JUDICIAL REVIEW

1. Constitutional Basis
a. Article III: 2: The judicial power shall extend to all cases arising under this constitution.
i. In cases concerning ambassadors, public ministers and consuls, the S. Ct. shall have original
jurisdiction.
ii. In all other cases they have appellate jurisdiction, under such regulations as congress can make.
2. Establishing the power of judicial review.
a. Marshall establishes the power of judicial review in Marbury v. Madison by saying that the court does
not have jurisdiction to review the Marshalls writ.
i. No Original Jurisdiction: Marbury does not have original jurisdiction and congress cannot
add jurisdiction power whatsoever that is not in the constitution already.
1. Problem With Congress cant add J theory: Why is Constitution a ceiling and not a
floor.
2. Pros: Constitution specified they could take J away, so why wouldnt C say Congress
could add jurisdiction.
b. Why is judicial review necessary?
i. Reductio Absurdum Argument: If you cant judicial review then the C is a nullity, b/c Congress
could just make laws that go against the constitution. If the C is on a higher hierarchy than
other laws, it has to be able to be preserved.
ii. S. Ct. in better place than congress because S. Ct. does not make law, they cant override the C.
iii. Pure democracy has the ultimate power of destroying democracy.
iv. C is not pure democracy, judicial review is about limiting the power of the majority, a
consistent theme in the C.
v. The Framers probably wanted JR because Hamilton discusses it in federalist No. 78.
c. Why should it not be allowed?
i. Is it absurd? The S. Ct. still has original jurisdiction on some topics.
ii. Undemocratic, S. Ct. is unelected body, why should they be able to strike down what others do
as unconstitutional.
iii. Nowhere in the constitution does it explicitly say that the founders wanted judicial review. JR
allows one branch of gov. to have an overriding power on the other two.
iv. What makes the S. Ct. in a better position than congress to interpret the C. Why cant congress
and the pres. decide constitutional issues for themselves.
d. Can anyone do Constitutional Review after the S. Court?
i. Cooper v. Aaron decided that the S. Ct. is ultimate and final authority on the constitution.
1. Facts: Governor of Arkansas declared they were not bound by S. Ct decision in Brown
v. Board. Refused to desegregate schools.
ii. S. Ct. Held that they have exclusive judicial power and that their decisions are supreme law of
the land. Supreme courts interpretation is the FINAL interpretation and the president cannot go
against this ruling.
iii. Congress cannot make amendments overruling the Supreme Court decisions. If they want to
change the law, change the constitution. Dickerson v. United States.
e. Shapiros Final Say:
i. We need the reinforcement of all the constitutional norms that we can get to have an institution
that vindicates the principles is a good thing.
ii. We dont want a place where the majority can just do what ever they want with principles.
Makes the C more accurate.
 iii. Who cares if Marshall lied about the Judiciary act, are we going to disregard judicial review, I
mean.cmon.
3. Does the S. Ct. have the power to review State Court actions? Martin v. Hunter Lesse, Justice Story
a. Why Should the S. Ct. have the ability to review state court actions concerning federal law?
i. Uniformity Argument: Federal Law should be interpreted in the same way in all 50 states,
would be unfair to subject states differently.
ii. State Bias Argument: State prejudices may influence state judges in deciding federal matters.
iii. Rejection of Virginias stupid sovereignty argument? Virginia tried to argue that sovereignty
means that federal judges cannot tell state courts what to do. While state courts are sovereign in
some respects, Virginia is a part of the U.S., its not like they are France.
b. In the end 25 of the Judiciary Act, that gives S. Ct appellate jurisdiction of federal question cases is
deemed constitutional.
4. When Congress can provide jurisdiction to the court and when they can take it away? Article III 2:
And under such regulations as the congress shall make.
a. Ex Parte McCardle
i. Facts: McCardle was Reconstruction journalist talking shit on the federal gov.. Law made that a
crime punishable in military tribunal. Sought appellate review of habeus corpus. Supreme
Court heard oral arguments and congress took away appellate jurisdiction before decision
handed down.
b. Court held that since congress took away appellate jurisdiction Ct. did not have power to hear the case.
c. Constitutional Crises?
i. So Congress could annihilate the entire appellate jurisdiction of the S. Ct.. Yes
ii. Original J could be nullified by not appropriating money to S. Ct.
d. Arguments Why Congress Does Not Have This Power
i. Because of the word exceptions there must be some appellate powers that are CORE, that
congress cannot take away. If they could take away all power, then the exception would
swallow the rule.
ii. Amar Argument: Because of the word all the S. Ct. at least has subject matter jurisdiction to
decide federal question cases.
iii. External Restraints on Congresss Power to Regulate Appellate Pwrs. Of S. Ct.:
1. Congress cannot regulate the litigants in a particular case, just the issues.
2. If congress limited appellate authority of the S. Ct., there would be a lack of uniformity
in appellate court decisions.
National Powers of the Federal Government over Local Activities - McCulloch v. Maryland
1. Constitutional Framework:
a. Article 1 8: Congresses Enumerated powers
i. Lay and Collect Taxes, provide for common defense and general welfare of the United States.
Borrow money on US credit, regulate commerce, coin money, post offices and post roads,
promote progress of science and arts.
ii. 10 Amendment: All powers not delegated to the federal government are reserved to the state.
iii. Can a state interfere with federal laws?
1. In McCulloch v. Maryland the court reasoned that to give the ability to tax the federal
bank to a single state, would be go against the will of the people of the US.
a. Argument: The people elected the national government, the national government
represents the national people as a whole, and for one state to control federal
action, would allow one state to impose its sovereignty on the nations.
b. Allowing the states to interfere with federal acts cause negative externalities, the
exact externalities the constitution wanted to get rid of when creating the C in
the first place.
c. Why not the power to tax?
i. The power to tax is the power to destroy, and it would give state the
power to destroy constitutionally protected acts
ii. By taxing the bank, since the bank has the nations money, it gives
Maryland the power to tax anyone.
iv. Why is 8 a floor for congressional power?
1. Because if congress can only establish offices and post roads without other non-
enumerated powers, congress would not have power to run mail effectively. By
definition non-enumerated powers necessary to create enumerated powers.
2. As a rebuttal to ceiling argument, Marshall uses N and P clause. Shapiro- Logically, N
& P is inherent in the rest of 8.
