Constitutional Law (Chemerinsky)

Constitutional Law (Cherminisky)
A. Article III serves 7 functions 
1. Creates a federal judicial System
2. Vests the judicial power “in one supreme Court and in such inferior courts as CG may…establish”
3. Accords life tenure to fed judges.ensures independence of federal judiciary
4. State courts subject to electoral review.makes fed Cts specially suited to protect constitutional rts
5. Defines SMJ
6. Allocates cases between SCOTUS and lower fed cts.
7. Jury
8. Defines Treason

B. Judicial Review [of constitutionality of laws]
1. Not express in Article III
a. Cts have claimed authority since earliest days

Marbury v. Madison . Authority for Judicial review of CG/POTUS action
Chief Justice Marshall

• John Adams appointed 42 justices of the peach day before Jefferson took office
o Some of the commission letters were not delivered before Jefferson took office
• Jefferson ordered the commissions withheld
• Marbury didn’t get his letter, sued in SCOTUS

SCt held Judiciary Act of 1789’s authorization of jurisdiction was unconstitutional b/c CG
cannot grant original JD to SCOTUS outside enumeration of Art. III
“It is emphatically the province and duty of the judicial department to say what the law
Federalist 78: “The powers of the legislature are defined and limited; and that those limits may not be mistaken or forgotten, the constitution is written”

C. Limits on Federal Judicial Power
1. Article III Scope Definition
a. Justiciability (doctrine from judicial interpretation of Art. III)

i. Standing
ii. Ripeness
iii. Mottness
iv. Political Question Doctrine

2. SCOTUS held that fed ct may hear matter only when both constitutional and statutory

3. XI
• “Ours is a written constitution, it does not make sense to have it written if we are going to
overstep its bounds.”

A. Congressional Power
1. May act only with express or implied constitutional grant

B. Evaluating Constitutionality of CG action
1. Does CG have the authority under Constitution to legislate?
2. If so, does the law violate another constitutional provision or doctrine?
a. e.g. infringing separation of powers, interfering with individual liberties

C. Evaluating Constitutionality of State Law
1. Does the legislation violate the Constitution?

D. Police Power
1. Possessed by the states
2. Allows state and local gov’ts to adopt any law that is not prohibited by the Const.
3. For the betterment of the general welfare, morals, health, and safety
4. Often limited by state const.
5. Needn’t I.D. particular source of power to enact law

E. Recent Trends towards limitation of CG power
1. Last 15 years, SCt has limited scope of CG power under Commerce Clause and XIV §5

Interpreting the Constitution
McCulloch v. Maryland . Scope of CG Authority

CJ Marshall

• Maryland enacted statute imposing tax on all banks not chartered by MD
o 2nd Bank of U.S. refused to pay state tax

1. Does Congress have the Const. authority to incorporate a bank absent express
permission from Const.?
2. Does MD have the power to tax an institution created by CG pursuant to its Const.

1. Yes . Necessary and Proper Clause (Art. I §8)
2. No

1. CG Authority.4 arguments
a. Historical practice has established the power of CG to create bank

i. Introduced long ago and approved by acquiescence by many legislatures
ii. ¿Should an unreviewed practice create a presumption of constitutionality?

1. OWH: “That laws may be natural and familiar… ought not to conclude our judgment upon the question whether the statutes conflict with the Constitution”

2. ¿Does lack of litigation actually mean silence/ acquiescence?
b. The people ratified the constitution, not the states. States ceded power to the federal government when the Const. was ratified. Implied assent.

c. Impossible to enumerate all possible abilities of CG in Const.
i. It’s a constitution, not a statute and should be interpreted accordingly
ii. Congress may choose any means not prohibited by Const.

1. Major and key expansion of CG power that has allowed Constitution to endure 19th and 20th centuries

d. Defined Nec/Prop Clause
i. Congress may choose any means not prohibited to carry out express authority

1. Legit end & within scope of const.–>all means which are appropriate

2. ¿Or is the Nec/Prop Clause a limit on CG power to adopt only laws which are truly necessary?
a. ¿Does Necessary mean useful/desirable or essential/indespensible?

3. Placement of Nec&Prop Clause
a. Art I §8 expands CG Power while §9 limits
2. Constitutionality of MD’s Tax
a. The Power to Create includes the Power to preserve
i. Power to tax=power to destroy

b. State may not impede the operation or existence of Congressionally established entity
i. Supremacy Clause

c. Taxing the Fed Gov = taxing citizens of other states
i. lack of political representation

Contrasting Marbury and McCulloch
Different Political Theories

Marbury . Heed the Constitution’s words closely; observes its limits
(Strict Reading)

McCulloch . Read the Constitution Flexibly
(Loose Reading)

Commerce Before 1937
Article I §8 Commerce Clause : “The Congress shall have the power . . . to regulate Commerce with foreign Nations, and among the several States, and within the Indian Tribes . . . .”

A. Activist Bench
a. First time the court had aggressively used its power of judicial review to invalidate
federal and state laws
i. ConLaw since 1937 has been a reaction to this era

B. Dual Federalism
a. Federal and State gov’ts are separate sovereigns
i. Each has separate zones of authority
ii. Role of Judiciary: protect the states by interpreting and enforcing Const. to protect States’ zone of activities

b. Embodied in 3 doctrines
i. Court narrowly defined commerce to be only one stage of business
1. This reserved much power to states
ii. Restrictively defined “among the several states”
1. CG could regulate only when there was substantial effect on InterComm
iii. 10th Amendment reserved a zone of activities to states that even fed law within scope of commerce clause were unconstitutional if they encroached
U.S. v. E.C. Knight Co.
CJ Fuller

American Sugar Refining Co. purchased refineries in Philly, monopolizing U.S. sugar refining

Does the gov’t’s use of Sherman Antitrust to stop monopoly overstep authority of Commerce Clause?

Yes. Constitution does not allow CG to regulate manufacturing.

• Narrow view of Commerce held manufacturing to be distinct from commerce

• Maintenance and distinction of the police power from commerce power is essential
to the preservation of state autonomy that is necessary in a dual form of gov’t
• We would rather bear the risks and detriments of little federal control than have the
fed gov’t encroach upon state power
• Indirect effect on commerce

Dissent (Harlan)
If CG can regulate interstate commerce, it should also be able to regulate restraints thereon

Carter v. Carter Coal Co.
J. Sutherland

• CG enacted “optional” standards of minimum and maximum prices & regulation of labor
• 15% tax on all coal, 1.5% tax if in compliance with “optional” regulations

1. Are the Tax Provisions constitutional exercise of tax power?
2. Are collective bargaining, wages, hours, and condition provisions within CG authority?

1. No. Not a tax, practically operates as a penalty.
2. No.

• Production, not trade
• Slippery slope of encroachment on state power
• Local Activities . State Regulation

“Among the States”
Houston E. & W. TX Ry. Co. v. U.S. . Expanding the Power of the Commerce Clause
J Hughes

• Houston E&W was charging way more to ship to Shreveport than to Dallas, thus choking off supplies to Shreveport and driving up their prices
• Interstate Commerce Commission ordered company to change discrim pricing

Is regulation of INTRAstate commerce within the commerce power?

Yes. Where a carrier is involved in INTER & INTRA, CG can regulate where INTRA
activities hinder/interfere with INTER activities

• Encourage national unity
o We don’t like state legislation that is discriminatory/harmful to other states
• “Close and substantial relationship to interstate traffic that control is essential to the
security of that traffic”

Contrast With
ALA Schechter Poultry Corp. v. U.S.
• NIRA mandated purchase of entire coops
• Collective bargaining, prohibited child labor, established 40 hr week

Within the Commerce Power?


