 2nd Amendment to protect handguns as legitimate weapons is
reminiscent of Souter’s concurrence in Glucksberg that refers to the understanding of the People of their evolving
rights.
o As a conceptual matter, there is a level of irony here because Scalia’s strongest argument is about evolving
understandings of the American people (not what the Framers meant), and the dissenters’ argument is looking toward
precedent and original intent.
o Unclear as to whether this applies the state  McDonald v. Chicago
Equal Protection
Overview
o
o
o
EP applies to both fed and state government  14th Amendment directly limits states, and binds fed government by
tradition and common law
Additionally, the DP of 5th Amendment contains EP applicable to fed government  Generally treats EP claims
against the states as against the federal government.
EP is implicated by any legislation that creates a classification that appears not to give similarly-situated
persons similar treatment. The idea is that, in a republican government, no single interest should be elevated over
other interests.
History
o
o
o
o
Initially directed at racial discrimination against African Americans. In its earliest interpretation, the 14 th Amendment
was said in the Slaughterhouse Cases to be exclusively concerned with racial classifications. In later cases, however,
heightened equal protection has been expanded to gender, alienage and illegitimacy, and to burdens on “fundamental
interests” like voting and court access.
For non-racial classifications, the Court has ordinarily read the command of equal protection to require only that
differences in treatment have some minimally rational basis, though some formulations have interpreted this
reasonableness requirement with more bite than others.
Lochner Era Court – rarely used EP to strike down economic laws; used DP instead
Post-Lochner Era Court – treated regulation in the economic area with deference against both DP and EP claims alike
EP and SDP
These overlap in that substantive DP suggests a deprivation of EP. However, they are analytically different.
39
(1)
(2)
While DP criticizes the substantive law, EP criticizes the classification,
While a successful DP challenge may strike a law completely (despite fact that constituents may have a valid
reason for it), a successful EP challenge may extend the regulation to everyone
(3)
An EP invalidation does not prevent the state from imposing on liberty – just says that imposition, if unequal,
must be justified.
(4)
DP is confined to deprivations of “life, liberty, or property,” EP applies to all legislation. Therefore,
(5)
EP is less of a constraint on government action but more a requirement that government action be applied
uniformly.
(6)
EP impinges more lightly on democratic self-governance than DP because you can always go back and
either broaden or narrow to avoid unjustified distinction.
Defensive (SDP – something has been taken – fight to get it back) v. Offensive (gotta make sure get what is coming
to you).
Issues/Debate
o
o
EP suggests differential treatment must be justified. However, it does not require all cases be treated the same, just
those that are similar.
The debate focuses on when classifications are legitimate basis for differential treatment (ex. age with respect to driver’s
license). The analysis considers legitimate ends + relation between distinction and the end.
Benefits of EP





Respect for individual - fairness, equality
Rule of law virtue - state must treat all people similarly situated in a similar way.
Democratic ethic - prevents preference, ensures equal status among community of citizens.
Moral sense - Kantian categorical imperative
Check on power - Those who make the laws must live with them. Less dangerous to have broad application of laws.
Political process would not correct errors.
Equal application - we all have a stake in it. Prevent arbitrary govt. action.
Predictable - Strict standards of EP limits the scope of judicial intervention (less second guessing)