3. The N & P clause s a tiebreaker. If youre not sure if Congress has the power to do
something, you rule in favor of Congress.
4. Marshall adds the word beneficial to the N & P clause, puts the question as was the
Bank beneficial, to make Maryland look stupid, lowers the standard of review.
5. The word necessary is one of degrees, so you cannot automatically say that the list is
exhaustive. Necessary had both meanings back in the days of the C.
6. An amendment to the C was opened to limit the gov. powers and was denied in the
Convention, assumes that everyone was thinking about expansive congressional rights.
v. Why is 8 a ceiling?
1. If 8 was merely supposed to illustrative, why would they add post roads, unless the
wanted a rigorous application of the C.
2. Some would argue we dont want to allow federal powers just for beneficial reasons.
This premise is based on a basic distrust of government.
TERM LIMITS
1. Constitutional Framework
a. Art 1 2: No person shall be a rep. unless 25. More rules..who can be representative and who can be
senator. They cant serve more than two terms. Rules for who can and cant be member of congress.
b. Are these term limits the floor or the ceiling, can a state impose extra limits on who can serve in
public office?
i. Unites States v. Thornton, Arkansas Congress made an amendment saying you couldnt be in
public service, names on the ballot, if youve served for a period of time.
ii. Court decides that the limits are a floor and a ceiling. Use the silence argument to impute the
words, no other conditions will apply.
1. Why Should it be ceiling?
a. There is no necessary and proper clause here, and there was in enumerated powers.
b. Making additional blockades to election would be contrary to fundamental
principles of our democracy.
c. Cannot allow democracy to destroy democracy
2. Why should it be a floor?
a. It is extremely democratic because the people of the state of Arkansas decided that
they wanted this extra restriction.
iii. Never discusses term limits.
COMMERCE CLAUSE
1. Overview
a. Constitution Article 1 8: Congress shall have the power to regulate commerce among the several
states. 10th Amendment: The powers not delegated to the US by the constitution, nor prohibited by it to
the states, are reserved to the states respectively or to the people.
2. Dimensions:
a. Definitional Dimension #1
i. Commerce Is the target of regulation commerce or commercial transaction at all?
1. Trafficking of goods
2. All phases of business. (Gibbons v. Ogden, NY gave monopoly for operating
steamboats to two guys. Gibbons operated competing ferryboat which was licensed
under federal law. S. Ct held that intercourse of goods, navigation held to be commerce
under the commerce clause, commerce includes all phases of business)
3. All phases of buying and selling. (Knight, buying and selling)
4. Possession not itself commerce, interstate or otherwise, although may have resulted
from commercial transaction or it may generate others.
ii. Among the States
1. Means intermingled within the state. All interstate commerce becomes intrastate
commerce, interstate does not stop at the boundaries of the states. Commerce must
concern more states than one. (Gibbons)
2. Congress has complete authority to regulate among the states
3. Stream Of Commerce:
4. Instrumentalities: Shreveport Rate Case
5. Channels:
b. Definitional Dimension #2
i. Power to Regulate
1. Pretty much absolute, except that which is limited by the constitution. (Gibbons)
2. Prohibition is regulation. (Ames)(Hippolite, every regulation is a prohibition of
something)
3. Power is plenary
c. Purpose Dimension #3
i. Congress has the power to control interstate transactions for purposes other than economic or
commercial ones. Reached moral dilemmas.
d. Connection Dimension #4
i. If the regulation is not commerce per se is it related to commerce or relevantly connected to it
(nexus).
ii. Does a law substantially effect commerce? Factors:
1. Size and economic power of regulatory target entity Jones v. NLRB(OKs Production)
2. Analyze whether the ends are justifiable, court should not be adjudicating whether
means are justifiable because of:
a. Aggregation Although case in question may be small, market may be large.
b. Co-mingling Distinguishing proper and improper targets may be too
burdensome, all should be regulated. Solves the frustration of purpose argument.
(Heart of Atlanta)
c. Pure prohibition of interstate commercial transactions - no effort to regulate
directly
 d. Promoting/implementing a prohibition on interstate commerce on a class of
commodities by directly regulating the producers/manufacturers of the
commodities. Bootstrap Argument
e. Bare physical association with interstate commerce as satisfying the substantial
connection requirement Questionable under Lopez
3. Initial Analysis
a. Manufacturing
i. Congress could not regulate the factors of production. Court saw logical gulf between
commerce and production/manufacturing. (#1-2) (Knight Case, Court wanted to make barriers
for congressional control and held that Sherman Anti Trust Act aimed at breaking up Sugar
monopoly was unconstitutional. Congress can control buying and selling, just not
manufacturing.)
b. Necessity for a Direct Effect when commerce intrastate
i. Congress has power to foster and protect interstate commerce.(Shreveport, allowed congress
to regulate purely intrastate railroad rate in Texas because of the direct effect on interstate rates)
1. Against Schrevport: The Schecter Poultry Case, code that regulated live poultry in NY
did not have a direct effect on interstate commerce , it only had an indirect effect. .
2. HOW DO YOU DETERMINE DIRECT/INDIRECT:
ii. Stream of Commerce can be used to determine direct/indirect effect. (Swift v. US, although
stockyard holding meat was intrastate, stockyard was considered current of commerce and
part of stream of cattle commerce. The stockyard was only a temporary stop for the cattle)
1. Once something is in interstate commerce, it remains in that state, even if it has reached
its intrastate destination. (Hippolite Egg)
c. The Power to Regulate is the Power to Prohibit and Commerce Clause can be used to regulate Morality
i. Morality (#3)
1. (Champion v Ames, congress wants to deal with morality of lottery and prohibits certain
lottery tickets, court gives the go ahead.)
