Fall 2011 Constitutional Law Prof.

Wermiel Outline

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FEDERAL JUDICIAL POWER A. Article III 1. The federal government is a government of limited powers, which means that federal action must be authorized. The Constitution is the instrument, which authorizes the federal government to act. Thus, whenever a question involves action by an entity of the federal government, it will only be valid if authorized by the Constitution. The Constitution authorizes a federal court system in article III, which provides that federal courts have judicial power over all cases and controversies. a. Arising Under the Constitution b. Admiralty and Maritime c. When the U.S. is a party d. Between two or more states e. Between a state and citizens of another state f. Between a state and foreign states or citizens B. Judicial Review -The Power of the Court to Review Other Branches of the Federal Government 1. The Supreme Court does not explicitly state that the Supreme Court may determine the constitutionality of acts of other branches of government. However, judicial review of other branches of the federal government was established by Justice John Marshall in: a. Marbury v. Madison Facts: Adams appointed chief justices last minute, however, Jefferson blocked the commissions from being delivered. Marbury, one of the appointed justices, brought suit requesting the Supreme Court issue a Writ of Mandamus. Rule: Supreme Court has the authority to review legislative and executive actions. Importance: Extreme Lengths Marshall went to, to establish the role of the Supreme Court Marshall did not dismiss the case for lack of jurisdiction Declared the president and state had acted illegally by denying Marbury his legal right Court declared a congressional action unconstitutional by finding that the Judiciary Act was unconstitutional Courts Findings: Marbury had a right to the commission because it was a direct mandate of the president. Once appointment made commission signed seal affixed commission is complete. Marbury should be afforded a remedy because were a government of law not men. Supreme Court authorized to issue writ. Question: Article 3, Section 2, Clause 2 states that the SC can have original jurisdiction with such exceptions as Congress shall make, so was Marbury wrong for asking for the writ? What cases fall under the category of exceptions, as Congress shall make? * Consider this, and the fact that the case could well have been argued a different way * II. JUSTICIABILITY A. Justiciability Doctrine Judicially created limits on the matters that can be heard in federal courts. Some are Constitutional and cannot be overridden. SC wants to preside over real cases where parties have a direct interest in the outcome of the case. Ensures that the courts are hearing actual disputes with legal questions, that the dispute is being argued at the right moment (not too early or too late), and that the people bringing the case are the real injured parties. B. Five Pieces of Justiciability: 1. Advisory Opinions (cannot be)

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Supreme court will not render an advisory opinion to Congress or President on the constitutionality of some contemplated action or legislation because such an opinion does not involve a case or controversy. Hayburn Facts: Involved a law that called for the Supreme Court to give their opinion as to whether veterans were eligible for pensions. Once the SC gave their opinion, the war secretary would decide whether to award the pensions. The SC was basically was basically give their opinion which is not the purpose of the SC. Rule: Supreme Court should not dispense opinions as a matter of free advice. Finding: Supreme Court cannot preside over the matter because it is an instance of SC just giving advice because the war secretary can choose to accept or reject SCs decision. b. Supreme court cannot give their opinion. There must be an actual dispute between adverse parties. Article III controls the duties of Supreme Court (cases and controversies, not offering advice). c. The SC plays a specific role in the government, which does not include political advice, controversies or advisory opinions. d. Side Note: One reason for having an advisory opinion is to know what the law is, whether that law is constitutional or not (i.e. Guantanamo and wire tapping) e. Example: George Washington wanted the Supreme Court to give him guidance about reparations for war veterans and the SC said it couldnt do so their reasoning was that the SC can only preside over cases and controversies (derived from Article III). Standing (Must have) a. Standing concerns both the case and controversy requirement of Article III and prudential principles of judicial self-restraint. The second concern which is judicially self-imposed policy limitation, is not always clearly distinguished from the constitutional limitation. b. Standing merely allows the plaintiff to get into the court. c. One possible reason for the standing requirement: It would not make sense for people to be able to file a lawsuit every time you got mad at congress or the president. To appear before the court, you have to have real parties with real interests at stake. d. Three requirements for standing: Direct and Immediate Injury: Must have actually been harmed by a federal action of some sort, it cannot be preventative. You must be among the injured when challenging a statute or other action. The injury does not need to be economic No general tax-payer standing Injury Example: A statute making it a crime to be a communist party member may be attacked by a communist party member as denying freedom of association, because a member suffers direct and immediate personal injury due to the statute. Lack of Injury Example: Would not be considered an injury if congress filed a claim that President is undermining their vote. Not a specific enough injury. Causation (Injury traceable to Ds actions): There must be a reasonable link between the legislation and the harm. The injury must be traced to the challenged action and one that will be redressed by the remedy sought. Redress (Court must be able to provide relief): The Court must be able to redress the problem. If asking for an injunctive order for something that cannot be injuncted, then no standing. If asking for damages when no damages could possibly be assessed, then no standing. o Allen v. Wright Facts: Several parents of black public school students bring suit against the IRS, alleging the IRS to have extended tax-exempt status to private

Fall 2011 Constitutional Law Prof. Wermiel Outline schools, which have engaged in discriminatory practice. The IRS is not supposed to extend exempt status to such institutions. Alleged Injury: (1) Harmed directly by IRS extending exempt status to discriminatory private schools. (2) Desegregation of public schools impaired by IRSs financial assistance to private schools. Holding: The link between lax IRS policies and the continued segregation of public schools was too tenuous to provide standing. i. No proof was offered to show that if the IRS denied tax-exempt status to any particular school that the school would change its discriminatory policies or that parents would stop sending their children to these schools. ii. None of the parents in the suit had children that attended or applied to the private schools. City of LA v. Lyons Facts: Lyons filed a complaint for damages, injunction, and declaratory relief against the city of Los Angeles and four policemen, alleging that after being stopped for a routine traffic violation, he was placed in a chokehold rendering him unconscious and causing damage to his larynx. City of LA v. Lyons Facts: Stopped by police, he offered no resistance or threat, but police issued chokehold that knocked P out. P suing for injunctive relief on chokehold technique Holding: In order for a person to have standing to seek an i. Injunction, the individual must allege a substantial likelihood that he or she will be subjected in the future to the illegal policy. Lyons did not show that there was a substantial likelihood he would be subject to chokehold again. Lufjan v. Defenders Facts: Challenged Endangered species act which said that US doesnt regulate government activities outside US. Ps claimed that failure to comply with the act increased rate of extinction. Holding: Court applies Lyons and stated that Ps lacked standing because they couldnt show likelihood that they would be injured in future.

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Ripeness a. The Court will not hear cases about laws that have not been enacted yet. They are not ripe. A federal court will not hear a case unless the P has been harmed or there is an immediate threat of harm. Poe v. Ullman: Married woman for whom pregnancy was medically unadvisable filed lawsuit challenging a Connecticut law preventing distribution of contraceptives. Nonjusticiable because there had only been one prosecution in 80 years and contraceptives were available in drug stores. Mootness a. There must be a real, live controversy at all stages of review. The only exception to this is if there is a possibility of repetition while evading review. If a case has been ruled on, and is in the appellate process, which is the cause of the mootness, then the court might hear it anyways. Roe v Wade Since the whole thing was bout her pregnancy, she obviously was no longer pregnant when the SC heard her case 3 yrs later. The court held: Pregnancy hopefully will be with us for a while, and so this issue has the possibility of repetition while evading review, so it is no longer moot. DeFunis v Odegaard

Facts: P, white male, denied admission to University of Washington Law School. Filed suit on ground that affirmative action program denied him equal protection. He received preliminary injunction and was allowed to attend school while suit was pending. By the time case reached Supreme Court, P was 3L. University said that he would be allowed to finish school no matter what the court rules The difference from the above is that Roe could get pregnant again. But P will not apply to and be denied from that school again. So there is no chance of repetition without review. Thats the difference. No chance of repetition 5. Political Question a. There are just some parts of the Constitution best left to the branches of government to interpret and enforce. Nixon v US Issue: Nixon is an impeached judge, who refused to resign, and so kept getting paid in jail. He claims that because his impeachment hearing was not held before the entire senate he should not have been impeached. The senate made a committee to hear all of the evidence, etc, who then made a report, sent it to all of the senators, who all voted. Court says: The impeachment power is a check against the judicial branch, and question, and we cannot interpret. III. FEDERALISM A. Congress Power to Act 1. Congress may act only if there is express or implied authority in the Constitution (many enumerated powers are Article I, Section 8herein granted). Auxiliary power under Necessary and Proper States may act unless it is prohibited by Constitution McCulloch v. Maryland Facts: Maryland law required that any bank not chartered by the State to pay taxes. Imposed a tax on Bank of America Rule: Congress has the power to charter banks since that power is appropriate to executing Congresss enumerated powers to tax, borrow money, regulate commerce Congress able to create the bank under necessary and proper clause. Limitation: Congress cannot adopt a law that is expressly prohibited by another provision of the Constitution B. Commerce Power 1. The powers of congress are primarily derived from Article I, 8, clause 3. The primary questions regarding the commerce clause are: What is commerce? Is it one stage of business or all stages? What does among several states mean? Is it limited by the Tenth Amendment Gibbons v Ogden (1824) o Facts: New York Legislature gave a monopoly to steamboat operating company. That company gave Ogden a license. Gibbons operated a competing steamboat service o Rule: Commerce is every species of commercial intercourse, which concerns more states than one. o Among several states was intermingled state affairs. Congressional power should extend to the regulation of all aspects of commerce, and can override state laws that conflict 2. 1890-1937: Narrow Construction of Commerce Power The court was filled with conservative/laissez-faire judges Many federal laws were invalidated as exceeding the scope of the commerce power Notion that manufacture and production were not considered commerce. Commerce is the trading and sales of goods. Manufacturing not a part of that.

Fall 2011 Constitutional Law Prof. Wermiel Outline Regulation of wages and working conditions not commerce. Two problems: wages and hours and working conditions were local activities. Commerce must be interstate. 2. Rules about wages and hours were largely concerned with manufacturing and production, NOT COMMERCE. Hammer v. Dagenhart: o child labor case- Federal law prohibited shipment of interstate commerce of goods produced in factories that employed children under age 14. o Although the law only regulated the goods, the Court declared it unconstitutional because it actually controlled productionan activity that is reserved for states. 1937-1995 Broad Commerce Clause Powers Not one federal law was declared unconstitutional as exceeding the scope of commerce power. The New Deal created a change in constitutional law because the Court no longer approved of laissez-faire economics. Three decisions overruled earlier decisions of Supreme Court and expanded the commerce power by no longer distinguishing between commerce and other stages of business. NLRB v Jones (1937) o Federal statute regulating fair labor standards. Jones had violated act by discriminating against workers who wanted to join a labor union. o Rule: Although activities may be intrastate in character when separately considered, if they have such a close and substantial relation to interstate commerce that their control is essential or appropriate, Congress may regulate them. US v. Darby o Congress passed the Fair Labor Standards Act to regulate many aspects of employment including minimum wages, maximum weekly hours, and child labor. Corporations that engaged in interstate commerce or produced goods sold in other states were punished for violating the statute. o Rule: the "motive and purpose of a regulation of interstate commerce are matters for the legislative judgment . Congress acted with proper authority in outlawing substandard labor conditions since they have a substantial impact on interstate commerce. o Manufacturing is not commerce, the shipment is commerce. They are regulating the shipment, not the manufacturing o Overrules Hammer (child labor case). o The law is constitutional so long as it stays within the scope of Congresss power. This stayed within the scope and did not infringe on 10 th amendment Wickard v Filburn (1942) o Local farmer was producing wheat, most of which was for personal use. Excess wheat still affected commerce because it reduced the amount of wheat Filburn would buy for his own personal usage, and since wheat is traded nationally, it did indirectly affect commerce o Rule: Even if an activity is local and not regarded as commerce, it may still, whatever its nature, be regulated by Congress, if looked at cumulatively throughout the country, it has a substantial economic effect on interstate commerce Heart of Atlanta Motel v. United States o Facts: Title II of the Civil Rights Act of 1964 forbade racial discrimination by places of public accommodation if their operations affected commerce. The Heart of Atlanta Motel in Atlanta, Georgia, refused to accept Black Americans and was charged with violating Title II. o Rule: The applicability of Title II was "carefully limited to enterprises having a direct and substantial relation to the interstate flow of goods and people . . ." The Court thus concluded that places of public accommodation had no "right" to select guests as they saw fit, free from