Different Tiers of Review
While Justice Stevens has claimed that a single standard should apply to all equal protection cases, the Court in
recent decades has employed roughly three tiers of review:
o Strict Scrutiny of racial discrimination and its analogues (which the Court deems inherently suspect).
o Strict Scrutiny requires that regulation serve compelling governmental interests and be essential to those interests (i.e. the
least restrictive means).
o Intermediate Scrutiny of gender discrimination (which is like race discrimination but in some respects unlike – could have
some justification for it).
o Intermediate Scrutiny requires regulation serve important governmental objectives (exceedingly persuasive) and be substantially
related to achievement of those obj.
o Mere Rationality Review for other classifications (like all socioeconomic laws and laws classifying along lines of age,
disability, and sexual orientation that the Court does not see as inherently suspect).
o Rationality Review requires only a rational relationship to legitimate ends.
o Because rationality review is sometimes heightened (especially if animus is at work) and strict scrutiny is sometimes
relaxed (like for affirmative action), it may be more accurate to speak of a spectrum of standards in reviewing equal
protection challenges than of three fixed tiers.
EP: Rationality Review of Economic Regulation
Overview
o
o
o
o
40
When there is (a) no use of a suspect, or quasi-suspect class, or (b) impairment of a fundamental right, mere rationality
applies (i.e., conceivable relation between means/legitimate ends).
In determining “legitimate purpose,” this considers actual legislative purpose (based on text, legislative history) or any
conceivable basis standard.
o Any conceivable rational basis is enough.
Requires similar treatment is given to those in similar circumstances.
Accepts post hoc justifications and echoes Lee Optical.
Railway Express Agency (REA) v. New York (Douglas, 1949)
Facts
o
o
Municipal law bans advertising on tracks for hire but not for trucks carrying one’s own goods
REA was a delivery service that runs trucks to make deliveries and those trucks had advertising on them from other
companies
o State court concluded that advertising on vehicles was a distraction to the public, but that there was no evidence that
the advertisement on REA trucks was more of an effect on the public than on other trucks
Holding and Reasoning
o Law is upheld because there is a rational relationship between classification chosen and legitimate government purpose
(lessen volume of traffic for safety reason)
o EP challenge requires inequality of treatment
o In judging similarities or dissimilarities, one should refer to the purpose of the law  ask if two cases are similarly
situated with respect to goal of traffic safety
o Then ask whether the similarities are sufficient  Defer to comparative capacities of legislature
o Legislature could have concluded that people who carry other people’s ads are more dangerous than those who carry
their own ads
o If that judgment is allowable, the classification has relation to the purpose for which it is made and does not
contain the kind of discrimination against which equal protection affords protections.
o It would require “omniscience” to be certain that there is no difference between the REA trucks and other
trucks. Legislature could have a good reason.
Concurrence (Jackson)
o Reserves right to determine if distinction is legitimate because there is no more effective guarantee “against
arbitrary government than to require laws imposed upon a minority be imposed generally.”
o Broader deprivations, for better or worse, open things up to more political processes.
o Obliging the government when it makes distinctions to justify those distinctions prevents small groups from bearing
burdens to help the majority without some justification other than that they’re small and powerless.
o No violation because the distinction is rational.
o There is a moral diff between drivers who carry ads for pay than for own benefit.
o Ads for pay may lead to obnoxious enterprise – could proliferate more easily than if they must be by the
owners of the business.
o Allowed to control own advertising – legitimate interest.
Significance
o Not deferring to state legislature  state court’s actually defined the statute’s objective.
o Suggests that if there is a legitimate end that could be imputed to the legislature, that is enough.
o Local authorities “may well have concluded” that the classification is relevant.
o Echoes Lee Optical, in allowing broad readings of legitimate public purpose and post-hoc justifications.
o Distinctions are OK if made for legitimate ends (ie, as long as not invidious).
o Typical of the Court’s deferential approach to legislation challenged under the EP clause in the late 1940s
Minimum Rationality
o
o
o
Court is deferential toward the legislature’s judgment of the relationship between means and ends. Under minimum
rationality review, the court allows legislatures to act underinclusively (one step at a time)
Court accepts any legitimate goals and any plausible reason that may be imputed to the legislature (Fritz)
EP challenge can invalidate an economic regulation on rationality review when there is no basis for distinction whatsoever or
where there was no consensus legislative purpose.
o Suggests that there should be a higher standard than rational basis when it is arbitrary or from animus (Village of
Willowbrook, Moreno)
Williamson v. Lee Optical Co. (Douglas, 1955)
Facts
o OK enacted a scheme for regulation of optician
o Can distinction be underinclusive?
Holding and Reasoning
o Distinction was constitutional
o The reform may take one step at a time, addressing itself to the phase of the problem that seems most acute to the
legislative mind.
o The legislature may select one phase of one field and apply a remedy there, neglecting the others.
o The prohibition of equal protection goes no further than invidious discrimination.
41
o
We cannot say that point has been reached here because the ready-to-wear branch of this business may not loom large
in Oklahoma or may present problems of regulation distinct from the other branch.
New Orleans v. Dukes (1976)
Facts
o
1972 New Orleans provision exempted pushcart food vendors who had continually operated the same business for 8
years prior to 1972 from a prohibition against such vendors in the French Quarter
o Can effectiveness of distinctions be speculative?
Holding and Reasoning
o Provision was constitutional
o Rational distinctions in economic regulations may be made with substantially less than mathematical
exactitude.
o The grandfather clause was solely an economic regulation aimed at enhancing the vital role of the French
Quarter’s tourist-oriented charm in the economy of New Orleans.
o The city’s classification rationally furthers the purpose which the city had identified as its objective in enacting
the provisions, that is, [preserving] the appearance and custom valued by the Quarter’s residents and
attractive to tourists.”
New York City Transit Authority v. Beazer (Stevens, 1979)
Facts
o
o
New York City excluded all methadone users from any Transit Authority employment.
The lower court concluded that because about 75% of patients who have been on methadone treatment for at least a
year were free of illicit drug use and because the exclusion applied to non-safety sensitive jobs, the exclusion had no
“rational relation to the demands of the job to be performed.
Holding and Reasoning
o Provision is constitutional
o Exclusionary policy is supported by the legitimate inference that as long as treatment program continues, a degree of
uncertainty persists
Dissent (White, Marshall)
o The rule’s classification of successfully maintained persons as dispositively different from the general population is left
without any justification and, with its irrationality and invidiousness thus uncovered, must fall under the Equal
Protection Clause.
o The TA stipulated that one of the reasons for the drug policy was that the TA believed that “an adverse public
reaction would result if it were generally known that TA employed persons with a prior history of drug abuse.
U.S. Railroad Retirement Board v. Fritz (Rehnquist, 1980)
Facts
o
Federal law permitted retired persons who had worked in both railroad and non-railroad jobs to receive dual benefits,
both under social security and the railroad retirement system, but those “windfall benefits” threatened the system with
bankruptcy.
o Congress said it wouldn’t interfere with the retirement benefits of those who had already retired, but that workers who
had not yet retired but qualified for both could only receive both packages if they (i) had worked some railroad in
1974, (ii) had a current connection with railroad industry as of 1974, or (iii) had completed 25 years of railroad service
as of 1974.
o Thus, those currently affiliated with the railroad industry got the benefits, and those not did not.
o Congress insisted that the purpose was to protect the financial integrity of the system while insuring that those with a
vested interest in it received benefits.  unclear whether Congress actually knew its own purpose
o Arises from 5th amendment EPC  relies on textual emanation of equal protection
Holding and Reasoning
o Fed law is upheld because “where, as here, there are plausible reasons for Congress’s action, judicial inquiry is at an
end”
o It is, of course, constitutionally irrelevant whether this reasoning in fact underlay the legislative decision because this
Court has never insisted that a legislative body articulate its reasons for enacting a statute.
o In this case, the distinction in the federal statute actually came from Congress, which asked railroads and
labor unions to negotiate and submit a bill.
Concurrence (Stevens)
o When it is difficult to determine “actual purpose,” a legitimate public purpose may be presumed to meet EP.
o However, if an actual purpose exists, and it is not legitimate, it does not meet EP.
Dissent (Brennan)
42
Classification was not rationally related to ACTUAL gov purpose.  forget post-hoc justifications
Congress deferred to private parties who do not represent non-union members
o Fear that if one can make up goals post hoc you can avoid EP analysis of almost anything.
o Relies too much on legislative history, or what Congress “says.”
o Problem  Brennan’s requirement of ACTUAL evidence of relation between statute and legitimate end appears
Lochner-esque
o Imposes an insuperable burden on legislature and expand the judiciary.
Significance
o In reality, a rational relation test places almost no limit on Congress or state legislatures with respect to economic
acts  Lee Optical.
o Recognizes absurdity of articulating a single intent from legislatures.
Notes
o Brennan’s argument is appealing because it looks like legislature thought it was doing something completely different
from what actually happened
o Problem is that it’s almost impossible to find out what the legislature actually intends
o Legislators have differing goals
o Statute will be product of competing demands of different groups  no uniform legislative goal
o Requiring that every distinction be justified based on some stated statutory goal is a weapon “far too sharp”
o Don’t really want courts to police the legislative process
o
o
Arbitrary or Animus
Village of Willowbrook v. Olech (Per Curiam, 2000)
Facts
o
The Village demanded a 33-foot easement as a condition of connecting Mrs. Olech’s house to the municipal water
supply, when the Village had only required a 15 foot easement from other property-owners seeking similar access.
o Mrs. Olech alleged that she was being treated differently from others because she had previously filed an unrelated,
successful lawsuit against the Village.
Holding and Reasoning
o Struck down on EP basis  arbitrary and spiteful
o 14th amendment EPC exists to protect every person against intentional or arbitrary discrimination
o True whether from express terms of statute or by its improper execution by duly constituted agents
o Mrs. Olech’s allegations are sufficient to state a claim for relief under traditional equal protection analysis.
USDA v. Moreno (Brennan, 1973)
Facts
o
o
A provision of the federal food stamp program limited assistance to “households” defined as groups of related persons.
The congressional purpose was “raising levels of nutrition among low-income households” and increasing
consumption of food so as to “strengthen our agricultural economy.”
o This provision was challenged as discriminatory against otherwise qualifying group living arrangements.
Holding and Reasoning
o Unconstitutional  exclusion of “unrelated persons” is clearly irrelevant to purposes of provision and wholly without
any rational basis
o If the constitutional conception of equal protection of the laws means anything, it must at the very least mean that a
bare congressional desire to harm a politically unpopular group cannot constitute a legitimate governmental
interest.
o The limited legislative history indicates that the amendment was intended to prevent “hippies” and “hippie
communes” from participating in the food stamp program.
Allegheny Coal v. Hahn
o
SCOTUS is willing to find that where the legal system of the state renounces an alleged goal, the distinction can’t be
made for that goal
Logan v. Zimmerman Brush Company
o
Majority takes position that eliminating disability claims doesn’t serve any purpose that any one has been able to argue
Summary
o
Brennan  wants Congress to clearly state its reasoning.
43
o
o
Rehnquist  wants to defer if there could be any legitimate goal.
Douglas  wants to be even more deferential by asking if any goal is plausible. Even if it is a post hoc
rationalization (see Fritz).
o “As long as you can tell me a story that is not so nutty it seems utterly implausible, then it’s okay.
o DOMINANT APPROACH.
Three theories offer potential basis for greater scrutiny within the framework of rationality standards:
1.
2.
3.
Heightened judicial concern for all minorities who have an inadequate say in the government process whether or not
a classification disadvantaging them is suspect.
The Constitution has roots in civic republicanism and associated notions of civic virtue, and it is impermissible to
award opportunities to one group rather than merely as compromises among private interests.
The Court should engage in more serious, less deferential review in order to discipline legislatures and assure
that the legislative means genuinely promote articulated governmental purposes.
Equal Protection and Race
The Early Years
Overview
While EP requires only mere rationality, race is a suspect classification (Bolling) warranting strict scrutiny (Korematsu)
o Individuals should be treated w/ equal respect (Yick Wo)
o Likely arise from hostility
o Likely related to illegitimate purposes
o Affects, or subordinates, a group (Brown)
o Question becomes whether equality means treating individuals w/ equal respect v. protecting individuals against
societal inequalities. (Post-Brown).
Strict Scrutiny
o Strict scrutiny requires justification that there is (a) a compelling state interest and (b) the means are necessary
o Meant to “smoke out” any illegitimate end (Johnson).
Why is race different?
o Based on status, (as opposed to function, as in age with respect to drivers’ license)
o Immutable characteristic (as opposed to property holders)
o Derived from Carolene Products
o
Strauder v. West Virginia (1880)
Facts
o
o
State law (requiring jurors to be white, male, over 21 and a citizen of the state) bars black men from serving as jurors
Mr. Strauder, an African American, was adversely affected because he was indicted for murder and tried before a jury
in this system and convicted.
Holding and Reasoning
o State law is unconstitutional because it violates 14th amendment EPC
o While there is “some rational relationship” in barring black men who are largely uneducated, the state law is based in
“hostility.”
o Law implies inferiority  suggests African Americans are not good enough to serve on juries
o Effectively excludes AAs from capacity to participate in criminal justice system  provides protection for private
efforts to re-subordinate them (prevents extra-legal violence and abuse of system)
o Juries convict and acquit  administration of law is in hands of juries
o 14th and 15th amendments are supposed to prevent this
o Rooted in history of discrimination and subordination
o Celtic Irishmen
o Suggests courts are in the business of looking into actual effect of laws on specific races
o Celtic Irishmen are protected, too, because of the historical discrimination
o Rooted in conceptions of where group oppression is likely  suggests courts are in the business of looking
into the actual effect of laws on specific races
Significance
o NO STRICT SCRUTINY  Discriminatory on its face
o Struck down because (a) hostile to a race, (b) implied inferiority, (c) threatens to re-impose subordination.
o Does NOT bar racial classifications, it bars “racial subordination.”
o Analyzes 14th Amend within historical context.
44
o
Does NOT bar racial-neutral legislation on its face (educational bar), nor legislation that has disparate impact
(randomly selecting all white jury)
Yick Wo v. Hopkins (1886)
Facts
o
o
o
o
A California statute distinguished between laundries in wood buildings and laundries in stone buildings.
That distinction might be relevant because stone buildings prevent the spread of fire, and laundries have hot irons.
Under the statute, those running wooden laundries had to get the consent of a local Board of Commissioners.
The local Board only granted permission to whites and summarily denied it to Chinese  79 American citizens applied
and only one was excluded, while 200 Chinese applied and all were denied
Holding and Reasoning
o Violates EPC because of invidious discrimination based in hostility
o “While the ordinance is not discriminatory, it is administered so exclusively against a particular class of
persons to...violate equal protection”
o No criteria for granting or denying permits  supervisors left to do so on their own
o On its face, it seems to be arbitrary, purposeless legislation  no reasons whatsoever
o Not only opportunity for unjust discrimination  there IS unjust discrimination
o Racial hostility is not a legitimate state end  where court finds that racial hostility and no other reason is basis for
exclusion, then it’s unjustified
o Hostility towards any group is not ok
o Discrimination without justification is arbitrary, and if there’s also hostility  EPC violation
o Note that Chinese nationals (not citizens) were entitled to equal protection  14th Amendment says “persons”
within a jurisdiction, not citizens.
Significance
o DISCRIMINATORY IN APPLICATION
o This invalidates a classification that is facially-neutral.
o Arbitrary enforcement (“uneven hand”) due to lack of standards suggests hostility (“an evil eye”).
o 14th Amend bars these distinctions based on “arbitrary” use of power.
o 14th Amend. applies to non-citizens
o “Invidiousness” or “hostility” is proved by unjustifiable distinctions.
Screwing Up Big Time
Overview
o
o
o
o
o
Plessy was the beginning of racial exclusion across the Jim Crowe South.
Mississippi began effectively disenfranchising African Americans through literacy tests, grandfather clauses, etc. that
were applied separately but equally.
Other states mirrored the separation of white and black in a whole series of areas: separate schools, hotels, restrooms,
water fountains, etc.
Some try to fight: MS ex. Re: Gaines v. Canada (Law Schools) – try to make separate ACTUALLY equal
African Americans became subjected to complete domination, and Harlan’s nightmare came to pass
Plessy v. Ferguson (Brown, 1896)
Facts
o
o
Homer Plessy objected that he was made to sit in a different train seat in coach because he was black.
A Louisiana statute said that “All railway carriers shall provide equal but separate coaches for white and black
passengers.”
o Notwithstanding that he was 1/8 black, Plessy tried to sit in the white car, was thrown out, and was imprisoned.
Holding and Reasoning
o Distinction is constitutional because it’s reasonably related to promotion o public good (public peace and order)
o No arbitrary distinction because of the “usages, customs, and traditions of the people, and with a view to the
promotion of their comfort, and the preservation of the public peace and good order.”
o Different from Strauder because doesn’t imply inferiority and political subordination  legitimate to protect races from
each other (LA’s reason for statute); treats races equally
o Social objective, not civil/legal society
o Different from Yick Wo because the statute is a reasonable regulation  not arbitrary
o 14th amendment allows this treatment  separate but equal
o MA thinks it’s ok to separate races for good reason
45
o Same Congress that proposed 14th amendment established separate schools  can’t be at odds
o Court can’t make two races socially equal through the law
o If the two races are to meet upon terms of social equality, it must be the result of natural affinities, a mutual
appreciation of each other’s merits, and a voluntary consent of individuals.
Dissent (Harlan)
o “I deny that any legislative body or judicial tribunal may have regard to the race of citizens when the civil rights of
those citizens are involved. Beyond denial on its face, this is based on hostility and subordination.”
o Constitution mandates color blindness and does not “tolerate classes amongst citizens”
o Race should not be basis for distinction because it potentially generates caste-like qualities  13th, 14th, and 15th
designed to get rid of this
o State legitimizes distinctions and is “sowing the seeds of race hatred under the sanction of law”
o Statute is not for promoting peace and order  made to exclude AAs from white cars NOT whites from black cars
o Problem  14th is not an absolute bar against racial discrimination. In order to determine if there is racial
classifications, gov’t cannot be colorblind (See Yick Wo proving “evil eye” by disparate treatment of Chinese)
Korematsu v. US (Black, 1944)
Facts
o
In response to Pearl Harbor, the United States began with a curfew for the Japanese, then mandated Japanese to leave
their West Coast homes to go to “Assembly Centers,” where somewhere permitted to return and others were taken to
“Relocation Centers” where they could not leave without permission.
o The justification of the law was to prevent Japanese from aiding another attack on the West Coast from the Japanese
Empire, which was advancing across the Pacific Ocean.
o Korematsu was one of those people who refused to leave his home  brings a 5th amendment DP claim
Holding and Reasoning
o Upheld because of pressing public necessity
o There can be discrimination only when there is a legitimate, impending reason to do so.
o Racial distinctions are immediately suspect (Hirabayashi)
o There is something especially problematic about discrimination on the basis of race.
o Justifications based on race are subject to the most rigid scrutiny and come under immediate skepticism.
o Even in presence of racial classification, pressing public necessity can justify it  war going on, and citizens are all
subject to limitations like the draft and rationing; country in immediate, dire peril.
o Racial antagonism is not a basis for classifying on race (Ex Parte Endo)
Dissents
o Murphy  fails rational basis test and enters ugly abyss of racism (“falls over the constitutional brink into racism”)
o Individual disloyalty is not group disloyalty  exclusion of Japanese has no reasonable relation to preventing
espionage
o Don’t want to interfere with military if there’s a real military problem BUT they’re still required to meet
demands of DP
o Has to be some reasonable basis for decision at issue  none here
o Suggests military will be entitled to significant deference next time
o Jackson  Court should not make itself a party to racial discrimination
o Courts do not interfere/enforce military actions or determine military necessity  only look into
constitutionality
o This is clearly unconstitutional and should be held as such, regardless of military necessity
Significance
o Establishes strict scrutiny rule  all racially discriminatory statutes are immediately suspect or subject to skepticism
o Requires precision of regulation  not unnecessary or substantially unjustified
o In absence of pressing necessity, statute will be presumed to be based on racial hostility  unconstitutional
Ex Parte Endo (1944)
o
o
o
o
Held that military could not hold people who were loyal once they were evaluated
Community hostility is not a legitimate grounds for public coercive action
Establishes that distinctions based on race are subject to rigid/strict scrutiny
Presumes Congress would not authorize continued incarceration of someone determined to be loyal simply because of
ancestry
EP, Race, and Education
46
Overview
o
o
Between Korematsu and Brown v. Board of Education, the Supreme Court faced a series of cases that began to raise
the question of legitimacy of racial distinctions in the aftermath of slavery.
Legal challenges to officially mandated segregation began with efforts to show that the “separate but equal” Plessy
doctrine was vulnerable in the context of education. A methodological litigation strategy eventually culminated in
Brown v. Board of Education (1954), desegregating public schools as a matter of equal protection.
Early Challenges
Missouri ex. Rel. Gaines v. Canada (1938)
Facts
o
o
Gaines, a black applicant, was refused admission to the University of Missouri Law School because of his race.
Missouri claimed that, pending establishment of a black law school in the state, it would pay Gaines’s tuition in an outof-state school.
Holding and Reasoning
o Gaines was entitled to be admitted to existing state law school
o State is obligated to furnish black students with facilities for legal education substantially similar to those offered for
white people  has to be within state
Sweatt v. Painter (1950)
Facts
o Texas establishes a law school for African Americans
Holding and Reasoning
o Texas is required to allow African Americans the possibility of admission to Texas Law School
o Must be substantial equality in the educational opportunities offered to white and black law students  lacking here
o Texas Law School is obviously superior (faculty, course variety, size, scope of library, law review)
o TLS has much better intangible factors, too  reputation, experience, alumni, prestige
McLaurin v. Oklahoma (1951)
Facts
o Black student admitted to state university’s graduate program not offered at state’s black university
o Required to sit in separate sections or adjoining classrooms, library, cafeteria
Holding and Reasoning
o Policy is unconstitutional
o Restrictions impair the ability to study, to engage in discussion and exchange views with other students and, in general,
learn his profession
The Wonder Years
Brown v. Board of Education (Warren, 1954)
Facts
o
Black students sought admission to the public schools on a non-segregated basis. In each instance, they were denied
admission to white schools under laws requiring or permitting segregation according to race.
o In most cases, the courts relied on the Plessy “separate but equal” doctrine.
o NAACP brings class action arguing that separate is inherently unequal
o Findings that the two schools are physically and tangibly equal
Holding and Reasoning
o Separate is inherently unequally  racial segregation violates EP
o Even if schools appear equal, intangibles prevent schools from ever being equal
o Segregation “affects the hearts and minds of children” and “generates a feeling of inferiority”
o Reliant on studies  problematic because studies change
o Can’t rely on Congressional intent (14th amendment) because public education didn’t serve the same role in society and
weren’t addressing the same set of problems
o Education must be provided to all on equal terms  very important to children and country
o Sweatt  unequal facilities struck down segregation; also explored intangible aspects of education, like the ability to
discuss ideas, use facilities, have diverse and open discussion, etc.
o Strauder  feelings of inferiority inculcate racial subordination and cast AAs as inferior
47
Significance
o Segregation has no place in the field of education
o Considers impact of law at issue
o Narrow reading  only applies to education; leaves open possibility of segregation in other areas
o Broad reading  system itself is problematic because it reinforces inferiority and subordination
Bolling v. Sharpe (Warren, 1954)
Facts
o DC segregated schools  14th amendment didn’t apply because done by fed
Holding and Reasoning
o Segregation violates 5th amendment DP NOT EP
o Discrimination may be so unjustifiable as to violate DP  like EP, stems from ideas of fairness
o Racial classifications are inherently suspect (Korematsu, Ex Parte Endo, Carolene FN4)  strict scrutiny for
discriminatory laws on the basis of race (from Korematsu)
o Historical tradition growing out of slavery and legacy of Dred Scott
o Too easily turned towards hostility rather than legitimate public ends
o Separation of races serves no proper governmental objective  not at war here, no compelling interest (Korematsu)
o Acceding to public hostility is not legitimate (Endo)
Significance
o Racial classifications in and of themselves are problematic (inherently suspect)  Korematsu
o Applies to every government choice, regardless what sphere it impacts (golf courses, water fountains, etc.)
o Has universal moral force
o Not reliant on particular studies
o Linear descendants of Yick Wo: Korematsu  Endo  Bolling
o All stand for desegregation on basis of strict scrutiny and insufficient government end
o Problems
o Suggests government can meet its obligations by refusing to classify (free choice of schools)
o Opens way for governments hostile to minorities to achieve the same results by facially neutral policies
Summary
Two concepts of equal protection
o Like individuals should be treated in a similar fashion, and treating races differently is likely to be an action that is not
justified by legitimate public policy.
o History of the 14th Amendment  designed to be cognizant of racial hostility (see Strauder)
o Discrete and insular minorities are likely to be steamrolled by the political process (see Carolene)
o Distinctions on the basis of race are at odds with the value that each member of society is an equally valuable
individual
o Yick Wo said treating people differently because of hostility violates equal protection.
o Korematsu said racial distinctions are suspect and demand strict scrutiny.
o Bolling said treating an individual differently because of skin color in the educational area is not equal
treatment. Racial classifications are suspect, and segregation in schools does not meet strict scrutiny.
o Policies that effectively result in subordination, stigmatization, etc. are inconsistent with Equal Protection.
o State obliged to provide equality
o Want to be sure that process guarantees quality that the 14th Amendment was adopted to achieve.
o Brown said that segregation deprives children of equal opportunity and brands them with inferiority.
o Whatever railroad segregation and school segregation meant in 1870, segregated schools in 1954 are part of a
subordination system that is inconsistent with the 14th Amendment.
o Thus, a system that sets up schools in which blacks are required to go to one schools and whites to another (i) treats
individuals differently on the basis of race and (ii) has the effect of reinforcing apartheid and exposing minorities to the
prospect of stigmatization and hindrance of educational opportunities. These are both impermissible.
Note: Strict Scrutiny standard (first put forth in Korematsu) reverses the approach in Plessy v. Ferguson (which allowed
racial distinctions in areas that did not involve equality of citizenship where the justifications were “traditions” and “norms”
– other basis of decision making that may be rationale BUT NOT compelling)
Implementing Brown
48
Brown v. Board of Education II (Warren, 1955)
Question  What remedies should follow the Court’s decision in Brown?
Holding and Reasoning
o Defendants must make a prompt and reasonable start toward full compliance with Brown.
o Once such a start has been made, the courts may find that additional time is necessary to carry out the ruling in an
effective manner.
o Ds have burden of proving that such time is necessary for public interest and consistent with good faith
compliance at earliest practicable date
o Courts may consider problems related to administration, arising from the physical condition of the school plant, the
school transportation system, personnel, revision of school districts and attendance areas into compact units to achieve
a system of determining admission to the public schools on a nonracial basis, and revision of local laws and regulations
which may be necessary in solving the foregoing problems.
Significance
o Eliminating de jure discrimination only requires eliminating racial classifications, yet segregation would persist. It is unclear
if goal is to eliminate racial classification or segregation.
o Later cases suggest Brown bars actual racial classification “sanctioned by law” only, and not segregation.
o Hope is that by having articulated a principle Southern school systems would take up principle and apply I in fashion
applicable to particular necessities of the different school boards
The Situation
o
o
o
o
o
o
o
o
Between 1954 – 1964, only 2.4% of black students in the South were enrolled in integrated schools
1964  Civil Rights Act was adopted and required recipients of fed funds not to discriminate or take actions that had
effect of discriminating
