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Constitutional Law Outline

Spring 2016

Bill of Rights Summary

1 Freedom of religion, speech, press, assembly, and petition.
2 Right to keep and bear arms in order to maintain a well regulated militia.
3 No quartering of soldiers.
4 Freedom from unreasonable searches and seizures.
5 Right to due process of law, freedom from self-incrimination, double jeopardy.
6 Rights of accused persons, e.g., right to a speedy and public trial.
7 Right of trial by jury in civil cases.
8 Freedom from excessive bail, cruel and unusual punishments.
9 Other rights of the people.
1 Powers reserved to the states.
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Origins of Judicial Review

Natural Born Citizen
1. Ted Cruz, born in Canada, to an American mother and Cuban father,
claims to be a natural born citizen.
2. How do we determine a natural born citizen?
a. To analyze we look at
i. Cases
1. There aren't any
ii. Text
1. What does a natural born citizen
mean?
2. Some say this phrase was something
invented by the framers.
ii. History
1. Founders history v subsequent history
2. Mitt Romney's father was born in
Mexico but ran for president. He dropped out before any primary
so there is no president.
3. John McCain was born in panama but
congress passed a resolution declaring him a natural born
American.
ii. Justice
iii. Structural
1. Is this workable?
2. What would happen to our system of
government if you adopted one interpretation versus the other.
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3. Some interpretations would be less

workable than others, those should be avoided.
4. We need our government to operate in
an efficient and workable way.
ii. Prudential
1. Some things, when it comes to courts,
that they cant do.
2. Say the president says we need to go
to war against ISIS.
3. Say, I go to the federal court and get
an injunction.
4. It wouldnt work because judges cant
enjoin wars.
5. It's not in the constitution but its just
something we leave to the appropriate branches.

When analyzing questions of constitutionality, several factors are to be considered:

1. Text
2. Structural
3. History
4. Doctrinal
5. Moral
6. Prudential

McCulloch v. Maryland
Leg. Power, Federalism
In 1818, the Maryland state legislature passed a law requiring a tax for any bank not
created by the legislature. This exclusively included federal bank created by
congress. The state instituted a tax of $15k that was perceived as to be intended to
chase the bank out of the state. The federal bank authority refused to pay the tax.
1. The bank saw opposition from people in the country.
a. It was found favorable in times of war.
b. Country wouldnt be able to borrow money without it.
1. When we see similar people being treated differently, we need to ask, why is this
happening?
a. The bank didnt have a vote in the legislature and was targeted as a result.
b. There was no other reason provided other than, we dont like you.
2. Text: there is no express provision that grants authority to congress to
make banks.
a. The court doesnt stop there. They find other ways to
justify congress's power.
b. The court uses the Necessary and Proper clause and
Commerce clause to justify.
i. This is a solution to all problems.
ii. They cite the usefulness of having a bank to serve government interests.
1. Structure: It doesnt give congress this broad power, its just not a narrowing thing.
a. Marshall says the term necessary and
proper doesnt mean necessary, it means helpful.
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b. If it were absolutely necessary, why

would you add proper? If it's necessary its also proper, its a redundant
statement.
c. Marshall expounds this to say that the
framers intended necessary to also helpful.
d. Congress isnt just something with
power, it is an accountable body through the balance of powers.
i. They should be given flexibility
to pass legislation
ii. If the public doesnt approve
they can vote them out, the Supreme Court can rule the legislation
unconstitutional, or the president can veto the legislation.
b. He uses this argument to define
congress's actions as constitutional
c. The argument is crafted to persuade
you that this action is the logical route.
1. History: Congress has already debated and settled this on more than one occasion.
a. This isnt really a debate about its constitutionality.
b. Its more of a seal of approval.
2. Doctrinal
a. There were no/little cases cited in this case
i. Partially due to it being early in the history of the
country and Supreme Court
ii. So, there is little to no doctrinal order.
2. Moral
a. Corporations are means to an end.
i. What's the big deal with allowing congress to
choose the means to the ends that it's been given to execute?
ii. A corporation is just a legal form.
iii. At that time a corporation had a much broader
meaning than it did today.
1. Today, they are typically defined as a
for profit entity.
2. Then, it was seen as any entity
chartered by the state for legal purposes
a. That included
universities, religious organizations, businesses, etc.
b. At that time, they would
have said, Marion County is a corporation
i. It is
organized by the state, to serve certain purposes, and
regulated by the state.
2. They understood a corporation as a
person in the sense it could be sued.
a. The idea wasnt foreign to
them but it wasnt as it's understood today.
ii. Are corporation's different than individuals?
2. Prudential
a. Some framers didnt like paper money
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i. They felt it was a way of taking money from lenders

and giving it to debtors.
ii. It's in the constitution that money should be in gold
or silver.
iii. Some took this to the Supreme Court and asked
them to deem it unconstitutional.
1. It wouldnt be efficient or prudent
2. It wouldnt do it.
b. The court took a similar approach to the question of the
federal bank.
i. What about all the people who had loans from the
federal bank.
b. People have been arguing about corporations for 200
years.
c. All of this only analyzes the question of the
constitutionality of the bank.
d. The second issue is the tax.
i. Federal employees have to pay state income tax.
1. Isn't this unconstitutional by Marshall's
argument.
2. There isn't anything special about an
income tax or sales tax.
ii. If the state posed an additional tax on only federal
employees, that would be more similar.
iii. Marshall is saying, states can tax federal entities if
the tax is apart of a general tax for similarly situated entities.
1. A power to tax federal entities
exclusively is problematic because
2. Post Script
a. Once people start picking up that the federal government
should be stronger again, McCulloch gets cited again to support their
argument
b. If you would have been reading this in 1850, McCulloch
would have been viewed as a failure.

Marbury v. Madison
Jud. Review, Const. Interp.
1. Established Judicial Review
a. Judicial Review
i. A crucial component of checks and balances.
ii. A theory of judicial review is that it protects
minorities
1. It could be a minority of one.
a. Person could want to
exercise a type of religion that others dont want to.
2. The courts protect minority rights in a
way that the other branches may not.
a. They're not the only one
that protects minorities
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b. They're just specially

adapted to it.
ii. Supplies uniformity to constitutional interpretation.
iii. Provides a level of finality to constitutional
meaning.
1. "Were not final because were in fallible
were in fallible because were final."
2. If there were a super supreme court
they would probably overturn the Supreme Court on occasion.
ii. Rational arbiter to decide long term consequences
of legislative matters of certain controversial issues.
1. Legislatures tend to make knee jerk
reactions to issues
2. Courts help to weigh the long term
consequences of these issues.
ii. Promotes justice
1. This isn't an absolute, Dred Scott
obviously didnt reach a judicious end.
ii. Promotes democracy
1. Streams lines the political process
2. For the process to occur, rules have to
be implemented and enforced.
3. The courts are apt to police these
rules.
b. Judicial review is subject to public opinions
i. Roe v. Wade is perceived by the public significantly
different than Brown v. Board of Education
ii. Individuals support of judicial review depends on
their politics and decisions that fall along those lines.
iii. Many will say that it is good for the court to make
rulings that fall outside of the parameters of the constitution if it falls
on their party line.
1. When the suit is brought to Marshall, he upholds Marbury's
appointment, but says the court doesnt have the jurisdiction to hear the case.
a. At that time, there was no other court which could
otherwise establish jurisdiction.
2. How else could the court have resolved this without saying they didnt
have jurisdiction?
a. The commission had never formally transferred hands to
Marbury
i. A rule could have stated that unless there was a
transfer of hands then no judgeship.
b. To treat a presidents statements as binding contract
would undermine the process of the balance of powers.
i. The Supreme Court would never order Trump to
appoint Palin to a cabinet position.
ii. There are certain high level decisions that are not
treated as things the courts are going to get involved with.
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1. If the president decided to fire a

cabinet position they couldnt bring a unlawful dismissal suit to
the supreme court.
b. The court, in this instance, didnt take the easy out, they
took the constitutional issue, the hard issue, head on. That's unusual and
notable.
2. Why didnt Marshall just say, Jefferson, deliver the commission
a. Jefferson had already said that they didnt care what the
court said, they weren't delivering the commission.
2. More than anyone, Marshall made the court more powerful.
a. Why doesnt the court do this today?
i. The country and the courts were still new.
ii. They cant get too far from public perception, they
dont have any armies or police to enforce their rules.
iii. Congress has power to restrict the courts
jurisdiction or rules of the court.
iv. Justices want future likeminded justices to be
appointed in the future, for that to happen, certain parties have to
win.
v. The justices care about the reputation of the court
and dont want the court to be perceived as one sided or unfair.
2. Same as the vice president cannot preside over his own trial, the
courts cant be the judge of their rules.
a. But, in Marbury, they are defining their parameters.
b. Someone has to do it.
c. There aren't many people or bodies qualified to hold
power over the Supreme Court.
d. Efforts in the past to regulate the court haven't been very
successful due to difficulty or insufficiency.
2. Eventually, the idea develops that the constitution is the supreme
document ratified by the people and statutes are just statutes passed by
congress who could just be a bunch of "goof balls."
a. The Supreme Court cant change the constitution because
of the amendment process.
2. Part of the reasons for studying judicial review is to determine when it
should be used or shouldnt be used.
a. Few today would say we should just get rid of judicial
review.
b. What is your understanding of what it's doing, and what
should the court do about it.
2. Jefferson didnt like Marbury and saw through this game.
a. He was of the opinion that each branch could interpret the
constitution as they wished.
b. The courts couldnt tell the president what to do because,
I'm the president.
c. This argument resurfaces whenever there is a
disfavorable decision.
i. Chief justice in Alabama is saying currently that
he's not bound by the Supreme Courts decision.
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Dred Scott v. Sandford

1. In contention for worst decision in history
2. Big Implications
a. Courts could not prevent slavery
b. States had a constitutional right to own slaves and
transport them where they desire without fear of recourse regardless of
jurisdictional concerns.
2. They were essentially saying, we dont have jurisdiction over this case
because you're not a citizen because you're a slave.
a. His 19th century understanding was that jurisdiction did
not extend to non-citizens.
2. He then goes into in-depth reasoning as to why slavery was
constitutional.
a. He had intentions of developing a compromise to prevent
the impending civil war.
2. Suppose I said, if you vote for Lincoln hundreds of thousands of people
are going to die.
a. That, at the time, justified weird stuff coming out of the
Supreme Court.
b. Do you stand up for the rule of law, no matter the
consequences; or
c. Do you compromise at the risk of failing and going down
in history as a coward?
2. Most of the stuff about this decision was concerning citizenship and
less of the abhorrent racial language.
a. At the time, many people agreed with the things he was
writing.
b. This wasnt seen as the inflammatory component.
2. Tawney argues that the framers couldnt have intended for blacks to be
citizens because they had slaves.

The Commerce Clause

Commerce Clause of the Constitution
1. Article 1, Section 8, Clause 3
a. "Congress shall have the power to regulate commerce
with foreign nations, and among the several states, and with the Indian
tribes"
2. There are few limitations the courts are willing to apply to congress'
exercise of the interstate commerce clause.
3. If we want to say some things are beyond the commerce power.
a. How do we implement that?
b. The courts have found difficulty in applying this.
i. When they try to define these restrictions,
inevitably someone comes along and finds errors in their definitions
of the restrictions.

Gibbons v. Ogden
Federalism
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1. Ogden received a license from the state of New York to be the

exclusive operator of steamboats in its waters. Ogden brought this suit to
enjoin Gibbons from operating steamboats in the waters between New York and
New Jersey. The New York court held in favor of Ogden. The Supreme Court
reversed that decision.
2. The idea of a federal system is that people can move around and go to
places that they think are better.
a. Part of this includes taxes. Some states have lower taxes
than others, does a state having a lower tax than another negatively
impact a neighboring state if people move there to avoid the higher tax?
2. What is interstate commerce?
a. Transportation of goods and people on boats between
states would probably meet this definition.
2. Marshall is long winded again to further his goal of greater national
authority against the states.
1. Marshall says the commerce power of congress is limited to:
a. Regulating intra state commerce.
i. Why not say that if its interstate fed has authority,
if its intrastate they dont.
ii. The two aren't always mutually exclusive.
iii. Is healthcare interstate?
1. Your local doctor is intrastate.
2. The components of your healthcare is
not intra.
3. Choosing to regulate insurance as
inter and your doctor visit intra creates a patchwork of rules and
limitations.
b. Cannot effect a states ability to tax
i. Two tax systems, federal and state, is more
complicated, but it has been determined to be a necessary
component of federalism.
b. It's regulations have to rationally relate to commerce.
i. Suppose congress were going to say that the dozen
people who die falling in a bathtub effects interstate commerce.
ii. It's not impossible to find that any event or action
can have an impact on interstate commerce.
b. Public opinion limits the commerce power via the power of
the electorate.
i. What if the fed said they were going to abolish all
local school boards and made all schools a subsidiary of the Dept. of
Education?
1. People would throw a fit.
ii. In some things, we dont believe that public opinion
is sufficient to regulate federal powers ,e.g. first amendment.
2. One school of thought is that it should permit congress to regulate
matters of national concern.
a. This concept was rejected and the interstate commerce
clause was adopted.
b. The commerce clause had adapted into this initial idea.
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2. Initially, interstate was not the primary determining factor of its use,
e.g. slavery.
a. The Commerce Clause wasnt invoked in McCulloch
because of its perceived limitations at the time.
i. 100 years later and today it is more commonly
used and accepted.

Things the courts have attempted to determined are not subject to the commerce
clause:
1. Manufacturing, failed and can be regulated under CC.
1. What happens when the finished product is intended to
leave the state?
i. You can regulate it when it leaves the state but you
cant regulate the manufacturing of those goods.
ii. This is easy to evade;
1. Were not going to allow you to
transport your goods over state lines unless the people in your
factory do these ten things.
ii. In a way this is just semantics
1. You cant regulate the manufacturing
of the goods but you can regulate the sale across state lines and
will so unless the manufacturer meets certain qualifications.
2. These are kind of the same thing.
2. Businesses would prefer a national standard as opposed
to differing and conflicting state standards.
3. Overall, this did not hold up for these reasons; and
i. If you're saying there is no power under the
commerce clause to regulate manufacturing then youre in effect
saying the federal government cannot regulate manufacturing.
2. Pretext
1. Is the law a pretext to congress' intended action?
2. Was the law passed to bring about a primary concern
using the commerce clause as an avenue?
3. The courts have found these such laws as unconstitutional
and an abuse of power.
2. Direct/Indirect
1. Is congress' law directly or indirectly intended to regulate
interstate commerce.
2. Starting in 1937, the court seemed to decide they didnt
want to handle these sort of situations any longer.
i. The court began to determine the federal
government's interventions into interstate commerce had a direct
impact on the regulation of such.