2. Coming out the different way was (Hamer v. Dagenhart, deemed unconstitutional a law
that banned goods from traveling interstate that were made by kids)
3. Reconciling the two: Hamer was about the goods kids created, putting it in production
realm (Knight), no malice of good. In Ames there was malice in the goods themselves.
ii. Concern about plenary powers, does Congresss ability to regulate morality prove too much.
iii. Every power to regulate is a power to prohibit, just to varying degrees. (Hippolite Egg,
regulating against adulterated eggs is a PROHIBITION of those eggs)
4. New Deal Legislation and Beyond
a. Manufacturing
i. Analysis changed, the fact that what is being regulated is production, it is still part of interstate
commerce and can be regulated. (Jones and Laughlin (#4), constitutionality of Labor Relations
Act that allowed employees to bargain collectively upheld by court. Analyzes manufacturing as
part of the stream of commerce).
ii. New test is the close and substantial relation test (applied to the law). Solves the Reductio
Absurdum Problem, addresses need for consistency among states.
b. No longer a necessity for a direct effect, as long as the Statute affects commerce. (Darby, Jones)
c. The 10th amendment Argument Rejected And Congresses Plenary Power Affirmed
 i. No longer restricts congresses power, is pushed aside as a tautology. Hamer v. Dagenhart held
to be unconstitutional. (Darby, holding statute constitutional that prohibited interstate
commerce if employees received wages beneath minimum wage)
d. The Boot-Strap Argument
i. Allows congress to attack the heart of production, stopping the creation of questionable
commerce in the first place. Instead of waiting at the border, this is more efficient. (Darby)
ii. May be a reductio absurdum problem. If bootstrap argument works here, it could legislate
marriage.
e. Aggregation becomes another Connection
i. Although the case at hand may not affect interstate commerce, the aggregation of the problem
can be taken into account. (Wickard, farmer in violation of wheat regulation statute, even
though just making some extra wheat for home consumption)
ii. Again, may be proves too much argument.
iii. Aggregation can be used to determine the market or industry that is being targeted, even if that
target is for morality reasons. Morality is OK to be aggregated in connection dimension. (Heart
of Atlanta, upheld Civil Rights act even though motel was 216 rooms because a small pinch on
interstate commerce aggregated is a lot.)
f. Finding the Hook and Running with it
i. Bare connection with IC can be used to regulate anti-discriminatory regulation. Bare
Connection can be used to find substantial effect on interstate commerce. (Katzenbach v.
McClung, Congress wanted to regulate discrimination at Ollies BBQ by finding food from
interstate commerce)
g. Commerce Clause for Federal Criminal Laws
i. Commerce Clause can be used to create criminal legislation.
ii. Absolute presumption for Congresss rational belief that interstate commerce is affected.
Aggregation argument at its limits. (Perez v. US, loan-sharker in New York never operated
outside state and Congress still aggregated loan sharking across entire country for affect)
5. The Modern Approach
a. No Regulation of Non-Economic Activity
i. When there is no relation between economic activity and regulation, congress cannot regulate
under the guise of interstate commerce. (Morrison v. US, violence against women is not
economic activity in any way)
ii. Three Areas Congress Can Regulate
1. Interstate Channels Anything were people are benefiting commercially. (Heart v.
Atlanta, upheld the federal law prohibiting discrimination by hotels and restaurants)
2. Instrumentalities of Commerce persons or things in interstate commerce (railroads)
even if wholly intrastate. (Shreveport Rate Case)
3. Substantially Affecting Commerce Must is some way involve economic activity,
Wickard now the limit. (Lopez v. US, possessing a gun at school not Interstate
Commerce and cannot substantially affect it because non-economic activity. Gun did
not come from interstate commerce)
iii. Congress no longer has presumption for rational basis for interstate commerce, no longer
possible to pile on degrees of connection. (Bad Argument, guns create violence, violence
creates interstate commerce)
iv. Congressional findings no longer save interstate commerce cases if there is no substantial
effects. Can only regulate intrastate behavior that is economic in nature. (Morrison, extensive
 congressional finding concerning effects violence on women has on commerce immaterial,
Reductio Absurdam Argument, your saying you could even regulate marriage.)
b. Arguments still in Play
i. Aggregation and Co-mingling arguments as long as initial activity is economic.
ii. Frustration of Purpose - if connection dimension satisfied
c. (Gonzales v. Raich, Can congress legislate and prohibit the use of small amounts of marijuana for
medical purposes.)
i. The regulation was an economic regulation. The marijuana is in the channels of commerce.
There are co-mingling problems.
d. Dissent in All Post Lopez Cases
i. Breyer Not the courts that are widening Interstate Commerce jurisprudence, its the world
that has become more interconnected, where everything has an effect on interstate commerce.
ii. Applying the pilling on argument is not a logical leap. (Completely logical that guns effect
interstate commerce)
iii. Should be Deference to congressional fact-finding, Congress in a better position to decide these
matters, Congress has institutional capacity for gathering evidence.
iv. Deference should be given to 60 years of precedent, conservatives in court applying judicial
activism.
6. State Autonomy Limits on Congressional Power
a. Are there external limits on the CC through the 10th and 11th amendments. What is the role of
federalism in our democracy
b. The Congress cannot legislate as to what the state can do as a sovereign power. US cannot tell a state
where to put its capital. Coyle v. Oklahoma
1. United States conditioned Oklahoma statehood on them changing their state capitol. S.
Ct. said that the power to decide their capital is a state power and it is unconstitutional
to say otherwise.
c. National League of Cities v. Usery, The Fair labor and standards act extended its minimum wage
standards to employees of state and local governments as well as private employees. The amendments
to the act were held to be unconstitutional. The reason was that it interfered with integral governmental
functions of the state governments.
i. Overruled by Garcia. Rehnquist stated that it messes with the integral part of the constitution.
1. By outlining what the state pays its employees, the state gov. then answers to the federal
gov and not to the state.
d. Three Part Test To determine Federalism Restraint (Hodel, only applies when the state is acting like a
state, does not apply when state is acting like a private actor)
i. Challenged Statute must regulate the states as states
1. Not statutes that regulate private and government.
ii. The federal regulations must address matters that are indisputably attributes of state
sovereignty.
