BSGE CONSTITUTIONAL LAW OUTLINE

I. INTRODUCTION AND OVERVIEW

Articles of Confederation v. U.S. Constitution

Similarities
Articles of Confederation U.S. Constitution
Article IV “full faith and credit” Article IV, Section I “full faith and credit”
Article IV – extradition among states Article IV – extradition among states
Article IV Freedom of travel b/w states; Article IV Freedom of travel b/w states; privileges of citizens
privileges of citizens
Article V – No del. may hold U.S. office Article I, Section 6 – No Senator or Rep. can be appointed to
any U.S. civil office
Article V “freedom of speech and Article I, Section 6 – “and for any Speech or Debate in either
debate in Congress” House, they shall not be questioned in any other place”
Common Congressional Powers
 To pay debts
 To provide for the common defense
 To borrow money on the credit of the U.S.
 To regulate commerce w/foreign nations
 To coin money and regulate the value thereof (and fix the Standard of Weights
and Measures)
 To establish Post Offices and Post Roads
 To define and punish piracies and felonies committed on the high seas
 To declare war
 To provide and maintain a navy
Article VI – Limit on state powers (e.g., Article I, Section 10 Limits on state powers (e.g., no treaties,
no treaties, no alliance w/king, no dec. no alliance w/king, no dec. of war)
of war)
Article XII – assumes debts before AoC Article VI – assumes U.S. debts before Constitution
Article XIII – supremacy “Every state Article VI – “supreme Law of the Land”  supremacy clause
shall abide by the determination of the (U.S. Constitution + laws of U.S.)
U.S in Congress assembled, on all
questions which by this confederation
are submitted to them [U.S. Congress]”
Aversion to monarchy – no titles of Aversion to monarchy – no titles of nobility
nobility
Legislative transparency – publication Legislative transparency – publication of journals
of journals
Macro similarity - Federal foreign Macro similarity - Federal foreign policy
policy

Differences
Articles of Confederation U.S. Constitution
Preamble contractors – 13 States Preamble contractors: “We the people” (emphasis of
(emphasis on sovereignty of states) sovereignty of “people”) + rationale
Unicameral Congress
2-7 del. per state
Del. appointed by state legislatures in
manner determined by state legislatures
1 year terms
1 vote per state
No more than 3 yrs out of 6
Del. paid by states
Pres. of Legislature presides
Not in session – Committee of States
Power to requisition armies from states
U.S. & states coin money
Silent on ex post facto laws
Silent on bills of attainder
Silent on habeas corpus
Taxes apportioned by Congress,
collected by states
Assent of nine states req. for most
specified powers
Article II – states retain powers not
“expressly delegated”
No discussion of executive branch
Only describes courts for “the trial of
piracies and felonies committed on the
high seas”
Congress (commission) resolves
disputes b/w states
9 states must agree to admit new states
+ automatic admit for Canada (use of #
as opposed to ¾)
Unanimous consent required for
amendments
Unanimous consent required for
ratification
Limited indirect ref. to slavery (phrases:
“free” inhabitants, requisitions in
proportion to # of white inhabitants)
Federal gov’t relies on states
Focus on powers of Congress
Reaction to external threats
No def. of treason
Doesn’t address fugitive slave question
Ref. to “Great Governor of the World”
Bicameral Congress: House & Senate
House, apportioned by pop.; Senate, 2 members per state
House: elected by the people; Senate: appointed by state
legislatures
House: 2 yr terms; Senate: 6 yr terms
1 vote per member
No term limits
Senators and Reps. paid by U.S. Treasury
House: Speaker; Senate: Vice President
Pres. can call into session
Power to raise an army
Only U.S. coins money
Ex post facto laws prohibited (U.S. & states) – makes criminal
action that was innocent when originally innocent (Article I,
Sec. 9 & Sec. 10)
Bills of attainder prohibited (U.S. & states) – laws singling
someone out by name for criminal punishment (Article I, Sec.9
& Sec. 10)
Writ of habeas corpus shall not be suspended
Taxes laid and collected by Congress
Majority of both houses, signature of president
Article I, Section 8 – “necessary and proper” clause
Amendment X – “powers not delegated” (no word “expressly”
from AoC) “reserved to the States… or to the people”
Article II: Executive – President + Vice President (w/plan for
succession)
Article III: Judicial (inc. Supreme Court)
Supreme Court resolves disputes b/w states
Congressional approval of new states
Article V - ¾ of states req. to approve amendments
9 states required for ratification  When GW became
president, SC and RI not members, then blockaded
Multiple indirect references to slavery (3/5, slave trade
regulation prohibited until 1808, fugitive slave provision)
Greater independence for federal gov’t
Balance of powers b/w branches
Focus on creating “more perfect union”
Defines treason  limit on power of fed. Govt.: uses word
“only” – saying what treason isn’t
Adds fugitive slave component in Article IV
Only ref. to God is “in the Year of our Lord”
State militias Amendment II – people added to right to bear arms
States are units w/standing Dual citizenship – citizens of U.S. + citizens of states

McCulloch v. Maryland (SupCt., 1819)

Established power of federal government over individual states and expanded the power of the
national legislature to use means it deemed necessary to achieve constitutionally mandated ends.
BACKGROUND:
Hamilton, Sec. Treas., proposes Nat'l. Bank in 1790; Senate approved. Debate over its passage and
approval by president: Rep. Madison says unconstitutional. AG Randolph says it’s unconstitutional.
Jefferson – close, but unconstitutional. “Necessary” does not mean “convenient.” Hamilton: the means
employed are fairly applicable to legitimate federal govt ends. Necessary construed liberally.
First bank lapsed in 1811, but in 1816 bill was passed and signed by Madison for 2 nd bank.
Many states were opposed and passed “annihilative” taxes on the bank.
Facts: Maryland assembly passed a $15,000 tax on banks not chartered by MD legislature; tax applied
only to Bank of the United States. McCulloch (cashier of Bank of US) refused to pay tax; MD sued in its
own courts, successfully.
HOLDING: (Marshall). (1) Did Congress have the power to create the bank? Answer: Yes. Mixture
of textual, structural, historical and pragmatic arguments. (2) Could MD constitutionally tax the bank?
Answer: No. The power to tax is the power to destroy, and federal gov’t is supreme over states.
REASONING:
First Question:
Acts of the legislature should not be disregarded lightly; also not a big question of liberty but a balancing
between powers of federal vs. state governments. Constitution was approved by the people directly; not
merely a compact between the states themselves.
Fed Gov’t is one of enumerated powers, but it is clear that within its sphere of action, it is supreme (b/c of
Supremacy clause). Although chartering a bank is not one of the enumerated powers, Congress has
implied powers based on the ones that are enumerated. See ¶37 – even if “necessary and proper” does not
enlarge powers, it definitely does not restrict them.
Points to “necessary and proper” clause: rejects Md’s narrow construction, must have a broad meaning
(see ¶20); Power to punish those who violate federal laws is not enumerated, but all agree that feds have
this power, so this is evidence of implied power: if power to punish is implied, how can it not be implied
the power to charter bank… Const. does not attempt to enumerate the means of executing the powers,
only the powers themselves.

Second Question:
Const. and fed. laws are supreme: this gives rise to three corollaries:
1) Power to create implies power to preserve; (Congress can preserve bank)
2) Power to destroy is incompatible with power to create and preserve;
3) Where this incompatibility exists, authority that is supreme should control.
States can only tax their own people, and bank belongs to people of other states.
If States had power to tax fed gov’t it would create a chaotic situation;
Rejects argument that b/c US gov’t can tax state banks, then the reverse is true.
States cannot impede conduct of US gov’t b/c latter is supreme.
Unanimously declares Md. statute [taxing bank] unconstitutional;

CLASS NOTES:
Amar thinks that geostrategic argument is central to Marshall’s views on McCulloch: Marshall was at
Valley Forge and he saw how we almost lost Revolutionary War b/c of weakness of Articles; he
understands the need for a bank that can help finance an army.
 ¶17: lays out justification for bank, needs bank to transmit money over long distances (carry out war,
vast republic (already talking about Pacific Ocean), armies are to be marched and supported, treasure
(war word), b/c have to pay troops in order to advert disaster/mutiny, this bank is useful for that, end
of story. If there’s any purpose for gov’t, it is national security, people in army need to get paid; a
bank is useful for that purpose (convenient if not indispensable) and that’s enough (taxes, commerce)
 Marshall shifts the burden to MD to prove that Fed gov’t does not have choice of means to pursue
powers (See ¶19)
 Also pragmatic reliance argument that a lot of people have invested in this bank, it would destroy the
stock market: chaos: must be cautious.
 Marshall reminds us that important statesmen have changed their minds on this (i.e. Madison)
 Notes that Marshall’s decision gave Congress options: if Marshall had found bank unconstitutional,
Congress can’t change that, but now it has a choice…
 Important notion that the part can’t go against the whole: state can’t act over the federal gov’t
 Stresses idea of confidence: check on legislators of our state b/c we can vote them out, but we can’t
vote out legislators in other states: you can tax your own constituents only.
 Also notes that Marshall never fully confronts the question of the nature of the bank: is it part of the
gov’t or is it private: would this make a difference to our analysis?

The Demise of the Second Bank:

Andrew Jackson vetoed bill extending charter in 1832: felt constitutionality question not settled.
Said that his branch is entitled to, and should be guided by, its own view of the Const. Makes a good case
that features of the bill were not necessary and proper to carry out enumerated powers.
Says that if the Sup Ct (as Marshall said) can’t restrict the ability of Congress to means it thinks proper
and necessary, then Congress and the President have to exercise extreme caution. Jackson points to the
fact that many provisions were intended to help the rich over the poor.
Amar’s comments on Jackson’s veto message:
 Jackson says he will not be bound by precedent and precedent is a dangerous source of authority.
 Jackson also critical that bank is giving power to aliens to own land and gain influence.
 Jackson disagrees with Marshall: thinks states have power to tax a business, even if incorporated by
fed. gov’t.

II – CONSTITUTIONAL STRUCTURE
A. SEPARATION OF POWERS - Horizontal Checks and Balances:

1. Judicial Power
a. Judicial Review (BLBA 71-103)
 Before Marshall:
o SC relatively insignificant institution during the 1st decade of the new Republic
o Difficulty attracting people to serve and rate of turnover was high
o However, SC had simply assumed a power both to review the validity of state legislation that
conflicted with federal treaties and statutes and to construe federal legislation in light of
binding constitutional requirements
 Marshall Court:
o Instituted current practice of having an “opinion of the Court” (outward unanimity)
 Louisiana Purchase
o Jefferson thought he needed a constitutional amendment to have it be legitimate
o But Jefferson decided “we must ratify & pay our money, as we have treated, for a thing
beyond the constitution, and rely on the nation to sanction an act done for its great good,
without its previous authority.”
o Rationale was that the laws of necessity, of self-preservation, of saving our country when in
danger, are of higher obligation
o Many years later, Marshall wrote that U.S. could extend its territory by conquest or by treaty

Judicial Review of State Legislation

Herbert Wechsler: Toward Neutral Principles of Constitutional Law (1959)
 Argues that federal judiciary has power to hold state statutes unconstitutional, unlike Learned Hand
(who saw no such power in the text of the Constitution)
Martin v. Hunter’s Lessee (1816)
 Virginia Court of Appeals refused to obey Supreme Court’s mandate: held section 25 of Judiciary Act
of 1789 was unconstitutional (this section gave Supreme Court appellate jurisdiction over state
cases that dealt with federal constitutional or statutory questions)
 Justice Story: argues for the textual basis for this jurisdiction
 Also argues that although state judges are supposed to follow federal laws, state biases might
inevitably get in the way.
 Most important point is that there needs to be uniformity in what the laws and constitution mean
throughout the states. Otherwise, if the law means different things in different states then it loses its
effectiveness and could just create a chaotic situation.
Cohens v. Virginia (1821)
 Again Court upholds its appellate jurisdiction (in this case in a state criminal prosecution)
 Marshall speaks of the judicial powers being co-extensive with legislative powers. So US must be
able to adjudge its own laws, otherwise those laws will be at the mercy of the states and the powers of
the U.S. will be meaningless.

Judicial Review of Congressional Legislation

Marbury v. Madison (Sup.Ct. 1803)

Establishes classical conception of judicial review of Federal legislation; mostly dicta but one of the
most important cases in U.S. history in that it asserts sweeping power of the Supreme Court to review
constitutionality of other branches of national government
BACKGROUND:
 Jefferson and Republicans win election of 1800: will take office on March 4, 1801. Federalists create
positions both as circuit judges and as DC justices of the peace to place Federalists there. The Senate
approves these appointments, but commissions of Marbury and a few others are not delivered before
Jefferson takes office. New President instructs Madison (new SecState) not to deliver commissions.
Marbury and three others initiate action, demanding writ of mandamus from court.
 Fear at the time that if the Court ruled against Madison (and hence Jefferson), he would refuse to
accept and lead to constitutional crisis.
 Republican legislature, Republican executive, Federalist judiciary
 Marshall’s Dilemma: Inherently weak court (ppl leave SC to join state courts), judges have been
impeached, if Marshall sides with Marbury, he will be the next one out, but if he sides against
Marbury, will be totally caged and what will become of the judiciary?
QUESTION:
 Marshall presents the questions the Court has to answer:
1) Has the applicant (Marbury) a right to commission?
2) If he has a right, and that right has been violated, do the laws afford him a remedy?
3) If they do afford him a remedy, is it a mandamus issuing from this court?
HOLDING: (Marshall)
 Ultimately, case is dismissed for lack of jurisdiction. Marbury must sue in lower court for writ.
 Decision is like a piece of paper saying Marbury, you’re a justice of the peace, if lower court doesn’t
let you in, appeal back up to the SC
REASONING
1) On the first question, Marshall finds that Marbury was duly commissioned and has vested legal right as
soon as commission was signed & seal was affixed to the document by President and Secretary of State,
and President therefore cannot withdraw commission as would violate his rights.
2) On the second question, Marshall states our gov’t is one of laws => laws must furnish a remedy for the
violation of rights.
o Marshall sees that there is no immunity for officers of executive when Congress has
placed on them duties to act that affect the rights of individuals.
o Marshall finds that Marbury has a consequent right to the commission; a refusal to
deliver it is a plain violation of that right, for which the laws of his country afford
him a remedy.
3) Answer depends on the nature of the writ applied for, and the power of this court:
 Mandamus is correct remedy for problem (87)
 Marshall finds that sect. 13 of Judiciary Act of 1789 conflicts with Art. III of
Const. and hence Supreme Court cannot issue writ
- Sec. 13 grants the Supreme Court a power to issue a writ of
mandamus which belongs to a court of original jurisdiction.
- Article III defines precisely the areas of original jurisdiction of
the Supreme Court, leaving everything else appellate.
Congress cannot change those boundaries, and so in giving the
Court this added power, Congress went beyond its own power.
-Law is inconsistent with the Constitution and hence invalid.

Marshall’s Argument for judicial review:

 Ours is a government of limited powers, and this must mean that laws made
by Congress going beyond the powers delegated by the Constitution must be
void, else there is no sense in having limitation of powers.
 Judges take oath to follow Constitution, Constitution is supreme law of land,
have jurisdiction over cases arising under Constitution => Must take account
of Constitution in decisions
 Judges are not bound by “laws” not made pursuant to the Constitution “a
legislative act contrary to the constitution is not law.”
 “It is emphatically the province and duty of the judicial department to say
what the law is.” And the Constitution is the highest law: so courts must
obey it before anything else.
SIGNIFICANCE: First time an act of congress flunked judicial review test. Also, font of so much law
besides judicial review: role of judiciary monitoring president/executive, monitored administrative law
(Goldberg v. Kelly), executive privilege, non-Article III courts, jurisdiction-stripping.

Other questions:
1) Should Marshall be deciding this case or should he recuse himself?
 o Marshall Secretary of State under Adams when he affixed seal on commissions of judges (his
brother James didn’t deliver them all)
o Then again, Jefferson is his second cousin
o James Marshall is the one who comes to testify about delivery of commissions
o Marshall endowing own factual conduct with legal significance => Fact-finder
o Marshall is the ones that tells us that the commissions were sealed (determining facts rather
than the trial court) = Eye-witness
o Supreme Court is the trial court (original jurisdiction) => Judge
o Marshall fact finder of case, eyewitness AND judge (determining adjudicative fact)
2) Why does Marshall wait until the end of the opinion to decide jurisdiction?
-Politically didn’t want to appear to be rolling over, wanted to assert all other powers first and declare
various acts of Jefferson illegal and unconstitutional first
-Declaring law unconstitutional is last resort so waits till after all other avenues exhausted first
=> Brandies says in TVA v. Ashwander that should avoid deciding issue on constitutional
grounds if possible
3) Were there any other ways of reading statute so as not to confer original jurisdiction to the SC (so then
it would not have to be unconstitutional)?
 Judiciary Act grants only “power” to issue writ of mandamus, not “jurisdiction”. Uses word
“jurisdiction” in all other parts of Judiciary Act and Constitution. Hence doesn’t mean what Marshall
says it means and not unconstitutional.
 Is conceptually possible that article gives minimum jurisdiction only
-More likely not because Constitution wanted to preserve venues of local courts
4) What types of arguments available?
 Structural argument: separation of powers, checks and balances
 Precedent Argument: Lower courts have reversed Congressional Acts before Marbury
-Judiciary Act: Supreme Court says can affirm state court decision to overturn Congressional
Act, so precedent was there
-Supreme Court struck down state statutes that were unconstitutional
 Historical arguments: at the Constitutional Convention there was understanding of what judges role
would be (should it be considered? b/c not subject to public access)
-Federalist 78 assumes judicial review is in Constitution (78), argues that people sovereign over
public legislature, and judges should enforce what we the people agreed to
5) Which version of judicial review does Marshall have in mind?
o Par. 52-53: Narrow (decide constitutional law in regard to case at hand)
o States can have first instance on Constitutional issues but last word should be provided for by
appellate jurisdiction to federal courts
6) What about section of Judiciary Act deemed unconstitutional—what happens to it?
o Law that violates Constitution is no law at all (Marbury)
o Law is still on books—so then what?
o Judges aren’t going to enforce it, but law still hasn’t been officially repealed
o Law doesn’t have to be re-passed because it’s still on the books (under classic theory of
judicial review)
- Judicial review cannot repeal, judges only enforce view when applying holding to own cases

Judicial Review in a Democratic Polity

 Bickel: The case against judicial review:
o Problem of “counter-majoritarian force in society.”
o Both Marshall and Hamilton in Fed. 78 speak of courts asserting rights of the “people” to
limit legislatures/executive from going beyond their powers. But Bickel argues that they are
 asserting rights of “people” from long ago when constitution was enacted and against the
wishes of the “people” of here and now.
o Bickel calls judicial review “a deviant institution in the American democracy.”
 Justifications for Judicial Review:
o Supervising the Inter- and Intra-governmental relations
o Preserving fundamental values:
 Courts are better equipped to discover evolving principles and act on them and have
long view of things, whereas legislatures are too prone to act quickly and expediently.
Courts have time, leisure, and insulation to meditate on evolving principle and have
to deal with specific cases, not abstract statutes, in which to apply principle.
o Protecting the Integrity of the Democratic Processes
-Ely argues Court should step in when democratic process is flawed through legislation
passed:
1) Restricting political processes which can ordinarily be
expected to bring about repeal of undesirable laws.
2) Based on prejudice to discrete and insular minorities which tends to curtail
processes that normally protect minorities
- Court hence actually part of maintenance of democratic process, prevents “ins”
entrenching themselves undemocratically
 The Countermajoritarian Difficulty Challenged:
 Other countermajoritarian elements in system: Senate, Electoral College
 Many bases of power, minorities, have influence in first two branches
 Also argument that historically, if the Court did something that most people disagreed
with, the decision was either overturned, or overruled by an amendment soon after.
o Also argues against life-tenure of judges, esp. in Supreme Court:
 We should not vest so much power in people whose formative experience happened
long ago; ok if they are elected, but not if it was b/c they were approved 20 or 30 yrs.
ago.
 Now commonly believed judges don’t just follow objective legal rules but own
beliefs about justice and utility limited by political, moral, institutional restraints.
 Proposal for 18-year non-renewable term.

Four models of judicial review:

Four arbitrary divisions of the continuum:
1) Jackson/Lincoln view => Judges issue order and executive decides whether to enforce it (Lincoln in Ex
Parte Merriman, Jackson with Cherokee)
2) James Wilson/ Frank Easterbrook view (executive review model) => Other branches can make
decisions based on constitutionality and do executive review and jury review, though if Court decides law
is unconstitutional that trumps President and Congress
=> Executive review => Even if overridden by Congress executive can under this model refuse to enforce
the law on constitutional grounds, though law stays on books
=> Jury review => Jury can decide whether law is constitutional and can decide not to enforce it
=> When rights are affirmative can no longer privilege the party with Constitutional doubts, probably
instead privilege Court opinion
3) Conventional view (current view) => All branches have right to decide constitutionality, president can
when vetoes and Congress when passing laws, even if the Court would disagree
=> Branch with constitutional doubts triumphs, one red light prevails over two green lights
=> Same as model 2 minus executive and jury review
4) Judicial supremacy view => Other branches can make decisions based on constitutionality, but really
shouldn’t or should only based on past Court opinions
=> Moving towards this view
=> View of Rehnquist Court
=> Moving towards Model 4 b/c other branches are increasingly political and decreasingly legal
=> Why is the world moving towards Model 4?
o One branch says permissible, 2nd that prohibited, 3rd that required, have to choose (so judges
say what law is) (have to pick a branch)
o Legal realism
o Expansion of litigation (groups litigating, certiorari (choice over what it can hear, can define
own agenda, acts much more legislature-like)
o Nixon tapes case and Vietnam causes public to lose confidence in “political” branches—so
courts part of the solution (Pentagon Papers, Vietnam, Watergate),
o Democratization of other branches leads to look for counterweight of democratization

b. Restrictions on Judicial Review:

Political Questions, Standing, Mootness, Justiciability
Limits to Judicial Review: political question doctrine, standing, mootness and jurisdiction stripping.
Standing (p732):
- Litigants must assert their own rights and not define the rights of others.
- Plaintiff must show he was injured in fact, injury was caused by the defendant, and that the injury
is capable of redress in lawsuit broughts
- Article III does not say what harms count, when or for whom, only substantive law can do this.
Political Question Doctrine (p733):
- Gives the reasons for judicial abdication.
- Gap between meaning of Constitution and what courts are willing/able to enforce in name of
Constitution
- There are 3 concerns under the umbrella of the political question doctrine.
o Jurisdictional reasons for abdication:
 In certain instances the Constitution vests adjudicatory power in another branch
(ex. Senate impeachment, House trying its members).
 There must be textually demonstrable constitutional commitment of the issue to a
coordinate branch.
o Lack of Doctrinal Rules:
 Lack of judicially discoverable and manageable standards for resolving issue at
hand, no doctrinal rules
 Policy determination needs to be made requiring non-judicial discretion
 Constitutional principles at stake, but no clean way for courts to implement them
o Prudential Reasons:
 Courts not politically accountable and acting after significant, difficult to reverse
decisions (declarations of war, elections)
 Decision would show lack of respect to other branches, or create embarrassment
through multiple pronouncements on same issue by different departments, or
special need for adherence to prior decision
- Example cases:
o Coleman v Miller – whether time lapse on a Constitutional amendment prevented its
ratification was seen as a political question since there were no judicially manageable
standards – the Constitution gives no time limits so the court can’t here the case.
 o Nixon v US – It was a political question when Judge Nixon tried to bring objections about
his Senate trial. Power vested in legislative branch.

Powell v. McCormack (Sup.Ct. 1969)

Congress does not have the power to deviate from or alter the qualifications for membership
as a Representative contained in Art. 1 Sec. 2 of the Constitution.
FACTS:
- Adam Clayton Powell, most powerful black man in America, was elected to the House and then a
resolution was passed excluding him since it was alleged he had misappropriated funds. Powell
sued for back pay, injunction, declaratory relief and initially mandamus to get his House seat
arguing that the House Resolution was unconstitutional.
- Plaintiffs: Powell and 12 voters. Defendants: McCormack (Speaker of the House), clerk,
doorkeeper, and Sergeant at Arms were named in their official capacities.
- Posture: District court- granted defendant’s motion to dismiss the case for want of jurisdiction
over the subject matter, Court of Appeals affirmed the dismissal, Supreme Court granted cert.
- During suit, Powell re-elected and takes seat in 91 st Congress.
- Defendants argue case is now moot, lack of jurisdiction and lack of justiciability.

HOLDING: (WARREN)
1) Case is not moot because back-pay still an issue.
2) Congress does not have immunity due to speech and debate clause (Art. 1, Sec. 6)
3) Exclusion not the same as expulsion, even though got two-third vote.
4) District Court has subject-matter jurisdiction over the case. House not
relevant judge.
5) Issue justiciable by court
6) Action unconstitutional (declaratory judgment, like Marbury)
7) Case remanded to lower court to decide actual damages
Voters standing not decided by court (footnote 8)

REASONING:

1) Back-pay still an issue. Bond v Floyd – mootness of a primary claim does not require a
conclusion that all secondary claims are moot.
2) Officers of legislature not immune, only individual Congressman
=> Won’t say what they would do if officers weren’t involved (n26)
=> Anyway S&D clause about insuring legislators are not distracted from their tasks only, not to
protect them from judicial review
3) Not called an expulsion, Powell not seated, not allowed to speak against it, may not have
voted for it if expulsion, congressmen had no lower measure to vote for so forced to vote
for exclusion, vote only required a majority not two-thirds so may have impacted strategic
voting(Douglas says this in n26)
4) Subject Matter jurisdiction => It’s a case arising under federal law and this is all you need
(Cites Baker v. Carr)(pg. 12).
5) Doesn’t run afoul of political question doctrine. Congress given adjudicatory power to
decide whether its members met standing qualifications(Art. 1, Sec.5), NOT to add new
qualifications.
- Can the court issue a remedy that can be enforced? – court says doesn’t have to decide
this because it can issue declaratory judgment.
6) a. Textual argument => Standing requirements stated in Constitution (Art. Sec 2) only
requirements Congress can use to exclude members
 +> Fn 41 gives other reasons: impeachment, incompatibility,
treason, guaranty clause
b. Historical argument: Cites Wilkes case in England that was repudiated because
Wilkes excluded for non-standing reasons => Americans identified with Wilkes
=> Intent of Framers argued
c. Structural Argument => Don’t want Congress to entrench themselves through setting
requirements, people have right to choose who represents them
d. Textual => If explicitly need two-thirds vote for expulsion based on broad reasons,
why would exclusion only need a majority unless counterbalanced with
narrow requirements
DISSENT: Stewart, if back-pay only issue can go to Court of Restitution

Amar: Court wants to decide case because wants to declare that Powell’s constitutional rights were
violated. Want to affirm right to vote for who you want and have it count. By making it about pay, get
stuck with 8-1 decision. Should have provided guidance to people.

Powell similar to Marbury v. Madison:

 Same structural issues.
o Can a court give a mandamus, jurisdiction, declaratory judgments, underling can be sued,
immunity, political questions
 Style – both have close Constitutional readings
 Mandamus asked for but declaratory judgment is what is received
 Almost the same case: person denied office in coordinate branch of gov’t. saying please reinstate
me so head of other branch being sued—Marbury substituted President for Congress

Hypothetical situations
- If no officers to sue? For every right, there must be a remedy (from Marbury), if there weren’t another
person to sue, might have to go after legislator
- What if Powell had been expelled?
=> Court doesn’t address it “We express no view on what limitations may exist on
Congress’ power to expel or otherwise punish a member once he has been seated.”

2. Congressional Powers

a. Congressional Power to Restrict Federal Jurisdiction

Question: To what extent can Congress use its powers to except cases from Supreme Court’s
appellate jurisdiction and eliminate lower courts’ original jurisdiction in tandem to remove
various cases entirely from all federal courts?
 Hart School – Congress may combine its powers so as to leave the last word on certain cases in
the state courts. Such actions should not intrude on the “essential functions” of the SC.
 “Two-tiered” theory of Article III – Congress cannot combine its powers so as to strip federal
courts of jurisdiction over federal question cases (Art. III – “The judicial power of the United
States shall be vested in” the federal judiciary and “shall extend to all cases, in law and equity,
arising under this Constitution, the laws of the United States…”). Federal courts (not necessarily
SC) must stand as the last word on federal question cases (not on diversity cases).
Amar
 Congress can leave lower federal courts as the last word on some federal question cases but
cannot take away the SC’s supremacy over lower federal courts.
  Congress can take jurisdiction from some Art. III judges and give it to other Art. III judges, but
cannot give it to state judges. State judges have different requirements for becoming judges, are
responsible to state legislatures rather than to Congress, and are less independent than Art. III
judges.
 In practice, Congress has made exceptions to SC appellate jurisdiction and limited district court
jurisdiction in diversity cases but not in federal question cases.
 Difference between “shall” and “all” explained above.

c. Congressional Power to Define Constitutional Rights

Question: Does Congress have the power to go beyond what the Court has found unconstitutional under
the Reconstruction Amendments and outlaw other practices by the states in the name of enforcing those
Amendments?

Two Views: Basic division between those who think Congress can enforce the law as judges define
it(Boerne, Morrision) versus those who think Congress has the substantive power to define violations of
the rights guaranteed in the Reconstruction Amendments under Sections 5 and 2 under the 14 th and 15th
Amendments respectively(Katzenbach cases, Amar).

South Carolina v. Katzenbach (SupCt., 1966) (484)

FACTS: South Carolina challenged portions of the Voting Rights Act of 1965, including provisions that
suspended its application of literacy tests and other “voting qualifications” for five year period in certain
states where discrimination has occurred. See pg. 486 for exact provisions.
HOLDING (WARREN): Voting Rights Act of 1965 is a constitutional use of Congressional power under the
15th Amendment. Congress can prohibit literacy test even though SC had found them constitutional.
RULE: 15th Amendment is self-executing (enforceable and interpretable by courts), but §2 explicitly
gives Congress the power to enforce it by appropriate legislation if meets McCullough standard.
Congress may fashion specific remedies and apply them to particular localities.
REASONING: Congress can rationally find that case-by-case litigation is not an effective means to end
voting discrimination and may enact a regulatory regime (Voting Rights Act of 1965) to do so.
(BLACK) CONCURRING AND DISSENTING: Dissents from holding that part of §5 of Voting Rights Act
which says that a State covered by §4(b) of the Act cannot amend its constitution or laws relating to
voting without first getting approval from the U.S. Attorney General or the Federal District Court for the
District of Columbia is constitutional. Distorts Federalism impermissibly.

