SC IN THE CONSITUTIONAL SCHEME

Theoretical
Underpinnings of the
Constitution
Fed 10 : By making citizens part of a larger group, a large number of factions can be created, inhibiting the ability of
few powerful factions from taking control; destroying homogeneity of population, requiring leaders to appeal to a
broader citizen base and not be mere representaties of a faction with ery particular interests
Fed !" : #ot an important political ma$im that all depts% should be distinct
Fed !& : #ecessary that all be connected and blended such that each has a constitutional control oer other
Fed '1 : ()* + checks and balances preent tyranny and check self,interested representation
Fed "& : court seres as a buffer between the people and a federal got w-ambitions of tyranny
Justifications for .udicial
/ecisions
0e$tualism 1(calia2: meaning e$pressed by the words as understood by their framers
)riginalism 1(teens2: look at original intent of framers in drafting proision, instead of their words 1room for
interpretation; used by both liberals and conseraties2
0raditionalism : fundamental natural rights w-o which liberty could not e$ist 1right of priacy, 3choice42
*olitical *ractice : where 5on% is silent and other branches hae preiously acquiesced to e$ercise of a certain power,
that power is eleated to a 5on6l status 1e$ecutie powers2
(tructuralism : in cases inoling separation of powers, use conception of how components of got fit together w-i
framework of 5ont
5onsensus 1states2-7nternational 8aw
Theoretical Classifications
for Judicial decisions
Formalism: defines a principle and reasons deductiely to a legal conclusion without regard for real life implications
thereof; has roots in originalism, structuralism, te$tualism, implied rights
Functionalism-9ealism : ealuate policy6s intended function; determine whether it remedies that function without
danger of tyranny-iolation of ()*
:ctiism : takes the moral ground, less principled decisions, supports court making policy decisions
Marbury v. Madison
1&0;, <arshall
<adison refused to delier
a commission granted to
<arbury by *res :dams
= )nly instance (5 struck
down congressional statute
until /red (cott 11&'"2
<arshall didn6t want to risk *residential non,enforcement of its writ of mandamus, and thus chose to interpret
:rt%777>? as not conferring power on 5ongress to e$pand (56s original @urisdiction; therefore, 5ongress had no
authority to enact .udiciary :ct 1"&A 1which gae (5 power to issue writs of mandamus on got officials2, as
:rt%777>? did not include that power 1note: no jurisdiction but decided on the merits!2
(5 has power of judicial reie! 1implied from :rt% 777 >?2 to reiew acts of 5ongress and declare them oid; 3it is
emphatically the proince and duty of the @udicial dept% to say what the law is.
(tructural argument : 5on% is supreme law of land 1deried from pop% so%, by the people2 and trumps statutes 1made by
reps2; 5ongress deries its power from 5on% and is thus bound by it; 5on% confers on (5 power to determine what the
law is 1te$tualist interp%2, and (5 thus may deem laws unconstitutional%
9ationale for .udicial 9eiew : 7f courts don6t check congress6s power, nothing restrain congress, and constitutional
becomes malleable 1Baz says still hae e$ec eto and people6s ote2
/icta : 5t can only decide C of law not *olitical C6s 1Feds hoped courts would hae this power b-c they feared power
of 5ongress2
Dorizontal @udicial reiew
Martin v. Hunters Leasee
1&1E, (tory
F: refused to follow (50
decision
7mportance : (5 has power to reiew state6s highest court6s decisions regarding issues of fed. law
(ource of power : .udiciary :ct of 1"&A enlarges :pp% 9eiew
(tructural :rgument G 5on% limits the powers of the states; the 5on% was ratified by the people, and thus can act on
the people, whether indiidually or through the states% 0hus, (5 has same authority%
0e$tual :rgument G 5on% gies to the fed @udiciary the power to consider all cases arising under the 5on%
Unifor"it# of federal la!s is essential; to achiee uniformity of federal laws, allow fed% reiew of state
interpretation of federal laws, since state @udges might be influenced by local bias, as they do not hae life tenure and
thus are not immune from political process%
$ertical Judicial %eie! & USSC has app' Jurisd' oer highest ct' in the State for (uestions of federal la!'
5ontrary to some founders6 notions of (5 role : <adison thought each branch should be able to interpret 5on% for
itself; .efferson: (5 would be despotic if it had complete authority oer president and 5ongress; 8incoln: ppl would
no longer be soereign if (5 had ultimate say;
9esponse: 19eaganHs :tty Ieneral2 (5 decisions arenHt irreocably binding b-c possibility of oerruling
Cooper v. Aaron
:B refused to follow
Brown 1aoid iolence2
J((5 is the final authority on 5onstitutional 7ssues : state officials must not interpret 5onst% for themseles, but
instead must look to courts6 interpretation and take it as authoritatie
worry about taking this decision to e$treme : there would be no basis for oerruling (5 decisions
McCulloch v. Maryland
1&1A, <arshall
</ tried to put a ta$ on
fed% bank
Holding : 1(tructural .ustification2 people of the J( gae fed% got power; people of a single state cannot put burden
on fed got, which in turn affects all J( people
I"portance : Necessar# and )roper Clause is interpreted to gie 5ongress i"plied po!ers
0e$tual @ustification : preious sentence uses 3absolutely necessary%4 (ince #+* doesn6t say 3absolutely,4
3necessary4 should be interpreted colloquially, and 5ongress should thus hae reasonable flexibility to adapt to
e$igencies of the modern nation%
*olitical *rocess .ustification : because there is no clause in the 5onst% that excludes implied powers, and
1
because many such powers hae been long accepted in past, they6re legit%
)riginalist .ustification : 7mplied powers are necessary, as the Con' is just an outline. Founders intended
5ongress to hae the power to eole to proide for exigencies of our society%
Sources of Cong' )o!er : :rticle 1; 3necessary and proper;4 preamble; notions of soereignty; 10
th
:mend
*+
th
A"end"ent controers# :
1% McCulloch iew : 10
th
:mend% K$ists as a way to e$pand federal powers% <arshall6s Distorical @ustification: had
founders included 3e$pressly,4 as had been included in :rticles, fed% got would hae lost eery power not
e$plicitly delegated to it in 5ons% 0he fact that 3e$pressly4 was omitted must mean founders deliberately chose
not to strip from fed% got implied powers%
?% prague 1L;0s2: 10
th
:mendment is merely a truism 1it adds nothing to the 5onstitution2%
;% <odern interpretation 1!" #. $, $ #. %ope&, 39ehnquist iew42: 10
th
:mend% is a restraint on fed power
1unless powers are implicitly or e$plicitly delegated to it, fed% got doesn6t hae that power2%
I"plied )o!ers, Effect on Judicial %eie! : little can be deemed unconstitutional 1we don6t know e$actly what
5ongress6s powers areM2% <ust be a bold and plain usurpation of power to be unconstitutional%
Calder v. Bull, 1"A&
1this is dicta; case was on
other grounds2
5hase, .%: argues that legal power is not limited by the te$t of 5onst; (5 needs to inoke natural justice and
fundamental fairness when reiewing
7redell, .% argues that the (5 must rule according to e$press terms of 5onst% 13natural @ustice4 is nebulous2
Ex Parte McCardle
1&EA, 5hase
5ong% repeals act that had
gien (5 e$tra app% .
0he court deferred to 5ongress, and accepted that 5ongress had denied it @urisdiction, saying: 5ongress has power to
amend (56s appellate @urisdiction; howeer, it may not e$tinguish it entirely 1for reasons stated in <artin2
0he ct backed away from a confrontation with 5ongress on this @urisdiction issue due to political crisis that followed
the ciil war% 0his shows (56s ability to back away from hearing cases it doesn6t want to hear%
Nhat the court likely should hae said was that 5ongress may not take away the appellate @urisdiction conferred on it
by the Constitution. 7t therefore should hae heard this case on the merits%
%estraints on Judicial
%eie!
