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Updated: 4/25/13


I. Judicial Review
A. Origins of Constitution and Judicial Review:
1. Origins of the Constitution
a. The Framers: Some see the framers as intellectual giants, others as
compromisers, others as aristocratic conservatives who feared the power of
the people and sought to limit it where they could.
b. Articles of Confederation: Government lacked the power to tax, regulate
commerce, had neither a national judicial authority nor an executive branch.
Madison wrote in April 1787 of the problems of the Articles: multiplicity of
laws, states jealous actions
c. Constitutional Convention: only authorized to make changes to the Articles,
not scrap them entirely and draft a new constitution. Framers agreed to meet
in secret: no official notes from the Philadelphia convention.
d. Arguments over the New Constitution:
i. Federalists: Civic education not enough and would carry a tyranny
of its own. Direct democracy is especially susceptible to faction and
tyranny. Favored the presidency, Senate and less favorably, the
House. Wanted large election districts. No branch would be able to
speak authoritatively for "the people." Desire for interstate
commerce was a threat to the principles underlying the Revolution
ii. Anti-Federalists: Republican Theory relied on civic virtue: founded
upon dialogue and discussion among the citizenry. Hostile to a
dramatic expansion in the powers of the national government,
distrusted the idea of representatives elected by the people to serve
in the far-off national capital.
iii. Federalist Papers: Propaganda pieces written and published to sway
undecided citizens.
i. Federalist No. 10: Majorities were running rougshod over
treaties, property rights, creditors' rights. A well-constructed
national government will break and control faction by
controlling the effects of faction upon the government.
Causes of faction cannot be eliminated. In a republic, the
delegation of government is given to a small number of
citizens elected by the rest and government may be extended
over a far greater number of citizens.
ii. Federalist No. 51: Separate powers and prevent extreme
factions from taking power. Presidential candidates move
toward the middle and compromise to win.
2. Marbury v. Madison (1803):
a. Facts: Marbury was appointed by Adams and confirmed by the Senate to
serve as a Justice of the Peace in DC in the final days before Jefferson was
sworn in. Jefferson refused to deliver the commissions of the justices
appointed by Adams. Marbury sought a writ of mandamus to compel
Secretary of State Madison to deliver the commissions.
b. Holding: The Supreme Court is without power to direct the President to
deliver Marbury's commission

c. Rationale: Marbury had a legal right to the office and he was deprived of
that right by a technicality. The Supreme Court can order any official
around if they have broken the law, but the Court does not have jurisdiction
over the issue because Congress unconstitutionally gave original
jurisdiction to the Supreme Court.
"It is emphatically the province and duty of the judicial department to
say what the law is... a law repugnant to the constitution is void; and
that courts, as well as other departments, are bound by that
d. Justifications for Judicial Review:
i. Written constitution: Constitution was written and ratified by the
people, a more extraordinary form than a mere statute.
ii. Notions of the judicial role
iii. Supremacy clause of the constitution
iv. Grant of jurisdiction
v. Judges' oath
vi. Framers and ratifiers commonly discussed that they believed
unconstitutional legislative acts were invalid, though others
suggested that courts could not violate the "will of the people" as
indicated by passed legislation (Federalist 78, written by Hamilton).
e. Notes about the opinion: No citations. Perhaps Marshall wanted to convince
the elite that he was correct or didn't want to be overturned, Constitution
doesn't mention judicial review so it had to be "made up," something bigger
than mere court cases.
B. Judicial Exclusivity and Interpretive Approaches to the Constitution
1. Cooper v. Allen (1958): Judicial branch's interpretation is the only authoritative
interpretation. Conflicts with a reasonable inference that members of the
Legislative and Executive branches must interpret the Constitution on their own, in
order to make and execute the laws that the court has not spoken to. States must
follow federal laws even if they disagree
2. McCulloch v. Maryland (1819):
a. Facts: Congress had created the 2nd BUS, which some states (like MD)
proceeded to levy taxes upon. MD brought suit against the bank for
refusing to pay the state's taxes. Marshall was a strong Federalist, a strong
b. Rationale: The Constitution derives its whole authority from the people
(their representatives) who proposed and ratified it. Every detail of
government need not be expressly or minutely described. A narrow
interpretation of "necessary and proper" as advocated by the State of
Maryland where "necessary" means "absolutely necessary/essential," is not
warranted. The Constitution has implied powers and must be allowed to
adapt. Statutes are temporary, designed to address a particular problem and
which can be changed or repealed if it is deemed relevant. Even without a
necessary and proper clause, Congress would still have the implied
power to create a national bank based upon the other enumerated
powers. State Legislatures cannot act over people whom they do not

c. Holding: Congress does not have the explicit power to create a bank, but
has other enumerated and implied powers to create a national bank; MDs
act was unconstitutional.
d. Critique: Problems with Marshall's view that if the ends are legitimate, then
the means used to achieve that are legitimate as well. What then constrains
judges from applying value judgments to current debates with a "living
C. Standing
1. Case or Controversy Requirements of Article III: Power of the courts is
substantial, and the court has had to develop mechanisms to temper that power by
limiting jurisdiction.
a. Article III Rationale: (1) Serve the end of judicial restraint: limit occasions
for intervention into legislative or executive processes; (2) Ensure that
constitutional issues will be resolved only in concrete issues rather than
hypothetical or abstract problems (3) Ensure that decisions are rendered at
the behest of those actually injured rather than bystanders
b. Standing Doctrine Requirements: in order to bring a federal action, the
plaintiffs must be asserting a live case or controversy.
i. Actual, personal (not general and widely shared), concrete injury:
must be suffering an ongoing, imminent, or threatened injury.
Lyons case: Must show that LA police officers always use a
chokehold or that the City authorized officers to do that.
ii. Causation: injury fairly traceable to defendant's conduct
iii. Redressability: injury can be remedied by court order
2. Allen v. Wright (1984)
a. Facts: Parents of black children brought a nationwide class action suit
because the IRS had not carried out its obligation to deny tax exempt status
to discriminatory schools, contending they were (1) Harmed by the mere
existence of Government aid to discriminatory private schools (stigmatized)
and (2) Those policies impede their ability to attend integrated public
b. Holding: Plaintiffs do not have standing to litigate their claim based on the
"stigmatizing injury" alleged. The second claimed injury is not fairly
traceable to the government (causation).
c. Rationale: It is speculative whether withdrawal of a tax exemption would
lead a school to change its policies, or whether desegregation is impeded by
the presence of segregated private schools. Price increase in tuition as a
result of removing the tax break will not necessarily "cause" diversity to
d. Dissent: Justice Brennan: elimination of tax-exempt status would lessen the
impact those schools have in defeating efforts to desegregate public schools.
Justice Stevens and Justice Blackmun: If tax-exemption encourages
charitable activities, then withdrawal of that treatment would discourage
them and promote desegregation. The Supreme Court has the power to say
"what the law is" and would not be infringing upon Executive branch's
administration. The higher the price, the fewer people will attend the
3. Massachusetts v. EPA (2007)

a. Facts: A group of states, local governments, and private organizations
alleged that the EPA had abdicated its responsibility to regulate greenhouse
gases under the Clean Air Act.
b. Holding: MA does have standing, acting to protect its sovereign territory,
risk of harm is both actual and imminent, and there is substantial likelihood
that the courts can provide relief through a decision.
c. Rationale: Just because climate change risks are "widely shared" does not
mean that MA will not be harmed individually: injury to its coastlines. The
EPA's refusal to address the emissions contributes, however slightly (a little
difference is enough). Even though the EPA may not have the power to
stop greenhouse gas emissions, that does not mean that its actions will not
slow or reduce the harm to MA. Seems to contradict Allen (a little
difference is not enough).
d. Dissent: There is no substantial evidence to prove how much of the MA
coastline has been or will be lost due to global warming as the sea level
increases. Petitioners note the potential sea level increases by 2100, which
is not "imminent" enough to warrant a remedy. Causation is speculative
no evidence that the EPA's actions are contributing to MA's rising sea
levels. Courts should not be a forum for policy debates.
4. District of Columbia v. Heller (2008)
a. Justice Scalia, majority: Hates the "living constitution" metaphor. Focuses
on grammatical/textual basis for the interpretive foundation of the 2nd
amendment, cites authorities including old dictionaries, historical treatises
and older laws, State Constitutions.
b. Justice Stevens and Breyer, dissenting: Cites to Miller (1939) and Lewis
(1980) and criticizes majority opinion for not presenting any new
information/evidence. Focuses on purposes/intent rather than text and notes
several hypotheticals which it claims were not within the intended scope of
the amendment. Notes "inconclusive research." How can we balance the
2nd Amendment with the rights of others to life? The gun control issue was
not debatable until recently: reigning interpretation was that the 2nd
amendment only applied to militia.
D. Political Questions
1. Jurisdictional Doctrines Which Avoid Judicial Review
a. Advisory Opinions: No case or controversy. Washington asked Supremes to
issue an advisory opinion, which the Justices declined because they
believed it to be unconstitutional. OLC now serves this advisory function
for the executive branch.
b. Standing: Plaintiff does not have concrete interest who can sue
c. Mootness (issue has been remedied)/Ripeness (will happen in the future but
hasn't happened yet): Timing (when you can sue)
d. Political Question: Issue raised is not appropriate for judicial review
2. Baker v. Carr (1962)
a. Facts: TN voters brought suit challenging the state's 1901 apportionment
law, which because of population growth in the ensuing 60 years, meant
that some individual votes (in population-declining rural areas) carried more
weight than others. Guaranty Clause (Article IV 4) gives Congress the
power to guarantee each state a republican form of government.
b. Holding: No nonjusticiable political question presented here.

c. Rationale: Justice Brennan: Other branches will not be able to work out this
issue. The doctrine is not also one of "political cases." If one of these
formulations is present, the case should be dismissed because of the
nonjusticiability of a political question:
i. Textually demonstrable commitment to another branch
ii. Lack of manageable standards
iii. Need for policy determination
iv. Impossibility of undertaking independent resolution without
expressing lack of respect due coordinate branches of government
v. Unusual need for unquestioning adherence to a political decision
already made
vi. Potential for embarrassment from multiple pronouncements by
various departments on one question
d. Dissent: Justice Frankfurter: The court must be detached from political
entanglements and abstain from putting itself into political disputes. There
is a class of controversies which the Courts have found they will not enter
intostructure and organization of political institutions in the states
3. Nixon v. United States (1993): Impeached and convicted former federal judge
Nixon sought judicial review of his removal, claiming that the Senate failed to "try"
him according to the process normally used by criminal courts. Rehnquist's
opinion stated that the word "try" in the Constitution has a considerably broad
meaning (lack of manageable standards), and the Senate has sole discretion on how
to use it (a textually demonstrable commitment to another branch). Cannot expose
political life of the country through review of impeachment proceedings (need for
finality: new judge had been appointed and confirmed). The Court did not find
that Nixon's treatment was constitutional or that his rights weren't violated
decided not to hear the case because it is a political question.
4. Bush v. Gore (2000)
a. Facts: FL Supremes ordered a manual recount of undervotes in all counties
that had not yet completed a recount (determine the intent of the voter) and
ordered that the results of prior but untimely manual recounts be included in
the vote totals. Each county used different standards for determining the
intent of the voter.
b. Holding: Reverses judgment of the FL Supreme Court ordering a recount to
c. Rationale: Recount mechanisms do not satisfy the minimum requirement
for non-arbitrary treatment of voters necessary to secure the fundamental
right of the Due Process Clause. Minimal procedural safeguards specified
by the FL Supremes (connection to equal protection), and no evidence
that a recount can take place before the statutory selection of electors
required by December 12. Rehnquist, Scalia, Thomas, concurring: Election
of the President is unique: defer to the FL Legislature's decision on the
deadline. FL Supreme's remedy departed from the statutory framework in
place on November 7, and the remedy outlined would have been
inconsistent with the statutory requirement to meet the December 12
d. Dissent:
i. Stevens, Ginsburg, Breyer: The Supreme Court has long deferred to
highest state courts on the interpretation of state laws. FL Supreme

Court's jurisdiction was wholly consistent with the Article II grant of
authority. Jeopardizes the public's confidence in the impartiality of
the judge
ii. Ginsburg, Stevens, Souter, Breyer: Article II does not call for the
Supreme Court's scrutiny of the selection of electors.
iii. Breyer, Stevens, Ginsburg, and Souter: Congress could have
resolved the electoral dispute, as a political body, rather than
deferring the issue to the Supreme Court. Court failed to check its
own power and exercise self-restraint.
5. Zivotofsky v. Clinton (2012)
a. Facts: A boy was born in Jerusalem as a US citizen, and his parents
requested that his place of birth be listed as "Israel," consistent with federal
law. The State Department denied the request, and listed "Jerusalem" as his
place of birth on his passport.
b. Holding: Reversed lower court's ruling that this case involved a political
question (the political status of Jerusalem), but rather requires examination
of the constitutionality of the statute in question. Remanded to the lower
courts for determination of whether the statute impermissibly intrudes upon
Presidential powers. Justice Breyer dissented, noting that plaintiff was not
claiming violation of any constitutional right or interest which can be
protected by the courts.
II. Federal/State Power
A. Commerce Clause
1. New Deal Raised Two Questions:
a. What is the relationship between federal power and state power?
b. How do courts and judges look at the law? Reigning interpretation had
been that judges would come up with some formula or principle which
would assist in the decision of a case. In the 1930s, a new theory of law
became prominent: legal realism, which stated that law did not develop
through formal rules or logical principles, but through reality and
confrontations with it.
2. Gibbons v. Ogden (1824)
a. Facts: NY Legislature granted an exclusive franchise to operate a steamboat
in NY waters to Fulton and Livingstone, who licensed that right to Ogden,
who would operate a ferry between NY and NJ. Gibbons also had a ferry
system, licensed under a Congressional statute, to operate between NJ and
b. Holding: 1793 Congressional statute authorized Gibbons' ferry into NY
waters, NY monopoly is invalid under the supremacy clause. A type of
case present throughout the first century of the US.
c. Rationale: Congress's power to regulate interstate commerce "concerns
more states than one. Internal limits: protects federalism, Congress can
only regulate interstate commerce. External limits: Congress can regulate
anything reasonably regarded as interstate or foreign commerce.
3. A. L.A. Schechter Poultry v. United States (1935)
a. Facts: NIRA authorized the President to approve "codes of fair competition"
developed by boards from various industries, established minimum wage
and maximum workweek standards.
b. Holding: NIRA is unconstitutional

c. Rationale: When the birds reached Schechter, the interstate commerce
ended, and plaintiff was involved in primarily local transactions. If the
commerce clause reached all transactions with an indirect effect on
interstate commerce, federal power would embrace all aspects of the lives
of the people. Activities local in their immediacy do not become interstate
and national because of distant repercussions (production vs. commerce).
4. Carter v. Carter Coal Co. (1936)
a. Facts: Bituminous Coal Conservation Act of 1935 set up local coal boards
to set minimum prices and allowed them to administer a code allowing
employees to bargain collectively.
b. Holding: BCCA price fixing provisions struck down.
c. Rationale: Coal production does not cross the threshold into interstate
commerce because of the multiplication of local coal production activities
(aggregation principle).
d. Dissent: But Justices Cardozo, Stone, and Brandeis (legal realists) would
have upheld the price-fixing provisions, noting that local price and wage
disputes can threaten the "steady and uniform" supply of a fuel vital to the
national economy.
5. NLRB v. Jones and Laughlin Steel Corp (1937)
a. Facts: NLRA established a system for regulating union/ management
relationships, allowed union organizing and collective bargaining,
supervised by local boards. J&L controls and owns its operations from
mining to transportation and sales. NLRB charged J&L with unfair practice
of firing employees for organizing a union. 75% of J&L products are
shipped out of PA.
b. Holding: NLRA is constitutional: court of appeals' decision is reversed.
Justice Roberts changes his vote to decide the case for the government:
disliked the court-packing scheme and was fearful about the effects of
striking down NLRA.
c. Rationale: Acts which directly burden or obstruct interstate or foreign
commerce, or its free flow, are within the reach of the congressional power.
Burdens arising from labor/management disputes can obstruct the flow of
interstate and foreign commerce. Rights to union organizing are often the
"essential condition of industrial peace."
6. Wickard v. Fillburn (1942)
a. Facts: AAA allowed the Ag Secy to set quotas for wheat production.
Fillburn exceeded his quota, and was fined $117, even though he did not
sell the extra wheat, he ate it and fed it to his livestock. Roosevelt had
made numerous pro-New Deal, legal realist justices to the court since 1937:
Douglas, Frankfurter, Black, Jackson (writes this opinion).
b. Rationale: Though the actions of Fillburn are small, similar actions of
similar small farmers nationwide have a significant effect on the national
wheat market. Aggregation principle.
c. Holding: Reversed: Congress may properly have considered that wheat
consumed on the farm where grown, if outside the scope of regulation,
would have a substantial effect in defeating its purpose to stimulate trade
therein at increased prices.
B. Recent Commerce Interpretation
1. Heart of Atlanta Motel v. United States (1964)