Katzenbach v. Morgan (SupCt., 1966) (488)

FACTS: Voting Rights Act of 1965 also prohibits states from using English literacy requirement to deny
the vote to people who completed the 6th grade in Puerto Rico where government sanctioned schools
provided instruction in Spanish. NY argues that Congress can only prohibit State laws and practices
under 14th Amendment §5 that are prohibited by that Amendment as interpreted by the Courts.
HOLDING (BRENNAN): Congress can prohibit English literacy tests from being used as a voting
requirement for Puerto Ricans.
REASONING:
Brennan proposes two separate theories:
1) Congress declaring Puerto Ricans 14th Amendment rights emanating from Equal Protection clause
being denied.
2) Congress finding invidious discrimination in provision of gov’t services and imposition of voting
qualifications for Puerto Ricans and remedying it through act.
Using the McCulloch standard, under either theory VR Act is “plainly adapted to” the ends of enforcing
the Equal Protection Clause and is consistent with “the letter and spirit of the constitution.”
RULE: Under first theory §5 of Fourteenth Amendment gives Congress the ability to legislate for the
purpose of enforcing 14th Amendment as it sees it, not only as the Courts have interpreted it. Framers
of 14th Amend. intended to give Congress “the same broad powers expressed in the Necessary and
Proper Clause”
BRENNAN”s RATCHET: Court sets floor, not ceiling, on equal protection. Footnote a says the fact that
§5 allows Congress to exercise discretion in enforcing the 14 th Amendment beyond what it has been
interpreted to mean by the Courts, does not mean it has the discretion to dilute the meaning of the equal
protection clause as interpreted by the courts.
DISSENT (HARLAN AND STEWART): Congress cannot define the substantive scope of the 14th
Amendment. A state law must violate the equal protection clause in order for §5 to be relevant at all, and
that is a decision for the courts. However, Court should give deference to Congressional findings if there
are any, which there are not in this case. If reviewing the NY statute as a Court, dissenters would find it
rationally related to a legitimate State aim and constitutional under the equal protection clause.

Oregon v. Mitchell (SupCt. 1970)

Five justices in majority could not agree on a rationale
FACTS: Congress under Voting Rights Act amendments of 1970 banned denial of vote on account of age
for persons 18 years and older in both Federal and state elections.
HOLDING: Justice Black in middle makes split decision: Law went beyond Reconstruction powers
vested in Congress in banning denial of vote in state elections but not in banning denial in federal
elections.
REASONING: Black, reconstruction amendments about racial discrimination alone.
Douglas, Brennan, White, Marshall OPINION: Congress has right to ban discrimination in both state and
federal elections. Reconstruction amendments not limited to racial discrimination. Congress free to
review state laws and if finds violation of Equal Protection with no compelling state interest free to
invalidate them under Section 5 of 14th Amendment through law. Federal laws have supremacy. Court
should only give rational basis review to Congressional act.
-FOUR DISSENTERS: Congress cannot pass law in regard to state or Federal elections. No discrete and
insular minority being discriminated against. Congress is substantively defining a situation which falls in
ambit of 14th amendment protection. Katzenbach did not state Congress can substantively define
protection granted by 14th Amendment but only broadly remedy a denial of Equal Protection as directly
commanded by Constitution. This may involve banning state laws that are not inherently discriminatory
but can be used as instruments of invidious discrimination.
HARLAN DISSENT: 14th Amendment, Section 1 not about political rights like voting.

City of Mobile v. Bolden(SupCt. 1980)

Section 1 of 14th and 15th Amendments only prohibits intentional discrimination.

City of Rome v. United States (SupCt. 1980)

Congress can prohibit state action under Section 2 of the 15 th Amendment which though does not itself
violate Section 1 through intentional discrimination, perpetuates effects of past discrimination.

City of Boerne v. Flores (SupCt., 1997) (536)

BACKGROUND: Court ruled in Employment Div., Dept. of Human Resources of Ore. v.
Smith (1990) that absent special circumstances, the free exercise clause (of the 1 st
Amend.) was not violated by a facially neutral and secular law, drafted without
legislative animus, that had the effect of interfering with a given religious practice.
Congress tried to re-implement the previous doctrinal test (compelling state interest
and least restrictive means) through legislation (the Religious Freedom Restoration
Act of 1993).
FACTS: Local zoning authorities denied a church a building permit. The church
challenged the decision under the Religious Freedom Restoration Act (RFRA)
HOLDING (KENNEDY): RFRA provisions invoked are beyond congressional authority and
it is the Court’s precedent, not RFRA that must control the case.
RULE
 Congress’ power under §5 of 14th Amendment is “remedial” not
“plenary.” Can’t alter substantive protections as defined by Court.
 Congress’ laws enforcing 14th Amendment must be proportional to
the evil being perpetrated by the states
REASONING:
 Congress that enacted 14th Amendment rejected the first version because of
concerns that it would give Congress plenary power to make laws regarding
any aspect of “life, liberty, and property” and therefore frustrate federalism.
 If Congress could define its own powers by altering the 14 th Amendment’s
meaning then the Constitution would no longer be superior to regular laws.
Cites Marbury. (541)
 Uses the Civil Rights Cases (of the 1870s) to say that Congress’ power under
the 14th Amend. is “corrective or preventive, not definitional”
 This law is too broad and far-reaching in proportion to the problem of religious
bigotry as defined under Smith
CONCURRING (STEVENS):
 RFRA is a “law respecting an establishment of religion” and therefore invalid.
DISSENT (O’CONNOR):
 Agrees with the majority on the §5 stuff but thinks that Smith was wrongly decided and that this
case should be used as an opportunity to revisit that decision and overturn it.
DISSENT (SOUTER):
 Agrees about rehearing on Smith’s value as precedent. Doesn’t mention §5 issues.
DISSENT (BREYER):
Agrees with O’Connor about the Smith decision. Doesn’t agree with her about §5.
Doesn’t find it necessary to consider that question.

Possible arguments against Boerne are:

 Textual – 14th Amend. names Congress as “enforcer,” why should Court’s opinion trump that of
the textually designated “enforcer”?
 Structural – Congress is free to impose its effects test on federal practices burdening religion
without threatening the structure of government as laid out by Marbury, even if the Court had
said the underlying practices were constitutional to begin with. If you see judicial review as
setting a floor on rights protection, why can’t Congress add to the “privileges and immunities”
that states can’t abridge?
 Historical – just because framers of 14th Amend. didn’t want to give Congress plenary power
over life, liberty and property doesn’t mean they only meant for Congress to have remedial
power. There is a middle ground. Congress can legislate rights against states, not private
persons, and Congress is limited to defining the privileges and immunities of citizens (less broad
than defining life, liberty, property which would be essentially plenary). Original Congress likely
wanted this balance between Congress and the Court.
Amar’s Big Intratextual Argument againt Bourne
In Jones v. Mayer (1968) SC upheld a reconstruction era statute (part of the Civil Rights Act of 1966)
saying you can’t refuse to sell someone land because of their race based on §2 of the 13 th Amendment.
“For that clause clothed ‘Congress with power to pass all laws necessary and proper for abolishing all
badges and incidents of slavery in the United States.’” If the 13 th Amendment granted Congress such
broad power , why not the 14th as well? The enforcement clauses (§2 and §5 respectively) are worded the
same.

Historical Back-up: Congress had the Civil Rights Act of 1866 on the books when the 14 th Amend. was
ratified. They had thus already shown that they thought §2 of the 13 th Amend. gave much more power
than §1 and if framers/ratifiers of 14th Amendment thought that was wrong, they shouldn’t have ratified
the 14th Amend. They did, and §5 of the 14th Amendment should be interpreted as equally as broad.

Rule Proposed: The 14th Amendment was specifically adopted to give Congress sweeping powers to enact
civil rights legislation. If you can read a Congressional law as affirming the basic citizenship of a
historically oppressed group, it is consistent with the 13th and 14th Amendment powers of Congress.

United States v. Morrison (SupCt., 2000)(Parts 1 and 3)

**This summary only deals with this case’s implications for 14th amendment doctrine
FACTS: Woman brought claims under the Violence Against Women Act against men who allegedly raped
her. VAWA allowed federal civil claims against perpetrators of crimes of violence motivated by gender.
HOLDING (REHNQUIST): Neither the Interstate Commerce Clause nor §5 of the 14 th Amendment gives
Congress the power to enact the civil remedies portion of the Violence Against Women Act
RELEVANT RULE: Congress cannot prohibit private action under 14th Amendment, only
state action.
REASONING:
 Cites Civil Rights Cases supporting above rule as still good law.
 While petitioners do allege state bias in the prosecution/handling of cases involving violence
against women, VAWA provisions at issue are not corrective or designed to redress such state
actions. The law does not provide for punishment of state actors or seek to prevent those
practices that disadvantage women in criminal proceedings.
DISSENT (BREYER):
 Accepts the Civil Rights Cases as precedent, but says that in this case Congress is trying to
remedy state bias, not just the acts of individuals
 This is remedial legislation that prohibits conduct that is not itself unconstitutional, like the
Katzenbach cases.
 The statute does not purport to determine what constitutes a constitutional violation (the main
problem with Flores)
SIGNIFICANCE: Because of the Civil Rights Cases, the Civil Rights laws of the 1960s were upheld
on Commerce Clause grounds rather than under the 14th Amendment.

Amar’s dissent to Morrison

-Cites Citizenship Clause of the 14th Amendment
-Gender-motivated violence against women can pose a threat to equal citizenship in a manner
analogous to the ways that other power structures have threatened the equal citizenship of blacks
--Both for blacks and women the state has helped maintain these structures – but that is not
necessary to Congress’ power to enact legislation like the VAWA
-In the case of equal citizenship based on sex it’s important to read the 14th Amendment in light
of the 19th Amendment
-Congress may properly act to dismantle what it plausibly perceives to be large social structures
creating and sustaining conditions of unequal citizenship, in which some citizens are
systematically disrespected or mistreated on the basis of birth status.
-VAWA is largely symbolic, meant to affirm women’s equal status and citizenship so as to make clear to
all that women have rights that men are bound to respect. When Congress can honestly be understood as
affirming equal citizenship for those who have historically been denied equality on the bases of birth
status, judicial review of enumerated power should be no less deferential than in Prigg or McCulloch, on
which the Fourteenth Amendment’s supporters justifiably relied.
-Conclusion: Best reading of the Constitution is that Congress may pass expressive laws affirming
women’s equal status and citizenship so as to make clear to all that women have rights that men are
bound to respect.

Academic views on reconciling role of Courts and Congress in enforcing

Reconstruction Amendments (499-503)
 Burt- Congress enforces the Court’s value preferences on the states in circumstances where the
Court could not provide such detailed policies and apply them broadly.
 Cox- in Morgan, the federal and state laws rested on inconsistent legislative evaluations of
whether the English literacy requirement was permissible or invidious. The supremacy clause
makes the federal determination paramount.
 Cohen- Even if the Court would uphold a law, the State could choose not to have it. States are
adequately represented in the Congress along with national interest, so congressional legislation
resolving the issue at the national level reflects a balance of national and state interests and
should win out.
 Sager- the Court may “under enforce” constitutional ideals for judiciary-specific reasons.
Congress should be able to make law to bring Court’s true vision to fruition.
 Amar- Congress can expound on what are truly “fundamental” rights, those rights would be
enforced against states or at least used by Courts as important guides as to what is a fundamental
right. The Court and Congress should be roughly equal partners in enforcing the Amendments
against the states and states should have to meet whichever standard is stricter.

c. Congressional Power to Impeach and Remove Officers

Amar, “On Presidential Impeachment”

http://islandia.law.yale.edu/amar/lawreview/2000Impeaching.pdf

1) What was framers’ general framework for presidential impeachment?

-President free from criminal prosecution until leaves or is removed from office
-Impeachment national process in national Congress
-Public process
-Political, not legal, gives more flexibility in deciding when to impeach
-Final decision, no appeal
-Should be regularized and routine to avoid bias
2) How did independent counsel statute mesh? Not well
-Fouls up separation of powers: Counsel picked by three judges, given executive powers, and reports to
legislature
-Chief Justice who picked counsel and senators who advised him will preside over impeachment trial
-Judges shouldn’t appoint executive officers, especially ones with no superior like Starr, not supported by
Constitutional text
-Blurs accountability, Counsel and Congress jointly responsible
-Starr is prosecutor, yet includes non-criminal behavior in report. Impeachment can be based on merely
non-criminal misbehavior, but prosecutor should not bring these charges
3) What are high crimes and misdemeanors?
-Congress final arbiter on this question, but can’t simply impeach for any reason, there is a judicial
standard they must define
-“High” crimes means not all crimes impeachable
-Bribery and treason mentioned in text, provide examples of high crimes
-Different standard ought be applied to president, much more serious removal
-Look at history: Past presidents not impeached/convicted though committed crimes(Andrew Jackson)
and cozied up to traitors(Andrew Johnson)
-Congress should ask:
=> Misdeeds as malignant to polity as bribery/treason?
=> Justify putting nation through trauma of impeachment process?
=> Did people vote for president knowing he was capable of these misdeeds? Justifies

overturning their democratic vote?

=> Would past presidents pass standard being imposed on Clinton?
4) What role should public opinion play in impeachment process?
-Congress members free to consult themselves and also their constituents, can vote to acquit or not
impeach for many reasons beside believing the President to be innocent of high crimes
-President democratically elected, removing him not same as removing federal judge
-Since founding, amendments made gov’t more democratic, including impeachment process
=> Senators now directly elected and try impeachment proceedings
5) How should impeachment’s procedural issues be handled?
-Lame duck impeachment
=> If new Congress elected after impeachment but before trial, then new House should choose
prosecutors and if opposed to impeachment can simply refuse to appoint any
-House has power but not duty to impeach => Clearly states in text
-Senate similarly has power to try, but not duty, can dismiss charges summarily without trial if majority of
senators believe there is no impeachable offense
-Chief Justice presiding officer, not final judge, can make preliminary ruling only, not substantive
judgments on merits
-Chief Justice appointed only to avoid impropriety of vice-president presiding
-Senators and President must continue to work as fellow lawmakers while trial going on
-Trial should be completely public, people have right to see their business being done
-Senators took oath of impartiality, meaning impartiality across defendants
=> Should ignore party affiliation, should not have engaged in party caucuses on issue of

impeachment
-Must find facts because no prior criminal trial => What will evidentiary rules be?

Isenbergh and Taylor on Impeachment

-Looking at text of Article 1, Sec. 3 and Article II, Sec. 4 separately, Congress can impeach for any sort of
misbehavior and have discretion with punishment, but must remove an official from office if finds “high
crimes and misdemeanors”
-Means Congress can convict official for lesser crime and have discretion with punishment up to removal
from office, but if finds high crimes must remove President from office
-Congress still checked by 2/3 requirement for removal
-Claims notes at convention support this view
Amar Reply: Should read sections together, Article II sets requirements for impeachment outline in
Article I. Makes no sense that high crimes requires removal because Congress free to define what high
crimes is and so easily evaded. Leaves reasons for removal from office entirely to discretion of Congress
=> Is parliamentarism framers wished to avoid. Also, separate reading means private citizens can be
impeached(!), no evidence framers intended any of this

Then….
Amar: I’m a constitutional scholar and you’re not
Taylor: I’m a national journalist and you’re an ass
Amar: Shut up.
Taylor: You shut up.

Amar and Taylor proceeded to “take it outside.” No transcript is available.

3. The Executive Power

a. The (Non)Prosecution and Pardon Powers (621-645)

Overarching theme: Many important constitutional decisions occur outside the Supreme Court.

United States v. Cox (5th Cir., 1965) (622)

Executive has non-prosecutorial discretion. Neither Courts nor grand jury can compel prosecutor to
prosecute a case
FACTS: U.S. Attorney in Mississippi refused to draft an indictment as requested by a grand jury on orders
from Acting Attorney General Katzenbach. Judge Cox ordered the U.S. Attorney to prepare the
indictment, and when he refused, held him in civil contempt. The indictment was perjury charges against
two black men who had testified in a case about racial discrimination in voting registration in MS.
HOLDING (PLURALITY OPINION): U.S. Attorney could not be required to validate an indictment by signing
it but could be required upon request by the grand jury to draft forms of indictment.
REASONING (JONES):
The grand jury exists to protect against oppressive actions of the prosecutor.
Executive branch has the discretion to determine whether to prosecute a person, and may
consider matters of public policy. Separation of powers requires the courts not interfere.
REASONING (GEWIN, BELL):
 “The signature of the United States Attorney is a mere authentication that the indictment
is the act of the grand jury” (624).
 The US Attorney can be forced to sign, but not to prosecute beyond that point. US
Attorney can file for dismissal (by leave of court) under 48(a) F. R. Crim. P.
REASONING (BROWN - CONCURRING):
Agrees that the US Attorney cannot be made to sign indictment but thinks the Court may
properly force the US Attorney to prepare the indictment.
National interest, broader policy concerns, can require non-prosecution. Properly rests with
executive.
Purpose of preparing the papers is to clearly present the conclusion of the Grand Jury and
reveal the difference of opinion between the Grand Jury and the prosecutor in open court.
REASONING (WISDOM):
 Grand Jury is in the Constitution for its function as a shield, not as a sword.(629) The
Grand jury never had plenary power to indict (628). Right of presentment (presenting
findings/accusation in open court) provides publicity and openness (628).
  In dealing with prosecution, issues of national policy are at stake. Should MS get to
intimidate blacks through perjury prosecutions, or should Congress’ Civil Rights laws be
given preference. These are decisions for the executive branch to make.

Amar on Cox
4 legal texts
 Fed. R. Crim. P. 48(a) – can dismiss “with leave of court”
 Rule 7 – U.S. Attorney must sign indictment
 5th Amendment – No one held to answer unless on presentment or indictment. Ct reads
this thinly. 5th Amend. is about GJ as a shield, not sword because of its location in the
text, because it reads “no person shall…” and because of historical
understanding/implementation.
 Art. II – Executive’s responsibility to see that the laws are faithfully executed.
Note that court invokes the Constitution to inflect its reading of the statutes.

Judges split 3-1-3: Although Judge Brown is the ONLY judge who thinks that a US attorney can be forced
to prepare an indictment but cannot be forced to sign it, this opinion becomes the majority opinion.

Note that all the judges emphasize the importance of publicity and open courts.

Why read Article II as giving absolute discretion not to prosecute?

National figures, national concerns. Why should one district be the only one to decide
whether to prosecute. Whole vs. part (echoes McCulloch).
Public policy. If we convict these guys no one will ever come to the Justice Dept. in these
kinds of situations of racial discrimination in voting again.
Foreign policy. Can’t lose cold war with USSR. Need to win hearts and minds.
Can’t go after everyone who breaks a technical rule.
Swore to execute all laws. Enforcing this law might undermine enforcing all others.

United States v. Nixon (SupCt., 1974) (683)

Executive privilege not to produce documents is not absolute or unqualified
FACTS: Court is reviewing the denial, by the US District Court for the District of Columbia, of a motion
to quash a subpoena directing the President of the United States to produce tape recordings and
documents relating to his conversations with aides and advisors. Defendants are the aides and advisors,
but prosecutor is seeking the information.
HOLDING (BURGER): The President cannot refuse any subpoena on the grounds of executive privilege.
The specific need for evidence in this case prevails over executive privilege.
 Special prosecutor given explicit power by AG to contest invocation of executive
privilege. Unless this regulation is revoked, Executive branch bound by it.
 Courts have a responsibility to ensure justice done through the full presentation of
evidence; while there are some exceptions (like attorney-client privilege), the court
shouldn’t expand these exceptions lightly. 5th and 6th amendments illustrate right to
production of all the evidence at a criminal trial.
 President’s need for confidentiality should get great deference from court, but not
absolute. Generalized assertion of executive privilege must yield to the demonstrated,
specific need for evidence in a criminal trial.

CLASS NOTES:
 Court’s reasoning is sloppily overbroad. Court should have insisted upon independent
evidence of criminal activity to justify the disclosure; otherwise, DA’s could subpoena
presidents for any little scandal.

Court invokes Burr v. United States. In that case Burr was a defendant who argued he
needed access to Pres. Jefferson’s papers to clear his name, whereas in this case it’s the
prosecution that want the documents.

What could Nixon do?

 Revoke the regulation (which says 8 Congressmen must consent to dismissing the special
prosecutor) and fire Jaworski. (In order to be constitutional under separation of powers,
Nixon’s delegation of power must be revocable.) Nixon can’t do this because of public
scrutiny. It would just look too bad.
 Nixon could pardon the defendants so there’s no more case. President can pardon any
time after crime committed. This is also not politically feasible – he’d be impeached.
 He could invoke “national security” on the tapes. This is a lie. His lawyers can’t advise
it because they’d be accomplices.

Amar – THE SYSTEM WORKED THE WAY IT SHOULD. The Independent Counsel Statute, created
by Carter, gets the judiciary involved unnecessarily and creates real problems of constitutionality.

b. The Appointment Power

After Watergate, some were uneasy with leaving the job of special prosecutor under the discretion of the
President. They could have created formal oversight within Congress but instead they passed the Ethics
in Government Act of 1978, which created the Independent Counsel (IC). The AG was authorized to
bring certain preliminary investigations of high government officials to a special panel of 3 federal judges
picked by the chief justice. These judges would pick a special prosecutor.

In Re Sealed Case (Cir. 1988) (646)

FACTS: 3 former government officials, including Ted Olson, now solicitor general, then an assistant
attorney general, challenged the authority of the IC to issue subpoenas compelling their testimony. Olson
had given conflicting testimony to the House Judiciary Committee; it looked like he was lying to
Congress.
HOLDING (SILBERMAN): The appointments clause of Article II prohibits the appointment of the
Independent Counsel. (overruled by Morrison v. Olson).
REASONING: Very similar to Scalia’s dissent in Morrison.
Additional point (that Amar likes): Appointments Clause re: inferior officers gives those
people authority to appoint their own subordinates, not people outside their branch.
(history and structure). Judges can’t appoint executive branch inferior officers.

Morrison v. Olson (SupCt., 1988) (658)

FACTS: Same as In Re Sealed Case, challenge the constitutionality of the IC Statute.
HOLDING (REHNQUIST): The Independent Counsel Statute is constitutional.
REASONING:
 The IC can be considered an inferior officer. She is subject to removal by AG, is
empowered only to perform limited duties, is limited in jurisdiction by the Special
Division’s grant of power, and is limited in tenure.
  The appointments clause permits interbranch appointments. “They think proper” gives
substantial discretion to Congress. Other cases have upheld Courts’ ability to appoint
interim US Attorneys. Courts a logical alternative if Congress worried about Exec branch
investigating its own.
 The powers given to the panel of judges do not conflict with Art. III. Congress’ power to
vest appointment of inferior officers in the courts must allow Congress to give the courts
some discretion in defining the nature and scope of those officers’ authority. Beyond
hiring the IC, the other supervisory powers given to the judges are either “passive” or
“ministerial,” and incidental to the appointment.
 It isn’t essential for the President to have free discretion to fire at will anyone exercising
executive branch duties. The AG can terminate the IC for “good cause”.
 The Act, as a whole, does not unduly interfere with the role of the executive branch, and
as such does not violate the principle of separation of powers. Congress did not retain
any powers of control over the IC, and the Act does not create judicial usurpation of
executive functions (Special Division can appoint IC only at request of AG, Courts can’t
review AG’s decision not to seek appointment, Act gives AG ability to supervise IC by
removal for good cause).
DISSENT (SCALIA):
The IC Statute violates separation of powers. The Constitution gives ALL executive power
to the President. This includes ALL criminal prosecution.
Separation of powers necessarily involves an acceptance of exclusive power that could be
abused. While it may prevent us from righting every wrong, it does so in order to ensure
that we don’t lose liberty. There already are checks between branches, and by the people.
The IC is not an inferior officer. Textual and historical argument that inferior must be
subordinate. Yet it’s harder to fire her than to fire cabinet members, she has great
independent authority. Not accountable to the public, but yielding exec. power.

Discussion of Morrison v. Olson

Congress’ traditional options (before IC): 1) Write a letter to AG; 2) Impeach Olson; 3) Get presentment
from Grand Jury; 4) Ask AG to appoint special prosecutor; 5) Leak to press.

The court says AG has full discretion as to whether to set in motion the appointment of an IC, even
though the statute says the AG shall apply to court when there are reasonable grounds for an
investigation. Example of interpreting a statute in such a way as to make it constitutional.

Accountability. The whole point of the appointments clause is that when an inferior officer misbehaves,
the public would know whom to blame: the superior who hired and supervises the inferior. When the IC
misbehaves, as we saw with Starr, there is no one to hold accountable.

Coase Theorem. Legal rules establish a baseline, or a default rule, against which further bargaining
amongst interested parties may take place. If Scalia had prevailed, Congress would still have been able to
use their oversight, appropriations, publicity and impeachment powers. Conversely, the president can
pardon the target(s) of the IC (unless it’s him!).

Sunset Clause. Clinton let the IC act expire. Janet Reno said there were structural flaws, due to lack of
accountability.
Given the change of the Court’s line-up, it’s not clear whether the IC, if passed, would today be found
constitutional. See Edmund (below), which sounds a lot like Scalia’s dissent in Morrison.

Edmund v. United States (SupCt., 1997) (677)

FACTS: Petitioners contest appointments by the Secretary of Transportation of civilian judges to the Coast
Guard Court of Criminal Appeals, arguing that those judges are not “inferior officers.”
HOLDING (SCALIA): The judges are inferior officers and their appointment is in conformity with the
Appointments Clause of the Constitution.
REASONING:
 Generally speaking, “whether one is an ‘inferior’ officer depends on whether he has a
superior.” Inferior officers must be directed and supervised at some level by others who
were appointed by presidential nomination with the advice and consent of the Senate.
 The Judge Advocate General can remove the judges in question without cause.
Supervision of the judges is divided between the JAG (who is subordinate to the
Secretary of Transportation) and the Court of Appeals for the Armed Services.
 The judges of the Court of Criminal Appeals “have no power to render a final decision on
behalf of the United States unless permitted to do so by other executive officers”
CONCURRING (SOUTER):
 In order to be an inferior officer, one must have a superior, however, that doesn’t mean
that if one has a superior, one is an inferior officer. It is also necessary to look at the
duties, jurisdiction and tenure of the office. As such, the Solicitor General might not be
considered an inferior officer despite the fact that he is “inferior” to the AG.

c. The Veto Power

The President, in addition to executing the laws, is a vital part of the legislative process through use of the
Veto Power.

Immigration and Naturalization Service v. Chadha (SupCt., 1983) (680)

A law that gives the AG power to suspend deportations, and either house of Congress a veto
over that suspension, is an unconstitutional violation of separation of powers.
FACTS: Chadha’s student visa lapsed and the INS began deportation proceedings. There was a provision
allowing the AG, acting through the INS, to suspend the deportation of aliens who had been continuous
residents of the US for at least 7 years and for whom deportation would be an “extreme hardship.”
Chadha got such an exemption. However, according to the law, either house of Congress could pass a
resolution vetoing the discretionary suspension of deportation. The House passed such a resolution in
Chadha’s case and he challenged the constitutionality of this “legislative veto.”
HOLDING (BURGER): There is a controversy to be decided, the House’s legislative veto of Chadha’s
exemption violates the Constitution’s separation of powers, and the legislative veto provision is severable
from the provision granting such discretion to the AG.
 Chadha has standing even though there’s no “controversy” between him and the INS
(since they take the position that the legislative veto is unconstitutional) because
Congress intervened to defend the statute.
 Since the Act has a severability clause and there’s a legislative history of Congress
finding it inconvenient to pass personal bills for every immigrant who gets an exception,
the legislative veto part can be severed from the part granting the AG discretion to
suspend deportation. (Otherwise, Chadha would have no remedy).
 The Constitution requires that legislation be passed by both House and Senate and
presented to the President before becoming law. The House’s action was legislative. The
 House over-ruled the AG, a power that was delegated to her. Congress must abide by that
delegation until it is legislatively altered or revoked. (687)
CONCURRING IN JUDGMENT (POWELL):
 The Court’s decision will invalidate legislative vetos in a mountain of Congressional
legislation unnecessarily
 This particular legislative veto is Constitutionally impermissible because it is
adjudicatory. It doesn’t enact a general rule, it makes a determination with regard to
specific people – that is a job for the Courts.
DISSENT (WHITE):
 The legislative veto is an essential way for Congress to secure the accountability of the
executive and independent agencies (692).
 In fact, this is the same as the personal bill system in which an immigrant could only
avoid deportation with the approval of the House, Senate and President. In Chadha’s
case, the President (through the AG and INS) was in favor, as was the silent Senate, but
the House was not. So the House’s “veto” had the same effect as not passing a personal
bill.
DISSENT (REHNQUIST):
 Disagrees with the majority that the legislative veto is severable from the grant of
authority to AG. Congress repeatedly refused to grant executive full control over such
exceptions to deportation. If it’s not severable, then Chadha’s exemption is gone too.

Amar on Chadha
One way to conceptualize this case is through two formal proofs: 1) the fed. gov't has three kinds of
power; legislative, executive and judicial. If the House’s action in Chadha was legislative, then
bicameralism and presidential approval was required. If it was executive or judicial, then Congress should
not have exercised it to begin with. 2) In voting against Chadha, Congress was either applying the
“hardship” standard to Chadha or redefining the “hardship” standard. The first is an exercise of judicial
power; the second is legislative requiring bicameralism and presidential presentment.

Why Amar loves this case: the separation of powers is designed to encourage legislators to draft
standards generally and prospectively, behind a kind of veil of ignorance. All persons who do X shall
henceforth be deported unless Y and Z. And once the general rule is in place, the executive carries it out,
and if the executive misapplies the rule, or if the rule itself is unjust, legally aggrieved persons (those with
standing) complain to the judiciary. Thus it is the executive and the judiciary who deal with specific
individuals—but they don’t get to make up the rules. This lovely, well-balanced system is no system at all
when Congress tries to pass rules that aren’t really rules at all, and that can be taken back when they
decide (using a legislative veto). If Congress is allowed to freely use the legislative veto, there’d be much
less incentive to write rules with specificity and clarity. The goal of the separation of powers is to tell
Congress: draft as carefully as you can!

Executive Branch in Chadha has fallen down on the job of upholding the Constitution as it sees it. INS
says, “we think the legislative veto is unconstitutional, but we’ll deport him because Congress says so.”
This is not what co-equal branches as interpreters of the Constitution are supposed to do. It also puts the
burden on people like Chadha.

Severability. Court thinks severability necessary for standing. Amar disagrees – Chadha might lose, but
he has standing since he’s claiming the violation of his rights. Severability should be decided at the end.
One way of thinking about severability is what decision will be easier to undo if SC
misunderstands Congress’ intent. If Court rules that the parts are NOT severable, and Chadha must go,
Congress can pass a personal bill saying he stays (if indeed they intended for the parts to be severable).
But if Court decides he can stay, Congress can’t pass a bill saying he must go because of Bill of Attainder.

Severability is very important in other contexts such as the War Powers Act. If you uphold the grant of
military power, but not the legislative veto, that is a HUGE grant of power to the executive that Congress
can’t take back without a 2/3 majority to override the President’s veto.

d. The Power of the Sword

Lincoln Introduction (214)
First Inaugural Speech
The Union is perpetual. One state may break the compact of Union, but it takes all the states to
lawfully rescind that compact.
The Constitution is to form a “more perfect union.” If the Union can be destroyed by one state or a
group of states it is less perfect than before the Constitution.
“I shall take care, as the Constitution itself expressly enjoins upon me, that the laws of the Union be
faithfully executed in all the States.”

