Con Law

The Structure and Powers of Government ..................................................................................2

Federal Legislative Power in the 20th Century ............................................................................3
The Rights of Individuals and Minority Groups ...........................................................................4

The Structure and Powers of Government

Judicial Review
Marbury v. Madison (1803): the role of the court is to ensure that government action remains within the
constitution. If an enlargement of power contradicts what the constitution says explicitly, the SC must strike it
down.
Martin v. Hunters Lessee (1816) the SC has appellate jurisdiction to review the decisions of state courts
Federal Legislative Power
Antebellum Federalism
McCulloch v. Maryland (1819) Congress has the power to enact necessary and proper legislation to
pursue its enumerated ends. The court can ensure that a state government does not overstep its grounds.
(here by taxing the federal bank)
Gibbons v. Odgen (1824) Federal law is supreme when laws conflict, especially wrt interstate commerce.
(steamboats)
Mayor of City of New York v. Miln (1837) States can use their police power to legislate over persons and
things within its territory.
Cooley v. Board of Wardens (1851) States can legislate on local concerns or if Congress has given the
power to regulate. (ship pilot)
Constitutional Interpretation Outside the Court
sedition acts

sedition acts
Louisiana purchase: to lose our country by a scrupulous adherence to the written law, would be to lose the
law itself, with life, liberty, property and all those who are enjoying them with us; thus absurdly sacrificing the
end to the means
signing statements:
the President should presume that enactments are constitutional should construe bills to avoid
constitutional problems
Defining the Constitutional Community
Slavery and Secession
Dred Scott v. Sandford:(1857) anticanon : bad account of race, got history wrong, was judicial
overreaching? Relied on what the founders believed? Territory/Federalism
Fredrick Douglas: different textual account arguing that slavery is not favored in the constitution
Reconstruction
Slaughterhouse Cases (1873) Privileges and Immunities- did not extend to butchers- 14th amendment only
applies to you as a federal citizen. The amendments created a narrow set of protections stemming from
federal citizenship.
Bradwell v. Illinois (1874) Right to labor not covered under P&I, doesnt apply to women?
Minor v. Happersett (1874) 14th Amend. didnt create universal suffrage
Strauder v. West Viginia (1880) unconstitutional to exclude black people from juries- a civil right goes for
both a classification and a subordination theory for harm
Plessy v. Ferguson (1896) anticanon sets out separate but equal for social rights: requires subordination
and not mere regulation. Early RBR. live of fixing the brand on themselves
State Action and Incorporation
Civil Rights Cases (1883) There must be state action to bring 14th Amend. claim/ the legislation must be
corrective in nature.

Civil Rights Cases (1883) There must be state action to bring 14th Amend. claim/ the legislation must be
corrective in nature.
Shelley v. Kramer (1948) enforcing private discrimination can be a form of state action (restrictive covenant
case) VERY LIMITED TO ITS FACTS
Burton v. Wilmington Parking Authority (1961) State action in land ownership and in inaction to stop
discrimination. Not widely followed.
Defining the Borders of our Constitutional Community
Reyonlds v. United States (1878) no 1st Amend. right to polygamy
Chae Chae Ping (1889) Congress has power over immigration exclusion policy- can kick people out
Downes v. Bidwell (1901) the constitution does not fully extend to territories like Puerto Rico. Whiteincorporated v. unincorporated?

Federal Legislative Power in the 20th Century

Commerce Clause + DPC: The Lochner Era
Commerce Clause
Champion v. Ames (1903)- Congress can regulate lottery tickets- are contracts part of commerce? is this
supplemental or coercive?
Hammer v. Dagenhart (1918) Congress must act with commerce in mind as an end. Congress cannot exert
its power as to a purely local matter. (child labor)
Due Process Clause
Lochner v. New York (1905) anticanon setting a maximum hours law violated the right to contract under
the DPC.
Whats wrong: created rights, ignored valid legislative info (Harlan), assumed a particular economic
theory (Holmes), class legislation of the 14th amend.?
Muller v. Oregon (1908) maximum hours law for women was upheld: early real differences?
Adkins v. Childrens Hospital (1923) no minimum wage law for women due to equal treatment after the 19th
Amend.
Commerce Clause: New Deal Era
Commerce Clause
NLRB v. Jones & McLaughlin Steel (1937) National Labor Relations Act was constitutional- the law
prevented industrial strife and had a close and substantial relation

