Constitutional Law

Professor L. Simon
Spring 2006

Introduction
THE CONSTITUTIONS THREE PRINCIPAL FUNCTIONS
1. Creates National Government and Separates Power
a. Division of powers among 3 branches (legislative, executive, and judiciary) was designed to create
a system of checks and balances and lessen the probability of tyrannical rule
i. Madison, Federalist 10: Divide power because centralization viewed as tyranny
b. Modern Era: Is This A Good Idea?
i. Want to keep government passive to protect rights, but
ii. Want it to be able to do something.
2. Divides Power between Federal and State Relationships.
a. Federalism: the idea of having two governments with jurisdiction over the same people; a vertical
division of power.
i. The framers probably thought that the states were closer to the people and more
trustworthy.
ii. State action is valid unless it is prohibited by the Constitution; federal action is valid only
if it is granted by the Constitution.
b. Federal v. State Limitations
i. Article I: [a]ll legislative Powers herein granted shall be vested in a Congress.
1. Implication: Congress can act only if there is clear authority, with all other
governance left to the states.
ii. 10th Amendment: The powers not delegated to the United States by the Constitution, nor
prohibited by it to the States, are reserved to the States respectively, or to the people.
iii. Supremacy Clause in Article VI of the Constitution: the practical effect is that state and
local laws are deemed preempted if they conflict with a validly enacted (constitutional)
federal law.
c. State v. State Limitations limiting the ability of states to impose burdens on each other
i. The Dormant Commerce Clause.
3. Protects Individual Liberties.
a. Few parts of the original Constitution deal with individual rights. Two possible explanations:
i. Framers thought it unnecessary because rights were adequately protected by limitations
on power of the national government.
ii. Framers were fearful that enumerating rights could be taken as implicitly denying the
existence of other liberties.
b. Two Characteristics of the Constitutions Protection
i. Applies only to the government; private conduct generally does not have to comply with
the Constitution.
1. Only the 13th Amendment applies to private citizens prohibiting slavery and
involuntary servitude directly regulates private behavior
2. Private citizens are protected by private law (e.g., tort law).
ii. Initially deemed to apply only to the federal government; however, this century the Court
has held that most apply to state and local governments through the due process clause of
the 14th Amendment.
c. Why protect individual rights through the Constitution?
i. Rights should be embodied in a way that is hard to change (Constitutions can be amended
only by an elaborate process) this permanency is beneficial to create a stable
government that is not threatened in times of crisis.
ii. Consequentially, long dead people are controlling the government.

THE BREAKDOWN OF THE ACTUAL CONSTITUTION

 a. OriginalConstitutionArticlesIthroughVII
i. First3articlescreatesthestructureoftheFederalGovt.
1. [1]createsCongresswith2housessetsqualifications,definesproceduresfor
enactinglaws,delineateswhatpowersCongresshas
2. [2]createsExecutivepowerdefinesofficeofthepresident,describespowers,
setsqualificationsforeligibility,methodsofelection,etc.
3. [3]createsJudicialpowerSupremeCourt,andauthorizesCongresstocreate
inferiorcourts
b. BillofRightsFirst10Amendments(addedacoupleyearsafterOGConst.wasadopted)
c. OtherAmendments11through27(addedperiodicallyoverfollowing2centuries)

THE AUTHORITY FOR JUDICIAL REVIEW

A. Judicial review: SCs authority to review the actions of the legislative and executive branches to determine
their constitutionality. Requires courts to interpret and apply the Const. to acts to determine their validity.
B. Text: Article III, 2
a. [1]: Judicial power includes 9 types of cases.
b. [2]: In case types 1 & 2, Supreme Court has original jurisdiction. In all others Court has
appellate jurisdiction, with such exceptions, and under such regulations, as Congress shall make.
c. Article III does not expressly grant the federal courts the power to review the constitutionality of
federal or state laws or executive actions.
C. Landmark: Marbury v. Madison (1803)
a. MAIN POINT: The appellate jurisdiction of the Court includes the power to hear appeals
regarding the constitutionality of acts of other branches of the federal government (Legislative
and Executive).
b. FACTS: Marbury and several other would be justices of the peace brought suit seeking a writ of
mandamus compelling Jeffersons secretary of state (Madison) to deliver the commissions. At the
time, the federal Judiciary Act (of 1789) provided that the Supreme Court had original jurisdiction
to issue writs of mandamus.
c. HOLDING:
1. Judiciary Act gives SC power to issue mandamus in original and appellate
proceedings
2. This proceeding is an original proceeding
3. Art. III gives original jurisdiction only where state is a party or involving
dignitaries
4. This is not that kind of case
5. The Judiciary Act goes beyond what is provided in Const., so is inconsistent
with the Const.
6. An act of Congress inconsistent with Const. is void and unconstitutional not
valid law
7. Mandamus cannot issue from the SC in this case because they do not have
jurisdiction
The gave SC power to declare acts of Congress void
d. Marshalls Arguments Supporting Judicial Review
i. Nature of Written Constitution
1. The Constitution is written and powers are defined.
a. However, the Constitution also speaks to Congress and the President.
Shouldnt they decide for themselves?
ii. Nature of Judicial Role
1. The judiciary must say what the law is and the Constitution must be deferred to.
iii. Series of Textual Revisions In Constitution That Imply Power
1. Strongest Argument: the arising under language in Article III; that the framers
contemplated the Constitution to be a species of law. Does this create an
inference that a legal question is presented?
e. Criticism of Marshalls argument/Judicial Review
 i. The counter-majoritarian or antidemocratic problem. The Court, a body of non-
elected officials, has the power to veto the product of democratic elections.

CONSTITUTIONAL INTERPRETATION: ORIGINALISM V. NON-ORIGINALISM

A. Which approach the judiciary should follow in interpreting the Constitution
B. Originalism:JudgesshouldprotectonlyvaluesthatcanbeidentifiedbythetextoftheConst.orthose
thattheframersintendedtoprotectintheConst.
a. Constitutionshouldevolvethroughamendmentonly
b. StrictOriginalists
i. Followliteraltextandspecificintentofframers
c. ModerateOriginalists
i. Followframersgeneralpurposesasopposedtopreciseintent
d. ArgumentsFor:
1. Interpretingdocumentrequireslimitingmeaningtospecifictext
2. JudicialReviewallowsunelectedjudgestooverturndecisionsofelected
officialsthisshouldbelimited
C. NonOriginalism:judgesshouldprotectvalueseveniftheyarenotexpresslymentionedinthetextand
werenotconsideredbytheframers.
a. Constitutionshouldevolvebyamendmentandinterpretation(amendmentsrare)
b. ArgumentsFor:
1. Historically,followingliterallywouldberidiculous(civilrights)
2. FramersIntentisnotclear
3. Framersintendedthismethodofinterpretation

FEDERALISM

The Reach of Federal Authority

PRACTICAL POINTERS
First constitutional question in any case involving a federal statute is whether the federal power exists
o Congress can only act if it has the authority to act whereas the States can act unless the
constitution prohibits their action
EXAM: given federal statute on the test assume that there is a federal power issue to be addressed.

SCOPE OF CONGRESSIONAL AUTHORITY

A. Sources of Authority for Federal legislative power
a. Past Practices and Traditions.
i. May imply that the bank is a legitimate creation of Congress, i.e. constitutional
ii. tradition may provide a linkage to framers intent
b. Necessary and Proper Clause.
i. Congress has the power to make all laws necessary and proper for executing its powers
and all others given by the Const. to federal government. They have broad authority for
choosing the means for achieving some legit aim of the government.
ii. Possible interpretations:
1. Necessary meansonly allows indispensable means of achieving an end
2. Necessary endsallows employment of means to achieve a necessary end.
iii. Textual argument: clause is incorporated among the powers of Congress and not the
limitations of Congress.
c. Supremacy Clause.
i. Federal law is supreme over inconsistent state law
ii. Any inconsistency depends on what Congress wants
1. the power to create a statute gives Congress the power to amend it to fit their
desires.
B. Limitations on Legislative Power: Federalism
 a. Compact Federalism. States are sovereign and they can limit power of the federal government
since they created the federal government.
i. Critiquethe people created the federal government
ii. This may be contrary to Article VII which requires the ratification of the Constitution,
and creation of govt. to be done by 9 States.
b. Tenth Amendment. States that Congress only has enumerated powersrest is reserved for
States. No explicit power to create a bank granted in the Constitution.
i. Constitution should be read as an outline from which broad powers may be impliednot
a statute with a specific textual meaning.
C. Value of Federalism
a. Protection against tyranny by the federal government
i. However, history has shown that states are the ones that infringe on liberties
b. Responsiveness - Smaller government units will be more responsive to the people
i. But, arent they more likely to be tyrannical since they are more homogenous?
D. Landmark: McCulloch v. Maryland, 17 U.S. 316 (1819)seminal case defining scope of the federal
legislative power and its relationship to state government authority.
a. FACTS: Congress created a Bank of the US and state governments were angry by the bank (it
called in loans owed by the state). MD created a law that required any bank not chartered by the
state to pay an annual tax or a 2% tax on all its notes. The Bank refused to pay the tax. ,
McCulloch was the cashier of that branch of the Bank. The state argued that it retained
sovereignty in its jurisdiction and could therefore tax anything within its borders.
b. Significance:
i. If Congress doesnt have this power:
1. The bank is unconstitutional and cannot exist
2. The tax issue goes away because there is no bank.
ii. Establishes supremacy (over state actions) of a federal act
iii. Confers vast powers on Congress
c. REASONING:
i. Does Congress have the authority to create the Bank? YES
1. Historical practice establishes Congress power to establish the Bank
2. The states are not the sovereign since they ratified the Const., the people are.
3. No enumerated power, but that does not make it dispositive Congress may
choose any means (necessary) to carry out its lawful authority
a. Necessary and Proper Clause (Art. 1 8): Congress may choose any
means necessary
ii. Is the state tax on the Bank constitutional? NO
1. State may not tax the Bank because that would greatly impede its (the Banks)
operation and potentially tax it out of existence
2. Marshall argues:
a. The power to create a bank implies the power to preserve
b. The power to tax includes the power to destroy
c. The power to destroy makes the power to create useless
d. Outcome:
i. Rejected compact federalism fed government is supreme over the states
ii. Expansively defines the scope of Congresss powers
iii. Limits the ability of states to interfere with federal activities
e. Criticism of Marshall:
i. CriticismofMarshall:
1. Thetaxisnotsogreatastothreatentheexistenceofthebankjustanormal
tax.
2. Notdemocraticallyfairamountstotaxingthepeople(viaacreationofthe
federalgovernment)withoutrepresentation
3. CongressionalstatutecanbeamendedtospecifythatStatescannottaxthebank.

Federal Commerce Power

PRACTICAL POINTERS
Jurisdictional element: an element requiring proof of involvement in IC
o If there is no jurisdictional element
classification under THREEas limited by Lopez & Morrison
classification under TWOas allowed by Reno v. Condon
o If activity is not commercial/economic classification under ONE or TWO
Regulating a non-commercial activity:
o Requires a series of statutes each applying to a different IC market/channel you would want to
regulate:
Justify under Category ONE as each being a regulation of an IC channel

OVERVIEW
A. Article 1, 8: Congress has the power to regulate Commerce with foreign nations, and among the
several States, and with the Indian Tribes ...
a. Must look at: What is Commerce? What is among the states? And does the 10th
Amendment limit Congressional power?
B. Categories of Regulation (Essentially, Commerce = any activity may be regulated, even if it is not
commerce in the traditional sense (the movement of persons or goods) as long as that activity fits in the
following categories)
a. ONE: Use of channels of IC which Congress deems are being misused. (Takes place within
interstate commerce)
b. TWO: Protections of instrumentalities of IC, or persons or things in IC
i. Facilities or instruments through which commerce is conducted
ii. Refers at the least to when Congress directs shipment of goods
c. THREE: Any commercial or economic activity that substantially affects IC
i. Refers to regulations of something going on within the state
ii. Note: new decisions are limiting this categorylawyers attempt to classify under
categories 1 and 2 so as not to be affected by these limitations.
C. Category ONE Inquiry
a. Channels rubricthere are interstate markets in goods and services which are channels of IC.
i. Some courts have held that interstate markets are interstate channels.
b. Plenary Power. Congress can set access conditions to those markets and those conditions
can be whatever Congress wants
c. PROTECTED CONDITIONS DOCTRINE.
i. Congress can recognize any workplace condition that it doesnt like if it affects the
IC market in anyway
d. Examples:
i. no one may sell interstate products produced in a factory that releases pollutants
into the air.
1. Category ONEregulation of channels of IC
ii. no factory doing business in IC may discharge pollutants into the air.
1. Category ONEcongress is protecting the interstate market by preventing
them from releasing pollutantswe dont want the channels of IC used in a
way that contributes to air pollution.
iii. No one may discharge any pollutants into the air.
1. No jurisdictional element have to argue it under THREE
D. Category TWO Inquiry
a. How does Court know that a regulated thing is one that is sold in IC?
i. Congressional findings
1. Reno v. Condon--Congress made findings that information was bought and
sold in IC. Court does not say that such findings are requiredlawyers will
cite Reno to support need for findings or no need for findings.
ii. If it is somehow obvious to people that it is a thing.
E. Category THREE Inquiry
 i. Is regulated activity commercial or economic?
1. If NO unconstitutional regulation
2. If YES is there a substantial effect on commerce?
a. Cumulation Principleaggregate effect of individual conduct can be
substantial
b. Rational Basis Test (RBT)statute will be upheld so long as
Congress could rationally have found that the commercial activity
affects IC.
ii. You want to try to avoid Category THREE
1. Modern law has placed limitations on this category which are no clearly defined
and may be restricted even more.

HISTORICAL TREATMENT
A. First Erabefore 1887.
a. Gibbons v. Ogdenbroad definition of commerce: not just buying and selling Commerce
includes all phases of business, including navigation.
b. CommerceCongress
i. Can regulate matters internal to the state
1. If they are intermingled with interstate commerce
ii. Cannot regulate matters that are wholly intrastate.
B. Second Erafrom 1887 to 1937.
a. Defined commerce as the last stage of business: buying and selling
b. Types of regulations before the court:
i. Internal regulations within states
ii. Regulations of movement (shipments of goods between states)
c. Inconsistent treatment
i. On the whole, more likely than not to strike down the first kind of regulation
1. BASIS: activities solely within the state are not commerceeven if they
affected interstate commerce
ii. More likely than not to uphold the second type
1. Congress has plenary power on interstate shipment.
2. LIMITATION: regulations were vulnerable if the purpose of the regulation was
not commercial (e.g. Hammer v. Dagenhart).
d. Tenth Amendment. Role not clear.
i. A broader power would leave nothing for the states to regulate.
1. Occasionally referred to a broader conception of constitutional design.
e. Economics
i. Limiting Congresss power did not preserve States power
1. most markets were national markets and market forces could always in theory
and often did in fact erode state regulatory power.
2. as market became more national, by disabling Congresss regulatory power you
did not increase State power but merely allowed for the growth of a free market
ii. LS: Maybe the justices wanted to leave regulation to the marketif the only regulatory
power that can be effective is Congress we ought to give Congress more regulatory
power
C. Third Erafrom 1937 to 1995.
a. ISSUES:
i. Defining Commerce:
1. extended to include all stages of business
2. e.g., mining, manufacturing, and production.
ii. Rejection of direct-indirect test:
1. Congress could regulate any activity that taken cumulatively had an effect on IC
iii. Introduction of rational basis test (RBT):
1. Congress could regulate anything under the commerce clause so long as there
was a rational basis for believing that there was an effect on commerce
iv. Tenth Amendmentrejected as a limit to Congresss power.
 b. NLRB v. Jones & Laughlin Steel Corp.
i. MAIN POINT: rejects idea that production is not commerce.
1. Protective Conditions Theoryregulating access to interstate market by telling
employers that they have to allow their people to organize.
c. US v. Darby.
i. MAIN POINT: motive is irrelevant so long as that which Congress regulates is interstate
commerce
1. Significance: Prohibition on employment is a means reasonably suited to
enforce interstate shipment since Congress has power to regulate shipment
they have power to prohibit employment in order to regulate shipment.
2. Overruled Hammer v. Dagenhartrejects view that Tenth Amendment limits
Congresss power
ii. Category Two: Regulation of a Thing in CommerceInterstate lumber is a thing in
commerce
iii. Category Three: Wages paid affect prices of goods in interstate commerce and therefore
can be regulated by Congress
d. Wickard v. Filburn
i. MAIN POINT: Cumulation Principlequestion is not whether individual effect is
substantialinquiry is whether aggregate effect is substantial.
1. Court rejects direct-indirect testCongress can regulate any activity having
substantial economic effect on interstate commerce.
a. You can reach something entirely within a state as long as it could have
an economic effect outside the state
2. Home usewould reduce users demand for wheat that would otherwise be used
in the market.
D. Civil Rights Act of 1964.
a. Does Congress have the power to enact the Civil Rights Act
i. 5 of the 14th Amendment gives Congress power to enforce 1of the 14th
Amendment grants broad powers to enforce anti-discrimination policies.
ii. Congress could not regulate private behavior 14th Amendment is about State control.
iii. Revisited in EPC
b. Relevance of Commerce to the Act
i. If Hammer was still law there might not be the Civil Rights Acti.e., if motive of
Congress mattered but, now, Commerce is just Commerce (just as a cigar is but a
cigar)
ii. However, purpose does not matter for Congressional Power measures
c. Rational Basis Test
i. TEST: If a rational legislature believes that theres such a relationship then statute is
constitutional.
ii. Extreme deference to Congress in these casesrelationship to interstate commerce is not
very clear.
d. Heart of Atlanta Motel, Inc. v. US
i. STATUTE: if you provide rooms for transient guests you may not engage in racial
discrimination
ii. Category Three: burdens interstate travel for those discriminated against; makes
interstate travel unpleasant and affects interstate commerce
1. Lopezwhen it cites heart of Atlanta approvinglycites it as a regulation of use
of channels of commerce case.
e. Katzenbach v. McClung
i. STATUTE: restaurants that buy food via interstate commerce cannot engage in
discrimination.
ii. Category Three: has effect on interstate food supply
E. The Latest EraPost-1995.
a. Landmark: US v. LopezStudent arrested for carrying a conceal handgun in a school guna
federal offense. Court concluded that the law was unconstitutional because it was not
substantially related to interstate commerce.
 i. MAIN POINT: Simply because Congress may conclude that a particular activity
substantially affects IC does not necessarily make it so.
1. limitation on category THREE cases: justification for a regulation requires a
substantial effect on commerce, not merely any effect.
a. Allowing Congress to justify statutes with attenuated references to
commerce would obliterate the distinction between what is truly
national and what is truly local
2. Congressional Findings: though not necessarymay help court better
understand Congresss reasoning.
a. NOTE: Morrison reduced the importance of congressional findings.
ii. HOLDING: Majoritys Analysis
1. Statute fails to fall under category THREE
a. Possessing a gun near a school is not a commercial or economic
activity
b. Statute does not contain a jurisdictional elementthat would ensure on
CBC basis that its somehow related to IC
c. Current statute makes it a crime to move a gun through IC
iii. CONCURRING: Kennedy & OConnor
1. Regulation of education is a traditional state function and government should
not get involved in such functions.
iv. CONCURRING: Thomas
1. Textual: commerce clause grants power to regulate IC not things that affect IC
would abolish category THREE altogether.
v. DISSENT: Breyer
1. Attenuated Connection to Commerce:
a. Guns impose costs on society which are spread by insurance nationally
b. Guns near schools impede good education education is important for
the economy guns impede the economy
2. Reasons for dissent
a. Overruling statute is inconsistent with precedent1
b. Congress can regulate any activity of any kind so long as it
significantly affects IC
i. Cumulation principle determines significance
ii. Question of cumulation is not one of factit is one of
Congresss rational belief that such an effect exists
c. Congress is better than courts at making complex factual judgments
such as this
vi. Making Statute Work by Amendment
1. Congress can merely add a jurisdictional element: only a crime to possess gun
near school where the gun had moved interstate. Would require one to:
a. show that gun was manufactured in one state and possessed in another
b. and since guns are only manufactured in a few states this could cover a
lot of states.
2. Nearly as effective as original statuterequires proof, and sometimes
jurisdictional element wont be met so you wont get a conviction
vii. LS: Justification Under Different Categories
1. Placing statute under category TWO
a. gun becomes a thing in interstate commerce
i. Its a regulation of guns in IC which are things in IC
b. DOUBTSnew statute doesnt really regulate interstate shipment of
gunsif it made it a crime to ship guns with the intent of them being
possessed near a school then maybe.
2. Sustaining it under category ONE
a. channels of interstate = interstate gun market

1Firsttimesince1930sthatcourthasheldthatCongresshasexceededitscommercepower.
 b. amended statute regulates interstate gun market in order to assure that
this channel does not endanger school kids
b. Landmark: US v. Morrison
i. KEY: If allowedCongress could regulate any crime if aggregated impact of it has
substantial effects on IC.
1. Congress cant usurp power of judicial review by making findings especially
not such attenuated ones
ii. STATUTE: authorizes victims of gender-motivated violence to sue for money damages.
iii. Rational Belief: enacted based on congressional findings which revealed:
1. inadequacy of state laws in protecting woman
2. gender-motivated violence costs economy billions of dollars
3. results in substantial constraint on travel by women through the country
iv. HOLDING: Statute exceeds Congresss commerce power.
1. Gender-motivated violence is not a commercial or economic activity
2. No jurisdictional element in the statute
3. Sustained only by attenuated inferences, disapproved of in Lopez
v. Dissent
1. Judicial deference to congressional findings.
a. Statute passes RBT as indicated by extensive congressional findings
and therefore the statute is constitutional.
2. Courts job is not to assess rationality of Congresss acts, merely to conclude
that jurisdictional basis exists.
c. Pierce County, Washington v. GuillenSuit for hazardous road conditions sought discovery of
states federally mandatory road study. Federal stat. exempted from discovery but state law had
no such exemption.
i. KEY: Court upholds statute as fitting under both category ONE and TWO
1. Roads and Highways are channels of commerce and instrumentalities are cars
and trucks that move in IC.
2. Highway is an instrumentality of IC and the channels whose safety is improved
is the interstate market, interstate shipment of goods
3. Highways are both channels and instrumentalities
ii. STATUTE: Highway Safety Act with purpose to encourage states to make highways
safe. In order to be eligible for money, states had to undertake study to assess road
hazard (Spending Power). Congress amended statute to exempt State from discovery of
the studys results.

The Tenth Amendment

PRACTICAL POINTERS
ANALYSIS CHECKLIST:
Does it fall within the Commerce Clause Power?
o Is there a way to get out of Category THREE?
Category ONEchannel of IC
Is the market an interstate market?
Category TWOthing in IC
o Would it fit under Category THREE?
regulation of commercial or economic activity?
YES, because wages are paid to employees
NO, because wages and hour policy directly affect the quality and quantity of
local governmental services zone of activity.
o E.g., overtime for police directly relates to effectiveness
Congress rationally believe that activity substantially affects IC?
Probably sustained under Lopez, because labor market is IC market, a lot of
people in the labor market so there would be a large effect on IC
 What was Congresss motive in enacting the statute?
Court does not care about Congresss real motive or purpose
Whether purpose is non-economic or otherwise is irrelevant
Does statute violate Tenth Amendment Immunity?
o Does it require states to legislate?
o Does it require state officials to assist in the enforcement of federal statutes regulating private
individuals?
o Does it requires states to administer a federal regulatory program?
o Does it requires states to subsidize private citizens?

Larry Simon: Thoughts & Revelations

Im down with federal power; more than states rights; but theres a limit
o E.g., Congress passes statute transferring Cali capital from Sacramento to Los Angeles
There is force to the argument which states that states rights exist and Congress should be limited in
compelling states to abide by its commands.
Its a course on loopholes its embarrassing to teach lawyers have to make a lot of silly arguments

FEDERALISM
A. Purpose of Federalism
a. Efficiency
i. Economies of scaledecentralization is more efficient.
1. Extends to local arena but may not extend to states
b. Variety
i. Its good to have a variety of services to allow people to choose the level of regulation
they are subjected to when moving.
B. Protecting Federalism
a. Decreasing Federal Tyranny
i. Division of power vertically, between federal and state governments, lessens the chance
of federal tyranny.
ii. Protection of the people from government oppression
iii. FRAMERS:
1. thought the possibility of federal abuses could be limited by restricting the
authority of the federal government.
a. Expected vast majority of governance to take place at the state or local
level
iv. Criticism
1. anachronistic in the face of modern national market economy and decades of
extensive federal regulations
2. major shift over time as to how abusive government is best controlledif
federal action intrudes upon individual liberties, the federal judiciary will
invalidate it as unconstitutional
3. judicial review is seen as an important check against tyrannical government
actions.
b. Enhancing Democratic Rule
i. States are closer to the people and thus more likely to be responsive to public needs and
concerns.
1. the electorate is small and the elected representatives are more immediately
accountable to individuals
ii. Criticism
1. Greater responsiveness may increase the dangers of government tyranny
2. There is a greater danger of special interests capturing government at smaller
and more local levels
3. Moreover, it may not really apply to more populous and heterogeneous units.
c. Laboratories for experimentation
 i. States try novel social and economic experiments without risk to the entire countryand
may come upon things that are beneficial for all.
ii. Any federal legislation preempting state or local laws limits experimentation.
1. application of constitutional rights to the states limits exp. With providing less
safeguards of individual liberties.
iii. Criticism
1. Congress and federal agencies can design experiments and try different
approaches in various parts of the country
C. Should Court Protect Federalism?
a. Unnecessary:
i. Interest of the states are represented in the national political process
ii. Nature of process provides sufficient protection of state sovereignty
b. Historical Critique
i. At the time Constitution was written, states would elect their senatorsnow popular
elections can hardly be said to protect states rights.
1. Indeed, rarely do voters take into account complicated state issues
c. LS: Counter.
i. The lobbying process in the US is driven by substantive political issues
ii. A major safeguard of federalism is the separation of powers.
d. Democratic-Process Argument
i. In effect, the people have the power to change the law in the States.
1. Congress represents all the people and they have the power to decide whether
States can act against Congress.
ii. If theres a problem go to Congress and have them change the law
D. FRAMERS
a. would have been surprised at extent of congressional regulatory power
b. BUTthey would have been surprised at the economy and how national the markets are.
c. How much do you make of original intent?
i. They wanted to limit congressional power but make sure that congress could deal with
national/economic problems
ii. As economy becomes more national that requires the government to increase its power to
deal with the growing scope

OVERVIEW
A. Text
a. The power not delegated to the United States by the Constitution, nor prohibited by it to the
States, are reserved to the States respectively, or to the people.
B. Views:
a. Dominant: not a separate constraint on Congress but rather is simple a reminder that Congress
only may legislate if it has authority under the Constitution.
i. Under this view a federal law never would be found unconstitutional as violating the
Tenth Amendment, but it could be invalidated as exceeding the scope of Congresss
powers under Art. I or for violating another provision.
ii. Single Inquiry: answering commerce power question would automatically answer 10th
amendment issue
1. If power existed under commerce clause then it would not be reserved to the
states
b. Alternative: protects state sovereignty from federal intrusion.
i. Key protection of states rights and federalism.
ii. Reserves a zone of activity to the states for their exclusive control and federal laws
intruding into this zone should be declared unconstitutional by the courts.
1. States have certain rights and immunities and those rights are protected against
violations by Congress
2. Two Inquiries: Valid exercise of Commerce Power AND accordance with Tenth
Amendment
C. The Law
 a.
Congress may prohibit state governments from engaging in harmful conduct, particularly if the
law applies to private entities as well; but Congress may not impose affirmative duties on State
governments.
b. it is unconstitutional for Congress
i. to compel state legislative or regulatory activity
ii. to compel state to subsidize
iii. to compel state legislatures to adopt laws or state agencies to adopt regulations
iv. to compel state officers to act
D. Limitations
a. Congress is therefore limited to:
i. A regulation of state activities, not a regulation of how States control their citizens
ii. Regulation of any activity so long as it does not:
1. force State to change or add any statutes
2. affect how State controls individuals
iii. The fact that state has to change laws or do administrative stuff is irrelevantso long as
the statute itself does not call for such a change
iv. Congress can regulate any commercial or proprietary activity but cannot regulate any
governmental activity
b. Compliance with vs. Enforcement Against
i. Requiring state employees to comply with a federal law is not a violation of the Tenth
Amendment.
ii. FLSArequires states to administer or comply with it; but it does not require them to
enforce a federal regulatory statute against private individuals.
c. Note on Subsidies:
i. Def: an amount higher than market price
ii. Minimum wage requirements (e.g. FLSA) require a wage higher than that demanded by
the market.
1. Angers economists because it goes against the market.
E. Policy
a. The statute is unconstitutional even if there is a compelling need for the federal action. 2
i. it would invite an unelected judiciary to make decisions about which state policies it
favors and which one it dislikes.
b. Waiver of Protection.
i. Purpose of Amendment is protection of individuals
1. States cant consent to violations of the Amendment
2. Moreover, violation is unconstitutional and states cant consent to something
that is unconstitutional
ii. Promotes electoral accountability
iii. Voter confusion: voters would see the state acting and would be confused about who to
hold politically accountable
F. Case Law Examples
a. New York v. US Federal statute created duty for states to provide for the safe disposal of
radioactive wastes generated within their borders. Invalidated for violating the 10th
Amendment.
i. Take Title Provision
1. If state fails to comply by 1996, Fed would take title and possession of waste in
the state and would be liable for any damage caused.
ii. Tenth Amendment prohibits Congress from commandeering the states for federal
regulatory purposes
b. Prinz v. US Brady Bill compelled state and local officers to conduct background checks on
prospective handgun purchasers. Invalidated for violating the 10th Amendment.
i. KEY: Cannot require state officials to administer a federal program
ii. Other options

2NationalLeagueofCitiesholdsthatsuchanapplicationviolatesthe10 Amendmentimpliedpowergrantedtothestates.BUTGarcia
th

overrulesstatingthatstateshadenoughpowerinWashingtontoprotectthemselves:noneedforjudicialprotection.
 1.Congress can get around this by using the Spending power
2.Could congress re-enact this law if they said that State participation is
completely voluntary
c. Reno v. Condon (2000) federal statute prohibited state and private sale of driver personal
information acquired from DMVs in the state. Court unanimously upheld statutedid not
violation the 10th Amendment.
i. Court avoids constitutional questionsince activity fits under Category TWO there is no
need to consider if it fits under Category THREE.