Hammer v. Dagenhart
Commerce Clause
1. Congress enacted a law preventing the interstate sale of goods
manufactured by child labor.
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1. You could manufacture goods by child labor all you want,

it just couldnt cross state lines.
2. They didnt say, you cannot manufacture things by child
labor.
3. They were trying to respect, or didnt think it would stand
litigation, intrastate commerce.
2. This didnt stand to the court's scrutiny.
1. The law in its application constricted state regulation of
state companies.
2. The question becomes, are they trying to regulate
interstate commerce or something else?
i. The question of their thoughts on child labor is
irrelevant.
ii. If they're not trying to regulate interstate
commerce then the law is unconstitutional.
2. The law is a pretext to obtain a desired goal.
2. Congress responded to this with a significant tax.
1. Same statute, but instead of ban, they said tax.
2. Court struck down that too.
i. They said, your still trying to do what we said you
cant do you're just going about it in a different way.
ii. This is one of the few times congress' ability to tax
was chilled.
2. Once congress was barred from taxing products of child
labor, there was no further recourse for congress to prevent child labor.
2. One would say, there are certain subjects that are left to the states and
without a constitutional amendment, you cant touch it.
3. What is the direct or indirect effect of congress' action on interstate
commerce.
1. People feel that children should work in the mine for several reasons,
education, and monetary contributions.
1. What right does congress have to tell me how to raise my
children?
2. There was a constitutional amendment
1. It was defeated.
2. Partially due to industries not wanting to lose their work
force.
2. Holms dissents
1. His dissent takes what's closer to the contemporary view
on the commerce clause.
2. It doesnt matter if it was once a state action, if it
substantially effects commerce its under the commerce power.
3. Then, in Darby they use Holms' dissent to justify their
reasoning.

How do we change the constitution?

1. Constitutional Amendment
1. Only used as a means of last resort.
2. Very difficult to do.
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2. Change in justices
1. Voting for presidents that represent your concerns.
2. This is what ultimately changed the view of congress'
power under the commerce clause.
3. Starting in 1937 changes in the court started to expand
congress' power.
4. In 1938 congress passed fair labor laws which prohibited
use of child labor.

United States v. Darby

Commerce Clause
1. Ultimately got rid of congress' limitation on its ability to regulate
intrastate commerce.

Post Darby:
1. Congress can regulate so long as the topic has a substantial effect on
interstate commerce.
2. Substantial effects test; kinda sounds like proximate cause.
3. Its up to congress to decide if something has a substantial effect on
interstate commerce
1. Unless the courts determine congress acted irrationally.
2. The civil rights act of 1967 prohibits racial discrimination by most
businesses.
1. This fell under the interstate commerce by;
i. If you have a business that discriminates this will
effect individuals patronizing your business from out of state.
ii. It would have an adverse impact on their ability to
buy goods and services.

Federal v. State
Federal Government get their power from:
1. The constitution
2. Acts of constitution.
3. There are few things that you would say congress couldnt do because
it isnt explicitly provided in their enumerated powers.
4. The commerce clause is the vehicle that these things get brought
through because it is the broadest clause, with the exception of the Necessary
and Proper Clause.
5. There is also a proximate cause analysis when thinking about the
commerce clause.
1. The clause doesnt give congress the power to do
whatever they want, it's something less than that.
2. However, it's not so hampered that it is relegated to only
trade.
3. Some say, its definition is in between;
i. Local and national concerns;
ii. Economic v. noneconomic;
iii. Intra v. interstate; etc.
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Rational Basis Review

1. The courts weigh the rational basis of some of congress' actions.
2. This is seen in actions under the commerce clause
3. This is kind of like the reasonable basis.

Aggregation Basis
1. An individual may not have a substantial effect on commerce
2. But, every person's combined effort, if they did the act being
regulated, would substantially effect commerce.
3. Where does this end?
4. This brings us to Lopez

United States v. Lopez

Commerce Clause
1. The case opens with, "We start with first principles. The constitution
creates a federal government with enumerated powers."
1. You dont see this in Darby.
i. The court asked the solicitor general (?) of the US,
is there any limits on congress' power? He said no.
ii. This bothered the court.
2. They're starting out by saying congress is limited.
2. How could this be outside the power?
1. The act of possession is outside the stream of commerce.
2. It is almost always an exclusively local concern.
2. Congress probably made this legislation on a political basis.
1. There were already substantial state laws prohibiting the
possession of a gun on school grounds.
2. Thats probably why it wasnt drafted very carefully.

The Health Care Cases

Commerce Clause, Tax, Spend. Power
NFIB v. Sebelius
1. The court holds that under the commerce clause, congress cannot
require you to buy insurance.
1. However they are permitted under congress' ability to tax.
2. In the 80's, congress, under the commerce clause, required hospitals
that accept Medicaid or Medicare have to accept patients regardless of their
ability to pay.
3. The court ruled that congress couldn't make you do something you
werent doing otherwise under the commerce.
1. The dissent says that failing to ensure yourself puts you in
the stream of commerce by "self-insuring"
2. This argument reverts to the whole, if you're not doing
something, is that in itself doing something?
2. An individual mandate isnt like a direct mandate, do this or go to jail.
1. The tax gives you a decision.
2. Other forms of direct mandates are;
i. Draft
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1. There is a national interest that may

be exclusive and unique.
ii. Jurors
1. The government could pay jurors
better but they dont have to so they dont.
ii. Census
1. If you knowingly refuse it's illegal.
2. Many have cited these examples to justify ACA.
2. Necessary and proper clause, McCulloch.
1. The necessary and proper clause has no precedent of
requiring individuals to do something they werent doing before.
2. The Chief Justice quotes McCulloch a lot in his decision.
2. The Chief Justice upholds the individual mandate because he justifies it
as a tax.
1. He looks at it as a tax instead of a fine as it is listed in the
ACA.
2. Why then did he say all the other stuff about the
commerce clause?
i. He wanted to make a speech, like Marbury.
ii. He knew, being appointed by a republican
president, he would be criticized for his decision upholding ACA.
iii. He could also have been wanting to limit congress'
future ability to require people to purchase other products.
2. When Mass. adopted the law similar to the ACA no one questioned its
constitutionality.
1. No one doubts the state's ability to police the populace
and require them to do certain things.
2. The federal government doesnt have that explicit right
bestowed on the states.
2. The longer the law is on the books, the harder it will be to repeal.

The Dormant Commerce Clause

1. Gibbons v. Ogden, dicta, Chief Justice Marshall: the power
to regulate interstate commerce "can never be exercised by the people
themselves, but must be placed in the hands of agents, or lie dormant.
i. Treats regulation that does not discriminate against
or unduly burden interstate commerce as a concurrent power rather
than an exclusive federal power, while treating regulation that does
do those things as an exclusive federal power.
ii. Congressional power is somewhat exclusive but not
absolutely exclusive.
iii. Does the law discriminate against out of state
interests or favor in state interests.
iv. A state law which passes a law increasing taxes on
out of state residents.
2. First thing to say about the dormant commerce clause is
that it doesnt exist in the constitution.
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i. When execution of the commerce clause prohibits

or restricts
ii. If there were a federal statute that spoke to a
regulation of commerce you have to divert to it, it trumps.
2. Why cant states do whatever it wants or congress can do
whatever they want, unless a right is given to the state.
i. If congress doesnt like it, it can prohibit it.
2. Facial Discrimination
i. Clear and obviously discriminatory
ii. Always invalid.
iii. Exceptions
1. Out of state tuition
a. State universities are
funded by state taxes
b. Residents should receive
a benefit from that tax.
2. Fishing licenses
a. The rise in rates makes it
cheaper for residents.
2. Essentially, there has to be a good
reason for discrimination.
3. Private entities can do what they want
to do.
a. If you dont like the price
behind the state university go to another university.
b. They are participating in
the competitive market place as a private entity.
2. Intentional Discrimination
i. It is intended to be discriminatory but doesnt say
that is what it's expressly doing.

Philadelphia v. New Jersey (Supp)

1. What is the problem is there with importing garbage?
1. Why not pass a law that prevents further landfills or tax
importers.
i. Many other problems are presented with this.
2. It is easier to just pass a law to keep
i. NJ is saying that out of state garbage could result in
accidents, posing environmental hazard.
ii. They could exhaust their ability to contain this
material.
iii. Health hazards associated with landfills.
2. The court holds that the state has a reasonable interest in
preventing out of state garbage but this is insufficient.
i. The state must have a compelling state interest.
1. Very Important
2. Determining Discriminatory Intent
i. Why did you pass the law?
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1. Public health is generally a compelling

interest.
2. Taxes, is not so compelling.
ii. How did the law obtain this goal?
1. Is the law "narrowly tailored" to obtain
your goal?
2. If they are not obtaining that goal
through an effective means it is probably going to be
unconstitutional due to inconsistency.

Quarantine Exception: Ebola in Ohio, people from Ohio aren't allowed to come to
Indiana.
1. Emergency
2. Temporary
3. Narrowly tailored

Disparate Impact
1. When you have discrimination you're given an opportunity to explain
why it's constitutional.
2. A disparate impact isn't a kill shot on its constitutionality if you can
show there is a compelling interest.

Kassel v. Consolidated Freight (Supp)

1. State argues public safety and road condition concerns in its intent of
prohibiting 65' tractor trailers.
1. There were exemptions for livestock, border towns,
2. Trucks at this point either have to unload and get a different truck or
drive around Iowa.
3. There is a clear disparate impact and intentional discrimination.
1. The lower court held there was insufficient evidence to
show the regulation increased the safety of Iowa roads.
2. Only when you show there is a considerable safety
concern can the law be valid.

Carbone v. Clarkstown (Supp)

1. Local processing plant makes an order requiring all garbage originating
within the jurisdiction to go through a processing plant. They are required to
pay a fee to have their garbage go through the plant, which in turn financed
the building of the facility.
2. Cities get their authority from state law.
1. Suppose the state said, we dont want Indianapolis
anymore. They grant it new boundaries and a new name.
2. There is no federal law regulating local law. Or, anything
under states.
3. A local government is responsibilities the state
government has delegated to someone else.
4. You dont have a right to a mayor, they easily could be
appointed by the governor.
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2. How can a local garbage processing plant have any effect on interstate
commerce?
1. The premise is that not just this one town but if all the
towns did this then there would be a substantial effect.
2. The court held that the state was putting in place two discriminatory
practices that are blatantly intended to effect outside interests.
1. The court was in effect saying that if you were to hide the
effects in a less clear way it probably would have been permissible.
2. The dissent said that it is wrong to uphold the ones that do it in a
dishonest way and overturn the ones who were honest and up front about it.

West Lynn Creamery v. Healy (Supp)

1. Brief Fact Summary. A Massachusetts statute required all milk dealers in the state to pay a
monthly premium payment into the MA Dairy Equalization Fund. Every month the fund was
distributed to MA milk producers (dairy farmers) so they could compete with lower cost dairy
farmers from other states.
2. Synopsis of Rule of Law. State taxation of interstate commerce is allowed so long as the tax does
not discriminate against or cause an undue burden on interstate commerce. The Dormant
Commerce Clause prohibits economic protectionism.
National Market
1. Suppose we say dairy is important to the state for several reasons.
1. We thus subsidize dairy farmers in the state with tax
revenue.
2. Does that distort the national market?
i. Depends on the size of the subsidy.
ii. It's not a discrimination against interstate
commerce.
1. It doesnt do anything to out of state
producers.
2. It just makes local state cheaper.
ii. It could make other states have to do the same
thing to keep up.
2. This could be the argument that subsidies effect
interstate commerce.
i. Typically, subsidies have been permissible.
2. Whats the difference between putting a tax on outside
milk and subsidizing local milk producers?
i. One is expressly discriminating against outside
goods.
1. This looks worse.
ii. The net effect is the same in terms of the effect it
has on the local industry or interstate commerce generally.
iii. Tariffs, taxes, on the face discriminate where
subsidies dont.
2. You could say that any tax has an effect on some out of
state people
i. Those taxes go to pay for subsidies.
 17

Comptroller v. Wynne (Supp)

1. State had a provision to tax citizens who made out of state income.
Effectively, taxing them twice. This was intended to encourage them to
relocate or not bring their business out of the state.
2. Thomas said that a states ability to tax shouldnt be seen as an act of
commerce. He hates the dormant commerce clause.
3. OYEZ: Question
1. Does the dormant Commerce Clause of the Constitution prohibit states from taxing all the
income of their residents by mandating a credit for taxes paid related to income earned in other
states?
4. Held
1. Yes, the dormant Commerce Clause prohibited a tax scheme like Marylands, which
discriminates against interstate commerce without Congressional approval. The Court held that,
to be permissible under the dormant Commerce Clause, a tax scheme must satisfy the internal
consistency test, which asks whether the tax scheme in question would disadvantage interstate
commerce if it were applied identically in every state. If so, then the tax is unconstitutional.

Federalism

Once a state is created, Congress does not have the power to remove it from the
union.
During the civil war West Virginia was created from Virginia, but they had seceded.
Federalist #45-46 (Supp)
The Federalist 45 discussed how the states can regulate the federal government.
None of these listed are really relevant today.
1. Enumerated Powers: The federal government only has their
enumerated powers.
1. The states retain the remainder of the power.
2. This was true at one time but not today.
i. Congress's powers are very expansive now.
2. Structure: Congress is made up of people representing states.
1. This is chilled by party interests
2. Parties are a way of overcoming the states and local
differences.
3. People start thinking they are more a part of a party than
they are of a state.
4. This makes them more interested in the party's interests
than their state or local interests.
5. Ability to amend the constitution.
2. History
1. Many states which tried to enforce a strong centralized
government over their populace eventually failed.
2. Resources
 18

1. The government doesnt have the capital to infringe on

the governments of the states.
2. Military
1. Who had the troops?
2. There were no national army, the framers were hostile to
this idea.

Madison said public opinion over all will dictate the balance of power between the
states and federal government.
1. If the public agrees with the quality or ability of the federal
government to regulate they will entrust more power in the federal
government.

Today, there are some ways the states try to regulate the federal gov.
1. Experiments
1. This is more of a positive argument.
2. They pass laws to test federal limits.
2. Local Control
1. Your chances are greater to have access to a governor
than the president.
2. State governments are better connected to their
populations and public opinion effects the movement and direction of the
federal government.
2. Balance of power amongst parties.
1. It is impossible for a party to gain control of all three
branches of the federal government.
2. It is not as difficult for them to gain complete control of a
state.
i. Texas v. U.S.: Texas is about as opposed to the
Democratic Party as possible.
ii. They are suing the US over Obama's immigration
measures.

Prigg v. Pennsylvania
1. Under the constitution a bounty hunter could cross state lines and
retrieve fugitives, including slaves. The defendant was prosecuted by Penn
after violating local law requiring any bounty hunter get permission from a local
court to do so.
2. The Sup. Court held that the state law was unconstitutional.
1. They overturned efforts for state officials to hear cases of slavery recapture and
return to slave states.

If you invest all policing powers in the state governments, who exercises
immigration, a federal law.
1. ICE is a very limited agency with little to no ability to enforce
immigration laws.
 19

2. If the states, including all local police departments, assisted to help

ICE, a very limited federal agency, we could have more conclusive
enforcement.
1. States are less likely to agree with being told what to do.

Gregory v. Ashcroft
10th Amendment, Constraints
1. A Missouri law requiring state judges to retire at age 70 was challenged
by judges facing this regulation. They claim the law is in violation against the
Age Discrimination in Employment Act and is in violation of the Equal
Protection clause of the constitution. The state counters by arguing that the
ADEA as amended exempts certain government employees from the act,
including policy makers and appointees. The state argues the judges meet
these qualifications.
2. The court holds that the state has a legitimate interest in selecting its
policy makers. The court went on to say that the amendment would be strictly
construed to determine the meaning congress intended. If congress intended
to exclude judges from the policy maker/appointee exemption it would have
expressly stated that but it didnt.