NLRB v. Jones & McLaughlin Steel (1937) National Labor Relations Act was constitutional- the law
prevented industrial strife and had a close and substantial relation
US v. Darby (1941) upholds the Fair Labor Standards Act under public policy and commerce? it was
appropriate means to the attainment of a legitimate end- was concerned with unfair competition.
Wickard v. Filburn (1942) sets out aggregation principle: the aggregate effect would be significant so the
agricultural adjustment act was constitutional
Due Process Clause
Home Buidling & Loan Assoc. v. Blaisdell (1934) follows legitimate endreasonable and appropriate
measures test. Upheld.
West Coast Hotel Co. v. Parrish (1937) special protection via minimum wage law for women (following
Muller)
Second Reconstruction to the Rehnquist Era
US v. Carolene Products (1938) filled milk act passed under CC- followed legislative findings
fn 4: look closer at laws that restrict political process and impact discrete and insular minorities
Williamson v. Lee Optical Co. (1955) applies deference to the state legislature applying a minimal rationality
test- if any answer can be given
Heart of Atlanta Motel v. US (1964) Title II of Civil Rights Act is OK- sufficient link to interstate commerce
Katzenbach v. McClung (1964) applies the aggregation principle from Wickard to find that the restaurant on a
state highway could not discriminate based on race
Rehnquist Revolution/Contemporary Issues
US v. Lopez (1995) Gun-Free Schools Act unconstitutional: Congress does not fit the commerce clause.
New test: must have an economic activity that substantially affects interstate commerce
(1) Channels of Interstate Commerce (hotels, roads, malls)
(2) Instrumentalities of Interstate commerce
(3) economic activities that substantially relate to interestate commerce
guns are not economic in the way wheat is
brings up federalism concerns: who should voters hold responsible

brings up federalism concerns: who should voters hold responsible

is it Lochner-like? (struck down legislation)
US v. Morrison (1995) violence against women not seen as substantially affecting commerce despite
legislative findings. Brings up the local nature of DV. well researched like Lochner.
Raich v. Gonzalez (2005) Congress had the ability to legislate against home-growing marijuana- applies a
Wickard like aggregation argument. Also points out that there is a larger regulatory scheme in place.
(OConnor irony concerns)
Federalism Concerns
Garcia v. San Antonio Metropolitan Transit Authority (1985) Congress can impose a federal minimum wage
on the San An MTA: points that the political process protects the states
Gregory v. Ashcroft (1991) fed law must clearly and unambiguously apply to states if it wants it to apply
to states
New York v. United States (1991) Congress cannot commandeer states. Upheld monetary and access
incentives, but disallowed the take title provision. State sovereignty is not just an end in itself: rather
federalism secures to citizens the liberties that derive from the diffusion of sovereign power. Congress
power cannot be expanded by consent.
Printz v. United States (1997) Congress cannot commandeer state officials to conduct background
checks on handgun purchasers as part of the 93 Brady Handgun Violence Prevention Act. Congress can
regulate individuals but not state action- were they trying to circumvent that through state actors? Stevens:
would they need to create an entire regulatory scheme as in Raich?
South Dakota v. Dole (1987) - spending power funds for highway can be related to the drinking age. Can do
this but it must:
(1) be in pursuit of the general welfare (2) be done unambiguously (3) must not violate other provisions and
(4) must be related to a federal interest generally
the spending power has greater reach than the commerce clause