The Taxing and Spending Power

PRACTICAL POINTERS
There are various ways that Congress can get around jurisdictional elements: but it doesnt follow that
when the Court bars a statute that Congress will come back and repass it.
o Getting around a Courts decision may be possible theoretically but is not practically plausible.
o Politics changethe situation as it was when the statute was passed may not exists several years
down the road when its overruled.
In theory Congress can get around Lopez quite effectively
o By using spending power or inserting a jurisdictional element
o Those are legal points that are important to understand as lawyers
o But these potential legal avenues may not be politically viable
Time lag between when a statute is passed and when it gets to Court and by that point Congress may not
have political capability to pass the constitutional version of the statute.
o EXAM: advising Congressional committee on enacting viable statute.
Note: any tax has incentive or regulatory effects.

OVERVIEW
A. Text: Article I, 8, 1
a. Congress shall have power to lay and collect taxes, duties, imposts and excises, to pay the debts
and provide for the common defence and general welfare of the United States; but all duties
impost and excises shall be uniform throughout the United States.
B. Limitations
a. Constitutional Rights
i. TSP are subject to provisions in the Constitution that protect human rights
1. Especially involving the spending power
a. E.g., Congresss refusal to fund abortions
ii. Taxing and spending power are limited by constitutional rights
1. if Congress taxed one particular ethnicity that would violate EPC
2. tax newspaper that criticizes the govtviolation of 1st amendment
b. Federalism.
i. There are no federalism based limits on taxing and spending power
ii. Some decisions suggest such limits but the Court has not struck down a taxing or
spending power since the 1930s
iii. Suggested limits dont seem to amount to much by way of practical limits
C. History
a. The main historical debate is whether TSP:
i. Can only be used to implement some other enumerated power, OR
1. Madison: reference to subsequent clauses enumerated in the same .
ii. May be used for any purpose that Congress wants.
1. Hamilton: only limitation is that it act serving the general welfare
b. Court endorses Hamilton position:3

3UnitedStatev.Butlergoodlaw:Congresshasexpansivepowerstotaxandspend.badlaw:federalregulationofproductionisaviolationof
the10thAmendmentandshouldbelefttothestates.
 i. Congress has broad power to tax and spend for the general welfare so long as it does not
violate other constitutional provisions.
1. Example: a tax administered in racial discriminatory way would be
unconstitutional not as a violation of Congresss Art. I power, but as violating
the EPC of the 5th Amendment.
c. The main challenges to the TSP have been when Congress was attempting to use the power for
regulatory purposes
D. Taxing Power
a. Federal tax is constitutional whatever its motive as long as it raises some revenue.
i. While Court has not clarified what principle controls the Taxing Power (TP) the above is
often regarded as the law..
b. Court has upheld taxes that were plainly being used entirely for regulatory purposes
i. mainly to give Congress avenue for federal prosecution regulation
1. e.g., taxes on illegal gambling, illegal narcotics
ii. People challenging tax could tell it wasnt a revenue taxbecause it didnt raise much
revenue, but as long as it raised some then it was constitutional.
E. Spending Power
a. Conditional Spending. 4 Federal government offers to give federal money conditioned on
compliance with federal provisions.5
i. ChoiceStates can avoid federal regulation by simply not taking the money
ii. Requirements for spending conditions6
1. Must be for general welfaresubstantial deference to Congress
2. Must be clearly identified in the statute
3. Must be related to the spending program of which it is a part
a. can be fairly attenuated
b. Court suggests that at some point temptation of federal funds may become coercive.
i. However, there are decisions that have upheld 100% fund cutoffs.
ii. States rarely refuse to comply with federal spending conditions

Limits on State Regulatory and Taxing Powers

PRACTICAL POINTERS
Framework for Analysis
o If there is a federal statute that is regulating the same activity as a state statute, then you have a
preemption issue.
o If a state law unduly burdens IC with respect to an area or activity unregulated by Congress, then
you have a DCC issue.
o A case can present both issues.
The court usually addresses preemption issue first.
If no preemption is found, move on to DCC analysis.

STATE REGULATION OF INTERSTATE COMMERCE

A. Overview
a. States have power to regulate local aspects of IC; however, the Supremacy Clause and the
Commerce Clause (CC) limit this.
b. Dormant Commerce Clause (DCC): the Court has held that a state law that unduly burdens or
discriminates against IC, it can violate the CC.
c. Supremacy Clause: if Congress has adopted a statute regulating the same area as a state statute,
the state statute may be held invalid. Preemption is derived from this clause.
B. Models of Regulatory Power

4
5
6
 a. Exclusive Federal Power
i. Any activity regulated by Congress within scope of its power to regulate is outside
States power to regulate.
1. State regulations unconstitutional under the CC
a. Positively: range of powers given to Congress.
b. Negatively (DCC): withdraws some powers from states.
2. Supremacy Clause
b. Shared Power
i. States have the power to regulate as long as state law is not inconsistent with federal law.
ii. This is determined by the preemption doctrine.
c. Exclusive State Power
i. The 10A provides a field for this.

Preemption of State and Local Laws

PRACTICAL POINTERS
Same Subject: look out for fact pattern that indicates there are federal and state statues dealing with the
same subject area.
o Direct Conflict: where laws are in the same subject area, look first for direct conflict. If a person
or business could not follow both regulations, then the state regulation must fall. Most fact
patterns are not of this type.
o State is More Stringent: More common. Obviously it is possible to obey both, but the question is
whether Congress meant to set a minimum standard or meant to set a standard with which states
could not interfere. Turns on congressional intent.
Occupation of Whole Field: look out for federal statutory scheme that seems to deal with an entire broad
area. This may indicate Congress intent to occupy the whole field, in which case even a state regulation
dealing with an aspect of the problem not addressed in the federal scheme may be preempted. This
commonly occurs in nuclear power and immigration.

OVERVIEW
A. Three Situations Where Preemption Claims Arise
a. Express Preemption: occurs where there is explicit preemptive language.
b. Implied Preemption
i. Field Preemption: occurs where congressional regulation of some area is so extensive
that it gives rise to inference that Congress intended to occupy the field to the exclusion
of state regulation.
ii. Conflict Preemption: occurs where state law impedes the achievement of a federal
objective.
1. Mutual Exclusivity: where state and federal law are mutually exclusive;
compliance with both is impossible.
2. Impedes Federal Objective: where state law is an obstacle to a federal objective.
B. The Ultimate Question: Did Congress Intend to Preempt State Regulation?
a. Where congressional intent is not clear, but federal regulation is extensive the court is likely to
find Congress really wanted its regulation to be exclusive.
b. Where compliance with both laws is impossible the court is likely to decide that Congress wanted
its law to control.
c. Where compliance with state law impedes federal objective the court is likely to find that
Congress wanted its law to be supreme.
C. Policy Issues
a. Ultimately concerns the allocation of authority between the federal and state governments.
i. Broad View: less room for state and local governance.
ii. Narrow View: minimizes the reach of federal law and risks undermining the federal
objectives; could be used to empower the states.

EXPRESS PREEMPTION OF STATE LAWS

 A. When Congress has the authority to legislate, it can make federal law exclusive in a field. The clearest way
to do this is include language in the statute that expressly preempts state and local laws.
B. Scope of Preemption
a. Problem: even when a preemption clause exists, it rarely provides guidance as to the scope of
preemption. Thus, judicial interpretation is very important.

IMPLIED PREEMPTION OF STATE LAWS

A. Field Preemption
a. SC has ruled that it will find implied preemption if there is a clear congressional intent that federal
law will be exclusive in an area or if comprehensive federal regulation evidences a congressional
desire that federal law should completely occupy a field.
b. Difficulty: deciding when congressional intent is sufficiently specific or federal legislation is
sufficiently detailed to preclude state regulation in a field. There are no clear criteria; courts must
make a judgment call based on whether the interests behind the federal law will be best served by
the law being exclusive in a field.
c. Hines v. Davidowitz (1941): Foreign Policy and Immigration
i. A Pennsylvania law required aliens to register with the state, carry a state-issued card,
and pay a small registration fee.
ii. SC ruled that this law was preempted emphasizing the extensive federal legislation in the
area. Two important aspects of the decision:
1. The state law in no way interfered with the federal law or its implementation.
2. The absence of preemptive language in the federal statute.
d. Framework for Analysis
i. Is it an area where the federal government traditionally has played a unique role?
ii. Has Congress expressed intent in the text of the law or in the legislative history?
iii. Would allowing state and local regulations risk interfering with the federal regulatory
efforts?
iv. Is there an important traditional state or local interest served by the law?
B. Conflict Preemption
a. Generally
i. If federal and state law are mutually exclusive, so that a person could not simultaneously
comply with both, then the state law is preempted.
ii. Simons Formulation: a state law is preempted if it requires or permits conduct that a
federal law prohibits or if it prohibits conduct that a federal law requires or permits.
b. Mutual Exclusivity
i. Problem: Deciding If There Is a Conflict
1. The fact that federal and state law are different does not necessarily indicate that
there is a conflict. The federal law could just set a minimum standard that
permits states to set stricter standards.
2. Florida Lime & Avocado Growers, Inc. v. Paul (1963).
a. SC ruled that the federal regulation set only a minimum standard for
avocados, allowing states to set stricter requirements.
b. SC relied in part on an impossibility of compliance with both test.
Both could be complied with; the Florida avocados could meet the
California requirements if picked later. What if Florida couldnt meet
the stricter standard?
i. DCC: the California law is protectionist and affects IC.
ii. Preemption: an agricultural question should not affect the
meaning of the statute.
c. LS: It shouldnt, but the factual configuration will influence the
interpretation of statutes and regulations.
c. Impedes Federal Objective
i. State law will be preempted if the Court concludes that the state law interferes with a
federal goal.
ii. Problem: Deciding If State Law Impedes Federal Objective
 1. Pacific Gas & Electric v. State Energy Resources Conservation of Development
Commission (1983)
a. California law imposed a moratorium on the construction of nuclear
power plants until a safe means of disposing waste had been approved
by a federal agency. The utility argued that this interfered with the
federal objective of encouraging the development of nuclear power.
b. SC rejected this, arguing that the federal interest in encouraging nuclear
power was only to the extent that it was economically feasible.
c. Two Major Choices:
i. Characterizing the Federal Objective: the Court avoided
preemption by narrowly characterizing the federal objective.
ii. Characterizing the State Law: the Court avoided preemption
by characterizing the state law as preventing construction
unless the safety of disposal was approved, not in terms of
economics different objectives.

Dormant Commerce Clause

PRACTICAL POINTERS
Undue Burden on Commerce
o One main branch of the DCC analysis is the burden branch
If a states regulations burden IC, it will be struck down unless
The burdens are outweighed by the states interest in enforcing its regulation.
o Conflicts: look for conflicts between the laws of two or more states. Conflicting regulations is
likely to be an undue burden since a business operating in multiple states would find it difficult or
impossible to comply with all of the conflicting regulations.
o Transportation: classic scenarios where states have different regulations and commerce is
directly affected.
o No Protectionist Motive Necessary: must do a burden analysis even where the state seems
totally even-handed.
Health and Safety Regulations: common instance of even-handed, yet burdensome,
regulations.
Protectionism
o Other branch of the DCC analysis. If the state is intentionally discriminating against out-of-
staters, in order to promote its residents own economic interests, this is not a legitimate state
objective, so the regulation will almost automatically violate the CC. Some common examples:
Exporting of Good Stuff: look for rules restricting the export of good stuff produced
inside the state.
Importing of Bad Stuff: look for rules barring the import of bad stuff.
Importing of Good Stuff: look for rules whose effect is to limit imports of good stuff
because the state is trying to boost demand for in-state produced good stuff.
Market Participant Exception
o Look out for instances where the state is operating a factory, purchasing goods, or otherwise
directly engaging in commercial transactions for its own account.
Taxes
o Remember that taxes can violate the DCC. Use the same two branches of analysis.
Discrimination: violation if the state is discriminating IC by taxing it less favorably than
in-staters.
Unfair Burden: violation if scheme unfairly burdens commerce even though it doesnt
discriminate on its face.
E.g., a flat tax on some activity, regardless of its degree of connection with the
state.

OVERVIEW
 A. Def: the principle that state and local laws are unconstitutional if they place an undue burden on IC. This
power is inferred from the CC.
B. Relationship to Other Constitutional Provisions
a. The DCC is not the only way of challenging state laws the burden IC, especially if the law
discriminates against out-of-staters. Could also look to:
i. The privileges and immunities clause
ii. The equal protection clause (EPC) of the 14th Amendment
C. Basic Policy: should the courts be aggressive in striking down state and local laws that burden the national
economy, or should the courts adopt a general posture of deference?

HISTORICAL APPROACHES
A. Gibbons v. Ogden: The Dormant Commerce Clause Before 1893
a. Distinguished between regulations of IC and regulations of the police powers of local
governments. A state cannot regulate interstate commercial matters, but can regulate for health
and safety. Abandoned, but not overruled.
b. Problem: assumes that they are two distinct categories, which they are not.
B. Cooley v. Board of Wardens: National v. Local Subject Matter
a. The court drew a distinction between subject matter that is national (invalid) and subject matter
that is local (allowed). Abandoned, but not overruled.
b. Problems
i. It allows regulations that are protectionist and/or burdensome on IC, so longs as they are
deemed local.
ii. No clear distinction between what is national and what is local.
C. DiSanto v. Pennsylvania: Direct v. Indirect Effects on Commerce
a. SC drew a distinction between state laws that directly interfered with IC (invalid) and those that
only had an indirect effect (permissible).
b. Problem: assumes that there is a clear difference between the two kinds of laws, which there is
not; burdens are a matter of degree.

MODERN APPROACH: BALANCING

A. Overview
a. balancing of the benefits of a law against the burdens that it imposes on IC. A departure from the
rigid categories of previous approaches.
b. Note: the Court has never expressly overruled any of the previous approaches and occasionally
invokes them in decisions.
B. Framework for Analysis
a. Dormant Commerce Clause v. Preemption Issues
i. If there is a state statue that regulates the same are as a federal statute, then there is a
preemption issue.
ii. If there is no federal statute that regulates an area regulated by a state statute and the state
law unduly burdens IC, there is a DCC issue.
b. Central Question: Is the State Discriminating Against Out-of-Staters?
i. Yes: the burden shits to the state to meet a very high burden of justification.
ii. No: the court balances the burden on IC against the local benefits produced by the law.
C. Sub-Rules of the Dormant Commerce Clause
a. A state or local regulation that discriminates against IC (or out of state interests) is
unconstitutional
i. Unless it serves legitimate government interests and
ii. There are no reasonable, non-discriminatory, alternative means to serve those interests.
b. A non-discriminatory state regulation whose effects incidentally burden IC is unconstitutional if
the burden clearly excessive in relation to its putative local benefits.

TYPES OF DISCRIMINATORY REGULATIONS

A. Facial Discrimination.
a. The statute expressly draws a distinction between in-staters and out-of-staters.
b. Those challenging it dont have to put up evidence; its an argument about the law.
 c. Case Illustrations
i. City of Philadelphia v. New Jersey (1978)
1. SC held unconstitutional a law that effectively kept landfills in the state
exclusively for New Jerseys use by preventing the importation of any waste
from out-of-state.
2. The law facially advantaged people who generated waste in New Jersey over
those who generated it in other states.
ii. Hughes v. Oklahoma (1979)
1. SC held unconstitutional an Oklahoma law that prevented the transport of
minnows obtained in Oklahoma for sale outside of the state.
2. Facially advantaged in-state minnow consumers over out-of-state minnow
consumers.
iii. Maine v. Taylor and United States (1986)
1. SC upheld a Maine law that prohibited the importing of live baitfish into the
state.
2. The discriminatory law was necessary to serve an important purpose, in this case
protecting Maines fisheries from parasites.
B. Facially Neutral Discriminatory Effects
a. The terms of the law treat in-staters and out-of-staters alike, but the effect of the law is
discriminatory.
b. Unfortunately, the Court has never articulated clear criteria for deciding when proof of
discriminatory effects is sufficient and cases in the area are quite inconsistent.
c. Case Illustrations:
i. Dean Milk Co. v. Madison, Wisconsin (1951)
1. SC found unconstitutional a citys ordinance that required all milk sold in the
city be pasteurized within five miles of the city.
2. Local regulations that treat out-of-staters in a disparate manner will be treated as
discriminatory even though they also discriminate against those in other parts of
that state.
ii. C & A Carbone, Inc. v. Town of Clarkstown, New York (1994)
1. SC found unconstitutional a citys ordinance that required all nonhazardous solid
waste in the town to be deposited at a transfer station even thought there was no
evidence that it hurt any out-of-state processor.
2. This means that any state regulation of market activities that requires exclusive
use of facilities inside the state is unconstitutional.
iii. Hunt v. Washington State Apple Advertising Commission (1977)
1. SC found unconstitutional a law that required all closed containers of apples
sold or shipped into North Carolina be marked with U.S. grade labels because of
its effect on the sale of Washington apples (which had a different, more stringent
grading system).
a. Discrimination based on disparate impact.
iv. Exxon Corporation v. Governor of Maryland (1978)
1. SC found nondiscriminatory a Maryland law that prohibited a producer or
refiner of petroleum products from operating a retail service station within the
state.
2. The fact that a regulations burden falls mainly on out of state interests does not,
by itself, establish discrimination. DCC protects the interstate market, not
particular firms.
3. Dissent: given structure, the effect of the law is to kick out a class of
predominantly out-of-state retailers and to protect in-state independent retailers.
v. CTS Corp. v. Dynamics Corp. of America (1987)
1. SC upheld an Indiana law that limited corporate takeovers by requiring that a
purchaser who acquired control shares in an Indiana corporation would
acquire voting rights only if the transaction was approved by a majority vote of
the preexisting disinterested shareholders.
 2. SC rejects the challenge on the basis of Exxon. The law imposes no greater
burden on out-of-state businesses than on in-state businesses.
d. Distinguishing Exxon and Hunt
i. Two Interpretations of Hunt
1. Washington apples were so special that they were almost a unique product.
2. Hunt was different because the apple regulation increased the marketing costs of
Washington, but not North Carolina growers.
ii. Discrimination
1. This suggests that even if a regulation discriminates only against specific firms,
it is still vulnerable if it imposes higher costs on at least some of those out of
state firms.
a. The market/firm distinction is not the only relevant question.
2. This also suggests that a state regulation that imposes the same increased costs
on in and out-of-state firms, is not very likely vulnerable to DCC attack. This is
true for a lot of state legislation.
iii. Generally, if the most that can be said about a law is that its costs will fall on out-of-state
companies and not in-state companies its probably ok. Must usually show something
more.
iv. Unique Product Distinction
1. North Carolina obviously discriminates against interstate market because the
apples coming from Washington are a unique product with their own market.
2. New York regulation is different. It is protecting a New York company by
discriminating against out-of-state products that compete with a unique NY
product.
C. Facially Neutral Discriminatory Purpose
a. The terms of the law treat in-staters and out-of-staters alike, but the purpose of the law is
discriminatory.
b. Unfortunately, the Court has never articulated clear criteria for deciding when proof of
discriminatory purpose is sufficient and cases in the area are quite inconsistent.
c. Case Illustrations:
i. West Lynn Creamery v. Healy (1994)
1. SC found discriminatory a Massachusetts tax on all milk dealers where the funds
were used to pay subsidies to in-state dairy farmers (2/3 was produced out-of-
state). This was unconstitutional because the state was essentially subsidizing
local industry through a tax on out-of-state dealers.
2. Taxes from general revenues are constitutional. Thus, if Massachusetts
amended the statute and set up a general fund the law would be valid. But there
is no difference between what the court approves and rejects.
3. Court has never struck down a law solely on purpose
a. the purpose and effect are to divert funds
b. Advocacy Lesson:
i. Whether or not purpose alone is sufficient, it is always wise to
bring it up. At the very least it is important in close cases.
ii. State of Minnesota v. Clover Leaf Creamery Co. (1981)
1. Minnesota law prohibited the sale of mild in plastic disposable containers, but
allowed its sale in paper disposable containers. The stated purpose was
environmental protection.
2. Substantial discriminatory effect because Minnesota had a substantial paper
industry but no plastic industry.
3. Supreme Court held law was nondiscriminatory. The statute does not effect
simple protectionism, but regulates evenhandedly without regard to whether
the milk, containers, or sellers are from outside the state.
4. Burden on IC is not clearly excessive.
D. Determining Whether a Facially Neutral Law Is Discriminatory [pp]
a. Important Factors
 i. Law likely discriminatory if its effect is to exclude virtually all out-of-staters from a
particular state market, but not if it only excludes one group of out-of-staters. See Exxon,
Clover Leaf.
ii. Law likely discriminatory if it imposes costs on out-of-staters that in-staters would not
have to bear. See Hunt.
iii. Court is more likely to find discrimination if it believes that a law is motivated by a
protectionist purpose, helping in-staters at the expense of out-of-staters.

THE ANALYSIS WHEN A STATE IS NOT DISCRIMINATING

A. Balancing Test: court balances the laws burdens on IC against its benefits.
a. The law will be found unconstitutional if the burdens exceed the benefits (Pike Test).
b. Generally, if nondiscriminatory, the law will be upheld.
i. See Exxon, Clover Leaf, CTS Corp.
c. However, there are cases where nondiscriminatory laws have been held to excessively burden IC.
i. See Bibb v. Navajo Freight Lines
d. Best Argument: a challenged regulation disrupts the smooth flow of commerce.
i. Pike: when a challenged regulation interferes with interstate goods.
ii. Alternative: inconsistent regulations.
e. If all you can say is that the burden falls excessively on out-of-staters, you lose. See Exxon.
i. In CTS Corp., lawyers combine the burden and discriminatory effects arguments and still
lose. Indicates that you need more.
B. Extraterritorial Effects
a. Any state law requiring labeling, packaging, etc, produces these effects.
b. Most scholars agree that these do not place the laws in jeopardy.
C. Least Restrictive Alternative
a. SC articulates a least restrictive alternative component of its balancing test, but
b. It is questionable whether it is likely to be used in evaluating nondiscriminatory laws.
i. Pike v. Bruce Church, Inc. (1970): (after stating balancing test) And the extent of the
burden that will be tolerated will of course depend on the nature of the local interest
involved, and on whether it could be promoted as well with a lesser impact on interstate
activities.
D. State Laws Regulating the Size of Trucks and Trains
a. SC will evaluate these on a case-by-case basis considering the specific evidence of safety benefits
compared to their burden on IC.
b. Probably less of a presumption of deference regarding train regulations.
c. Case Illustrations:
i. South Carolina v. Barnwell (1938)
1. Court upheld a South Carolina law that prohibited the use on state highways of
trucks that exceeded width and weight limits. The effect was to exclude 85 to
90% of trucks used in IC.
2. We dont want to balance burden and benefits; that is the job of Congress. This
is a very deferential case.
ii. Southern Pacific Co. v. Arizona (1945)
1. Court declared unconstitutional a state law that limited train lengths.
2. The state argued that this was a safety law; in reality it had to do with labor.
3. SC held that the laws burden on commerce was greater than its safety benefits.
iii. Bibb v. Navajo Freight Lines, Inc. (1959)
1. Strict requirements for mudguards on trucks and trailers. This resulted in
interstate trucks having to change their mudguards, which is both costly and
burdensome.
2. SC holds that the laws burden on IC outweighed its safety benefits.
iv. Kassel v. Consolidated Freightways Corp. (1981)
1. Court declared unconstitutional a law banning 65-foot double trailers.
2. The trial court held the law unconstitutional because it burdened commerce
more than it benefited safety.
3. Dissent:
 a.Argues that any law that if a legislature could rationally believe a law
would promote safety it is not unconstitutional unless the burden is
really great and the benefits so minimal.
b. The real purpose of the justification system is not to balance apples
against oranges. The legislature could rationally believe that safety was
the laws real purpose. If it is debatable, it is rational.
4. Only four of the justices joined an opinion in the casebook. The other two
agreed with the dissent that if a law that burdens commerce is a rational safety
matter it is not unconstitutional. These two justices relied on legislative history
suggesting that the laws real purpose was to discourage trucking through Iowa.
5. Current Court: only two justices on the Kassel court are on today (Rehnquist
wrote the dissent). Further, we know what Scalia and Thomas would say if
given the opportunity. Thats three that dont like it. Best guess is that at least
two would go along with the conservative view.
E. Laws Where States Attempt to Regulate Out-of-State Business
a. Consistently declared unconstitutional.