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governmental regulation. A large amount of patrons were from out of state, and it was located near interstate highways. This was decided on Commerce clause, not Equal Protection (because Civil Rights Act only applied to government, not private activity. Congress able to control private through Commerce). Katzenbach v. McClung o Facts: Ollie's Barbecue was a small, family-owned restaurant. In a typical year, approximately half of the food it purchased from a local supplier originated out-of-state. Difference from Heart of Atlanta, Ollies was mostly serving local families. Supplier is local, but the supplier gets his food from out of state. o Rule: Because food originated out of state, the U.S. Supreme Court held that Congress had the power, under the Commerce Clause, to ban racial segregation in the restaurant. Narrow Commerce Clause 1995 - Present In mid 90s, Supreme Court shifted attitudes about the Commerce Clause and once again began limiting Congress power. United States v. Lopez o Facts: Gun-Free Act of 1900- makes it a federal offense for any person to knowingly possess a firearm in a school zone. Lopez, in 12 th grade, brought a gun. School authorities stopped him when they got an anonymous tip. Federal agents charged him with violating Gun-Free School Zone act. o Rule: Congress may regulate three categories of activities: The use of the channels of interstate commerce (Darby, Heart of Atlanta) (channels are roads, highways, rivers, airports, etc). Regulate instrumentalities of interstate commerce (boats, planes, cars). Congresss commerce authority includes power to regulate activities having a substantial effect to interstate commerce (Jones Steel, activities that greatly effect interstate commerce) When is it a substantial affecti. Is it a commercial transaction- More likely to survive ii. Findings- Hearings and expert testimonies that are presented to commerce and appear in the Bill. Congress lists how this Act affects interstate commerce. The court doesnt have to accept these findings. iii. Jurisdictional element- Heart of statute. in interstate commerce part of statute. Difference between findings is that jurisdiction must be proved in court of law (ie travelling with a gun interstate). Congress more likely to succeed in an Act if it is economic in nature United States v. Morrison o Facts: Violence Against Women Act had several provisions. P raped, she sued in US district court as part of the Violence Against Women Act of 1994. Section 13981 creates a cause of action for a victim to sue the perpetrator for damages. o Rule: While we need not adopt a categorical rule against aggregating the effects of any noneconomic activity in order to decide these cases, thus far in our Nations history our cases have upheld Commerce Clause regulation of intrastate activity only where that activity is economic in nature **Gonzales v. Raich o Facts: Comprehensive Drug Abuse Prevention and Control Act of 1970makes it unlawful to manufacture, distribute, dispense, or possess any controlled substance except in a manner authorized by CSA. Defendant Angel Raich used homegrown medical marijuana, which was legal under

Fall 2011 Constitutional Law Prof. Wermiel Outline California law, but illegal under federal law. Federal Agents destroyed her homegrown cannabis. o Rule: This is like Wicker v. Filburn (the farmer couldnt use his own grown wheat). The difference in this case is that marijuana is illegal outside of California; therefore it would have no effect on the economy! The court uses Controlled Substances Act, which regulates all drugs, legal or illegal. Its all one market. By using her own marijuana, D was not buying other drugs to control the pain of her cancer o Rehnquist uses the necessary and proper clause to justify a commerce power which is unsual US v. Stuart 348 F.3d 1132 (2003) o Stuart made a machine gun in basement out of spare parts. Federal crime to possess a machine gun. 9th circuit said the law did not apply to Stuart because there is no interstate commerce. C. Dormant Commerce Clause: State and local laws are unconstitutional if they place an undue burden on interstate commerce 1. No constitutional provision that expressly declares that states cannot burden interstate commerce, but Courts have inferred this from the grant of Congressional power to regulate commerce 2. State or local regulations that discriminate against interstate commerce to protect local economic interests are almost always invalid. 3. Commerce clause has two main functions: a. Authorization for congressional action b. Limit State and local regulation (dormant commerce clause) 4. Support for dormant commerce clause: a. Framers intended to prevent state laws that interfered with interstate commerce b. There is economic justification: Economy is better off if state and local laws impeding interstate commerce are invalidated c. State and citizens should not be harmed by laws in other states where they lack political representation HP Hood and Sons . Du Mond, Commissioner of Agriculture and Markets of New York Facts: Hood was a milk distributor in Mass. but purchased the milk in NY. where it operated three receiving depots. Denied an additional license. Rule: Commerce clause gives Congress the power to regulate interstate commerce and to make all laws, which shall be necessary and proper for carrying into execution the foregoing powers. The purpose and effect of the N.Y. law was to curtail the volume of interstate commerce to aid local interests. The states are not separate economic units. City of Philadelphia v. New Jersey (facial discrimination) Facts: New Jersey law prohibits the importation of solid or liquid waste, which originated outside the limits of the State. Discriminated against out-of-state usage Rule: "Whatever New Jersey's ultimate purpose, it may not be accomplished by discriminating against articles of commerce coming from outside the State unless there is some reason, apart from their origin, to treat them differently." Hunt North Carolina v. Washington State Apple Advertising (neutral discrimination) Facts: Washington state largest producer of apples. In 1973 North Caroline enacted statute which required all closed containers of apples to have no State grade. Since the apples are shipped in bulk and prepackaged, North Carolinas unique regulation would have required Washington growers to obliterate labels on containers shipped to NC giving their product a damaged appearance. Rule 1. N.Cs law would add extra costs on Washington without affecting N.C apple sales. Washington growers would be forced to alter their marketing practices and packaging.

It also strips Washing apple industry of their competitive and economic advantage Statute has a leveling effect, which insidiously operates to advantage local apple producers. Washington State grades are equal or superior to USDA grades; hence Washington sellers normally enjoy a distinct market advantage. N.Cs law would force Washington apples to be inferior USDA grades A nondiscriminatory alternative would be to make all states include USDA in addition to their own state labels. That way it treats all the states the same West Lynn Creamery Inc. v. Healy Commissioner of Mass. Dept of Food & Agr. Facts: Mass imposed a tax on all milk-dealers licensed to sell in Mass. They used the tax to subsidize for local milk dealers. Holding: Even though everyone pays taxes (local and non), only locals were reaping the benefits of the subsidy. On the face it treats everyone the same. However, Mass was using the proceeds to aid local milk dealers. Most pressing dormant commerce clause today: Liquor sales. A number of states, to avoid being overrun by Cali, have had protectionist laws to protect their local wineries. In 2005 Supreme Court struck down Michigan and New York state wine systems that allowed in-state wineries to ship directly to consumers. Mass allowed small wineries to pick and choose whether they wanted to ship directly to consumers or to go through retailers. However, large wineries had to elect one or the other. This treated all big wineries the same and all small wineries the same. However, the ONLY wineries in Mass are small, therefore it was discriminatory against out-of-state wineries.

D. Preemption 1. Article VI Supremacy Clause a. The Constitution, and laws made pursuant to it, are the supreme law b. Whereas the federal government only has those powers granted to it by the Constitution, the states have unlimited powers. Therefore, there will be several concurrent powers, and it is possible for states and the federal government to pass legislation on the same subject. When this occurs, the Supremacy Clause provides that the federal law is supreme, and the state law is void. 2. Express preemption a. Where a Federal law expressly preempts state or local law (if Congress has authority to pass that law) 3. Implied preemption a. Field preemption Where the scheme of Federal law and regulation is so pervasive as to make reasonable the inference that Congress left no room for the states to supplement it b. Conflict preemption Where compliance with both Federal and state regulations is a physical impossibility c. State law impedes the achievement of a Federal statute Where the state law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress E. The Tenth Amendment: 1. The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively. This reservation of power is often cited as a restriction on Congresss power to regulate states 2. Two Approaches: a. 10th Amendment not a separate constraint on Congress, but a reminder that Congress can only legislate if it has authority under the constitution. b. 10th Amendment protects state sovereignty from federal intrusion through a zone of activity designated to states for their exclusive control, and federal laws intruding this zone should be declared unconstitutional. Gregory v Ashcroft

Fall 2011 Constitutional Law Prof. Wermiel Outline A federal law that imposes a substantial burden on a state government will be applied only if Congress clearly indicated it wanted the law to apply New York v. United States Facts: Congress enacted Radioactive Waste Policy that required states to dispose of radioactive waste. The Act stated that the states had to take title of the waste, and therefore will be liable for any damages caused by the waste. Rule: o Congress cannot govern the States. Although Congress has the ability to pass laws requiring or prohibiting certain acts, it lacks the power to directly compel the States to require those acts. Congress may not compel states to enact a regulatory program. Example- Commerce clause authorizes Congress to regulate interstate commerce, it does not authorize Congress to regulate state governments regulation of interstate commerce o Congress can encourage a State to regulate in a certain way, but may not coerce the State to do so. o Congress cannot commandeer the legislative process. State legislatures are not subject to federal direction. Printz v. US o Brady handgun fact violated the 10th amendment in requiring prospective gun owners to be required to go through a background check because Congress was commandeering state officials to implement a federal mandate. Congress cannot require state official to regulate their own citizens. Reno v. Condon o Facts: Drivers Privacy Protection Act regulates disclosure of personal info contained in DMV records. The Act restricts the States ability to disclose info without drivers consent. South Carolina law conflicted with the Acts provisions. Under South Carolina law the info is available to any person that fills out a form listing the requesters name and address, and stating that the info wont be used for telephone solicitation. South Carolina filed suit alleging that the Act violates the 10th Amendment o Rule: The DPPA is a proper exercise to regulate interstate commerce under Commerce Clause. Congress can regulate the states by prohibiting them from performing certain acts. It does not require the South Carolina Legislature to enact any laws or regulations, and it does not require state officials to assist in the enforcement of federal statutes regulating private individuals, this is just asking the states not to do something. F. The Taxing and Spending Power of Congress 1. Article I, Section 8 Congress shall have power to lay and collect taxes, duties, imposts, and excises, to pay the debts and provide for the common Defense and general welfare of the United States; But all duties, imposts, and excises shall be uniform throughout the United States 2. Congress can regulate states through the spending power by imposing explicit conditions on the grant of money to state or local governments. Such conditions will not violate the 10 th amendment merely because Congress lacked the power to directly regulate the activity that is the subject of the spending program. South Dakota v. Dole Facts: In 1984, the United States Congress passed the National Minimum Drinking Age Act, withholding 5% of Federal-Aid Highway Act funds from states that did not adopt a minimum legal age of 21 for the purchase and possession of alcohol. South Dakota, a state that allows 19-year-olds to purchase alcohol Rule: Congress had engaged in a valid exercise of its power under the Taxing and Spending Clause. o Congress's conditional spending is subject to four restrictions: The condition must promote "the general welfare;"