Between 1964 and 1971, two sets of things happened
o Fed amassed its resources to provide executive pressure
o SCOTUS began to approve much more intrusive measures to require that the desegregation effort actually be
carried out
SCOTUS eliminated vestiges of de jure segregation
Adhered to basic principle that invidious quality of a law must ultimately be traced to a racially discriminatory purpose
Differentiating factor between de jure and de facto is purpose or intent to segregate
De jure requires evidence of past racial discrimination in order to impose integration policies (Miliken)
Once unitary schools were achieved, subsequent segregation was deemed de facto (Missouri v. Jenkins)
Griffin v. School Board of Prince Edward County (1964)
o
o
Shut down public school system in response to desegregation efforts
SCOTUS approved remedy that set schools back up and put them in a mode that didn’t discriminate based on race
Green v. New Kent County School Board (Brennan, 1968)
Facts
o
o
The School District argued that good faith “freedom of choice” plans adequately complied with the Brown mandate,
After three years of operation, no white child had chosen to attend the former black school and about 85% of the
black children remained in the all-black school.
Holding and Reasoning
o Inadequate to comply with Brown
o Goal is to create a unitary system where there are “just schools”
o School officials are required to “fashion steps which promise realistically to convert promptly to a system
without a ‘white’ school and a ‘Negro’ school, but just schools”
o School boards operating segregated systems were charged with an affirmative duty to take all necessary steps to
eliminate racial discrimination root and branch
o Courts can impose an affirmative obligation to adopt provisions that result in the elimination of segregation
Swann v. Charlotte-Mecklenburg Board of Ed (Burger, 1971)
Facts
o
o
o
A school district covering Charlotte NC, which had been wholly segregated, de jure, at the time of Brown in 1954,
adopted a desegregation plan including geographic zoning and free transfers.
By 1969, about half of the black students were in formerly white schools, but the remainder attended virtually all-black
schools.
After Green, the district court ordered the school authorities to prepare a more effective plan.
49
Ultimately, the lower court appointed its own expert and accepted his plan, which involved some redrawing of district
lines as well as some busing of elementary school students in both directions.
Holding and Reasoning
o Court upheld policies beyond racial neutrality (busing, gerrymandering, magnate schools, etc.)
o “Once a right and a violation have been shown, the scope of a district court’s powers to remedy past wrongs
is broad”
o No mandate of absolute equality, but there is a presumption against schools that are substantially disproportionate in
their representation
o No basis for not requiring bus transportation as one tool of school desegregation unless the time or distance of travel
is so great as to risk either the children’s health or impinge on the educational process.
o To produce a unitary system, courts have broad discretion to gerrymander school districts and attendance zones.
o Neither school authorities nor courts are required to make year-by-year adjustments of the racial composition of
student bodies once the affirmative duty to desegregate is accomplished.
o
De Facto Segregation
o
o
o
o
By 1972, 76% of black children in the South go to desegregated schools as compared to 50% of black children in
Northern schools
Tends to result from facially neutral practices in the North  difference in neighborhoods
Is this a problem?
o If concern is racial classification, it’s not an EP problem
o If concern is hearts and minds, then there’s a problem
Once school district has achieved unitary status, district can stop using methods that achieved that status (OK City v.
Dowell)
Keyes v. School District (Brennan, 1973)
Facts
o No history of state-mandated segregation because not in the South
Holding and Reasoning
o Segregation, even if it is not explicitly from racial classification, is still an EP violation if it results from the segregative
intent of school board
o If there’s a series of these decisions, court can infer that there’s a history of segregation and impose full
orders of desegregation on the neighborhood
o Remedies should proceed “with all deliberate speed.”
o Distinguishes between de jure and de facto segregation.
o De jure, ie., imposing race-conscious segregation policy, is unconstitutional, BUT de facto segregation is not
unconstitutional.
o Distinguishes between IMPACT/PURPOSE
o North can have purposeful discrimination under certain criteria  would allow court orders for district-wide remedies
even if only part of the district intentionally discriminated
o “Where plaintiffs prove that the school authorities have carried out a systematic program of segregation
affecting a substantial proportion of the students, schools, teachers, and facilities”
o Where a showing of intentional segregation in one area was probative as to intentional segregation in others
o The Court adheres to the de jure-de facto distinction.
Dissent (Rehnquist)
o One thing to require that a genuinely segregated system be fixed so that kids aren’t sent to particular schools based on
race
o Quite another to require school boards to affirmatively undertake to achieve racial mixing where it is not achieved by
neutrally drawn boundaries
Milliken v. Bradley (Burger, 1979)
Facts
o
In the Detroit area, the city constituted one school district and there were separate districts for suburban areas
o The city district is 85% African American while surrounding areas are 80% white  worried about white
flight
o The trial court found de jure segregation in the Detroit school system and that desegregation could not be effective if
it were limited to the city’s boundaries.
o Without finding de jure segregation in any of the suburban districts, the court issued an order including all 53
surrounding districts, pointing to practical obstacles to a narrower order.
Holding and Reasoning
50
Absent inter-district violation, there is no basis for an inter-district remedy
Must show that racially discriminatory acts of the state or local school districts, or of a single school district,
have been a substantial cause of inter-district segregation.
o The notion that school district lines may be casually ignored or treated as administrative convenience is contrary to the
history of public education.
o An inter-district remedy might be in order where the racially discriminatory acts of a school district caused
segregation in an adjacent district, or where lines have been drawn on racial basis.
o Obligation is to return students and school system to the position they would have occupied in the absence of the
violation of the Constitution
Dissent (White, Douglas, Brenna, Marshall)
o Michigan has successfully insulated itself from its duty to provide effective desegregation
Significance
o Slows implementation of integration policies
o
o
Missouri v. Jenkins (White, 1990)
Facts
o Operated segregated school system, ordered significant increase in district property tax rate
Holding and Reasoning
o Fed courts can’t impose fiscal burdens on states and localities when implementing desegregation
o Could have authorized district to levy property taxes
Board of Ed. Of Oklahoma City v. Dowell (Rehnquist, 1991)
Facts
o
o
o
Oklahoma City, during Brown, operated a segregated school system.
In 1972, the district court ordered system-wide busing.
That plan produced substantial integration in the public schools, and in 1977 the court entered an order terminating
the case and ending its jurisdiction.
o In part because the demographic changes that had “led to greater burdens on young black children,” the school board
in 1984 reintroduced a neighborhood school system for grades K-4.
o Challengers argued that the new plan would reinstate segregation.
o The Court of Appeals held that the 1972 decree remained in force and imposed an “affirmative duty not to take any
action that would impede the process of disestablishing the dual system and its effects.”
Holding and Reasoning
o A school system that had a segregated school system, but then fixed it, can take any new actions it wants (other than
explicit racial segregation, of course).
o Federal supervision of local schools was a temporary measure to remedy past discrimination  once remedied, order
is no longer in force
Dissent (Marshall, Blackmun, Stevens)
o Ignores how stigmatic harm identified in Brown can persist even after state ceases actively to enforce segregation
EP: The Bolling Line
o
o
o
o
o
Conclusion that separation is not properly related to any government objective
Desire simply not to associate with people of another race is not a legitimate government objective
The mere fact a statute “applies equally” to both races does not mean there isn’t discrimination.
o Strict scrutiny still applies to explicit racial classifications.
o The classifications must be necessary (unavoidable) to compelling state interest.
History of Strict Scrutiny: Distinctions based on race are facially suspect because of a history of racial hostility, a
concern that racial distinctions embody an evil eye and unequal hand (Yick Wo), because those distinctions have led
to the abuse of insular minorities (Carolene), and because racial distinctions have been linked to the effect of
subordinating racial groups, protected by the 13th-15th Amendments.
Putting all these together, the Court regularly says that racial distinctions are suspect, that they must be justified by a
compelling state interest, and the means must be narrowly tailored  This is Strict Scrutiny.
Strict Scrutiny Upheld
McLaughlin v. Florida (White, 1964)
o
o
Criminal adultery and fornication statute prohibits cohabitation by interracial unmarried couples
Court finds this unconstitutional
51
o
o
Without justification of overriding statutory purpose, the racial classification is reduced to an invidious discrimination
forbidden by EP
Purpose of 14th was to eliminate racial discrimination like this
Anderson v. Martin (1964)
o
o
Louisiana statue requires that all candidates for office list their racial identity on ballots
Unconstitutional  facilitates the making of racially based decisions
Loving v. Virginia (Warren, 1967)
Facts
o Virginia statute prohibits whites from marrying any other race
Holding and Effect
o At the very least, equal protection demands that racial classifications be subjected to the most rigid scrutiny,
and if they are ever to be upheld, they must be shown to be necessary to the accomplishment of some permissible state
objective.
o There is no legitimate overriding purpose independent of invidious racial discrimination that justifies this
classification.
o The clear and central purpose of the 14th Amendment was to eliminate all official state sources of invidious
racial discrimination (see Slaughterhouse and Strauder).
o There can be no question but that Virginia’s miscegenation statutes rest solely upon distinctions drawn according to
race.
Significance
o Any legitimate or permissible basis
Palmore v. Sidoti (Burger, 1984)
Facts
o
o
o
Two white parents got divorced; mother ended up with child
She began a relationship with a black man, and the father took the child
Trial court said it was constitutional because it was in the best interest of the child because of the stigma attached to
the mother’s relationship outside marriage AND the interracial relationship
Holding and Reasoning
o Apply strict scrutiny because of the racial classification
o This looks more like racial prejudice than a legitimate public concern, as racial classifications are wont to do
o State has a compelling interest in the child’s well-being but not enough to justify racial classification
o May be true that the child will experience difficulties and prejudice, but the government can’t directly or indirectly give
effect to those prejudices
o By denying the mother custody, the state is sanctioning prejudices
o Public officials may not avoid constitutional duties by bowing to the hypothetical effects of private racial
prejudice that they assume to be both widely and deeply held.
o If we’re trying to avoid the result in Yick Wo of government having an evil eye and unequal hand toward race, the
government response will likely take race into account to protect against that. Cannot be Harlan’s Color Blind
Constitution. That’s why this case was tough.
Significance
o Before racial classification can be upheld, must be necessary to accomplish a compelling state interest AND
law can’t give effect to a racial bias
Strict Scrutiny Fails
Johnson v. California (O’Connor, Kennedy, 2005)
Facts
o Inmates are segregated based on race when they’re first admitted (60 days)
o After this, they could requires any race they wanted
o CA said they were trying to prevent criminal gang violence, as the 5 major gangs were organized around race
Holding and Reasoning
o Remands to lower court, ordering them to use strict scrutiny (narrowly tailored to meet a compelling state interest)
o Policy furthers racial hostility  interest may be compelling, but it was not narrowly tailored because other districts
got rid of it
52
Question is if government came forward with strong enough justification AND if there’s no other policy that will
result in less racial tension
o Potential negative effect of racial classification
o Motivated by racial purpose
o Threatens to stigmatize and incite racial hostility
o Pollutes decision-making process of government to consider race when it’s not necessary to accomplish a
compelling state interest
o Apply strict scrutiny to all racial classification to “smoke out” illegitimate uses of race  this is true even when they’re
neutral and burden/benefit races equally
o History suggests discrimination may still be hidden
o Strict Scrutiny is not “strict in theory but fatal in fact”
Concurrence (Rehnquist, Ginsberg, Souter, Breyer)
o Same standard of review ought not control judicial inspection of every racial classification
Dissent (Stevens)
o Policy is unconstitutional under EP based on record before court, and they don’t need to remand for further findings
o Almost no empirical evidence to justify this use of race  based on stereotypes and outmoded fears about dangers of
racial integration
Dissent (Thomas, Scalia)
o Strict scrutiny should not apply
o Prisons are outside parameters of society  have to accommodate needs of prison administration
o Court should ask whether it is reasonably related to legitimate prison purposes
o Sufficient evidence of gang violence
o
EP and Facially Neutral Laws
Impact Approach
Overview
o
o
o
o
The issue is whether statues that are racially neutral on its face, but have discriminatory/disparate impact, are
racially discriminatory.
Courts consider:
o Whether practices were tainted by racial hostility or indifference (Guinn’s random date)
o Whether there can by no non-discriminatory explanation
o Whether policies give effect to prior discrimination, or residue of history (i.e., law may incorporate
discrimination by reference).
o If policies give effect to historical discrimination, it violates EP regardless of motive.
Problems with Impact approach
o All statutes have a disparate impact
o Invalidates statutes made in “good faith”
o Undermines color-blind ideal (since courts must consider race in determining disparate impact
o Difficult to weigh importance of statute against its discriminatory effect.
The question is how much harm is necessary to invoke EP violation.
o “Are there situations in which racial classifications that are not facially racial should still be addressed with
heightened scrutiny because of their impact or potential motivation?”
Guinn & Beal v. US (1915)
Facts
o
OK amended its con. to impose the req. that no person shall vote unless he is able to read and write any section of
OK’s Con.
o An exception was made for people whose grandfathers could vote before 1866.
o On its face, this is not a classification based on race and does not take race into account. Yet OK adopted it to
discriminate based on race because of its effect, since almost all of those disenfranchised were black.
o The trial court held that the statute did not refer to race, but rather to the question of ancestral voting ability.
Holding and Reasoning
o Violates 15th amendment  no facial racial classification BUT an unconstitutional purpose may be inferred
o No other possible reason that could be discerned other than invidious racial discrimination (grandfather clause;
obviously slaves couldn’t vote)
Significance
53
o
PURPOSE is pivotal requirement (like Yick Wo)
Hunter v. Erickson (White, 1969)
Facts
o
City charter is changed to say that a city ordinance pertaining to race, class, religion, etc. must be approved by the
majority of Akron voters
o Objectively draws no distinctions between groups, but in reality the impact falls on minorities
o Justification for the statute that was overturned by the charter change was that it was necessary to deal with
racial discrimination against minorities
Holding and Reasoning
o Unconstitutional because IMPACT falls on minorities
o Constitutes a real, substantial, and invidious denial of EP of laws  makes it more difficult for a minority group to
enact laws on their own behalf
o “The law has the effect of barring those benefiting from anti-discrimination laws from filing suit. Although
the law on its face treats Negro and white, Jew and Gentile in an identical manner, the reality is that the laws
impact falls on the minority. Akron’s justifications for its discrimination are insufficient.”
Dissent (Black)
o Court shouldn’t use EP to bar states from repealing laws that the Court wants states to retain
Griggs v. Duke Power (1971)
o
o
o
Employment practice that requires HS education to work in power plant is met by 34% of whites and 13% of blacks
o Not related to business practice
Unconstitutional because it can’t be shown to be related to job performance
Identical treatment is not necessarily equal opportunity where there’s not an identical starting point
Lau v. Nichols (Black, 1974)
Facts
o
Everybody goes to the same schools in San Francisco, including Chinese immigrants who can’t read English and get
no ESL
Holding and Reasoning
o Not necessary to talk about EP because Title VI of CRA bans discrimination if you want federal funds
o Discrimination  utilization of methods that have the effect of subjecting individuals to discrimination
o If equality requires equal access to education, teaching people who don’t speak English as if they do doesn’t
give them equal access to the same opportunities
o At odds with concept of EP as adopted in Washington v. Davis
o EP and impact approach under CRA are different
Discriminatory Intent Approach
Overview
o
o
o
o
o
o
o
54
A purpose approach limits judicial intervention, and defers to the legislature.
ALL statutes have disparate impact, not all statutes with disparate impact require strict scrutiny – only those
with discriminatory intent.
Judicial interference, i.e. whether rational basis or strict scrutiny, will depend on:
o magnitude of impact, and
o how justified is the classification (ie, were there alternatives?). Courts may also consider the disparity of
the impact.
A statute or determination that is racially neutral on its face will be evaluated in general by the legitimate interest
standard unless P can show that there is some invidious intent or purpose
Decision that is shown to have racially invidious purpose may nonetheless survive if D can show that the racially
invidious purpose was not the but-for cause of the decision (Arlington Heights)
How is purpose inferred? (Arlington Heights).
o It may be inferred by:
o specific sequence of events leading up to the challenged decision,
o departure from normal procedure,
o history,
o testimony of legislatures, and sometimes
o statistics
Pros
o
o
o
o
o
Cons
o
o
o
o
o
o
It adopts a rule that screens for racial hostility.
It establishes that decision makers should give equal weight to all groups.
It has the virtue of limiting the scope of judicial intervention and preventing prohibitions on tolls on the
bridges to New Jersey, rather placing burdens only when there is a showing of clear racial animus or
where the decision is so racially correlated and unjustified that the inference of animus is clear.
It provides a guide for government decision making – decision makers must avoid racial animus but don’t
have to account for every racial effect.
Brown seems to be concerned with the impact on “hearts and minds.” (Although, Bolling did consider
purpose),
it suggests the same policy may be constitutional as long as there is no mal-intent,
intent (racial animus) is difficult to discern or may be a legal fiction,
legislatures may merely disguise their intent.
A racially neutral decision and a racially indifferent decision will leave the way open to maligned racial
indifference.
The decision regarding presence of absence of racial animus and presence of absence of but-for causation
rests with the trial court, meaning that two courts can easily differ over constitutionality of the same statute
Washington v. Davis (White, 1976)
Facts
o
To be accepted by DC’s Police Department, recruits had to satisfy certain physical and character standards, HS
graduate, and receive a grade of 40/80 on “Test 21,” designed to test verbal ability, vocabulary, reading, and
comprehension.
o There was no claim of an intentional discrimination or purposeful discriminatory acts but only a claim that Test 21
bore no relationship to job performance and “has a highly discriminatory impact in screening out black candidates.”
The number of black police officers was not proportionate to the population mix of the city, a higher percentage of
blacks failed than whites. 57% blacks fail test; 13% of whites.
Holding and Reasoning
o Test is constitutional because the discriminatory impact is NOT related to any intent to discriminate against blacks
o Constitution mandates equal protection, not equal outcome
o Strict Scrutiny applies when there is disparate impact AND discriminatory intent
o Invidious purpose may be evidence by statement or inference (impact)
o Police department actively tried to recruit black officers  doesn’t suggest an invidious purpose
o Have to look to totality of facts
Concurrence (Stevens)
o Most probative evidence of intent comes from objective evidence of what actually happened rather than subjective
state of mind
o Line between discriminatory purpose and impact really isn’t that bright
Significance  need more than disparate effects
Arlington Heights (1977)
Facts
o
A Chicago suburb refused to grant a request to rezone certain property from a single-family to a multiple-family
classification.
o A nonprofit developer planned to build townhouse units in the largely white suburb so low and moderate income
tenants, including minorities, might live there.
o Lower federal courts found that the suburbs were motivated by a concern for the integrity of the zoning plan rather
than by racial hostility. The Court of Appeals held it unconstitutional because its “ultimate effect” was racially
discriminatory.
Holding and Reasoning
o Rezoning is constitutional because P failed to show discriminatory purpose behind policy
o Proof of discriminatory burden SHIFTS BURDEN to state to prove that law would have been enacted even
without the discriminatory purpose
o Is the purpose a but-for cause of the statute?
o List of ways to find purpose (above)
Significance  finding of purpose shifts burden to government to show that the policy would have been enacted anyway
Hunter v. Underwood (Rehnquist, 1985)
Facts
55
An Alabama provision did not discriminate on the basis of race, but it did prohibit people from voting on the basis of
having committed a “crime of moral turpitude.”
o Disadvantaged 10xs as many blacks as whites.
Holding and Reasoning
o Statute was unconstitutional because it was based in discriminatory intent (direct statements by legislature)
o Clear invidious purpose based off Alabama Constitutional Convention
o State fails to show that law would have been enacted without discriminatory purpose
o Presence of a 2nd factor is not enough to immunize a statute
o
Edwards v. Aguillard (Scalia’s Dissent, 1987)
Facts and Holding
o The Court held that a statute mandating the teaching of creation science was invalid because of legislative
motivation, which violated the establishment clause.
Scalia
o Almost impossible to figure out what the subjective purpose of the legislature was
o It is tough even to know where to look for the individual legislator’s purpose because we cannot assume that every
member agreed on the controlling motivation of the statute.
o We must then determine how many individual legislators’ intent is relevant.
o Because there are no good answers to these questions, determining subjective intent of legislators is a perilous
enterprise.
o A search for the purpose of a statute is a mistake.
Affirmative Action
Overview
o
o
o
o
o
o
o
o
o
Should we use heightened scrutiny for “benign” racial classifications?
Affirmative Action is based in idea that government should (a) remedy losses for which it had a hand.
If possible, policies should remedy wrongs by taking from those who directly benefited from past discrimination.
Remedies that disperse the burden are more beneficial than placing burden on a single individual
BUT, it is (c) unknown what would’ve happened without past discrimination.
The problem is whether “innocent persons” should bear burden of remedying discrimination.
Theory: The theoretical issue focuses on whether the Constitution: guarantees a government governs impartially
or protects against disparate impact.
o The debate is between those who argue for a color-blind society (where race is never a legitimate
classification) v. those who argue for recognition of race (where racial classifications based on hostility and
inferiority are illegitimate).
Ultimately, we see affirmative action is NOT exempt from strict scrutiny under both EP and 5 th DP
Principles of “color-blindness” in education began in Swann, where Justice Burger commented for a unanimous court, “The
statute exploits an apparently neutral form to control school assignment plans by directing that they be ‘color blind.’”
Two Views of Racial Integration
O’Connor, Rehnquist, Kennedy, etc.
o Starts with proposition that equal protection require that state treat individuals as individually equal not as members of
racial groups
o Burdens should relate to individual qualities of merit or demerit
o Everyone is similarly situated in terms of individual characteristics
o Accords equal dignity to each individual
o A statute which defines an individual legally as black or white risks encouraging community to look at individuals as
black or white, risks encouraging racial balkanization, risks encouraging racial hostility because of feeling like they’re
impinged upon
o In an increasingly multiracial society, effort to achieve world as it would have been but for racial discrimination
becomes increasingly unworkable
o Proposition nominally adopted by Croson  any classification based on race be necessary, narrowly tailored to achieve
a compelling state interest
Marshall, Brennan, Ginsburg, Breyer
o Purpose of Restoration Amendments was to prevent racial subordination
o 14th is adopted to eliminate the prospect of the re-imposition of a racial caste system
56
o
o
o
o
o
o
o
Whites have not been historically discriminated against, not a political minority  less risk that racial hostility will be at
the root of things that seek to include minority groups at cost to majority
Majorities are not discrete and insular minorities, so there’s less reason to be skeptical  can protect themselves
Little danger that the efforts will accumulate to establish a subordinate caste  by definition losers in one situation are
not likely to be losers in every situation
On the other hand, there is a history of historic injustice based on race, and given that history, color-blindness far too
easily falls into myopia
States are entitled to take into account possibility that in absence of effort to remediate harms from racial hostility,
racial minorities will remain excluded and subordinated There is still a hazard associated with racial classification,
separation, stigma, concern that there is a cost to the ideal of equality
Where government can show important purpose to remedy chronic underrepresentation of minorities to their
disadvantage, may take that into account to achieve racial inclusion
Have to look at the outcome in terms of the members of the group that are allegedly discriminated against
Four Views of Colorblindness
Scalia (Richmond v. J.A. Croson Co.)
o Difficulty of overcoming effects of past discrimination is nothing compared to getting rid of tendency to classify on
basis of race. A solution to the first problem that aggravates the second is no solution at all.
o There is only one circumstance in which the States may act by race to “undo the effects of past discrimination”: where
that is necessary to eliminate their own maintenance of a system of unlawful racial classification. This
distinction explains our school desegregation cases
o There are many ways to undo past effects that are not based in race, even though they may have a racially
disproportionate impact
o The history of the racial quota is a history of subjugation, not beneficence. Its evil lies not in its name, but in its
effects: a quota is a divider of society, a creator of castes, and it is all the worse for its racial base, especially in a
society desperately striving for an equality that will make race irrelevant. It is important not to lose sight that even
“benign” racial quotas have individual victims, whose very real injustice we ignore whenever we deny them
enforcement of their right not to be disadvantaged on the basis of race.
Kennedy (Metro Broadcasting v. FCC)
o Benign classifications are uncomfortably close to the reasoning in Plessy
o Benign classifications aren’t often seen that way by those affected by them
o All that need be shown under the new approach is that the future effect of discriminating among citizens on the basis
of race will advance some “important” governmental interest.
o Government will have to decide which races to favor
o The relaxed standard of review embraced today would validate Korematsu, and any number of future racial
classifications the Government may find useful. Strict Scrutiny is the surest test the Court has yet devised for
holding true to the constitutional command of racial equality.
o I regret that after a century of judicial opinions we interpret the Constitution to do no more than move us from
“separate but equal” to “unequal but benign.”
Kennedy (Rice v. Cayetano)
o One of the principal reason race is treated as a forbidden classification is that it demeans the dignity and worth of a
person to be judged by ancestry instead of by his or her own merit and essential qualities. An inquiry into ancestral
lines is not consistent with respect based on unique personality each of us possesses, a respect the Constitution
itself secures in its concern for persons and citizens.
O’Connor (Shaw v. Reno)
o When a district obviously is created solely to effectuate the perceived common interests of one racial group, elected
officials are more likely to believe that their primary obligation is to represent only the members of that group, rather
than their constituency as a whole.
Higher Education
Overview
o
o
Requirements for Affirmative Action: The racial classification must: (a) further compelling government interest,
(b) be necessary to achieve that interest, and either (c) redress a clear past discrimination, or (d) have specific
evidence of past discrimination. Note, while formal findings of discrimination are not required, mere fact of
general societal discrimination is not enough.
Note case: Texas v. Lasage: applied for admissions to State University under Affirmative Action policy. African of
Caucasian descent – denied because white.
57
Regents of University of California v. Bakke (Powell, 1978)
Facts
o
Allen Bakke was a white who sued Cal Med School, complaining that their admission policy violated the EP Clause
and Title VI of the 1964 Civil Rights Act.
o School reserved 16/100 seats in the class for disadvantaged minorities (Blacks, Chicanos, Asians, and American
Indians). Bakke’s GPA and MCAT scores were higher than some of the admitted minorities, so he claimed that
excluding him from those 16 seats was a violation of his right to equal protection because it was a racial classification.
o The Univ. conceded that it could not carry the burden from Arlington Heights of showing that the action
would not have occurred but for the racial purpose.
Holding and Reasoning
o Unconstitutional because not necessary to accomplish the substantial state interest of diversity  struck down under
strict scrutiny
o 14th EP protects against ALL kinds of racial discrimination  even though not based on “white inferiority” still a
problem
o Quotas could reinforce stereotypes in a way that using race as one of many factors would not
o Societal discrimination is not enough  No way we can know what the world would be like without 3 centuries of
discrimination
o Trying to remedy discrimination by helping specific individuals isn’t something this program can do with any
degree of specificity
o The argument that the policy is the only effective means of serving diversity is seriously flawed.
o Government has no greater interest in helping one individual than in refraining from harming another
o Not fair to force individuals to bear responsibility for something they personally are not responsible for just because of
their race
o Quota is not necessary means to a compelling end  looks to Harvard plan (using race as a factor that can tip balance)
