Constitutional Law Outline

Key: Concentrate on getting to the burden because, unless it’s gender or illegitimate
children (IS), it’s likely decided once you get there.

Burdens:
Rational Basis: legitimate objective, rationally related
Strict Scrutiny: compelling objective, narrowly tailored (necessary)
Intermediate Scrutiny: important objective, substantially related

Applied to:
Suspect Classifications-SS
Fundamental Rights-SS
Quasi-suspect Classifications-IS
All else-RB

I. Introduction
Big picture themes:
• Rights of individuals against the government
• Division of power between the nation and the states
• Division of power among the three branches

A. An Overview of the Constitution

Purpose of the U.S. Constitution:
• Designed to distribute authority; not to say how issue is to be decided
• To correct defects of the Articles of Confederation-need government to be strong
enough, but not so strong as to endanger liberty

Mechanisms:
• Executive branch
• Direct taxation by federal government
• Increase in central government
• Regulation of commerce
• Federal judicial branch (so side-by-side state and federal courts)
• Limits of federal government
• Individual liberty (even prior to Bill of Rights) via separation of power in branches &
between state and federal governments

History
• 1787 in Philadelphia against the backdrop of a failed Articles of Confederation & pre-
existing state constitutions

Parts to remember:
• Article I-§8 (Enumerated Congressional powers including Commerce Clause,
Spending Power; Necessary & Proper Clause)
• Article IV-Full Faith and Credit (states obligations to other states)
• Article V-re. amendments to Constitution & “no state without its consent shall be
deprived of its equal Suffrage in the Senate” (huge compromise with direct
democracy b/c malaportioned)

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• Article VI-Constitution is the law of the land (Supremacy Clause)
o 1) States may not interfere with the Federal government (McCulloch)
o 2) Constitutional Federal action trumps inconsistent State action (Gibbons)
• Amendments (I-X=Bill of Rights; XIII-XV=Civil War Amendments)
o First-freedom of religion, press, expression
o Fifth-Due Process, takings
o Ninth-Rights reserved to the people
o Tenth-Powers reserved to States
o Thirteenth-Slavery abolished
o Fourteenth-applying other amendments to states; P&Is, DP, EP
o Nineteenth-Women’s suffrage (not that we studied it…)
*Most of amendments have been about procedural matters & most have resulted in
progressive democratization

Federalist Papers
• Stability & energy in government
• Constitutional Democratic Republic-some notion of popular will filtered through
representative government
• Constraints/vagueness: good, because room for compromise

B. The Judicial Role in Constitutional Law

Judicial Review
The power of the court to review a law or official act of government for constitutionality
• Court asserts power over the national government from the President on down…
• Source of power:
o Written Constitution requires enforcement body
 Courts b/c they are more independent of political pressure
o Job definition of judges
o Article III
o Supremacy Clause of Article VI
 State judges shall be bound by the Constitution; need to make sure
that State law does not conflict with the federal Constitution
 But, no mention made of conflict b/w Federal law and the Constitution
(like Marbury)
o Oath
• Counter-majoritarian quality
o But Constitution can be amended
o Constraints:
 Judges have to decide cases that are in front of them
 Court can only rule on cases that come before it
 Rulings come from the Constitution itself which is the result of a
super-majority

Case: Marbury v. Madison (1803)

Facts: new President Jefferson (via Secretary of State Madison) withheld Marbury’s
commission to Justice of the Peace in D.C. (had been appointed by President Adams).
Marbury sued for writ of mandamus (order of the court) in SC, claiming that SC had

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original jurisdiction by virtue of Judiciary Act of 1789 (which gave SC original jurisdiction
over writs of mandamus).

Held (Marshall):
• Article III §2 defines the Supreme Court’s jurisdiction
o Marbury’s case doesn’t fit into area in which SC had original jurisdiction
o Congress does not have power to modify the Constitution (area over which
SC had jurisdiction)
• Constitution Article III & Judiciary Act of 1789 (act of congress) conflictJudicial
Review by which courts are bound to follow the Constitution
o No point in having written Constitution if courts can just ignore it
o Court’s duty to decide which law applies
o Judge’s oath requires that they uphold the Constitution
o Supremacy Clause-Constitution over the laws of the US
Key: Supremacy of the Constitution & Judicial Review

II. The Scope of National Power

A. Introduction
• Federalism-allocates power between the Nation and the States
o Purpose of the federal system:
 National government with adequate power to handle matters of
national interest, while States retain autonomy over local affairs
 Important: foreign relations, prevent internal insurrections
o Why this federal system:
 States may be more responsive to local needs
 Autonomy of States may lessen the likelihood of social instability
 States may be laboratories for experimentation
 Less chance of tyranny when power is divided; check on abuse of
government power
 Encourages ability of people, individual liberty
o Supreme Court’s role in preserving this structure: policing power
o Set-up:
 Enumeration of national power in Article I, §8
 All power not delegated to the national government remains with the
States in 10th Amendment
• Sources of National Power
o Express or Explicitly Enumerated Powers (Article I, §8)
o Implied powers (i.e. McCulloch)
o Foreign Relations-federal government has full sovereignty of any other
nation, including implied powers to carry out activities (i.e. Curtiss-Wright)

Case: McCulloch v. Maryland (1819)

Facts: Bank of U.S. opened in MD & issued bank notes not on stamped paper (tax) as
required by MD statute for banks not chartered by State of MD (singles out U.S. banks).

Issues: 1) Does Congress have power to incorporate a bank?

2) Is the State tax on operation of a national bank unconstitutional?
Held (Marshall):

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1) Congress has the power to incorporate a bank
• Article I, §8 doesn’t say you can; Article I, §9 doesn’t say you can’tso you can
• Implicit in the structure of the Constitution
o Enumeration of powers (Article I, §8) implies the existence of those needed to
carry them out (Doctrine of Implied Powers)
• Confirmed by text of the Constitution
o Congress authorized to make “all Laws which shall be necessary and proper
for carrying into Execution the foregoing Powers…”
 Means of execution
 “Necessary” construed broadly
2) The State tax on operation of a national bank is unconstitutional.
• State can’t tax federal government because you can’t have part taxing whole
• Can’t single out the federal bank
Key:
• Broad Implied Powers win the day for the Federal government
• States may not interfere with the Federal government
• Responsibility of Congress to represent people as a whole (don’t’ risk part
determining whole problem)

Case: United States v. Curtiss-Wright Export Corp. (1936)

Facts: Wright contested embargo on arms sales to countries in armed conflict on
grounds that it was an unconstitutional delegation of power to the executive.

Held (Sutherland): Investment of the federal government with powers of external

sovereignty did not depend on affirmative grants in the Constitutionsource of authority
is extra-constitutional powers over foreign affairs (not from Constitution, but States don’t
possess it)

B. The Commerce Power (back to enumerated powers)

• Commerce Clause-Article I, §8 by which Congress has power to regulate Commerce
with foreign nations, and among the several States, and with the Indian tribes when
the legislation either regulates the:
 Channels of interstate commerce
 Instrumentalities of interstate commerce
 Activities that have a substantial effect on interstate commerce
o Dormant Commerce Clause-when Congress has done nothing:
 1) State still may not pass laws that discriminate against interstate
commerce
 2) States may not excessively burden interstate commerce by their
regulations

1. Early years:

Case: Gibbons v. Ogden (1824)

Facts: NY had granted monopoly over NY waters to Ogden; Gibbons was also running
boats b/w NY and NJ as per his U.S. license.

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Held (Marshall): NY law was unconstitutional because Federal government has authority
over interstate commerce (Commerce Clause) and the State law was in conflict with
federal (Supremacy Clause).
• Commerce Power
o “Commerce”-defined broadly (certainly includes navigation/transportation)
o “Among the States”-even if purely within one State, if it has an affect on
interstate commerce, it is w/in Congress’ authority
o “Regulate”-subject only to political constraints
• Congress’ Commerce Power is exclusive? Concurrent?

Case: Wilson v. Black-Bird Creek Marsh (1829)

Facts: DE authorized building of dam on navigable waters; D broke through and claimed
that the DE law was in violation of the Commerce Clause.

Held: No violation of Commerce Clause because Congress had passed no act coming
into conflict with State lawDormant Commerce Clause is not using the power you have

2. Middle Years:

Court’s approaches:
• Subject-matter distinctions like commerce/manufacture
• What states can’t deal with on their own
• Local v. national
• Direct v. indirect affect on Interstate Commerce
• Affect when taken in the aggregate

Case: Hammer v. Dagenhart (1918): Court strikes down prohibition on the interstate
transportation of goods manufactured in violation of child labor laws.