:mendments to 5onst%; K$ec% power to appoint .ustices; 7mpeachments; *olitical process in shaping will of the
people, which influences court decisions; 8 action 1McCardle2
SO) - CHEC.S AN/ 0ALANCES
ounsto!n "heet v.
"a!yer
11A'?2 Black
0ruman tried to seize mills
to keep them running, out of
fear strike would stop
production and hurt weapon
making ability during war G
w-o congressional approal
)res po!ers hae al"ost
1een defined co"pletel#
through political practice
2lo1al cli"ate : ward off the 5old Nar; NN77 has left :mericans scared of totalitarian goernments worry that
e$ec% is taking too much power 1though really, *res wasn6t trying to aggrandize powers, as eidenced by note to
5ong% that he would withdraw e$ec order on its command2
Sources of )residential )o!er &
*res can only act under an :ct of 5ongress or power gien to him in the 5onst%
K$ec order 1purpose: enforce a law2; here, no law was being enforced to inoke 3#a$e Care% clause
Holding& 0ruman had no constitutional authority to seize the steel mills, een as 5ommander in 5hief
Structural @ustification 1Black, ma@ority, for"alist approach2: K$ec order 8 in nature; solely in 5ong%6s power
to make law; thus, 0ruman tried to make law by issuing the e$ec order 1F2, iolating ()* 1(2
)olitical practice @ustification 1Frankfurter2: applies McCulloch's 3(loss on )ower idea: look at whether
prior e$ecs hae engaged in similar conduct w-acquiesce of 5ong% 0hat 5ong% had, in the past, specially
granted this power and had carefully regulated it shows that e$ec% order is not an inherent po!er of e3ec%
Structural @ustification 1/ouglass2: branch w-power of purse to compensate for a seizure is the only one able to
authorize one, or make it lawful for the president to effectuate one%
Structural 4Jac5son6 7unctionalist approach8: 0ri,*artite :rgument
o )res acts w*consent of Congress: high tide of presumption of 5on6lity of e$ec action
o )res acts and Congress has been silent; 3twilight of concurrent legislatie and e$ecutie power4: no
presumption of 5on6lity; depends on whether action is authorized by :rt% 77
o )res acts w*disappro#al of Cong: lowest presumption of 5on6lity%; e$ec power discounted by 86s
eclipsing power 1this is where 0ruman falls in this case2
o %efutes 9E"ergenc# )o!ers: argu"ent& Founders considered, and specifically did not include such a
proision 1)riginalism26 howe#er, open to exec ha#e powers not explicitly stated
.A; GF focused on 5ong% haing re@ected 0aft :ct 1request for this same power2% Doweer, could infer that
since 0ruman told 5ong% he would stop if 5ong% so ordered, 5ong%6s silence implied consent
&a'es ( Moore v. )e*a'
1A&1, 9ehnquist
K$ec forbade ciil actions
regarding seized 7ranian
claims in J( cts% J(
creditor argues its right to
bring claim was seized
Broad Functionalist argument : 35ongress6s implied acquiescence4 to resolution of foreign dispute is supported by
history 1uses Jac5son,s Tripartite Anal#sis; 9ehnquist was .ackson6s clerk and wrote it2
o #ote : @ust b-c congress impliedly consents does not make the act 5onstitutional%
o /ifferent from "oungstown : here, there6s no emergency situation, and a weak president
o #ote the political background: pres% had successfully negotiated the release of :merican hostages in e$change
for the claim dismissal at issue; court would be ill,adised to declare that settlement unconstitutional and send
hostages back to @ail (5 had to uphold 9eagan6s actions
Formalistic argument 1concur2: 9eagan6s act was @udicial in nature b-c it dismissed claims; e$ec doesn6t hae the
?
power to take @udicial action
+" v. Curtis , -ri*ht
1A;E Sutherland
5 wants to sell machine
guns to Boliia contrary to
a pres% proc% declaring such
sales illegal
*residential proclamations which pertain to foreign affairs are alid and enforceable
*res% is 3sole organ of the nation in its e$ternal relations, and its sole representatie with foreign nations4 1<arshall,
Douse of 9epresentaties2
(utherland thinks *res powers are limited by states, not by the ppl 1this is ridiculous in iew of founders6 theory of
popular soereignty; ery 3:rticles of 5onfederation,like4, archaicM2
*res Foreign :ffair power Jnlimited; outside the reach of the 5onst% 1come from crown of Kngland2
.a<& 5ongress has lots of power in international affairs: power of purse, regulates military use, etc%
9ecognized a ery e$pansie iew of e$ecutie6s power in the area of foreign affairs
Ha'di v. )u's.eld
?00! )65onnor
J( 5itizen classified as
enemy combatant and
detained
Ken pres% war powers are
sub@ to @udicial reiew
*res does not hae authority to determine whether J( citizen is an enemy combatant w-o @udicial reiew
5onstitutional e$ercise of K$ecutie Nar *owers: enemy combatant status need not be reiewed in a ct 1could be
military tribunal2, hearsay is admissible, but / must receie due process 1appropriate for wartime2 of law: must 12
know what6s being asserted against him, ?2 hae a chance to defend against allegations ;2 in front of a neutral
decision,maker% / has burden of proof to show he didn6t get /*ocess%
5ourt finds that here, e$ec took away habeas corpus right, a power solely of 5ong% iolates ()*
/issent 1(calia, )riginalist2: *res% needs to ask 5ong% to suspend habeus corps, e#en in war time.
/issent 10homas, (tructural2: determining enemy combatant status falls squarely w-7 pres%6 Nar powers
)asul v. Bush/ Ex. Parte
Milli*an
9asul G K$tends to alien detainess the right to challenge the legality of their detention
<illigan: 5iilians cannot be tried by military tribunals
li"iting e3ec po!er
Ha'dan v. )u's.eld
Bin8aden6s drier classified
as enemy combatant and
detained
*resident doesn6t hae unlimited war powers; Jac5son,s tripartite anal#sis is still alie
Doweer, in theatre of war + in military necessity, pres% has reasonably broad commander in chief powers
Jnitary K$ecutie : )nly instance of pres% asserting unreiewable e$ecutie power 1other than #i$on2
+" v. 0ixon
1A"!, Burger
# challenges a subpoena
requiring him to present
tapes and docs in a criminal
prosecution
E3ec does not hae a1solute i""unit# from criminal prosecution nor may he e$ercise an absolute presidential
priilege absent @udicial reiew
0here is no e$ecutie priilege absent military, diplomatic, or sensitie national security secrets to be determined
by the court, in camera 1this non,public hearing should not chill presidential adisor6s desire to confide freely2%
, NhyO 9ecall Marbury: it is the duty of the court to say what the law is
()* doctrine is not to be taken entirely literally : there must be checks and balances among them 1thus there must be
some interaction2
0alance the interest of #i$on6s claim of general immunity % /6s right to hae eidence to defend himself 1'
th
:mend
due process + E
th
:mend right to confront a witness balanced against non,official priacy2
)res' )riilege is an i"plied po!er fro" Article II
0ixon v. 1it2*erald, 1A&?