the spending power has greater reach than the commerce clause
US v. Comstock (2010) - sex offender commitment- applies a means end test- continues the application of a
means that is rationally related to the implementation of a constitutionally enumerated power (NP) can
criminalize conduct that might interfere with the exercise of an enumerated power
NFIB v. Sebelius (2012) The Health Care Cases
The Mandate- Three Hooks:
Commerce Clause: Roberts has problems with a line drawing problem (broccoli). He also think that the
mandate acts on inaction rather than action which is absurd.
Necessary and Proper: this is necessary but not proper- Roberts calls it an usurpation. In order for this to
be proper it would need to go to an existing federal power or federal action: no such action presently
exists.
Taxing Power: Not a tax for the purpose of the anti-injunction act (congressional avoidance?) but it is a
tax for the purposes of legislation. Similar to other taxes that we use to influence behavior. The
difference is between a mandate (improper commerce clause power) and incentives (proper use of
spending power incentives.
The Funding Portion/Medicaid Expansion
differs from Dole: the amount of money at stake is much greater. The states must be free to turn the
contract down- here the states had no real ability to turn down the foundering and therefore were
coerced into it- taking away existing funding was a bridge too far
Ginsburg: points out that the law could be repealed and this new law could be passed in its place and
there would be no basis for existing funding, therefore basing an argument on existing funding is
dubious.
Separation of Powers: Powers in Time of War
Curtiss-Wright Export Corp v. US (1936) the president has limited powers in domestic affairs, but the President
is the sole organ of eternal relations.

Curtiss-Wright Export Corp v. US (1936) the president has limited powers in domestic affairs, but the President
is the sole organ of eternal relations.
Youngstown Sheet and Tube Co. v. Sawyer (1952) Truman did not have the power to seize steel mills. - That
power needed to come from an act of Congress or the constitution. He cannot make domestic laws.
Jacksons Zones:
1. when the president acts pursuant to an express or implied authorization, his authority is at its
maximum and deserves extreme judicial deference
2. when the president acts in absence of either a congressional grant or denial of authority, we dont
know how powerful the executive is
3. when the president takes measures incompatible with the expressed or implied will of Congress, his
powers are at their lowest
Dames & Moore v. Regan (1981) -the court read silence as allowance- allowed Carter to freeze Iranian assets
and Reagan to suspend court claims- did this move cat. 2 to cat 1? At the very least the court can infer from
other things to move something to cat. 1.
Hamdi v. Rumsfeld (2004) the govt can detain citizens as enemy combatants, but they owe detainees due
process to be able to challenge their status as detainees. Applied a Matthews v. Eldridge balancing test to
balance the interests of the parties. under I; 9; 2 he was owed habeas corpus.
Boumediene v. Bush (2008) explicitly sets out a constitutional right to habeas for non-citizens at guantanamo.
Detainee Treatment Act lead to the MCA (military commission act)
Sovereignty: we do not question the govts position that Cuba not the US maintains sovereignty, in the legal
and technical sense over Guantanamo Bay, but the US maintains de facto sovereignty over the territory.
Congress needs to either suspend the writ or create a truly adequate substitute
this should be zone one, but it is unconstitutional: why?

The Rights of Individuals and Minority Groups

Defining Equality:
The End of Separate But Equal
Brown v. Board of Education (1954) separate but equal is not equal. -History can be inconclusive when we
live in a changed world. Major critique- too much sociology, not enough law?
Bolling v. Sharpe (1954) Brown in DC (federal) reverse incorporation: incorporate equal protection of 14
into 5 amend due process- arbitrary deprivation of liberty in violation of due process
Cooper v. Aaron (1958) desgregated Little Rock
Green v. New Kent County School Board (1968) freedom of choice is insufficient- 85% were still in black
school- state action deemed insufficient. De facto/de jure separation.
Swann v. Charlotte-Mecklenburg (1971) court can enter in to redraw school districts as the city defaulted
Keyes v. School District No. 1 (1973) segregation in one area of a district was enough to show problems/
created burden shifting
Miliken v. Bradley (1974) no evidence of race-dependent action- SC struck down the district court decision
as there was no state action- the violation is just choosing to live in a predominately white neighborhood.
Marshall dissent: state created a system
Missouri v. Jenkins (1995) reads Brown as remedying past de jure segregation. Could not create magnet
schools to attract white students. Thomas- it never cease to amaze me that the courts are so willing to
assume that anything that it is predominately black must be inferior -takes a classification view as what
was wrong prior to Brown