The condition must be clear and unambiguous The condition should relate, "To the federal interest in particular national projects or programs There must be a connection between the spending restriction and federal spending. Ie cant say that any state that doesnt fix overcrowded prisons will lose highway funds. In this case there is a connection between young drinkers and highways. Drunk driving. Other constitutional provisions may provide an independent bar to the conditional grant of federal funds. o Congressional condition of highway funds is merely a "pressure" on the State to comply, not a "compulsion" to do so, because the State's failure to meet the condition deprives it of only 5% of the highway funds it may obtain. Therefore, Congress has not run afoul of the Tenth or Twenty-First Amendments. United States v. Butler Facts: The Agricultural Adjustment Act imposed a tax on processors of farm products, the proceeds to be paid to farmers who would reduce their area and crops. The intent of the act was to increase the prices of certain farm products by decreasing the quantities produced. Rule: The Court held that the so-called tax was not a true tax, because the payments to farmers were coupled with unlawful and oppressive coercive contracts and the proceeds were earmarked for the benefit of farmers complying with the prescribed conditions. Making the payment of a government subsidy to a farmer conditional on the reduction of his planned crops went beyond the powers of the national government 10th amendment limit- the act invades the reserved rights of the states. It is a statutory plan to regulate and control agricultural production, a matter beyond the powers delegated to the federal government G. Congress Powers Under the Post Civil War Amendment 1. 14th Amendment- All persons born or naturalized in the United States are citizens and no state can abridge the privileges or immunities of such citizens; nor may states deprive any person of life, liberty, or property without due process of law or deny any person of equal protection of laws. a. Section 5 - Congress shall have power to enforce, by appropriate legislation, the provisions of this article. b. Under Section 5 Congress may not expand existing constitutional rights or create new ones, it can only enact laws to prevent or remedy violations of rights already recognized. 2. 15th Amendment- The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude. a. Section 2 provides that Congress has the power to enforce by appropriate means. b. Section 5 is an enabling clause giving Congress the power to adopt appropriate legislation to enforce the rights and guarantees provided by the 14 th Amendment. 3. The 14th Amendment applies only if there is action by a state or local government, government officer, or private individual whose behavior meets the requirements for state action. 4. In the Civil Rights Cases, Court held that Congress could regulate state and local government actions, but not private conduct. 14th Amendment only applies to state action and cannot be used to regulate private or federal conduct. United States v. Morrison Facts: the case about the rape in Virginia Tech. P now claims that she is entitled to remedy under Section 5 of the 14th Amendment Rule: Section13981 is not directed at any state or state actor, but at an individual who has committed criminal acts motivated by gender. Section 5 of the 14th amendment can only target state actions Katzenbach v. Morgan & Morgan

Fall 2011 Constitutional Law Prof. Wermiel Outline Facts: The law provides that no person who has successfully completed the 6 th grade in school in Puerto Rico can be denied the right to vote because of his inability to read or write English. Registered voters in New York City brought this suit to challenge the constitutionality because New York Laws require the ability to read and write English. Rule: Section 5 of 14th Amendment gives Congress the power to pass laws for 14th Amendment violations. This basically took the position that Congress could decide for itself under section 5 what needs remedy. This rule gave Congress lots of leeway to act. This law was: o A remedy for discrimination, and o Literacy tests deny equal protection, City of Boerne v. Flores Facts: The Archbishop of San Antonio sued local zoning authorities for violating his rights under the 1993 Religious Freedom Restoration Act (Congressional Act under Section 5 providing that a state may not burden religious practices), by denying him a permit to expand his church in Boerne, Texas. Boerne's zoning authorities argued that the Archbishop's church was located in a historic preservation district governed by an ordinance forbidding new construction, and that the RFRA was unconstitutional insofar as it sought to override this local preservation ordinance. Rule: While Congress may enact such legislation as the RFRA, in an attempt to prevent the abuse of religious freedoms, it may not determine the manner in which states enforce the substance of its legislative restrictions. 5 cannot create new rights or expand the scope of rights and is limited to laws that prevent or remedy violations of the 14 th amendment; it cannot alter the meaning of free exercise. The Act was unconstitutional because it sought to expand substantive First Amendment rights beyond those recognized by Supreme Court This greatly restricts Congresss power to act under Section 5. There must be congruence and proportionality between the injury to be avoided and the means adopted to that end H. Congress and the Power to Authorize Suits Against States 1. 11th Amendment made it very difficult for a state to be sued in federal court, even for enormous violations of federal rights. It prohibits a federal court from hearing a private partys claims against a state government 2. 11th Amendment bars: a. Actions against state governments for damages b. Actions against state governments for injunctive or declaratory relief where the state is named as a party 3. Three ways around 11th Amendment to hold state governments accountable in federal court: a. State officers may be sued in federal court, even when state governments cannot be sued: 11th A. doesnt stop suits against state officers for injunctive relief, even when the remedy will stop the implementation of state policy. Exception- state officers cannot be sued if state treasury will be paying the damages b. States may waive their 11th Amendment immunity and consent to be sued in federal court. The state must clearly and unequivocally waive its 11th amendment immunity. For example if State passed a law sayings they can be sued for violations of employment discrimination, then they have waived their sovereign immunity c. Supreme Court may authorize suits against state governments under Section 5 of 14th amendment. For example: Equal Pay Act serves as basis for federal suits against a state by its employees. Will usually be triggered if the act waives the States immunity (individuals may sue the state if this is violated). Fitzpatrick v. Bitzer Facts: In Civil Rights Act, Congress, acting under section 5 of 14 th amendment, authorized federal courts to award money damages to private individuals against

state governments who subjected that person to employment discrimination based on race, color, religion, sex, or national origin Rule: Congress may provide for private suits against States for the purpose of enforcing the 14th amendment. 14th amendment supersedes the 11th amendment. In Pennsylvania v. Union Gas, Supreme Court allowed Congress to override the 11th amendment and authorize suits against state governments based on the Commerce Clause. Seminole Tribe v. Florida Facts: Seminole Tribe brought suit against State of Florida for violating the good faith negotiations requirement for Indian Gaming Regulatory Act (IGRA). Under IGRA, the tribe may engage in gaming activities subject to Floridas good faith regulations. Rule: Two questions must be asked: o Whether the Act contains a clear statement of Congresss intent to abrogate the States 11th Amendment immunity, and o Whether it is a proper exercise of Congresss Constitutional authority Although Congress clearly intended to repeal the States sovereign immunity, the Court ruled that the Act was not passed pursuant to a valid exercise of power. Kimel v. Florida Board of Regents Facts: Age Discrimination in Employment Act makes it illegal for an employer, including a State, to refuse to hire or to discharge any individual because of their age. Three Ps filed suit under the Act seeking money damages for their state employers discrimination on the basis of age. Rule: 1. Stringent test- Congress may abrogate the States constitutional immunity from suit in federal court only by making its intention unmistakably clear in the languageYes, Act passes Must be a proper exercise of Congresss authority, which it is not. The Act was not a valid exercise of Congresss power under 5, and the act disproportionately burdens state and local governments because age does not define a discrete and insular minority. There must be congruence and proportionality between the injury to be avoided and the means adopted to that end Supreme Court uses heightened scrutiny for some types of discrimination. Discrimination based on race must meet strict scrutiny. Congress has more authority to act under Section 5 when dealing with types of discrimination that trigger heightened scrutiny Board of Trustees of Alabama v. Garrett Facts: Garret director of nursing. God breast cancer, took time off, and not allowed to return to work. The court considered whether state governments may be sued for violating Title I of ADA which prohibits employment discrimination Rule: Individuals may not sue state governments for violations of ADA, but federal government could sue the states. Nevada Department of Human Resources v. Hibbs Facts: Family and Medical Leave Act entitles employees to take up to 12 work weeks of unpaid leave annually for any of several reasons, including onset of a serious health condition in an employees spouse, child, or parent Hibbs, who worked for the Nevada Department of HR, sought to leave under FMLA to take care of his wife who was recovering from car accident and neck surgery. They granted his request for the full 12 weeks. He did so, but did not return to work. In October, he was informed that he was done with FMLA leave, and must return to work by November 12th. He failed to return and was fired. Rule: Congress has more authority to act under Section 5 when discrimination triggers heightened scrutiny

Fall 2011 Constitutional Law Prof. Wermiel Outline This law was intended to prevent gender discrimination because women would be more affected then men. Under Equal Protection gender discrimination has heightened scrutiny, therefore the Congress has more authority to act. Tennessee v. Lane Facts: Title II of Americans with Disabilities Act provides that no qualified individual with a disability will be denied the benefits of the services, programs, or activities, or be subject to discrimination based on disability. August 1998 Lane filed action against Tennessee, alleging violations of Title II. P is paraplegic who uses wheelchair for mobility, and claimed that he was denied access to, and services of, the state court system because of disability. He claims that he was compelled to appear to answer a set of criminal charges on the second floor of county courthouse that had no elevator. He had to crawl up two flights of stairs to get to courtroom. When he returned, he refused to crawl again or be carried by officer, and was arrested for failure to appear. Rule: The duty to accommodate is consistent with the well-established due process principle. It cannot be said to be so out of proportion to a supposed remedial or preventive object. The right of meaningful access to judicial proceedings is a fundamental right, and thus triggers heightened scrutiny. IV. FEDERAL EXECUTIVE POWER 1. Scope of Inherent Presidential Powers The entire executive power is vested in the President by Article II, Section 1 of the Constitution Article II- All executive Power shall be vested in the President of the USA there is no herein granted so Hamilton argued that President has authority not specifically enumerated in Constitution Youngstown Sheet & Tube Co v. Sawyer o Facts: Dispute between steel companies and their employees. The indispensability of steel as a component of substantially all weapons and other war materials led president to believe that the proposed strike would immediately jeopardize national defense, and that governmental seizure of steel mills necessary to ensure availability of steel. A few hours before strike President issued Executive Order directing the Secretary of Commerce to take possession of most of the steel mills and keep them running. . Companies brought proceeding against President, claiming that seizure was not authorized by Congress or the constitution o Rule: Presidents power must come from either an Act of Congress or the Constitution. Seizure of companies to solve labor disputes has never been accepted. o The Constitution limits the president to recommend laws he thinks are good and veto laws he thinks are bad. Founders entrusted lawmaking to congress, in good times and bad. o The Court also held that the President's military power, as Commander in Chief of the Armed Forces did not extend to labor disputes. The Court argued, "the President's power to see that the laws are faithfully executed refutes the idea that he is to be a lawmaker." 2. Scope of Inherent Power Most important issue concerning inherent power is under what circumstances President can invoke executive privilege. Executive privileges refer to ability of President to keep secret conversations with or memoranda to or from advisors. United States v. Richard Nixon o Facts: Watergate scandal, Nixon moved to quash subpoena. US district court denied motion. Subpoena directed President to produce certain tape recordings and documents relating to his conversations with aides and advisers.

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Rule: Presidents counsel claimed lack of jurisdiction because matter was between superior officer of Executive Branch and a subordinate, therefore not subject to judicial resolution. Claims it is a political question. Court disagrees. Here, the issue is production of specified evidence deemed by Special Prosecutor to be relevant in a pending criminal case. It is a matter arising out of regular course of a federal criminal prosecution, within the scope of Article III. o Absent the need to protect military, diplomatic, or sensitive national security secrets, it is hard to accept argument that even the very important interest in confidentiality of Presidential communications shouldnt be subject to in camera inspection. o Legitimate needs of judicial process in criminal case may outweigh Presidential privilege. The Authority of Congress to Increase Executive Power This section focuses on the power of Congress to enhance the power of the President by conferring authority not contained in the Constitution Two different views on the separation of power: Separation of powers is resolved if the President and Congress agree. The courts should rarely invalidate their actions Separation of powers is constitutionally mandated, and therefore crucial judicial role to enforce these requirements o Clinton v. State of New York (line item veto) Facts: Line Item Veto Act allowed President to veto (cancel) some parts of bills, while allowing the rest to go into effect. Court reviews the cancelled items. Rule: Under the Presentment Clause, legislation that passes both Houses of Congress must either be entirely approved (i.e. signed) or rejected (i.e. vetoed) by the President. The Court held that by canceling only selected portions of the bills at issue, under authority granted him by the Act, the President in effect "amended" the laws before him. The President cannot unilaterally change the law. Separation of Powers a. Legislative veto Immigration & Naturalization Service v. Jagdish Rai Chadha Facts: In one section of the Immigration and Nationality Act, Congress authorized either House of Congress to invalidate and suspend deportation rulings of the United States Attorney General. An immigration judge suspended his deportation. The House of Representatives voted without debate or recorded vote to deport Chadha. Rule: the Immigration and Nationality Act, which allowed a one-House veto of executive actions, violated the Constitution Presentment clause. This Required that all legislation be presented to the President before becoming a law. The President's veto powerwas intended by the framers to provide a mechanism by which the executive branch could defend itself against legislative encroachment and could prevent bad policies Not every action taken by either house is subject to bicameralism and presentment requirements. Only when the actions are an exercise of legislative power. The action of the House of Representatives is legislative in nature because: o It modifies rights and duties of individuals outside the legislative branch o The enactment would otherwise have required a private law, which is a legislative function o The nature of the action is inherently legislative. When the Framers intended to authorize Congress to exercise power outside of the bicameral (both houses) and presentment principles, it provided express and unambiguous procedures for one house to act alone; other procedures cannot be o

