Constitutional Law

Table of Contents
Introduction.................................................................................................................................................4
§ 1 Equal Protection Clause (Intro to Class)............................................................................................4
The Role of the Supreme Court...................................................................................................................4
§ 2 Types of Arguments..........................................................................................................................4
Bobbitt – Constitutional Interpretation................................................................................................4
§ 3 Review of Acts of Congress (Judicial Review)..................................................................................5
Marbury v. Madison, 1803..................................................................................................................5
§ 4 Review of State Courts......................................................................................................................7
Martin v. Hunter’s Lessee, 1816..........................................................................................................7
The Powers of Congress..............................................................................................................................8
§ 5 Federalism & Federal Power Generally.............................................................................................8
McCulloch v. Maryland, 1819.............................................................................................................8
§ 6 Congress Powers & Limitations........................................................................................................9
Forms of Federalism............................................................................................................................9
Gibbons v. Ogden, 1824................................................................................................................10
Commerce Clause before 1937..........................................................................................................10
Hammer v. Dagenhart, 1918..........................................................................................................11
U.S. v. EC Knight Co., 1895..........................................................................................................12
Houston, East & West Texas Railway v. U.S., 1914 (Shreveport Rate Case)................................12
Champion v. Ames, 1881 (The Lottery Case)................................................................................12
A.L.A. Schenchter Poultry Corp v. U.S., 1935..............................................................................12
Commerce Clause 1937-1995............................................................................................................13
Carter v. Carter Coal......................................................................................................................13
NLRB v. Jones & Laughlin Steel Corp..........................................................................................14
U.S. v. Darby.................................................................................................................................14
Wickard v. Filburn.........................................................................................................................15
Civil Rights Cases..........................................................................................................................16
Commerce Clause after Lopez...........................................................................................................16
United States v. Lopez (1995)........................................................................................................16
United States v. Morrison (2000)...................................................................................................17
Gonzalez v. Raich..........................................................................................................................17
Raich v. Gonzales..........................................................................................................................17

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 Health Care Law............................................................................................................................18
Implied Limits on Federal Power.......................................................................................................18
Garcia v. San Antonio Metropolitan Transit Authority, 1985........................................................18
New York v. United States, 1992..................................................................................................19
Printz v. United States ( 1997)....................................................................................................19
14th Amendment as Alternative Source of Congressional Power......................................................21
Alden v. Maine..............................................................................................................................21
Katzenbach v. Morgan...................................................................................................................21
City of Boerne v. Flores, 1997.......................................................................................................21
Kimel v. Florida Board of Regents (2000).....................................................................................23
Board of Trustees v. Garrett (2001)...............................................................................................23
Nevada Department of Human Resources v. Hibbs (2003)............................................................25
§ 7 State Powers & Limitations.............................................................................................................26
Implied Limit on Local Power: Dormant Commerce Clause.............................................................26
Philadelphia v. New Jersey............................................................................................................26
Kassel v. Consolidated Freightways Corp.....................................................................................26
Hunt v. Washington State Apple Advertising Commission (1977)................................................28
West Lynn Creamery, Inc. v. Healy (1994)...................................................................................28
Implied Limits on Local Power: Preemption.....................................................................................30
Crosby v. National Foreign Trade Council (2000).........................................................................30
Wyeth v. Levine (2009).................................................................................................................31
Distribution of National Powers................................................................................................................32
§ 8 Powers of the Executive..................................................................................................................32
Distribution of Powers.......................................................................................................................32
Youngstown Sheet & Tube Co. v. Sawyer (The Steel Seizure Case) (1952).................................32
Medellin v. Texas (2008)...............................................................................................................33
Hamdi v. Rumsfeld (2004)............................................................................................................34
Hamden v. Rumsfeld (2006)..........................................................................................................35
INS v. Chadha (1983)....................................................................................................................36
Morrison v. Olson (1988)..............................................................................................................37
Individual Rights.......................................................................................................................................38
§ 9 Race and the Constitution................................................................................................................38
The Classifications Based on Race....................................................................................................38
State v. Post (1845)........................................................................................................................39
Dred Scott v. Sandford (1857).......................................................................................................40
Reconstruction Era............................................................................................................................42

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 Strauder v. West Virginia (1880)...................................................................................................43
Plessy v. Ferguson (1896)..............................................................................................................43
Brown v. Board of Education of Topeka (1954)............................................................................45
Bolling v. Sharp (1954).................................................................................................................45
Brown v. Board of Education of Topeka (Brown II) (1955)..........................................................46
§ 10 Implied Rights...............................................................................................................................48
Privileges and Immunities Clause......................................................................................................48
Slaughter-House Cases (1873).......................................................................................................48
Incorporation Cases...........................................................................................................................49
Substantive Due Process: Protection of Economic Rights.................................................................50
Lochner v. New York (1905).........................................................................................................50
US v. Caroline Products Co. (1938)...............................................................................................52
Nebbia v. New York (1934)...........................................................................................................53
West Coast Hotel (1937)................................................................................................................53
Ferguson v. Skrupa........................................................................................................................53
Application to Slaughterhouse.......................................................................................................53
Comments on Lochner Area and Transition..................................................................................54
Substantive Due Process: Modern Fundamental Rights.....................................................................54
Griswold v. Connecticut (1965).....................................................................................................54
Roe v. Wade (1973).......................................................................................................................56
Planned Parenthood of Southeastern Pennsylvania v. Casey (1992)..............................................57
Bowers (GA - 1986) & Lawrence (TX - 2003)..............................................................................59
McDonald v. Chicago....................................................................................................................60
Definitions.................................................................................................................................................61
Things to Remember.................................................................................................................................62
To-Do........................................................................................................................................................63
List of “Questions”....................................................................................................................................64
Reading.....................................................................................................................................................65
Unfiled Notes............................................................................................................................................68
Class 11/31........................................................................................................................................68
Exam Review.................................................................................................................................68

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Introduction
§ 1 Equal Protection Clause (Intro to Class)
A. 14th Amendment - "nor deny to any person within its jurisdiction the equal protection of the laws"
B. Tiers of Scrutiny
1. Rational Basis Review
i. reasonable means to an end that can be legitimately pursued by government.
2. Intermediate Scrutiny
i. furthers important government interest in a way substantially related to that interest
ii. Gender based
3. Strict Scrutiny
i. compelling government interest - crucial vs. preferred
ii. narrowly tailored
a. overbroad or under-inclusive not ok
b. least restrictive means possible
iii. Race based
C. United States v. Virginia, 1996
1. VMI did not allow women to attend, so VA established an alternate school. Issue was twofold: 1)
does VMI policy violate EP Clause, and 2) is VWIL remedy appropriate?
2. Court expanded Intermediate Scrutiny to include “exceedingly persuasive justification” that
classification shows:
i. Important governmental objectives, and
ii. Discriminatory means are substantially related to the achievement of those objectives
iii. * Must not be created post hoc and must not rely on generalizations about the different
talents, capacities, or preferences of males and females

The Role of the Supreme Court

§ 2 Types of Arguments
See Constitutional Fate – Phillip Bobbit, and
http://supreme.justia.com/constitution/article-3/22-judicial-review-limitations.html
A. Doctrinal – Past cases
1. Cases establishing intermediate scrutiny, and
2. Cases discussing adequate remedies
B. Textual – Rely on Constitution
1. Personal vs. group rights
C. Ethical – Nation’s ethos, why Constitution upheld (e.g. “recognition of rights once excluded”)
D. Prudential – Consequences / Policy arguments
E. Historical – Past practices or Attitudes of the Framers (originalism)
F. Structural – Larger architecture of the Constitution
* Examples from US v. Virginia

Bobbitt – Constitutional Interpretation

A. Historical
1. E.g. “originalist” – not following this modality jeopardizes legitimacy of review because without,
judges are mere usurpers of power

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 i. Rebuttal: circular reasoning. One would not believe if he didn’t believe framers were
responsible for empowering government
2. Taney in Dred Scott – construed scope of diversity jurisdiction in Art III (suits “between citizens
of the several states”) based on historical approach. Looked at:
i. “Who were the citizens of the several states when the constitution was adopted.”
B. Textual
1. Dred Scott on a textual basis would reasonably equate with black citizen in suit against white
citizen based on text as understood when decided
2. Textual can be a straightjacket when founders would have changed text had they foreseen later
events.
3. Art IV (Supremacy Clause) – “this constitution…shall be the supreme law of the land and the
judges in every state shall be bound thereby” Implies:
i. Judges must act in conformity with supreme law
ii. Laws of states must give way to the US Constitution
iii. Federal laws in conflict with constitution cannot be given effect as law
a. Rebuttal: assumes the approach it is trying to defend
C. Prudential
1. Legitimate because it serves goals: protection of minorities, civil liberties, etc.
i. Counter-majoritarian difficulty requires this group to describe as “Attempt to ground theory
in public values that is different than those commonly shared.”
ii. Korematsu – relocated Japanese-Americans because prudent to do so; however, in
contradiction with humane values
D. Structural
1. Marshall in McCulloch v. Maryland determines that structure of federalism could not be
maintained if “states, whose officials are elected by a state’s constituency, could tax the agencies
of the federal government present in a state and thereby tax a nationwide constituency.”
2. Marbury v. Madison – elected branches are only legitimate if confirmed by unelected branch
owing only duty to the constitution and not to factional support
E. Ethical
1. Rights are mainly inferred in the constitution from limits on power, so courts must place
boundary between private rights and public power
F. Doctrinal
1.

§ 3 Review of Acts of Congress (Judicial Review)

A. Constitutional Compact Theory
1. Among States vs. Among People when referring to who ‘made’ the Constitution
2. Two strong textual arguments for States:
i. Constitution amended by the States (Art V)
ii. Ratification procedure by the States (Art VII) ¾ of States

Marbury v. Madison, 1803

A. Background: Plaintiff applicant sought a writ of mandamus to compel defendant Secretary of State of
the United States to deliver a commission to him that appointed him a justice of the peace of the
District of Columbia.
1. Circuit Court Act of 1801 establishes 16 federal judgeships to create federal circuit courts
underneath the Supreme Court.
2. 99% of SC cases are appellate jurisdiction. This case is an example of an original jurisdiction
case.
B. Issues:

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 1. Does Marbury have right to a commission? Yes
i. Vested right – appointment, confirmation, and signed (just not delivered)
2. Right to a remedy? Yes
i. Constitutional Remedy – ‘Government of Laws and not of Men’
a. No one is above the law
b. Executive office answerable and must remedy as there is a ‘clear deprivation’ of an
individual right
“Where there's a deprivation of individual right, there is a remedy.”
c. Therefore mandamus is appropriate
ii. Case or controversy of Individual who has rights violated can be heard in court; Courts
cannot do “general intrusion into political operation of the executive branch”
a. Political questions not appropriate (P.Q. Doctrine)
b. e.g. – President commit troops unilaterally and Congress objects
c. Doctrine of Self-Restraint – court ties own hand
This undermines the right/remedy claim
Accomplishes this by avoiding constitutional answers to questions that can be
decided with non-con grounds
Called Passive Virtue
3. Does court have jurisdiction to issue writ of mandamus? No
i. Article III gives SC original jurisdiction for two cases (admiralty & diplomats) but appellate
jurisdiction for others
ii. Exceptions Clause – “with such exceptions, and under such regulations as the Congress shall
make”
a. Court ruled that this gives power to congress to remove appellate jurisdiction, but not
increase original jurisdiction
b. Think of it as a ceiling that Congress cannot increase, but can decrease
iii. Ruled there is a conflict between Article III and the Judiciary Act of 1789
a. SC has oath to uphold constitution
all branches, “shall be bound by Oath or Affirmation, to support this Constitution” –
Art VI
b. Supremacy Clause – the Constitution “shall be the supreme Law of the Land”
Constitution trumps statute
C. If Fed statue conflicts with Constitution, what role for the Fed branch ?
1. Supremacy clause only laws pursuant to Constitution trump State
2. Judicial oath – Judges apply Constitution (But every branch has this)
3. Counter-majoritarian difficulty vs. Popular sovereignty
i. Why can unelected judges set aside laws made by the people?
ii. The people made the constitution and trumps ordinary law
a. To not give power would deny sovereignty
b. Laws = by elected people, Con = by THE people
D. See Fed 78 for Hamilton’s defense of Judicial review
E. Main Points from Review
1. Constitutionalism
i. Super-majoritarian, constrains government
2. Distinctive & higher role of judiciary to interpret Constitution
i. Essentialist argument
ii. Read to say court is ultimate arbiter of Constitutional meaning
3. Should court trump others?
i. ‘Counter-majoritarian’ difficulty
a. Only way to preserve Con over Common
b. From the people & the court works for the people

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 4. What if Fed/Court/President disagrees?
i. Congress can change law to work-around
ii. Amend the Constitution under Art V
iii. Jurisdiction striping statutes ‘exceptions clause’
iv. Non-Compliance
a. No history of this, maybe reflecting prestige of the court
v. Limit/expand the Supreme Court size
vi. Impeach a Justice
vii. Confirmation process (Best and most common way)

§ 4 Review of State Courts

Martin v. Hunter’s Lessee, 1816
A. Background: Martin claims lands confiscated by Virginia were illegal under anti-confiscation clauses
of US/England treaties
1. § 25 of Judiciary Act of 1789 lets SC exercise appellate review over states
B. Issues:
1. Does Constitution bind state judges? Yes
i. Art VI – “the Judges in every State shall be bound thereby”
ii. Supremacy clause
2. Does SC have appellate jurisdiction over State cases? Yes
i. State courts can hear federal questions
a. Prudential: Paper money not allowed to be produced by states under Constitution and
would be a case under US jurisdiction. If Congress hasn’t passed law moving it to US,
State would hear US case and US would only hear under appellate jurisdiction
ii. State judges may interpret constitution differently (due to political influence or lack of
concern), so SC must have revising authority
a. Individuals could be deprived of rights if case tried in State court and State does not
properly abide by the Constitution
iii. ♠ Art III (see below) gives SC power over all cases, in law & equity, arising under the
Constitution (Textual)
iv. ♠ Compact ‘among the people’
a. States organize, but Constitution owes obligations to the people
v. ♠ Constitution has provisions to limit state sovereignty
a. Art 1 § 10 – List States cannot do (limits)
b. Art 1 § 9 – List Congress cannot do (limits)
c. 10th Amendment – “nor prohibited by it to the States”
C. Defense:
1. State is sovereign & Fed cannot exercise control
2. Constitution is compact among sovereign states
i. State ratifying conventions, only needed 9 states
ii. Emphasis on States (Senate and House lines)
iii. Senate Appt’d by State Senate/Legislature
iv. 10th Amendment (Textual argument for state sovereignty)
a. Enumerated Powers
b. State gets everything not delegated to Federal Government
D. Noted Cases:
1. Affirmed in Cohens v. Virginia, 1821: unlawful sale of lottery tickets
i. “judicial power, as originally given, extends to all cases arising under the constitution or a
law of the US, whoever may be the party;” See Art III
2. Extended in Cooper v. Aaron, 1958: Arkansas failure to comply with desegregation

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 i. courts have special and distinctive role to guard the meaning of constitution, thus implying
that other branches seek court guidance (aka judicial supremacy)

The Powers of Congress

§ 5 Federalism & Federal Power Generally
A. Origins of Enumeration
1. U.S. Term Limits v. Thornton: “the United States is not a confederation of nations in which
separate sovereigns are represented by appointed delegates, but is instead a body composed of
representatives of the people.”
i. Dissent: power stems from the consent of the people of each individual state, not
undifferentiated people of the nation as a whole
B. Limits of Powers
1. Enumeration intended to limit powers of congress
2. Hamilton (See Fed 84) argues that Bill of Rights implies more powers than expressly granted.
Argues it to be unnecessary and dangerous – “abuse of authority not given”
C. Values of Federalism
1. Efficiency: Economic (and other) problems can be resolved in specific areas while providing
services and goods that are easier on a large scale (e.g. defense, transportation, communication)
2. Individual Choice:
i. Nation can enforce social norms shared by majority of nation (e.g. congress enacts laws
forcing non-compliant states to obey and eliminating advantage detrimental to other states)
ii. Limiting government allows people to choose the state (and therefore policies) they prefer.
3. Experimentation: Local level does not impact country, but can be testing ground for bigger
policies
4. Democracy: People can participate directly in political process
5. Preventing Tyranny: State's break national governments monopoly on control

McCulloch v. Maryland, 1819

A. ♠ Important – Must learn
B. Background: Appellant, cashier at bank of U.S., failed to pay state tax to Defendant in error.
Defendant in error sued under writ of error and won at CoA of Maryland
C. Issues:
1. Does Congress have power to incorporate a bank? Yes
i. (H) The Supreme Court of the United States held that the act to incorporate the Bank was a
law made in pursuance of the U.S. Constitution and was a part of the supreme law of the land.
The Court ruled that the “necessary and proper” clause (Art I §8) was placed among the
powers of the U.S. Congress, not among the limitations on those powers, and that its terms
enlarged, not diminished, the powers vested in the U.S. Government.
a. Art I § 8 – “To make all Laws which shall be necessary and proper for carrying into
Execution the foregoing Powers”
ii. Constitutionality of Bank was discussed during first charter and determined to be legitimate
(Historical)
a. Useful arrangement over time (e.g. financing the war of 1812) (Prudential)
iii. Constitution was established and accepted by the people and made binding on State
sovereignties
iv. Restrictively limiting right to create bank because not expressively in constitution would
make it difficult for congress to achieve ends enumerated in constitution (EX: Art I §8 power