THE ANALYSIS WHEN A STATE IS DISCRIMINATING

A. Strong presumption against discriminatory laws that burden IC.
B. Justification
a. Law must serve a legitimate interest, and
b. There must be no reasonable, non-discriminatory, alternative means through which this interest
might be served
i. Less restrictive alternative analysis, may include a substantial relationship
C. Legitimate Interest
a. Burden
1. If law if found discriminatory, then
2. The burden is on the defending party to show that
a. It serves a legitimate purpose and
b. There are no alternatives.
ii. Heightened Scrutiny
1. Requires a showing that, at least, both of the above requirements are met (Less
Restrictive Alternative).
b. Illegitimate Interests: Protectionist Interests
i. States do not have a constitutionally legitimate interest in protectionism.
1. Sources: DCC, EPC
c. Government Interest v. Laws Purpose
i. Government Interest: any good or beneficial effect arguably produced by a challenged
law.
ii. This allows government to attempt to defend or justify laws by reference to any good
effect they produce, whether or not that effect was the legislatures purpose.
1. Determining legislative purpose is very difficult.
a. Conceptually: legislature is a multi-member body.
b. Practically
i. Historically, neither state nor local bodies have maintained
good records of legislative history.
ii. Evidence law in most jurisdictions gives elective
representatives the privilege not to testify in court about
official actions.
iii. This does not mean that the real purpose is irrelevant; it could still be determinative.
D. Alternatives Analysis
a. Burden of Proof
i. On the party defending the law. If such evidence is adduced, the party challenging the
law is required to present evidence to the contrary.
b. Issues of Law and Fact
 i. Fact: if evidence is submitted to the trial court, the court decides which evidence is more
persuasive.
1. Determination of truth; reliability of expert testimony/research.
2. The party challenging the law might be able to show evidence indicating the
challenged means is not effective. This is relevant in less restrictive alternative
analysis
a. This means-ends relationship question is main issue in many
jurisdictions.
3. Substantial Relationship Test: sometimes party defending a law has to show
that the means used in the law are substantially related to the government
interest.
ii. Law: trial court must also decide whether any of the alternative means are reasonable
alternative means.
1. Less Restrictive Alternative Analysis
a. Party defending the law submits evidence that alternative means would
not be effective.
b. Very demanding so many people dont bother putting on evidence
because its almost per se that an alternative will be found to be
reasonable.
i. Instead, lawyers focus on proving that law is not
discriminatory.
c. Less restrictive alternative test requires government bodies to bear
substantial administrative costs and obstacles for the accomplishment
of government interest in order to avoid infringing constitutional rights.
2. Reasonableness Question
a. If the alternative is reasonable, the law will be struck down.
b. No formula for this.
c. Only once has the burden been found to be satisfied. See Philadelphia
v. New Jersey.
d. See Maine v. Taylor and United States
i. Served legitimate local purposes. No less discriminatory way
to protect native species of fish and environment.
ii. One of the rare cases where discrimination against out-of-
staters was allowed.
E. Identifiable Categories of Laws
a. Laws that Limit Access to In-State Resources
i. Will be invalidated unless the state identifies a valid purpose that cannot be achieved in a
less discriminatory way.
ii. Extremely difficult to show any legitimate reason why in-staters should have access to a
states resources that is denied to out-of-staters.
b. Laws that Limit Access to Local Markets by Out-of-Staters
i. A states attempt to gain economic advantage for its citizens by limiting the ability of out-
of-staters to compete in the state market. A few ways
1. Expressly exclude out-of-staters from doing business in the state.
2. Imposition of regulations that have the effect of limiting the ability of out-of-
staters to do business in a state by imposing additional costs on them.
c. Laws that Require Use of Local Business
i. Attempt to help their own citizens at the expense of out-of-staters by requiring that tasks
be performed locally.
ii. More recent cases have consistently found state laws unconstitutional; it is exactly the
type of protectionism that the DCC forbids.
F. Argument Structure
a. If the law could be accomplished by other means, there is probably protectionist purpose.
b. Two things we know if law is contested:
i. Discriminates. It wouldnt have gotten to justification stage otherwise.
 ii. Could be accomplished just as well by alternate means. So why did the legislature
choose these means?
1. Theyre morons.
2. They wanted to discriminate.
iii. Essentially, less restrictive alternative analysis functions as a way to purge illegitimate
government purposes as to which there is no hard evidence. See Hunt.
1. When a law survives the less restrictive alternative analysis, then the
justification put up by the government really is the purpose.
2. A showing of protectionist purposes in court is not required the way you
argue it in court is through the justification argument. But it also functions as a
de facto evidentiary smell test of whats really going on.

EXCEPTIONS TO THE DORMANT COMMERCE CLAUSE

A. Congressional Approval.
a. Even a clearly unconstitutional state law will be allowed if approved by Congress because
Congress has plenary power to regulate commerce among the states.
b. If Congress has acted the commerce power is no longer dormant. Issue would be whether the
whether the federal law is a constitutional exercise of the commerce power. If so, the law must be
followed.
c. Note: this is one of the few areas where Congress can overrule a Supreme Court interpretation of
the Constitution.
i. If Court deems a matter to violate the Constitution, then
ii. Congress can respond by enacting a law approving the action.
iii. However, this could still be challenged under other Constitutional provisions (e.g., EPC,
privileges and immunities, etc).
d. The most important consent statute is the McCarran-Ferguson Act. This is important because it
exempts the insurance industry.
e. State retaliatory/reciprocity requirements normally violate the DCC.
i. Generally, granting access cannot be conditional on the other state doing the same.
ii. Western & Southern Life Insurance Co. v. State Board (1981)
1. Court said that a state law imposing a discriminatory and retaliatory tax on out-
of-state insurance companies was permissible.
2. Upheld because it fell under the McCarran-Ferguson Act.
B. Market Participant Exception
a. A state may favor its own citizens in dealing with government-owned business and in receiving
benefits from government programs. If the state is literally a participant in the market, such as a
state-owned business, the DCC does not apply.
b. Laws are still vulnerable to attack under other constitutional provisions.
c. Case Illustrations:
i. Reeves, Inc. v. Stake (1980)
1. Court upheld a cement company owned by South Dakota charging less to in-
state purchasers and more to out-of-state purchasers.
2. The state could do what it did because it was operating just like any other seller.
ii. White v. Massachusetts Council of Construction Employers (1983)
1. Court upheld a citys ordinance that required all construction projects financed
by the city to use a workforce comprised of at lease 50% city residents.
d. Exception does not apply if the state attempts to exercise control on private participants beyond
the market in which the state is participating.
i. South-Central Timber Development, Inc. v. Wunnicke (1984)
1. Plurality Opinion: Court declared unconstitutional Alaska law that required
purchasers of state-owned timber to have the timber processed in Alaska before
shipped out of state.
2. Court drew a distinction between the ability of a state to prefer its own citizens
in the initial disposition of goods when it is a market participant and a States
attachment of restrictions on dispositions subsequent to the goods coming to rest
in private hands.
 3. Policy: unless narrowly defined, the exception will swallow the rule.
4. Dissent (Simon)
a. Could have been done constitutionally in any of five ways. Whats the
point?
5. Practical Effect: small. Just write the law differently and its constitutional.

DIFFERENCES BETWEEN DORMANT COMMERCE CLAUSE AND PRIVILEGES AND IMMUNITIES CLAUSE
A. Justification Standard
a. State regulation that discriminates against out-of-staters (e.g., the right to earn a living) is
unconstitutional unless it is substantially related to a substantial government interest.
b. Discrimination must affect a constitutional right or an important economic activity.
i. Constitutional Rights: usually dont need the P&I; you can usually just the amendment
thats violated.
ii. Economic Rights: P&I more important.
c. Supreme Court of New Hampshire v. Piper (1985)
i. Out-of-state lawyers refused admission to the bar.
ii. Decision
1. First two reasons not substantially related.
2. Second two could be accomplished through less restrictive alternative.
iii. The most you can say from these cases is that there has to be a good deal of intuitive
credibility in the idea that the right is a fundamental right.
B. Doctrinal Difference
a. P&I limited to fundamental rights. DCC not so limited.
i. Baldwin v. Fish and Game of Montana (1978)
1. Not things like elk hunting.
ii. A lesser harm will suffice to ground a DCC challenge.
b. P&I requires discrimination (probably facial).
i. Basic rule: unconstitutional unless is it substantially related to a substantial government
interest that could not be achieved through some nondiscriminatory means.
ii. No examples of a facially neutral law being struck down.
c. DCC has two exceptions (congressional consent, market participant). P&I does not have these
exceptions.
d. Corporations and aliens can sue under DCC, but not under P&I (citizens).

FEDERAL EXECUTIVE POWER

OVERVIEW
A. The Rise of the Administrative State
a. Though federal agencies and departments have existed throughout American history, it is only in
the last century that Congress has routinely delegated its legislative power to executive agencies
i. Beginning w/ the creation of the Interstate Commerce Commision (1887)
ii. Reasons for delegation
1. Congress cant foresee all problems
2. No time to address all problems
3. EXPERTISEfederal agencies become experts in the field they are delegated to
legislate
b. In many ways agencies are in conflict w/ basic constitutional principals
i. Agencies possess rule making power and these rules have the force of law In conflict
with the notion that Congress alone possess the federal legislative power
ii. Sheer quantity of regulations exceeds the capacity of Congress
iii. Political dimension: Delegation allows Congress to act indirectly, thus avoiding direct
responsibility (catch political heat) for the effect specific regulations
1. Agencies are composed of unelected officials
 iv. Federal Agencies possess legislative power to make rules; executive power to enforce
them; judicial power to adjudicate them Combination of functions seems to be in
conflict with framers concept of separation of powers
B. The Non-Delegation Doctrine
a. Basic Idea: Congress may not delegate its legislative power to administrative agencies Forces
Congress to be politically accountable
i. Schechter Poultry Corp. v. United States
1. F: provisions of the National Industrial Recovery Act held unconstitutional on
the basis that it was an impermissible delegation of legislative power by
Congress
2. Congress is not permitted to abdicate nor transfer to others the essential
legislative function with which it is thus vested
b. Used in the 1930s to invalidate New Deal legislation/delegation7
c. Current Standard: Panama and Schechter have not been overruled, just not followed
i. No statute has been invalidated under these grounds since 1937.
ii. Court has said that Congress must provide intelligible principals to guide agencys
exercise of discretion
1. but all delegations even w/o any guiding principals have been upheld
iii. Whitman v. American Trucking Associates (2001)
1. Court uses relaxed intelligible principles standard to uphold a statute deemed
an unconstitutional delegation of legislative power at appellate level
2. Scalia basically says non-delegation doctrine no longer in effect
iv. ** There is the possibility that the Supreme Court will find a statute/delegation of
legislative authority so devoid of intelligible principals as to be unconstitutional
d. Normative arguments surrounding Non-Delegation Doctrine:
i. Pro: delegation undermines the basic philosophy of the separation of powers fr.
Constitution
ii. Con: essential in complex world requiring technical and detailed regulations that exceed
scope/ability of Congress
C. The Legislative Veto
a. A way for Congress to control/check the growing powers of administrative agencies
i. Congress could overturn any law passed by an agency but requiring legislative action
limits the circumstances in which Congress can or will exercise its checking
function Legislative Veto is much simpler than requiring Congress to take legislative
action (ie. make new law)
ii. Typically included as a provision along with the delegation of authority
b. Legislative Veto declared unconstitutional in
i. INS v. Chadha8
1. Court rules that Congress may legislate only if there is a bicameralism passage
by both House and Senate and presentment to the President to sign or veto
a. legislative veto unconstitutional because it intended to circumvent the
legislative process established by the Constitution
b. Also adversely affected the separation of powersCongress acting
without the authority of the President
2. Textualism:
a. Constitution provides 4 situations where Congress can act w/ a single
house and no president so since this is not one of them LV must be
unconstitutional.
ii. Whites Dissent (Simon agrees): Functionalism over Textualism
1. Framers didnt allow for the L. Veto because they could not foresee the
expansive delegation of legislative authority

7
8ChadhawasanEastIndianwhowasgrantedtherighttoremaininthecountryw/oapassportbyanimmigrationjudge.HofRadopteda
resolutionoverturningthedecision.Courtoverrulesresolution.
 a. Since court has tolerated delegation (which itself is against Art I)
Why reject Congresss main tool for controlling that delegation on the
argument that the tool deviates from Art. I
2. Keeps Congress accountable
3. Not necessarily lawmaking, only reserving right to disapprove
4. Also nearly 200 federal laws included L. Veto provisions, declaring them
unconstitutional would put the current system in jeopardy
c. Alternative - Expiration Dates and Power of the Purse
i. Sunset Provisions:
1. Statute expires some time after its enactment (5 years) unless Congress approves
reinstatement (used popularly today)
2. Congress has supervisory power regardless of what President wants
ii. Power of the Purse:
D. Delegation of Executive power to Congress and its officials
a. Though Congress may delegate legislative power to administrative agencies, Courts wont allow it
to delegate executive power to itself
b. Why?
i. Reflection of judicial judgment that its okay for a branch of government to relinquish its
power to another but not when it assumes the power assigned to another

WAR ON TERROR
A. Presidents Power to Detain
A. Hamdi
I. F: Hamdi a US citizen moved to Saudi, arrested by Northern alliance, US says it can
detain him w/o charging him
II. Issues:
1. Does President have power to detain American citizens who are enemy
combatants?
2. Does Hamdi have due process rights?
iii. Congressional Resolution: Presidents power to use all necessary and appropriate force
against those who plan, authorize, committed or aided terrorist attack of 9/11
1. force includes detention
iv. H: Post-9/11 resolution gives President power to detain and determine whether a person
is an enemy combatant
v. Dissent:
1. Scalia says you need to suspend Habeas Corpus before detaining and therefore
Hamdis detention illegal
B. Power to Conduct Electronic Surveillance
a. President:
i. Inherent Art. II power as commander-in-chief to take any action to protect the nation
against the use of force by terrorist organizations
1. FISA unconstitutional usurpation of these powers
ii. Even under FISA Legislation:
1. Surveillance okay if Congress authorizes it and
2. Post-9/11 legislation authorizes it as an instance of war
b. Congress:
i. Electronic surveillance covered by 4th Amendment which requires judicial approval of
foreign intelligence that takes place in US, there must be probable cause
ii. FISA (Foreign Intelligence Surveillance Act)
1. FISA court must approve FIS in US
2. Provision for emergency surveillance w/o FISA approval
3. Specifies kind of probable cause required
4. Surveillance inconsistent with this Act a crime
iii. Citizens acting domestically are traitors not enemy combatants of war
C. Power to use Military Tribunals
a. Ex Parte Querin
 i. Authorizes enactment of military tribunals for violations of law of war
b. President likely has power to authorize tribunals to try enemies captured abroad
i. Use limited to non-american citizens and so far only on people captured outside of the
US
ii. However Bush has used them w/o any formal declaration of war unlike in Querin
c. *Implication of Querin that US citizens are not protected from these tribunals (????)

EXPRESS AND INHERENT PRESIDENTIAL POWERS

D. Is there inherent Presidential power
a. Debate begins in 1797 w/ G. Washington.
i. Hamilton writes extensively about how the power of the President is inherent.
a. Hamiltons argument based on a comparison between Articles I and II.
b. Article I says: All legislative Powers herein granted shall be vested in
Congress
c. Article II does not limit the president to powers herein granted so President
has authority not specifically delineated in the Constitution
b. J. Madison disagrees Inherent non-specified presidential power is inconsistent with the written
constitution
i. Constitution was meant to create a government of limited authority
c. Rule: President cannot act without express constitutional or statutory authority
E. Presidential Authority 9 Youngstown v. Sawyer
a. 4 Models of Authority
i. 1. No Inherent Presidential Authority [Black, J.]
1. The president cannot exercise power unless it is fairly and reasonably traced to
some specific grant of powereither the Federal Constitution or in an act of
Congress passed in pursuance thereof At issue: Constitutionality of Federal
Law
2. Public Interest argument not enough
ii. 2. Interstitial Executive Power [Douglas, J.]
1. Unconstitutional since Truman usurped Congress spending power Pres. may
act without constitutional or statutory authority unless the action usurps the
power of another branch
2. Gives ct. leeway to decide what the intrinsic powers of each branch are
3. Premised on the belief that there is a need for the president to exercise powers
not specifically granted in the Constitution or by Congress
iii. 3. Legislative Accountability [Frankfurter, J. & Jackson, J.]
1. President can act unless and until Congress acts to limit presidents action
a. Congress had expressly rejected giving Truman the authority to seize
industries
2. Jacksons three zones of presidential authority Analysis of presidential power
often starts with Jacksons three-part test
a. 1) When the President acts pursuant to an expressed or implied
authorization of Congress his authority is at a maximum,
i. doesnt matter if he infringes on another branch
b. 2) When the President acts in absence of either a congressional grant or
a denial of authority he can only rely on his own independent
powers No general rule constitutionality depends on the imperatives
of events and contemporary imponderables rather than abstract
theories of law
i. Zone of Twilight: In which the President and Congress may
have concurrent authority
c. 3) When the president takes action incompatible with the expressed or
implied will of Congress his power is at its lowest

9Youngstown(??):1952,USSteelworkersplannedanationwidestrike.Trumanissuedanexecutiveorderthatdirectedthesecretaryof
commercetotakepossessionofthemillsandkeepthemrunning.Trumanbelievedthatitwasanissueofnationalsecurity
 i. The president is disobeying a federal law, such actions will be
allowed only if the law enacted by Congress is
unconstitutional At issue: Constitutionality of federal law
iv. 4. Broad Inherent Authority.
1. President may act in times of emergency, as long as action does not violate the
constitution even if Congress imposes limits
2. Federal laws restricting the power of the President are unconstitutional
3. United States v. Curtiss-Wright Export Corporation10
a. The broad statement that the federal government can exercise no
powers except those specifically granted in the Constitution is
categorically true only in respect of our internal affairs
F. Line-Item Veto
a. Congress cannot increase Presidential power beyond what is explicitly found in the Constitution
i. Clinton v. New York11 Allowing the president to exercise a line-item veto, would be
changing a law adopted by Congress
1. Majority Constitution says: President has veto power or accepting power, not
both (Formulaic Approach)
2. Dissent There is a practical need for the line-item veto (Functional Approach)
G. Executive Privilege
a. Generally
i. The right of the president to keep secrets from advisors is not enumerated in the
Constitution, but it has been claimed throughout American history
1. Supreme Court has upheld it as central to the need of the President to receive
candid advice
2. Also for national security purposes
b. Landmark: United States v. Nixon12
i. First case to expressly consider the scope of Executive Privilege
ii. Court concedes that there are certain executive actions that are not reviewable by the
court
1. If constitution grants a discretionary power to the president, then there is no
judicial review
iii. But scope of that privilege doesnt go as far as Nixon wants it to go
1. Particularlyit does not extend to allow interference with criminal proceedings
a. This would be usurping judicial powers granted under Art. III
iv. HOLDING:
1. The President, alone, does not have the power to determine the scope of
executive privilege the court does
a. Marbury v. MadisionIt is the duty of the judicial department to say
what the law is
i. Questionable interpretation: Marbury obviously stand for the
judicial review of executive actions, but it is questionable as to
whether it precludes a constitutional interpretation that gives
final authority to another branch (other than the judiciary)
2. Executive Privilege is an inherent presidential power
a. Contrary to Blacks opinion in YoungstownNo inherent authority
3. Executive Privilege is not absolute
a. It must yield when there are important countervailing interests
b. Absolute Privilege would interfere with the authority of other branches
(judiciary)
v. **The significance that case involved suspicion of criminal complicity on part of the
president similar to crime fraud exception to attorney client privilege

10CongressauthorizedthePresidenttorestrictarmssalestotwowarringLatinnations
11Federalstatuteempoweredtoveto/cancelparticularpartsofappropriationbillswhileallowingtheresttogointoeffect
12AtissuewasNixonsrefusaltodelivercommunicationstojudges(Watergate)
 vi. Nixon v. Administrator of General Services13Court recognizes that even former
Presidents may claim Executive Privilege, but screening process protected their (and
Nixons) rights Screening would adequately preserve executive confidentiality
c. Current Trend: Only some questions have been resolved
i. Court has not specified what other circumstances if any would outweigh claims of
Executive Privilege

FOREIGN POLICY
A. Distinguish: power of the executive in both foreign policy and domestic affairs
a. United States v. Curtiss-Wright Export Corporation
i. Court upholds Congress delegation of power to the President citing the difference
between domestic and foreign policy
1. The broad statement that the federal government can exercise no powers except
those specifically enumerated in the Constitution is categorically true only in
respect to internal affairs
2. Historical foundation: Even before the ratification of the Constitution the federal
government has inherently possessed powers over foreign policy.
3. The realities of conducting foreign policy require the president possess much
greater inherent powers than in the realm of domestic affairs
a. President has access to information that congress does not have
ii. Criticism (LS):
1. This view is inconsistent with the written Constitution because the Constitution
includes provision regarding foreign policy Effectively ignores all mentions of
foreign affairs in Article I
2. Historical premise is inaccurate
B. Executive Agreements and Treaties
a. Two Major issues:
i. When may executive agreements be used instead of treaties
ii. What limits, if any, exist on the ability of the President to negotiate or rescind a treaty
b. Executive Agreements
i. Anything that can be done by treaty can be done by E. Agreements14
ii. E. Agreements No senate ratification is necessary
iii. E. Agreements Not mentioned in the Constitution
1. But it is well established that these agreements are constitutional
iv. Never has the Court ruled an E. Agreement to be unconstitutional for usurping the
Senates treaty-making powers
1. United States v. Pink and United States v. Belmont15
a. States must comply with E. Agreements
i. E. Agreements (like treaties) prevail over state law and policy
2. Dames & Moore v. Regan16
a. Recent case (1981)
i. Court emphasized a series of federal statutes that authorized
the Presidents action Since Congress has long accepted the
use of the E. Agreements it is constitutional under Article II
3. Conclusion: Although the Court has never invalidated an E. Agreement,
decisions on E. Agreements can be read narrowly as establishing only that they
prevail over state law and are permissible when there is no conflicting federal
statute

13NixonarguesthatthestatuteadoptedbyCongressdirectinghimtohandoverthetapesforreview(PresidentialRecordingsandMaterial
PreservationAct)violatesseparationofpowers.Tapeswouldbescreenedforprivatecommunicationandthenmadeaccessibletothepublic.
14DestroyerBasesAgreementActExecutiveAgreementthatsubstantiallyincreasedAmericaninvolvementinWWII
15CourtupheldE.Agreement,despitechallengesbyNewYorkcourts,(LitvinovAgreement)inwhichtheUnitedStatesofficiallyrecognized
theSovietUnion
16E.AgreementreachedbetweenIranandPresidentCarterchallengedbyD&MasitaffectedtheirongoinglawsuitagainstIran.
 c. Treaties: Article II says that the President shall have Power, by and with the advise of the Senate
to make Treaties, provided two-thirds of the senators present concur
i. If there is a conflict between a treaty and a federal statute, the one adopted last in time
controls
1. Co-Equal in law Treated as if it were a statute-statute conflict
ii. Treaties must be constitutional Reid v. Covert17
iii. Treaties cannot be challenged as violating the Tenth Amendment and infringing on state
sovereignty (Different from Statutes) Missouri v. Holland18
1. J. Holmes Article II expressly authorizes treaties and Article VI makes treaties
the supreme law of the land
a. Treaty power is broader than Congress power to enact statutes
iv. As the Court revives the Tenth Amendment, perhaps it will reconsider
1. If a statute is unconstitutional under the Tenth Amendment, it is questionable
why a treaty would not be
2. Laws are authorized in Article I and, like treaties, are mentioned in the
Supremacy Clause in Article VI
v. Can the president unilaterally rescind treaties Main issue that has arisen before the
Supreme Court concerning treaties
1. Goldwater v. Carter19
a. No majority opinion Non-justiciable political question
b. No decision on the merits allows the President power to unilaterally
rescind treaties without worrying about judicial intervention
d. War Powers
i. Constitution is an invitation for a struggle between the president and Congress over
control of the war power Much left unresolved
1. Article I grants Congress the power to declare war and the authority to raise and
support the army and navy
2. Article II makes the president commander-in-chief
ii. Unresolved Issues
1. Absence of case law concerning war powers
a. Prize Cases20
i. Only Supreme Court case to address the issue of whether the
president can use troops without congressional consent
2. Challenges likely to be dismissed as political questions
a. Vietnam War Dozens of cases regarding lack of official declaration of
war
i. Dismissed as non-justiciable political questions
b. El Salvador, Persian Gulf War and Bosnia = same thing
3. Uncertainty as to what constitutes a Declaration of War
a. Official declaration after Pearl Harbor (WWII) vs. Gulf of Tonkin
Resolution (Vietnam)
b. Question unresolved

CONST.S PROT. OF CIVIL RIGHTS & LIBERTIES

Overview
Overarching Issues:
Separation of Powers: extent to which the judiciary should protect civil liberties and civil rights when
doing so means striking down the actions of popularly elected officials.

17DependantsofmilitarypersonnelinaforeigncountrymustbeaccordedatrialinlinewiththeConstitution
18Decidedin1920whenthecourtactivelyusedtheTenthAmendmenttoprotectstatesrights.MigratoryBirdTreaty,uphelddespitealower
courtsrulingthatasimilarfederalstatutewasunconstitutional.
19PresidentCarterrescindedatreatywithTaiwan.SenatorGoldwatersuedcontendingthattheSenatemustapprovetherecision.
20Courtruledthatthepresidenthadthepowertoimposeablockadeonsouthernstateswithoutacongressionaldeclarationofwar.
 Federalism: extent to which individual rights should be applied to state governments and how aggressively
they should be enforced.

FRAMERS
Thought that an enumeration of rights was unnecessary in that they had created a government with limited
powers and thus without the authority to violate basic liberties.
Concerned that the enumeration of some rights in the text of the Constitution inevitably would be
incomplete and would deny protection to those not listed.
o Ninth Amendment: The enumeration in the Constitution, of certain rights, shall not be construed
to deny or disparage others retained by the people.

Incorporation Doctrine
PRACTICAL POINTERS
Test for Incorporation: the question is whether the right is among all three categories: 21
o fundamental principles of liberty and justice which lie at the base of all our civil and political
institutions
o basic in American system of jurisprudence
o fundamental right essential to a fair trial
NOTE: whenever a case involves a state or local violation of a BOR provision, to be precise it involves
that provision as applied to the states through the DPC of the Fourteenth Amendment.