Fall 2011 Constitutional Law Prof. Wermiel Outline admitted. Since this action by the House was not one of the express exceptions authorizing one house to act alone, it is invalid. Notes: Would this have been ok if both houses voted? No, the president would need to sign off on it. From Congress to President, President signs off on it (law) or can veto it. If vetoed, goes back to 2 houses for 2/3 vote. NO FLEXIBILITY! Appointment Powers a. Article II, section 2 b. Principal officers: President nominates, with advice and consent of the Senate, ambassadors, ministers, judges of Supreme Court, and other officers not herein included. Congress can place limitations, but the restrictions can be limited to allow the president to faithfully execute the law. c. Inferior officers: Congress may, by law, give appointment of inferior officers to President alone (no Senate approval) Morrison Independent Council v. Olson Facts: Ethics in Government Act gives Attorney General power to prosecute any and all High-Ranking officials for violations of Federal Law. Attorney General may appoint an independent counsel for such charges. Morrison was appointed to be that independent counsel. Her appointment is being challenged as a violation of the Appointment clause of Article II. The act places all removal power squarely in the Executive Branch. Rule: Independent counsel was an inferior officer because her appointment was temporary, limited in jurisdiction, and was removable by the Attorney General for cause. Congress did not reserve any power for itself. Therefore it is permissible for Congress to vest appointments in the judiciary if they are an inferior officer. Bowsher v. Synar Facts: President signed Balanced Budget and Emergency Deficit Act to eliminate federal budget deficit. It sets a max deficit amount at the end of each year. Holding: This law essentially gives Congress veto power. Dangers of congressional usurpation of Executive Branch functions have long been recognized. The Comptroller is basically an officer of the legislative Branch, and Congress has in effect retained control over execution of the act, an executive function. This is a violation of the separation of powers Foreign Policy Constitution doesnt say a lot about foreign police. It grants Congress power to regulate commerce with foreign nations, to declare war, and make rules concerning captures on land and water. It also says president shall be commander in chief of the army and navy of the United States United States v. Curtiss-Wright Export Corp. o Facts: Congress passed a resolution, authorizing President to stop sales of arms to countries involved in the Chaco Border dispute. President Roosevelt immediately issued an order prohibiting munitions sales to the warring nations in the Chaco border dispute. D indicted for selling guns to Bolivia, in violation of the resolution o Holding: President is allowed much more power in foreign affairs. Delegation that would otherwise be invalid for internal affairs may nevertheless be valid for foreign affairs. Making important distinctions between internal and foreign affairs. Because "the President alone has the power to speak or listen as a representative of the nation," Congress may provide the President with a special degree of discretion in external matters, which would not be afforded domestically. o This wasnt the President acting as Chief of Army, it is the president acting as Head of State. Treaties and Executive Agreements

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Article II, section 2 states that presidents have the power to make treaties, provided 2/3 of Senate agrees. However, an executive agreement, in contrast, is an agreement between the US and a foreign country that is effective without Senates approval. b. Shared powers- Congress still plays a role in foreign affairs. They approve treaties, spending power, and Commerce clause (there is a foreign commerce clause). Dames & Moore v. Regan Secretary of the Treasury Facts: In reaction to the seizure of the U.S. embassy and American nationals in Iran, President Jimmy Carter invoked the International Emergency Economic Powers Act (IEEPA) and froze Iranian assets in the United States. When the hostages were released in 1981, Treasury Secretary Donald Reagan affirmed the agreements made by the Carter administration that terminated all legal proceedings against the Iranian government and created an independent Claims Tribunal. Dames & Moore attempted to recover over $3 million owed to it by the Iranian government and claimed the executive orders were beyond the scope of presidential power. Holding: The Court held that the International Emergency Economic Powers Act constituted a specific congressional authorization for the President to order the transfer of Iranian assets. Although the IEEPA itself did not authorize the presidential suspension of legal claims, previous acts of Congress had "implicitly approved" of executive control of claim settlement. The Court emphasized the narrowness of its ruling, limiting the decision to the facts of the case. This was necessary to resolve the dispute between US and Iran. 8. War Powers a. CongressArticle I - The power to declare war and to raise and funds and armies b. PresidentArticle II - Commander in Chief c. War Powers Resolution President can introduce troops, but within 90 days the President must inform Congress. President may introduce US Armed forces into actual hostilities under three circumstances: Declaration of war Specific statutory authorization National emergency created by attack upon US, its territories, or its armed forces Congress can then authorize the action or disagree and withdraw the troop We have not gotten to the point where Congress has tried to assert this power SC has denied standing in any claims brought challenging the Act Hamdi v. Rumsfeld o The US may detain, for the duration of the hostilities, individuals legitimately determined to be enemy combatants who engaged in armed conflict against the US o Detainees who are US citizens and seek to challenge their status as an enemy combatant must receive notice of the factual basis for this status and a fair opportunity to rebut the governments factual assertions before a neutral decision-maker o In a moment of emergency, when the government must act with no time for deliberation, the Executive may be able to detain a citizen if there is reason to fear he is an imminent threat to the nation V. STRUCTURE OF THE CONSTITUTIONS PROTECTION OF CIVINL RIGHTS AND CIVIL LIBERTIES A. Application of the Bill or Rights to the States Early in the nations history, the Bill of Rights were not a limit on State power, but only applied to the Federal government This comes from the decision of Barron v Baltimore (a takings case, where the SC found that the 5th does not limit States, and so none limit State power). The first eight Amendments detail protection of individual rights

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Fall 2011 Constitutional Law Prof. Wermiel Outline On their face, these Amendments do not look as though they were intended to apply to state and local governments and limit their power to legislate B. Privileges and Immunities Clause 1. 14th Amendment: Section 1. a. No State shall make or enforce any law, which shall abridge the privileges or immunities of citizens of the United States (THIS CANT DO ANYTHING, SCRATCH IT OUT. Slaughterhouse) b. Nor shall any State deprive any person of life, liberty, or property, without due process of law; c. Nor deny to any person within its jurisdiction the equal protection of the laws. 2. Section 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article. Slaughterhouse Cases Essentially, the court said that the federal government protects the privileges and immunities, and they are those rights enumerated above. They come by virtue of being a citizen of the US, and this does not limit the states. All other civil rights remain in the power of the States, and so Louisiana can impose whatever regulations they want. Due process refers to 5th amend. Restraint of trade is not same as taking property. Equal protection court says that this means only that the slaves are free. Nothing else. There is no racial issue, so does not apply. Court narrowly interpreted the amendment, which interpretations took years to overrule. C. Incorporation through 14th Amendment due process clause (Fundamental Rights) 1. Incorporation- Many thought that the entire Bill of Rights should be deemed to be included in the Due Process Clause of the 14th Amendment. 2. Selective Incorporation- Others believed that only some of the Bill of Rights were sufficient to be incorporated through the 14th Amendment. Twinning v. New Jersey Facts: D on trial for misdemeanor. Issue is whether 5th amendment right of selfincrimination is extended to states through the 14th Amendment Due Process Clause Holding: It is possible for some of the personal rights safeguarded by the first eight amendments may also be safeguarded against state action because a denial of them would be a denial of due process. Liberty is the key word to incorporating Bill of Rights to states. Although it did not work in this case, it was still a break through. Determine if the right is a fundamental right. The 14th Amendment absorbs fundamental liberties and rights and applies them to states. Fundamental rights include principles of justice so rooted in the tradition and conscience of our people as to be ranked as fundamental and therefore implicit in the concept of liberty. Still some provisions of the Bill of Rights that are no incorporated and do not apply to state and local governments: 3rd amendment (soldiers, doesnt really apply) 5th amendments right to a grand jury indictment in criminal cases (states can use other ways to charge you) 7th amendment (right to jury trial in civil cases) 8th amendment (excessive fines). The remainder of the bill of rights is incorporated. They are found to be fundamental rights. The issue behind incorporation is Federalismapplying the Bill of Rights to the states imposes a substantial set of restrictions on state and local governments D. State Action Doctrine

State Action doctrine-Private conduct doesnt have to comply with the Constitution. Private individuals (including co.s) are exempt, 2. Two exceptions to the state action doctrine: a. Public functions exception- private entity must comply with the Constitution if it is performing a task that has been traditionally done by the government b. Entanglement- Private conduct must comply with the Constitution if the government has authorized, encouraged, or facilitated the unconstitutional conduct. Jackson v. Metropolitan Edison Co. Facts: Metro Edison privately owned corporation which supplies electricity to a service area in Penn. Petitioner Jacket wasnt paying bills. They discontinued her service without further notice. Jackson claims that under the Due Process Clause, she was required to have more notice. Jackson is asking for notice and hearing, which is procedural due process (they cant just cut her off without giving her a chance to explain herself) Holding: This was a private entity, and even though they have state regulations, its not enough to be considered a state actor, therefore they are still a private entity, and not subject to the 14th Amendment. During Civil Rights era, the court was much more likely to take a broad view of state action. One case- Privately run lunch counter that was part of a municipal parking lot. The operator didnt serve African Americans, and claimed he had a right to do that. Supreme Court found state action because he leased the land from municipal parking lot, which the government controlled, therefore the constitution applied. VI. ECONOMIC LIBERTIES A. Substantive Economic Due Process 1. 5th and 14th Amendments provide that no state or federal government can deprive any one of life, liberty, or property without due process of law. 2. Due Process clauses provide two types of protection: a. Procedural due process- Procedures government must follow when it takes away life, liberty, or property b. Substantive due process- whether the government had a good reason for taking away a persons life, liberty, or property. Focus is on the justifications of the governments action, not on the procedures they followed. Example: parent custody. Procedural Due Process to terminate parental custody requires notices and hearings. Substantive due process requires the govt to show compelling reason for terminating custody, such as parental abuse or neglect c. Two main areas of substantive due process: economic substantive dp and privacy d. Economic substantive due process invalidated government economic regulations that violated due process rights e. Lochner Era- Courts invalidated several state statutes as violating Economic Due Process Allgeyer v. Louisiana (Freedom to Contract) Facts: State statute says that no foreign corporation shall do any business in the state without having one or more known places of business and an authorized agent in the state. Louisiana implemented the statute as an exercise of its police powers, intending to protect its citizens from deceitful insurance companies. Holding: The statute deprives the Ds of their liberty to contract with businesses, without due process. Liberty is not just physical liberty, but the freedom to live and work where he wishes, to earn his livelihood by any lawful calling, enter into any proper contracts, etc. Freedom to contract Lochner v. New York Facts: The state of New York enacted a statute, forbidding bakers to work more than 60 hours a week or 10 hours a day. Holding: Court maintained that the statute interfered with the freedom to contract, and thus the Fourteenth Amendment's right to liberty afforded to 1.