a. Facts: Congress passed the public accommodation provision in the 1964
Civil Rights Act. The motel advertised in national magazines and on
billboards, and 75% of its registered guests were from out of state.
Congress could not simply prohibit segregation by the 14th Amendment
because no state passed a law saying restaurants couldn't serve blacks
private individuals and business just self-segregated.
b. Holding: Statute upheld as a valid exercise of the power to regulate
interstate commerce
c. Rationale: Racial discrimination has a significant effect on commercial
intercourse. Congress has the power to regulate local incidents and local
activities which affect that commerce.
2. Katzenbach v. McClung (1964)
a. Facts: Involved Ollie's Barbecue, of Birmingham, AL, which is located 11
blocks from an interstate and somewhat greater distance from railroad and
bus stations. Half of the food purchased comes from out of state. Ollie's
claimed they were a local restaurant who served local clientele.
b. Holding: Congress had a rational basis for finding that racial
discrimination in restaurants had a direct and adverse effect on the free flow
of interstate commerce. Under the Commerce and Necessary and Proper
clauses, Congress has the power to protect interstate commerce from these
discriminatory practices. Reverses Schechter.
c. Rationale: Racial discrimination has a significant effect on commercial
intercourse. There is a possibility that a remote lunchroom which sells only
to local people and buys all of its supplies locally may be outside the
regulation of Congress. Theory is that restaurants who serve blacks will
generate more business, thereby generating an increase in interstate
commerce. Test is whether Congress had a rational basis to conclude
that it affected interstate commerce.
3.United States v. Lopez (1995)
a. Facts: Congress passed the Gun Free School Zones Act of 1990, making it a
federal offense for any individual to possess a firearm in a school zone.
b. Holding: Act exceeds the authority of Congress under the commerce clause.
Struck down a Congressional statute for the first time since the New Deal
using commerce clause.
c. Rationale: Justice Rehnquist: Congress may regulate (1) Channels of
interstate commerce, (2) Instrumentalities of interstate commerce, or
persons or things in interstate commerce, or (3) Local activities which have
a substantial relation to interstate commerce. Government's argument opens
the door to regulation of virtually any activity. Determination of whether an
intrastate activity is commercial or noncommercial may result in legal
i. Justice Kennedy and Justice O'Connor, concurring: An attempt to
develop an argument based on federal/state power. Education is
outside of the meaning of commerce in an ordinary sense.
ii. Justice Thomas, concurring: Whole "substantial effect" doctrine/test
ought to be invalidated. Founders never intended for Congress to
regulate local matters.
d. Dissent:

i. Justice Stevens, dissenting: Guns are articles of commerce and
articles which can be used to restrain commerce.
ii. Justice Souter, dissenting: Some respect should be given to
Congress in dealing with matters open to a wide range of possible
choices. This opinion is a return to the old dichotomous choices of
the pre-New Deal era.
iii. Justice Breyer, Stevens, Souter, Ginsburg, dissenting: Creates three
legal problems: (1) Runs contrary to the upholding of some actions
with limited connection to foreign/interstate commerce, (2) Wrong
to think that there can be distinctions made between commercial and
non-commercial, (3) Threatens uncertainty in an area which seemed
settled until now.
4. Wickard/Katzenbach "Rational Basis Test"
a. No distinction between production/trade; direct/indirect effect
b. Aggregate effects of many individuals
c. Congress need only have a rational basis for concluding that regulated
activity substantially affects interstate commerce
5. Lopez/Morrison "Economic/Non-Economic" Test:
a. First determine if the nature of the activity is economic or non-economic. If
it is economic, use the Rational Basis Test. If it is not economic, generally
can't aggregate effect and need much more than a rational basis for the law.
b. If non-economic activity, see if there is a jurisdictional nexusa specific
link between intrastate activity and interstate commerce. The court has not
resolved how strong the nexus has to be.
c. Balancing? In Lopez, Kennedy and O'Connor suggest balancing State and
Federal interest, but Morrison makes it clear that economic/non-economic is
the key distinction.
6. United States v. Morrison (2000): Civil remedy portion of the Violence Against
Women Act unconstitutional. Rehnquist: gender-motivated crimes of violence are
not economic activitystates handle crime. Souter: national power is to be limited
in favor of preserving a clear separation of powers between states and the federal
7. Gonzales v. Raich (2005): CA law allows people to use marijuana for medical
purposes, in violation of federal law. Plaintiff argues that the commerce clause
does not allow Congress to regulate local growing not for sale. (1) Government: in
order to prevent marijuana being sold on the interstate market, we must prevent its
use and growth. (2) If you have something plausible under the commerce clause,
the necessary and proper clause may provide authorization. Dissenters (OConnor)
note that there is limited evidence that homegrown medicinal marijuana users
constitute a sizable enough class to have a discernible impact on the illicit drug
C. Challenge to Federal Health Care Law, National Federation of Independent Business v.
Sebelius (2012)
1. Holding:
a. Individual Mandate: Individual mandate is unconstitutional under the
commerce clause and under the necessary and proper clause. However, the
mandate is constitutional under Congress's power to lay and collect taxes
(Roberts+ liberals).

b. Medicaid Expansion: The mandatory expansion of Medicaid coverage is
unconstitutional (by a 7-2 holding), but the entire ACA can be upheld
without this expansion.
c. Canon of Constitutional Avoidance Violated (Marbury v. Madison): court
should operate in a way to avoid difficult constitutional questionsjudicial
review used only when necessary. Based on the decision in the tax matter,
the commerce clause discussion was unnecessary.
2. Rationale:
a. Commerce Clause: Congress does not have the power to create a sphere
over which it can exercise its power to regulate and cannot reach beyond its
scope and compel those outside of it to enter that sphere of regulation.
Congress can regulate activity, not inactivity: (1) Structural: Constitution
sets out enumerated powers; (2) Textual: Constitution gives Congress the
power to "coin money" and to "regulate the value thereof," regulating is
different from creating, otherwise many enumerated powers would be
superfluous; (3) Case precedent; (4) Intent: framers understood the
difference between telling people to do something and regulating what they
already do; (5) Need some limits.
b. Tax Clause: The penalty is not assessed upon those who purchase health
insurance, and the individual mandate is not a command to purchase
insurance, but rather makes going without insurance just another thing the
government taxes. Congress intended a tax.
c. Medicaid Expansion: Crosses the line from persuasion to coercionstates
really have no choice but to expand coverage or lose all of their Medicaid
funds. Congress cannot penalize states that choose not to participate in the
program. Just because the Medicaid expansion is no longer required does
not mean that states will refuse to participateCongress would not have
wanted the whole act to fail simply because some states chose not to
participate. Congress can get what it wants by (1) Commerce clause, (2)
Taxing, (3) Offering money to states with conditions.
d. Dissent:
i. Commerce Clause: Justice Ginsburg: (1) Everybody will need
health care at some point, will enter the market. Difficult to make a
distinction between those who are and are not engaged "actively" in
the health care market. (2) Congress is not "creating" a market for
healthcare--it already exists, (3) "Parade of horribles" does not work:
see broccoli, (4) What Congress is really regulating is the decision
to self-insure or buy insurance later, (5) Courts have tried and failed
to come up with limits beforedoesnt work. Rely on the political
process to limit the powers of the federal government.
ii. Tax Clause: Justice Scalia: Congress did not intend for the
"penalty" to be a tax.
D. State Powers over Commerce
1. State Regulation of Interstate Commerce (Negative/Dormant Commerce
Clause: Constitution gives Congress the power to regulate commerce among the
states and with foreign nations, which implies that States cannot regulate interstate
a. Discriminatory: per se invalid: strong presumption of unconstitutionality.

b. Neutral: not geared to discriminating against interstate commerce, but may
address local/interstate commerce, requires balancing test
i. Burden on interstate commerce
ii. Health and safety justification
2. Preemption: Congress may have acted upon the issue in question, preempting any
state's statute in conflict with federal law. Field preemption: Congress has
regulated on a particular subject matter. Implied preemption: Congress has passed
a statute which impliedly preempts state action on those issues.
3. City of Philadelphia v. New Jersey (1978)
a. Facts: A NJ law prohibits the importation of waste which originated out of
state. Private landfill operators challenged the statute on preemption and
constitutional grounds. New Jersey argued that it wasn't commercejust
b. Holding: Reversed: Law is not preempted by federal legislation, but the
statute violates the principle of nondiscrimination.
c. Rationale: Waste is a commodity. Per se invalidity when simple economic
protectionism is effected by state legislation. NJ may not accomplish its
ultimate purpose by discriminating against articles from other states,
regardless of their value. NJ concedes that there is no basis to distinguish
out of state waste from domestic waste (NJ Supremes found a legitimate
health purpose). Problems: (1) Upholding the statute may induce other
states to enact similar protectionist statutes, which would increase
retaliatory acts, (2) One state's legislature cannot act over others whom it
does not represent (McCulloch v. Maryland).
4. Maine v. Taylor (1986): ME statute banning the importation of live baitfish is
upheld, for two reasons: (1) Statute shows a legitimate local purpose which (2)
Cannot be served by available nondiscriminatory means. ME's fish populations
might be damaged by nonnative species, and there is no way to inspect imported
baitfish for parasites and commingled species.
5. Exxon Corp v. Governor of Maryland (1978)
a. Facts: MD statute prohibits producers/refiners of petroleum products from
operating retail service stations within the state. But, no petroleum products
are refined in MD and only 5% of stations are operated by a refiner or
b. Holding: Affirmed: MD statute does not discriminate against interstate
goods, nor does it favor local producers and refiners
c. Rationale: Statute does not create barriers to interstate independent dealers
nor prohibit the flow of interstate goods, place added costs upon them, or
distinguish between in state/out of state companies in the retail market.
Wont question the wisdom of the statute.
d. Dissent: Justice Blackmun: In state retail stations are protected from
competition of out of state businesses. Statute inflicts significant hardship
upon major brand companies, all of which are out of state firms. The
commerce clause is partly designed to prevent unfair burdens on out of state
concerns and disruptions of the national economy.
6. Kassel v. Consolidated Freightways Corp. (1981)
a. Facts: IA statute prohibits the use of 65-foot double tractor trailers within
the borders of the state, restricting most trucks to 55 feet, with some

exemptions. Consolidated has incurred $2 million in extra costs because of
the statute.
b. Holding: Affirmed: statute unconstitutionally burdens interstate commerce
without any legitimate safety concerns, violating the commerce clause.
c. Rationale (plurality opinion):
i. Justices Powell, White, Blackmun, Stevens: This is a neutral
statute, which requires a balancing test. High burden on
interstate commerce with low health and safety justification. IA law
is out of step with all other western and mid-western states. Law
provides benefits of large trucks to Iowans but shifts costs of their
operation to other states. Origin of the "border cities exemption"
shows that the judgment was made primarily upon deflection of
traffic rather than safety.
ii. Justices Brennan and Marshall: The state's purpose was
protectionist in nature and is therefore unconstitutional under the
commerce clause.
d. Dissent: The safety regulation should bear the strongest presumption of
validity against commerce clause challenges. Consolidated made a
voluntary decision to use 65 foot doubles which required IA to yield to the
policy choices of other neighboring states. Dubious to strike down
legislation on the basis of asserted legislative motives.
III. Separation of Powers
A. General Framework
1. Youngstown Sheet and Tube Co. v. Sawyer (1952)
a. Facts: Steelworkers union announced a nationwide strike to begin in April
1952 and Truman issued an executive order directing the Secretary of
Commerce to take possession of the steel mills and keep them running, then
notified Congress of his action, giving it an opportunity to approve or
disapprove of his action.
b. Holding: The Executive Order cannot be sustained as an exercise of the
President's military power as Commander in Chief.
c. Rationale:
i. Justice Black, opinion: There might be emergencies, but there is a
clear separation of powers: formalism. Each branch should be
cabined to prevent dictatorship. Law is some policy incorporated
into a statute which tells the President/judiciary what to do.
ii. Justice Frankfurter, concurrence: Saw Black's approach as too
simplistic and formalistic. Current seizure taken under presidential
power at its lowest ebb, without the expressed or implied will of
Congress. Represents an exercise of authority without law. Legal
realism can give meaning to the text. "It is an inadmissibly
narrow conception of American constitutional law to confine it
to the words of the Constitution and to disregard the gloss which
life has written upon them." If there were a long history of the
executive seizure of private industry, there might be a "gloss" on
executive power.
iii. Justice Jackson, concurrence: The art of governing is not based
upon the simple formula of separation of powers. Presidential
powers are not fixed, but fluctuate from time to time in relation to

Congress's actions. Three scenarios: (1) President acts pursuant to
express or implied Congressional consent, (2) Congressional silence,
(3) Acts against the implied or express consent (the case here). No
statute authorizes this exercise of Presidential authority, nor does the
constitution grant him powers to do so. The legislative powers are
vested in the Congress. Congress rejected an emergency seizure
position in passing the Taft-Hartley Act.
d. Dissent: Justice Vinson: The nation's entire steel production industry would
have shut down completely without the seizure. Founders did not create an
"automaton" impotent to exercise the powers of Government at a time when
the survival of the Republic itself may be at stake.
2. Dames & Moore v. Regan (1981)
a. Facts: US/Iran agreed that all pending claims against Iran would be
submitted to an international tribunal. President Reagan issued an EO
ratifying the agreement and suspending all claims in court.
b. Holding: Affirmed: We are not prepared to say that the President lacks the
power to settle such claims.
c. Rationale: The "Hostage Act" indicates congressional willingness that the
President has broad discretion when responding to the hostile acts of foreign
sovereigns. Congress has implicitly approved the practice of claim
settlement by executive agreement in the International Emergency
Economic Powers Act. Congress has not in some way resisted the exercise
of Presidential authority. Justice Rehnquist cites Jackson's opinion (gloss
of life) because (1) He believed it and (2) Helped write it as Jackson's
clerk. There was a 200-year history of the Presidential settling of claims
with Congressional acquiescence through executive agreements.
3. U.S. v. Curtiss-Wright Corp. (1936)
a. Facts: FDR, acting upon Congressional authorization, prohibited the sale of
arms to any South American nation engaged in the Chaco War. Defendant
violated the prohibition, and brought suit challenging the constitutionality
of the president's action. Supporters of presidential power almost always
cite this case.
b. Rationale: The president alone has the power to speak or listen as a
representative of the nation. Congressional legislation must often accord to
the President a degree of discretion and freedom from statutory restriction
which would not be admissible where domestic affairs alone involved.
Principles find support in the unbroken legislative process that has prevailed
since the inception of national government. Distinguish from Youngstown:
(1) Foreign/domestic affairs and (2) Absence /presence of Congressional
authorization to the President. Delegation of powers is an essential issue:
Congress in the 1930s began delegating extensively to the executive branch.
B. Foreign Policy, War Powers, and the War on Terrorism
1. War Powers:
a. Who has the power to initiate hostilities?
i. Broad Congressional Argument: Congress has the power to
initiate all hostilities involving US armed forces pursuant to its
declare war and marque/reprisal power, with the important
exception that the President, as commander in chief, can use force

only to repel sudden attacks on US territory, troops and possibly
ii. Broad Presidential Argument: Congress has the power to declare
war, but the change in the wording of Congressional power from
"make war" (the original wording) to declare war gives the
President as commander in chief power to make/initiate warfare
prior to a Congressional declaration or authorization of war.
iii. Possible Middle Position: Congress has the sole power to authorize
major warfare, but minor warfare has been historically initiated by
the President as commander in chief (and Congress has not
objected--see Frankfurter or Jackson in Youngstown) and therefore
there is a gloss of history on the constitution allowing the President
to initiate minor (however one defines that) warfare.
iv. War Powers Resolution: Permits the President to initiate minor
uses of force for up to 60 days without Congressional approval, but
after 60 days must withdraw troops if no explicit Congressional
b. What are respective powers and authority of President, Congress and courts
in prosecuting warfare?
i. Broad Presidential Argument: The President, as commander in
chief, has the sole exclusive power to determine the conduct of
warfare including troop movements, battlefield tactics, interrogation
and surveillance tactics, troop numbers and placement etc.--Bush
argument. Under this theory, both Congress and the judiciary's role
is very limited--for example, the President argued that courts had
only a limited power to review detentions of American citizens as
combatants to determine whether the Executive had some evidence
to hold them.
ii. Broad Congressional Argument: Congress has Article I power to:
make rules and regulations for the military, regulate captures, and
initiate hostilities and therefore can control the conduct of war by
determining the weapons, tactics, scope of the war, etc. Congress
has often done this throughout American history.
iii. Judicial Argument: President has broad commander in chief
powers, but it is not exclusive power. Judiciary has a role to play in
determining whether detainees are properly detained and ensuring
that they get some due process. Hamdi, Boumediene. War does not
give a blank check to the president.
2. Libya: President Obama notified Congress before the US began conducting air
strikes with NATO in Libya, after which the OLC released a memo giving the
President constitutional authority to act without Congressional approval. 60-day
WPA period expired on May 20, 2011, without Congressional approval authorizing
US involvement.
3. Prize Cases (1863): Upheld Lincoln's blockade of the southern states because
Congress could not declare war against any state or states.
4. Hamdi v. Rumsfeld (2004)
a. Facts: US Citizen Hamdi was detained in Afghanistan for allegedly
assisting Al-Qaeda, after which he was transported to a military brig in

Charleston. His father brought a habeas corpus petition, claiming that an
innocent US citizen is being held incommunicado indefinitely.
b. Issue: (1) Does the President have the power to detain a US citizen without
a warrant, circumventing the normal criminal process? The President points
to his powers as (a) Commander in Chief powers and (b) Those from the
Joint Resolution of Congress Authorizing the Use of Force (2) Does the
President have the power to circumvent the criminal process?
c. Holding: Vacated (Fourth Circuit decision) and remanded. While Congress
authorized the detention of combatants in the narrow circumstances of
Hamdi's case, due process requires that US citizens be permitted to contest
the factual basis for their detention. Enemy combatants are "individuals
who were part of or supporting forces hostile to the United States or
coalition partners in Afghanistan who engaged in armed conflict against the
United States" there. Hamdi does not govern in Padilla case because he was
not captured in Afghanistan. A separation of powers and due process case.
d. Rationale:
i. O'Connor, Rehnquist, Kennedy, Breyer: The AUMF provides
explicit congressional authorization for the detention of individuals
in Hamdi's category. No bar to the Nation's holding of one of its
own citizens as an enemy combatant. But, indefinite detention for
the purpose of interrogation is not authorized. Rejects the
government's assertion that separation of powers requires a "heavily
circumscribed role for the courts in such circumstances." A state of
war is not a blank check for the President when it comes to the
rights of citizens. Hamdi has right to counsel.
ii. Souter, Ginsburg: Government failed to demonstrate that the AUMF
resolution authorized the detention complained of here. No moment
of genuine emergency with Hamdi--he has been detained for two
e. Dissent:
i. Scalia and Stevens: This opinion should only apply to a very narrow
category of detainees--only two known. Congress can determine
when interrogation may be used to secure intelligence.
ii. Thomas: No reason to remand the case. The Constitution provides
only two circumstances under which Congress can suspend the writ
of habeas corpus. Taking and holding enemy combatants is a
quintessential aspect of the prosecution of war. Even if Congress
suspends the writ, the President is still under an obligation to obey
constitutional commands.
5. Hamdan v. Rumsfeld (2006): Military commission system is illegal because it
violates the UCMJ and the Geneva Convention for procedural reason, the presence
of ordinary courts-martial. Congress responded to Hamdan and Hamdi with the
Detainee Treatment Act, which was struck down because it unconstitutionally
restricted the writ of habeas corpus and provided only limited review potential.
6. Torture: Bush OLC found that the President could order interrogations of enemy
combatants if a statute infringed upon the President's powers as commander in
chief. President Bush signed onto the memo, but disavowed his support for it after
the memo became public. McCain amendment prohibited torture, but Bush signing
statement indicated that the act would be assessed in light of constitutional powers.

