Yin Huang

Key Points in Constitutional Law

Contents
The Commerce Clause ...................................................................................................................................... 1
During the Lochner Era ............................................................................................................................... 2
During the New Deal Era ............................................................................................................................ 2
In Advancing Civil Rights ............................................................................................................................ 2
Modern Limits on the Commerce Power .................................................................................................. 2
The Spending Clause.......................................................................................................................................... 2
Equal Protection................................................................................................................................................. 3
Proving Discrimination................................................................................................................................. 3
Desegregation................................................................................................................................................. 3
Affirmative Action......................................................................................................................................... 3
Substantive Due Process ................................................................................................................................... 4
During the Lochner Era ............................................................................................................................... 4
In Modern Times ........................................................................................................................................... 4
Fundamental Rights ........................................................................................................................................... 4
Contraception................................................................................................................................................. 4
Abortion .......................................................................................................................................................... 4
Romantic Relationships ................................................................................................................................ 5
Modern Federalism ............................................................................................................................................ 5
War Powers ......................................................................................................................................................... 6
The Three Levels of Review............................................................................................................................. 6
Rational Basis.................................................................................................................................................. 6
Intermediate Scrutiny .................................................................................................................................... 6
Strict Scrutiny ................................................................................................................................................. 6

The Commerce Clause

The Court initially took an expansive view of congressional power under the Commerce Clause. In
Gibbons v. Ogden, the Court held that “[c]ommerce, undoubtedly, is traffic, but it is something
more—it is intercourse. It describes the commercial intercourse between nations, and parts of
nations . . . .” The Court further stated in Gibbons that the commerce power “is complete in itself,
may be exercised to its utmost extent, and acknowledges no limitations, other than are prescribed in
the constitution.” States were implicitly forbidden from passing legislation concerning subjects that
might fall within the scope of the Commerce Clause.

The Court has never required Congress to invoke specifically the Commerce Clause as a justification
for legislation. As long as the Court can find that a law in question has some effect on interstate
commerce, that law passes muster under the Commerce Clause. Currently, laws challenged under
the Commerce Clause are evaluated using the test in United States v. Lopez. The Lopez test states that
a law stays within the bounds of the Commerce Clause when it regulates (1) channels of interstate
commerce, (2) articles or instrumentalities of interstate commerce, or (3) activities that “substantially
affect” interstate commerce. The third criterion includes such cases as Wickard v. Filburn and Raich v.
Gonzales. In both those cases, the Court found that purely intrastate activity could affect interstate
commerce by influencing supply and demand on an interstate scale.

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During the Lochner Era

Although the Court’s use of economic substantive due process during the Lochner era largely
obviated invocations of the Commerce Clause, the Court limited the scope of the Clause by drawing
a distinction between the “production” or “manufacture” of goods and the “transport” of those
goods. In Hammer v. Dagenhart, the Court held that Congress could not use the commerce power to
restrict interstate trade in the products of child labor because child labor related solely to the
“production” as opposed to “commerce.” In Carter v. Carter Coal Co., the Court held that mining
was not susceptible to federal regulation because it was a solely intrastate activity of “production”
even though the coal itself was subsequently transported across state lines. In Schecter Poultry Corp. v.
United States, the Court held that chickens shipped across state lines ceased to be articles of interstate
commerce upon arriving at their destination.

During the New Deal Era

The New Deal era saw a renewed expansion of the commerce power. In Nebbia v. New York, the
Court upheld federal price regulations in the milk industry. In NLRB v. Jones & Laughlin Steel Corp.,
the Court upheld the National Labor Relations Act (NLRA) after finding that labor disputes in the
steel industry had the potential to disrupt commerce throughout the nation. In United States v. Darby,
the Court upheld a federal minimum-wage law. In Darby, the Court abandoned the distinction
between “production” and “transport” by stating that lumber produced entirely within one state was
nonetheless “tied” to interstate commerce. The developments of the New Deal era culminated in
Wickard v. Filburn, in which the Court held that homegrown wheat could nonetheless have an effect
on supply and demand in interstate wheat markets.