1. Location of the state capital
2. Salaries of governor, legislature, judiciary
3. State elections
4. Police and Law Enforcement
iii. State compliance with federal law would directly impair their abilities to structure integral
operations in areas of traditional governmental functions.
e. Garcia v. San Antonio Metropolitan Authority, can subject a municipal transit authority to the
minimum-wage and overtime requirements of the Fair Labor Standards act.
i. Blackmun believes that the political process should dictate state powers, not the judiciary.
f. New York v. United States, federal radioactivity statute, the third part stated that states would take
title to any waste within their borders that were not properly disposed of by a certain time.
i. Court does exactly what they said they wouldnt do in overruling federal constraints on state
power.
ii. Court held that forcing a state to take title of radioactive waste would impose on states a
requirement to implement federal legislation. Cannot permit a law that would otherwise violate
the 10th amendment.
iii. But:
1. Congress can always withhold federal funding to get states to act in a certain way.
iv. Distinction: Between laws of general application (minimum wage standards) and laws of
specific application (radioactive waste statute).
v. Dissent: Says that the approach wrong because this act was about cooperation between the
states.
g. Prince v. United States, congress enacted the Brady Bill that provided for a waiting period for
handguns, required local law enforcement to do the background checks. Law held unconstitutional)
i. Distinction from New York because there is no coercion. But Federal Gov. CANNOT talk to
states as states and tell them what to do. Cannot press the states into service.
h. Reno v. Condon, S. Ct rejects 10th amendment challenge to law that commanded states no to reveal
personal information received by the DMV.
i. Court states that this was a legitimate exercise of commerce clause. Different from Printz and
New York because law prohibits states from acting.
ii. Congress MAY prohibit harmful conduct, but not force the state to act in a certain way.
iii. SORT OF STUPID BECAUSE ANYTHING CAN BE CHATEGORIZED AS A
PROHIBITION or an AFFIRMATIVE ACTION
i. Continuing tension in what kind of society we want:
i. Scalia: There is no di mimimus arguments, strictly formalist. There are simply thing you cannot
force states to do.
ii. Souter: We need a balancing test and the political process can take care of the rest. The states
can change the federal gov if they want.
DORMANT COMMERCE CLAUSE
1. Overview
a. State and local laws are unconstitutional if they place undue burden on interstate commerce even
absent congressional legislation
b. Inferred from Art. I 8, Congressional power to regulate commerce among the states.
2. Implications from Art 18
a. Negative Implication: States can never make laws that burden interstate commerce at all, no matter
the purpose. Never been adopted by S. Ct.
b. Positive Implication: States may undertake action for any purpose, even protectionist, that burdens on
interstate commerce, absent federal law that would control by supremacy clause.
c. Modified Positive Implication: State may undertake action for any purpose, except protectionist,
absent federal law. (Scalias view)
d. The Wimp Implication: Sometimes the state can do what it wants, sometimes it cant. Courts view today.
3. Arguments for D Commerce Clause
a. Historical - Reason for constitution was to end protectionism and have access to entire market.
b. Economic Better off economy if restrictions on trade invalidated.
c. Political Citizens in other states should not be harmed by laws where they lack political representation.
(McCulloch v. Maryland)
4. Arguments against D Commerce Clause
a. Textual The framers could have expressly prohibited state action but didnt.
b. Congressional Nothing stops congress from making laws to override state laws, reviewing state laws should
be done by congress, not the judiciary.
i. It would be impossible for congress to look over all fifty states laws.
5. DETERMINING IF INTERFERENCE WITH COMMERCE
a. If discrimination on face presume protectionist purpose and invalidation by court
i. Facially Discriminatory Cases
1. Resources of your state, over another
a. Prohibition on waste generated outside of state deemed facially discriminatory
without presumption overcome - health concerns deemed inadequate where the
out of state waste was the same as the in-state. You can protect the local but not
at the expense of the other states. (Philadelphia v. New Jersey, law prohibited the
importation of out of state waste)
2. City Restrictions on trade
a. Pasteurization must happen within 5 miles of city, even if discrimination exists
within the state, it still becomes out-of-state discrimination. (Deans Milk)
3. Statute facially neutral, but substantively protectionist
a. Hawaii statute unconstitutional even though prohibited a certain shrub from
liquor tax, when shrub only found in Hawaii. (Bacchus imports v. Dias)
ii. Presumption can be over come by evidence?
1. Identifying a legitimate state purpose for the statute, and then look for less
discriminatory alternative/cost-benefit analysis.
a. Prohibition against bait fish being imported into state deemed constitutional
because of parasites common to out of state bait but not main bait were
legitimate concern, could not find less discriminatory altern.. (Maine v. Taylor)
b. Washington had 2% sales tax on out of state imports to equalize them with
Washington sales tax. Constitutional, right to tax, tax does mess up the market
 because not benefiting one group at expense of another, only equalizing
interests. (Henneford v. Silas Mason)
b. If no overt discrimination look for hidden protectionist purpose against other states
i. Disproportionate Effect to determine protectionism
1. No. C. required that all apples coming into state have USDA label. Washington had
their own labeling system, that was better, large discriminatory effect made statute
unconstitutional. (Hunt v. Washington State Apple Co)
ii. Probably Protectionism, but difficult to prove Excessive Burden if Sure Winner
1. Iowa law that prohibited 65 foot trucks because allegedly less safe, Iowa wanted less
transportation through state, gave evidence 55 footers were safer. (Kassel v.
Consolidated Freightway)
iii. Evidence to prove hidden protectionism
1. Legislative/Executive Purpose
2. Less Restrictive Alternatives
c. If no hidden protectionist purpose Go to the burden dimension (Pike Balancing Test, Arizona
required that cantaloupes had to have the state of origin label on it. Pike shipped his cantaloupes to
California to be packed and Arizona wanted him to pack/label them in Arizona, court invalidated the
requirement)
i. How to Compute
1. Compute burden on interstate commerce and burden on in-state interests.
2. If burden on interstate deemed excessive then unconstitutional.
ii. Determining Excessiveness
a. Hard to determine excessive because you are usually comparing apples and
oranges.
2. Absolute Burden on Interstate Commerce
3. Comparison in size to in-state
4. Less Restrictive Alternatives
5. How legitimate state purpose is
iii. Generally, if law not discriminatory, then its upheld
1. Court upheld state law that prevented out-of-state petroleum producers from operating
gas stations in state. Minimum burden on interstate commerce because out of state
refiners that left could easily be supplanted by out of state gas station owners.(Exxon v.
Maryland)
2. Cost Benefit analysis. Upheld Minn. Law prohibiting non-recyclable milk containers
from being used. Did not greatly burden IC because it helped out of state paper
companies and environmental benefits outweighed interstate harms. (Minnesota v.
Clover Leaf Creamery Co.)
d. MARKET PARTICIPATION EXCEPTION
i. Rule
1. A state may favor its own citizens in dealing with government owned businesses and in
receiving benefits from government programs.