C. Domestic Policy, Nixon, Chadha and the Independent Counsel
1. U.S. v. Nixon (1974)
a. Facts: In February 1973, A Senate select committee on Watergate was
established to investigate the alleged illegal break in. John Dean implicated
the President in hearings before the Senate in June. In February 1974 the
House authorized the Judiciary Committee to begin impeachment hearings.
Special Prosecutor Archibald Cox was fired for pursuing the tapes. Four
Nixon appointees on the Supreme Court.
b. Procedural History: District Court issued a subpoena to the President to
produce certain tapes, memoranda, papers, transcripts, or other writings
relating to certain meetings between the President and others. President's
Counsel issued a motion to quash the subpoena, which the Court denied.
c. Holding: The subpoena met the requirements of the FRCP: subpoenaed
materials must be transmitted to the district court.
d. Rationale: The Court has never defined the scope of judicial power relating
to the subpoena of confidential Presidential communications. Neither the
doctrine of separation of powers nor the need for confidentiality of high-
level communications sustains an absolute unqualified Presidential privilege
of immunity. No military, diplomatic, or sensitive national security secrets
at stake here, areas where the courts have shown great deference to the
President. Right to the production of all evidence has 5th and 6th
amendment constitutional dimensions.
2. Politics of Impeachment:
a. During the Clinton impeachment lead-up, the Supreme Court denied that
the Jones lawsuit would occupy a substantial amount of the President's time.
The Framers considered putting in "maladministration" into the
constitution, but removed it after Madison likened that phrase to the
President "serving during the pleasure of the Senate."
b. Impeachment ("High crimes and misdemeanors"): Four Definitions:
i. Crime: any felony or misdemeanor
ii. Substantial offenses: serious misconduct
iii. Offenses against system of government: Professor Tribe and other
law professors argued that offenses were those such as treason and
iv. Whatever House thinks: Rep. Gerald Ford in 1970, legal standard
devolves into a political standard.
3. INS v. Chadha (1983)
a. Facts: Chadha was an East Indian who was born in Kenya and held a British
passport, lawfully admitted to the US in 1966, whose visa expired on June
30, 1972. The INS ordered his deportation suspended in October 1973,
which the Attorney General approved and reported to Congress pursuant to
the enabling legislation. The House passed a resolution opposing Chadha's
(and 5 others) deportation suspensions, and the INS ordered him deported.
Congress has delegated broad power to administrative agencies--but how
can Congress control them? Administrative Procedure Act provides for
judicial review of agency actions. Legislative vetoes were put into 500
different statutes: legislature able to override a statutory right without going
through both houses and the President.
b. Holding: Affirmed: Congressional veto provision is unconstitutional.

c. Rationale: When the framers wanted one House to act alone, they narrowly
and precisely defined the procedure for such action: impeachment, trials of
impeached officials, confirmation of presidential appointees and ratification
of treaties. Lawmaking process might be cumbersome, but there is no
better way to preserve freedom. Formalistic, similar to Justice Black's
opinion in Youngstown. Justice Powell, concurrence: House action raises
the danger of unchecked power. Congress acts almost as a court,
performing a judicial function and violating the separation of powers. "I
would not reach the broader question of whether legislative vetoes are
invalid under the presentment clauses."
d. Dissent: Justice White: Legislative veto allows the President and Congress
to resolve major constitutional and policy differences, assures the
accountability of independent regulatory agencies, and preserves Congress'
control over lawmaking. Constitution neither authorizes nor prohibits the
legislative veto: not the power to write new law without bicameral approval
or presidential consideration. Legislative authority is routinely delegated to
the Executive Branch, regulatory agencies and private individuals.
4. Myers v. United States (1926): President Wilson's removal of a postmaster
appointed for a four year term was constitutional because removal is executive in
nature and the restriction was unconstitutional under article II.
5. Humphrey's Executor v. United States (1935): FDR's removal of Humphrey as
an FTC member was unconstitutional because the FTC was an administrative body
created by Congress to carry out legislative policies and other judicial or legislative
6. Morrison v. Olson (1988)
a. Facts: Ethics of Government Act (post-Watergate) allowed for creation of
an independent counsel, initiated by the Attorney General and appointed by
a panel of three judges, who can be removed by impeachment or personal
action of the Attorney General.
b. Holding: Reversed: Ethics of Government Act does not violate appointment
clause or the limitations of article III nor do they interfere with the
President's authority under Article II in violation of separation of powers.
c. Rationale: Special prosecutor could be removed by the Attorney General
and authorized to perform only certain limited duties, limited in jurisdiction
and tenure. More analogous to Humphrey's Executor than to Myers.
Standard is whether the nature of the position is so central to the functioning
of the executive branch as to require that it be terminable at will by the
President. No requirement that the three branches operate with absolute
independence. Congress is not trying to increase its powers at the expense
of the Executive Branch. No judicial usurpation of properly executive
functions. Court finds that the special prosecutor was an inferior officer
because he or she was only appointed for one case.
d. Dissent: Justice Scalia (the only dissenter--shows the power of a single
individual to object to the overwhelming majority to be right in the end):
Shows Scalia's judicial philosophy in contrast to the majority's: textual,
formalistic. Constitution delegates all of the executive power to the
president, not some of it. Judicial branch has complete control over judicial
power. Primary check against prosecutorial abuse is political power.
Balancing test is not really a test at all. One of the strong points of the

Constitution is the ability to encourage dissenting opinions and dissenting
views. Final paragraph a clear and concise explanation of Scalia's legal
IV. Equal Protection
A. History of the Equal Protection Clause
1. Equal Protection: Rang large in the Declaration of Independence, while
Constitution left out any mention of equality, possibly for two reasons: (1) Slavery
and (2) Notion of rights among the founders was not about equal protection, but
due process of law. Framers wanted to prevent friction over slavery between states
and sections. Abolitionist lawyers in the 1830s and 1840s began to argue for equal
protection: Constitution should be interpreted consistently with the Declaration of
2. State v. Post (NJ Supreme, 1845): NJ Legislature adopted a plan for the gradual
abolition of slavery, new state constitution in 1844 declared that all men are by
nature free and independent. Court found that if slavery were to be abolished, the
constitution would have made that clear and not leave it up to the judiciary to
interpret it. A test case brought in the form of a habeas corpus action demanding
release of three individuals. Judges frequently overturned political decisions
intended to limit slavery in the pre-Civil War period.
3. Dred Scott v. Sandford (1857)
a. Facts: Scott's former owner took him from MO to IL, where they resided for
two years before moving to MN. Several northern states took the position
that if your owner took you into a free state, you were free. Slavery was
legal in MO but prohibited in IL by the Missouri Compromise. Essentially
a motion to dismiss.
b. Holding: (1) Blacks are not citizens and cannot claim the rights provided to
actual citizens under the Constitution; (2) Missouri Compromise is
unconstitutional: Dred Scott never became free by being carried into IL
because Congress can't prohibit slavery in any state
c. Rationale: Blacks are "a subordinate and inferior class of beings, who had
been subjugated by the dominant race." Courts should not decide the justice
or injustice of these laws. Right to property is affirmed in the Constitution,
and the right to traffic in it was guaranteed to the citizens. Congress does
not have greater power over slavery than any other kind of property. Scalia
later comments that this court had no business deciding the slavery question
(canon of constitutional avoidance).
4. Reconstruction: "United States" became a singular noun after the Civil War.
Some people came to see constitutional rights as a basis for the assertion of federal
power to protect individuals against state interference rather than protection from
federal power.
5. Slaughterhouse Cases: Two-tiered approach to 14th amendment: (1) When rights
of newly freed slaves were at stake, the amendment must be read expansively to
provide comprehensive federal protection and (2) When racial discrimination is not
an issue, federal protections are narrower, and recourse should be to state
government. Privileges and immunities mentioned in first section of 14th
Amendment refer to privileges and immunities of state citizenship, not federal
6. State Action and Federalism, The Civil Rights Cases: Public accommodations
provision of the 1875 CRA invalidated because the 14th Amendment did not grant

power to declare the acts of individuals unconstitutional unless the behavior was in
some way sanctioned by the state or done under state authority. 13th Amendment
cannot be invoked to provide justification because it only authorized legislation to
stop slavery. Denial of access to public accommodations not a badge of slavery.
Justice Harlan dissents: 13th Amendment is not stated in a negative way like the
14th amendment, discrimination is a badge of slavery and should be prohibited by
the 13th amendment, 1875 CRA was for the benefit of all races, 14th Amendment
should be interpreted to grant citizens the affirmative rights of citizenship.
7. Plessy v. Ferguson (1896)
a. Facts: LA passed a statute requiring railroads to provide separate but equal
accommodations for blacks and whites. Plessy (7/8 white) was prosecuted
under the statute when he failed to leave the coach reserved for whites.
Another African-American had successfully challenged the law under
interference with interstate commerce. Pick test-case plaintiffs that
challenge the facts of law in the most extreme ways: show the arbitrariness
of racial classifications.
b. Holding: A law which authorizes or even requires the separation of the two
races in public conveyances is not unreasonable.
c. Rationale: Object of the 14th Amendment was not to abolish distinctions
based upon color or race, not designed to achieve social equality. LA made
a reasonable regulation and should be afforded discretion in legislating
according to the wishes and social customs of the public. If blacks were to
get power and do the same thing, that would be legal. Legislation is
powerless to eradicate "racial instincts, or to abolish distinctions based upon
physical differences."
d. Dissent: Justice Harlan (could be seen as the foundation of modern civil
rights law): The Constitution does not permit any public authority to "know
the race of those entitled to be protected in the enjoyment of such rights."
In order for whites to hold onto their position of racial superiority, there
must be a colorblind constitution that doesn't take into account racial
differences. Purpose of the statute was to exclude blacks from white
coaches, not the other way around. There is no superior, dominant, ruling
class of citizens. There is no caste system here.
B. Brown v. Board of Education and Aftermath
1. NAACP Legal Strategy: Rich philanthropist creates a fund for the NAACP,
which is used in large part for a litigation campaign. Howard Law School Dean
wanted to create African-American lawyers who will be able to challenge
segregation. Did not pursue any single strategy to end discrimination, but attacked
"targets of opportunity." Change at the graduate school level would have very
minimal effects. More difficult to make graduate school education equal:
inequalities were more apparent. Show that areas of American life were not equal,
starting with the most glaring.
2. Road to Brown
a. First NAACP victory in 1938, where the Supreme Court struck down MO's
practice of maintaining an all-white state law school and paying for blacks
to attend law school out of state in Missouri ex. Re. Gaines v. Canada.
b. Reaffirmed Gaines in Sipuel v. Board of Regents (1948) by striking down
OK's establishment of a separate black law school.

c. Supremes ordered admission of a black student to the University of Texas
Law School in Sweatt v. Painter (1950), stating that no person with free
choice would ever pick the black law school even if certain facilities were
d. In McLaurin v. Oklahoma State Regents (1950), Court struck down OK
Education Graduate School's admission of a 68-year old Professor who was
forced to sit in a separate section of classrooms and cafeterias. Victories in
these cases, but progress was too slow.
3. Brown v. Board of Education of Topeka (1954, Brown I)
a. Holding: Doctrine of separate but equal has no place in public education,
and plaintiffs were deprived of equal protection under the 14th amendment.
b. Rationale:
i. 14
Amendment Original Intent: Avid proponents of the post-war
amendments wanted them to be applied as liberally as possible
while opponents wanted them applied as narrowly as possible. In
the south at the time of those amendments, education of white
children was by private groups and blacks were almost all illiterate.
Can't turn back the clock to Plessy or 1868: logically, segregation is
permissible or impermissible, regardless of the status of education in
1868 or 1954. Analogize to McCulloch: Provisions in the
constitution are to be adapted to the "various crises of human
affairs," looked at flexibly. No question that the drafters of the 14th
amendment didn't write it to abolish segregation in schools, but the
intent was arguably that the amendment should allow society
flexibility to address future problems. Counter argument: can't
make moral decisions about the law, must start with the text of the
ii. On states having made physical/tangible qualities equal: Intangible
factors are important in an education: Kenneth Clark's "doll" study
on children and other sociological data were questionable
foundations for a legal argument, said many of the NAACP lawyers.
Why not just focus on one of the points of Justice Harlan's dissent in
Plessy: the point of school segregation is to make blacks inferior to
whites, and everybody knows it. Warren was not a great lawyer, but
he was a great politician: we need a unanimous opinion, we're not
going to bash or antagonize the South, must appeal to the country to
iii. Relief to Plaintiffs: Unusually, Brown I does not give any relief to
the plaintiffsnot going to antagonize the South
c. Brown v. Board of Education of Topeka (1955, Brown II)
i. Holding: Lower court judgments on the process of desegregation are
remanded to the District Courts to "take such proceedings and enter
such orders and decrees consistent with this opinion as are necessary
and proper to admit to public schools on a racially non-
discriminatory basis with all deliberate speed the parties to these
ii. Rationale: Full implementation of these constitutional principles
may require solution of varied local school problems. Defendants
must prove that time is necessary in the public interest to comply at

the earliest possible date. Gives relief to the plaintiffs that Brown I
did not.
d. Initial Response to Brown: Most Southern resistance was rhetorical:
Southern Manifesto. By 1964, only 2.3% of black children in the south
were attending desegregated schools. Some states abolished public
education, others established "freedom of choice" plansbut very few
black students chose to attend white schools because of the threat of
violence and stigmatization.
C. Desegregation in the 1960s and 1970s
1. Cooper v. Aaron (1958): Supreme Court affirmed court of appeals and ordered
desegregation to proceed, denying school board's request to terminate the
desegregation program because of public hostility. Judicial branch's interpretation
of the constitution is the supreme interpretation.
2. Green v. County School Board (1968): Court invalidated a "freedom of choice"
plan which divided the county in two and therefore create integrated schools,
allowing pupils to choose which school to attend on entering first and eighth grade.
But, 85% of black children and none of the white children were attending the
previously all-black school. Justice Brennan's opinion emphasizes the school
board's "affirmative duty to take whatever steps might be necessary to convert to a
unitary system in which racial discrimination would be eliminated root and branch"
where there has been an affirmative decision to segregate based on race. Freedom
of choice not an effective means of achieving a unitary school system.
3. Swann v. Charlotte-Mecklenburg Board of Education (1971): District Court
had adopted a new plan that took race into account in drawing school zones and
bused students between inner city and suburban schools to achieve integration,
which the court endorsed. Articulated three principles: (1) Constitutional violation
stems from purposeful state manipulation of schools' racial composition, (2) Scope
of judicial power was limited by the scope of the constitutional violation, (3) Once
a school had achieved unitary status, judicial intervention should cease. The last
major desegregation decision that was entirely southern in its orientation. "Absent
a constitutional violation (imposed deliberately by the state) there would be no
basis for judicially ordering assignment of students on a racial basis"
4. Keyes v. School District No. 1 (1973): No state-imposed school segregation.
District court had found that the Denver School Board had deliberately segregated
schools by gerrymandering attendance zones and ordered desegregation in one
neighborhood but not in others. Racially inspired school board actions have an
impact beyond the particular schools affected by those actions. No need to show
that state law has imposed discrimination, just that a school administrator or other
official has consciously instituted segregation.
5. Milliken v. Bradley
a. Milliken I (1974): Supremes found that federal courts lacked the power to
impose interdistrict remedies for school segregation absent an interdistrict
violation or interdistrict effects. Strong interest in local control of schools.
Students in white suburbs close to Detroit would be bused into the city to
achieve integration.
b. Milliken II (1977): On remand, district court confronted the task of
attempting to desegregate a school system in Detroit that was 70% black.
Court ordered a plan providing black students with a number of years in a
racially integrated school and required educational reform, such as remedial

education, counseling and career guidance. Supremes affirmed:
desegregation remedies not limited to pupil assignment. Limited power of
district courts to impose these types of remedies in Jenkins II (1995).
D. Equal Protection Methodology
1. Rational Basis Review and Strict Scrutiny: Almost every statute on the books
contains some sort of discriminatory classification, such as prohibiting 15 year olds
to apply for driver's licenses. If you said every law that discriminates is
unconstitutional, then every law would be unconstitutional.
Sex Classifications Sexual
Standard: Rational
Standard: Strict scrutiny Standard: Intermediate
Unclear standard
1. Legitimate government
2. Means used: Rationally
related to the
government interest
*Government usually wins
1. Compelling government
2. Means used: Narrowly
tailored to the
government interest
*Government usually loses
1. Important government
2. Means used:
Substantially related to
the government interest
Supreme Court
has not
yet decided