HISTORICAL APPROACH
A. Bill of Rights was intended to apply to the federal government only and not to state or local governments.
a. Barron v. Mayor & City Council of Baltimore (1830s) sued the city for taking his property
without just compensation in violation of the 5th Amendment. Court holds that Bill of Rights does
not apply to the city.
b. Marshalls Rationale:
i. Constitution was established by the people for their own government not for that of the
states
ii. Framers would have declared plainly that Bill of Rights apply to the state governments if
they intended it to be so.
B. Counterargument:
a. Provisions in the BOR dont limit themselves to the federal govt. Compare:
i. 5th Amendment: No person shall
ii. 1st Amendment: Congress shall make no law
b. this would mean that state and local governments are free to infringe even the most precious of
liberties.
C. Hindsight Note:
a. Original understanding of BOR was that it applied only to the federal government
b. There was extensive faith in State constitutions to cover those rights accorded by the BOR

THE PRIVILEGES AND IMMUNITIES CLAUSE

A. Text
14th Amendment: No State shall make or enforce any law which shall abridge the privileges or
a.
immunities of citizens of the United States.
i. To Justice Black this was an eminently reasonable way of expressing the idea that
henceforth the BOR shall apply to the States. He was an eccentric fellow
b. Recall Art. IV, 2: The Citizens of each State shall be entitled to all Privileges and Immunities of
Citizens in the several States.
c. CLAIM: the rights protected by the BOR are the basic privileges and immunities possessed
by all citizens.
B. FRAMERS

21Duncanv.Louisiana,1968.CourtheldthattrialbyjuryisessentialtoAmericanschemeofjustice.
 a.
Issue: meaning of privileges and immunities and whether it was equivalent to those basic rights
protected by the BOR.
C. The Slaughter-House Casesstate legislature grants monopoly to slaughter-house company. Butchers sue
under P&I Clause arguing that monopoly violates their right to practice trade.
a. KEY: Removed Privileges & Immunities Clause as a basis for incorporating BOR to the states or
for protecting any rights from state interference.22
i. Privileges and immunities protected are those owing their existence to the federal
governmentin other words, the clause adds nothing that didnt exist before 14A was
ratified.
ii. Clause was not meant to protect individuals from state government actions and was not
meant to be a basis for federal courts to invalidate state laws
b. Criticism (LS)
i. Court ignores FRAMERS intent
1. clear that P & I of US citizenship meant some kind of fundamental rights
concept considering wake of Civil War
2. whole point of 13, 14, 15 amendments was to change fed/state relations
ii. Rights that court find protected are rights that are already protected by the
Constitution reflects nothing about FRAMERS intent unless they are a bunch of idiots
who inserted
D. Revival
a. Saenz v. Roe (1999)Court struck down California law that when someone moves into the state
they receive benefits equal to those they received in the state they moved from.
i. KEY: invalidated a law based on P&I Clause giving it meaning.
1. Right to travel and right to be treated equally in new State of residence are
privileges and immunities protected by the P&I Clause
ii. Justice Breakdown:
1. Scalia was in the majority.
2. Thomas dissentedbut expressed that he was willing to explore the P&I
Clauses application.
iii. Effect: suggests that P&I may have some future significance in arguing for and against
constitutionality of laws.

DUE PROCESS CLAUSE

A. Generally
a. jot-for-jot incorporation. Incorporated provisions apply in almost all instances, with the same
content regardless of whether it is a challenge to federal, state, or local actions.
i. The entire body of law associated with the provision is incorporated.
1. E.g., multiple interpretations of double jeopardy clause are all incorporated
along with the amendment
a. No retrial of same issue
b. Once theres conviction theres no appeal
ii. Rationale: while all interpretations may not be fundamentalit does tend to promote
certainty in the law and provide for better federal and state regulations.
B. Text
a. nor shall any State deprive any person of life, liberty, or property, without due process of
law
C. Initial Cases
a. Court expressly recognized the possibility that the DPC incorporates 8 provisions of the BOR
Twining v. New Jersey
i. not because they are enumerated in bill but because they are so fundamental as to be
included in the conception of due process .
1. Powell v. Alabama - states denial of appointed counsel to indigent criminal
in capital case violated due process clause

22ProfCorwin:theclauseenjoysthedistinctionofhavingbeenrenderedapracticalnullitybyasingledecisionoftheSupremeCourtrendered
withinfiveyearsafteritsratification.
 b.Substantive Due Process (current theory)
i. implicitly interprets the phrase without due process of law to mean:
1. without fair procedures AND without strong justification
ii. Court requires that rights be importantrejects incorporating rights that without which
the process of the system of justice would be impeded.
D. The Incorporation Debate
a. FRAMERS and History
i. Both sides claimed that history supports their contention
ii. The historical argument can never be decisively resolved because there is not a single
discernable intent on the issue of incorporation.
b. Federalism
i. Selective:
1. Applying BOR imposes a substantial set of restrictions on state and local govts.
2. desirability of preserving state and local governing autonomy by freeing them
from the application of the BOR
3. States are capable of advancing rights on their own
ii. Total:
1. federalism is not sufficient reason for tolerating violations of fundamental
liberties.
2. safeguarding precious liberties should not rest on faith in the states.
c. Judicial Role
i. Selective:
1. total incorporation would mean more judicial oversight of state and local actions
and thus less room for democracy to operate
ii. Total:
1. selective incorporation gives judges too much discretion in deciding what rights
are fundamental
E. Incorporate Rights [current law]
a. 1A: establishment clause, free exercise clause, and protections of speech, press, assembly and
petition.
b. 4A: protection against unreasonable search and seizures and the requirement for a warrant based
on probable cause; the exclusionary rule (prevents the government from using evidence obtained
in violation of 4A.
c. 5A: prohibition on double jeopardy, protection against self-incrimination, and requirement that
the government pay just compensation when it takes private property for public use
d. 6A: requirements for a speedy and public trial, by an impartial jury, with notice of the charges,
the chance to confront adverse witnesses and to have compulsory process to obtain favorable
witnesses, and to have assistance of counsel if the sentence involves possible imprisonment.
e. 8A: prohibition against excessive bail and cruel and unusual punishment.

State Action Doctrine

PRACTICAL POINTERS

State Action Analysis

the deprivation must be caused by
o the exercise of some right or privilege created by the state
o a rule of conduct imposed by the state, or
o a person for whom the state is responsible.
the party charged with the deprivation must be a person who may be fairly said to be a state actor because
o he is a state official,
o he has acted together with or has obtained significant aid from state officials, or
o his conduct is otherwise chargeable to the state.

The Exceptions
 Interpreting the Exceptions
o The more you believe in state action doctrinethe broader you want the exceptions to be
o The less you believe in itthe narrower youd want the interpretation to be.
Court is most likely to find state action based on entanglement if it can be shown that:
o The governments purpose was to undermine protection of constitutional rights, or
o The government is facilitating private conduct that otherwise would not occur.
Note: many cases involve discussion of BOTH exceptions.

Caveat Testtaker: Inherent Problems with the State Action Doctrine:

because the government is involved in so much private conduct, it is difficult to draw a meaningful line as
to the point where the involvement is great enough to require the private action to comply with the C.
because the government can always regulate private behavior (through statutes) it is difficult to articulate
principles as to when the failure to do so is a constitutional violation.

Court Trends
the Court is more likely to apply the exceptions in cases involving race discrimination than in cases
involving other constitutional claims.
Civil Rights Act greatly lessened the need for constitutional litigation to end discrimination.

GENERALLY
A. Intro:
a. Congress has no power against private discrimination under 13th or 14th amendment cases
i. Civil Rights Cases reaffirmed by US v. Morrison
B. The Rule
a. Rule: Private conduct generally does not have to comply with the Constitution except for 13th
amendment
i. the C offers no protection against private wrongs no matter how discriminatory or how
much they infringe fundamental rights. 23
b. Qualifications to the Rule:
i. 13A: forbids people from being or owning slaveprivate conduct regulation.
ii. Statutes: both federal and state statutes can require that private conduct meet the same
standards that the C requires of the govt (e.g., Civil Rights Act of 1964).
iii. Public functions exception: private conduct must comply with C if it involves a task
that has been traditionally, exclusively done by the government.
iv. Entanglement exception: the principle that the C applies if the government
affirmatively authorizes, encourages, or facilitates unconstitutional conduct.
c. Costs: absent statutory restrictions, private conduct can infringe even the most basic rights
i. Private infringements can be just as harmful as government violations.
C. Justifications
a. Text
i. Seems to limit application to just the government
1. 14A: nor shall any State
2. 1A: Congress shall make no law
ii. Countertextual Argument. Is govt. inaction a constitutional violation?
1. Because the state has power to stop the private infringement of individual rights,
its failure to do so constitutes a state decision to permit the infringement.
a. A state can be said to authorize all conduct that it does not prohibit
2. It is analytically possible to conceptualize any private infringement of
constitutional values as a result of government inaction.
3. LS: if you regard all this as textually plausiblethen the text doesnt really
justify having a state action doctrine because you would be requiring states to
act against private conduct.

23CivilRightsCases(1883):Actprovidedthatallpersonwereentitledtofullandequalenjoymentofinns,theatresandotherplacesofpublic
amusement.SCheldActunconstitutionalbecause14Adoesnotapplytoprivateconduct.
 b.
History
i. It was believed that the common law (coextensively Natural Law) completely
safeguarded personal liberties from private infringements. Not so these days
ii. FRAMERS: we dont know what the framers wanted b/c of changing times
c. Preserves a Zone of Private Autonomy Individual Liberties
i. By not applying C to private conduct, private actors have more freedom
ii. However, it also sacrifices individual freedom because it permits the violation of rights.
There are always competing liberties in the real worldthe violators freedom to act; the
victims rights that are infringed
1. ex. without a state action doctrine, courts could apply state action as to who you
can invite to dinneryou wont invite certain type of people, based on race or
religionif there was no state action doctrine, you could get sued for racial
discrimination.
d. Promotion of Federalism
i. keeps courts out of business of regulating conduct on theory that it violates the
constitution
ii. if 1 of 14th Amendment applied to private actorsthen 5 would give Congress broad
powers to regulate conduct
e. Avoidance of difficult issues
i. SC would face difficult issues that neither the framers intent nor the text of the
constitution gives a lot of guidance to resolve.
1. e.g. parochial school hires only Catholic teachers no state action, and non-
Catholic says this violates Free Exercise of Religion clause
ii. Every aspect of private behavior could be challenged under the C and would have to be
balanced against competing rights (SC would face tough constitutional questions)
iii. Accord extreme judicial oversight to SC and would burden judicial resources
D. Reasons for Inconsistency
a. Reflections of Social Realities
i. Before Civil Rights Act of 1964no statute making private racial discrimination illegal;
the only legal tool for attacking private discrimination in the South was 14A (and 15A)
1. In 1940s, 50s, 60ssupreme court created BROAD exceptions to the state
action doctrine to facilitate civil rights movement cause there was no other tool
2. All state actions that reached Supreme Court were pretty much race cases.
ii. After Civil Rights Act of 1964its prohibition of private discrimination had been
expanded by amendments to the statute; and private racial discrimination was outlawed in
most important domains by federal law (in any federally funded institution)
1. minority plaintiffs had so much statutory protection that they rarely needed 14A
2. most cases at this point were not race cases
E. Application
a. Inquiry: whether the is the government. The C applies:
i. when a law is being challenged, there is clearly state action in enacting the law
ii. to all government officers in all branches and at all levels
b. When is an Entity a part of the Government?
i. Government-Created Corporations.
1. government-created and controlled corporations are (for many purposes at
least) part of the government itself24
a. E.g. Amtrak
2. privatization of government functions
a. government cannot evade its obligations imposed in the C by simply
resorting to corporate form.
ii. Individuals.
1. RULE: a govt. officer acting under color of law is a state actor if s/he is acting
in an official capacity, even if the conduct is not authorized by state law.

24Lebronv.Natl.RailroadPassengerCorp.(1995)Amtrakwascreatedbyfederalstatutetoservenationalinterest,8of9boardmembersare
appointedbyPres.,USholdsallpreferredstockandsubsidizesperenniallosses.SCheldAmtrakisagovt.entityandmustcomplywithC.
 2. Examples:
a. doctors/psychiatrists giving medical care in prisons ARE state actors
b. public defenders, employed by the state, are NOT state actors
3. Criticism:
a. It is unclear why a professional employed by the government does not
act under the color of state law simply because they have other
professional obligations or oppose the state.
b. Are individuals acting in concert with govt. officials state actors.25

PUBLIC FUNCTIONS EXCEPTION

A. Modern Formulation
a. RULE: a private entity must comply with the C if it is performing a task that has been
traditionally and exclusively done by the government.
i. Jackson v. Metropolitan Edison Co. (1974) argues that private utility with state
granted monopoly should have to provide DP before it terminated customers service. SC
held that a utility is not traditionally the exclusive prerogative of the State and the
C was inapplicable. Since there long have been private utility companies, running a
utility is not regarded as a public function to which the C always applies.
b. Rationale:
i. The govt should not be able to avoid the C by delegating its tasks to a private actor.
ii. There are some acts that seem inherently governmental in nature; a private entity
performing them therefore also should be limited by the C
c. Issues: when should a private entity be regarded as performing a public function
i. Should intent matter
1. bad faith to allow constitutional violations
ii. Should the frequency with which the task is performed
1. exclusively done or usually done by govt. enough
iii. Should the nature of the rights involved matter
1. not according to its formulation
B. Management of Private Property
a. Marsh v. Alabama (1946)govt wanted to criminally punish the who distributed religious
literature on the premises of the company-owned town, contrary to wishes of management. SC
held that running a city is a public function and must comply with C.
i. KEY: Case was decided before Jackson and the creation of the exceptionthe only way
its holding will survive is as a retrospective interpretation fitting into the exception.
1. determination of state action is a balancing test where the court weighs the
interest of the private property owner and the constitutional rights involved.
2. the more a private entity opens property to the public, the more it is subject to
the C
b. Evans v. Newton (1966)person left park to the city providing it can only be used by white
people. City gave the park to a private organization in order to avoid desegregating it. SC holds
that running a park is a public function and it had to comply with C even if run by a private
entity.
i. KEY: all parks, private or public, may be public functions because they confer public
benefits.
1. Note: SC has never taken the language this far
c. Shopping Center Cases
i. Current Law: States can recognize a state constitutional right of access to shopping
centers for speech purposes.
ii. Relation to Exception:
1. Resemble public function of privately owned town in Marsh
2. Do not meet the controlling Jackson testshopping centers are not traditionally,
exclusively run by the government.

25
 iii. Prior Case Law26 27 28
C. Election Cases
a. An election for a government office, even a primary, is a public function that must meet the
constitutional requirement for equal protection.
i. Obligation cannot be avoided by delegation to private parties.
b. White Primary Cases (1953)challenge to the exclusion of black from participating in
preprimaries whose nominees were enormously successful in primaries. SC held that election was
state action.
i. KEY: precedent if the govt. ever would choose to stop performing a traditional task so as
to avoid the C.
1. e.g., if govt relied on contracts with private prisons in order to avoid
constitutional restraints.
c. Paradigm instance of the public functions exception: traditionally, exclusively done by govt.
i. Note: very hard to generalize results as other such activities are rare.

ENTANGLEMENT EXCEPTION
A. Modern Formulation
a. RULE: If government coerces, requires or significantly encourages a private action which would
be unconstitutional if done by the government, then the C applies. Either:
i. the government must cease what it is doing, OR
ii. the private conduct must comply with the Constitution.
b. Inaction. There exists no affirmative obligation on government to prevent violation
c. Issues:
i. What degree of govt. involvement is sufficient to make the C applicable?
ii. What types of govt. encouragement are sufficient for state action?
B. Court trends
a. Entwinement Testcourt may be softening the entanglement exception:29
i. state did not require or enforce particular decision BUT state was so involved in a variety
of ways that it was pervasively entwined with the association and resulted in state action.
b. Inconsistencyin any case there is an expansive Warren decision and a narrow Burger or
Rehnquist decision. Yet the earlier cases are not overruledmaking everything seem even more
arbitrary.
C. 2-Part Test
a. the deprivation must be caused by
i. the exercise of some right or privilege created by the state
ii. a rule of conduct imposed by the state, or
iii. a person for whom the state is responsible.
b. the party charged with the deprivation must be a person who may be fairly said to be a state
actor because
i. he is a state official,
ii. he has acted together with or has obtained significant aid from state officials, or
iii. his conduct is otherwise chargeable to the state.
D. JUDICIAL AND LAW ENFORCEMENT ACTIONS
a. Judges are government actors and judicial remedies are state action. The judiciary is a branch of
the government and its enforcement of the law of the state, even common law, is state action.30
i. The test is not the form in which state power has been applied but, whatever the form,
whether such power has in fact been exercised.
26AmalgamatedFoodEmployeesUnionv.LoganValleyPlaza(1968)aprivatelyownedshoppingcentercannotexcludestrikinglaborers
frompicketingastorewithinit.Centerwasopentothepublicandfunctionallywasthesameasthecommercialcenterofatown.
27LloydCorp.v.Tanner(1972)aprivatelyownedshoppingcentercouldexcludeAntiVietnamWarprotestorsbecausethelaborprotest
relatedtothefunctioningofastorewithinthecenterwhereasthespeechinthiscasewasunrelated.
28Hudgensv.NationalLaborRelationsBoard(1976)if1Aappliesthenitcannotpermitadistinctionbasedonthecontentofthespeech.SC
heldthat1Adidnotapplytoprivatelyownedshoppingcentersregardlessofthecontentofthespeech.
29BrentwoodAcademies(2001)wasanonprofitprivatecorporationorganizedtoregulateinterscholasticsportsforallpublicandprivate
schoolsintheState.Itenforcedaruleprohibitingundueinfluenceinrecruitingstudentathletes.
 ii. Criticism:
1. such language would ultimately make all private actions comply with the C.
2. anyone who believed his rights have been violated would sue in courtif court
dismisses because state law doesnt forbid violation, there is state action
sustaining the infringement of the right.
3. All private violations of rights exist because state law allows them.
iii. Note: SC has not taken it this fargenerally, if govt. itself is not discriminating and there
are just discriminatory effects then there is no EPC violation..
b. Use of the police to arrest civil rights protestors, of prosecutors to prosecute them, and of courts to
convict them is state action.
i. Criticism:
1. Mere enforcement of law should not be sufficient for state actionits only
when both parties involved seek to enforce a mutual, yet infringing, transaction.
2. Otherwise any state enforcement would be state action.
C. Prejudgment Attachment.
i. State action tends to apply when private action is aided by state officials.31
1. amount & necessity of direct involvement of a state officer is relevant to inquiry
ii. The existence of alternative methods of dispute resolution implies that a particular
method of resolving a dispute cannot be exclusive.32
d. Peremptory Challenge.
i. Def: ability of a litigant to excuse prospective jurors without showing cause.
1. state action because they are only effective when enforced by state actors
ii. Equal protection prohibits prosecutors from using peremptory challenges in a
discriminatory fashion.33
iii. Extended to: private litigants in a civil case:34
1. state/federal laws create peremptory challenges
2. govt. involvement in jury selectionfrom subpoena to supervision
E. GOVERNMENT LICENSING AND REGULATION
a. RULE: In general, government licensing or regulating is insufficient for a finding of state action,
unless there is other government encouraging or facilitating of unconstitutional conduct.
i. Symbiotic Relationship: where government and private entity benefit from each other.
1. Burton v. Wilmington Parking Authority (1961)--city owned parking structure
and leased space to private restaurant which refused to serve blacks. SC held
that private discrimination by restaurant is state action.
ii. Modern application: most likely to find state action if it can be shown that
1. the governments actions are likely to be perceived as approving the private
conduct or if there is some way in which the government has encouraged the
wrongful behavior
2. private behavior simply could not have occurred without the governments
assistance.
b. Inaction is at odds with modern test. Affirmative action by government to encourage
unconstitutional conduct is requiredmere approval or acquiescence is not state action.
i. Moose Lodge No. 107 v. Irvis (1972)state grant of a liquor license to a private club,
which restricted its membership to whites, was not sufficient government entanglement
for the C to apply.

30Shellyv.Kraemer(1948)membersofaneighborhoodcontractednottosellpropertytoblacks.SCheldthatcourtscannotenforceracially
restrictivecovenantsbecausethenthegovernment,throughitsjudicialbranch,wouldbefacilitatingdiscrimination .
31Lugarv.EdmonsoonOilCo.(1982)thereisstateactionwhenacreditorobtainedawritofprejudgmentattachmentfromacourt.SCheld
thatinvolvementofthecourtinissuingthewritandofthesheriffinenforcingitwassufficientforstateaction.
32FlaggBrothersv.Brooks(1978)aprivatecreditorselfhelprepossessedthegoodsofadebtorandthreatenedtosellthegoodsifshedidnt
paystoragefeeforthewarehouse.SCheldthiswasnotstateactionanddueprocesswasnotrequiredpriortosale.
33Batsonv.Kentucky(1986)
34Edmonsonv.LeesvilleConcreteCo.(1991)
 1. under Burton, the state could have conditioned the license just as the parking
authority could have; operation wouldnt have been as successful without liquor
license (as subsidy in private schools) and had effect of aiding in discrimination
a. BUT discrimination results from the Lodges choice. The State plays
no role in deciding who the club lets in.
c. The mere availability of a remedy or existence of governmental regulation is not indicative of
State action.
i. American Manufacturing v. Sullivan (1999)insurers could withhold workers comp.
payments for disputed medical treatments pending review process. SC held that insurers
acting pursuant to state law and regulations did not constitute state action.
1. MAIN POINT: no constitutional standard unless there is sufficiently close
nexus between state action and private action.
F. GOVERNMENT SUBSIDIES
a. Rule: generally, subsidies, no matter how large, by themselves do not constitute state action.
i. Exceptions: subsidies of segregated facilities
1. Norwood v. Harrison (1973)Mississippi subsidized school textbooks to both
public and private schools. Some private schools receiving textbooks were
segregated. SC held that state is responsible for private school discrimination
a. KEY: State violates EPC when it takes action that has the effect of
aiding or assisting private discriminations
2. No evidence in case that State required or encouraged private discrimination
the choice to discriminate was that of the private school.
b. Government funding by itself is not a basis for state actiongovt. must encourage the
unconstitutional action.
i. Rendell-Baker v. Kohn (1982)Private schools received over 90% of funds from state
government sourcespublicly funded private school. SC held there was no state action
when school fired teachers for engaging in picketing and other speech activities.
c. Neither extent of state regulation nor the size of state funding is a basis for finding state action.
i. Blum v. Yaretsky (1982)argued that govt.s funding of Medicaid patients caused their
transfer to other less-equipped facilities. State policy required review of patients to
determine level of care needed. State paid over 90 percent of expenses for patients and
its decision was responsible for transfer. SC ruled that there was no state action.

HYPOTHETICALS
Reginald Denny
o FACTS: truck driver severely beaten in race riots in LA in early 90s.
Claims: city denied him equal protection and this denial caused his injuries. City made
race-based decision to withhold police protection in that city during the early stages of
the riot.
claims: he was hurt by rioters which are private parties.
o KEY: so long as what city did is violation of equal protection clauseand withholding police
protection is a violation of EPCthen city can be held responsible, even though actual damage
was caused by private parties.
Mechanics lien
o FACTS: Mechanics retain possession of automobile unless and until bill is paid. Customer has
dispute and refuses to payAcme Mechanics refuses to surrender the car.
o KEY: This is a self-help remedy which under Flagg Bros. is constitutionalkey is that state
officials were not involved. State merely created the remedybut did not help enforce or carry it
out.
Private Hospital
o FACTS: Hospital operates under license from state and regulated by it. Heavily subsidized by
Medicare but refuse to perform abortions.
Assumption: public hospital has to allow abortions
o KEY: NO STATE ACTIONall we have is extensive subsidy and extensive regulation. That is
not enough.
 LA County Hospital
o FACTS: Hospital refuses to allow abortions to be performed (given assumption above).
o KEY: this is STATE ACTIONas long as facility is public facility of ANY KIND the
constitution applies.
San Jose gets MLB Franchise
o FACTS: The San Jose Hornets are privately ownedplay all home games at SJ stadium which is
publicly owned under a lease in which attendance determines rent.
Team Policy: forbids hiring of any female baseball players
Note: Such a rule made by the govt. would be unconstitutional
o KEY:
By modern test: city hasnt done anything to encourage discrimination
By Burton, very close analogy
private organization is playing in a public facility
symbiotic financial relationshiplease rent is a function of profits earned by the
team

EQUAL PROTECTION
APPROACH TO EQUAL PROTECTION ISSUES
 The govern

LEVELS OF SCRUTINY
A. Generally
a. Def: The test that is applied to determine if a law is constitutional.
b. Purpose: Level of scrutiny is instructions for balancing - It informs courts about how to arrange
the weights on the constitutional scale in evaluating particular laws.
c. Authority: Carolene Products footnote
i. Courts generally should presume that laws are constitutional
ii. More searching judicial inquiry is appropriate when law
1. Interferes with individual rights
2. Restricts ability of the political process to repeal undesirable litigation
 3. Discriminates against a discrete and insular minority
B. Rational Basis Test (RBT) SC rarely invalidates laws as failing RBT
a. RULE: Law will be upheld if it is rationally related to a legitimate govt. purpose/interest
i. Objective: A goal that is legitimate for government to pursue
1. Does not need to be the actual purpose of the litigation but any conceivable
legitimate purpose is sufficient.
ii. Means: Reasonable way to accomplish the objective
b. BURDEN: Challenger
c. All laws have to at least meet rational basis review
C. Intermediate Scrutiny
a. RULE: Law will be upheld if it is substantially related to an important government interest
i. Objective: Court must regard the purpose as important, more than just legit
ii. Means: Court must believe that the law is substantially related to achieving the goal, not
just a reasonably way of attaining the goal.
b. BURDEN: Government.
c. Ex. Gender Classifications, Non-Marital Children, Undocumented Children with regard to
Education, Commercial Speech, Speech in Public Forums
D. Strict Scrutiny Laws are generally declared unconst. under SS
a. RULE: Law will be upheld if it is necessary, or narrowly tailored, to achieve a compelling govt.
purpose
i. Objective: Court must regard purpose as vital
ii. Means: Necessary as a means to accomplishing the end
1. Least Restrictive Analysis - Law must be least restrictive or least
discriminatory alternative to be necessary to the end.
b. BURDEN: Government.
c. Ex. Racial Classifications, National Origin Classifications

INTRODUCTION
A. Text in the 14th Amendment: No state shall ... deny to any person within its jurisdiction the equal
protection of the laws.
B. History of EPC:
a. It was added when the 14th was adopted in 1867, but it was rarely used for 100 years
i. Reluctance of the Court
1. Slaughterhouse Cases limited its application to racial discrimination cases.
2. Court understood that all laws draw distinctions so all laws might violate Eq.
Prot.
b. Began using it more after 1950 but recently it is being used less because of statutory regs.
C. Application:
a. It was created in the 14th Amendment, so applies only to state and local govts there is no
provision that says that the fed. govt. cannot deny Eq. Prot. of the laws.
b. However, Bolling v. Sharpe made it applicable to the fed govt under the Due Process of the 5th

RELEVANT QUESTIONS IN ANALYSIS OF EPC CLAIMS:

1. What is the Classification?
2. What Level of Scrutiny applies to that Classification?
3. Does the challenged government action survive that Level of Scrutiny? (analyzing the means)

ANALYSIS
A. What is the Classification?
a. Equal protection analysis always must begin by identifying how the government is distinguishing
among people.
b. Methods of establishing a classification:
i. Facially discriminatorylaw in its very terms draws a distinction between people based
on a particular characteristic.
ii. Facially neutralbut there is a discriminatory impact to the law or discriminatory effects
from its administration.
 B. What is the appropriate Level of Scrutiny?
a. Factors in determination:
i. Immutable characteristics warrant heightened scrutiny.
1. It is unfair to penalize a person for characteristics that the person did not choose
and that the individual cannot change.
ii. Ability of group to protect itself through the political process.
1. Women traditionally have been underrepresented in political offices, though
composing half the nations population
2. Aliens do not have right to vote and political process cannot be trusted to protect
their interests.
iii. History of discrimination against the group
iv. Likelihood that the classification reflects prejudice not permissible purpose
1. Race is virtually never an acceptable justification for govt. action
2. Biological diffs between men and women may justify gender disc.
b. Factors that should be considered
i. Constitutional and Social importance of interests adversely affected
ii. Invidiousness of the basis on which the classification was drawn
c. Justices Marshall and Stevens, among others, argued for a sliding scale review rather than three
levels of scrutiny. Some argue that court already applies such a sliding scale review.
C. Does the government action meet the Level of Scrutiny?
a. Distinction
i. Under - If it does not apply to individuals who are similar to those to whom the law
applies. Ex. a law that excludes those under age 16 from having drivers licenses
ii. Over - If it applies to those who need not be included in order for the government to
achieve its purpose. Ex. govt.s decision to evacuate and intern all Japanese-Americans
on the West Cost during WWII
iii. Note: A law can be both underinclusive and overinclusive. Ex. Decision to intern
Japanese-Americans in WWII. Over few actually posed a risk. Under - non-Japanese
posed risks as well
b. SC often focuses on degree to which law is under- and/or over- inclusive
i. Underinclusive laws raise the concern that the government has enacted a law that targets
a particular politically powerless group or that exempts those with more political clout.
ii. Overinclusive laws are unfair to those who are unnecessarily regulated and they risk
burdening a politically powerless group which would have been spared if it had enough
clout to compel normal attention to the relevant costs and benefits.
c. Virtually all laws are one or the other
i. Under- or over- inclusiveness is not determinative of invalidation
d. They are used by courts in evaluating the fit between the govt.s means and its ends
i. Strict scrutiny requires relatively close fit; least restrictive alternative.
ii. Intermediate scrutiny requires less that SS but more than RBT
1. the more you allow govt. to single out small groups when purpose should be
applied to wider segment, the more it becomes politically feasible for
government to pick on particular groups of people.