In several states, the federal government has indicted the governors of states for
corruption.
1. How can the federal government come and slam a states governor in
jail.
2. Or, make it a part of their plea that they resign from their position.
1. No one thinks either of these as unconstitutional.
2. Does the government think that bribery is such a specific
and legitimate interest?
3. The constitution grants to each state a republican form of
government
i. A governor taking a bribe violates this in that it
makes the government non-republican.
2. The government indicting congressmen for corruption,

Boston Bombers
1. They were tried in federal court for a capital offense.
2. Mass. Doesnt have the death penalty.
3. Is the federal government undermining the decision of the people of
Mass. By imposing the death penalty?

U.S. Term Limits v. Thornton

The constitution sets three requirements for being in congress.
1. The national legislature has to be uniform in terms of the people
eligible to be elected to it.
2. Some states have different rules than others as to who can vote.
3. Uniformity for people who can be elected.
4. If somebody is a congressman, are they a representative of a state to
the federal government or of the federal government representing the state.
1. Are they a state representative to Washington?
 20

2. Are they state agents or federal?

2. Congress cannot add qualifications
1. They could put restrictions to prohibit challenging
incumbents.
2. They can expel a person with a super majority, 2/3rds
3. They cant prevent a person from sitting if they meet the
three requirements.
i. This arose in a case with the first black
congressman.
2. There is a conflict of interest.
2. But, can the states?
3. Wasnt saying, the only way you could set term limits is by
constitutional amendments, create an additional concern about conflict of
interest?
1. The only people who would be able to propose this are the
people who would be detrimentally effected by it.
2. Another constitutional congress would have to be
convened for this to occur.

Printz v. United States

10th Amendment, Commandeering
Federal law told state attorneys general to do background checks on gun buyers.
Federal regulations requiring state law enforcement to act as an arm of the federal
government.
1. This is very important that it is a gun law.
1. Many of the justices later say that this is a concern and
violation (?) of the 2nd amendment.
2. The law required state law enforcement to act without providing any
additional funding.
1. They have strict budgets.
2. They take the burden of it and possible backlash if it fails.
3. Local tax payers will ultimately face the cost and will hold
the local legislatures who increase taxes liable for this.
2. If states are perceived as a check on federal government, making law
enforcement an extension of the federal government erodes this concept.
3. Some things may look local or act local but in fact are national, e.g.
national guard.
4. Every objection of federalism is subject to change with money.
1. The government can incentivize local governments to
participate.
2. Anti-commandeering principle developed as a result of this decision.
1. The government cannot commandeer local agencies to
serve federal purpose.
2. Sometimes a court is a greater commandeered than congress.
1. Court holding requiring states to provide public education
to children here illegally.
2. There are lots of ways the government coerces local governments into
acting for money.
 21

1. Department of education has told local universities to look

into ways to prevent sexual violence.
i. This is justifiable because the universities receive a
significant portion of their income from the federal government.
ii. The "freedom" is from the schools ability to stop
receiving the money.
1. But can they really turn it down?
2. The problem could be taking the
money in the first place.
2. This sort of requirements pop up in all types of things.
i. There is lots of federal money with strings
attached.
ii. Lugar's mayoral campaign ran on taking this kind of
money.
2. The Brady Act, as with most gun statutes, have been repealed.
1. It passed under a democratic congress.

Separation of Powers
(Executive)
Separation of powers discussion:
1. How do the different areas of the government hold power over one
another?
1. President needs approval to hire cabinet members, what
about to fire them?
i. Congress discussed this and determined they dont
have the authority.
ii. President can fire his cabinet members at will.
2. A vacant Supreme Court seat is one way!
i. President selects and the congress confirms.
2. Major Areas for Congress
1. Power of the Purse
i. Congress sets the executive budget.
ii. Creates the Army and Navy the president has
control over.
2. Confirmation of Presidential Nominations
i. Congress can garner favor or make requests in
exchange for their confirmation votes.
ii. They can also exercise disfavor with the president
by not confirming.
2. Foreign Obligations
i. Congress approves treaties
ii. The president just negotiated a global emissions
reduction plan.
1. It's unlikely to pass congress.
2. This is not binding on the next
president unless it is enacted by congress.
3. If it is enacted it is binding on the next
president.
2. Congressional Hearings
 22

i. Bring a bunch of people on TV and make them look

bad.
ii. It's a way to garner public attention and opinion to
a matter or event.
2. Major Areas for Executive
1. Executive Enforces Laws/ Pardon Powers
i. The president can choose to strictly or less strictly
enforce laws.
ii. President can also pardon offenders.
2. Veto Power
i. Subject to a congressional override
1. Modern times it only happens
occasionally.
ii. Significant limitation on congress' power.
2. Bully pulpit
i. President talks about the things he wants to talk
about and garner attention to and has people who go out and
continue to talk about the things he wants them to talk about.

Federalist #47-48 (Supp)

The Steel Seizure Cases

Youngstown Sheet & Tube v. Sawyer
Executive Power
Executive Power:
1. During the Korean War, unions with the steel mills were at a deadlock
with steel mill owners and had proposed a strike. President Truman instituted
several actions to try to prevent the strike. After those actions failed to reach a
resolution, the steel mill workers set a date for the strike to commence.
2. As a result, Truman instituted an executive action instructing the
commerce department to take control of the mills to prevent the strike and
continue the production of steel. The steel mill owners brought suit declaring
the actions were unconstitutional.
3. The executive branch cited lack of constitutional language prohibiting
this sort of action and the need of steel by the armed forces fighting the
conflict in Korea. The president said that the production of steel was crucial to
maintaining national defense and the present situation was emergent.
4. The day after the executive order, the president tried to get congress
to retroactively declare the action as constitutional and necessary to continue.
They failed to make this decision.
5. The court held that the president's actions were unconstitutional. The
court was critical of the president's failure to use existing legislation which
would have allowed the president to prevent the strike. The Taft-Harley Act,
was seen as disfavor able to Truman and so he didnt seek to use it because it
would have only ended the strike
1. The majority opinion is brief because the justices in the
majority couldnt agree on much. The only thing they could agree on is
that the president's actions were equivalent to law making and the
president doesnt have that power.
 23

i. The majority comments on the fact that the

president is commander in chief and that he can do things that serve
the interest of military in a time of war.
1. If you say there is emergency powers,
then they will likely be used.
2. Having emergency powers means
there will be more emergencies.
3. There is no "proximate cause"
between this war and the seizure of this personal property.
2. Congress has the power to declare war and fund the
military.
i. Congress also has powers over the military.
1. Where bases will go, fund expansion
or reduce expansion by defunding, etc.
ii. You might say there is a domain in which the
president's power over the military exists.
1. He only has power over the control
over the military and that's it.
2. Congress could say that they will
defund the military until the president selects a different lead of
the army.
2. At the time, the war had become very unpopular and Truman had also
lost a lot of public approval. Behind the scenes, it is likely this influenced the
courts decision and they knew that recourse from the executive branch would
have been little.

Youngstown Contd.
1. Frankfurter
1. Using congressional authorization to do something
doesn't mean that's the only way you can do it.
2. Using congressional authorization just means more people
are behind your action.
3. Saying that the president must only act within the
confines congress has established is too far of an interpretation of this.
4. If you have a long standing practice that hasnt been
questioned, that has become part of the constitutional understanding of
what executive power includes.
i. This is not sort of one of those unbroken practices.
ii. Its happened a couple times but then didnt and
then did again.
2. When weighing constitutional conflicts by principle and
practice, practice counts when congress hasnt said otherwise.
2. The opinion people pay the most attention to is Justice Jackson.
1. He's considered one of the best writers to ever sit on the
court.
2. He established the three categories for the president's
constitutional authority.
If there is an exam question about separation of powers, you need to cite
Jackson's 3 areas.
i. Congress expressly authorized him to do.
 24

ii. When the president acts in an area which congress hasnt yet
authorized nor prohibited.
1. Jackson says this area contains imponderables.
2. This is a very subjective realm.
3. Looking at proposals which have been made and
struck down can narrow the area.
4. Jackson invokes the 3rd amendment in that the
president can house soldiers in war time with congressional
approval.
ii. Lastly, when the president acts against the express or implied
will of congress.
1. This may be most common in case of emergencies.
2. These are not situations which are foreseen.
3. When would congress act to limit the president's authority?
1. When the president's approval rating is low.
2. When the branches are controlled by different parties.
i. We get more separation of powers when different
parties control the different powers.
2. Treaties
1. In the past, the president has had the ability to break
treaties.
2. There was a case to challenge this authority.
3. The court held the president's authority has been a long
standing practice and thus constitutional.
2. This case has so many facets that arent entirely explained.
1. Korean war
2. What has congress said/not said
3. Truman's popularity
4. Labor dispute
5. Recent experience with emergency powers in Nazi
Germany
6. Cold War as a backdrop.

Nixon v. United States

1. This case was about Nixon giving congress access to information tapes.
It wasnt a case directly related to conflicts between the president and
congress but it turned into one.
2. At this time the house judiciary committee has voted to impeach
Nixon.
a. At this point, most people think he's done some crimes.
2. It became known that he had taped all his conversations in the white
house.
a. Congress requested them and he refused.
b. Nixon refused on the grounds that the tapes included
confidential conversations and was privileged.
i. In order for certain government agencies to operate
successfully they need to have a level of confidentiality in their
conversations.
 25

ii. Similarly, conversations between a congressman

and his advisors would be privileged.
b. Nixon claimed presidential privilege and refused to turn
over the tapes.
i. Congress found him in contempt of congress and
began impeachment procedures.
2. The district court hearing the allegations requested the tapes.
a. Nixon said that the judicial branch didnt have authority to
demand them.
b. Nixon said the tapes concerned matters of national
security and thus protected.
2. The court said that a judge determines if they are a concern of national
security, not the president.
3. This ruling is seen as helping succeeding presidents because it
acknowledges the presence of executive privilege which before wasnt clear if
it existed.
4. The court says there is a balancing test between executive interests in
confidentiality and the need for expedited court processes for abuses in
government.
a. There is a political aspect between this, congress and the
president fighting over this.
b. But, there is also the judicial aspect.
2. The court may have been trying to expedite the process of getting
Nixon out of office to the benefit of public interest.

INS v. Chadha
1. A foreign exchange student, Chadha, had overstayed his visa but due
to events in his birth country, Kenya, was left without any recognized
citizenship. The Attorney General suspended his deportation and the House of
Representatives vetoed the AG's action and reinstated his deportation process.
Chadha appealed to the federal circuit court that the actions of the house was
unconstitutional.
2. If congress can create, abolish, and fund administrative agencies, why
cant they overturn an agencies decision?
a. The problem isnt that it's a legislative veto, its applying
authority over one individual or a small group of individuals which makes
it judicial.
i. The law provides that laws cannot be made to
apply to an individual or a minority.
2. This decision hasnt impacted executive administration that much.
a. The legislature still passes similar provisions as in this
case.
b. The legislature cant enforce them directly.
c. But, they can defund them or call them for hearings and
jam them up.
2. There is no clear boundary between legislative and executive authority.
a. They kind of bleed into one another.
b. This makes what Truman did less clear.
i. Was it executive authority or legislative?
 26

ii. If you call it legislative he is clearly acting

unconstitutionally.
b. President Obama enacted executive orders regulating who
can and cant be deported.
i. His provisions are adopted from the dream act,
which failed in congress.
ii. Obama has claimed it is an exercise of his
executive authority.
iii. Congress has claimed he changed the law after he
couldnt get his law passed.

Morrison v. Olson
1. Is the appointment of an independent counsel by congress
constitutional?
a. The general counsel would investigate ethics abuses in
the government. This authority was established by the Ethics in
Government Act.
b. The attorney general has the ability to dismiss the
independent counsel for good cause, under the act.
2. The court took an informal approach in their finding.
a. They said that it doesnt seem to be too large of an
encroachment of executive power.
b. The AG still has authority to dismiss the counsel for cause.
i. This is impractical in practice.
ii. For cause is more difficult to establish; ethical
violations, incompetence, etc.
iii. They're still not limited to time or resources.
b. The counsel's investigations have to be limited in scope.
i. E.g. investigate the president.
ii. This is limited but it still problems.
1. Clinton's investigation started out as
whitewater, the land deal, and ended up in the sex scandal.
2. Scalia, in his dissent, said that lots of problems would come out of this,
and they did.

The Liberty of Contract

The Slaughter-House Cases

P and I, Equal Protection
Slaughter House Cases pg. 373
1. The 14th amendment
a. Was extensively discussed and debated.
b. The southern states were under occupation and forced to
adopt.
2. The freedom of contract is being questioned.
3. If I have the right to work in a lawful profession.
a. Sure, the state can regulate it but what can the state do
to regulate it?
 27

i. What constitutional limitations are on the state's

ability?
ii. What does the government need to show to justify
those regulations?
2. The 14th amendment was brought over the opposition of southern
white men.
a. This case is brought by southern white men under the
14th amendment.
2. The process involved in the statute abridging the rights of the
butchers.
a. Legislature passed a law.
2. The government can create monopolies under certain situations.
a. If the government only has to show a rational basis for
their regulations it fails to have a sufficient burden to abridge peoples
rights.
b. Saying that they need a compelling state interest
increases that burden.
i. In most situations where the government does
regulate rights there is a compelling interest.
1. Do we want to have a differential or
skeptical review of these regulations?
a. This is the issue in
Slaughter.
b. The majority takes the
more differential side while the dissent is more skeptical of
the state's regulation.

Lochner v. New York

Substantive Due Process
1. This is like citing Hitler, if you cite this you're probably doing something
wrong.
a. Similar to Jim Crowe or Plessy
2. New York has a statute prohibiting bakers from working more than 60
hours a week.
3. With any claim of a right we need to
a. Understand what that right is
b. Understand the state's interest in regulating that right;
and
c. Understand if the state's interest is sufficient to regulate
that right.
2. What is the state's interest?
a. The health of the citizens
i. The court says the state can regulate jobs which
are particularly hazardous
ii. But, only when there is a good enough reason as to
why that is necessary.
iii. Bakeries are not particularly dangerous, despite
studies that say otherwise.
2. Is the state's interest in regulating this sufficient?
 28

a. People who have studied this have found that large

bakeries didnt like the competition from small bakeries ran by
immigrants.
i. They lobbied for the law to get an unfair advantage
over the bakeries.
ii. The law does this all the time.
1. What's the remedy?
ii. Health and safety is often a pretext for something
else.
1. That shouldnt completely alter your
opinion of the legislation.
2. Holmes said that the legislature is a
battle of interests and should be respected.
3. Others have said that this is unfair and
often marginalizes minorities
b. The court looked at the state's offered studies which
showed baker's health concerns.
i. The court didnt find this compelling.
2. What is the right?
a. Freedom of contract
b. Many economists derived their opinions about free market
from theory of evolution.
i. There are obvious reasons why this doesnt
translate to how a society should be structured.
b. A slave is someone who cant control their labor or
compensation.
i. One idea was the hallmark of freedom was the
opposite of slavery.
1. Your labor is yours and you can do
with it what you want when you want.
Holmes:
1. Believed in writing short opinions.
2. Long on pithy quotes and short on analysis.
3. He says the government can interfere with your rights in all sort of
ways so its silly to say you have rights.
4. Holmes takes a jab at Herbert Spencer as being wrong.
a. Spencer was a libertarian evolutionary economist of sorts
b. He believed in survival of fittest.
c. Now, he's very obscure but in the day he was popular and
easily relatable to the audience.