2. When states are normal businesses, they should be able to act like normal business,
shouldnt be hurt just because they are state.
ii. Downstream Exception:
a. States may favor in-state purchasers but they may not add conditions to the sale
that discriminate against IC down the line.
 b. Cannot impose conditions when you are no longer a participant in the market.
Alaska could not force people that purchased their timber to refine the timber
instate before they shipped it out of state. (South Central Timber v. Wunnicke)

Separation of Powers
1. Inherent v. Express powers?
a. The Herein Granted Problem
i. Article 1 gives power to legislature, Herein Granted under constitution.
ii. Article II, no herein granted so perhaps inherent powers of being executive.
b. Inherent power
i. President Truman ordering to keep steel mills running during Korean War as one of his inherent
powers, even though no legislation allowing him to do so. Deemed unconstitutional.
(Youngstown Sheet v. Sawyer)
1. No inherent, only express powers, from constitution or legislature. (Blacks)
2. Pres. has inherent powers as long as they do not interfere with other branches
functioning or powers. (Douglas)
3. President may exercise powers as long as they do not violate specific statute or
constitution.(Frankfurter)
4. The president has inherent powers that may not be restricted unless they violate
constitution.(Thomas)
c. How to Separate Powers
i. Functionalist Approach:
1. Judge violations of separation of powers by seeing whether or not one power is getting
doubled up by another (Rehnquist)
ii. Formalist Approach:
1. Divide the power making authorities into three buckets and place rights in each bucket.
Sort of a definitional analysis.(Scalia)
2. Habeus Corpus Executive v. Judiciary
a. ART 1 9 clause 2
i. The privilege of the writ of habeus corpus shall not be suspended except in cases of rebellion
or invasion the public safety may require it.
b. Emergency Constitutionalism
i. Constitution is continuous through war
1. Lincoln could not suspend writ of habeus corpus during civil war unilaterally. (Ex Parte
milligan)
ii. Constitution speaks differently in time of war
1. The con. will not be silent in time of war, it will just speak differently. (Rehnquist)
Bill of Rights and Post-Civil War Amendments
1. Application of Bill of Rights to States, Pre-Civil War
a. Bill of rights only applied to federal governments, not state or local governments. (Barron v. City of
Baltimore, Barron sued city for unjust taking - his wharf by diverting a stream -under the 5th
amendment, Bill of Rights was made by people of the entire government and not for government of
individual states.)
b. Arguments for why Marshall is right:
i. Bill of Rights universally understood not to apply to states.
ii. When Constitution wanted to apply something to states, it was explicit in doing so.
c. Arguments for why Marshall is wrong:
i. 1st Amendment specifically applied to congress. Absent mere negligence, 5th amendment should
have been explicit as well.
2. Individual Rights and Prohibition on State Action Post 14th Amendment
a. Privileges and Immunities
i. 14th: No state shall make or enforce any law that shall abridge the privileges and immunities of
citizens of the US
ii. Argument that the most basic privileges and immunities are those based in the bill of rights was
foreclosed by Slaughter-House. (Slaughter House, Louisiana law that made monopoly for
butchers was constitutional because privileges and immunities did not apply to state action)
iii. Privileges and Immunities Foreclose: (Slaughter House)
1. The purpose of the 13th/14th Amendment was to protect former slaves.
2. We have extremely narrow interpretation of privileges and immunities.
3. Not meant to protect individuals from state government action-Slaughter House
4. Removed P and I for basic state action on bill of rights.
iv. What do P and I mean then?
1. The right of citizen to assert a claim against the federal gov. no matter what state they
are in.
2. Right of citizens to demand the care of the federal government,
3. Since above rights existed before 14th Amendment, P and I were robbed of all meaning
(Field)
4. Justice Thomas has argued for revival of privileges/immunities.
v. Revival of Privileges and Immunities?
1. Privileges and immunities does cover right to travel from state to state and have the
same fundamental rights in the state as citizens do.
2. (Saenz, California law limiting welfare benefits for new residents in the state to level of
the state they came from for one year held unconstitutional because right to travel
covered under privileges/immunities of 14th amendment.)
b. Incorporation Controversy
i. 14th: Nor shall any state deprive persons of liberty without due process of law. What does
liberty mean?
 ii. Incorporation Theories
1. Total Incorporation: The 14th amendment incorporated the words of the 1st -9th
amendments into the 14th amendments. (Black and Douglas)
2. Selective Incorporation: The 14th amendment scooped up some of the bills but not all of
them
iii. Law as it stands today:
1. One by one, almost all of the provisions of bill of rights have been incorporated. 1, 4, 5,
6, 8
2. Test for liberty: Whether right is a fundamental right which are rooted in the conditions
and traditions of our people or civil and political institutions.
a. (Duncan v, Louisiana, Duncan convicted of simple battery, argued he was
entitled jury trial by 6th amendment. Court decided 6th amendment applied to
liberty but thats all)
b. Duncan reasoning foolish because
3. Barron still good law, bill of rights still never apply to states, , involves the provision as
applied to the states through due process clause of 14th amendment.
iv. Evidence for fundamental Right?
1. Empirical Studies of what all states do. (Duncan)
a. But, just because everyone does it, does not make right fundamental.
2. Use federal government as an example, but only an example.
3. Tradition- historical purpose of right. (Duncan)
4. American standards of fundamental fairness? (Harlans Approach)
5. Emerging Tradition
v. If no total incorporation, what rights are fundamental?
1. Fundamental Rights Approach (Harlan)
a. Harlan understood the problems with selective incorporation on a case by case
basis because it provided no starting or concluding points of inquiry.
2. Jot-for-jot approach: No theory of liberty interpretation, just applying the national
government standard to the state. (Majority in Duncan)
3. Substantive Due Process
a. Argument Structure
i. What are the rights being characterized?
1. Tradition
2. Emerging Tradition (Empirical Evidence)
3. Moral/Political Judgments
ii. Does the right being characterized constitute a liberty interest?
iii. Where in the hierarchy of liberty rights does this fall determines the standard of review
iv. If fundamental right exists, what is compelling state interest?
b. Standards of Review
i. Rational Basis Test
1. Law will be upheld if it is rationally related to a legitimate governmental purpose.
2. Challenger of law has the burden of proof.
ii. Intermediate Scrutiny
1. Law will be upheld if it is substantially related to an important governmental purpose.
2. Court must regard purpose as important, and law must be substantially related to
achieving that goal.
 iii. Strict Scrutiny
1. Law will be upheld if it is necessary to achieve a compelling governmental purpose.
2. Law must be the least restrictive alternative.
3. Government has the burden of proof.
c. Economic Liberties
i. Historical Economic Liberties
1. Freedom to contract is a basic right protected as liberty and property rights under the
14th amendment. (Lochner v. New York)
2. The government can interfere with freedom to contract only to serve valid police
purpose. (Public safety, public health, public morals).