• Direct v. Indirect effects on Commerce
o Employment regulations don’t have a sufficiently direct effect
• Even though most chickens come from out of state, the code isn’t regulating the interstate transactions; rather in state operations only
o Essential distinction in protecting State gov’t
• If fed power reached all things having indirect effect, nothing would be out of reach
• Congress may regulate and protect the stream of commerce
o The flow ceased once the chickens arrive in NY, their final resting place
The Power to Regulate Commerce (1937-1991)

A. No longer distinction between Direct and Indirect
a. Look to the cumulative effect . even trivial activities if taken in aggregate would effect
InterComm are now regulable

B. CG can now regulate any activity that has a substantial effect on interstate commerce
a. So broad, not 1 law declared unconstitutional as exceeding commerce power
b. Ct. rejects the notion that 10th amendment is a limit on the commerce power

C. Commerce = power to enact “all appropriate legislation” for its “protection and advancement”

D. Intrastate activities: close and substantial relation to interstate such that control is essential

E. Companies are now organizing themselves nationally and benefitting from their interstate
status . no bitching and moaning then when CG steps in under InterComm

F. The broad definition dichotomy
a. Complex problems of 20th century require authority outside narrow confines of express grant of Const.

b. BUT that moves away from a core American Principle that the federal gov’t has limited powers with most governance left to the states

Regulatory Laws
NLRB v. Jones & Laughlin Steel
!L “Acts which directly burden or obstruct InterComm or its free flow”
Beware the slippery slope to centralized gov’t . it is a matter of degree

Wickard v. Filburn
• Quotas set on amount of wheat to be put into InterComm
• Filburn produced quota with wheat for sale but grew private stock, exceeding limit

1. Can CG regulate production of wheat intended for personal use, never to be placed in
2. Can CG regulate trivial local, INTRA activities that have an aggregate effect on InterComm via Commerce Power?

1. Yes.
2. Yes.

• Filburn’s contribution may be trivial, but when taken together with all those similarly
situated, it has substantial effect on InterComm
o Aggregate effect

Civil Rights Laws
Heart of Atlanta Motel v. U.S.
• Hotel owner wanted to challenge CG authority to pass Civil Rts Act by refusing to rent to blacks

May CG prohibit racial discrimination under Commerce Clause?


1. Does CG have a rational basis for finding that racial discrimination by motels affected commerce?
2. If so, are the means selected to eliminate that evil reasonable and appropriate?
• If it is interstate commerce that feels the pinch, it does not matter how local the operation which applies the squeeze
• Does not matter what primary purpose of legislation is

Katzenbach v. McClung
Restaurant didn’t want to have to serve blacks

Does CG have power under Commerce Clause to regulate local business if ANY part of it
affects InterComm?

Yes, so long as the aggregate of activity of that industry has a substantial effect on Intercomm

• Ct. focused on interstate connections of the restaurant
o i.e. suppliers, clientele, etc.
• Cts. decision was centered on cumulative effect of similarly situated businesses
• Obstruction of interstate travel rather than direct commerce

The Power to Regulate Commerce (1991-present)
U.S. v. Lopez (Gun Free School Zones)
CJ Rehnquist

• Illegal to possess firearms in school zone b/c affects education.affects students economic futures .affects commerce

1. Does GFSZA exceed authority under Commerce Clause?
2. What categories of activity may congress regulate under Commerce Clause?

1. Yes. Too tangential of an effect on InterComm
2. 3 categories of activity CG may regulate under Commerce Clause
a. Use of the channels of InterComm (See HoA Motel)(transportation of commodity)
b. Instrumentalities of InterComm, even if threat is in INTRA activites (See Shreveport Rate Case)(
c. Activities having a substantial relation to InterComm (See Jones&Lauhglin)
i. Or substantial effect; can include cumulative class impact

1. Rational Basis for assuming there would be SE
(d.) Persons or things IN INTERCOMM (can be classified under b.)

• Criminal statute that is not an essential part of a larger economic regulatory scheme
• No JD element which would ensure case-by-case analysis of whether the firearm possession in question actually affects InterComm
• Possession of anything is not a commercial activity
o Even through aggregation elsewhere there would be no substantial effect on any sort of interstate commerce

• Blank Check
• ¿Does the regulated activity substantially affect InterComm?

How do the different entry points affect the outcome?
• Rehnquist (Majority)- trying to reconcile precedent and describe the doctrine
o No substantial effect on InterComm, even through aggregation
• Kennedy/O’Connor (Concurring)- Federalism v. local control; maintaining state power
o GFSZA upsets the federal balance and is an unconstitutional encroachment into state
police power
• Thomas (Concurring)- Original understanding of Const.
o Without boundaries limiting Commerce Clause to Commerce, we give the Federal Gov’t
a blank check to regulate anything
• Souter (Dissent)- Institutional Competence
o The Court is ill-equipped to make the decision; leave it to the legislature
o CG should have plenary power so long as law passes rational basis
• Breyer (Dissent)- Who ought to have the power to make these decisions
o CG is well equipped to analyze effects on InterComm

Gonzales v. Raich (Medical Marijuana)

• CA MMJ allowed medicinal use
• Sherriff and DEA seized and destroyed plants

Can CG regulate a homegrown product that may never enter interstate commerce?

Individual analysis of aggregate effect not necessary; rational basis for concluding it would

• Precedent (Wickard v. Filburn) has established that CG can regulate purely local
activities that are part of a “class of activities” with a substantial relation to InterComm
o Part of Nat’l marijuana market
• Distinguish from Lopez: Lopez regulated non-economic activity thus falling outside CG’s power
• “CG can regulate purely intrastate activity if it concludes that failure to regulate that
class of activity would undercut the regulation of the interstate market in that
o Does not require scientific exactitude

Tenth Amendment Revival
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

New York v. U.S.

• CG enacted radioactive waste act to force states to arrange for the disposal of waste
• Included:
o Monetary incentive
o Access incenteive . states w/o waste sites could be denied access to other states’
o Take title incentive . States that did not arrange for disposal of private waste would have to take state ownership

1. Violate the 10th Amendment?
2. Does CG have the authority to force a state to adopt a federal regulatory program?

1. Yes
2. No

• 10th Amendment is violated when CG directs states to regulate in a particular field and way
• CG cannot commandeer the state legislative process
• Take title = Congressional Coercion
o Monetary incentive was permissible use of spending power
• Political Accountability
o State officials may bear brunt of public disapproval while federal officials mandating remain insulated
• States are given 2 choices
. Take title and liability of waste
. Regulate the disposal according to CG Mandate
o It would be unconstitutional for CG to force one of these options on a state,
therefore unconstitutional to force them to choose one

Debate: does the language intend to grant the POTUS inherent powers not expressly enumerated?
• No mention of “herein granted,” like Art. I . POTUS isn’t limited to enumerations
• OR is the language simply establishing a single executive?

Scope of Inherent Presidential Power (acting without express con/stat auth.)
Youngstown Sheet & Tube Co. v. Sawyer
• Korean war raised demand for steel
• Labor disputes resulted in steel strike
• Truman authorized Scy of Commerce Sawyer to take possession of Steel industry and keep it running

Does POTUS have executive power under the Const. or any implied powers from Const.
to authorize seizer of steel mills?