2. Three 14
Amendment Interpretation Doctrines:
a. State Action: the only discrimination that is prohibited under the 14th
Amendment is discrimination under state law or pursuant to a state
regulation or practice, sets up a dichotomy between state and private action.
Could see this is a debate between liberty and equality. Declaration of
Independence focuses on equality, Constitution on liberty until the 14th
Amendment, then equality.
b. Intent/Effect: Affirmative action would be unnecessary if we changed the
doctrine of intent/effect, which could redefine discrimination based on
effect rather than intent. Effect test shows that there is a problem in our
society causing this problem.
c. Affirmative Action: Another dichotomy between race-based vs. color-blind
or affirmative action vs. neutral remedies. Generally, race-based remedies
are heavily scrutinized.
3.New York City Transit Authority v. Beazer (1979)
a. Facts: NYCTA refused to employ persons who use methodone, which
blocks the effect of heroin and is widely used in the treatment of heroin.
b. Holding: Reversed: question is whether the classification is rational.
c. Rationale: Justice Stevens: Exclusionary line is not one directed against any
individual or category of persons, but rather represents a policy choice.
Does not circumscribe a class of persons characterized by some unpopular
trait or affiliation, does not create or reflect any special likelihood of bias on
the part of the ruling majority. Might be unwise to refuse employment
simply because they are receiving methodone treatment, but Constitution
does not authorize a federal court to interfere in that policy decision.
d. Dissent: Justice White: Rationality should be reasonable. TA presented no
arguments to distinguish successfully maintained methodone users from

those who were unsuccessful. Even where successfully maintained persons
less employable than average applicant, the blanket exclusion of only these
people is arbitrary and unconstitutional.
4. Railway Express Agency v. New York (1949): NY traffic regulation prohibited
the operation of advertising vehicles for traffic safety reasons, but permitted
business delivery vehicles to advertise their businesses. Justice Douglas's opinion
upheld the statute, because the local authorities concluded that those who
advertised their own wares do not present the same traffic problem in view of the
nature or extent of the advertising which they use. Justice Jackson concurred:
heavy burden on one who would persuade us to use the due process clause to strike
down a substantive law or ordinance. There is a real difference between
advertising for self-interest and advertising for hire. Rationality standard is very
5. Williamson v. Lee Optical (1955): OK Statute made it unlawful for any person
not a licensed eye doctor to fit lenses to a face or duplicate/replace lenses into
frames except on written prescription from an eye doctor, specifically exempting
sellers of ready-to-wear glasses. Statute wants to force people to have eye exams
every few years when they need new glasses. Supremes reversed: prohibition of
the Equal Protection clause "goes no further than the invidious discrimination. We
cannot say the point has been reached here." Very hard for plaintiffs to win under
this standard.
6. City of Cleburne v. Cleburne Living Center (1985): City ordinance prohibited
the building of homes for the insane or feeble-minded or alcoholics or drug addicts:
council feared that students from the school across the street would harass the
residents, site was on a flood plain, and concerns of neighboring property owners.
Defendant wanted to open a home for the mentally retarded. Supremes held that
the ordinance violated the equal protection clause: irrational basis for the
ordinance. Ordinance based on irrational prejudice against the mentally retarded.
Justice White rejects plaintiff's call to look at special-needs people with strict
scrutiny. Suggests that in some group of cases, the rationality standard is going
to be higher, such as where the court thinks that prejudice is at work even if it
can't be proven. Justice Stevens: No legitimate purpose that transcends the harm
to members of the disadvantaged class.
7. U.S. Department of Agriculture v. Moreno (1973): Food Stamp Act denies
benefits to unrelated individuals residing in a house where related individuals
receive benefits. One plaintiff had a daughter who lived with another woman on
public assistance while she attended a school for the deaf. Court found that the
challenged statutory classification is irrelevant to the purposes of raising nutrition
among low income household and strengthening the agricultural economy.
Congress feared that hippies would take advantage of food stamps. Means used
not related to the governments interest.
8. Strauder v. West Virginia (1880): WV Statute prohibited non-whites from
serving on a jury; Strauder, a black man, was convicted of murder before an all-
white jury. 14th Amendment designed to secure to newly freed slaves the civil
rights that the superior race enjoys. Words contain a right to exemption from
unfriendly legislation against them distinctively as colored. Open, overt racial
classification: violates 14th Amendment.
9. Loving v. Virginia (1967)

a. Facts: Interracial VA couple challenged the state's statute preventing
interracial marriages under the 14th Amendment's due process and equal
protection clauses
b. Holding: Statute is unconstitutional.
c. Rationale: Mere "equal application" of a statute containing racial
classification is not enough to permit it under the 14th Amendment. The
statute rests on distinctions drawn according to race. No legitimate
overriding purpose independent of racial discrimination.
10. Korematsu v. United States (1944)
a. Facts: FDR issued Executive Order No. 9066, which authorized military to
prescribe areas from which persons may be excluded, which Congress
approved of through legislation. Same commander issued an exclusion
order of persons of Japanese descent from their homes on the West Coast
and their evacuation to "Assembly Centers." This court is one of the most
liberal in history. Korematsu was later exonerated on a petition quorum
notice, designed to correct the historical record.
b. Holding: Unable to conclude that it was beyond the war powers of Congress
and the Executive to exclude those of Japanese ancestry from the West
Coast war area at the time they did. Exclusion order upheld. Said to mark
the last occasion on which the Supreme Court upheld a race-specific statute
disadvantaging a racial minority. Racial classification must be supported by
a "pressing public necessity." Winning WWII was a "pressing public
necessity," compelling government interest but does that justify racial
classification that contributed only marginally to that end?
c. Rationale: Exclusion of those of Japanese origin was deemed necessary
because of the presence of an unascertained number of disloyal members of
the group, "most of whom we have no doubt are loyal to this country." War
is an aggregation of hardships. Power to protect must be commensurate
with the threatened danger. Due process and equal protection case.
d. Dissent:
i. Justice Murphy: "Falls into the ugly abyss of racism." Military
claim must subject itself to the judicial process of having its
reasonableness determined and its conflicts with other interests
reconciled. Misinformation, half-truths, and insinuations against
Japanese Americans by those with racial and economic prejudices.
ii. Justice Jackson: "Judicial construction of the due process clause that
will sustain this order is a far more subtle blow to liberty than the
promulgation of the order itself." No requirement that civil courts
examine this as to whether it was a "reasonable military necessity."
A political question.
E. Discriminatory Impact vs. Intent
1. Problematic Nature of Racial Classifications:
a. Normative Justifications
i. Original intent of 14th amendment was to protect African-
Americans from discrimination on the basis of race: from an original
intent perspective, race should be viewed differently
ii. Equal protection clause involves preventing the subordination of
groups rather than the mistreatment of individuals.
iii. Race is rarely relevant to a legitimate governmental purpose

iv. Racial classifications violate a fundamental moral norm
b. Process justification:
i. Racial classifications may be permitted by defects in the political
process which allow hostility or inaccurate stereotypes (Footnote 4
in Carolene Products (1938), where the court says: if there were
some classification directed at discrete minorities, there might be a
stringent standard of review)
2. Washington v. Davis (1976)
a. Facts: Plaintiffs/respondents were unsuccessful black applicants for
positions on the police force who claimed that the test measuring verbal
ability, vocabulary, and reading comprehension unconstitutionally
discriminated against them. Plaintiffs argue that more blacks than whites
fail the test.
b. Holding: No inference that the Department discriminated on the basis of
race or that "a police officer qualifies on the color of his skin rather than his
ability." Courts should apply strict scrutiny to a facially nonracial
government action only if the plaintiff can show that the action was taken
for a discriminatory purpose. Court has never held that such facially
discriminatory statutes can be saved from strict scrutiny by a showing that
the same classification would have been used in the absence of racial
c. Rationale: Must prove that test was designed with an intentionally
discriminatory purpose. Cases have not embraced the proposition that a law
or other official act, without regard to whether it reflects a racially
discriminatory purpose, is unconstitutional solely because it has a racially
disproportionate impact. Neutral laws serving ends otherwise within the
power of government to pursue are not unconstitutional simply because
they affect a greater proportion of one race than of another. Invalidation of
this statute would perhaps invalidate other tax, welfare, public service,
regulatory, and licensing statutes. Justice Stevens: Not such a bright line
between discriminatory purpose and discriminatory impact as the Court's
opinion might infer. Sometimes there will be strong evidence or
disproportionate impact is so significant supporting an inference that a law
intentionally discriminates.
3. McCleskey v. Kemp (1987)
a. Facts: McCleskey was convicted in GA state court of murdering a white
police officer and sentenced to death, argued that the death penalty was
administered more to blacks convicted of killing whites. Baldus study
showed that more blacks who murder whites are sentenced to death than
whites that murder whites or blacks that murder blacks: defendants charged
with killing whites were 4.3x more likely to receive a death sentence than
defendants charged with killing blacks.
b. Holding: Baldus study does not demonstrate a constitutionally significant
risk of racial bias affecting GA sentencing process.
c. Rationale: Powell says you must show that the jury that convicted
McCleskey purposely/intentionally discriminated. State had no practical
opportunity to rebut the Baldus study, and McCleskey committed an act that
can be legally punished with the death penalty. Not enough that the
legislature acted knowing this would be the result: must be evidence that

statute was enacted to further a racially discriminatory purpose.
Throws into question the principles (prosecutor/jury discretion) that
underlie the criminal justice system, and arguments such as this should be
presented to legislative bodies. Not going to assume that what is
unexplained is invidious: no way to prove that juries are applying the
sentences in a racist fashion. To what extent is getting rid of racial
discrimination more important than other values?
d. Dissent: Justices Brenan, Marshall, Blackmun, Stevens: Unrealistic to
ignore the influence of history in asserting the plausible implications of
McCleskey's evidence. Majority seems to indicate a fear of too much
4. U.S. v. Armstrong (1996): Defendant failed to make a threshold showing that
prosecution of other races for crack cocaine possession was discriminatory. Must
show different treatment of similarly situated persons of different races. No
indication that Congress intended to discriminate against black defendants.
F. Affirmative Action
1. Test
a. Level of Scrutiny: strict scrutiny, therefore, you need a:
b. Compelling Government Interest (in descending order):
i. Remedying proven intentional discrimination: For example, I sue
the city of Richmond and they find that intentional discrimination
occurred and order a remedy. Many cities don't want to remedy this
and demand suit.
ii. Prima Facie showing of discrimination (Richmond case): No need
for a court order or finding to the matter
iii. Diversity in higher education: still disputed (Powell in Bakke,
accepted by O'Connor in Grutter)
iv. Integration: Possible based on Parents Involved
c. Narrowly Tailored (how compelling the government interest is related to
how narrowly tailored the means might be: a nuanced view which is not
i. Quotas are not narrowly tailored, except where the government is
remedying proven intentional discrimination
ii. Must have individualized treatment: can't use race as a dispositive
factor in a student's assignment to schools (Kennedy in Parents
iii. Limited use of race in policy questions, but not individual
2. Regents of the University of California v. Bakke (1978): UC Davis medical
school reserved 16/100 seats for members of specified minority groups. Bakke
didn't get into the medical school. No state law prohibited discrimination based on
ageall the state needed was a compelling interest. Question was what standard
of review to be used? Justice Powell joined with Burger, Stewart, Rehnquist, and
Stevens to hold that Bakke had been unconstitutionally denied admission under the
existing plan, but joined Brennan, Marshall, White, and Blackmun in refusing to
enjoin all use of race in the future: race could only be a "plus" in the applicant's file.
Because racial classifications are so problematic, they should be given strict
scrutiny. Overcoming societal discrimination is not a compelling government
interest. Quotas are not narrowly tailored.

3. Fullilove v. Klutznick (1980): Federal statute required 10% of funds granted for
projects used to build public facilities for state and local government had to be
supplied from minority business enterprises. Program was upheld, but under the
most stringent level of review.
4. City of Richmond v. J.A. Croson Co. (1989): Majority held (for Croson) that
state and local affirmative action programs should be subject to strict scrutiny.
Richmond City Council had adopted a similar MBE program for contractor
bidding. Court rejected the argument that Fullilove required deference to the city's
conclusion that race-conscious affirmative action was required. Congress, not the
city council, has a specific constitutional mandate to enforce the 14th Amendment.
Justice O'Connor rejected the idea that remedying past societal discrimination
could serve as a compelling state interest. No prima facie case of intentional
discrimination: could have shown that there was a gross disparity between the
number of black contractors and contracts given to blacks, not contracts to black
population. Justices Brennan, Marshall, and Blackmun dissented: City's first
interest is eradicating effects of past racial discrimination, second is preventing
city's spending decisions from reinforcing exclusionary effects of past
5. Grutter v. Bollinger (2003):
a. Facts: Michigan Law school had a policy of emphasizing diversity in
admissions for educational purposes. Grutter was denied admission and
sued claiming he had not been admitted because race was used in the
admissions process.
b. Holding: Endorses Justice Powell's view that student body diversity is a
compelling state interest that can justify the use of race in university
admissions. Higher education system has unique qualities that give it a
special place in the constitutional tradition.
c. Rationale: Remedying past discrimination is not the only governmental use
of race that can survive strict scrutiny. Outright racial balancing is patently
unconstitutional. Universities, especially law schools, represent a training
ground for our Nation's leaders. Quota systems are impermissible, and the
law school does not automatically admit or reject based on any single "soft"
variable. Law School sufficiently considered workable race-neutral
alternatives, which the law school claims would be accepted over the
current admissions criteria.
d. Dissent:
i. Rehnquist, Scalia, Kennedy, and Thomas: Why aren't the numbers
of Hispanics and Native Americans as high as African-Americans?
The correlation between three minority groups and admitted
applications who are members of the same race is too precise to be
merely the result of "paying some attention to the numbers."
ii. Kennedy: Faculties and administrators should devise new and fairer
ways to ensure individual consideration.
iii. Scalia: "Educational benefit" is never tested, because it is a lesson in
life rather than in law.
iv. Thomas: Cites Douglass's call for whites to "Do nothing with us!
[African-Americans]" Blacks can achieve in every avenue of
American life without the meddling of university administrators.
No pressing public necessity to maintain an elite public law school.

Constitution forbids "faddish racial discrimination." No evidence
that students who benefit from these admissions policies are better
off than if they had gone to less elite schools for which they were
better prepared.
6. Gratz v. Bollinger (2003): Challenges University of Michigan's undergraduate
admissions policy of giving minority applicants 20 points on a 150-point scale,
with applicants receiving 100+ points being admitted and those under 75 being
denied or rejected. Court rejected the challenged policy because it does not provide
individualized consideration of race, which could easily override other compelling
admissions factors. Justices Souter and Ginsburg, dissenting: Non-minority
applicants can readily garner an index exceeding that of minority candidates.
G. School Desegregation and Affirmative Action: Parents Involved in Community
Schools v. Seattle School Dist. No. 1 (2007)
1. Facts:
a. Seattle: Seattle School District operates 10 public high schools, and
developed a plan in 1998 that allowed incoming 9th graders to choose from
among those high schools, ranking them in order of preference. If too many
students list the same school as a first choice, the district employs a number
of tiebreakers, the first of which is whether there is another sibling, the
second is racial composition. If certain schools are not within the district's
overall racial balance, the district assigns students whose race will bring the
school into balance
b. Louisville: Jefferson County Schools had been under a federal district court
desegregation order until 2000, at which time they also developed an
assignment plan similar to that used in Seattle. All non-magnet schools
were required to maintain a minimum 15% black enrollment, maxed out at
50%. If a school had reached its "limits," students who would contribute to
racial imbalance would not be assigned there.
2. Holding: Reversed: the student assignment plans violate the 14th Amendment
3. Rationale:
a. Roberts, Scalia, Thomas, Alito: Strict Scrutiny the basis for review: must
serve a compelling interest and be narrowly tailored. Only two interests
that qualify as compelling: remedying effects of past intentional
discrimination, which cannot be the case in Seattle because those schools
were never segregated, and can't be the case in Louisville because those
schools had already remedied past segregation. Grutter does not govern
present cases because it only applied to higher education. The plans are
only directed to racial balance, which is illegitimate. Government must
treat citizens as individuals, not as components of a racial, religious, sexual,
or national class. Not narrowly tailored--only 307 students in Seattle
affected by racial tiebreaker in 2000-01 and only 3% of assignments in
Louisville. Equal Protection clause protects persons, not groups
b. Thomas, concurring: Neither Seattle nor Louisville had established or
reestablished a dual school system that separates students on the basis of
race. Neither plan serves a compelling state interest. Differing opinions on
whether racial mixing has any educational benefits. Seattle even operates a
K-8 "African-American Academy," which rebuts that argument. Not up to
local school boards to decide what interests qualify as compelling under the
14th Amendment. Segregations also called for local control.