In Advancing Civil Rights

The Commerce Clause is the major justification for the Civil Rights Act of 1964. In Heart of Atlanta
Motel v. United States, the Court held the lack of accommodations for black travelers had reached
such epidemic proportions as to adversely affect interstate commerce. In Katzenbach v. McClung, the
Court held that racial discrimination in restaurants affected interstate commerce because it
influenced the interstate market for food.

Modern Limits on the Commerce Power

The Court has recognized new limits to the commerce power in recent years. In United States v.
Lopez, the Court invalidated the Gun-Free School Zones Act because Congress had failed to
establish any meaningful relationship between the possession of guns on school property and
interstate commerce. The Court criticized Congress for attempting to draw a connection between
the possibility of violence in schools and a potential reduction in national productivity. The Court
found that such reasoning would effectively leave nothing outside the reach of the Commerce
Clause. The Court reaffirmed the Lopez holding in United States v. Morrison. In Morrison, the Court
found that the Violence Against Women Act (VAWA) did not fall within the scope of the
Commerce Clause because violence against women was neither “commercial” nor “interstate” in
character.

The Spending Clause

Congress may generally use its spending power to induce the state to comply with federal
recommendations as long as it stays within the bounds of the Dole test. In United States v. Dole, the
Court held that any exercise of the spending power must (1) relate to the general welfare, (2) set

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forth unambiguously the conditions for receiving federal funds, (3) relate to federal interests in
particular national projects or programs, and (4) comport with any independent constitutional
restrictions. The Court added that any funds conditionally granted under the Spending Clause could
not be so substantial as to function as coercion. This rule echoes the decision in the Child Labor Tax
case, in which the Court held that Congress could not levy a special tax against manufacturers that
used child labor.

Equal Protection
Proving Discrimination
Under the Constitution, a law imposes discrimination when it (1) facially discriminates between
individuals or (2) evidences discriminatory effect coupled with discriminatory intent. The Court
established the requirement of discriminatory intent in Washington v. Davis. In Personnel Administrator
of Massachusetts v. Feeney, the Court elaborated its holding in Washington by stating that discriminatory
intent exists only if the legislature adopted a particular law “because of,” rather than “in spite of,” its
discriminatory impact. The Court subsequently stated in Village of Arlington Heights v. Metropolitan
Housing Development Corp. that discriminatory effect may give rise to an inference of discriminatory
intent under particular circumstances and established a six-factor for determining whether such an
inference should be permitted.

Legislation may reduce the burden of proof necessary for a finding of discrimination. For instance,
Title VII of the Civil Rights Act of 1964 states that discriminatory effect alone is sufficient to
establish discrimination.

Desegregation
Following Brown and related decisions, the Court authorized the federal judiciary to oversee the
nationwide desegregation of schools in Brown II. In Cooper v. Aaron, the Court showed that it was
willing to use military force to enforce desegregation. In Green v. New Kent County School Board, the
Court held that school districts had the burden of proving good-faith efforts to desegregate. In
Swann v. Charlotte-Mecklenburg Board of Education, the Court authorized the use of equitable remedies,
including busing, and stated a four-factor test for determining the adequacy of desegregation efforts.
In Keyes v. School District No. 1, Denver, Colorado, the Court addressed the problem of de facto
segregation. The Court held in Keyes that a finding of segregation in a substantial number of schools
within a district supported an inference of segregation throughout that district. In Milliken v. Bradley,
the Court imposed a limit on remedies to segregation by holding that inter-district remedies were
inappropriate absent a showing of inter-district segregation. The effect of Milliken was to make it
difficult to desegregate inner-city schools because such schools were almost uniformly black.

Affirmative Action
Affirmative action has been a bone of contention in modern constitutional doctrine. The justices of
the Court seem to have divided into two camps: (1) those who unconditionally oppose the use of
racial classifications and (2) those who believe that race-conscious remedies are an appropriate way
to remedy the lingering effects of past discrimination.