A. POTUS cannot order policy, only suggest
B. 3 Tiers of POTUS POWER

Jackson Conc
1. Pursuant to express or implied authorization of CG. POTUS + CG
2. Absence of CG grant or denial . His independent (inherent) powers
3. Incompatible with express or implied will of CG. POTUS Power-CG Power
C. 4 Approaches answering “when may POTUS act without express Con/Stat Auth?”
Black Maj
1. There is no inherent POTUS power; he may only act with express Con/Stat grant
a. Inherent powers are inconsistent with a written Constitution
establishing a gov’t of limited powers

Douglas Conc
2. POTUS has inherent auth. UNLESS he interferes with functioning of another branch or usurps power of another
a. POTUS impermissible usurped spending power to seize
b. No Con/Stat mention of removing cabinet officers; we allow it

Frankfurter Conc
3. POTUS may exercise powers not mentioned in Const. so long as he doesn’t directly violate Con/Stat
a. POTUS violated stat. dealing in seizure of private property

CJ Vinson Diss
4. POTUS has inherent powers that may not be restricted by CG and may act unless he violates Const.
a. Fed law restricting POTUS power are unconst.

Which Approach we choose depends on our view of appropriate scope of POTUS power and how best to check it

How would the outcome differ in a given case depending on approach chosen?

Constitutional Problems of the Administrative State Non-Delegation Doctrine
CG May not delegate its legislative powers to an administrative agency

Politically accountable CG must make policy choices

Panama Refining Co. v. Ryan
• CG delegated power to POTUS to prohibit transpo of foreign petroleum, among others

Was the delegation of power to POTUS unconstitutional?


• Power being delegated was legislative
o No intelligible principle
* No check on POTUS’ discretion
***NOTE this has not been overruled, but would be decided differently today

Demise of the Non-Delegation Doctrine
Whitman v. American Trucking . Ct. unanimously upheld EPA CAA regulations
Schechter and Panama, both 1935, were the only SCOTUS strike down of delegation

Legislative Veto
INS v. Chadha(Legislative Veto = Unconstitutional)
CJ Burger

• Executive granted stay on Chadha’s deportation, among others
• CG legislatively vetoed, reinstated deportation order

Is a one house Veto Constitutional?


A. Majority
1. Bicameralism and presentment are crucial
2. Changing legal rights, duties, or relations of a person is an Art. I action
3. Leg Veto is defense of power already possessed
. Not aggrandizement

B. Powell, Concurring
1. CG is adjudicating facts of a case, that is judicial

C. White Dissenting
1. Leg Veto is a very practical tool and makes things convenient
2. Check on legislative power already delegated
3. Vetoing is not writing new law
4. CG can bicamerally approve by acquiescence, POTUS approves through Atty Gen

POTUS Power Over Foreign Policy
Separation of Powers & Foreign Policy
U.S. v. Curtiss-Wright Export Corp.

• CG passed resolution allowing POTUS to stop sales of arms to countries involved in the
Chaco border dispute
• C-W was convicted of selling arms to Bolivia in violation of Executive Order

May CG delegate law-making authority it POTUS in matters of foreign affairs?

Yes, POTUS has broad authority to conduct foreign affairs
• Fundamental difference between domestic and foreign policy
o Power differs in origin and nature
• States bestowed power to legislate domestically upon fed gov’t in ratification
o Foreign power is inherently federal
• Practicality
o POTUS is representative of USA
o POTUS possesses knowledge unavailable to CG

Subsequent criticisms of reasoning
• If all foreign power is inherent, Const. would not need to mention it
o Detailed enumeration in Const. rebuts notion that POTUS is all powerful in foreign arena

Treaties and Executive Agreements
Anything that can be done by treaty can be done by executive agreement, except without Senate approval

Dames & Moore v. Regan
• President Carter froze Iranian assets in USA during hostage crisis
• As part of release, executive agreement terminated legal claims against Iran and transferred all Iranian assets back

Does POTUS have the authority to transfer Iranian assets and void legal claims?


• Congress has implicitly approved of the practice of claim settlement by Executive agreement

POTUS Power & War on Terror
Habeas Corpus. demands that a prisoner be taken before the court, and that the custodian present proof of authority, allowing the court to determine whether the custodian has lawful authority to detain the person

Art. I §9 Cl. 2
The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.

Boumediene v. Bush

• P was Bosnian national detained at Guantanamo
• Guantanamo lease gave Cuba ultimate sovereignty over the land
o U.S. exercises complete JD control

1. Do Guantanamo prisoners have habeas corpus, even though they are non-citizens detained outside our borders?


• IF CG is going to suspend HC, detainees must be afforded a meaningful substitute opportunity to demonstrate he is being held erroneously
• System must have ability to correct errors, objectively judge evidence, & consider exculpatory evidence
• Relevant factors in extending the suspension clause extra territorially
o Citizenship status & adequacy of its finding

o Nature of apprehension & detention sites
o Practical obstacles
• To deny HC b/c Cuba retains ultimate sovereignty would write the gov’e a blank check to govern with no legal constraint

The search for CG intent

Express Preemption
1. Do the words actually preempt?
2. If so, what is the scope of the preemption?
Lorillard Tobacco Co. v. Reilly (Cigarette signs)
• Attny General of Mass promulgated regulations governing advertising and sale of all tobacco
• Fed Statute expressly prohibited state law with respect to the advertising or promotion
of cigarettes the package of which are labeled in conformity with fed law

Is there express preemption even though Fed law talks about cigarettes only and refers to labels on the package?


• State police powers are not to be superseded unless clear and manifest purpose of CG
• CG purpose was to establish uniform labeling and advertising to ensure promulgation of
• CG legislated or chose not to in every area covered by state regs, therefore no room for
concurrent legislation

Dissent (Stevens)
• Precedent requires narrow construction of preemption provisions
o If ambiguous, discounted
• [different view of CG intent]

Implied Preemption
A. 3 Types of conflict preemption
1. Field Preemption
i. Fed scheme is so pervasive, there is no room for state law

2. Conflict Preemption
i. State and Fed law are mutually exclusive

ii. OR Federal Standard was intended to be the only standard

3. Impedance Preemption
i. Compliance with state statute impedes achievement of federal objective/purpose

B. ¿Was the federal standard meant to be the standard?
C. OR ¿Was a loose federal standard enacted leaving room for states to enact stricter

Conflict Preemption
Florida Lime & Avocado Growers v. Paul

• Avocados are certified mature under federal regulation but don’t meet CA’s stricter regulations of 8% oil


Is there conflict preemption?


As long as the standards may coexist and there is not clear and manifest evidence of CG intent of a single standard, no preemption

Impedance Preemption
Pacific Gas & Electric Co. v. State Energy Commission
• State law requiring proof of adequate storage/disposal facilities for nuclear waste before a plant can go up

Is there preemption?


• Congress has left sufficient authority in the states to allow the development of nuclear
power to be slowed or even stopped for economic reasons
• Institutional competence
o Not role of cts, if CG doesn’t like it they need to legislate to re-appropriate authority

Dormant Commerce Clause
A. Definition
1. Principle that state and local laws are unconstitutional if they place an undue burden on
B. Derivation
1. Inferred from Art. I § 8 power to regulate commerce among the states
C. Main Questions
1. If CG has legislated, does the federal law preempt?
2. If CG hasn’t legislated, does the state/local law excessively burden commerce among
the states?
a. i.e. if CG’s commerce power is lying dormant, state and local law still may not unduly impede InterComm
b. Commerce clause puts inherent power in Ct to limit state authority
D. Commerce Clause has two distinct functions
1. Authorization for CG action (+)
2. Limit state and local regulation (-)
E. Relation to other Constitutional provisions
1. If state/local gov’t discriminates against out-of-staters with regard to fundamental right
or important economic activities . privileges and immunities challenge (Art. IV §2)
could also be made
F. Justifications For
1. Historical
a. Framers intended to prevent state laws that interfered with InterComm
2. Economic
a. Economy is better off without impedance
3. Political
a. States and their citizens should not be harmed by states in which they lack political representation
G. Arguments Against
1. Textual . Framers could’ve included it if it is so important
a. “exercise of judicial power w/o textual basis

2. Institutional Competence
a. CG can invalidate state law if it unduly burdens . not job of unelected judiciary
H. ¿What is the scope of the DCC?
1. ¿Should cts be aggressive in striking down laws?
2. OR ¿should the Cts adopt posture of deference, only invalidate in extreme case?