Clinton v. 3ones, 1AA"
*res% is immune from ciil suits arising from actions he too+ in an official capacity 1otherwise, there would be a chill
on pres6s freedom of action and could cause him to be dierted from affairs of state2
*res is not immune from ciil suits for actions e$ecuted as a priate citizen 1regardless of timing2
,ther chec+s on )res 7mpeachment G house6s decision 1by a simple ma@ority2 to try the president for 3high crimes and misdemeanors41term
of art, can be tailored to almost any offense2; (enate tries the proceeding
(crutiny of the press
9e G election
/o"estic )o!ers
4ns v. Chada
1A&;, Burger
Douse etoed :tty
Ieneral6s decision to allow
deportable alien to remain
in J(
7or"alist approach *4Burger, ma@ority2: :ct is legislatie, as it altered legal rights; it therefore must conform to
approal for legislation 1bicameral approal-signed by pres%2 0hus a 3oneGhouse eto4 iolates ()*%
7or"alist approach = 4*owell, concur2 the act is @udicial b-c it applies statutory criteria to indiiduals and makes a
specific narrow decision; 5ongress doesn6t hae right to ad@udicate, so it6s doing so is a iolation of ()*
7unctional 4Nhite> dissent2: the initial law 1resering the right of legislatie eto2 was already passed through both
houses and the president, and no one ob@ect to it then% -unction of legislatie eto is not to attempt to appropriate
power to disadantage of other branches 1in iolation of the purpose of (o*2%
Myers G *ostmaster
Hu'phreys G F05
Buc$ley , 1A"E G 5ong% tried
to force *res% to share his
power to appoint K$ec%
)fficials w-heads of both
houses
Myers: *res has unfettered power to remoe K$ec officials 1Dolmes6 /issent: 5ongress has a say in choosing officers;
it should therefore hae a oice in remoing them2
.umphreys: B-c administratie agencies are not solely exec, but also legislatie and @udicial, 5ong% may limit *res
power to remoe administratie officials 1this is the epitome of the founders6 idea of tyrannyM Doweer, they work in
a circumscribed manner, and are sub@ect to lots of oersight2%
/uc+ley: 5ong% does not hae the power to appoint inferior e$ecutie officers, but it may proscribe the procedures by
which they are appointed 1procedure for appointing high e$ec% officers may not be proscribed, though appointments
are sub@ect to (enate approal2
Bo!sher v. "ynar
1A&E, Burger
/elegating the e$ecutie power to make budget cut to the 5I is an unconstitutional delegation of e$ecutie control to
a legislatie officer 1appointed and remoed by congress2
;
5ong% passed :ct that
delegated K$ec% budget cut
power to 5omptroller
Ieneral, a 8 agent%
Structural justification 1Formalist2G power in question was e$ecutie in nature, and 5ongress delegated those power
to the 5I, a legislatie agent 1iolates ()*, thus unconstitutional2
7unctionalist 1Nhite, dissent2: <erely b-c 5ongress has a say in 5I appointment-remoal does not automatically
make 5I a 8 officer 1*res must sign off on his remoalM2% :lso, this delegation passed thru the *resentment 5lause
1bicameral-e$ec% sig% process2, and no one ob@ected to the alleged iolation of (o*%
Morrison v. 5lson
1A&& 9ehnquist
9estrictions on firing 0C
challenged as iolating
:ppointments clause +
()*
*urpose of :ct: worry that K$ecutie branch won6t prosecute members of its own branch
Structural 19ehnquist, ma@ority2 G restrictions 5ongress placed on :I6s power to fire 0ndependent Counsel are so
minimal that they do not rise to leel of an unconstitutional intrusion of e$ec powers% :dditionally, esting 75
appointment with the 5ourt is a similarly insignificant intrusion, as the ast ma@ority of powers under the :ct remain
ested in K$ec 1Functionalist: seres function, doesn6t promote tyranny2%
7or"alist 4(calia, /issent2 G as the :ct places some e$ecutie power 1power to prosecute2 in the hands of someone
not under the control of the president, it is unconstitutional% Furthermore, 75 is not sub@ect to the political process, nor
does he hae the large caseload J( :ttorneys would; instead he can focus all his energy on finding minor faults in
e$ecutie officials who are sub@ect to the political process%
Misretta v. +"
1A&A, Blackmun
.udges sere on (entencing
5ommissions
Structural 1Functionalist ,Blackmun, ma@ority2 G @udges are e$perts at deciding sentences 1it6s their @ob2; they6re the
best officials to sere on this committee, and the decisions specifically relate to the role of courts
Structural 4(calia, formalist> dissent2: @udges should not sere on sentencing panels where they make alue
@udgments and establish social policy,this is a legislatie functionM 1iolates ()*2
Metro -A. Apt v. CAA0
1AA1, & 5ongressmen sere
on e$ec% agency
7or"alist 1good e$ampleM2: the agency made up of & 5ongressmen was either legislatie or e$ecutie% 7f it were 8, its
authority is unconstitutional b-c it doesn6t pass thru bicameral legislatie process; if it6s K, it6s unconstitutional b-c
agents of 5ongress are performing legislatie functions 1iolates (o*2
T%EAT? )O@E%
Missouri v. Holland
1A?0, Dolmes
Migrator# 0irds Treat#
1note: crazy that (5 found a
3national interest of the
highest mag%4
Te3tual justification 1Dolmes, ma@ority2: *res has the power to enact treaties% 7f treaty is alid 1must be a matter of
national importance2, #+* gies 5ongress power to make laws to enforce that treaty%
7unctional argu"ent & 0reaty power of Fed Io adds to 5ongress6s legislatie power as delegated by the
5onstitution; as such, :rticle F7 (upremacy 5lause dictates that fed% Iot% powers to legislate for matters of 3national
importance4 trumps state interests 1here, hunting2
Broad iew of fed implied powers under 10
th
amend 1comes from McCulloch2: 5onst% doesn6t e$pressly forbidM
10oday, 10
th
is used to limit federal power2
)eidt v. Covert
1A'" , 5iilian tried in
military ct
5ongress6s treaty powers are limited to the e$plicit proisions guaranteeing freedoms in the 5
Dere, trying a ciilian in a military court iolated her E
th
amend right to a trial by @ury
STATE,S %I2HTS
6arcia v. "an Antonio
#ransit Authority
1A&', Blakmun
5ongress passes an :ct
regulating <in Nage-
hours, which affected state
employers 1like <0:2
(eneral applicability law
7unctionalist Arg& @udicial reiew is limited to determining whether 5ongress has the power to enact legislation oer
an indi#idual, as states are no different from an indiidual in this respect% 0he federalism question 1protecting state
rights from federal usurpation2 is best left to the *olitical *rocess 1not to .udicial 9eiew2%
7E/ AB-AC 1<adison2: if the federal got tries to step on state gots6 toes, the people 1more attached to their states
than to the nation as a whole2 will speak w- their ote thru the political process and w-the swords of their state militias
1the national army was small thenM2; ct should gie deference to **
)o!ell-O,Connor /issent G 12 <a@ority essentially remoes the court6s power of @udicial reiew oer the 5ommerce
5lause, which has been essential to the federal,state relationship, and ?2 the structure <adison initially outlined in
!'-!E has fundamentally changed 1i%e% bills are often drafted by staffers who are not responsible to the people of the
state2, and (5 is making a mistake in thinking that this structure continues to protect the interests of the states%
.a<& /issent shouldn6t get on its high horse about saying it is the better policer of 5ongressional power, when it,
unlike 5ongress, is not an elected body and is thus not directly responsible to the people%
0e! or$ v. +"
1AA?, )65onnor
(tatute imposes ;
restrictions on disposal of
radioactie waste
Specific app la!
7unctionalist anal#sis : commandeers the legislatie process of the states by directly compelling them to enact and
enforce a Fed 9egulatory program iolates 10
th
:mend
Structural G Federalism principle: Fed Io may encourage states to act, but may not force them
Structural G :ccountability: *eople don6t know where to direct their angst about bad legislation
Originalist , under the :rticles of 5onfederation, 5ongress could act on states in their corporate capacities; 5ont%
changed that; 5ongress can only act on the people 1Baz says there is no authority for this statement, as is often
signified by her intro, 3it is a basic truth thatP4 0his is in opposition to court6s holding in Martin #. .unter's
%essee2%
Te3tualist : 12
th
3mend is a limitation; federalism is based on a notion of state so#ereignty 1traditional iew: fed
can6t act on states in their corp% capacity2
/istinguishable from (arcia b-c that was a general app law that concerned the rights of the :merican citizens
residing in the state; this is a specific applicability law directed at how the state runs its 3business4 as a goernment%
0he latter makes states agents of the federal goernment, in iolation of federalism%
!