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 to "establish post offices and post roads" implies power to deliver mail and punish theft. The
right to punish is desirable but not necessary, meaning a lesser threshold of "necessary.")
v. Definition of ‘necessary:’ needful, incidental, conducive to (see Hamilton: Opinion on
Constitutionality of an Act to Establish a Bank).
a. Marshall gave example of 'absolutely necessary' (Art I §10) being restrictive on states.
b. Necessary is also in the powers clause and not limitations clause
2. Does State have power to tax the bank? No
i. (H) The Court held that the state’s sovereignty did not extend to those means that were
employed by the U.S. Congress to carry into execution powers conferred on that body by the
people of the United States.
ii. 1) power to create implies a power to preserve, 2) power to destroy, if by a different hand, is
hostile to and incompatible with these powers, and 3) where the conflict exists, the supreme
power must control
iii. State imposing tax on Fed is taxing other states also (Structural)
a. Impermissible because lack of representation (100% revenue, <100% cost)
b. Intergovernmental immunity against state regulation/taxation
D. ♠ Textual Argument in Detail – Necessary and Proper clause
1. Art I § 8 – Announcement of Congress’ powers
2. Against: Theory of Enumerated Powers
i. Limited things Congress can do
ii. Remaining given to the States and People
iii. Stringent view of the necessary and proper clause
3. For: Expansive view of Necessary
i. Art I § 10 ‘Absolutely Necessary’ on States
ii. Expressly delegated in articles of confederation vs. delegated broadly in Amendment X
iii. Constitutions vs. Legal Codes – Interpretive Theory
a. Nature of Constitution is broad outline vs. detailed rules
b. “It’s a Constitution we’re expounding”
c. Endure for years to come – adaptable to the “crises of human affairs”
This is different than argument in Schenchter, which argued that Government should
NOT expand power in times of crises
McCulloch was not written in a time of crises
E. Types of Arguments:
1. Historical – constitution by the people
2. Textual – “necessary” clause, “post office” article
3. Structural – “absolutely necessary” vs. “necessary”
4. Prudential – limitations make it hard to maintain enumerated powers

§ 6 Congress Powers & Limitations

Article I, § 8 “To regulate Commerce with foreign Nations, and among the several States, and with the
Indian Tribes”

Forms of Federalism

A. Preemption – displacement of State law when they conflict with Fed law
1. Express: Congress says states cannot regulate
2. Conflict: Interferes with purposes of federal law, simply cannot coexist
3. Occupation of the Field: Congress pervasively regulates and displaces States from regulating
B. Dormant Commerce Clause Doctrine – a restriction prohibiting a state from passing legislation that
improperly burdens or discriminates against interstate commerce (even if Fed law is non-existent)

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Gibbons v. Ogden, 1824
A. Background: Appeal to SC of NY state court grant of injunction against ferry service seeking to
operate in New York waters. Ferry operator (O) granted exclusive right to operate before competing
ferry (G) opened.
B. Issues: [Opinion: Marshall]
1. Can Congress give license to vessel operating in State’s waterways? Yes
2. Does State have authority to impose on Fed power? No
i. Commerce Clause provides:
a. Congress with power to regulate commerce amount several States
b. Limitations on the exercise of state power
ii. Definition of Commerce (Textual argument)
a. “commercial intercourse between” x, y, & z
b. Broad term, rejecting slick of activities
iii. Definition of “Among the several States” (Textual)
a. “intermingled with” – does not stop at the boundary but also goes into the interior
Rejects static notion that it is only a customs power and that Congress has to define
categories
Strictly interior is left to states – complete within a state, not affecting other states,
and not necessary for fed to interfere for general powers
With foreign nations it would be impractical to stop at boundaries of states
(Prudential)
iv. Narrow construction and understanding of powers granted to government make the
constitution unfit for use. It entangles the original intent and creates doubt where none was
before. (Historical)
C. Argument against:
1. Ferry is navigation, not commerce
i. Commerce only includes goods
2. Fed power stops at NY waterways

Commerce Clause before 1937

Evolution of Commerce Clause

A. Two SC approaches to determining the constitutionality of a IC law:
1. Formal Approach – Court examines the statue and the regulated activity to determine if the
certain objective criteria is satisfied
i. e.g. – upholding regulation triggered by goods crossing state lines. Ignores economic effects
and actual motivation
2. Realist approach – Attempts to determine the actual economic impact of the regulation and the
actual motivation of Congress. Some reasoning:
i. Stable transfer of goods
ii. Availability of goods on the National market
iii. Attack State obstacles to the free flow of goods
iv. Attack private obstacles to the free flow of goods
v. Facilitate strength of American markets
vi. Protect dangerous/unseemly articles from interstate market
3. Both sides use both approaches
i. Fluid use of each
B. Two major Acts
1. Sherman Act of 1890
i. requires the United States Federal government to investigate and pursue trusts, companies
and organizations suspected of violating the Act

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 ii. imposed to curb power of big companies to monopolize production
iii. late 1880s saw a shift from promotion of business to regulation
2. Interstate Commerce Act of 1887
i. federal law designed to regulate the monopolistic railroad industry
C. Challenges to acts
1. Internal Limits – beyond the Fed power to regulate
2. External Limits – prohibition on Fed exercise of power
i. e.g. – limit violation/regulating speech under 1st Amendment

Direct, Indirect & Stream of Commerce

A. Intent and Congress power
1. Indirect & Remote - the intent is to reduce a supply of a good
2. Direct - the intent is to restrain or control the supply
i. See Carter v. Carter Coal
B. Stream of Commerce
1. Business being a "throat" in which the current of commerce flows, and the transactions are only
incident to this current, from one state to another.
C. Precedents
1. Court expanded its rulings once Congress began to regulate the economy more broadly.
2. Added a "public interest" component to the stream of commerce test.
D. State Police Power vs. Fed Commerce Power
1. Realist approach (morals/purpose) impacts State’s right to police power
2. No consistent argument
i. Both sides can use both kinds of reasoning – are able to move between formal and realist
reasoning approaches
3. If Congress has the right to regulate, the method used does not matter – entirely up to them
i. Harlan pg 195 (Champion) – Admits Congress could abuse, but says this is not the case. This
is not arbitrary and other states ban lottery. No constitutional right violated

Hammer v. Dagenhart, 1918

A. Background: Congress passed child-labor law prohibiting IC of goods made by children under 14 or
15-16 when working +8 hours, +6 days, or nights. P secured injunction against D. D is Appellant.
B. Issue:
1. Does Congress have power to enact child labor laws under ICC? No
i. Power to regulate ICC is to control the means by which commerce is carried on, not to forbid
commerce from moving
ii. Act does not regulate transportation among states, but standardized ages at which goods can
be produced [Realist]
a. When ready to ship (i.e. IC), labor is already over
b. Because they were intended for IC does not make them subject to Congressional control
iii. No power in Congress to require States prevent unfair competition
a. This is in response to argument that the few States with no child labor laws have unfair
advantage
iv. Twofold Issue ♠ “In a two-fold sense repugnant”:
a. “Transcends the authority delegated to Congress over Commerce”
b. “Exerts power on a local matter to which the Federal authority does not extend”
2. ♠ Realist in rejecting because not motivated by IC, but not-realist by rejecting a lot of the
arguments for a realist approach (below)
i. Rejects high level abstraction
C. Dissent:
1. Statute prohibits transportation of certain goods in IC. Congress has power to regulate this.

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 i. Act indirectly effects the child labor laws
ii. States can still regulate the laws within their body
a. See McCray v. US where court ruled in favor of law regulating food coloring going IC
D. Realist v. Formal
1. Realist in rejecting because not motivated by interstate commerce
2. Not-Realist in ignoring all of the arguments for Realist reasoning
3. Essentially, a Limited Realist case:
i. Rejects a high level abstraction about what the congress can regulate

U.S. v. EC Knight Co., 1895

A. Background: US attempted to invoke the Sherman Act to stop acquisition by American Sugar
Refining of four competitors, thereby giving ASR 98% of total manufacturing market
B. Rule: EC Knight – ♠ Formal Approach, J-Fuller
1. ♠ Commerce is after manufacture, not part of it
2. Effect on prices is indirect
3. Just because article manufactured for export, does not make it an article of IC
i. ♠ Result is independent from nature, even if it will impact IC, not important
4. Intent does not determine when article passes from state to commerce
C. Dissent
1. One state is not in the position to stop a monopoly
i. Monopoly affecting buying and selling outside the state affects everyone in the US
ii. Whatever obstructs the free course of IC should be reached by Congress

Houston, East & West Texas Railway v. U.S., 1914 (Shreveport Rate Case)
A. Background: Rates of shipping were more from Texas to LA than longer distances within Texas
B. Rule: U.S.
1. Whenever interstate transactions of carriers are so related that the government of the one involves
the control of the other, Congress is entitled to prescribe the final and dominant rule. Otherwise,
Congress would be denied power and state would have National authority

Champion v. Ames, 1881 (The Lottery Case)

A. Background: SC upheld Federal Lottery Act of 1895, which prohibited interstate transportation of
foreign lottery tickets. Champion took Paraguayan lottery tickets from Texas to California.
B. Rule: Ames, ♠ Formal Approach, J-Harlan
1. Carry from one state to another of things with a recognized value in money clearly constitutes
interstate commerce.
2. Congress supplemented the actions of States who ban lottery on moral grounds.
3. If Congress has right to regulate, the method used does not matter
i. Opinion admits it is possible that Congress could abuse, but says that is not this case. This is
not arbitrary, no right violated, does not create a slippery slope
ii. Moral approach – Fed Police Power?
a. Concede that this was moral legislation but they could regulate commerce nonetheless

A.L.A. Schenchter Poultry Corp v. U.S., 1935

1) Background: Live Poultry Code established regulations (hours, wage, etc.) under the principle of fair
competition. Schenchter ran slaughterhouse with quick turnaround (under 24 hours) and was in
violation of the code. SC struck down the act.
a) Not regulating goods in any way
2) Rule: Schenchter
a) People who act under constitution are not allowed to transcend rights because they believe more
power is necessary. 10th amendment precludes this.
b) Slaughtering and sales were not part of IC

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 c) "Flow" or “Stream of Commerce” of goods into a state does not continue once the property
arriving becomes comingled with the property of the state and held for local use
i) Realist argument to describe activities subject to regulation (See Stafford)
d) If commerce clause reached all transactions with indirect effect on commerce clause, fed would
take over everything, leaving state concerns irrelevant except for sufferance of the fed
i) Police power moving from Fed to States
e) Authority of Fed cannot destroy the distinction between commerce 'among the states' and the
internal concerns of the state.
3) Respondent Argument – New Deal philosophy
a) Macro-economic theory that stabilizing wages will increase demand and boost prices
b) If Congress cannot regulate:
i) Wages down
ii) Prices down
iii) Resulting in economic chaos
c) Economic vitality at stake – Fed expansion of power is justified

REVIEW:
A. Hammer v. Dagenhart
1. Congress real and practical application was regulation of manufacture
2. Manufacture is part of state right and not congress
3. If congress can use this device, it would transform the power to regulate commerce as a general
power to manufacture goods
4. Twofold sense
i. Not part of the enumerated powers
ii. Deprive states of responsibility to regulate goods for health and safety of citizens
5. Repudiation of Ames
i. Ames – Formal, Hammer – Realist
ii. Effort to distinguish
a. Goods in violation but not evil vs. evil
B. Schenchter
1. Background – new deal effort to regulate prices
i. No formal mechanism as used in Hammer
2. Court strikes down statute
i. Activities distant from interstate
3. Directs indirect effects test
i. Practices regulated at the moment they are being regulated have at most indirect effect on
interstate commerce

Commerce Clause 1937-1995

Carter v. Carter Coal

A. Direct v. Indirect
1. Indirect – Congress is going to an intrastate transaction hoping it will have direct effect on IC
2. Direct – How important is the goal to having a direct effect on the availability of goods on the
open market
3. Cardozo: Think about the issue practically
i. If congress can’t regulate, facing great disruptions on availability of goods on the open
market
ii. Wants to transform the direct/indirect test to a realist perspective
a. Shift from Schechter

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B. Lochner Era
1. 1905-1937
2. Actively invalidating statutes on the ground they interfered with right to contract
i. Due process clause of 5th and 14th amendments
a. 5th – Federal regulation
b. 14th – State regulation
ii. Two concerns with new legislation:
a. Beyond Federal power
b. Unconstitutional because interferes with individual’s rights to sell their labor on market
and employers rights to purchase labor on market without interference from government

NLRB v. Jones & Laughlin Steel Corp.

A. NLRA (National Labor Relations Act)
1. Protects right of collective bargaining
2. Allows workers to unionize
3. Restricts employers from discriminating against union members
i. Employee expression of union feelings
B. Jones claim
1. Not interstate commerce, manufacture of one particular item
2. No direct relationship between mining and IC
3. Note everything they do is part of interstate commerce, only certain aspects (e.g. railroads,
shipping vessels, etc.)
C. NLRB claim
1. Activity is a web of activity “likened to the heart of a self-contained highly integrated body”
D. Reasoning (for NLRB)
1. Close and substantial relation
i. This is a matter of degree
ii. Rejects the Direct v. Indirect relation before which was based on the nature (formalist notion
where certain activities immune
a. Moves to practical notion that turns on the magnitude of effects on IC

U.S. v. Darby
A. Fair labor Standards Act
1. Regulates in the same way as Hammer (goods going IC produced with substandard workers)
2. Direct prohibition on paying workers who are producing goods for IC
B. Reasoning (US, overruled Hammer)
1. Motive & purpose of regulation is a matter of legislative judgment
i. Not for the court to inquire into the motives or purposes of Congress
ii. Once Congress regulates good as they move across state lines, they have conformed to the
Constitution
2. Not appropriate to inquire why Congress is regulating goods, only that they are regulating goods
3. McCulloch
i. Suggests we should care about the overall goal of Congress (whether Congress is acting pre-
textually
ii. Reconcile with Darby
a. Court is saying that regulating an activity earlier is the means, the end is still interstate
commerce. Not for Court to inquire of the means
b. McCulloch is saying if Congress is asserting a power it doesn’t have, then the Court
should step in
4. Minimum wage law (upheld by the court)

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 i.Regulating the wages directly is helpful to regulating the IC ban, therefore it falls under the
‘necessary and proper’ clause and is constitutional as an important way to regulate IC
5. Argues State’s rights are not violated under the 10th amendment
i. 10th amendment falls after the Articles and encompasses everything that is not ruled to be
allowed for Congress
C. Result
1. Enormous expansion of power in overruling Hammer and now establishes right of Congress to
directly regulate production/wage
2. ♠ Good example of how the court blatantly overstepped what the intent was of the Constitution
(with exception of Wicker)

REVIEW:
A. Schechter
1. Indirect relation on interstate commerce
2. Distinction turned on logical effect of regulation of commerce regardless of the practical
application
B. Carter v Coal
1. Indirect relation (production)
2. Introduction of Magnitude of effect, but sticks to category
C. Jones Laughlin
1. Rejects earlier cases
2. Effect on commerce, not the source of effect
3. Magnitude and Effects
4. Practical conception
D. Darby
1. Rejects motive as a proper inquiry
i. Congress is unquestioned on its power to regulate anything crossing lines
2. Necessary and Proper to directly regulate things that will impact interstate commerce
3. 10th Amendment is a “truism” and doesn’t have any interpretive significance

Wickard v. Filburn
A. Agricultural Adjustment Act
1. Set quotas for wheat that can be harvested
2. Congress wanted to limit supply to keep demand/price higher
B. Aggregation principle
1. Focus on collective group of persons being regulated
2. One person’s action might not affect IC, but that issue by everyone in the collective would
3. ♠ Prevents individuals from claiming exemption from regulations on interstate commerce.
Otherwise, Congress’ power would be extremely limited.
C. Reasoning
1. Personal production is substitute for purchasing items on open market
i. If you didn’t do what you do now, you’d be involved in IC
ii. Anytime you are self-sufficient, you are competing with IC. Therefore, Congress can regulate
local production in the theory that it’s a substitute
2. This reasoning was only applied to this case as it had a factual basis
D. Impact
1. Continued decline of formalism
i. Magnitude applied under Aggregation principle to determine if Congress has ability to
regulate
2. Growing deference to Congress with respect to their ICC power

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 3. No cases 1937 to 1990s with limitations on ICC power

Civil Rights Cases

A. Civil Rights Act of 1875
1. Prohibits discrimination on race and color in places of public accommodation
B. Reasoning
1. Unthinkable that Congress is imposing regulations on private business
2. ♠ If this was decided under ICC, they would rely on Gibbons
i. Local matters
ii. Does not extend across state lines, etc.
3. Power granted to Congress under 13th (and 14th)
i. “Congress shall have the power to enforce this article by appropriate legislation”
a. Congress wants to treat as full cititzens and have equal participation in civil life
ii. Court says “there must be some stage in the progress of his elevation when he takes the rank
of a mere citizen and ceases to be the special favorite of the law.”
a. XIII Amendment abolishes slavery and does not give Congress the ability to regulate
local race conditions when they warrant something close to, but not, slavery
b. “It would be running the slavery argument into the ground to make it apply to every act
of discrimination which a person may see fit to make as to the…”
4. VERY Important Decision under 14th
i. 14th Amendment “nor [any state] deny to any person within its jurisdiction the equal
protection of the laws.”
ii. Argument is that 14th operates on states that deny individuals equal protection under the law
iii. ♠ State Action Doctrine - Individuals do not deprive you of constitutional rights
a. Court reasons that under certain circumstances, private discrimination could be an action
of the State
b. Dominant approach eliminates theory that State is responsible for the private conduct
They are not reachable under § 5 power because they do not dictate the private
discrimination
iv. Birthright Citizenship Clause (§ 1 of 14th)
a. Argument that ‘State’ does not attach, and Congress can declare racism to be essential to
born citizens
b. Counter-argument that it only declares people citizens of Fed as well as State (narrow
argument)
c. Court does not address this clause and its ability to allow Congress to do something