Stevens (concur/dissent)
o Can’t consider race as a factor in admissions
Dissent (Brennan, White, Marshall, Blackmun)
o Whites are not an inherently suspect group  not stamped as inferior or stigmatized
o Important purpose attached to the program
o Remedy the effects of past social discrimination
o Racial classifications are potentially problematic but this is a substantial relation to an important purpose
(intermediate scrutiny)
o Rational basis is not appropriate bc, even if not based in hostility, (a) race engenders stigmatization and (b) race is
an immutable characteristic.
o Also, EP is NOT concerned with equal treatment (i.e., not treating similar people similarly), but is concerned
with racial hostility.
o Strict scrutiny is not appropriate because (a) racial preference here is diff from Stauder, Korematsu, and Loving; (b)
“suspectness” is reserved for discrete and insular minority falling under Carolene products, not whites, (c) majority is
not subordinating or stigmitizing the minority, and (d) the policy is not based in racial hostility
o Bakke was not stamped as inferior, and there is no discrimination against any minority group it purports to benefit.
o Quotas are not PF uncon., and the Harvard Program is the same essentially.
Dissent (Marshall)
o Constitution doesn’t forbid a state from acting to remedy effects of 200 years of discrimination
Dissent (Blackmun)
o To get beyond racism, we must first take account of race
Significance
o Even if (a) not against an insular minority and (b) not based in historical discrimination, racial classifications
are “inherently suspect” and subject to strict scrutiny.
o The idea follows that people should be judged as individuals, not by their race. Otherwise, racial tensions
would only increase.
o Preferential classifications are OK if there is proof of statutory violations and remedy is closely related to that
violation (school desegregation).
o Brennan suggests racial preferences are OK if they lack invidious quality, i.e. not demeaning to a racial group,
and remedying effects of past discrimination, generally.
o Powell requires specific, identified past discrimination bc there is no greater interest in “helping X v. not harming
Y.”
Grutter v. Bollinger (O’Connor, 2003)
Facts
58
Michigan Law School sought to reaffirm its commitment to “racial and ethnic diversity” with special reference to the
inclusion of students from groups that have been historically discriminated against.
o By enrolling a “critical mass” of underrepresented minorities, the Law school sought to ensure their ability to make
unique contributions to the character of the Law School.
o Barbara Grutter was a white Michigan resident who applied to the Law School in 1996 with a 3.8 GPA and 161 LSAT.
She was rejected.
Holding and Reasoning
o Upheld under strict scrutiny  narrowly tailored to meet compelling interest of diversity
o Endorse Justice Powell’s view that student body diversity is a compelling state interest that can justify the
use of race in university admissions.
o Universities represent the training ground for our Nation’s leaders  important for cross-exchange of ideas.
o The admissions program is narrowly tailored and flexible (like the Harvard Plan)
o The program does not unduly burden individuals who are not members of the favored racial group because it is
limited in time and because whites are still chosen.
o Expect that 25 years from now, racial pref. will no longer be necessary
Concurrence (Ginsburg, Breyer)
o Affirmative Action will hopefully end in the next generation when it is not needed.
Dissent (Scalia, Thomas)
o Today’s Grutter-Gratz split will prolong litigation and controversy.
o The Constitution proscribes government discrimination on the basis of race, and state-provided education is no
exception.
Dissent (Thomas, Scalia)
o Making race relevant demeans us all.
o Diversity is not the real end of the program  there are other neutral ways to achieve diversity.
o Discrimination harms blacks more than it helps because (i) some are not qualified enough to succeed, (ii) they are
branded with a presumption of inferiority and create amongst them a presumption of entitlement.
Dissent (Rehnquist, Scalia, Kennedy, Thomas)
o Data shows that the school is not adhering to its own policy of achieving a “critical mass.”
o It just discriminates because there is not the same representation for Hispanics or Native Americans as blacks.
Significance
o Not all racial classifications are invalidated by strict scrutiny.
o This was OK because (a) race was used in a flexible, non-mechanical way, (b) the policy was limited in time.
o As in Bakke, Grutter and Gratz hold diversity IS a compelling state interest.
o Universities are not required to exhaust every conceivable race-neutral alternative
o Only requires good faith consideration of workable race-neutral alternatives.
o
Gratz v. Bollinger (Rehnquist, 2003)
Facts
o
o
o
White Students challenged Michigan College of Literature, Science and the Arts (LSA)’s admission policy.
The challengers were considered “qualified,” but were denied admission.
The College used a method where every minority applicant was automatically awarded 20 points of the 100 needed to
guarantee admission. The University admitted virtually every qualified applicant from these groups.
Holding and Reasoning
o Policy is unconstitutional  violates EP because it rigidly considers race without respect to the individual
o Not narrowly tailored  giving 1/5 of necessary admissions points because of race is definitely not the only way to do
things
o Doesn’t consider each applicant as an individual
o Though the volume of applicants makes it impractical for LSA to use the admissions system upheld in Grutter,
administrative challenges do not render constitutional an otherwise problematic system.
o University can’t use whatever means it wants without considering limits imposed by strict scrutiny
Concurrence (O’Connor)
o Unlike the policy upheld in Grutter, LSA’s policies do not provide for a meaningful individualized review of
applicants.
o The law school considers diversity qualifications of each applicant on a case-by-case basis, while LSA relies on
selection index to assign automatic point bonuses without considering background, experience, or quality.
Concurrence (Thomas)
o The Court correctly applies Grutter.
o But for the same reasons as my dissent in that case, I would hold that a State’s use of racial discrimination in higher
education admissions is categorically prohibited by the EP clause.
59
Dissent (Souter)
o The LSA policy is closer to Grutter than Bakke.
o Unlike quotas, applicants compete through grades, tests, strength of school, quality of study, character, etc.
o Other weighed considerations exist.
Dissent (Ginsburg, Souter)
o The Court once again maintains that the same standard of review applies to all official race classifications.
o This insistence on consistency would be fitted were our Nation free of vestiges of rank discrimination reinforced by
law. But there is a real racial divide in our country.
o Where race is considered “for the purpose of achieving equality,” no automatic proscription is in order. There is no
showing that LSA unduly constricts admissions opportunities for students who do not receive special consideration
based on race.
o Without recourse to such plans, institutions of higher education may resort to camouflage.
Summary
o
o
o
o
o
o
After Grutter and Gratz, there can be no question that Bakke remains good law insofar as achieving diversity in higher
education remains a compelling state interest sufficient to justify at least some race preferences for higher education.
Yet Powell conceptualizes diversity as a value intrinsic to the educational process itself because education was a practice of
enlightenment that thrived on the “robust exchange of ideas.”
Grutter instead conceives of education as instrumental for the achievement of extrinsic social goods like professionalism,
citizenship, or leadership.
Grutter’s justifications for diversity thus potentially reach far more widely than do Powell’s.
The Court assumed in Grutter and Gratz that seeking diversity in higher education is a compelling state interest.
Gratz simply found the undergraduate admissions program not sufficiently narrowly tailored to that goal.
Employment and Contracting
o
Court doesn’t apply same principles here as it does in education
Wygant v. Jackson Board of Education (Powell, 1986)
Facts
o
A collective bargaining agreement provided that, when layoffs were required, teachers with most seniority would be
retained “except that at no time will there be a greater % of minorities laid off than the current % employed.”
o Some white teachers were laid off, though they had more seniority than blacks retained.
Holding and Reasoning
o Strict Scrutiny should be applied.
o The goal of providing minority role models to minority school children to overcome societal discrimination is not
“compelling.”
o No logical stopping point  allows the Board to engage in hiring and layoff practices long past the point required by
any legitimate remedial purpose.
o Not sufficiently narrowly tailored because the entire burden of achieving racial equality on particular individuals.
White (concurring):
o None of the teachers has been shown to be a victim of any racial discrimination.
O’Conner (concurring):
o The imposition of a requirement that public employers make findings that they have engaged in illegal discrimination
before they engage in affirmative action would undermine their incentive to meet voluntarily their civil rights
obligations.
Marshall, Brennan, Blackmun (dissenting):
o A public employer should be permitted to preserve the benefits of a legitimate and constitutional affirmative-action
hiring plan even while reducing his workforce.
Stevens (dissenting):
o The “Role Model” theory is fine because it advances the public interest in educating future children.
Fullilove v. Klutznik (Burger, 1980)
Facts
o
A congressional spending program required that 10% of federal funds granted for local public works must be used by
the state or locality to get services from businesses controlled by minority groups.
o Nonminority contractors challenged.
Holding and Reasoning
o Constitutional  upheld against 14th amendment intermediate scrutiny
60
Congress reasonably determined that the elimination of barriers to minority firm access to public contracting by the
1977 Act was appropriate to ensure that those businesses were not denied equal opportunity.
Concurrence (Powell)
o Under Bakke, the provision was justified as a remedy that serves the compelling governmental interest in
eradicating continuing effects of past discrimination identified by Congress.
Concurrence (Marshall, Brennan, Blackmun)
o Under Bakke, racial classifications employed here are substantially related to the important and congressionally
articulated goal of remedying effects of past discrimination
Dissent (Stewart, Rehnquist)
o Equal protection prohibits invidious discrimination by the government. The rule cannot be different when the
persons injured are not members of a racial minority.
Significance
o Different from Bakke because there is identified discrimination
o Identified discrimination by government, private parties, or industry is a compelling government interest  justifies
remedial action
o
Richmond v. J.A. Croson (O’Connor, 1989)
Facts
o
o
A city program required prime contractors to subcontract at least 30% of contract to minority business enterprises.
The City noted that, while the population of Richmond was 50% black, only .67% of the city’s construction contracts
were awarded to minority businesses.
o The case was brought by a contractor whose low bid on a city project was not accepted because of failure to comply
with the Plan.
Holding and Reasoning
o Unconstitutional under strict scrutiny  not necessary or closely tailored to identified discrimination
o Richmond has not shown that but-for discrimination there would not be any minorities in contracting
o State did not consider race-neutral policy
o States not free to decide what remedies are appropriate just because Congress sometimes can
o Because there’s no evidence that the Richmond construction industry specifically has discriminated, the city
has failed to demonstrate a compelling interest.
o Gross overinclusiveness strongly impugns remedial motivation.
o An inference of discrimination could arise from large disparity, and nothing in this case precludes remediating identified
discrimination.
Concurrence (Stevens)
o Racial classifications are permissible sometimes other than remedying past wrongs, but Richmond does not carefully
identify characteristics of the contractors.
Concurrence (Kennedy)
o Any racial preference must face the most rigorous scrutiny, but not automatic invalidity.
Concurrence (Scalia)
o Strict Scrutiny should be applied, but there is only one circumstance in which the States may act by race to undo
effects of past discrimination: where it is necessary to eliminate their own maintenance of a system of unlawful racial
classification.
Dissent (Marshall, Brennan, Blackmun)
o Richmond has powerful interests in this case  eradicating effects of past discrimination and preventing spending
decisions from reinforcing it.
o For the 1st time, the Court has adopted strict scrutiny as its SOR of race-conscious remedial measures.
o A profound difference separates actions that are racist and actions that seek to remedy prior racism.
Significance
o General discrimination on rational level alone does not justify racial quota
o Suggested that federal government might enjoy more deference the states with respect to challenged preferences
Adarand Constructors, Inc. v. Pena (O’Connor, 1995)
Facts
o
Adarand Constructors claimed that the Federal Government’s practice of giving general contractors on government
projects a financial incentive to hire subcontractors controlled by “socially and economically disadvantaged
individuals,” and in particular, the Government’s use of race-based presumptions in identifying such individuals,
violated equal protection element of The Fifth Amendment’s Due Process Clause.
Holding and Reasoning
o Remanded for strict scrutiny analysis
61
Because EP of 5th applies to fed, fed law is still subject to strict scrutiny
ALL racial classifications are reviewable under EP strict scrutiny  OVERRULES Fullilove
Requiring strict scrutiny is the best way to ensure that courts will give racial classifications detailed examination, both
as to ends and means.
o However, “strict in theory, not fatal in fact.” Thus, if racial classification is necessary, then it may be OK (as in Grutter).
Concurrence (Scalia)
o Government can never have a compelling interest in discriminating on the basis of race to “make up” for past
racial discrimination in the opposite direction.
o Wronged individuals should be made whole, but there is no such thing as a debtor or creditor race.
Concurrence (Thomas)
o Government cannot make us equal.
o That these programs may have been motivated, in part, by good intentions cannot provide refuge from the principle
that under our Con., the government may not make distinctions on the basis of race.
o Racial paternalism can be as poisonous as any other form of discrimination.
o “Benign” discrimination teaches many that because of chronic and immutable handicaps, minorities cannot compete
with them without their patronizing indulgence.
o These programs stamp minorities with a badge of inferiority and may cause them to develop dependencies or feel
entitled to preferences.
Dissent (Stevens, Ginsburg)
o There is no moral or constitutional equivalence between a policy that is designed to perpetuate a caste system and one
that seeks to eradicate racial subordination.
o
o
o
Roberts Court and Affirmative Action
Various Approaches
o
o
o
o
o
o
Thomas  Constitution is color blind, and there should be no distinction whatsoever
o No other member of the court takes this position
At the other end, there is a varying array of four members of the court who view racial classification as problematic
but not immediately fatal
Breyer and Ginsburg  prohibition on racially conscious decision making not a constitutional given but an
instrumental means to achieve racial equality
o Carolene Products  insular and discrete minority
o Historical interpretation of 14th amendment seeking to eliminate castes in US society
o Ideals of Brown, where all ethnic groups can live together in harmony
Breyer  not all racial classifications are to be treated identically
o Harmfully excludes minorities  viewed at highest level of scrutiny
o Designed to include minorities, at least where the allocation is not one that allocates a limited set of goods
and services bimodally to one group and away from another and where stigma and burdens are not imposed
on one racial group  careful review
o Question of whether or not there is a real intent to achieve the inclusionary ends and whether or not there is
a real relationship  proportionality
Roberts, Alito, Scalia  Strict scrutiny applies to all racial classifications
o Cannon of compelling state interests that can justify strict scrutiny is quite limited
 Eliminating de jure segregation can be a compelling state interest but NOT achieving inclusiveness
without de jure segregation
 Putting individuals back in the position they would have been in but for de jure segregation  ok
 Diversity may or may not be compelling state interest
Kennedy  Occupies the pivotal position, again
o Racial classification requires strict scrutiny
o Diversity in classroom and preventing racial isolation in education are compelling state interests
o Realizes can result from de facto measures
o Fine to bring students together as long as it’s not based on racial classification
o Problem  will these non-targeted measures be effective, and can they be deployed with confidence?
Parents Involved v. Seattle Schools (Roberts, 2007)
Facts
o
62
In order to maintain racial balance Seattle uses race as a tiebreaker when assigning HS
o Seattle had a history of racially conscious policies and was trying to achieve racial integration
Louisville’s plan requires schools maintain a black enrollment between 15-50%.
o Kept integration plan in place after achieving unity
Holding and Reasoning
o Unconstitutional under strict scrutiny
o No compelling state interest
o Higher education has compelling state interest in diversity
o Remedying past discrimination  nothing because Seattle has not been adjudicated to violate EP, and
Louisville was found to have reached unity
o Even if there were a compelling state interest, not narrowly tailored
Kennedy Concurrence
o There is a compelling interest in taking into account de facto segregation  BUT not narrowly tailored
o Can do it in other ways (strategic site selection, drawing attendance zones, etc.)
o Have to recognizes people as individuals not members of a certain group  classifications are demeaning
Thomas Concurrence  diversity is not a compelling state interest
Dissent (Breyer)
o Constitution does not bar local efforts to use racial preferences if they didn’t have a history of de jure segregation
o Strict scrutiny is inappropriate for benign race preferences  only for those that harmfully exclude
o No distinction between de facto and de jure
o
Ricci v. DeStefano (Kennedy, 2009)
Facts
o New Haven throws out fire fighter tests because of disparate results
o No racial classifications
Holding and Reasoning
o Avoids the EP question  says it violates Title VII
o Prohibits disparate treatment AND disparate impact
o Provides affirmative defense  can show that it’s necessary to avoid violating another piece of Title VII
o Is the disparate impact part consistent with EP element of 5 th amendment?
o Racially based decision is not ok under Title VII unless they can show that there would be a disparate impact
o Not strong enough evidence that the alternative test isn’t disparate
o At root of this, adoption of facially neutral decision-making criteria with goal of achieving racial equality is a prima
facie violation of Title VII
o Does NOT say that it violates EP
Dissent (Scalia)
o Disparate impact part of Title VII violates EP
EP and Citizenship
Overview
o
o
o
Citizenship is a result of an accident of birth; non-citizenship status historically linked to hostility (Yick Wo, Korematsu)
o Harlan’s dissent in Plessy said the constitution is color-blind, and all citizens are equal before the law.
o The Court in Hirabayashi says distinctions based on their ancestry are odious to the doctrine of equality.
Non-citizens are politically isolated
First, we must determine who is a citizen:
o The body of the Constitution does not contain a definition of citizenship.
o In Dred Scott, Taney derived from originalism that slaves and their descendents are not citizens. The
Constitution says one must be a citizen to have privileges and immunities, and Congress has the power to
establish rules for naturalization.
o The First Congress (1790) exercised its A1§8 authority authorizing naturalization under certain
conditions of non-citizens who are free white people.
o The 14th Amendment (overruling Dred Scott) says that “All persons born or naturalized in the United States
and subject to the jurisdiction thereof shall be citizens of the United States.” So the Constitution now say
you must be born or subject to the jurisdiction of the United States to be citizens, or at least be
naturalized. Yet the 14th Amendment does not say how we can be naturalized.
o In 1870, Congress said that African natives or their descendents can become naturalized. Yet that
didn’t include Chinese nativity. As the 20th Century progressed, the Supreme Court held that Japanese
natives could not become citizens. So the notion that there is an “open door” is accurate as far as people can
63
o
o
come to the United States, but not all can become citizens. Moreover, those people cannot have the various
privileges and immunities of citizenship.
o The explanation is that the Constitution begins “We the People of the United States,” and those who are
parties to the contract have rights within it. Those outside its bounds do not.
o It was not until 1952 that non-whites were allowed to be naturalized.
Unclear standard of review
o By Jurisdiction.
 If states discriminate between citizens/non-citizens, strict scrutiny applies. (Yick Wo, Wong Kim).
However, when the status is related to political functions, the distinction may be OK (Cabell).
 If federal government discriminates, there is greater deference given federal government’s
control over immigration policy; a legitimate and rational basis is applied. (Matthews v. Diaz).
However, if the exclusion is invidious, the law may still violate Due Process (Wong Wing)
o By Citizenship
 Legal aliens are a “suspect class” requiring strict scrutiny because (a) they have not chosen their
status, (b) they are subject to stigmatization, and (c) they are discrete and insular. However,
undocumented immigrants are not “suspect” because they elected their status. This suggests
rational basis applies (although Plyler applies “heightened” – deals with school children who did
not choose)
o The Court DOES NOT generate an intermediate scrutiny for citizenship distinctions!!
Born Here…
o Congress cannot set up a hereditary, permanent exclusion of people who are not in the United States because
being born here means you are a citizen.
o The Constitution is limited to one generation of exclusion.
o Even if EP is diluted to aliens, there is still a structural limitation on the capacity of the US government to set
up permanent exclusion. (Wong Kim Ark)
o Persons born here are members and have rights under the Constitution – not legislative grace.
Wong Wing v. US (1896)
Facts
o
Congress passed The Exclusion Act- statute (1892) saying that “any such Chinese person, or persons of Chinese
descent, convicted and adjudged to be not lawfully entitled to be or remain in the United States, shall be imprisoned at
hard labor for a period not exceeding one year, and thereafter removed from the United States.”
o Wong Wing was imprisoned and sentenced to labor under this act
Holding and Reasoning
o A person cannot be thrown into penal servitude or jail without a trial, even if he’s not a citizen.
o Violates 14th Amend (via the 5th/6th Amends) protecting against deprivation of liberty.
o While fed government may deport non-citizens, they may not detain non-citizens.
o Violates DP (and Field in Concurrence says it violates 13th Amend. too).
o The Constitution extends to persons, not just citizens.
o The banishment and exclusion of aliens is an inalienable right of every independent nation, especially during
wartime.
o Chinese cannot become citizens by statute.
o The Fifth and Sixth Amendments extends to persons within a jurisdiction - prohibit punishment without
indictment, require DP, trial by jury, and speedy and public trial.
o The Thirteenth Amendment says you must be punished for crime before involuntary servitude.
o The 1892 Act left out the protections under the 5th, 6th, and 13th Amendments. It authorized an officer of the United
States to declare aliens illegal and send them to prison.
o In Yick Wo, the Court held that 14th Amendment Equal Protection applies to persons within states’ jurisdiction.
o Dred Scott has been overruled, in that even for individuals who are not citizens are entitled to the Constitution’s
protections.
Significance
o Non-citizens are entitled to constitutional rights
o Extends Yick Wo to fed through 5th amendment
Wong Kim Ark (1898)
Facts
o
o
64
Citizens have a right to be present in the United States.
A resident born in CA had parents born in China, who immigrated to the United States, then left and return to China.
His parents did not become citizens because they were not born in the United States, and they could not become
naturalized because Congress decided that only blacks and whites could do so.
o Wong Kim went back to China for a year, then came back to the US
o In 1892, the Exclusion Act was passed  Wong left for China again and came back. He was denied entry.
o Wong argued that he was born in the United States, so he has the right of citizenship that any American born person
has. Said he never renounced his allegiance to the U.S.
Holding and Reasoning
o Wong is a citizen  14th amendment applies to anyone BORN within territory of US, no matter what race or color
o Don’t want heredity class of outsiders
o History shows that Congress intended act to apply to Chinese individuals
o English Common Law gave citizenship to those born on soil of sovereign
Dissent (Fuller, Harlan)
o Concept of citizenship rests in voluntary allegiance
o Voluntary allegiance of parents never transferred to the US, so child should be regarded as part of family unit
o
Protections Not Afforded to Non-Citizens
Graham v. Richardson (1971)
o
o
Citizens cannot distinguish between citizens and aliens on distribution of welfare benefits
Later cases take this to raise classifications on basis of citizenship to same level as racial discrimination
Traux v. Rache and Takahashi
o
o
Discrimination against non-citizens by states is subject to a level of skepticism and requires a justification that far
exceeds rational basis  close judicial scrutiny
Can’t prevent people from making a living
Cabell v. Chavez-Salido (White, 1982)
Facts
o Plaintiffs wanted to become probation officers and were excluded.
o A statute said that “public officers or employees declared by law to be peace officers” must be citizens of the US.
Holding and Reasoning
o Restriction was Constitutional.
o Upheld because in this case the job in question is “Probation officers” which is a sovereign function of government
and symbolizes the political community (as opposed to a purely economic function).
o Economic functions require strict scrutiny, but sovereign functions do not
o In Yick Wo, the Court held that aliens are entitled to occupations like citizens.
o Sovereign functions of citizenship do not involve strict scrutiny because defining aliens helps define the community.
o The state has the right to define the boundaries and scope of the political community, and aliens are by
definition outside of it.
o Peace Officers partake of the government’s sovereign capacity to participate in the polity.
Significance
o So distinctions on the basis of citizenship are analogous to racial distinctions, except where they are tied to the interests of the
political community.
Mathews v. Diaz (Stevens, 1976)
Facts
o
Resident aliens lawfully admitted to the US for less than 5 years, and over 65 years old, were denied enrollment in the
Medicare Part B supplemental medical insurance program.
o A fed statute granted eligibility to resident citizens 65+ years, but denied eligibility to comparable aliens
Holding and Reasoning
o Statute was Constitutional.
o While aliens have the same constitutional protections (5th and 14th Amends’ life, liberty or property), non-citizens do
not enjoy the same advantages of citizenship.
o Judiciary defers to executive on immigration policy because it implicates foreign relations
o Equal protection under DPC doesn’t mean legally equal in every way
o Congress has to draw the line somewhere based on character and duration of residence
Significance
o Fed may exercise legitimate interest in citizenship and make a distinction based on a rational and legitimate basis
o Allocation of public resources is legitimate
65
Plyler v. Doe (Brennan, 1982)
Facts
o
Children were excluded from public schools when the school district required “undocumented” children to pay a “full
tuition fee” to enroll.
o Lower federal courts held that the exclusion of the children from free public education violated EP.
Holding and Reasoning
o Restriction was unconstitutional  violates EP under heightened scrutiny.
o While undocumented immigrants are NOT a “suspect class,” the law creates a specter of a “permanent hereditary
underclass of citizens” (by denying educational opportunities) which violates 14th.
o While their parents violated a law in entering, children are not accountable for their disabling status
o Children do not voluntarily enter this class of people
o Education has a fundamental role in maintaining the fabric of our society  cannot have a significant body of Nation
without education
o State’s interests in discouraging illegal immigration are inadequate
Concurrence (Blackmun)
o Classifications involving denial of education are unique because they strike at the heart of equal protection values
by involving the State in creating permanent class distinctions.
Concurrence (Powell)
o The children are innocent in violating immigration laws, yet are singled out for a lifelong stigma.
Dissent (Burger, White, Rehnquist, O’Connor)
o The Court correctly rejects any suggestion that illegal aliens are a suspect class or that education is a fundamental right.
o Once that is conceded, our inquiry should focus on and be limited to rational basis review.
o It is rational for a State to conclude that it does not have to provide benefits for persons whose presence in the State is
illegal.
o A state is not barred from considering relevant differences, even if these differences were immutable, i.e., not by
choice.
Significance
o Undocumented citizens are not a suspect classification because it is a voluntary assumed characteristic
EP and Gender
Overview
o
o
o
o
o
The Question: whether the Equal Protection analysis (5th and 14th Amendments) should analyze distinctions based on
sex with rational relationship/legitimate purpose, strict scrutiny, or entirely different approach
Current State of Play: Previously, sex discrimination cases did not require any heightened scrutiny (Muller v. Oregon,
upholding max work hours for women, Adkins striking min wage for women, West Coast Hotel reversing Adkins,
Goesaert upholding bar on female bartenders unless fathers are present). Courts largely deferred to the legislature.
However, Title VII of CRA of 1964 bars discrimination with respect to employment under the Commerce Clause.
Title IX of CRA bars discrimination in education (but places an exception for same sex schools).
The US Constitution is the only major written Constitution with a bill of rights that does not have a provision
explicitly declaring equality between the sexes.
o Constitution provided no federal protection against laws explicitly treating women differently from men.
Race vs. Gender
Similarities
o Sex is an immutable characteristic that is visible component of identity  involuntary
o Based on inaccurate stereotypes and aims to subordinate
o Women are historically excluded from power and stigmatized; they are rendered inferior, based on traditional roles.
o Classification may embody this prior invidious discrimination and seeks to perpetuate discrimination
o Sex discrimination is “accumulated.” It is a cycle that imbeds itself.
o Sex is irrelevant with respect to an individual’s capabilities
o Less able to participate in the political process even after the 19th Amendment: Risks in Decision-making
Process
o It is easier for the dominant group to regard the subordinate group as “other” and “less important”
and ignore their interests.
 This is true even in the aftermath of the 19th Amendment, given that the entry into political life is
shadowed by exclusion, and even today, women are only 25-30% of legislative bodies.
66
o
o
Distinctions risk perpetuating prior oppression.
 Real differences may just be remnants of prior prejudice.
 Women less likely to be veterans or lawyers or not able to make contracts are the result of past
decisions – not natural differences between the sexes.
Because sex, like race, is an obvious, distinctive, and salient characteristic, then disadvantages may
accumulate.
 Inferior jobs could lead to less incentive to get educated, which could lead child bearing more
attractive, which reduces the work force, etc.