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Missouri v. Jenkins (1995) reads Brown as remedying past de jure segregation. Could not create magnet
schools to attract white students. Thomas- it never cease to amaze me that the courts are so willing to
assume that anything that it is predominately black must be inferior -takes a classification view as what
was wrong prior to Brown
Suspect Classifications: Race and Strict Scrutiny
Korematsu v. US (1944) anticanon legal restrictions based on race are immediately suspect, but upheld
the order anyway. Basis for SS, but doesnt really
McLaughlin v. Florida (1964) EPC violation in that there was a different burden of proof for fornication for
interracial couples. Applied SS.
Loving v. Virginia (1964) Applied SS, law violated EPC applied to the group of couples, not to individuals,
and under DPC that marriage is one of the vital personal rights essential to the orderly pursuit of happiness
by free men.
Palmore v. Sidoti (1984) SS applied in custody setting for mixed race family- EPC interest in ensuring what
is best for the child
Morales v. Daley (2000)
Johnson v. California (2004) temporary cell mates assigned by race- rejected a relaxed standard for
penological situations and applied SS
Disparate Impact
Griggs v. Duke Power Co. NOT A CON LAW CASE.- test neural on its face could not be maintained as there
was disparate impact
Washington v. Davis - (police test) no disparate impact in con law- you must show an intent or purpose.
Rests on formal equality.
Yick Wo - no classification, but the impact was so extreme that it had implied intent
Arlington Heights: (1977) discrimination must be the motivating factor, not merely discriminatory effect:
looks to impact, history, the specific sequence of events, departures from procedure and the
legislative history
Hunter v. Underwood (1985) Davis applied to a law from 1901 with a clear discriminatory purpose.
McClesky v. Kemp (1987) capital punishment- study did not demonstrate a constitutionally significant risk
of racial bias couple with Yick Wo?

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McClesky v. Kemp (1987) capital punishment- study did not demonstrate a constitutionally significant risk
of racial bias couple with Yick Wo?
Affirmative Action
Regents of the Uni of California v. Bakke (1978) SS applied to UC Davis Med School AA programcompelling interest narrowly tailored to a legitimate end sets out diversity as a compelling state interest
City of Richmond v. JA Croson Co. (1989) Minority owned business case- violated the EPC as it treated
individuals differently on the basis of race- state must be a participant to remedy past action.
Adarand Constructors v. Pena (1995) Fed racial classification also subject to SS- everything is SS if it
facially discriminates
Grutter v. Bollinger (2003) Law School- holistic approach is OK-holistic approach to construct a critical
mass of minority students- must be a compelling state interest which is narrowly tailored -also defers to
educators assessment of the means
Gratz v. Bollinger (2003) undergrad- not OK- points are too formulaic and dont allow for individual
assessment. a quote is never narrowly tailored
Parents Involvedv. Seattle (2007) policies struck down: remedying de jure discrimination is legitimate,
diversity/de fact discrimination is not sufficient- reads Brown as about formal equality and as focused
against classification. Roberts- the way to stop discrimination on the basis of race is to stop discriminating
on the basis of race Breyer questions the divide. Kennedy- points out that colorblindness is aspirationalpoints to dignity concerns- cant be forced to live under a state-mandated racial label- dont reduce
children to racial chits valued and traded
Ricci v. DeStafano (2009)NOT CON LAW- Title VII- disparate impact is a violation- catch 22 testFisher v. UT at Austin what is a critical mass? does considering fewer students lend legitimacy to Grutter or
take it away?
Intermediate Scrutiny and Gender

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Intermediate Scrutiny and Gender