c. Kennedy: There are some circumstances where race might be taken into
account. A "profoundly mistaken" view that the Constitution mandates
schools to accept the status quo of racial isolation. These schools could
have used other race-neutral means to achieve their stated ends.
Government is not permitted to classify every student on the basis of race
and to assign them accordingly. School districts should not be prevented
from bringing together students of different racial, ethnic, and economic
4. Dissent:
a. Stevens, dissenting: Rigid adherence to tiers of scrutiny obscures Brown's
clear message. MA statute mandating racial integration was upheld in
b. Breyer, Stevens, Souter, Ginsburg: After falling during the 1970s, school
segregation reversed in the 1980s and 1990s. Seattle and Louisville both
began with highly segregated local schools. Swann allowed for broad
discretionary powers to school authorities. Countless federal and state
statutes use racial classification.
i. Legal Standard: Drafters of the 14th Amendment understood the
legal and practical difference between the use of race-conscious
criteria to keep the races apart and race-conscious criteria used to
bring the races together.
ii. Applying the Legal Standard: Three interests: (1) Historical and
remedial element, (2) Educational element, (3) Democratic element.
Democratically elected school boards should be able to decide how
best to include people of all races in one America.
iii. Narrow-Tailoring: These plans emphasized student choice, and are
less race-conscious than the plans approved in Grutter.
iv. Consequences: The problem is difficult to solve. Judges should not
be dictating solutions to these problems. Post-Civil War
amendments were designed to make citizens of slaves.
H. Gender Discrimination/Gender Equality: Many prominent women's rights advocates,
including Susan B. Anthony, opposed the 14th Amendment because it allowed
discrimination based on gender, and included gender terms for the first time in the
Constitution. Anthony and other women successfully voted in NY after convincing
election officials to let them do so, with the goal of being prosecuted for voting illegally,
which they were.
1. Bradwell v. Illinois (1873): Court upheld (with five justices) an IL law
prohibiting women from obtaining law licenses, with Justice Bradley noting in his
concurring opinion the "paramount destiny and mission of woman are to fulfill the
noble and benign offices of wife and mother" and that voting was not a "privilege
or immunity" of U.S. citizenship. This view reigned for the next 100 years.
Bradwell was an IL law graduate and editor of the IL Bar Journal, but couldn't be
admitted to the bar because she was a married woman. Other early claims based
upon equal protection were dismissed by the Supremes.
2.Muller v. Oregon (1908): Court upheld an OR statute prohibiting the employment
of women in factories for more than ten hours per day, noting the inherent
difference between the sexes.
3. Reed v. Reed (1971): ID Law provided that men should be preferred where there
are multiple parties claiming they are entitled to administrate an estate where

someone has died intestate. Unanimous court struck down the law as a violation of
the Equal Protection clause because it was an arbitrary legislative choice.
4. Frontiero v. Richardson (1973): Male soldiers automatically received housing
allowances and higher medical benefits once they were married. Female service
members could only claim such benefits if they could demonstrate that her spouse
was dependent on her for over half his support. Eight members of the Court agreed
that this distinction violated the equal protection component. Justice Brennan,
writing for four justices, argued for close scrutiny rather than rationality, noting the
Congressional approval of gender equality in Title VII of the 1964 CRA and the
ERA. There is a history of discrimination of women. Administrative convenience
is not a valid Constitutional justification for gender differences, though it is
5.Stanley v. Illinois (1972): Court struck down an IL statute which automatically
made children of unwed fathers wards of the state upon the death of their mothers
but not for children of unwed mothers upon the death of their fathers.
6. Geduldig v. Aiello (1974): Supremes upheld CA insurance limitation excluding
pregnancy-related disabilities, justified because the state had a legitimate interest in
maintaining the self-supporting nature of its insurance system. Only rational basis
standard because it isn't gender-based, just removes one physical condition from
the list of compensable disabilities. Justice Brennan dissented, noting that
pregnancy-related disabilities were suffered only by women, and were therefore
7.Craig v. Boren (1976):
a. Facts: OK Statute prohibits sale of non-intoxicating 3.2% beer to males
under 21 and to females under 18.
b. Holding: Differences between males and females with respect to the
purchase of 3.2% beer does not warrant the differential in age drawn by the
OK statute.
c. Rationale: Brennan struggled, but finally succeeded, in getting a fifth vote
for intermediate scrutiny: government must assert an "important" reason
(usually not the critical factor--easy to come up with an "important" reason)
and policy must be substantially related to that reason. The disparity in
DWI arrests between men and women cannot form the basis for
employment of a gender line as a classifying device. Statistics do not show
that there is a strong relationship between the classification and the
important government interest. Preventing DWI is definitely an important
government interest.
i. Justice Powell: Age classification is easily circumvented and is
virtually meaningless, does not relate to the object of the legislation.
ii. Justice Stevens: Two-tiered analysis is actually one standard: is the
classification unreasonable? In gender classifications, there are real
differences that might allow Congress or the state to justify different
classifications. This classification is not totally irrational, but is
based only upon an "accident of birth." Only has a minimal effect
on access to a not very intoxicating beverage and does not prohibit
its consumption. Imposes a restraint on 100% of men for the actions
of 2% of them.
d. Dissent: Justice Rehnquist: Shouldn't be a more stringent standard than
other types of classifications, and no way of deciding what is an "important"

government interest. Intermediate scrutiny is just going to be vague and
uncertain. Legislatures are not held to rules of evidence and can draw
factual conclusions on the basis of probable cause. Statistics are not
perfect. Males drink and drive at a higher rate, and a statutory bar should
not create a due process problem. Seems to be a contradiction between his
opinion in the affirmative action cases and his opinion in this case: might
respond that race is inherently an odious classification.
8.United States v. Virginia (1996)
a. Facts: VMI was founded in 1939 and is the sole single-sex VA public
university, stresses an "adversative" program designed to produce "citizen-
soldiers." The parallel VWIL had lower SAT scores, faculty received lower
salaries, lower endowment figures, smaller alumni network. VA offers two
compelling government reasons: (1) Provide diversity among higher public
educational institutions to VA residents and (2) Adversative method of
training cannot be made available to women.
b. Holding: Affirmed Court of Appeals' original decision finding VMIs
exclusion of women unconstitutional, but reversed the second decision
affirming the remedy.
c. Rationale:
i. Justice Ginsburg: Justification that the discriminatory means
employed are substantially related must be genuine, not
hypothesized or invented in response to litigation. VA showed no
persuasive justification for excluding all women from the citizen-
soldier training afforded by VMI. VMI has never been maintained
with the goal of diversity in mind. VMI methodology could be used
to educate women, and it is also true that many men wouldn't choose
an education at VMI: adversative method is not important enough,
can't prove its the only method of educating "citizen-soldiers."
Women already admitted to U.S. military academies. Sweatt court
held that educational institutions are based upon intangible qualities
which are difficult, if not impossible, to replicate. Ginsburg
convinced the court to start off by saying that gender-based
classifications should be rooted in an "exceedingly persuasive
justification," which seems closer to strict scrutiny than to
intermediate scrutiny.
ii. Chief Justice Rehnquist: Neither of VMI's goals is sufficient. The
goal of single-sex education is an important goal, and if VA came up
with a women's equivalent to VMI, that would be ok.
d. Dissent: Justice Scalia: The "old" Constitution of the U.S. takes no position
in this educational debate, and therefore the majority's opinion is
9. J.E.B. v. Alabama (1994): Court held that gender-based peremptory challenges to
jurors were unconstitutional, because gender alone is not a predictor of juror's
attitudes and relies upon stereotypes. Justice Kennedy added that jurors are
individual citizens, not representatives of racial or sexual groups.
10. Rostker v. Goldberg (1981): Court upheld a statute requiring men, not
women, to register for the draft. Women are not eligible for combat. Court was
really using a rationality test, perhaps because it was a military decision. Rehnquist
never agreed with stricter scrutiny for gender classifications, slipped down to a

rationality standard. What is the important purpose that the combat exclusion
supposedly supports? The important purpose is to have the best fighting force that
we can during wartime: unit cohesion (sexual tension OR that men will react
differently to a woman's injury than they would to a man's, both will harm the
fighting ability of the unit). Military's trump card is "We know the military and
you don't: defer to our judgment."
11. Michael M. v. Sonoma County Superior Court (1981): Court upheld a
statute defining statutory rape as sexual intercourse with a female not the wife of
the perpetrator where the female is under age 18. If a 17 year old man has sex with
a 21 year old woman, the woman is not guilty of anything. Same in this case where
both were under 18, but male was prosecuted for statutory rape. Purpose was to
prevent illegitimate children and the state had a strong interest in doing so: the
consequences of teenage pregnancy fall on the young female. Women have a
natural deterrence not to have sex but men don't. Questioning the legitimacy of the
governmental interest is the weakest grounds for an argument--not difficult for
judges to believe that an interest is legitimate.
12. Nguyen v. INS (2001): Petitioner was born in Vietnam to unmarried
parents, his father a U.S. citizen and his mother a citizen of Vietnam. He became a
lawful permanent resident of the U.S. at age 6, committed a felony at age 22, with
deportation proceedings initiated thereafter. Father obtained an order of parentage
in an effort to keep his son in the U.S. Federal statute says that if you are born in
another country and your parents are not married: (1) If the mother is a U.S. citizen
and resided in the U.S. for a year, you are a citizen, but (2) If the father is a U.S.
citizen, you are not automatically a U.S. citizen; a children can be naturalized if the
blood relationship is established by clear and convincing evidence before the child
turns 18. INS rejected petitioner's claim to citizenship because it did not occur
before the child turned 18, and his father appealed. Supremes upheld the statute:
mother is always present at birth, but father need not be. Important reasons: (1)
government has an important purpose in ensuring that a biological parent-child
relationship exists. (2) Statute designed to ensure that child and citizen parent have
some demonstrated opportunity to develop a relationship. Justices O'Connor,
Souter, Ginsburg, and Breyer dissented: Sex-based statutes even if accurate
reflections of the way men and women behave, deny individuals opportunity.
Difficult to see that it is an important interest of providing an opportunity for a
relationship. Who cares if there is an "opportunity?"
I. Equal Protection Claims Based on Poverty:
1. Groups Discriminated vs. Interest Affected: Equal protection requires analysis
as to the groups that are being discriminated upon, while one piece of equal
protection looks at the nature of the interest affected. Why are poll taxes
unconstitutional but driving license fees are constitutional? No constitutional right
to vote for President: electoral college members have that right, and they are
appointed at the discretion of the state legislatures. Bush v. Gore: unless and until
the state legislature grants citizens the right to vote for President, no right to do so.
If the state legislature wants, it can pick the electors without a popular vote. Voting
is fundamental because of the nexus between voting and other constitutional rights:
it governs the whole way our government operates and is tied closely to the
constitution. Driving might be more important to an individual, but not to the
2. Harper v. Virginia State Board of Elections (1966)

a. Facts: VA charges a poll tax not to exceed $1.50 as a precondition to
b. Holding: A state violates the Equal Protection Clause whenever it makes the
affluence of the voter or payment of any fee an electoral standard.
c. Rationale: Once the franchise is granted, lines may not be drawn
inconsistent with the 14th Amendment. The state's interest in voting is
limited to the power to fix qualifications. Wealth is not germane to one's
ability to participate in the electoral process.
d. Dissent:
i. Justice Black: State poll tax legislation can be found to reasonably
and rationally rest without an evil purpose on a number of state
policies: collect revenue (poll tax is no different than a license or
administrative fee), voters with poll tax are interested in the state's
welfare. Tied to his formalistic, line-drawing view as demonstrated
in Youngstown.
ii. Justices Harlan, Stewart: Property qualifications and poll taxes have
been a traditional part of our political structure
3. Kramer v. Union Free School District (1969)
a. Facts: NY had a statute which grants the franchise in school district
elections only if they own or lease taxable real property in the district or
have children enrolled in the public schools. Plaintiff/appellant was a
bachelor who claimed that the statute deprived him equal protection
b. Holding: Statute is not sufficiently tailored to limiting the franchise to
justify the denial to appellant and members of his class.
c. Rationale: Such legislation can lead to unfair representation. Classification
is not narrowly tailored to accomplish the purpose of limiting the franchise
to those "primarily interested" or "primarily affected."
d. Dissent: Justice Stewart: The statute is rational: residents who are better
informed regarding state affairs are more likely to be responsible voters.
Case does not involve racial classifications and does not impinge upon a
constitutionally protected right.
4. Griffin v. Illinois (1956): Court held that a state must furnish an indigent criminal
defendant with a free trial transcript if such a transcript is necessary for adequate
and effective appellate review. The poor cannot be denied the means of
challenging unjust convictions which appellate courts would set aside. No
constitutional or fundamental right to an appeal, or to a lawyer or transcript upon
appeal, but poor people need both to appeal.
5. Douglas v. California (1963): CA rule requiring state appellate courts, on request
of an indigent criminal defendant for counsel on appeal, to investigate the record
and appoint counsel only if it would be helpful to the defendant. Indigent forced
through a gauntlet of preliminary showing of merit, right to appeal does not offer
due process. Justices Harlan and Stewart dissented: No state is required under the
equal protection clause to "give to some whatever others can afford." Attempts to
define other fundamental rights besides voting and criminal defense, such as food
and housing, failed.
6. San Antonio Independent School District v. Rodriguez (1973)
a. Facts: TX used a school financing system (assessment of property taxes)
that produced substantial interdistrict discrepancies in per pupil spending
based on discrepancies in available taxable real property.

b. Holding: Reversed
c. Rationale: Justice Powell:Test is rational basis, not strict scrutiny. No
constitutional right to an education, nor can one be implied. Citizens might
be guaranteed the right to free speech, but not to the most effective free
speech or the most informed electoral choice. Education is a matter
traditionally deferred to state legislatures. The state had a rational basis for
permitting and encouraging local control over local school districts. But,
the state could just as easily give local schools the money and allow them to
decide how to use it. Powell's view of the law is decided on the narrowest
grounds possible: not decided on the basis of poor students, but poor
districts; there might be poor students who live in a wealthy district and vice
versa. Plaintiffs argue that a fundamental right to vote or speak freely is
dependent upon education (nexus). "Not the province of the court to
create substantive fundamental rights in the name of guaranteeing
equal protection of the laws." Court does not go further because (1)
Worried about determining what is fundamental (judicial role) and (2)
There is a distinction between legal, political rights and social, economic
rights. Justices White and Stevens equate rationality with reasonability.
Justice Powell only requires some rational means between the purpose and
the goal: there might be a better way, but not using it is not irrational.
d. Dissent:
i. Justice White, Douglas, and Brennan: TX system fails to provide a
choice to parents because of the property tax levels which are
practically and legally unavailable. Justice White says its irrational-
-doesn't give poor districts local control that the state asserts as its
real goal. Two-tiered (fundamental vs. non-fundamental) system
doesn't describe what we're really doing: we are engaged in a
balancing test between the importance of the interest and the means
used. Possible exam question: What's the relationship between
Powell's opinion in McCleskey and in Rodriguez? In McCleskey:
a lot of things would become suspect if we allow this interpretation.
In Rodriguez: the impact of a different decision would be
ii. Justice Marshall and Douglas: Equal protection cases do not merely
fall into two categories of analysis: strict and rational. No
Constitutional guarantees to procreate, right to vote in state
elections, or to appeal a criminal conviction, yet this court has
protected those. They are interrelated with constitutional
guarantees. Local voters have no control over the amount of taxable
property in their district.
7. Plyler v. Doe (1982)
a. Holding: TX statute authorizing local schools to deny free public education
to children who were not legally admitted into the US is unconstitutional.
Illegal children would have to pay tuition to attend public schools. Statute
is not facially discriminatory: must show intent to discriminate.
b. Rationale: Justice Brennan: Not going to use the rational basis test. The
test they use sounds more like intermediate scrutiny. States must
demonstrate that a classification is precisely tailored to serve a compelling
governmental interest. Combination of "a little suspect" because of whom

you're discriminating against and comparison to illegitimate children
(Trimble v. Gordon) calls for higher scrutiny. Children of illegals cannot
affect their or their parents' conduct: never decided, as three year olds, to
come here illegally. However, undocumented aliens are not a suspect class
and there is no fundamental right to an education. Statute imposes a
lifetime hardship upon a discrete class of children not accountable for their
disabling status. States have no power with respect to the classification of
aliens, committed to the Federal government. No evidence in the record
that illegal entrants impose any significant burden on the state's economy.
No evidence that exclusion of undocumented children will improve the
overall quality of education in the state. No guarantee that any child
educated within the state will employ their education within the state.
c. Dissent: Chief Justice Burger, Justices White, Rehnquist, O'Connor: EPC
does not preclude legislators from classifying among persons on the basis of
factors over which individuals may be said to lack control. Appellee's
status is predicated upon the circumstances of their concededly illegal
presence in this country. Federal government excludes illegal aliens from
food stamps, old age assistance, aid to the blind, etc. TX statute is rational.
V. Fundamental Rights & Substantive Due Process: Two aspects/components (1) Procedural and,
more controversially, (2) Substantive: can't take away life, liberty, and property without a good
reason. Question is: what is a good reason for government action?
A. Fundamental Rights and Substantive Due Process
1. Road to Lochner: Other intermittent intimations of economic substantive due
process did not seriously challenge the prevailing view that the due process
guarantee was essentially procedural in nature. Ownership of private property
became increasingly concentrated, and inequalities grew sharper. Post-Civil War,
businesses increasingly challenged state and federal statutes and regulations.
2. Lochner v. New York (1905)
a. Holding: NY statute providing that no employee in a bakery could work
more than 60 hours in any one week or more than 10 hours in any day is
unconstitutional. Bakery owners challenge as a deprivation of liberty:
freedom to contract on whatever terms the parties agree to. NY asserts two
reasons (1) Health and safety of the worker and the consumer and (2)
Equalize power between workers and bakery owners.
b. Rationale: General right to make a contract in relation to his business is part
of the liberty protected under the 14th amendment. Unreasonable,
unnecessary, and arbitrary to interfere with an individual's right to enter into
a contract that may seem appropriate to him for the support of his family. A
remote connection to public health does not render the statute valid: many
jobs like baking which involve some danger. Purpose of a statute is less
important than the statute's administration or execution.
c. Dissent:
i. Justices Harlan, White, and Day: Labor in excess of 60 hours a
week may endanger the health of those who do such labor. Unless
statutes are plainly and without question inconsistent with the
Constitution, they should be accorded deference. Even assuming
that the bargaining power goal is not rational, they still have a
rational, reasonable justification for limiting daily and weekly hours.

ii. Justice Holmes: The majority has a right to embody their opinions in
law. 14th Amendment does not enact social Darwinism into law:
not a legitimate government interest. Constitutions are not intended
to embody a particular economic theory. Judiciary should not
incorporate ideological theories into the due process clause.
3. Vices of Lochner: (1) Liberty of contract not in the constitution, yet the court
makes it a fundamental right, (2) Due process should just be procedural, (3)
Incorporates one economic theory (laissez faire) into the Constitution, (4)
Scrutinized the relationship between minimum wages and legislation and objective
too closely, (5) Judges don't usually have the fact-finding competence to engage in
policy making inquiries and are unelected and unaccountable. NY statute might
have actually increased workers' freedom of contract, because they could not be
forced into contracts they would rather decline. As a result, Court invalidated 200
economic regulations under due process clause, often inconsistently.
4. Muller v. Oregon (1908): Upheld OR statute prohibiting employment of women
in laundries for more than 10 hours a day, because of differences between women
and men.
5.West Coast Hotel Co. v. Parrish (1937): Court explicitly overturned Adkins v.
Children's Hospital (which invalidated a minimum wage for women because of
diminishing differences between women and men) and upheld a state law
establishing a minimum wage for women. Constitution does not speak of freedom
of contract. Legislature was entitled to consider the situation of women in
employment, the fact that they receive the least pay, and have weak bargaining
power. Community "may direct its law-making power to correct the abuse which
springs from their selfish disregard of the public interest. Came in a troubled
economic climate with declining wages, skyrocketing unemployment, questioning
of democracy. Decisively rejects Lochner: all you need is a rational relationship.
6.United States v. Carolene Products (1938): Congress enacted the Filled Milk Act
of 1923, which declared that "filled milk" (milk where vegetable oil has been
substituted for natural milk compounds, allowing the milk to be sold at a lower
price) is an adulterated article of food injurious to public health and constitutes
fraud upon the public. Subjected to the rational basis test: statute is Constitutional
according to a policy judgment by Congress.
7.Williamson v. Lee Optical of Oklahoma (1955): Supreme Court reversed
district's holding that the statute violated the due process clause. Statute made it
unlawful for an optician to fit or duplicate lenses without a prescription from an
ophthalmologist or an optometrist. Legislatures are charged with balancing the
advantages and disadvantages of the new requirement. Law need not be logically
consistent to be constitutional. Decisively rejects Lochner. Equal protection
challenge was also rejected. Under Douglas's formulation here, virtually
impossible to successfully challenge a state's economic regulation.
B. Fundamental Right to Privacy and Reproductive Autonomy
1. Griswold v. Connecticut (1965)
a. Facts: Appellant Griswold is Executive Director of the Planned Parenthood
League of Connecticut and professor at Yale Medical School, who gave
information, instruction and medical advice to married couples as a means
of preventing contraception. Found guilty of assisting with the violation of
a state statute prohibiting the use of contraceptives. A case cooked up by