Commerce Clause after Lopez

United States v. Lopez (1995)

A. Modalities of argument
1. Structural – constitution of enumerated powers that implies a balance of power between Fed and
States
2. Doctrinal – three categories for regulation under ICC
i. “substantial relation” to IC
ii. Channels of IC
iii. Instrumentalities of IC
B. Lopez
1. in light of all considerations, Congress exceeded power when regulating guns at schools
2. court did not dispute chain between guns and negative effects on national economy
i. distance in activity was enough to prevent the chain of causation

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 ii. Compare to Schenchter and Carter Coal – certain activities by their nature cannot be
regulated by acts of Congress even if causal chain asserts significance to national economy
a. direct v. indirect – logical relation and NOT magnitude

United States v. Morrison (2000)

C. Morrison
1. Congress documented magnitude of effect (hc costs, lost hours in employment, travel changes)
i. Court doesn’t dispute this. They reject idea that Magnitude is determinative when active
regulated is private assault and not commercial
ii. Congressional findings are not enough

Gonzalez v. Raich
A. Regulation of intrastate production of marijuana
B. Court held that Congress has power under ICC to regulate
1. right to regulate “class of activities” that have substantial effect on IC
i. Wickard – regulate intrastate activities not commercial as long as rational basis exists
2. prudential – hard to differentiate between grown for personal use and that cultivated for illicit
trade in IC
3. part of a larger regulatory scheme in which Congress is regulating a commercial market with
great magnitude

Raich v. Gonzales
A. Two statutes
1. Federal – CSA (controlled substances act) comprehensively regulates drugs in country
i. makes it criminal to do anything with regard to the drug (except for approved research
studies)
2. Local – CUA (compassionate use act) allows pot use in certain circumstances
B. Raich claim – federal government lacks the power to regulate their use of pot; its application to their
use is unconstitutional because their activity does not substantially affect commerce
1. no current findings related to their particular use of pot
2. not economic activity to possess, cultivate and use marijuana
3. no jurisdictional element
4. traditional area of state regulation (health & criminal law)
i. state has given a limited group of people access to pot under very limited circumstances
ii. unlike Lopez/Morrison, state made determination about what the policy of the state should
be. Fed is effectively overruling them and invalidating state statute
C. Fed claim – comprehensive federal regulation of a commodity in the interstate market
1. This is an internal limit (see Lopez ruling stating not ok because no larger regulatory scheme)
i. Dissent – ruling punishes congress when they regulate piecemeal, but when they have a more
comprehensive ruling, they are ok within the rights of the constitution
D. Should the court carve out an exemption when the impact to the commerce is rather small?
1. First case where the case does not challenge the statute, only a small exception within
2. as applied challenges are not available
3. congress can use necessary and proper clause to regulate individual instances that do not affect
interstate commerce but are part of a larger regulatory goal
4. Lopez factors usable only when Congress regulates small area
E. Rational Basis
1. All court has to decide is if congress had a rational basis for exerting the specific power that they
did in the case

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REVIEW:
A. Pre-Lopez
1. Rational-basis review with great deference to Congress
2. Lopez & Morrison go against this history
B. What is Raich?
1. Scalia’s opinion tries to hold all the opinons together
i. way to understand Lopez/Morrison – Congress has wide latitude in deciding intrastate
economic activity needs to be regulated because of effects on IC
ii. local, non-economic activity is not reachable under ICC
a. can’t just show that local non-economic activity will hit IC through a chain of events
iii. general broad economic scheme in Raich allows Congress to reach the local cultivator of
marijuana due to the necessary & proper clause
a. they have latitude to adopt these measures
iv. Congress can reach those small, local activities if part of a bigger program
v. rejects the idea that Raich is return to pre-Lopez
2. Darby is good support of Raich

Health Care Law

A. Characteristics:
1. Regulates health insurance providers (preexisting conditions)
2. Requires people to buy health insurance
3. Creates markets/changes for health insurance
4. Expands Medicaid
5. Incentives for small businesses to provide health care coverage
6. Tax incentives and subsidies for ind to purchase and bus to provide
B. Challenge
1. Unconstitutional to require individuals to have insurance against a penalty
i. regulating passive conduct instead of an actual activity
C. Gov Argument
1. Not regulating activity, regulating how it’s paid for
i. everyone receives health care, so no one exempt
2. incentive to not purchase until sick, so necessary as part of the scheme
D. Importance:
1. question is whether necessary and proper clause allows government to require purpose to enact
the rest of their policy
2. external argument – does the statute violate due process clause? is it a violation of individual
liberty?
i. should the Government be able to compel you to do something?

Implied Limits on Federal Power

Garcia v. San Antonio Metropolitan Transit Authority, 1985

A. Does the Fair Labor Standards Act apply to state employees?
1. states have sovereignty over things like taxes and structure of government
2. National League of Cities recognized area of sovereignty as when State is acting in a traditional
governmental function
i. Court abolished this and allowed federal regulation in any area because they could not see the
line drawn in NLoC
ii. As long as fed is regulating in a broad way, States cannot claim state sovereignty
iii. 10th Amendment does not present an obstacle
a. regulating generally = regulating States as well

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 b. not a judicially enforced external limit (see Darby)
3. Practical concern – can’t ID state sovereignty
4. General argument – political check vs. structural check
i. Court not going to decide areas of sovereignty because there is political protection
ii. Structural feature protecting states interests – State Senators
iii. Gibbons – if people switch allegiance to Fed regulation, there will be powerful counter-forces
that prevent states from being overwritten

New York v. United States, 1992

A. Low-Level Radioactive Waste
1. Monetary: part of surcharges delivered to secretary to redistribute to states who dispose of own
waste
2. Access: surcharges could be increased and eventually state could deny entry of waste
3. Take-title: state had to take possession of waste produced within its borders by a certain date
B. Art I § 10
1. States cannot enter into compacts with each other without congress’ approval
C. vs. Garcia
1. regulates private parties as well as states
2. destruction of 10th Amendment does not apply when imposing obligations directly on states
3. therefore, does on control on this case
D. Real danger is that it blurs the lines of accountability
1. not about protecting the state in its own right
2. Constitution divides authority, and individuals are harmed if this distinction is removed
i. individuals might not like the law and could assume this is coming from State, when in
reality, States are acting as puppets of the Fed
E. Significance
1. rejects the broadest reading of Garcia (10th A not a Constitutional limitation on Congress power)
2. revives idea that there are certain things Congress can’t do under the 10th Amendment

REVIEW
A. National League of Cities – 10th Amendment limits Fed. regulation of states in areas of “traditional
governmental functions”
1. areas that undermine state sovereignty
B. Garcia – Where Congress is regulating states via “generally applicable law,” checks are political not
judicial
1. 10th Amendment doesn’t exert judicial limitation on Congressional power
2. Protections are political
C. NY v. US – 10th Amendment precludes “commandeering” states. Says 10th Amendment does have
limits on Congressional power, at least as far as targeting states. Federalism is a protection of the
people.
1. Alternatives:
i. Preemption
ii. Spending Power

Printz v. United States (1997)

A. Background:
1. Brady Act establishes national instant background check; requires local enforcement to conduct
background checks
B. Discussion:
1. Commandeers state executive officials
i. Court says that this has an element of imposing policymaking on state executives

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 ii. Court also says this breaks down accountability and blurs lines of state/fed
2. Dissenters say that Government can act directly on the people, since that is what the Articles of
Confederation showed that unless it can do this, it would be powerless in many areas
i. There is a history and practice of federal government using state executive officials
3. Stevens – state courts have to hear claims of federal issues on the same level that they hear state
claims.
i. Why should state courts have to be under the federal thumb, while the state executive and
legislative branches aren’t?
ii. This shows that perhaps state government can be commandeered for federal purposes to some
extent
iii. Perhaps because they don’t make policy, which is where sovereignty resides.
4. Physician assisted suicide case in Oregon, Gonzalez v. Oregon
i. Government wanted to strip physician’s of their license if they assisted suicide
ii. Question was: Is the Attorney General’s interpretation of the statute a valid interpretation?
a. Court argued that the CSA did not allow the federal government to allow this.
iii. Two ways to enforce federalism-based limits on the Commerce Clause Power:
a. Directly overrule statutes where Congress has gone too far.
b. Canon of statutory construction/avoidance canon
avoiding potentially unconstitutional statutes
forces Congress to be very explicit when it nears the edge of its Commerce Power
c. Ashcroft v. Gregory
Court interprets themselves as policymaking to keep courts out of Congress’ statute,
which would otherwise be unconstitutional
When statutes are close to the line like this, courts can read the statute narrowly to
keep it within Congress’ power

REVIEW:
A. Garcia
1. When Congress regulates directly, is there 10th protection
i. As long as Congress regulates States in same manner as private employers (generally
applicable laws), no 10th Amendment protection
ii. Example of political checks – State can protect themselves
B. NY & Printz
1. Imposes 10th Amendment bar to certain forms of Fed regulation
2. Form of the regulation was impermissible because it compelled the state to regulate according to
Fed instruction
i. General political accountability concerns
a. Don’t know if Fed or State is source
ii. Excessive intrusion into state autonomy
a. Can’t treat states as puppets to effectuate Fed goals
3. Practical questions
i. Does this limit create more intrusive policy?
a. NY v. US – leaves open Fed regulation when broad regulatory scheme
Uses spending power to coerce
b. Articles of Confederation allowed for Congress to regulate through the states
This thought to be ineffective
Odd that 200 years later, S.C. now says too intrusive to
C. 10th Amendment cases more important thematically than practically
1. Most direct discussion of Federalism and distinction between powers of State and Fed

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14th Amendment as Alternative Source of Congressional Power

Alden v. Maine
State can refuse jurisdiction over certain Federal claims

Katzenbach v. Morgan
A. Lassiter
1. Literary tests are constitutional unless you can say
B. 14th Amendment
1. § 5 – Prevent, Remedy or Substantive
i. Most narrow view of Remedial power
2. § 1 – Constitutional violations (intentional discrimination)
C. 15th Amendment
1. § 1 – prohibits intentional discrimination under the Courts view
i. Change in the system not considered unconstitutional
D. Voting Rights Act
1. § 2 – substantive protection against vote dilution
i. Prevents states from adoption provisions that undercut minority representation
ii. Impact protection, not just protection against intentional discrimination
2. § 5 – preclearance provision

REVIEW:
A. Katzenbach
1. If you have been educated through 6th grade in a school where English is not the predominant
language, you cannot be prevented from voting.
2. The Court had previously asserted that literacy tests can be constitutional, as long as they are
targeting disenfranchisement on basis of race, etc.
3. How can Congress use its §5 power to protect the freedoms in §1 (of 14th Amend.)
4. For Monday, figure out different theories of the enforcement power
i. Figure out hierarchy of broadest theory to narrowest theory of enforcement power (can refer
to notes at the end)
ii. When you read Boerne , which theory of the enforcement power does it embrace? Does it
overrule Katzenbac? Is the Boerne view of the §5 power more or less deferential than the
court’s approach to the Commerce power under prevailing doctrine?
iii. Why is the 11th Amendment relevant to the scope of the §5 power?

City of Boerne v. Flores, 1997

A. Oregon v. Smith
1. Scope of protection of free exercise applicable to states in § 1 of 14th A
2. General state-rule punishing peyote use – individuals are burdened by this rule – can they be
denied important benefits?
i. Fact that ind. burdened by general state rule constitutional
ii. “Because of not in spite of its religious burdens” – intentional discrimination
B. Review of SCOUTS review levels
1. Rational Basis Review
i. State has to show legitimate interest rationally related to policy
2. Intermediate Scrutiny (Sex)
i. Important governmental interest and substantially related to policy
3. Strict Scrutiny (Religion)
i. Compelling interest narrowly tailored to achieve policy
C. Religious Freedom Restoration Act

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 1. Creates legislative test of strict scrutiny
D. Is Congress able to impose on local state subdivisions unless they have a compelling reason to not
exempt religious person/organization?
1. Laws (§5) must be congruent and proportional to what the court thinks violates §1, therefore
RFRA unconstitutional
2. Protection is substantive (new broad protection), which doesn’t bear much connection what the
court says violates §1.

REVIEW:
A. Judicially enforced federalism based limits on federal power
1. Commerce clause – Rational Basis Review
B. 10th Amendment
1. Garcia eliminates protection where Congress is limiting generally private parties and states
2. Brightline prohibition in “commandeering” legislative/executive power of State (NY v. US)
C. 14th Amendment
1. No regulation of private conduct under §5 - Civil Rights Cases
2. Congress used §5 power in Katzenbach v. Morgan (complex scheme suspending certain literacy
tests)
i. §1 SC said in Lassiter literary tests were constitutional unless proof of intentional
discrimination
ii. Scheme reached some tests that were not unconstitutional under §1
a. SC said this is permissible because Congress is able to deter (prevent), remedy, and reach
conduct that doesn’t itself violate §1
 Recourses Congress has
 Ability to use prophylactic regulation
iii. Uses rational basis review
a. Court will defer to the scope of the federal regulation
b. Morgan is counterpart to court’s approach in Commerce clause cases
 Deferential in the exercise of Congressional power
3. Boerne – court rejects Congress’ ability to regulate when the scope of the conduct regulated far
exceeds the number of constitutional violations it is likely to catch
i. Range of conduct reached must be “congruent and proportionate” to the number of §1
violations that will be remedied
a. More substantial than Rational basis review
b. SC says congress does not have power (substantive power) to define violations under the
constitution
 Court decides scope of constitutional circle “§1 as defined by the supreme court”
 Marbury v. Madison – court is definitive judgment about meaning
c. Some room to regulate conduct that is greater than constitutional protection, but the C+P
clause is judicial limit
ii. RFRA Regulates in a number of ways they could not under the commerce clause
a. Accommodate religious objectors unless compelling interest not to
b. Certain parts would be allowable under the commerce clause
 Could regulate commercial transaction of drugs used for religious purpose by forcing
States to allow this type of transaction under the CSA (Raich)
 Needs to be part of a broad scheme – “breadth is a virtue under CC but a vice under
§5 of the 14th Amendment”
- Congress passed statute post RFRA to regulate land use cases only
c. What was objectionable, was that it regulated everything
iii. Statute violated the establishment clause (J. Stevens) by Congress using its power in
opposition of the construction

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 a. Evidenced by huge regulation protecting a very limited number of intentional
discrimination violations
D. Voting rights act of 1965
1. Reauthorized in 2006 as the Voting Rights Reauthorization Act
2. Contains preclearance provision
E. 14th Amendment cases
1. Katzenbach v. Morgan
i. Early challenge to the VRA 1965
2. City of Boerne
i. Religious Freedom Restoration Act
ii. Government had to show discrimination served
a. a compelling government interest, and
b. is narrowly tailored to meet those goals
iii. Distinguished from Katzenbach
a. Boerne court said the statute was not congruent and proportional
b. Race discrimination in voting vs. injuries in free exercise of religion
 Strong medicine is appropriate against big evils, but laws that callously burden or
injure religious minorities are not a big evil
c. When Congress enacts remedial statute under 14A §5, it cannot invent new constitutional
rights under §1 – can’t change the meaning

Kimel v. Florida Board of Regents (2000)

A. ADEA – Age Discrimination in Employment Act
1. Valid CC statute.
2. Is there a 10th Amendment immunity for States limited by Fed policy of age discrimination? - No
3. Is there a commandeering problem? – No
B. Valid Federal statute, but is it a valid §1 statute?
1. Congress can only abrogate 11th amendment immunity only if statue is enacted under §5 of 14th
Amendment (Seminole Tribe & Hans v. Louisiana)
2. Draw two circles
i. One: court recognized right
a. Cannot discriminate if no rational basis for doing so
b. E.g. forced retirement at age 60 because too expensive to employ
ii. Two: scope of the statute --- are these congruent and proportionate?
a. Rules against mandatory retirement, age of employees, treatment of aged people –
kicking in at age 40
b. Scope of statute is unreasonably broad when compared to the wrongs
3. This doesn’t make the statue facially unconstitutional, just failed the Boerne test under the 11th
Amendment
C. Workarounds not barred by 11th Amendment
1. Suing state officials seeking injunctive relief to prevent State from implementing a policy
2. Fed enforcement action
3. States can waive 11th immunity
4. Suits in State court claiming violations
5. 11th only protects States themselves but not political subdivisions (City, Locality, etc.)

Board of Trustees v. Garrett (2001)

A. ADA – Americans with Disabilities Act
1. Requires reasonable accommodation by
i. making facilities accessible, and
ii. restructuring job requirements

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B. One prior case: Cleburne
1. Issue – should there be heightened scrutiny for mental retardation discrimination?
i. Doesn’t fit into the scheme (i.e. race) but discrimination determined to be irrational
C. Arguments on fact-finding
1. Dissent - Fair amount of irrationality that need to be protected against
2. Majority – Only six cases of documented discrimination
i. Difference is due to majority arguing for State only will dissent arguing for All State actors,
which would change the limitations on the scope of the statute
D. Rational Basis review generality
1. When §1 right is only protecting a rational basis review type group (i.e. not a protected group) it
is almost foregone that any general Fed statue will be constitutionally excessive under §5.
i. Is the converse true? – No
a. Boerne – claim on religious grounds is under heightened protection where no intentional
discrimination is ok, so could write more broad statute; however, this failed.