Frontiero v. Richardson (1971) fringe benefits to members of the uniformed services not granted to womenclassifications on the basis of sex are inherently suspect and are subject to close judicial scrutiny
points out parallels to race- the constitution recognizes higher values than speed and efficiency - violated
the DPC
United States v. Virginia (1996) VMI- intermediate scrutiny means exceedingly persuasive justificationperhaps towing it closer to SS? Moreover, the justification must be genuine. Scalia- women are not discrete
and insular minorities.
Real Differences
Geduldig v. Aiello (1974) -excluded liabilities incident to pregnancies from a disability insurance schemeRBR applied- objective wholly non-invidious basePersonnel Administrator of Mass v. Feeney (1979) discriminatory action must be chosen because of
rather than in spite of its adverse impact upon an identifiable group - veteran hiring bump was not a sexbased classification -EPC claim faied
Michael M. v. Superior Court of Sonoma County (1981) court uses real differences to uphold a statutory
rape statute pregnancy used to explain statute
Nguyen v. INS (2001) Real differences used to explain citizenship statute- assumes that mothers develop a
real connection with their children. Also keep in mind that a wed father would have a sufficient connection
Nevada Dept of Human Resources v. Hibbs (2003) court upholds the Family and Medical Leave act of
1994 under 14-5 power. 11th Amendment concerns avoided by the 14th amendment concerns.
Prophylactic legislation is OK- the SCOTUS can see that the legislation was narrowly tailored at a possible
or real risk of unconstitutional conduct
Coleman v. Court of Appeals of Md (2012) suits against the states under self-care provision act was invalidbarred by states sovereign immunity so, family care is OK, but self care is notself care does not address the 14th amendment harms that the FMLA can rightly address, therefore
creating a cause of action is improper

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self care does not address the 14th amendment harms that the FMLA can rightly address, therefore
creating a cause of action is improper
Disability, Poverty, Alienage
Graham v. Richardson (1971) Aliens are a discrete/insular minority- but, they are talking about resident
aliens: different levels of scrutiny- SS for states, RBR for feds?
an alien is a person for equal protection purposes
San Antonio ISD v. Rodriguez (1973) property tax financing scheme was not unconstitutional under the
EPC; poverty is not a suspect class. Education not a fundamental right?
Plyler v. Doe (1982) unconstitutional to have a state scheme that takes funds away from children not
legally admitted into the US- RBR review applied, but lacked credible support in evidence- also needed
to further some substantial state interest RBR+ applied as undocumented immigrants are not a suspect
class?
City of Cleburne v. Cleburne Living Center (1985) Mental disability not a suspect class, but the law was
struck down- inspired by animus?
Due Process
Modern Due Process
Skinner v. Oklahoma (1942) Sterilization act struck down- SS applied because there was a fundamental
right to marriage and procreation
Griswold v. Connecticut (1965) law about married folks not being allowed to use contraception struck
down- penumbras the right exists in the penumbra of bill of rights- a right to privacy both a spatial elementthe marital bedroom and a relational element- intimacy/marriage/family
Eisenstadt v. Baird (1972)- applies Griswold to non-married people under EPC. notably Griswold applied to
couples, but Eisenstadt applies to individuals