RATIONAL BASIS TEST

A. Generally
a. Unless govt. action is a type that warrants application of strict or intermediate scrutiny, RBT
applies.
b. There is a strong presumption in favor of laws that are challenged under the RBT
i. Law will be upheld unless the Challenger can prove that it has no legitimate purpose or
that the means used are not a reasonable way to accomplish the goal.
ii. RBT is the most relaxed and tolerant form of judicial scrutiny
c. Varying Standard
i. Claim is that there is not a singular RBT but one that varies between complete deference
and substantial rigor.
B. 2 Component Parts
 a.
Law must serve a legitimate government interest or purpose
b.
Challenged action must be rationally related to that purpose
C. LEGITIMATE INTEREST OR PURPOSE
a. Legitimacy. Any purpose is legitimate unless it is forbidden by the Const.
i. The govt. has a legitimate purpose if it advances a traditional police purpose (safety,
public health, and public morals)
a. Legitimate: McGowan v. Maryland (1961)law requires business to be closed on
Sundayswith many exceptions. SC upheld law for benefit of a uniform day of rest
where families and communities have the opportunity to spend time together.
b. Illegitimate: Romer v. Evans (1996)SC held unconst. an initiative repealing all laws
protecting homosexuals from discrimination and prohibited future action protecting such
groups. Purpose: preserve traditional sexual mores. Held illegitimateborne out of
animosity.
ii. Some purposes are made illegitimate by provisions of the C.
1. 1Aillegitimate to infringe freedom of religion or freedom of speech
iii. A bare congressional desire to harm a politically unpopular group is illegitimate 35
1. Favoring in-state business over out-of-state businesses. 36
2. Favoring in-state residents over out-of-state residents37
3. Favoring long-term residents over new arrivals38
b. Actuality: A law will be upheld so long as the govt.s lawyer can identify some conceivable
legitimate purpose, regardless of whether that was the govt.s actual purpose.39
i. Implications:
1. A legitimate purpose can always be inferred from language of the law
a. If SC doesnt like the purpose counsel proposesthey can make up
their own possible purpose.
2. Heavy Burden: Lawyer challenging the law needs to show that every
conceivable purpose is illegitimate.
ii. Benefits of current approach/ Problems with real purpose test
1. State
a. Data Sufficiency. States do not keep history of legislation that Congress doesso actual
purpose of state legislature is often hard to find.
b. Different State Treatment. If purpose were determinativethen exactly the same law
could be constitutional in one state and not in another.
2. Federal & State
a.
Indeterminacy of Legislative Intent. Even with dataits often hard to reliably
determine legislative purpose. There rarely is just one purpose.
b. Repassage Problem. If laws real purpose was to become basis for striking it downbut
a conceivable purpose would justify itthen legislature could just repass it with the
justifiable purpose not much accomplished in this little political game.
D. RATIONAL RELATIONSHIP TO THE LEGITIMAT E PURPOSE
a. RULE: if a rational person would think that law would somehow help in accomplishing purpose
then the test is satisfied.
b. Tolerance for under and over-inclusiveness (which are fatal under SS and IS)
i. Underinclusiveness: even substantial, is allowed because the government may take one
step at a time to eradicate evils (no req. that all evils of the same genus be eradicated or
none at all)

35USDeptofAgriculturev.Moreno(1973)lawexcludedhouseholdscontaininganindividualunrelatedtoanyothermemberfromfood
stampprogramwasheldunconstitutional.Expresspurposeofdiscriminatingagainsthippiesisillegitimate.
36MetropolitanLifeInsuranceCo.v.Ward(1985)SCheldunconst.alawwhichimposedahighertaxonoutofstateinsurancecompanies
thanoninstatecompanies.
37Williamsv.Vermont(1985)SCheldunconstitutionalVTautomobiletaxexemptingcarspurchasedoutofstatebystateresidentsandnot
thosepurchasedoutofstatebypeoplemovingintoVT.
38Zobelv.Williams(1982)SCinvalidatedalawthatdistributedstatemoneytoresidentsbasedontheirlengthofresidency.
39U.S.RailroadRetirementBoardv.Fritz(1980)lawdesignedtopreventretiredrailroadworkersfromreceivingbenefitsunderbothSocial
Securitysystemandtherailroadretirementsystem.Congressmayhavethoughtthatthiswasanequitablewaytodeterminebenefits.Brennan
Dissent:shouldberationallyrelatedtoactualpurpose.
 1.
Railway Express Agency, Inc. V. NY: challenged law prohibited ads on sides of
trucks, but allowed ads for truck-owners own products. Govt said it was
rationally related to interest in traffic safety.
ii. Overinclusiveness, even significant, will be allowed by the RBT40
iii. Both: there is no requirement for perfection
1. A law can be both under- and over- inclusive and still pass the RBT41
c. There are a few rare cases that demonstrate the teeth of the RBT.
i. US Dept of Agriculture v. Moreno (in previous FN 1) & City of Cleburne v. Cleburne
1. City of Cleburne, Texas v. Cleburne Living Center, Inc.(1985)city ordinance required a special
permit for the operation of a group home for the mentally disabled. SC held that RBT was
appropriate but nevertheless declared ordinance unconstitutional holding that all the possible
justifications were inappropriate and there were under-inclusiveness problems.
ii. Standard
1. Many circuit courts rely on Cleburne as a classification of a heightened rational
basis review

Equal Protection & RACE

CONSTITUTIONAL Facially Race-Neutral Law UNCONSTITUTIONAL

failed

Plaintiffs Burden:
Disc. purpose
failed

Plaintiffs Burden:
Disc. effect

Court believes Govt: Govt. Burden: Govt fails:

Would have taken action anyway
Applies RBT Applies SS*

ANALYSIS
Given a facially race-neutral lawchallenger must show
o Discriminatory purpose AND
o Discriminatory effect
If such proof is provided, burden shifts to government to show that:
o It would have taken the same action even without discriminatory purpose
Then the court can either:
o Believe the governmentand apply the RBT
o Reject the evidenceand reject the law:
*formal application of SS is not required because persuading the Court that the purpose
behind the law is discriminatory forecloses the governments ability to show a compelling
purpose for it.
Legend:
RACE DISCRIMINATION AND SLAVERY BEFORE THE 13TH AND 14TH AMENDMENTS C[the] Constitution
A. Constitutional Provisions Protecting Slavery GGovernment
SSStrict Scrutiny
EPEqual Protection
40NewYorkTransitAuthorityv.Beazer(1979)SCupheldcityregulationpreventingthoseinmethadonemaintenanceprogramsfromholding
positionswithTransitAuthority.Eventhoughvastmajorityofthoseinprogramdidntposeariskanyalternativeruleislikelytobeless
preciseandassuredlymorecostly.
41BeazerOver:excludesmethadoneuserswhoposenorisks.Under:excludesotherdruguserswhoposegreatrisk.
 a. Prior to 13A, slavery was constitutional.
b. Prior to 14A, there was no constitutional assurance of EP, thus no
limit on race discrimination.
B. Court Decisions Protecting Slavery
a. The judiciary consistently enforced the institution of slavery by ruling in favor of slave owners
and against slaves.
b. Fugitive Slave Act of 1793: Required that escaped slaves be returned.
c. At no point prior to the civil war did the SC significantly limit slavery or even raise serious
questions about its constitutionality.
D. Landmark: Dred Scott v. Sandford (1856)
i. Missouri Compromise
1. 1819: major national controversy surrounded admission of Missouri as a state
and whether it, and other areas covered by the Louisiana Purchase would be free
or slave states.
2. Congress admitted MO as a slave state, but prohibited slavery north of MO.
II. FACTS: Dred Scott, a slave, was taken to Illinois (a free state) by
his owner. After the owner died, Scott sued in federal court claiming EXAMTIP
his residence in IL made him a free person.
III. HOLDING Rememberthatonlyintentional
discriminationisprohibitedby
1. Slaves were property, not citizens, and thus could not
theEPCformoststatutory
invoke federal court diversity jurisdiction. classifications.Threewaysin
2. SC went further and declared the MO Compromise whichintentionaldiscrimination
unconstitutional. canbeshown:
a. SC concluded that the right to property in a slave
is expressly affirmed in the C. Therefore the 1. Onthefaceofthegovern
actioninquestion(e.g.,
Compromise is unconstitutional because it prohibited
Korematsuv.UnitedStates).
a citizen from owning property of this kind. 2. Byapplication(e.g.,
iv. The ruling became the focal point of the debate over slavery and prosecutoruseshis
helped precipitate the Civil War. peremptorychallengesonly
C. Post-Civil War Amendments againstAfricanAmericans).
a. In 1865, Congress enacted the 13A, but it was obvious that this alone would not 3. Byitsdiscriminatory
secure the rights of the former slaves. motive(e.g.,changingcity
b. Southern states systematically discriminated in every imaginable way. voterstoexcludenearlyall
c. This lead to the passage of the 14A in 1868. AfricanAmericanvoters).
i. Overrules Dred Scott by declaring that all persons born or naturalized
in the United Statesare citizens of the United States and of the State wherein they reside.

STRICT SCRUTINY
A. A Racial Classification is unconstitutional unless it meets SS it must be
a. A necessary or narrowly tailored means to accomplish goals that are
b. Const. permissible, and
c. Of compelling interest
B. Recognition of SS
a. G must show an extremely compelling interest for its action and must demonstrate that the goal
cannot be achieved through any less discriminatory alternative.
b. Landmark: Korematsu v. United States (1944) upheld law as passing SS
i. FACTS: Plaintiff was a Japanese US citizen convicted of remaining in his home contrary
to the order of the US military. In defense, he claimed that the order violated EPC.
ii. HOLDING: Upheld the constitutionality of the relocation of Japanese-Americans during
WWII.
1. SC accepted the Gs claim that there was serious risk to national security (ends
analysis) from Japanese-Americans who were disloyal and that there was no
way to screen these individuals (no alternative means).
2. The Court emphasized that it was upholding the order because it was wartime
and hardships are part of war.
iii. Criticism:
 1. Government used race alone as a basis for predicting who was a threat to
national security.
a. Enormously overinclusive.
i. All Japanese-Americans were evacuated.
b. Enormously underinclusive.
i. Other races who posed a threat were not interned an
evacuated.
2. No factual evidence to support military assessment.
a. If this is held to sufficient it makes a mockery of SS.
b. However, should the courts second-guess the military during wartime?

PROVING EXISTENCE OF A RACE OR NATIONAL ORIGIN CLASSIFICATION

A. 2 Types of Racial Classifications
a. Facial Classifications when the law discriminates on its face
b. Facially neutral laws motivated by racial classifications requires showing of discriminatory
impact and discriminatory purpose

FACIAL CLASSIFICATIONS
B. Classifications on the Face of the Law
a. Race Specific Classifications that impose a burden or disadvantage on Racial Minorities
i. Laws that expressly impose a burden or disadvantage people because of their race or
national origin.
ii. Illustrative: Strauder v. West Virginia (1879)
1. HOLDING: SC declared unconstitutional a law that limited jury service to
white males over the age of 21.
iii. Most important in this category is Korematsu v. US only situation where the Court
expressly upheld racial classifications burdening minorities
b. Racial Classifications Burdening Both Whites and Minorities
i. Were initially upheld because treat blacks and whites equally, but were later found
impermissible because they are based on assumptions of the inferiority of blacks to
whites.
ii. Illustrative: Loving v. Virginia (1967)
1. HOLDING: SC declared unconstitutional a states miscegenation statute.
a. Court expressly repudiated the law because it rested solely on
distinctions drawn according to race.
iii. Other Laws Held Unconstitutional
1. Statute requiring the race of candidates be listed on election ballots (Anderson v.
Martin (1964)
2. Law adopted by initiative that prevented school boards from requiring students
to attend schools not nearest or next nearest to the students place of residence.
(WA v. Seattle School Dist. No. 1 (1982)
c. Laws Requiring Separation of the Races

3RD CATEGORY OF FACIAL CLASSIFICATIONS - LAWS REQUIRING SEPARATION OF THE RACES

A. Early Separate but Equal (1890s-1938)
a. Plessy v. Ferguson
i. SC upholds separate but equal facilities for whites and blacks (trains)
1. Specific Facts: A man only 1/8 black was considered black for the purposes of
separate but equal
2. SC argues that separate but equal does not stamp blacks as inferior, merely
separate
b. Applied to Education
i. Cumming v. Board of Education (1899)
1. Applies Plessybut goes so far as to approve operating a whites only school
without a separate black school
ii. Berea College v. Kentucky (1908)
 1. SC. affirms conviction of a private college that violated KY law about the
separation of races in education
iii. Gong Lum v. Rice
1. Chinese may be separated under Separate but Equal too
c. Softening of approach?
i. McCabe v. Atchison, T. & S.F. Ry. Co. (1914)
1. SC upholds separate but equal in an OK law, but rules that under separate but
equal doctrine there must be a black facility
B. Initial Attack on Separate but Equal (1938-1954)
a. SC begins to find it unconstitutional to deny opportunities to blacks (Applying McCabe)
i. Missouri ex. rel. Gaines v. Canada
1. SC rules that MO law that prohibits blacks from attending law school in state
instead payed for out of state law schooldenies equal protection because the
state had to provide the opportunities. In response, they created a new school for
blacks.
ii. Sweatt v. Painter (1950)
1. SC rules for the first time ordered that a white university enroll a black student
(University of Texas Law School), even though there was a black school
available but the schools were obviously not equal.
C. Landmark: Brown v. Board of Education
a. MAIN POINT: regardless of whether the schools are equal, segregation inherently stamps
blacks as inferior.
b. FACTS: SC grants review of 5 cases that challenged the doctrine of separate but equal in the
context of elementary and high school education17 states still segregated schools. Schools
challenged were vastly inferior to whites
c. HOLDING
i. Did not look at the inequalities of the schools, instead looked at the effect of segregation
on public education
ii. Declared that state mandated segregation stamps black children as inferior and impairs
their educational opportunities cites psychological literature

FACIALLY NEUTRAL LAWS WITH A DISCRIMINATORY IMPACT OR WITH DISCRIMINATORY ADMINISTRATION

A. Generally
a. RULE: There must be proof of a discriminatory purpose in order for facially neutral laws to be
treated as racial or national origin classification. In addition to discriminatory administration or
impact
b. Treatment: RBT controls unless the plaintiff (1) Proves discriminatory purpose, and (2)
Discriminatory Effects
B. Landmark Case: Washington v. Davis
a. FACTS: applicants for the D.C. police force were required to take a test and statistics revealed that
blacks failed the examination much more often than whites
b. HOLDING: Proof of discriminatory impact is insufficient by itself to show the existence of racial
classification the purpose of EPC is prevention of official conduct discriminating on race
c. Criticisms:
i. Problems of Proof: often impossible to prove that discriminatory purpose existed
1. Rarely is such motivation express
2. Benign purposes can be articulated for most laws
ii. History: racial minorities should be protected against government actions that produce
discriminatory effects whatever the purpose.
1. In a society with a long history of discrimination, there can be a presumption
that many laws with a discriminatory impact likely were motivated by a
discriminatory purpose.
iii. Effect: EP should be concerned with the results of government actions and not just their
underlying motivations
d. Support:
i. Too many laws might be Const. vulnerable if just effect
 ii. Concept of discrimination includes purpose to discriminate
iii. If effects alone trigger heightened scrutiny, the G would have to study racial effects of all
proposed laws before enacting.
C. Discriminatory Purpose
a. Knowledge of consequences is not a discriminatory purpose
i. The Legislatures awareness of a discriminatory effect does not amount to a
discriminatory purpose.
ii. Discrimination has to be a goal of the legislation Purposeful Discrimination
iii. Ex. Personnel Admin. of Mass. v. Feeny: Challenge that granted veterans employment
preferences. This discrim. against women because there are a lot more men veterans than
women.
1. They probably understood that it would hurt women, but the desired effect was
to help veterans so purpose is insufficient.
b. Evidence that is relevant to prove discrim. purpose:
1. Discrim. effect relevant, but not sufficient
2. Knowledge of consequences relevant, not sufficient
3. Direct evidence of motivation
4. Circumstantial evidence of motivation
5. Statistical evidence
a. McClesky v. Kemp (1987)Statistics demonstrated racial inequality in
the imposition of capital punishment. s charge with killing white
victims are 4.3 times as likely to receive death sentence as s charged
with killing blacks. has to prove that decision makers in his case
acted with discriminatory purpose. Challenging law authorizing capital
punishment, would require a showing that state legislature maintained
the death penalty statute because of an anticipate racially
discriminatory effect.
D. Discriminatory Effect
a. RULE: A facially neutral law will be regards as creating race or national origin classification only
if there is proof of both a discriminatory impact to the law and a discriminatory purpose behind it.
b. Illustrations
i. Palmer v. Thompson (1971)city closed down its previously segregated swimming
rather than allow it to be integrated. Cannot invalidate a law because of the bad motives
of its supporters it did not have discrim. effects once it was closed.
ii. United States v. Armstrong No evidence that whites who were using cocaine were not
prosecuted while blacks were. Suff. evidence for the Court to infer discrim. purpose, but
no proof of discrim. effects.
E. Government Actions that may be challenged
a. Successful Challenges to discriminatory administration/adoption of a race-neutral law
i. Impact of a law may be so clearly discriminatory as to allow no other explanation than
that it was adopted for impermissible purposes.
1. Show a statistical pattern that can be explained only by a discriminatory purpose
a. Yick Wo v. Hopkins (1886)city ordinance required laundries to be
located in brick or stone buildings unless a waiver was obtained from
the board of supervisors. applied for waiver and was denied
alleged that over 200 petitions by those of Chinese ancestry had been
denied compared to only one for non-Chinese individuals.
b. Gomillon v. Lightfoot (1960)challenge to govt.s redrawing of citys
boundaries to exclude blacks from participating in city elections.
Tuskegee, AL was transformed from a square to a 28-sided figure
excluding all but 4-5 of the 400 blacks in the city. SC held that it was
clearly done with a discriminatory purpose.
2. Caveat: very rare
ii. Through the history surrounding the governments action
iii. Through the legislative or administrative history of the law
b. Proof of discriminatory purpose shifts the burden to Government
 i. Burden: show that it would have taken the same action without the discriminatory
motivation - Rationale: once discriminatory purpose is shown deference to government
is no longer justified.
F. Defenses available to the G
a. Denial that race was a motivating factor
b. Even if it was a factor, it was not a but for factor
i. Mt. Healthy School Dist. v. Doyle: Teacher proved that she was fired for engaging in 1st
amendment protected activity. School says the teacher was incompetent and would have
been fired anyway if she was going to be fired anyways, then this is a better position to
be fired under.
G. Application: Peremptory Challenges
a. RULE: Race or gender based peremptory challenges deny equal protection whether exercised by
a prosecutor, a criminal defender or a civil litigant do not have to show their cause
b. Batson v. Kentucky (1986): Discriminatory use of peremptory challenges by a prosecutor denies
Eq. Prot.
i. 3 step process for determining whether there is impermissible disc.:
1. Prima facie case of discrimination by prosecutor
a. No precise standard articulated, but
i. must show that he is a member of a cognizable racial group
ii. Prosecutor used challenges to remove members of s race
2. Burden shifts to the prosecutor to offer a race neutral explanation
a. Note: any explanation can be offerednot judged at this point.
3. Trial court must decide whether race neutral explanation is persuasive or the
has established purposeful discrimination.
a. SC has held that a legitimate reasons is one that does not deny equal
protection
i. Hernandez v. New York (1991)accepted race-neutral
explanation when a prosecutor struck two prospective Latino
jurors because they spoke Spanish and therefore might not
accept the translators version of the testimony from witnesses
who were going to testify in Spanish.
ii. Purkett v. Elem (1995)held there was no discriminatory
purpose when prosecutor struck a prospective juror because of
long, unkempt hair, a mustache, and a beard.

Benign Discrimination Reverse Discrimination (those who oppose it)/Affirmative Action (those who support)
Q: To what extent can government act to benefit racial minorities?

ANALYSIS
Would program satisfy compelling state interest test?
o Remedying Past Discrimination
Allowed if
Directed at entities that are proven to have engaged in illegal discrimination, and
Is limited to providing a remedy to those who are proven victims of that
discrimination
Not allowed if
Based on a desire to remedy long history of racism through society
Uncertain when
Directed at particular entities or sectors of the economy where discrimination
has been proved to occur, but
Where the beneficiaries are not themselves proved victims of the discrimination.
o Racial Diversity: Only compelling state interest identified in Grutter
Would it satisfy the narrowly tailored means requirement?
COURT TRENDS
General Rule: When there is no majority opinion but 5 justices agree on the judgment, the narrowest
concurring opinion among the 5 that agree is the law

GENERALLY
A. Main Questions for Benign Discrimination
a. What standard of review should apply?
b. What purpose/goals are important enough to justify the classification?
c. What means should be constitutional?
B. Critique of Affirmative Action
a. Creates stigmatic harm (see Thomas, J., dissenting in Adarand)
b. Engender a notion of superiority in the race, or at least creates race-based resentment.

STRICT SCRUTINY IS APPLIED TO BENIGN DISCRIMINATION

A. Generally
a. Applies SS to benign discrimination in all state and federal classifications established by
Adarand Constructors, Inc. v. Pena
b. Purpose:
i. Assure that racial classifications are not motivated by prejudice, hostility or racial animus
(not racist)
ii. Evidentiary purpose: To flush out impermissible motivations
iii. Sets a presumption of racist motivation that must be rebutted by a showing of a
compelling goal.
1. Assure that goal is compelling enough to use this highly suspect tool
c. People felt that application of SS for benign discrimination would mean the end of itas only one
racial classification has ever passed through the test (Korematsu until Grutter)
B. History
c. Generally
i. SS developed where it was quite clear that racism was involved
ii. History suggests that race laws are racist therefore, they are highly suspect
d. Regents of the University of California v. Bakke
i. Facts: Med school set aside 16 slots in the entering class of 100 for minority students
ii. Split 4-4-1.
1. Four - Intermediate Scrutiny should apply
a. Voted to uphold medical schools diversity program
2. Four - Did not reach the constitutional question.
a. Ruled that ALL use of race was illegal
3. One - Justice Powellgranting admission to a fixed number based on race
violated the EPC, but might be beneficial to make race a factor
iii. JUDGMENT: admissions policy was illegalthough rationale was different.
e. Concurring, Powell, J.narrowest opinion, became the law
i. promoting a diverse student body is a compelling interest
i. believed it would be alright to take race into account as one factor in making admissions
policybut not as a fixed amount
C. Landmark: Richmond v. JA Croson SS should be used in evaluating AA programs
a. MAIN POINT: Absent searching inquirythere is no way to determine which classifications
are benign and which are motivated by stereotypes.
i. Classification must be subjected to SS in order to figure out its purpose.
b. FACTS: set-aside program: give 30% of construction jobs to minority owned construction
programs. Purpose was to remedy past discrimination
c. HOLDING
i. Remedying Past Discrimination:
1. A compelling objective in limited circumstances:
a. when discrimination is clearly identified
 2. Burden: Must show that particular firms were engaged in acts or patterns of
intentional discrimination.
3. Insufficient: generalize claims
a. that minorities were discriminated against
b. that minorities were discriminated against in a particular industry or
particular endeavor.
ii. Role Model Justification.
1. Affirmed that this is not a compelling interest.
2. Rationale: Did not provide for how much discrimination was too much.
a. Ex.If providing role models is a compelling interest, a school could
argue that it should hire ALL minority teachers to fulfill this purpose.
d. A year after this, in Metro Broadcasting, Inc. v. FCC they decided it should be IS; but then again
in Adarand they adopted SS for affirmative action programs.
D. Arguments Supporting Strict Scrutiny
a. Immutable Traitsrace is not a choice
i. Rebuttaltrait immutability has never itself been a centrally important reason in suspect
classification. It does not determine that a classification. There are lots of immutable
traits that are not subject to SS (e.g., age, mental health)
b. Innocent White Victimswhites who are disadvantaged by benign discrimination are innocent
victims; they were not responsible for the discrimination that is being remediedthey didnt do
wrong.
i. Rebuttalconceding that its true, but whites today have been unjustly enriched by the
pasthave a legacy of racial privilege in the US. Even though they are not responsible
for their wrongdoing they are benefiting from it.
E. Arguments Opposing Strict Scrutiny
a. Framersreconstruction Congress adopted several laws designed to help the slaves. The same
Congress which passed the 14A and EPC wouldnt condemn laws that benefited minorities.
i. Rebuttalperfectly justified under SSnecessary to deal with slavery.
b. History of Discriminationminorities have suffered from discrimination historically
i. Rebuttalmany subgroups of whites have suffered from discrimination
c. Majorities vs. MinoritiesWhites are usually democratic majorities and can always protect
themselves through the political process.
i. Rebuttalnot always true, not in all jurisdictions and with changing population it wont
always be true.
d. Failing to Actthere are risks enacted to remedy past discrimination, but there are at least equal
risks in failing to act to remedy.
e. Racial Resentmentwill still be prominentonly the other way around, held by the minority
towards the majority

COMPELLING INTERESTS THAT MAY BE SUFFICIENT TO MEET THE LEVEL OF SCRUTINY

A. **Remedying Past Discrimination.
a. Remedying someone who has been affected by past discrimination
i. Exif a person can prove that she was denied a job on account of race, a court order that
the discriminating employer hire the person is a form of aff. action.
ii. Accepted by entire court [even Scalia & Thomas]
a. Require that a proven violator of the law provide a remedy to a class of persons who were the
subject of discrimination, even though the benefits are not limited to the individuals who were the
proven victims of discrimination.
i. Accepted by majority [not Thomas and Scalia]
b. Requiring those in a field or industry where there is proved discrimination to provide a remedy,
even if it is not demonstrated that the particular entity violated the law and even though the
recipient need not be shown to have personally suffered discrimination.
i. Not expressly overruled but courts are unlikely to accept such affirmative action efforts in
the future where there is neither
1. Proof of discrimination by an entity, nor
2. Proof that the particular recipients rights were violated.
 ii. Conditional acceptance by court.
c. Remedy general societal discrimination.
i. Attempt to place minorities in the same position that they would be in if the centuries of
discrimination had not occurred.
1. Basis: legacy of racism that has pervaded all aspects of society
ii. SC has not accepted this as a sufficient justification for affirmative action.
1. insists upon some showing of prior discrimination by Govt. involved before
allowing limited use of racial classifications in order to remedy such
discrimination.
B. Enhancing Diversity
a. Purpose: to provide more diversity than would exist through a completely color-blind system
i. Usually applied in education contextsstudent admissions and hiring faculty
1. Basis: education of all is enhanced when there is a diverse student body and
faculty
2. Ideally it would happen through race-blind means, but due to extensive
discrimination it often wont be.
b. It is unclear when the SC will accept this as justification
i. Split among the circuits whether Bakke is still good law: 5th circuit says it is not a
sufficient goal, while 9th says it is SC will have to resolve this
C. Providing Minority Role Models.
a. Not Accepted by the Court.
b. Wygant v. Jackson Board of Education (1986)court declared unconstitutional a school systems
plan to lay off white teachers with more seniority instead of minority teachers with less seniority.
i. Can do what you want with hiring; but not with termination.
D. Increasing Services in Minority Communities.
a. Not Accepted by the Court.
b. Basis: minority communities generally have less access to professional services than
predominately white areas.
i. Theory: need more minority doctors to increase medical services in minority
communities, so if you let more minorities in theres an increased chance that they will go
to minority communities and provide medical services.
ii. Criticism: no proof that training more minority doctors would mean that there would be
more doctors actually practicing in minority communities.