REVIEW:
A. §5 cases under 14th
B. Kimel – ADEA
1. Is this a valid §5 statute? Matters in two contexts:
i. Some statutes can only be enacted under §5 (RFRA)
a. RFRA as applied to employment or land-use
ii. Some can be regulated under CC & §5 (ADEA)
a. Issue becomes whether Congress can abrogate 11th immunity when using commerce
clause power.
Must be a valid §5 power as well
2. Protection of age is only unconstitutional if it can be deemed irrational
i. ADEA is unconstitutional to the extent of its protections under §5
ii. Congress cannot abrogate 11th immunity under the act because not proportional and
congruent
3. Congress created ADEA prior to the §5 cases under a different set of rules
i. Is the size of the inner (§1) circle theoretical (how likely given rational basis review) or is it a
practical questions (how often states engage in unconstitutional conduce)
a. Boerne requires Congress to document pervasive unconstitutional practices that would
justify the prophylactic general scheme
ii. Role of Congressional fact finding
a. Congress has to do its homework and defend regulating beyond the constitutional
standard established in §1
Congress can’t change §1 and then establish §5 regulation to meet that
Treats congress as a lower federal court “justify what you’re doing”
b. No reason to believe necessary to document. Is it ok to retroactively force Congress to
meet this standard?
4. Court treats 11th as embodying a principle of state sovereignty
i. Codifies preexisting ideas of state sovereignty
ii. Dissent – this principle relates to federal common law and Congress should have right to
abrogate as necessary
a. Court, however, views this as a constitutional item
C. Garrett – ADA
1. Cleburne – no heightened scrutiny
i. Reason for rational basis review is that they want to give proper deference to political
branches

24
 a. Congress comes back and wants to use §5 power to use broader protection based on
disability
b. Court then closely scrutinizes Congress and their documentation of substantial numbers
of constitutional violations under §1
Deference to §1 and scrutiny of §5
D. Tennessee v. Lane
1. D arguing discrimination under ADA and access provisions (to the courthouse) under §1 were
under heightened scrutiny, which allows Congress to abrogate the 11th powers using §5
legislations
E. Significance of recent doctrine
1. Interaction with 11th is far less significant than the impact of Boerne in areas where congress
cannot regulate
i. Could be repackaged into narrower statutes
ii. Certain areas Congress cannot regulate
a. Combination of Boerne and Lopez/Morrison indicate certain things Congress can’t do
2. Future issue
i. Scope of the Voting Rights Act
a. Congress can only regulate this under the reconstruction acts
b. Can Congress be more expansive in protecting against vote dilution and minority votes
than the court recognizes as vital under §1?
c. Act is far broader than proscribing intentional discrimination
§2 & §5 (preclearance provision)
Far broader than what Sup.Court said is discriminatory under §1
d. Court did not reach the question in the recent case that came up to them
ii. Relationship between CRA 1964 and §1
a. Prohibits burdens on racial groups even though no intentional discrimination
b. Is this a reasonable protection under §1 of the EPC?
c. CRA might not only not be a legitimate §5 power, it might also be held to violate §1
A standard that requires removing burdens on social groups might require a certain
level of racial awareness that might be unconstitutional in §1
d. Similar to RFRA (establishment of religion)
e. Forces court to be very precise on §1 power to prevent regulations that might have a level
of race consciousness that might be unconstitutional

Nevada Department of Human Resources v. Hibbs (2003)

A. Family and Medical leave Act
1. Congress trying to prevent sex discrimination (intermediate scrutiny)
i. Discrimination in leave policies
a. Maternity leave favors women and is discriminatory to men
b. Women suffer discrimination in hiring (employers avoid hiring because of costs)
2. Argument for unconstitutionality
i. 4-6 weeks medical recovery, anything over is “childcare” and either party can do
a. Rebut – benefits to child for breastfeeding, which men cannot do
3. Requires 12 weeks unpaid leave on top of eliminating the unconstitutional distinction discussed
below
B. §1 protection
1. This is the first (of the ones we studied) where the court had to decide if a policy violates §1 to
have women only maternity policies
i. Court doesn’t discuss in detail but makes it seem that it’s likely these are unconstitutional
2. Other cases already had determined the extent of the unconstitutionality of the issues being
targeted by Congress

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C. Court reasoning
1. Discrimination in the operation of state leave due to widely observed and longstanding sex
discrimination
i. Therefore ok for State to pursue affirmative entitlement – needed to prevent the
unconstitutional sex discrimination above
2. Does not adopt State’s view that Congress could create a more tailored policy
3. Title 7 provides remedy broader than §1, but Court finds that even though at the outer rim, it’s
congruent and proportionate

§ 7 State Powers & Limitations

Implied Limit on Local Power: Dormant Commerce Clause

Philadelphia v. New Jersey

A. N.J. passes statute prohibiting importation of certain types of waste
1. State argument
i. Quarantine analogy – prevent health issue
a. Similar to Main v. Taylor – had to block baitfish because there are no other means to
prevent waterways from being inundated, therefore distinctive from the waste, which is
general and not special
B. Rule
1. If evenhanded to effectuate a local purpose, upheld unless burden on interstate commerce is
clearly excessive in relation to the local benefits
2. Facially discriminatory statute – unconstitutional
i. Presumptively unconstitutional unless there is no alternative that could be enacted to achieve
the same compelling purpose
3. State cannot directly regulate commerce, only incidentally to achieve an important health and
safety reason
i. Sate have police power over health and Congress has commerce power
ii. If incidentally impacts commerce, must have a compelling reason to do so
C. Why is court concerned about facially discriminatory statutes?
1. Barriers to trade could lead to trade wars
i. N.J. has a “good” (storage space) and is telling out of state people they can’t have the good –
clearly unconstitutional
ii. Creates isolationism
a. Other states are demoralized by being treated as less, could create retaliation
b. One purpose of Constitution was to override
2. Defect in the political process
i. Costs of the legislation are exported to out-of-staters and they do not get to participate in the
legislative process
a. BUT in-state landfill operators would speak up against the legislation
Out-of-states who are most harmed will be demoralized by being excluded. It’s
problematic for people central to the decision to not be able to participate

Kassel v. Consolidated Freightways Corp.

A. Statue limited size of the trucks
1. Passed in 1963 limited trucks to 60 feet
2. 1974 statue vetoed that would have increased the limit to 65 feet
3. Exemptions to the 60 foot limit in border cities – they don’t bear burdens of exclusion
B. Test/Rule
1. If facially neutral (same restriction on in and out of state trucks)

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 i. Unconstitutional if burden on interstate commerce is excessive in relation to the local health
and safety benefits

REVIEW:
A. DCC doctrine
1. Can a state act in a certain way where Congress has not acted?
2. First case – Gibbons
i. State law would be unconstitutional even if the Fed had not had a law on the books –
Johnson’s Opinion
3. Robust starting last half century
B. Philadelphia v. New Jersey
1. Explicit differential treatment of out-of-state waste
2. Facially discriminatory = virtual per se rule of invalidity (“strict scrutiny”)
i. Unless, compelling state interest that cannot be served by other non-discriminatory means
ii. Exception – Main v. Taylor (quarantine justification)
iii. Exception to Exception – Dean Milk (all milk sold has to be pasteurized, but court held could
be handled different ways)
C. Is court overreaching by creating judicially recognized doctrine based on implication that grant of CC
power to Gov withdraws the power from the state?
1. Political accountability
i. Creates anxiety and discord between the states
ii. Lead to retaliatory measures
iii. Out of state people are not fairly represented
a. Echoes argument in McCulloch
2. Economic accountability
i. Creates inefficient use of resources
a. Need a “national” economy for strength of country
ii. Export costs
a. No political dynamic to prevent this – mixed theory of both political and economic
D. Kassel
1. “Even Handed” regulation, then burden on commerce must be excessive in relation to legitimate
state interests
i. Facially neutral only violates if the burden is grossly excessive in relation to the local health
and safety
2. State does not offer health and safety interest in enacting the regulation
3. Regulation substantially burdens ($12M shown as a cost)
i. Not justified by safety arguments
4. Dissent:
i. Many states limits the truck lengths – looking at marginal length of safety is not appropriate
because people could challenge at every increment
ii. Why is this interest good enough for other states but not in Iowa
a. Exact same statute can be unconstitutional in one part of the country but permissible
somewhere else
5. Default rule – Congress can change and make what was unconstitutional constitutional
i. Congress passes statute allowing States to set length, then Iowa statute becomes
constitutional
a. Can always reverse course under it’s CC power and “ratify” what was deemed
unconstitutional
ii. Surface transportation regulation – passed in response to allow Fed power to authorize
decisions by the states (e.g. Iowa)

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Hunt v. Washington State Apple Advertising Commission (1977)
A. History
1. Washington introduced its own scale to distinguish its very good apples above and beyond that of
the USDA regulations
2. North Carolina regulate by limiting all marketing to USDA grades only
B. Arguments
1. Wash – harmed by NC law because deprived of comparative advantage and expensive to change
labeling from one state to another – injured economically
2. NC – states could all have own grading and confuse buyers
C. Court
1. Discriminatory intent
i. Might be passed at behest of local apple producers
a. Any law that benefits one group might indicate discriminatory purpose
ii. Local health and safety interest is so small, might be something else going on
2. Similar to Kassel – excessive burdens (and skeptical of health and safety interest

West Lynn Creamery, Inc. v. Healy (1994)

A. History
1. Tax on all milk sales, which was redistributed to in-state producers via the “dairy equalization
fund”
B. Massachusetts can write check to dairy industry (subsidy from general funds)
1. Market-participant doctrine – allows state expenditures to discriminate against out of state
interests
i. State acting as a business, it can make business decisions without worrying about violating
the DCC
ii. Dominant theory – State protecting health and safety
iii. Hughes case – Maryland case buying immobile cars but only those with Maryland plates.
2. Clear that there is difference between regulation and tax & spend
i. Always the way they have done it. Taxes are legitimate and subsidies are legitimate.
ii. Line drawn where tax is distributed right back to the special group
a. Distorts the political process
Needs to protect the values of federalism
b. Tax and direct subsidy is no different than taxing out of state and in state products
differently
C. Why not let Congress use their Commerce Clause power to correct this?
1. They don’t have time to do anything
2. Filing a lawsuit is much easier than having Congress pass laws to remediate certain situations
(e.g. Kassel)
i. Courts are more aptly suited to pinpoint the certain regulations/statutes that are
discriminatory and unconstitutional
a. Congress can come back and authorize something immediately (one area of law they can
declare something constitutional)
ii. Criticism – doctrine of implication – Art 1 power not Art 3 power

REVIEW:
A. Facial Discrimination with statute
1. Virtual per-se rule of invalidity – Philadelphia v. New Jersey
2. States try to avoid these now that there is an established rule
B. Not facially discriminatory (or “evenhanded”)
1. Do not make a geographic distinction (e.g. no trash, vs. no trash from out of state)
2. Are constitutional unless

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 i. The burden on interstate commerce is clearly excessive in relation to a legitimate local health
and safety interest
ii. However, cases strike this down
a. Kasel – truck length limit
b. Hunt – evenhanded labeling requirement because imposed significant burden on out of
state producers and questioned local health and safety interest
c. West Lynn – can discriminate against out of staters only if subsitdy is direct from general
revenues instead of special subsidy from the special tax
Combination of evenhanded tax and subsidy from these particular revenues is akin to
a discriminatory tax
Discriminatory tax is virtually per se unconstitutional
3. Deference fades away if there is some evidence of discriminatory purpose
i. Exceptions to the rule – Kassel
ii. Legislative history – Hunt
iii. Must be a legitimate local health and safety purpose – majority casts doubt on legitimacy of
the statute if there is any evidence of discriminatory purpose
a. The tests help the court decide if the statue is “facially discriminatory” vs. “evenhanded”
b. Not rational basis – searching inquiry seems to be a higher standard, which has resulted
in more State’s losing on these grounds
C. Market-participant doctrine
1. States have greater level of freedom when they are using their own recourse in the market as
oppsed to regulating
i. Hughes – Maryland bounty for dilapidated cars only to cars with Maryland plates. Different
than regulation – law saying junkyards had to give preference would be unconstitutional.
Since it is their money, they have the right to discriminate
ii. Reeves – State owned cement plant will only sell cement to state residents (compare to law
forcing private producers to prefer in state people
iii. Winnike – forcing limber producers to treat wood in state before exporting – unconstitutional
because states cannot affect the “downstream” market
D. Article IV – robust DCC protection
1. Privilege and immunities clauses in Constitution – Art 4 and 14th
2. Art 4 prevents states from discriminating against out of staters for thoese rights that are
fundamental
i. Corefield v. Coryell – where any interest is fundamental, then states cannot discriminate
against out of staters with respect to any of those interest (e.g. Texas can’t limit law to only
Texans)
ii. Example of difference between regulation and market participation – see in-state tuition vs.
out of state tuition – state can cheapen school but can’t prohibit access from out of staters
iii. Non-discrimination principle
a. No affirmative rights
b. Whatever a state gives to its own citizens (direct subsidies don’t count) it cannot withhold
from out of state people
c. Acts as an exception to the market-participant exception of the DCC
Camden – hiring contractors for public projects. City said contractors had to prefer
Camden residents in hiring. Violates DCC if it’s Camden dictating to private
business, but because Camden using own money Market-participant except shielded
them. However, court said there were Art IV problems in preferring local residents
for job. Said there had to be a “strong reason” for employing local residents under
Art IV.
E. Equal protection clause

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 1. Met-life Alabama – Alabama wants to charge out of state insurance companies more unless they
make significant investments in Alabama. Not DCC because Congress authorized states to have
power over insurance companies. Court said, however, that the Equal Protection Clause is
triggered.
i. Court elevates rational basis review when the class regulated is the state of the business
ii. Privileges and Immunities clause of Art IV only protects people; however, the EPC protects
all persons natural and incorporated.
a. Business can litigate under the EPC when state is excepted from DCC
b. Exception to the Market-participant exception to the DCC

Implied Limits on Local Power: Preemption

A. Presumption against preemption
1. Fed should act clearly when it infringes on traditional state rights of health and safety
2. Executive agency pronouncements about preemption is not controlling
i. See FDA preamble in Wyeth v. Levine
ii. Overall circumstances of agency implementation that determines if there is preemption
3. Preemption is a Congressional determination
i. Court might give some weight to agency determination, but not controlling

Crosby v. National Foreign Trade Council (2000)

A. Would this be unconstitutional under DCC?
1. Yes – 1st Circuit found it unconstitutional under DForeignCC
i. States lack power to regulate foreign commerce
2. Even if Congress did not pass a statute, the State statute would be unconstitutional
i. May be a market-participant exception if the state is using their own state construction dollars
ii. Could not prohibit businesses from doing business – would not survive a DCC challenge
3. SC did not touch these issues because they are unsettled, harder and unpredictable
B. Forms of preemption
1. Express preemption
2. Field preemption
i. When Congress is pervasively regulating in an area, there is an implication that Congress has
intended to leave no room for State regulation
ii. This is a very loose test – justices have argued that this is inconsistent with federalism – if
Congress took time to exhaustively regulate, why wouldn’t they include express preemption
in the statue
3. Conflict preemption
i. Impossible to comply with both
ii. Undermines the purposes of federal law – “the law stands as an obstacle to the
accomplishment and execution of the full purposes and objectives of Congress”
4. Fundamental question = Congressional intent
C. Two provisions – Massachusetts v. Federal
1. More extensive
i. Prohibits more business and people than the Fed scheme
ii. No time limit on the sanction
2. Fed statute
i. Only sanctions government business and employee
ii. Gives substantial discretion to the President
a. Power in order to get Burma to comply with various goals
b. Power to create comprehensive strategy
c. Power to add and remove sanctions as needed
3. Massachusetts argument

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 i. State should be able to allow itself to withdraw its funds from evil states
ii. Counter – states part of the nation and nation has the power to deal with foreign entities.
President needs to be able to speak with one voice with dealing with foreign entities.