1936-Butler decided

Case: U.S. v. Darby (1942): Overrules Hammer. Court upholds prohibition on the
shipment of goods for interstate commerce that have been produced by employees
whose wages were less than minimum/hours more than maximum; also prohibits such
employment for shipment of goods in interstate commerce.

Case: Wickard v. Filburn (1942): Extends Darby to production not even intended for
interstate commerce on grounds that it still exerts a substantial economic effect on
commerce (especially when taken in the aggregate).

Case: Heart of Atlanta Motel v. United States (1964):

Facts: Hotel in GA solicited guests from outside State and then refused to rent to African
American guests in violation of the Civil Rights Act of 1964.
Held (Clark): Discrimination imposes ample burdens on interstate commerce.

Case: Katzenbach v. McClung (1964):

Facts: Ollie’s BBQ refused to provide sit-down service to African Americans in violation
of Civil Rights Act. Ollie’s didn’t serve to interstate travelers, but large portion of its food
traveled in interstate commerce.

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Held (Clark): Racial discrimination on the part of restaurants whose food travels
interstate, DOES impose burdens on interstate commerce.

Result: Congress has lots of power to regulate virtually all economic activities, no
matter how local.

3. Contemporary
*Interruptions of expansion of Commerce Clause; limits on what Congress can do

United States v. Lopez (1995)

Court held that Gun-Free School Zone Act which made it a federal crime to knowingly
possess firearms in a school zone, exceeded Congress’ Commerce Clause authority.
Congress may only:
• Regulate the use of the channels of interstate commerce
• Regulate and protect the instrumentalities of interstate commerce
• Regulate activities having a substantial relation to interstate commerce (read:
economic)

United States v. Morrison (2000)

Facts: Women is raped by 2 members of football team who make vulgar remarks and
alleges violation of VAWA (“all person within the US shall have the right to be free from
cries of violence motivated by gender”). She qualified since it was sexual assault in
violation of State law & motivated by gender discrimination. Congressional findings
showed affect of gender-motivated violence.
Held (Rehnquist): Congress did NOT have authority under the Commerce Clause to
enact VAWA. If anything, this law would only relate to Congress’ ability to “regulate
activities having a substantial relation to interstate commerce.” However, the link b/w
interstate commerce and gender-motivated violence was too attenuated (despite
engaging in less business activity, interstate travel, drop out of school, etc.).

Key: Lopez & Morrison bring back line between economic & non-economic activity (not
subject to Commerce Clause regulation)

What if Heart of Atlanta Motel were decided AFTER Morrison? Wouldn’t it come out
differently? Or is there really a distinction based on economic v. non-economic activity?

4. And Most Recently…back to broad Commerce Clause authority

Gonzalez v. Raich (2005)

Facts: CA Compassionate Use Act permitted seriously ill CA residents to have access to
marijuana for medical purposes. Congress’ Controlled Substances Act was enforced
against P user of marijuana.
Held (Stevens): Congress had authority under the Commerce Clause to enforce the
Controlled Substances Act. Rational basis to conclude that there is a connection b/w
this activity and interstate commerce (like Wickard). Result: Federalism is sacrificed (no
experimentation for CA).

Note: if Congress were to regulate more broadly, it might fall within its Commerce
Clause authority. Then, more specific laws could be enacted, pending political
constraints.

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Key: Remains to be seen whether economic/non-economic line will last (Congress has
pretty sweeping authority under the Commerce Clause so maybe Lopez & Morrison
were just blips)

C. State Autonomy Limits on Federal Regulatory and Spending Power

10th Amendment Challenges…

State Sovereignty:
• Prior cases (dealing with Commerce Clause) were about regulations of individuals
o State law says individuals can do one thing vs. Federal law says individuals
can do another thing. Federal law wins if the law is valid (validity is what we
were addressing).
o Remember: Federal government can regulate individuals directly, not just
through the States.
• These cases are about regulations of states, as states
o States not just acting as regulator of individuals, but as a business (employer,
supplier, buyer, etc.)

For example: Congress passes law regulating minimum wages to be paid employees.
The law is made applicable to States and well as private employers. Clearly, Congress
has power to pass the law under the Commerce Clause because of sufficient economic
effect on interstate commerce. But, are the States entitled some exemption, as states?
Here we go…up and down the hill…

Big picture: Why does Court try so hard to impose limits on Congress? Because
Federalism is essential and States have already been stripped of regulatory authority in
Federal government’s direct regulation of individuals.

Case: National League of Cities v. Usery (1976)

Court held that Fair Labor Standards Act of Congress that extended wage and hour
provisions to employees of the State was unconstitutional because it interfered with the
State’s ability to function effectively in a federal system (State sovereignty). Would have
affected policy choices, like where to put $, if they had to comply with federal standards.

Case: Hodel v. Virginia Surface Mining (1981)

Court lays out 3 requirements (balancing test) for State challenges to federal legislation:
1) Federal legislation regulates “states as states”, 2) Federal legislation addresses
matters of state sovereignty, 3) States’ compliance with Federal legislation would impair
their ability to structure operations in areas of “traditional government function”,

Case: Garcia v. San Antonio Metropolitan Transit Authority (1985)

Facts: After National League of Cities, Transit Authority told its employees that it no
longer had overtime obligations under Fair Labor Standards Act.
Held (Blackmun): National League of Cities overruled, as was, “traditional government
function” test; Congress had power under the Commerce Clause to regulate “States as
States”
• “traditional government function” test was inappropriate b/c it is undemocratic to
say that the judiciary could better tell what that meant (acting as state vs. not
acting as state)

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 • States’ sovereign interest is protected by structure of the Federal system (States
role in Federal government via Senators, Representatives)
o $ going to States from Federal government, States get exemptions
o But see counter-arguments:
 Piles of Federal regulations
 Powerful lobbies
 Connection to State interests is lessened when State legislators
become part of the Federal government

Back to National Power-The Spending Power (“General Welfare” Clause):

Issues:
• Monetary incentives vs. Coercion

Case: United States v. Butler (1936)

Facts: Congress’ Agricultural Adjustment Act (AAA) gave farmers a subsidy for reducing
crop area (to reduce surplus & raise pricesstability). Subsidy paid for by tax on the
processor of the commodity involved.
Held (Roberts): Although power to tax & spend is to be broadly construed (“to provide for
general welfare”), the ends of the AAA were illegitimate because federal government
could not regulate agricultural production (surrender by the States of essential power).
• Pressure of monetary incentives rose to the level of coercion
• Note: now, Congress would have power to regulate production under its Commerce
Clause power

Sabri v. United States (2004): Court upheld law which criminalized bribery of State or
local officials of entities that receive $10,000+ of Federal funds. This was within
Congress’ Spending Clause powers (general welfare) & Necessary and Proper Clause.

Back to State Sovereignty (Immunity from Federal regulations-“States as States”) after

Garcia

Case. New York v. United States (1992)

Facts: Congress’ Low Level Radioactive Waste Policy Amendments Act of 1985 sets
series of deadlines by which States must provide for disposal of waste generated within
their borders. Sets up incentives for compliance ($-ok under Spending Clause, Access
incentives-ok under Commerce Clause, Take Title provision whereby State would take
title to waste & be liable for damages)
Held (O’Connor): Take Title provision was unconstitutional since it made the States
comply; Federal government may not compel (coerce) the States to enact or administer
a Federal regulatory program.
• Forced compliance may create an accountability problem such that people don’t
know who to blame for having radioactive waste in their backyards
• Congress can’t compel States to take on liability ($)

Distinction b/w Garcia (Congress can compel-State acting as business) & New York
(Congress can’t compel-State acting as regulator):
• Garcia-adequate political check b/c it involved private sector & States objecting

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• New York-no adequate political check b/c just the States being regulated; possible
accountability problem

Case: Printz v. United States (1997)

Facts: Congress enacted Brady Act, with interim provisions requiring background
checks, etc. State and local law enforcement officers object.
Held (Scalia): Provisions were unconstitutional; Congress cannot command State
executive officials (here, state and local law enforcement officials) to enforce Federal law
• History-no history of this imposition on State legislatures/executive
• Structure of Constitution-Dual sovereignty means that can’t expand federal power so
much; also, don’t want to reduce Presidential authority by having State officials take
over
• Accountability problem
o $ that it will cost States to enforce Federal law
o Blame

Note: Purely ministerial reporting requirements imposed by Congress on State/local

authorities might be ok.

So…
Congress cannot coerce State legislatures to enforce Federal law
Congress cannot command State executive officials to enforce Federal law
But-Congress MAY order State judges to enforce Federal law
Why? Supremacy Clause of Constitution, courts don’t face same accountability problem

Analysis-ask:
1) Does Congress have the authority to control this activity (i.e. as per Commerce
power)?
2) Can State be required to do this?