Originalist /issent 1(teens2: the fact that state courts could hear constitutional issues indicates that the founders
contemplated the idea that state officials could carry out federal functions
7unctionalist /issent 1Nhite2: this is not 5ongress forcing its will on the states; the states themsel#es had worked out
this compromiseMM Federalism does not prohibit the federal goernment from acting as a referee and implementing the
states6 plan%
Print2 v. +"
1AA", (calia
Fed (tatute req% state
officers to do background
checks on people buying
guns
Historical + Structural: cannot compel state officials to perform federal admin functions% 9elies on his notion of
state soereignty 1egregious attempt to require states to fund federal prerogatie2
Originalist 1(outer, dissent2: tons of academic research based on federalist papers shows that framers did think that
state officers would hae the duty to implement federal statutes /issent 1(teens2 G federal commerce power gies
5ongress authority to regulate handguns; specifically, #+* clause allows 5ongress to temporarily require local
officers to perform background checks
NATIONALI;ATION O7 7UN/AMENTAL %I2HTS
9:57:8 :#/ (KQJ:8 KCJ:870R
&red "cott v. "tan.ord
1&'", 0aney
<issouri compromise: land
purchased aboe ;E-;0
would be free
Originalist G framers did not intend blacks to be citizens, they thus hae no 5 protection
Te3tual G 5ongress has a duty to protect citizen6s property under '
th
amend, and slaes are property
K$tends the procedural guarantees of the 4
th
amend to substantie guarantees 1protection against taking of property
e$tends beyond the courtroom to laws enacted by 5ongress2% 7dea of substantie due process was deeloped here,
though the term was not used until ?0
th
cent%
(5 attempted to sole a diisie political issue and failed: it aggraated the issue by adopting the (outh6s most
e$treme position and reinforcing their unwillingness to compromise% 7t mobilized the abolitionist moement
preiously oershadowed by people sitting on the fence, and fanned the flames of war%
Ciil %ights Act *DCC
#othing was upholding the
1;
th
amend; codified in 1!
th

amend
(ection 1 : defined citizenship for first time anyone born in J( has same rights as a white male
(ection ? : makes it a crime to deny any of those rights
(ection ;: Iae Fed 5ts e$clusie @ oer these cases, can remoe these cases from state cts
:uthority implicit in 1;
th
amend: if you can6t be a slae, you must be free; what does it mean to be freeO
:ctual authority from 1!
th
amend; worry was that local police-@udges were not upholding 1;
th
amend%
*A
th
A"end
5iil 9ights cases
Functions : incorporates the 5iil 9ights act of 1&EE; all persons born-naturalized in J( are citizens of J( and state in
which they reside; prohibits states from denying to any person rights to life, liberty or property w-o due process of law
11!th amendment has a due process clause2; states shall not deprie to any person the protection of the laws; right to
ote in federal elections can6t be abridged on account of race; gies 5ongress plenary power to enforce;
8ed to Knforcement :ct of 1&"0, ciil rights act of 1&"', and BBB :ct of 1&"1
#ote: 1!
th
amend only protects against state actors not against priate indiiduals
*B
th
A"end, 1&"0 9ight to ote in local and state free from discrimination; granted 5ongress ability to enforce it
Enforce"ent Act of *DE+>
... Act of *DE*>
Ciil %ights act of *DEB
K$pands the kinds of indiiduals sub@ect to the sanctions of this statute to :#R 7#/7F7/J:8 who interferes
with-preents oters from e$ercising right to ote
5riminally and 5iilly punishing conspiracies aimed at depriing certain classes of citizens of equal protection laid
out by the 1!
th
amendment
59: criminalized priate indiiduals who refused to admit all people to places of public amusement; (5 struck this
down as creating a positi#e right not enumerated in the 5iil 9ights :ct of 1&EE 1unlike the right to ote, which was
enumerated in that act, which is the sub@ect of the Knforcement and the BBB :ct2; the 1!
th
:mendment only prohibits
states from denying life, liberty and property 1not priate indiiduals2%
Slaughter House Cases ?,tiered approach to equal protection under the 1!
th
:mendment : Nhen racial discrimination is at issue, 1!
th
amend
must be interpreted e$pansiely to proide broad fed protection; otherwise, 1!
th
:mend should be interpreted
narrowly, and primary recourse is from state goernment% 9ights understood as fundamental derie from protection
of the state; you don6t en@oy them as a J( citizen
Plessy v. 1er*uson
1&AE, Brown
* arrested for sitting in a
99 car for whites only
Separate 1ut e(ual
(o long as accommodations are equal, segregation of the races is legit b-c it relates to social equality, which cannot be
attained through legislation, but only through the oluntary interactions of people
Basis of decision : this is not a question of equal protection under the law; 1!
th
:mend was not ratified to change the
attitudes of people regarding racial interaction in a social conte$t
Harlan dissent, argues that decision is made on the assumption that whites are superior: we don6t see any whites
trying to get into the black car 1but discriminates against 5hinese2
McCabe v. Atchinson
ic$ -o v. Hod*$ins
11&&E2
9ight to K* is an indiidual right, not a group right; facilities must be equal if they are separate
although an ordinance is facially racially neutral, it is unconstitutional if it is administered in a racially discriminatory
way
EFUAL )%OTECTION IN )U0LIC E/UCATION
6aines v. Canada 1A;& (ues <) b-c it has a law school for white not for blacks
'
5xistence of Facility (trengthens separate but equal if a state proides public legal education, it must proide it to both races
tate may not pass off its responsibility to pro#ide e6ual accommodations
"!eatt v. Painter 1A'0
7uality of Facility
J of 0 law school is segregated black side iolates equal facilities
5t looked at quantifiable and unquantifiable factor to determine if equal 1i%e% alumni, opp for @obs, prestige,
networking, faculty, associations2%
Court is setting the stage to show that it's #ery hard to ma+e something different e6ual
MaLaruin v. 57 state )e*,
1A'0
0reatment of (tudents
Black kid admitted but forced to sit at separate table
(eparation denied <c opp to socialize and interact, which is integral in 6uality of education
0ntangibles factors play into the e6ual consideration
Bro!n v. B5E #ope$a
Narren, 1A'!
(eparate is unequal
%eject sep 1ut e(ual doctrine in public schools 8only oerrules )lessy in field of education2; segregated is
unconstitutional b-c states classified students based on their races.
Sociological Jurisprudence , (egregated schools hae psych effects that make black kids feel inferior
.a< G segregation restricts freedom to assemble as protected by the 1
st
:mendment 1of course, the counterailing
constitutional consideration is that desegregation it also forces you to assemble with people you don6t necessarily
want to2
Judicial actiis" : /ecision not based on history or te$t, but instead on modern sociological studies
Bollin* v. "harpe
1A'! 1same day as Brown2
1!th :mendment cannot be the basis for a desegregation challenge to schools in /5 b-c 1!th :mendment applies to
states, and not to federal goernment 1formalist2
0herefore, rely on the 'th :mendment, and read in an equal protection clause 1een though it6s only a due process
clause2 1functionalist analysis2%
Doweer, when 'th was ratified, most blacks were slaes; thus, can6t ground it in originalist theory; this is one of the
Narren 5ourt6s 3actiist rulings4
Bro!n 44
1A'', Narren
9emedy for Brown 7
9emanded to Fed /ist ct to implement, using 3general equitable principles,4 3racially non,discriminatory basis,4
3with all deliberate speed4 1(5 has no power to enforce, and scared b-c Kisenhower thought /rown 0 was decided
wrong b-c belieed in 3natural law of segregation42
#o immediate relief; (5 looks at this as a group right, not an indiidual one 1in opposition to McCabe2
*arado$ : if you6re blind to race upon admitting students to schools, then the social demographics which hae
deeloped will preail, and segregation in fact 1though not in law2 will continue; in order to desegregate in fact, you
must pay attention to race upon admitting to ensure 3mi$ing4
Kffect of forcing 7ntegration : although Brown does not achiee desegregated schools, it does create such an aderse
affect in the south that it brings into the northern 0Fs the iolent reactions in the south to the desegregation laws,
swaying white northern opinion behind the ciil rights moement
"!ann v. Charlotte B5E
1A"1
:ffirmatie :ction
Jpheld state remedy of redrawing district lines and bussing students to achiee integration
9e facto 13natural,4 not state,created, segregation2 is not actionable 1this impt% in the #orth2
0he only kind of discrimination that iolates the 5onstitution is that which results from official mandate
(cope of remedy is limited to 5onst% iolation; once 3unitary status4 is achieed, @udiciary must pull out
STAN/A%/S O7 %E$IE@
Kquality *rinciple (imilarly situated people should be treated similarly
/iff situated people should be treated differently
Io should not act arbitrarily and treat people unfairly ,treating sim situated diff or diff situated the same
(trict (crutiny Io purpose must be co"pelling 1:dmin 5onenience is not acceptable2
<ust use narro!est "eans to achiee the purpose
:pplied for suspect classifications 1race, ethnicity, religion2 1must show legislatie intent to discriminate2
Kffect of application : Jsually strikes down challenged classification
7ntermediate 1Deightened2
(crutiny
I"portant State interest and su1stantial relationship to the state purpose
:pplies only in (KQ discrimination cases
9ational Basis Legiti"ate state interest and the means hae a rational relationship to the state interest 1lowest burden to meet2
:pplied for (ocial and Kcon 9egulations
Kffect of application : :lmost always upheld under this standard or reiew
%ACE S)ECI7IC CLASSI7ICATIONS
"trauder v. -8
1&&0, (trong
Blacks statutorily e$cluded
from @ury
)riginalist :rg based on 1!