Wyeth v. Levine (2009)

A. Background
1. Levine injured by IV-push method of administering Phenergan, contracting gangrene, which
resulted in amputation
2. Levine claim is a failure to warn claim
i. Not that there aren’t warnings but that the warnings should have been stronger – should have
warned that IV-push should not be used
3. Levine wins in Vermont
B. Wyeth claims that the FDCA preempts state tort law
1. FDCA requires premarketing approval of labeling of drugs being introduced to the market
i. Medical devices statute has a preemption clause and savings clause (direct and positive
conflict)
2. In Vermont, argues field preemption, but abandons because the savings clause makes the field
preemption impossible
3. Then argues conflict preemption
i. Impossibility – could not comply with both state law duty and federal regulation
a. Couldn’t change the label without approval and could only do so if they had new
evidence
ii. Obstacle to achieving the full purposes and objectives of federal law
a. Geier (airbag case) gave auto manufactures a range of choices in passive restraints. Tort
claim was failure to have airbags – did the law forbid states from enforcing separate
laws? State’s punishment of an allowable choice interfered with the purposes of the law
to spur technological advancement.
Range of choices provided a ceiling of what was required by manufacturers
b. Preamble to the law said tort claims complicated their charge
C. Court rejects the claims - Stevens
1. Impossibility
i. Careful reading of the FDA supplemental warning requirements shows there is no
impossibility because Wyeth not subject to any federal
2. Conflict
i. Status of agency determinations that are relevant to preemption
a. When technical matter is technical and the history is complex and extensive, court has
paid attention to the agency’s explanation of how state law affects the regulatory scheme;
however, court does not defer to an agency’s conclusion
Changed from 1998 to 2000’s due to shift in executive power
b. This involved a conclusion with no open deliberations
ii. Presumption against preemption
a. States will retain historical police powers (local health and safety) unless clear and
manifest purpose of Congress
Burden should be on Wyeth to show
3. Bryer – Concurring
i. In some instances the court should defer to agency determinations after due deliberation
a. Encourages federal agencies to go through more formal and deliberate discussions on
preemptions if they want the court to accede to their determination
4. Alito – Dissent
i. Argues that it might be better to not remove the push-method labeling because it provides
more instant relief

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 a. This scheme is FDA trying to decide what the optimum warning is and not what the
minimum warning is
State tort liability could countermand FDA’s judgment
D. How compares to federalism discussions in other cases
1. Federalism through the lens – when a state is disabled from acting
i. Conservatives – more eager to find preemption and invalidated state law
a. Anti-regulatory with regard to Congressional power
b. Anti-regulatory with regard to State power after Congress has already enacted law
ii. Progressives – more protective of state power and prerogative
2. Congressional Power | Preemption | DCC
i. Conservatives prefer Local right in C.P. and DCC generally, but seem to flip on Preemption
ideas
ii. Liberals are the exact opposite

Distribution of National Powers

§ 8 Powers of the Executive
Distribution of Powers
A. Horizontal relationship between Exec. and Congress
B. Court gives a lot of deference to history in this area

Youngstown Sheet & Tube Co. v. Sawyer (The Steel Seizure Case) (1952)
A. Background
1. President Truman ordered seizure of the steel mills due to pending strike because country was in
war
2. Taft-Hartley act gave president power to impose injunction to prevent labor strike
i. However, the ability to seize was proposed and then rejected by congress during enactment of
Taft-Hartley
B. Issue - Does the president have power to seize the mills?
1. Two sources of presidential power
i. Constitution – Article II
a. § 1 gives executive power to the president (note that § 1 of Art I restricts congress to
powers “herein granted”)
Executive is solely in the president & Legislative power is split between congress and
the states OR
Certain things are inherent in an Executive power but Legislative powers are more
easy to enumerate and specify
b. § 2 gives president “commander in chief power” over armed forces
Court is worried about separating the commander in chief power as it relates to
Foreign affairs compared to Domestic. If court extends president’s ability to have
power over anything relating to war, it would essentially make him commander in
chief of the country and not just the military
c. § 3 responsibility to “take care that the laws be faithfully executed”

ii. Congress – Legislation

a. No statute that would allow him to do this, so no authority
2. Time of Emergency
i. Framers were keen to suspect that giving emergency power would give great incentive to
create emergency to enlarge presidential power

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 3. Private Property
i. Constitutional protection of private property – 5th amendment (due process clause and no
taking of private property without just compensation
ii. Only part of government authorized to take property is congress
a. President cannot initiate this unless congress gives him the authority
b. Compensation comes from Congress
4. Jackson Opinion – three levels of power
i. Acting pursuant to express or implied authorization of congress
a. Most power
b. Includes both powers granted under legislation plus those granted under Art II
c. Does not fall into this zone because not power entrusted by congress
ii. Absence of grant or denial of authority with concurrent authority of congress
a. “Twilight zone”
b. If congress hasn’t acted, might enable/invite the president to assume responsibility
Simplistic to only have Art I and II powers, boundary might overlap and create the
zone
c. Balancing test being offered based on
historical powers
practice
extent of exigency
iii. Measures incompatible with the expressed or implied will of Congress
a. Lowest power
b. Congress might have authority to reach in and withhold certain courses of action from the
unspoken Art II general powers of the president that he might have
c. If this is the case, president can only act if he has explicit power and congress is acting
illegitimately
d. Sounds a lot like preemption
Congress has legislated labor strikes, personal property seizures – extensive
regulation of this area – therefore, it suggests that congress did not want to give the
president the power (see field preemption)
iv. Paper Power vs. Real Power
a. ♠ Pages 364-365

Medellin v. Texas (2008)

A. Background
1. Mexican national arrested & convicted of capital murder in Texas
2. US signed Vienna Convention
i. When any foreign nation arrested, they are supposed to notify consulate and provide
information to arrested about how to contract and get assistance form consulate
a. Ignored by most jurisdictions in US to due complications
3. US signed Optional Protocol
i. Issues and disputes should go to ICJ
ii. ICJ issued ruling requiring US to hear issue
4. Bush signed order requiring states to comply
i. Thinks it would be bad to ignore the ICJ, which wants meaningful review of claim
5. Texas denies review
B. Issue – should the claim prevent his conviction?
1. Self-executing treaties vs. Non-self-executing treaties
i. In order for treaty to be enforceable as domestic law, congress has to agree to it, and congress
did not agree to make this domestic law controlling domestic matters

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 2. SC says Bush acted beyond his authority to require as a matter of domestic law state courts to
hear these claims
i. Illustration of the steel seizure cases – power to make treaties (Art II) does not give power to
make domestic law, which is reserved for congress (Art I)
ii. President can bind the U.S. but not the U.S. in domestic property
iii. Even when foreign affairs implicated

REVIEW:
A. Relationship between branches of Fed government
1. Checks & Balances vs. Separation of Powers
i. Three branches exercise power associated with another branch
ii. Presidential power and limits
a. Steel seizure case – Truman orders seizure of steel mills during time of war with Korea
Black: discusses powers in Art II and assesses whether actions fall under Art II
Jackson: more influential and less formalistic. President powers stem from Art II
powers or the powers conferred upon him by Congress. History has some claim over
whether or not President has this power. Sets up hierarcy of power
(i) Congress given powers – highest ebb of power because both Art II and those
prescribed by Congress
(ii) Congress circumscribed powers – lowest ebb of power. Art II less those taken by
Congress
(iii) No action – twilight zone. Contrasts limited paper power with the actual power
exercised over time.
b. Medellin – see above
President tried to unilaterally commit courts to the treaty without congressional
authorization, courts deemed he lacked the authority

Hamdi v. Rumsfeld (2004)

A. Background
1. Hamdi is US citizen caught in Afghanistan with a group of Taliban
2. Detained because he was deemed to be an enemy combatant
i. Congressional statute (AUMF) gives president authority to use “all necessary and appropriate
force against nations, organizations, or persons” associated with 9/11 attacks
a. People associated with Taliban are part of those “associated” with 9/11 attacks because
they facilitated the growth and strength of the al Qaeda
B. Issue
1. Does president have the power?
i. Hamdi claims Non-Detention Act limits president’s ability to detain citizens of the United
States. “no citizen shall be imprisoned or otherwise detained by the US except pursuant to an
act of Congress”
ii. Majority finds the statue authorizes the detentions
2. Does the detention violate due process?
i. Gov claims this is executive power under Art II to be commander in chief – power not to be
tied in effectively carrying out this responsibility
a. Court shouldn’t try to constitutionalize protections for people detained. Should be up to
the executive to fashion these protections
ii. Court adopts idea that due process does constrain detention somewhat
a. Must give detainee notice of the factual basis for his classification, and
b. A fair opportunity to rebut the government’s factual assertions
Right to counsel
Right to charges

34
 Right to hear the charges
Opportunity to rebut the evidence, etc.
3. Dissent: Scalia
i. Until Congress suspends habeas corpus, citizens should be afforded the full protections of
due process
ii. No such thing as enemy combatant status for citizens
C. Other
1. US doesn’t want to disclose methods of obtaining the information
2. Wants to detain indefinitely to keep access to information from people hostile to the US
3. ♠ constitutional overlay over a constitutional statute limiting president authority

Hamden v. Rumsfeld (2006)

A. Background
1. President sets up military tribunals to deal with person alleged to be enemy combatants
i. Will make decisions about legitimacy of detentions
ii. Removes judicial review and vests in executive authorities
B. Issue – this this system of tribunals permissible?
1. Challenges
i. Violates requirements of UCMJ
a. Congressionally authorized structure for dealing with prisoners on the battlefield
b. President acting in violation of a congressional statute
ii. Violates the Geneva Convention
a. Art 3 gives certain protections
b. Bound by international treaty
2. Congress response
i. Enact detainee treatment act giving COA court authority to review legality of detention
ii. They can only look at
a. “Whether the final decision was consistent with the standards and procedures specified”
b. “maters of law”
3. Court response in Boumediene v. Bush
i. Writ of habeas corpus has certain protections they can’t circumvent unless they suspend the
writ. Court must have ability to review.
ii. Does this extend to Guantanamo? Court looks at the functional status of the base (perpetual
lease, etc.) Gives robust view of the writ. Leaves open the question over whether Congress’s
suspension of writ given the invasion on 9/11 is a decade old. Do not know if there would be
a meaningful judicial review over whether a suspension is valid.

REVIEW:
A. Hamdi establishes at least some due process for citizens detained in U.S.
1. Constitutional limits of the executive power to detain
2. Can targeting (assassination, etc.) be reconciled with this decision?
i. General framework (Matthews v. Eldridge test) looks at
a. the nature of the deprivation,
b. need for administrative need and tries to balance these competing interests when deciding
the level of process needed
ii. Uncertain how this would be resolved
B. Hamdan finds executive tribunals conflicts with statutory authorized procedures under UCMJ & Art 3
of Geneva Convention
1. Executive decision not consistent with statutory limitations
2. Boumediene finds Congressional scheme of determining length of detention is an
unconstitutional interference with habeas corpus rights

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 i. Guantanamo Bay is under de facto control of the U.S. and habeas corpus reaches to the base
a. How far does this extend?
ii. Constitution requires some minimal habeas rights that cannot be withdrawn by Congress
unless they suspend the writ of habeas corpus under Art I § 9
a. Meaningful substantive review of the detention
Those established in DCA (?) are not adequate

INS v. Chadha (1983)

A. Independent vs. Executive Agency
1. Exec – president cannot be limited in the removal power of the head of the agency
2. Why designate?
i. Purely executive power should have chain of command right to the president
a. Congress exercising control is violation of presidential removal power
b. See Myers v. US – postmaster general case – Congress can’t require he be fired
ii. Lawmaking/policymaking power in the agency (or adjudicatory function)
a. E.g. experts who are implementing and refining policies given generally by Congress
FTC
FERC
b. No purely administrative role
c. See Humphrey’s Executor v. US – was permissible for president to fire the head of an
independent agency for just cause
B. Background
1. Chadha in US on visa and stays past expiration. INS allows him to stay in the US because he
satisfied the criteria to avoid deportation (i.e. over seven years, good moral character, extreme
hardship if deported)
2. House has “veto power” over decisions made by immigration judges, and creates resolution to
deport Chadha and five others.
C. Is it permissible for one House to act alone under the constitution if this is a legislative act? Does this
device trample on the idea of separation of powers? Does it disturb the allocation of powers within
the Constitutional scheme?
1. Art I § 7 requires bicameralism (passed by both the House and Senate) and presentment
(presented to president to sign)
2. Legislative veto is form of lawmaking and must satisfy requirements of Art I
3. Response
i. Legislative veto was passed by both houses and presented to the president, therefore
conformed to Art I
ii. President can veto, therefore veto is not a legislative power. It’s just preventing a decision
from going forward and is equivalent to presidential veto.
a. Court thinks this argument would lead to usurping executive functions and taking away
from the Art II power exclusively vested in the president
iii. Legislative veto is response to the rise of legislative power in the executive branch via
agencies
a. See Panama Refining & Schenchter – delegating authority to the executive branch
crafting the non-delegation doctrine
Held that Congress had to give some reasonable precision in its legal standard so the
regulatory implementation would be faithful to Congress’ will as opposed to that of
the Executive branch
Agency charge to regulate “reasonable risks”
Court has interpreted some federal statutes narrowly in light of non-delegation
doctrine (would be in conflict if too broad)
4. Holding

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 i. True that very limited non-delegation doctrine; however, Congress cannot invent device to
respond to executive’s increased power
a. Congress has the means to enact new law to overrule the agency determinations
D. It is equally improper to give away power as it is to try to get more
1. Line-item veto act
2. New York v. US
3. Separation of powers is not for the purpose of protecting institutions, it’s to protect people and the
country

Morrison v. Olson (1988)

A. Background
1. Ethics in Government Act creates independent counsel to investigate high ranking officials for
violations of federal law
2. If AG finds
i. No reasonable grounds for believing further investigation is warranted, then
a. AG goes to special court and notifies them of decision
b. Court has no power to appoint independent counsel
ii. Reasonable grounds for believing, then
a. Special court will appoint an independent counsel
3. AG can remove counsel for “good cause.” Otherwise, counsel can only be removed by the special
court
B. Issue
1. Independent counsel is separate from the executive branch, so there is no political accountability.
He is unconstrained in his power of how and who to prosecute – AG can only fire for good cause
2. Court: (Rehnquist)
i. Does it violate appointment power? (formal reasoning) President has appointment power in
Art II § 2. Inferior officers can be appointment by congress. Inferior officers:
a. Lower on chain of command (removed by AG)
b. Limited jurisdiction and tenure of appointment
ii. Does it violate president “take care” provision? (functional reasoning)
a. Changes test from “purely executive” vs. “quasi-legislative or judicial” to whether statue
impedes on presidential ability to perform a constitutional duty
b. Need to have the independent counsel to make sure the president is complying with the
“take care” provision. On balance, it helps restore constitutional accountability.
3. Dissent: (Scalia)
i. Creating executive official who has none of the ordinary accountability that official should
have
a. One form of accountability is being able to be fired by the president. People therefore
hold accountable by decision on Presdient
b. Now not answerable to anybody.
ii. No accountability creates incentive to dig as deep of a hole as possible to trap as many people
as possible because this is what would be recognized
a. No restrictions on resources and can be politically motivated
iii. Not constitutionally authorized
a. Executive has all the power of the executive
b. Court would never allow this method of functional review in other branches
C. Analysis
1. Vs. Chadha – Wrestling with separation of powers question – is this interfering with
constitutional power
i. Morrison is much more functional vs. the “wooden” feel of Chadha that is largely formalist
a. Same as Clinton v. NY (formal)

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 2. “Take care” clause is general command to executive branch to enforce compliance with law, not a
command just to the president. Therefore, the independent counsel would help the exective
branch perform its goals
3. Two methods of review
i. Specific doctrine first, then separation of powers concerns, or
ii. Separation of powers concerns informs court how to interpret specific doctrine
D. Mistretta
1. Court finds independent commission in the judicial branch to create sentencing guidelines
permissible
2. Another attack on the non-delegation doctrine

REVIEW:
A. Non-delegation doctrine
1. Post-Panama Refining & Schenchter, the court has never found a case under the non-delegation
doctrine
2. Court uses concerns about excessive delegation to inform statutory interpretation
3. Clinton v. NY – court finds line item veto impermissible
i. Cancellation of particular line itme is a form of legislation and must confirm with
presentment and bicamerism
ii. Conforms with non-delegation doctrine, but used a formalist approach to identify
B. Congressional effort to retain control
1. Chadha – court finds leglislative veto is unconstitutional under a separation of powers analysis
(preserving prerogatives of each branch)
i. Broad, functional consideration
a. Involves congress too much in policing the executive branch
b. Dissent – this doesn’t capture reality. Congress is giving a lot of authority to executive,
so veto helps retain balance of separation of powers
ii. Formal consideration
a. Form of lawmaking and must conform to bicameralism and presentment
C. Congressional contrl over relationship between executive and agencies
1. Court strikes down statutes that invate presidential removal power
i. Meyers – postmaster general
ii. Bowsher – comptroller general
a. Court held (in both) purely exeutive activities makes it imporoper for congress to
interefere with direct presdientail control
b. Strike down limits on termimination
iii. When executive actor is performing actions not purely executive (e.g. FTC, adjudicatory war
crimes commission [weiner]) it’s permissible to place limits on executive removal power

Individual Rights
§ 9 Race and the Constitution
The Classifications Based on Race
Refer to Con p441-52 and Chem p690-94

A. Three choices of constitution’s approach to slavery

1. Hostile
2. Tolerant
i. No mention of the word “slavery”

38
 ii. Three provisions that refer to the practice of slavery
a. Art I § 2 cl 3 – representation in voting
Free persons vs. “other persons” counting as 3/5 a person
Extremes are no inclusion for representation or full inclusion
b. Art I § 9 – until 1808, congress cannot constrain importation of persons as states may see
fit
Limits congress commerce clause power to affect slave trade, but envisions that
congress will have the power to limit later on. Compromise.
c. Art IV § 2 – if person held to service in one state, obligation to return person if in
different jurisdiction (Fugitive Slave Law)
3. Protective

State v. Post (1845)

A. Background
1. More traction to anti-slave arguments in the northern states
B. Arguments
1. Slaves born after certain date are freed after age 25
2. Practical realities
i. Abolishing slavery in the late 1840s would leave a lot of old slaves out on the street
ii. Under current system, owners pay to maintain in old age
3. Constitutional language
i. All men are free and independent with certain inalienable rights
a. See chart
b. Best way to understand the framing is as one that denied the rights to African Americans.
Founders would be hypocrites if they meant for everyone to have rights but also owned
slaves, therefore they must have meant that they were second-class
c. ♠ when you’re exercising judicial power and confronted with natural law and there is a
conflict between natural law and more specific, positive law (emanating from culture
directly controlling), what do you choose between? Do you pick the one that seems to
constrain (slavery is permissible) or do you privilege natural law (in an unwritten way;
however, constitution has a few broad abstract writings of natural rights)? Is it right for
court to favor the legislative law over the natural law?
Unwarranted exercise of judicial power to read the abstract language and wreak
havoc on the legislative scheme
d. Courts did not usually find natural law to be a trump card over the other types
Const.
Statute
Common Law
Etc.
e. Ironic in this case that constitution writes of natural law rights and the court does not
defer to this
Textually does not refer to color but people, so adding this into the fabric to support
f. Considerable belief that under natural law slaves were equal; however, does not trump
the other types of law, so left to courts to decide how much weight to give the natural law
types of language
g. Massachusetts used the same type of argument to find slavery unconstitutional
Natural law like language in state constitution
ii. Choices
a. Could choose positive law over natural law
b. Could chose that natural law trumps positive law
c. Could resign

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 iii. There has never been a tradition that natural law prevails over positive law
a. “Judges must be more than men”
Must subordinate natural law to positive law
Have to resist the pathetic pleas to do what’s right and make best sense of the
positive law that’s before us.