Likewise, exclusion from political process results in less contacts, which results in less ability to
make the contacts, which then results in exclusion.
Differences
o Women are NOT an insular/discrete minority. Whether women are actually represented in the political process
is debatable
o BUT they may vote disfavored representatives out of office.
o It was not included in the intent of the 14th Amendment, which focused on race
o There are physical and social differences that are not invidious and do not suggest subordination or inferiority
(M/F bathrooms).
 Justice Ginsburg argues that we have come to understand that differences between males and females are
causes for celebration
o Individuals of another sex are pervasive in our society. Because of this, Argument isn’t as clear as it is with race.
o The idea that one looses little by prohibiting by race is easy while the idea that you lose only a little by
prohibiting sex differences is less easily recognizable.
o Today – even split in top 4 positions in our country
Standard of Review
o
o
Women are a “quasi-suspect” classification, requiring intermediate scrutiny. This requires (a) an important state
interest (genuine, not just hypothesized as in RR), and that it is (b) substantially related. Strict scrutiny is not applied
because there are some distinctions that are constitutionally sound. However, intermediate scrutiny was ratcheted
up to “exceedingly persuasive justification.”
Most government interests have been found in important situations (with the exception of Frontiero and Hogan).
Early Cases
o
Originally applied rational relationship and confirmed that 14 th did not apply to sex discrimination, even when explicit
Bradwell v. State (1873)
Facts
o
o
Mrs. Bradwell wanted a license to practice law in Illinois. She had a certificate indicating that she was competent.
The Supreme Court of Illinois held that she could not be a lawyer because (i) as a married woman, she could not be
bound by implied contracts resulting from her being lawyer, since women’s identities merged with their husbands and
could not enter into contracts without their husbands signing off, and (ii) the Court would be exercising legislative
authority because in England the prospect of women becoming Barristers was completely unheard of.
o Mrs. Bradwell claimed that she had the right to become a lawyer under 14th Amendment P & I.
Holding and Reasoning
o Upheld because there is reason to bar women from lawyering given their nature and traditional domestic sphere
o P&I not tied to national citizenship, and opportunity to become a lawyer is not a P&I of citizenship (Slaughterhouse
Cases)
o All at odds with EP because judging based on inaccurate stereotypes and immutable characteristics
Concurrence (Bradley)
o Women are incapable of making contracts.
o Notwithstanding that some women aren’t married, women’s destiny, under the Law of the Creator, is to fulfill their
roles as wife and mother. Nature herself has always recognized a wide difference between the respective
spheres of man and woman. The natural and proper timidity and delicacy that belongs to female sex evidently
unfits it for many of the occupations of civil life. So women wouldn’t make good lawyers.
o In addition, allowing women to adopt separate careers would ruin the family.
o UP TO LEGISLATURES TO MAKE THE CHANGE.
Minor v. Hapersett (1874)
o
State prohibited women from voting in state elections
67
o
Upheld  women may be persons and citizens within meaning of 14th, but they are not entitled to participate in a
political or professional realm reserved to men
Heightened Scrutiny Under Rational Basis
o
o
o
o
Only the 19th Amendment addresses explicitly any aspect of women’s equality, providing that “the right of citizens in
the United States to vote shall not be denied or abridged by the United States or by any state on account of sex.”
An Equal Rights Amendment, debated in Congresses since 1923 and proposed by both houses in 1971-72 would
have provided that “equality of rights under the law shall not be denied or abridged by the United States or by any
State on account of sex.” 35 states ratified it by 1982, but the addition 3 could not be mustered.
While the battle for the Equal Rights Amendment was under way in the early 1970s, the Court considered a
growing number of cases challenging sex classifications under the Equal Protection Clause of the 14 th
Amendment, several litigated by later Justice Ginsburg.
Several challenges succeeded, though the Court at the outset purported to apply the rationality standard and even
though the Court never did assimilate gender criteria to the fully “suspect” status of racial ones. In Muller v.
Oregon, remember, the Court upheld maximum hours for women through a rational basis test. By the mid-1970s, a
consensus was reached at last: The majority applied a heightened, intermediate level of scrutiny.
Goesaert v. Cleary (Frankfurter, 1948)
Facts
o
A Michigan law provided that no woman could obtain a bartender’s license unless she was “the wife or daughter of the
male owner” of a licensed liquor establishment.
Holding and Reasoning
o Michigan can restrict women from bartending
o If line drawn is with a basis in reason, it is permissible
o MI could forbid all women from working behind a bar
o Court does not require legislatures to reflect sociological insight or shifting social standards
o MI thinks that this will keep barmaid from being harassed, etc.
o Court doesn’t want to second guess legislature
Dissent (Douglas, Murphy)
o Like in the Lochner era cases, protective or “benign” legislation regarding women is constitutional.
o There is an inadequate fit beans means and ends.
Reed v. Reed (Burger, 1971)
Facts
o
o
The appellant’s brief urged the Court to find sex a suspect classification.
The state courts had sustained a preference for men over women in the appointment of administrators of estates as
a rational method “to resolve an issue that would otherwise require a hearing as to the relevant merits” of the
petitioning relatives.
Holding and Reasoning
o Statute is unconstitutional because it violates EP  less administrative confusion is a legitimate end, but statute is not
rationally related
o Have to see if there is a rational relationship to a state objective
o Mandatory preference to sex over the other just for administrative efficiency is an arbitrary legislative choice  goes
against EP
Significance
o Starts to look like something more than rational basis review  intermediate basis
Frontiero v. Richardson (Plurality, 1973)
Facts
o
A federal law afforded male members of the armed forces an automatic dependency allowance for their wives but
required servicewomen to prove that their husbands were dependent.
Holding and Reasoning (Brennan)
o Unconstitutional under strict scrutiny
o Classifications based upon sex are inherently suspect  strict scrutiny.
o The position of women in society was comparable to that of blacks under pre-Civil War slave codes  women still
face pervasive discrimination in education, jobs, and politics.
o Sex characteristics frequently bear no relation to the ability to perform or contribute to society.
o Can have the effect of invidiously relegating the entire class of females to inferior legal status without regard to
the actual capabilities of individuals.
68
Women are an insular minority because vastly underrepresented.
The government offers no concrete evidence tending to support its view that differential treatment saves the
government money, and any statutory scheme that draws a sharp line between sexes solely for the purpose of
achieving administrative convenience violates equal protection (see Reed).
Concurrence (Powell, Burger, Blackmun)
o It is unnecessary to characterize sex as a suspect classification because the case can and should be decided “on the
authority of Reed.”
o Any expansion of its rationale should be reserved for after the Equal Rights Amendment stops pending.
Concurrence (Stewart)
o The law worked an invidious discrimination in violation of the Constitution (see Reed)
o
o
Intermediate Scrutiny
Overview
o
o
o
o
o
o
Justice Brennan’s opinion advocated treating gender as a suspect classification, but obtained only a plurality, not a
majority of votes for his analysis.
Faced with the analogical challenge that sex is neither just like race nor just another garden-variety basis for
socioeconomic legislation, the Court settled on thxe approach of a third, intermediate standard of scrutiny,
between strict scrutiny and rationality review.
The Intermediate Standard was announced in Craig v. Boren and revised upward in U.S. v. Virginia.
o Important state interest and substantially related means
Hogan (1982) reiterated the Craig standard but added that defenders of a gender-classifying law “must carry the
burden of showing an “exceedingly persuasive justification” for the classification.
The “exceedingly persuasive justification” standard was central in J.E.B. (1994) and U.S. v. Virginia (1996).
In Virginia, Justice Scalia’s dissent charged that Ginsburg’s resort to that “amorphous” phrase in her majority opinion
was in effect an endorsement of strict rather than intermediate scrutiny, thereby “drastically revising our established
standards for reviewing sex-based classifications.”
Craig v. Boren (Brennan, 1976)
Facts
o
An OK statute prohibited the sale of “non-intoxicating” 3.2% beer to males under the age of 21 and to females under
the age of 18.
o This was not wholly irrational because statistical evidence revealed that .18% of females and 2% of males in that age
group were arrested for driving while under the influence of alcohol.
Holding and Reasoning
o Statute violates EP because discrimination is not substantially related to an important state interest
o The statute must serve important governmental objectives and must be substantially related to achievement of those objectives.
o Even though traffic safety is important, it is not substantially related.
o Individuals are being penalized not just for their own misdeeds, but for those of the group they are a part of, and
this is tied to an “archaic and overbroad generalization.”
Concurrence (Powell)
o This is an easy case, because the question is whether the state has adopted a means that bears a “fair and substantial
relation” (see Reed)  The statistics don’t support that.
Concurrence (Stevens)
o There is only one EP Clause.
o The two-tiered analysis of equal protection claims is a method the Court has employed to explain decisions that
actually apply a single standard in a reasonably consistent fashion.
o Rational basis applies to all
Concurrence (Stewart)
o The law amounts to total irrationality and invidious discrimination. (see Reed).
Dissent (Rehnquist)
o The law challenged here need pass the rational basis test in Lee Optical.
Men are not a suspect classification, not peculiarly disadvantaged, subject to systematic discrimination, etc.
o The standard adopted by the Court is “fuzzy” because “important” and “substantial” invite subjective judgments.
o Statistics shows clear differences between DUI habits of young men and women
Mississippi University for Women v. Hogan (O’Connor, 1982)
Facts
o
MUW was the oldest state-supported all-female university in the Nation  School of Nursing established in 1971.
69
Hogan, a male registered nurse, was denied admission to the School’s baccalaureate program.
He could audit courses and would have to go to State’s coed nursing schools elsewhere in MS to obtain credits toward
a degree.
Holding and Reasoning
o Court uses intermediate scrutiny and says state can’t exclude males because it lacks an “exceedingly persuasive
justification”
o Women don’t suffer a disadvantage in nursing  not intended to remedy discrimination against women
o Government has to show an “exceedingly persuasive justification” for the classification.
o Statute discriminates against males rather than females  does not reduce the standard of review.
o “Benign” justifications (affirmative action) require searching analysis  perpetuates view of nursing as a woman’s job.
o The state has made no showing that the classification is substantially related to the compensatory objective.
Dissent (Powell, Rehnquist)
o The Court should not apply heightened scrutiny to invalidate state efforts to expand women’s choices.
o
o
J.E.B. v. Alabama (Blackmun, 1994)
Facts
o Alabama kept men off the jury in a paternity suit using peremptory challenge
Holding and Reasoning
o Unconstitutional
o Gender-based classifications require “an exceedingly persuasive justification” to survive constitutional scrutiny.
o AL thought men would be more sympathetic to the man’s position because he didn’t want the kid.
o “We shall not accept as a defense the very stereotype the law condemns.”
o AL offers virtually no support for the conclusion that gender alone is an acc. predictor of jurors’ attitudes
o BUT AL’s reasons seems rational, and state has a legitimate interest in assigning paternity properly  seems
to be substantial relation
Dissent (Rehnquist)
o The two sexes differ, both biologically and in experience.
o It is not merely stereotyping to say that these differences may produce a diff. in outlook.
o Accordingly, peremptory challenges based on sex is not invidious like it is with race.
Dissent (Scalia, Rehnquist, Thomas)
o For every man struck by the government, petitioner’s own lawyer struck a woman.
o To say that men were singled out for discriminatory treatment is preposterous.
US v. Virginia Military Institute (Ginsburg, 1996)
Facts
o
VMI is the sole-single sex school in Virginia, with a distinctive mission to produce “citizen-soldiers” through the
“adversative method.”
o VMI cadets lived in Spartan barracks where surveillance is constant and privacy nonexistent, do everything together,
are incessantly exposed to the “rat line,” like a boot camp, etc.
o After the DC Court of Appeals remanded an equal protection suit by female high-school applicant, Virginia proposed
a parallel program for women: Virginia Women’s Institute for Leadership (VMIL).
o Though VMIL would share VMI’s mission, it would differ in academic offerings, methods, education, and financial
resources.
Holding and Reasoning  Unconstitutional
o Virginia has shown no exceedingly persuasive justification for excluding all women from VMI, and the remedy
(VWIL) does not cure the violation  Violates Equal Protection.
o Distinctions cannot (a) be based on broad generalizations (i.e., women are weak and dislike adversarial method), (b)
denigrate either sex, (c) perpetuate inferiority.
o Also, VMI purports adversarial method will decline, but this seems to justify historical discrimination
o Like Palmore, court does not give effect to private bias
o While diversity in education (i.e., single-sex education) is an important state interest, there is no showing this was
the actual objective of VMI
o Classification must serve important governmental objectives and means must be substantially related to the
achievement of those objectives.
o Can’t have post hoc justifications responding to litigation that rely on overbroad generalizations
o Sex differences are a cause for celebration but not denigration.
o Classifications can be used to compensate women, promote equal opportunity  CANNOT be used to
perpetuate social and legal inferiority of women
o There is no legitimate and important government purpose.
70
Virginia has not shown that VMI was established to diversify educational opportunities within the
State, and the VMI methodology could be used to educate women.
o VMI is unique in training, contacts, stature, etc.  VWIL is not a suitable substitute because it’s
different based on generalizations about how women are
 No substantial equality
Concurrence (Rehnquist)
o Exclusion doesn’t violate EP  the maintenance of an all-men school without providing any comparable
institution for women does
o There is scant evidence in the record that educational diversity was the real reason VA decided to maintain VMI as
men only.
o Even if diversity were the state’s actual objective, the diversity benefited only one sex.
o The state’s options were not as limited as the majority may imply. Had VA made a genuine effort to make VWIL
equal, it may have succeeded.
Dissent (Scalia)
o The Court effectively applies strict scrutiny in this case, like in those concerning racial distinctions.
o Only the amorphous “exceedingly persuasive justification” phrase, and not the standard elaboration of intermediate
scrutiny, can be made to yield the conclusion that VMI’s single-sex composition is unconstitutional because a single
woman is willing and able to undertake VMI’s program.
o Intermediate scrutiny has never required a least-restrictive-means analysis, but only a “substantial relation” between the
classification and interest.
o The stronger argument is to reduce the standard to rational basis review. This is more compatible with
Carolene Fn4, since women are a majority. The policy here was rationally related and backed up by a number of
federal findings and statistics.
Significance
o Applies exceedingly persuasive justification to heightened scrutiny standard  even if there are important interests,
gender classification may be struck down if it denigrates women or perpetuates inferiority
o
Sex Differences and Equality
Overview
o
o
o
o
o
o
o
What should we do with the claim that women and men are differentially situated, and those differences serve legitimate and even
important goals? Should the standard permit distinctions on the basis of sex?
Traditional equal protection principles require that only those who are similarly situation should be treated alike. Differences in
treatment can be justified when they correspond to relevant differences.
Gender difference may be a result of system that embodies discrimination (as in Bradley), a challenge arises when a
statutory law address “real” differences.
The fear is that difference may re-impose gender hierarchy  Courts must consider whether the distinction is relevant (i.e.,
“real”).
When a statute addresses a “real” difference, courts (c) require discriminatory intent (Geduldig, Personnel v. Feeney 1979,
upholding lifetime preference to veterans despite disparate impact favoring men for lack of intent).
Requires that law was enacted “because of” its disparate impact, not just “in spite of” the impact. (Personnel v. Feeney).
However, some argue, a clear foreseeable consequence of disparate impact may suggest intent.
Geduldig v. Aiello (1974)
Facts
o
o
o
California provided benefits for people who are “disabled” (temporarily unable to work for more than 8 days).
Aiello said that in the last period of pregnancy, she was unable to do her job.
Yet she couldn’t get benefits, because a statute exempted pregnancy (among others, like alcoholism, psychopathic, etc.)
from counting as one of the relevant “disabilities.”
Holding and Reasoning
o Upheld under rational basis because there was no invidious intent to discriminate against women
o Fiscal stability of program is a legitimate government concern
o Law was not enacted because of disparate impact but in spite of the impact  deferential to legislature
o A State may take one step at a time addressing itself to the phase of the problem that seems most acute to the
legislative mind.
o The legislature may select one phase of one field and apply a remedy there, neglecting the others. (see Lee Optical).
o We’re not talking about distinctions based on sex, but rather based on a physical characteristic.
o The state’s legitimate purpose was to keep expenditures at a certain level, and including pregnancy would jack up
outputs and require higher rates.
71
o Women put 20% into fund; received back 38%.
Though we could argue that the physical characteristic at issue here has the effect of including only one sex, that
would prevent legislatures from doing anything that applied only to one group (which can be reverse engineered, etc.).
o If we look at the effect, rather than the purpose, that could be a very troubling thing.
Brennan, Douglas, Marshall (dissented)
o
Michael M. v. Superior Court (Rehnquist, 1981)
Facts
o CA criminal law punished the male, but not the female, for statutory rape.
o So the disadvantage is placed on men, but not women.
Holding and Reasoning
o Upheld against EP challenge because the law serves a compelling state interest (preventing teenage pregnancies)
and distinction reflects a “real” difference related to that purpose.
o Girls carry more of the burden and are already deterred from sex because pregnancy.
o M/F are not “similarly situated,” therefore differential treatment may not violate EP.
o Encourages women to report violations.
Dissent (Brennan, White, Marshall)
o The majority does not fairly apply Craig.
o The state is unable to demonstrate a substantial relationship between the classification and goal.
o The law is based in female chastity, not in “real differences” to reduce pregnancies.
o Concern: may embed stereotype of vulnerability (like Mueller).
Rostker v. Goldberg (Rehnquist, 1981)
Facts
o The Military Selective Service Act authorized the President to require the registration of males and not females.
o The Purpose of the draft registration was to facilitate any eventual conscription.
Holding and Reasoning
o Applies rational basis in deference to Congress’s expertise in national security
o Men and women are not similarly situated  combat restrictions on women
Dissent (Marshall, Brennan)
o Upholds one of most ancient canards about proper role of women
o No basis for concluding that exclusion is substantially related to achievement of important interest in maintaining an
effective defense
o Registering both would have been just as effective  women can do other things if you don’t want them in combat
Caban v. Mohammaed (Powell, 1979)
Facts
o
A New York law granted the mother but not the father of an illegitimate child the right to block the child’s adoption
by withholding consent.
Holding and Reasoning
o Law is another example of overbroad generalizations in gender-based classifications
o No showing that distinction bears a substantial relationship to State’s interest in promoting adoption of illegitimate
children
o Illegitimate father may have just as good a relationship to child as mother
Dissent (Stevens, Burger, Rehnquist)
o Real differences between male and female during child’s infancy are significant
o Natural differences between unmarried fathers and mothers
Nguyen v. INS (Kennedy, 2001)
Facts
o
Under a federal law, children with citizen-mothers were automatically considered citizens at birth, provided that the
mother met minimal residency requirements.
o Children with citizen-fathers must meet three conditions to be considered citizens at birth
o Establishment of the blood relationship
o Father’s written promise of financial support
o Fulfillment before 18 years of a recognition of paternity
Holding and Reasoning
o Law upheld under intermediate scrutiny
72
Based on significant difference between mother’s and father’s relationships to potential citizen at birth and
substantially related to assuring biological relationship exists
o Mother is present at biological birth, so it’s easier to tell who mother is for citizenship purposes
o Failing to acknowledge differences risks making EP superficial
Dissent (O’Connor, Souter, Ginsburg, Breyer)
o Modern DNA technology makes paternity recognition a virtual certainty, so the law is not narrowly tailored to
the goal of verifying the parent-child biological relationship.
o This law would survive rational basis scrutiny.
o The law was based in a stereotype, the generalization that mothers are more likely to develop caring relationships
with their children.
o Such a claim relies on the “very stereotype the law condemns (see J.E.B.),” “lends credibility to the generalization (see
Hogan), and converts the assumption into a self-fulfilling prophecy.
o
Personnel Administrator of Massachusetts v. Feeney (1979)
Facts
o
Under the law, “all veterans who qualify for state civil service positions must be considered for appointment ahead of
any qualifying nonveterans.”
o Over 98% of the veterans in Massachusetts were male. Only 1.8% were female.
Holding and Reasoning
o The principles of Washington v. Davis and Arlington Heights apply with equal force to a case involving alleged
gender discrimination.
o Is statutory classification neutral (not gender-based)?
o If not, the second question is whether the adverse effect reflects invidious gender-based
discrimination.
o Impact provides an “important starting point” but purposeful discrimination is the condition that
offends the Constitution.
o Serves a legitimate and important purpose
o Preference was not established for the purpose of discriminating against women, and too many men are
affected by the law, so the law is not pretext for discrimination.
o The distinction is between veterans and nonveterans – not between men and women.
o Invidious discrimination does not become less so because it is accomplished of a lesser magnitude.
o Discriminatory purpose implies more than intent as volition or intent as awareness of consequences  implies that
the decision maker selected a particular action because of, not merely in spite of, its adverse effects upon an
identifiable group.
Concurrence (Stevens, White)
o If a classification is not overtly based on gender, the question whether it is covertly gender-based is the same as
the question whether its adverse effects ‘reflect invidious gender-based discrimination.’
Dissent (Marshall, Brennan)
o The law evinces purposeful gender-based discrimination.
o The long history of policies limiting women’s participation in the military underlies that fact.
o Although neutral in form, the statute is anything but neutral.
o Where the foreseeable impact of a facially neutral policy is so disproportionate, the burden should rest on the
State to establish that sex-based considerations are impermissible.
Parental Obligations Cases