III. The Constitutional Rights of Individuals Against Federal, State and Local
Government Behavior
A. Introduction – The Early Landscape
Always ask:
• Who possesses the right?
• Against what level of government?
• What is the source of the right?
• What is the content of the right (definition & scope)?

Individual Rights Protections:

• Divisions of authority-b/w nation & states; Separation of powers-3 branches
• Constitutional guarantees:
o Original Constitution (1789; pre-Bill of Rights)
 Article I, §9 (habeus corpus, no ex post facto laws)
 Article IV, §2 (Privileges & Immunities—“fundamental rights”)
 Article I, §10 (Contracts Clause-no impairment of Contracts Clause)
o Bill of Rights (Amendments I-X)-people possess the rights against the
national government
o Civil War Amendments (XIII-XV; 1865)-people against the States

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  XIII-(slavery) broadest limitation
 XIV-(P&Is, Due Process, Equal Protection) limits States
 XV- (vote) limits States and the United States
*See also: “natural justice” possibility argued about in Calder v. Bull (1798) that may limit
government’s authority to affect its citizens

Case: Corfield v. Coryell (1823)

(Privileges & Immunities of Article IV case)
Facts: PA citizen challenges NJ statute that made in unlawful for non-NJ
inhabitant/resident to take clams, oysters, etc.
Held (Washington): Not violation of P&I Clause; P&Is are “fundamental rights” (those
that belong to citizens of “all the several States” (not the same as fundamental rights in
the 14th Amendment)

Case: Barron v. Mayor and City Council of Baltimore (1833)

(Bill of Rights Case-pre 14th Amendment)
Facts: Barron claimed that City of Baltimore “took” his property without just
compensation by virtue of depositing silt in front of his wharf. Violation of 5 th
Amendment.
Held (Marshall): 5th Amendment was limitation solely on Federal legislation, NOT State
legislation….obviously changed after 14th Amendment.

Case: Dred Scott v. Sandford (1857)

(Due Process case-pre Civil War interpretation)
Court held that an Act of Congress, Missouri Compromise, which excluded slavery from
northern parts of U.S., was a violation of Due Process (taking of “property”)

Ratification of Civil War Amendments (1865-1870)

Case: Slaughter-House Cases (1872)

(Court’s first interpretation of Civil War Amendments)
Facts: LA legislature granted 25 year monopoly to 1 New Orleans slaughterhouse.
Butchers who are forced to either cease operations or slaughter @ monopoly
slaughterhouse for a fee, claim that the LA statute was a violation of 13th and 14th
Amendments.
Held (Miller): Upheld LA statute on grounds that neither the 13th or 14th Amendments
provided such general protectionsread VERY narrowly.
• 13th-court rejects “involuntary servitude” argument on grounds that individual choice
CAN be restricted
• 14th P&I-court says that the P&I clause is intended to prevent States from abridging
fundamental rights that are federal (privilege of conducting business belongs to the
States). Court relies on distinction between distinction between being a citizen of the
United States and citizen of a state (P&Is of the 14th only protected the former).
o Result: renders P&I clause meaningless b/c those rights were protected by
Supremacy Clause already.
• 14th EP-intended to protect African Americans from racial discrimination
• 14th Due Process-intended to protect African Americans from denial of legal
protections (no substantive meaning to Due Process)

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Result: P&I clause of 14th Amendment relatively meaningless; courts now rely on Due
Process (expansion of “liberty”) and Equal Protection (more than just race
discrimination) to apply Bill of Rights against the states.
B. Substantive Due Process and Economic Liberty
*The rise and fall of substantive Due Process as applied to economic regulatory
legislation…
• Due Process is a restraint on executive, legislative & judicial action.
• Due Process is not only a limitation on procedures that each branch must follow, but
also involves a substantive review of the outcome of their product.

Case: Slaughter-House Cases (1872)

No substantive meaning to Due Process (so no substantive review of economic
regulation).

Case: Munn v. Illinois (1876)

Facts: IL statute fixed maximum charges for the storage of grain in warehouses.
Held: Upheld; in line with Slaughterhouse cases. People must resort to the polls, not the
courts, for protection against legislatures.

1877-1900-Court broadens its interpretation of substantive Due Process re. economic

regulation. Up the hill…

Note: Corporations are now “persons” within the meaning of the 14th Amendment.

Case: Mugler v. Kansas (1887)

Facts: State law prohibited manufacture and sale of alcoholic beverages.
Held: Upheld; but, not all regulatory statutes will be upheld…Courts will intervene if the
statute has no real or substantial relation to public health/morals/safety OR is a palpable
invasion of rights secured by the fundamental law.
Case: Chicago M. & St. v. Minnesota (1890)
1st real Substantive Due Process for economic regulation. Court held unconstitutional a
state statute that regulated railroad rates and that forbid judicial review of rates set.

Case: Allgeyer v. Louisiana (1897)

Facts: State of LA forbid use of mail to enter into an insurance K with company not
licensed to do business in LA.
Held: Invalid; deprives D of liberty (here, labor) without due process of law (right of
contract).

Case: Lochner v. New York (1905)

Facts: NY labor law made it illegal for an employer to require or permit and employee to
work more than 60 hours/week, 10 hours/day. Law supposedly based on State’s using
its power to protect public health/morals/safety.
Held (Peckham): Invalid; labor is part of “liberty” within the 14th Amendment and this
statute is a deprivation of liberty. Health of bakers (stated purpose) was just a pretext for
doing something illegitimate, like equalizing the bargaining power b/w employers and
bakers.
Dissent (Holmes): “Liberty” of 14th Amendment Due Process should not invalidate a state
statute unless a “reasonable person” would say it infringes upon fundamental principles
of law. Not: even Holmes does not reject substantive Due Process entirely.

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**Is this “liberty” (here, freedom of K) an absolute right? No; test (standard) to be applied
to determine if such a statute is valid is:
• There must be a direct and substantial relation between the law and the purpose.
o Just needs to pass one of the purposes.
o But then, look to see the relationship.
o This is strict Due Process scrutiny

Result: Court, at this point, has come very far in applying substantive Due Process to
economic regulation.

1905-1930s further up the hill of substantive Due Process for economic regulations
(striking down economic regulations)…

Case: Weaver v. Palmer Brothers Co. (1926)

Facts: Statute forbid the use of shoddy fabrics in the manufacture of bedding, despite
the fact that sterilization could eliminate any danger.
Held: Invalid; violates Due Process since the absolute prohibition of shoddy is purely
“arbitrary.” Legislature could have come up with another solution besides an absolute
ban, in the interest of protecting public health.

Result: Court seems to be requiring MORE than direct and substantial relationship
between the law and the purpose. Thus, the court has limited States’ ability to
experiment (one of the issues of primary importance).

• What was wrong with Lochner?

o Legislature DID have a legitimate purpose in equalizing bargaining power
between employers & employees?
o Court substituted its own judgment for that of the legislatures
o States were left less room to experiment.

No Constitutional amendment to say so, but maybe economic regulations shouldn’t be

struck down (maybe regulation of the economy isn’t such a bad idea—depression era),
maybe substantive Due Process for economic regulations isn’t such a good idea. Down
the hill...

Case: Nebbia v. New York (1934)

Facts: NY statute set min/max prices for milk sales in an attempt to ensure adequate
milk supply & reasonable prices.
Held (Roberts): Upheld; not a violation of 14 th Amendment Due Process since the price
regulation was neither arbitrary nor discriminatory and had a “reasonable relation to a
proper legislative purpose.”

Result: Court changes the test!

• **A State is free to adopt whatever economic policy that has a reasonable relation to
a proper legislative purpose (i.e. to promote public welfare), and is neither arbitrary
nor discriminatory.
o Reasonableness standard
o Connection b/w law and purpose may be much more attenuated

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 o Presumption of Constitutionality-why?
 Legitimacy of elected representatives in a democracy
 Encouraging governing/experimentation
 Legislators have more competence/resources with respect to fact-
finding
o Much less use of substantive Due Process to invalidate economic
regulation…

Case: United States v. Carolene Products Co. (1938)

Facts: “Filled Milk Act” of Congress prohibited the shipment in interstate commerce of
skim milk compounded with any fat other than milk fat, so as to resemble milk or cream.
Held (Stone): Upheld; Congress has a rational basis to believe that this at would protect
the public from milk that was thought to be injurious to health.
Note: the 5th Amendment is triggered since it is Congress (not states)

Result: Complete abandonment of strict Due Process scrutiny for economic legislation.