Dred Scott v. Sandford (1857)

A. Background
1. Slavery constitutional challenge manifestations
i. Ways in which states opposed to slavery could resist
a. Priggs v. PA
State law prohibited people from recapturing slaves
J. Story finds the PA Self-help Statute was unconstitutional because interferes with
fugitive slave clause of the constitution (either directly or indirectly through
preemption related to the fugitive slave act)
ii. Legislative developments try to preserve political balance between slave and free states
a. Missouri Compromise of 1820
LA purchase adds a lot of territory, slavery not above 36’30”
b. 1850 Act
Brings CA as free but leaves UT/NV open
c. 1854 Kansas-Nebraska Act
Slave v. Free status would be determined by the popular sovereignty of the incoming
settlers, leading to “bloody Kansas”
B. Discussion
1. Argument for:
i. Law of Illinois & LA territory renders Dred Scott free (due to ban on slavery) and this status
does not change when brought back to Missouri
2. Original intent re: citizenship of slaves
i. Held: Dred Scott not a citizen for purposes of Art III, so no jurisdiction to hear case
ii. At the time of the founding, slaves considered second class beings with no rights and
privileges (Originalist Argument)
a. Provisions
Fugitive slave provision – Art IV § 2
3/5th count for representation
Insurrection – congress has power to suppress Art I
Protects importation for 20 years – Art I § 9
b. Descendants and freed slaves not considered part of the people either
c. Historical discussion concerning treatment of slaves
d. Best argument against
No overt protection for slavery and no overt mentioning of the legality of slavery in
the constitution, therefore not commonly accepted as the way of the world. Some
indication of the squeamishness of actually protecting the institution of slavery in the
constitution. Opinion overstates the original meaning.
Provisions labeling white were rejected
iii. Not the province of the court to decide on the morality of these laws
a. Defers to Congress in lawmaking power
b. Duty of court is just to interpret the “instrument framed”
3. Property of slaves
i. Congress power over territory
a. Art IV § 3 power – Limited to the territory that the U.S. owned at the founding (Textual
argument) (Territory clause)

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 If it said territories, it could encompass the future addition to the original territory
Basically says the U.S. is not an empire and does not make rules for other territories.
It’s improper for Congress to make laws for after acquired territories. They make
their own laws on their way to statehood.
ii. Choice of Law
a. Illinois law said you lose slave rights when bring them to state. Missouri says slaves are
property and Illinois can’t deprive
iii. Due process protects ownership interest
a. “act of congress which deprives a citizen of the US of his liberty or property, merely
because he came himself or brought his property into a particular territory of the US, and
who had committed no offense against the laws, could hardly be dignified with the name
of due process of law”
b. Right of property of slave is affirmed by constitution under due process clause 5th “nor
be deprived of life, liberty, or property, without due process of the laws”
c. Wit habeas/due process/etc. applied to slaves would render constitution nonsensical as it
would not agree with the other provisions (creating internal contradictions)
iv. Constitution expressly protected slavery
a. 20 years of express protection
b. Protection for owners of runaway slaves (Art IV § 2)
c. Only power conferred to Congress is in protection ownership
No power over slave property
No provision giving less protection for slave property
C. Frederick Douglass Speech
1. Textualist vs. Originalist
i. Debates were not circulated – everything behind closed doors
a. Framers intended to create a document and release it only
ii. Constitution does not condone slavery
a. Refuses to use the word “white” or “slave”
b. Should bend toward good and away from evil all things being equal – let’s not allow our
constitution to serve a degraded purpose
2. Clauses
i. Fugitive slave clause – language “bound to service” cannot be about slaves because slaves are
not bound to service, they have no contract with everyone
a. Seems like a stretch
ii. 3/5th clause & 20 year protections are compromises
a. Can be viewed as protecting or limited slavery
b. 20 years until abolish & slave owners don’t get full representation, which might be more
hostile to slavery
Lend themselves to both pro and anti-slavery slant, so indeterminate and should
move from originalism to textualism
iii. Not an argument totally against textualism, but shows a limitation. Framers recognize a
tension between grand pronouncements of congress and a constitution allowing slavery, so
they can’t fully commit to their language.
a. Some power to argument that evil has to announce itself – constitution must specifically
allow slavery or words will lend themselves to other interpretations
b. Could also show strength of textualism – hold evildoer feet to fire if they want to
accomplish a certain purpose

REVIEW:
A. Dred Scott
1. Legal significance questions

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 i. Is it appropriate to exclude blacks from the community?
ii. Framers went out of the way to no include “caste” type words
2. Court view that Scott could not have gotten his freedom by going to the territory
i. Congress power to regulate to the territory did not extend to after acquired territory
a. No power
ii. Due process argument – even if congress had power to regulate, that declaration would not
allow for individual slaver owners to lose their property merely by entering a territory
a. Would protect property interest even if Congress could regulate
3. Why reviled?
i. Use of originalism to exclude blacks
ii. Took political issues and removed from political resolution
a. Example 1 of judicial activism – see Scalia argument in Casey
iii. Precipitated the civil-war
a. Radicalized the republican party and determination to stop slavery which triggered
secessionist impulse
Steiker does not really get this argument because it was pro-south in effect
b. Was the civil war a bad thing?
Alternative is peaceful allocation of slavery across the country
c. Lincoln issues emancipation proclamation during the middle of the war
Argues this is a war measure and not aggregation of power for fed to regulate the
institution of slavery

Reconstruction Era
A. 13th extends the emancipation proclamation
1. Extends to all slaves
2. Makes it permanent
B. Black Codes
1. Hostile to the status of newly freed slaves
i. Laws targeting blacks by color and imposing greater punishments
ii. Laws against vagrancy and long-term employment contracts
a. People can purchase the labor of these people, essentially slavery
C. Civil Rights Act of 1866
1. Debate: how to frame protection for newly freed slaves?
i. Civil rights formula prohibits race discrimination on basis of race
ii. However, adopts formula of prohibiting discrimination on race with regard to economic
rights of personhood
a. Enforcing contracts
b. Sue and be sued
c. Testifying in court
d. Acquire property
iii. Couldn’t pass general declaration because would eliminate segregation, which peopled liked
a. Interracial marriage
b. School segregation
c. Etc.
D. 14th amendment
1. Why need when have the CRA 1866
i. Doubts about the constitutionality of the civil rights act of 1866
a. Might not be a legitimate commerce clause power
ii. Goal is to give constitutional authority to regulate race discrimination in states
iii. Makes it constitutionally permanent to protect their basic rights
2. Formulas

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 i. Rejected
a. No distinctions based on race, color or decent
ii. Adopted formula
a. Protection of birthright citizenship
b. Protection of privileges and immunities
c. Protection of due process
d. Protection of equal protection of the laws
iii. Ironic because the adopted formula transforms in a much more encompassing way than a
mere declaration of equality. Broad language leads to other types of proections
a. Women’s rights (see US v. Virginia)

Strauder v. West Virginia (1880)

A. Background
1. WV statute limited jurors to only white males 21 years and older
2. Black man convicted of murder before all-white jury
3. Constitutional question: do citizens of the US have constitutional right to trial by jury selected
without discrimination against race or color?
B. Discussion
1. Express burden/disadvantage on black jurors – only whites can serve
i. 14th designed to ensure blacks the enjoyment of all civil rights that are enjoyed by white
people
ii. This law expressly singles out and disadvantaged blacks
2. Overt race exclusion on jurors will hurt defendant because of generalized attitude toward black
defendants
i. How can they make this argument in the face of 15th which covers political rights
a. § 2 contemplates there would be disenfranchisement and enacts a penalty
b. Court says defendants are handicapped by a system that presumes them to be inferior, so
morphs this into a civil rights case
3. What is the standard of review?
i. No racial classifications allowed
a. “The law shall be the same for the black as for the white”
b. Suggests that that might be an appropriate test – no racial distinctions
c. Framers clearly rejected this as a rule in formulating the 14th
ii. No racial harm allowed
a. Fact that blacks are harmed should result in prohibition
iii. No discriminatory intent allowed
a. Statute is born out of racial hostility
Counter: could be instituted because whites were participants in society and a better
juror
b. Is it unfriendly because it does bad thing or it’s ill-motivated?
Becomes much more difficult to operate
Case-law constantly tries to mediate between the two

Plessy v. Ferguson (1896)

A. Background – railroad operating segregated cars “separate and equal” facilities
B. Discussion
1. No constitutional violation in segregation of the railway cars
2. Equal protection extends to political and civil rights and viewed public transportation as a social
right
i. Can’t be made equal by the state to equalize social status

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 ii. Laws must be reasonable and not intended to “annoy or oppress” – sounds similar to “no
unfriendly legislation”
iii. Not intended to create a caste system – fault of perception not the statute itself
3. De-constitutionalizes racial classification
i. Up to the states to categorize
a. Remains a central fault line for anyone who wants to have racial classification
ii. Plessy hoped to exploit the fact that people are uncomfortable to categorize people
iii. If there is misapplication once this situation is established, constitution might provide remedy
for misclassification
a. Obvious tensions – injury to be labeled black incorrectly but states there is no caste
system – reflection isn’t meant to annoy, just reflects an underlying reality that whites
enjoy a better social position

REVIEW:
C. Adoption of 14th
1. Open-ended language of P+I , equal protection
D. Protection of rights
1. Strauder – civil vs. political
i. Law should be the same for whites as blacks (similar to not passed legislation)
ii. No unfriendly legislation (motivation/effect)
2. Intervening cases:
i. Cummings – faced challenge taxes used to fund white school but not black school
a. Court says suit in equity and not obvious position is improved, therefore no relief
Suggests court is not interested in pursuing equality side of separate but equal
Later cases confirm court will recognize
ii. McCabe (1919) – no dining car for blacks
a. Court says unconstitutional to provide equality in opportunity to dine in railway cars
iii. Gains (1938) – MO has public law school and doesn’t want blacks to come but will pay
tuition to go to neighboring state school
a. Court – violates principles of separate but equal – becomes constitutional requirement in
Gains
iv. Giles – (1903) P says conspiracy in Alabama to disenfranchise men
a. 1870 = 60% black voting, 1900 = near 0%
b. Court – can’t do anything about this. They are ill equipped to handle a massive
conspiracy – ruling would be empty form and not provide a remedy in equity.
Declaration of the court’s impotence in dealing with massive resistance to racial
equality
c. Restrictions – literacy tests, grandfather clauses
v. Buchannan – Exception to the ones above
a. Prohibits housing restrictions because they violate property rights
b. Stand mandated racial separation is unreasonable – heightened protection for property
interests as opposed to social interests of rail car seating
vi. Swett/McLaurin – higher education institutions established were unequal
a. Swett – challenge to black law school at UT.
Court – manifest inequality. Centered on other things such as network, alumni,
testing, etc. – “the intangibles”
b. McLaruin – OK doesn’t want to create school for education, so make blacks sit in special
part of the classroom, library and cafeteria
Court – focuses again on intangibles. Material quality is eroded in the actual
functioning of the system. Provides valuable ammunition for when Brown is decided
3. Strategy to deal with segregation

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 i. Equity suits – try to establish inequality in segregated schools
a. Equal pay for teachers in black schools. Arguing within the framework of Plessy
b. Higher education was most manifest example of inequality - not even pretense to having
black graduate schools.

Brown v. Board of Education of Topeka (1954)

A. Background
1. Challenge to separate but equal not just equality of the educational facilities
B. Discussion
1. Historical/Intent of the 14th (Originalism)
i. No fixed meaning or understanding of the original intent of the 14th related to segregation of
schools
ii. Status of public education
a. State supported compulsory education was not widespread (basically didn’t exist)
b. At the time of the case, it had basically become a right for children
c. Therefore, issue would be unrecognizable to the framers of the 14th
iii. Criticism – Brown unwilling to confront the depth of racism at the time of the 14th
amendment and the resulting embrace of segregation. Record is not very unclear therefore.
Very few historians agree with the court’s view of the framers view of segregation.
a. Court sidesteps originalism by contending it is contested
2. Intangibles of education (Prudential)
i. Separation creates sense of inferiority with the black students
ii. Studies (psychological studies) show this can impact their learning
iii. “Separate on the basis on the color of their skin is likely to generate a feeling of inferiority as
to their status in the community that may affect their hearts and minds in a way unlikely ever
to be undone.”
3. Therefore, separate but equal inflicts harm and is therefore constitutional
i. Court is not willing to say segregation is intended to harm anyone, but it would make for a
clearer decision
a. Unfriendly, meant to annoy and oppress and is unconstitutionally motivated
b. Why? Fear of backlash, non-compliance with decision, problem in getting court to
unanimously agree
Southern manifesto – signed by every member of the south, declared decision to be
illegitimate. Harped on the errors in reasoning by the court.
ii. Problem with social science reasoning
a. Could change easily if the science behind the decision changes
4. Modalities
i. Textual – none
ii. Prudential – social science
iii. Doctrinal – cites 5 or 6 cases
a. No discussion on standard of review
b. Doesn’t hint at the possibility of strict scrutiny
Addressed in Korematsu (Japanese internment camps)
Could address the decision much easier. States would have to “declare their racism”
in defining their intentions in segregating

Bolling v. Sharp (1954)

A. Background
1. Challenges segregation in DC through application of the 5th amendment due process clause
B. Discussion

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 1. Originalism – even farther removed since 5th established in 1700s. No one thought or had any
intention toward segregation since still slavery. Can’t manufacture uncertainty like they did in
Brown
2. Due Process - “Segregation in public education is not reasonably related to any particular
governmental objective”
i. Brown could have been decided in the same way based on 14th use of due process – declare
it is irrational
3. “Unthinkable to reach a different result for the federal government”
i. Prevailing doctrine that Federal government is subject to same limitations as state
governments – treated identically to the way states are treated

Brown v. Board of Education of Topeka (Brown II) (1955)

A. Give orders “necessary and proper to admit to public schools on a racially non-discriminatory basis
with all deliberate speed”
1. First time the court separated the remedy from the ruling
i. Winning lawsuit did not result in a remedy
ii. Appropriate time with all deliberate speed to remedy the error
a. Court did this because:
Administrative burdens on system – redesign school districts that wouldn’t
compromise too much the interests of white students in having the same level of
education that they had
2. What would have been better?
i. Mandating local assignment – housing wasn’t segregated, so schools would have been
segregated immediately
a. School districts in the deep south would not have done this
Massive non-compliance
ii. Eliminating racially identifiable schools (make sure no school entirely one race)
iii. Racial balance within school district (30% black district = 30% black per school)
B. Post-Brown
1. Those opposed found non-racial ways to continue the segregation
i. Freedom of choice: all students assigned to school originally assigned to and given a one-
time decision to transfer with strict requirements
ii. Pupil placement plans
2. Most people think of Brown II as emboldening the resistance to Brown I
i. 10 years after Brown, there is no integration (that the color was broken, not actual
integration)
ii. Begins to be accomplished in that a very small number of black students go to white schools,
but no whites go to black schools
3. Passage of civil rights act finally fixes things
i. States that maintain schools on the basis of race will no longer receive federal funding
ii. US DOJ could enter into lawsuits and withhold funds unless they showed greater compliance
iii. 1964 is the “beginning” of the implementation of Brown
4. Greene (case)
i. Court finally took on question – end race in placement or achieve racially non-identifiable
schools
ii. Two schools following freedom of choice plan, 1 85% white and 1 100% black
iii. Court says Brown II requires the end of racial identify-ability
a. “obligation of districts is to produce, not white school and not black schools, but just
schools”
b. Required Fed courts to enforce something much closer to racial balance
C. ♠ Ultimate irony

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 1. 14th Amendment – didn’t want to say no racial classifications, which ended up having a broader
effect on law
2. Brown II – looks like it’s protecting states because doesn’t give immediate remedy
i. By not tieing remedy to particular plaintiffs, it caused a greater amount of intrusion into state
institutions because transformed fed courts into guardians of these institutions
ii. Beginning of public law litigation in the US
a. Instead of individuals getting remedies, interest groups try to transform institutions
b. Spreads to a lot of different contexts – prisons, juvenile facilities
iii. Most significant legacy and unintended consequence of the Brown ♠ fiasco

REVIEW:
A. Brown v. Board
1. No one argues that Brown was wrongly decided; however, no one has anything good to say about
how Brown was actually written
2. What did Brown say?
i. Cannot make decision based on original understanding and turn back to 1868
a. Record is indeterminate on what framers believed
b. Changing status/character of public education
ii. Segregation harms minority children even though nominal equality between schools
(however, complete fiction – equality was stipulated by the parties)
a. Intangibles are unequal
Cites studies showing segregation harms minority schoolchildren
Therefore, inherently unequal
B. Bolling (D.C.)
1. 14th amendment is not applicable to the District of Columbia
i. Forced to rely on the due process clause of 5th amendment
2. Is federal government constrained in same way as states?
i. Court declares it unthinkable to not have the same constraints in regard to equality
ii. No reasonable purpose served by segregation
C. Critiques
1. Brown
i. Failure to discuss history/meaning of segregation – provides no context to support conclusion
ii. Failure to mobilize available precedent – only uses Swett
a. Korematsu: used language of strict scrutiny
b. Buchannan: court says interference with property right
c. Shelley v. Kramer: Gov can’t be involved in enforcing racially discriminatory covenant
w/r/t housing
d. Smith v. Wright(?): certain voting restrictions unconstitutional
iii. Unpersuasive use of social science
a. Other researchers could find benefits, would this make opinion unreasonable?
iv. Doesn’t tell us whether
a. Fact of separation is what makes schools unequal, or
b. Decision to separate is what is unequal
See Brown II below
2. Bolling
i. No effort to explain why gov should be constrained by equality guarantee
a. Simply states it would be unthinkable
ii. Declaration that segregation serves no purpose has no support
a. Fails to adequately justify the opinion
3. Why does this matter?
i. Brown makes it sound like it’s only an education case – no justification for post dcisions