Kahn v. Shevin (1974) Applied deferential standard of review to uphold a state property tax exemption for widows
(but not for widowers).
o State law was reasonably designed to further state's legit interest in cushioning financial impact of spousal loss
upon the sex which pays more for such a loss.
Orr v. Orr (1979) Struck down laws allowing AL courts to impose alimony obligations on husbands but not on wives.
o Ends are important, but means are not sufficiently tailored: there are already individualized hearings on each
couple's finances - no need to put burden solely on husbands.
Weinberger v. Wiesenfeld (1975): Invalidated a Social Security provision: if a husband died, benefits were payable
both to the widow and minor children; if a wife died, benefits were payable only to minor children and not the
widower.
Califano v. Goldfarb (1977): Invalidated a gender-based distinction in a federal benefits program which paid
survivors' benefits to widows based on dead husbands' earnings, but would only pay benefits to a widower if he could
prove he was receiving at least one-half his support from his wife.
Califano v. Webster (1977): Female wage earner could exclude three more lower-earnings years than a similarly
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

situated male  resulted in slightly higher level of old-age benefits.
Wengler v. Druggists Mutual Ins. Co. (1980): Struck down MO worker's comp law providing a widow qualified for
death benefits w/o having to prove dependence on her husband's earnings, but a widower was not entitled to death
benefits unless he demonstrated actual dependence or mental/physical incapacity to earn.
Schlesinger v. Ballard (1975): Rejected male officer's challenge to sex distinctions in the Navy's promotion system,
which allowed women a 13-year tenure without promotion prior to discharge, while men were discharged if they had
been twice passed over for promotion, even if less than 13 years.
EP: Suspect Classification and Other Levels
Overview
o
o
o
o
Beyond Two Tiers… The complexity of the notion of equality among diverse groups raises the question of whether
the idea of 2 or 3 discrete tiers of scrutiny is sustainable or normatively appealing.
The attraction of the 2 - Tier approach is that it’s relatively simple  applied by courts around the country.
Nuance is reduced, and there are a series of neutrally reinforcing normative arguments suggesting that race is special
(i.e. historical invidiousness, equal respect and history of subordination, language of the 14 th Amendment, political
imperfections and likelihood that blacks cannot protect their interests, etc.).
But the world is not monochromatic. A variety of distinctions don’t play out like black vs. white.
How to determine “suspect” classifications?
o One approach that was rejected considers the Carolene Factors. (Marshall in San Antonio).
 Provides limited guidance for legislatures.
o INSTEAD  A class is suspect if it does not pertain to legitimate political aims. (White in Cleberne).
o In other words, when a classification so rarely has a rational relationship to legitimate state interests that there
is a presumption of prejudice (ex. race).
Wealth/Economic Status  Rational Basis
o Some argue this is subject to higher level of scrutiny because (a) it’s a proxy for race, (b) poor are excluded from
political process, (c) people are segregated by wealth (limited interaction), (d) immutability (debatable), and (e) history
of discrimination.
o However, this does NOT merit even intermediate scrutiny because economic status (1) is not immutable and (2)
is not stigmatized.
Three Approaches
(1) Powell – suspect classes to ferret out invidious discrimination.
(2) Rehnquist – without suspect class, only total irrationality
(3) Dissent in Cleburne- When you take it all into account (history of hostility, imp. of interest of the state to individual as well
as the social meaning of the exclusion), does it seem sufficiently invidious to make it unconstitutional? Worthy of
suspicion.
SUMMARY/EXAMPLES OF CASES:
In addition to race and sex, the Court has considered other possible classifications based on age, drug dependency, wealth,
citizenship, etc.
o In Graham v. Richardson, the Court held that with the exception of those linked to the community, classifications
based on citizenship should be analyzed with rigid scrutiny when done by states.
o In Frontiero (1973), we get the first heightened scrutiny for sex.
o In Dept. of Agriculture v. Moreno (1973), the Court held that hostility toward a particular group (i.e. “hippies”) is
not a legitimate justification for classification. Hippie-dom is not per se grounds for heightened judicial scrutiny, but
where the record demonstrates that the statute’s purpose is to harm a particular group, that violates EP.
o In Mathews v. Lucas (1976), the Court looked at whether marital status of the parents with regard to children is
legitimate, and the Court held that children don’t have much control over that, it is stigmatized, etc. In general, then,
that calls for heightened scrutiny. Illegitimacy is placed with sex in the heightened scrutiny classification.
o In Massachussetts Bd. Of Ed. V. Murgia (1976), the Court held that age is not something that calls for the same
sort of skepticism, since age has a predictive quality and also a tendency to be able to call forth political allies. So
age doesn’t get heightened scrutiny.
o In NYC Transit Association v. Beezer (1979), the Court held that, notwithstanding the fact that drug users are subject
to hostility, drug use is broadly predictive of some empirical capacities and not an unchosen state in the same
way as sex or marital status is. Therefore, drug dependency is not a suspect classification.
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*So race, sex, citizenship (by states), illegitimacy, and where purpose is to harm, require heightened scrutiny.
Age and Drug dependency do not get heightened scrutiny.*
Wealth and Education
San Antonio Independent School District v. Rodriguez (Powell, 1973)
Facts
o
The tax system in Texas resulted in radical disparities between the amount of educational expenditures in the richest
and poorest districts (sometimes 10:1).
o The classifications were people who live in district A and people who live in district B.
Holding and Reasoning
 Rigid scrutiny not required because no "suspect classification" is affected.
o Three argued classes:
 1. Poor people below some identifiable threshold
 2. Against people who are relatively poorer than others
  First two dismissed b/c there was no data rebutting information showing that poorer
people might live in commercial/industrial areas w/ large local tax bases
 3. Against everyone who happens to reside in a relatively poorer school district
 None of the typical indicia of suspectness: class is large, diverse, and amorphous, no
history of unequal treatment, no political powerlessness
Dissent (Marshall)
o Contextual approach. Analysis of the Court's holdings shows not a binary choice between strict scrutiny and rational basis,
but a spectrum of choices for standard of review. Should gauge invidiousness of wealth classifications by looking at
"importance of interests being affected and the relevance of personal wealth to those interests."
o Classifications based on group wealth are inherently more suspect than those of personal wealth, since the
latter is actually concerned with individual characteristics
o Political processes: Poor districts will face a procedural breakdown when wealthy people try to maintain the
status quo. Looks like reapportionment.
o Level of scrutiny depends on (a) political powerlessness, (b) history of discrimination, (c) stigmatization, (d)
importance of govt interest, (e) immutability, (f) isolation. However, “none are a talisman.”
Mentally Handicapped
City of Cleburne v. Cleburne Living Center (White, 1985)
Facts
o
Zoning ordinance in TX town requires a special permit to operate a "hospital for the feebleminded", but not for
numerous other similar group homes, including nursing homes, dormitories, etc. CLC was denied a zoning permit,
and sued.
Holding and Reasoning
o Using rational basis review, finds zoning ordinance invalid b/c it serves no legitimate interest.
o But under true Lee Optical RB review, probably would pass (implausible, but not irrational)
 Finds community “animus” an improper basis; and flood plain too implausible.
o Not suspect class because legislation passed to protect interest; no history of prejudice (but see Buck v. Bell)
o Should only treat groups as suspect if it’s very unlikely that classification is relevant to classifications: “so
seldom relevant to the achievement of any legitimate state interest that laws grounded in such considerations
are deemed to reflect prejudice and antipathy.”
Concurrence (Stevens)
 Instead of dichotomous approach, court should looks to see whether government was acting in an impartial fashion –
whether animus toward a particular group was the basis for decision-making.
o Given history and reasoning, this case is problematic.
o Return to Yick Wo: Has government acted with an “evil eye and an unequal hand”
o This alternative explains how court actually acts
Concur/Dissent (Marshall)
 Two-part test:
o 1. “Societal Importance of the interest adversely affected”: More skepticism for important life interests
(education in Rodriguez, e.g.).
 Living in a home = substantially important
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2. “Recognized invidiousness” of the classification: Look to history.
 History here is invidious
o  Invidious history + Important interest = More that Lee Optical rationality.
Garrett: REHNQUIST says Cleburne merely stands for the idea that RB review applies to mentally disabled. Return to
bi-modal approach.
o