The Case for Secession (215)

Speech to the Senate of Louisiana Senator Judah Benjamin.
It is the right of the people to throw off a government that is “destructive of their interests or their
safety” – as recognized in the Declaration of Independence.
The Articles of Confederation specifically said they’d be perpetual, yet when the Constitution was
ratified 9 states seceded from the Articles (and joined the Constitution) on the grounds that some
of the States had violated their compact under the Articles.
Who is to judge if the Constitution has been violated? For some questions, that’s clearly a matter for
the Courts, but there are political questions over which the Court has no authority that may also
constitute a violation of the Constitution.
The right to withdraw in such circumstances is not revolutionary but results from the nature of the
compact and was a power reserved to the states. (217)

Amar comments
Amar highlights the political repression in the antebellum South.

The Prize Cases (SupCt., 1863) (220)

Authorizes sweeping powers of the President during a time of war, even though not officially
declared by Congress
BACKGROUND: Lincoln called a special session of Congress for July 4, 1861, but in April, before
Congress met, he issued proclamations blockading Confederate ports and authorizing the seizure of ships
carrying goods to them. The ship owners sued arguing that this was beyond the President’s authority
without a formal declaration of a state of war by the Congress.
HOLDING (GRIER): The action was justified by the fact of war, even if not officially declared.
The Constitution doesn’t even provide for Congress declaring war against a State.
The President is Commander-in-Chief, and by Act of Congress he is authorized to call out the militia
in case of invasion or to suppress insurrection.
The President is bound to meet invasions and civil wars in the “shape it presented itself” without
waiting for Congress to “baptize it with a name.”
It is up to the President to decide whether the threat rises to the level as to be like an invasion.
 If legislative sanction is required, it exists in the acts passed in the special session of June 1861 all
aimed at prosecuting the war with “vigor and efficiency.” Congress also passed a law blessing
the actions taken by Lincoln in April.
DISSENT (NELSON, TANEY, CATRON, CLIFFORD):
War, in the legal sense, can exist only by declaration of Congress.
The Constitution and Acts of Congress enable the President to deal with immediate
invasions/insurrections by calling forth the militias of as many states as necessary. The President
can act as Commander-in-Chief of these armed forces to put down the threat without a
declaration of war.
None of the Acts give the President the authority (nor could they) to seize property (ships) without a
declaration of war.

Suspension of Habeas Corpus (222)

Art. I §9 – authorizes the suspension of habeas corpus “when in cases of rebellion or invasion the public
safety may require it.” But who decides???

Ex Parte Merryman (1861)

FACTS: In April 1861 Lincoln authorized his Commanding General to suspend the writ of habeas corpus.
On May 25th John Merryman was arrested for destruction of RR bridges following an anti-war riot in
Baltimore. Merryman applied to Chief Justice Taney for a writ of habeas corpus. The officer in charge
refused to attend the hearing on the writ.
HOLDING (TANEY): Only Congress can suspend the writ of habeas corpus
REASONING:
The ability to suspend the writ of habeas corpus is in Art. I, which deals with Congress, not Art. II
which deals with the Executive branch.
The duty of the Executive to take care that the laws are faithfully executed means that it is his duty to
come to the aid of judicial authority when it is resisted.
Act violates separation of powers – Executive is taking legislative power to suspend habeas corpus
and judicial power to arrest and imprison without due process.
Even the king/queen of England cannot suspend the writ of habeas corpus, only parliament can do so.
Lincoln’s Response (to Congress, not Taney directly)
“are all the laws, but one, to go unexecuted, and the government itself go to pieces, lest that one
be violated?” – Pres. is charged with ensuring that all the laws be faithfully executed. Should he
have to enforce this ONE at the expense of all the others?
Furthermore, no law violated. The Constitution is silent on who decides whether habeas corpus
should be suspended. Can’t believe the framers intended the danger be allowed to run its course
until Congress can be assembled (particularly when assembling might be prevented by rebellion).

Class Notes – Habeas/Lincoln

Amar thinks Lincoln is justified because unlike most other American wars, this is one where the
existence of our country was seriously in jeopardy.
It’s AMAZING that Lincoln holds an election in 1864. He thinks he’s going to lose. He thinks that
his opponent will hand over everything the Union won in the war back to the South. But he holds
the election anyway. He lets soldiers in the field who he thinks will vote against him vote. He
distinguishes between people criticizing him and treason.
And this is why we’re better than England. They didn’t hold elections from 1939 – 1945 during
WWII. A whole generation that was dying in the war hadn’t gotten a chance to vote on it. We
held elections then, because of LINCOLN.
The Emancipation Proclamation (225)
AMAR – Lincoln is clear that slavery is wrong. Because it’s wrong we have to stop its spread, but not
necessarily end it all at once – put it on a path to extinction. His goal is to preserve the Union.
The Emancipation Proclamation only frees slaves in the territories that are in rebellion (the
territory that Lincoln doesn’t have control over). It specifically exempts counties and cities that
remain loyal to the Union.
As Commander-in-Chief he has the right to take measures that best subdue the enemy and preserve
the Union.
The limited quality of the Emancipation Proclamation is exactly what makes it constitutionally
defensible. It’s a huge taking of property, but it’s a surgically tailored war measure that disrupts
rebellious society, takes away resources of the South and puts them on the side of the Union.

Argument Against the Proclamation (227)

This executive decree proposes to repeal State laws. The President can neither make nor repeal laws.
The decree is being used as punishment against LOYAL Southern slave-owners because a majority in
their State are in rebellion. (Slaves of people guilty of treason were already freed by an Act of
Congress.)
If argument that it’s necessary to subdue the enemy, it’s a slippery slope.
It can’t be defended on the theory that “rebels have no rights” because if the Union position is held to
be true, then the acts of secession were void and the Constitution applies just as much now as it
ever did.

Youngstown Sheet & Tube Co. v. Sawyer (SupCt., 1952) (707)

President cannot use war powers to seize steel mills to prevent a strike.
BACKGROUND/FACTS: The case arises in the context of the Korean War, when the United Steelworkers of
America announced its intention to strike. In order to avoid the interruption of steel production necessary
for the war, Truman issued an Executive Order (704-706) authorizing the Secretary of Commerce to seize
the steel companies and run them in the name of the United States. The companies sued, claiming that
the seizure violated the Constitution. District Court enjoined the seizure, Court of Appeals for the District
of Columbia stayed the order, and the SC immediately granted cert.
TWO QUESTIONS: 1) Does the President have the power to do this if the laws are silent on the issue? 2)
Are the laws silent on the issue (vs. actually prohibiting such actions by the President)?
Look at the vote count:
Question Black Douglas Jack/Frank/Burt Clark Vinc/Reed/Min
#1 N N ??? Y Y
#2 ? ? NNN N YYY
If the question had been asked differently (in different order), might have gone the other way. Jackson,
Frankfurter and Burton join the opinion even though they don’t agree with its reasoning!

HOLDING (BLACK): President must have an affirmative law allowing him to take such actions.
There is no statute that expressly authorizes the President to seize property as he did here.
Not authorized by Constitution. 1) Not commander-in-chief authority. 2) Not power to execute laws.
Here he’s directing that a presidential policy (not a statute) be executed. Acting like a legislator.
The Order looks like a law. Congress could pass it, the President cannot.
CONCURRING (FRANKFURTER):
It is not necessary to decide whether the President would have this power in the absence of
legislation relating to it because in passing the Labor Management Relations Act of 1947,
Congress specifically declined to give the President the power to seize industries in times of
labor disputes.
  Not a traditional “gloss” on executive power. No established practice for the executive seizure of
property at a time when this country was not at war (in the only constitutional way it can be at
war).
CONCURRING (BURTON):
 Congress prescribed for the President specific procedures, exclusive of seizure, to use in meeting
this type of emergency. The President’s order invaded the jurisdiction of Congress and violates
separation of powers.
 This is not comparable to an imminent invasion or threatened attack.
CONCURRING (CLARK):
Congress laid out procedures to be used in the Selective Service Act of 1948 when producers fail to
supply necessary defense material. President made no effort to comply with those procedures.
Where Congress has laid down specific President is constitutional in the absence of a declared
war.
CONCURRING (DOUGLAS):
 The Constitution gives all legislative powers to Congress, and this is a legislative act.
 5th Amend. says property can only be taken with just compensation. President doesn’t have
power to raise revenues and thus cannot compensate for a seizure. Thus a seizure is unlawful
until and unless Congress authorizes it. Checks and balances.
CONCURRING (JACKSON):
 Congress has passed laws on seizure, none of which this act conforms with. “We can sustain the
President only by holding that seizure of such strike-bound industries is within his domain and
beyond control by Congress.” (713)
 “War powers” are not exclusively Presidential but Congressional as well. President’s war powers
not intended to supersede representative government of internal affairs.
DISSENT (VINSON, REED AND MINTON JOIN):
 These are extraordinary times. Congress has sanctioned the war in Korea in numerous ways,
including a draft. The President has the duty to execute that legislative program.
 If President can only seize property with authorization of Act of Congress he is left powerless at
the moment when the need for action is most pressing and no one else is able to act.
 Discusses uses of executive power by George Washington, Jefferson and Lincoln.
 President was ensuring that the legislative programs of military procurement and wage/inflation
stabilization were faithfully executed.
 No statute prohibiting seizure as a way of executing Congress’ legislative program. Truman was
preserving the status quo until Congress could act.

Amar on Youngstown
There are two possibilities for what happens after an Executive Order – 1) Congress has to ratify
decision/bless it afterwards or else he must stop. 2) Unless Congress passes a law telling him to do
something else, it’s ok, and President could veto that law, requiring a 2/3 majority to pass it.

Dissenters say that Truman is advocating #1, but Amar thinks that based on the Order (704-706) Truman
is really saying #2. If Truman is saying #2, then he only needs 1/3 +1 of each house to keep the seizure,
and only one house has to not pass it in order for the Order to remain in effect.

Differences between Truman and Lincoln (when L seized ships): When L acted, Congress wasn’t in
session, and if L hadn’t acted, Congress wouldn’t have been able to meet at all. Truman had a statutory
procedure he didn’t follow. Lincoln says Congress must affirmatively enact statutes to affirm. L also
accelerates Congress’s meeting. Finally, the Civil War was a “legal and constitutional war” – to lose the
war is to lose the rights the constitution preserves.
e. Presidential Privileges and Immunities (p 724-28)
 While Art. I § 6 gives legislators immunity from lawsuit based on their “speech or debate,” and
temporary immunity from civil arrest while legislature in session, Constitution is silent on matter of
presidential immunity
 Immunities have been derived from structural considerations
 It would be anomalous to not give immunity to VP as presiding officer in Senate or to allow pres. to
be sued for statements in State of the Union address or a press conference.
 Spalding v. Vilas (1896): judges privileged against lawsuits for statements in court/opinions.
 Nixon v. Fitzgerald, 457 U.S. 731 (1982) held ex-pres. Nixon could not be sued for allegedly
violating plaintiff’s 1st Amend. rights while in office. (Criticism: shouldn’t deprivation of a
constitutional right have a remedy (perhaps pay out of a public fund)?)
 Clinton v. Jones, 117 S. Ct. 1636 (1997) held sitting pres. Clinton could be sued for violating
plaintiff’s civil rights while governor of Arkansas
o weaker than Nixon case in that Clinton act was private (sexual harassment) while Nixon’s
was in office as pres.
o stronger than Nixon case in that Clinton only wished to defer trial so as not to interfere with
work of presidency (similar to “in session” immunity for legislators in Art. I § 6). One person
shouldn’t be able to commandeer president’s time.
 In both Nixon and Clinton cases, SCt. indicated Congress could deviate from rulings w/ legis.
 Open question: can sitting pres. be prosecuted criminally outside impeachment ct.?
o Amar testified before Congress that sitting pres. is immune from criminal trial other than
impeachment, but can be prosecuted after leaving office (or waive immunity).
 based on structural argument (separation of powers/federalism)
 entire executive power of government is vested in president
 if South Carolina Court could have indicted Lincoln, Union might not have survived
– a part cannot undo the whole (McCulloch)
 same is true of federal courts – federal grand or petit juries are selected locally, but
pres. must be judged by body representing whole (Congress)

f. Presidential Selection and Succession

Bush v. Gore, 121 S.Ct. 525 (2000)
Supremes take on a huge political question with a self-dealing 5-4 decision. Majority upends
traditional deference to states in holding their own elections, claiming violation of equal protection
and lack of time to fix problem.
FACTS: Gore filed complaint contesting certification of state election results in FL. pursuant to state
statute, claiming a number of illegal votes or rejection of legal votes sufficient to place in doubt the result
of the election. State S. Ct. ordered manual recount of ballots on which machines had failed to register
vote for pres. Dec. 8. Bush filed stay with U.S. S. Ct. Ct. granted, treated as writ for cert. & granted cert.
Dec. 9.
HOLDING: Per curiam: judgment of S. Ct. of Florida reversed
REASONING: States are not required to, but may, give voters power to appoint electors. Once granting
this power, equal protection applies. “The recount mechanisms implemented in response to the decisions
of the Florida Supreme Court do not satisfy the minimum requirements for non-arbitrary treatment of
voters necessary to secure the fundamental right [of equal protection]” because different counties use
different standards for ascertaining intent of voters (different rules for dimpled/hanging chads, etc.).
Implementing an acceptable system would take too long (cannot possibly meet Dec. 12 deadline for
certifying results).
CONCURRENCE (Rehnquist w/Scalia & Thomas): In ordinary cases, fed. must defer to state cts. in matter
of state law; here, FL. S. Ct. violates Art. II, § 1, cl. 2 providing for state legislature to direct appointment
of electors when considered with 3 USC § 5: state’s selection of electors “shall be exclusive, and shall
govern in the counting of the electoral votes” if electors are chosen under state laws enacted before
election. FL. S. Ct.’s interpretation of FL. election laws impermissibly distorted them.
DISSENT: Stevens w/Ginsburg & Breyer: Constitution gives power to states to determine process of
choosing electors, and state S. Ct. is final arbiter of state law. Failure of FL. S. Ct. to specify means of
ascertaining intent of voters not violative of equal protection. Even if equal protection was violated,
appropriate action would be to remand for further specific procedures. Fed. deadlines do not bar state
from continuing to consider slates of electors. FL. S. Ct. did not change FL. law.
DISSENT: Souter w/Breyer (Stevens & Ginsburg all but C): If S. Ct. did not interfere, matter could have
been worked out in Congress under 3 USC § 15. A) 3 USC § 5 is “safe harbor” provision for states to
guarantee their electors will be accepted by Congress, but states need not conform to it. Congress
resolves cases of disputed slates of electors under 3 USC § 15. B) FL. S. Ct.’s interpretation of state
election statute was w/in bounds of reasonable interpretation and must be deferred to. C) There may be
an equal protection problem, but assumption that state cannot address inconsistencies in timely manner
unwarranted.
DISSENT: Ginsburg w/Stevens (Souter & Breyer join part 1 only): 1) S. Ct. should defer to state ct. in
matter of state law. Case does not involve recalcitrance of state ct. in opposition to Fed. Constitution. 2)
petitioners have not presented substantial equal protection claim. Even if there was, Dec. 12 “deadline”
for safe harbor does not bar FL. from continuing to count votes to present to Congress after deadline (it
could reject them only if both Houses found they had not been regularly given).
DISSENT: Breyer (Stevens & Ginsburg join all but I-A-1; Souter joins I only): IA1) Petitioners presented
no evidence that failure to count overvotes or that all votes and not just undervotes were recounted in
some but not all counties would change number of legal votes. However, lack of uniform standard for
determining intent of voters may present an equal protection problem. 1A2) Appropriate remedy would
be to remand to allow FL. S. Ct. to require counting all undercounted votes in state. 1B/II) Matter should
have been left to state court.
CLASS NOTES:
Amar: this is a political question that the court shouldn’t even address
May be a state law question which should be left to state S. Ct.
Congress has ultimate job of judging which electors to recognize when there is a dispute
Justices shouldn’t pick president b/c pres. picks justices (prudential argument)
No judicially manageable standards (Court says doesn’t apply to anyone else.)
Precedent – no court had ever intervened like this in any other presidential election.
Ironic that majority makes equal protection argument when their result undercounts minority voters.
Interpreting ballots has always required a number of individual “umpires” (is x close enough to the
box? – everyone will interpret intent slightly differently), but this has never brought an equal
protection argument before.
Art. II gives no power for fed. to question state’s method of choosing electors.
Note that Fl. S. Ct. was activist in voting cases before election – was consistent in 2000; U.S. S. Ct.
tended to defer to states before – was inconsistent in 2000
Fl. legislature provided for election procedure – gives sec. of state and courts power to resolve
disputes – shouldn’t state S. Ct. be final arbiter? SC violating federalism.

Amar2 - Is the Presidential Succession Law (3 USC 19) Constitutional?

Amars argue that current presidential succession statute is unconstitutional in placing the Speaker
of the House and Senate President pro tempore 1st & 2nd in line after pres. & veep. Framers and
Constitution show that fed. legislators are not “officers” under the Succession Clause (Art. II, § 1, P.
6)

The Constitution
o Succession Clause: the Congress may by Law provide for the Case of Removal, Death,
Resignation or Inability, both of the President and Vice President, declaring what Officer
shall then act as President, and such Officer shall act accordingly, until the Disability be
removed, or a President shall be elected.
o Are Speaker or President pro tempore “officers” within the meaning of the Succession
Clause?
Text and original understanding
o Constitution refers to “officers of United States” many times and seems to mean members of
the fed. exec. & judiciary, but not the legislature.
 Art. I § 6 makes clear that fed. legislators cannot hold any “office of the U.S.”!
 Historically, parliamentary officers were distinguished from crown officers
 Art. II § 3 Commission Clause gives pres. power to appoint exec. & judicial officers
(but not legislators)
 Art. II § 4 Impeachment Clause makes “all civil Officers of the United States”
impeachable. In 1798, Senate rejected idea that its members were “civil officers” and
therefore subject to impeachment.
 Early drafts of Succession Clause used “officer of the United States”; no evidence
that this style change intended to change meaning; seems to be shorthand for officer
of U.S.
o Counterargument: 2 places where use “officer” to include federal legislators.
 Art. I § 2: HR “shall chuse their Speaker and other Officers”
 § 3: Senate “shall chuse their other Officers…”
 If “officer” means everyone labeled officer in the constitution, and not just officers of
the US, then Speaker might be eligible.
o Response: Art. VI § 3 requires oath of fed. & state legislators, executive and judicial officers
of U.S. & states.
 If “officer” in Succession Cl. was intended in broad sense and not shorthand for
“officer of U.S.”, then state officials could be appointed by Congressional succession
statute, which seems implausible given framers’ intent for more national gov’t,
obvious state favoritism, and plausibility of alternative reading.
 addresses legislators and executive & judicial officers separately.
Structural considerations
1. separation of powers
the ban on congressional office-holding and the resignation problem
 if pres. and veep were temporarily disabled, house speaker would have to
resign as speaker to act as pres. (Art. I § 6); once pres. recovers, speaker will
have lost seat in house; not an issue if only exec. & judicial officers could
serve (they can keep original offices & serve as pres. simultaneously)
 Madison argued only “offices” were qualified, not private citizens. Under
this view, Speaker also disqualified if resign office.
 Not like British Parliamentary system – bans leg/exec blending.
impeachment process integrity and the conflict of interest problem
Emoluments Clause (Art. I § 6 P. 2) and the impeachment procedures (Art. I § 3 P. 6
– which says CJ must preside over pres. impeachment, not VP, who has a big
stake in proceedings) are careful to insure that no one is allowed to benefit
selves or judge own case. Succession law warps incentives of Speaker/pro
temps when called upon to impeach Pres or VP.
the electoral college model and the problem of creeping prime ministerialization
 current succession law allows Congress to place its own leader in presidency
through impeachment
  yet one purpose of electoral college was to prevent person becoming pres. by
currying Congress’ favor
2. logistics
where problem: if pres. & veep are wiped out at once, shouldn’t successor be nearby?
Congress may be out of session; exec. officers are usually in the capital
when prob.: since Congress need meet only once a year constitutionally, legislative
officers are not continuous – if pres. must be replaced, there may be no house speaker
C. subsequent constitutional developments
1. 25th Amendment -- 25th Amendment (1967): directs Pres to fill vp vacancy by
nominating a VP who shall take office upon Congress’ confirmation
if members of the Congress could succeed to the pres., they may bog down the
confirmation process of the veep, which would undermine the objective of the 25 th
Amend, namely, the speedy replacement of the veep
also, 25th allows veep with a majority of Cabinet to convince Congress that the pres. is
unable to discharge her duties—if the legislature is in line to succeed, they are again
judges in their own cases
2. the populist presidency -- some say that legislators should succeed b/c they are elected
whereas Cabinet members are appointed
 but legislators are elected by local constituents, not national electorate. The cabinet
members probably better reflect the national will
 idea of hand-picked succession is important—the VP’s mandate is derived largely
from the fact that he is the handpicked successor of the pres—cabinet succession
simply extends this model
 this model will preserve party and policy continuity
the statutory evolution
original succession statute (1792) was compromise between legislators who wanted sec. of
state (Jefferson) 1st in line and those who wanted sec. of treasury (Hamilton) 1 st in line;
picked pres. pro tempore to be successor; but immediate national election triggered, so
successor would be temporary
1886 act made line of successors all cabinet members; legislators questioned constitutionality
of 1792 act and shenanigans of 1868 Johnson impeachment
1947 act once again put legislators in succession
current law allows speaker and pres. pro tempore to decline presidency then bump
cabinet successor whenever they choose (yet high cabinet members cannot bump
lower ones)
requires any succeeding cabinet officer to resign cabinet post (must go thru confirmation
again)
doesn’t trigger a new election.
the burden of persuasion
importance of maintaining confidence in constitution and legitimacy at point of succession
means we must avoid questionable interpretations and hold to most straightforward
reading that legislators are not officers under Succession Cl. Should also trigger
immediate election
new law should also consider what would happen if a leading candidate died before Election
Day (election should be postponed) or if pres. elect dies before electors meet (should be
treated as elected and succession kicks in)
should also consider temporary disability of pres. and/or veep – should give successive
cabinet officers same ability to discharge powers to next in line (as veep now has under
25th Amend. § 3)
B: FEDERALISM – Vertical checks and balances: Limiting
Congressional Power

 Vertical Federalism diffused gov’t power between fed. and states and allowed gov’ts to check
each other (e.g. local militias balanced national armies; local juries balanced national judges; state
representatives balanced more national senators and executive; states were required to amend
Constitution).
 Horizontal Federalism is concerned with the relationship between states and how the fed. gov’t
affects these relationships, as with the Commerce Clause.
 The big sources of federalism questions: commerce clause, taxing and spending power,
structure of constitution, reconstruction amendments, 10 th Amendment

Commerce Power
 Art. I § 8 P. 3: Congress shall have Power “To regulate Commerce with foreign Nations, and
among the several States, and with the Indian Tribes”
 Main thrust of commerce clause, says Amar, is not commerce per se but a concern with spillover
and resulting race to the bottom. Even if everyone wishes to regulate for the common good,
spillover may make it impossible. E.g., if states ban child labor but even one state does not, that
state will have a competitive advantage and other states will have incentive to race to the bottom,
that is, to allow something that practically no one really wants (AKA tragedy of the commons).
 In early America, there actually was little interaction between states and therefore minimal
spillover effect. What may have been an unconstitutional infringement of federalism then may
not be now as transportation and communication developments have made every aspect of life
interstate.
 The Civil War also showed the fed. gov’t and not the states to be the guarantor of civil rights and
the Reconstruction Amendments severely limited the power of states over their own citizens
(human rights were a new role for fed).

NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1 (1937)

“The switch in time that saved nine.” – FDR threatening to court pack and change the rules of the
judiciary. Marked abrupt end of Lochner substantive due process era and start of vast expansion
of federal power under the Commerce Clause. Transition case.

BACKGROUND: The National Labor Relations Act of 1935 (NLRA) prohibited employers from
engaging in unfair labor practices affecting commerce. Defined commerce to include the
trade/transportation/communication of commerce between states, or the “flow of commerce.”
FACTS: ∆ corporation was alleged to have interfered with the rights of employees to organize and bargain

HOLDING: CJ Hughes: NLRA upheld.

REASONING: ∆ was a multi-state company, with properties and facilities in several states, and sent 75% of
its product out of state. Congress can legislate an intrastate activity that has a close and substantial
relation to interstate commerce and the legislation is essential or appropriate to protect commerce from
burden or obstruction. However, the Court was careful to note that this was not license to regulate all
activity and that certain activities affected commerce too remotely to be regulated. There was a line to be
drawn (a foreshadowing of Lopez).
United States v. Darby (312 U.S. 100 (1941))
Congressional motives not a factor in Commerce Clause. Congress can even regulate intrastate
activity to address spillover problems if means are reasonable.
FACTS: Darby challenged minimum wage and maximum working hours for employees engaged in the
production of goods related to interstate commerce per Fair Labor Standards Act of 1938. Act
prescribed minimum wage and maximum hours for employees engaged in production of goods related to
interstate commerce. Also prohibited the shipment of goods prepared by employees whose wages and
hours violated the act and prohibited companies from employing workers who produced interstate
commerce products at other than proscribed rates and hours.
HOLDING: Stone: Congress can regulate the shipment of goods in interstate commerce regardless of
motive and Congress can regulate intrastate activities connected to interstate commerce that create
spillover problems as long as the regulation is a reasonable means of advancing general welfare.
REASONING: Commerce clause gives plenary power, regardless of fed. motivation or overlap w/incidents
of state police power.
 Darby overruled Hammer v. Dagenhart, which said Congress could not regulate interstate sale of
products based upon the fact that they arose from child labor -- could only regulate articles if the
articles themselves were inherently noxious.
 Darby says: Motivation of a statute or regulation is a matter for the legislature; whether passes
commerce clause criteria is question for judiciary.

Wickard v. Filburn, 317 U.S. 111 (1942), unanimous

 AAA of 1938 set caps on wheat production per farmer. A farmer grew wheat in excess of the cap
but only used it for his own consumption. When looked at individually, the fact that the
individual farmer exceeded cap and consumed it himself did not substantially affect interstate
commerce. But if a great number of farmers did so, this would substantially decrease demand for
wheat and thus affect interstate commerce.
 Holding: Congress can prohibit action that is intrastate if it substantially affects commerce.
This can include acts that may seem trivial when examined at an individual level, but whose
aggregate or cumulative affect on interstate commerce would be significant.

Civil Rights Commerce Clause Cases

Early Civil Rights Cases litigated under commerce clause: path of least judicial resistance.

Civil Rights Act of 1964: Title II relied mainly on the Commerce Clause, the idea being that
discrimination and segregation in areas of public accommodation (hotels, restaurants, etc.) affected
interstate commerce
 Amar: Civil Rights Act should have been justified with 13th and 14th Amendments
o the 14th Amend. §5 states the Congress shall enforce the amendment with appropriate
legislation, can be used to protect “badges of citizenship” as alluded to in §1
o tricky part is that 14th Amendment on face applies to states, not individual actors
o privileges and immunities protection of reconstruction amendments emasculated by
Slaughterhouse
Heart of Atlanta Hotel v. U.S., 379 U.S. 241 (1964)
 Challenged Title II. Since hotel was readily accessible to highways, 75% of clientele came from out
of state, and it advertised on national media, if they discriminated it would affect interstate commerce
by forcing blacks to find alternate places for rest or by discouraging them from traveling at all.
Discrimination would decrease travel and commerce. Thus, Congress had power to regulate.

Katzenbach v. McClung, 379 U.S. 294 (1964)

 Diner got food from interstate sources. If it discriminated it had less business, ordered less interstate
goods, and thus affected commerce. Thus, Congress has rational basis to regulate. Court noted that
 though individually the restaurant may not substantially affect commerce, the cumulative effect (see
Wickard) of all restaurants on commerce would.
 Justice Douglas claimed that it would have been better to justify Title II on 14 th, §5 -- this would
bypass question of whether a business is within commerce definitions or not

Daniel v. Paul, 395 U.S. 298 (1969)

Congress could prohibit discrimination in an Arkansas amusement park because it had a covered snack
bar that sells interstate goods and that interstate travelers bought food from it.

Perez v. U.S., 402 U.S. 146 (1971)

Congress can restrict credit extortion activities even if intrastate because of the spillover effect of
organized crime between states. Such activity is a “federal problem.”
 National problem v. federal problem
o Congress should identify more than just a national problem when regulating. A “national
problem” is one that occurs in each state around the country, the effects of which are felt
solely within each state. Congress should have to justify use of commerce clause with a
“federal problem,” where a spillover problem between the states exists.
Modern Limitations on Commerce Power
Rehnquist and other Reagan and Bush appointees believing in states’ rights have reigned-in the commerce
power, esp. since Rehnquist became CJ in 1987.

United States v. Lopez , 514 U.S. 549 (1995)

First significant break in pattern of expansion of commerce power since 1937.
FACTS: The 1990 federal Gun-free School Zones Act made it a federal offense for a student to carry a gun
onto campus. Lopez (∆) was charged and convicted under the act. On appeal, he contended that the Act
was beyond Congress’ powers under the Commerce Clause. 5th Circuit agreed w/ Lopez and reversed.
HOLDING: Rehnquist affirmed.
REASONING: Fed. gov’t is one of limited, enumerated powers. Looks to Garcia (see below) for
guidelines. Congress can regulate 1) channels of interstate commerce, 2) instrumentalities of
interstate commerce, 3) activities that “substantially affect” interstate commerce. Present law would be
justified under #3, if at all, but law is too broad. Government links the authority to possibility of violent
crime arising from gun possession; violent crime having two effects on the national economy – (1) costs
of crime and (2) reduction in travel to high crime areas. (Also: threat to learning process and educational
quality, which affects quality of workers). Neither the statute nor its legislative history contain findings
re: effects upon interstate commerce of this activity. Findings not required, but may be helpful when the
court cannot on its own find the relation to economic/interstate commerce activity. Carrying a gun to
school is a local matter. With enough inferences and assumptions, anything can affect interstate
commerce, but for limited fed. gov’t. to have meaning, there must be a cutoff.
At its core, Rehnquist’s argument is about structural principle of federalism (no specific clause)
AND prudential concerns (slippery slope).
CONCURRENCE: Kennedy: Federalism requires court to preserve powers reserved to states; education is
such a state power.
CONCURRENCE: Thomas: Interpretation of Commerce Clause has drifted too far; should apply to trade
only. If congress can regulate anything that substantially affects commerce, no need for Constitution to
specify congressional authority to regulate bankruptcy, coin money, or fix weights and measures, or
establish post offices, etc. DISSENT: Stevens: Education has major impact on economy. Guns are articles
of commerce and can be used to restrain commerce.
DISSENT: Souter: Reviews history of Commerce Clause interpretation, and finding 1930s (and before)
strict interpretation of Congress detrimental/overly activist, supports accepted rationality review
test/deference to Congress.
DISSENT: Breyer (w/Stevens, Souter & Ginsburg): Should defer to Congress. Points to mountain of
studies linking education to economy and showing mutual exclusivity of education and violence – this
shows rational connection to national economy. Cumulative effects of guns in schools will have
demonstrable effect on national economy.