H.P. Hood & Sons v. DuMond


• P applied for license for another milk plant
• DuMond denied under NY law saying he may if he is unsatisfied that issue would serve
the public interest and not cause destructive competition in saturated market

Can a restriction imposed under state law be valid if its statutory purpose and practical
effect would be to curtail the volume of interstate commerce for the benefit of local
economic interests?


• State can’t burden volume put into InterComm to further its own economic interests

Cooley v. Port of Philadelphia
Holding and Rule
• States have certain powers to effect interstate commerce
• That which is local in nature and does not require a uniform rule is State
• CG does not have ultimate and exclusive domain

Modern Approach
A. Balancing Approach . case by case means ends analysis
1. Benefits of the law v. burden imposed on InterComm
B. Relevant Factors
1. Burden on InterComm
2. Whether there is discrimination between INTER & INTRA
C. Lax Test (Burden Test) Pike v. Bruce Church Inc.
1. Is the burden on InterComm not excessive in relation to putative local interest?
2. Could the interest be promoted as well w/ less impact on InterComm?
1. Other Considerations
i. Does the Gov’t have a legitimate ends in mind? NOT protectionism

ii. Are the regulations reasonably adapted to ends sought?
iii. Even-handed regulation?
iv. Only incidental/insignificant effects on InterComm?
3. Presumption in favor of law
D. Strict Test (Discrimination Test) Hunt v. Washington State Apple Advertising Comm’n
1. Important State purpose
2. No less restrictive (Less discriminatory) means . necessary to achieve important interest
Never been basis
3. Presumption against. virtual per se rule of invalidity

South Carolina State Highway Dept. v. Barnwell Bros.
• SC passed law prohibiting trucks with gross weigh >20,000 and width >90in.
o 90% of trucks did not meet 90 in. requirement

Under what circumstances will a state highway regulation be valid in light of Commerce Clause?

So long as it discriminates equally between INTER and INTRA commerce AND rational
basis for law

• Burden Test
• No discrimination
• Police, health, morals (deference)
• Are regulations reasonably adapted to the ends sought?
o Ct. doesn’t judge merits, only the reasonableness
• Let’s not substitute judicial judgment for that of the legislature

Contrast With
Southern Pacific Co. v. Arizona EX REL. Sullivan

• AZ limited number of railroad cars per train as safety measure

Are the benefits of the state law outweighed by burdens on InterComm?


• Burden Test
• “When the regulation of matters of local concern is local in character and effect, and its
impact on the national commerce does not seriously interfere with its operation, and
the consequent incentive to deal with them nationally is slight, such regulation has been
generally held to be within state authority”
• Straight up Balance Test . burden on InterComm v. State Interest (ends sought)
• Wickard v. Filburn . Tragedy of the commons; if we’re going to have standards they
need to be national
• Ct. found huge burden, little benefit
o No reasonable relation to ends sought

Determining Whether Law is Discriminatory
Philadelphia v. New Jersey (Facially Discriminatory)
• NJ law prohibited importation of waste from outside state
• “to protect the quality of the environment of NJ”

Violate DCC?


• Protectionism measures can be unconstitutional for their means as well as their ends
• No matter the purpose of a statute, it may not be accomplished through discriminating
against articles of out-of-state commerce

United Haulers Assn v. Oneida-Herkimer (Facially Discrimnatory)
• State passed law requiring waste taken to central dump site
o No matter how far a trip for garbage companies

Does an ordinance requiring deliver to public facility impose a substantial burden on


• Favored waste disposal facilities were publicly operated; established in interest of anti-
trust and organized crime prevention . unrelated to protectionism
• Traditional Public Function
• Treating all private companies equally
• Declared non-discriminatory
o Ct. goes on to balance

Non-Discriminatory Laws Burdening InterComm
• Ct. finds non-discriminatory . Balancing Test
o Burdens v. Benefits

Pike v. Bruce Church, Inc. (Cantaloupes)
Can a non-discriminatory law impede interstate commerce?


Burden Test
• Balancing Test
o Where a non-discriminatory law effectuates a legitimate local interest and its effects on InterComm are only incidental, it will be upheld unless the burden imposed on InterComm is clearly excessive in relation to supposed local benefits

Consolidated Freightways Corp. v. Kassel
• P had 65 ft doubles
• Iowa banned trucks more than 60 feet

Was Iowa’s regulation burden on InterComm?


• Balancing Test
o Only marginal safety benefits
o Huge burden on InterComm

Dissent (Rehnquist)
• PA and NJ both on I-80 ban 65 foot doubles
• 17 states + DC in all
• State safety measures are afforded strong presumption of validity
• Ct. is not in the business of making public policy; constitutionally delegated to state legs
• Balancing Test performed is wrong
1. Is the state law a rational safety measure?
2. If so, sensitive consideration of the safety purpose in relation to the burden
i. So long as the safety measures are not pretext for protectionism/discrim (determined by balancing test)
ii. If valid safety regulation. uphold

Market Participant Exception
A. Defined
1. State may favor its own citizens in dealing with gov’t owned business and in receiving
benefits from gov’t programs
a. i.e. where the state is an actual participant
B. Still susceptible to privileges and immunities challenges under equal protection
C. States are free to participate and operate in a free market
D. Limitation
1. State businesses may favor in-state purchasers, but they may not attach conditions to a
sale that discriminate against InterComm

South-Central Timber Dev. v. Comm’ner DNR Alaska (Defining the Scope of MPE)

• AL required buyers of Alaskan timber to have it processed in Alaska before it is exportable

Under MPE, may a state impose requirement on “down-stream” market participants?


• MPE is limited to the specific market in which the state is a participant
• Unless market is narrowly defined, the exception will swallow the rule
• Distinction . once the goods come to rest in private hands

Privileges & Immunities (Art. IV §2)
Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several states
A. SCOTUS Interpretation
1. Limits the ability of states to discriminate against out-of-starters with regard to fundamental rights (Constitutional) or important economic activities

B. Scope
1. Discrimination against citizens of other states is a prerequisite for application
2. Limited to US citizens (not corporations)

C. Relationship to DCC
1. Both can be used to challenge state and local laws that discriminate
a. “mutually reinforcing relationship”
2. Differences
a. P&I- ONLY discrim laws
b. DCC – discrim OR burdensome
c. Corporations and Aliens can sue under DCC, NOT P&I
d. DCC has exceptions
i. Congressional approval of state law
ii. CG has acted
iii. MKT participant
D. Relationship to Other Constitutional Provisions
1. Distinguish from privileges OR immunities clause of XIV
a. “No state shall make or enforce a law which shall abridge the privileges or immunities of citizens of the US”

E. Analysis
1. Has the state discriminated against out-of-starters with regard to privileges and immunities that it accords to its own citizens?
a. Must be substantial reason and a substantial relation to that reason
i. Judged by availability of less discriminatory means
2. If so, is there a sufficient justification for the discrimination?
a. Strong presumption against discriminatory laws

What are the Privileges and Immunities of Citizenship?
A. The clause protects interests “which are fundamental; which belong, of right, to the citizens of all free governments. They may be comprehended under the following general heads:
1. Protection by the Gov’t
2. Enjoyment of life and liberty
3. The right to acquire and possess property of every kind,
4. And to pursue and obtain happiness and safety;
a. Subject nevertheless to such restraints as the government may prescribe for the general good of the whole”

B. Recent Developments
1. “The clause applies only with respect to those privileges and immunities bearing upon
the vitality of the Nation as a single entity.”

a. “Basic to the well-being of the nation”
2. Is the interest sufficiently fundamental to the promotion of interstate harmony?