• BUT MOST IMPORTANTLY…Footnote 4: Presumption of Constitutionality goes

away when legislation:
o Appears on its face to be within a specific prohibition of the Constitution (i.e.
first ten amendments)
o Interferes with the political process (b/c if political process doesn’t work, why
should it be left to the legislature…)
o Relates to discrimination (against discrete and insular minorities)
• However, presumption of Constitutionality doesn’t even go away with bad motives of
legislature (i.e. bribery in Daniel v. Family Security Life Insurance (1949))

Case: Williamson v. Lee Optical of Oklahoma (1955)

Facts: State statute prohibited people (read: opticians) from fitting or duplicating lenses
without a prescription from an ophthalmologist or optometrist, etc. Results in decreasing
business of opticians b/c people prefer one-stop shopping.
Held (Douglas): Upheld; no violation of Due Process clause of 14th Amendment.
Regulation may have had a rational relation to legitimate objectives.

Result: Court is not even requiring legislature to show actual purpose; the relationship
between the law and the legitimate, hypothesized purpose an be SO remote, as long as
it is positive.

Case: Ferguson v. Skrupa (1963)

Facts: State statute prohibits practice of debt adjustment (except as an incident to the
lawful practice of law). Results in putting debt adjustors completely out of business
(worse than opticians).
Held (Black): Upheld: no violation of Due Process clause of 14th Amendment. Up to
legislature to decide-polls, not courts.

Result: majority doesn’t even use a test; doesn’t even bother to look for a purpose.
Nevertheless, courts still (to this day) need to review and apply the rational
relation test to see if economic regulation satisfies Due Process.
Why?

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• Sends signal to legislatures that there needs to be legitimate public purpose behind
the law
• Court might enforce line between what is “public purpose” (ok) and “private purpose”
(not okay).

Legislation, if it is going to be invalidated, is done based on “takings” or Contract Clause.

Distinct application of substantive Due Process to punitive damages awards:

Case: BMW of North America v. Gore (1996) & State Farm Automobile Insurance Co. v.
Campbell (2003)
Facts: Enormous punitives on tortfeasor
Held (Kennedy): Invalid; violation of Due Process clause of 14th Amendment when there
are excessive or arbitrary punishments. Punishments must be “reasonable.”

Result: Distinction b/w application of substantive Due Process to most economic

regulation and application to punitive damages awards.
• Similar: risk of judicial overreaching
• Different:
o Limitations of punitives are on juries—can’t say, go to the polls
o Greater risk of arbitrariness with juries
o Don’t have similar incentives to defer to juries as the courts do with
legislatures

What is the difference between Due Process (liberty) and Equal Protection (equality) and
why do they seem to overlap so much?
Returning to substantive Due Process with respect to personal liberties, later…

C. Equal Protection and Economic Regulation

Originally, very narrow view of the EPC of the 14th Amendment (focused on race only, as
per Slaughter-House (1872) statements). But, see expansion…

Case: Gulf, Colorado & Santa Fe Railroad v. Ellis (1897)

Facts: Statute provided that Ps could recover attorneys’ fees in winning suits against RR
companies.
Held: Invalid; violation of EP since Ps and RR companies did not enter court on equal
terms.

Note: the Court has held that the Due Process Clause of the 5th Amendment forbids the
federal government from denying EP.

In 1937, Court changed approach to EPC (like Due Process):

3 strands of Equal Protection analysis-
• Suspect classifications (i.e. race, nationality, alienage, gender, legitimacy)-higher
standards of review whose classifications require special justification
• Classifications that burden a Constitutionally protected interest (fundamental
interest)-invalid if not closely related to important or substantial governmental
interests

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• Ordinary social and economic legislation-low standard of review; some relationship
b/w classification and state purpose

Remember:
• In Due Process analysis-look at the relationship between the law and the purpose
• In Equal Protection analysis-look at the relationship between the legislative
classification (who is favored vs. disfavored) and the purpose.

Case: Lindsley v. Natural Carbonic Gas (1911)

Held: Just need reasonable basis for law; don’t need mathematical “nicety; presumption
of Constitutionality.

Case: Railway Express Agency v. New York (1949)

Facts: NY traffic regulations made it illegal to advertise on vehicles, except by people
who were advertising their product on their OWN vehicle (anti-distraction ordinance).
-Classification: b/w those who advertise their own business (favored) and those who
advertise others’ businesses (disfavored).
-Purpose: traffic problem avoidance
Held (Douglas): Upheld; no violation of EP since the classification was related to the
purpose.

Result: Court upheld this classification, despite the fact that it was “underinclusive.”

Case: Williamson v. Lee Optical of OK Williamson v. Lee Optical of OK (1955)

Held: Upheld; no violation of EP despite underinclusiveness.

Case: U.S. Railroad Retirement Board v. Fritz (1980)

Facts: Congress discontinued dual railroad retirement and social security benefits for
SOME, but not all former rail employees on basis how recent (as opposed to how long)
employee’s RR service had been.
Held (Rehnquist): Upheld; no violation of EP because classification was rationally related
a purpose.

Case: Federal Communications Commission v. Beach Communications (1993)

Facts: Cable Communications Policy Act of 1983 (federal) provided for regulation of
cable TV facilities, but gave exceptions.
Held (Thomas): Upheld; no violation of EP (5th Amendment b/c Congress)

Result: any reasonable, conceivable state of facts will suffice for the rational basis for the
law.

Case: Heller v. Doe (1993)

Facts: KY statute applied a lesser standard for the involuntary commitment of mentally
retarded people than that required for the mentally ill.
Held (Kennedy): Upheld; not a violation of EP under rational basis review.

Result: Still applying low level rational basis despite particularly vulnerable population at
issue here.

Ideas behind the Court’s finding a “purpose” behind the law for EP analysis:

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• Articulated actual purpose-no; just asks too much of the legislature
• Actual purpose-might be good to do it as a check on the legislature, but it’s probably
not essential
• Identifiable purpose-might be good
• Reasonable presumption of purpose-getting closer
• Imagination-what the Court actually does for this level of review

Bottom line: Court has not invalidated legislative classifications involving solely
economic regulation…rational basis review is really ANY rational basis when it comes to
this kind of legislation. Gonna be a different story when it comes to applying “rational
basis” to other kinds of legislation…

D. Equal Protection and Suspect or Semi-Suspect Classifications

*Cases in which the classifying factor, rather than “burden on fundamental interest,”
gives rise to heightened standard of review.
(1) Racial Discrimination
*Core area for EP that Slaughter-House predicted…

-Segregation in schools and other public facilities

Case: Plessy v. Ferguson (1896)

Facts: Plessy, 7/8 white, 1/8 black, was imprisoned for violating LA Act that provided for
separate but equal RR accommodations.
Held (Brown): Upheld; no violation of EP on grounds that 1) EP was intended to protect
political equality, not social equality. 2) Classification was reasonably related to
promotion of the public good & not for annoyance or oppression of a particular class. 3)
No implication of inferiority. 4) Evidence of segregation in other areas (usages, customs
bullshit argument).
Dissent (Harlan): 14th Amendment guarantees social as well as political rights. no racial
distinctions (color-blind principle), no racial distinctions that imply inferiority, no caste
system (racial hierarchy), no interference with freedom of association.

Result: “separate but equal” doctrine.

And then, the big shift…

Case: Brown v. Board of Education (1954) & Bolling v. Sharpe (1954)

Facts: Segregated public schools
Held (Warren): Invalid; violation of EP (14th for Brown; 5th for Bolling); separate
educational facilities are inherently unequal, despite equivalent tangible factors.

Important principles:
• What Court is “thinking”: Equal Protection prevents legislation that implies inferiority
of some arbitrarily defined group.
• What Court is “saying”: Separation by race has a detrimental effect on minority
children and their education because it generates feelings of inferiority.
• Court can’t “say” what it “thinks” because the Court doesn’t want to make the
legislature, who has to carry out the remedy, look bad OR piss off the south. Thus,
make it about the kids…

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Result: Separate is inherently unequal.

Case: Johnson v. California (2005)

Facts: CA policy of segregating prisoners for up to 60 days after arrival (“to prevent
violence associated with racial gangs”).
Held (O’Connor): Invalid; violation of EP applying strict scrutiny. Prison officials could
address compelling interests in prison safety, but will have to demonstrated that race-
based policies are narrowly tailored to that end.”

• **Strict Scrutiny: Any racial classification must be justified by compelling

governmental interest and must be necessary to accomplish that interest.
o Presumptively unconstitutional
o Only justified by compelling State interest
o For classification to be justified, there can’t be another means of getting to the
same end (must be necessary).

Why are racial classifications subject to strict scrutiny (no deference to legislatures)?
Because it is more likely than not that a law will reflect racial prejudice.