3. Freedom to contract rights would be analyzed under strict scrutiny.
4. (Lochner, court found freedom to contract a fundamental right that bakers had in
opposition to the police power. Maximum hours interfered with freedom, laws that
purport health reasons often have other motives, did not buy the health of bread
argument as a reason to limit the hours, less restrictive alternatives possible)
ii. Whats wrong with Lochner Formulation of Economic Liberty
1. Harland: Strict scrutiny satisfied because gov. does have compelling interest and no less
restrictive alternative.
2. Holmes: Does not believe liberty applies to a prohibition of the regulation of the free
market, Free Market not ordained by natural law. REAFFIRMS ARGUMENT
STRUCTURE.
iii. Economic Liberties Today
1. Standard of Review for economic regulations switched from strict scrutiny to rational
basis test.
2. Economic regulation laws considered to have legitimate government purpose.
3. (US v. Carolene Products, Court upheld filled milk statute prohibiting milk filled with
oil because presumption of rationality. Unimportant what legislative intent was.
4. Famous Footnote 4: Two standards of review, rational basis most of the time, strict
scrutiny for fundamental rights and protection of insular minorities).
FUNDAMENTAL NON-ECONOMIC LIBERTIES
1. Right to Purchase and Use Contraceptives (Griswold v. Conneticut, Two Conn. Laws, one that banned using
birth control and one that banned aiding and abetting. Two doctors were fined for giving contraceptives to
married couple.)
a. Court characterizes right as the right to privacy. Rejects that this right stems from 14th amendment.
b. Example of ineptitude and confusionWhy?
i. Douglas refers to the different amendments of Bill of Rights, (1,3,4,5) as creating penumbras of
privacy. These penumbras create zones of privacy that this right is under.
ii. Douglas, trying to avoid Lochner arguments through penumbra approach.
iii. Characterizes right as the need to protect privacy in bedroom, Stupid because of obvious non-
protected acts in the bedroom.
iv. Illogical to make general privacy rights for specific privacy rights.
c. Goldberg: 9th Amendment supported non-textual rights, like privacy.
d. Harlan: Right to privacy should be protected under 14th amendment liberty. Is the right to privacy a
fundamental right. Compelling state interests, illicit sexual relationship. This ban on married couples
does not reinforce compelling state interest.
e. Einstadt v. Baird: fundamental right to control whether to have child, no legitimate gov. interest
2. Right to Have An Abortion
a. Roe v. Wade
i. Identify Liberty Interest
1. Blackmun, reviews tradition. Looks at ancient Greeks because there is no American
tradition, Blackmun is an idiot.
2. Country is made of different interests, there is emerging tradition. Again cuts against
his argument, no emerging tradition that people can kill their babies.
3. Cites to different cases finding privacy interests Different kinds of privacy from right
to abort.
4. MAGIC = Fundamental Right, found under the 14th amendment, not penumbras
5. Sadly, Blackmun characterizes the right as unwanted parenthood instead physical
intrusion.
ii. Strict Scrutiny, State Compelling interest.
1. Health of mother and health of fetus
iii. Outcome
1. A woman has a fundamental right to have an abortion before viability (typically found
to be in the first trimester of pregnancy) but afterwards the health of the mother is
compelling interest and legislation can commence.
2. Gives right to attending physician as a rhetorical advice.
iv. How would we create a better Roe
1. Characterize the fundamental as physical intrusion.
2. Characterized the right as liberty interest instead of fundamental, and legitimize the
right of the baby.
3. Right as equal protection, prohibiting abortion applies exclusively to women, so gender
discrimination.
b. Casey v. Planned Parenthood DID NOT OVERRULE ROE
 i. Lower the right on liberty hierarchy
1. Abortion downgraded to liberty interest.
ii. Test: Undue Burden
1. Is their going to be a substantial obstacle to woman getting an abortion.
2. Balancing of the interests of state in protecting life v. womans right to have an abortion
pre-viability
a. (End of the trimester system)
3. Not Toothless Court uses data to determine undue burden or not.
a. Allowed Legislation
i. 24 hour waiting between meeting with doc. and having the abortion, to
think about it.
ii. Mandatory detailed information about the fetus.
iii. Reporting and recording requirements.
b. Prohibited Legislation
i. Spousal notification unconstitutional. (Fear of death/great bodily harm)
ii. Prohibition of Partial Birth abortion (Stenberg v. Carhart)
iii. Importance of Precedent
1. Court rationalizes upholding central holding roe because liberty finds no refuge in a
jurisprudence of doubt.
iv. Blackmun wants to stick completely to Roe holding.
c. Funding for Abortion
i. State legislatures can deny funding for abortion if they wish,
1. Rational Review, Strict Scrutiny not warranted.
2. People can do what they want and government may not be able to stop them, but the
government has no affirmative to help you do what is constitutional
3. (Mayer v. Roe- Connecticut practice of funding childbirth but not abortion
constitutional, absolutely decided correctly)
ii. Even if abortion medically necessary, state government has no affirmative duty to provide
financial assistance to carry out your constitutional rights. (Harris v. McRae, funding
limitations for medically necessary abortions)
1. Wrong Because: There is tradition to correct medical diseases, regardless of whether
abortion is the cure, this could even be a fundamental right.
d. Family Relationship
i. Fundamental Right to keep the family together, even extended family.
1. (Moore v. East Cleveland, City Zoning Ordinance limiting unrelated people from living
together, unconstitutional because familial living a fundamental right established by
tradition)
a. Compelling Interest: Keeping out riff-raff, prevent overcrowding served
marginally, lots of less restrictive alternatives. Keeping a areas upscale not
compelling to overcome fundamental right.
ii. Fundamental Right To Marry
1. (Zablocki v. Redhail, Wisconsin law prevented individual from obtaining a marriage
license without court approval and person was deadbeat parent, court holds right to
marry as fundamental and state interest in ensuring child support as compelling. But
concurrence points out, less restrictive alternatives.)
iii. No fundamental right for biological father when mother is married
 1. **If procedure to where by biological father could have preserved his right. (Stevens,
5th Vote).