2/25/16 2:21 PM

Why is the liberty of contract not a fundamental right?

a. These are also applied to right to privacy, but privacy is still
popular and hasnt met the sort of opposition that liberty of contract.
1. Unwritten/no tradition
a. It isnt in the constitution.
i. We shouldnt recognize unwritten rights.
 29

b. The state had a history of regulating contracts and

restricting people's ability to make them.
i. Not being able to buy wine on Sunday is a
regulation of your liberty of contract.
b. Legal Element
2. Over breadth
a. Liberty of contract applies to almost all sections of society.
b. Buying drugs, endangered monkeys, etc.
2. Unpopularity
a. The theory of the liberty of contract had fallen out of
favor, especially after slavery.
b. Does this mean that freedom of religion can be abolished
if the anti-other religion party is in power for long enough?
2. Outweighed by other rights
a. The doctrine pits interests against each other.
i. Public v. State
ii. When we give a right we've taken it from someone
else.
1. The emancipation took away people's
right to own slaves and gave right to freedom to the slaves.
b. Society has favored other rights over the right to contract.
2. No Unwritten Rights
a. Holmes insisted on tailoring written rights as narrowly as
possible.
b. Unwritten rights were out of the question.
2. Changed Circumstances
a. Great depression
i. The government saw a necessity to regulate certain
aspects of the economy to insulate from further catastrophes.

Adkins v. Childrens Hospital (Supp)

1. The US Congress legislated a minimum wage law affecting women and
children in DC under their police powers over DC as a federal enclave. The
constitutionality of that law was challenged here. The court found it
unconstitutional.
2. The court said the statute was vague.
a. Saying something is vague is a way to invalidate
something when you cant agree on your reasoning for invalidating it.
2. The court ruled that the state has to show the interest in regulating
this due to the freedom of contract.
a. The state argued that women require additional
assistance to insulate them from abuses.
2. The court takes this as a gender equality issue.
a. The court argues that women should be treated equally to
men and they should have an equal liberty of contract.
b. Women had just been given the right to vote.
c. This is the most anti gender discrimination case until the
1970s.
 30

2. Additionally, a living minimum wage was not deemed as a justifiable

reason.
a. The court calls it a subsidy.
i. Employers dont owe a subsidy to employees.
ii. Thats not the function of employers.
iii. They dont owe them anything more than the
market wage.
iv. At this time, most people who fell under the living
minimum wage resorted to churches and other charities to make up
the difference.
1. Many felt that this was the appropriate
cause of action.
2. This case was used to prohibit minimum wage laws across the US until
West Coast Hotel.
a. The court left it open for minimum wages in a specific
industry under specific circumstances.
2. The great depression supported the public support for a living wage.
a. Wages went through the floor with a lot of unemployed
people
b. Many of those wages were difficult to survive on.
c. People felt either the government owed people some sort
of support in distress
2. This was a broadening of Laughtner
a. It applied freedom of contract to women and children.

West Coast Hotel v. Parrish

Substantive Due Process
1. Challenge to minimum-wage legislation for women
2. In 1936, the court affirmed Adkins. Then, in 37, the court over turned
it.
3. The president had just increased the number of justices because the
court had been overturning many of the provisions of the new deal as
unconstitutional.
4. There's a popularity aspect to this decision in the wake of the
depression.
5. The interests of the populace superseded the interests of the
businesses.

United States v. Carolene Prods.

Substantive Due Process
1. This is the court waving the white flag, as long as there is a rational
basis for the legislatures actions it will be deemed constitutional.
2. Footnote 4, most popular footnote in constitutional law, is added to
explain areas where a stricter interpretation than rational basis of the
legislature's actions should be applied.
a. Right to vote
b. Free speech
c. Protest, assemble
d. Interference of political organizations
 31

e. And, on a larger note, the first 10 amendments.

i. Express rights
b. Prejudice against discrete and insular minorities.
i. People who otherwise may not have a voice.
ii. Insular: ignorant of or uninterested in cultures,
ideas, or peoples outside one's own experience.
iii. Minorities have a good track record in the political
process because they are focused on one goal.
1. Oil companies as an example.
ii. It is not sufficient that they simply be a minority.
The court is probably referring to people who may not have the means to protect
their interests.

The Right of Privacy

Why are school's perceived as important?

Meyer v. Nebraska (Supp)

1. Nebraska had a statute barring the teaching of German or any non-
English language to children under the 8th grade. This is an assimilationist
statute. Defendant was charged after being found teaching German to students
and was fined.
2. The state argues the kids could be confused learning a language
different than English.
a. But, not Latin or Greek?
b. Intended to exclude certain types of influences from kids.
2. Who might object to this law?
a. Parents
i. May want their kids to know their native tongue.
ii. May just want their kids to be more diverse.
b. Teachers
i. Limits the subjects they can teach on.
b. Schools /church
i. I'm a private school, I should be able to do what I
want.
ii. That violates my property rights.
iii. It unfairly infringes on my private rights.
b. Students
i. Minors but
2. Are there constitutional interests?
a. Parental fundamental rights to child rearing includes
education.
b. Teachers have a right to pursue their right to contract.
i. If a school doesnt want to hire them to teach they
dont have to.
ii. The state shouldnt be imposing regulations on
their right to contract.
b. Schools/Churches encounter religious rights.
i. A lot of private schools are catholic
b. Kids
 32

i. There might be a sort of first amendment right to

learn a foreign language.
2. The court concludes
a. The law is overly broad.
i. This is generally a, we dont know why but it is
wrong.
b. The state doesnt have a compelling interest in regulating
this behavior.
2. The first step is saying, is there a right here?
a. If not there is no reason to go further to is there a rational
basis to regulate that right.
b. Short of calling a law irrational,
i. You have to identify the right.
ii. Because that right exists, you need something
more.
2. Holmes led dissent
a. It was left out of the case.
b. Holmes said, the state regulates this sort of thing all the
time.
c. So what?
2. What if Indiana said, home school is banned. Is that constitutional?
a. What would be the popular support of that?
i. If there is a small number of home schooled v. 50%
of the state is home schooled.
b. At the same time as Meyer, Oregon outlawed private
schools.
i. That was invalidated in a similar fashion.
ii. A lot of the schools were Catholic schools, similar
problem there too.

What about Reproductive Rights?

Buck v. Bell (Supp)

1. The court takes an opposite direction in this case as they have in other
areas of private rights.
2. The court holds that there is a sufficient procedural process to ensure
due process to a person at risk of being sterilized.
3. This opinion is based on the science of 1927, eugenics.
a. Genetics are a real part of science
b. Genetics are inherited, and we can do something about
the negative inherited traits.
c. Holmes was a strong believer in eugenics and was excited
to be able to write the opinion.
2. It is unlikely they would have upheld a broad policy for sterilization but
this is narrowly applied.
a. This was never overruled but you wouldnt want to cite it
today.
 33

Griswold v. Connecticut
Substantive Due Process, Contraception, Privacy
1. What is the state interest in prohibiting married couples from using
contraceptives?
a. The state argues that it is an instrument to prohibit
extramarital affairs and protect the sanctity of marriage.
b. The attorney general for the state couldnt say, it upholds
catholic ideals.
2. At the time, Connecticut was the only state which had a ban on
contraceptives.
a. When one state is the only state regulating this it's going
to be looked at with greater scrutiny.
2. A mere assertion of a right wont last if people dont find something
compelling about it.
a. Some asserted rights have more compelling explanations
have a better chance of surviving, even when, there is a change in
political climate.
i. A lot has changed since 1927 but Meyer is still good
law.
b. The public's appeal to an asserted right is crucial to its
perceived legitimacy.
2. The court relies on the 1st, 3rd, 4th, 5th, 9th, and 14th amendment in
their holding that Connecticut's law as unconstitutional.
a. The individuals have a right to association, liberty, being
free from illegal searches, and their right to liberty not being deprived by
the state.
i. Essentially, there is a right of privacy in their most
intimate relationships such as exist between married couples.
2. What in the bill of rights supports the freedom of contract?
a. 1st, freedom of association
b. 9th, could be applied to a lot. If it's not enumerated it's
retained by the people.
c. 5th, taking's clause, you have a right to your property,
which is brought by contract.
d. 2nd, you have a right to own a firearm thus it could be
applied that you have a right to that contract to acquire one.
e. This all suggests that this type of analysis could be
applied anywhere.
i. That waters down this analysis and makes it less
credible.
2. This case establishes this enumerated right but they could have said
this law was irrational.

Finished up Griswold
1. Natural rights share characteristics;
a. Personal
b. Limited
c. Natural
d. Competence
 34

Roe v. Wade
Substantive Due Process, Abortion
1. Court debates the constitutionality of a Texas law banning abortions in
all cases except where the mother's life is at risk.
2. The court looks at the history of abortion laws and medical opinions of
abortion.
3. The court analyzes the state's argument that a fetus is a person and
requires protection under the 14th amendment.
a. The court rejects this idea.
b. They couldnt find any constitutional language which even
could be construed as encompassing fetuses. They often didnt even
incorporate minors, let alone fetuses.
c. If a fetus is a person why dont we intend to extend to
them all other rights issued under the 14th amendment?
i. Could I assign my will to a fetus?
ii. You can assign to future children or present children
but not fetuses.
iii. What if there is a miscarriage?
iv. None of the 50 states allow you to do a direct gift to
a fetus?
1. They could, there would be no
constitutional obstacle but it's not done.
ii. A lot of people say, fetuses cannot inherit money so
it's not a person. If it could then it be a person.
b. We currently define a person by their ability to participate
in or have legal obligations assigned to them.
i. Make contracts, be sued, assault people, etc.
ii. These rights have never been given to a fetus by
any jurisdiction.
2. Discussion
a. What sort of conditions, other than abortion, would we
force an individual to go through a significant medical procedure for the
benefit of another?
b. At the point of this decision, discrimination on the basis of
gender was not considered unconstitutional. That came a year later.
c. The effects of this were contingent on the stage of
prenatal development. The closer the fetus is to viability, the less likely an
abortion is found to be legal.
d. Part of the rule of law is that we adhere to prior decisions
unless there is a compelling reason not to.

Planned Parenthood v. Casey

Substantive Due Process, Abortion
1. The right that is articulated in Griswold, dealing with married couples
and reproductive rights, was construed in Casey to not mean it was meant to
cover reproductive rights.
2. You cant have a state regulation that imposes an undue burden on a
women's right to have an abortion.
 35

a. There havent been many cases testing the limits of these

burdens.

From Case Briefs

Synopsis of Rule of Law. The Supreme Court of the United States rejected the
trimester framework of Roe v. Wade and employed a new undue burden test that
invalidates a provision of a law if its purpose or effect is to place a substantial
obstacle in the path of a woman seeking an abortion before the fetus attains
viability.

Facts. The Pennsylvania Abortion Control Act of 1982 contained certain provisions
that were challenged as being unconstitutional. First, the Act requires that a woman
seeking an abortion give her informed consent prior to the abortion procedure and
specifies that she be provided with certain information at least 24 hours before the
abortion is performed. Second, the Act requires a minor obtain parental consent, but
provides for a judicial bypass. Third, the Act requires that, unless certain exceptions
apply, a married woman seeking an abortion must sign a statement indicating that
she has notified her husband of her intended abortion. Finally, the Act imposes
reporting requirements on facilities that provide abortion services. The Act exempts
these conditions in the event of a medical emergency. Before these provisions
took effect, Petitioner, Planned Parenthood of Southeastern Pennsylvania, brought
this suit seeking declaratory and injunctive relief. Each provision was challenged
as being unconstitutional on its face. The District Court held all the provisions at
issue unconstitutional. The Court of Appeals upheld all of the regulations except for
the husband notification requirement.

Issue. Whether the provision requiring that a woman seeking an abortion give her
informed consent prior to the abortion procedure and specifies that she be provided
with certain information at least twenty-four hours before the abortion is performed
is constitutional.
Whether the provision requiring a minor obtain parental consent, but providing for a
judicial bypass is constitutional.
Whether the provision requiring that, unless certain exceptions apply, a married
woman seeking an abortion must sign a statement indicating that she has notified
her husband of her intended abortion is constitutional.
Whether the provision requiring reporting requirements on facilities that provide
abortion services is constitutional.
Whether the holdings of this case result in a overruling of Roe v. Wade

Held. Yes. Judgment of the Court of Appeals affirmed. Applying the undue burden
test, the Court found that there was no evidence on the record showing that
requiring a doctor to give information as provided by the statute, would amount to a
substantial obstacle to a woman seeking an abortion. Therefore, no undue burden
exists and the provision is constitutional.
Yes. Judgment of the Court of Appeals affirmed. If neither a parent nor a guardian
provides consent, a court may authorize an abortion upon the determination that
the minor woman is mature and capable of giving informed consent and has in fact
given her informed consent or that the abortion would be in her best interests. By
providing a judicial bypass to this requirement, there is no undue burden. The
provision is constitutional.
 36

No. Judgment of the Court of Appeals affirmed. The Court found that in a large
fraction of cases in which this provision is relevant (pregnancies with an abusive
husband or from extramarital affairs), it will operate as a substantial obstacle in a
womans choice to undergo an abortion. The husbands interest in the life of the
child does not permit a state to empower him with this degree of authority over his
wife. This provision creates an undue burden and is therefore invalid.
Yes. Judgment of the Court of Appeals affirmed. Since the identity of each woman
receiving an abortion remains confidential, the provision requiring reporting
requirements on facilities that provide abortion services is constitutional.
The essential holding of Roe v. Wade should be retained and affirmed. The basic
decision in Roe v. Wade was based on a constitutional analysis which cannot be
repudiated. The Court concluded that the line should be drawn at viability, so that
any time before viability, a woman has a right to choose to terminate her
pregnancy.

Dissent. Roe v. Wade was wrongly decided and should be overruled. Each of the
challenged provisions is constitutional because the state may regulate abortion
procedures in ways rationally related to a legitimate state interest.
Applying the rational basis test, the Act should be upheld in its entirety. This is an
issue that should not be decided by the Court. The Court should have no right to
decide such an issue involving life and death, but rather it is up to the democratic
process to make such decisions.
Concurrence. The Court is correct in holding that the state may take steps to ensure
that a womans choice is thoughtful and informed and that the states may enact
laws to provide a reasonable framework for a woman to make a decision that has
such profound and lasting meaning. However, the information requirements do not
serve a useful purpose and thus constitute an undue burden on a womans
constitutional liberty to decide to terminate her pregnancy.
The dissents criticism of Roe v. Wade follows from a stunted conception of
individual liberty, reinforced by an exclusive reliance on tradition as a source of
fundamental rights.

Discussion. The Court maintained the Roe v. Wade viability concept to use when
determining when a state may regulate a womans pregnancy. However, by
adopting the new undue burden test in this case, the Court made it more difficult to
establish that a law unduly burdens the right to choose an abortion than it was
under Roe v. Wade.

Lawrence v. Texas
Substantive Due Process, Sexual Orientation, Privacy
1. The right in Griswold was not acknowledged because it covered
heterosexual couples and didnt protect homosexual activities.
2. Heterosexual acts of sodomy were protected. Some states
acknowledged that all sodomy is illegal.
Current Abortion Case:
1. There havent been many cases which have tested the limits of the
burdens outlined in Casey.
 37

2. Texas has a proposed law which assigns certain requirements on

abortion providers which has led to many of the few abortion providers in
Texas.
3. Texas is claiming that all of the provisions in the law are in the interest
of women's health.
a. Judge Posner has said that these are simply a pretext to
prohibiting abortions.
2. Say, the Texas legislature wants to impose these to usurp a woman's
right to an abortion with these provisions.
a. What would constitute an undue burden?
b. The lower courts have said that they are going to defer to
the state's reasoning for women's health.
c. The Supreme Court is likely to hold that it needs
additional information to form a ruling.
i. This is likely just a way to put it aside until the
vacant justice position is filled.
b. The AMA has said that there is not greater health risk for
abortions then other procedures.