In the educational context, the Court has consistently opposed the use of quotas to achieve racial
balancing. This view originated in Regents of the University of California v. Bakke. In Bakke, Justice

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Powell found that a medical school could not reserve a fraction of its seats to minority applicants
and thereby insulate those applicants from competition with the rest of the applicant pool. In Gratz
v. Bollinger, the Court invalidated a “point system” used by the University of Michigan’s
undergraduate admissions office. The Court found that awarding points on the basis of race tended
to preclude the sort of “individualized review” that affirmative action demanded. Justice Souter,
however, observed that most forms of “holistic” review probably used an under-the-table version of
the point system anyway. By contrast, the Court upheld the University of Michigan Law School’s
use of race as a “plus factor” in admission. The Court found that such a system took race into
account without turning into a determinative factor. Modern efforts to achieve racial diversity in
schools have been controversial. In Parents Involved, the Court divided as to the degree of race-
consciousness that can be permitted in school-assignment plans.

Substantive Due Process

Substantive due process originated in Calder v. Bull, in which the Court held that there were certain
things the legislature could not do because those things were contrary to the notions of natural
justice. Justice Iredell dissented in Calder, saying that the Court had no authority to strike down a
law merely because of its own judgment as to what natural law dictated.

During the Lochner Era

The Lochner-era Court made use of substantive due process in the context of laissez-faire
economics. The Court struck down a wide variety of legislation as infringing upon the freedom of
contract, which it regarded as a linchpin of economic substantive due process. In Lochner v. New
York, the Court invalidated a maximum-hours law for bakers, finding that such a law was not within
a state’s police power. In Adkins v. Children’s Hospital, the Court struck down a minimum-wage law
for women because it found that the law impermissibly distinguished women from men. In one of
the few exceptions in its invalidation-prone decisions, the Court upheld in Muller v. Oregon a
maximum-hours law for women working in laundries. The Court apparently distinguished the law
in Muller from that in Lochner on the basis that women needed extra protection for their health.

In Modern Times
Substantive due process in modern times has focused mainly on protection of the so-called
“fundamental rights.” (See the discussion of fundamental rights below.)

Fundamental Rights
Contraception
The Court held in Griswold v. Connecticut that the right to privacy prevented the government from
interfering with the purchase and use of contraceptives by married couples. The Court, however,
apparently was conservative in addressing only the issue of privacy and not the actual romantic
relationship at issue. In Eisenstadt v. Baird, the Court extended the holding of Griswold to unmarried
partners.

Abortion
The modern jurisprudence on abortion began with Roe v. Wade. In Roe, the Court established the
trimester framework, which governed the degree to which the government could interfere with a
woman’s choice to have an abortion. In Casey, the Court modified the holding of Roe, abandoning

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the trimester framework in favor of the rule that a state may not impose an “undue burden” on any
woman seeking an abortion. The main practical change was that Casey allowed states to impose
informed-consent requirements, waiting periods, and other procedural constraints on women
seeking abortions.

The regulation of partial-birth abortions has been particularly contentious. In Stenberg v. Carhart, the
Court invalidated a state prohibition on partial-birth abortions because the statute failed to provide a
health exception. In response, Congress enacted the Partial Birth Abortion Act, which implemented
a similar exception-less ban at the federal level. The Court’s opinion in Gonzales v. Carhart revolved
around the tug-of-war between congressional fact-finding and judicial fact-finding. Ultimately, the
Court concluded that Congress should have the final when there was medical doubt as to the
advisability of a health exception. The current question is whether Stenberg remains good law since it
addresses partial-birth abortions at the state level while Gonzales and the Act do so at the federal level.

Romantic Relationships
The Court held in Lawrence v. Texas that a state may not interfere with gay couples practicing
homosexual sodomy. The Court held in Lawrence that the right to be protected was not the right to
engage in a particular sexual act but the right to engage in intimate relationships as one sees fit. The
Lawrence decision casts into question earlier decisions such as Bowers v. Hardwick and Romer v. Evans.