Yale University. CT says that a ban on contraceptives prevents adultery:
the risk of having a child out of wedlock will prevent having an affair.
b. Holding: Statute is unconstitutional.
c. Rationale:
i. Justice Douglas: Appellants do have standing to raise the
constitutional rights of married people with whom they had a
professional relationship. Association of people is not specifically
mentioned in the First Amendment, but its existence is necessary in
making the express guarantees fully meaningful. Privacy per se is
not in the constitution, but there are penumbras contained within
some amendments. Governmental purpose to control or prevent
activities constitutionally subject to state regulation may not be
achieved by means which sweep unnecessarily broadly and thereby
invade the area of protected freedoms. AL tried to force NAACP to
hand over membership lists and the Court ruled with them in
NAACP v. Alabama.
ii. Justices Goldberg, Brennan, and Chief Justice Warren: 9th
Amendment lends strong support to the view that the liberty
protected by the 5th and 14th Amendments from infringement by
the federal government or states is not restricted to rights
specifically mentioned in the first eight amendments. Is something
fundamental in our tradition or values and history? State interest in
safeguarding marital fidelity can be served by a more discriminately
tailored statute. Questions among scholars about the purpose of the
9th amendment, which does not by its terms create rights.
iii. Justice Harlan: Most favored opinion today. Question (test) is
whether the statute infringes on the due process clause because it
violates basic values implicit in the concept of ordered liberty.
Balance struck by this country, having regard to what history
teaches are the traditions from which it developed as well as the
traditions from which it broke. Secular state must operate in the
realm of behavior. Right to privacy is not absolute, rationality is not
enough. Disagrees with Justice Black's view on incorporation.
iv. Justice White: Ban on contraceptives does not seem to reinforce the
state's ban on illicit sexual relationships. Why would a man or
woman choose to violate the adultery law but not the contraception
d. Dissent:
i. Justices Black and Stewart: No constitutional provision granting a
right to privacy. Government has the right to invade unless
prohibited by some specific constitutional provision. 9th
Amendment passed to assure people that the constitution limited
federal powers granted expressly or by necessary implication.
ii. Justices Stewart and Black: Court does not say which Amendment is
infringed by the CT statute.
2. Roe v. Wade (1973): Justifications: (1) Privacy (Griswold), (2) Bodily Integrity,
(3) Reproductive Freedom, (4) Equality. Trimester system: (1st) Women and
physicians make the decision; (2nd) States can make regulations for women's

health: who can do abortions, where they can be done; (3rd) States can prohibit
abortions except for preservation of life or health of the mother.
a. Facts: TX statute banned the procuring of abortion except by medical
advice for the purpose of saving the life of the mother. At common law,
women had greater leeway to terminate a pregnancy than in most States in
1973. Common law and Catholic theology were in step until the 1870s:
abortion was permitted until "quickening." As women pushed for greater
rights, men pushed back to restrict access to abortion and contraception to
prevent women's participation as full citizens in society. A more
philosophical argument is that women are being forced to "save" a child,
which requires women to undergo possible physical harm in order to do so.
b. Holding: Statute is unconstitutional. Legalizes abortion before the end of
the first trimester, but state may regulate the abortion procedure as it relates
to maternal health, states may regulate or even proscribe abortion after
c. Rationale:
i. Justice Blackmun: No explicit right to privacy, but could be found in
the 14th or 9th Amendment, is broad enough to encompass a
woman's decision whether or not to terminate her pregnancy. A
woman's right, however, is not absolute. No indication that the
word "person" has any pre-natal application. Viability usually
placed at 24-28 weeks: end of the first trimester. Might raise an
equal protection argument: differences between women and men.
Test is whether the statute infringes on the due process clause
because it violates basic values implicit (collective history, tradition,
and values) in the concept of ordered liberty. Some women's rights
advocates would critique this decision under privacy grounds and
insist that it be made on equality grounds.
ii. Justice Stewart: Right of an individual includes a woman's right to
decide whether or not to terminate her pregnancy.
iii. Justice Douglas: 9th Amendment does not create enforceable rights,
but the traditional, time-honored individual rights include a freedom
to care for one's health and person and a freedom from bodily
restraint or compulsion.
d. Dissent:
i. Justice White: People of the 50 states are disentitled to weigh the
relative importance of the continued existence and development of
the fetus
ii. Justice Rehnquist: Should have been decided by legislatures, not the
court. We should not give higher scrutiny to this matter than to
economic regulation: use a rationality test. Not like Griswold
because there, the state would have a difficult time finding out
whether a couple is using contraception. Griswold was a Planned
Parenthood official, not one of the couples charged. Abortion is a
decision made in a public facility with medical records.
C. Abortion Rights
1. Planned Parenthood of Southeastern Pennsylvania v. Casey (1992)
a. Facts: PA Statute requires that a woman seeking an abortion wait 24 hours
before the abortion is performed, married women must sign a statement that

she notified her husband, imposes reporting requirements on facilities
performing abortions.
b. Holding: The essential holding of Roe should be retained and once again
reaffirmed, but scrapped the rigid trimester system. States may take
measures to ensure an informed choice, but only so long as they do not
persuade the woman to choose childbirth over abortion. Medical
emergency definition imposes no undue burden on a woman's right.
Physician disclosure requirement is constitutional. Waiting period is not
particularly burdensome and constitutional. Disclosure to husband is
unconstitutional, but is constitutional for minors. Facility reporting
requirements are constitutional and not a substantial obstacle to a woman's
c. Rationale:
i. Justices O'Connor, Kennedy, Souter: Before viability, state's
interests are not strong enough to support a prohibition of abortion
or the imposition of a substantial obstacle to the woman's effective
right to elect the procedure. State has the power to restrict abortions
after viability and has a legitimate interest in protecting the health of
the woman and the life of the fetus that may become a child. Roe
has not proven to be unworkable: women have an ability to
participate equally in the economic and social life of the Nation,
facilitated by their ability to control their reproductive lives.
Advances in maternal care allow for safe abortions later in
pregnancy than was true in 1973. When the court has overturned
prior decisions (Lochner in West Coast Hotel and Plessy in Brown),
it does so because of changes that necessitated overturning those
prior decisions. Lochner was wrong and we corrected it. A terrible
price would be paid for overruling Roe. States do have the interest
of protecting potential life. New Undue burden test: "An undue
burden exists and therefore a provision of law is invalid, if its
purpose or effect is to place a substantial obstacle in the path of a
woman seeking an abortion before the fetus attains viability." A
husband has no enforceable right to require a wife to advise him
before she exercises her personal choices. Constitution is a trans-
generational covenant.
ii. Justice Blackmun: Preserve all of Roe, not just the essential holding.
Compelled continuation of a pregnancy infringes upon a woman's
right to bodily integrity, and implicates constitutional guarantees of
gender equality. 24 hour waiting period is clearly unconstitutional.
State's interest must be secular. Informing the woman of the
gestational age is irrelevant to her decision.
d. Dissent:
i. Chief Justice Rehnquist, Justice White, Scalia, and Thomas: Uphold
the PA statute in its entirety. No fundamental right to an abortion.
No principle of stare decisis requires adherence to the reasoning in
Roe. When the Court overruled Plessy and Lochner, it enhanced its
stature by doing so. At least the Roe test was clear--this test is even
less clear.

ii. Justice Scalia, Chief Justice Rehnquist, Justices White and Thomas:
Right to an abortion is not protected by the Constitution. Roe
ushered in an era plagued by national abortion protests. Court has
no right to be deciding anything about abortion rights.
2. Maher v. Roe (1977): Justice Powell: Court upheld a state regulation granting
Medicaid benefits for childbirth but denying such benefits for nontherapeutic
abortions. An indigent woman desiring an abortion does not come within the
limited category of suspect classes. No unequivocal right to an abortion, merely
protection from unduly burdensome interference with her freedom to decide
whether to terminate her pregnancy (basically the undue burden test). This
regulation places no obstacles in the pregnant woman's path to an abortion. No
retreat from Roe. Dissent: Indigency makes access to an abortion or licensed
physicians not merely difficult, but impossible. State has advanced no compelling
interest to justify its interference in that choice. Imposes a moral viewpoint that no
State may constitutionally enforce. Justice Marshall: "Condemns some women to a
'bare existence in utter misery.'"
3. Harris v. McRae (1980): Dwindled to a 5-4 majority: draws a formalistic
distinction between a right to an abortion, which women don't have, and a right to
be free from being prevented from having an abortion. Upheld Hyde Amendment
prohibiting the use of federal Medicaid funds to perform abortions except where
the life of the mother would be endangered if the fetus were carried to term or in
cases of rape or incest. No constitutional entitlement to the financial resources to
avail herself of the full range of protected choices flowing from Roe. Provides
indigent women with at least some range of choice in deciding whether to obtain a
medically necessary abortion as she would have had if Congress had chosen to
subsidize no health care costs at all. Dissent (Brennan): Roe clearly held that state
interference is unreasonable if it attaches a greater importance to the interest in
potential life than to the interest in protecting the mother's health. Distinguishes a
religious freedom case where unemployment benefits were denied to a man who
had turned down a job in order to practice his religion on Saturday. Seems similar
to intermediate scrutiny/balancing test. What about a tax on abortions? The poll
tax was minor, yet it was struck down because it was a burden that infringed on a
fundamental interest/right.
4. City of Akron v. Akron Center for Reproductive Health (1983): Court
invalidated several provisions in a state statute requiring second trimester abortions
to be performed in a hospital, women be informed of the status of her pregnancy,
and that women be informed of the risks of abortion.
5. Planned Parenthood of Central Missouri v. Danforth (1976): Court invalidated
a state statute that required prior written consent of the spouse of a woman seeking
an abortion unless the abortion was necessary to protect the life of the mother.
Statute prohibited unmarried women under 18 from obtaining an abortion without
parental consent.
6. Webster v. Reproductive Health Services (1989): Statute regulating the
performance of abortions in the second trimester in the interest not of maternal
health, but of protecting human life conflicted with the trimester system in Roe, in
a plurality opinion. O'Connor provided the fifth vote to prevent a reexamination of
Roe. Justices Blackmun, Brennan, and Marshall dissented with strong fears of an
erosion of the freedoms elaborated upon in Roe and noting the "chill wind" that

D. Sexual Orientation
1. Romer v. Evans (1996)
a. Holding: Equal protection clause requires invalidation of the CO
Constitution's provision.
b. Facts: Some CO municipalities had passed laws prohibiting discrimination
on the basis of sexual orientation, and in 1992, "Amendment 2" prohibited
the granting of protected status based upon sexual orientation.
c. Rationale: Amendment withdraws special legal protection from
homosexuals, but from no other class. Other groups can just go to their city
council and present a case for anti-discrimination measures, but
homosexuals can't do that anymore. CO municipalities set forth a list of
traits which cannot be the basis for discrimination. Amendment imposes a
special disability upon those persons alone. Forbids homosexuals the
safeguards that others enjoy or may seek without constraint. It is both too
broad and too narrow. Raises an inevitable inference that the disadvantaged
is born of animosity toward the class of persons affected. Court avoids the
issue of a level of scrutiny, purports to use rationality, albeit a higher level
of rationality. So broad as to seem irrational: real reason is that people
disapprove of homosexuality (Cleburne).
d. Dissent: Justices Scalia, Thomas, and CJ Rehnquist: A modest attempt by
CO to preserve traditional sexual mores against the efforts of a politically
powerful minority to revise those mores through the use of laws. But in
Bowers, the Court said moral disapproval of sodomy WAS a rational basis.
Coloradoans are entitled to be hostile toward homosexual conduct.
Homosexuals are as entitled to use the legal system for reinforcement of
their moral sentiments as are the rest of society. Statutes currently prohibit
bigamy, polygamy, prostitution, masturbation, etc.--why are they not
unconstitutional too? Not discriminating against homosexuals, just saying
that they can't receive special treatment.
2. Roberts v. U.S. Jaycees (1984): Court upheld a MN statute prohibiting
discrimination on the basis of sex in places of public accommodation. Bill of
Rights is designed to secure individual liberty, must afford the formation and
preservation of certain kinds of highly personal relationships a substantial measure
of sanctuary from unjustified interference by the State.
3. Bowers v. Hardwick (1986): Court upheld GA's sodomy statute. Prohibitions on
such conduct have no roots in the language or design of the Constitution. To hold
that homosexual sodomy is protected would be to "cast aside millenia of moral
teaching." Nothing in precedent, no support from public opinion. Case is more
like Griswold than Roe: police have to spy on people in private to convict them.
Powell changed his mind and found that since there was no jail sentence for
violating the statute, it was ok. Blackmun (one of the greatest dissents in history)
and Stevens dissent.
4. Lawrence v. Texas (2003)
a. Facts: On a police call, officers observed Lawrence and another man
engaging in a sexual act, after which they were arrested, charged, and
convicted of sodomy. Unlike the GA statute, the TX statute only prohibited
sodomy between members of the same sex.
b. Holding: Statute is unconstitutional: Bowers is explicitly overruled.

c. Rationale: Not just a question of a sex act: it's about choosing what kind of
relationship you want to be involved in. Kennedy: (1) Takes the right
out of the narrow definition used in Bowers and (2) Shows that the
history is inconclusive or murky (like the NAACP did in Brown), (3)
History and tradition are important, but not the ending point. Ending
point is a modern emerging tradition. This regards a personal
relationship that is within the liberty of persons to choose without being
punished as criminals. The sodomy convictions were usually for predatory
acts against those who could not or did not consent. Moral and ethical
considerations are not a valid basis for sustaining this law. Casey
reaffirmed substantive due process component, and Romer struck down
class-based legislation at homosexuals as a violation of Equal Protection
Clause. Present case does not involve minors or persons who might be
injured, are in public relationships, or public conduct. What about freedom
of association (Roberts v. Jaycees)? Freedom of intimate association? First
part of the opinion implies its a fundamental right, but the second part
treats it as irrational. Once you've determined that a right is fundamental,
the test is strict scrutiny: compelling government interest and narrow
i. Justice O'Connor: Concurs only in the judgment (but only three
dissenters so doesn't matter). Would not overrule Bowers, but TX
statute is unconstitutional based on equal protection clause, because
heterosexual sodomy is permitted, but not homosexual sodomy.
Moral disapproval of homosexual sodomy is not a legitimate state
interest to justify the statute. Actually a statement of dislike and
disapproval of homosexuality.
d. Dissent: Justice Scalia, Thomas, and CJ Rehnquist: Roe and Casey have
also been eroded, and are subjected to criticism. When you look
specifically at the tradition regarding homosexual sex, it is prohibited
(Casey p. 865). Moral belief should be a rational basis for such a statute.
Court's use of foreign views is "meaningless dicta." This opinion is the
product of the "homosexual agenda." This opinion opens the door to formal
recognition of any other relationship that homosexuals seek to enter. With
this opinion, no valid reason to deny marriage benefits to same sex couples:
pro-creation not a reason for justifying denial of marriage to homosexuals,
because the elderly and sterile are allowed to marry.
5. Sodomy Laws: The Lawrence Court recognized that Romer cast Bowers into
doubt but declined to rely on Romer in striking down the TX statute. Justice
O'Connor concluded that TX law failed to serve a legitimate state interest: morality
not a valid grounds for surviving rational basis scrutiny.
6. Don't Ask Don't Tell: Upheld because of the government's interest in service
members' morale and unit cohesion, under a rational standard.
7. Same-Sex Marriage: Cases brought challenging bans on gay marriage in states to
keep it away from the federal courts. CA Supremes held that discrimination on the
basis of sexual orientation triggers strict scrutiny, which it also uses for
classifications based on gender. NY Court of Appeals found in 2006 that limiting
marriage to same sex couples was a rational decision for the legislature to make,
based on interests of the child. MA Supremes found that there was not a rational
relationship between the marriage statute and the goal of protecting the optimal

child rearing unit. What about states that provide the same benefits under civil
unions? DOMA amended full faith and credit act so that states wouldn't be
required to recognize same sex marriages recognized in other states. Some note
that homosexuals are not lacking in political power or are an economically
marginalized group because of their sexual orientation. Does it matter why gay
people are gay? Formally, prohibitions on gay marriage and previously interracial
marriage are the same, but there are distinctions between the two.
8. Prop. 8 Case: Major gay rights groups opposed filing challenging Prop. 8 because
they thought the Supreme Court would invalidate all gay marriage laws: better to
wait for a better time.
a. Cooper: Mr. Cooper's prime argument against gay marriage is that there is a
good faith debate about whether the traditional notion of marriage should be
changed to include same-sex couples, and whether the Supremes can stop
that debate and answer the question for all 50 states, by finding that no
rational person of good faith could disagree. Two issues: (1) Does this
violate equal protection (men cannot do what women can do: marry a man,
and vice versa, similar to miscegenation statutes, where whites cannot do
what blacks can do: marry blacks, and vice versa: creates classifications
based on race and sex) and (2) Does it violate due process? Justice
Sotomayor notes that it would be irrational to discriminate against
homosexuals in any other context aside from marriage. Three common
reasons for prohibiting gay marriage: morality, child-rearing, and
procreation. Probably doesnt focus on child-rearing because CA already
permits gay couples to adopt. Cooper talks about "responsible procreation"
to note that unmarried couples can and do procreate. Cooper says he
doesn't have to prove there isn't harm to children raised by gay couples, just
that it's rational to decide it is. Justice Kagan boxed him in on his
procreation argument, but Cooper goes back to responsible procreation and
the marital norm imposing fidelity and monogamy.
b. Olson: Classifies a group of Californians based on their status. CJ Roberts
say that marriage simply developed to include purposes that by nature
excluded homosexuals. Olson responds by noting that the state of CA made
the decision to exclude homosexuals from marriage, not the institution
itself. 9th Circuit found that once the state recognizes that marriage
includes homosexuals, it can't exclude them. But, CA only permitted gay
marriage for 140 days. Scalia asks when it became constitutional to permit
gay marriage, to which Olson asks when it became constitutional to prohibit
school segregation. Olson notes that homosexuality is a trait people are
born with, similar to race--argue for creation of a protected class. CA had
already granted all of the substantive rights of marriage, but would not call
it marriage: no basis for saying you can't get married. Olson says that in the
context of CA, it is irrational for CA to deny gay couples the right to marry.
Olson: laws prohibiting polygamy prohibit conduct, not based upon an
inborn status.
VI. Procedural Due Process
A. Procedural Due Process
1. Substantive v. Procedural Due Process
a. Substantive Due Process: State cannot arbitrarily take away fundamental
or substantive rights.