Racial Equality until the 1960s

The Gettysburg Address
The Civil Rights Cases (Supp.)
1. Could businesses discriminate on the basis of race?
a. The words of the Civil Rights Act of 1875 were nearly
identical to the civil right act of 1964.
2. The court looks at the 14th amendment, first sentence defines national
citizenship. States, "no state shall.."
a. Court held this language regulated state not private
action.
2. Suppose there's a mob outside of a business and the mob goes in to do
what it wants to do and the police officers on the scene do nothing. Is that
state action or inaction?
a. Say a state doesnt have a law prohibiting discrimination.
Action or inaction?
2. Private businesses can fire people for anything you want.
a. First amendment doesnt apply to non-state actors.
b. There is some difference between the governments taking
certain actions on rights that you have versus private parties taking
similar actions.
2. What kind of actions are we talking about?
a. A version of what state action is, it's only when the
government is operating the institution or it's an actual state law that has
been enacted which is something the 14th amendment prohibits.
b. A state prohibited blacks from serving on juries.
i. This was struck down by the supreme court
ii. It was state action as it was completely under the
state's control.
2. What's the difference between action and inaction?
a. Is there a difference from being active or passive?
 38

b. Is there a difference between actively aiding a suicide and

just letting it happen?
c. Everybody recognizes, there is a distinction sometime to
be drawn between those two things.
d. In this case we could ask:
i. What's the difference between state action and
inaction
1. Police example.
ii. Commerce Clause Power
1. This statute is being argued as
authorized by the 13th and the 14th amendment. What doesnt
the court consider the commerce clause?
a. It wasnt as expansive
back then.
b. One sentence they say,
we express no view on whether the commerce clause could
support the clause because the argument wasnt made.
i. That doesnt
mean they would have upheld it.
ii. However, 80
years later, the argument is made under the
commerce clause. Court said, we never said in 1875
that it couldnt be used so were not bound by
precedent.
2. Should we understand the language,
no state shall, as limiting the power of congress in section 5 of
that amendment.
a. Suppose congress
concludes that in order to fulfill the guarantees of the 14th
amendment, they need to pass a law like this.
b. What type of justification
do they need for this?
ii. Sectional Unity, national unity.
1. Why did a federalism argument find
favor in the courts so closely to the civil war where states rights
were demonized?
a. At a certain point, people
started saying, cant we all just get along?
b. Part of this was, can we
stop worrying about issues of racial justice.
i. If you do,
that's going to not allow people to move on.
b. People were saying,
we've done as much as we can do to further civil rights.
ii. Common Law matters in weighing State Action v.
Private
1. Can a hotel owner be seen as a public
entity?
 39

a. At common law, theaters,

common carriers, hotels, etc. were quasi-public/private
industries.
b. Typically, just because you have a state enforcing a
contract or other agreement, relationship, transaction, doesnt mean it's a
state action.
i. At least in the eyes of most of the case law.
ii. It is understandable to see how it could be
interpreted that way.
b. Racial prejudices have been seen as the great evil which
has extended this idea of state action over in to the private sector.
c. The 13th amendment is still invoked at times when a
problem arises where there seems to be insufficient authority to regulate
it.

Yick Wo v. Hopkins (Supp.)

Strict Scrutiny
1. The court didnt just not enforce the 14th amendment at all.
a. There were situations where they struck down laws as
violating the equal protection clause.
2. Wo was fined for operating a laundry without proper licensing after the
city refused to renew his license. After not paying the fine he was arrested and
he sued the Cali. Sup. Ct. for Habeas Corpus who upheld the imprisonment.
Supreme Court granted certiorari.
3. Claims of property rights are seen with greater approval from the
court.
a. Property rights are seen as more fundamental to liberty.
2. This case is different from cases originating from the south.
a. California is as far as mars to them.
b. The rights given to Chinese could be distinguished if
attempted to apply to blacks.
c. It's easier for them to take a stand without disrupting with
what they're actually concerned about, which is what's happening in the
south.
2. What does it mean to say we all have equal rights?
a. A right created by law, we all have an equal access or
benefit/title.
b. What does it not cover?
i. Quality
1. Education is not a fundamental right
but an important right.
2. Partially because they dont want to
have to say what quality of education you are entitled to.
ii. 19th and 20th century had a different
understanding of what equal right people had.

In 1866 Congress passed an additional Civil Rights act, different from the one struck
down in 1875.
1. It included;
 40

a. Serve in office
b. Contracts
c. Property
d. Sue
e. Testify in court
f. Jury
2. Did not include voting
a. This was not seen as a fundamental right.
b. The 14th amendment didnt ban discrimination on voting.
i. It permitted voting to men over the age of 21.
b. There wasnt enough support to give minorities voting
rights in 1866.
c. But, in a few years, the 15th amendment extended the
right to vote to minorities.
i. They saw that blacks would vote for them,
Republicans.
ii. They abolished slavery and had great favor
amongst blacks.
2. The individual right to vote wasnt seen as fundamental because the
chance a single vote to sway an election.
a. The other rights included were seen as things which
people would potentially want to do and be prohibited from which would
infringe on their daily liberty.
b. Now, we think that without a right to vote your other
rights could be repealed.
2. In the day, civil rights, applying to everyone, and political rights, only
applying to those who qualified, were distinguished in their fundamental
importance.
a. Many people supported civil rights but not social rights.
i. Social equality was not favorable.
ii. They felt this would lead to mingling of the races
iii. This was code for white supremacy.

Plessy v. Ferguson
Segregation
1. A man who was partially black sued a prohibition of intermingling of
colors on railcars, under the 14th amendment.
2. This case brought about, what is race? What does it mean to be black
or white?
3. The court attempted to establish the concept of separate but equal.
a. The court held the 14th amendment ensured equality but
wasnt intended to prohibit all instances in which the races are
segregated.
b. Laws cannot abolish peoples racial prejudices
c. Dont look to us to be the one to challenge that.
i. However, it is enforcing it by upholding segregation
laws.
ii. It's one thing to say there are certain racial
attitudes and the court cant do anything about it.
 41

iii. It's another to say there are racist statutes and the
law cant do anything about it.
2. What does the equal protection allow?
a. One is saying, you have to have integrated
establishments and you have to enforce integration.
b. This case attempts to distinguish, but confuses, civil and
social rights.
2. What would have happened if it would have come out the other way?
a. The court is trying to strike a balance.
b. If you have a significant portion of society that isnt
interested in that balance, it's not going to work out.
c. Teddy Roosevelt said the 14th amendment was huge
mistake.
i. If this was the sentiment of the 1900's why would
the court want to stick its neck out?
1. Place yourself in the court in 1896.
a. Were they stretching principles to reach a common result?
b. If you look at what judges do and what they say,
sometimes you have to make exceptions to some rule that exists, it
doesnt make you a hypocrite it makes you a judge.
2. Plessy got very little attention at the time
a. It was only years later that people began to look at this as
the decision which made a big difference.
b. IT was seen as a certain way to look at race relations
c. The civil rights cases, by contrast, got a lot of attention.
d. Some people say by 1896 that people just accepted
segregation and weren't shocked that the court would do this, given what
had happened in the previous years.
2. 2 problems
a. Dormant commerce clause problem
b. Separate but equal doctrine
i. The court is going out of its way to say we make
distinctions between race
ii. They dont always uphold racism
iii. Riding on a train isn't a fundamental right like
serving on a jury would be.
2. Why you think Plessy wrong effects how you think Brown was right, or
wrong.
a. The dissent says, "our constitution is color blind"
b. This has been cited a number of times, is it true, what
does that mean?
c. Abolitionists would say that the constitution doesnt say
anything about race, black or white, so thus it is color blind.
d. Is equal protection under the law the same thing as
saying were color blind in application of the constitution?

Principles surrounding these cases

1. Constitution is color blind.
a. This is one way of understanding what equal protection is.
 42

b. The government should not be using race as a distinction,

at all.
c. If I said to you were going to have a system that says
whites get one penalty and blacks get one penalty for the same crime,
you'd say that's unconstitutional.
d. Some applications dont comport with this assessment
i. Social interactions causing segregation.
b. There is disagreement amongst the justices now about
how color blind the constitution is.
2. Constitution is against a "caste system."
a. This has social and legal consequences
b. This is partly an issue of law.
i. Lets not have the law recognize caste distinctions
ii. And not enforce them.
b. What if the court wants to back down social opinions
about superiority or inferiority
i. This would cause the court to uphold certain things.
b. It's not just about law, its also about social norms.
i. A caste system could exist without any legal
support affirming it.
ii. People could hold independent perceptions of
inferiority and superiority.
b. We'll see something like this with Loving v. Virginia
i. It was said it applied equally to blacks and whites
so it was color blind.
ii. The court actually referred to perceptions of white
superiority in its opinion.
b. In one way of saying that segregation was wrong is to say
the court was taking race into account.
i. One car for whites and one for blacks is wrong.
b. Another way would be to say that the court was undoing
perceptions of white superiority.
c. We have to look at this through the lens of what people
thought about race in 1896.
i. There was scientific research which supported
distinctions between race.
ii. This was different in the 1950s when that sort of
idea had been aged out.
iii. But, this is the same Equal Protection clause.
1. The language doesnt change but it's
use does.
2. The court turned down the equal
protection defense and it wasnt raised again for 50 years
because it was seen as a loser claim.

Korematsu v. United States

Strict Scrutiny
1. Evidence the court relied on to uphold the constitutionality of the
internment of Japanese.
 43

a. 5,000 Japanese Americans refused to swear allegiance to

the US and disavow the allegiance to the Emperor of Japan.
b. The general's testimony that Japanese were a subversive
race.
2. Why didnt the justices say, show me some proof, even if it's in my
chambers for secrecy, so that I can uphold this case?
a. They pretty much just take the president and general's
word on it.
b. They say, he's a good guy, look at all the good he has
done.
i. Obviously there is a problem with this, it's a type of
group think. It's not an objective way of analyzing a problem.
2. Many of the justices who dissented on this were the ones who were
appointed by the president.
3. The temporal location of the internment with Pearl Harbor could be
evidence of the justices ruling.
a. There were fears of espionage within the Japanese
community, even though no acts of sabotage or espionage had occurred
in the eleven months between Pearl Harbor and the internment.
b. The counter to that is that they havent happened yet!
2. But, the court ruled this case in 1944.
3. The big part of the evidence in favor was an affidavit from the admiral
in charge.
a. That might be fine, but you think that more evidence
would be needed to show that interning hundreds of thousands of citizens
would be needed.
2. Earl Warren, who wrote brown, was the governor of California at the
time.
a. It shows that even people with moderate or reasonable
dispositions were in favor of this policy.
2. What kind of evidence would suffice to justify this?
a. Internment was a way of usurping the criminal process.
b. The government didnt have sufficient evidence to
imprison these individuals indefinitely.
c. What if the government says, the kind of evidence that
youre requesting is impossible to acquire at a time of war.
i. To be able to continue to collect the kind of
evidence you're requesting we have to keep the information secret
and revealing it will prevent us from acquiring it again in the future.
2. What is the race component in this?
a. A lot of people have said that after Pearl Harbor there was
a lot of people wanting Japanese to be removed from the states and most
of that was just based on racism.
b. So the first thing the majority says in this case is that, any
policy advocating for the differential application based on race alone is
suspect and subject to rigid scrutiny.
i. This was later adapted to strict scrutiny.
ii. This is the origin of this term.
iii. It is the highest level of judicial review.
 44

iv. But were they really applying the highest level of

judicial review?
b. World War 2 was a war against racism
i. At least in Europe.
ii. Many propaganda outlets said were fighting
because Hitler is a racist.
iii. Society later reviewed, what was the war about?
2. When Truman tried to do something less severe, the court said he
couldnt do that.
a. Sometimes judges do "make up calls" like in sports.
b. This might be a tacit acknowledgment of the wrong result
here.

Brown v. Board of Education

Segregation
1. Probably one of the most favorable decisions of all time.
2. It gives the court the greatest legitimacy in any of its decisions.
3. The court says in this opinion, we've looked at the historical evidence
and it's inconclusive to say that people thought racial segregation was valid.
a. Then they go on to say why it's not.
b. There are cases which have established the legitimacy of
segregation, and it had been in practice for a long time.
c. If the evidence was not consistent and the framers
approved of segregation, they probably would have just gone along with
it?
d. It's one thing to say that our precedents are inconsistent
and to say that they arent.
e. Dont you need something more in the historical reference
to overturn a long held practice?
f. They worked really hard to get a unanimous decision to
give it the most force in the holding.
2. Classifications on race place an unfair grade on people completely
unrelated to their individual characteristic and qualifications.
3. Brown might be saying, African American students are getting a raw
deal on resources due to segregation.
a. It's one thing to say that just curing that problem is
enough
b. What about when a local government wanted to do that
and that was a reflection of the vote of the community to do that.
2. Its one step to stop segregation but it's another to integrate them.
a. Coming up with a different plan to force schools to
integrate is a larger problem.
b. If segregation = bad then how can integration /= good?
c. There was a constitutional amendment which limited the
courts ability to issue orders to force integration.
i. As lofty and noble the courts opinions about the
evils of segregation are they are ultimately concerned with their own
authority.
 45

ii. They thus backed off of the integration effort to

reduce pressure to limit their authority.
iii. This has caused the court to focus on unanimity
2. Most people looking at brown say
a. You cant have a de jure segregation
i. It's unconstitutional to have a state imposed
partied system.
b. Or, you cant have "bad" de jure segregation
i. People should be allowed to have a segregated
system where they want to.
ii. You could call this "not white supremacy."
iii. Anything that supports white supremacy is
unconstitutional and anything that doesnt is not.
b. Or, what we really want is integration.
i. It's not enough just to abolish segregation.
ii. The state needs to take affirmative steps to
integrate.
iii. The court originally looked at it this way until
enough people got upset that the court decided not to push it
anymore.
iv. A lot of southern states fought this either
legislatively or through mob justice situations.
v. Littlerock 9
1. Justice asked the amici curie for the
integration, if we integrate people are going to die.
2. He responded, somethings are more
important than life. Equality, especially for children.
2. This opinion was used to desegregate water fountains
a. It was like Griswold where they said, it only applies to
married people, but it didnt.