United States v. Morrison, 120 S.Ct. 1740 (2000)

Rehnquist held that neither Commerce Clause nor 14th Amendment provide Congress with
authority to enact civil remedy provision of Violence Against Women Act (VAWA) – violence against
women does not substantially affect interstate commerce.

FACTS: Former university student Brzonkala brought claim under VAWA providing federal civil remedy
for victims of gender-motivated violence.
HOLDING: Rehnquist: affirmed 4th Cir. decision that Congress does not have authority to provide a civil
remedy for gender-motivated violence under (a) Commerce Clause or (b) Equal Protection Clause.
REASONING: (a) Commerce: Defines ct.’s ability to overrule Congressional assertion of power based on
U.S. v. Lopez (see above). Despite numerous findings by Congress connecting gender-based violence
and economic impacts, connection too indirect. (Invalidating the narrow reading of Lopez, which said
maybe the Guns in School Zones act would have been okay if Congress had made findings.) Fear that
Congress would be able to regulate any crime having economic affect, thus trampling states’ rights. Must
be distinction between what is truly local and what is truly national. Also: police power lies in states. (b)
Equal Protection: Government contends, and congressional record establishes, pervasive bias in state
justice systems against victims of gender motivated violence; claim that this bias denies victims of
gender-motivated violence the equal protection of the laws. Court cites “embedded principle” of
interpretation that action prohibited by 14th Amendment is only state action. “The Amendment erects no
shield against merely private conduct, however discriminatory or wrongful.” Cites Civil Rights Cases
and US v. Harris as invalidating laws that regulate private action under §5 of the 14 th A.
DISSENT: Souter (w/Stevens, Ginsburg & Breyer): DEFERENCE TO CONGRESS. Legislative findings
show that gender-based violence does substantially affect interstate commerce. Lopez is a deviation from
standard test court applied to commerce clause enactments. Correct test is merely to ask whether
Congress had a rational basis for creating a regulatory scheme to protect commerce.
DISSENT: Breyer (w/Stevens; Souter and Ginsburg join I-A): It is the effects of an activity and not the
cause that are material. Just because a cause is local does not mean that its effects are not felt between
states (echoes of spillover).
CLASS NOTES:
 According to Amar, VAWA is justified under 14 th because: The 13th Amendment has been
interpreted in Jones v. Mayer to allow Congress to regulate a private person’s behavior. §2 of the
amendment allows Congress to enact “by appropriate legislation” the protections of §1. §2 allowed
Congress to eliminate all badges and incidents of slavery. The Court granted Congress wide
authority in determining what these badges and incidents were  Makes similar argument for
reading 14th A. §5, which permits Congress to enforce by appropriate legislation the provisions of
the amendment, should allow Congress to enforce “badges of unequal citizenship”. Badges of
citizenship might include the right to be treated equally under the law no matter one’s sex. Amar’s
contention is that to treat the two amendments differently is for the court to be inconsistent.
 Adoption of the 19th should inform the 14th amendment -- women should be viewed as full citizens
of the United States and entitled to such protections as VAWA proffered
Taxing and Spending Power, Art. I § 8 Clause 1
 Conditional funding powers are extremely broad.
 Dealing with national problems (w/ spillover effects) through federal taxation
 Congress’ Article I power to tax & spend NOT limited to interstate problems
 Tension/debate between those who leave motive to Congress and those who see structural
limitation in federalism and the 10th A powers reserved to states

Sozinsky v. United States, 300 U.S. 506 (1937)

 representative of long trend of deferring to legislative tax and spend power
 upheld law requiring persons dealing w/certain firearms to pay annual tax
 petitioner argued act was designed to prohibit transfer of such weapons, not raise revenue
 Court: every tax is regulatory but it will not make inquiry into hidden motives of tax

Steward Machine Co. v. Davis, 301 U.S. 548 (1937)

In the major post-1937 challenge to Congress’ taxing and spending power, Social Security Act of
1935 was upheld.
FACTS: The Social Security Act taxed companies with 8 or more employees. The funds went into the
General Treasury. Any taxpayer who made contributions into a state unemployment fund could have
those payments credited against the federal tax. Steward paid the tax and filed a claim to recover the
payment, claiming the statute to be unconstitutional.
HOLDING: Cardozo: the federal unemployment insurance tax is constitutional
REASONING: This is a legislative response to a national unemployment crisis in the Great Depression 
protection of general welfare. When taxing and spending power exercised in coercive nature it is
unconstitutional as a violation of 10th amendment. But when merely persuasive/an inducement, the
exercise of the power is constitutional. Congress enacted the statute to safeguard its own treasury. The
fed. here is acting (taxing) in the interest of the general welfare b/c w/o fed. action, states could not easily
impose unemployment taxes (businesses would move to other states).

Hughes Court to Burger Court: Practically No Limits (on fed)?

Between New Deal Court and Rehnquist Court, state claims for exemptions from fed. regulations under
Commerce Clause, reconstruction amendments, and taxing and spending power did not fare well before
the court. Fed. power was dominant. But that changed with Rehnquist Court.

National League of Cities v. Usery, 426 U.S. 833 (1976)

First decision since 1930s striking down Congressional act on federalism grounds. BACKGROUND:
Congress had extended Fair Labor Standards Act (maximum hours and minimum wages) to all state
and municipal employees with a 1974 amendment under the commerce clause.
FACTS: Petitioners claimed that the imposition infringed on essential state power activities protected by
the 10th amendment.
HOLDING: Rehnquist: Though an act may be within the commerce power of Congress, Congress cannot
violate rights retained by states through 10th A (powers traditionally exercised by states).
REASONING: Alters States’ abilities to structure employee-employer relationship in areas such as fire
prevention, police, public health, sanitation, etc. Distinction between congressional authority to regulate
private citizens or business owners under the Act and congressional authority to regulate states as states.
Difference is “state is not merely a factor in the shifting economic arrangements of the private sector…but
a coordinate element in the system established by the founders.” Threatens states’ separate and
independent existence.
DISSENT: Brennan (w/Marshall & White): Commerce power cannot contravene liberties in 1 st, 5th, or 6th
amendments. But nothing in 10th A limits congressional authority delegated under commerce power.
Brennan sees here how a conservative ct. can be activist: calls decision a “patent usurpation of the role
reserved of the role reserved for the political process.”
CLASS NOTES: Rehnquist doesn’t rely too heavily on 10th Amendment b/c 10th Amendment doesn’t
explicitly limit Congress (10th cuts across Bill of Rights) and b/c 10th also refers to rights of states and
people. Argument is really structural one about proper relationship between fed. and state gov’ts. (See
Lopez above for similar reasoning by Rehnquist).

Garcia v. San Antonio Metropolitan Transit, 469 U.S. 528 (1985)

Blackmun changed vote to overrule National League of Cities after just 9 years.
FACTS: Garcia appealed from a decision for San Anton. Mass Transit Authority (SAMTA) holding that
municipal ownership and operation of a mass transit system is a traditional gov’t function and thus
immune from wage requirements of Fair Labor Standards Act (under Natl League of Cities)
HOLDING: Blackmun: reversed.
REASONING: The test for determining state immunity from fed. regulation under the Commerce Clause is
not whether the state activity sought to be regulated is a traditional state gov’t function, but rather whether
the regulation is destructive of state sovereignty or violative of any constitutional provision. The former
standard, under Nat. League of Cities has proved unworkable – no organizing principle for determining
what was/was not traditional state function. Fundamental constitutional limitation on federal power is
one of process, not result. Here, minimum wage and overtime requirements are not destructive of state
sovereignty or violative of any constitutional provision.
DISSENT: Powell: Majority renders 10th A irrelevant. States do not have sufficient control over fed.
elections to justify denying judicial review. Problematic result: “federal political officials, invoking the
Commerce Clause, are the sole judges of the limits of their own power.”
DISSENT: O’Connor: Historical. Essence of federalism is that the States as States have legitimate
interests which the National Government is bound to respect even though its laws are supreme. Spirit of
10th Amend. requires court to prevent Congress from destroying state sovereignty.
DISSENT: Rehnquist: either manner of dissent is better than majority; believes National League of Cities
rule will be vindicated.

Rehnquist Ct: Affirmative Limits on Federal Govt vis-a-vis States

 Notice how the following cases seek to “move” the law to recognize states rights (according to
Rehnquist’s reasoning/agenda in National League) while maintaining some fidelity to Garcia.
 Note issues of stare decisis

Gregory v. Ashcroft, 501 U.S. 452 (1991)

Age Discrimination in Employment Act does not apply to state’s appointment of its most important
officials. If fed. wishes to regulate states, it must be clear (plain statement rule).Brennan replaced
by Souter after Garcia: hence, states win this one.
FACTS: 2 Missouri judges challenged a state rule mandating their retirement at age 70. Claimed violation
of 14th Amend. and of Federal Age Discrimination Employment Act (ADEA).
HOLDING: O’Connor: ADEA does not apply to state judges.
REASONING: State decision to regulate qualifications of its political officers is “a decision of the most
fundamental sort for a sovereign entity.” Applying plain statement rule--is it plain to someone
reading statute that it provides for something--the court found that the ADEA did not plainly include
judges under its provisions (does not address whether judges were included in the exclusion clause, a
clause excluding classes of individuals, such as state policy makers, from the protections of the act). If
Congress seeks to limit ability of state to govern its political system it must be clear in doing so. In
ambiguity, resolution of the act in favor of Congress not overstepping its authority.
CONCURRENCE IN PART, DISSENT IN PART: White: Agrees w/outcome b/c ADEA excluded judges in
definition of employee. Rejects new plain statement rule in favor of Garcia state protection through
political process.

New York v. United States, 505 U.S. 144 (1992)

Thomas replaced Marshall, leading to 6-3 decision in favor of states’ rights. Ct. rules 10 th
Amendment or lack of enumerated power precludes Congress from forcing states to pass particular
legislation.
FACTS: Low-Level Radioactive Waste Policy Amendments Act (1985), gave 7 years for every state to
join a regional waste compact, develop in-state disposal, or find another way to dispose of its waste. 1)
sited states could impose surcharge w/funds to be returned to compliant states, 2) sited states could deny
access to non-compliant states, 3) any state not in compliance by 1992 must take title to all waste
generated in state or become liable to in-state waste generators for all damages. By 1990, NY had not
joined regional compact and sued for declaratory judgment that act was violative of state sovereignty
under 10th Amend. and Guarantee Clause (Art. IV § 4) by requiring state to take title.
HOLDING: O’Connor: Congress may not order a state government to enact particular legislation; 3 rd
incentive is unconstitutional under 10th Amend. or for lack of enumerated power and severed from act.
REASONING: Incentive #1 is legit. exercise of commerce and spending power. Incentive #2 is routine
exercise of commerce power. Incentive #3 is coercion in effect ordering states to enact one or another
form of particular legislation. When fed. compels states to regulate, it violates framers’ adoption of
Virginia Plan, which allows Congress to exercise legislative authority on individuals w/o using states as
intermediaries. Removes accountability from fed. legislators for their actions and puts blame on state
officials for actions over which they have no control. Even though law was a result of agreement between
states, states cannot consent to enlargement of Congressional power under Constitution. Introduces
Guarantee Clause (Art. IV, §4 – guarantee republican form of government to states) as a possible source
of justiciable rights.
CONCURRENCE AND DISSENT: White: Act was product of cooperative federalism. States can consent to
relinquish some sovereignty. Art. I §10 cl. 3: “no State shall, without the Consent of Congress,…enter
into any Agreement or Compact with another State.”
CONCURRENCE AND DISSENT: Stevens: Majority is misreading history. Articles of Confederation
allowed fed. to issue commands to states. Constitution enhanced power of fed. Congress already regulates
state-operated railroads, school systems, prisons, elections, and could command states to supply troops in
war.

Notice how Court avoids Garcia; distinguished in that New York is not about whether states are subject to
commerce regulations on individuals but about regulating on actions of states only. O’Connor hands
down Casey opinion (on abortion rights) w/ great argument about stare decisis, so too awkward to
overrule Garcia here.
Amar: New York should be read as saying that state governments are designed to be constitutionally
independent from the federal government in certain ways, in part so that they may stand as competing
political power centers and rallying points for opponents of the central regime. States are watchdogs.
State legislatures should be able to define their own agendas and remain a locus for criticizing the federal
government.

Printz v. United States, 521 U.S. 898 (1997)

Souter changes vote; states’ rights now win 5-4. Congress cannot compel state officers to execute
federal laws.
FACTS: Brady Handgun and Violence Prevention Act required AG to establish national gun
background checks. Until national system could be instituted, the act required chief law enforcement
officers to do background checks. Two western sheriffs challenged requirement as violation of New York
decision and constitution.
HOLDING: Scalia.
REASONING: History is leans against the Act, but inconclusive. Constitution imposed upon state judges
to follow federal law, but did not allow Congress to impose duties upon state executive officers without
state consent. Structure: Dual sovereignty principle of federalism, and residual state sovereignty under
10th A. If Congress could compel state executive officers this would violate federalism (as it protects
individuals against tyranny) and separation of powers (Congress could circumvent President and require
all states to implement the laws. But President is the one in charge of executing federal law). Precedent
most conclusive. No significant difference between forcing the legislature to act (invalidated under New
York) and “conscripting” state executive officers to perform ministerial tasks.
CONCURRENCE: O’Connor: Decision not the end of the Brady Act. State officers may comply with
background check provision voluntarily or by contract.
DISSENT: Stevens (w/Souter, Ginsburg & Breyer): Congress has express constitutional power to regulate
commerce, which includes power to regulate private individuals as well as state actors. State officers are
bound by oath to support Constitution and nothing in Constitution indicates state officers can ignore
command of legitimate fed. statute. Cites Garcia for proposition that states can defend themselves
politically in Congress. Distinguishes New York: that was about compelling state legislation, not action in
support of fed. law.

To summarize this line of cases: Garcia suggested that states could best protect themselves procedurally
and not through courts, thus Congress had wide authority to regulate state activities. Ashcroft qualified
this power, requiring Congress to be clear when it intended to intrude on state authority. New York and
Printz state that Congress can neither compel a state’s legislature to adopt any certain regulatory scheme
nor compel a state’s exec. officer to carry out any fed. law.

U.S. Term Limits v. Thornton, 514 U.S. 779 (1995)

This is the big case b/c it would affect how Congress is structured. State cannot impose term limits
on its federal elected officials (states lose this one b/c Kennedy switched from pro-state to anti-
state).
FACTS: Amendment to the Arkansas Constitution precluded persons who had served certain number of
terms in the United States Congress from being on the ballot for election to Congress.
HOLDING: Stevens: States may not impose qualifications for offices of the US representative or US
senator in addition to those set forth by the Constitution. To do so requires amendment. REASONING:
Following Powell v. McCormick analysis, Ct. finds that congressional qualifications cannot be changed
by Congress or states. Founders did not believe states or Congress could add to requirements. This
historical view also supported by (1) egalitarian ideal: everyone should be able to run for office and (2)
the people should be able to select whomever they please. Power to set additional qualifications was not
reserved to the states by the 10th A. Allowing states to impose additional qualifications would lead to a
patchwork of qualifications and uniformity in Congress would be jeopardized.
DISSENT: Thomas (w/Rehnquist, Scalia & O’Connor): Nothing prohibits states from prescribing
eligibility requirements on its congressmen. The constitution is silent on this and thus does not prohibit
(10th A argument). Constitution derives power from the people of each state, not from the people as a
whole. The Qualifications Clauses do not prohibit states from adding requirements, though they prevent
states from taking away requirements. Congress may not impose additional requirements, b/c this is a
“self-dealing” problem.
CLASS NOTES:
State term limits creates prisoner’s dilemma between states. Any state imposing term limits will lose
power in Congress (less seniority). If enough states could limit terms at once, though, they might get
enough people in Congress who would be willing to vote for national term limits when their time was up.
Amendment unlikely since this requires 2/3 of Congress, members of which want to stay. They could
write Amendment so that it wouldn’t affect anyone in office at time of passage, but this would make
Congress look hypocritical.

III. CONSTITUTIONAL RIGHTS

A: Property Rights

The Early Years: Contracts and Takings

Contracts Clause (Article 1, section 10): “no state shall… pass… any… Law impairing the Obligation of
Contracts….”

Takings Clause (5th Amendment): “…nor shall private property be taken for public use, without just
compensation.”

Name of the case: Fletcher v. Peck

Citation inc. year: 10 U.S. (6 Cranch) 87 (1810)
Author of Opinion: C.J. Marshall
Legal Topics: Protection of Property Rights
A summary of the material facts:
 Yazoo land grant scandal: Georgia legislature bribed to convey land to private companies
 Private companies sell to northern investors
 New legislature wants to rescind titles to land
The holding(s):
 H for Landowners: Right to land purchased via contract protected by the contract clause found
in Art. I, § 10, cl. 1 which says no state shall pass any law “impairing the Obligation of
Contracts.”
The court’s rationale/reasoning:
 Marshall:
o Reads original land grant as contract  relies on contract clause (Art. I, §10, cl. 1)
o Marshall applies the Constitution’s contract clause against the states and says: “the people…
have manifested a determination to shield themselves and their property from the effects of
those sudden and strong passions to which men are exposed.”
o Could also invalidate based on other general principles
o Notes implied Bill of Rights for people of each state
 Johnson concurrence:
o Stretching contracts clause  should rely on general principle: once state has conveyed
interest or property to individual, they have lost all control over it
Significance:
 Inclusion of Article I, § 10 intended to prevent recurrence of post-Revolution enactment of debtor
relief laws that modified obligations to creditors
 Broad reading of Contracts Clause:
o Applied Contracts Clause to government contracts (may be trying to apply takings principle
to state since 5th doesn’t apply)
 Amar: On the other hand…
 o Narrow reading: No gov’t contracts (at common law, no action in common law lay for breach
of contract w/gov’t)
o Today, Generally understood: Gov’t should not retrospectively impair contracts b/w two
private parties (worry about helping debtors at expense of creditors, exceptions: legal at T1,
illegal at T2)
 Dartmouth College v. Woodward (1819)
o Invalidates NH effort to modify Dartmouth College charter to place it under public control
based on contract clause  state cannot create a vested (property) right and then take it away
 Barron v. Baltimore (1833)
o 5th Amendment doesn’t apply against states
o Amar: Seems inconsistent w/Fletcher and Darmouth College decisions  couldn’t the state
just seize land in Georgia or Dartmouth College if takings clause doesn’t apply?
Notes:
 Historical Context: Private property  not prioritized in founding era
o Dec. of Independence: life, liberty, and pursuit of happiness (not property as Locke asserted)
o No mention of private property in Constitution beyond 5th
 Reconstruction  takes slaves w/o compensation (under 13th)

Note: Natural Law, Vested Rights and the Written Constitution: Sources for Judicial Review (p109)
Natural law is a way of finding unenumerated rights, similar to looking at what other rights state
constitutions grant. The written constitution is seen as a written expression of “natural rights” that
already existed; thus, a wider batch of private rights also existed.

When you put a prohibition in a state constitution, you aren’t creating it necessarily, you’re declaring it.
In particular, a law that makes a man a judge in his own trial would be prohibited by natural law. So
would a law that takes property from A and gives it to B. And so would a law that destroys or impairs the
lawful private contracts of citizens. This is how Justice Chase ends up finding a “vested property right.”

The Million Dollar Question: When A and B are individuals, the government’s singling out of A or B for
special treatment would violate natural law. But when A is not an individual but a broader category or
class, when is it permissible for the state to impose burdens on A, perhaps in favor of B? Read most
broadly, this principle makes all redistribution unconstitutional.

Reliance on “general principles” of law, as opposed to strict textualist arg., sounds strange coming from
Marshall.
But there were several notions of rights in the early 19 th Century:
1. “Natural Law” Tradition
Concept in 18th cent Am: a universal law superior to all manmade law
Sources of natural law doctrine: a) Judge did not “make” common law; rather through reason, discovered
immutable legal principles; b) Magna Carta, Declaration – claimed not to establish new principles but
declare preexisting ones; c) John Locke – “social compact” is largely designed to protect distributions
of wealth.
On this view, the written constitution was a core of a wider region of private rights, which are also
entitled to the protection of gov’t
2. Judicial Protection of “Vested” Rights
 Marbury - once his commission “vested”, gov’t could not deprive him of his right
 Fletcher - protected “vested rights” – entitlements. Once belong to person, government can’t divest it
at will.
 Gov’t cannot deprive citizens of vested property right.
3. Explicit Federal Constitutional Protection of Rights
 Judicial protection of individual rights (i.e.-property) still depended mainly on written state and US
constitutions. Several rights protected in Philly Const (freedom to contract, bills of attainder, ex post
facto)
 Supplemented by Bill of Rights in 1791.
 1833: Barron v. Baltimore holds that Bill of Rights applies only to Fed Govt.
4. Ninth Amendment
“The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage
others retained by the people”
 Part of Constitution that most embodies concept of natural rights
 Purpose of amendment ambiguous  Protect indiv. or the state? Does it protect individual liberties
not enumerated in first 8 amendments OR protect states against feds assumption of undelegated
powers?

Note: When Constitutional Law Violates Common Morality

Do constitutional norms and “general principle” norms coincide? Not always.
The Antelope Case, 23 US 66 (1825) (pp.114-17).
FACTS: Antelope apprehended off FL by US ship carrying 280 Africans in violation of slave trade
abolition. Spain and Portugal claimed slaves on the ship as their property since they were being shipped
to Cuba or Brazil, and not the US (where slave trade had been illegal since 1808).
QUESTION: Did the federal ban on slave trade, which required sending slaves brought into the US back
to Africa, also mean that slaves owned by foreign nationals were to be forfeited and sent home?
HOLDING (Marshall): He denounces slave trade as violating the law of nature but says that international
law has yet to adopt this element of natural law as general legal norms. Principle of equality of nations is
recognized. So US must recognize claims of int’l slaveholders and return property illegitimately seized.
SIGNIF: This was a conflict b/w positive law and natural law (“general principles”), and b/w “sacred
rights of liberty and property.” Property, of course, wins.
 Were Marshall’s concern not to antagonize foreign nations, and sensitivity to the most divisive
constitutional issue of the beginning of the Republic (slavery) legitimate reasons for refusing to
enforce the purported slaves’ natural right to enjoy the “sacred principle” of liberty?
 Legal Scholar Robert Cover argues when judge caught between law and morality, there are only 4
choices in the static and simplistic model of law: 1) apply law against conscience; 2) apply
conscience; 3) resign; 4) cheat: state that the law is not is what others believe it to be, thus preserving
the appearance of conforming to both. But in a more realistic and dynamic model of law, law is
always in process of becoming. Judge has a legitimate role in determining what the law will become;
it’s a dynamic, not static, process.

14th Amendment
 Author: Congressman Bingham
 Reconstruction Republicans tried to make clear that henceforth states would be required by the
federal constitution and by federal courts (and by Congress, too) to obey fundamental rights and
freedoms
 Basis for nationalistic restrictions on states insofar as their policies violated the rights of their citizens
o 1st clause of the 1st section overturns Dred Scott by making “All persons born or
naturalized in the United States… citizens of the United States and of the State wherein they
reside”
o “privileges or immunities” clause  addresses rights of citizens
o “due process” and “equal protection” refer to persons
 Frankfurter  argued that 14th Amendment Due Process Clause req. that states obey principles of
fundamental fairness and ordered liberty
 Black  argued for “total incorporation”) of the Bill of Rights into the 14 th Amendment Due Process
Clause (see dissent in Adamson v. CA (1947))
 Brennan  led drive for “selective incorporation” of elements of the Bill of Rights into the 14 th
Amendment Due Process Clause (Warren Court largely accomplished Black’s vision through
selective incorporation, all except 2nd, 3rd, 5th grand jury requirement, and 7th rules regarding civil
juries)
 Bolling v. Sharpe (1954): read the Founder’s 5th Amendment due process clause in light of the
Reconstructionists’ equal protection clause (to overturn segregated DC schools)

Name of the case: The Slaughterhouse Cases

Citation inc. year: 83 U.S. (16 Wall.) 36 (1873)
Author of Opinion: Miller
Legal Topics: Property Rights
A summary of the material facts:
 Louisiana incorporates slaughter-house for city of New Orleans and requires butchers to use it
o Two interpretations:
 Good story  zoning law because slaughterhouse nuisance/stink works in Tort sense
 Bad story  corruption in New Orleans, sweetheart deal for slaughterhouse
A brief procedural history of the case (posture of the case):
 Appeal from Louisiana Supreme Court
The holding(s):
 H for Louisiana: Creation of single slaughterhouse for New Orleans doesn’t violate 13 th or 14th
amendments.
The court’s rationale/reasoning:
 Miller’s majority opinion: In a 5-4 vote, the Court says we can’t strike down this law in the name of
property rights.
o Regulation of butchering within authority of state based on police power to protect health and
safety of public
o 13th doesn’t apply
o 14th Privileges and immunities  confined to “fundamental” rights of U.S. citizenship (e.g.,
right of free access to sea ports)  essentially w/o meaning
 Butchers were not attacking due process procedures of ordinance but substantive
fairness of slaughterhouse monopoly.
o 14th equal protection doesn’t apply (designed to remedy discrimination against newly
emancipated Black people)
 Field Dissent:
o Majority’s reading of 14th amendment “privileges or immunities” clause covers rights
otherwise protected  renders it vain
o 14th should protect “privileges or immunities” by invalidating state granting of monopoly
 Bradley dissent:
o “privileges or immunities” means fundamental liberties
o To find those fundamental liberties look to Magna Carta, Bill of Rights, etc.
o 14th amendment intended to rectify not just slavery and its consequences, but elements of
disloyalty to national gov’t and spirit of insubordination pre-Civil War (intolerant of free
speech, rendered property insecure, etc.)
o State establishment of a monopoly violates fundamental right to choose one’s own calling
Significance:
 Read out of 14th amendment: privileges and immunities clause
o “privileges or immunities” clause strangled in its crib
 o No constitutional scholar (left, right, or center) agrees that this case rightly decided and
“privileges or immunities” clause w/o meaning
o Later, refusing to admit mistake of Slaughterhouse decision, courts invent substantive due
process {Ely: contradiction in terms, due process has to do with process}
Notes:
 Note: “Privileges and immunities” phrase in Article IV, Sect. 2  clearly applies to civil rights, not
political rights (intended to protect civil rights of people going from one state to another, not to
provide them with political rights)

Late 19th century pressure of social discontent (concentration of economic power, monopolistic rates, poor
working conditions in urban factories, etc.)  created pressure for economic regulation  corporate
lawyers reacted by pressing for due process protections of “property”
 Concept of substantive due process used to strike down variety of laws/regulations intended to
intervene in economy
Note: Myra Bradwell, Privileges and Immunities, and the Practice of Law (p.330)
IL SupCt refused Bradwell license to practice law solely because she was woman, even though no one
doubted she was otherwise qualified. Her attorney said that the P and I clause incorporates the
Declaration of Independence into the Constitution, and says that the right to choose your vocation
falls under “pursuit of happiness.” .
On appeal to US SupCt., MILLER for Majority reaffirmed opinion in SLAUGHTER-HOUSE that
regulating licenses of occupations not a power transferred to Feds – it remains with States (thus,
getting a license is not a right of citizenship protected by the 14 th amendment).
Some of the dissenters in Slaughter-house don’t dissent. Some just sexist. Separate spheres for men and
women. Another argument: Being lawyer = officer of court. More like legislator than butcher and the
14th Amend is about civil, not political rights. (though Amar argues that women at core of 14 th
Amend.) Similar to Minor v. Hapersett: voting for women not a civil right, it’s a political right so it
doesn’t fall under 14th Amendment either.

The Rise of Substantive Due Process (1874-1890)

SupCt moves from: (a) ignoring  (b) upholding state leg.  (c) protecting property rights by
requiring judicial review
After SLAUGHTER-HOUSE(1873), SupCt. abdicates duty to rule on State laws; leaves this to State Cts.
The State Courts generally chose to protect property rights; hostile to social legislation.
Then by 1890 the SC gets back into picture and embraces theory of DISSENTERS in SLAUGHTER-
HOUSE. The SC calls it Substantive Due Process: Limits on what states can do when regulating the
economic domain. High watermark is LOCHNER v. NY (1905), below.
Post-civil war  pace of industrialization, along with concentrations of economic power  social
protest;
Responding to social discontent  legislatures pass progressive pro-labor laws and attempt to
regulate business,1870s-80s
Corporation lawyers respond by pressing Courts to defend rights of property against legis. regulation.
SupCt response changes over time.
At first US SupCt upholds regulations passed by the state legislatures: Property can be
regulated if it affects the public interest.
1. MUNN v. ILLINOIS (1877) – upholding state price regulation of grain-storage
warehouses; right to regulate under “police power” when regulation becomes necessary
for public good.
2. RAILROAD COMMISSION CASES (1886) upholding regulation of railroad tariffs.
Though power to regulate is not unlimited, in this case leg acts within its power.
3. SANTA CLARA COUNTY v. SOUTHERN PACIFIC RR (1886) – word “person” in due
 process clause of 14th Amendment applied to artificial persons (i.e. corporations, who
were entitled to similar protections of law).
Gradual weakening of SupCt’s opposition to substantive due process (which was outright
rejected in Slaughter House).
Emergence of fed doctrine of substantive due process: MN RR Cases (1890) – Court struck down statute
granting state RR commission unreviewable authority to set rates. “Reasonableness of rates is
question for judicial investigation, requiring due process of law for its determination.” If a company
is deprived of power of charging reasonable rates for use of its property, and the deprivation takes
place absent a judicial investigation, the company has been deprived of lawful use of its property w/o
due process itself.
 Not simply role of judiciary to review the procedural due process, but to determine whether rates
themselves were reasonable. This “practically” overrules MUNN (1877), above.
Within a decade, SupCt. expanded inquiries to review substantive validity of all sorts of legislation.
Note: Incorporation of the Takings Clause (p.336-7)
 PUMPELLY v. GREEN BAY COMPANY (1871)
14th Amendment does not Incorporate Bill of Rights against States.
Wisconsin authorizes erection of dam that flooded P’s property. P argues that Wisconsin effectively
took property and therefore has duty to compensate. Court rules like in Slaughter-House (and Barron)
that 14th Amendment doesn’t incorporate Bill of Rights:
o “though the const. provides that private property shall not be taken for public use w/o just
compensation, it is well settled that this is a limit on Fed power, not on States”.
 Ironically, 5th Amendment’s right to just compensation for property taken by state was first part of Bill
of Rights that was eventually incorporated against state (per 14 th Amend.) in CHICAGO,
BURLINGTON AND QUINCY RR v. CHICAGO (1897).