Fall 2011 Constitutional Law Prof. Wermiel Outline employer and employee. The Supreme Court rejected the argument that the law was necessary to protect the health of bakers, deciding it was a labor law attempting to regulate the terms of employment, and calling it an "unreasonable, unnecessary and arbitrary interference with the right and liberty of the individual to contract." Court articulated that 1. Freedom to contract is a basic right protected by liberty under DPC, 2. Govt could interfere with freedom to contract only to serve valid police purpose, 3. It was the role of the judiciary to carefully scrutinize legislation interfering with freedom to contract. Laws Protecting Unionizing Many states and federal government adopted laws to facilitate unions by prohibiting employers from insisting, as a condition of employment, that employees cant join a union. Supreme Court declared these laws unconstitutional as infringing on freedom of contract. Coppage v. Kansas o Facts: A Kansas law banned "yellow dog contracts." (These were employer agreements barring employees from joining a labor union). D, an employer, fired an employee who refused to sign such an agreement. o Holding: Laws forbidding yellow dog contracts violated DPC. To ask a man to agree in advance to refrain from unions is not asking him to give up any constitutional freedom. He is free to decline the employment on those terms. It takes two to make a bargain. Mueller v. Oregon o Facts: Oregon enacted a law that limited women to ten hours of work in factories and laundries. o Holding: In a famous brief in defense of the Oregon law, attorney Louis Brandeis elaborately detailed expert reports on the harmful physical, economic and social effects of long working hours on women. Brewer's opinion was based on the proposition that physical and social differences between the sexes warranted a different rule respecting labor contracts. Women had to take care of kids and maintain home Adkins v. Childrens Hospital o Facts: In 1918, Congress enacted a law which guaranteed a minimum wage to women and children employed in the District of Columbia o Holding: Women are equal to men, should have the freedom to contract their wage. They do not need extra protection. Minimum wage unconstitutional o Overruled by West Coast Hotel Co v. Parrish End of Lochnerism 1937 two important cases involving substantive due process. Courts signaled end of Lochner freedom to contract. Greater deference towards legislatures This is the same period that Court took a broad view on what Congress could regulate. West Coast Hotel v. Parrish Facts: P, an employee of the West Coast Hotel Company, received subminimum wage compensation for her work. Parrish brought a suit to recover the difference between the wages paid to her and the minimum wage fixed by state law. Holding: Upheld a law that required minimum wage for women. Past cases have been resolved based on freedom to contract. Freedom to contract is not in the constitution, liberty is. Liberty changes with history and connotation. Freedom to contractwomen have been exploited and have weak bargaining powers. Legislation must protect. United States v. Carolene Products Co. Facts: A 1923 act of Congress banned the interstate shipment of "filled milk" (milk with skimmed milk and any fat or oil added). A manufacturer, indicted for

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shipping filled milk, challenged the law. Holding: Court gives a presumption of constitutionality to economic regulation. Economic regulations will be upheld as long as they were supported by a conceivable rational basis, even if it cannot be proved that was the legislatures rational intent. In footnote four, Stone states that certain types of legislation might not merit deference toward constitutional validity. The Court says that they werent going to second guess the legislations economic regulations. They will assume there was a rational reason for the statute. The most controversial element in the footnote was the suggestion that prejudice directed against discrete and insular minorities may call for "more searching judicial inquiry." ( a more narrow scrutiny of the legislature) There is a narrower presumption when the issue involves Bill of Rights (fundamental rights) Williamson v. Lee Optical of Oklahoma Facts: An Oklahoma law prohibited persons who were not licensed optometrists or ophthalmologists to fit lenses for eyeglasses. Non-licensed individuals were also prohibited from duplicating optical instruments without written prescriptions from licensed ophthalmologists. The Lee Optical Company challenged the law Holding: The Court held that while the law may have been "needless" and "wasteful," it was the duty of the legislature, not the courts, "to balance the advantages and disadvantages of the new requirement." The Court emphasized that "[t]he day is gone when this Court uses the Due Process Clause of the Fourteenth Amendment to strike down state laws, regulatory of business and industrial conditions, because they may be unwise, improvident, or out of harmony with a particular school of thought." Since 1937 no state or federal economic regulation has been unconstitutional as infringing on liberty to contract as protected by Due Process Clauses. VII. FUNDAMENTAL RIGHTS 1. There are some liberties that are so important they are deemed fundamental, and government cannot infringe them unless strict scrutiny is met 2. Generally, if a law denies the right to everyone then the Due Process Clause would be the best grounds for analysis; but if a law denies a right to some, while allowing it to others, the discrimination can be challenged as offending the Equal Protection or Due Process Clause 3. Three questions to be asked: a. Is there a fundamental right? b. Is the right infringed? If yes, must meet strict scrutiny (compelling government purpose) c. Are the means sufficiently related to the goals (least restrictive means)? 4. Strict scrutiny has three prongs: a. Compelling govt interest, b. Narrowly tailored to the purpose c. Least restrictive means 5. Rational basis test-minimal level of scrutiny. Laws meet this test if it is rationally related to a legitimate government purpose. A. Constitutional Protection for Family Autonomy 1. Fundamental right to marry a. Supreme Court first recognized the right to marry as a fundamental right protected under the liberty of the Due Process Clause in Loving v. Virginia b. The freedom to marry has long been recognized as one of the vital personal rights essential to pursuit of happiness. It is fundamental to our very existence and survival Zablocki v. Redhail Facts: Most extended discussion regarding right to marry. Wisconsin law prevented individual from obtaining marriage license without court approval (wouldnt approve if person had minor child for whom there was a court order to

Fall 2011 Constitutional Law Prof. Wermiel Outline pay support) Holding: Right to marry was a fundamental right 2. Right to Custody Michael v. Gerald Facts: Child custody battle between presumptive father and the real biological father. A possible biological father does not have a fundamental right to obtain parental rights after the presumptive father has exercised significant responsibility over the child. Therefore due process protection does not apply. DP affords only those protections so rooted in the traditions and conscience of our people as to be ranked fundamental. 3. The Right to keep the family together Moore v. City of East Cleveland (send granny to jail case) Facts: East Clevelands housing ordinance limits occupancy of a dwelling to members of a single family. Moore lived with her son Dale, and two grandsons Dale Jr and John Moore (John and Dale cousins, not brothers). Housing ordinance only allowed single-family dwellings Holding: The housing ordinance substantially interfered with a related families living arrangements Clevelands ordinance regulated the occupancy by slicing deeply into the family itselfwhen government intrudes on family living arrangements, the Court must carefully examine the governmental interests. The city justified this as a means of preventing overcrowding, minimizing traffic, avoiding undue financial burden on East Cleveland schools. Although these are fair reasons, they are not compelling enough to justify the ordinance 4. The Right of Parents to Control the Upbringing of their children a. Meyer v. Nebraska Facts: Nebraska statute outlawed teaching young children any language besides English. P taught German language and was charged. Holding: DPC grants individuals the right to engage in any occupation, marry, establish a home, worship any god, etc. It is the natural duty of the parent to give his children education suitable to their station in life. Learning another language is not harmful, but rather helpful and desirable. B. Reproductive Autonomy 1. Right to Procreate - Marriage and procreation are fundamental to the existence of life. Sterilization will forever deprive that person of a basic liberty. Sterilization can cause entire races to disappear. Buck v. Bell Facts: Virginia Act promoted certain cases of sterilization involving mentally defected people. Buck was a feeble minded woman (three generations of feeble minded in family) who was forced by the state to cut her fallopian tubes. Holding: Court upheld the statute instituting compulsory sterilization of the unfit, including the mentally retarded, "for the protection and health of the state. Strict scrutiny Skinner v. Oklahoma Facts: Oklahoma statute promoted compulsory sterilization for habitual criminals. Habitual criminals were those convicted two or more times of felonies involving moral turpitude. Holding: The law was discriminatory. White-collared crimes (embezzling) were exempted from sterilization. Oklahoma makes no attempt to say that he who commits larceny by trespass or trick or fraud has biologically inheritable traits which he who commits embezzlement lacks 2. The Right to Purchase and Use Contraceptives Griswold v. Connecticut (PRIVACY) Facts: Ds were licensed doctors who gave medical advice to married people as to the means of preventing conception. They would suggest the best

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contraceptive devices. Statute stated that any person who uses drugs, medicines, or instrument for the purpose of contraception will be fined or imprisoned, and any person who aids will be punished too. Holding: Though the Constitution does not explicitly protect a general right to privacy, the various guarantees within the Bill of Rights create penumbras, or zones, that establish a right to privacy. Together, the First (right of association), Third (no quartering soldiers in home, therefore privacy in home), Fourth (protection against unreasonable searches), and Fifth (self-incrimination), and Ninth Amendments (people have rights beyond those enumerated in Constitution), create a new constitutional right, the right to privacy in marital relations. The Connecticut statute conflicts with the exercise of this right and is therefore null and void. This is a fundamental right protected by the constitution. Just as cops are not allowed to search the privacy of a bedroom for signs of contraception, the state cannot interfere with a married couples choice to use contraception Eisenstadt v. Baird Facts: D convicted for giving a lecture on contraception to students at BU and giving a student vaginal foam. The statute allowed married couples to get contraceptives from doctors or pharmacists, denied single people from obtaining contraceptives from anyone, and allowed anyone to get contraceptives to prevent disease, not pregnancy Holding: Under Griswold the distribution of contraceptives to married persons is permissible; therefore a ban to unmarried people is impermissible. The right to privacy means the right to be free from unwarranted governmental intrusion to matters so fundamentally affecting a persons decision to have a child. This right extends to single people. Right to Abortion Roe v. Wade Holding: A woman's right to an abortion is within the right to privacy (recognized in Griswold v. Connecticut) protected by the Fourteenth Amendment. Although the State does have a say in abortion, they cannot ban it. The ruling sets up three standards for abortions: o For the stage prior to the end of the first trimester, the abortion decision is left to doctor and woman (12 weeks) o Stage after first trimester, the State, in promoting the health of the mom, may choose to regulate abortion procedures (12-24 weeks) o For the stage subsequent to viability, the State in promoting its interest in the potential of human life, may regulate and prevent abortion, for the preservation of life or the health of mom Planned Parenthood v. Casey Facts: Pennsylvania Abortion Act requires that a minor obtain informed consent from one of her parents, a married woman must have signed consent from her husband. Medical emergencies are exempt from requirements. Holding: The Court reaffirms Row, although it rejects the trimester framework. Though a woman has a right to choose to terminate her pregnancy before viability, the State can still take steps to ensure the choice is thoughtful and informed. States have the power to restrict abortions after viability so long as the state regulation provides an exception to those pregnancies which endanger a womans life of health Not every law that makes a right more difficult to exercise is an infringement of that right. The fact that a law, which serves a valid purpose, has the effect of making it more difficult to procure an abortion is not enough to invalidate it. Only where the state regulation imposes an undue burden on a womans ability to make the decision will it be deemed unconstitutional. Test is Undue Burden, not strict scrutiny-An undue burden exists if its