NARROWLY TAILORED MEANS TEST

A. Techniques that may be sufficient to meet the level of scrutiny
a. Numerical Set-Asides/Quotasimpose a fixed number or percentage which must be attained, or
which cannot be exceeded, and insulate the individual from comparison with all other candidates
for the available seats.
i. Conditionally accepted by majority only if needed to remedy clearly proven past
discrimination
ii. Adarand set-asides created by federal law must meet SS
iii. US v. Paradise
b. Using Race as One Factor in Decisions to Help Minorities
i. Accepted by the majority [Grutter v. Bollinger]
c. Deviations from Seniority Systems
i. Not accepted by the court.
ii. Not a constitutionally acceptable means of achieving even the compelling purpose of
remedying prior discrimination.
B. Tests
a. May only be used if
i. Matches the past identified discrimination
1. The Right Percentage: but for the past discrimination there would have been
30% more minority constructors than there actually were
2. Burden: matching the identified discrimination requires specific evidence which
may not be available
 ii. Not over-inclusive, and
1. Groups benefited must have ALL been members of past discrimination
a. In Croson, the beneficiaries included Eskimos who were not
2. Court does not discuss under-inclusiveness because it was not an issuethere
was no claim in the case that some racial groups were not being helped by the
set-aside
iii. No reasonable race neutral alternative exists to remedy the discrimination
1. In Croson, one of the claims was that minority construction companies did not
have capital to meet city bonding reqs. City could have dealt with it race-
neutrally by capitalizing all small time construction companies
b. Higher Education: not allowed to achieve diversity through racial balancing, but numerical targets
based on critical mass are fine.

GRUTTER V. BOLLINGER
B. FACTS:
Majority Dissent
OConnor Kennedy
Ginsburg Rehnquist
Souter Thomas
Stevens Scalia
Breyer

C. HOLDING: upholds MLSs diversity program; akin to Powell rationale.

a. Compelling interest: Racial Diversity
i. Attaining the educational benefits that flow from a diverse student body (Court defers to
law school judgment that diversity is important)
1. Cross-racial understanding benefits to students - contributes to better
classroom discussions & also to preparing students to work in a diverse society.
2. Diversity in leadership benefits to society educating a diverse student body
for leadership roles in society (ie. military)
ii. Goal cannot be mere racial balancing.
b. Means
i. Critical Mass: Not Racial Balancing
1. MLS conceded that system gives weight to minority status that was related to a
numerical goal of attaining a certain number of minorities (otherwise they
couldnt defend the weight they give to race).
2. But this was necessary to achieve Critical Mass:
a. Critical mass was necessary in order to achieve the educational benefits
of diversity and make sure minorities do not feel isolated.
3. Proof: Range of admitted students is inconsistent with a quota (fluctuations in
minority student compositions over 7 years)
ii. Individualized consideration
1. Holistic Admissions: All admission files were evaluated as full files and race
was not a basis for admission or award of preference points
2. Law school considered diversity factors other than race and sometimes accepted
people on these factors with lower LSAT scores than both minorities and non-
minorities
iii. Race-neutral means
1. No other way to achieve racial diversity and still maintain an elite LS.
iv. Duration limitation
1. Suggests that it expects racial preferencing will not be necessary in 25 years
D. ANALYSIS
a. Compelling Goal:
i. Racial diversity is only one type of several types of diversity that the school was
pursuing, but compelling interest analysis is focused on racial diversity.
 1. Majority
a. Compelling interest discussion relates only to race;
b. Means discussion goes beyond race.
b. Past Discrimination
i. Justifies giving preferential treatment to minorities because theyve been subject to
discrimination in the past
ii. Contradicts Adarand and Crosonwhich require specific showing of discrimination by
the
c. Beyond Race As a Factor
i. C does not require a diversity program to be broader than a racial diversity program
students who live abroad have no right to law school education
d. No Holistic Review
i. Set-aside particular slots for people who fit with characteristics (e.g., lived abroad,
overcome adversity) and let people in who had the highest LSAT scores and GPAs in that
category.
E. this would be constitution
F.
G. DISSENT: Majority weakened SS.
a. Thomas, J., dissenting
i. Compelling Goals:
1. neither of these goals alone or together amount to a compelling state interest
a. achieve some incremental educational benefits
b. while maintaining an elite law school
ii. Means: Must be least restrictive
1. Alternative reasonable, race-neutral means: diversity goal could have been
accomplished by giving less weight to LSAT; lottery systems.
a. Majority says this would sacrifice the law schools elite
b. Thomas says that elite status doesnt matter to C.
2. Govt. should put up with high costs and considerable goal frustration but thats
not being done here
iii. In sum: Law school goals are not compellingly important and there are reasonable race-
neutral ways to accomplish these goals
1. Concludes: it must be that since it is benign discrimination the majority is not
actually applying SS.
H. DISSENT: Rehnquist
a. No meaningful distinction between Gratz and Grutter
b. Critical mass is just a cover for racial quotanot really the purpose of MIs goals
i. Such a large difference between number of students admitted between different groups
that the claim that they were trying to provide supportive environments were not credible.
1. Some years 13 Native Americans
2. Never fewer than 90 African Americans
c. Explanations for this:
i. Fewer qualified applicantsMLS was trying to maintain elite status.
d. If you can only achieve the benefits of diversity by having critical mass and there arent enough
Native American applicants applying to achieve critical mass then their admission is irrelevant.
i. MLS Counter: argument was that they should be allowed to have numerical goals in
order to achieve critical massbecause their critical mass was tied to their compelling
interest.
e. Credibility issue: how can you take into account that there are only 13 Native Americans and
explain to the court that this relates to your goal of critical mass.
f. In other words, can you justify that the critical mass need for Native Americans is lower than that
for African-Americans?
1. al

GRATZ V. BOLLINGER
A. MAIN POINT: Race cannot be used in a mechanical manner in the admissions process.
 B. FACTS: Michigans Undergraduate Admissions program awarded a fixed number of preference points for
minority applicants was unconstitutional quota
a. Same number was awarded regardless of what race was
b. Award of preferential points had the effect of admitting virtually all qualified minority students.

Gender Classifications
EMERGENCE OF INTERMEDIATE SCRUTINY
A. Until 1971, SC rejected all claims that laws against women violated the Eq Prot. clause
B. Landmark: Reed v. Reed (1971) Idaho law specified the hierarchy of persons to be appointed as
administrators of an estate when a person died intestate. Similarly situated men placed before women.
a. SC invalidates a gender classification for the first time
b. Uses RBT
i. SC rules that gender did not have a rational relationship to the ability to administer the
estate gender is irrelevant and the law is unconst. under Eq Prot.
C. From RBT to ? majority could not agree on a standard
a. Frontiero v. Richardson: Federal law allows a man to automatically claim his wife as a dependant
to receive increased benefits, women must show evidence of support to receive similar benefits
i. Plurality4 Justices say that gender is an inherently suspect classification and must be
subjected to strict scrutiny
D. Adoption of Intermediate Scrutiny
a. Craig v. Boren: Court struck down a law selling beer to men, but not to women law based on a
stereotype that views women as innately virtuous
i. HOLDING: though traffic safety was an important govt. interest gender
discrimination was not substantially related to that interest
ii. A 2% difference between the genders in the rates for drunk driving, cannot justify using a
gender line as a classifying device
E. United States v. Virginia (VMI) Pinnacle of Intermediate Scrutiny
a. Exclusion of women ruled unconstitutional b/c justification rested solely on gender stereotypes
i. Justification for gender discrimination must be based on persuasive justification rather
than overbroad generalizations about women
ii. Still, court has subsequently upheld gender classifications w/o mentioning a level of
scrutiny sometimes
1. Rostker v. Goldberg and Michael M. v. Superior Court
b. Remedial issues although they provided another facility for women, it was not adequate and
comparable to the mens facility (not as rigorous) but, statutes based on bio diffs may be ok

APPROPRIATE LEVEL OF SCRUTINY

A. Argument for using SS for gender classifications:
a. Similarities between Gender and Race
i. There is a long history of gender discrimination
1. Therefore, gender classifications [like race] are usually based on stereotypes
rather than important government interests
ii. Gender is an immutable characteristic
iii. Gender is an immediately visible characteristic
1. Women are tend to be sufficiently underrepresented in the political process
 B. Argument for using Intermediate Scrutiny
a. Gender is different than race
i. Historical
1. Framers of the Fourteenth Amdt. only meant to outlaw race discrimination
ii. Biological Differences
1. Obvious differences may justify differences in the law
iii. Women are a political majority
1. Women are not isolated from men and should not be treated as a discrete and
insular minority
2. Women have the resources to protect themselves if they want to
iv. More likely to allow Affirmative Action programs

PROVING THE EXISTENCE OF A GENDER CLASSIFICATION

A. 2 ways of proving a gender classification
a. Gender classification existing on the face of the law
i. Geduldig v. Aiello - Ca. disability law provided payments for disabilities lasting more
than 8 days and less than 26 weeks, but excluded any benefits for disabilities caused by
pregnancy
1. Exclusion of pregnancy is not a gender classification, but based (facially) on
pregnancy not gender
2. Therefore, RBT test should be used rather than intermediate scrutiny
b. Facially gender neutral law
i. Proving gender classification requires proving both discriminatory impact as well as
purpose, if not use RBT
1. Personnel Administrator of Mass. v. Feeney - State law gives preference in
hiring to vets causes women to be discriminated against
2. SC rejects claim of gender discrimination Must show intent as well as impact
B. WhenisitDiscrimination?
b. Geduldig v. Aiello - SC says no discrimination b/c there were two classes involved (potential
repaints): 1) pregnant women and 2) non-pregnant persons.
i. Since there were women in both groups the law could not be considered discriminating
against women.
c. Criticism [Chem]: Allows gender discrimination since entire burden from the exclusion of
pregnancy is borne by women.
i. Congress agrees Overrules SC w/ Pregnancy Discrimination Act

GENDER CLASSIFICATIONS BENEFITING WOMEN

A. Gender classifications based on stereotypes are usually not allowed even when they are meant to benefit
women
a. Laws invalidated when based on the assumption that women are economically dependant on their
husbands - Orr v. Orr: Ct invalidates Ala. law that allowed women to collect alimony after a
divorce but not men
b. Laws invalidated when based on the assumptions about the role of women in the family
i. Establishing Paternity: SC shifts its stance when the law can be argued as distinguishing
between fathers, rather than between mothers and fathers
c. Laws invalidated when they are based on stereotyping the occupations meant for women -
Mississippi v. Hogan: Nursing school must allow men since its policy was based on a sterotype
i. Distinguished from laws based on gender classification that are based on remedying past
discrimination
d. Laws benefiting women upheld despite being based on stereotypes
i. Michael M. v. Superior Court - CA. statutory rape law that defined crime as one
committed by a man, not by a women
1. HOLDING: Ignores stereotype argument
2. DISSENT: Law based on a stereotype that young women are incapable of
consenting to sex
a. Gender based law is not substantially related to a government interest
 ii. Rostker v. Goldberg - SC upholds male-only draft legislation
1. SC does not really consider whether or not law based on the stereotype of
women being weak or actual difference
B. Gender classifications benefiting women as a remedy are usually allowed
a. SC has indicated that gender classifications benefiting women will be allowed when they are
designed to remedy past discrimination or differences in opportunity
b. But law cannot be based on a stereotype but rather the permissible goal of redressing our
societys long-standing disparate treatment of women
C. Gender classifications benefiting women because of biological differences between men and women
a. SC has allowed gender classifications when a law distinguishes between the difficulty in
determining the identity of a father and mother
i. Also Nguyen v. INS INS rules favoring mothers over fathers for becoming citizens
1. Reasons for upholding gender classification:
a. Government interest in being sure there is a biological relationship
between parent and child
i. Greater certainty as to the identity of the mother
b. Government interest in ensuring that the parent and child have some
demonstrated opportunity to develop a relationship
i. Greater opportunities that mothers have in establishing a
relationship with their children
b. Questions to ask when purporting to rely on biological differences
i. Are the differences real or social constructs?
ii. Do they matter (related to govt. interest)?

Alienage Classifications (one of only two other than race and gender that the Court holds requires more than
RB)

OVERVIEW
A. Discrimination against non-citizens lawfully in the United States.
a. NOTE: this is distinguished from national origin classifications, which discriminate against an
individual because of the country that a person, or his or her ancestors, came from.
B. Protection Under Equal Protection
a. EPC explicitly says no person shall be denied equal protection, not citizen.
b. Equal protection is applied to the federal government through the due process clause of the 5th
Amendment, which also speaks of persons.
C. Relationship to Preemption Analysis (Preemption by federal statute, or unconst. invasion of const.
exclusive federal power)
a. In recent years, analysis has shifted more towards federalism principles, rather than equal
protection.
b. Often state and local laws that discriminate against aliens can be challenged on preemption
grounds as well.
c. E.g., federal immigration laws: Occupy field and preempts state and local laws.
i. Toll v. Moreno: Court used preemption analysis to invalidate a state law denying resident
aliens in-state tuition at the University of Maryland.

GENERAL RULE: STRICT SCRUTINY

A. Clearly established that strict scrutiny is the appropriate test for discrimination against aliens
a. Discrete and insular minority.
b. Cannot vote and thus cannot protect themselves through the political process.
c. Long history of discrimination against aliens.
B. Exception: Alienage Classifications Related to Self-Government and Democratic Process
a. Rational basis review is used for alienage classifications related to self-government and the
democratic process.
b. Police Officers
i. In Foley v. Connelie, SC used the rational basis test to uphold a state law requiring
citizenship to be a police officer.
 1. This is justified because they are not part of the political community
c.Elementary/Secondary School Teachers
i. SC in Ambach v. Norwick upheld a state law requiring citizenship for a person to be an
elementary/secondary schoolteacher.
d. Notary Republics (Strict Scrutiny)
i. SC in Bernal v. Fainter refused to apply the exception to a state law that created a
citizenship requirement to be a notary requirement.
1. Notary republics do not perform responsibilities that go to the heart of
representative government.
2. Court emphasized narrow nature of the exception that only applies to those who
participate directly in the formulation, execution, or review of broad public
policy.
C. None of this goes to protect illegal aliens

CONGRESSIONALLY APPROVED DISCRIMINATION: UNDOCUMENTED ALIENS AND EQUAL PROTECTION

A. Plyler v. Doe (1982)
a. Supreme Court declared unconstitutional a Texas law that provided a free public education for
children of citizens and of documented aliens, but required that undocumented aliens pay for
schooling.
b. Court appeared to use intermediate scrutiny.
i. Noted that undocumented aliens could not be treated as a suspect class because their
presence in this country is in violation of federal law is not a constitutional irrelevancy.
Nor is education a fundamental right.
c. Rationale
i. Blamelessness of the children.
ii. Importance of education and the unfairness of leaving children without this crucial
service.
B. Future of Plyler v. Doe
a. Has never been overruled.
b. ExProposition 187.
i. California law that denies all government services to undocumented aliens.
ii. Clearly unconstitutional under Plyler at least to education and probably to the other
services as well.

Other Classifications (Race, ethnicity, gender, alienage, and birth/legitimacy are the only types of
discrimination that get heightened review all others get RB)

DISCRIMINATION AGAINST NON-MARITAL CHILDREN

A. Principles
a. Laws that provide a benefit to all marital children, but not to non-marital children are always
declared unconstitutional
b. Laws that provide a benefit to some non-marital children but not others are subject to intermediate
scrutiny
c. Laws that create SOLs for the time for evaluating paternity must provide
i. Enough time for those with and interest in the child to present his rights and
ii. Must be substantially related to the states interest in preventing fraudulent claims
B. Laws That Distinguish Among NMCs
a. Statutes that distinguish among NMCs, rather than between legit kids and NMCs are subjected to
intermediate scrutiny and evaluated on a case-by-case basis
i. SC must determine
1. Whether there is an important interest served and
2. Whether the law is substantially related to that goal
C. SOL For Establishing Paternity
a. SC has been consistently hostile [always invalidates] to SOL for establishing paternity
b. Two step process for evaluating limitation periods
 i. The period for asserting a claim must be long enough for those with an interest to assert
claims for the children on their behalf
ii. Time limit must be substantially related to the states interest in avoiding the litigation of
stale or fraudulent claims
c. RULE: No time limitas long as father is alive.
D. Intermediate Scrutiny
a. SC expressly states that intermediate scrutiny is used for discriminatory classifications based on
illegitimacy
b. Justifications
i. Long history of discrimination
ii. Immutable characteristicnothing a child can do about being a NMC
c. Why not strict scrutinydifferent from race or national origin
i. No obvious Hi Im a NMC badgenone w/ gender
ii. Discrimination against NMCs has never been as expansive
d. Trimble v. GordonNMCs should be able to inherit from fathers who dies sans will [intestate]

AGE CLASSIFICATIONS
A. Rational Basis Test
a. SC uses RBT with age classification controversy
i. No such history of discrimination,
ii. Stereotypes may be a little indicative of true abilities
iii. All of us will be old
b. Argument for SS:
i. History of discrimination against elderly
ii. A persons age is immutable
iii. Characteristic is visible

DISABILITY CLASSIFICATION
A. Rational Basis Test
a. City of Cleburne, Texas v. Cleburne Living Center, Inc.
i. SC used the RBT to declare unconstitutional a city ordinance that required a special
permit for the operation of a group home for the mentally disabled More rigorous
review than usually using RBT
1. No legitimate purpose
b. Heller v. Doe
i. Retarded individuals treated more severely than those mentally ill
1. RBT test used to uphold distinction
ii. Americans with Disabilities Act [federal statute] prohibits this distinction

WEALTH DISCRIMINATION
A. Rational Basis Test
a. Arguments against heightened scrutiny
i. Being poor is not an immutable characteristic (could be argued)
ii. Discrimination against the poor is usually not intentionalrather it is an effect of the law
b. Arguments for heightened scrutiny for laws that discriminate against the poor
i. Poor lack political power (important)
ii. Long history of discrimination against the poor
iii. There should be a right for minimum entitlements included in the constitution food,
shelter medical care
c. NOTE: SC has subsequently held that only RATIONAL BASIS REVIEW SHOULD BE USED
with regard to classifications based on wealth42--Ct. differentiates between the poor and racial
minorities

42Dandridgev.Williams(1970)FirstcasewherethecourtusesRBTtowealthclassification.RBTusedbecausethelawrelatedto
economicsandsocialwelfare
 i. San Antonio School District v. Rodriguez (1973)Texas Law makes poor people pay
higher taxes for schools
1. SC expressly states that poverty is not a suspect classification
2. 5 to 4 decision rejects heightened scrutiny and the argument that the law should
be considered discriminating against the poor as a group

SEXUAL ORIENTATION DISCRIMINATION

A. Appropriate Test Has Not Been Determined
a. Bowers v. HardwickSC rules that the Constitution does not protect the right to engage in
homosexual behavior
ii. Ninth Circuit has said that strict scrutiny should be used for discrimination based on
sexual orientation
d. Romer v. Evans (1996)still the SC used the RBT to invalidate a Colorado law that encouraged
discriminating against gays
i. Apparent purpose of the law was animosity against the group affected
ii. First time the SC has invalidated discrimination based on sexual orientation
1. Appeared to use an RBT with teeth
Congressional Enforcement Power to Enforce the Reconstruction Amendments

CONGRESSSPOWERSUNDERTHEPOSTCIVILWARAMENDMENTS
A. AftertheCivilWar,3amendmentswereaddedtotheConst.givingCongresspowertoenactcivilrights
legislation
a. 13thAmendment:Prohibitsslaveryandinvoluntaryservitudeexceptaspunishmentforcrimeand
givesCongresspowertoenforceAbyappropriatelegislation
b. 14thAmendment:AllpersonsbornornaturalizedinUSarecitizens,nostatecanabridgePorIs
ofsuchcitizensordepriveanypersonsoflifelibertyorpropertywithoutDPoflawordenyany
personofEqProtofthelaws
i. Section5givesCongresspowertoenforceprovisionsofarticle
c. 15thAmendment:Statescantinfringe/denyrighttovoteonaccountofrace,color,orprevious
conditionofservitude
i. Section2givesCongresspowertoenforce

WHOMMAYCONGRESSREGULATEUNDERPOSTCIVILWARAMENDMENTSFederalandStategovernment
action,notPrivateConduct
A. CivilRightsCases(1883)
a. HeldthatCongress,pursuantto2of13Aand5of14Amayregulateonlystateandlocalgovt
actions,notprivateconduct
b. CivilRightsActof1875prohibitedprivatedisc.byhotels,restaurants,trans.,andotherpublic
accommodations
i. HeldActunconst.:
1. Congresscanusepowerunder13Atoensureendofslaverybutnottoeliminate
disc.
2. Slaveryisathingofthepastandwedontneedcivilrightslitigation
3. Congresslackedauthoritytoenactlawunder14Anoprivatebehavior
a. USv.Guest:Cmayoutlawprivatediscriminationpursuantto5of
14A(involvedfederallawthatmadeitacrimefor2+peopletogoin
disguiseonthehighway,oranotherspremisesw/intentto
prevent/hinderfreeexercise/enjoymentofanyrightorprivilege)
i. RecentlyoverruledbyMorrison,andheldCcannotregulate
privatebehaviorunder5
b. LandmarkCase:USv.Morrison
i. IssueofwhethercivildamagesprovisionofViolenceAgainst
WomenActwasconst.?
 ii. Holding:Under5,Congressmayregulateonlystateand
localgovts,notprivateconductbythetermsof14th
iii. Criticism:undulynarrowinterp.Ofconst.provisionintended
tohavebroaderscope
4. Cmayprohibitprivateracialdisc.under2of13A
a. Jonesv.AlfredH.MayerCo:Ccouldprohibitprivatedisc.in
selling/leasingproperty.Chasbroadlegislativepowerunder13Ato
determinethebadgesandincidentsofslavery
b. Runyonv.McCray:Courtheldthat1981prohibitingdisc.inprivate
contractingwaswithinscopeofCspowerunder2of13A

WHATISTHESCOPEOFCSPOWER
A. NationalistPerspectivebroadChasauthoritytointerpret5under14Atoexpandscopeofrights
a. LandmarkCase:Katzenbachv.MorganandMorgan:VotingRightsActsectionprovidesthatno
personwhocompleted6thgradeinPuertoRicoshallbedeniedtherighttovotebecauseoffailing
anEnglishliteracyreq.
i. IssuewaswhethertheActwasconst.exerciseofCspowerunder14A
ii. HOLDING:wasproperexercise
1. Remedyfordiscriminationagainstthem
2. LiteracytestdeniedEqProt
iii. EstablishedthatCcoulduse5powertoindependentlydeterminemeaningof14A
B. FederalistPerspectivenarrowConlyhasauthoritytoprevent/provideremediesforviolationsofSC
rightscannotcreateorexpandscopeofrights
a. LandmarkCase:CityofBoernev.Flores:CenactedReligiousFreedomRestorationAct
prohibitinggovtfromsubstantiallyburdeningpersonsexerciseofreligionevenifburdenresults
fromruleofgeneralapplicabilityunlessgovtcansatisfySS
b. HOLDING:Cspowermustbelimitedtolawsthatpreventorremedyviolationsofrights
recognizedbySC,andthesemustbenarrowlytailoredproportionateandcongruenttothe
const.violation
i. RFRAwasunconst.sinceitimpermissiblyexpandedscopeofrightsandnot
proportionateorcongruentasapreventativeorremedialmeasure
C. CasessinceCityofBoerne(3cases)reaffirmedFederalistPerspective
a. InfavorofBoerne:
i. ProtectingSCsroleasauthoritativeinterpreterofConst
ii. Consistentwiththebasicconst.premiseofafedgovtwithlimitedlegislativeauthority
andmostgovernancelefttothestates.
b. AgainstBoerne:
i. DeniesCongressthepowertoexpandthescopeofrights

FUNDAMENTAL RIGHTS

Economic Substantive Due Process

INTRODUCTION
A. The word liberty in the DPC protects rights, especially freedom of K.
a. States can infringe liberty only for a valid police power purpose.
b. State regulation must have a direct relation to the police power purpose.
B. Both 5A and 14A say that a person cannot be deprived of life, liberty or without DP of law. Two possible
ways of interpreting this:
a. Procedural Due Process
i. Refers to procedures that must be followed before G takes away life, liberty or property.
b. Substantive Due Process
i. Refers to the adequacy of the Gs justification.
 1. G cant infringe these rights without substantial justification.
2. Look to justification to determine whether there has been depravation without
DP.
ii. Has been used in 2 ways in American Const. history
1. Protection of economic rights liberty of K (Lochner era)
2. Protection of the right to privacy

ECONOMIC SUBSTANTIVE DUE PROCESS DURING THE 19TH CENTURY

A. Early Antecedents: Using Natural Law to Protect Property
a. In several early cases, the SC suggested that the C protected natural rights to own and keep
property.
B. Illustrative Case: Fletcher v. Peck (1810)
i. HOLDING: Court declared GA law unconstitutional that rescinded a land grant that was
given to people as the result of legislative bribes.
1. Deemed to unconstitutionally interfere with vested rights protected both by the
text of the C and natural law.
B. Initial Rejection of Economic Substantive Due Process (SDP)
a. Early cases held that DP was met so long as the Gs procedures are in accord with the law.
b. Court expressly rejected a SDP claim in the Slaughter-House Cases (1873)
i. Facts: Challenge to a LA law that granted a private company a 25 year monopoly in the
livestock landing and slaughterhouse business Plaintiffs (butchers) unsuccessfully
contended that the grant of monopoly denied their right to practice their trade.
ii. In dissent, Justice Bradley interpreted the words liberty and property in the DPC as a
right to practice a trade or profession and believed arbitrary interference with these
violated the 14A was soon to become the majority view.
C. The Court Suggestion of Economic Substantive Due Process
a. Beginning in 1870s, G regulation significantly increased as industrialization changed the nature of
the economy.
B. Over the next two decades, the SC continued to reject DP challenges to G regulations; however, it
indicated in dicta that it would invalidate such laws if they interfered with natural principles of
justice.
C. Landmark Case: Allgeyer v. Louisiana (1897)
i. HOLDING: declared unconstitutional a state law that prohibited payments on marine
insurance policies that were not licensed or approved to do business in the state.
1. Court found that the LA law interfered with freedom of K and thus violated the
DPC of 14A.
ii. The Court moved from speaking only in dicta of DP as a limit on economic regulations to
invalidating a state law based on it.