Federalist 10 is very opposed to redistribution, as is the contracts clause and the takings clause: together
(and then read into the privileges and immunities clause or substantive due process clause), these form the
structural argument in favor of banning redistribution. And this is what the Court begins to hold onto after
the Slaughterhouse cases.

Amar’s view of the P and I clause: it must mean more than the majority in Slaughterhouse says (it cannot
just guarantee right to petition legis, because that already exists), but Amar says it does not go so far as
banning redistribution. Amar relies on the Bill of Rights and structural arguments for his middle ground.

The Court can’t use P and I after Slaughterhouse, so it moves to Substantive Due Process, and this brings
us to Lochner.

Name of the case: Lochner v. New York

Citation inc. year: 198 U.S. 45 (1905)
Author of Opinion: Peckham
Legal Topics: Property Rights
A summary of the material facts:
 NY law to regulate maximum hours for bakers: “no employee shall be required, permitted or suffered
to work in a [bakery] more than sixty hours in any one week, or more than ten hours in any one day,
unless for the purpose of making a shorter work day on the last day of the week”
 Lochner convicted of employing baker in excess of 60 hours
The holding(s):
 H for Lochner: State can only interfere with liberty of contract in exercising police power to
regulate health, safety, morals. The limit on bakers’ hours is just a labor law meant to affect
 bargaining power w/o bearing on health, safety, or morals; therefore, law violates 14 th
amendment protection of liberty of contract.
The court’s rationale/reasoning:
 Peckham’s Majority Opinion: 5-4 decision strikes down the statute, saying it interferes with liberty
interest right to contract
o “The statue necessarily interferes with the right of contract between the employer and
employees”  right to make a contract in relation to his business is part of the liberty of the
individual protected by the 14th amendment
o State has right to restrict contracts under police power to regulate safety, health, morals, and
general welfare of the public (paternalistic/moralistic legislation okay – not fully libertarian
with respect to freedom of contract)
o Question for court: Is the legislation within the police power of the State?
o This is just a labor law  meant to equalize bargaining power, regulate employer-employee
regulations  safety, health, morals not at stake
 Harlan dissent:
o There may be a safety issue here health of bakery workers
o Might have been partly about getting more money for bakers, but safety also at stake
o Buys framework, but willing to be more deferential (burden of proof on those asserting law
unconstitutional)
 Holmes dissent:
o Supreme deference to legislature  right of majority to embody their opinions in law
o 14th amendment doesn’t enact Mr. Herbert Spencer’s Social Statics
o Legis can do whatever want, as long as doesn’t “infringe fundamental principles as they have
been understood by the traditions of our people and our law”, which in the instant case does
not.  Sounds good now, but later on, Holmes never says what he thinks the 14 th Amendment
does do.
Significance:
 During Lochner era, Court struck down dozens of laws that intervened in the economy
 Intellectual context of laissez faire economics and social Darwinism
 Muller v. Oregon (1908)
o SCt ok’d law limiting the workday of women in factories and laundries to ten hours
o Brandeis brief  113-pages showing that women’s different physical structure and child-
bearing role justified use of police power (health, safety, morals) to regulate their hours
Notes:
1. Transformation and Federalization of Constitutional Law
Pre-Lochner, general constitutional law was limited to vested rights doctrine, protecting only “vested
rights” from legis action:
Assumed basic legitimacy of given legal regime (legislature’s police, taxing and eminent
domain powers were broad)…
EXCEPT vested rights were protected (protected individuals against retroactive
impairment of rights acquired under the regime, per Fletcher)
Then, Lochner signals newly restricted view of police power.
 The Court became a check on the legis to ensure the ostensible use of police
power to invade private rights was truly a legitimate use of that power (public safety,
health, welfare). Look at true legis purpose.
Ct wanted to ensure that any limits on individual autonomy were truly for a legitimate
public purpose, and not “special interests” using coercive power of legislature on
their own behalf
2. The Meaning of “Liberty, “Property”, and “Power”
  Concept of “Liberty” expands, becoming the right to purchase or sell labor, and to make any
contract in lawful ways.
 Even if liberty and property are read expansively as protecting right to buy and sell labor, how
should we read “process” requirements of “due process of law”? What “process” is insufficient
in LOCHNER – the legis process in passing maximum hrs reg? The judicial process by which
Lochner was convicted? Amar: Such is the problem with substantive due process.
3. The Scope of Police Power: Permissible and Impermissible Objectives
Proper limits of police powers are per Professor Tiedeman (1886) “to compel every one to so use his
own property and conduct himself as not to injure his neighbor or infringe upon his rights” p345
OR per Coppage v. Kansas (1915) “fairly deemed necessary to secure some object directly
affecting the public welfare, even though enjoyment of private rights of liberty and property may
be incidentally hampered.” p346.
Must be a limit to police powers; Cannot allow any indiv right to be infringed under ostensible police
powers, otherwise there are no indiv rights.
4. Burdens of Proof and Questions of Degree
In Lochner, Harlan says that the criterion is that the law must “have a real or substantial relation” to
the public interest and concludes that “there is room for honest difference of opinion” whether
long hours are injurious. Does this not suggest that there is some point at which extreme and
excessive hours worked could be counter to the public interest?
Is it just a question of degree? Are the majority and dissent applying the same standard, but with
different burdens of proof OR with the burden of proof on different parties?
5. Laissez Faire, Lawyers, and Legal Scholarship
early 19th century opponents of rate and labor regulation argued that rights of property were insecure
in the hands of popularly controlled legislatures. Further arguments for private property and
inequality:
laissez-faire Adam Smith – market will regulate itself much better than gov’t
Social Darwinists - emphasized natural selection as support for inequalities of wealth
6. Survey of the Court’s Work (1890-1934):
 Due Process – The Supreme Court struck down some 200 statutes, mostly under due
process clause of 14th!
 Police Power: The Supreme Court let stand laws that appeared to protect health, safety and
morals of general public or prevent consumer deception; although particularly onerous regs were
struck down as unreasonable
 in area of labor regs
o upheld limitations on women’s working hours in MULLER v. OREGON
o upheld ten-hour day limit for male factory workers in BUNTING v. OREGON (1917)
o upheld anti-labor union regs in ADAIR v. US (1908) and COPPAGE v. KANSAS
(1915)
o struck down minimum wage law for women in ADKINS v. CHILDREN’S HOSPITAL
(1923) – court distinguished between max. hour laws and minimum wage laws –
former looked like public health regs which were leg, latter viewed as class
legislation

The Modern Era (p. 415-63)

Overview: During the Great Depression, both the feds and the states adopted a series of emergency
measures dramatically expanding government’s role in the economy. At first the Supremes appeared to
acquiesce (see Nebia and Blaisdell), albeit by just one vote. Then, from 1935-1936, the Supreme Court
fought back, striking down 6 regulatory schemes as inappropriate interventions in economic matters (see
Morehead). This frustrated FDR, so he proposed to pack the Court; Justice Roberts then switched sides
(“switch in time that saved nine”) and the Court allowed reams of legislation despite challenges to it
based on federalism, due process and the contracts and takings clauses.

Also note that the 16th Amendment passed in 1913, which was explicitly meant to overturn a terrible
Supreme Court decision saying income taxes were unconstitutional. The Amendment is crucial to
redistribution because you can’t do redistribution very well at the state level—and it gives
documentarians reason to ditch the anti-distribution bent of the Lochner era.

I. SIGNS OF DECLINE OF JUDICIAL INTERVENTION AGAINST ECONOMIC REGULATION

Nebbia v. NY (1934)
During the Lochner era the Court only allowed regulation of “business affected with a public interest”—
all other regulation violated substantive due process. Nebbia begins to reverse course, taking a broad view
of what was business affected with a public interest.
FACTS: New York fixed the price of milk at no less than 9 cents a quart. A storekeeper was convicted of
selling below that price; he challenges the law as a violation of substantive due process (property rights).
HOLDING (J. Roberts for the Court): the law is upheld by a 5-4 vote.
REASONING: the guarantee of due process “demands only that the law shall not be unreasonable,
arbitrary or capricious, and that the means selected shall have a real and substantial relation to the object
sought to be obtained.”
DISSENT: fixing prices is not within a legislature’s power. It deprives a “fundamental right” to “conduct
[your] own affairs honestly and along customary lines.” The milk industry is not an industry affected with
a public interest.

Name of the case: Home Building & Loan Association v. Blaisdell [The Minnesota Mortgage
Moratorium Case]
Citation inc. year: 290 U.S. 398 (1934)
Author of Opinion: C.J. Hughes
Legal Topics: Property Rights
A summary of the material facts:
 1933 Minnesota law: moratorium on foreclosure/debt repayment  extends time for repayment of
mortgages (then structured as long period paying interest followed by balloon payment)
A brief procedural history of the case (posture of the case):
 Home Building & Loan Association claimed law violated the Contracts Clause
The holding(s):
 H for Blaisdell: Minnesota law placing moratorium on foreclosure/debt payment is a legitimate
exercise of police power and does not violate the Contract Clause of the Constitution.
The court’s rationale/reasoning:
 Hughes’s Majority Opinion:
o Time of emergency doesn’t change Constitution
o Limit on Contract Clause: police power of state (public morals, or public health, safety, or
welfare)
o Evolving economy  cites Marshall in McCulloch, “We must never forget this is a
constitution we are expounding – a constitution intended to endure for ages to come, and
consequently, to be adapted to the various crises of human affairs”
o Not favoring borrowers over lenders, if not for gov’t intervention everyone would default and
bankers will lose out
 Amar: game theory prisoners’ dilemma problem for bankers  each one could
maximize by rushing to foreclose, but in the end this causes economic ruin for
 everyone (same is true for bankruptcy laws which helps creditors by divvying up
assets so no gets left out) [underlies prudential argument for Court’s decision]
 Note 1, p. 425: “A law sincerely designed to help creditors as well as debtors is not a
law designed to impermissibly ‘impair’ contractual ‘obligations.’”
o “Whether the legislation is wise or unwise as a matter of policy is a question with which we
are not concerned”
 Sutherland’s Dissenting Opinion:
o Contract Clause “framed and adopted with the specific and studied purpose of preventing
legislation designed to relieve debtors especially in time of financial distress”  cite
constitutional convention, ratification debates, etc.

II. 1935-37: THE COURT SWITCHES

 Court composed of 3 progressives, 4 conservatives, 2 swing; After NEBBIA and BLAISDELL, swing
votes side with conservatives and strike down recovery measures of New Deal
o 3 progressives: Stone, Brandeis, and Cardozo
o Ultraconservative 4 horsemen: Van Devanter, McReynolds, Sutherland, and Butler
o Swing members: Chief Justice Hughes, Roberts
 FDR re-election in November 1936, proposed court-packing plan in February 1937
 While MOREHEAD v. TIPALDO (1936) invalidated NY minimum wage law for women, West Coast
Hotel Co. v. Parrish, 300 U.S. 379 (1937), Chief Justice Hughes wrote majority opinion
o SCt ok’d law establishing Washington minimum wage law for women  acknowledged
legitimacy of state legislature considering sociological and economic data  “Even if the
wisdom of the policy be regarded as debatable and its effects uncertain, still the legislature is
entitled to its judgment”
 Evidence Justice Roberts voted with majority in West Coast Hotel before announcement of court-
packing plan, but his switch to new pro-New Deal majority considered “the switch in time that saved
nine”

III. THE MODERN DOCTRINE OF ECONOMIC DUE PROCESS

Name of the case: U.S. v. Carolene Products Co.

Citation inc. year: 304 U.S. 144 (1938)
Author of Opinion: Justice Stone
Legal Topics: Property Rights/Judicial Review
Historical Context:
 FDR has threatened to pack court after big victory in 1936
A summary of the material facts:
 1923 “Filled Milk Act” of Congress prohibited shipment in interstate commerce of skimmed milk
compounded with any fat or oil other than milk fat
A brief statement of the legal questions presented:
 Does the Filled Milk Act (1) exceed Congress’s authority to regulate interstate commerce ; (2)
infringe the 5th Amendment?
The holding(s):
 H for U.S.: Prohibition by Congress of shipment in interstate commerce of skimmed milk
compounded with any fat or oil other than milk fact is a rational exercise of Congressional
power authorized by interstate commerce clause and does not violate the 5 th amendment.
The court’s rationale/reasoning:
 Stone’s Majority Opinion:
o Congress has power to regulate shipment of adulterated foods in interstate commerce
 o Prohibition of shipment of appellee’s product doesn’t violate 5 th amendment
o II: Describes legislative record in support of reasonableness of legislation (evidence of health
and safety rationale for regulation)
o III: II not necessary  “the existence of facts supporting the legislative judgment is to be
presumed, for regulatory legislation affecting ordinary commercial transactions is not to be
pronounced unconstitutional unless in the light of the facts made known or generally assumed
it is of such a character as to preclude the assumption that it rests upon some rational basis
within the knowledge and experience of the legislators”
o Footnote 4 (p. 430): Narrower scope for operation of the presumption of constitutionality:
 (1) where Constitution speaks clearly (such as first ten amendments)
 (2) where legislation restricts political process {e.g., legislative entrenchment}
 (3) where prejudice against discrete and insular minorities (see Ely, Democracy and
Distrust)
 Balkin analysis [particularly relevant to footnote elements (2) & (3)]:
judiciary “intervenes in those and only those abnormal cases in which the
democratic ideals that justify judicial deference have been disserved.”
Significance:
 When it comes to ordinary social/economic legislation, we are getting out of that business; we will
defer to legislature
 Similar signals of Court’s new openness to economic intervention: Jones v. Laughlin (1937), Darby
(1941) [Fair Labor Standards Act of 1938, max. hrs. and min. wage for men], Wickard
 John Ely’s whole project is explicating scope of Footnote 4  theory of judicial review, not a theory
of constitution
o Doesn’t tell you if you are a conscientious Congressperson how to behave
 Default rule for general social and economic legislation is deference to legislature
Notes:
 Professor Geoffrey Miller argues that scientific case for the law was bogus and that it really reflected
a political victory for the dairy lobby  but democratic political process is about competing interests
(footnote creates limits)

Name of the case: Williamson v. Lee Optical

Citation inc. year: 348 U.S. 483 (1955)
Author of Opinion: Justice Douglas
Legal Topics: Property Rights
A summary of the material facts:
 Oklahoma law requiring opthamologist or optometrist prescription to fit or duplicate lenses, strictly
regulating sale of lenses and eye glasses
A brief procedural history of the case (posture of the case):
 3-judge court held law unconstitutional: violative of due process and equal protection
The holding(s):
 H for Williamson: Oklahoma law strictly regulating sale of lenses and eye glasses a rational
exercise of the states regulatory power not in violation of the due process of equal protection
clauses of the 14th amendment.
The court’s rationale/reasoning:
 Douglas Majority Opinion: Minimal scrutiny for economic law
o Not going to inquire into soundness of economic policies (even if one group favored over
another)
o “But the law need not be in every respect logically consistent with its aims to be
constitutional. It is enough that there is an evil at hand for correction, and that it might be
thought that the particular legislative measure was a rational way to correct it…”
 o Can’t say law has no rational relation to objective of raising treatment of the human eye to a
strictly professional level
Significance:
 Applied test of rationality to both due process (restriction on liberty of contract) and equal protection
(favoring one group over another) claims in economic regulation context
Notes:
 Problem w/standard of irrationality
o Any law can tautologically be defined as rational w/some set of explanations
o Only way this makes sense if you identify certain justifications as unacceptable
 Ely: tiers of scrutiny designed to help ferret out racial unconstitutional motivation 
real question is “what are you looking for?” (see Footnote 4: clear violation of
Constitutional command, in-group entrenchment, discrimination against insular
minorities)
 Amar: difference between rights obscured by doctrinal language of tiers, scrutiny, etc.
 real issue is “What are you looking for? What is the constitutional wrong if there
is one?”
 What makes Black Codes paradigmatic violation of 14th amendment?
o Amar: creates tiers of citizenship based on birth-status (could look at it through lens of titles
of nobility  creating underclass and class of overlords)
 Courts typically treat actual purposes behind economic legislation as largely irrelevant to
constitutionality so long as some hypothetical purpose satisfies requirements of minimum rationality.
o But what happens if legislature was misled or hoodwinked? See Brennan dissent in US RR
Retirement Board v. Fritz (1980) (BLBA,p.440). Rehnquist responds that if the Court struck
down all laws in which the legis wasn’t sure what it was doing, “very few laws… would
survive.” He said the Court has historically assumed that “Congress intended what it enacted.

5th Amendment Just Compensation Clause (for more detail see 2002 Con Law outline)
Jed Rubenfeld, Usings, 102 Yale L.J. 1081-94 (1993) (BLBA pp.446-61)
Key question: What, exactly, constitutes a taking?
o Settled application is requirement that government must pay for property it seizes through an
exercise of eminent domain
o Pumpelly v. Green Bay Co. (1871): Supreme Court held that flooding of plaintiff’s land
by state canal project constituted a taking requiring compensation  physical-invasion
rule
o Mugler v. Kansas (1887): Supreme Court rejected claim under the just compensation
clause from brewery owner based on state law prohibiting manufacture or sale of alcohol
 regulation preventing injurious use affected no taking [harm principle]
o Pennsylvania Coal Co. v. Mahon (1922): Supreme Court struck down Kohler Act which
prohibited mining company from causing subsidence damage to “support estate” it had
sold but for which it had reserved the right to mine beneath  extent of diminution in
value would be considered in determining “taking” (later cases suggest standard of
denying owner economically viable use of land) [economic impact test]
o Doctrinal tension between Mugler (harm/no taking principle) and Pennsylvania Coal (economic
impact too severe/taking principle)
o Rubenfeld offers alternative: government may “take away” without compensation so long
as it does not “take over” (or use)
o Rehnquist Court 
 has tried to reinvigorate takings clause (e.g., requiring compensation for
environmental policy “takings”)
 has also tried to reinvigorate the contracts clause
B: Voting Rights

Representation Within a Republican Polity (B&L 3d edition, 1053-1109 in packet)

SOURCES OF VOTING RIGHTS (being a citizen does not automatically entitle one to vote):
Article IV Sec 4 of Constitution – (Guaranty Clause) Republican form of government.
14th Amendment Section 2– (1868) Reduced proportionately Congressional representation of those states
that denied the vote to any male inhabitants of a state being 21 and citizens except for participation in
rebellion or other crime. Literacy tests are prohibited.
15th Amendment – (1870) Bars states from denying the right to vote of any citizen on account of race,
color or previous condition of servitude.
19th Amendment – (1920) Prohibits denying the vote on account of sex.
24th Amendment – (1964) Prohibits states from imposing poll taxes as a condition for voting in elections
for federal offices.
26th Amendment – (1971) The right of citizens to vote who are 18 or older.

Recall that the framers went out of their way to say the equal protection clause is not about voting;
however, this is the main basis in the cases below for granting such rights (not privileges and immunities)

Three Levels of Voting Rights

Level 1: Do you get to vote at all?
Level 2: You get to vote, but how do your votes add up?
Level 3: What is the shape of the districts?

Level 1: Do you get to vote at all?

Name of the case: Harper v. Virginia Board of Elections (3rd ed. p. 1054)
Citation inc. year: 383 U.S. 663 (1966)
Author of Opinion: J. Douglas
Legal Topics: Voting Rights
A summary of the material facts:
 VA levied $1.50 annual poll tax on all persons over 21, enforced by disenfranchising those who did
not pay  proceeds financed public school system and other local government functions
A brief procedural history of the case (posture of the case):
 3-judge district court dismissed complaint, Supreme Court reversed
The holding(s):
 H for P: Court holds that the poll tax constitutes “invidious discrimination” that violates the
equal protection clause of the 14th amendment by discriminating on the basis of wealth with
regard to foundational right.
The court’s rationale/reasoning:
 Douglas Majority Opinion:
o A state violates the Equal Protection clause whenever it makes the affluence of the voter or
payment of any fee an electoral standard.
o Voting is foundational  The foundational nature differentiates it from licenses where
everyone pays a fee.
 Amar: Voting is preservative of the whole system of rights (Carolene Products
Footnote 4 idea)
 o “Wealth, like race, creed, or color, is not germane to one’s ability to participate intelligently in
the electoral process. Lines drawn on the basis of wealth or property, like those of race are
traditionally disfavored.”
 Black dissent:
o history supports a poll tax, the 14th and Equal Protection Clause do not apply here since the
tax is rational – to collect revenue and promote responsible voting. We may hate the tax, but
we cannot invent the law. Back to Lochner all over again.
 Harlan dissent  “Property qualifications and poll taxes have been a traditional part of our political
structure.”
Significance:
 Need to carefully scrutinize voting rights
 Amar:
o But this poll tax is perfectly rational  raises revenue and don’t mind keeping some people
from polls
o Problem w/invoking 14th amendment  14th amendment wasn’t about voting rights/political
rights; it was about civil rights (Black people voting on equal terms in only four Northern
states at the time)
o Problem w/invoking equal protection: Privileges or immunities applies to citizens (meaning
read out by Slaughterhouse), due process and equal protection apply to persons (including
non-citizens)
o Can’t use Article IV guarantee of republican government  precedents rendered it non-
justiciable
o Could have made 15th amendment argument  disproportionate impact {but perhaps
disproportionate impact not enough}/intended to disenfranchise Black people (a point found
in the VA legislative record)
 Twenty-Fourth Amendment  applied to federal elections; in enforcing 24th, Congress authorized AG
to bring challenges to poll taxes in 1965 Voting Rights Act
 Best response to Black and Harlan historical arguments  14th amendment offered different vision of
Article IV republican government
o Amar: Constitutionality of judicial enforcement of republican government
 Structural argument: fixing distribution of wealth by limiting franchise
 Textual argument: 14th enforcement clause, 15th enforcement clause > Adoption of
14th amendment changes meaning of Article IV republican gov’t clause (dynamic
reading/escalator clause similar to word “unusual” in phrase “cruel and unusual”)
 Amar: Justification for 14th amendment (non-participation of Southern states in 2/3 vote of Congress
to propose Amendment) relies on dynamic reading of Article IV (Constitution must be viewed as an
ordainment, a doing  can’t claim to be bound by text w/o accepting process by which it came into
being)

Carrington v. Rash, 380 US 89 (1965) (3rd ed. Ch. 10, p1060)

 Facts: Texas had a constitutional provision not allowing those in the military who moved there during
military duty to vote.
 Stewart Holding: Provision is struck down. 
o A state cannot deprive bona fide residents of the right to vote because of a fear of their
political views.
o “State may not casually deprive a class of individuals of the vote because of some
administrative benefit… By forbidding a soldier ever to controvert the presumption of non-
residence, the Texas Constitution imposes an invidious discrimination in violation of the 14 th
amendment.”
 Harlan dissent: 14th not relevant to voting + Texas provision rational

Name of the case: Kramer v. Union Free School District (3rd ed. Ch. 10, p1060)
Citation inc. year: 395 U.S. 621 (1969)
Author of Opinion: Chief Justice Warren (last day of his time on bench)
Legal Topics: Voting Rights
A summary of the material facts:
 Under NY state law [Sec 2012 of the NY Educational Act], residents otherwise able to vote in state
and federal elections could only vote in NY school district elections if:
o (1) owner or lessee of taxable real property located in the district;
o (2) spouse of one who owns or leases qualifying property;
o (3) parent or guardian of a child enrolled for a specified time during the preceding year in a
local school district
 A 31-year-old stockbroker who lives with his parents who could vote in all other elections sued.
Holding (Warren): Law is struck down as a violation of the Equal Protection Clause
The court’s rationale/reasoning:
 Warren’s Majority Opinion:
o The Court says it must give “close and exacting scrutiny” to any legal discrimination as to
who may participate in political affairs. Relies on Harper to justify this scrutiny, as opposed
to the “rational basis” test
o Right to vote in election of body which decides qualifications (state legislature) doesn’t
matter for assessing fairness of denial of vote in other body
 Dissenters (Stewart, joined by Black and Harlan):
o If you don’t like policy, can throw out (by not electing) state legislator who approves the
school district rules. (Amar sympathetic to this view)
o Everyone can still vote in the foundational elections—school board is different, and the
policy of exclusion is entirely rational.
Significance:
 Amar:
o Weaknesses in applying Harper - 1) this is an exclusion based on including only those with a
specific interest in the composition of the school board; 2) these elections are not as
fundamental as those for legislature—not foundational
o In applying strict scrutiny, the Court says that the law isn’t carefully tailored because
interested tax-paying parties like the Plaintiff don’t get to vote, while some uninterested ones,
like an unemployed non-tax paying young man who rents in the district, can.
o Best argument – By allowing vote among non-parents only for property owners/leaseholders
 impermissible wealth classification under Harper

Other issues in voting:

Duration of residency-
 Dunn v Blumstein, 1972: held that the equal protection clause limits state authority to impose
durational residence requirements. (30 days was long enough, but later allowed longer periods due to
“demonstrations of special needs”).
Convicted felons –
 O’Brien v. Skinner, 1974 – NY must provide absentee registration and voting for those in jail awaiting
trial or convicted of misdemeanors.
 Richardson v. Ramirez, 1974 – equal protection clause does not prohibit a state from disenfranchising
convicted felons. Sec 2 of 14th disenfranchises convicted felons.
Party affiliation –
 Rosario v. Rockefeller, 1973 – upheld a law which required voters to enroll in the party of their choice
at least 30 days before a general election in order to be eligible to vote in the next party primary.
To prevent party raiding.
Age – 26th Amendment set age at 18 – if old enough to fight you are old enough to vote.
Literacy –
Lassiter v. Northhampton County Board of Education, 1959 – upheld a literacy test. Made moot by
Congress, using its 14th Amendment Section 5 powers, when it declared all literacy tests illegal
(an act held constitutional in Oregon v. Mitchell (1970))

Level 2: You get to vote, but how do your votes add up?

Name of the case: Baker v. Carr (3rd ed. Ch. 10, p1074)
Context: Decided before Harper and Kramer
Citation inc. year: 369 U.S. 186 (1962)
A summary of the material facts:
 Grossly unequally apportioned districts in Tennessee: about 40% of the voters elected 2/3 of the
State’s senators and representatives
 Legislature repeatedly rejected appeals for reapportionment
Holding (Brennan): Complaint’s allegations that TN’s apportionment scheme denies equal
protection under the 14th amendment presents a justiciable constitutional cause of action upon
which appellants are entitled to a trial and a decision
The court’s rationale/reasoning:
 Brennan for Majority: Is the case justiciable? Yes
o Sets out standard for non-justiciable political question cases:
 Textually demonstrable constitutional commitment of the issue to a coordinate
political department
 Lack of judicially discoverable and manageable standards for resolving it
 Impossibility of deciding without an initial policy determination of a kind clearly for
non-judicial discretion
 Impossibility of a court’s undertaking independent resolution without expressing lack
of the respect due coordinate branches of government
 Unusual need for unquestioning adherence to a political decision already made
 Potentiality of embarrassment from multifarious pronouncements by various
departments on one question
o Distinguishes Luther v. Borden
 Issue in Luther v. Borden: π’s right to recover depended upon which of the two
groups was entitled to recognition as government of Rhode Island
 Problem wasn’t that the Article IV republican gov’t Guaranty Clause is non-
justiciable with regard to state governmental organization, but rather that Luther was
a political question case:\
 if choose one over the other, actions of gov’t become invalid (could cause
chaos)
 commitment to Congress of decision as to lawful state government
 action by President recognizing one government as legitimate
 lack of criteria by which court could determine which form of gov’t was
republican
o “The question here is the consistency of state action with the Federal Constitution.”
o Amar: issue in Baker v. Carr: One regime, is it “Republican?
 Douglas Concurrence: Universal equality is not the test (room for weighing of votes, Equal Protection
“goes no further than invidious discrimination.”).
 Clark concurrence:
o Apportionment picture in Tennessee: “a crazy quilt without rational basis”
o Court intervention appropriate because majority has no other way to achieve relief 
decisive fact: no initiative and referendum in Tennessee; Assembly’s approval required for
Constitutional convention
 Frankfurter (joined by Harlan) dissent:
o Judicial restraint  apportionment is a political question
Significance:
 Amar: In Baker the court is trying to revive the Guaranty Clause for future use.
 Standard is not yet “one person, one vote”
 Racial component: over-representation of rural whites vis-à-vis urban African-Americans
 Themes of the Warren Court: (variations of equality)
o 1. reapportionment revolutions (gerrymandering) and voting rights
o 2. race (condemning Jim Crow laws)
o 3. rights of criminal defendants
o 4. incorporating the bill of rights against the states
o 5. broad protection of free expression
o 6. getting prayer out of public schools

Name of the case: Reynolds v. Sims (3rd ed. Ch. 10, p1079)
Citation inc. year: 337 U.S. 533 (1964)
Author of Opinion: C.J. Warren
Legal Topics: Voting Rights
A summary of the material facts:
 In Sims and five companion cases (The Reapportionment Cases), the Court addressed the merits of
various states’ apportionment schemes
Holding (Warren): Equal Protection Clause of 14th amendment requires that seats in both houses of
a bicameral state legislature must be apportioned on a population basis
The court’s rationale/reasoning:
 Warren’s Majority Opinion:
o Baker says these cases are justiciable.
o Judicial focus should be on determining whether there has been any discrimination against
individual citizens which “constitutes an impermissible, impairment of their constitutionally
protected right to vote”
o “Legislators represent people, not trees or acres”
o Sets out “one person, one vote, one value” as standard  equal protection means equal
participation (weight)
o Subdivisions of states not analogous to equal rep. of states in the Senate  never were and
never have been sovereign entities (therefore, U.S. Senate model is impermissible 
counties can’t be equally represented, just larger # of voters per Senator)
 Harlan:
o 14th amendment not intended to apply to voting rights
 Stewart:
o Equal Protection test of apportionment should be “rational basis” + “no systematic
frustration of the will of the majority”
Significance:
 Amar: Perhaps having chosen equal protection for path dependent reasons, “one person, one vote”
sounds better  verbal formulation pushes them in a certain direction
 o Focus on “equal protection” focuses remedy on individual as opposed to systemic protection
of majority/minority rights (i.e., Stewart’s notion of “no systematic frustration of majority
will”)
 Amar: What has to be equal? Total population, total legal population, total citizen population, total
non-incarcerated population, registered voters
 Companion case: Lucas, re: Colorado  Stewart peels off because apportionment approved by
referendum (offers alternative standard of “no systematic frustration of the majority”)
o Court majority may be concerned about risk of minority under-representation in state-wide
referendum
Notes:
Musical Chairs Rule in political science (Dejuvey’s law)  one more person than chairs  long-term
equilibrium: 1 seat: 2 parties, 2 seats: 3 parties, 3 seats: 4 parties
Problem: Unless you police the shape of the districts  gerrymandering can deprive minority of
representation or even deprive majority of representation
60-40 w/60 distributed across districts to get 100% wins
40-60 w/40 distributed across districts to get majority of wins (waste votes of 60 on 95%-5%
wins)
Amar: tension b/w what parties want (narrow margins, but enough to win more districts) and what
incumbents want (huge margins, safe districts)
Some states try to use commissions  question is what goals are driving the commissions

Level 3: What is the shape of the districts?