b. Procedural Due Process: State cannot take away life, liberty, or property
without due process, much more rooted in the actual language of the
constitution. Two issues: (1) When do you have an interest that comes
under the due process clause? and (2) What process is due where there is
such a liberty interest? When the government decides to make a substantive
change to entitlement programs/benefits, you might have a substantive due
process claim. Procedural argument is that a group of individuals or some
group of individuals is not being given the rights that Congress has given
them (goes to the individual claim).
2. Goldberg v. Kelly (1970): A welfare recipient's interest in continued receipt of
welfare benefits was a "statutory entitlement" that amounted to "property" within
the meaning of the due process clause. Before that, the due process clause was
inapplicable if government denied an individual some public benefit: employment,
welfare, or other advantageous opportunity.
3. Board of Regents of State Colleges v. Roth (1972): Roth was hired for a one
year term as assistant professor at WI State, but did not have tenure and was
informed he would not be rehired without a hearing. Court upheld the decision not
to grant him a hearing. While the meaning of liberty must be broad, the individual
claiming to be harmed must have a legitimate claim of entitlement to it. Employer
specifically provided that his employment would terminate on June 30, which
secured absolutely no interest in re-employment for the next year. Must be more
than an abstract need or desire for it.
4. Perry v. Sindermann (1972): Companion case to Roth: Sindermann was a
professor at Odessa Junior College whose contract was not renewed, claiming the
college had a de facto tenure program. Absence of such an explicit contractual
provision may not always foreclose the possibility that a teacher has a property
interest in re-employment.
5.Cleveland Board of Education v. Loudermill (1985): Loudermill was hired as a
security guard, lying on his job application that he had never been convicted of a
felony. After his employer discovered that, he was fired despite his classification
as a civil servant under OH state law. Supremes upheld the lower court's decision
to require a hearing because the statute granted Loudermill a property right in
continued employment. Justice Rehnquist dissented, noting that the statutorily
defined right is not a guarantee against removal without cause in the abstract.
6. Paul v. Davis (1976): Reputation is not a constitutionally protected interest, but
might be if infringed upon by some other injury (in the context of employment,
7. Goss v. Lopez (1975): There is both a liberty and property interest in freedom
from arbitrary suspension from a public school.
8. Maeachum v. Fano (1976): No constitutionally protected interest in a transfer of
prisoners from a medium-security prison to a maximum security prison on the basis
of prisoner's alleged responsibility for committing arson.
9. Sandin v. Connor (1995): Even where the state says you cannot be imprisoned or
confined for something wrong, there is no liberty interest and no requirement for a
hearing. The only time you have a liberty interest is when the prison officials do
something that is a dramatic departure from previous treatment.
10. Wilkinson v. Austin (2005): Before you put people into solitary
confinement in "Supermax" facilities for years, you must give a hearing.

11. Town of Castle Rock, Colorado v. Gonzales (2005): CO law does not
make enforcement of restraining orders mandatory: there is a well-established
tradition of police discretion.
12. Matthews v. Eldridge (1976): Matthews's disability benefits were revoked
after a state agency's determination that he did not need them, despite the fact that
he disputed the decision. Due process is flexible and calls for such procedural
protections as the particular situation demands. Here, the worker bears the
continuing burden of showing that he suffers from a medically determinable
physical or mental impairment. There are other private and governmental
interests at stake here: governments have an interest in conserving scarce fiscal
and administrative resources. Substantial weight must be given to the good-faith
judgments of the individuals charged by Congress with the administration of social
welfare programs. Justices Brennan and Marshall dissented, noting that the Court
has no function to denigrate a right granted by Congress. Justice Powell develops a
three part test: (1) Private interest that will be affected by the official action, (2) the
risk of an erroneous deprivation of such interest through the procedures used, and
the probable value of any additional or substitute procedural safeguards and (3) the
government's interest. Check out Hamdi.
B. State Action: Raises two sets of inquiries: (1) When does the state act? When is the state
doing something that becomes state action? (2) What institutions, entities, agencies,
organizations are considered "the state?"
1. CBS v. DNC (1973): No requirement that broadcasters accept such editorial
advertisements, decisions which are not attributed to the government. Private
discrimination may still be regulated by civil rights statutes.
2. Deshaney v. Winnebago County Department of Social Services (1989): Father
granted custody of his son, but beat him. The mother called social services to
report it, but the department didn't take any action. The father eventually beat the
child so severely that the child was confined to an institution for life. Mother
claimed that the state had deprived her son of his liberty in violation of due process.
Supremes said that there is no requirement by the state to protect the life liberty and
property of its citizens against invasion by private actors. If the state had taken the
person into his custody and held him there against his will, that would be different.
Court doesn't want to turn all tort law into constitutional law. Justices Brennan,
Marshall, and Blackmun dissent, noting the problems of distinction between action
and inaction. Raises a broad question of whether emotion/compassion should be
incorporated into the law? But, the state did do something: create a social services
department, sent social workers out to the home on several occasions.
3. Shelley v. Kraemer (US Supreme, 1948)
a. Facts: In 1911, 30/39 owners of property fronting Labadie Avenue in St.
Louis signed an agreement that their properties were restricted to
occupation (not ownership) by white owners for the next 50 years. In
1945, petitioners Shelley, who were African-American, purchased one of
the lots without knowledge of the restrictive agreement. Supremes took two
similar cases together.
b. Holding: MO Supremes oust the Shelleys and divest them of their title. MI
Supremes ousted but did not divest of title. Restrictive agreements standing
alone cannot violate 14th Amendment if between private citizens. But, the
State, through its judicial officers, has acted to enforce those covenants,
which does violate the 14th Amendment. Always possible to find some

state actor implicated. Result of this case is correct, but reasoning seems
problematic. What about when police remove a trespasser?
c. Rationale: 14th Amendment framers regarded equality in enjoyment of
property rights as essential. If the covenant were created by state or local
ordinance, it would clearly be unconstitutional. Actions of state courts and
judicial officers in their official capacities has long been included within the
meaning of "no state" in the 14th Amendment. Property ownership is a
basic civil right which had been denied by the state.
4. Rendell-Baker v. Kohn (1982): The mere fact of public funding does not
something a state institution. There are entities that look private, but might actually
be the state operating as something else.
5. Burton v. Wilmington Parking Authority (1961)
a. Facts: Burton was denied service in the Eagle Coffee Shop, which leases a
parking space from the city, because of his race. The restaurant had leased
the space for 20 years and spent some of its own money making the space
suitable to its purposes.
b. Holding: Exclusion of appellant under the circumstances shown to be
present here was discriminatory state action. When a state leases public
property in the manner and for the purpose shown to have been the case
here, the proscriptions of the 14th Amendment must be complied with by
the lessee as certainly as though they were binding covenants written into
the agreement itself.
c. Rationale: The state financed the parking garage, maintains it, affording
guests of participating businesses a place to park. All state activities can be
added together. Parking authority did not require or encourage its
participants to discriminate in serving customers. "The State has so far
insinuated itself into a position of interdependence with Eagle that it must
be recognized as a joint participant in the challenged activity..."
d. Dissent: If the statute is offensive to the 14th Amendment, then it should be
struck down without reference to state action/inaction.
6. Norwood v. Harrison (1973): MS program gave textbooks to public and private
schools without regard to the discriminatory practices at private schools, which the
court struck down.
7. Gilmore v. City of Montgomery (1983): Supremes affirmed the portion of the
appeals court decision prohibiting exclusive use of city facilities by segregated
private schools, emphasizing the city's affirmative duty to desegregate its public
schools. But, provision of generalized government services such as electricity,
water, zoos, parks, do not constitute state involvement in invidious discrimination
because those services are offered to all.
VII. First Amendment
A. General Doctrine, Content Neutrality, and the Clear and Present Danger Test
1. First Amendment: Without the right to speak freely, all other rights are
meaningless. For most of American history, the first amendment was very
important, but not enforced (i.e., Alien and Sedition Acts) or invoked until WWI.
2. Shaffer v. United States (9th Cir. 1919): Congress passed the Espionage Act of
1917, which made it a crime to interfere with the military success of the U.S. or
promote the success of its enemies, or encourage insubordination, mutiny, etc.
Congress also passed the Sedition Act of 1918, which made it criminal to interfere
with the sale of war bonds or print any disloyal language to the U.S. Shaffer was

convicted of violating the EA after mailing a book criticizing the war. Court
affirmed his conviction: cannot be said that the reasonable and natural effect of the
publication (test) was not to obstruct the enlistment of the armed forces.
3. Masses Publishing Co. v. Patten (US DC SD NY 1917): Postmaster of NY,
acting on the direction of the Postmaster General, advised the plaintiff that its
pamphlet could not be distributed through the mail under the EA. Plaintiff applied
for an injunction to stop the postmaster from doing that. Postmaster's position not
supported by the language of the statute. Agitation is not the same as direct
incitement: key is whether you are counseling or advising someone to act, a
more subjective test than clear and present danger. Language in the pamphlet
cannot be thought to directly counsel or advise insubordination or mutiny in an
ordinary sense. Not clear that those opinions advise others to do the same.
Plaintiffs are entitled to the injunction. Focuses on the content of the speech rather
than on the intent of the speaker, distinguishes between the speaker who intends to
incite but who is clever enough to avoid use of such language. Judge Learned
Hand, a famous and prominent district judge and friend to Holmes.
4. Schenck v. United States (1919): Defendants were convicted of violating the EA
by circulating to men accepted for military service a draft to obstruct the recruiting
efforts and criticizing conscription. In ordinary times, the defendants' conduct
would be permissible under the Constitution. Question is "whether the words used
are used in such circumstances and are of such a nature as to create a clear and
present danger that they will bring about the substantive evils that Congress has a
right to prevent. Convictions affirmed.
5. Frohewerk v. United States (1919): Defendant was convicted under the EA for
conspiring to cause disloyalty, mutiny, and refusal of duty in the military and naval
forces and sentenced to a fine and ten years in prison. Court rejected his contention
that his conviction violated the first amendment. Founders never intended to give
immunity for every possible use of language.
6.Debs v. United States (1919): Eugene V. Debs was also convicted under the EA
for attempting to obstruct enlistment of soldiers. Supremes rejected his claim that
it violated the first amendment. Debs had specifically praised those who had been
convicted of aiding or inciting to avoid conscription.
7.Abrams v. United States (1919):
a. Facts: Defendants were a group of Russian immigrants who called for a
general strike and distributed pamphlets in response to the U.S. sending
marines to Russian ports after the Russian Revolution, convicted under the
EA and sentenced to prison terms ranging from 3-20 years.
b. Holding: Supremes affirmed convictions on two counts and rejected a first
amendment argument.
c. Dissent: Justice Holmes: the defendants did not intend to cripple or hinder
the U.S. in prosecution of the war because the U.S. was not at war with
Russia. "We should be eternally vigilant against attempts to check the
expression of opinions that we loathe and believe to be fraught with death,
unless they so imminently threaten immediate interference with the lawful
and pressing purposes of the law that an immediate check is required to
save the country." Holmes moved from a narrow first amendment
construction in Schenck to a more civil libertarian position in Abrams:
tremendous pressure from below to change. Proposes adjustment the clear
and present danger test to mean an immediate danger, an objective test.

Holmes' dissent (along with Justice Brandeis) was the first change in the
interpretation of the first amendment and the emersion of modern first
amendment law. Similar to his dissent in Lochner: choices of economic
policies are for Congress and legislatures. Holmes is skeptical of absolute
truths: truth comes from the marketplace of ideas.
8. Brandeis Concurrence and Road to Dennis: Justice Brandeis emphasized that if
the danger is not imminent, the remedy to be applied is more speech, not less
speech. Whitney was the sixth consecutive decision in which the majority either
ignored the clear and present danger test or found it inapplicable. Post-WWII, fears
over national security generated federal and state restrictions on radical activity.
9. Dennis v. United States (1951)
a. Facts: Petitioners were indicted for violation of the conspiracy provisions of
the Smith Act, and convicted by a jury. They had organized a Communist
Party in the U.S., which teaches and advocates overthrow of the
government, and were conspiring to teach from communist works that
advocated overthrowing the government.
b. Holding: Convictions affirmed. In time of crisis, the court often accepts
what the government is doing.
c. Rationale: Preventing the overthrow of the government is a substantial
enough interest for the government to limit speech. The requisite danger
existed in the existence of the conspiracy. In accordance with Judge Hand,
"in each case courts must ask whether the gravity of the evil discounted by
its improbability, justifies such invasion of free speech as is necessary to
avoid the danger. Frankfurter and Jackson often concurred--see
i. Justice Frankfurter: Not every type of speech occupies the same
position on the scale of values. A balancing between security
interest and free speech interest. But in sustaining these convictions,
we can hardly escape restriction on the interchange of ideas.
Problem with the clear and present danger test is that it requires us
to evaluate the immediacy of the speech, which is a decision for
ii. Justice Jackson: Even an individual cannot claim that the
Constitution protects him in advocating or teaching overthrow of the
government by force or violence. That speech is too inherently
harmful and not part of the political process the amendment was
designed to protect.
d. Dissent:
i. Justice Black: Court restricts the protections afforded by the First
Amendment, and hopefully a later court will return those liberties to
the high preferred place where they belong in a free society
ii. Justice Douglas: If the books used are not outlawed, what reasoning
allows their use to become a crime? Communists are "miserable
merchants of unwanted ideas...the fact that their ideas are abhorrent
does not make them powerful."
10. Yates v. United States (1957): 120 individuals prosecuted under the Smith
Act following Dennis, but Dennis reasoning restricted in Yates to constitutionality
of mere advocacy of overthrow as an abstract principle. Justice Harlan's opinion
recognized a distinction between express advocacy of unlawful action and

advocacy of abstract doctrine or general discussion of policies and ideas on the
other. Adopts Judge Hand's test: believing in overthrowing the government is not
11. Bond v. Floyd (1966): Court held that the GA House could not restrict
seating of duly-elected Julian Bond just because he had criticized the Vietnam War.
12. Scales v. United States (1961): Membership in a subversive organization
was not a real danger, might restrict right to free association.
B. Conduct/Speech and Public Forums
1. Tests
a. Brandenburg: (1) Incitement, (2) Context where violence or law violence
or law violation likely to occur. Strict scrutiny/compelling government
b. Public Forum: The state can impose reasonable restriction on time, place,
or manner. 1) Is the place a public forum or part of a public forum? If not,
use a rationality/reasonable test. 2) Are the restrictions content neutral? If
not, use Brandenburg formulation. 3) If it is content neutral, do the
restrictions serve a significant government interest? 4) Are the restrictions
narrowly tailored? 5) Do the restrictions leave open ample means of
alternative communication?
c. Symbolic Speech: 1) Is regulation unrelated to suppression of speech? If
not, use Brandenburg. 2) If yes, does it further an important government
interest. 3) Is it narrowly tailored?
2. Brandenburg v. Ohio (1969):
a. Facts: Appellant was a KKK leader who was convicted under an OH statute
for advocating the use of crime, sabotage, violence, or unlawful means of
terrorism of accomplishing industrial or political reform. Film footage
showed him making derogatory statements against Jews and blacks, and
warned of revenge measures to be taken against public officials.
b. Holding: Whitney is overruled and the OH statute cannot be sustained.
Court adhered to this decision in Hess v. IN and NAACP v. Claiborne
Hardware Co. New test is: whether the incitement or urging of producing
imminent lawless action and is likely to incite or produce such action.
Probably a per curium opinion because it was such a controversial opinion.
c. Rationale: Mere abstract teaching of resorting to force and violence is not
the same as preparing a group for violent action. Cannot punish mere
advocacy and forbid assembly with others. Test is (1) express advocacy of
law violations, (2) advocacy must call for immediate law violation, and (3)
immediate law violation must be likely to occur. Court learned the
difficulties of chilling speech, and crisis effect.
i. Justice Black: Clear and present danger doctrine should be
discarded. Speech should be virtually, totally protected unless it is
part of the crime itself. An absolutist view.
ii. Justice Douglas: Clear and present danger test should be discarded:
it has been misapplied and misinterpreted. Distinction should be
between acts and words.
3.Planned Parenthood v. American Coalition of Life Activists (9th Cir. 2002):
Defendant established a website listing "abortionists" and indicating threats of
violence toward them. Court held that the operators of the website could be held
liable in damages and enjoined because the site constituted an unprotected threat.