Classifications (non school/public facilities related) disadvantaging racial minorities

Case: Loving v. Virginia (1967)

Facts: VA statute prohibited interracial marriage b/w whites and any other race (but not
between other races)
Held (Warren): Invalid; statutes violate the EPC of 14th Amendment; can be no law for
which there is no purpose other than to imply inferiority/create caste system. Purpose
here was to maintain “white supremacy” and employ invidious racial discrimination.
Note: discriminatory intent/purpose here.

Result: application of strict scrutiny.

Case: Palmore v. Sidoti (1984)

Facts: state court modified its judgment, giving white father custody of his daughter, after
child’s white mother remarried a black man. State court determined that this was based
on “best interest of the child”-she would experience “social stigmatization” were she to
live in an interracial family.
Held (Burger): Invalid; violation of EP; custody may not be denied solely based on racial
considerations.
Note: not the impermissible purpose here (as there was in Loving), but still prejudicial
effect. Even if judge acts for “proper purpose” and is correct about harm that may come
to the child, his decision is still a denial of EP.

Result: application of strict scrutiny. Official state action that creates a racial
classification that implies inferiority is a denial of EP whether or not it has permissible
purpose. Official action that reflects private prejudice is not okay because it
incorporates the prejudice into law.

Japanese curfew & evacuation cases

*Not based on race, but on national origin (same level of scrutiny, howeverstrict)
• What went wrong in the application of strict scrutiny? Court deferred to the military.

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Hirabayashi v. United States (1943) & Korematsu v. United States (1944):
Court upheld convictions of American citizens of Japanese descent who violated the
curfew/exclusion order. Based its decision on “adequate showing that person of
Japanese descent presented special danger in the context of war.”

Ex Parte Mitsuye Endo (1944)

Court held that although war relocation authority had power to detain initially, no
authority to subject concededly loyal citizens to its “leave” procedure. This was like
Palmore where the disfavored parties were admittedly good/loyal + no justification for
holding you/placing you because you might face prejudice.

(2) Discrimination Against Aliens

• What is an “alien”? Any non-citizen of the United States (gain citizenship by: being
born here OR being naturalized)
• In the area of alienage, States and local governments are subject to far more
rigorous scrutiny (presumptively impermissible) than the Federal government
(presumptively permissible). Why?
o Congress has power over immigration and naturalizationgreater power to
exclude aliens includes lessor power to disadvantage them
o Can have classifications disadvantaging aliens to encourage them to become
citizens
o Want Congress to be able to respond to emergency situations, matters of
diplomacy.
o bottom line: enough legitimate reasons for Congress to draw lines that their
lines can be presumptively Constitutional.
• Heightened level of scrutiny applied…but it’s certainly not always “strict scrutiny”
• See “political function” exception-can exclude aliens from positions of authority/ones
in which they would have discretion (i.e. police [carrying out policies with a gun],
teachers, probation officers)/those that go to the “heart of representative
government.” Why? State sovereignty issue.
Note: when States make laws that discriminate against aliens, they cannot rely on a
purpose that belongs to the Federal government (i.e. encouraging people to become
citizens). Thus, always ask: is the State law inconsistent with Congress’ possession of
exclusive authority?

Case: Graham v. Richardson (1971)

Facts: AZ law provided welfare benefits to all citizens, but only to aliens who had resided
in the US for 15 years +; PA law excluded aliens from certain welfare benefits
Held (Blackmun): Invalid; statutes violated the EPC on grounds that classifications
based on alienage were inherently suspect and subject to close judicial scrutiny.
• Why are classifications based on alienage inherently suspect?
o Group that is uniquely unable to participate in the political process because of
prejudice, inability to vote, may not be “virtually represented” (like children
are)
o Discrete (distinct, definable, readily identifiable)-yes, as per Carolene
o Insular (isolated, cut-off…from political influence)-yes, as per Carolene

Case: Bernal v. Fainter (1984)

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Facts: TX statute denies non-citizens right to become a notary public.
Held (Marshall): Invalid; statute violates EP. Does not fall into political function exception
so strict scrutiny applies.

Case: Matthews v. Diaz (1976)

Facts: Congress conditioned an alien’s eligibility for Federal medical insurance program
on continuous residence in US for 5 years and admission for permanent residence.
Held (Stevens): Upheld; no violation of EPC. Judiciary uses narrow standard of review
with respect to decisions made by the Federal government in the area of immigration
and naturalization b/c power over immigration is enumerated. Distinction does not imply
invidious discrimination.

Result: Rational basis seems to be applied to Congress’ classification of aliens.

Question: What is the difference between permanent residency and naturalization?

Discrimination against illegal aliens as applied to education (protection of personal

liberties)

Case: Pyler v. Doe (1982)

Facts: TX laws withheld State funds for education of children “not legally admitted” into
the US & authorized school districts to deny enrollment of such children.
Held (Brennan): Invalid; violation of EPC. Classification of these children is not
“suspect” (because they are unlawfully in the US) & education is not a “fundamental
right” (?) so no strict scrutiny need be applied. However, we are dealing with children
who:
• Did not choose to come in illegally
• Might become citizens someday
• Will be part of a caste system if they are left uneducated
Thus, more than rational basis review despite supposedly applying rational basis itself.
Stated purposes fall short:
• Economic harm to the State as a result of influx (w/education)-not so, because illegal
immigrants help the economy.
• Harm to quality of education in TX-no evidence of this
• No return on State’s investment if the kids leave-no showing that they do.

Result: Court is really applying something more than rational basis since it is inquiring
into the purposes, none of which are illegitimate, and invalidating the law.

Case: Martinez v. Bynum (1983)

Court upheld TX statute that denied education to minors who lived apart from their
parents for the primary purpose of attending the tuition-free school. Ok because this
was based on residence requirement for good of the State’s operation of its schools (but
was it really…)

(3) Gender Discrimination

Reasons for heightened scrutiny for sex classifications:
• History of discrimination against women (no vote, no property, no jury service)
• Sex is an immutable characteristic that is frequently irrelevant to legitimate purpose
• Congress’ actions support higher level of scrutiny (Title VII, ERA—well…)

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• Discrete characteristic-visible

Reasons why not…at least why not highest level of scrutiny:

• No insular group-CAN get virtual representation
• Slight majority
• Not related to original intent jurisdiction (14th Amendment race concerns)
• Women not as subject to prejudice (?)

Issues:
• Ask who is bringing the claim (man or woman)?
• Might the statute actually benefit women?

Case: Reed v. Reed (1971)

Facts: ID statute provided that males should be preferred to females in the choice of who
should administer an intestate estate (all else being equal).
Held (Burger): Invalid; violation of EPC. Classification (women v. men) was arbitrary and
not rationally related to the purpose of reducing the workload of courts in the area of
administrability (invalid subterfuge, anyway).

Result: despite using the works of rational basis review, the Court actually applied
heightened scrutiny in requiring the state to conduct hearings to ascertain the
qualifications of women and men on an individualized basisstart of intermediate
scrutiny.

Case: Frontiero v. Richardson (1973)

Facts: Federal statute provided that servicemen’s wives were immediately eligible for
benefits as dependants whereas a servicewoman, to claim her husband as dependant,
had to show that he was in fact dependent on her for ½ of his support.
Held (Brennan): Invalid; violation of 5th Amendment Due Process (EP) applying
heightened level of scrutiny.

Result: more than rational basis applied (this would have been ok under rational basis)

Cases that involve “discrimination” against men:

Why higher than rational basis review?
• Don’t want to reinforce stereotypes

Weak congruence b/w sex and alleged purpose (Craig, MUW, JEB) and stronger
(Michael M., Rostker)

Case: Craig v. Boren (1976)

Facts: OK statute prohibited the sale of 3.2% beer to males under 21 and females under
18.
Held (Brennan): Invalid; violation of EPC. Statute “invidiously” discriminated against
males 18-20 old. Court insists on plausible purpose (traffic safety), but decides that,
despite the fact that men are 10 times more likely than women to be arrested for drunk
driving, the classification is illegitimate. Don’t want to reinforce stereotypes

Standard applied (usually):

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• Intermediate: To withstand challenge, statute has to serve important governmental
objectives and be substantially related to those objectives.
o Court will insist on plausible purpose (won’t hypothesize one like in rational
basis review)
o Burden in on government to show empirical evidence to support its
generalization…and then may not even rely on empirical evidence if it may
enforce a stereotype.
o Can’t rely on impermissible stereotypes.

Case: Michael M. v. Superior Court (1981)

Facts: Under CA statutory rape law, illegal to have sex with a female (not the wife of the
perpetrator) under age 18. Result was that it only held males criminally liable.
Held (Rehnquist): Upheld; not a violation of EPC (after applying “intermediate” scrutiny-
classification must just bear a substantial relationship to an important governmental
objective. Purpose: to prevent illegitimate teen pregnancy (maybe). Classification
provides a deterrent for men (that the risk of pregnancy already has for women).