Toomer v. Witsell
• Toomer and other out-of-state commercial fisherman challenged SC law that chaged
$2,500 to oosers and $25 to isers

Can a state discriminate to conserve natural resources?


• Is there substantial reason for discrimination?
• Does the degree of discrimination bear a substantial relation to that substantial reason?
• Unless non-citizens constitute a peculiar source of the evil trying to be warded off,
• “One of the privileges. . . OOSers can do business on terms of substantial equality with ISers

United Building & Const. v. Mayor & City Council of Camden

• Ordinance req’d 40% of workers on city-funded projects be city residents

Violate P&I?


• Pursuit of common calling is one of the MOST fundamental of privileges
• 2 part test
o Discrimination burdens a fundamental privilege (right to earn a living)
o No substantial reason for discriminating

Lester Baldwin v. Fish and Game Commission of MT

• MT law required higher fees for hunting for OOSers
• Baldwin was recreational hunter

No violation of P&I

• Recreational elk hunting is neither a constitutional right nor an important economic activity
• NOT means of livelihood
• Equality of access is not basic to the maintenance or well-being of the union

What is sufficient grounds for discrimination?
A. P&I is not absolute
1. A state may discriminate against OOSers in regard to all if there is substantial reason
and the discrimination bears a substantial relationship to the state objective
a. Are there less restrictive means?

SCt. Of New Hampshire v. Piper

• Only NH lawyers were allowed to practice in NH

Is the practice of law a fundamental right and protected by P&I?


• State argued nonresidents less likely to know rules, act ethical, be available, and do local pro bono
• Ct. individually discredited each claim as means chosen do not bear necessary relationship to the State’s objective
o i.e. this rule doesn’t actually solve the problem the state claims to have

Application of Bill of Rights to the States

Rejection Pre-Civil War
Barron v. Mayor & C. Council of Balitmore
• BoR is a restriction of Federal action, not state/local conduct (CJ Marshall)
o Faith in State Consts.

Slaughter-House Cases
A. 14th amendment passed after civil war. applied BoR to States Privileges OR Immunities
1. “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the US.”
2. Derived from framers’ intent in drafting XIV

Butchers’ benevolent Assn. of New Orleans v. Crescent City Livestock Landing

• LA law gave monopoly over New Orleans slaughterhouse business to Crescent City
Do XIII and XIV make the BoR applicable to the states?

No. Privileges OR Immunities clause protects nat’l citizenry not state

• XIV was meant to protect the negro

Revival of Privileges OR Immunities Clause
Saenz v. Roe

• CA enacted law limiting welfare benefits for citizens of <12 mos.
• Resident would receive amount they got in their last state

Violate Privileges OR Immunities of XIV?


• Denies the right to travel by denying a newly arrived citizen the same privs/immuns enjoyed by other citizens
• Rights to travel is a fundamental right
• Number of people gaming the system is so small so as not to justify burden on the rest
o People gaming the system wasn’t the motivation for the law anyway

Economic Substantive Due Process
A. Economic Liberties
1. Constitutional rights concerning the ability to enter into and enforce Ks; pursue trade, property
B. Lochner Era
1. Freedom of contract was a basic right under Due Process Clause
2. Aggressive protection of economic rights under due process clause
a. e.g. state minimum wage, max hours, etc. declared unconstitutional as violating XIV, interfering with contract
3. Ct. used federalism to limit the ability of CG to regulate the economy
a. Narrowly defined CG’s scope under commerce clause and found that 10th reserved zone of authority to the states

C. Post 1937
1. Great deference to gov’t economic regulations
2. Ct. imposed few limits on CG authority to regulate economy

Lochner Era
1. Freedom of K was a right protected by DP of 5th and 14th
2. Gov’t could interfere with freedom to K only to serve valid police purpose of protecting public health, safety, morals
3. Judiciary will carefully Scrutinize legislation to ensure means serve the ends

Lochner v. New York
• NY labor law prohibited bakery employees from working for more than 60 hours/wk or 10/day

What is the test for determining whether legislation seeking to restrict right to contract invalid under DP of XIV?

Is the law:
1. fair, reasonable and appropriate exercise of the police power, OR
2. unreasonable, unneccesary and arbitrary interference with the right of the individual to contract?

• Means must be directly related to the ends
• Ends must be appropriate and legitimate
• Means End analysis
• Must serve valid police purpose
o Protect public safety, health, or morals
• ¿Where do we draw the line for the police power (so not to become supreme state

Coppage v. Kansas
• Kansas law prohibited employers from making jobs conditioned upon no unionization

Can a state prevent an employer from conditioning employment on non-unionization?


• Freedom to contract includes stipulating no unions
• NOT legitimate exercise of police power to equalize bargaining power
o “No inherent right to join union”

Nebbia v. New York (Moving Away from Lochner)
• NY statute fixed min/max prices for milk
• NY claimed if milk prices dropped, threaten supply and quality of milk

Does the statute violate due process rights?


• Promoting public welfare

The End of Lochner

The end of laissez-faire jurisprudence
Economic Due Process has been practically unavailable to challenge gov’t economic and social welfare

Rational Basis Review
West Coast Hotel v. Parrish
• WA instituted minimum wage for women and minors

Is fixing minimum wages a constitutional limitation on freedom to contract?


• Constitutional where such restriction protected community, health and safety, or vulnerable groups
• Freedom to contract is not express in constitution; no longer fund. rt.
• “regulation which is reasonable in relation to its subject and is adopted in the interests of the community is due process”
• No longer is the state limited to health, safety, morals
• Gov’t can now regulate to serve any legitimate purpose
o Deference so long as reasonable

U.S. v. Carolene Products
• Fed Law prohibited shipping milk with any fat other than milk fat in InterComm

No violation of 5th DP

• Sufficient evidence to support claim of danger to public health
• Rational Basis Review

Footnote 4
A. Introduced idea of levels of scrutiny
1. Rational Basis for economic legislation
B. Heightened Scrutiny for legislation that:
1. Facially violates Constitution
2. Attempts to distort or rig political process
3. Discriminates against minorities, particularly politically underrepresented

Williamson v. Lee Optical
• OK law prohibited any person not a licensed optometrist or ophthalmologist from fitting lenses
o Qualified Opticians were excluded

Does OK law violate Due Process by arbitrarily interfering with opticians right to conduct business?


• Law is not least restrictive means, but it passes Rational Basis
• Institutional Competence
o It is not the job of the Ct. to substitute its judgment
o It is enough that there is evil @ hand and rational solution

BMW of North America v. Gore
• Gore was awarded actual damages of $4k plus $2m in punitive

Does award of $2m in punitive to the purchaser of a single car exceed constitutional limit?