Sexual Orientation
Romer v. Evans (Kennedy, 1996)
Facts


Aspen, Boulder and Denver enact ordinances banning discrimination against homosexuals.
In response, the state passes an Amendment through referendum that repeals those ordinances, and prohibits all
legislative, executive or judicial action to protect gays.
 CO Supreme Court held it invalid under strict scrutiny, reasoning that it violated EP by infringing right of gays to
participate in the political process.
Holding and Reasoning
 CO amendment violates EP. Uses RB review, and finds amendment too broad to be anything but class
discrimination.
o Two possible approaches:
 1. Sexual orientation is suspect because it’s immutable – and that coupled with history should treat it
as suspect. First step on the way to recognizing homosexuality as a suspect class.  This is not
what KENNEDY says he’s doing.
 2. Court is looking at gestalt and their own sense of the world to conclude this case represents
animus against a group.  But one man’s animus is another man’s family values.
Dissent (Scalia, Thomas, Rehnquist)
o We’re not talking about hostility – we’re talking about a culture debate, where one side won. Coloradans want to
preserve sexual morality, which is part of the traditional police power; disagreement as to what morality means.
o The Constitution doesn’t say that morality does or doesn’t include approbation of same-sex sexual conduct
o Indeed, the Court already held in Bowers, that homosexual conduct was illegal, so to prohibit protections to it is at least
rational.
o Gays are not politically powerless
o Judiciary undermines the democratic process that enacted the amend
o This does not discriminate against gays, it just bars over-protection. All laws in some way preclude a group, they do
not all violate EP.
Lawrence v. Texas (O’Connor’s concurrence, 2003)
o
o
o
o
When a law exhibits such a desire to harm a politically unpopular group, we have applied a more searching form of
rational basis review to strike down such laws under Equal Protection.
Homosexuals are a scrutinized classification. Texas’ sodomy law brands all homosexuals as criminals, making it
more difficult for them to be treated in the same manner as everyone else.
Moral disapproval is not a legitimate state interest to justify by itself a statute that bans homosexual sodomy,
but not heterosexual sodomy. EP
Moral disapproval of homosexuals, like a bare desire to harm, is not a sufficient interest to satisfy rational basis review.
Congressional Power Under Reconstruction Amendments
Historical Background

15th Am passed, followed by a hundred years of Southern attempt to disenfranchise blacks with literacy tests,
grandfather clauses, etc.
 Amendments have enforcement provisions: Idea was that Congress would adopt statutes to enforce 13th (1865); 14th
(1868), and 15th Am.s (1870)
 1875: Congress passes Civil Rights Act to prevent places of public accommodation from discriminating based on race
Ex Parte Virginia (1880)
o Jailed judge for failing to take action based on race under a habeas petition. Applies McCulloch to federal
enforcement powers: any “appropriate” legislation “plainly adapted” to that end is not an infringement on
state sovereignty.
 Broad view of legislative power.
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Civil Rights Cases (1883)
Amendments are only directed towards states – statute that imposes an obligation on private actors not to
discriminate based on race is impermissible. Congress may not prohibit private action unless they are trying
to reach state actors.
1965: Voting Rights Act:
o Identifies series of regions in which exclusionary devices seem particularly efficacious – states w/ literacy,
good character tests, etc., and states where less than 50% registered to vote or where less than 50% voted in
presidential election
o Any change in voting procedures must be approved by justice dept/courts to ensure it does not have an
adverse effect on minorities.
Congress may act prophylactically to prevent violations of Amendments:
o SC v. Katzenbach: Congress can prevent racial violations by sweeping them into prohibitions on behavior
that may not violate the Constitution.
 Std to evaluate statutes is McCulloch: are means plainly adapted to the end
o Katzenbach v. Morgan: Deference to Congressional choice of means. Here, Cong decided that
empowering Puerto Rican community to vote will empower them in the political process, making it less likely
that there will be a violation of Constitutional rights.
 Given Ex Parte Virginia, can do things that exceed Commerce power
 Bypassing limits on CC under New York v. US (no commandeering) and Seminole Tribes v. FL (1996)
prohibiting damage remedies on the states under 11th Amendment?
If Congressional action is prophylactic, reacting to a threatened instead of actual violation, Congress must
act with congruence and proportionality
o City of Boerne: KENNEDY imposes a “congruent and proportional” test for remedies that exceed what
the court has found as violations of Amendments.
 Reasons: Language; history; jealousy (Congress cannot redefine Constitution); risk to federalist
structure
o Test:
 1. Congruence: Must identify what the Constitutional violation is
 Garrett: Construed narrowly – only irrational action is prohibited
 2. Proportionality: Compare scope of prohibited conduct under the statute with the level of
prohibition implicit in the Constitution
 Boerne: RFRA applies to broad swath of actions in order to target a narrow set of
violations AND no history of hidden violations
BUT Congress can still provide a remedy for what the court would consider to be a violation
o US v. Georgia: Clear violation of the 8th Am justifies legislation under §5 of the 14th Am
How much incongruence and disproportionality will court accept?
o Morrison: Discrimination against women seemed congruent, but law was disproportional since it targeted all
private action – maybe justified if only against states.
o Tennessee v. Lane: Congruent – denial of access to courts is a constitutional violation. Also proportional.
 Dissent: Different approach because court only looks at narrow violation (individual) as opposed to
class as a whole.
 Key Distinction: Factual findings/stronger record behind statute
o Hibbs: Congress can cast broader net because violation is broader (Family Medical Leave Act). History of
sex discrimination and unconstitutional state actions – easier to find congruence under heightened scrutiny.
o Northwest Austin Municipal: Dodged question of how test applies to legislation under §2 of 15 th.
  Open question about whether court looks for C/P at time of adoption or time of challenge
(THOMAS prefers the latter)
Congress gets around Boerne by making findings and passing narrower legislation. To insulate legislation
from judicial invalidation, it should tailor legislation to actual threats of constitutional violations, preferably
with specific findings.
o






South Carolina v. Katzenbach (Warren, 1966)
Facts

§5 of the VRA suspended literacy tests for 5 years from last instance of discrimination, and barred any new
standard/practice/procedure with respect to voting pending federal scrutiny.
Holding
 This is a proper exercise of congressional power under §2 of the 15th Amendment.
o McCulloch standard: May use any rational means to effectuate constitutional prohibition of racial
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o
discrimination in voting.
Congress is not limited to prohibiting behavior.
Katzenbach v. Morgan (Brennan, 1966)
Facts

Section 4(e) of the VRA provides that no one who has completed sixth grade in an accredited Puerto Rican school
with non-English language instruction can be denied the right to vote.
Challenged by registered NYC voters b/c it prohibited NY law requiring literacy in English.

Holding
 Under rationality review, this is a proper exercise of powers granted to Congress by §5 of the 14th Amendment (giving
it power to enforce legislation to protect the rights).
o Arg: 4(e) can only be invoked if the judiciary has found the literacy test violates EP.
  Rejected. Would confine legislative power to much.
o § 5 intended to grant powers similar to those under N/P clause - positive grant of legislative power
o Std of Review: McCulloch: "plainly adapted to that end", and consistent with "the letter and spirit of the
Constitution".
 Congress can balance costs/benefits - just need hypothetical rationality.
 Different standard would apply if law denied benefits - then it would be close scrutiny.
 Congress can legislate in a piecemeal fashion - Williamson v. Lee Optical
Dissent (Harlan)
 Thinks there are problems with separation of powers (judicial/legislative) and federalism
o Literacy test serves legitimate state ends - wanting to promote/safeguard the "intelligent use" of the ballot.
o Thinks it is a judicial question whether the condition Congress is dealing with is in truth an infringement of
the Constitution  Court is giving Congress power to define the substantive scope of the 14th Am.
o No findings in this case, whereas the court has previously required findings of discrimination in order to
justify such legislation (Heart of Atlanta; McClung)  No legislative record here.
US v. Guest (Brennan’s concurrence, 1966)
Facts

Issue is 18 USC § 241, which punishes criminal conspiracy to deny a black officer the equal utilization of public
facilities (∂s had already been acquitted of his murder).
Concurrence
 Thinks Congress has power to construe conspiracy statute to cover private conspiracy to interfere with blacks'
enjoyment/use of public facilities - that right is secured by the 14th Amendment, so Congress has the power to
regulate under § 5
o Broad view of § 5 powers.
Rome v. United States (Marshall, 1980)
Facts

Change in city commission elections required preclearance by § 5 of the VRA. AG found no forbidden purpose, but
forbade the provisions based on its harmful effects.
Holding
 Affirmed AG decision - may properly take effect into account.
o Congress may outlaw voting practices that are discriminatory in effect - rational conclusion that this will solve
the problem.
Dissent (Powell)
 Must be in a response to a DCt finding of discrimination
Dissent (Rehnquist)
 Congress should not have the power to determine for itself what conduct violates the Constitution.
 Interfering w/ federalism/judicial powers.
States’ Rights Push Back
City of Boerne v. Flores (Kennedy, 1997)
Facts

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Local zoning board denies a permit to a church.


Challenged under the Religious Freedom Restoration Act.
Act had been passed after Native Americans were denied unemployment for using peyote, and SCt declined to apply a
balancing test from Sherbert.
Congress used RFRA to restore that test, requiring a compelling interest/least restrictive means - applies to federal
governments and states.
Acted under its 14th Amendment enforcement power.

Holding
 Exceeds Congress' power under § 5 of the 14th Am. Congress may go beyond what the court would recognize as a
violation if the prohibition is congruent and proportional to recognized violations.
o Language of Am: Actions “appropriate” to enforce: suggests more than a vague connection required
o Legislative and case history: Judiciary is designated to determine scope of substantive rights
o If Congress could define its own powers by altering 14th Am's meaning, Constitution would no longer be
"superior paramount law, unchangeable by ordinary means" (Marbury)
  Court may be jealous
o Rec. Am.s are more dangerous to federalism than the rest of the Constitution – they modify the preexisting
federal structure.
United States v. Morrison (Rehnquist, 2000)
Facts

Congress passed Violence Against Women Act, providing a federal civil remedy for victims of gender-motivated
violence.
π is a girl who brought a rape claim against to VTech football players, but could not get a remedy from the school.

Holding
 Civil damages provision of VAWA exceed Congress' power under § 5 of the 14th Am.
o 14th Am prohibits only state actions - but this law is exclusively directed against the action of private persons.
o "Congruence and proportionality" test - here, law aimed at individuals. (Fails.) Also doesn't punish guilty
state officials, and applies uniformly across the nation, regardless of whether discrimination actually exists in
all of those states.
Dissent (Breyer)
 Doesn't intrude on States or private parties - just imposes liability for private conduct that is mostly already forbidden.
o Proved at least 21 states had violated - why isn't that enough?
Disability Context




Garrett (2001) (REHNQUIST): Court invalidates Congress' attempt to abrogate sovereign immunity under the 11th
Am. for state-employer violations of Title I of the ADA because it's not within Congress' 14th Am. powers.
o No history of widespread violation of the sort identified in Katzenbach
o Cleburne only prohibits irrational decisionmaking (RB review)
o ADA is overbroad – imposes undue burden on employer
Tennessee v. Lane (2004) (STEVENS): Paraplegic objects to lack of an elevator in a county courthouse (had to crawl
up two flights of stairs). Challenges to Title II of the ADA, which allows suits against states who deny public benefits
to the disabled.
o Identifies a broader set of interests (beyond mere irrational decisionmaking) in accessing courts. Sufficient
connection between requirement of reasonable accommodation and access to courts.
o Looks only at this one part of Title II, not the whole thing – narrower question
o REHNQUIST dissent: Financial considerations provide a rational basis for the state to deny this benefit.
o SCALIA: Regrets agreeing to congruent and proportional test
US v. Georgia (2006): Paraplegic prisoner, in alleging that prison officials had deliberately refused to accommodate his
disability-related needs, had independently stated claims that violated § 1 of the 14th Am, which incorporates 8th Am.
Congress can create remedies for actual violations of the Am.
Nevada Dept. of HR v. Hibbs (2003) (REHNQUIST): Upheld Congress' power to apply the Family Medical Leave
Act to the states under § 5.
o FMLA appropriately tailored to prevent gender discrimination, supported by enough evidence of specific
state violations. “Widespread pattern”; evidence directed against states as opposed to private actors (which
was a problem in Garrett).
Northwest Austin Municipal Utility v. Holder (Roberts, 2009)

Facts: Small utility district challenges Voting Rights Act b/c it’s required to seek preclearance before it can change
79


elections, but it has no history of racial discrimination in voting.
Holding: Avoids constitutional issue on a narrow interpretation of the statute – does not resolve how congruence and
proportionality apply to actions taken under §2 of 15 th Am.
Dissent (THOMAS): Thinks the same approach should apply. Also thinks it should be current congruence and
proportionality, not based on history.
o  Unclear whether court will look for congruence and proportionality at time of adoption, or at time of
challenge
Watch Out, Kids! SDP is Back!
Overview
o
o
o
After Lochner (the fall of SDP when Courts were no longer using SDP to stop legislature from economically regulating
– think Lee Optical and rational basis review), court stopped reading beyond the Constitution’s text under DP.
However, there were exceptions (Rochin, bodily integrity; Carolene Products FN 4), which suggests there are “havens”
where substantive DP is applicable.
The idea is that some interests are so fundamental that they require strict scrutiny.
SDP vs. EP
o
o
Under DP, a law may not take away from ANY PERSON a fundamental right contained within the word “liberty” of
DP clause unless it satisfies strict scrutiny.
Under EP, a law may take away liberty from all persons, but not distribute unequally among persons unless it satisfies
strict scrutiny
History

Calder v. Bull: CHASE finds government founded on some legitimate set of fundamental rights that exist outside
Constitution.


Slaughterhouse Cases: Court read P/I clause narrowly to preclude recognition of extra-textual right to practice a
profession of choice.
Lochner: Protection of property against broad redistributionary goal requires justification beyond having some
conceivable relationship to a public goal.
o Holmes: Why did court choose property rights over redistribution? Should be for legislature to decide.
Liberty includes right of polity to decide for itself.
Court Retains SDP in a few areas:



80
1. Whether Bill of Rights is applicable to states
o Court asks whether particular provision is “implicit in the concept of ordered liberty”; so deeply rooted in
history and tradition as to be fundamental
  Virtually every element of BoR applies to states as well as fedgov (court considering 2d Am this
term)
2. Extratextual Rights
o Rochin (1952) Possibility of seeing bodily integrity as a “fundamental right” applied to states through 14 th
Am DP clause.
 Bodily integrity required stronger justification than RB
o Cruzan (1995) Impingements on right to refuse unwanted medical treatment must be justified by something
stronger that RB
o Glucksberg (1997) Analysis references history/traditions of American polity (right to suicide)
3. Family Autonomy/Privacy (marriage and raising children)
o Pierce/Meyer (1923/25): Fundamental right to raise/educate children
 1. Right to provide education to children is crucial to “dignity” of citizen
 2. More protection warranted when political process is at issue.
o  Consistent with Lochner; cases build on this even after demise of Lochner era. State cannot interfere with
child-raising or marriage without more than RB justification.
 Loving v. VA: No state ban on interracial marriage. Not fundamental at time of Am’s adoption, but
had become deeply rooted
 Moore: Struck down prohibition on groups which can be deemed families for zoning purposes.
 Zablocki: Strikes down requirement to pay child support before marrying
 Turner v. Safley: No prison super approval before marriage.
o
 Michael H: Does not extend to biological parent of a child born to an intact marriage.
Contraception/Procreation:
 Skinner: Fundamental interest in procreation – forced sterilization of those convicted of petty
crimes is impermissible. Also worried about eugenics.
 Notions of equality as an aspiration, and individual dignity
 Griswold: Struck down law banning the use of contraceptives b/c of its intrusion into “sacred”
right of marriage. Douglas found SDP in emanations/penumbras from other amendments.
Where should court look to intervene?