Result: Court may be applying something closer to rational basis; reluctant to strike
down because statutory rape laws are used when it might be hard to prove actual rape

Case: Rostker v. Goldberg (1981)

Facts: Congress excluded women from registration for the draft. Men brought challenge.
Held (Rehnquist): Upheld; no violation of 5th Amendment Due Process on grounds that
purpose of preparing for combat troops was closely related to exemption of women (who
were not eligible for combat.

Result: Rational basis + (not intermediate)? Court claimed it was showing deference to
the military despite the fact that generals were in favor of a gender-neutral draft; more
like deference to Congress regarding military affairs.

• Connection between Michael M. and Rostker: Court might have thought women
would in some way be benefited by virtue of the law’s being upheld; Court may have
thought that the laws reflected real gender differences (rather than just stereotype).

Case: Mississippi University for Women v. Hogan (1982)

Facts: Males excluded from enrolling in state-supported nursing school.
Held (O’Connor): Invalid; violation of EPC; exclusion of men perpetuates stereotype of
nursing as women’s job (male/females role reinforcement).

Case: J.E.B. v. Alabama Ex Rel. T.B. (1994)

Facts: Complaint by male D regarding striking all male jurors in the jury pool using
peremptory challenges (not for cause).
Held (Blackmun): Invalid; violation of EPC because reliance on stereotypes regarding
what men and women think results in enforcing prejudicial views.

Result: this is a bit over the top—probably should have been upheld.

Note: Court used the words “exceedingly persuasive” and “at least substantial relation to
an important governmental objective.” This suggests that the standard for sex
classifications has been left open (intermediate scrutiny +).

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Case: United States v. Virginia (1996)
Facts: VMI is only single-sex public school in VA (prior to force opening of Virginia
Women’s Institute for Leadership); military institute that produces citizen soldiers through
use of the “adversative method”
Held (Ginsburg): Invalid; violation of EPC; State’s justification for classification: 1)
diverse educational opportunities, 2) adversative approach would have to be modified
with women. Court: “deal with it.” And by the way, “separate is still not equal.”

Result: Court may actually be applying an even higher standard of review here (women
bringing the claim)

Case: Nguyen v. Immigration and Naturalization Service (2001)

Facts: Federal statute required U.S. citizen fathers to follow more complex procedures
than U.S. citizen mothers to establish citizenship of a nonmarital child. Fathers had to
take oath of paternity while child under 18.
Held (Kennedy): Upheld; no violation of EPC. The government’s classification is justified
by its objective of ensuring biological parent-child relationship exists (verifiable by
mother at birth, not father…)

Result: Court does not seem to be applying “at least” intermediate scrutiny (as it
consistently did for 20 years) since they are hypothesizing purposes. Hard to justify the
purpose of having a parent-child relationship when that can be shown by DNA tests.
This seems to be based on stereotype of women as caregivers.

Any distinctions b/w VMI & Nguyen?

• Nguyen rests on immigration & naturalization
• Nguyen is federal action
• Nguyen involves male complainant (so “seemingly” only disadvantages men…but
not so, since it reinforces stereotypes about women)

Bottom line: Articulation of standard remains consistent, but results are drastically
different…

(4) “Intent” & “Disproportionate Impact”

• Courts often say that, despite the fact that legislation doesn’t on its face trigger a
higher level of scrutiny, it may be triggered (look at 1. administration, 2. resulting
classification)
• For example, when statute on its face makes no racial classification:
o Statute may be administered in a way that results in racial discrimination
 i.e. Yick Wo Chinese laundry case-favored class: those who operated
in non-wooden buildings; disfavored class: those who operated in
wooden buildings. 100% of Chinese people denied licenses.
Unconstitutional on EPC grounds despite the fact that it would have
been subject to rational basis as an economic regulation.
o Statute that was not ostensibly designed to make discriminatory
classification, was actually based on race (etc.)
 i.e. Guinn v. U.S. OK Constitution limited voter registration to people
who could read/write section of Constitution (literacy test unless

22
 grandfathers were able to vote). Unconstitutional; ancestry was a
proxy for race.

Discriminatory purpose/intent (required) vs. disproportionate impact (relevant) re EPC:

• If there is evidence of discriminatory purpose (+ disproportionate impact, by
default)classification is subject to strict scrutiny
o May be possible to have discriminatory purpose without impact (i.e. case in
which segregated swimming pools were closed rather than being
reintegrated)
• If there is disproportionate impact by itselfmere rational basis (b/c EPC doesn’t
require proportionality)

Finding discriminatory Intent/purpose:

• Must have enacted the statute with the purpose of creating the adverse impact;
knowledge is NOT enough (i.e. because of the effects, not in spite of them).
• (past discriminatory purpose + present uneven impact = present
discriminatory intent when the connection between historical discrimination and
present uneven impact is closely related)
• Other factors that might suggest discriminatory intent:
o Departures from normal procedure (something out of the ordinary)
o Legislative history suggesting discriminatory intent

Case: Washington v. Davis (1976)

Facts: Qualifying test for positions of police officers in DC was failed by
disproportionately high # of black applicants. Classification: passers v. non-passers.
Held (White): Upheld (no intent); no violation of 5th Amendment Due Process (EPC) b/c
test is neutral on its face and rationally serves purpose intended (rational basis test
applied).

Result: Law is not unconstitutional solely because it has disproportionate impact. Impact
may be relevant to finding discriminatory intent/purpose (especially when it is hard to
explain on non-racial grounds) but is not conclusive.

Case: Village of Arlington Heights v. Metropolitan Housing Development Corp. (1977)

Facts: MHDC denied a rezoning request that would have allowed them to build multi-
family units for low and moderate income tenants.
Held (Powell): Upheld (no intent); no violation of EPC. MHDC failed to show that
discriminatory intent/purpose behind denial of zoning request.

Result: if a P can show that discrimination was even a motivating factor, then D will be
required to show that it was otherwise. Here, however, no showing that it was even a
motivating factor.

Case: Personnel Administrator of Mass. V. Feeney (1979)

Facts: Under MA law, veterans with passing scores on civil service exam were ranked
above ALL others. Result: more women disqualified since 98% of veterans were male.
Held (Stewart): Upheld (no intent); no violation of EPC. Adverse effect did not reflect
invidious gender-based discrimination (non-vet men were disadvantaged also).

Case: Columbus Board of Education v. Penich (1979)

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Facts: Schools remained segregated after Brown in 1954.
Held: Invalid (intent); violation of EPC. Past discriminatory purpose + present uneven
impact = present discriminatory purpose

Case: Castaneda v. Partida (1977)

Facts: Mexican-American man challenged his conviction of crime on the grounds that
the grand jury that indicted him resulted from discriminatory selection process (against
Mexican-Americans)
Held (Blackmun): Invalid (intent); violation of EPC. Partida made prima facie case of
discriminatory intent by showing that 79% of county was Mexican American with only
39% summoned to be grand jurors.

Result: statistics alone seemed to be enough to show discriminatory purpose (higher

standard of review?).

Case: Rogers v. Lodge (1982)

Facts: Burke County’s at-large voting system for seats on the County Board of
Commissioners had never resulted in election of black person, despite county’s
population being over 50% black.
Held (White): Invalid (intent); violation of EPC in maintaining at-large voting system.
District court had found discriminatory intent via: impact of past discrimination on blacks’
participation in the political process, officials unresponsive to needs of black community,
etc.

Case: Hunter v. Underwood (1985)

Facts: AL Constitution §182 disenfranchised persons convicted of crimes of moral
turpitude. Result: disenfranchised 10 times more blacks than whites.
Held (Rehnquist): Invalid (intent); violation of EPC. Evidence from convention showed
racially discriminatory purpose (zeal for white supremacy).

Result: even one discriminatory purpose will suffice for invalidating law (even if there
were non-discriminatory purposes also).

Note: need to look at the purpose when the statute was enacted.

How to reconcile these cases:

• No discriminatory intent found: jobs, housing
• Discriminatory intent found: school, jury service, political structure, voting
o Connection between historical discrimination and present uneven impact
more closely related
o Areas that are more Constitutionally troubling
o Areas that involve “group” rights

Bottom line: must be discriminatory intent (not just disproportionate impact), but there is
a line drawing problem when it comes to finding intent.

(5) Gender-Conscious Affirmative Action

Remember: broad discrimination in all areas of life won’t justify affirmative action in all
areas.

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Idea: Person “A” is discriminated against. Program benefits person “B” who shares same
trait with person “A.”