Posters used on the site are a true threat, and threatening a person with violence is
not protected. Dissenters noted that there wasn't any statement by defendants that
they intended to inflict bodily harm on plaintiffs.
4.Terminiello v. Chicago (1949): Plaintiff was convicted of disorderly conduct
based on a speech delivered before a crowd that became agitated and threw stink
bombs, goaded on by the plaintiff. Court held that jury's instruction to convict if
the speech incited the public to anger was unconstitutional. Speech may not be
restricted because the ideas expressed offend the audience. The fact that it
provokes a reaction is not seen as sufficient to prohibit the speech. Basic rule is
that you can't be arrested for inciting onlookers--police have to protect the speaker.
5.Cantwell v. Connecticut (1940): Cantwell was a Jehovah's Witness who played a
record critical of Catholics to persons on the street. Court reversed his conviction
because there was no assault or threatening of bodily harm, no intentional
discourtesy, no personal abuse. Listeners listened to the record only after being
asked to do so. No clear and present menace to public peace.
6.Feiner v. New York (1951): Petitioner was convicted of disorderly conduct after
he delivered a speech criticizing public officials and the American Legion, after
which the police arrested him for arousing the crowd. Conviction affirmed because
the speaker passes the bounds of argument or persuasion and undertakes incitement
to riot. Justice Black dissented, noting that the facts did not show any imminent
threat of riot or uncontrollable disorder. Justice Vinson's opinion.
7. Kunz v. New York (1951): Court held that permit scheme for public
demonstrations was invalid on its face because it failed to provide clear stands to
guide its enforcement.
8.Forsythe County, Georgia v. Nationalist Movement (1992): Court invalidated
another permit scheme, which charged fees based upon the potential incitement to
the public and the costs of security to accommodate it.
9.Edwards v. South Carolina (1963): Black high school and college students
peacefully demonstrated on the grounds of the SC capital, but were convicted of
breach of the peace. Court held that convictions violated the First Amendment.
10. Cox v. Louisiana (1965): Cox, a minister led a demonstration of 2,000
black students who picketed stores that maintained segregated lunch counters.
Sheriff dispersed the demonstrators, and the Court overturned Cox's conviction.
Fear of violence was based upon the group of white citizens across the street.
11. Gregory v. City of Chicago (1969): Protestors of Mayor Daley's house
were convicted for disorderly conduct, after which the court overturned their
convictions because he was not inciting to riot or violence, but the onlookers were
causing the problems.
12. Chaplinsky v. New Hampshire (1942): Appellant was a Jehovah's
Witness, who was convicted for violation of addressing offensive word to a
policeman on the street, after he denounced all religion and was beaten up by the
crowd. Court upheld the conviction was to preserve the public peace, and doesn't
infringe on the right to free speech or the 14th Amendment. Court described a two
tier analysis of protected and unprotected speech. Fighting words are unprotected
because they are intended to inflict harm rather than communicate ideas and thus
are not really speech at all. Exception to the basic rule.
13. Gooding v. Wilson (1972): Gooding used obscene language to a police
officer and was convicted, which the Supremes overturned because the statute was

overbroad and not limited to words that have a direct tendency to cause violence
(which are not protected), as the statute in Chaplinsky was.
14. Skokie Controversy: Nazi Leader Collin planned to hold a public
assembly with Swastikas and Nazi uniforms, in the overwhelmingly Jewish village,
5,000 of whom were Nazi concentration camp survivors. Village sought an
injunction to stop the marchers from wearing uniforms or displaying Swastikas,
which the trial court granted, but which the appellate and IL Supreme courts
refused to grant. U.S. Supremes reversed the state court's denial of the stay.
Cannot ban the Nazis, Klan from assembling peacefully, so long as they're not
inciting to riot. Skokie later tried to enact three ordinances ($300,000 liability
insurance, prohibiting dissemination of material promoting and inciting hatred, and
prohibiting the wearing of any military-style uniform) in an attempt to stop the
march, which the Supremes invalidated. Courts have generally acknowledged that
free speech trumps the rights of minorities. But, would there be a constitutional
claim against police who failed to protect those exercising First Amendment rights?
15. Holder v. Humanitarian Law Project (2010): Plaintiffs wanted to provide
political and humanitarian support on using international law to resolve difficulties
to designated terrorist organizations, asserting that the statute violates the First
Amendment. Government (led by Solicitor General Elena Kagan) argued that it
wasn't speech, but material support. Court upheld the material support provision of
the statute, because Congress had decided that any support to such organizations is
harmful to national security and strains relationships with allies. Roberts notes that
the decision should not be construed to suggest that independent speech would pass
constitutional muster. Dissenters distinguished the type of actions engaged in by
16. Beauharnais v. Illinois (1952):
a. Facts: Plaintiff was convicted under an IL statute prohibiting the
distribution of leaflets which portray other racial or ethnic groups in a
negative light.
b. Holding: Supremes affirmed the conviction. Has never been reversed, but
no longer good law.
c. Rationale: IL legislature could have concluded that utterances of this type
were typical to the types of public disturbances experienced by that state.
Courts cannot deny the legislature the right to make that choice. Notes that
such a power may be abused to prohibit libel of a particular political party.
No need to consider clear and present danger because libelous utterances
are not within the area of constitutionally protected speech.
d. Dissent: Justices Black and Douglas: Libel doesn't apply to huge groups.
Leaflet was designed to enlist support for legislative efforts to enact such
17. Schneider v. State (1939): Appellants distributed leaflets on a public street
in violation of an ordinance, which the Supremes struck down. Municipal
authorities have a duty to keep their community's streets open and available for
movement and expression of people and property, the primary purpose to which the
streets are dedicated. There are other ways to prevent littering than this statute.
18. Martin v. City of Struthers (1943): Appellant was a Jehovah's Witness,
who violated a municipal ordinance by ringing doorbells to solicit leaflets
advertising a religious meeting, which the Supremes struck down. Door to door
distributions of literature may be used by members of society interested in

disseminating ideas in accordance with free discussion. Discretion of whether to
admit such individuals lies with the discretion of the homeowner.
19. Kovacs v. Cooper (1949): Court upheld a city ordinance prohibiting any
person to use any sound truck or other instrument that emits loud and raucous
notices. A permissible exercise of legislative power. Justices Black, Douglas, and
Rutledge dissented, noting that some people may not have enough money to
disseminate their ideas through printing, radio, etc. Such ordinances can be drawn
in a more narrow fashion.
20. Metromedia v. San Diego (1981): A San Diego ordinance prohibited
virtually all billboards, which the Supremes struck down. City has not shown that
the billboards impair traffic safety or that an interest in aesthetics is sufficiently
substantial in the commercial and industrial areas of San Diego. Justice Stevens
dissented, noting that communities should have the right to decide such policies.
21. Commonwealth of MA v. Davis (1897): MA Supremes, under Justice
Holmes, affirmed Davis's conviction for preaching on Boston Common. The
legislature may and does exercise control over the use which the public may make
of such places. The U.S. Supremes, unanimously embraced Justice Holmes'
22. Hague v. CIO (1939): A municipal ordinance forbid all public meetings on
the streets and other places without a permit, in which Justice Roberts noted that
the use of streets and public places has been a part of the privileges, immunities,
and liberties of citizens. A "First Amendment" easement.
23. United States v. Grace (1983): Court invalidated a federal statute
prohibiting any person to display flags, banners, or devices advertising a party or
organization in front of the Supreme Court building. Total ban was not narrowly
24. Grayned v. Rockford (1972): Court affirmed convictions of high school
students for violating an ordinance prohibiting any person from making noise in
front of a school.
25. Frisby v. Shultz (1988): Court upheld and ordinance which prohibited
residential picketing in front of a specific residence, which was narrowly tailored.
Privacy of the home should not be trumped by free speech.
26. Clark v. CCNV (1983): NPS had prohibited protestors from sleeping on
the National Mall, and the Supremes upheld the regulation. Camping is action, but
it was done to convey a message.
27. Ward v. Rock against Racism (1989): Court upheld an NYC ordinance
(narrowly tailored) requiring use of city-provided sounds systems and technicians
for concerts in the Bandshell in Central Park, because of a desire to control noise
and avoid intrusion into other areas of the park.
28. Madsen v. Women's Health Center (1994): Court upheld a lower court's
36 foot buffer zone as a reasonable way to protect access to the clinic without
interference by protestors, but invalidated a ban on images observable to patients
within the clinic because the clinic could close its curtains. In Schenck v. Pro-
Choice Network of Western New York (1997), court invalidated floating buffer
zones, but again upheld fixed buffer zones. Supremes also upheld a CO statute
which made it unlawful to approach a person without that person's consent, to
distribute a leaflet, in Hill v. Colorado (2000).
29. Cox v. New Hampshire (1941): Court affirmed convictions under a state
statute prohibiting any parade or procession upon a public street without a permit

because of the need for safe regulation of the use of streets. Licensing board had
not been vested with any arbitrary power.
30. Murdock v. Pennsylvania (1943): Court held that a state may not impose a
flat license tax as a condition to the pursuit of activities whose enjoyment is
guaranteed by the First Amendment.
31. McIntyre v. Ohio Elections Commission (1995): Invalidated a statute
prohibiting the distribution of campaign literature that does not contain the name
and address of the person issuing the literature.
32. Adderly v. Florida (1966):
a. Facts: 200 FL A&M Students protested the arrest of several schoolmates at
the county jail, and were arrested after refusing to stop blocking the prison's
b. Holding: Affirmed convictions
c. Rationale: Sheriff had power to direct that this large crowd of people get off
the grounds. No evidence that similarly large groups of the public had been
permitted to gather on the jail grounds for any purpose. Constitution does
not forbid states from controlling the use of its own property for its own
lawful nondiscriminatory purpose.
d. Dissent: Justices Douglas, CJ Warren, Brennan, and Fortas: County jails
are obvious centers for protest. This assembly was peaceful. There are
certain places that are off limits.
33. Greer v. Spock (1976): Court upheld a Fort Dix regulation prohibiting
campaigning, because the business was not to provide a public forum, but to train
soldiers. Justice Brenna and Marshall dissented, noting that whether the locale is a
public forum has never been an absolute prerequisite for first amendment activity.
34. Heffron v. International Society for Krishna Consciousness (1981):
Court upheld a MN state fair regulation limiting distribution of merchandise and
printed material to groups who rented a booth.
35. U.S. Postal Service v. Council of Greenburg Civic Association (1981):
Court upheld a federal statute prohibiting the deposit of unstamped mailable
material in a latter box approved by the USPS, as applied to appellee, which
routinely delivered its messages through such a method.
36. City Council of Los Angeles v. Taxpayers for Vincent (1984): Court
upheld ordinance prohibiting the posting of signs on public property as applied to
individuals who posed political campaign signs to public utility poles.
37. United States v. Kokinda (1990): Courts upheld respondents' conviction
for violating a federal regulation prohibiting any person from soliciting
contributions on postal premises.
38. International Society for Krishna Consciousness v. Lee (1992): NY/NJ
Port Authority prohibited solicitation of money and distribution of flyers and other
written material at the three NYC airports. CJ Rehnquish said the ban on
solicitation was acceptable because airport terminals are not principally for public
forum. Reasonable because sidewalks outside the terminals were permitted.
Justice Kennedy dissented, noting that the terminals were indeed public fora.
Justice Kennedy, Blackmun, Stevens, and Souter concluded the ban on distribution
of literature violated the first amendment in a plurality opinion, unreasonable
restriction. Kennedy argued that we have to look at the airport as the modern
version of the train station.
39. Police Department of Chicago v. Mosley (1972)

a. Facts: Mosley sought declaratory relief stating that his protests in front of a
school were permissible, even though a city ordinance prohibiting such
protests except for labor purposes
b. Holding: Ordinance is unconstitutional.
c. Rationale: Using a 14th Amendment analysis, it discriminates between
protesting based upon subject matter. Government cannot grant use of a
forum to people whose views it agrees with, but not to others. Selective
exclusions must be carefully scrutinized.
40. Carey v. Brown (1980): Supremes struck down a similar ordinance that
exempted labor related protests from violation of the ordinance.
41. Widmar v. Vincent (1981): Supremes invalidated a University of Missouri
Kansas City regulation prohibiting religious groups from using campus facilities
for meetings, because doing so does not violate the separation of church and state
so long as those groups can use the facilities alongside other groups.
42. Lehman v. City of Shaker Heights (1974)
a. Facts: Petitioner wanted to purchase a car card space on the public transit
system for his campaign, but was barred from doing so even though other
businesses could purchase such space
b. Holding: No first or fourteenth amendment violation. Bus is not a public
c. Rationale: City is engaged in commerce, and the system has the discretion
to develop and make reasonable choices concerning the material displayed
in its vehicles. Justice Douglas: A streetcar or bus is not a place for
discussion, not a forum.
d. Dissent: Justices Brennan, Stewart, Marshall, and Powell: The city
voluntarily established a forum when it installed physical facilities for
advertising. Certain commercial messages may be just as offensive as
political advertising.
43. United States v. O'Brien (1968)
a. Facts: O'Brien and three companions publicly burned their draft cards, in
violation of a federal statute, hoping to influence others in their anti-war
b. Procedural History: District Court rejected O'Brien's claim, but the Court of
Appeals reversed and found that the 1965 Amendment was
c. Holding: 1965 Amendment is constitutional both as enacted and as applied.
The court says this is speech, albeit in a primitive form. Test for symbolic
speech is whether government regulation or law is (1) Unrelated to
suppression of free expression, (2) Important government interest, (3)
Narrowly tailored. Key trigger for stricter scrutiny: is the government
regulating based on what you're saying, or what you're doing?
d. Rationale: No more infringes upon free speech than a prohibition on
destroying driver's licenses. Not all conduct can be labeled speech
whenever the person is engaged in conduct to express an idea. Government
regulation is sufficiently justified: Congress can raise an army and ensure
that young men can easily demonstrate their compliance with the law,
simplify the system, and ensure that young men notify their local draft
boards of any changes in address. An appropriately narrow means of

protecting that interest. Legislative motive or purpose is not enough to
invalidate this statute, which passed the House 393 to 1.
44. Stromberg v. California: Court invalidated a statute prohibiting any
person from displaying a red flag as a symbol of opposition to organized
45. Tinker v. Des Moines School District (1969): Court overturned the
suspensions of three students who violated school policy by wearing black
46. Schacht v. United States (1970): Court reversed conviction of a man
charged with violating federal statute prohibiting the improper wearing of a
military uniform.
47. Wisconsin v. Mitchell: Court upheld a state statute enhancing maximum
penalty for defendants who intentionally selected the person against whom their
crime was committed. Such crimes are more likely to inflict distinct emotional
harms on the victims and community.
48. NAACP v. Alabama: Court invalidated an AL statute requiring disclosure
of NAACP membership lists because it exposed such people to discrimination and
49. Smith v. Goguen (1974): Court overturned conviction of a man charged
with mistreating a flag he had sewn on the seat of his trousers.
50. Spence v. Washington (1974): Court overturned conviction of a man
charged with placing a peace symbol over the American flag, in violation of a state
statute, which the court said infringed free expression.
51. Texas v. Johnson (1989): Johnson was arrested for burning a flag in
violation of a TX statute, which the court overturned because the conduct was
sufficiently imbued with elements of communication as to implicate the first
amendment. CJ Rehnquist and Justice O'Connor noted that his act conveyed
nothing that he couldn't have conveyed in several other ways. It is only a crime
because other people will get offended: clearly related to the suppression of speech-
52. United States v. Eichman (1990): Court invalidated the Flag Protection
Act of 1989, which made it a crime to knowingly mutilate or deface a flag.
Government's asserted interest is related to the suppression of free expression. The
terms used: "deface, physically defiles" unmistakable connote disrespectful
C. Regulations of Speech Purporting to Promote Democratic ValuesCitizens United and
Media Access
1.Miami Herald Publishing Co. v. Tornillo (1974): Court struck down a FL statute
requiring that a newspaper publish a candidate's response to an attack, if that attack
is published in the same newspaper. While freedom of the press is increasingly
concentrated in the hands of a few individuals, the FL statute imposes a penalty
based on the content of a newspaper. Editors might be inclined to ignore such
controversy by not publishing such attacks.
2.Red Lion Broadcasting Co. v. FCC (1969): FCC had a fairness doctrine
(abolished in 1987), that required TV and radio broadcasters to provide both sides
of an issue fair coverage, and broadcasters were required to give opponents of
endorsed candidates time to respond. Although broadcasting is a medium affected
by the First Amendment, it is different enough to justify different standards. First
Amendment does not prevent the government from requiring a licensee to share his

frequency with others and to conduct himself in a way to represent the community.
Fairness doctrine has not had the effect of reducing the quality of coverage.
3. FCC v. National Citizens Committee for Broadcasting (1978): Court sustained
regulations prohibiting common ownership of radio and television stations.
4. Citizens United v. Federal Election Commission (2010)
a. Facts: Federal law prohibits corporations and unions from making
independent expenditures for speech as electioneering communications
under McCain-Feingold. Citizens United created a film about Hillary
Clinton, and the FCC held that it was an electioneering communication
which could be prohibited.
b. Holding: Violates the first amendment to restrict speech coming from
corporations and unions
c. Rationale: Political speech must prevail against laws that would suppress it
and are subject to strict scrutiny. Cannot distinguish among different
speakers. Political speech does not lose First Amendment protection
simply because its source is a corporation. Congress can make a policy
judgment, but only so long as it is constitutional. Austin is overruled.
i. Justice Alito and CJ Roberts: First Amendment rights are not
confined to individuals, which would subvert the public discourse.
Austin was an aberration from earlier precedent and has been subject
of consistent dispute among members of the court.
ii. Justice Scalia, Alito, and Thomas: In 1791 and today, corporations
could only pursue the objectives set forth in their charters. The
corporation was a common entity by the end of the 18th century.
First Amendment written in terms of speech, not speakers.
iii. Dissent: Justice Stevens, Ginsburg, Breyer, and Sotomayor:
Distinction between corporate and human speakers is significant.
Court cannot reject Austin and McConnell just because it disagrees
with their results. McCain Feingold provided exemptions for PACs.
Legislatures have authority to enact viewpoint-neutral regulations
based on content and identify. Corporations were assumed to be
legally privileged organizations that had to be closely scrutinized.
Preventing corruption is a key rational for this statute by Congress.
Congress's judgment in that area should receive deference. This
statute prevents distortion of political views and the political system
(vast amounts of wealth would drown out the first amendment rights
of individuals), protects shareholders who would disagree with the
corporation's political spending.