Yes. Grossly excessive

• Measured by
o Degree of reprehensibility of the act (Moral Culpability)
o Ratio compared to actual harm suffered
o As compared to similar cases; civil or criminal financial penalties

State Farm v. Campbell
Is an award of $145m in punitive with compensatory of $1m excessively in violation of DP of 14th?

• Generally punitive should be <10x compensatory
o BMW analysis
• Punitive damages were calculated on national culpability of SF
o A state cannot punish a D for conduct that may have been lawful where it occurred
• Punitive damages didn’t bear relation to Campbell’s harm
• Cts. Cannot adjudicate merits of other parties’ hypothetical claims under Reprehensibility prong

Philip Morris USA v. Williams
14th Due Process bars punitive damages for harm caused to individuals not named in litigation

Current Supreme Court doctrine prohibits the judiciary from using the Due Process Clause instead of an applicable specific constitutional provision when one is available

Fundamental Rights Analysis & Non-Economic Rights (Unenumerated)
A. Right Protected by Due Process
1. Is the gov’ts interference justified by a sufficient purpose?
2. DP aims to protect individuals against majoritarian policy enactments which exceed the limits of governmental authority
i. “Protects rights so rooted in traditions and conscience of our people”
B. Right Protected by Equal Protection
1. Is the gov’t’s discrimination as to who can exercise the right justified by a sufficient purpose?
C. Ninth Amendment
1. Provides justification for the court to protect non-textual rights

Framework for Analyzing Fundamental Rights
A. 4 Issues to address
1. Is there a Fundamental Right?
a. Debate if these are only those enumerated in Const.
b. Fundamental Right . gov’t must meet Strict Scrutiny
c. Non-Fundamental Right . Rational Basis

2. Is that Fundamental Right Infringed?
a. Ct. considers the directness and substantiality of the interference
i. Gov’t demanding that someone forgo a const. rt. To receive benefits directly and substantially interferes
3. Is there a Sufficient Justification for the Gov’t Infringement of a Right?
a. Fundament . requires compelling interest
b. Non-Fundamental . Legitimate purpose
4. Is the Means Sufficiently Related to the Ends?
a. Fundamental.No less restrictive means
i. Gov’t burden to show
b. Non-fundamental.Reasonable approach
i. 1 step at a time
ii. Burden on petitioner

Right to Custody of One’s Child
Michael H v. Gerald D (What is fundamental?)
• Carole and Gerald were married
• Carole had affair with Michael
o Child

Does CA law conclusively presuming issue of a cohabitated married couple to be theirs violate fundamental right of true father to custody?


• Due process rights need to be ones that have traditionally been recognized
o Custody/Access to adulterous bastard children is not
• Leave the decision to the states
• Stagnant view of Constitution

Dissent (Brennan)
• Plurality unduly inserts traditional into Fund. Rt. Analysis
o What counts as traditional?

• Scores of precedent recognize and protect rights as fundamental that were not considered traditional at time of review
• Constitution Lives
• We must accept other peoples’ practices in our diverse society even though we don’t agree with them because we want ours protected; tolerance begets tolerance
o Birth control, corporal punishment, etc.

Right to Control Upbringing of One’s Children
Meyer v. Nebraska
• P convicted for teach a child German under NE statute that outlawed teach of foreign languages to students <8th grade

Does the statute infring on liberty guaranteed by XIV?


• Infringes liberty interest without reasonably relating to any of the legitimate ends claimed
• Statute would lose on ANY level of scrutiny

Troxel v. Granville (Grandparents’ Rights)
Pluarality; O’Connor

• Parents of deceased father sued for extended visitation rights to granddaughter
• WA statute allowed any person to petititon for visitation

Does WA statute infringe XIV Substantive Due Process?


• Statute as applied gave no special weight to Mother’s determination of what is best
• Mother was fit
• Visitation hadn’t been ended entirely

• Possible First Amendment Rights violation

Procreation and Contraceptives
Skinner v. Oklahoma
• Skinner sentenced to involuntary sterilization under OK habitual criminal act

Was involuntary sterilization violation of EP XIV? i.e. is the right to procreate a fundamental one


• OK offers no proof of biological inheritability
• Sterilization should be strict scrutiny b/c of dangers to society

Griswold v. Connecticut
• Contraceptive Ban even for married couples
o “to prevent illicit relations”

Does the Constitution provide a privacy right for married couples?


• Right to privacy is a fundamental right
o Not under DP, though
• Privacy is implicit in many of the specific provisions of the BoR
o 1st(Freedom of expression), 3rd(protecting homes from quartering), 4th(security against unreasonable search), 5th
o BoR has Penumbras & Emanations, various guarantees create zones of privacy
. Penumbra rationale since been discarded
• Would we let pigs into the bedroom?

Concurrence (Goldberg)
• 9th amendment was specifically enacted to guarantee that BoR was not the only ones guaranteed to citizens
• Privacy is so fundamental and deep-rooted in our society, especially marital privacy
o Ignoring this would mean giving no effect to the text of the 9th
. Marbury. all clauses need be given effect

• Basing one’s reasoning that right of privacy doesn’t exist on lack of textual enumeration
runs directly counter to 9th
o Need different reasoning
• 5th/14th liberty protections are not limited to language of the first 8 amendments
• In deciding whether a right is fundamental, judges look not inwardly but to the collective conscience to determine whether a principle is “so rooted there as to be ranked as fundamental”

Concurrence (Harlan)
Present approach
Violates 14th DP implicit concept of liberty . Use Due Process Clause as a basis for various unenumerated privacy rights; fuck penumbras

Concurrence (White)
Banning contraceptives for married couples is not related to purported state interest of preventing illicit relations

Dissent (Black)
No general right to privacy. Not the Ct’s job to re-interpret const. to keep it relevant to the times

Eisenstaedt v. Baird
• Lecturer busted for distributing contraceptive info and pussy foam
• MA law prohibited contraceptives by singles

No rational ground for different treatment of married and unmarried persons

• No rational relation to proffered objective of deterring premarital sex
• Broader view of privacy: all persons enjoy the liberty to make intimate decisions free from gov’t intervention

Right to Abortion
Roe v. Wade

• TX law made it a crime to obtain abortion except on medical advice to save mother’s life

1. Do abortion laws criminalizing all abortions violate Const.?
2. Does XIV DP protect right to privacy, including abortion?
3. Are there circumstances where a state may enact laws prohibiting abortion?

1. Yes. Laws that don’t consider the stage of pregnancy and other interests violate XIV DP
2. Yes. XIV DP protects privacy, including abortion
3. Yes. State cannot completetly deny; but the state has legitimate interests in protecting woman and potentially human life

• First Trimester
o Judgment of the doctor
o Less women die from early abortions than child birth

Compelling interests begins
• Second Trimester
o States may promote their interests in mother’s health by regulating abortion procedures similarly to other medical procedures
• Third Trimester – viability
o States may promote their interests in potentially human life by regulating or prohibiting abortion.except when necessary to preserve life/health of mother
• Ct. considered relevant risk rates
• There is a fundamental right to privacy
o 14th personal liberty and restrictions upon state action OR
o 9th amendment’s reservation of rights to the people
• Right to privacy is not absolute
o Must be balanced against state interests of maternal/potential life
• Questions
o ¿What is the value of human life?
o ¿Do we treat all life as equal?
o ¿Do different contexts give rise to different valuations?

Planned Parenthood v. Casey (Moving from a rule to a standard)

• PA law required notification of the husband prior to abortion

Does spousal notification requirement place an undue burden on woman seeking abortion in violation of Const.?