• Court says that it uses the same standard of review for classifications that
disadvantage or advantage women and minorities, but reality is that more
classifications that advantage (affirmative action) are upheld (so, really more like
rational basis?).
• Remember: ask if “benefited” party has been discriminated against in the sphere to
which the statute applies (aka close relationship b/w those injured and those
benefited). i.e. if you were discriminated against in employment and we give
employment benefit, it’s easier. It you were discriminated against in economics and
we give a property tax benefit, it’s harder.
• When the loss (cost of benefit) is distributable over a large population, the Court is
more willing to uphold the distinction.

Case: Kahn v. Shevin (1974)

Facts: FL had property tax exemption for widows, but not widowers
Held (Douglas): Upheld; no violation of EPC after applying rational basis. Purpose:
cushion the financial impact of spousal loss on the sex for whom that loss imposes
disproportionately heavy burden (reduce income disparities).

Result: despite applying strict scrutiny to gender-classification in Frontiero the same

year, Court here really only applies rational basis.

Note: this was not really an affirmative action program for women (in 1885)

Case: Califano v. Webster (1977)

Facts: section of Social Security Act allowed female wage earners to exclude 3 more
lower earning years than male counterparts. Result: women received higher monthly old-
age benefits upon retirement.
Held (per curiam): Upheld; no violation 5th DP. Purpose: reduce disparity in economic
conditions of men and women caused by history of economic discrimination.

Result: Intermediate scrutiny; statute (classification) was connected enough to the

purpose to be upheld.

Case: Orr v. Orr (1979)

Facts: AL statute imposed alimony obligations on men, not women.
Held (Brennan): Invalid; violation of EPC. No justification since financial considerations
are determined in hearings (gratuitous sex distinction). This kind of statute reinforces
gender stereotypes. + idea of one wins, one loses (not diffuse)

Case: Mississippi University for Women v. Hogan (1982)

Facts: Males excluded from enrolling in state-supported nursing school.
Held (O’Connor): Invalid; violation of EPC Although State recites benign compensatory
purpose of making up for past discrimination against women, women were NOT
discriminated against in this area (nursing). Danger of perpetuating stereotypes. +idea
that one wins, one loses (not diffuse)

Result: Court applies at least intermediate scrutiny.

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 (6) Race-Conscious Affirmative Action

Remember: like gender-conscious affirmative action programs, it is easier to uphold a

classification if the cost of the benefit is more broadly diffused. Why? If we are all
sharing the cost, it is easier to take. We don’t like to “take” from one person (idea behind
Eminent Domain compensation).

Issues with affirmative action:

• Don’t want to divide people on racial lines to create resentment
• Does it actually reflect prejudice?
• Does it imply inferiority?
• Does it reinforce/breakdown stereotypes?
• Does it breakdown the caste system (previous racial hierarchy)?

What standards of review?

• Strict scrutiny-yes, but classifications that disadvantage (never upheld) come out
differently than classifications that advantage (may be upheld)
• Intermediate scrutiny-maybe
• Rational basis-nope
• Color blindness-nope, but Scalia comes close

Case: DeFunis v. Odegaard (1974)

Facts: affirmative action program in state law school
Dissent (Douglas): Although preferences to one race over another are invidious and
violation of EPC, it would be okay to probe capacities of minority applicants differently
since the LSAT has questions touching on cultural background.

Case: University of California v. Bakke (1978)

Facts: UC medical school had special admissions program by which it reserved 16 of
100 places for minority students, selected by separate admissions committee
Held (Powell): Invalid; violation of EPC, applying strict scrutiny. Common ground of
Court, however: government could take race into account to remedy disadvantages as a
result of pas racial prejudice.

Result: Government-imposed racial classifications must be narrowly tailored to further

compelling governmental interests.
Case: Fullilove v. Klutznick (1980):
Facts: Minority Business Enterprise provision of Public Works Employment Act required
Secretary of Commerce to assure that at least 10% of grant amounts given would be
expended for businesses over 50% minority. Could grant waivers.
Held (Burger): Upheld; no violation of 5th Amendment DP (EP) on grounds that law was
narrowly tailored (strict scrutiny applied). + Congress could enforce remedial measures.

Case: Wygant v. Jackson Board of Education (1986)

Facts: Affirmative action protected recently hired minority school teachers from lay-offs,
despite customary order of seniority.
Held (Powell): Invalid; violation of EPC on grounds that stated purpose of correcting
“societal discrimination” was too broad (would need to show discrimination by particular
governmental unit).

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Case: City of Richmond v. J.A. Croson Company (1989)
Facts: Minority Business Utilization Plan of Richmond required contractors awarded city
contracts to set aside 30% of $ to MBE subcontractors. “Minority” included black,
Spanish-speaking, Indians, etc. Could grant waivers.
Held (O’Connor): Invalid; violation of EPC on grounds that law was not narrowly tailored
to compelling governmental interest (strict scrutiny applied). + States are limited in their
authority to introduce remedial measures. Would need to show evidence of specific past
discrimination (that for which they are responsible).

Clear burden shift to strict scrutiny

States must show:
• Identify compelling governmental interest
• Evidence of compelling governmental interest
o Compensating for past discrimination: “Societal discrimination” is not enough
of a basis for race-conscious remedial measures taken by States. But, it
doesn’t have to be a 1-1 correspondence either.
 Each individual community has to make its own findings of past
discrimination in order to come up with the compelling governmental
interest.
o Not supporting perpetuation of past discrimination
• Narrow tailoring-
o Care about beneficiaries (i.e. cannot include Eskimos without proof that
Eskimos are even part of the population)
o Flexibility of the consideration of race (how individualized vs. group review;
no rigidity)-i.e. no “quotas”
o Duration-temporary v. permanent (don’t want permanent)
o Considered race neutral-alternatives-probably don’t have to have “tried them
out”

Bottom line: don’t want it to look like a caste system (rigid, permanent, etc.), don’t want
to look at people as members of a group but as individuals

Case: Adarand Constructors v. Pena (1995)

Facts: Federal government had practice of giving general contractors on government
projects a financial incentive to hire subcontractors controlled by “socially and
economically disadvantaged individuals” (which presumed certain minority groups)
Held (O’Connor): Invalid?; violation of 5th Amendment DP (EP) applying strict scrutiny,
as did Croson to 14th Amendment EP. Congruence between 5th & 14th Amendment
analysis.
Dissent: Inconsistency in applying strict scrutiny to ALL race classifications, but
intermediate scrutiny to ALL gender classifications. Also, is it really so hard to tell
between “invidious” and “benign” classifications?

Result: ALL racial classifications will be subject to strict scrutiny without regard to who
adopts the plan (Congress, State, university, locality, etc.) at least in theory)

Reasons to treat affirmative action programs adopted by Congress less stringently than
those adopted by States:

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• 14th Amendment is a grant of power to Congress
• Congress represents ALL
• Racial oppression is more likely at the local level
• Congressional competence with respect to fact finding
• Congress is co-equal branch with Court
But they are supposedly treated the same…why? If we are going to hold firm to this
moral principle, we better not differentiate or we will lose traction re the public.

Case: Grutter v. Bollinger (2003)

Facts: U of M Law School has affirmative action admissions program that seeks to enroll
“critical mass” of underrepresented minority students.
Held (O’Connor): Upheld; not violation of EPC, applying strict scrutiny.
• Compelling governmental interest: achieving the educational benefits of diversity
(NOT remedying past discrimination). Court defers to UNIVERSITY. Can other
governmental entities rest of interest of “diversity.”
• Narrowly tailored: “diversity” is open-ended; time limit (sort of)
Dissent: Maintenance of elite law school is really the “interest”

Result: Deference to university in applying strict scrutiny. Why? Academic freedom

occupies a special niche in our society (as do “kids”). Plus, education makes civic
leaders which helps ALL.

Case: Gratz v. Bollinger (2003)

Facts: U of M undergraduate had race-conscious affirmative action program based on
point system.
Held (Rehnquist): Invalid; violation of EPC applying strict scrutiny. Compelling interest
was diversity, but use of race was not narrowly tailored. Individualized review was the
exception, not the rule. Use of point system was just too group oriented (you get x # of
points because you are a member of a group).

(7) Discrimination Against the Retarded, Homosexuals, the Elderly,

the Poor, Etc.

• “Rational basis” applied

• Remember: mental retardation & homosexuality are immutable characteristics…that
is what makes them different (and more protected against classifications)

Case: City of Cleburne v. Cleburne Living center (1985)

Facts: City ordinance required special use permits for group homes for the mentally
retarded. CLC was denied permit for home that would have housed 13 men and women
w/supervision.
Held (White): Invalid as applied in violation of EPC; no rational basis for denying permit
to group home for mentally retarded. This denial was purely based on irrational
prejudice.