Fall 2011 Constitutional Law Prof. Wermiel Outline purpose or effect is to place a substantial obstacle in the path of a woman seeking an abortion before the fetus is viable. o As a side note, the court explains the rules for overruling stare decisis on page 870: Is the precedent unworkable? Is there reliance built up in society on the decision? Has the original legal doctrine been weakened by subsequent developments? Have factual assumptions changed substantially? If the above are true, then the case can be overruled. Government Restrictions on Funds and Facilities for Abortions There are a series of abortion regulations that were once deemed unconstitutional under strict scrutiny, but now survive after Casey. Some of these regulations include a waiting period (waiting 24 hours after meeting with doctor), informed consent (being told about the fetus, its characteristics, etc). Supreme Court has repeatedly held that govt not required to subsidize abortion, even if its paying for childbirth. Maher v. Roe Facts: Regulation of the Connecticut Welfare Department limits state Medicaid benefits for first trimester abortions to those that were medically necessary. Holding: The Court upheld the ability of govt to deny funding for nontherapeutic abortions (abortions not performed to save the life of mother). The regulation does not add an undue burden or obstacle on women seeking abortion. Just because they fund childbirth, thereby making abortion a less attractive option, does not mean theyve added a restriction. Although government may not place obstacles in the path a womans exercise of choice, it doesnt need to remove those not created by them (ie indigency). Even some medically necessary abortions are denied funding if the mothers life not in danger 4. Spousal Consent and Notice Requirement Planned Parenthood v. Danforth Rule: A State cannot delegate to a spouse veto power. Parental Notice and Consent Requirements Supreme Court has held that a state may require parental notice and consent for an unmarried minors abortion, but only if there is a bypass procedure whereby a minor may obtain the abortion with consent of a judge. Bellotti v. Baird Facts: State statute regulated the access of minors to abortions. Shed need consent of her parents. If one or both parents refuse, consent may be obtained by order of a judge shoe deems the abortion in the best interest of the child. Holding: If the State decides to require a pregnant minor obtain parental consent, it MUST provide an alternative procedure where authorization for abortion can be obtained. Minor must show that she is mature enough and well enough informed to make her abortion decision, and even if she is not, that abortion is in her best interest. C. Constitutional Protection for Medical Care Decisions 1. Right to Refuse Treatment Cruzan v. Director Missouri Dept. of Health Facts: P rendered incompetent after car accident. Her parents wanted to take her off of life support (feeding and hydration artificially. She was breathing on her own). because she had no chance of recovering. Holding: Missouri allows for a surrogate to act for the patient, when the patient expressly consents while competent. The State is allowed to use clear and convincing evidence standard to protect the

patientsometimes family members arent acting in the best interest of the patient, there may be scientific innovations, etc. However, removing life-support is irreversible. Dilemma of the court: is feeding and hydration medical treatment? For the purposes of this case, they considered it medical treatment. 2. Right to Physician-Assisted Suicide Washington v. Glucksberg Facts: 4 doctors occasionally treat terminally ill patients, and told them they would assist these patients in ending their lives if it wasnt for Washingtons assisted-suicide ban. Holding: Historically the Western world has always been against suicide. Longstanding expressions of the States commitment to protect and preserve all human life. State interests in banning assisted suicide- State has an unqualified interest in preserving human life, protecting ethics and integrity in medical field, protecting vulnerable groups (for example poor. Some poor people might opt for assisted suicide to spare their families medical bills), assisted suicide is hard to police and may be used incorrectly and involuntary. D. Constitutional Protection for Sexual Orientation and Activity Lawrence v. Texas Facts: Texas statute makes it a crime for two persons of the same sex to engage in intimate sexual conduct. Cops responded to a reported weapons disturbance. They entered and found two men engaging in a sexual act. Holding: The State may not prohibit private consensual activity between consenting adults of the same sex. Sexual activity is a fundamental aspect of personhood and is entitled to constitutional protection. History of laws: Early sodomy laws were not targeted at homosexuals, but wanted to prohibit nonprocreative sexual activity. Also sodomy laws were for predatory acts against non-consenting persons, such as minors or victims of assault, not to criminalize consenting private acts. Also the trend was that fewer and fewer states were criminalizing sodomy (went from all 50 to just 13). This case could have been decided on Equal Protection, but that wouldnt have overruled Bowers. The court expressly states that Bowers is not good precedent and should be overruled. They are saying that Bowers was wrong then and is wrong now, which is why they overrule. This case didnt involve minors, people who were injured or coerced, public conduct or prostitution. It involved two consenting humans who are entitled to respect for their private life. Their right to liberty under the due process clause gives them the full right to engage in their conduct without intervention. The Court didnt want to use the equal protection rationale because then States would just outlaw sodomy for heterosexuals and homosexuals. IV. EQUAL PROTECTION A. The 14th Amendment guarantees that no state shall make or enforce any law denying to any person the equal protection of the laws B. Scope 1. Like the Due Process Clause, the Equal Protection Clause of the 14th Amendment only regulates state action 2. Even though there is not a specific Equal Protection Clause in the 5 th Amendment, the SC interprets the 5th Amendments Due Process Clause as encompassing equal protection and therefore applies it to Federal government action C. What is the appropriate level of scrutiny? 1. Strict scrutiny a. Applies to discrimination based on: Race, national origin, and alien status b. Standard A law is upheld if the government proves that it is necessary to achieve a compelling

Fall 2011 Constitutional Law Prof. Wermiel Outline government purpose The means must be the least restrictive alternative to achieving the purpose Intermediate scrutiny a. Applies to discrimination based on: Gender b. Standard A law is upheld if the government proves that it is substantially related to an important government purpose The means do not need to be necessary, but must have a substantial relationship to the end being sought Rational basis a. Applies to discrimination based on: Anything else (gays) b. Standard A law is upheld unless a challenger can show that it is not rationally related to a legitimate government purpose The purpose need not be compelling or important, just something that the government legitimately can do c. Rational Basis What constitutes legitimate government purpose? If it advances a police purpose, such as protecting safety, public health, or public morals. Laws are underinclusive when they do not regulate all who are similarly situated and overinclusive when they regulate more people than those that should be included. Romer v. Evans (rational basis plus) o Facts: Ordinances banned discrimination based on sexual orientation in many activities, such as housing, employment, education, health, etc. Amendment 2 to their State Constitution banned any judicial, legislative, or executive action designed to protect persons from discrimination based on their homosexuality. The amendment basically forbids the extension of official protections to those who suffer discrimination due to their sexual orientation. o Holding: Amendment 2 of the Colorado State Constitution violated the equal protection clause. Amendment 2 singled out homosexual and bisexual persons, imposing on them a broad disability by denying them the right to seek and receive specific legal protection from discrimination. o A law will be sustained under the equal protection clause, even if it seems to disadvantage a specific group, so long as it can be shown to "advance a legitimate government interest (example health concerns justified law favoring optometrists over opticians, tourism benefits justified favoring pushcart vendors of certain longevity etc). o "If the constitutional conception of equal protection of the laws' means anything, it must at the very least mean that a bare desire to harm a politically unpopular group cannot constitute a legitimate governmental interest." This was animus towards homosexuals. United States Railroad Retirement Board v. Fritz o Facts: Benefits for railroad workers in question. o Rule: If there are plausible reasons for Congress action, the inquiry must end. The Court has never insisted that the legislative body articulate its reasons for enacting a statute. Any conceivable legislative purpose is sufficient Railway Express Agency, Inc. v. New York o Facts: Traffic regulation in New York states that no person can operate an advertising vehicle, but they can put business notices on business delivery vehicles if those vehicles are engaged in usual business or regular work, not merely or mainly for advertising. o Holding: The ordinance was valid because it functioned to limit distractions to motorists, the purpose for which it was intended.

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It is no requirement of equal protection that all evils of the same genus be eradicated or none at all. Therefore, a city could ban some advertisements that distracted pedestrians without having to eliminate every distraction. City of Cleburne Texas v. Cleburne Living Center, Inc. o Facts: In 1980, Cleburne Living Center, Inc. submitted a permit application to operate a home for the mentally retarded. The city council of Cleburne voted to deny the special use permit, acting pursuant to a municipal zoning ordinance. o Holding: The denial was premised on an irrational prejudice against the mentally retarded, and hence unconstitutional under the Equal Protection Clause of the Fourteenth Amendment. While the Court declined to grant the mentally retarded the status of a "quasi-suspect class," it nevertheless found that the "rational relation" test for legislative action provided sufficient protection against invidious discrimination. Racial Classifications All racial classifications are subject to strict scrutiny. This means they must serve a compelling government interest and is the least restrictive means of doing so. Dred Scott Decision o In the Missouri Compromise, Congress admitted Missouri as a slave state, but prohibited slavery north of a certain boundary line o SC held that the Missouri Compromise was unconstitutional and broadly held that slaves were property and not US citizens o Since slaves were not US citizens, they could not sue in a federal court Korematsu v. United States o Facts: Petitioner, American citizen of Japanese descent, was convicted for remaining in San Leandro, California, a military area, which US Army directed that no person of Japanese ancestry can stay o Holding: Any racial discrimination must be subject to the most rigid scrutiny. o The government had no way of ascertaining the loyal from the disloyal, and thus had to place the restrictions on ALL Japanese Americans. o This holding gives deference to the military for decisions during times of war. o Another key point is that this was strict scrutiny. This statute was CLEARLY discriminatory, but it is upheld because of military necessity: It should be noted that all legal restrictions which curtail the civil rights of a single racial group are immediately suspect. That is not to say that they are unconstitutional. o This was only one case in which the Court expressly upheld racial classifications burdening minorities Loving v. Virginia o Facts: Statute in VA banned a white person from marrying a non-white. However, it allowed people of other races to intermarry. o Holding: This was met with strict scrutiny because it involved racial classification. Since this statute only prohibited whites from interracial marriage, it is a clear violation of equal protection. There is no legitimate purpose independent of racial discrimination which justifies such classifications Separate but Equal Plessy v. Ferguson o Facts: The state of Louisiana enacted a law that required separate but equal railway cars for blacks and whites. Plessy--who was seven-eighths Caucasian--took a seat in a "whites only" car of a Louisiana train. He refused to move to the car reserved for blacks and was arrested. o Holding: Separate facilities for blacks and whites satisfied the Fourteenth Amendment so long as they were equal. (The phrase, "separate but equal"

Fall 2011 Constitutional Law Prof. Wermiel Outline was not part of the opinion.) The 14th amendment intended to establish absolute equality for the races before the law. But Brown noted that "in the nature of things it could not have been intended to abolish distinctions based upon color, or to enforce social, as distinguished from political equality, or a commingling of the two races unsatisfactory to either." In short, segregation does not in itself constitute unlawful discrimination. Brown v. Board of Education o Facts: In 1952-53 Supreme Court granted review in five cases challenging the separate but equal doctrine in the context of high school end elementary school education. The schools were totally unequal (student/teacher ratio, the buildings, plumbing, etc.) The schools were unequal and could not be made equal, thus they were deprived of their equal protection. o Holding: To separate children from others of similar age and qualifications just because of their race generates a feeling of inferiority to their status, which will affect their heart and minds. It has a detrimental impact o A sense of inferiority affects the motivation of a child to learn. Segregation with the sanction of law, therefore, has a tendency to [retard] the educational and mental development of negro children and to deprive them of some of the benefits they would receive in a racial[ly] integrated school system... Separate but equal does not exist. Separate educational facilities are inherently unequal. The key here was to focus on the unconstitutionality of separate o This Court focused its decision on the importance of education in a persons life. o One of the most significant things that happened in the summer was one of the judges (Franfurter) law clerk had to research everything out of the 14 th Amendment. His final memo said that the 14th amendment was inconclusive about public schools because public schools were still rare at the time the framers of the 14th amendment. Brown v. Board of EducationRelief o Substantial steps will be taken to end segregation, but there are unique issues for each local community. Therefore it is best if the lower courts, which originally heard the cases, to rehear the cases. o The Court requires a prompt and reasonable start toward compliance of the ruling. Deliberate speed o Response to Brown: Many Southern states did what they could to stop desegregation. In Cooper v. Aaron, the Governor called out the Arkansas National Guard to keep blacks out. The Supreme Courts opinion repeated their holding in Marbury v. Madison that the Court was the ultimate exposition of the law of the Constitution, and that no state legislator or executive can war against the Constitution without violating his undertaking to support it. Some evasive techniques: one grade a year desegregation, transferring schools, closing down public schools, opening private academies that allowed only whites. Green v. County School Board o Supreme Court declared unconstitutional the Freedom of choice plan. I.e. before desegregation there were black schools and white schools. After Brown students had the choice to pick which school they wanted. Obviously this didnt desegregate. The Supreme Court actually italicized the word now ordering immediate desegregation. o Green factors to determine whether there was meaningful desegregation: Teachers and staff are no longer being hired solely on race, school facilities available to all, extracurricular activities, transportation, etc. The Civil Rights Act of 1964 prohibited segregation by schools receiving federal funds (they appropriated 2.5 billion for schools). It also gave the justice department

the power to intervene with schools. ***On the Same day as Brown was decided, there was a companion case in Washington DC (federal government), Bolling v. Sharpe- It is critical because it changes the equal protection analysis. It proclaims the existence of an implied equal protection clause of the 5th amendment (14th amendment only applies to States, 5th amendment applies to federal).