Modern Federalism
After years of expanding federal power, the Rehnquist Court began to place new limits on
congressional authority. In City of Boerne v. Flores, the Court invalidated the Religious Freedom
Restoration Act. The Court held that the Act had overstepped the boundaries of section 5 of the
Fourteenth Amendment. The Court stated that the “enforcement” provision of the Amendment
authorized Congress only to take actions that were “congruent” with the problem to be remedied.
The Act itself failed the congruency test because it imposed a categorical prohibition on legislation
burdening the practice of religion without stating any basis for the necessity of such a wide-reaching
measure. In United States v. Morrison, the Court held that the Violence Against Women Act (VAWA)
fell outside the authorization of section 5 because violence against women was no state action that
Congress could remedy under the Amendment. In Kimel v. Florida Board of Regents and Board of
Trustees of the University of Alabama v. Garrett, the Court held that the Age Discrimination in
Employment Act (ADEA) and the American with Disabilities Act (ADA) did not extend to the
states because those two forms of discrimination also fell outside the scope of section 5. In Tennessee
v. Lane, the Court made an exception to its holdings in Kimel and Garrett by finding that the lack of
wheelchair ramps in a courthouse, despite not being actionable under the ADA, was actionable
under the Constitution because it impeded equal access to the courts.

In United States v. Lopez, the Court reined in congressional authority under the Commerce Clause.
(See the discussion of Lopez above.) In New York v. United States, the Court held that Congress may
not force the states to legislate on its behalf. Such a delegation of power, the Court found, would
reduce political accountability of both the states and the federal government. In Printz v. United
States, the Court held that Congress had no power to order state governments to implement parts of
a national background-check system for gun purchasers.

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War Powers
In Youngstown Sheet & Tube Co. v. Sawyer, Justice Jackson set forth the three levels of executive power
in wartime: (1) when the president acts with the authority of Congress; (2) when the president acts
with neither the approval nor disapproval of Congress; and (3) when the president acts in ways
incompatible with Congress. These three levels of power came into sharp relief in Hamdi v. Rumsfeld
and Boumediene v. Bush. In Hamdi, Congress had passed the Authorization for the Use of Military
Force (AUMF) in the war on terror. The Court held in Hamdi that an American citizen detained as
an “enemy combatant” must have at least the opportunity to rebut the factual basis for his detention.
At the same time, the Court conceded that the realities of war may necessitate laxer evidentiary
standards and allow certain presumptions in favor of the government. In Boumediene v. Bush, the
Court held that an alien enemy combatant detained at Guantanamo Bay was also to have the chance
to challenge his designation as an enemy combatant. The Court held in Boumediene that the reviewing
court needed to have at least the authority to order the release of any detainee it finds to have been
wrongly imprisoned. The war-powers cases tend to concern attempts by the executive and the
legislature to curtail habeas review without formally invoking the Suspension Clause.

The Three Levels of Review

Rational Basis
Rational-basis review arose at the beginning of the New Deal era. In Williamson v. Lee Optical Co., the
Court expressed its newfound deference to the legislature by stating that a law in question was
generally to be upheld as long as the Court could find some rational basis to support it. The Court
made it clear that any such basis only needed to be conceivable; the legislature was not required to
cite that basis specifically as a justification for the law. The Court was similarly deferential in United
States v. Carolene Products Co., but the famous footnote 4 in that case stated that heightened review
would be appropriate if a law appeared to target “discrete and insular minorities.” Although
rational-basis review is generally deferential, cases like City of Cleburne v. Cleburne Living Center show
that the Court is willing to strike down some legislation even under this lenient standard.

Intermediate Scrutiny
The Court applies intermediate scrutiny when reviewing laws that discriminate on the basis of sex.
A law passes muster only if it is “substantially related” to a “important governmental interest.”

Strict Scrutiny
The Court applies strict scrutiny when reviewing laws that discriminate on the basis of race or
alienage. A law passes muster only if it is “narrowly tailored” to a “compelling governmental
interest.” In the modern context, affirmative-action programs and restrictions on fundamental
rights generally receive strict scrutiny.