Result: Rational basis applied. No heightened review for classifications disadvantaging

or advantaging the mentally retarded. Why?
• Not a suspect class
• Evidence of legislation intended to benefit mentally retarded-

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• Not politically powerless
• Rational basis may help allow for legislation that advantages the mentally retarded

But…is it really rational basis + (“second order rational basis review”)? Not really…
which brings us to the issue of Justice Marshall’s saying we should have a sliding scale
based on how invidious the classification is. Nope…we don’t want to sacrifice
predictability. We’ll just fudge it in the name of justicerigid standards applied less
rigidly.

Case: Romer v. Evans (1996)

Facts: CO’s Amendment 2 prohibited legislative, executive or judicial action designed to
protect homosexual persons.
Held (Kennedy): Invalid; violation of the EPC applying rational basis +. A2 classifies
homosexuals to make them unequal to everyone else. Only interest was animosity
towards homosexuals.

Result: Court seems to be assuming that we have so many anti-discrimination

protections now, that prohibiting inclusion of one is a departure from the baseline.

Case: Lawrence v. Texas (2003)

TX statute banning same-sex sodomy was unconstitutional (overturning Bowers v.
Hardwick)

Remember: even if the standard has to be rational basis, there is always rational basis +
which means the legislation can be invalidated. Like legislation against same-sex
marriage?

E. Fundamental Personal Rights (aka Substantive Due Process as Applied

to non-economic (read: contract) areas

• Note how the Court is so much more willing to impose its will on the legislatures in
these areas…
• This is the Court finding “fundamental rights” so that SS will be applied (usually).

Case: Meyer v. Nebraska (1923)

Court found unconstitutional (violation of Due Process) a statute that forbid the teaching
of foreign languages. Right to teach was within the zone of Constitutionally protected
“liberty.”

Case: Pierce v. Society of Sisters (1925)

Court found unconstitutional (violation of Due Process) a law that required parents to
send their children to public schools. Right to control children’s education was within the
zone of Constitutionally protected “liberty.

Case: Skinner v. Oklahoma (1942):

Court found unconstitutional (violation of Due Process) a law that required compulsory
sterilization of people convicted 2+ times of crimes of “moral turpitude.” Right to
procreation is derived from substantive Due Process.

Case: Griswold v. Connecticut (1965)

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Facts: CT statute made it illegal for anyone (including married people) to use
contraception OR assist (aiding and abetting) someone to use contraception. Stated
purpose is to protect marital fidelity. Background: Planned Parenthood clinics were
being opened.
Held (Douglas): Invalid; not relying on substantive Due Process (because we don’t “do
Lochner)….but, this is a violation of the “right to privacy”.
Source of the right of marital/familial/child bearing/sexual privacy
Emanates from each of the following amendments to create a zone of privacy
(penumbra) when, taken in the aggregate, creates an overall right to privacy
• 1st Amendment-right of association (later construed as privacy of thoughts)
• 3rd Amendment-right against quartering of soldiersprivacy of the home
• 4th Amendment-right against searches & seizuresprivacy of the home
• 5th Amendment-right against self-incriminationprivacy of thoughts
Concurrence: 9th Amendment says that the enumeration should not be construed to
deny rights retained by the people (i.e. personal, unenumerated rights, natural rights?
that judges should define)

Note: right to contraception later extended to non-married persons in Eisenstadt (1972)

Result: back to how to justify non-enumerated rights as having sufficient Constitutional

basis to invalidate laws.

“Privacy” will be construed in different ways:

• Griswold-privacy as protecting private matters from disclosure
• Roe-privacy as protecting personal autonomy (interest in making certain decisions)

Family and Marital Relationships

Case: Moore v. City of East Cleveland, Ohio (1977)

Facts: Ordinance limits occupancy of unit to single family and defines “family” very
narrowly. Purpose is to prevent overcrowding.
Held (Powell): Invalid; violates 14th Amendment substantive Due Process, applying
heightened level of review since the ordinance intrudes on the family relationship. This
is the freedom of personal choice in family life. Particularly important given our history.
Purpose is legitimate, but means are too tenuous.

Result: Expansion of substantive Due Process rights beyond marriage and childbearing
decisions. “Families” relate to childbearing, which the State has an interest in promoting.

Judicial Identification and Enforcement of Unenumerated Rights (unspecified

fundamental rights adjudication)
Court is in the middle ground (not “just say no to judicial enforcement of unenumerated
rights” and not “total subjectivity”):
• Implicit in the concept of ordered liberty
• History & tradition
• Penumbras & emanations

Case: Zablocki v. Redhail (1978)

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Facts: WI statute required court permission to marry for those who had a minor child not
in his custody, but for whom he was required to pay child support (need to prove
compliance w/support order & show child not likely to become “ward” of the state).
Held (Marshall): Invalid; violation of DP & EP applying heightened standard of review on
grounds that right to marry is fundamental (history & tradition).

Note: this is subject to higher standard of review because right to marry is “fundamental”
whereas freedom to contract is not; but not all regulations involving marriage will
necessarily be subjected to rigorous scrutiny.

Question: why use EP over DP?

Case: Michael H. v. Gerald D. (1989)

Facts: CA law said that child born to married woman living with her husband is
presumed to be a child of that marriage, as long as the husband is not impotent or
sterile. Presumption rebutted only by husband or wife and only in limited circumstances.
Michael H. (bio dad) wanted visitation rights with his daughter).
Held (Scalia): Upheld; no violation of Due Process on the grounds that there is no
“fundamental right” in exercising a parental right over a child born into another family.
No “history” of treating Michael H’s situation as being part of a protected family unit.
State’s purpose: aversion to declaring children illegitimate, promote tranquility of family.

Result: Court relies on “history and tradition” as the source of unenumerated rights, but
does it in the most specific way possible (to curtail judicial overreaching)-whether a
natural father’s relationship with a child whose mother is married to another man has
enjoyed such protection…rather than whether “parenthood” has enjoyed such protection.

Issue: look at tradition broadly or narrowly to construe the unenumerated right?

Case: Troxel v. Granville (2000)

Facts: WA statute permitted any person to petition for visitation rights at any time and
authorized the court to grant visitation whenever it served the “best interest of the child”
Held (O’Connor): Invalid; violation of Due Process right of parents to direct children’s
upbringing.

Personal Autonomy

Roe v. Wade (1973)

Facts: TX statute made it a crime to procure an abortion except for saving the life of the
mother. Justification: protect health of the mother & protect potential prenatal life
Held (Blackmun): Invalid; violation of Due Process.

• Right to privacy is one of the liberties that is protected by the Due Process clause
and is broad enough to encompass women’s right to choose to terminate a
pregnancy.
o Right to privacy: procreative autonomy (right to use contraceptives), bodily
autonomy, autonomy over medical decisions.

Relying on tradition, if question had been, “have our laws historically protected the right
of a woman to terminate her pregnancy,” the answer would have been “no”

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Since a restriction on a fundamental right triggers strict scrutiny, the regulation must
serve a compelling governmental interest that is least restrictive (narrowly tailored) of
that fundamental right.

Interests:
• Maternal health
• Potential life of a fetusif the compelling point were from the beginning, then all the
laws would be fine Court chooses viability for when the State interest becomes
“compelling”

Result: trimester system-

1st-mother & dr. decide
2nd-State can regulate in ways that are reasonably related to mother’s health
3rd-State can even ban abortion in the interest of protecting fetal life UNLESS it’s
trumped by the health of the mother

Case: Planned Parenthood v. Casey (1992)

Facts: PA Abortion Control Act required: Dr. to provide info. to women seeking abortion
(to dissuade) + waiting period; minor to obtain consent; married woman to sign
statement saying her husband had been notified (or physically harmed if she told him);
public report on abortions performed
Held (O’Connor): Upheld except husband notifications requirement because that was an
“undue burden.” Roe upheld (sort of), but trimester framework rejected in favor of “undue
burden” (if a law has the purpose or effect of placing a substantial obstacle in the path of
a woman seeking to exercise her right to abort a nonviable fetus). Seems to downgrade
fundamental right to “liberty right.”

Result:
Reaffirmed-
• Before viability, State may not interfere (at least unduly) with woman’s right to
terminate
• Post-viability, State may restrict/ban except it’s trumped by the health of the mother
o Reaffirmed in Stenberg (partial-birth abortion case) in which Court insists on
exception for health of the mother

Departure-
• Undue burden replaces trimester framework (if State tries to impose an undue
burden, it will be subject to strict scrutiny)
• Coercive (impermissible) vs. persuasive (permissible) to try to prevent a woman from
having an abortion
• Courts must decide based on each regulation

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