Whitcomb v. Chavez, 403 U.S. 124 (1971), (3rd ed. Ch. 10, p1094)
 Facts:
o Marion County, Indiana, residents sued to invalidate the multi-member redistricting
scheme because it invidiously diluted the vote of the black and the poor within the
county.
 Procedure:
o The District Court held for the plaintiffs, finding that senators and representatives tended
to come from the better off white areas. Indiana got a stay of the order and held the 1970
election under the old scheme and then in 1971 adopted a new scheme for single-member
districting throughout the state.
 Holding (White): In this case the district court was wrong – the multi-districting was ok in
Marion County.
 Reasoning:
o Multi-member districting is not a per se violation of the Equal Protection clause simply
because the supporters of losing candidates have no legislative seats assigned to them but
they are subject to challenge when the circumstances operate to minimize or cancel out
the voting strength of racial minorities
 Note: White v. Regester (1973): Court invalidated multimember districts in Texas counties
because sufficient evidence to support district court’s finding that the Black and Mexican-
American plaintiffs in the case had not has an equal opportunity “to participate in the political
processes and to elect legislators of their choice”)

Davis v. Bandemer (1986) (3rd ed. Ch. 10, p1100)

 Facts:
o In 1981, the Republicans were in power in the Indiana governorship and in both houses.
Indiana reapportioned its state legislature but the reapportionment was challenged by the
state’s Democrats as being too one sided—this was gerrymandering for political
 advantage, pure and simple. But during the next election, while the Republicans won
more seats than they should have based on voting percentages, it wasn’t the landslide
many had predicted.
 Procedure:
o The District Court invalidated the reapportionment, as there was single, double and triple
districting, it didn’t follow any county lines, etc. Republicans appeal and argue the case
was nonjusticiable and that it did not violate equal protection clause.
 Holding (White):
o Majority: This is a justiciable question and not a political one in that it addresses the
issues of representation. But that’s all 5 justices can agree on.
o Plurality: A plurality of the court, led by White, upheld the reapportionment saying that
even though it favored Republicans it was not sufficiently adverse to call it a denial of
equal protection.
 Reasoning:
o Just because the party in power gerrymanders districts in their favor does not mean the
scheme violates Equal Protection clause.
o “An equal protection violation may be found only where the electoral system
substantially disadvantages certain voters in their opportunity to influence the political
process effectively”
o “Such a finding of unconstitutionality must be supported by evidence of continued
frustration of the will of a majority of the voters or effective denial to a minority of voters
of a fair chance to influence the political process”
 You need both discriminatory intent (which was obvious here), but also an
“actual discriminatory effect,” which was unclear in this case. You can’t rely on a
single election to prove unconstitutional discrimination.

Gerrymandering: an incumbent political party designs legislative districts to maximize the number of
seats it can win in a general election.

Section 2 of the 14th Amendment

 Doesn’t guarantee right to vote, but says representation will be based on portion of population
voting
o If not, Southern whites would have had more political clout (3/5  5/5, African-
Americans still disenfranchised)
o Proportionate reduction feature never applied
 However, states are allowed to deny vote to people convicted of participating in the rebellion or
other felonies (would be different if felony rule manipulated to have disparate impact)

Felons
 Incarcerated people are counted in the census based on where they are warehoused (in NY state,
this results in overrepresentation of update vs. city)  overseers (corrections officers) get
disproportionate representation based on prisoners (parallels to 3/5 compromise)
 Biggest variation in voting between states  some states let felons vote, some don’t (Thomas
argument in U.S. v. Thornton that by nationalizing qualifications for Congress, felons unable to
vote under state law may be able to run for Congress)
C: Slavery and Race
Slavery
Amar’s intro notes:
● The Constitution is a pro-slavery document. Article 1 gives slavemasters 3/5 extra votes and says you
can prohibit any other kind of interstate commerce except slavery until 1808; Article 2 embeds the 3/5
bias into the electoral college, which allowed all of the first early presidents to be white slaveholding
Virginians; Article 4’s fugitive slave clause; judges picked by the president, so they’re tainted (which may
explain why the early judges were even more pro-slavery than the document itself); Article 5 says the
only thing that cannot be amended in the document is the 1808 slave trade law delay. (Amar admires
Frederick Douglas’s attempt to cast the 3/5 compromise as anti-slavery, but says it doesn’t hold under
even bare scrutiny)
● Slavery as an individual right was protected by judges for a long time.
● The Supreme Court protected slavery far more than did the text of the Constitution.
● Amar thinks that the S.Ct. is today in some ways reverting to this troubling period of history.

Groves v. Slaughter (1841)

Holding avoids the central question by focusing on technicality. Q: Is the slave trade interstate
commerce; thus subject to federal regulation, or is it strictly a state matter?
FACTS: Challenge to provision of Miss. State Constitution which forbade importing slaves into the state
for sale there, as unconstitutional restriction of interstate commerce. Miss was a slave state and provision
sought to prevent its own slave trade from competition.
HOLDING (THOMPSON): Upheld challenge on the grounds that Miss Constitution required enabling
legislation, which had not been passed. (Avoided the constitutional question).
CONCURRENCE (MCLEAN): Slaves are not an item of commerce but persons under the Constitution.
Therefore, States have power over slavery and the slave trade, including the transfer and sale of
slaves. Unconstitutional b/c not covered by Commerce Clause.
CONCURRENCE (TANEY): Agrees w/ McLean.
CONCURRENCE (BALDWIN): Since slaves are commerce, a state could not ban the trade within its borders
because it would affect interstate commerce, which is the exclusive domain of the feds. A state can,
however, abolish slavery, but it cannot allow slavery and then prohibit the slave trade. Cites Article 4(2)
of the privileges and immunities clause: if trade is lawful for Mississippi citizens it can’t be denied to
citizens of other states inside Miss borders.

Prigg v. PA (1842)
States cannot place any barriers on slaveowners’ ability to recapture their fugitive slaves from free
states.
FACTS: Fugitive Slave Act of 1793 authorized owner to seize a fugitive slave and bring him/her to a
federal judge or state magistrate, who would issue certificate upon satisfactory proof that the captured
person was the owner/agent’s runaway slave. Prigg, Bemis, and others captured Margaret Morgan and her
children in PA (Morgan had married a free black and the whole family had moved to PA). Prigg et al then
crossed the state line to Maryland by night—without bringing the “fugitives” to a PA judge. The Governor
of Maryland at first refused to surrender the guilty parties to PA authorities but finally agreed. Prigg was
then convicted under PA statute designed to prevent self-help (i.e. kidnapping) in the return of fugitive
slaves.
HOLDING (STORY): Reversed ruling of PA court; PA statute preventing self-help violated Art. IV, §2’s
fugitive slave clause.
REASONING: Art. IV, §2: No person held to service or labor in one state shall be allowed to escape into
another; …must be delivered up to state having jurisdiction over crime. The Court says this clause
prohibits state law that interrupts or limits the right of owner to immediate possession of slaves. States
have police power to arrest, restrain, remove runaway slaves, but may not interfere with right of owner to
reclaim, derived from Art. IV, §2 and remedies prescribed by Congress under FS Act. Makes Supremacy
argument that Art. IV, §2 and Fugitive Slave Act supersede any state legislation that conflicts (the conflict
in this case is “additional regulations”). Also makes a practical argument that no Southern state would
have agreed to such a construction at the founding, so this can’t be the intent.
CONCURRENCE (TANEY): Disagrees with majority view that states cannot aid a master in recovering
slaves. FS Act depends on State legislative support.
DISSENT (MCLEAN): Owner has no right to remove fugitive slave from state. Required by Act to take
slave to federal judiciary. Under PA law, rights of the master are not impaired, but mode of asserting
them is modified. If slave states can presume blacks are slaves, non-slave states can presume every
person is free unless shown otherwise. Majority’s holding leaves no check on “master” or someone
asserting a person is slave.
CLASS NOTES:
 Art. IV says that a state can’t free a fugitive slave. But the question is, is indeed this person a
fugitive slave? Need to go before magistrate to determine.
 Amar says Congress doesn’t have the power to create a slave enforcement mechanism. Art. IV
doesn’t say Congress has the power to enforce the fugitive clause (while in the same article in the
full faith and credit clause it does say Congress shall have the power to enforce). And Art. IV, §2
says NO STATE SHALL—about what states can and can’t do, not what the feds can do.
Structurally Article 4 is about State-State relations. Without this, the law of the State would be
the law of the nation.
 The Court’s hypocrisy: there’s no explicit power granted to the feds to regulate fugitive slaves,
yet this is allowed. But after the 14th Amendment, which does include explicit and sweeping
grants of federal power, the Court reins Congress in and limits what it can do.

From Prigg to Dred Scott:

Because of Prigg, Congress passed further laws in regard to fugitive slaves. The Fugitive Slave Act of
1850 creates more federal commissioners in the north to hear cases involving fugitive slaves. They are
paid on a case by case basis: $10 if they find for the slaveowner, $5 if they find for the slave. The alleged
fugitive slave cannot testify in his own defense. This, to Amar, is what procedural due process is all
about. And this is why some state courts declared the Fugitive Slave Act of 1850 unconstitutional, finding
that it violated the US constitution’s 5th Amendment due process. In an 1858 appeal, the Taney Court finds
no violation of due process.

Dred Scott v. Sandford (1857)

Blacks cannot be U.S. citizens. Slaves cannot be made U.S. citizens by moving to free states. The
Missouri Compromise, which declared slavery prohibited in LA territory N of 36/30,
unconstitutionally violates substantive due process of the 5th Amendment.
BACKGROUND: Antagonism between North and South increased after Prigg. 1854: Missouri Compromise
repealed by Kansas-Nebraska Act. Settlers could determine whether their states would be slave or free:
Kansas chose slavery; Nebraska chose to be free.
FACTS: Dr. Emerson, an army surgeon moved around w/ his slave, including to free territories. Dred
Scott says he and his family are free citizens as a result. Diversity – citizen of one jurisdiction suing
another, but first need to address whether Scott has citizenship at all. Can a black man descended from
slaves become a citizen with all the rights, privileges, and immunities of citizenship?
HOLDING (TANEY): Blacks could not be citizens, no matter where they moved.
REASONING: Claims to be originalist, but is not. 1. Blacks are different from Indians, who were a free
and independent people, like a foreign government, acknowledged as such under Constitution. 2.
Original intent: “People of US” = “citizens of US.” Blacks not regarded as citizens; not given privileges
or rights of others. 3. Difference between State and national citizenship. A black man may be a citizen
of the State with all of the rights and privileges of a citizen of that State and yet not be entitled to the
rights and privileges of a citizen in any other State. Naturalization laws - no state can introduce a new
member into the political community created by the U.S. Constitution. 4. History: Blacks were not
intended to be included, for that would have been inconsistent with slavery. Naturalization law provides
right of becoming citizen to “free white persons”; first militia law was for “free able bodied white male
citizens”; Act of 1813: Can’t employ upon US ships any person except citizen of US or persons of color,
natives of the United States; And the only two provisions in Constitution that mention blacks treat them
as property. (These are all impeachable on grounds that if “citizen” or “person” implies “white” there’s
no need to further specify…but they do). 5. Practical problem w/ practical enforcement of slave regime
when a free black citizen enters slave state and is entitled to full rights & privileges. 6. Strict
constructionism: “No one, we presume, supposes that any change in public opinion or feeling, in relation
to this unfortunate race…should induce the Court to give the words of the Const a more liberal
construction.” Blacks are not part of we the people.
DISSENT (CURTIS): Though they’ve been barred from particular rights, blacks can be citizens, and some
were at the founding, so framers knew this was a possibility. “Every free person born on the soil of a
State, who is a citizen of that State by force of its Constitution or laws, is also a citizen of US.” Not
true that every citizen must have all privileges and franchises, lots of citizens can’t vote or hold office
because of age, sex, want of legal qualifications. Citizenship is not dependant on political or even civil
rights. States determine who votes. Naturalization legislation bars black citizenship but language leaves
open the fact that they may be.

OTHER NOTES:
 Taney thought Dred Scott would solve slavery issue, but it instead became nation’s symbol of
irreconcilable division between N and S.
 Besides central holding that court had no jurisdiction because blacks could not be citizens, the
Court held unconstitutional the MO compromise, which had declared slavery prohibited in LA
territory N of 36/30, except MO. Reasoning was substantive due process of the 5th Amendment
and deprivation of property (i.e. slaves) merely by bringing it into territory. But the due process
is passing of a public law.
 This is only the second time an act of Congress is held unconstitutional (since Marbury).

Race Discrimination After the Civil War: 1866-1934

Reconstruction Amendments
In 1865, the 13th Amendment abolished slavery. But the Black Codes, adopted by many southern states,
prevented southern blacks from realizing basic rights. These included laws with unequal penalties for
blacks, or specifying offenses for blacks only; examples: keeping guns or selling liquor, capital offense to
rape a white woman, vagrancy laws, etc.
39th Congress played major role in guaranteeing rights to freed blacks.
The 14th Amendment designed to overrule or modify at least two cases:
 Modifies Baron, saying that rights don’t apply to states
 Overrules Dred Scott, saying that blacks are citizens
Ratification of 14th A done with Prigg and McCulloch in mind. 1st sentence of 14th A gives strong case for
broad Congressional legislation to protect civil rights of blacks, women etc. Supreme Ct. upheld broad
Congressional power in Prigg to defend slavery. But much more narrow reading of Congressional power
in civil rights cases  changing rules of interpretation.
 Article 14, §1, is more substantive than Art. 4, no state shall make laws that make or abridge civil
rights of citizens—and the EP clause would kick in here too.
Civil Rights Act of 1866 - Key phrase was the “civil rights formula”: “prohibition of discrimination in
civil rights or immunities among the inhabitants of any State or Territory of the United States on account
of race, color, or previous condition of slavery or involuntary servitude….”

Fourteenth Amendment
It was NOT about voting rights; it’s about civil rights.
Two proposed amendments mandating color blindness (for example, proposal by T. Stevens: “All national
and State laws shall be equally applicable to every citizen and no discrimination shall be made on account
of race and color”) were explicitly rejected.
Can we then interpret 14th A as mandating color blindness (thus standing in opposition to affirmative
action) if this was explicitly rejected by its drafters? Or should we see this as irrelevant?
Unusual procedural history: Welcome back confederate states to Congress only if they ratified 13 th
Amendment. December 1865, Republican majorities in 39th Congress exercised power under Article I, §5
to judge qualifications of its own members and to exclude the reps from the South. Feared that Democrats
would block any further amendment or even ordinary laws. So 14 th Amendment was proposed and passed
by a “rump” Congress, without excluded Southern members. Without S. representatives, Congress passed
Reconstruction acts, putting South under control of military. Congress supervised conventions to create
new State governments. Representatives from South only allowed back into Congress if their state
ratified 14th Amendment and only if amendment gained support of ¾ of States.

Amar on the Fourteenth Amendment

Two big clauses:
1. privileges and immunities guaranteed to all citizens (court hasn’t paid much attention to this)
2. due process of laws guaranteed to all citizens.
If the privileges and immunities clause includes, speech, press, etc. why add due process clause? Because
due process is a right of all persons, not only citizens.
14th Amendment and Article 4: Under Article 4, you get the same rights—the same privileges and
immunities—of the citizens of other states when you are in that state. Article 4 is best read to say the
equality of civil rights (to sue and be sued, speak, assemble, have guns) for out-of-staters must be on the
same terms as in-state residents. Therefore it is easy to see why courts thought that 14 th Amendment was
about civil rights not political rights (ie. voting). However, Article 14, §1, is more substantive than Art. 4,
in that it says no state shall make laws that make or abridge civil rights of citizens.

§2 of the 14th Amendment said that if you deny the vote to any male inhabitants over 21 years old,
representation in Congress will be reduced. First time male is mentioned in the document—the whole
purpose was to make sure that states with lots of women didn’t get screwed. But the Court looked away
and did not ensure that blacks voted under 14th Amendment. That is why we needed the 15th.
Today - 14th Amendment and §1 in particular, are seen to be about due process and the right to vote, §2
has disappeared.
Note how the language of the 13th, 14th and 15th Amendments parallels the language from other
amendments and clauses, and borrows concepts about federal power from McCulloch and Prigg.
(no state shall…, due process…, privileges and immunities…, appropriate… etc.).

Strauder v. West Virginia (1880)

Formally excluding blacks from juries is unconstitutional under equal protection of 14 th A, which
shall be construed liberally. (But whose rights are being violated, the defendant’s or the rejected
jurors?)
FACTS: Strauder was convicted of murder by a jury from which blacks were excluded by state statute.
HOLDING (STRONG): Exclusion of blacks from jury denied Strauder’s rights to equal legal protection
under 14th A.
REASONING: Doesn’t quite work. Talks about right of excluded jurors to serve on jury, although decision
is about ∆s rights. Singling out blacks for exclusion is “practically a brand upon them”  impedes equal
justice of ∆ under law.
DISSENT (FIELD): Equal protection includes only civil, not political rights. Otherwise, women, children,
aged, aliens would have right to serve on juries by virtue of right to equal protection.
NOTES: Why the opinion doesn’t quite work:
1. If we do not assume that blacks and whites are fundamentally dissimilar in their outlook, then where is
the equal protection problem? Don’t blacks have the same rights as whites (to an all-white jury)?
2. If exclusion from juries were really about equal protection, women, children, aliens would be able to
serve on juries. 14th A, as drafted, did not include political rights.
Better option: formulate a 13th Amendment violation, involving Congress’s power to enforce under §2’s
“brand of servitude.”
Amar’s best option – 15th A argument that serving on jury is like voting – a political right. Juries vote and
the Amendment just says vote (not just vote for a legislature). State constitutions provide that anyone
who votes is in jury pool. Voting is a metaphor for political rights more generally
1875 statute – cannot have race discrimination in juries. Same language of the 15 th A.
No citizen shall be disqualified for service on jury “by the US or any State on account of race, color, or
previous condition of servitude.”

Minor v. Happesett (1874)

14th A does not give women right to vote.
Holding: CJ Waite.
Reasoning: Citizens not necessarily voters – historically, textually, and according to legislative intent of
14th A. Such a reading would make 15th A irrelevant. Congress wouldn’t have left it to implication to
change women’s voting status.

The Civil Rights Cases (1883)

Strikes down the Civil Rights Act of 1875, which banned segregation, as an improper use of power
under the 13th or 14th Amendments.
FACTS: The Civil Rights Act 1875, §1: All persons within the jurisdiction of the United States shall be
entitled to the full and equal enjoyment of the accommodations, advantages, facilities, and privileges of
inns, public conveyances on land or water, theatres, and other places of public amusement, subject only to
the conditions and limitations established by law and applicable alike to citizens of every race and color,
regardless of any previous condition of servitude.
Consolidation of several cases arising out of exclusion of blacks from inns, theatres, and railroads. ∆
argument that 13th and 14th Amendment did not prohibit race discrimination and did not empower
Congress to legislate against it. States could presumably enact anti-discrimination legislation.
HOLDING (BRADLEY): the Act is struck down.
REASONING: nothing in the 13th or 14th amendment allows such a sweeping act. The 14th can stop States
from passing their own racist legislation, but does not allow a positive action prohibiting private
discrimination inside states (State action v. private action). Congress allowed “corrective legislation.” The
13th A, even read to include prohibition of badges and incidents, does not empower Congress to legislate
“social practices” – only redress “deprivation of which constitutes the essential distinction between
freedom and slavery.”
DISSENT (HARLAN): Substance and spirit of 13th, 14th As sacrificed. Attacks the majority’s limited
reading of Congress’s power to implement 13th, 14th Amendments. Citizenship granted by 14th A may be
protected NOT only by judiciary but also by congress. §1 of 14th A is affirmative – thus the “corrective
legislation” is wrong on both textual and substantive grounds (substantive b/c may be seen as corrective
of past inferiority). Quoting and reminding colleagues of McCulloch (that there are broad congressional
powers that the court will recognize). Harlan insists that Congress may do for human liberty and
fundamental rights what it did w/ the sanction of this court for the protection of masters and slaveowners
in Prigg. Why shall the hands of congress be tied under an EXPRESS power when it was not under
implied powers of fugitive slave laws?

Plessy v Ferguson (1896)

Separate but Equal accommodations do not violate the 13th or 14th Amendments
BACKGROUND: This decision would not have been necessary had the Court not struck down the Civil
Rights Act of 1875 in the Civil Rights Cases.
FACTS: Plessy was an octoroon (1/8 black), tried to sit in coach reserved for whites. Was ejected and
arrested under LA statute that required separate but equal accommodations on railroads & made it a
misdemeanor for a passenger to go into train compartment for opposite race.
HOLDING (BROWN): the LA statute did not violate either 13th or 14th Amendments.
REASONING: The Statute does not conflict with 13th A, since it implies “merely a legal distinction between
white and colored races,” and has no tendency to destroy legal equality of races or reestablish involuntary
servitude. The 14th A did not intend to abolish all distinctions based on color or to enforce social equality.
Thus enforced separation of races doesn’t violate the 14 th A (and separate does not imply inferiority – tf,
no “badge” claim). Distinguishes from Strauder in that the separation of races considered in Plessy is not
a law interfering with political equality (interprets Strauder as concerning the right of jurors not
defendants, and as a political, not civil, right). Implicit argument that you can have symmetricality –
i.e. the law is simply segregation, not discrimination, b/c it applies to both black and white, unlike in
Strauder. Also no taking of property (Π asserts that reputation of whiteness is property), b/c he is
properly assigned as a black man.
DISSENT (HARLAN): When it comes to civil rights, the Constitution is colorblind. No legislative body or
judicial tribunal may have regard to the race of citizens when enforcing the civil rights of those citizens.
True intent and meaning of 13th, 14th and 15th As is to “protect all the civil rights that pertain to freedom
and citizenship.” Origin and purpose of statute is to exclude colored people (not exclusion of whites from
colored cars). REALISM is the strength and weakness of this opinion. How can you prove what you
know as a human being (i.e. what’s really going on)? He also throws in a racist allusion to Chinese, a
“race so different from our own” that we don’t let them become citizens.
CLASS NOTES: Majority says that equal protection clause of 14th A was designed to ensure political not
social equality. If it was designed to ensure political equality, is 15 th A redundant? Rejection of social
equality was extended to permit segregation of education and prohibit intermarriage.
The court says that nothing intrinsic to the seg. law “stamps the colored race with a badge of inferiority.”
Might its distinction between segregation and discrimination rest in part on social meaning of the
separation (ie. separate restrooms for men and women)?

Race: the Modern Era

Brown v. Board of Ed. (1954)
Segregation in public education is inherently unequal and thus violates equal protection clause of
14th Amendment.
BACKGROUND: Cold War imperative in full force. U.S. involved in a life and death struggle with the
USSR, for Asia and Africa. Jim Crow was giving the U.S. a black rep internationally. Domestically, there
had been considerable migration from South to North. An increased number of black politicians or white
politicians who are beholden to black swing vote. Breaking of the color line in baseball. Brown did not
emerge out of thin air. Series of desegregation cases preceded it. This was a deliberate strategy on the
part of NAACP.
FACTS: Four separate cases joined. School children in Topeka Kansas challenged segregation laws
prohibiting them from attending white public school.
HOLDING (WARREN, FOR A UNANIMOUS COURT): Segregation in public education is inherently unequal
and violates equal protection clause of 14th Amendment.
REASONING: The legislative history of 14th A inconclusive. Education of blacks was almost nonexistent,
so it is not surprising that there is little in history relating to the 14 th’s intended effect on public education.
Recent S.Ct. cases relating to segregation in education show that separate and unequal is not permissible.
But case doesn’t turn on comparison of tangible factors in the different schools – look instead to effect of
segregation on public education itself. Education the foundation of good citizenship. Segregation
generates feelings of inferiority. This feeling hard to eliminate, and would retard the educational and
emotional development of blacks. Thus, in public education, “separate but equal” has no place. Separate
educational facilities inherently unequal.
CLASS NOTES: Brown does not overrule Plessy; merely distinguishes it. Limits its findings in Brown
ONLY to public education. They do NOT say that separate is inherent unequal. Amar says that if Brown is
the high mark of the S. Ct., the Court compares pretty poorly to the Constitution. If Brown is right,
Plessy must be wrong, but court refuses to admit its mistake.
The one Justice from the deep South. Hugo Black from Alabama, says that Plessy was unconstitutional,
and the Court should say so. But he couldn’t get Frankfurter and Jackson to admit that they were wrong.
Is “separate but equal” a question of fact? Bork and some others have argued that the 14 th A said only
equal protection of the laws. Could we imagine potential cases where separate is in fact equal? Bork or
Black would say that it may be possible to imagine some forms of racial separation as equal but today this
is not the case. Could argue that segregation could not be separated from its social meaning.
On the ground, after Brown, there is basically no desegregation for at least a decade. Huge backlash in
the South. Moderate politicians became extremists. It wasn’t until southern LBJ signed the civil rights
acts of 1964 and 1965, in the name of the dead martyred president JFK, that real change on the ground
happened.

Loving v Virginia (1967)

Statutes prohibiting inter-racial marriage violate due process and equal protection clauses of 14 th A.
Beginning of the suspect classification doctrine.
BACKGROUND: Why does it take until 1967 for the Court to strike down a law allowing segregation in
marriage? Because this is the biggest taboo you could possibly break. A prudentialist approach. By 1967,
Congress has weighed in on behalf of the Court, MLK has won the peace prize.
FACTS: Mildred Jeter, black, and William Loving, white, both residents of VA, were married in
Washington, D.C. Returned to VA where they were indicted for violating VA’s ban on inter-racial
marriages. VA SCt affirmed their conviction.
HOLDING (WARREN): Statute prohibiting inter-racial marriage violates due process and equal protection
clauses of 14th A.
REASONING: Rejects VA’s claim that equal protection clause only requires the State to punish both races
to the same degree. Rejection of symmetry argument implicit in Plessy. The equal application of a
statute containing racial classifications is not enough to remove classifications from the 14 th A’s
proscription of invidious classifications. Clear purpose of 14 th A is to eliminate official state sources of
invidious racial discrimination. At the very least, racial classifications, especially in criminal statutes,
must be subjected to “most rigid scrutiny.” (Korematsu)(see below). Here, there was no legitimate
overriding purpose independent of invidious racial discrimination which justifies classification. Designed
to maintain White Supremacy – laws designed only to maintain “purity” of white race. No prohibition on
black-Indian intermarriage. Warren says this also deprives of liberty without due process of the law.
Freedom to marry basic civil right.
CLASS NOTES:
Modern origin of “strict scrutiny” doctrine for racial classifications under the equal protection clause:
whether the law is “necessary to the accomplishment of some permissible state objective, independent of
the racial discrimination which it was the object of the 14th A to eliminate.” Today: law in question
must be “narrowly tailored to achieve a compelling government interest.”

Korematsu v. U.S. (1944)

While the Court must subject race classifications to “the most rigid scrutiny,” Japanese detention
camps, given WW2, meet this test.
FACTS: After Pearl Harbor, increased suspicions about Japanese in U.S. Proposals, supported by Earl
Warren, to remove Japanese from homes in Western U.S. General De Witt issued order (after presidential
mandate) stating that all persons of Japanese areas were to be removed from military areas to detention
camps. Korematsu, native born citizen convicted of disobeying order, challenged its constitutionality.
HOLDING (BLACK): Courts must subject all racial classifications to “most rigid scrutiny.” However, the
case at hand withstands test and does not violate equal protection. “Pressing public necessity” can justify
racially based infringements of civil rights (racial antagonism cannot).
REASONING: Not beyond the war power of Congress and Executive to exclude those of Japanese ancestry
from West Coast war areas at the time they did. Given the situation it was not unfounded to judge that
there were disloyal members of population whose number and strength couldn’t be ascertained. Couldn’t
reject military finding that impossible to tell the loyal from the disloyal. Cannot, by “calm perspective of
hindsight,” say these actions unjustified.
Concurrence: Frankfurter. War power of the govt is power to wage war successfully.
Dissent: Roberts. Based solely on ancestry.
Dissent: Murphy. No reasonable relation to “immediate, imminent, impending” public danger supports
this most sweeping deprivation of constitutional rights. Military justified in adopting all reasonable
means necessary  no reliable evidence of disloyalty. Grounds (racial and sociological) not even w/in
realm of military judgment. No evidence or findings that this necessary to control sabotage or espionage.
AND no evidence that it would have been unmanageable to hold loyalty hearings.
Dissent: Jackson. Fundamental assumption of system: guilt is personal and not inheritable.
Constitution does not approve all that military may deem expedient. (Even if permissible as military
procedure, not constitutional.) “A 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.” Fine w/ passive
allowance of military act – just don’t ask for judicial stamp of approval. (Somewhat of a non-justiciable
argument).
CLASS NOTES:
 National immigration quotas are not violations of Constitution, even though most often racially
based. Is the difference in Korematsu that the U.S. government arrested its own citizens?
 Compare to treatment of German-Americans. One response might be that Order under-inclusive
by not including those of German or Italian dissent. (German Americans powerful voting block
at the time).
 If Black could have one case back, it would be Korematsu.
 Amar: more understandable, even if disappointing, given context. 1. Plessy is still the law at this
time. 2. We don’t have a real equal protection doctrine yet, especially in terms of federal
government action (does the 14th A apply?). 3. Most important, we’re in the middle of a war, and
it isn’t clear who is going to win. Navy had just been decimated at Pearl Harbor in a sneak attack
while the governments were officially negotiating a truce. The Supreme Court is anxious that it
would make America vulnerable to another sneak attack.
 Say instead: make the President sign the bill and not some general: force him to get congressional
approval (like Youngstown steel case. By that time, a few years later, Black is pissed about being
lied to and is less inclined to defer to government in wartime).
 Could have said that there must be just compensation of the costs localized on the Japanese.
 First case that says racial discrimination is judged by a strict standard of scrutiny. What triggers
strict scrutiny? Washington v. Davis says either it is racial on its face or government intent to
 discriminate. (The classic example of the latter is Yick Wo. v. Hopkins, 1886, in which a formal
ordinance was about laundries in certain buildings requiring a permit, but in practice, permits
were denied to all Chinese).
 Amar thinks there’s a huge difference between exclusion order and detention order (this is Endo,
which came later). No valid military order that they had to be in these camps. Very much a
hardship, but you can be anywhere but this area on the West Coast.

(Several cases below that we didn’t discuss in class but in the reading)
Hernandez v. Texas (1954)
Exclusion of Hispanics from juries violates the 14th Amendment’s EP clause.
FACTS: Hernandez alleged that persons of Mexican descent were systematically excluded from jury
service, depriving him of equal protection under 14th A.
HOLDING (WARREN): Exclusion of people of Mexican descent from juries violated right of ∆ to jury from
which all members of his class are not systematically excluded, protected by 14 th A.
REASONING: Petitioner doesn’t allege that state statute discriminates based on race, but that those
administering law do. Petitioner succeeded in proving that persons of Mexican descent constituted a
separate class in Jackson County, distinct from whites. The fact that of the six thousand jurors called in
past 25 years, none were of Mexican descent bespeaks discrimination even if not a conscious or explicit
decision.