Modern Race Cases

Loving v. Virginia
Strict Scrutiny
1. The state argued that the law was applied equally to blacks and
whites.
a. The court which proscribes criminal prosecution with race
as a basis of crime is in violation of the 14th amendment.
2. Virginia claims it's state interest in having the law is maintaining 'racial
integrity'
a. There was a racial integrity act of 1924.
b. There was an immigration act limiting the number of
immigrants allowed to enter the country from deemed less desirable.
c. The court held that the law was only concerned with the
racial integrity of the white race.
i. The law didnt bar the intermarrying of other races,
only white and other races.
ii. This is a white supremacy statute.
 46

1. The court drops a footnote that this is

a white supremacy because other races are allowed to marry.
b. Even if you felt racial integrity was a valid interest, which
the court doesnt think it is, it is only concerned with the racial integrity of
the white race.
2. If you're thinking of loving and how it is found to be unconstitutional
could be;
a. Race in the statute
i. If you take race out of the statute then it's ok.
b. White supremacy
i. Do you think the statute in question is promoting
white supremacy or not?
1. Regardless of if it says anything about
race.
ii. If it is used to uphold or enforce white supremacy
then it's unconstitutional.
b. Integration
i. This applied to other cases but not so much this
one.
ii. Other races were allowed to do whatever they
wanted so long as they didnt do it with whites.
iii. Marriage is different, you couldnt compel someone
to marry another person in the interest of integration.
2. The court talks about the fundamental liberty of marriage.
a. This argument is stuck at the end and isnt elaborated on.
b. The only case prior that talked about a right about
marrying, Meyer.
i. These were liberty of contract cases.
ii. They might not have wanted to cite this as they
didnt want to cite lochner in Griswold.
b. It's one thing to bar marriage but to make it a felony is
another thing.
i. This they say, cant stand.
b. If marriage is a fundamental right, how does that apply to
gay marriage?
i. Well talk more about this later.
2. Anticlassification and antisubordination
a. The case was later said to have developed these ideas.
b. Need to understand better, see notes on Loving

School Desegregation
1. Impediments to desegregation
a. When schools were in generally racially integrated
sections you they were ordered to allow the schools to be desegregated.
i. Many protested this by saying it wasnt safe.
1. However, they didnt do anything to
make it safe.
ii. Logistical issues
1. Capacity, it would involve expanding a
school or building a new school.
 47

2. Who would enforce this? The people

who objected to the desegregation in the first place.
ii. Many schools just shut down their schools instead
of desegregate them.
2. To what extent is segregation created by other means, segregation in
fact, de facto, as opposed to segregation by law, de jure.

Milliken v. Bradley (Supp.)

Segregation
1. Detroit was sued over the de facto segregation in its school district.
The district court enjoined bordering school districts to better serve the
purpose of desegregating the area. The court of appeals affirmed and the
Supreme Court reversed. The court held that the bordering districts had not
been shown to violate the constitution due to the racial composite of their
schools and ordering them to participate in the active desegregation was an
over reach of the court's equity powers.
2. Detroit had not developed de jure segregation but their schools were
de facto segregated.
a. In the south, states had actively attempted to evade or
postpone desegregation.
i. This wasnt the case in Michigan, it looked
differently than it had in the south.
2. Some cases' effects dont become apparent until years later.
a. How they're read or interpreted often spreads.
b. Brown was like that and Griswold was like that.
i. I dont think anyone thought Griswold would lead to
the legalization of abortion.
ii. Most people debating its effects would have just
said it was about marriage.
b. Many would have read brown to say that it only meant
states couldnt have segregation laws.
2. Miliken strikes the balance.
a. It's not about integration. It's about the constitution.
b. If a district is drawn to segregate then its
unconstitutional.
c. If a district is drawn and happens to be segregated, its
constitutional.
d. The court might have been concerned that they were too
far out on a limb or that an amendment might be passed which would be
used to roll back desegregation.
i. At what point do you say that a judge should do
something which isnt legally compelling for some other purpose?
ii. Marbury read the statute in an arbitrary way as a
means to an end of further judicial power.
iii. Should the court have stuck to their guns?
1. What if that meant a worse situation
came out of it?
2. What's a law that is not racially motivated but has a disproportionate
racial effect?
 48

a. Eminent Domain
i. Poor and minorities are often the victims of eminent
domain because they dont have a lot of clout.
b. Drug Laws
i. Powder cocaine v crack cocaine mandatory
sentences.
1. 100-1
2. It has been since reduced.
3. People argued that crack was more
addictive and used more often.
b. There are lots of policies which have a disparate effect
i. When you see a vast outcome in the application the
civil rights act says it's a violation of the statute.
ii. If its a violation of the statute, why isn't it a
violation of the constitution?
2. Overwhelming racially disparate effect is probative of intent.

Washington v. Davis
Segregation
1. Tests given to DC police applicants led to black applicants failing at a
disparate proportion than white applicants.
2. The court concludes that the requirement for basic reading
composition is important factor in considering police applicants that the fact
that some black candidates failed is insufficient to say it violated the
constitution.
a. The court was concerned with the size of the disparity.
i. The only information presented was small
considering all police applicants across the federal system took the
same test.
b. What is the necessity of the test and could it be changed?
i. If the test is necessary and it is impossible to
change to improve the disparate impact its not likely
unconstitutional.
2. If you extend court oversight to every instance of disparate impact
would greatly increase the involvement in a myriad of subjects that are
currently local matters.
a. Your view of role of courts or democracy would affect your
opinion of that.
2. Say you reengineer the test to get less of a racial disparate result.
a. Then you're sued because you're making decisions based
on race.
i. In Brown, you were saying people couldnt make
decisions based on race but in Davis and Milliken were saying the
same thing, just in the opposite direction.
ii. Again, its not about integration its about the
constitution.
2. What does race neutral mean?
a. Suppose you have a policy that you feel would
disproportionally benefit a racial group.
 49

b. I want to do something that will convey a benefit in a

racial neutral way.
c. Ways to think about it;
i. I developed a race neutral policy and the outcome
was disparate, unintentionally.
ii. I developed a policy that was race neutral with the
hope that it had a disparate effect.
2. You cant say that a class has been subjugated to justify disparate
treatment.
a. The court has turned down this argument repeatedly.
b. You have to justify an individual who has been wronged
and the disparate treatment to right the wrong perpetrated against that
individual in that individual wrong action.
Mcleskey v. Kemp (not assinged)
1. Disparity of those executed is evidence of intent.
2. The court rejected this argument by 5 to 4.
a. If we accept this claimed wouldnt that call into question
all criminal prosecutions?
b. Maybe we should look at this as, yea, this is all tainted
and we should do something about it.
c. They took the opposite and said that's why we shouldnt
change it.
2. The plaintiffs took a sample which showed a statistically significant
disparity in the application of the death penalty.
3. The court was saying were not giving credit to the study but even if we
did we couldnt argue that the disparity is sufficient to hold the death penalty
unconstitutional.

Affirmative Action/ School use of race in admitting students.

Why do we use disparate impact as a way to enforce dormant commerce clause but
we dont with racial segregation?

Bakkas: From the 70's, we didnt read. University racial admissions qualifications
constitutionality.
1. Powel, you could use race in admissions if you didnt have a quota
2. The compelling state interest that justified using race was a diverse
student body.
3. It wasnt until Grudder that it was turned into a "holding' of the court.
a. Prior, Powell's opinion was the 5th vote of a split court,
that's all.

Grutter v. Bollinger
Affirmative Action
1. Student challenged the constitutionality of the U. of Michigan Law
School's admission's policy as it pertains to race. The school uses race as a
dispositive factor in making decisions in an attempt to obtain critical mass. The
plaintiff claims this was the reason she was not admitted to the school and
violated the 14th amendment.
 50

2. The court held the school's use of race was only a factor not the only
factor considered in maintaining a diverse student body. Further, the court held
that using race as a determinative factor in admissions served a compelling
state interest of a diverse student body.
3. Let's say you cant use race as a factor
a. You're going to be unintentionally aware of it and you just
put it out of your head.
b. We still have a goal of wanting to have a diverse class,
what do we do?
i. SES, income.
1. If you have people with different
incomes, that will bring a diverse class.
2. Universities do that to some extent.
3. But, isnt saying that you'll do that to
increase the likely outcome of gaining more people of color in
your class room express an intent?
4. Is that a more thinly veiled quota?
b. The thing comes down to shifting from intent to
probability
i. Saying something is foreseeable is different than
doing something with the intention of bring that end about.
2. Often times, admissions decisions come down to less objective
measures.
a. It could be better to say

Parents Involved v. Seattle

Segregation
1. We spent most of our time talking about Grutter, were only touching on
Parents.
2. All the justices talk about brown.
a. Talks about past discrimination are distinguised from this
case
b. Efforts at desegregation were stopped in 2000 in this
district because unity had occurred.
2. Thoughts of race and racial preference validate further racial thinking.
a. The opposite view of this is, that's like sticking your head
in the sand.
i. If you dont address it you'll never address it and
they'll persist.
b. In Grutter, Thomas cites F. Douglas and how blacks should
be left alone by whites.
i. Whites attempts at assistance have a detriment to
blacks.

Other Equal Protection Categories

Gender Rights

How are race and gender similar?

1. The trait is assigned at birth.
 51

a. Some things you're born with are not protected, size,

weight, hair color, eye color.
2. Visible
a. It can be a basis for discrimination.
b. It's easy to observe that you possess this quality and they
can discriminate against you based of these observations.
c. Suppose you're able to hide your gender,
i. Does that make it ok?
ii. It is a fundamental component of your identity.
2. Identity
a. Critical part of your identity is tied up in race or gender.
2. History of discrimination
a. Discrimination led to subjugation of the class.
b. Caused significant mistreatment
2. Mostly Arbitrary or irrational
a. It is very hard to identify circumstances where racial
distinctions are related in any way to what the government is trying to
achieve.
b. Gender,
i. 1981, selective service only applying to men was
challenged at the Supreme Court and turned down.
1. Women werent eligible for combat.
2. This is a basis for saying there is a
distinction between men and women for selective service.
ii. Now, combat positions are open to women.
1. There are some instances where a
fundamental differences between genders is important.
2. Sometimes, differential treatment can
be justified to reach an overall goal of equality.
Intermediate Scrutiny
1. Some discrimination on the basis of gender is constitutional.
a. Selective service is constitutional and still law.
i. Saying only blacks and whites would be subjected
to selective service would be clearly unconstitutional.
b. Gender exclusive restrooms is constitutional.
2. There is a need to apply something less than strict scrutiny required for
other forms of discrimination to permit these sort of allowances.
3. State interests have to be involved, there has to be some fit between
ends and means.

US v. Cruikshank
1. Didnt discuss this, thus far, in class
2. Seemed to only be evidence of historical gender discrimination.

Equal Rights Amendment

1. Constitutional amendment intended to extend constitutional
protections to gender.
2. There is no basis for saying gender discrimination is unconstitutional
under the equal protection clause of the 14th amendment.
 52

3. People were saying that the courts were upholding claims of gender
discrimination
a. There is no need for a constitutional amendment because
the courts are effectively handling it.
b. If, they were allowing gender discrimination, this might be
a basis for a constitutional amendment.
c. In a lot of the cases the court is responding to public
approval for prohibiting gender discrimination.
2. Eventually, the ERA was voted down.
a. Partly because opponents said that if it were ratified,
same sex marriage would be permissible and any attempt to bar it would
be unconstitutional.
i. If you said I couldnt marry a man because I'm a
man that would be unconstitutional.
b. This would apply strict scrutiny to gender, instead of
intermediate scrutiny.
c. Many same sex marriage cases have been determined not
to be about sex
i. Although, they are.
ii. Many said that ERA wouldnt apply to same sex,
because each sex was affected equally.
1. This is the same argument made in
Loving which was turned down by the court.
2. There's not much of a history of this
argument having success.

Gender
1. Many issues have been settled by the courts
a. But, the discrimination persists.
b. Regardless of if they fail some sort of heightened scrutiny.
2. Women are not a minority.
a. While they may not, there is still a history of
discrimination.

National Origin
1. Congress has broad authority to regulate the immigration of people.
a. They can say we dont want Irish here and that would be
treated with deferentially by the courts.
b. It is rare that a bill restricting the immigration of people
would be overturned by the courts.
2. But, once you're here the game changes.
a. You can say that someone being from a different country
is something that cant be changed or chosen.

Religion
1. The constitution limits the governments interference with religion
differently than other protected classes.
2. Many religious discrimination claims are brought under first
amendment issues.
3. Religion isnt the same as the other protected classes
 53

a. It's not so easy to identify people.

b. Should people be made to change or hide it?
i. To what extent would this offend the constitution?
ii. Can you change or hide it?

Disabilities
1. Well get more to this on Thursday.
2. Sometimes we have to make distinctions for people's disability
a. Different from race where we would say you rarely can do
it.
b. And, gender where we say that you might be able to but
you shouldnt.

Conduct
1. Some restrictions on conduct may go so far that it might be
unconstitutional
2. Statutory rape example.
a. Should someone be a registered sex offender for life for
statutory rape?

Poverty

Age
1. Most people will experience age discrimination at some point in their
life.

Legitimacy of birth
1. Born in or out of wedlock
2. Illegitimate children were barred from inheriting
3. Long history of doing so.
4. Many felt that illegitimate children were bad seed and problem people.

Sexual Orientation
1. This has only recently been getting legitimate attention from the court.

Strict Scrutiny
1. Race
2. National Origin
3. Legitimacy of birth
a. Would be hard to

Intermediate Scrutiny
1. Gender
a. Principle area
2. Religion
a. Harder to classify because of the first amendment
b. Probably leave that out, take it up after a first amendment
class.

Neither
 54

1. Most cases dont meet either of these and fall somewhere between.
2. Sexual orientation
a. Under rational basis + review
b. Most statutes are overturned because they're irrational.
2. At what point are they actually applying rational basis or are they just
kidding us?

4 tiers of scrutiny
1. Strict
2. Intermediate
3. Rational +
a. More often but not likely overturned.
2. Rational
a. Never invalidate
b. Economic discrimination is under rational and never
overturned.
c. Age and poverty
d. Last 50 years no law has been overturned
e. Any reason is good enough to uphold a law as
constitutional.
f. While the ADA prohibits age discrimination you'd think the
courts could find a basis for a constitutional reason for increased scrutiny
but they havent.

Bradwell v. Illinois
Brief Fact Summary. Mrs. Myra Bradwell brought suit challenging Illinois denial of her right to
practice law under the Fourteenth Amendment to the United States Constitution.

Synopsis of Rule of Law. Separate spheres ideology allowed Illinois to prohibit women from
practicing law. Womens admission to the bar is not protected by the Fourteenth Amendment is a
matter reserved to the states.

Facts. Mrs. Myra Bradwell was denied an application to practice law in the Illinois Supreme
Court. Her petition included the requisite certificate attesting to her good character and
qualifications. The United States Supreme Court affirmed.

Issue. Does the Fourteenth Amendment to the United States Constitution provide that one of the
privileges and immunities of women as citizens is to engage in any profession?
Held. The admission to the bar is a matter reserved to the states and Bradwells right to practice
law is not protected by the Fourteenth Amendment.
Frontiero v. Richardson
Sex Discrimination
Frontiero review
1. The court settled on intermediate scrutiny
2. There were arguments for strict but these type of cases are not all that
common.
 55

Plyler v. Doe
1. What if you're brought to this country when you're three years old?
2. When children are citizens but their parents arent they'll get deported
with their parents?
3. Deportation for crimes is unconstitutional
a. There arent any cases on this but the Supreme Court has
some opinions stating that it is.
b. If you're a citizen you are allowed here even if that's a
prison here.
2. If you're here illegally, the feds could go into your school and take you
out and deport you.
a. How can they have a right to education?
2. If education is not a fundamental right, how can you say that you have
a right to it as an illegal?
3. Should we be applying something more than rational basis review?
4. The court argues that many of these kids will be here for many years
and they should be given the education to allow them to contribute and keep
them from poverty and crime.
5. The state argues that they could be deported at any time.
6. Dissent says, it is completely rational to bar these students because it
saves money.
a. But, the majority says the state never provided any
information about how much money this would save and it's difficult to
make that argument to uphold it.
b. Saving money isnt enough, the state must provide an
additional reason.
2. State argues that it would deter people from coming to this country
illegally.
a. The majority holds that people come to this country
because of jobs, not free education.
2. The dissent argues that the state has provided two reasons for why
students should be barred.
a. This should be enough to meet rational basis.
2. The majority doesnt think it meets the level of rational basis.
3. Schools and faculty are not obligated to report to federal authorities
students who are here illegally.