2. (Michael H. v. Gerald D., no fundamental right for biological fathers to legitimize their
parental rights if wife married. Tradition does not support the rights of unwed baby
dadies, EVER)
3. Brennans Dissent: Tradition should not be basis for determining fundamentals,
Constitution does not work in a homogenous society. Someones unfavorable practices
still should have constitutional protection.
4. Two conflicting fundamental interests: Marital Right trumps Biological Rights
e. Man on Man Sexuality
i. Old Law
1. (Bowers v. Hardwick, Georgia statute prohibited certain sexual acts (sodomy or oral
sex), somehow discussion got converted into rights of guys. (Steven would have
characterized right generally)
2. (White, no tradition of right to partake in homosexual activities, thus rational basis
review and law upheld)
ii. New and Improved Law
1. Fundamental Right to Engage in Consensual Sexual Acts
a. Tradition was misconstrued in Bowers, there is a fundamental right to engage in
private sexual activity.
b. Kennedy also focuses on emerging tradition because there is no tradition for
accepting homosexual activity, tradition is fractured. So essentially right is a
moral judgment.
2. Type of Scrutiny not Specified
a. Definitely heightened scrutiny, could even be an absolute right. Should have
been specific.
3. (Lawrence v. Texas, court held unconstitutional Texas law that made homosexual
conduct a criminal offense)
f. The Right to Die
i. Competent persons have a liberty to refuse medical treatment. Legitimate state interest in the
protection of life.
1. A state may require clear and convincing evidence of persons intent. (Tradition that
forced medical treatment was a battery)
2. A state may prevent family members from ending life absent clear intent.
3. (Cruzan, Cruzan suffered severe head injuries in an automobile accident and was in a
persistent vegetative state. State intervened from parents wanting to end her life,
remanded to determine intent)
4. No level of scrutiny announced, probably intermediate.
ii. No Fundamental Right in Ending Ones Own Life
1. Rational Basis Test
2. No Fundamental Right
a. Tradition existed that disapproved of suicide and attempted suicide.
b. State Interest in preserving life, and this is rational way to protect that interest.
3. (Washington v. Glucksberg, S. Ct. rejected facial challenges to state laws prohibiting
aiding a suicide and the claim that there is a prohibition on the constitutional right to
physician assisted suicide)
 4. Justices leave open distinct set of terminally ill patients who cannot end their pain.

Equal Protection Cases

1. Equality Issues
a. Different conception of equality lead to different results in the cases, are we trying to treat everyone
equally or restore past inequalities.
b. Being Equal v. Distributing Equality
c. EP Clause does not answer hard equality issues.
2. Argument Structure
a. Default presumption that gov. action constitutional.
b. Move from presumption if Suspect or Semi-Suspect Classifications Exist
c. Suspect Classification on Fact = Automatic Strict Scrutiny
d. Semi Suspect Classification = intermediate scrutiny
e. Facially Neutral racial discrimination = strict scrutiny, but calls it something else. Slightly different
argument structure.
f. Fundamental Rights cases based on classification = strict scrutiny
i. Example= State agency which does not allow people that have had abortion to work there.
g. New Suspect Classification
i. Court reluctant to find new classifications, says using the rational basis test, but still striking
down laws that single out mentally impaired or homosexuals.
3. Race Suspect Classification
a. Using old harm Classification
i. Identify the harm to rebut the presumption of constitutionality.
ii. Strauder v. West Virginia
1. (West Virginia law declared unconstitutional that limited jury service only to the white
man. Court found harm to blacks because of lack of participation in administration of
justice and participation in judicial community)
iii. Plessy v. Ferguson
1. (Black man who looked white tried to board white part of train, was denied access.
Court could not discern cognizable harm in sitting in back of bus so presumption of
constitutionality not rebuttable. Separate but equal laws do not stamp the black race
with inferiority, the black race stamps themselves with that label.)
2. Harlan Dissent: Everyone knows this law was to rebut blacks from white areas and not
vice versa. And these laws plant the seeds of race hate.
iv. Brown v. Board of Education
1. Why characterize harm instead of strict scrutiny?
a. Puts court in vulnerable position, narrows opinion to education.
b. Wanted to show harm by focusing on education.
c. Cannot expand Brown to other issues.
d. But, directly overrules Plessy, gets the ball rolling. Had the social science
evidence.
e. Politically could not suddenly go to strict scrutiny or no unanimous.
b. Under 5th Amendment
i. Equal protection applies to Fed. Gov. through due process clause of 5th Amendment.
ii. Discrimination mat be so unjustifiable as to be violative of due process.
iii. Requirements for equal protection the same under 5th and 14th amendment.
 iv. Why: Could not apply EP to state and not federal gov.
v. Bolling v. Sharpe, segregation in Washington Schools unconstitutional.
1. Discrimination caused by segregation is violative of the due process clause of the
constitution and thus, unconstitutional.
c. Current Argument Structure for Racial Classifications
i. Suspect Classification = Strict Scrutiny
1. Korematsu v. US
a. Upheld evacuation of Japanese Americans in WWII. Court applied strict
scrutiny and the scrutiny was overcome because of the compelling interest in
national security.
b. There were less restrictive alternatives that were overlooked.
2. Palmore v. Sidoti
a. Law denying mother custody of child because she married black man
unconstitutional. Gov. classification based on race thus strict scrutiny. Will not
support compelling interest (that of child) if it ratifies the exact harm court is
trying to do away with. NO HECKLERS VETO. Effect of racial prejudices
cannot effect outcome of cases.
ii. Racial Classifications that Burden Blacks/Whites Equally
1. Anti-miscegenation statutes that punish both races equally apply strict scrutiny
a. As long as there are distinctions in the statute based on race, there is suspect
classification and thus strict scrutiny.
b. (Loving v. Virginia, law unconstitutional which makes it a crime for blacks and
whites to marry, but punished both races equally)
iii. Facially Neutral Laws
1. Facially neutral that have administrative purpose for discrimination unconstitutional
a. (Yick Wo, although law facially neutral, heavy evidence that 200 Chinese
Applicants denied and only one white person is used for non-discriminatory
purpose)
2. If no facial classification Look for Purposeful Discrimination
a. Justification
i. EP clause interested in stopping discrimination, not in bringing about
equal results.
ii. Countless laws have discriminatory result.
iii. Laws benefiting minorities counter those that have detrimental effect.
b. Criticism
i. Purpose hard to prove. Benign purposes can be articulated for most laws.
c. Looks as if discriminatory impact and purpose are required.
d. How to prove Purpose (Arlington Heights)
i. Impact so extensive proves purpose (Yick Wo)
ii. Statistical Pattern that can only be proven by dis. Purpose.
iii. Legislative History can prove purpose.
e. (Washington v, Davis, police aptitude test, although they may have had dis.