ECONOMIC SUBSTANTIVE DUE PROCESS DURING THE LOCHNER ERA

A. Landmark Case: Lochner v. New York (1905)
A. FACTS: challenge to a NY law that limited the number of hours that bakers could work to
60/week.
b. HOLDING: declared unconstitutional because it interfered with freedom of K and did not serve a
valid police purpose.
i. The SC emphasized that limiting the hours of bakers had no relationship to public health.
1. The law exceeded the states police powers.
ii. The SC articulated three major principles that were followed until 1937.
C. THREE MAJOR PRINCIPLES
i. Freedom of K is a basic right protected as liberty and property rights under the DPC of
14A.
ii. G could interfere with freedom of K only to serve a valid police purpose - That is to
protect the public safety, public health, or public morals
iii. It was the judicial role to carefully scrutinize legislation interfering with freedom of K to
make sure that it served a police purpose.
D. 5-4 DECISION
 i. DISSENT: [Harlan, J]
1. Emphasized the need for judicial deference to legislative choices.
a. The legislation was a reasonable way to protect the health of the bakers.
ii. DISSENT: [Holmes, O]
1. Rejected the majoritys premise that the C should be used to limit government
regulation and protect a laissez-faire economy.
B. CASES FOLLOWING LOCHNER
A. Classic SDP: the DPC was not used to ensure that the G followed proper procedures, but to
ensure that the laws served an adequate purpose.
i. This is the first time federal courts regularly held state laws unconstitutional.
1. During 40-year period, over 200 state laws were held unconstitutional.
B. Caveat: it is difficult to reconcile some of the decisions from this era.
C. Law Protecting Unionizing
I. Illustrative Case: Coppage v. Kansas (1915)
1. HOLDING: declared unconstitutional federal and state laws that prohibited
employers from requiring employees not to join a union.
a. Impermissibly infringed on the freedom of K.
b. Not a legitimate exercise of police power for the G to attempt to
equalize bargaining power between employer and employee.
2. Note on Contracts Clause (Article I)
a. No State shallpass anylaw impairing the Obligation of Contracts
i. This only prevents states from interfering with existing Ks, not
formation of future Ks, when theres no expectancy or reliance
interest.
D. Maximum Hours Laws
I. Illustrative Case: Muller v. Oregon (1908)
1. HOLDING: upheld a maximum hours law for women.
a. Court said that regulating the hours of women was justified because of
womens physical structure and the performance of maternal
functions.
E. Minimum Wage Laws
I. Illustrative Case: Adkins v. Childrens Hospital (1923)
1. HOLDING: declared unconstitutional a law that set a minimum wage for
women.
a. Distinguished from the case above because it interfered with freedom
of K and did not serve any valid police purpose.
b. Rejected the argument that this decision would force women to earn
money in an immoral manner - Stressed growing equality of women.
C. MUST HAVE DIRECT RELATION TO POLICE POWER
A. Mere assertion does not render the law valid; must have more direct regulation as means to an end.
I. Rational relationship is not enough.
ii. Developed Narrowly Tailored Means test.
1. To ensure that the laws purpose was the one aimed for.
a. Concern with statutes trying to distribute wealth.
i. Any interference with efficient market is redistribution.
ii. The demise of Lochner liberated states to interfere with
efficient markets.
D. CRITICISM OF LOCHNER ERA DECISIONS
a. Court Formulated Undesirable Doctrines
i. Court wrong in protecting freedom of K as a fundamental right.
II. Erred in concluding that only G could interfere with this right to enhance public health,
public safety, or public morals.
b. Inconsistent Application
I. E.g., allowing maximum hours laws for women, but not minimum wage laws.
c. Judicial Activism
 i. Unelected judges were unduly substituting their values for those of popularly elected
legislatures to protect rights that were not expressly stated in the C.

ECONOMIC SUBSTANTIVE DUE PROCESS SINCE 1937

A. PRESSURES FOR CHANGE
a. Economic Pressures
i. Depression created the widespread perception that G economic regulation was essential.
ii. Employees couldnt bargain for higher wages.
b. Intellectual Pressures
i. Lochnerism rested on the assumption that freedom of K and related property rights were
part of the natural liberties possessed by individuals.
c. Political Pressures
i. FDRs proposed court-packing plan of appointing one additional Justice for every
Justice on the SC who was over age 70, up to a maximum of 15.
B. THE END OF LOCHNERISM
a. Two decisions in 1937 signaled the end of the Lochner era
i. Landmark Case: West Coast Hotel v. Parrish (1937)
1. HOLDING: Court upheld a state law that required minimum wage for women
employees and expressly overruled Adkins.
a. Chief Justice Hughes made it clear that the Court was abandoning the
principles set forth in Lochner.
i. Constitution speaks of liberty, not freedom of K (freedom of K
no longer a fundamental right).
ii. Regulation which is reasonable in relation to its subject and is
adopted in the interests of the community is DP (judiciary
defer to legislative choices so long as they were reasonable).
b. Emphatic that the Gs duties were not limited to advancing the public
safety, public health, or public morals.
ii. Landmark Case: United States v. Carolene Products Co. (1937)
1. HOLDING: Court upheld the Filled Milk Act of 1923 that prohibited filled
milk. (milk + vegetable oil)
a. Economic regulations should be upheld so long as they are supported
by a conceivable rational basis, even if it can be proved that this was
not the legislatures actual intent.
2. Famous Footnote 4: Articulates Double Standard of Review
a. Generally, Court would defer to G and uphold laws so long as they
were reasonable (RBT).
b. However, this deference would not extend to laws interfering with
fundamental rights or discriminating against discrete and insular
minorities (heightened scrutiny).
b. Implications
i. Court no longer protected freedom of K.
ii. Court can further any purpose so long as it is not invalid.
iii. States no longer limited to valid police power purposes.
iv. No more direct relationship requirement (or strict ends/means relationship test).
v. If you want to challenge the const. of a law, you can only rely on
1. Impairment of the obligation of K clause, or
2. Takings Clause
C. PROTECTION OF ECONOMIC RIGHTS SINCE 1937
a. Not one state or federal economic regulation has been found unconstitutional as infringing liberty
of K as protected by 5A and 14A.
b. The Court has made it clear that economic regulations will be subject to the RBT.
i. Purpose can be any goal not prohibited by the C and need not be the legislatures actual
objective.
ii. No narrowly tailored requirement.
c. Reality is that virtually any law can meet this challenge.
 i. Illustrative Case: Williamson v. Lee Optical (1955)
1. HOLDING: upheld an Oklahoma law that prohibited an optician to fit or
duplicate lenses without a prescription from an optometrist or an
ophthalmologist.
a. Stressed the need for judicial deference to legislative choices.
b. Hypothesized possible legitimate purposes for the law.
i. Shows that as long as the court can conceive some legitimate
purpose for the law, and so long as it is reasonable, it will be
upheld.
ii. Illustrative Case: Ferguson v. Skrupa (1963)
1. HOLDING: upheld a Kansas law that made it unlawful for a person to engage
in the business of debt adjusting, except incident to the practice of law.
a. Effect was to put out of business debt adjusters who were not lawyers.
b. Shows that the Court no longer interpreted the DPC to protect a right to
practice a trade or profession or even freedom of K.
d. Exception: Excessive Punitive Damages Restriction (Handout)
i. Grossly excessive punitive damage awards violate the DPC.
1. In the past, they were based on evidence of the s past behavior in other states.
a. Criticism:
i. Extra-Territorial Regulation: punishing behavior in one state
that was lawful in another.
ii. Multiple Punishment for the same conduct in every state:
Every state could now punish defendant.
2. In response, SC set three standards for determining when punitive damages are
excessive.
ii. THREE STANDARDS
1. Degree of Reprehensibility of the Conduct
a. Cannot be punished based on conduct in other states (control extra-
territorial regulation).
i. Evidence of out-of-state behavior admitted only to reflect on
in-state behavior.
b. Conduct causing only economic injury is less reprehensible than
conduct causing physical injury.
2. Ratio between Actual and Punitive Damages
a. The larger the ratio, the more likely the award will be subject to
invalidation.
b. State Farm v. Campbell: refuses to impose a bright line ratio rule, but
few awards exceeding a single digit ratio will satisfy awarding damages
3. Disparity between Punitive Award and Authorized Civil Penalties
authorized under state law for the same conduct
a. Always works against punitive damage awards.
iii. DISSENT: [Consistently Scalia, A & Thomas, C; Simon, L agrees]
1. Nothing in C makes excessive punitive damages unconstitutional.
a. States should set their own limits.
2. Mushy standards. There will be no uniformity because no one will understand
how to apply them (except for the ratio)

The Contracts Clause

INTRODUCTION
A. ARTICLE I, SECTION 10: No state shallpass anylaw impairing the Obligation of Contracts.
a. Firmly established that the provision only applies if a state or local law interferes with existing Ks.
b. Does not apply to the federal government.
i. These challenges must be brought under the DPC where they will receive the RBT.
c. Does not apply to the regulation of future K terms
 B. HISTORICAL BACKGROUND
A. Seems to have been motivated by a desire to prevent states from adopting laws to help debtors at
the expense of creditors.
i. FRAMERS: were concerned that in times of recession or depression, state legislatures
might adopt laws to protect debtors who were unable to pay what was owed.

THE CONTRACTS CLAUSE SINCE 1934

A. Landmark Case: Home Building & Loan Association v. Blaisdell
A. FACTS: MN law created in response to the depression that prevented mortgage holders from
foreclosing on mortgages for a 2 year period
i. This was exactly the kind of debtor relief legislation the Contracts Clause (KC) was
meant to forbid.
b. HOLDING: the Court upheld the law and dismissed the framers intent as irrelevant.
i. The decision contains as strong a statement as the SC has ever handed down that framers
intent is not controlling in a contemporary constitutional adjudication.
1. The law was upheld because it was an emergency measure of limited duration
to protect the vital interests of the community.
c. Extremely important in limiting the scope of the KC.
i. It reaffirms that the G can interfere with existing contracts if it has a valid police purpose,
and it describes the police power broadly enough to include debtor relief as a valid G
objective.
ii. Since Blaisdell, the SC has found only two laws to violate the KC.
B. Modern Test for the K Clause
a. Is the challenged law a substantial impairment / a serious disruption of contractual expectations?
i. If no, no impairment.
ii. If yes, does the law impair private or govt Ks?
1. If private, const. so long as it is a reas way of accomplishing a legit interest ie.
something like RB test
2. If public, unconst. unless reas and necessary to serve on important public
purpose ie. intermediate or SS
C. GOVERNMENT INTERFERENCE WITH PRIVATE CONTRACTS
a. Framework for Analysis
I. Does the law substantially impair contractual obligation?
1. Trivial impairment is not covered by the clause.
II. Does the law serve a legitimate public purpose?
1. Any purpose not invalidated by the C is legitimate.
iii. Is the law a reasonable way of serving that purpose?
1. RBT with a bite.
D. GOVERNMENT INTERFERENCE WITH GOVERNMENT CONTRACTS
a. Illustrative Case: United States Trust Co. v. New Jersey (1977)
i. FACTS: In 1962, NY/NJ adopted laws prohibiting the use of toll revenues from the Port
Authority of NJ and NY to subsidize rail passenger service.
1. Meant to assure Port Authority bonds that the toll funds would remain available
to pay that debt.
2. In 1970, during the energy crisis, the states adopted laws to repeal the earlier
prohibition and permit the use of toll funds to improve rail service.
ii. HOLDING: Court declared that the states violated the KC.
1. The Court emphasized its distrust of the G when it is abrogating its own Ks.
2. The Court recognized that conserving energy and protecting the environment
were important police purposes, but:
a. The G could have achieved its goals through other means; and
b. The G knew of the need for railroad service to protect the environment
when it enacted the initial law in 1962.
iii. The Court did not articulate a level of scrutiny, but it is clear that he Court used
heightened scrutiny.
Constitutional Basis for Fundamental Rights

IDEA OF A FUNDAMENTAL RIGHT

A. Some liberties are so important that they are deemed fundamental rights and govt cannot generally
infringe on them unless SS is met.
B. Almost all of these are not mentioned in the text of the Const.
a. 9th Amendment is often mentioned since it says that just because some rights are enumerated in
the text of the C does not mean that others should be denied.
C. Regardless if DP or Eq Prot is used as the Const. argument, still must meet SS

ANALYSIS FOR FUND. RIGHTS

(1) Does the complaining party have a fund right at stake? (ie. Meyer v. Nebraska is there a right
to control the upbringing of children?)
(a) If no, challenged law const so long as RBT satisfied
(2) If yes, does the challenged govt action infringe this right? (ie. We know that the SC has said
parents have the right, so does a law prohibiting schools from teaching other languages infringe on
this right of parents to control the upbringing?)
(a) If no, challenged action const so long as RBT satisfied
(i) Most commonly the court has said that only DIRECT and SUBSTANTIAL interferences
infringe on these rights
(b) If yes, some form of heightened scrutiny applies (USUALLY)

Constitutional Protection for Family Autonomy

Origins of Protection
A. Seminole Case: Meyer v. Nebraska (1923) - SC invalidates a state law prohibiting the teaching in school of
any language but English
a. Rationale: Broadly defines liberty in the due process clause to protect basic aspects of family
autonomy
B. Since Meyer the SC has held that certain aspects of family autonomy are fundamental rights
b. Governmental interference with these rights will be allowed only under strict scrutiny
i. FUNDAMENTAL RIGHTSrelating to family autonomy
1. The right to marry
2. The right to custody of ones children
3. The right to keep the family together
4. The right to control the upbringing of ones children

THE RIGHT TO MARRY

A. Seminole Case: Loving v. Virginia SC invalidates Va. law that prohibited a white person from wedding
someone of another race
a. Rationale: Violated constitutionally protected libertyto marryw/o due process
B. The right to divorce
b. The CT. has held that there is an opposite right to divorce b/c preventing the acquisition of divorce
precludes them from exercising their right to marry someone else
C. Strict Scrutiny Used
c. Zablocki v. RedhailCT invalidates Wisconsin law that requires CT. permission to marry in cases
where one party owes child support
i. CT. finds substantial state interest in ensuring child support is paid
ii. BUTCT found that the law was not sufficiently related to that end
iii. ANDthe state had alternative means of enforcing child support that were less restrictive
did not infringe on fundamental rights
1. Persons who cant pay child support are effectively prohibited from marrying
violates equal protection
iv. Separate opinions cite due process as grounds to invalidate the law
D. Right to Marry Protected Even for Prison inmates
 d.CTs Rationale for protection
i. Important to allow prisoners to show emotional support and public commitment
ii. Marriage is often an expression of religious faith
iii. Marital status is often related to the receipt of governmental benefits
E. Cases Finding No Violation of the Right to Marry
e. There must be direct and substantial interference with the right to marry in order to trigger
heightened scrutiny
i. SC will NOT invalidate law if the law had a discouraging effect on SOME people who
would otherwise wed

RIGHT TO CUSTODY OF ONES CHILDREN

A. Custody as a Fundamental Right
a. SC has recognized that parents have a fundamental right to custody of their children
ii. More precious than any property right
iii. SC can permanently terminate custody only if it meets the requirements of both
procedural and substantive due process
1. Parents must be given notice and a hearing
2. G must show that terminating custody is necessary to achieve a compelling goal
a. G must provide clear and convincing evidence before permanently
terminating custody
B. Rights of Unmarried Fathers
a. Sometimes they have rights
i. Stanley v. IllinoisSC invalidates a law that made children of an unwed mother wards of
the state until 18
1. Broad rule denied any father custody if he was not married to the mother upon
her death
2. SC holds that the right to raise ones none children deemed essential and
affirmed as a basic right
3. Taking children from the custody of a father upon the death of the mother
violated both due process and equal protection
b. Sometimes they dont
i. Lehr v. RobertsonSC upholds law that allows the state to terminate a fathers parental
rights without providing DP (notice or a hearing)
1. Distinguished from Stanley
a. The father in Lehr had not been actively involved in his childrens lives
(as in Stanley)
i. Father must demonstrate FULL COMMITMENT to the
responsibilities of parenthood
ii. Michael H. v. Gerald D. SC upholds law saying that even an unmarried father who
participated actively in the childs life is not entitled to due process if the mother was
married to someone else a married womans husband is the father of her child even
though it negates all of the biological fathers rights.
1. Facts: the biological father (through an affair) was regularly involved in the
childs life and wanted visitation rights. 5-4 decision.
2. Holding: Biological father did not have a liberty interest in a relationship with
his child
a. [Pluraity Scalia] b/c there was no tradition of protecting the fathers
rights when the mother is married to someone else
b. [Plurity Stevens] b/c the biological father had a chance to establish
paternity and preserve his rights
3. Dissent [Brennan]Family rights should be protected, NOT narrowly defined
as existing only within certain kinds of families
a. Forward moving approach Society is changing and SC should respect
change instead of using traditions to define the scope of constitutional
rights
THE RIGHT TO KEEP THE FAMILY TOGETHER
A. Protection for the extended family
c. Moore v. City of East ClevelandPlurality Opinion concludes that law defining grandparents as
unrelated is unconstitutional for infringing on the rights of extended family
i. CT. holds that liberty in the due process clause includes protection for family rights
and that family applies to extended family as well
B. Defining Extended FamilyMoore limited in two ways

THE RIGHT TO CONTROL THE UPBRINGING OF CHILDREN

A. Parents have a right to make decision for their children
a. Butthe right to make parenting decisions is not absolute
b. Can be interfered with by the state if necessary to protect a child
i. Prince v. Massachusetts SC rules that Jehovahs witness parents could not use their
child for solicitation, because the child was protected under child labor laws
ii. SC acknowledges that there is a private realm of family life that the ct cannot enter
iii. BUTStates interest in protecting a child trumps parents rights to exploit the child for
religious or economic purposes
B. Deference to ParentsCT. has been criticized for giving too much deference to parents [for arguments that
the CT. does not give enough deference see Prince above]
a. Wisconsin v. YoderCT. holds that Amish parents have a constitutional right to exempt their
children from the compulsory education law
i. Rationale:
1. Parents rights to control the upbringing of their childrenused Meyer
2. Based on the free exercise of religion
3. Unique situation due to the nature of Amishness
4. No evidence of harm being done to the child
ii. Criticism:
1. Education is a compelling interest
2. Harm being done by not allowing the children choices education provides
b. Parham v. J.R. ParhamCT. allows parents the right to institutionalize their children w/o due
process
i. Rationale:
1. CT. assumes that parents are always acting in the best interests of their children
c. Yoder and ParhamStrong arguments that the SC sacrificed protecting children in favor of
deference to parents

Right to Procreate
OVERVIEW
A. The right to procreate is a fundamental right:
a. Government imposed involuntary sterilization must meet SS.
B. Illustrative Case:Skinner v. Oklahoma (1942)
a. FACTS: OK Act allowed courts to order the sterilization of those convicted two or more times for
crimes involving moral turpitude.
b. HOLDING:
i. Right to procreate is a fundamental right: marriage and procreation are fundamental to
the very existence and survival of the race.
ii. Act violated equal protection

Right to Purchase and Use Contraceptives

OVERVIEW
A. Landmark: Griswold v. Connecticut (1965)
a. STATUTE: CT law prohibiting the use and distribution of contraceptives.
 i. Any person who uses any drug [etc.] for the purpose of preventing conception shall be
fined not less than fifty dollars or imprisoned not less than sixty days nor more than one
year or be both fined and imprisoned.
b. FACTS: Criminal prosecution of Estelle Griswold, the executive director of the Planned
Parenthood League of CT and a physician who openly ran the clinic. They were prosecuted for
providing contraceptives to a married woman.
c. HOLDING [Douglas, J.]:
i. Right to privacy is a fundamental right
1. Source: 1A, 3A, 4A, 5Aspecific guarantees of the BOR have penumbras and
the right to privacy is found emanating from them.
a. Criticism: Douglas wanted to avoid substantive due processbut BOR
is applied to states by DPCso ultimately this is just a DPC analysis.
ii. CT law violates the right to privacy in prohibiting married couples from using
contraceptives.
1. Focus: Need to protect the privacy of the bedroom from intrusion by the police
and the ability to control information about contraceptive use (regulation of use
may involve intrusion)
d. CONCURRING
i. [Goldberg, J.]: Argued that source of right to privacy is Ninth Amendment.
ii. [Harlan, J.]: source of right to privacy is DPC.
iii. [White, J.]: law failed to meet RBTfailed to see how the ban on the use of
contraceptives by married couples in any way reinforces the States ban on illicit sexual
relationships.
e. DISSENT [Black, J. & Stewart, J.]:
i. Law is constitutional because there is no right to privacy mentioned in the C.
B. Fundamental Right to Control Reproduction
a. Eisenstadt v. Baird (1972)SC held unconstitutional MA law that prohibited distributing
contraceptives to unmarried individuals and that only allowed physicians to distribute them to
married persons.43
i. Right to purchase and use contraceptives based on a right of individuals to make
decisions concerning procreation.
1. No Legitimate Purpose: prohibiting distribution of contraceptives
prescription of pregnancy and unwanted child for fornication.
ii. Right is extended to unmarrieds as well as marrieds
iii. Protected use and distribution of contraceptives.
b. Carey v. Population Services International (1977)SC held unconstitutional a NY law that
criminalized sale or distribution of contraceptives to minors under 16; for anyone other than a
licensed pharmacist to distribute contraceptives to persons over 15; and for anyone to advertise or
display contraceptives.
i. SS must be met for G to justify a law restricting access to contraceptives.
1. Compelling interestscompelling is the key word.
a. State Interest: protecting health not adequate.
2. Narrowly Tailored Means
ii. Limiting distribution of contraceptives to licensed pharmacists unduly restricted access to
birth control and infringed on the right to control procreation.
iii. ANALYSIS:
1. DPCfundamental right; infringed SS
2. EPCclassification: over 16 versus under 16; fundamental right SS
c. Limiting distribution to Minors: Denial of right
i. Rationale:
1. State cannot impose blanket prohibition, or requirement of parental consent, on
the choice of a minor to terminate her pregnancy the constitutionality of a

43therighttoprivacymeansanythingitistherightoftheindividual,marriedorsingle,tobefreefromunwarrantedgovernmentalintrusion
intomatterssofundamentallyaffectingapersonasthedecisionwhethertobearorbegetachild.Brennan,J.
 blanket prohibition of the distribution of contraceptives to a minor is a fortiori
foreclosed.
2. Prohibition would not deter teenage sexual activityand it is irrational to
punish fornication with an unwanted pregnancy.

Right to Abortion

OVERVIEW
A. SC considers four issues when looking at individual liberty cases:
a. Is there a fundamental right?
b. Is the right infringed?
c. Is the infringement justified by a sufficient purpose?
d. Are the means sufficiently related to the end sought?
B. Quick Preview
a. In 1973, in Roe v. Wade, SC held that the Constitution protects a right for a woman to choose to
terminate her pregnancy prior to viability (the time at which the fetus can survive on its own
outside the womb)
i. G may not prohibit abortions prior to viability
ii. G regulations of abortions had to meet SS.
b. In 1992, in Planned Parenthood v. Casey, the SC reaffirmed Roe and again held that the
government may not ban abortions prior to viability
i. But also held G may regulate abortions before viability so long as it does not place an
undue burden on access to abortions.
C. Controversies
a. Should court protect such a right that is not mentioned in the text and was not clearly intended by
the FRAMERS?
b. No middle ground between those who support and those who oppose abortions.

ROE V. WADE
A. FACTS: challenge to a TX law that prohibited all abortions except those necessary to save the life of the
mother.
B. HOLDING:
a. Right to privacy encompasses womans right to abortion.
i. Rationale: forcing a woman to continue a pregnancy against her will imposes enormous
physical and psychological burdens.
ii. Source: either DPC of 14A, or 9A
b. But right is not absolute and must be balanced against other factors:
i. States interest in protecting prenatal life
c. Right to abortion is a fundamental right and any attempts to infringe on the right are subject to SS
i. Limitations are only justified by a compelling stat interest, and
ii. Must be narrowly tailored to the means
C. TRIMESTERS
a. First
i. G could not prohibit abortion
ii. G could regulate only as it regulated other medical procedures, such as by requiring that
they be performed by license physician.
b. Second
i. G could not prohibit abortions
ii. G may regulate the abortion procedure in ways that are reasonably related to maternal
health
c. Third
i. G may prohibit abortions except if necessary to preserve the life or health of the mother.
D. Compelling Interests:
a. Valid Interests
i. Protecting Maternal Health: valid after first trimester
 1. Rationale: abortions became more dangerous to mom
ii. Protection of Potential Life: valid at point of viability
1. Rationale: fetus now has capability of meaningful life outside of womb.
b. CLAIM: fetuses are persons prior to viability REJECTED:
i. Word person in C did not intend to include fetuses.
ii. No consensus as to when human personhood beginsrather enormous disagreement
among religions and philosophers
E. DISSENT: [Rehnquist, J. & White, J.]
a. Argue that abortion question should be left to the legislature
b. Criticized majority for excessive use of judicial review
F. Companion: Doe v. Boltonchallenge to GA law that outlawed abortions except if a doctor determined
that continuing the pregnancy would endanger a womans life or health, if the fetus likely would be born
with a serious defect, or if the pregnancy resulted from rape.
a. Based on Roe, this statute was found unconstitutional.