• Overruled trimester approach
o Held on to viability distinction, though
• Regulation of abortions prior to viability should be allowed unless there is an undue burden on access
• Constitutional Protection derives from 14th Due Process
• State can persuade-not coerce
• Reaffirms 14th liberty

Concurrence (Blackmun)
• Impinges right to bodily integrity
• Impinges right to privacy
• Conscripting woman’s body into involuntary servitude of the state
• Sexist under EP

Gonzales v. Carhart (Partial Birth Abortion)
• Federal law prohibited certain types of partial birth abortions

Is ban on certain types of abortions ok?

Constitutional on its face; open to as applied challenges

• Extreme devaluation of human life
• State interest in protecting fetal life

Dissent (Ginsburg)
• Blurs the line clearly drawn in Casey v. PP.doesn’t take precedent seriously
• No health exception for mother
¿Is it appropriate to substitute Ct./CG judgment for medical judgment?

Sexual Orientation
Lawrence v. Texas
• TX law made homo activity deviate sexual behavior

Does statute criminalizing sex violate 14th Due Process?


• Liberty protects person from unwarranted gov’t intrusions
• Liberty presumes autonomy of self
• Reaffirms right to privacy
• No legitimate state interest proffered

Voting Rights
Crawford v. Marion Cnty. Election Bd.
• Law required photo ID to vote

Is requiring an I.D. an unconstitutional burden on right to vote?


• State interest- preventing voter fraud
• Politics can be present, but if they’re the only reason, strike down
• If a nondiscriminatory law is supported by valid neutral justifications, those justifications are good enough, even if partisan politics are present

Dissent (Souter)
• State may not burden the right to vote by invoking abstract interests
o We want particular factual showing of threats to an interest proffered
o We want those threats to outweigh the particular impediments proposed

Reynolds v. Sims
• Alabama voting districts based on 63 year old data
Does AL apportionment of electorate violate equal protection?


• Vote dilution deprives some people of equal protection

Is the Gov’t’s classification justified by a sufficient purpose?

Fed action . 5th Amendment
State Action. 14th Amendment

A. Framework
1. What is the classification?
a. Facially
b. OR discriminatory impact
i. To prove gender or race classification, it must be show that discrimination is the purpose of the law
i. Because of not merely in spite of
1. Burden of proving purpose on challenger
a. Issue decided before scrutiny level is assigned
2. What is the Appropriate Level of Scrutiny?
a. Strict Scrutiny . Race/Nat’l Origin/ religion (Alienage IF done by states)
i. Necessary to achieve a compelling gov’t interest
1. Must proffer actual reasons
2. Compelling int. must be actual motive
ii. Means narrowly tailored to achieve end
1. No less discriminatory means
2. Can’t be one step at a time
iii. Gov’t has burden of proof as to elements (i) and (ii)
b. Intermediate Scrutiny . Gender Classification/ Bastard Kids
i. Important Gov’t Interest
1. Must proffer actual reasons
2. Important Interest must be actual motive
ii. Means Substantially Related (needn’t be necessary)
1. Cannot be one step at a time
iii. Gov’t has burden of proof of showing important interest and substantially related means
c. Rational Basis with Bite
i. Disadvantaged group is a sympathetic one
ii. Individual interest affected is especially strong
1. e.g. homos. not recognized as a class for heightened scrutiny but may be deserving
d. Rational Basis . age, disability, wealth, politics, felony status (Alienage IF done by CG)
i. Legitimate state interest
1. Hypothetical reasoning is ok
ii. Rational means
1. Can be one step at a time towards the ends
iii. Challenger has burden of proof
iv. Sliding scale of complete deference to substantial rigor
v. Uses: Law neither burdens a fundamental right nor targets a suspect class
3. Does the Gov’t Action Meet the Level of Scrutiny?
a. Means—Ends Test
b. Is the law underinclusive/overinclusive?
i. Not decisive
B. Heightened scrutiny

1. Suspect Class Criteria
a. Immutable characteristics
b. Ability to protect itself
c. Political representation
d. History of discrimination
e. How the factor bears on ability to contribute to society
f. Visibility of distinguishing characteristic

2. Arguments Against
a. Sliding Scale (Rational Basis with Bite?)
i. Constitutional and social importance of the interest adversely affected
ii. Unfairness of the basis on which the classification was drawn
b. Tiers are decisive
c. Examples
i. Romer v. Evans . RB with bite
ii. Grutter v. Bollinger . Unusual deference to Mich. Pussified strict scrutiny

Romer v. Evans
• CO voters adopted state Const. precluding gov’t from adopting measures that would make homos a protected class

Violation of EP?


• Amendment relegates homos as a solitary class and withdraws legal protections from them and only them
• A law making it more difficult for one group of citizens to seek assistance from the gov’t than another is a denial of the equal protection
• Means so broad in relation to end they cannot be credited

Railway Express Agency v. NY
• NY law prohibited advertising on vehicles

EP not violated

If the classification was related to the purpose for which it was made, no violation

Race Discrimination
A. Justifications for Strict Scrutiny
1. Primary purpose of 14th to protect blacks
2. Long history of discrimination makes it very likely that classifications will be based on stereotypes
3. Political powerlessness

Dred Scott v. Sandford
Arguable first exercise of judicial review since Marbury v. Madison to declare act of CG unconst.

• Moved from slave state (MO) to free state (IL)

• Slaves are not citizens under original meaning of Const. or Declaration

Korematsu v. United States
• All Japs were put in concentration camps

Was it within the power of CG/Exec to intern Japs?


• Compelling state interest (preventing espionage, invasion, sabotage)
• “definite close relationship” Means—Ends
o Immediate, imminent, and impending danger
• Could not reject finding by military that this was necessary
• Not about race; military issue
• (Overinclusive.All Japs & Underinclusive . not all spies)

Dissent (Murphy)
• Racial discrimination in any form has no justifiable part in a democratic way of life
• No evidence of immediate, imminent, impending public danger

• No reasonable relation between group of characteristics of Japs and dangers of invasion, sabotage, espionage
o Italians and Germans not treated similarly

Loving v. Virginia
• Felony for interracial marriage

Equal Protection violation

• No purpose for law independent of those based on arbitrary and invidious racial discrimination
o Clear b/c only interracials involving whites were felonious

Racial Segregation
Plessy v. Ferguson
• Plessy was 7/8 white; tried to sit in all white train car

States can constitutionally enact legislation requiring separate but equal?
• Separation does not imply inferiority

Brown v. Board 1

Is race segregation in schools ok?


• Separate but equal is never equal
• Education is a right that need be made available to all on equal terms
o Important step in protecting ability to enjoy all civil rights
• What is the role of education in American life today?
o Education in 1954 is just as important as the rights in the minds of the framers were upon adoption of 14th
• Generates feelings of inferiority causing lasting impacts

Johnson v. CA

ALL race classifications must meet strict scrutiny

• Strict Scrutiny should be a searching review

Brown v. Board 2
• Defining manner in which relief of Brown 1 will be accorded

• Cts. Will require schools make a prompt and reasonable start toward full compliance
• Schools should act accordingly to ensure students are admitted on racially nondiscriminatory basis with all deliberate speed

Identifying Racially Discriminatory Laws
Proof of Discriminatory Purpose
Washington v. Davis

• Test 21 failed by many more blacks

Is proof of disproportionate impact sufficient to establish unconstitutional racial classification?


• Purpose may be inferred from totality of circumstances
• EP protects people, not classes
o that other blacks also failed does not demonstrate that any individual was denied equal protection
• Rational Basis
o So long as neutral on face and law (not classification) rationally serves gov’t purpose
• Disproportionate impact absent showing of purpose would invalidate taxes, welfare, regulatory laws, licensing
• ¿Do we seek equal treatment or equal results?