th
amend: blacks were the intended beneficiary of the 1!
th
amend%
Negatie and not positie right& 5t did not say ( had a right to @ury with blacks, but that state cannot hae a statute
that bars them
faciall# discri"inator# statute 1first way to show that legislati#e purpose to discriminate2
7ore'atsu v. +"
1A!!, Black
Ct articulated ST%ICT SC%UTIN? as So% for race as a suspect class
Doweer, didn6t actually apply (( here b-c it showed deference to the military in order to protect against the alleged
E
B refused to go to interment
camp and conicted, upheld
national security threat; instead, they used 9:07)#:8 B:(7( and allow administratie conenience as the
legitimate goernmental interest
.ackson /issent G dangerous set this precedent for military; ct is being political rather then neutral
<urphy /issent G there6s not een rational basis; @ust racially pre@udicial, stereotyping all .apanese
Lovin* v. 8ir*inia
1AE", Narren
7nter,9acial <arriage
<erely b-c statute applies equally to blacks + whites does not remoe it from K* reiew under 1!
th
amend
(tatute was predicated on assumption that whites were superior as it allowed blacks to marry other non,whites; racial
classification J#5
Hunter v. Eric$son, 1AEA
housing regs must pass thru
white ma@ority
Facially neutral but administered discriminatorily 1second way to show leg% purpose to discriminate2
Darms minorities from Fair Dousing, as the ma@ority may induce discrimination through this e$tra approal step
NON %ACE S)ECI7IC CLASSI7ICATIONS
-ashin*ton v. &avis
1A"E, Nhite
Cualifying 0est for cops;
5laim that it had a racially
disproportionate impact
against blacks
0hird way to show legislatie purpose to discriminate: 30hough statute is facially neutral, it was enacted w-purpose of
discriminating, shown by circumstantial eidence
Rou hae to show legislatie intent to discriminate 1in one of the ; ways2 in order to heighten the standard of reiew
from rational basis to strict scrutiny% 0hen, burden shifts to the /, who must show by preponderance of eidence that
it would hae adopted statute w-o any discrim effect% 7f it fails, apply ((
Dere, there was no such showing, so case e$amined under 9B% 8egitimate interest in the test 1officers must be able to
communicate2, test to filter out those who cannot is rationally related% 0hus, passed 9B%
Arlin*ton Hei*hts
1A"", *owell
Nhen there is proof that a discriminatory purpose was a 'otivatin* .actor in the decision 1need not be the only
factor2, @udicial deference to the legislator is no longer @ustified, and statute must be struck down
)o*ers v. Lod*e
1A&? Nhite
8ots of minorities, no
minority reps 1I:2
/iscriminatory purpose shown by circumstantial eidence
7nstead of haing people of an area ote for their rep, general elections for all reps <inorities neer elected 1keep
minorities from getting representation-benefiting from system2
:t large oting system was deeloped b! blacks could ote, so no intent in its institution, howeer, there was a
discriminatory intent in its maintenance%
A77I%MATI$E ACTIONG %ACE
+C )e*ents v. Ba$$e
1A"&
<ed sch% admissions
process challenged
Majorit#& race can 1e a factor> 1ut cannot 1e deter"inatie6 9uotas violate EPC
)ne *lurality : lower (o9 to heightened scrutiny when affirmatie action inoled%
*owell6s *lurality : (trict scrutiny is the proper standard for affirmatie action, like% uggests compelling state interest
in student body diersity%
1ullilove v. 7lut2nic$
1A&;, Burger; Federal ::
program for <BKs
Congressional AA
3.eightened (crutiny with deference to 5ongress4 1court fails to use proper language2: (5 acknowledges that 5ong%
has a role delegated by the 1!th amend% to enact remedial legisl% to rectify racial discrimination
Dere there was eidence of passed discrimination 1one of the 0N) categories in which (5 has )B6ed affirmatie
action; other is in dierse student body2
)ich'ond v. Croson
1A&A, )65onnor
State AA
5ongress has special constitutional authority from 1!
th
:mendment that states don't ha#e
Distorically, it has been the proince of the federal go#ernment to remedy discrimination by states, whose actions
hae been suspect% 0herefore, the states6 :: plans must be reiewed with greater scrutiny%
Adarand Const v. Pena
1AA' )65onnor
All racial classification i"posed 1# goern"ent "ust 1e anal#<ed under Strict Scrutin# 4destroys distinction
between (o9 for 5ongress and for states2
Constitution is color1lindM Nhether racial discrim% is based on helpful or harmful moties is irreleant%
Concur 1(calia2: benign race,based regs sere to perpetuate race,consciousness
Concur 10homas2: consequence of :: is the perception that minorities are not 6ualified by their capabilities, but
only b-c of their race
/issent 4(teens2 G easy to discern b-w benign and inidious intent; helpful regs should be sub@ect to less stringent
(o9%
6rutter v. Bolin*er
?00; )65onnor
<ichigan law school admit
process challenged
7irst ti"e Court recogni<es student 1od# diersit# as a co'pellin* state interest
Strict Scrutin# means are sufficiently narrowly tailored, as they ealuate applicants as indi#iduals and race is
simply a factor in that consideration
Scalia /issent G this might be a compelling interest to someone, but not to the state of Michegan
Tho"as /issent G instead of sticking with institution that has a discriminatory effect and then trying to remedy it
after the fact, better to do away with 3elite4 nature of admissions that discriminates 18(:0sO2% )65onnor responds
that doing that would hae consequence of negatiely changing the law school
6rat2 v. Bollin*er
?00;, 9ehnquist
:: system of admittance gies across,the,board points for being a minority, no indiidual consideration
7ails Strict scrutin# 9ace was a decisie factor6 not part of a holistic deter"ination
Parents v. Louisville (
"eattle "ch., ?00"
0his was merely about 9:57:8 B:8:#57#I, which is #)0 een a legitimate state interest, let alone a compelling
one; 7f we allow this, racial cognizance will neer leae% <)FK )#M
0homas 1in concurrence 2: all about the 3color blind constitution4 and accuses the liberal dissent of engaging in
"
3(ocial engineering4 and deferring to local sch% bds as to what constitutes a compelling goernmental interest
8iberal /issent : defer to school district plans for aoiding future segregation; segregation is segregation, regardless of
whether it occurred de facto or de jure
2EN/E% EFUALIT?