Brief Fact Summary. In 1975 the Texas legislature passed a law withholding funds for the
education of children of illegal aliens. This law also authorized local school districts to deny
entry in the public schools of the state to these children.

Synopsis of Rule of Law. In order for a state to constitutionally deny a discrete group of
individuals the rights it offers to others, this denial must be justified by showing a legitimate
state interest.

Facts. In May 1975, the Texas legislature revised its education laws to withhold from local
 56

school districts any state funds for the education of children who were not legally admitted into
the United States. The 1975 revision also authorized local school districts to deny enrollment in
their public schools to children not legally admitted to the country.

Issue. Whether, consistent with the Equal Protection Clause of the Fourteenth Amendment, Texas
may deny to undocumented school-age children the free public education that it provides to
children who are citizens of the United States or legally admitted aliens?
Held. No. If the State is to deny a discrete group of children the free public education it offers to
others residing within its borders, that denial must be justified by a showing that it furthers some
substantial state interest. The state does not adequately show such an interest in this case. The
state must show that its classification of a subject class has been precisely tailored to serve a
compelling governmental interest. The Court finds it difficult to understand the states goals in
limiting the education of children of illegal immigrants. Whatever these interests may be they are
insubstantial when looking at the costs of not educating these children for the State and the
Nation.

Dissent. Finds sound policy arguments against the Texas legislatures choice, and therefore this
law is not unconstitutional. By rendering this decision the Court is compensating for the inaction
of Congress, and it is not the duty of the Court to make up for the ineffectiveness of the political
branches of government.

Concurrence.
The facts of this case shows the wisdom of rejecting a rigidified approach to equal protection
analysis, and employing an approach that allows for varying levels of scrutiny depending on the
constitutional and societal importance of the interest adversely affected and the recognized
invidiousness of the basis upon which the particular classification is drawn.
When the State provides an education to some and denies it to others, it immediately and
inevitably creates class distinctions of a type fundamentally inconsistent with the Equal
Protection Clause. Denial of an education is the analogue of denial of the right to vote, placing
these children at a permanent disadvantage similar to disenfranchisement.
The States denial of education to these children bears no substantial relation to any substantial
state interest. It is hard to argue that anyone benefits from the creation of a subclass of illiterate
persons, many of whom will remain in the State, adding to the problems and costs of both State
and National Governments attendant upon unemployment, welfare, and crime.

Discussion. This case is very similar to San Antonio Independent School District v. Rodriguez. In
this case the Court, like in Rodriguez, uses the rational relationship test to determine the
constitutionality of a state law impacting education. Unlike Rodriquez, the Court in this case
feels that the cost of allowing this law, i.e. a large illiterate group of children, outweighs the
benefits provided to the State through this law. The concurrences in this case argue for a different
approach to reach the same conclusion, while the dissent feels that the Court should universally
withhold judgment in those cases that are meant for the political branches of govern
 57

City of Cleburne v. Cleburne Liv. Ctr.

Brief Fact Summary. A Texas city denied an applicant a special use permit for the operation of a
group home for the mentally retarded. The Court of Appeals found that the ordinance violated
the Equal Protection Clause of the United States Constitution (Constitution).

Synopsis of Rule of Law. Denial of a permit for the operation of homes for the mentally retarded
violates the Equal Protection Clause of the Constitution where such denial is not rationally
related to a legitimate governmental purpose.

Facts. A zoning ordinance for the City of Cleburne (the City) permitted a wide variety of uses on
a proposed cite of land, including for hospitals, for sanitariums and for homes for the aged, but
excluded the operation of homes for the insane or feebleminded. The City, acting pursuant to the
ordinance, denied an applicant a special use permit for the operation of a group home for the
mentally retarded. The Court of Appeals held that the ordinance and the denial violated the Equal
Protection Clause of the Constitution.

Issue.
Did the denial of a permit for the operation of homes for the mentally retarded violate the Equal
Protection Clause of the Constitution?
Did the lower court err in treating the mentally retarded as a quasi-suspect class and therefore
subjecting the law to middle level scrutiny?
Held. Yes and Yes. The Court of Appeals is affirmed in its judgment.
Justice Byron White (J. White) stated that to withstand Equal Protection review, legislation that
distinguishes between mentally retarded persons and others must be rationally related to further a
legitimate governmental interest. The ordinance fails on both scores. The governmental interests,
e.g., the avoidance of apprehensiveness of mentally retarded persons, are not legitimate.
Moreover, the means the government employs are not rationally related to the achievement of its
stated interests.

Dissent. Justice Thurgood Marshall (J. Marshall) stated that the Citys ordinance clearly would
have been valid under the traditional rational basis test. If the ordinance is to be invalidated, it
must be done so pursuant to a standard more rigorous than the minimal rational basis test.
Concurrence.
Justice John Paul Stevens (J. Stevens) stated that the record demonstrates that the permit was
denied because of the irrational fears of the neighboring property owners, rather than for the
protection of the mentally retarded persons who would have lived in the home.
Justice Thurgood Marshall (J. Marshall) stated that although he disagreed with the level of
scrutiny the Supreme Court of the United States (Supreme Court) applied, he shared in the
Supreme Courts judgment that the ordinance is in violation of the Equal Protection Clause of the
Constitution.

Discussion. One thing to consider is whether the Supreme Court in fact applied an intermediate
standard of review in this case instead of the rational basis standard the Court asserted it was
using. Given that the mentally retarded suffer from an immutable characteristic, should the courts
accord discriminations against them with a heightened scrutiny standard of review?
 58

Romer v. Evans
Sexual Orientation Discrimination
Brief Fact Summary. Colorados constitutional amendment prevented the state or any of its
cities from giving certain protections to gays or lesbians.

Synopsis of Rule of Law. Classifications of politically unpopular groups, such as homosexuals,

are reviewed under a rational basis standard.

Facts. Colorado amended its constitution by including a provision known as Amendment 2 that
prohibited the state from enact[ing], adopt[ing] or enforc[ing], any statute, regulation ordinance
or policy whereby homosexual, lesbian or bisexual orientation, conduct, practices or
relationships shall constitute or otherwise be the basis of or entitle any person or class of persons
to have or claim any minority status, quota preferences, protected status or claim of
discrimination. The Supreme Court of Colorado held that the states amendment was subject to
strict scrutiny. Upon hearing the case again after remand, the Supreme Court of Colorado
affirmed enjoined enforcement of the amendment.

Issue. Whether the Colorado amendment unlawful discriminates against homosexuals and
therefore, cannot withstand the rational basis standard.
Held. Justice Anthony Kennedy (J. Kennedy). Yes. The Colorado amendment unlawfully
discriminated against homosexuals because they where singled out. Homosexuals, by state
decree, are put in a solitary class with respect to transactions and relations in both the private and
governmental spheres. The judgment was affirmed by upholding a rationale different than that
expressed by the Supreme Court of Colorado.
The state provides no rational reason for excluding homosexuals from protection of the laws.
The amendment perpetuates discrimination of homosexuals. Colorado cannot so deem a class of
persons a stranger to its laws.

Dissent. Justice Antonin Scalia (J. Scalia). The only denial of equal treatment [the Court]
contends homosexuals have suffered is . . . [t]hey may not obtain preferential treatment without
amending the state constitution. That is to say, the principle underlying the Courts opinion is that
one who is accorded equal treatment under the laws, but cannot as readily as others obtain
preferential treatment under the laws, has been denied equal protection of the laws. If merely
stating this alleged equal protection violation does not suffice to refute it, our constitutional
jurisprudence has achieved terminal illness.

Discussion. State action intend[ing] to harm the unpopular, such as gays and lesbians, and not
supported by a racial basis is unconstitutional.

Notes from Emily Greeson

1. Rational basis was primarily used before the 1940s

-must have a legitimate government interest for a statute to pass or restrict a right
-The law must have some rational relationship to the legitimate reason
 59

-so everything gets upheld; it is difficult to find a completely irrational law

Rational basis +
-sometimes the courts apply rational basis, but they strike a statute down
-a real reasonableness
-sexual orientation, disability

levels of scrutiny were not used until about the 1940s

2. Intermediate scrutinyused when an important right is at stake and the state must have a
substantial interest in the right, and the law must be substantially related to the state interest.
Sex/gender based classification (fairly close fit between the ends and the means
but not narrow tailoring).
Reaffirming right to abortion (a state requiring women to go to counselling, etc.)
You need an important or substantial state interest to justify a gender distinction
Close relationship between ends and means but not as close as possible
3. Strict scrutiny highest scrutiny used for like due process, freedom of speech, etc. or
involves a certain class like race (Korematsu) Primarily only race cases
-national origin and legitimacy would be strict scrutiny, but they never come up anymore
-national origin is more likely to come up and be more rational than legitimacy
-national origin may be rational in an immigration issue
(making Syrian refugees go through certain tests/hoops to come to the US is different than the
US saying Anyone from Syria cannot come here. that would be too broad with no exceptions
the first issue is rational).
-narrow tailoring: dont use it unless you have to
-you should use race as little as possible if you have to use it to achieve a state interest
-something may be irrational if the goal is ok but the way to achieve the goal is not really linked
to the goal meaning it is not narrowly tailored to the goal (*some relationship between ends
and means is required in order for a law to be upheld*)
-state must have a compelling state interest to restrict the right
-the law or restriction must be narrowly tailored the law must be using the least restrictive
way in order to pass it

If something is a fundamental right, then there must be a compelling state interest and it
kind of ends up look like: strict scrutiny/fundamental right
-but what a fundamental right is is still unclear
 60

Voting Rights
1. Gerrymandering
a. States are permitted to do this
i. No real reason why.
ii. Congress isnt barred from doing it.
iii. Would otherwise likely result in national districts.
b. Why have districts at all?
i. Creates equal representation
ii. More likely to have rural representation as to
opposed to a state-wide district.
2. Why cant legal residence vote?
a. No real reason, just how we do it.
b. Dont pay federal income taxes, social security, cant run
for most federal offices, and serve on juries.
2. Types of Voter Suppressions:
a. Literacy Tests
i. Weren't always about race, poor whites were
equally effected.
ii. What if it were administered in a fair way, would
they be objected to?
1. The court was treating it as a joke and
everyone knew it was a joke because everyone knew it was
administered in a fair way.
ii. Only local administrators administered the tests.
1. Today, we have these polling stations
staffed by volunteers.
a. Why arent there people
who do this full time?
b. Reference
i. Many were required to produce a current voter as a
reference of their character.
ii. Well, that pretty much meant you had to know a
person that was not black.
b. Registration fraud
i. People would show up and, oops you're not
registered.
ii. Or, you're here on the wrong day.
b. Grandfather Clause
i. This was too obvious, struck down pretty quickly.
b. Mobs
i. Wouldnt allow you to vote.
b. All-white primary
i. There was only one party.
ii. If you were republican, you were kicked out.
b. Poll Taxes
i. Applied unevenly, could discriminate against a lot
of people.
ii. Waived for whites not for blacks who couldnt pay.
 61

iii. But, some could pay, so it wasnt perfect

discrimination.
2. There is a very limited conversation about voting.
a. It doesnt seem very relevant to any case or concept.
2. Fundamental rights v. not so fundamental rights
a. There's a little wiggle room here.

In face of all of this, Congress passed the federal voting rights act of 1966.
1. There were some federal suits to enforce voting rights to people but it
didnt do much.
2. Congress developed the preclearance system
a. Some places, mostly in the south, were put in the penalty
box.
i. If you have a history of discrimination, you cannot
amend your voting laws without justice department approval.
ii. You could appeal a denial but you could only appeal
in the district of Columbia.
iii. Even federal district and appeals judges could not
be trusted in these places.
b. The JD was ultimately saying, you've had time to right the
wrongs since the adoption of the 15th Amendment and haven't.
Extraordinary times call for extraordinary measures.
2. Does this mean congress can do this whenever they can

Harper v. Virginia Bd. of Elections

Brief Fact Summary. Voters challenge the constitutionality of a poll tax.

Synopsis of Rule of Law. Prerequisite payments within the election process are unconstitutional.

Facts. Voters challenged the constitutionality of Virginias poll tax. The right to vote was
conditioned on the payment of a poll tax. The District Court dismissed the case because it relied
on Breedlove v. Suttles, which upheld a [l]evy by the poll as a prerequisite to voting. The
judgment is reversed.

Issue. Whether requiring payment of a poll tax before one can vote is constitutional.
Held. Justice William Douglas (J. Douglas). No. [A] State violates the Equal Protection Clause
of the Fourteenth Amendment whenever it makes the affluence of the voter or payment of any
fee an electoral standard. [W]ealth or fee paying has, in our view, no relation to voting
qualifications; the right to vote is too precious, too fundamental to be so burdened or
conditioned. The judgment is reversed.

Dissent. The dissenting opinions are as follows:

Justice Hugo Black (J. Black). If there is a rational reason for an electoral prerequisite payment,
then it must be upheld. Only the legislature, not the courts, can strike down a poll tax.
Justice John Harlan (J. Harlan). The Supreme Court of the United States (Supreme Court) has
overstepped its bounds by striking down the poll tax.
 62

Discussion. This case overrules the decision of Breedlove v. Suttles, which upheld an older form
of taxation that was used as a prerequisite for voting.
South Carolina v. Katzenbach

CASE SYNOPSIS
Plaintiff State filed a bill of complaint against defendant attorney general to contest the
constitutionality of certain remedial provisions of the Voting Rights Act of 1965 (Act), 42
U.S.C.S. 1973.

ARGUMENT
The State argued that, among other things, the complained of provisions of the Act exceeded the
powers of Congress and encroached on an area reserved to the states.

DISCUSSION
The court found that Congress was not limited to forbidding violations of the Fifteenth
Amendment in general terms and, as against the reserved powers of the states, Congress could
use any rational means to effectuate the constitutional prohibition of racial discrimination in
voting.
The court found that congress was justified in limiting the operation of the Act through the use of
a formula to only a handful of states because the record indicated that actual voter discrimination
occurred in these states.
The court found that the temporary suspension of voter qualifications, such as literacy tests, were
not unconstitutional because the record indicated that such tests were traditionally used to
disenfranchise minorities and their suspension was a legitimate response to the problem.
The court found that the suspension of new voter qualifications pending review was
constitutional because the record indicated that states often enacted new laws to perpetuate
discrimination in the face of adverse federal court decrees.

CONCLUSION
The court dismissed the State's bill of complaint.