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 a. Gets over social v. civil divide – denial of education is civil right
b. Looks like a bait and switch
Following cases challenge segregation in public places that are more akin to those
rights in Plessy. Court just finds these practices unconstitutional based on Brown
using per curium decisions (unsigned unargued)
ii. No clear doctrine going forward
a. No standard of review (e.g. strict scrutiny)
b. Series of observations followed by judgment
iii. Does not persuade audience
a. Goal was to issue a succinct judgment with nothing objectionable
b. No use of the modalities of argument
Instead it was sociological argument saying segregation does bad things

§ 10 Implied Rights
Privileges and Immunities Clause

Slaughter-House Cases (1873)

A. Background:
1. Butchers sue concerning LA giving exclusive right to slaughterhouse in certain area of New
Orleans
B. Challenges
1. Types
i. Creates involuntary servitude – 13th
ii. Deprives of property without due process – 14th
iii. Denies equal protection of the laws – 14th
iv. Abridged privileges or immunities as citizens – 14th
2. Why?
i. Infringing on right to pursue a profession, individual liberty
C. Court rules on each of these provisions narrowly, rejecting arguments
1. Importance of case: “No questions so far reaching and pervading in their consequences…have
been before this court during the official life of any of its present members.”
2. Decides that 14th protects slaves only
i. Unity of purpose and history of the times suggests 13/14/15 amendments were to promote
freedom of the slave race
a. Historical, Textual, Original intent (limited goal of the amendment)
b. Overturns Dread Scott
c. Distinction between citizen of US and of States
Speaks only of P+I of citizens of US and not of the States
ii. Enacted to protect the rights in the CRA of 1866
D. P+I Clause:
1. Court narrowly reads the provision, effectively writing it out of history
i. Declares P+I of Art IV § 2 to specifically relate to those rights given to state citizens that
must also be given to out-of-state citizens [textual]
a. Did not create the rights
b. Whatever P+I a state grants cannot discriminate against those who come from other states
– not absolute protection, just general discrimination protection
c. Rights under P+I (Corfield) are broad and extensive – applying to P+I in 14th would
grant protection for all fundamental rights
ii. Such construction (application to states) would equal “perpetual censor upon all legislation of
the States, on the civil rights of their own citizens” [Prudential]

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 a. No such results intended by Congress in proposing amendments [Historical Intent]
Didn’t intend to transfer basic rights from the states to the federal government
iii. Gives list of provisions that were already guaranteed rights, so no meaning [Doctrinal]
a. Crandall v. Nevada
iv. Birthright citizenship “citizen of the state and of the US” [Textual]
a. P+I clause says not to abridge P+I of the citizens of the US
Very few rights are given by your status as a citizen of the federal government
Most of the rights are given by citizenship of the States
2. Reason it becomes nullity
i. Supremacy clause already protects people from state deprivation of federal P+I rights
3. ♠ Most important part
i. P+I does not add to the stock of fundamental federal rights. Only relates to the preexisting
rights
ii. Question: What are fundamental rights under the P+I Art IV? Is it violated in this case?
E. Due Process:
1. Objections to using as a basis for substantive indiv. Rights
i. P+I is more appropriate, but see S-H
ii. Dissent view becomes majority – liberty and property protects rights and arbitrary
interference violates 14th

Incorporation Cases
A. History
1. Bill of Rights only intended to limit the federal government – Congress shall make no law
respecting ….
i. Fear of tyranny was from the federal government
B. Barron v. Baltimore (1883)
1. Marshall held that the BOR did not apply to the states: each state established a constitution for
itself and the US constitution was established for central government
C. Twining v. New Jersey (1908)
1. 5th “nor shall be compelled in any criminal case to be a witness against himself”
2. Think of those things indispensible to a criminal justice system – “immutable principle of justice”
i. Due process of law and privilege against self-incrimination are exclusive from one another
a. Therefore not fundamental in due process of law
ii. ♠ Natural law – “implicit in the concept of ordered liberty”
3. No reason to strain due process of law to include this privilege
D. Palko v. Connecticut (1937)
1. Rejected argument that state cannot appeal criminal cases due to double jeopardy clause of 5th
i. They are not a “principle of justice so rooted in the tradition and conscience of our people as
to be ranked as fundamental”
2. Only incorporate the social and moral values defined in the BOR when “liberty nor justice would
exist if they were sacrificed”
3. ♠ Natural Law
E. Adamson v. California (1947)
1. Reasserts idea in Twining – no incorporation of doctrine of self-incrimination
i. Argues that courts should avoid basing due process decisions based on “idiosyncrasies of a
merely personal judgment,” resulting in four approaches:
a. Opinions of the architects of American institutions
b. Opinions of the policymaking organs of state governments
c. Explicit opinions of other American courts that have evaluate the fundamentality of the
asserted right

49
 d. Opinions of other countries in the Anglo-American tradition not less civilized than our
own
2. Dissent: Black: argues for total incorporation based on intent of framers of 14th
3. Post 1960 – this “fundamental fairness” doctrine faded away
F. Duncan v. Louisiana (1968)
1. 6th amendment right to a jury trial applicable to the states via the due process clause
2. Given a type of system, is a particular procedure fundamental. Is it necessary to an Anglo-
American regime of ordered liberty
i. No states have enacted safeguards or protections for non-jury trials
ii. Trial by jury is therefore fundamental to the American scheme of justice
3. Resulted in further incorporation:
i. Double jeopardy
ii. Cruel and unusual punishment
iii. Excessive bail
4. Only remaining ones:
i. 2nd
ii. 3rd
iii. 5th’s grand jury indictment
G. Post
1. Court treats the bill of rights as applying to the states
i. Every one applied (except 7th and 3rd)
2. Should view of individual liberty be constrained to the BOR
i. Black’s view total incorporation and nothing more so due process wouldn’t be read to have
any further application
a. SC hasn’t embraced either side of the argument (total incorporation vs. nothing more)

Substantive Due Process: Protection of Economic Rights

Lochner v. New York (1905)

i. Background
1. Best illustration of the scrutiny of the era…contract rights under constitution
2. Statute forbids bakers from working more than 10 hours/day or 60 hours/week
i. Significant health risks to bakers
ii. Health risks for public?
3. Holden v Hardy – limits work hours of miners; health risk of workers is sufficient for legislature
to limit work hours
i. Court believes this is an outlier because of the significant risks mines pose; whereas bakers
do not fall under this provision
ii. Discussion
1. Basis of Review
i. “act must have a more direct relation . . .and the end itself must be appropriate and
legitimate”
ii. There must be a direct public interest affected by statute to uphold the statute
iii. Strict scrutiny? “More than the mere fact of the possible existence of some small amount of
unhealthiness to warrant legis. interf. with liberty.”
iv. seems to be malleable standard in Nebbia
2. Court has two concerns
i. Suspicious of redistribution as an end (State strikes the bargain)
ii. Definition of liberty under DP clause
a. Right to contract (both employer and employee) – fundamental part of human liberty to
determine terms of employment

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 Unregulated markets generate happiness?
When state mandates hours/wages – deprives people of choice
Arguably, Civil War fought to give AA right over their own labor, right to be
economic persons
3. What part of Lochner is wrong? (Liberty is essential; ownership of labor is essential to labor;
strict scrutiny for labor relations)
i. Incorrectly deferential to the political process
ii. Does not consider that it may be good to redistribute some wealth from employers to
employees
iii. Embraces laissez faire economic theory
a. individual freedom/collective benefit
b. protects employers
A. Critiques of Lochner
1. Freedom of K is not a fundamental right when there is great inequality in bargaining
power/position
2. Taking sides in an economic contest and constitutionalizing the right of employers
3. Background (common law) is treated as neutral and natural and any legislative modification is an
impermissible interference with the market
4. Finding any substantive limits in the due process clause – contemporary conservative critique
i. Old: Scott/Lochner – New: Griswold/Row/Lawrence
ii. Due Process is term of art
a. According to law – included some robust protections of certain kinds of liberty
b. Heeley – as a constitutional theory, the purpose of constitutional review is to ensure
procedural fairness and be very reluctant to make substantive decisions. “talking about
substantive due process. Green pastel redness.” – oxymoronic to talk about substantive
due process. Courts are best able to
iii. Caroline Products
a. Cases where court should give heightened review
Specific textual protections
o E.g. Bill of rights
Perfect political processes – restrictions prohibit process
o E.g. voting, speech, association, etc.
Discrete & insular minorities – can’t express adequately
5. Narrow conception of “public interest”
6. Imposes too high of a scrutiny on the legislative declaration of a public interest
i. Court was too unwilling to recognize when there was one

REVIEW:
A. Lochner
i. “rightness” of Brown holding
ii. “wrongness” of result in Lochner
2. Invalidates max hour law for bakers via DPC of 14th A
3. Freedom of K is fundamental aspect of liberty protected by DP
4. Interference must be justified by “public interest”
i. Safety intent here is too weak to justify regulation, would be ok in case of child workers
5. Redistribution of wealth is not valid “public interest” either
i. Impermissible “class legislation” designed to benefit particular private interest
6. High level of scrutiny of “means” designed to achieve public end (e.g. safety)
B. Dissent
1. Harlan – as long as some rational basis for interference, the court should go no farther in judicial
review

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 i. Agree must serve public interest, but judiciary should not decide if it is legit
ii. K not fundamental
2. Holmes – court is constitutionalizing an economic theory and binding states to the view that a
laissez-faire system is best
i. There is nothing in constitution that mentions contracts
ii. Majority opinion will eventually impose on individual freedom who object, so court should
not try to get involved
C. Critiques of Lochner
1. ??? (rights)
i. Substantive due process rights instead of just procedural protection
ii. Identifying a fundamental right to K without regard to facts or context of the period
iii. Wrongly equating an equivalence between employers and employees in interests (claim of
employers to freedom of K seems to mask preference for business in struggle over labor
regulation)
iv. Court was endorsing controversial economic theory laissez-faire – anti regulatory bias
2. Even if correctly identify K as fundamental: (state interest in regulation)
i. Court tis too stingy n recognizing valid competing social interests
ii. Court too limited view of “public interest”
iii. Court too strict in determining relation between means and ends
iv. Court has naive and unrealistic view of the political process (notion that all politics produces
public goods as opposed to competition over private interests)

US v. Caroline Products Co. (1938)

A. Court said this is legislature determination
B. Cases where court should give heightened review
1. Specific textual protections
i. E.g. Bill of rights
2. Perfect political processes – restrictions prohibit process
i. E.g. voting, speech, association, etc.
3. Discrete & insular minorities – can’t express adequately
C. Should there be constitutional supervision over justifications for regulating the marketplace?
1. What happens if court doesn’t intervene?
2. Should the constitution be mobilized to intervene? What is the justification?
3. What level of review?
D. Rational Basis Review
1. Hypothetically, one could construct a justification for the law
i. Does not have to be right
ii. Must just not defy reason

REVIEW:
A. Caroline Products
1. 1938
2. Addressing anxiety of substantive due process
i. Substantive rights when explicit textual connection to BOR
ii. Defects in the political process
a. Lockups – majority interferes with political activity of the population in terms of voting,
speech, etc.
b. Discrimination – discrete & insular minorities are not able to exercise or meaningfully
participate
B. Early years of the depression
1. Eroded any real support for right of K as any fundamental right

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 2. Questioned Strict scrutiny of what accounted as fundamental interest
i. Looked like governmental intervention was permissible and beneficial in many areas
a. Before (public interest): utilities, transportation, etc.
b. After (public interest): no areas outside the bounds of public interest

Nebbia v. New York (1934)

A. Background
1. Man sold milk for less than he was authorized under New York’s Milk Control Board
2. Established minimum prices because worried that there would be crisis of supply since milk
producers weren’t making any money
3. Court is very skeptical about min/max price setting
4. Ok with some wage min/max laws
i. Struck down in Akins and upheld in Mueller
B. Arguments
1. Legislature gets to decide if business
i. “there is no closed conception of what kinds of businesses can be affected with a public
interest and the function of the courts is only to determine if it’s arbitrary or discriminatory”
ii. State can claim regulation in any area
a. Court reviews to see if it is arbitrary or discriminatory
b. Rational Basis standard of review

West Coast Hotel (1937)

A. Assaulted the “fundamental interest in K”
1. “the Constitution does not speak of freedom of contact”
i. Suggests illegitimacy in unremunerated rights
a. Methodological critique of the right of K reasoning
2. “what can be closer to the public interest than the health of women and their protection from
unscrupulous and overreaching employers?”
3. “The exploitation of a class of workers relatively defenseless against the denial of a living wage
is not only detrimental to their health and well-being but casts a direct burden for their support
upon the community.”
i. Society interest will be harmed if one party lacks bargaining power
ii. Lochner – redistribution of wealth inherently unconstitutional
iii. WCH – failure to redistribute wealth creates social liability
B. Background
1. 1937 – marker of court removing itself from substantive due process power
2. Post-1937 – no decisions upholding right to K on due process grounds
i. Death of Lochner

Ferguson v. Skrupa
A. Background
1. If want to be in debt adjusting, must be a lawyer
B. What is justification?
1. Lawyers have more expertise
2. Lawyers would lose license if they do something unethical

Application to Slaughterhouse
A. Slaugherhouse right under DP case?
1. Yes – rational basis
i. Same as Ferguson – whole trade limited to lawyers only
ii. Clearly result under modern constitutional analysis
a. Economic regulation that distributes benefits and burdens is presumptively constitutional

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 b. No question of “public interest” except for very limited hypothetical question of “is there
a feasible reason for doing this?
2. Economic rights have a subordinated status
i. No privileged position constitutionally
ii. States can interfere in the marketplace for any reason it articulates

Comments on Lochner Area and Transition

A. Most people identify it as entirely about defending right of K
1. Unfair and limited conception of the era
i. Court embraced broader theory of unremunerated rights
a. Claims in term of directing education of children and family
Meyer v. Nebraska: Neb passed law prohibiting teaching of foreign languages. Sup.
Court said this is unconstitutional interference with liberty. Described as acquire
useful knowledge, worship god according to the dictates of one’s own conscience,
etc.
Pierce v. Society of Sisters: Can state prohibit private education? No. Indispensible
aspect of liberty to be able to education and direct the upbringing of children.
b. Notion of liberty is broader than that characterization
2. When rejected? Does it remove all enumerated rights?
i. Incorporation debate – an effort to ground the due process clause in text
a. Way of avoiding the “Lochner anxiety”
b. Consistent with Caroline Products
If you look for rights in the due process clause, look for specific textual reasons
“Birth” of modern incorporation. Accelerated incorporation post 1937.
Limit freedoms protected by due process by the bill of rights
c. Does this overrule Meyer v. Pierce. ?

Substantive Due Process: Modern Fundamental Rights

Griswold v. Connecticut (1965)

A. Background
1. Doctor of a clinic providing contraceptives and information to married couples charged under a
Connecticut law prohibiting distribution of any materials to prevent conception
B. Discussion:
1. State justifies the statute by saying easy access to contraception increases fornication (extra-
marital sex)
i. Argument: contraception is excessive in trying to achieve its stated goal.
2. Ways to uphold Griswold
i. Would it succeed under rational basis review?
a. Yes. There is a reason for the law.
ii. Nations’ ethos – any national consensus = protected freedom
iii. Burden is unequal – women have to get pregnant and deal with it, men don’t
a. Before 1970, sex discrimination was based on rational basis review
Hoyt v. Florida – RBR, men have to serve on juries, women can decline for no reason
iv. Privacy implications in lower amendments
a. 1st freedom of speech (association), 3rd freedom from quartering in peace times, 4th
search and seizure, 5th
b. Douglass: reflecting on these protections leads us to believe there is a deep concern for
protecting privacy
Goes through the trouble of reflecting on the text of the constitution to generate a
theory of privacy/individual liberty to avoid due process

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 c. Since there is provision protecting privacy, use ethos to weed out what is and what isn’t
protected
Argument: legislature is best representative of ethos
How can court draw the distinction between contraception and incest/adultery/etc.
(i) Court makes the case about privacy in marriage only and puts everything else in
the “not accepted bucket”
d. Criticisms
Taking prohibitions, reasoning up a general right to privacy, and then reasoning back
down to create a new list
v. Harlan
a. Let’s not hide the argument in the BOR, rely on DP
b. Instead, would use formula in the incorporation cases. Think about those rights implicit
in the concept of ordered liberty
vi. Goldberg
a. 9th amendment recognizes reservoir of enumerated rights
b. Let’s not pretend this is textual liberty. Instead, let’s reflect on what are the enumerated
rights people enjoy.
Argument: this is the same as Lochner, so would need a theory that would exclude
those rights (Ks) and embrace those in issue under the Connecticut law
vii. Problems:
a. How to find these rights?
Natural rights:
Tradition: allows courts to follow a lead, but level of generality creates the problem
of indeterminacy. Too narrow then not protected, but too broad than too much
proection.

Douglass:
- Textual: rights not specifically enumerated have been established as fundamental by extending the
scope (5th, 1st, 3rd, 4th,)
- 4th protects governmental invasion in the sanctity of a man’s home and privacies of life
- Contraception in marriage falls under the sphere of privacy
- Historical: marriage right of privacy older than bill of rights
o Then why not part of the BOR if founders thought fundamental?