Brad!ell v. 4L 1&";
Noman and 78 Bar
*racticing law is not a priilege or immunity of national citizenship under the 1!
th
amendment
Minor v. Happersett
1&"'
0he 5ourt acknowledge that women were 3persons4 and 3citizens4 within the meaning of the 1!
th
amendment, but
held that the right to ote was not a priilege of citizenship and that women could be denied the franchise% 8ater
oerturned by the 1A
th
amendment
Muller v. 5re*on 4*H+D8 Brandeis upheld )9 womens6 ma$imum work hours statute on basis of 110 page brief e$plaining that e$cessie work
ours weaken women6s reproductie abilities and increases the delinquency of children%
)eed v. )eed
1A"1 Burger
(truck down Jtah classification based on se$ where pref of men as e$ecutors of interstate land
9B0 distinction b-w men and women sered #) legitimate state interest 1admin efficiency not enough2
1rontiero v. )ichardson
1A"; Brennen
F military benefits
F6s must proe dependence while men don6t to get benefits
Fails to decided appropriate ()9
Brennen wants (( gender has been used to subordinate suspect 1analogous to history of blacks2
0*uyen v. 4''i*ration
and 0ationali2ation
"ervice
?001 Bennedy
(tatute diff in establishing
paternity
7ntermediate (crutiny 1se$ case2 (tate interest in preenting fraudulent paternity claims
/iff b-w men and women proing paternity her is @ustified based on the fact that women must be present at birth
she had an opportunity to hae a relationship with the child% 0he male may not be present at birth so they are held to a
high burden
O,Connor /issent G ct6s argument is based on a stereo type of men and thinks the before 1& is arbitrary% /oesn6t
think that the statute furthers any state interest wants proof of a relationship not 3opportunity4
Crai* v. Boren
1A"E Brennen
#on into$ beer sale to <
Inter"ediate Scrutin# 4Heightend8 for all gender discri"ination
(tatute bars < 1&,?1 from buying non into$ beer, purpose of public safety
<aybe 8 state interest in public safety but the means are not substantially related prohibits sale but not
consumption of non into$ beer 1stats weren6t enough to make 8 state intrest2
(e$ discrimination in that using stereotypes < drie drunk, F are drien home, iolates K*5
%ehn(ust /issent G 5t uses own sub@ectie reasons under 7(% (hould use 9B0 1stats are enough2
+" v. 8ir*inia 1AAE
Iinsberg, F<7 case
5lear and conincing
eidence
Stricter Tone in appl#ing IS state must demonstrate e$ceedingly persuasie @ustification
#ot a clear enough connection b-w the interest 1training soldiers, adersarial instruction etc2 and the e$clusion of
women
Scalia G argues that this is actually ((% <ary Baldwin 1alt school2 was sub related to achieement of diersity in
education%
argues that ct may not supersede political practices F<7 long tradition should not be stopped 1same arg as from
<c5ulloh G history can gie details of 52
:omer #. 5#ans
1AAE Bennedy
5) 5 :md% *rohibiting
minority status to gays
Se3ual Orientation
9B0 on steroids no rational relation to legitimate state interest, @ust desire to harm gays 1social or econ2
(tatute was a <oral @udgment on Iays discriminating on a group characteristic
:rgues that the statute distorts the political process for Iays and makes it more difficult to achiee their political
interest, they hae to amend the 5) 5 iolates K*5
Scalia, ma@ is also making a moral @udgment% 7ts okay for the people of 5) to make a moral @udgment about their
laws, @ust as it was okay for the ct in F<7 to make a moral @udgment%
5t not using 9B0 G sub its moral @udgment for a neutral @udgment of the people of 5)
NATIONALI;ATION O7 7UN/AMENTAL %I2HTS
SCT has e3panded the C to enco"pass not onl# the 1ill of rights 1ut also i"plied funda"ental rights
)riginalism Framers intent should control% (trict Digh degree of specificity% (oft high degree of generality
#on )riginalism 7ssues today were not foreseeable by framers so framers intent should not be used to interpret
7nterpretiism 9estricts @udges to the alues e$pressed in the 5
#on 7nterpretiism .udges may look beyond 5 to find norms for deciding issues i%e% contemporary morality , @ustice
(laughter Douse 5ases
1&";
Butchers rights to work free
from state regulations
)riginalist :rg G *+7 clause protects rights en@oyed as a J( 5707SK#% Das no bearing on the rights en@oyed as
citizens of a state 1inalidates *+7 clause2
o Baz G ct prob ruled this way out of fear of haing diminished the power of the state to regulate corps%
:ffirmed state based federalism at the e$pense fed fundamental right
<iller if we make state rights fundamental, would e$pand FK/ power and allow Fed to intrude on states and
undermine original :merican Federalism% Bnows its bad to base an argument on consequences but when the
consequences are this seere, should interpret the 5 this way
Significance, *+7 done% (o any claim based on state citizen rights could only be brought against state go but if
&
rights iolated by fed go bring claim in fed ct
INCO%)O%ATION O7 THE 0ILL O7 %I2HTS
)al+o #. Conn
1A;" 5ardozo
7n order for a right guaranteed under the B)9 to be incorp into the 1!
th
amend, it must be considered a fundamental
right
Fundamental if it must be inherent in the concept of ordered liberty
o : right which without @ustice is inconceiable
o /enial of a right which would iolate a principle rooted in the history of the people
3damson #. C3
1A!" Frankfurter
*leading the '
th
was allowed
to comment on /6s guilt in
state ct
1!
th
:mend did not incorporate the priilege against self discrimination
Frankfurter argued that if any of the right in the B)9 is inhere in the /* clause of 1!
th
it should be determined on a
case by case basis
Black6s /issent argues )riginalism intent of the framers was to incorp the B)9 into the amend to bind them to the
states% De argues for 0)0:8 incorporation
SU0STANTI$E /UE )%OCESS
%ochner #. !"
1A0' *eckham
Baker6s work week
Formalist :rg G assumption that the 5 protects the liberty to contract 1F92 statute un5
7mpermissible use of police power interferes with market
Harlan /issent G imposing econ theory is horrible% 0hinks we should be using a 3reasonable man4 standard to
determine if a statute is proper% Dere looking at health measure and sites stats
!ebbia #. !"
1A;! 9oberts
(ets prices for milk
9B0 G /ue process demands only that a statute not be arbitrary, discriminatory or demonstrably irreleant
Dere there was a public interest in protecting the quality of milk as it was essential to a healthy diet
5ontracts rights of businesses effected with a public interest are industries sub@ect to go control 5onsequence:
broadened go regulation of economy
;est Coast .otel
1A;" Dughes
<in wage for Nomen
7f statute protects health, safety, or welfare T 5 deference to state legislatures
0raditionally women hae unequal bargaining power and need to be protected% 7f not, the burden will shift to the
ta$payers in welfare undue burden 1oerruled 8ochner G market2
:ssumption that the employers are taking adantage of the women who hae to work abuse of the mrkt
(etting <in Nage does not interfere with the property rights of employees
$ #. Carolene )roducts
1A;&
Filled <ilk
Jnless there is eidence to the contrary, 5t will gie deference to state 8 that the statute seres some rational
economic basis
;illiamson #. %ee ,ptical
1A''
-erguson 1AE;
E3tre"e deference to state legislatures !ith a presu"ption of Constitutionalit# in regulating economic actiity G
assumption that if the market is being abused state can step in and fi$
MO/E%N SU0STANTI$E /UE )%OCESS
(riswold #. Conn
1AE' /ouglas
(truck down prohibition of
contracepties
%ight to Marital )riac#
(/* 9ight to <arital *riacy, contracepties #)0 ind right to priacy
9ight to :ssembly 1
st
9ight to :ssociate 9ight to <arital *riacy
Jses the penumbras of the B)9, 1, ;,!,',A :mendments not (/* of 1!