Palmore v. Sidoti (1984)

Even if it is in the best interests of the child to remain in an all-white family, this cannot be the
reason for taking away custody from a mixed couple.
FACTS Linda and Anthony Sidoti divorced, court awarded custody of daughter to Linda. Anthony
petitioned for modification b/c Linda living with black man (whom she married at time of hearing). Court
awarded custody to Anthony b/c she had chosen “a lifestyle unacceptable to her father and to society.”
Best interest of child would be to stay in all white family.
HOLDING (BURGER, UNANIMOUS): Court’s order is invalidated; child given back to Linda.
REASONING: Outcome would have been different if Linda’s partner were white; the action of Florida court
did not withstand strict scrutiny—based on racial prejudice. “The Constitution cannot control such
prejudices but neither can it tolerate them.”

Griggs v. Duke Power Co (1971)

If an employment practice which operates to exclude blacks cannot be shown to relate to job
performance, the practice is prohibited by Title VII of the Civil Rights Act of 1964.
FACTS: Employer’s policy that job applicants have high school diplomas and take intelligence test. Test
disadvantaged black applicants and criteria not shown to predict job performance.
HOLDING (BURGER, UNANIMOUS): Violation of Civil Rights Act of 1964
REASONING: Even when terms of employment are neutral on their face, and neutral in terms of
intent, “cannot be maintained if they operate to freeze the status quo of prior discriminatory
practices.” Employment procedures or testing mechanisms that have disparate impact on minority groups
and are unrelated to job capability violate Civil Rights Act. Burden is on the employer to show manifest
relationship of requirement to employment in question. Working with Congress in anti-discrimination.

Washington v. Davis (1976)

Court declined to read “disparate impact” standard into 14th Amendment. You have to prove
discriminatory intent or purpose. (Note distinction from Griggs, decided under Civil Rights Act).
FACTS: Black applicants to become police officers in Washington, D.C. were rejected because they failed
a written personnel test. Claimed that test was racially discriminatory in violation of 5 th Amendment. (At
that time Title VII of Civil Rights Act did not cover municipal employees). Appeals court invalidated test
on disparate impact and failure of employers to prove that it related to job performance. Incorporated into
5th and 14th Amendment, along with the SCt’s interpretation of Title VII in Griggs.
HOLDING (WHITE): The police test is upheld: does not trigger strict scrutiny.
REASONING: Under the Constitution, a law is not unconstitutional simply because it has a disproportional
impact. (Griggs test not constitutional test). Disproportionate impact, standing alone, does not trigger
strict scrutiny (although it is relevant). Must demonstrate discriminatory intent.

Batson v. Kentucky (1986)

Clarifies requirements for challenging prosecutor’s use of peremptory challenges to exclude jurors
on racial grounds  rights Swain, which had been too strictly interpreted against ∆.
Background: Swain decision earlier had said that person challenging prosecutor’s use of peremptory
challenges to exclude blacks had to show “systematic policy of purposeful discrimination.”
Facts: Prosecutor peremptorily removed all four black jurors from case involving black man charged w/
burglary. ∆ is convicted by all white jury.
Holding: Powell. Unconstitutional (refining standard).
Reasoning: Swain misapplied. Proof of systematic exclusion raises inference of purposeful
discrimination b/c of the result. May establish a prima facie case of purposeful discrim based solely on
exercise of peremptory at trial. Once ∆ makes prima facie case, burden shifts to state to give neutral
explanation for challenging black juror.
Concurrence: Marshall. Strike peremptory all together. Trial courts shouldn’t be involved in assessing
intent of prosecutor. Prosecutor can always proffer neutral explanation.
Dissent: CJ Burger and Rehnquist. Possible for every peremptory challenge to be objectionable on the
basis of some form of discrimination – race, sex, age, religion, profession, mental capacity, etc. Vague
governing principles for what state has to show – more than neutral explanation but less than showing for
cause.
Dissent: Rehnquist. Makes symmetry argument – same application to jurors of all races.

“Preferential” Treatment for Racial Minorities

City of Richmond v. J.A. Croson Co. (1989)
Unlike Congress, states may only employ race-based classifications only where prima facie case of
constitutional or statutory violation had occurred.
FACTS: Richmond City Council adopted Minority Business Enterprise (MBE) Plan. Required prime
contractors to subcontract at least 30% to MBEs. Goals were remedial and to encourage wider
participation.
HOLDING (O’CONNOR): state and local governments may sometimes use racial preferences to ameliorate
past discrimination, but Richmond plan is a violation of the 14th A’s EP clause.
REASONING: Court takes middle ground. O’Connor says that even though Congress has a constitutional
mandate to identify and redress effects of prior, society-wide discrimination (14th A), this does NOT mean
that States and cities can. The generalized assertion of past discrimination in the industry and generalized
lack of opportunities for black entrepreneurs in the U.S. can’t justify rigid racial quota in Richmond.
Even if plan were linked to remedy prior discrimination, this one is not narrowly tailored.
O’Connor rejects Marshall’s proposal (dissent) that race-conscious classifications designed to
pursue remedial goals be subject to relaxed standard of review. Equal protection requires equal
standard of strict scrutiny to all racial classifications. (But keep this in mind w/ Grutter  does she
really apply this reasoning?). She suggests that blacks are political majority in Richmond, potential to
oppress white minority—just like ordinary race discrimination.
MARSHALL’S DISSENT: Opens up chronological time frame. Richmond VA was capital of Confederacy.
Richmond may be black but nested in VA which is white and which can pass laws that trump Richmond’s,
as can U.S. laws. Note the difference in narrative framing. Constitution doesn’t limit state authority to
confront effects of past discrimination to situations where prima facie case of constitutional or statutory
violation. States may define and attack effects of prior discrimination just as the federal govt does.
CLASS NOTES:
Anti-democratic? Croson rejects theory of judicial review in Carolene Products that said that heightened
scrutiny only applies to legislation that burdens discrete and insular minorities, since others can rely on
democratic processes.
Watch how the justices frame the case: O’Connor says this is Richmond, VA, where blacks rule: so this
is really like white racial oppression against blacks. O’Connor hates affirmative action here, but does she
feel the same about education? Marshall, on the other hand, says: this is Richmond, VA, the cradle of the
confederacy, where oppression has historically been the norm. And if you look beyond Richmond, blacks
are a considerable minority (a broader geographic frame).

Adarand Constructors v. Pena (1995)

The Court adopts a single standard of review: Strict scrutiny applies to both state and federal race-
based legislation.
FACTS: Federal law (Small Business Act) requires a subcontracting clause granting additional
compensation to contractors who choose subs of socially and economically disadvantaged individuals in
most federal agency contracts; also specifies who “disadvantaged” includes (blacks, Hispanics, etc. or as
classified by Small Business administration). Adarand claims denial of property right to a contract
without due process of the law under the 5th A.
HOLDING (O’CONNOR): Strict scrutiny applies to federal race based categories as well as state. Case
vacated and remanded for further proceedings consistent with this judgment.
REASONING: In Bolling, Court first explicitly questioned existence of difference between obligations
between Sates and Fed Gov’t to avoid racial classifications. Noted that equal protection of the laws is
more explicit safeguard of prohibited unfairness than due process, but in view of Bolling, the Court may
not impose lesser duty on Feds. Basic principle is that the 5 th and 14th As protect individuals, not groups.
Group classification long recognized as irrelevant and prohibited, subject to detailed judicial inquiry.
DISSENT (STEVENS): Court’s concept of consistency is misguided. No moral/constitutional equivalence
between policy designed to perpetuate caste system and one that seeks to eradicate racial subordination.
But single standard that purports to equate remedial preferences with invidious discrim can’t be defended
as equal protection.

Grutter v. Bollinger 539 U.S. 306 (2003)

Diversity is a valid justification for affirmative action in education, particularly when using system
of race as a “plus” not quotas. Majority suggests sunset provision (25 year limit)?
Background: Tests the Bakke standard, which says race based admissions to schools is okay (only when
one element weighed fairly against the others) so long as its on (1) diversity grounds and (2) using system
of pluses, not quotas. Powell’s decision in Bakke is the tie-breaker. [Bakke: More minorities – NO.
Remedial – legitimate, but can’t harm someone else (this is why pluses okay). But diversity interest
comes from 1st A – diversity of viewpoints.] Schools relied on Powell’s examination of “plus” system
(Harvard) to figure out what was okay – reliance argument similar to McCulloch v. Maryland.
Facts: Grutter, white applicant w/ above average LSAT for MI law school pool, denied admission.
Challenges racial consideration in admissions policies.
Holding: O’Connor. UM Law School admissions policy passes “strict scrutiny.” (5-4)
Reasoning: UM interest in diverse student body is “compelling” state interest, when giving UM
deference to determine their educational mission. (This deference unusual given mantra of strict
scrutiny). “Critical mass” not a racial balancing, but defined by reference t educational benefits diversity
designed to produce. Narrow tailoring doesn’t require exhaustion of every possible racially neutral
alternative. Pluses okay and quotas not – implicit argument that under pluses, everyone is still competing
w/ everyone else. Race only ONE factor in calculus. Says at some point the diversity theory may end –
25 year sunset provision (seems to implicitly acknowledge remedy basis).
Dissent – Thomas: Diversity doesn’t accomplish much (not good for its own sake). Thinks it may hurt
blacks. Paternalistic (F. Douglass quote – “Do nothing with us.”). Doesn’t remedy real discrimination of
poor people who can’t go into elite schools.
Dissent – Rehnquist: Series of counterpunches in logic and honesty of majority approach. Claims to be
strict scrutiny but isn’t. Look at statistical numbers – clearly racial balancing and de facto quotas.
Class Notes:
Consider whether O’Connor really applies strict scrutiny. Would she think the same thing if this were a
“minus” system directed against whites?
Is diversity more centrally linked to domain of law school? About governance, political leaders, courts,
etc.
Concern for meritocracy. Consider role of educational quality at primary/secondary level.
Maybe quotas okay b/c less stigmatizing to minorities.

D. Sex and Privacy

1. Discrimination based on Gender: Sex Equality
Main Questions:
1) What forms of inequality besides race should demand an extraordinary justification (ie – more than
minimum rationality)? (2) How heavy a burden should be required?

(a)Evolution of the “Intermediate Standard” for Sex Discrim. (985)

The court does not remain consistent in its standard of review in gender discrimination cases.
1. minimum Rational basis; allowed to define women in terms of traditional family roles
2. Reed (1971) – first SCt. case to invalidate a gender discrimination law based on Equal Protection.
Though still purportedly decided on minimum Rational basis, something additional is implied by the
decision.
3. Frontiero (1973) – some sort of heightened scrunity, though still not precisely defined.
4. Craig (1976)– SCt. applies intermediate level of scrutiny for gender discrim. cases.

Background (pre-1970s)
 Bradwell v. Illinois 1873, which upheld Illionois law that rejected Myra Bradwell’s right to practice
law solely b/c she was female. [AMAR: Lawyers are “officers of the court” – weakest argument for
women because linked to political rights.]
 19th Amendment (1920) – removed from states the ability to limit voting rights on grounds of sex.
(overrules Minor v. Happersett 1875, p. 986)
After this, a few courts reassess women’s political and civil rights.
 Important case: Adkins v. Children’s Hospital (1923) – held that DC law requiring that women
(but not men) received minimum wage violated women’s freedom to contract. By the end of the
1920s, Cts had strictly limited the 19th A. to the question of voting. p986
o Recall, West coast hotel case that upheld minimum wage law that treated women different
from men.
 Goesaert v. Cleary 1948. More ground lost in area of equal treatment for women in employment
sphere. Court applied minimum rationality standard to uphold a Michigan statute forbidding
women to work as bartenders, on the ground that Michigan’s moral and social interests were enough
to meet a minimum rationality standard. Constitutionally acceptable to define women in traditional
terms, limiting their econ and political activity.
 Pre-Reed: Two standards of review to determine whether a state statute violated the equal
protection clause of the 14th Amendment, or whether a federal statute violated the equal protection
component of the 5th Amendment.
o 1. In most cases: The “rational relation” test - a statutory classification which bares a
rational relation to a legitimate legislative objective will survive judicial review. Will almost
always pass constitutional muster.
o 2. If legislation affects fundamental rights or when the statutory classification is inherently
suspect, a more stringent, “strict scrutiny” test is applied.  such classification will
generally not withstand “strict scrutiny” unless it is supported by the most compelling
affirmative justification.
 Ruth Bader Ginsburg and the ACLU’s Women’s Rights Project are major actors in the next cases.
Attempts to have the Ct. view women as a suspect classification, thereby, change the test applied to
sexually discriminatory laws.
o Goal of litigation was to prove that stereotypical/traditional treatment of gender under the law
was unconstitutional. To make the Court realize that “the law’s differential treatment of men
and women, rationalized as reflecting “natural” differences between the sexes, historically
had tended to contribute to women’s subordination”.
o Ginsburg pursued a series of strategically chosen cases that illuminated gender distinctions in
the law.
 Reed v. Reed, Frontiero v. Richardson, Craig v. Boren
 Frontiero: Important: she won the case but failed to get a majority for the “strict
scrutiny test.” Because Brennan’s decision in Frontiero was joined by only three
other Justices, it became apparent that the Court was unlikely to adopt strict scrutiny
for gender classifications. Ginsburg adjusted her objective in response to the
outcome in Frontiero and attempted to get the Court to enunciate an intermediate
level of scrutiny for sex classifications. Craig: Court explicitly recognizes
intermediate level of scrutiny.
 Ginsberg’s strategy was to bring cases involving discrimination against men.
Reed v. Reed (SCt. 1971) p988
SC strikes down Idaho law that required a man be chosen to be administrator of an estate if a man and
woman were equally qualified. (9-0) First SC decision to invalidate a gender classification under
EPC. (Important precedent, many gender cases refer back to this).
o Purports to apply only minimal rationality standard.
o The state said that the statute was designed to reduce the workload of its lower level courts
and to prevent the possibility of intra-family fights.
o The Supreme Court (Burger) held, “to give mandatory preference to members of either sex
over members of the other, merely to accomplish the elimination of hearings on the merits, is
to make the very kind of arbitrary legislative choice forbidden by the Equal Protection Clause
of the Fourteenth Amendment.”
AMAR: Court claimed irrational. Not “irrational”! Rather, Court refusing to acknowledge the
legitimacy of certain purposes.

Frontiero v. Richardson 411 U.S. 677 (1973) (Note: post-Roe) (p988)

Military policy, with different rules for servicemen and servicewomen claiming dependents, is
unconstitutional (in violation of 5th amendment’s equal protection requirements).
Brennan’s opinion argues sex is a suspect class and heightened scrutiny should be applied. BUT a
majority does NOT adopt heightened scrutiny for sex-based classifications.
FACTS: Federal law allowed male members of uniformed services to automatically claim spouse as
dependant, BUT female member could claim benefits only if she demonstrated that her spouse was in fact
dependent on her for over half of his support. So women had to make an extra showing.
QUESTION: (1) Does statutory scheme involve the kind of arbitrary legislative choice forbidden by
Const ? (2) Is a statute which is facially discriminatory on the basis of sex, subject only to scrutiny on a
minimum rationality standard when challenged?
HOLDING: (1) Yes - Court invalidates federal statute providing different standards for dependent military
spousal benefits under 5th Amendment. (2) 4 votes say “yes” to heightened scrutiny; 4 votes say “no” b/c
we should not decide strict scrutiny issue until ERA issue is resolved.
OPINION (BRENNAN, JOINED BY DOUGLAS, WHITE AND MARSHALL).
 Sex classifications, like classifications based on race, are “inherently suspect and must…be subjected
to close judicial scrutiny.”
o Women have suffered under a history of oppression that is in some ways like that suffered by
blacks: could not vote, hold office, serve on juries, bring suit, etc.
o Sex, like race, is an immutable characteristic. Sex (unlike non-suspect statuses like
intelligence) frequently bears no relation to ability to perform or contribute to society.
o Congress itself has recently shown increased sensitivity to sex-based classifications.
 Government acknowledges only purpose is administrative convenience. BUT…
o To satisfy strict scrutiny, must demonstrate it actually saves the government money. No
evidence here.
o Furthermore, administrative convenience alone is not sufficient justification for sharp line
between men and women similarly situated. Arbitrary legislative choice forbidden by the
Constitution.
CONCURRENCE (Powell, joined by Burger, Blackmun): In light of the pending ratification of the ERA, the
court should not have made a premature ruling about the general application of strict judicial scrutiny to
sexually discriminatory laws. The ERA, if adopted, would represent the will of the people on this matter
– court shouldn’t preempt this political decision.
CONCURRENCE (Stewart). Case is settled under Read v. Reed. Statutes violate 5thA.
DISSENT (Rehnquist). For same reasons as district court: Congress might have reasonably surmised that
since husbands are typically breadwinners, this rule is more economical.

Craig v. Boren 429 US 190 (1976) p994

Intermediate level of scrutiny formally adopted for gender discrimination cases.
FACTS: State law prohibited sale of beer to males under the age of 21 and to females under the age of 18.
HOLDING: State law violates EPC.
RATIONALE: Establishes intermediate scrutiny for sex-based classifications. Such classifications “must
serve important government objectives and must be substantially related to achievement of those
objectives.” Perpetuated “archaic and overbroad” generalizations.

NOTES
Problems with reasoning by analogy to race. Women are 50% of the population. Really is a biological
sub-stratum to gender. Sex discrim characterized by paternalism rather than contempt.

AMAR: Constitutional Arguments regarding sex discrimination:

14th amendment really was about sex discrimination.
 Doesn’t use “race.” Says “born” equal citizens – skepticism of all sorts of laws that disadvantage
people based on birth status (race, religion, class, gender, first-born).
 14th amendment framers probably would have said women should be treated separate but equal,
not that equality has no application to women.
 Women abolitionists hate section 2, but like section 1. “Male” in section 2 could even be
progress – have to specify that women don’t count; actually on the table.
19th amendment changes everything – about political equality in a much broader range. (Siegel)
  14th amendment should be read differently because of the 19 th. Meaning of “born equal citizens”
changes. 15th and 19th are symmetrical amendments.
 Hoyt v. Florida – women can opt out of juries. (1961) AMAR – 19th amendment issues.

What about the ERA? After overwhelming approval in the House and Senate, failed to win the necessary
38 states for ratification, and expired in 1982.
In applying intermediate scrutiny, SC tended to overturn sex discrimination. ERA never passes.
Maybe because court developed an ERA-like caselaw.

Catharine MacKinnon criticizes the ERA for reducing the problem of the subordination of women to one
of classification, when it is a problem of broad societal discrimination..

John Ely, “Democracy and Distrust” (1980):

Women can then protect themselves.( they are a majority )
If women have “chosen” not to avail themselves to opportunities, or to change the laws, it is not
because they can’t (it is probably b/c they assign it a low priority). However, a law passed b/f women
could vote is suspicious. But if struck down, and reenacted by current legislature, new law should be
upheld as constitutional.
BUT women aren’t a homogeneous groups. Interests of “traditionalist” women might be at odds
with women who want to work.

Architecture of Equal Protection Analysis

Not all legislative distinctions treated equally. Tiers of scrutiny.
What triggers heightened scrutiny?
(1) Law that formally classifies on racial/gender criteria.
(2) Law whose purpose is gender or race-based. (eg. Yik Wo Laundry case – law being
administered for race-based purpose.)
Not mere effects.
What are we looking for? (Unless all laws with a racial/sex-based component are unconstitutional.
Clearly lots of sex-based laws and government practices ok.)
Court not always very clear.
Impermissible if invidious – subordinating people because of race/sex.
Narrow tailoring – even if X is necessary, is X+Y also necessary?
Equal protection – similar people get similar things.
Should heightened scrutiny be symmetric?

(b) Discrimination against women vs. discrimination against men?

Weinberger v. Wiesenfeld (420 US 636, 1975): Court invalidated “mother’s insurance benefit”
provision of the Social Security Act, which provided benefits to widows (but not widowers) having minor
children in their care.
Brennan said it denigrated the efforts of women who do work. Furthermore, the statute not only
failed to give the same protection to a woman’s family as to a man’s family similarly situated, but it also
taxed these women equally while providing less protection to their families.
Given the purpose of enabling surviving parent to stay at home, this statute is irrational, because
children with a surviving male parent also need to be cared for.

AMAR: This “affirmative action” for women is unconstitutional because it presumes the dependency of
women. Reinforces stereotypes.
Califano v. Goldfarb (430 US 199, 1977): Court struck down provision of Social Security Act where a
widow was entitled to survivor’s benefits regardless of dependency, while only a widower who received
at least half his support from his wife was entitled to benefits.
Brennan: Discrimination against wage-earning females, who received less protection for their
spouses.
Stevens (concur in judgment): Relevant discrimination against surviving male spouses.
Rehnquist (dissent): The distinction in the statue was responsive to the fact that widows are more
likely to be without adequate means of support. Even if a provision that discriminated against women
should receive heightened scrutiny, this was not such a provision.
AMAR:
 The law provides incentives for men to work and women not to.
o Ex post -- discrimination in favor of women.
o Ex ante – discrimination that creates incentives for men to go into market and women
stay at home. Not just reflecting a stereotype. Perpetuating hierarchy.
o Using birth-traits (see 14th amendment) to create classes of unequal citizenship.
 Not making the argument that all sex classifications are unconstitutional. Not an argument
against aff action for women.
 Evil Rehnquist: Says that laws that discriminate against men are different than laws that discrim
against women. Can discriminate in the favor of women but not against them.
o BUT – doesn’t have that view for race relations (see Grutter)

(c) “Discriminatory Purposes” requirement; and

“Exceedingly Persuasive” Justifications
J.E.B. v. Alabama (SCt., 1994) p1015
Gender-based peremptory challenges violate Equal Protection Clause. Extends Kentucky v. Batson to
sex based jury discrimination.
FACTS: In state action to establish JEB’s paternity, the state exercised 9 of 10 peremptories to strike male
jurors. Although JEB used all but one strike to get rid of female jurors, the jury ended up all female.
HOLDING: (BLACKMUN) Gender-based peremptory challenges violate the EPC. “Exceedingly
persuasive justification” required for gender-based classifications to be allowed under EPC.
 Gender stereotypes are no more defensible than race stereotypes, so assumption of juror bias here
is impermissible. Jurors have a right to nondiscriminatory procedures – striking jurors based on
gender is a brand of inferiority.
 BUT as long as gender does not serve as a proxy for bias, unacceptable jurors may still be
removed. Can base on membership of a group that is normally subject to “rational basis” review
and even those who exhibit characteristics that are disproportionately associated with one gender.
e.g., military service.
CONCURRENCE: (O’Connor) While there are differences in fact between how male and female jurors
behave, there shouldn’t be differences in law. It’s a statement about what our nation stands for. However,
there are costs associated with extending Batson to gender-based challenges, because those challenges
may help preserve impartiality, etc.
CONCURRENCE: (Kennedy) Injury to personal dignity and right to participate in political process. A juror
sits as an individual, not as a member of a racial or sexual group.
DISSENTS (Scalia, Rehnquist, Thomas) How is it sex discrim if each side can exercise off-setting
preemptory challenges? No evidence that one gender is singled out for discrimination.

CLASS NOTES:
Amar: Better to focus on 19th amendment.
  14th amendment awkward because about aliens, not about political rights. 19 th amendment was
about political rights, changes meaning of 14th amendment for women.
 19th amendment premised on the idea that women on average might have different views on
politics.

Amar: Better to rethink the unanimity rule and do away with peremptory challenge

“VMI Case” - U.S. v. Virginia 518 U.S. 515 (SCt., 1996), p1025
State must show “exceedingly persuasive justification”for gender classification - (a) important
government objectives and (b) means employed to remedy are “substantially related” to achievement of
the objectives (as opposed to strict scrutiny’s “narrowly tailored”) p1029.
FACTS: VMI was the only single-sex public school in Virginia. It’s a prestigious academy which admits
only men, and is known for its adversarial system and its difficult training process. Female high school
student sought admission to VMI. The 4th Circuit required VA to either admit women, establish parallel
institutions for women, or abandon state support. VA proposed to establish a parallel institution, in the
form of Virginia Women’s Institute for Leadership at Mary Baldwin College.
HOLDING (Ginsburg (7-1)): Men-only admissions policy violates equal protection. VA can’t reserve
exclusively to men VMI’s unique educational opportunities. VA’s remedy doesn’t cure the constitutional
violation, since it doesn’t provide equal opportunity.
REASONING: J.E.B. and Mississippi Univ. for Women require that sex discriminatory policy have an
“exceedingly persuasive justification.” Burden of justification is demanding, and rests entirely on state.
However, sex is not a proscribed justification, since physical differences endure.
Virginia presents two justifications:
1. Single-sex education contributes to the diversity of educational approaches offered by
Virginia (the other schools are all co-ed).
Ginsburg: this is historically untenable. The diversity of educational choices was
never the reason for VMI’s sex exclusion. Doesn’t genuinely advance an array of
educational options for all of VA’s students.
2. The VMI method of adversative approach would have to be modified if VMI were to
admit women
Ginsburg: The VMI methodology could also educate women. Arguments to the
contrary betray the stereotypical thinking behind them
Ginsburg - Virginia Women’s Institute for Leadership is not an equivalent institution
fewer resources, less prestigious faculty, limited program choices
Importantly, it does not use the adversative approach, but rather, a “cooperative method,”
which is said to be better suited to women.
Virginia’s generalizations and stereotypes about women are not a sufficient justification
for its unequal treatment of them.
CONCURRENCE (Rehnquist): The exceedingly persuasive justification test adds ambiguity regarding the
appropriate test and is a mistake. Had VA provided the kind of support for private women’s schools that it
provides for VMI, would have been a different case.
DISSENT (Scalia): The court inappropriately raised the standard of review for sexually discriminatory
policy. The court is creating law here – “politics smuggled into law” - if people want to eliminate single-
sex institutions, they can do that through the political process, but they haven’t, the SCt. has decided to do
this and made it unalterable by regular legislation. Women can protect themselves through political
process. Should not take the current preferences of elites and write it into the Constitution  the
forefather’s gave us the ability to change single-sex schools by democratic legislation… shouldn’t we
allow this to our children ?

AMAR COMMENTS:
“Easy case.” Truly separate but equal may have been one thing, but these schools have very different
standards, didn’t get the same degree.
Ginsberg makes doctrinal move, upping the ante of scrutiny. Much closer to strict scrutiny.
Scalia’s dissent:
1) Long tradition. Amar: Tradition doesn’t insulate something from equal protection attack. Scalia
doesn’t explain why Brown, Reynolds and Loving were rightly decided.
2) Women can protect selves politically. Amar: Great, but then where are you on Grutter? Whites can
protect selves too.

Missisippi University for Women v. Hogan, 458 US 718 (1982), p.1044

Hogan denied admission to state nursing school because male.
HOLDING (O’CONNOR): Must show an “exceedingly persuasive justification” for a statute that classifies
individuals on the basis of gender. In limited circumstances, gender-based classification favoring one sex
can be justified, if it intentionally and directly assists members of a disadvantaged sex. MS made no
showing that women lacked opportunities in nursing. Rather, tending to perpetuate stereotypes that
nursing is women’s job.
DISSENT (POWELL AND REHNQUIST):MS offers a range of options; this option expands women’s
opportunities. Frustrates the purpose of the Equal Protection clause.
AMAR: Caste structure and subordination. Nursing is a subordinate field. If it had been a med school,
court might have had a different view.

Personnel Admin of Massachussetts v. Feeney 442 US 256 (1979) p1053

If a law is facially gender-neutral, disproportionate effects alone are not sufficient to violate 14 th A.,
need a discriminatory purpose by legislature to benefit men as a class to violate EPC.
FACTS: Helen Feeney was hired by the Massachussets Civil Defense Agency. Her efforts at getting
promoted and at getting better jobs were thwarted despite her high scores on civil service examinations,
because MA gave an absolute preference to veterans. Feeney sued, arguing that the absolute preference in
effect excluded women and violated the 14th Amendment.
HOLDING: Disproportionate effects not enough for 14th amendment; need discriminatory purpose to
benefit men as a class. Course of action must be chosen at least in part “because of”, not “in spite of”, its
adverse effects upon an identifiable group.
REASONING (STEWART):
2 questions: (1) Is the statutory classification neutral or actually gender-based ? (2) If the classification is
not gender-based, was there purposeful discrimination?
Even if a facially neutral law has a disproportionately adverse effects on a historically subjugated
group, it is unconstitutional only if that effect can be traced to a discriminatory purpose. (per
Washington v. Davis on Race) p1055
(1) The statutory classification was neutral because it was intended to discriminate against non-veterans,
not against women. Appellee concedes this is a facially neutral law (veterans) and not formal sex
classification.
(2) This law may have a disproportionately adverse effects on women, but it cannot be traced to a
discriminatory purpose:
The Mass. law was created to award military service, not to discriminate against women.
Preference for veterans of either sex, above non-veterans of either sex.
STEVENS CONCURS (joined by White): The number of men disadvantaged by the statute (Mass.
nonveteran men = 1,867,000) is sufficiently close to the number of women disadvantaged by the statute
(2,954,000) to show that the rule was not intended to benefit men as a class.
MARSHALL DISSENTS (joined by Brennan)
The veterans’ preference system evinces purposeful gender-based discrimination. Where the
 foreseeable impact of a law is so disproportionate, there should be a shift in the burden of proof. The
state should have to prove that sex-based considerations were not a motivation for the law.
Here, the statutory scheme bears no substantial relationship to a legitimate gov’t objective, so it cannot
withstand scrutiny under EPC.
AMAR’S COMMENTS:
Is this a formally sex-based discrimination? This is hugely important to the outcome b/c formal discrim
would trigger a certain level of scrutiny w/o the need for a determination of “purposefulness”. BIG
MISTAKE for appellee to concede statute neutral on its face.
AMAR: The word “veteran” incorporates other laws that on their face are sex-based. Doesn’t
matter that not all males get the benefit; rather, it’s not sex-blind.
Grandfather clause is race-based counterpart. It’s formally neutral, but incorporates race-based
laws. Court strikes down.
Then look at effect. Very pro-male; rewarding males for military service with political perks. Amar:
Other ways of honoring our debts, don’t give them political advantages.

RECAP on strutiny:
Using words that “formally” classify, such as male and female, triggers heightened scrutiny automatically.
Not necessarily unconstitutional (eg. bathrooms). Look at whether creating castes.
If there isn’t formal classification, disparate effects on a recognizable group not sufficient for heightened
scrutiny. Need disparate effects + legislative purposeful intent.