McCleskey v. Kemp
• Blacks more likely to get death penalty

Does GA’s death penalty, which is given to blacks much more often, violate EP by treating the races differently?


• Corollary of as applied rule:
o If a statute is shown to have purposeful discrimination it must also show to have actual discriminatory effect
• Knowledge and awareness of discriminatory impact not enough
o Legislature MUST have selected or reaffirmed course of action at least in part because of, not merely in spite of, adverse effects on identifiable group

Arlington Heights v. Housing Development

• Discriminatory motivation need only be PART of reasoning
• Establishing Discriminatory Purpose
o Historical Background
o Departure from normal procedure
o Substantive Departures (going against furthering a proffered objective)
o Legislative history
. Contemporaneous statements in meetings, reports, etc.
o Sequence of events leading up to applied discrimination

Affirmative Action
Grutter v. Bollinger
• Flexibility/individual analysis.race wasn’t practically decisive (?)
• Are classifications benging/remedial or illegitimate/stereotypical?
• Strict Scrutiny is not strict in theory, but fatal in fact
• Narrow tailoring assures that the means chosen fit the goal so closely that there is little or no possibility that the motive for the classification was illegitimate racial stereotyping
o Cannot unduly harm members of ANY racial group
. Even remedial
• Considered workable race-neutral classifications

Dissent (Scalia)
• B+ in plays well with others?
• Not the schools job to teach life lessons
• Majority offers no bright lines of permissibility

Dissent (Thomas)
• Const. does not tolerate institutional devotion to racial discrimination
• Not Strict Scrutiny
• Educational benefits are the ends, diversity the means
• Other top law schools have succeeded in diversity without discrimination

Gratz v. Bollinger

• Students needed 100 points to guarantee admission
o 20 point bonus to minorities

Violation of EP

• Minorities practically compete on a another level, separate from whites
• No individual analysis/ flexibility

Gender Classification
A. Intermediate Scrutiny Justifications
1. Not framers of XIV intent
2. Biological differences between men and women make it more likely justified
3. Political Majority and lack of isolation such to be considered so discrete

Frontiero v. Richardson
• Female Air Force wanted benefits for husband

Does a statute offering different spousal benefit based on gender violate EP?


• Typical Factors
o History of discrimination
o Immutable characteristic etc.
• No purpose other than administrative convenience

Craig v. Boren
• Different drinking ages for girls and boys

Violation of EP

• No connection between the means and ends (traffic safety)
o Don’t closely serve to achieve objective

United States v. Virginia (VMI)

Violation of EP

• Must be “exceedingly persuasive justification” for gender classification
• Gender classification can be used remedially (economically)

Dissent (Scalia)
• Ct. applied strict scrutiny

When is it Discrimination?
Geduldig v. Aiello

• Distinction is pregnant and non-pregnant; one group is exclusively female but other is
male and female
o Not gender classification
o Men and women benefit fiscally from current set up
• Rational Basis Review
o One step at a time

Benefiting Women
Orr v. Orr

• Alimony made husbands but not wives pay

EP violation, means not substantially related

• State interests are well served under gender neutral classifications
• State is already holding individualized hearings to determine need
o Don’t need to use gender as proxy as well
• No additional burden on state to reform system to include men
• Laws CANNOT consider stereotypes

MS Univ. for Hwomen v. Hogan
• Focker couldn’t get in to women’s college

Violates EP

• Analyzing gender classifications must be done free of fixed notions concerning roles and abilities of males/females.
• Remedial reasoning must be grounded such that intentional and direct assistance to members of a disproportionately burdened class
o Women in nursing are not burdened
. No showing of limitation of opportunities

• Perpetuates stereotype of women’s work
• Even if compensatory ends were important, no substantial relation

Upholding Stereotypes that Benefit Women
Michael M v. Superior Court of Sonoma

• Any sex with female <18 is statutory rape
• Sex with young man not illegal

No EP violation

• Ct. recognized inherent physical and psychological differences between teen boys and girls
• Legislature is acting to punish the actor who suffers few of the consequences of sex
• Pregnancy is enough deterrence/punishment for girls.needn’t tack on legal cons.
o Equalizing deterrence
• Takes steps to help prevent teenage pregnancy
o Important interest . substantially related, satisfied

A. Policy Behind State Action
1. It preserves a zone of private autonomy
a. Perhaps balance freedom to infringe v. freedom of interference
2. Enhances federalism by preserving zone of state sovereignty
a. Police power to structure interactions between individuals

United States v. Stanley
• No blacks allowed at hotel

Does the 14th prohibit discrimination by private citizens?

No. 14th only prohibits state action

Marsh v. Alabama (Corp. Town)
Is the Constitution applicable to privately owned towns?


• Town acts like a gov’t body
• Private town is not like private home
• Benefitting from being open to the public; must accept burdens with benefits

Jackson v. Metropolitan Edison Co.
• Private utilities company terminated service for nonpayment
o Procedural Due Process Claim
• Private Co. held certificate of public convenience from PA Public Util. Commission

Not state action

• Although there was monopoly, that is not dispositive
• State approved . did not favor or encourage a decision

Shelley v. Kraemer
• Black family bought house
o Restrictive covenant barred blacks from property
• Court upheld covenant

Does state court action enforcing a private agreement constitute state action?


Lugar v. Edmondson Oil Co.
• Lugar owed Edmondson money
• Edmondson had sheriff attach Lugar’s real property to the lawsuit to prevent disposal

Property seizure constitutes State action?

Yes. Private party’s joint participation with state officials in seizure of property is sufficient to say state action

1. Has the deprivation resulted from the exercise of a right or privilege having its source in state authority?
2. May the private party actor appropriately be characterized as “state actor”?
a. Party charged must be state official, acting together with or getting significant assistance from a state official, or have his conduct otherwise attributable to the state
i. Invoking aid of state actors

Edmonson v. Leesville Concrete Co.
• Black man sued employer
• Employer used 2 challenges to remove blacks from jury

State action for private attny to use voire dire in discriminate way?


1. Did the deprivation result from exercise of priviliege deriving from state authority?
2. State Actor?
a. How much did the party rely on assistance and benefits of gov’t?
b. Is the actor performing a traditional gov’t function?
• In jury selection, gov’t is the one actually doing the excluding
• Substantial assistance from gov’t
• Gov’t function
• State action is present when private parties make extensive use of state procedures assisted by state officials

Norwood v. Harrison (MS textbooks)
Does a state funded program benefitting all schools equally constitute state action where some schools are segregated?


• Tangible, financial assitence
• Intent does not matter; subsidizing discrimination
• State’s constitutional obligation requires it to steer clear, not only of operating the dual system of racially segregated schools, but also of giving significant aid to institutions that practice racial or other invidious discrimination

Rendell-Baker v. Kohn
• Private school fired petitioner

Private conduct is not state action simply because private entity serves a public function

Blum v. Yaretsky
• Medicaid is footing Blum’s nursing home bill
• Nursing home moved Blum to lower level of care/supervision

Private entity decisions are not state action simply because the state reacts to the decision

• Medicaid provided no weight, encouragement, or influence onto the process

Reitman v. Mulkey
• Citizens voted in amendment to State Const. preventing any future limitation on private
ability to discriminate in housing Issue
Citizen passes referendum state action?


• Not just a repeal, intends to authorize racial discrimination
• Section significantly encourages and involves the State in private discriminations
• §26 changed the status of the law and makes the state a partner in discrimination
• State action b/c those who discriminate now do so under express const. authority

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