th
amnd ery far remoed from se$ual
priacy argument
Darlan 5oncurrence found marital priacy implicit in the idea of 3ordered liberty4 G its obious
0lac5 /issent G :grees it6s a silly law to ban contraception from married couples but doesn6t think the 5t has the
power to makes this type of normatie @udgment
5isenstadt #. /aird
1<=>
(truck down ban on
contraceptie to singles
(/* K$panded right to <arital *riacy 1Iriswold2 to an 7nd *riacy 9ight 3to be free from go intrusion in
deciding whether or not to hae kids4
o (tatute wasn6t 99 b-c not all deises 1contracepties2 were a threat to public health
K* :nalysis <ust recognize the right of a single person to hae the same rights to contraception as a married
person% But they are differently situatedO 5t says should still both hae right, doesn6t disturb the law making
fornication among singles illegal
Baz criticizes thinks this was the ct making a 8 decision and it should be the state that changes 8
:oe #. ;ade
1<=? /lac+mun
0Q statute banning abortion
struck down
Focus is on *hysician6s
right to choose
(/* e$tended right to *riacy to include 9ight to determine whether or not to hae a child, right to priacy in
choice to terminate pregnancy and right of physician to make such a decision
#ote history in women not being prosecuted for abortions pre 3iability4 doesn6t help here since then women couldn6t
know they were pregnant before iability so no blameworthiness prior to iability
(( when regulating 1
st
trimester fetus not iable so st has no compelling interest in protecting it
?
nd
trimester only to protect mother6s 8ife interest 1physician6s discretion2
:fter iability state may regulate or proscribe abortions as now there is a compelling interest
#ote this is another case where they tried to aoid political backlash and made it worse
A
:lso decided when life began iability een though said the weren6t deciding it
/7((K#0( 9ehnquist G not a priacy issue, its medical Nhite G it6s a (0:0K interest they should hae pwr
Baz ct is really articulating :utonomy% #eer states why women6s interest in choosing trumps community interest
in 1
st
trimester
7nterpretiism :rg that the ct shouldn6t hae decided this case as it is not within the bounds of the 5
Maher #. :oe
1A""
<edicaid
(tate 9egulation granting <edicaid benefit for childbirth but not for abortions G J*DK8/
9ight to an abortion is a negatie right 1can only remedy iolations, affirmatie duty of go2
Nealth is not a suspect class use 9B0% 8 state interest to promote childbirth and to faor childbirth
.arris #. McCrae
1A&0
Jpheld statute prohibiting abortions, een if 8ife at risk
:bortion is a #egatie 9ight needs to be free of I)F interference 1state didn6t make them poor2
Casey
1AA? )65onnor
Noman6s right to choose
*8J9:870R
(/* :bortion no longer fundamental right, no (( test% 7t6s a right of :utonomy G for a woman to choose
9 G right of a woman to choose to hae an abortion before iability and to obtain it without interference from state
Jndue Burden 0est e$ist if its purpose and effect presents a substantial obstacle
o (tate has a profound interest from the moment of conception and may therefore regulate
<ust hae an e$ception for health of woman after iability; can prohibit after iability
(tare /ecisis #ot to be done lightly% 5hange in law, reliance, facts, change in rule to make it unworkable
(trikes down spousal notification woman6s interest trumps hubby6s
*arental notification fine must hae a @udicial bypass
#ote recognized the right under 3ordered liberty4 under 5 assumption of autonomy but does not rec as a fundamental
right% Jses 1!
th
amend een though not the framers intent
teinberg #. Carhart
#K (tatute against partial
birth abortions
Jndue burden b-c applied to /+ K and /+Q ague wording 3substantial portion4 presents an obstacle in
choosing the safest method possible no health e$ception
o Nhat the diff anywayO (eems like ct again forced to decide what is infanticide
/issenters if /+Q is iewed as infanticide then state could hae 5 authority to outlaw procedure
OTHE% )%I$AC? INT%EST
Moore #. City of 5ast
Cle#eland 1A"" *owell
9B0 7nterferes with fundamental right to define a family 1who could lie together here2
Family is fundamental as it is 3rooted in the traditions of the people4 G (calia
Nhite /issent no need to use F9 analysis, @ust precluded liing in the suburb not to lie with family
(tewart /issent right of association is a political right under 1
st
amend 1kaz agrees2
@ablolc+i #. :edhail
1A"&
N7 5hild support
(tatute banning marriage unless a parent can show that they were paying ct mandated child support
K* analysis wealth is not a suspect class, fails
9B0 <eans are not reasonable doesn6t gie kids money
/* analysis marriage is a fund interest but doesn6t use (( b-c it6s a state interest and ct doesn6t want to interfere
with state right to regulate
Michael . #. (erald ..
1A&A *arental rights
Dubby T /ad statute
Jpheld
(calia wants to define issue narrowly role of Father in D7(0)9R; cannot define a new right
Brennen wants to define issue broadly look to the current rights of the father, roles has changed since the 5% 3if
you define broadly, you only protect the status quo4 and the 5 is supposed to be a liing doc which changes with the
e$igencies of our society
/owers #. .ardwic+
Nhite
I: Iay (odomy (tatute
5t #arrowly defined the right as right to homose$ual sodomy #) tradition or history #o F right
9B0 state has legitimate interest in protecting morals 3slippery slope argument4 also J*DK8/
/issents both argue its about autonomy not sodomy
%awrence #. Aexas
Bennedy ?00;
Iay sodomy criminal
(truck down Bowers

9ecognized a fundamental right to se$ual autonomy
)er ruled Bowers on change of 8aw basis uses 5asey 1autonomy2 , Iriswold, and Kisenstad 1e$pansion of 1!
th

amnd to recognize interest not e$plicit in 52
9B0 on steroids states may no longer use morality as a state interest must show secular argument
o #ote uses 9B0 b-c still state interest in regulating statutory rape, marriage etc 1Bowers2
)65onnor 5oncurrence wants to use K*-9B0 analysis so not to recognize a 5 right uses 9omer % Kans
/issent (calia G no history from which to base the right% 7f wont recognize moral state interest, then hae to outlaw
bigamy laws etc%
I:R <:997:IK G <a@ no requirement of states to recognize Iay marriage rights
(calia says by logic, the state would be required since recognizing autonomy in relationship and intimacy
%I2HT TO /IE
Cru&an #. 9irector Miss
9ept of .ealth
1AA0 9ehnquist
(/* 1not (( as there is a state interest in regulating2 liberty right in refusing medical treatment
autonomy right to hae body be free of go interference
balances state interest in life % incompetent patients right to terminate life support state trumps
10
)er"anent $eg State o parents cant be surrogates as there is a conflict of interest sick of dealing with it 1" years2
7ncompetent patient intent to terminate must be clear and conincing eidence
0rennen /issent G she6s brain dead no life to protect% 5t is defining life and cant do that
;ashinton #. (luc+sberg
1AA" 9ehnquist
)A assisted suicide for
ter"inall# ill
#) Fund right to suicide, /KK*8R rooted in history so cant be challenged
9B0 (tate interest in presering life and /oc Kthics, statute banning is related means
Norried about slippery slope if assisted suicide was allowed, /r inducing patients etc 1cites #etherlands2
Bacco #. 7uill
#R statute against :ssisted
suicide
7ntent of *alliatie care is to make patient comfortable die of natural causes
:ssisted suicide ob@ectie is death
COMME%CE CLAUSE
cope of Congress to regulate
FK/K9:87(< Steens , #ationalistic theory of popular soereignty #ational go powers come from the people
o Knisions a #ational *olity where Fed power prealent oer states
.enned# I /ual (oereignty grounded in popular soereignty but recognizes states as haing a more equal notion
of power
Tho"as , Federal (tates 9ights theory

7E/ DA , Damilton argues that B)9 is dangerous *olitical *rocess is real te$t and K$pressing prohibiting congress
from denying a certain right implies the power to regulate it
(ibbons #. ,gden
1&?! <arshall
(tate % Fed 8icense
Marshall Broad 5ommerce *ower
*lenary power any abuse would be remedied by political process 1<c5ulloch2
5ommerce intercourse among the states 1?U congress has power t o regulate2
7ntrastate no power to regulate unless affects more than 1 state 1state may regulate2
Judiciar# cant decide if its co""erce or if its necessar#
3%3 checter )olutry #. $
1A;', Dughs
5hicken interstate sales
0he #ew /eal
Legal 7or"alis"
#79: 1industry regulations committee2 un5 under legal formalism%
/irect % 7ndirect analysis 9elationship defines actiity status and 5ongress6 power to regulate%
Dere ()5 came to rest in #R% *6s actions were interstate as the chickens were sold in state #) direct effect on
7nterstate commerce, FK/ cant regulate
Formalism bad here b-c by holding that it was local in nature, ignored the practical reality effect on wages, and prices
*6s acts would hae on the nation
Carter v. Carter
1A;E (utherland
5oal workers hours and
wages
Legal 7or"alis"
Formalism :ct effect production which in intrastate een if sale of coal in interstate% 0hus Fed Io doesn6t hae
power to regulate
o #)0K again ignoring 5ongress6 *lenary powers from )gden
Cardo<o /issent , 8egal 9ealism recognizes that coal is necessary nationally and not allowing 5ongress to
regulate wages and hours can hae a substantial effect on coal prices and well being of people%
!%:/ #. Cones
1A?" Dughes
Legal %ealis" change
in jurisprudence )) !ill
police Congress NOT CT
.ones challenging the statute as it guaranteed the employees to form unions 1steel company2
Jpholds #89: set min wages and ma$ hours and gies board power to enforce
Jses a (ubstantial effect on #ational Kconomy test co was a multi,state network, didn6t matter that production was
intrastate% 5t looked at the oerall effects
Legal %ealis" 9effect: !hich 9could: affect CT NOT deciding if it does' 5ommerce power *lenary again
9B0 standard
9e@ects (checter approach
$ #. 9arby
1A!1
K(0 <in Nages
Legal %ealis"
Fair 8abor (tandards :ct J*DK8/ 1preents goods from traeling that were produced in substandard conditions2
9B0 protects heath and general well being of workers by regulating wages and hours usually state powers
9ecognizes that 5ongress may use 5ommerce power to achiee social goals
10
th
amendment does #)0 limit 5ongress powers
D)N 7( 0D7( 5:(K 87BK <:907#OO
;ic+ard #. -ulburn
1A!?