Impact, there was No discriminatory purpose, legitimate gov. purpose of
uniform standards of literacy, whites failed too.)
iv. Affirmative Action
1. Strict Scrutiny for all government affirmative action cases.
 a. Problem: Earlier, Classification bad for minority groups but the idea here is to
rectify a wrong. Classic battle within framework of equality.
b. However, equality based on rectification is a decision based on race.
2. Deciding Strict Scrutiny
a. Regents of CA. v. Bakke, saying that quotas unconstitutional because
compelling interest is diversity in education and less restrictive alternative in
just thinking about race as factor like Harvard)
i. 4 justices say intermediate scrutiny. 4 say automatically unconstitutional.
ii. Powell believes strict scrutiny and writes opinion.
3. Grutter v. Grazt in Michigan
a. Upholds law school thinking about race as factor in admissions and calls
unconstitutional undergraduate program automatically giving 20 points to racial
minorities in admissions.
b. Inconsistent Decisions
i. We say certain things that give us comfort and make no sense.
ii. Cannot take race into account if do not quantify the factors. (Brennan in
Bakke)
iii. No Substantive Difference btwn Grutter and Gratz. Situation is internally
irrational. Maybe if you dont think about it, the problem is not there
th
4. 5 Amendment Federal Affirmative Action
a. Addarand, court held strict scrutiny should be applied to all fed. legislation
based on affirmative action.
b. OConnor reaffirms that if race based legislation necessary to further compelling
interest and narrowly tailored it will be upheld.
c. Thomas Dissent: Affirmative Action demeans AA.

v. GENDER DISCRIMINATION
1. Standard of Review
a. Intermediate Scrutiny appropriate level of review.
b. For law to be constitutional, law must serve important governmental objectives
and must be substantially related to those objectives.
c. Racial discrimination inherently irrational, but gender differences exist
d. After Virginia, exceedingly persuasive justification necessary to support
classification.
2. Applies to laws discriminating against males as well
a. (Craig v. Boren, although traffic safety is an important government objective,
law prohibiting men from drinking until 21,while women drink when 18 is not
substantially related to those objectives, basis is primarily statistical evidence)
3. Intermediate Scrutiny for Gender Discrimination
a. (US v. Virginia, slightly raises the standard of review to higher intermediate
scrutiny and invalidates the male only Virginia citizen-soldier school because the
maleness of the school is not substantially related to those objectives)
4. Pregnancy Discrimination not Gender Discrimination Rational Basis
a. (Geduldig. V. Aiello, not a denial of EP for states disability insurance to exclude
on basis on pregnancy because the insurance program included and helped both
men and women)
 b. Criticism
i. Says pregnancy discrimination not sex discrimination. STUPID
vi. Mental Retardation - Rational Basis Test
1. Even under rational basis, courts willing to break tradition and find EP violation
2. Because mental retards are different, wide latitude must be given to legislature to
provide for them. (Reason for no heightened scrutiny)
3. Because it is necessary to take retardation into account, no presumption of invalidity.
4. Rational Basis Test But a weird heightened one (Burger Stevens)
a. Legislation must be rationally related to a legitimate governmental purpose.
5. (Cleburne v. Cleburne Living Center, prohibited Cleburne decision to not allow retard
home under rational basis test, even though the test was a little more than rational basis)
vii. Homosexuals Rational Basis Test
1. Court willing to reject homosexual laws on rational basis test, that they serve no
legitimate gov. interest.
2. No legitimate purpose in singling out a political group and preventing them from using
political process. Purpose of amendment was to make gays unequal to everyone else.
3. Romer v. Evans, court uses rational basis test to invalidate Colorado voter amendment,
prohibiting any law that protects gays in any way.)
viii. EP and Fundamental Interests
1. Right to Vote Strict Scrutiny
a. Fundamental right based on tradition the usual.
b. State violates EP when it makes affluence of voter precondition of voting.
c. (Harper v. Virginia State Board of Elections, held poll tax as unconstitutional
because limiting those who can vote to thise who pay the tax is discrimination
and classification based on affluence)
2. Dilution of the Right to Vote
a. Population the only permissible basis for voting district. Cannot use geographic
location, even for state legislatures.
b. EP Clause requires legislatures to be apportioned based on population basis and
vote dilution does not give citizens equal protection under law.
c. (Reynolds v. Sims, mal-apportionment of Alabama legislature unconstitutional
because 35 districts ranged from 15,00 to 600,000 people.)
ix. State Action Doctrine
1. Congress can only regulate actions of the state, not of private entities.
2. Public Function Exception
a. The private enforcement of a public function can amount to exception to State
Action. (Marsh v. Alabama, Jehovahs witnesses wanted to leaflet in company
town and ct. held that running of a city was a public function and most be done
in compliance with constitution)
b. Refusal to Extend Marsh to Public Shopping Areas (Lloyd v. Tanner)
c. But shopping centers dont have constitutional right to exclude. (Pruneyard)
3. Entanglement Exception
a. Constitution applies if the gov. authorizes, encourages or facilitates private
conduct that violates the constitution.
b. Shelley v. Kramer, courts cannot enforce racially restrictive covenants.
4. Government and Licensing Regulation
a. Only sometimes constitutes state action.
b. Burton v. Wilmington Parking Authority, parking authority in Delaware leased
space to private property to a coffee shoppe that denied person service only
because he was black.
c. Symbiotic relationship was enough to create state action.
d. On the other side, Blum v. Yaretsky, no state action where state Medicaid
benefits forced nursing patients to move health facilities because extent of state
regulation and financial incentives for the transfers were not sufficient to invoke
state action.