Pregnancy
Geduldig v. Aiello (417 US 484, 1974) Stewart: Classifications regarding pregnancy are not sex-based
classifications.
Amar: There are no pregnant men. Very few laws discriminate against all men/women,
blacks/whites. Eg. law in Bakke only applied to people who were applying to med school – doesn’t mean
wasn’t race-based. Should be subject to heightened scrutiny.

History of women in the military and the “combat exclusion” p1104

Combat Exclusion
Combat exclusion itself has been subject to virtually no court tests. Rather, taken for granted.
Justifications for exclusion:
1) need to maintain national security - grounded in perception that women would decrease
combat effectiveness due to gender-related biological differences
2) the need to protect women

Draft Exclusion
United States v. St. Clair 291 F.Supp. 122 (D.S.D. 1968). A male plaintiff challenged the draft on the
grounds that it discriminated based on sex. District court rejected the challenge.
“Men must provide the first line of defense while women keep the home fires burning”
In 1980, President Carter asked Congress to amend the Military Selective Service Act to permit
registration of men and women. Congress refused.
In Rostker v. Goldberg (1981), the Court upheld the constitutionality of the Military Selective Service
Act, which exempted women from registration in the draft
Majority (Rehnquist) – Stressed that women were unable to serve in combat and SCt owes
Congress a high degree of deference in issues of defense and military affairs
Dissent: Women might serve in non-combat situation, and there was no basis for concluding
that excluding women is substantially related to concededly important gov’t interest in
maintaining an effective defense.
Since 1981, the scope of combat exclusion has been reduced, with a significant number of women serving
in the Persian Gulf War in 1991.

AMAR: Connections between voting, jury service, office holding, and military service. Cluster of
political rights and responsibilities.
Women individually get opt-out choices, which advantage individually. May disadvantage
collectively.

Gender-based Affirmative Action p1113

Unlike in race, Court began considering cases of affirmative action in favor of women prior to
determining a general standard for discrimination against women:
Older affirmative action cases tend to uphold laws preferring women as a means to combat past
discrimination:
E.g., Kahn v. Shevin, 416 U.S. 351 (1974), upholding tax exemption in favor of widows, but not
widowers, noting the pervasive effects of economic discrimination against women
Today, the court has some difficulty reconciling these older cases with its newer jurisprudence on
affirmative action. Symmetry requirement of Croson and Adarand suggest a higher level of scrutiny
required for race-based affirmative action (strict) than sex-based (intermediate). 11 th circuit held that
United States v. Virginia didn’t alter intermediate scrutiny for aff action.

2. The “Privacy” Cases: and other Implied Fundamental Rights.

Fundamental rights adjudication: Rights can exist outside the text or be implied from the basic
constitutional order.
Some scholars find textual basis for these rights: Privileges and Immunities; Due Process clause’s
“liberties”; language of the 9th A.
Views of court’s role: 1) enforce conventional morality; 2) protect fundamental rights against the
majority; 3) promote morality and protect the family.
Criticism: (1) Don’t exist; (2) Judges are incapable of identifying such rights with the precision
necessary to resolve constitutional disputes; (3) the courts lack the political authority to bind the polity to
their conclusions.

Griswold v. Connecticut (1965) p1134

Strikes down a CT law criminalizing the use of contraception by married couples. “Finds” a right to
privacy in the Constitution. .
FACTS: CT laws ban use of contraception and penalizes anyone who assists in committing the offense.
Two officers of the Planned Parenthood League of Connecticut appeal their conviction under this state
law.
HOLDING: (Douglas): Law violates a right to privacy in the marriage relationship. (7-2)

Introduces idea of penumbras in the bill of rights –rights that secure these specific rights.

Guarantees in the Const. create a zone of privacy. Points to a protection of the home and body (4th and
5th). 1st, 3rd, 4th, 5th, 9th

Law sweeps unnecessarily broadly by forbidding the use of contraceptives (rather than manufacture
or sale). It thereby invades the area of protected freedoms, and can’t be justified by legitimate
government purpose.
CONCURRENCE (Goldberg, joined by Warren and Brennan): Concept of liberty in the 5 th and 14th
amendments protects fundamental personal rights, and not limited to the specific terms of Bill of Rights.
Marital privacy one of those rights.

Language and history of 9th amendment: lends strong support to idea that liberty means more than the
contents of Bill of Rights.

Look to the traditions and collective conscience of our people. Rights to marital privacy and to marry
and raise a family are of a similar order and magnitude as fundamental rights specifically protected.

Rational relation not sufficient – must show compelling interest. State fails to do so.
WHITE CONCURRENCE:
Violates the due process clause of the 14th Amendment.
Marital privacy is a protected area. Statute therefore triggers “strict scrutiny.” This law is overbroad and
inefficient. Therefore violates due process.
BLACK DISSENT / STEWART DISSENT: (both join in each others’ dissent).
I hate this law as much as the majority, but I can’t find a right to privacy in the constitution.
Gov’t has a right to invade my privacy unless there’s a specific constitutional provision prohibiting it.
Analogy to Lochner. No way to determine the collective conscience of our people – court using own
values. Can of worms.
HARLAN (DISSENT IN POE V. ULLMAN, WHICH ELUCIDATES HIS VIEW):

Due process clause includes fundamental rights; not just Bill of Rights. Invasion of a fundamental
aspect of liberty, privacy of the home. Should be subject to strict scrutiny

Highlights utter novelty of this enactment. No state has ever made the use of contraceptives a crime.

NOTES:
Constitutional Arguments:

Amar doesn’t buy Douglas’ penumbras – doesn’t see strong privacy protection in Bill of Rights.
Douglas doesn’t do a good job teasing out these rights.

Substantive due process – another possible source of rights. Douglas rejects. Lochner is anathema.
o Amar: This is different than Lochner because bodily liberty is egalitarian, while property is
distributed unequally.

Privileges and immunities. (Amar thinks more promising)
About private domain – privileges – government leaving citizens alone.
Could interpret it as all things that are fundamental. Look at bill of rights, dec of
independence, state constitutions, etc.
Slaughterhouse “strangled this clause in its crib”

Traditionalist argument (Harlan): Conclusive that the law is “utterly novel” – shared American values.
(A lot it doesn’t protect – unmarried couples, same-sex, etc.)

Sex discrimination argument. (Amar’s favorite)
Discrimination between people who can get pregnant, and people who cannot. Condoms were
permitted (because protect from disease), so sexes differently burdened.
Law passed in 1879. Law imposes burdens on women, and never got their consent. A narrow
intervention – could have remanded to the legislature. Even though women can prevent it getting
reenacted, can’t necessarily get it repealed. (Bicameralism, etc.)

After Griswold… Eisenstat v. Baird extends right to privacy (as applied to contraceptives) to non-
married couples based on the Equal Protection Clause p1145

Roe v. Wade, 410 U.S. 113 (1973) p1172

Right to zone of privacy is extended to abortion.
FACTS: A pregnant single woman (Roe) and others brought a class action challenging the constitutionality
of the Texas criminal abortion laws, prohibited procuring or attempting an abortion except for the purpose
of saving the mother’s life.
HOLDING: (J. Blackmun): Right to Privacy in 14th A. protects mother’s right to abortion (partially)
 History shows a legal distinction was often made b/w early-stage abortion and late-state abortion.
Historically, a woman enjoyed broader abortion rights than she does today.
 Right to zone of privacy has been found in a line of cases: marriage, procreation, contraception,
child rearing. Whether from 14th amen due process (as this court believes) or 9th amen (as district
court believed), woman’s right to terminate her own pregnancy falls into this zone.
 Unborn fetus is not a person in the meaning of the 14 th amendment. No textual
evidence in the constitution; not historical intent or current practice. Need not
resolve when life begins.
 Right to personal privacy is not absolute b/c state also has an interest in regulating the factors that
govern the abortion decision: safeguard health, maintain medical standards and protect potential life.
o Where “fundamental rights” are involved, regulating limiting these rights may be
justified only by a “compelling state interest” that must be narrowly drawn to express
only the legitimate state interests at stake.
 Trimester Doctrine
o 1) – From inception to approximately the end of the first trimester, the abortion decision
and its effectuation must be left to the medical judgment of the pregnant woman’s
attending physician w/o regulation by the state.
o 2) – Subsequently, the State, in promoting its interest in the health of the mother, may,
regulate the abortion procedure in ways that are reasonably related to maternal health.
 Legitimate regulations include: state definitions of the term ‘physician’ to mean
only a physician currently licensed by the State, and proscription of any abortion
by a person who is not a physician as so defined.
o 3) – For the stage subsequent to viability, the State, in promoting its interest in the
potentiality of human life, may, if it chooses, regulate, and even proscribe, abortion
(except where necessary, in appropriate medical judgment, for the preservation of the life
or health of the mother). p1180
STEWART CONCURS: Reinterprets Griswold as a substantive due process case. Says that the broad
infringement of personal liberty in the TX statute cannot be justified by state interests.
DOUGLAS CONCURS: Fundamental right, subject to regulation upon compelling state interest. Statute is
overbroad; not closely correlated with preserving prenatal life, and treats potential life at different
stages of development equally.
J. REHNQUIST, DISSENTING:
Abortion bears no relationship to right to privacy in the constitution (4 th amendment).
14th amen does not guarantee liberty absolutely against deprivation, only against deprivation without due
process of law.
The weighting of competing factors is properly a legislative decision. Compelling state interest standard
requires judicial legislating.
Historical argument: Abortion not rooted in our traditions so as to be fundamental. 14 th amendment
drafters did not intend it to cover abortion.
J. WHITE, DISSENTING:
Sees nothing in the Constitution to support the Court’s judgment
Court is placing the convenience of the mother above the continued existence of potential life.
Reasonable men can heatedly disagree on this issue: it should not be constitutionalized by the Ct, but left
to the people and democratically elected legislatures.

AMAR’S COMMENTS ON ROE:

Criticisms of Roe
Substantive due process doesn’t make any sense. No “concept of liberty” in 14 th amendment any
more than concept of property. Lots of laws take away liberty interests. Blackmun doesn’t even
quote constitution.
History: At time of 14th amen, state laws limiting abortion. No one thought it called these laws into
question.
 Privacy precedents very far removed from abortion. There’s another party (a fetus) being injured.
Blackmun acknowledged they’re “inherently different” cases.
Trimester framework is inherently unstable as a basis for constitutional doctrine b/c it was subject to
changes in medical technology. p1187-2

Amar’s Alternative – Women’s Equality Argument (14th and 19th amendments)

 These are laws that women didn’t vote for, which impose burdens on women. Therefore gets
heightened scrutiny. (Assuming that pregnancy-based laws are sex-based, but see Geduldig.)
 Two kinds of Equality questions.
1) Does statute perpetuate stereotypes and steer women into certain spheres?
2) What would the laws look like if men became pregnant? Do we treat men and women’s bodies
differently?
Analogy – don’t require father to donate organ to a living child. When man’s body is on the
line, we privilege them over the child.
Man doesn’t pay for woman’s expenses, lost employment, etc.
Don’t care for life after it’s born, daycare, etc. Regulating women’s bodies instead of really
protecting life.
Men are drafted. But they get rewarded (compensation, GI Bill, etc.)
(Doesn’t require treating the fetus as without value – rather question of consistent treatment
between men and women.)
 So, don’t invalidate laws of 30 states all at once. Invalidate TX’s law because women didn’t
participate in passing it, and because it imposes burdens on them. Start conversation.
o If TX repassed the law – might be very different outcome. Might depend on if there was
a referendum, how many women supported it. Look at what women want.
o Might require compensation for women, etc.

Another Constitutional argument: 13th amendment (forced labor)

 Slavery as a metaphor – system of caste inequality, and about taking over people’s bodies.
 Combines libertarian and egalitarian concerns.
 Conscription not like slavery, because treated honorifically.

Meanwhile… back in the world… (post-Roe)

 Roe generates an enormous political backlash.
 States enacted statutes to see how much they could limit Roe. p1199-1202
SCt had a series of decisions regarding states ability to regulate aspects of abortion decision.
1. SCt. held state didn’t have to pay for abortion
2. Doctor had to sign a consent form  invalidated by Ct.
3. Spousal consent required  invalidated by SCt.
4. Parental consent required  invalidated by Ct.
5. Parental notification required  invalidated by SCt.
 Legal Realism:
O’Connor had criticized Roe; Kennedy – appointed in 1987; Souter – appointed in 1990;
Thomas – appointed in 1991.
Many predicted Ct. would overturn Roe. When the Ct. finally spoke on the issue, it did not… Casey.

Planned Parenthood v. Casey (1992), 505 US 833, p1202 - 1241

5 justices – uphold Roe’s “essential holding”of a right to abortion before viability without undue
interference from state. Any reservations about reaffirming central holding of Roe is outweighed by
the substantive individual liberty interest which clearly exists (re: Griswold , …) combined w/ force of
Stare Decisis.
FACTS: Challenge of 5 provisions of PA Abortion Control Act of 1982: (a) informed consent of women (b)
minor must obtain consent from one parent or guardian – or can go see a judge (c) married woman is
required to sign a statement that she consulted her husband (d) facilities have to keep records of events (e)
24 hour waiting period (f) can be exeptions made in event of emergencies.
VOTE: 5-4
HOLDING: (O’Connor, Joint opinion. O’Connor, Kennedy, Souter delivered opinion in part; Stevens
joined and delivered opinion for another part): Uphold Roe v. Wade due to stare decisis. Three Justices
rejected Roe's trimester framework and adopted an “undue burden test” for determining whether State
regulations had the purpose or effect of placing substantial obstacles in the path of a woman seeking an
abortion before viability. Here, the notice provision did impose such an obstacle and is therefore unconst.
- Reaffirm “essential holding” of Roe: (p1203-3)
1. Right of woman to choose to have an abortion before viability and obtain it without undue
interference from the state. Before viability, the 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.
2. State has power to restrict abortions after fetal viability, if the law contains exceptions for
pregnancies which endanger a woman’s life or health.
3. State has legitimate interests from outset of pregnancy in protecting health of the woman and
the life of the fetus.
- First 2/3rds of this opinion is all about Stare decisis.
Normal stare decisis considerations
Whether central rule has been found unworkable (no)
Whether changing rule would cause inequity to those who have relied on it, or damage to the stability
of society. (for 2 decades people have organized intimate relationships and defined place in
society in reliance on availability of abortion.)
Whether the law’s growth has left the doctrine an anachronism. (no)
Whether the premises of fact have so far changed as to render the central holding irrelevant or
unjustifiable. (no – viability continues to be critical fact)
In Lochner and Plessy, facts (or country’s understanding of facts) had changed, so it was ok to overrule.
Not the case with Roe. It’s not enough to believe that a prior case was decided incorrectly.
Additional Stare Decisis Considerations with Roe
Need to uphold old decisions to protect the legitimacy of the Court -- can’t look like it is
succumbing to political pressure. Therefore, have to maintain precedent “for the sake of the
nation.”
Court resolved a divisive issue – rare case where there’s particularly strong precedential authority,
because will naturally be efforts to thwart implementation.

- 3 justices (in Part IV)

The correct line is where women’s interests trumpt remains viability, but the trimester framework
is not necessary to protect the women’s essential rights. p1211-13
New “undue burden” test emerges: a “state regulation that has the purpose or effect of placing a
substantial obstacle in the path of the woman seeking an abortion of a nonviable fetus”is an
undue burden, and unconst. p1242-4
A state can regulate all abortion, but “may not prohibit any woman from making the ultimate
decision to terminate her pregnancy before viability”. p1214
- Specific to this case, find the PA law’s spousal notification requirement unconstitutional, highlighting
facts about domestic violence and power relationships surrounding abortion. It upholds an informed
consent requirement and reporting requirements. (Part V)
STEVENS CONCURRENCE: p1223.
Also objects to PA’s requirement that doctors provide woman with materials designed to persuade her not
to have an abortion, informed consent requirement, and waiting period.
Applies “undue burden” test of majority, but says he disagrees with part IV, where it is established.

BLACKMUN CONCURRENCE: p1225 scathing critique of Chief Justice’s opinion. Says it’s too narrow a
view of substantive due process and the liberty compromised by unwanted pregnancies.

REHNQUIST DISSENT, JOINED BY WHITE, SCALIA, THOMAS p1228

Standard of stare decisis used by majority is novel, and under the “traditional” standard for stare
decisis, Roe can and should be overruled since it was wrongly decided.
Offers historical proof that due process clause would not extend to abortions—the same
analysis he had in his dissent of Roe. Roe read the earlier privacy cases too broadly b/c
abortion involves purposeful termination of potential life.
Specifically, would uphold the challenged provisions of the PA statute in their entirety.

SCALIA DISSENT, JOINED BY REHNQUIST, WHITE, THOMAS. p1234

Right to abortion is not a constitutionally protected liberty (analogizes to the fact that there is no
constitutionally protected right “bigamy”, although bigomy and abortion are liberty interests in
some real sense): (1) Neither right is mentioned in constitution (2) Tradition of American society
has permitted both to be legally proscribed.
So issue should be left to the states and the political process there, not the national court
Would apply “rational basis” test, and therefore uphold PA statute entirely.
Undue burden standard is novel, ad hoc, and therefore bad law – could put all constitutional
infringments at risk if the infringment is not “undue”
Stare decisis usage is contrived since they insist on adhering not to all of Roe but to what 3 justices
call the “central holding”. Shouldn’t we apply stare decisis to the stare decisis ?

AMAR COMMENTS:
Note talk of women’s equality, even from Blackmun. (Conscription language (1225); ability for women to
participate equally in society (1206).

Re: Stare Decisis (Amar doesn’t buy this):

1) Marbury v. Madison– If statute inconsistent with const, go with const. Why doesn’t the
supremacy clause apply to court decisions too? Court is privileging its own mistakes over the
constitution!.
2) This view of precedent is unprecedented!!!
5 cases in 20th c where the court overruled a previous decision because they decided it
was wrong the day it was decided (not based on any of O’Connor’s reasons)
3) If raise bar for overruling because it’s controversial, it’s penalizing dissent.
4) Let’s first decide whether it was wrongly decided, then a separable question whether it should
be overruled. Could say in 25 years…(like O’Connor in Grutter)

Amar likes O’Connor’s legal realist account of micro-power relationships between men and women in the
discussion of spousal notification.

3. The Sexual Orientation Cases:

Bowers v. Hardwick (1986) p1243 – 1259
Due Process Clause provides no substantive privacy protection for acts of private homosexual sodomy
and the state can therefore criminalize homosexual acts.
FACTS: Challenge to Georgia’s sodomy law (with a punishment of 1-20 years for violation). Sodomy is
defined by the statute as either oral or anal sex. The statute does not specify gays.
QUESTION: Does the Federal Constitution confer a right to engage in consensual “homosexual sodomy”?
(Does right to privacy extend to homosexuality?)
HOLDING (White, 5-4): No. There is no constitutional right to privacy that extends to homosexual
sodomy.
History: Opinion relies heavily on an appeal to history: outlawing sodomy has been a long fixture in this
legal tradition, cites Roman codes. Also discusses how many states have similar laws.
Says this is a kind of private matter that isn’t within the constitutional mandate of courts.
None of the privacy rights extended to education, family, marriage, contraception, and abortion
bear on homosexual activity since that has no connection to family, marriage, or procreation.
While court has announced rights not found in the text of the constitution, the court will only
announce these rights when they are basic to “ordered liberty”, without which neither justice
nor liberty would exist. Neither of these formulations apply to homosexual sodomy (look at
history and current practice). p1245
Won’t take a more expansive view of power to discover new rights – court comes “nearest to
illegitimacy” when it creates law with no roots in language or design of the constitution.
Home is not a shield for all activities, privacy does not extend indefinitely. e.g., drugs. Slippery
slope argument (incest, adultery, etc.).
Petitioner argues that even if no fundamental right, there still must be a “rational basis” for the law. And
that there is no rational basis here other than a presumed belief by a majority of the Georgia electorate
that sodomy is immoral and unacceptable. p1246
 No. The law is based on notions of morality. If all laws representing essentially moral choices are
to be invalidated under the DPC, the courts would be very busy indeed.

BURGER CONCURRENCE: also invokes historical evidence. Ultimately says this isn’t about
“preferences”(policy) but the legislative authority of the state.

POWELL CONCURRENCE: No substantive right under the due process clause, but suggests that this statute
would not pass the muster of the 8th Amendment (but the parties did not raise it). That is, the punishment
doesn’t fit the crime.
(Powell was going to vote with the Dissenters to strike down the law but changed his mind b/c he “had
never met a homosexual”. p1258)

BLACKMUN DISSENT, JOINED BY BRENNAN, MARSHALL, AND STEVENS, JJ. This case, like the cases about
the right to possess pornography, have contraception, etc. is really about the Right to be Left Alone.
Historical reasoning is bad reasoning. Nothing worse than to say something is okay just because we’ve
always done it that way.
Bases the dissent on the fact that this statute implicates both heterosexual and gay people
Privacy Rights: defined by categories of decisions and place
Court has already recognized the right of people to make decisions
Court has already recognized the home as a place where the state should not enter as readily
Privacy is a broad shield, and the home is a broad forum.
Family is just one forum in which privacy rights are manifest
This is about the individual, not about public welfare. There are no public policy reasons for this law.
Ability to define oneself is essential to individual liberty, and sexual relationships help define that
identity.
4th A.: search and seizure clause implies a right to privacy in the HOME.
Response to the ordered liberty baseline: this IS baseline. (so no slippery slope problem)
“The right of an individual to conduct intimate relationships in the intimacy of his or her own home
seems to me to be the heart of the Constitution’s protection of privacy.”
STEVENS DISSENT, JOINED BY MARSHALL AND BRENNAN
 Asks: can a state can prohibit an activity by a facially neutral law?
NO, because privacy rights extend regardless whether there is a moral judgment.
Relies on Griswold, Eisenstadt, and Carey.
 Asks: can a state can just enact law against gays?
No, equality considerations mean that the state cannot select a group without sufficient public policy
reasons. No reason is offered.

AMAR’S NOTES:
Overtones for Roe: White (who dissented in Roe) writes majority opinion. Blackmun writes dissent.
White says we’ve had sodomy laws for a long time (also true for abortion laws!). Says we have to be
careful about creating rights out of thin air (again, see Roe!).

Two approaches
Privacy. Substantive due process. Right to sexual intimacy.
But – what about rules about adult incest, polygamy, polyandry, bestiality.
Equality (Amar’s preference – but court never makes this argument). Law on the books applied
to all sodomy (not homosexual). The court construes it in a way that creates an equality problem.
 If government can prohibit same-sex sodomy, can it also prohibit heterosexual?
If it can, then problems distinguishing Griswold and Eisenstat.
If it can’t, then what about the inequality issue. Only applying to same-sex.
Loving – government has to have a blood code.
Bowers – government has to have a sex code.
Whether you prosecute or not depends on the sex of the person. Man having oral
sex. Have to look at the sex of the other person. Therefore triggers scrutiny.
Logically based on sex.
Another equality argument: Heterosexism is a form of sex discrimination. Gender-based
discrimination. About gender roles that are supposed to exist, male supremacy.

Watkins v. United States Army (9th Cir, 1988) p1275 – 1297

(1) 2-1 decision striking down Army regulation disqualifying gay personnel- tried to dismiss Watkins.
(2) This decision is later vacated by 9th circuit en banc.
Note: The SCt has never held homosexuality to be a suspect classification.
FACTS: Watkins was honest about his homosexual tendencies on an enlistment form. He served for 14
years. His homosexuality was common knowledge and was never considered to affect his performance or
to have a degrading effect upon the unit. In 1981, Army promulgated new regulations that mandated
disqualifications of all homosexuals from the Army. Watkins was discharged, and then challenged the
constitutionality of the new regulations.
LAWSUIT #1 HELD: Sexual orientation discrimination violates Equal Protection. Law discriminating
against people, not actions. Sexual orientation is a suspect classification, subject to strict scrutiny.
LAWSUIT #2 HELD: Initial decision was later vacated en banc. The final result was that the Army was
estopped from dismissing Watkins b/c they allowed him to reenlist, knowing that he was gay.

Romer v. Evans (1996), 116 S.Ct. 1620, p1259 – 1275

6-3 decision strikes down a 1992 amendment to the Colorado constitution (directly voted for by the
people), which prohibited any statute from giving “protected status” to gays or bisexuals, as a violation
of EPC.
STATE ARG: The Amendment does no more than deny homosexuals special rights. It puts them in the
same position as all other persons.
HOLDING (Kennedy): Violates equal protection.
The amendment imposes a special disability on homosexuals alone. They are forbidden the safeguards
that others enjoy or may seek without constraint.
Can obtain protection only by amending CO’s constitution – huge burden. The protections the
amendment withholds are taken for granted by most people.
Equal Protection test: If the law neither burdens a fundamental right nor targets a suspect class, SCt.
applies most deferential “rational relation test” and will uphold the legislative classification so long
as it bears a rational relation to a legitimate end.
The Amendment fails this test: (1) Imposes a broad and undifferentiated disability on a single
named group. (2) Its breadth is so discontinuous with the reasons offered that it’s inexplicable
by anything but animus for the class affected.
Disqualification of a class of persons from the right to seek specific protection from the law –
unprecedented.
A law declaring that it shall be more difficiult for one group of citizens than for all others to seek aid from
the gov’t is a denial of equal protection of the laws in the most literal sense.

SCALIA DISSENT (joined by Rehnquist and Thomas): p1264

Essentially says this is no big deal. “The amendment prohibits special treatment of homosexuals and
nothing more.”
Holding contradicts Bowers – if it’s constitutionally permissible for a state to make homosexual conduct
criminal, surely it’s permissible to enact other laws disfavoring this conduct.
This is a culture war, and it should be fought in the political system, not the courts.

NOTES:
Kennedy: Fundamental difference between prohibiting conduct, and discriminating against people
because of their status. Doesn’t mention Bowers. This is about status – “orientation.”
Constitution “Neither knows nor tolerates classes among citizens.” – don’t discriminate on birth
status. Who you are, vs. what you do.
Kennedy knows what this law is about – persecuting gays. States its social meaning in the
decision.

Most legislation classifies – this amendment puts a broad and undifferentiated disability on one group.
“Named” – single out people by their name for disadvantages – relationship to bill of attainder.
(Kennedy wrote about Chadha on the 9th circuit discussing this). Can’t single out people for who they are.

Lawrence v. Texas (2003), 539 US 558

6-3 decision overrules Bowers v. Hardwick. TX statute that makes homosexual sodomy (and other
intimate behavior) a crime violates the Due Process Clause (as applied to adult males who had
engaged in consensual sodomy in the privacy of home).
FACTS: Houston police entered Lawrence’s home in response to a reported weapons disturbance, and saw
him engaging in a private sex act with another man. He was arrested and convicted of deviate sexual
intercourse in violation of a TX statute that forbids two persons of the same sex to engage in sodomy and
other intimate sexual conduct.
HOLDING (KENNEDY): The TX statute making it a crime for 2 people of the same sex to engage in certain
intimate sexual conduct violates the Due Process Clause.
REASONING:
Tradition of liberty within the home (spatial), and of an autonomy of self (liberty of thought, belief,
expression and certain intimate conduct). This case involves both.
Principles manifested in Griswold, Eisenstadt, Roe, Carey. Right of privacy, not confined to
married adults, and related to autonomy of self.
Court overrules Bowers v. Hardwick
Court failed to appreciate the extent of liberty at stake. The issue was not the right to engage in
certain sexual conduct. The law touched on the most private human conduct, in the most
private of places. Seeking to control a personal relationship, within the liberty of people to
choose without being punished as criminals.
Historical considerations weigh against Bower’s claim of “ancient roots.” No longstanding
history of laws directed against homosexual conduct distinctly. Laws prohibiting sodomy
weren’t enforced against consenting adults acting in private. Evidence burdens, that a
consenting partner was an accomplice, and couldn’t testify. Not until the 1970s that any state
singled out same-sex relations for criminal prosecution, and only 9 states have done so.
Moral considerations about homosexuality don’t answer the question. Issue is whether the
majority can use the power of the state to enforce views on the whole society through
operations of criminal law.
Emerging recognition that liberty gives substantial protection to adults in deciding how to
conduct their private lives in matters pertaining to sex.
European Court of Human Rights ruling at odds with Bowers.
Number of states with anti-sodomy laws decreased from 25 to 13, of which 4 enforce
only against homosexual conduct. Often ignored.
Bowers further weakened by Romer and Casey.
Furthers no legitimate state interest which can justify the intrusion into the personal and private life of
the individual. Moral views of the majority not sufficient justification.
Chooses not to hold invalid under Equal Protection, because in that case some might argue a prohibition
would be valid if prohibited both homosexual and heterosexual sodomy. Rather, this law is
substantively invalid.
CONCURRENCE (O’CONNOR):
Does not join court in overruling Bowers. But does find TX statute unconstitutional as violating Equal
Protection.
When law exhibits a desire to harm a politically unpopular group, apply a more searching rational basis
review.
TX treats the same conduct differently based solely on the participants. Makes homosexuals unequal in
the eyes of the law. Bowers did not hold that moral disapproval of a group is a rational basis under
Equal Protection to criminalize homosexual but not heterosexual sodomy. Moral disapproval is not
sufficient rationale.
Consequences are significant (could disqualify from jobs, etc.)
Close correlation between conduct and homosexuals as a class.
DISSENT (SCALIA, WITH REHNQUIST AND THOMAS JOINING):
Surprising readiness to reconsider Bowers. Ignores paean to stare decisis in Casey, which 3 of the same
justices coauthored. Doesn’t meet the Casey standards.
Doesn’t distinguish other moral choices, like those regarding bigamy, prostitution and bestiality. Massive
disruption of the social order. This harkens the end to all “morals legislation”
No right to “liberty” under Due Process Clause. Substantive due process only applies to fundamental
rights.
Re: equal protection. The same distinction regarding partners that is found in laws prohibiting same-sex
marriage. Distinguish from Loving because VA statute was designed to maintain white supremacy,
heightened scrutiny. O’Connor doesn’t justify or explain her more “searching” form of rational basis
review in this case.
Court taking sides in the culture war, deviating from role as neutral observer.
Natural next step is gay marriage.
DISSENT (THOMAS):
This law is “uncommonly silly,” but not unconstitutional.
NOTES
Romer on the books as precedent now. Began to weaken Bowers.
3 Constitutional approaches
1) Traditionalist (dissent) – these laws are around, deserve to be upheld. And respect precedent.
2) Equality approach – This is a law that formally treats same-sex sodomy differently than other sodomy.
Treating males differently than females.
O’Connor: treats gays and straights differently (This is the conduct that defines the class. This is
Scalia’s move in Romer.) Says marriage might be different, doesn’t explain.
3) Liberty approach – private conduct off-limits to the state.
Kennedy. The home – unwarranted intrusion.
BUT -- Can of worms. You can’t beat your spouse in your house; you can’t do drugs even in
you’re home; you can’t be polygamous in your home.

Kennedy makes clever legal move in showing that tradition actually on his side.
Also making argument that looks to actual practice – like Harlan in Griswold. These are the outlier states.

Social meaning – it’s an invitation to discriminate – demeans the lives of homosexual persons.
Amar: Rare – personal empathy.