DOUGLAS: Written Constitution – penumbras/emanations. Similar to Lochner.
WHITE: No legitimate purpose for state. Difference between econ and personal rights.
GOLDBERG/WARREN/BRENNAN: 9th Am points to extratextual rights (language from incorporation cases)
HARLAN: Liberty as rational continuum; Judges must examine tradition as a living thing – look at what has been
affirmed, but also what has been rejected.
 Right is not absolute.
o Eisenstadt: Court moves from arguments about tradition to arguments about core areas of autonomy –
decision to bear/beget a child is in that area; requires strict scrutiny.
o Carey v. Population Services (1977): Result from Eisenstadt. Struck down NY prohibition on the
sale/distribution of contraceptives to minors.
 Brennan: Strict scrutiny to all things relating to childbearing.
Abortion/Reproductive Freedom:
o Roe v. Wade: Court draws line at viability and between trimesters – seems kind of arbitrary.
Contemporaneous std of review for gender discrimination = less than strict in ’73.
 Ongoing Dissents:
 1. No text addressing a claim of reproductive autonomy or the magnitude of weight the
state may place on the life of an unborn child
 2. Scant evidence of this right in tradition of amendments/Const
 3. Matter of serious moral debate – which are typically left to the states/legislature to
decide.
o Glucksberg; Gonzales v. Oregon  In tension
o Post-Roe: Criminal prohibitions problematic; minor consent/notification of parents if also judicial bypass; no
husband consent provision; 24-hour waiting provisions/mandatory hospital stays = problematic
o Casey: State may adopt regime to persuade, but not mandate, that women not obtain abortions. Test is if it
imposes an undue burden on women seeking abortions:
 1. Purpose of statute?
 2. Practical effect of statute? To what degree does it affect choice?
o Stenberg v. Carhart: Struck down ban on partial-birth abortion with no exception fo r health of the mother.
Substantial burden b/c it effectively prohibited late-term abortion and prohibited doctors from determining
what was in patients’ best interest.
o Gonzales v. Carhart: Kennedy upholds law prohibiting intact D&E without a health exception – purpose is
not impediment but moral repugnance, and medical uncertainty means that Congress can conclude there is
no increased risk.
  Seems to dismantle purpose prong: If moral repugnance is enough, then since most procedures
could be morally repugnant. All that remains is imposition of a substantial burden.
Sexual Freedom?
o Bowers: No liberty right to engage in sodomy under history/traditions.
o Lawrence: Extends right of liberty in 14th Amendment to cover consensual homosexual conduct.
Confirmed that laws and traditions afford constitutional protections to personal decisions involving human
dignity and autonomy.
Right to Educate Children
Meyer v. State of Nebraska (McReynolds, 1923)
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Facts: NB statute makes it illegal to teach non-archaic languages to students who have not finished the eighth grade.
Plaintiff is convicted for teaching reading German to a student who had not finished the eighth grade.
Holding (MCREYNOLDS) Statute violates liberty guaranteed by 14th Am.
o Liberty defined: Not specifically enumerated in constitution, but draw from common law - Slaugherhouse,
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Lochner, etc. Freedom to contract etc.
Ends here: Promote civic development; make English the "mother tongue"; allow children to become full
citizens and protect public safety.
o McCulloch standard: This violates "letter and spirit" of the Constitution by violating fundamental right to
determine children's education.
Education as a fundamental right:
o Individual Dignity: Republic founded on sphere of private action immune from state interference
o Democracy: Government should not be able to standardize the populace – democracy can’t work if the
state shapes the values/aspirations of the electorate  State becomes self-perpetuating.
 State requires individuals to shape it.
Dissent (HOLMES): Alternate test: Considering the end in view, does the statue pass the bounds of reason and
become purely arbitrary?
o Thinks it does not. State may reasonably conclude that children who speak foreign languages at home should
only speak English in school.
o
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Pierce Sisters v. Hill Military Academy (McReynolds, 1925)
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Facts: Oregon law makes attending public schools compulsory for all residents between 8 and 16. Practical result will
be to close all private schools.
Holding: This violates DP by interfering with liberty.
Reasoning (MCREYNOLDS): State does not have general power to force children to accept instruction from public
teachers only - child is not the "mere creature of the state"
Family and Fundamental Rights
Loving v. Virginia (1967)
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WARREN: Strikes down interracial marriage bans on EP grounds, but also offers alternative holding based on DP.
Freedom to marry is a fundamental right.
Zablocki v. Redhail (Marshall, 1978)
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Facts: WI makes it impossible to get a marriage license if you owe child support or have an illegitimate child receiving
public welfare benefits. π denied license b/c he owes child support, and his kid is getting AFDC $.
Holding (MARSHALL): Unconstitutional, mostly on EP, but also by SDP Same level of importance as procreation
and childbirth - arise out of right to marry.
Dissent (REHNQUIST): Thinks it passes RB, Lee Optical review.
Turner v. Safley (O’Connor, 1987) Extends Zablocki
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Facts: Prison regulation forbade inmates from marrying absent superintendent's approval based on "compelling
reasons" like pregnancy or birth.
Holding (SDO): Despite constraints, still a right to marry while incarcerated.
Moore v. East Cleveland (Powell, 1977)
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Facts: Zoning ordinance defined "family" narrowly, to only allow nuclear families to live together. Prohibited
grandmother with two grandchildren, who were cousins, from living together.
Holding (POWELL): Invalid - Meyer/Pierce apply to extended family as well as nuclear
o State is asking them to draw an arbitrary line at nuclear - and they won't do it. Cites Harlan in Griswold and
relies on principles underlying liberty. Tradition is more flexible - Const. does not allow Cleveland to
standardize family patterns.
Belle Terre v. Boraas (1974)
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No privacy rights in a family-oriented zoning restriction excluding most unrelated groups from a village.
o Distinguished in Moore b/c it only affected unrelated groups. Court draws a line based on blood ties.
Troxel v. Granville (O’Connor, 2000)
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Facts: State court granting grandparents to their grandchildren over the objections of their "fit" mother violated
mother's DP rights.
Holding (SDO): 14 Am protects fundamental right of parents to make decisions about their children. State can't
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infringe on this b/c they think their view is "better".
Dissent (STEVENS): Parental interest is not a universal constitutional shield - child also has interests, and family
courts should be allowed to figure those out.
Dissent (SCALIA): No unenumerated rights at all.
Michael H. v. Gerald D.
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Facts: CA law makes a child the presumptive child of a father if parents are married. Here, MH's paternity had been
established to 98% certainty, but he was denied visitation rights.
Holding: Upheld judgment, but no majority opinion.
SCALIA: Center of analysis was historical aspect - sanctity accorded relationships within unitary family.
o Footnote: Distinguished between specific traditions (as here) and general traditions (less acceptable). 
Rejected by SDO and Kennedy
Dissent (BRENNAN): Tradition is just as malleable as liberty. If court had taken tradition so seriously, decisions in
Griswold and Eisenstadt would have been different.
o Majority is ignoring reality of DNA tests.
o Tolerance is the key in our facilitative, pluralistic society - need to tolerate others' idiosyncracies
o Thinks Constitution is not stagnant, but a "living charter" - should change with times.
Right to Privacy: Contraception and Reproduction
Skinner v. Oklahoma (Douglas, 1942)
Facts
o
Oklahoma's Habitual Criminal Sterilization Act sterilizes "habitual criminals" (those who have been convicted of two
or more felonies involving "moral turpitude").
o There is a trial process available, but the issues considered are narrow - if the ∂ is a habitual criminal, and if they can be
sterilized without detriment to their general health, they should be sterilized.
o But offenses like embezzlement and political offenses are excluded.
o Specific ∂ was convicted for stealing chickens, and robbery with firearms.
Holding and Reasoning
o Majority strikes this down under EP because similarly situated individuals (embezzlers and robbers) are treated
differently without any legitimate justification.
o Sterilization is fundamental:
 Related to human dignity
 Worried about eugenics/getting too close to Nazism
o Problem is disproportion - embezzler could steal thousands and not be sterilized, while a robber could steal
$20 and be sterilized.
o Strict scrutiny is warranted because of the fundamental interest at stake - marriage and procreation. Also
risks giving majority power to exterminate an unpopular race, and no chance for redemption since procedure
is permanent.
o But doesn't say that sterilization is per se invalid - distinguishes Buck v. Bell because it allowed people who
would otherwise have to be confined to go free.
Concurrence (Stone)
o State can sterilize if there are adequate DP controls
Griswold v. Connecticut (Douglas, 1965)
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Facts: CT law makes it a crime to use contraceptives. Plaintiffs were convicted as accessories to that crime.
Holding (DOUGLAS): Violates 14th Amendment – right to privacy as part of penumbras/emanations from other
Amendments. Right to marriage is “sacred” – this restriction is far to broad.
o Responding to Holmes’ challenge in Lochner – points to textual evidence of fundamental rights being
protected
Concurs (HARLAN): Court should look to “basic values implicit in the concept of ordered liberty” (from Rochin and
incorporation cases). Should interpret through principles and history.
o Tradition is a living thing: Look to modern society to see if this is important.
o Liberty is a continuum rather than series of isolated points.
o Approach seems novel – experiment at the expense of fundamental rights
Concurs (WHITE): Scope is too broad – purpose of prohibiting illicit sexual relationships seems far-fetched.
Dissent (BLACK): Court can use "privacy" to expand/contract constitutional rights. Court is using a natural rights
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analysis - privacy is merely a pretext for stepping into legislative sphere. Impermissible.
Dissent (STEWART): Law may be asinine - but court's role is not to determine whether it's asinine or legitimate. Just
to determine constitutional validity - and it is. Ninth Am had no bearing on this. No general right to privacy.
Where should court look to intervene?
 DOUGLAS: Written Constitution – penumbras/emanations. Similar to Lochner.
 WHITE: No legitimate purpose for state. Difference between econ and personal rights.
 GOLDBERG/WARREN/BRENNAN: 9th Am points to extratextual rights (language from incorporation cases)
 HARLAN: Liberty as rational continuum; Judges must examine tradition as a living thing – look at what has been
affirmed, but also what has been rejected.
  Right is not absolute.
Eisenstadt v. Baird (1972)
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Court overturned a conviction under a law banning the distribution of contraceptives. Used in Roe to extend privacy.
Moves from arguments about tradition to arguments about core areas of autonomy: Decision to bear/beget a child is a
fundamental right that requires strict scrutiny
…Leads to 
Carey v. Population Services (1977)
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Struck down NY prohibition of the sale/distribution of contraceptives to minors under 16 (plurality).
Strict scrutiny in all things relating to childbearing (BRENNAN). Discouraging sexual activity among minors is not a
"significant" interest.
o  Still good law.
Right to Privacy: Abortion and Reproductive Decisions
Roe v. Wade (Blackmun, 1973)
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Holding (BLACKMUN): You know this one. Come on. Line-drawing problem:
 First trimester: Abortion decisions solely in the hands of the mother. State may require woman to
consult with medical professional.
 After the end of that trimester: State may regulate abortion procedure in ways "reasonably related to
maternal health."
 After viability: State my regulate and proscribe abortion except where medically necessary to
preserve the health of the mother.
o Finds right to privacy in 14th Amendment DP clause
 Right is NOT ABSOLUTE: still a role for state regulation
o Is fetus a "person"? (TX argues)
 Court claims it's not resolving it - but thinks Const. "person" refers to post-natal people
o State interest: Two: (1) Preserving health of mother; and (2) Protecting potentiality of human life.
  But they must be compelling, and don't become so until end of first trimester/viability
Concurs (STEWART): Reads this as affirming Griswold as an SDP decision.
Dissent (WHITE) Court is overreaching - takes balancing of interests out of the hands of the legislature, where it
belongs
Dissent (REHNQUIST): Acknowledges liberty right, but thinks DP protection only requires RB review - and this
meets that. No need to strike down everything the court does.
o If choice is life vs. life, then it seems like woman could win...but if choice is between life and bodily integrity,
how can court draw that line?
Post-Roe Cases
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Doe v. Bolton (1977): Statutes requiring two doctors consults, or hospital committee approval, also require strict
scrutiny
Danforth (1976): No compelling interest in husband’s veto – provision that women obtain husband’s consent before
getting abortion requires strict scrutiny
Akron I (1983): Invalidated requirement that abortions performed after first trimester be performed in a hospital
rather than outpatient facilities; 24-hour waiting periods; disclosures designed to discourage - significant obstacle to
women seeking abortions
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Planned Parenthood of Missouri v. Danforth (1976): Struck down law requiring husband's written consent.
Minors’ Decisions to have Abortions
 Consent/Notice appropriate as long as there is judicial bypass:
 Bellotti II (1979): Parental consent provisions are ok as long as they also provide for judicial bypass.
o Parental notice provisions are ok.
Funding Decisions: No strict scrutiny (no undue burden)
 Maher v. Roe (1977): Upheld restrictions on public subsidies for abortion - funding restrictions are ok.
o State may make value judgment between abortion an childbirth, and may make childbirth more attractive
o Basic difference between direct state interference with a protected activity and state encouragement of an
alternative activity  Much broader power to encourage actions in the public interest
 Harris v. McRae (1980): Federal funding restrictions barring payments even for most medically necessary abortions
are ok (goes further than Maher)
o Right to abortion does not confer entitlement to government funds to sponsor it
o Brennan: Court ignores govt's unequal treatment of abortion and childbirth
 Rust v. Sullivan (1991): Upholds restriction on abortion counseling by any project receiving federal family planning
funds
o DP clause has no affirmative right to government aid
o Blackmun: This is a significant obstacle, b/c woman will believe physician. Denying right to voluntarily
decide their destiny.
 Webster v. Reproductive Health Services (1989): Upheld MO law barring state employees from performing
abortions and use of public facilities for abortions, even if patient paid for herself.
Planned Parenthood of Southeastern PA v. Casey (O’Connor, 1992)
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Facts: PA laid groundwork for SCt to overturn some or all of Roe:
o 1. Required colloquy between woman and doctor w/ various disclosures and alternatives
  Invalidated by court in Akron II
o 2. 24-hour waiting period – required two visits, often long trips
  Invalidated in Akron II
o 3. Woman must notify husband prior to abortion
  Not yet addressed. Danforth addressed consent requirement.
Holding (SDO): Reaffirms Roe. Imposes undue burden test: State regulations for abortion are valid UNLESS it has
"the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable
fetus".
o Goes further than Roe – reaffirms line of cases recognizing importance of bodily integrity as an element of
constitutionally protected liberty. (Griswold, Eisenstadt, Carey)
  Recognizes fabric of liberty, of which decision to terminate pregnancy is a part
o Reaffirms line of viability
o But before viability, recognizes role for state’s moral preferences, even if not related to health of the woman
 State may adopt a regiem to persuade, but not mandate that women seek abortions as long as it does not
impose undue burden
 Test:
 1. Purpose of statute?
 2. Practical effect of statute? To what degree does it affect choice?
  Upholds all but the husband-notification provision
o Judicial legitimacy argument – need to uphold Roe to keep legit. Also reliance on Roe.
Dissent (SCALIA): Angry. Would apply RB and find this constitutional – court should never have gotten involved.
Stenberg v. Carhart (Breyer, 2000)
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Struck down NB statute prohibition late term D&X (dilation and extraction) w/o providing for exceptions to preserve
the mother's health.
BREYER: Statute could also be read to prohibit D&E (dilation and evacuation), which are more universally OK.
Undue burden by increasing risk of prosecution.
 Effectively prohibited all late-term abortion: Substantial burden.
 Prohibited doctors from deciding what was in their patients’ best interests b/c intact was safer.
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Ayotte v. Planned Parenthood of Northern New England (2006)
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Remanded for lower courts' consideration of a more modest remedy for a state abortion law that would have been
unconstitutional since it lacked an exception for the health of the mother.
 Need not declare the whole statute invalid
Gonzales v. Carhart (Kennedy, 2007)
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Facts: In response to Stenberg, Congress passes the Partial Birth Abortion Ban Act, which bans partial birth abortions
in very specific terms (to make sure that D&E is not implicated). No "health of the mother" exception.
Holding (KENNEDY): Intact procedure is never medically necessary, and is morally repugnant. No undue burden,
narrowly tailored...constitutional. (WTF!!!!) Leaves open possibility for as-applied challenge.
o Purpose: Vindicates Congress’ ethical repulsion re: infanticide; public’s view of the role of doctors; and
worries about women’s regrets. Moral purpose separate from interfering with abortion.
  Dismantles purpose prong: If moral repugnance is enough, what isn’t?
o Effect: Medical uncertainty regarding health risks, so Congress can conclude that there is no increased risk.
o Distinguishes Stenberg because of specific language.
 Encouraged states to test the boundaries, and they are.
Congress passes this under Commerce Clause power – THOMAS indicates he might be receptive to this challenge
Fundamental Right to Sexual Freedom?
Bowers v. Hardwick (White, 1986)
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Facts: Plaintiff charged with violating Georgia sodomy law.
Holding (WHITE): No fundamental right to engage in sodomy under history, or traditions of liberty.
o No connection to other SDP cases (family, marriage, procreation)
o Typically criminalized throughout history
o No creation of new fundamental rights
Dissent (BLACKMUN): Not about fundamental right to engage in sodomy, but right to be left alone. Immorality is
not a sufficient reason for upholding a law.
Lawrence v. Texas (Kennedy, 2003)
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Facts: TX law banned sodomy between persons of the same sex. Police show up to plaintiffs’ house, find him having
sex with a male partner, and charge them under the law.
Holding (KENNEDY): Citing Griswold, Eisenstadt, Roe, and Casey, court extends right of liberty in 14th Amendment to
consensual homosexual conduct. Protects choices central to personal dignity and autonomy.
o Washington v. Glucksberg: Tells court to look to tradition to determine if a right is fundamental. Standard
approach is to ask if there was a protection for this type of right at the time of the Framing. Court handles
this by:
 Living Constitution: Tradition as evolution
 Last 50 years – repeal of criminal penalties and state SCt decisions
 Tapestry of protection evolves with the SCt and with the tapestry evolved by state courts – to establish a right that was not
there before
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