Judicial Power to Impose Remedies in School Desegregation Cases Swann v. Charlotte-Mecklenburg Board of Education Facts: Difficulty with desegregating school. Approx. 14,000 black students attended schools that were either totally black or more than 99 percent black. Holding: 1. Racial Quotas: Remedial plans were to be judged by their effectiveness, and the use of mathematical ratios was legitimate "starting points" for solutions. Strict rigid quotas are impermissible. 2. One-race Schools: predominantly or exclusively one-race schools required close scrutiny by courts. They are not presumptively invalid. The burden will be on the school to show that the single raced school is not the product of continued desire to segregate. 3. Remedial altering of Attendance Zones: One of the main tools implemented by school planners and courts to break up the dual system has been attendance zones. Non-contiguous attendance zones, as interim corrective measures, were within the courts' remedial powers. The remedy for segregation may be awkward, inconvenient, and even bizarre, and may impose a burden on some, but they are necessary. 4. Transportation of Students: Necessary remedy. The importance of bus transportation is clear; most kids went to the school nearest their home. Buses could pick up at the schools near their homes and transport kids to the schools they should attend. No one cared about busing until it was used as a remedy to desegregate! Swann broadly defined the remedial powers of federal courts. Milliken v. Bradely (beginning of the end of desegregation. Not unanimous) Facts: suit charging that the Detroit, Michigan public school system was racially segregated. Desegregation plan encompassed eighty-five outlying school districts. Holding: With no showing of significant violation by the 53 outlying school districts and no evidence of any inter-district violation, the district court's remedy was "wholly impermissible" and not justified by Brown v. Board of Education. "in the sense of dismantling a dual school system, did not require any particular racial balance in each school, grade or classroom. The Court of Appeals shifted their primary focus from Detroit to the entire metropolitan area because of their conclusion that Detroit wouldnt produce a desired racial balancethey wanted the student body to reflect the racial composition of the population as a whole (Detroit plus 53 outlying school districts). The consolidation of the school districts would create several problemslarge-scale transportation, financing, taxing, school board authority, day-to-day decisions, etc. It must be shown that racially discriminatory acts of the state or local school districts or of a single school district have been a substantial cause of interdistrict segregation Board of Education of Oklahoma v. Dowell (no more court supervision) Facts: In1972, a federal district court issued an injunction ordering the Board of Education of Oklahoma City to implement the "Finger Plan," which bused black students to white schools. In 1977, the district court withdrew its enforcement of the plan, declaring that the Board had complied with the plan and reached "unitary" racial composition. Holding: Federal supervision of local school systems was intended as a temporary measure to remedy past discrimination. Once a school system demonstrates earnest compliance with an injunction, the federal court can consider removing it.

Fall 2011 Constitutional Law Prof. Wermiel Outline Freeman v. Pitts- Supreme Court held that federal court desegregation order should end when it is complied with, even if other desegregation orders for the same school system remain in place (Georgia had met the facility part of the desegregation plan. However, the school was planning on building new facilities that would benefit whites more than blacks. However, the Supreme Court held that this was ok, since the part of desegregation order concerning facilities was already met). Missouri v. Jenkins: 1. District Courts order that attempted to attract non-minorities from outside districts was impermissible because there was no proof of inter-district violation (Milliken), 2. District court lacked authority to increase teacher salaries (although they believed that increased salaries was needed for desegregation, the Supreme Court ruled this wasnt a necessary remedy), 3. Disparity in test scores didnt justify continued federal court desegregation orders. Disparities in test scores not sufficient to conclude desegregation wasnt achieved. 4. Facially neutral laws with a Discriminatory impact If the law appears to be facially neutral on its face, there must be proof of a discriminatory purpose for such laws to be treated as racial classification (strict scrutiny). If no discriminatory purpose is proven, rational basis review is used. Washington v. Davis (Discriminatory purpose) Facts: Two African Americans sue mayor of DC, alleging that the Department's recruiting procedures, including a written personnel test (Test 21), discriminated against racial minorities. They claimed that the test: 1. A higher percentage of blacks fail the Test than whites, and 2. it was unrelated to job performance. Holding: An official action will not be held unconstitutional solely because it results in a racially disproportionate impact. Instead, a plaintiff must prove discriminatory purpose on the state actor's part. The D.C. Police Department's procedures did not have discriminatory intent and were racially neutral measures of employment qualification. McCleskey v. Kemp Facts: D convicted of armed robbery and murder. D filed a write of habeas corpus, claiming that Georgias capital sentencing process is administered in a racially discriminatory manner, violating the 8th and 14th Amendments. D offered statistical studies (Baldus study) that show disparity in death sentence in Georgia based on race of victim and race of D. Holding: D must show purposeful discrimination. D did not offer any evidence that his sentence rests on purposeful discrimination. Statistics are not sufficient, D must show purposeful discrimination in his particular decision. How is a discriminatory purpose proven? The main question is how can it be proven that a facially neutral law is motivated by a discriminatory purpose? Showing a purpose requires proof that the government desired to discriminate. Personnel Administrator v. Feeney Facts: A state law gave hiring preference to veterans over non-veterans. The law was challenged as violating the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution by a woman, who argued that the law discriminated on the basis of sex because so few women held veteran status. Holding: There was a legitimate purpose behind this statute- to reward veterans for their service to the country, and to help ease the transition from military to civilian. Nothing in the record demonstrates that this law, favoring veterans, was originally devised to keep women from the work place. 1. The first question is whether the statutory classification is indeed neutral in the sense that it is not gender-based. If the classification itself, covert or overt, is not based upon gender and 2. Whether the adverse effect reflects offensive gender-based discrimination Village of Arlington Heights v. Metro Housing Development Corp. Facts: The Metropolitan Housing Development Corp. (MHDC) contracted with the Village of Arlington Heights ("Arlington") to build racially integrated low- and moderate-income

housing. When MHDC applied for the necessary zoning permits, authorizing a switch from a single- to a multiple-family classification, Arlington's planning commission denied the request. Holding: NP failed to establish Arlington's racially discriminatory intent or purpose. While indicating that Arlington's zoning denial may result in a racially disproportionate impact, the evidence did not show that this was Arlington's deliberate intention. Factors to determine discriminatory purpose: Pattern is so extreme that there could have been no other purpose or explanation besides discrimination. inexplicable for any other purpose Footnote 798 Historical background of the practice

5. Affirmative Action One of the main issues was what level of scrutiny should be used for benign racial classification Arguments for strict scrutiny All racial classification should be subjected to strict scrutiny, regardless of its purpose Affirmative action can stigmatize and breed racial hostility (Croson)- Classifications carry a danger of stigmatic harm. Arguments against strict scrutiny There is a significant difference between government using racial classifications to benefit minorities and when government used racial classifications to disadvantage minorities. Achieving social equality requires affirmative action at this point in American history. There is still a huge disparity between races, particularly in education, employment, and public contracting. When a group controlling the decision advantages a minority and disadvantages itself, the reasons for being suspicious are lacking. Richmond v. J.A Croson Co. (Strict scrutiny) Facts: Richmond City Council adopted Minority Business Utilization Plan. The plan required prime contracts to subcontract at least 30% to one or more Minority Business Enterprises. The Purpose was remedial to promote wider participation by minorities. Holding: Any racial classification case is subject to strict scrutiny If City had evidence that nonminority contractors were systematically excluding minority businesses from subcontracting opportunities, this action would be appropriate Metro broadcasting- Intermediate scrutiny should be used Aderand Constructors v. Pena- Strict scrutiny. Overruled Metro broadcasting Affirmative Action in University Admissions: Grutter v. Bollinger Facts: Petitioner Grutter, a white Michigan resident with a 3.8 GPA and 161 LSAT score, filed this suit after being rejected from Law School, alleging that respondents had discriminated against her on the basis of Holding: The Equal Protection Clause does not prohibit the Law School's narrowly tailored use of race in admissions decisions to further a compelling interest in obtaining the educational benefits that flow from a diverse student body. o Many benefits to diversity: cross-racial understanding, better understanding different people, livelier discussions, variety, etc. Law Schools conduct highly individualized review of each applicant, no acceptance or rejection is based automatically on a variable such as race and that this process ensures that all factors that may contribute to diversity are meaningfully considered alongside race. Gratz v. Bollinger Facts: Two whites were rejected from University of Michigan. The University has a policy to admit virtually all qualified applicants who are members of one of three select racial minority groups. The University used a point system for admissions, and gave up to 20 points based on the persons race.

Fall 2011 Constitutional Law Prof. Wermiel Outline Holding: Court held that the University of Michigan's use of racial preferences in undergraduate admissions violates both the Equal Protection Clause and Title VI. The automatic distribution of 20 points, or one-fifth of the points needed to guarantee admission, to every single "underrepresented minority" applicant solely because of race was not narrowly tailored and did not provide the individualized consideration Under this rule a white person with extraordinary artistic talent would receive at most, five points under the application system. However, every single minority would receive 20. Parents involved in Community Schools v. Seattle School Dist. No. 1 Facts: The Seattle School District allowed students to apply to any high school in the District. Since certain schools often became oversubscribed when too many students chose them as their first choice, the District used a system of tiebreakers to decide which students would be admitted to the popular schools. The second most important tiebreaker was a racial factor intended to maintain racial diversity. Holding: "The way to stop discrimination on the basis of race is to stop discriminating on the basis of race. Unlike the cases pertaining to higher education, the District's plan involved no individualized consideration of students, and it employed a very limited notion of diversity ("white" and "non-white"). The District's goal of preventing racial imbalance did not meet the Court's standards for a constitutionally legitimate use of race The District's tiebreaker plan was actually targeted toward demographic goals and not toward any demonstrable educational benefit from racial diversity 6. Gender Discrimination Gender classification: What level of scrutiny is used for gender discriminationIntermediate scrutiny Part One: Level of Scrutiny Generally agreed upon to use intermediate level of scrutiny, not strict scrutiny for gender bias First gender discrimination case was Bradwell v. State of Illinois, in which court upheld law that prohibited women from being lawyers. Even during the Lochner era, in which the courts were against regulatory laws, they upheld laws regulating women (Muller v. Oregonmax hrs women could work) Reed v. Reed- First time Court invalidated a gender classification. Idaho law specified hierarchy of persons to be appointed as administrators of an estate. If there were two competing applicants in the same category, the male was preferred. The court ruled that a classification must be reasonable, not arbitrary, and must rest upon some ground of difference having a fair and substantial relation to the object of the legislation, and people in similar circumstances shall be treated alike Frontiero v. Richardson (plurality) Facts: Sharron Frontiero, lieutenant in US Air Force, applied for housing and medical benefits for her husband, whom she claimed as a "dependent." While servicemen could automatically claim their wives as dependents and get benefits for them, servicewomen had to prove that their husbands were dependent on them for more than half their support. Husband did not qualify under this rule, and therefore could not get benefits. Sharron sued Holding: Classifications based upon sex, like classifications based on race or national origin, are inherently suspect, and must be subjected to strict scrutiny (only four judges agreed) This federal law forced women to prove their husbands are dependent were no such burden is imposed on the male servicemen. The fifth vote was missing here to rule on the standard of scrutiny. The quality of rights under the law shall not be denied or abridged by the United States or by Any State on account of sex. Craig v. Boren Facts: Oklahoma statute prohibits the sale of 3.2% beer to males under 21, and women under 18. Statistics show that male arrests for duis and drunk fights substantially exceeded those of women. Holding:

The court instituted intermediate scrutiny, whereby the state must prove the existence of specific important governmental objectives, and the law must be substantially related to the achievement of those objectives. The Court held that the statistics relied on by the state of Oklahoma were insufficient to show a substantial relationship between the law and the maintenance of traffic safety. Generalities about the drinking habits of aggregate groups did not suffice Dissent: rational basis test should have been used. United States v. Virginia Facts: VMI, a unique institution of higher learning, only accepted males. The United States brought suit against Virginia and VMI alleging that the school's male-only admissions policy was unconstitutional insofar as it violated the Fourteenth Amendment's equal protection clause denying women the right to attend. Holding: Parties seeking to defend gender-based government action must demonstrate an exceedingly persuasive justification for that action: o 1. Classification serves an important governmental objective o 2. The discriminatory means employed are substantially related to achievement of those objective VMI has not done so. VMI's male-only admissions policy was unconstitutional. Because it failed to show "exceedingly persuasive justification" for VMI's gender-biased admissions policy, Virginia violated the Fourteenth Amendment's equal protection clause. Virginia failed to support its claim that single-sex education contributes to educational diversity because it did not show that VMI's male-only admissions policy was created or maintained in order to further educational diversity. Virginia's VWIL could not offer women the same benefits as VMI offered men. The VWIL would not provide women with the same rigorous military training, faculty, courses, facilities, financial opportunities, or alumni reputation and connections that VMI affords its male cadets. 2. Proving Existence of Gender Classification 1. Classification on the face of the law 2. If a law is facially neutral, proving a gender classification requires demonstrating that there is 1. Discriminatory impact and 2. Discriminatory purpose. Geduldig v. Aiello Facts: Cali disability insurance system pays benefits to persons in private employment who cant work because of a disability. In defining disability, the program does not include disabilities resulting from pregnancy. Holding: The court held that this was not gender classification warranting more than rational basis review because there is no risk from which men are protected and women are not. The State contends that coverage of those disabilities is so extraordinarily expensive it would be impossible to maintain the program supported by employee contributions. A totally comprehensive program would be substantially more costly than the present program and would inevitably require state subsidy, higher rate of employee contribution, lower scale of benefits, etc. Notes: Geduldig has been overruled by the Pregnancy Discrimination Act, which defined sex discrimination to include pregnancy discrimination 3. Gender Classifications benefiting women Gender classifications benefiting women designed to remedy past discrimination are permitted. Gender classifications benefiting women based on stereotyping will not be permitted The court will often invalidate laws benefiting women and disadvantaging men if the Court perceives the law to be based on stereotypical assumptionsmany stereotypes are of the women being economically dependent on their husbands, but not the other way around Orr v. Orr Facts: Alabamas alimony law required husbands to pay alimony upon divorce, but did not require wives to pay.

Fall 2011 Constitutional Law Prof. Wermiel Outline Holding: This law is based on the stereotype that women will always be economically dependant on the male, but the male will never be dependent on the woman. Gender was not an "accurate proxy" for financial need Mississippi University for Women v. Hogan Facts: P was a male nurse. The MUW was all-female nursing school. P was denied admission solely because of his sex. Holding: MUW claims that their policy of only-females is to make up for past discrimination. However, rather than compensate for discriminatory barriers, MUWs policy perpetuates the stereotyped view of nursing as a womans job. Women have never been discriminated in the field of nursing Intermediate scrutiny Michael M v. Superior Court of Sonoma County Facts: Petition was 17.5 year old male who had unlawful sexual intercourse with a female under the age of 18. Petitioner argued that the statute violated equal protection because only women can be victims and only males can be perpetrators. Holding: The State argues that the primary purpose of this statute is to reduce teenage pregnancy. Thus the State has a compelling interest in deterring men from having sexual relations with teenage females. No gender-neutral statute would be as effective as the statutory rape law. Rehnquist kind of reframes this case making it more about the biological gender differences (this isnt discrimination, men and women are different!) Rostker v. Goldberg Facts: Congress is giving the power to raise and support armies, to provide and maintain a navy, and to make rules for government regulations of land and naval forces. In the Military Selective Service Act, the President required every male citizen between the ages of 18-26 to register. Holding: Congress's decision to exempt women from registration "was not the 'accidental byproduct of a traditional way of thinking about females'" and did not violate the Due Process Clause. The Court found that men and women, because of combat restrictions on women, were not "similarly situated" for the purposes of draft registration. The purpose of registration was to prepare for a draft of combat troops. Since women are excluded from combat, Congress concluded that they would not be needed in the event of a draft, and therefore decided not to register them." The Court also upheld Congress's judgment that the administrative and military problems that would be created by drafting women for noncombat roles were sufficient to justify the Military Selective Service Act. Dissent: Just because women cannot combat doesnt mean that every position needs a combat-ready individual Califano v. Webster Facts: Social Security Act manipulated calculated monthly earnings for women to give them a slightly higher average monthly average to correspond to a higher level of monthly old-age benefit Holding: To withstand scrutiny, the classification must serve governmental objectives and must be substantially related to achieve the objectives. Reducing the economic disparity between men and women caused by a long history of discrimination has been recognized as such an important governmental objective. This act was not related to a stereotype that women are the weaker sex or are more likely to raise the kids. The purpose of the Act is to redress societys longstanding disparate treatment of women. 7. Other Classifications i. Education

The Supreme Court has refused to recognize a fundamental right to education (San Antonio Independent School district)

ii. Alienage Alien classifications refer to discrimination against non-citizens. Aliens are protected by the EPC because the clause explicitly says, no person shall Not no citizen. The Supreme Court has held that generally alienage classifications must meet strict scrutiny, although there are a few exceptions Graham v. Richardson Facts: Petitioner legal alien living in Arizona. Welfare only for US citizens or aliens who have been in USA for 15 years. Holding: The standard of review for aliens is Strict scrutiny Exceptions to Strict Scrutiny for Alienage One important exception to strict scrutiny is self-government and democratic process A democratic nation is ruled by its people, therefore states may deny aliens the right to vote or hold political office, or serve on juries. For the exceptions, use rational basis Foley v. Connelly Facts: Foley legal alien who was denied the right to take the test to be a state trooper. Holding: In self-government and the democratic process, rational basis can be used. This classification wasnt to reserve better jobs for US citizens, but rather because the US entrusts policy responsibilities to the peers. Ambach v. Norwick Facts: Both Ps meet all education requirements of New York to teach, but they have refused to seek citizenship in spite of their eligibility to do so. Holding: No Teachers come within the governmental function exception. They influence their students, have to teach civic duties. This is a narrow restriction, only barring those who are unwilling to obtain US citizenship. When the alienage classification is implemented by federal law, the court must give Congress or the President deference, and therefore only rational basis can be used Mathews v. Diaz- Court unanimously upheld a federal statute that denied Medicaid benefits to aliens unless they have been admitted for permanent residence or have lived in America for at least five years. The Court concluded that rational basis is applied to Federal laws and strict scrutiny to state laws Hampton v. Wong court distinguished between Congress and Presidential law and those by federal admin agencies. Agencies are subject to strict scrutiny. Undocumented Aliens Plyer v. Doe (no clear standard of scrutiny) Facts: Ps undocumented aliens. Texas claims that due to their immigration status, they are not persons. Court rejects this. Undocumented aliens have been recognized as persons guaranteed due process of law by 5th and 14th Amendments. Holding: This action of exclusion is directed against children, and imposes a discriminatory burden over which children have very no control over Education may not be a fundamental right, but its not some regular government benefit. Depriving children of education is what EPC sought to preventit would have a domino effect on their lives depriving them of social, economic, intellectual, and psychological wellbeing. The stigma of illiteracy will mark them for the rest of their lives. iv. Other Classifications Other types of classifications are only subject to rational basisage, disability, wealth, sexual

Fall 2011 Constitutional Law Prof. Wermiel Outline orientation Mass. Board of Retirement v. Murgia Facts: P officer, and was forced to retire when he turned 50. Appellee was in excellent physical form and had past medical examinations Holding: Uniformed cops control prisons and civil disorders, respond to emergencies, natural disasters, patrol highways, investigate crimes, apprehend criminals, etc. Service in this branch is physically exhausting. Strict scrutiny should only be used when it interferes with a fundamental right or operates to the peculiar disadvantage of a suspect class. Neither of those are present here v. Right to Vote The right to vote is fundamental. The right to vote is a fundamental political right because not only is voting is a form of expression, but it is also the way people choose a government that will safeguard all of their liberties and rights. You have an absolute right not to be discriminated against in voting. Thus laws that infringe the right to vote must meet strict scrutiny. Two major issues concerning the right to vote: 1. laws that deny some citizens the right to vote, and 2. Laws that dilute the voting power of some citizens. A. Poll Taxes Poll taxes are the requirement that people pay in order to vote. 24 th Amendment prohibits poll taxes for federal offices. Harper v. Virginia Supreme Court held that poll taxes are unconstitutional as a violation of the EPC Harper v. Virginia o Facts: VA Poll taxing directs an annual poll tax of $1.50 on every resident over 21 years of age to be used mostly for public schools. o Holding: States violate the EPC whenever it makes the affluence of the voter an electoral standard. Voter qualifications have no relation to wealth nor to pay or not pay a tax. B. Property Ownership Requirements Kramer v. Union Free School broadly invalidates property ownership requirements for voting, but later cases have approved them in some narrow circumstances Kramer v. Union Free School District o Facts: New York Law provides that in certain districts those who are otherwise eligible to vote in federal and state elections may vote in school districts only if 1. They own or lease taxable real property within the district or 2. Are parents of children enrolled in local public schools. Appellant, bachelor who doesnt own or lease real property, filed suit claiming the law violates EPC o Holding: This law violates the EPC. It disenfranchises senior citizens or others living with relatives, clergy, military, and others who live on tax exempt property. o The law did not meet the standards of strict scrutiny. It is not sufficiently tailored to limiting the franchise to those primarily interested in school affairs to justify the denial of the franchise. C. Literacy Tests Allowed for State voting, but not for Federal Lassiter v. Northampton County Board of Elections- Upheld a statute that required the voter to be able to write any section of the Constitution in English. In our society where newspapers, books, etc. describe issues and debates, a State may conclude that only literate people may vote iv. Prisoners and Convicted Criminals Right to Vote States cannot deny the right to vote to those waiting for trial. However, once a person has been convicted of a felony, a state may permanently disenfranchise them. Photo ids are required for voting

v. Dilution of the Right to Vote Supreme Court initially ruled the malapportionment problem as a non-justiciable political question. In Baker v. Carr Court concluded it was justiciable based on EPC argument. Gray v. Sanders- An inequality resulted because of the varied population size. Found to be unconstitutional (how can one person be given 10 times the voting rights of another just because of where he lives) Reynolds v. Sims- Districts must be as equal in size as possible. one person, one vote. By holding that as a federal constitutional requisite both houses of a state legislature must be apportioned on a population basis, we mean that the EPC requires that a State make an honest and good faith effort to construct districts, in both houses of its legislature, as nearly of equal population as practicable. Bush v. Gore Court essentially declares existence of a new Constitutional right- The right to equal standards in recounts. If there is going to be a recount, the constitution requires equal standards. Limiting principle: this new rule only applies to THIS case.

Fall 2011 Constitutional Law Prof. Wermiel Outline H. Second Amendment 2nd Amendment- A well regulated militia, being necessary to the security of a free State, the right of the people to keep and bear arms shall not be infringed Debate: does this mean everyone has a right to guns, or is there a right to have guns solely for militia purposes DC v. Heller Facts: Respondent special police officer authorized to carry a handgun while on duty. He applied to register for certificate so that he could keep gun at home, district refused. Issue: Whether a DC prohibition on the possession of handguns in the home violates 2 nd Amendment Holding: The right to bear arms extends to non-militia purposes. 1. Operative Clauseo A. right of the people- unambiguously refers to all members of the political community. It is a right exercised by all Americans. o B. keep and bear arms. keep- to retain, not to lose. To have custody. bearcarry. 2. Prefatory Clause: Well regulated militia. Congress doesnt create militias, they are assumed to already be in existence by Article I Prefatory clause prevents the elimination of the militia. US v. Miller- This just had to do with the type of weapons not eligible for 2 nd amendment. Beyond that, it had nothing to do with issue here. McDonald v. City of Chicago Facts: Issue: Whether the second Amendment is incorporated to State and Local governments Holding: Yes, the second Amendment applies to States and local governments. Second Amendment is incorporated in the concept of due process. Self-defense is a basic right, and in Heller self-defense was the central component of the Second Amendment right. One omission not addressed by either case: What level of scrutiny should apply for the right to bear arms.