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Eisenstadt v. Baird (1972)- applies Griswold to non-married people under EPC. notably Griswold applied to
couples, but Eisenstadt applies to individuals
Roe v. Wade (1973)- abortion right exists due to a right to privacy- fundamental rights are in questions
therefore SS is applied. Applies a trimester based approach- first trimester- left to the medical judgment of
the physician, second- can regulated in ways that are reasonably related to maternal health, finallysubsequent to viability, the state can regulate and proscribe abortion except where it necessary in medical
judgment. Rehnquist raises Lochner concerns. Texas climbs federalism concerns- other states might
interpret it in different ways. Ginsberg would rather use EPC instead of DPC
Planned Parenthoodv. Casey (1992)- replaces the trimester framework and introduces an undue
burden test- does a state restriction constitute an undue burden on the woman attempting to get an
abortion?- proper focus of conditional inquiry is the group for whom the law is a restriction, not the group for
whom it is irrelevant. Parental consent requirements were OK. Record keeping was OK. Spousal
requirement was NOT. Waiting period was OK.-fragmented into many rules
Gonzales v. Carhart (2007) upholds ban on intact D & E- applies RBR instead of undue burden? but- also
limited to the facts? where the state has a rational basis to act, and does not impose an undue burden, the
state may use its regulatory power to bar certain procedures and substitute others -focused on promoting
a respect for life- Ginsburg: would make an EPC argument- bans were enacted with the purpose of
discriminating against women
Due Process and Equal Protection
Bowers v. Hardwick (1986) anticanon no right for homosexuals to commit consensual sodomy. blackmun- right to be left alone- privacy wrt choice/identity and place -the home
Michael H. v. Gerald D. (1989) biological father wanted to visit his daughter even though his wife is married
to another man, claims 14th amendment right- you must have biology + a developed relationship. Scalia:
state protects the unitary family- footnote f- should draw the right in question as narrowly as possible- this
leads to loads of absurdities
Romer v. Evans (1996) RBR+ used to strike down Colorado anti-anti-discrimination referendum. Points to
animosity and the lack of a legitimate end. Scalia- the court has mistaken a Kulturkampf for a fit of spite

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Romer v. Evans (1996) RBR+ used to strike down Colorado anti-anti-discrimination referendum. Points to
animosity and the lack of a legitimate end. Scalia- the court has mistaken a Kulturkampf for a fit of spite
Moreno RBR+ applied to anti-hippie food stamp law
Lawrence v. Texas (2003) anti-sodomy law struck down under DPC (overturns Bowers)- brings in Intl lawDudgeon v. UK (ECHR) uses searching RBR because of a fundamental right OConner- uses EPC and
RBR+ law exhibits a desire to do harm to a politically unpopular group- morality is not a legitimate interest
Windsor include the test DOMA- heightened scrutiny- quasi-suspect class- endured persecution, no
relation to aptitude or ability, discernible group, weakened minority
Perry Prop 8- EPC as the narrowest grounding- 1 state- cant take away what was give 8 state- what was in
the name- shcmarriage doesnt work 50 state- right to marry
Goodridge v. Dept of Public Health 2003 - no rational basis for excluding same sex marriageCruzan v. Director, Missouri (1990) claimed harm was Missouris requirements for withdrawal of lifesaving measures- clear and convincing evidence standard is OK
Washington v. Glucksberg (1997) no right to assisted suicide, bu there is a right to refuse treatment
Vacco v. Quill (1997) EPC claim -RBR as it isnt a fundamental interest- state concerned with causation
issues and intent issues
Enforcing Individual Rights and the State Action Requirement
Katzenbach v. Morgan (1966) Puerto Rico VRA- looks to McCulloch for the basis- necessary and proper
legislation - congress can pass prophylactic legislation
City of Boerne v. Flores (1997) Congress could not pass RFRA- only the court can determine the meaning of
the 14th Amend- congruence and proportional test
US v. Morrison (2000) no state action so VAWA failed
Board of Trustees of Univ. Alabama v. Garrett (2001)- applies RBR (Cleburne)- ADA doesnt apply hereCongress would need to respond to unconstitutional state discrimination- Breyer- the SC tail is wagging the
Congressional dog? -cycle of deference doesnt make sense
Hibbs (2003) FMLA upheld- heightened scrutiny important here (gender gets elevated scrutiny)
Tennesee v. Lane (2004) title II upheld against the state as it deals with fundamental rights and gets SS

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Tennesee v. Lane (2004) title II upheld against the state as it deals with fundamental rights and gets SS
DeShaney v. Winnebago (1989) State cannot be held liable under the DPC for injuries that could have
been averted had it chosen to provide them a states failure to protect an individual against private violence
simply does not constitute a violation of the DPC. Dissent- poor Joshua- relied on the state/state intervened
Castle Rock v. Gonzalez although the order says shall- did not have a DPC enforceable right to police
enforcement of the restraining order

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