Nheat 5ase G quotas
5umulatie Kffects *rinciple one farmer oer quota is no biggie but as an aggregate could drop the price of wheat
and :ct was trying to drie it up Legal %ealis"
:gain 5ongress is regulating a non, econ act with a substantial affect on interstate commerce
KQ09K<K8R deferential to 5ongress
.eart of 3tlanta #. $
Banning /iscrimination in
Dotels
0itle 77 of 1AE! 5iil 9ights :ct J*DK8/ on basis of 5ommerce powers
9B0 regulating where blacks may stay promotes trael and furthers economy
5ongress power e$tended oer priate actors here
:cted here to prohibit a moral wrong
11
Dat&enbach #. McClung
/iscrimination in
9estaurant
5umulatie 0heory used again )llie6s bbq no sub effect but restaurants as a whole can be
9acial /iscrimination affects the economy more broadly 59: 1AE' J*DK8/
:gain Ireat /eference
(arcia #. an 3ntonio
Aransit 3uthority 1A&'
Blakmun
<in Nage- )er time
*roision F8(:
2eneral app la!
Nhether a min wage and oertime proision of the Fair 8abor (tandards :ct should apply to employees of a
municipally owned and operated mass transit system
Functionalist :rg .udicial 9eiew is not meant to protect state rights from congress% *olitical *rocess takes care of
it, commerce clause and state reps in congress protect state interest
FK/ !'-!E 1<adison2 eerything is decided by fed process ct should gie deference to **
)o!ell-O,Connor /issent G 5t has a 5 responsibility to police congress and protect state interest% * argues that bills
are often drafted by staffers who are not responsible to the people of the state%
o Baz thinks dissenters fail to note that the ct is not elected body and is not comparable to the people on their
police power of congress% But does see that they are concerned with state autonomy
$ #. %ope&
1AA' 9ehnquist
(trikes down Iuns free
school zone :ct
%egulated traditional state
jurisdiction
<arbury supports @udicial
supremacy
Judicial Actiis" %eie!
Nhen 5ongress e$ercises :rticle 7 commerce powers, must be within @udicially enforceable limits
o <ay regulate 5hannels of 7nterstate commerce 1waterways, highways2
o 7nstrumalities of 7nterstate commerce 1hotels, goods etc2
o Kconomic :ctiity with su1stantial effect on econo"ic actiit#
0est of 5 and .udicial 9eiew Ct will now determine substantial affect on 7(5 ind of 5ongress
o /K #)F) 9KF7KN /oes it actually relate not @ust 3could it4 under history, tradition, (( etc
:ctiist 5t holding that 5ongress 5ommerce powers are #)0 plenary, Fed !' pwrs are 87<70K/
7mplied .udicial (upremacy oer 5ongress e$plicit powers from <arbury (5t ultimately says what the law is
Dere, Iuns in school are not a commercial actiity
(lippery (lope argues that Brennen6s /issent would allow anything to be commercial
.enned# Concurrence G FK/ !E boundaries where intended to be policed by the people, Doweer times hae
changed and 50 should know oersee the boundaries b-w state and FK/
** will balance Fed and (tate pwr and when tipped to far, 5t will decide what the law is assumes that the ct knows
the proper relationship b-w state and FK/
Kducation is a state power and FK/ should not interene
0re#er,s /issent G 9B0 education is an econ actiity, cites tons of stats of iolence effecting education thus there
7( a substantial connection
9e@ects 9ehnquist 3floodgate4 arg b-c the :ct here is narrow and targeting a specific problem
Souter /issent, 5riticizes 9ehnquist argument that education is an e$clusie state pwr we hae laws regulating no
discrimination in schools, #o child left behind regulates curriculums etc and re@ects Formalism
$ #. Morrison
?000, 9ehnquist
Fiolence against Nomen
%egulated traditional
state jurisdiction su1j'
(ame 9ationale as in 8opez iolence against women is not an econ actiity and thus fails the substantial affect on
7(5 5ongress does #)0 hae power to regulate
5ongressional Findings only assist the ct, they are not dispositie 50 has discretion
9e@ects argument that iolence deters women from traeling 1heart of atl hotel2
Souter /issent
CON2%ESS )O@E% TO %E2ULATE THE *A
TH
AMEN/ %ECONST%UCTION
Dat&enbach #. Morgan
1AEE Brennan
#R 8iteracy % Foting :ct
1AE'
Foting :ct of 1AE' 5 , #R is challenging b-c does not require literacy
/eferential theory of @udicial reiew recognizes 5ongress Broad powers to determine if state laws are un5 under
section 1 of the 1!
th
:mend and right to remedy under section '
Dere 5ongress is not limiting a right, @ust legislating under
K* analysis 5ongress had reason to beliee that #R requiring literacy was discriminating against *9
Harlan /issent G ()* argument, by recognizing this power in congress is letting them act as the @udiciary% 9easons
from <arbury if 5t doesn6t check, 5ongress will hae unlimited power
o Baz disagrees political process can take care of the problem
/orene #. -lores
1AA" Bennedy
9F9: G #: using peyote
Distorical :nalysis 1Bennedy2: 1!
th
:mend% /rafter 1Bingham2 originally gae 5ongress the power to define the
rights; so much opposition to that draft that he had to omit that proision% 0hus, 5ongress may only remedy and
enforce rights, it may not define-create those rights 1this is a @udicial power2
Baz says this is wrong: 5ong% drafted >1 of 1!
th
to incorporate the 5iil 9ights act of 1&EE, which defined the rights it
sought to protect
5ongressional remedies must be proportionate and congruent to the in@ury and the means%
Dere, * had to show a pattern of discrimination, not @ust a single act
$ #. Morrison
?000
:pplies *roportionate and 5ongruence 0est to Fiolence against women act
0he :ct was aimed at priate indiiduals and 5ongress6s remedial powers only e$tend to remedy actions of the state
need pattern of discrimination under K* clause
1?