Crawford v. Marion County (Supp)

1. You have to have your photo idea or you cast a provisional ballot.
a. It's put in a separate pile until you go to the clerks office
and provide your ID.
b. Or, explain why you dont have yours.
i. Why would anyone do this? The day after the
election you know who won and your vote likely wont count.
2. Why does anyone vote?
a. Their vote wont count.
i. Political campaigns are all about getting people not
to listen to this.
b. They have a right.
 63

2. What if you dont have an ID at all?

a. This only applies to in person voting and not absentee.
b. Absentee can still vote by mail.
c. Although, this is difficult to do.
2. The court makes a finding that no voters would be barred from voting
by this provision.
a. These people are not the easiest to find.
b. "Find me a person with no photo ID."
i. These people will be hard to find because they
dont have an ID.
ii. But, also convince them to be litigants.
b. The court isnt saying, that there is no one affected by this
statute.
c. Registration laws are not unconstitutional and they
impose a burden on the right to vote.
d. There has to be a clear problem
2. How would you qualify a clear problem?
A statute which would favor or disfavor a particular party are not necessarily invalid.
Shelby County v. Holder (Supp
1. Renewal of the Civil Rights Act was unanimously passed in 2006.
2. What should be done with, what might be termed, legacy issues, of the
civil rights era of the 1960s.
a. Can we go back to a normal approach?
i. A common theme amongst a lot of cases is that
were not ready for this.
b. There is a disproportionate application of these laws.
i. Some revisions to voting rights have to go through
the DOJ and some dont.
2. Is preclearance of the voting rights act a valid remedy?
a. The court didnt allow it to continue?
b. Justice Thomas said that there wasnt a preemptive
remedy he would approve of.
2. You're able to still sue that a voting act is unconstitutional. (?)

Hot Topics & Review

San Antonio School Bd v. Rodriguez
1. School was sued over the school being funded by property taxes.
Students in poorer neighborhoods did not receive an equal education as
students in wealthier neighborhoods. The court decided the right to education
is not fundamental and there is no evidence to meet requisite burden of
rational basis review for prohibition due to disparate impact of something other
than a fundamental right.
2. Discussion:
a. Two branches in this, is education a fundamental right and
equal protection
i. Fundamental right of education
1. Spending of money isnt sufficient.
 64

a. The wealthier
neighborhoods could otherwise support their school.
2. There is argument that rational basis
is too low a burden.
a. Under common law, right
to an education is a fundamental right.
b. There is language in
Meyer, brown, and plyer that say education is a really
important aspect of our national life.
i. Think about
prayer in school or mandatory salutes to the flag.
ii. There are
certain rights which education would facilitate.
1.
Right to
vote, freedom of speech,
2.
This
makes these rights more vibrant than without
education.
b. But there is no language
in these that state the government must provide a free
education as a right.
c. There are rights which
are unwritten, privacy, marry, etc.
ii. Equal protection
1. How could students who are being
discriminated against be protected? How big of a disparity is ok?
a. The courts struggle how
to determine how much inequality is tolerable but, here,
they agree that this is not enough.
2. Right to a lawyer
a. Public defenders are not
as well funded as prosecutors.
i. How big of a
disparity would cause sufficient unequal protection?
ii. This is a
hard question to answer.
2. Here, the court concludes this is not
enough.
b. Suppose the court took the opposite position.
i. The court would have to reorganize the municipal
allocation of resources.
1. In Brown they did that.
2. But it could be said it was a onetime
event.
3. This is also why people didnt like
Brown.
 65

4. People were thinking, now were going

to have another area where the court is going to do this? This is
intolerable.
b. Say the court decided to get out of the public school
business.
i. Everyone would go to private
1. Poor students would rely on vouchers.
2. This would likely not save money.
ii. What if you were not able to receive public funds to
go to school.
1. This would never happen
2. The court doesnt want to say school is
so unimportant that would pave the way towards this sort of
legislation.
3. If there is no constitutional protection
for the right to school would be very problematic.
a. Presumably there is some
right to an education
b. But, all we have to do is
give you some form of literacy.
c. This appears to be what
they're saying is all that is required.
b. If the education decisions are tough to make, should they
get out of it or suck it up and make it.
i. They seem to be teetering on the edge of this in
their decisions.
ii. They try to prevent furthering the right of
education but wont completely abandon this right.
b. Why not say that property is an improper way of
determining funding for schools.
i. There are poor districts and wealthier districts
ii. But, money is not an adequate determination of
sufficient education.
1. Some of the money in poorer districts
is greater than wealthier districts.
ii. Many metrics of ABA rankings are related to
spending.
1. That's not to say it's a ranking of
wealthiest schools.
2. But, it is a substantial metric.
ii. There may be poorer districts and wealthier
districts
1. Schools are not subject to equal
protection.
2. A poor student could live in a
wealthier district or vice verse.
ii. Why not say that there are more poor students in
poor districts?
1. The court recognizes this
 66

2. But struggles to extend further

protections.
b. This case is asking, how much inequality is too much?
i. In some cases, no inequality is tolerable.
1. All people have a right to blank on
equal terms.
ii. When it comes to resources, it's more difficult to
say.
1. What if a municipal wanted to raise it's
tax to provide more resources to their students.
ii. This has become a difficult problem in a lot of
subjects.

Obergefell
1. Case granting gay marriage constitutional protection
2. Dissent
a. This would recognize a different form of marriage different
from that which has been recognized universally forever.
2. What is the states interest in prohibiting gay marriage
a. There's a paragraph where Kennedy concludes, marriage
is great and more people should be able to do it.
i. This is more of an opinion and doesnt contribute to
the legal discussion.
b. The reason for limiting gay marriage is
i. If you permit it that will undermine or hurt straight
marriage.
1. It does expand the definition of
marriage
2. This may dissuade some straights to
get married.
a. Good luck getting
someone to put that in an affidavit.
ii. There are lots of critiques of the degradation of
American social values.
1. This is the place to take a stand
2. Send a message
3. But, it's either symbolic or has some
indirect complaint
4. This is likely just an expression of a
anger towards changing cultural norms.
2. The court tried to avoid this.
a. There were prior decisions they declined to hear.
b. But the Circuit was split so they had to take it.
c. They likely were trying to postpone it to a date as late as
possible to wait for public sentiment to change.
d. If they wrote an opinion banning same sex marriage, how
would they take it back?
i. They cant say, this decision is good for 5 years and
in 5 years well hear it again.
 67

ii. If they said it's ok to discriminate on basis of sexual

orientation, they may have to say that discrimination is ok in other
places.
2. The dissent says that either people have dignity or they dont.
a. A state action cannot give or take away dignity.
2. A solution could be to recognize any civil union of people brought
through religious ceremonies.
a. There are some contracts which are contrary to public
policy.
b. Should marriage be privatized in that way?
c. The state cant disassociate itself from marriage in total
due to tax status.
2. The state proposed the traditional definition of marriage as evidence of
rational basis to prohibit same sex marriage.

Heller
1. Either the 2nd amendment is about militias or it isnt.
a. If it is, they're not around and its ineffective.
b. If it isnt, it's about something else.
2. The vast majority of these opinions deal with what did people think
about guns in 18th century?
a. Brier brings in current statistics.
i. This is abnormal.
b. Most supreme ct. decisions focus on historical
c. This is striking, because in the past the court wouldnt
have looked at it like this. They would have looked at it in light of, "who
cares what they meant, what does it mean today."
2. A well-regulated militia, being important to the security of the nation,
the people's right to keep and bear arms shall not be infringed.
a. This would be like, because deer are pests, everybody has
a gun.
b. Just because something is used one way, doesnt mean
thats the only way you can use it.
c. It doesnt say only because militia is important, you get
guns.
d. Some state constitutions said, at the time, you have a
right to guns for defense of self or home.
i. Some predated the constitution
1. Scalia says, this is evidence of bearing
arms meaning its an individual right.
2. Dissent says, this shows they knew
how to say home or self and intentionally didnt in the 2nd.
2. It's tough to regulate the world of the late 18th century where people
care about militias.
a. What was militia for in 1791?
i. Protecting against foreign armies.
1. This is ironic. In the revolutionary war,
the militias did poorly compared to the regulars.
 68

2. That's not how it was seen, at least in

the initial skirmishes.
ii. Protection against Natives
iii. Protection against large internal disturbances.
iv. Protection against the Federal Government.
1. People said, what are we going to do if
the federal government became tyrannical.
2. This wasnt paranoid thinking, there
was at least one situation around 1800 where there was serious
discussion about this sort of thing.
3. The founders saw this as a military
federalism.
a. Every state has its own
army.
2. What if congress passes a law that
takes away people and militias weapons?
a. Whiskey Rebellion:
Washington assembled an armed force and went as a show
of force. The protest dispersed.
b. There was a legitimate
concern about this sort of thing.
b. The reason there are no state militias anymore is because
they contributed to the South's ability to secede from the union.
2. What distinguishes personal right from militia right
a. Bear Arms: does it mean only military or nonmilitary?
i. Dissent says, this has been an idiom for carrying
weapons for use against nations.
ii. It's difficult to find an authority on reaching any
decision.
1. Most turn to Blackstone, but he can be
wrong.
2. The difficulty is, you're never going to get a unanimous answer.
a. It's hard to say what people meant 250 years ago because
not everyone agreed.
b. Cant get a 100% poll.
2. Discussion of adding strict scrutiny have gone both ways.
a. Potentially teeing up this discussion for another supreme
court.
2. What about felons owning weapons?
a. History at common law of barring felons from owning
firearms.
b. Is there evidence that nonviolent felons would commit
gun crimes?
c. Felons also cant vote
i. Voting isn't in the constitution, but has been ruled a
fundamental right.
ii. You dont potentially die if you cant vote.
iii. Having your right to defend yourself taken away
from you could result in you insufficiently defending yourself from a
lethal attack.
 69

iv. 2nd amendment is in the constitution, but hasnt

been ruled a fundamental right.
2. The court says this is about confrontations
a. It seems to agree that in the home is ok
b. But outside the home?
i. It appears the court couldnt get a majority decision
beyond the issue at hand.
2. This set an apparent floor for gun rights.
a. Your right to bear arms in your home.
b. It is not likely this case will later be overruled.
2. The Court held this wasnt a fundamental right.
a. To avoid applying strict scrutiny.
b. States would have to allow people to have guns, or not?
c. Does this apply to states?
i. It's not clear.
2. Dissent: Brier
a. Guns kill a lot of people so we should regulate guns.
b. What about when we can 3D print guns?
c. Implementing and restricting guns has significant hurdles.

Exam
1. In Torts there was a greater premium in identifying the issues as
against analyzing them.
2. Tort is more of a scavenger hunt.
3. If I give you a question about abortion, theres no issue to spot.
4. Few will not understand what the question was about.
5. So, more of a premium is placed on how you analyze the claim giving
you know what it's about.
6. Format wise, more straightforward essay like.
7. Look at old exams.
a. Only thing relevant, judge so and so said, what do you
think about it.
i. This is more philosophical and unlikely to be seen
on a torts exam.
ii. Not so uncommon in con law.
iii. This is more of a whats your view of the big picture
stuff.
b. Somebody has a constitutional claim,
i. I dont want you to say, Justice Kennedy blah blah
blah.
1. In 20 years hes not going to be
around so dont worry about that.
ii. Look at it from more of a neutral way.
2. Cases v. theories
a. Abortion is an easy example, go look at Casey, or Roe.
i. Heres what they said in those cases, extract it, and
apply it to the question you've asked me.
b. Other problems, this is a fill in the blank issue:
 70

i. Given that, this is what we know about analyzing

the question.
1. There's some black letter law
2. Then you do an evaluation.
ii. Ex. If its a separation of powers
1. Youngstown, statement about the 3
zones.*** (hint hint on the test)
2. Justice Jackson said, 3 categories
where president is acting with congressional authorization,
prohibition, or neither.
a. If its neither, you're in the
zone of twilight.
b. Then you have to try to
analyze it yourself.
c. But you would need to
know how to get there first.
d. Was his action justified or
not.
b. Contemporary v. historical
i. Holding is a holding
ii. But, if a holding is made under a understanding of
a fact that is not true anymore, that's an avenue.
iii. But, not relevant.
iv. Unless, you're comparing a contemporary problem
to a past problem,
1. The problem we face is more
significant than it was, etc.
b. Historical progression of issues,
i. Dont talk about it much.
ii. Time permitting, no harm in throwing in some of
that stuff.
iii. But, it's probably irrelevant to the question being
asked.
1. Theres a tradition that''
b. Standard of Review
i. Race: Strict Scrutiny
1. Compelling state interest
2. Narrowly tailored law
3. Minimal impact
ii. National Origin: Strict Scrutiny
1. Statutes discriminating against non-
immigration matters related to your national origin.
ii. If it hasnt been specified, you have to say that.
1. Gun ownership, "I dont know what the
standard of review is, because they havent told us what it is.
But, I know it's probably more than rational basis."
ii. It would be ok to say, "Formally it is rational basis,
but in practice they apply something more than a rational basis."
iii. Sometimes, there just wont be a standard of
review for a particular right.
 71

2. Dormant Commerce Clause

a. California only allows eggs sold in the state that meet
strict criterea.
i. This is a legitimate state health issue.
ii. This puts a burden on out of state producers.
iii. Too burdensome?
b. Intent
i. General Intent
1. Statements made by relevant made
2. Stated rational for the law doesnt
match up with why they did what they did
3. That would say their intention was to
discriminate more generally.
4. It's possible a law could have such an
overwhelming impact that it's hard to conclude that that result
wasnt intended.
a. There is no other
explanation other than intent on part of someone or some
group.
b. That's more theoretical
than real.
c. This doesnt come up in
real life often.
d. Batsen challenge case,
i. Used
statistics to show it was intentional.
ii. Kind of how you find intent otherways
1. Someone says, I'm going to kill you
2. Or if you rob someone, you generally
intend the consequences of putting a gun to someone's head.
2. Judge Calibrezzi, Mag's Torts Professor.
a. "What did you learn about being a judge over a
professor?"
i. "Well, there's a lot of law out theresogood luck.
Maybe I'll see ya again."

Tort Review:
Big Picture Comment: I take the approach of going through the elemnts equally, I
would say thats not the best approach. There not all equal, in terms of the actual
issue or difficulty of the case. A different approach might be to discuss the
elements, but put the most important or difficult first. But, likely dont do them all.

A brief would be more inclined to go through everything within the page limit. But,
this is a time frame issue.

Con law will matter less, things dont break down in the elements in the same way.
If it's a due process, you'll look at the right aledge and then was it violated or not
and why.
 72

I would say that, typically, there are two type of b, one is nothing good or bad about
the answers, its average. The other is its got a number fo good things and a few
mistakes, this is mine.

Damages was the most important issue of the example with the verternarrian. I
referenced Dillion and the dog dieing in their arm, I didnt discuss the prongs of
dillion. It didnt express what it means if a person dies and how that relates to an
animal. It could have been argued that if it applies to pets how dow know what
types of pets, why Plus for identifying the issue correctly, but too bad there isnt
more discussion of it.

The second question, boy scout camp, using helicopters to find them, helicopter
crashes etc. You go through and do a solid anlasys well.

The third question, asked if there is negligence or not. You answered there is strict
liability. This would have been ok if you would have put, because of negligence is
strict libility.

This question was a tangent, and not in the good way. Negligence was on the short
side.

The strength of the second answer was balanced out by the weekness of the third.
The strength of identifying the issue in the first question. Most people didnt do that.
That was balanced out by not addressing the issue of

It's well written and planned out. Dont fall prey to the being creative problem. It
could be going beyond what the question is asking or offering an exotic theory.
Where people would think, isnt the simpilist answer best?

I dont want to say, dont be creative, but be careful about it. Think about that the
way you want to go with a particular answer. TO take con law, a lot of times
professors will score a lot of points in what we do by writing clever articles by
saying the better explaintion and then point to some random clause, which isnt
used, but a good argument could be used could reach the conclusion. But, if you
wrote a brief, you dont get to do stuff like that. The lawyer has to determine whats
in the boundaries of sensible v. crazy or low risk v. high risk. In brainstorming you'll
think of all sort of things, but you dont put everything in the document.