DEBATE OVER ROE

A. SC is wrong to protect a right to abortion because the right is neither mentioned in text nor intended by the
FRAMERS.
a. Response:
i. SC has protected numerous rights which arent enumerated in C or mentioned by
Framers.
ii. These are dimensions of personal autonomy and independence which are aspects of the
liberty which 14A says no state may deny without due process.
b. NOTE: This is just part of the wider debate on whether judiciary should protect unenumerated
rights.
B. SC erred in using due process rather than equal protection as basis for decision. Namely, because laws
prohibiting abortion apply exclusively to women they should be declared unconstitutional as gender
discrimination.
a. Response:
i. Equality analysis and privacy approach come down to the same basic question: does Gs
interest in protecting fetal life justify prohibiting abortion?
1. Under EPC gender discrimination is permissible if intermediate scrutiny is met:
if protecting fetal life is regarded as an important government interest, then laws
prohibiting abortion are justified even though they are a form of gender
discrimination.
ii. In short, nothing is gained by shifting point of analysis.
C. Dominant Critical View: central problem in Roe is the courts rejection of protection of fetal life
justification. SC treated question of whether fetus is a person as equivalent of whether state has an
important interest in protecting life.
a. Uncertainty about point at which life beginsthats a question that would be important if you
wanted to know if fetus is a person
i. But fetuses dont have to be persons in order for state to have legitimate interest for not
wanting them to diestates interest is in protecting human life, well-served by law
protecting fetuses, which will become human beings.
b. It doesnt matter what you want to call them in their fetal state: they will turn out to be humans.
c. Response:
i. SC was correct in not deciding when personhood beginsany determination could be
criticized as arbitrary. SC properly left each woman to decide for herself when human
personhood begins.
ii. Even if fetus is seen as a person, the law should not force the woman to be an incubator
against her will. Thompson violinist hypo

MODERN CASE LAW

A. In the 1990sthe change in the composition of the SC raised questions as to whether Roe would be
overruled.
B. Landmark: Webster v. Reproductive Health Services (1989)
 a.
FACTS: MO law declared states view that life begins at conception. Law prohibited the use of
government funds or facilities from performing, encouraging or counseling a woman to have an
abortion. Allowed abortions after 20 weeks of pregnancy only if a test was done to ensure that the
fetus was not viable. SC upheld the law.
b. PLURALITY [Rehnquist, J.]:
i. Key elements of Roe, trimesters and viability, are not found in C.
ii. States interest in protecting life: if compelling after viability is equally compelling
before viability.
iii. Butfailed to explicitly overrule Roe.
c. CONCURRING [Scalia, J.]:
i. Argued that Roe should be expressly overrulednot just implicitly, as by plurality
opinion.
d. CONCURRING [OConnor, J.]:
i. Ruled only on the specifics of the MO lawas narrowest opinion it became the law.
ii. Argued that since law did not prohibit abortions it did not reach the question of the
constitutional validity of Roe.
e. DISSENT [Blackmun, J., Brennan, J., & Marshall, J.]:
i. Recognized that court was on the verge of overruling Roenoted that today the law
survives, but is not secure.
C. Landmark: Planned Parenthood v. Casey (1992)44
a. FACTS: PA law
i. created a 24hour waiting period for abortions
ii. required physicians to inform women of the availability of information about the fetus
iii. required parental consent for unmarried minors abortions
iv. created requirements for reporting and record keeping
v. required spousal notification before abortions
b. PLURALITY [OConnor, J., Kennedy, J., & Souter, J.]:
i. Reaffirmed that:
1. states cannot prohibit abortions prior to viability.
2. viability is the key dividing line during pregnancy
ii. Right to abortion is constitutionally protected because of the importance of the choice
and the intrustion in forcing a woman to remain against her will.
iii. Emphasized stare decisisoverrule only if earlier decisions prove unworkable.
iv. Overruled the:
1. trimester distinction, and
2. use of SS for evaluating governmental regulation of abortions.
v. G regulations prior to viability are allowed unless there is an undue burden on access to
abortion.
1. does not state what level of scrutiny should be applied
2. e.g., state may take measures to make sure womans choice is informed
c. Application to PA Law:
i. Three judges in plurality opinion and four in dissent upheld:
1. 24hour waiting period for abortions
2. requirement physicians to inform women of the availability of information about
the fetus
3. requirements for reporting and record keeping
ii. Spousal notification was held unconstitutional
1. evidence that it would discourage women from seeking abortions and therefore
place an undue burden.
d. CONCURRING [Blackmun, J. & Stevens, J.]:
i. Concur in judgment but affirm trimester distinction and use of SS.

44AfterWebsterandbeforeCasey,JusticesBrennanandMarshallhadresignedandwerereplacedbyJusticesSouterandThomas.Itwas
thoughtthatbothofthem,andparticularlyThomas,mightcastthefifthvotetooverruleRoe.TheUnitedStates,throughthesolicitorgeneral,
urgedSCtooverruleRoeinCasey
 1.
SS offers most secure protection of the womans right to make her own
reproductive decisions.
2. would have invalidated all provisions in PA Law
e. DISSENT [Scalia, J., Rehnquist, J., Thomas, J., & White, J.]:
i. Right to abortion is not constitutionally protected because:
1. C says nothing about it
2. traditions of American society have permitted it to be legally proscribed
ii. Would have upheld all aspects of the PA law.

UNDUE BURDEN
A. Rule: a law is an undue burden 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.45
a. From Casey: to promote the States profound interest in potential life, throughout pregnancy the State may take measures
to ensure that the womans choice is informed, and measures designed to advance this interest will not be invalidated as
long as their purpose is to persuade the woman to choose childbirth over abortion. These measures must not be an undue
burden on the right.
B. ISSUE:
a. Internal Tension: opinion suggests that state cannot act with the purpose of creating obstacle but
it can act with purpose of discouraging abortion and encouraging childbirth.
i. Every law adopted to limit abortion is for the purpose of discouraging abortions and
encouraging childbirthwhen does it become an undue burden?
C. What is clear
a. States may not prohibit abortions prior to viability
b. States may prohibit abortions after viability except where necessary to protect the womans life or
health

GOVERNMENT REGULATIONS OF ABORTION

A. Waiting Periods
a. Under Strict Scrutiny: Unconstitutional. City of Akron v. Akron Center for Reproductive Health,
Inc. (1983)city ordinance prohibited a physician from performing an abortion until 24 hours
after the pregnant woman signed a consent form.
i. Waiting periods were found to increase costs of obtaining an abortion by
1. Requiring women to make two trips to the facility, and
2. Could increase the risk of complications because of delays in performing
abortions.
ii. Arbitrary and inflexible waiting period do not serve a legitimate state interest
1. Abortions will not be performed more safely
2. Womans decision will not be more informed
b. Under Undue Burden: Constitutional. Planned Parenthood v. Casey (1992)where district court found that
because of travel and scheduling problems there often would be more than a days delay before an abortion could be
received and thus would be more than a days delay before an abortion could be received and thus that waiting periods
would increase the cost and risk of abortions.
i. A state is permitted to enact persuasive measures which favor childbirth over abortion
even if they do not favor a health interest
1. Though it limits physicians discretion, that alone is not enough.
ii. Court goes against district court findings and against its own reasoning for invalidating
requirement of spousal consent.
B. Informed Consent Requirements
a. Law: Government may require written informed consent to abortionsjust as it requires for other
surgical procedures - PlannedParenthoodofCentralMissouriv.Danforth(1976)
b. ISSUE: Whether G may require more than that with regard to abortions and mandate that doctors
give women information intended to discourage abortions.
i. Examples: laws that require that women be advised about the fetus and its characteristics
at that stage of pregnancy

45Stenbergv.Carhart(2000)Statelawthatprohibitedpartialbirthabortionswasfoundunconstitutionalbymajoritywhichadoptedand
appliedtheundueburdentest.
 c.
Under Strict Scrutiny: Unconstitutional. Thornbourgh v. American College of Obstetricican and
Gynecologists (1986)SC invalidated PA law that required women be given 7 different kinds of
info. 24 hours before they give consent for abortions.46
i. Information provided is intended to dissuade women form getting abortions
d. Under Undue Burden: Constitutional. Planned Parenthood v. Casey (1992)SC upheld a
provision identical to that invalidated in Thornborugh.
i. Giving of truthful, non-misleading information about the nature of the abortion, the
attendant health risks are consistent with Roes acknowledgment of an important interest
in potential life.
ii. In accord, with SCs abandonment of position that state may not regulate abortions in a
way to encourage childbirth.
e. Conclusion: unresolved as to how far G can take informed consent statutesi.e., how much
dissuasion can occur.
C. Fetal Viability Tests
a. Under Strict Scrutiny: Unconstitutional. Colautti v. Franklin (1979)SC held unconstitutional a
state law that required doctors to make a determination that the fetus is not viable prior to abortion .
b. Under Undue Burden: Constitutional. Webster v. Reproductive Health Services (1989)SC
upheld state law that required testing and evaluation of fetal viability for all abortions performed
after 20th week of pregnancy.
i. Though this will raise costs of abortionsit permissibly furthers the States interest in
protecting potential human life.
ii. Not an undue burden on access to abortions.
D. Reporting and Recording Requirements
a. Under Strict Scrutiny: SC has generally upheld laws that require the recording and reporting of
information concerning abortions so long as the information is protected as confidential.
i. Recordkeeping and reporting requirements that are reasonably directed to the
preservation of maternal health and that properly respect a patients confidentiality and
privacy are permissible.
1. Planned Parenthood of Central Missouri v. Danforth (1976) - SC upheld
provision that required physicians performing abortions to complete, maintain
records for 7 years and allow inspection by health officials.
ii. SC declared statute unconstitutional that went beyond Danforth and more specifically did
not provide sufficient assurances of confidentiality.
b. Under Undue Burden: Constitutional. Colautti v. Franklin (1979)SC held unconstitutional a
state law that required doctors to make a determination that the fetus is not viable prior to abortion .
i. Such requirements serve an important purpose without imposing an undue burden
1. Does not help inform women, but relates to States interest in healthmedical
research.
2. Does not substantially increase costs of abortions
c. Conclusion: G may require record keeping and reporting, but it must ensure that the patients
identity remains confidential and that it cannot be easily ascertained from other information in the
report.
E. Medical Procedures
a. Premise: many states regulate how doctors actually perform abortions.
b. Under Strict Scrutiny: Unconstitutional.
i. Danforth: invalidated law prohibiting saline amniocentesiseliminating technique would
force women to get abortions by unsafe methods.
ii. Akron: invalidated part of ordinance that required all abortions to be performed in
hospitalscould be performed in outpatient clinics.
iii. NOTE: court upheld a statute requiring a second physician to be present during an
abortion performed after viabilityassuming statute provided an exception for
emergencies. Without exception, express or implied, statute would be invalid.
c. Under Undue Burden: Unknown.

46CityofAkronv.AkronCenterforReproductiveHealth,Inc.(1983)heldunconstitutionalpartofacityordinancethatrequiredphysiciansto
informwomenseekingabortions.Muchoftheinformationwasmeanttopersuadewomennottogetanabortion.
 i. SC has not yet had a case about medical procedures after Casey.
F. Laws Prohibiting Partial-Birth Abortions
a. Landmark: Stenberg v. Carhart (2000)NE law prohibited partial-birth abortions (also known as
dilation and extraction abortions).
i. HOLDING [Breyer, J., Stevens, J., OConnor, J., Souter, J., & Ginsburg, J.]:
1. Statute place an undue burden on womens right to abortion
a. No exception permitting prohibited procedures to protect the womans
health.
i. FACTFINDER: partial-birth abortion was safer than
alternatives.
b. Imposes an undue burden on womens ability to choose a dilation and
evacuation abortion (common form of abortion).
i. Doctor cant tell if the fetus is still alive when the removal is
done and this would be invalid under law
ii. This statute would prevent this type of abortion from being
legal.
ii. CONCURRING [OConnor, J.]:
1. Would be willing to uphold a narrower partial birth abortion prohibition if it
contained an exception for womans health and if it did not prevent the D&E
methodsending a message to legislatures as to how to draft future laws.
2. Some lower courts have drafted statutes in accordance with this.
iii. DISSENT [Thomas, J.]:
1. Abortion should not be a right
2. Court inexplicably holds that the States cannot constitutionally prohibit a
method of abortion that millions find hard to distinguish from infanticide.

GOVERNMENT RESTRICTIONS ON FUNDS AND FACILITIES FOR ABORTIONS

A. Decisions Holding No Requirement for Government Funding
a. Rule: G is not constitutionally required to subsidize abortions even if it is paying for childbirth.
i. G can deny funds for nontherapeutic abortions in the first trimester47 (NTAs).
1. Beal v. Doe (1977): SC held that federal Medicaid Act did not require states fund NTAs as part of
participating in joint federal-state program.
2. Maher v. Roe (1977): SC upheld state law that denied the use of Medicaid funds for NTAs
although provided funding for medically necessary first trimester abortions.
3. Poelker v. Doe (1977)SC upheld city ordinance refusing to pay for NTAs at public hospital.
ii. SC has upheld laws that denied public funding for medically necessary abortions except
where necessary to save the life of the mother.
1. Harris v. McRae (1980)SC upheld federal law that prohibited use of federal funds for performing
abortion except where life of mother would be endangered and as result of rape or incest.
2. Williams v. Zbarez (1980)SC found constitutional state law that prohibited use of state funds for
performing abortions except where the mothers life was in danger.
SC upheld a state law that prohibited the use of employees and facilities to perform or
iii.
assist the performance of abortions except where necessary to save the mothers life.48
B. The Courts Reasoning in Allowing the Denial of Public Funding
a. The existence of a constitutional right does not create a duty for the G to subsidize the exercise
of the right.
i. G rarely has an affirmative constitutional duty to provide benefits or to facilitate the
exercise of rights.
1. DPC confers no affirmative right to governmental aideven where such aid
may be necessary to secure life, liberty or property interests of which the G itself
may not deprive the individual.
b. Denial of public funding places a woman in no different position than she would have been if
there was no Medicaid program or no public hospital.

47abortionsnotperformedtoprotectthelifeofthemother.
48Websterv.ReproductiveHealthServices(1989
 i. Leaves woman in same position as if Congress or the State chose not to subsidize health
care costs at all.
c. Government constitutionally could make the choice to encourage childbirth over abortion.
i. Roe implies no limitation on authority of a State to make a value judgment favoring
childbirth over abortion and to implement that judgment by the allocation of public
funds.
d. A woman does not have a fundamental right to abortion, but merely has a fundamental right to
be free from unduly burdensome interference with her freedom to decide whether to terminate
her pregnancy [Maher v. Roe].
i. Under EPCsince a fundamental right is not involved, nor a suspect or quasi-suspect
classificationRBT applies. Saving money is a legitimate state interest.
C. Criticism of Abortion Funding Decisions
a. Denial of public funding has purpose and effect of preventing abortions and should be regarded as
violation of the right.
i. G should not be able to use its resources to encourage childbirth over abortion
b. Each woman should decide between childbirth and abortion
i. Denying funding for abortions is a penalty for the exercise of a constitutional right.
c. Abortion is less costly to the government than childbirth so it must be a moral justification

CONSENT AND NOTICE REQUIREMENTS

A. Spousal
a. Rule: G cannot require either spousal consent or notification as a prerequisite for a married
womans obtaining an abortion.
b. Consent Requirements
i. Unconstitutional for law to require husbands written consent prior to abortion.49
1. Rationale: If wife and husband disagree on the decision, only one view can
prevail. Because the woman is bearing the child, her view is favored.
c. Notification Requirements
i. Unconstitutional for law to require spousal notification.50
1. Rationale:
a. Spousal notification could trigger abusebased on women in abusive
relationships who may not want to reveal their decision to get abortions
to their husbands.
B. Parental
a. Consent
i. Belottiv.Baird(1979)SCdeclaredunconstitutionalalawthatpreventedanunmarried
womanunderage18fromreceivinganabortionunlessbothofherparentsgranted
consentorunlessacourtauthorizedtheabortionforgoodcause.
ii. Rule: a state may require parental notice and/or consent for an unmarried minors
abortion, but only if it creates an alternative bypass procedure where a minor can obtain
an abortion by going before a judge who can approve the abortion by finding that:
1. It would be in the minors best interest or
2. By concluding that the minor is mature enough to decide for herself.
iii. Rationale: SC recognized that parents have a constitutional right to control the
upbringing of their children, but also acknowledged that females of all ages have a right
to abortion.
iv. No automatic right to abortionif Minor is found to be insufficiently mature or
emancipated to make the abortion decision for herself, the state may require parental
consent.
b. Notification
i. Rule: A state may require parental notification prior to an abortion, if it creates an
alternative bypass procedure which gives children an avenue not subject to parental veto.

49PlannedParenthoodofCentralMissouriv.Danforth
50PlannedParenthoodv.Casey
 1. Upheld one-parent notification with bypass procedure51
2. Upheld two-parent notification with bypass procedure52
3. Rationale:
a. Mere requirement of parental notice does not violate the constitutional
rights of an immature, dependent minor.
b. State has an important interest in making sure that parents are notified
prior to an abortion on a teenage girl.
c. Fact that notice requirement may inhibit some minors from seeking
abortions is not a valid basis to void the statute.
c. Discussion
i. Courts approach attempts to preserve parental involvement while not giving parents veto
power, but
ii. Judicial Bypass: Unrealistic.
1. Teens are likely to lack resources and knowledge to petition courts.
2. standard gives the judge little guidance in making the decision whether abortion
is in best interestseems like it will come down to judges personal beliefs

Medical Care Decisions

A. Right to Medical Care.
a. GenerallyThe Constitution does not create an affirmative right to services
i. Therefore no constitutional right to medical care
1. G may refuse to subsidize abortions
ii. G has a right to provide medical care when a person is in G custody53,54 or when the G
itself created the danger
1. Cruel and unusual punishment for a prison to refuse to provide medical
treatment
2. STILLG has the right to determine the SCOPE of its responsibilities
iii. CHEM: Under current law, in its very unlikely that the G has a duty to provide medical
care except when people are incarcerated or institutionalized Limited right to medical
care
B. The Right to Refuse Treatment.
a. There is a constitutional right of individuals to refuse medical treatment
i. Based on the Due Process Clauseforcible injections considered substantial interference
w/ personal liberty
b. BUTit certainly is not absolute and can be regulated by the state55
c. Cruzan v. Director, Missouri Dept. of Health (Cruzansustainedmassivetraumatoherheadand
wasinapermanentvegetativestate,parentswantedthehospitaltodiscontinueherfoodandwater
butthestatesaidshehadtobekeptalive)
i. Three parts to SCs ruling
1. Competent adults have the constitutional right to refuse medical care
a. Some of the Judges [Rehnquist] assumedfrom past decisionsthat
this right extended to the refusal of lifesaving food/water
b. Others [OConnor] definitely stated that such a right exists w/in the
context of the Due Process Clause - Right to liberty
2. The state may require clear and convincing evidence that a person wanted
treatment before it is cut off
a. State has an important interest in protecting life

51Ohiov.AkronCenterforReproductiveHealth(1990)SCupheldlawthatrequirednoticetooneparentpriortoabortionandallowed
bypassprocedurethroughajudge.
52Hodgsonv.Minnesota(1990)SCupheldlawrequiringnoticetotwoparentspriortoabortionbutalsohadajudicialbypassoption.
53Estellev.GamblePrisonersrighttomedicaltreatment
54Youngbergv.RomeoInstitutionalized(mental)personsrighttomedicaltreatment
55Jacobsonv.MassachusettsSCupholdslawthatrequiresvaccinations
 3.
The state may prevent family members fro terminating treatment for each other
a. The right belongs to the individual NOT the family members
b. But a living will may be enough to count for clear and convincing
evidence.
ii. Unresolved Questions
1. No level of scrutiny articulated
2. Clear and convincing proof
a. SC did not definebut said that oral testimony may be legitimately
excluded
i. Written will might be the only way
3. If the person had designated a surrogate/guardian to make the decision for him
a. Situation not addressed by the SC
i. Though opinion stated that the situation may arise where the
state has to defer to a third party if evidence established that
the patient had desired the decision to terminate to belong to
another
C. Physician Assisted Suicide (PAS).
a. SC has rejected challenges to state laws prohibiting PAS56,57
i. Upholds law of 49 states that prohibit PAS
ii. BUTleft open the possibility of legal protection for such a right at both the state level
and future SC holdings
b. WashingtonThere is no constitutional right to die
i. Rights are only considered fundamental for the purposes of being protected under the
Due Process Clause if supported by history or tradition
1. Tradition has always disapproved of suicide
ii. Bottom LineSC did not want to reverse centuries of legal tradition
iii. SC ruled that WA was NOT infringing on a fundamental rightRATIONAL BASIS
REVIEW
1. Law reasonably served legitimate state interests
a. Preservation of life
b. Preserving the integrity of the medical profession
c. VaccoLaws prohibiting PAS did NOT violate Equal Protection
i. Did not involve a suspect class nor violate a fundamental rightRBT
d. Future possibilities
i. States may enact statutes protecting PAS
1. Unconstrained by the Constitution
ii. Laws prohibiting PAS may be declared unconstitutional in SPECIFIC CASES
1. OConnors concurring opinions specifically mentioned that the decision of the
SC did not necessarily apply in cases where a mentally competent person who
was suffering has a constitutionally protected interest in his own death
2. Stevens concurring opinions mentioned that in some cases an individual claim
of such right may be strong and the states interest much less
iii. All in all five justices left open the possibility of challenging the application of laws
prohibiting physician-assisted suicide in particular cases
1. THE STRONGEST CHALLENGE would likely be a state law prohibiting a
physician from prescribing pain-reliving medication that would hasten a
terminally ill patients death
e. CONCLUSIONmain difference between the SC and the Ninth Circuit is that Ninth Circuit has
held the right to die as a fundamental right and the SC has said it is a right whose treatment should
be determined by the political process

Sexual Orienation
56Washingtonv.GlucksbergNinthCir.declaredunconstitutionalaWA.lawthatprohibitedphysiciansfromassistinginaterminallyill
patentssuicideThereisaconstitutionalrighttodieSCreversed
57Vaccov.Quill
OVERVIEW
A. Modern Rule: A persons sexual conduct now receives substantive due process protectionSC seems
willing to recognize a fairly broad autonomy/liberty interest in private consensual adult sexual conduct.
B. Old Law: Bowers v. Hardwick (1986)
a. STATUTE: GA statute made it a crime to perform or submit to any sexual act involving the sex
organs of one person and the mouth or anus of another. Violations were punishable by up to 20
years in prison.
b. HOLDING [White, J.]:
i. ISSUE: whether the Federal Constitution confers a fundamental right upon homosexuals
to engage in sodomy
ii. Not a fundamental rightfundamental liberties are:
1. Implicit in the concept of ordered liberty, or
2. Deeply rooted in this Nations history and tradition. not a tradition
iii. Privacy of home irrelevant
1. Rationale: extending protection to homosexual conduct within the home, would
make it difficult to ban adultery, incest and other sexual crimes committed in the
home.
c. DISSENT [Blackmun, J., Brennan, J., Marshall, J. & Stevens, J.]
i. ISSUE: case is about the right to be let alone.
1. Decisional: a right to be free of governmental interference in making certain
private decisions
2. Spatial: the right to privacy of certain places without regard to the activities that
go on there
ii. Decisional violationMajority has refused to recognize: the fundamental interest all
individuals have in controlling the nature of their intimate associations with others.
iii. Spatial violation: activities that take place in ones own home deserve special protection.

LAWRENCE V. TEXAS
A. FACTS: Houston Police entered the apartment of one of the two s through an unlocked door (in response
to a reported disturbance involving a weapon). The police discovered the s, two men, having sex. s
were arrested, held in custody overnight, tried, convicted and fined.
a. TXs state interest: promotion of morality.
B. STATUTE: crime to engage in deviant sexual intercourse with another individual of the same sex. Deviant
sexual intercourse was defined to include:
a. Contact between the genitals of one person and the mouth or anus of another, or
b. Penetration of the genitals or anus of another by an object
C. HOLDING [Kennedy, J., Stevens, J., Souter, J., Ginsburg, J., & Breyer, J.]
a. TX statute violated the s substantive due process rights and concluded that Bowers was wrongly
decided.
b. Overruled Bowers:
i. Goes beyond sexual conduct
ii. Laws targeting same-sex couples did not develop till the late 20th centuryhistorical
conclusions were overstated
iii. Recent law shows an emerging awareness that liberty gives substantial protection to adult
persons in deciding how to conduct their private lives in matters pertaining to sex.
iv. Europeother countries governments do not bar private homosexual conduct.
v. Recent case law show serious erosion of Bowers doctrine
vi. These types of laws have the effect of subjecting homosexual persons to discrimination in
public/private spheres
c. The right to liberty under the DPC gives them the full right to engage in sexual conduct without
intervention of the government.
i. Applies RBT: State furthers no legitimate state interest that justifies intrusion into the
personal and private life of the individual.
1. NOTE: Did not state that pursuing homosexual conduct is a fundamental right
 ii. Does NOT state that this extends to give formal recognition to any relationship that
homosexual persons seek to enter (i.e., gay marriage)
D. CONCURRING [OConnor, J.]:
a. EPC Violation: TX statute applied only to sodomy between same-sex partners and not between
opposite sex partners.
i. TX was treating the same conduct differently based solely on the participants.
b. RBT: moral disapproval of a group is an interest that is insufficient to satisfy rational basis review
under the EPC. Must show some provable harm
c. Conduct vs. Status: TX claimed they were discriminating against homosexual conduct and not
homosexual persons:
E. DISSENT [Scalia, J., Rehnquist, J., & Thomas, J.]:
a. Stare Decisis: No reason to depart from past law
b. History of Anti-Sodomy Laws: general tradition of anti-sodomy laws
c. Foreign Nations Approach Irrelevant: in evaluating a constitutional entitlement, what counts is
solely the values and history of this country.
d. Rational Relation: TX interest was identical to that for laws criminalizing fornication, bigamy,
adultery, incest, bestiality and obscenity.
i. If the promotion of majoritarian sexual morality is not even a legitimate state interest,
none of the above-mentioned laws can survive rational-basis review.
ii. But in all these instances there is provable harm (except fornication) and under RBT,
the mere fact that a state can articulate some plausible danger posed by the conduct
(beyond mere moral repugnance) should be enough to satisfy the rational-relation
standard.
e. Homosexual Agenda: SC has taken sides in the culture wardeparting from its role as neutral
observer. Hes down for promoting agenda through democratic means. But: Court was allowing
gays to achieve judicially what they had been unable to achieve politically.
i. Gay marriage: if moral disapprobation of homosexual conduct is no legitimate state
interest what justification could there be for denying benefits of marriage to homosexual
couples?
1. Cant be justified as encouragement of procreationbecause sterile and
elderly are allowed to marry.
2. Majoritys insistence that Lawrence does not involve the issue of homosexual
marriage makes sense only if one entertains the belief that principle and logic
have nothing to do with the decisions of this Court.
F. IMPACT
a. RBT will continue to be applied to government attempts to regulate human sexualitybut clearly
with more bite.
b. Anti-Sodomy Laws: applying to both heterosexuals and homosexuals
i. Kennedy opinion suggests that these laws would be invalidthats why he didnt use an
EPC violation claim.
c. Gay Marriage
i. PRO: Liberty protects intimate contact as an element in a personal bond that is more
enduring. Could be extended to the element of having society recognize that the two
have created the bond.
ii. CON:
1. Criminalization of homosexual conduct demeans the lives of homosexual
personswhereas mere unavailability of gay marriages may not have the same
demeaning effect (or does it?)
2. Rational relation analysisSS is still not applied. States could still conjure up
the following:
a. societys special recognition of marriage is in part an attempt to further
the goal of encouraging men who father children to take a long-term
interest in the welfare of those children.
b. Straight men are far more likely to father children (and be more
encouraged by the availability of marriage to take an interest in the
child)
 c. When a social policy is evaluated by the rational-relation test, the fit
between the ends and the means need not be very tightlegislature
could plausibly have thought that there was some connection.
3. One step at a time: RBT test permits the state to combat an Evil one step at a
time. If state is tackling the evil of fathers abandonment of their children, the
fact that the state has done so by offering different-sex marriage and not by the
additional step of offering same-sex marriage should not be fatal.
4. Deeply Rooted Tradition: Bowers overstate tradition of anti-gay-sodocmy laws;
but tradition of ban on same-sex marriages is quite deeply rooted.
iii. POTENTIAL ISSUE: recognition of gay marriage that occurred in another state
1. Gay marriages are legal in Canada but may not be recognized by states.
2. Defense of Marriage Act (1996)authorizes states to ignore any same-sex
marriage granted by another state.
3. If SC decided that right to same-sex marriage is a substantive DP right then the
Act would be unconstitutionalmany conservatives are attempting to get C
amendment to ban gay marriages to preempt this.