Goldberg:
- Textual: 9th amendment shows framers believed other rights not in BOR that are fundamental
o To allow privacy in marriage to not be fundamental just because not in BOR renders 9th
meaningless - Structural
- Look to traditions & collective conscious of the people to see what is fundamental
- Rational relation, but no compelling interest. Even so, could have more discriminately tailored statute

Harlan
- Due process clause protects values “implicit in the concept of ordered liberty”
o Then why no K right as in Lochner?
- Use due process in relation to “respect for teachings of history, solid recognition of the basic values
that underlie society, and appreciation of the roles and doctrines of federalism and separation of
powers”
o Wouldn’t legislature be better judge of society values since elected by society?
- 3rd & 4th protecting home, so what goes on in home should also be protected
o Sounds like he’s reaching

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Black (Dissent)
- No protection of a general “right to privacy” only protections in some instances (4th) (3rd)
o “like my privacy as well as the next one, but I am nevertheless compelled to admit that
government has a right to invade it unless prohibited by some specific constitutional provision”
- Majority espouses same Due process conventions as those rejected by Lochner
- 9th has never been used to limit state govs, only included to limit federal government

REVIEW:
A. Griswold
1. CT criminalized use of contraception for both married and unmarried
2. Unconstitutional because interfered with protected liberty interest
i. Characterized as privacy within context of marriage and home
ii. Enforcement would involve the state in policing the marital bedroom in the home
3. Methodological approaches
i. Douglass – attached right to specific provisions of the BOR. Therefore, constitution
recognized an area of privacy and the interest of this case fall within
ii. Goldberg – less comfortable grounding in specific provisions. Highlighted existence of
unenumerated rights in the 9th.
a. What is 9th relation to the 14th? Does not argue incorporated under 14th. Rather,
indicates there is a reservoir of unenumerated rights that should be recognized
iii. Harlan – Created broad test of unenumerated rights. “Those rights implicit in the concept of
ordered liberty.” Court determines what rights were fundamental
4. Dissent approaches
i. Black – criticize court declaring state laws unconstitutional that do not violate any provision
of the constitution
B. Extension of Griswold to Eisenstadt
1. Griswold relies on tradition
2. Eisenstadt– court has to shift focus away from tradition and come up with understanding of the
right as grounded in some important aspect of ordered liberty
i. “If the right of privacy means anything, it is the right of the individual, married or single, to
be free from unwarranted governmental intrusion into matters so fundamentally affecting a
person as the decision whether to bear or beget a child.”
ii. Applied rational basis review; however, language expands the nature of the underling right
identified in Griswold

Roe v. Wade (1973)

A. Background
1. Texas statue criminalizes abortion unless abortion is necessary to save life of the mother
B. Discussion
1. Established liberty interests
i. Cases
a. Eisenstadt – no discrimination against unmarried in access to contraception.
b. Griswold – contraception within marriage
c. Stanley v. Georgia – protecting home and private speech within home
d. Meyer/Pierce – struck down statutes interfering with liberty of education
e. Skinner v. Oklahoma – allowed for sterilization of certain criminal defenders. Court
found this was violation of equal protection
f. Loving v. Virginia – liberty to marry outside of race

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 ii. “The right of privacy, whether it be founded in the 14th concept of personal liberty or in the
9th is broad enough to encompass a woman’s decision whether or not to terminate her
pregnancy. “
iii. Types of liberty
a. Sovereignty over one’s body, control over family (whether to procreate),
b. Autonomy of the person
Women as mothers – gender role underlying physical autonomy. Only women have
the burdens
Strong social interest in protecting from bodily invasion (see 4th cases – bullet in
criminal not allowed to be removed)
If not, could the government have compulsory abortion? No autonomy would give
state immense power
c. Right to privacy is broad enough to encompass women’s right to terminate pregnancy.
A declaration of right with no defense.
2. State’s interests
i. Protect life (some states regard as unborn person)
a. Court says this is a contested question. Textual argument that Constitutional does not
refer to persons as unborn. Therefore, state’s interest doesn’t override mother’s right to
control family & self
b.
ii. Protect health & safety of the mother
a. There isn’t much a conflict between this and protecting autonomy interests (at least
through the first trimester)
3. Balancing
i. Trimester system
a. Women’s right is in total for 1st
b. Women’s right is limited by health & safety concerns in 2nd
c. State’s interest in life is compelling in 3rd

Planned Parenthood of Southeastern Pennsylvania v. Casey (1992)

A. Background
1. Pennsylvania Abortion Control Act established various regulations that must be met before
abortions could be perform
i. Informed consent
ii. 24 hour requirement
iii. Information provided by doctor
iv. Minor – parent informed consent
v. Spousal notification
2. US filed on behalf of PA and argued that Roe v. Wade
i. Wrong in identifying fundamental liberty interest
ii. Wrong in undervaluing state’s interest
B. Discussion
1. Why concerned about overturning
i. Court is concerned about the legitimacy of the court
a. Political pressure on Court to overturn, so can’t concede or undermine court’s role
ii. Women have emerged in a new position in society that would be very different in a world
where abortion was illegal
iii. Even if Roe was wrongly decided, it transformed society and couldn’t go back
iv. Stare Decisis
a. Not unworkable rule
b. No change in facts since Roe decided

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REVIEW:
A. Roe v. Wade
1. Eisenstadt – equal protection case, however privacy is not just privacy to be free from state
interference, rather, freedom of reproduction.
2. Simply declares right to privacy is broad enough to encompass woman’s decision to terminate
pregnancy.
3. Issues
i. Is it accurate to describe this as a fundamental right?
a. Court asserts and does not defend this as a fundamental aspect of liberty (see above)
ii. Court declares state interest does not outweigh the interests of privacy of the women
a. Moves from the fact of uncertainty to the claim that the state’s interest isn’t strong
enough during the first trimester to overcome the liberty interest that a woman has
4. Criticized
i. Liberty interest too broad
ii. Effort to explain away state interest of protecting life
iii. Legislative declaration as to when a state can and cannot regulate
a. 1st – none
b. 2nd – health and safety
c. 3rd – viability (in order to protect life)
B. Casey
1. Court refuses to overrule Roe
i. Does not offer affirmative defense of Roe
ii. Argues that Stare Decisis prohibits overturning.
a. Factors include:
Is it unworkable
Substantial reliance interest
Surrounding facts/precedents have changed framework to erode
b. Court says even if wrong, cannot overrule
iii. Changes the Roe framework
a. Changed from strict scrutiny to undue burden test
Court evaluates whether regulation will place undue burden on women’s right to
have an abortion
iv. Upholds the bulk of the law under the undue burden test
a. See above
v. “these matters involving the most intimate and personal choices a person may make in a
lifetime…
vi. “right to define one’s own concept of existence of the universe and meaning of life
2. Why is Lochner and Plessey overruling justified but Roe would not be?
i. Facts or understanding of facts had changed
a. Lochner
Desirability of Laissez-faire economics changed from Lochner to West Coast Hotel
(i) Depression
(ii) Change in membership on court
Dissent (Rehnq): Decision not based on economics but the thought that freedom of
contract was a fundamental liberty. Same error in Roe as in Lochner. Court
constitutionalized a disputed theory of liberty and enshrines as a fundamental
protection.
b. Plessey
Plessey always wrong and nothing to be said on its behalf.

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Bowers (GA - 1986) & Lawrence (TX - 2003)
A. Background
1. GA: General prohibition on sodomy
2. TX: Prohibits homosexual sodomy
B. Relation to Pierce/Meyer/Stanley/Griswold/Eisenstadt/Roe/Casey
1. Bowers
i. Liberty rights related to marriage, home, procreation and family
ii. Longstanding tradition of opposition to homosexuality
2. Lawrence
i. Kennedy does not use historical modality to define homosexual conduct as protected
ii. Argument
a. “mere moral disapproval” does not equal a valid state interest
Dissent (Scalia): state regulates polygamy, adult incest, bestiality, and prostitution. If
right is broad right to protecting any form of sexual freedom, then state should not be
allowed to regulate the practices above.
b. Consensual intimate relationships should not be regulated by the sate
Individual identity & self-definition
c. Other cultures recognized homosexuality as fundamental liberty
3. BOR DP protection
i. Argument shift:
a. Started as soft textual definition of zone of privacy
b. Moves to natural law/rights argument as essential to freedom/liberty
ii. ♠ How does this sync up with modalities of argument? Is this good? Strengths & weaknesses
of various approaches?

REVIEW:
A. 14th Amendment
1. P+I – slaughterhouse renders
2. Due Process
i. Incorporation – applying BOR to states via DP clause
ii. Substantive Due Process – are there rights the DP clause protects against state and federal
deprivation
a. Stevens argues they are the same thing
iii. How to define scope of rights protected
a. Only protect rights enumerated in the constitution
b. Full vs. Partial incorporation?
What would the test be?
Does it apply with the same force
c. If recognized unenumerated rights, how defined?
Relation to textual commitments (Griswold)
Natrual law/fundamental liberty approach
(i) Rights essential to freedom
Look to particular traditions in our country.
(i) What counts as a tradition?
B. Griswold
1. Made effort to avoid Lochner and find rights protected had some connection to the text of the
constitution
i. Anxiety toward looking at unenumerated rights
C. Roe – anxiety is lessened
1. Broad right of autonomy in matters of marriage, procreation, self-identity
2. Right is freedom from unwarranted governmental intrusion into these matters

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D. Casey – reinforced this conception of roe
1. Emphasizes nature of the fundamental right at state
E. Lawrence – court identifies this broad area of autonomy as a protected right
1. Places very little on the side of the scale for state interests in regulation
2. Leaves open idea of prostitution, incest, bigamy, etc.

McDonald v. Chicago
A. Stevens
1. We have insisted that only certain types of especially significant personal interests may qualify
for especially heightened protection. Ever since “the deviant economic due process cases [were]
repudiated,” our doctrine has steered away from “laws that touch economic problems, business
affairs, or social conditions,” and has instead centered on “matters relating to marriage,
procreation, contraception, family relationships, and child rearing and education.” These
categories are not exclusive. Government action that shocks the conscience, pointlessly infringes
settled expectations, trespasses into sensitive private realms or life choices without adequate
justification, perpetrates gross injustice, or simply lacks a rational basis will always be vulnerable
to judicial invalidation. Nor does the fact that an asserted right falls within one of these categories
end the inquiry. More fundamental rights may receive more robust judicial protection, but the
strength of the individual’s liberty interests and the State’s regulatory interests must always be
assessed and compared. No right is absolute.
2. Number of things to consult
i. Factors
a. Constitution
b. Judicial precedents
c. English law
d. Legislative facts
e. Other societies
f. Traditions of our people
ii. Judges shouldn’t be tied to constitutional text because DP itself is defined at a high level
iii. Search for fundamental rights is open-ended
iv. None of the rights in the “autonomy” circle would be there if there was a strict textual
interpretation.
a. Need a larger number of reference points to define the circles
b. If you follow Scalia claim, then he cannot defend any of these decisions
3. Right of personal gun ownership in the home doesn’t fall within the “autonomy” circle (the
liberty that should be deemed fundamental)
i. Much more ambiguous than the argument made in behalf of the
4. 2nd amendment is right of states
i. 14th was made after BOR and framers had zero intention of incorporating BOR provisions
ii. Crazy to take the one amendment specifically written for states and hold it against them
B. Scalia
1. Due process tradition is too open-ended, flexible, and able to be abused
i. “vague ethico-political first principles”
2. Should tie liberty textually to the constitution
3. History and Tradition is a constraint but only to the most narrow formulation of the right in
question
i. Stevens: have to expand the history (e.g. tradition of contraception to tradition of privacy in
marriage), otherwise due process cause protects zero liberties
a. Odd to say that now that we have a clause, look back to see what was protected when the
DP clause was enacted

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Definitions
Word Definition
Defendant in Error A party against whom a writ of error is sued out
Writ of Error Writ demanding lower court to submit record of case for review
Plenary Unqualified and absolute

61
Things to Remember
 Keep track of quotes to vomit onto exam
 Remember case dates and history for exam
- See To-Do for Lexis headnote tool

62
To-Do
 Read Constitution again, noting sections I remember from class discussion
 Read Chemerinsky for relevant sections
- Focus on McCulloch
 Pull Headnotes from Lexis for the important cases
- Use this as a means to review what happened in the cases when it gets close to Final exam
 Read Fed 45
 Look up NYT Opinion piece on Preemption

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List of “Questions”
Started compiling on 10/13

1) How well has court done in defining limits of FCC through caselaw?
a) Should these be in Congress or Supreme Court?
2) Who has better argument in Schenchter or McCulloch
a) Adaptable to “crises of human affairs” vs. not expanding power in a time of crisis
3) Why is court so much more solicitous in Hibbs than other cases (Boerne)?
a) Does this override Boerne?
4) Why court should assume this role in policing state burdens on commerce under the dormant
commerce clause?
5) ♠ Level of deference court gives to the other branches of the government
a) Consistent themes in positions
b) Changes in deference over time
6) What does west coast add to nibbea/lochner? return to lochner vs. slaughter-house - reconcile both
despised but diff reasoning. If Lochner is wrong and slaughterhouse is wrong, how can we
operationalize some protection in the economic sphere?
7) Griswold v. Connecticut: does court make any persuasive effort to justify it’s holding? What are
different theroies about where right comes from and what is the scope of the right? What is the right it
protects and what is the source of that right according to various therories in opinion?
8) What opinion is most persuasive to be free from state regulation on contraception?

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Reading
1) The Role of the Supreme Court in the Constitutional Scheme
a) A Modern Day Look at Judicial Review
b) United States v. Virginia CL 637-48
2) The Role of the Supreme Court in the Constitutional Scheme
a) Introduction: Notes on the History and Theory of the Constitution CL 1-29
b) The Basic Framework: Marbury v. Madison CL 29-43
c) Article III CL xlix
d) The Power of Reprisal: Political Control of the Supreme Court: Notes CL 78-84
3) The Role of the Supreme Court (cont.)
a) Note: Constitutions, Democracy, and Judicial Review CL 43-51
b) Martin v. Hunter's Lessee (and notes) CL 52-61
4) The Role of the Supreme Court (cont.)
a) The Sources of Judicial Decisions: Text, Representation Reinforcement, and Natural Law:
b) McCulloch v. Maryland CL 61-75
5) The Powers of Congress
a) Introduction CL 167-173
b) Note: Political Constraints versus Judicial Enforcement CL 180-189
c) Classical View: Gibbons v. Ogden CL 173-177
6) The Powers of Congress (cont.)
a) Formalism and Realism in Interpreting the Commerce Clause to Limit and Authorize
Congressional Action
b) United States v. E.C. Knight CL 189-201
c) The Shreveport Rate Cases
d) Champion v. Ames (The Lottery Case)
e) Hammer v. Dagenhart CL 177-179
7) The New Deal Crisis and the Rise of the Regulatory State
a) Schechter Poultry Corp. v. United States CL 195-203
b) Carter v. Carter Coal Co.
8) The New Deal Crisis (cont.)
a) NLRB v. Jones & Laughlin Steel Corp. CL 203-210
b) United States v. Darby
c) Wickard v. Filburn CL 179-189
9) The Civil Rights Crisis, the Fourteenth Amendment, and the Commerce Clause
a) State Action and Federalism: The Civil Rights Cases CL 1544-1549
b) Heart of Atlanta Motel v. United States CL 210-214
c) Katzenbach v. McClung
10) Federalism Revived: New Limits on Congressional Use of the Commerce Power
a) United States v. Lopez CL 214-224
b) United States v. Morrison CL 224-232
c) Gonzales v. Raich BB
d) The Constitutional Debate Surrounding Health Care BB
11) "Implied" Federalism Limits on Congressional Power
a) Garcia v. San Antonio Metro. Transit Auth. CL 333-354
b) New York v. United States
c) Printz v. United States
d) The Tenth Amendment as a Federalism-Based Limitation on Congressional Power (note) BB
12) The Fourteenth Amendment as an Alternative Source of Congressional Power
a) Katzenbach v. Morgan CL 300-314

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 b) City of Boerne v. Flores
c) Bd. of Trustees v. Garrett CL 314-326
d) Nevada Dept. of Human Resources v. Hibbs BB
e) Young, State Sovereign Immunity (excerpt) BB
f) Congress’s Enforcement Power Under the Reconstruction Amendments BB
g) Note: Enforcing the Thirteenth Amendment CL 326-329
13) "Implied" Limits on Local Power: The Dormant Commerce Clause
a) The Fundamental Framework CL 232-239
b) City of Philadelphia v. New Jersey CL 239-243
c) Kassel v. Consolidated Freightways CL 267-275
d) Hunt v. Washington State Apple Advertising Commission CL 257-262
e) West Lynn Creamery v. Healy CL 250-257
14) "Implied" Limits on Local Power: Preemption
a) Note: Preemption CL 277-280
b) Crosby v. National Foreign Trade Council BB
c) Wyeth v. Levine BB
15) The Distribution of National Powers & the Role of the Executive
a) Introduction: Fed. 47 & 48 CL 355-370
b) Youngstown Sheet & Tube Co. v. Sawyer (Steel Seizure Case)
c) Medellin v. Texas CL 375-377
d) Hamdi v. Rumsfield CL 379-395
e) Hamdan v. Rumsfield (discussed in notes)
16) The Distribution of National Powers & the Role of the Executive (cont.)
a) Legislative Authority & Nondelegation CL 412-427
b) INS v. Chadha
17) The Distribution of National Powers & the Role of the Executive (cont.)
a) Morrison v. Olson CL 430-439
18) Race and the Constitution
a) Slavery and the Constitution CL 441-452
b) State v. Post
c) Dred Scott v. Sanford
d) Frederick Douglass: The Constitution of the U.S.: Is it Pro-Slavery or Anti-Slavery? BB
e) Note: Dred Scott and the Power of Judicial Review
f) Note: The Work of the Reconstruction Congress
g) Strauder v. West Virginia CL 512-514
19) Race and the Constitution
a) Note: The Judicial Reaction CL 453-465
b) Plessy v. Ferguson
c) Note: Separate But Equal
d) Brown v. Bd. of Education (I & II) CL 465-479
e) Bolling v. Sharpe BB & note on CL 468
20) Implied Fundamental Rights
a) The Privileges or Immunities Clause CL 720-729
b) The Slaughter-House Cases
21) Implied Fundamental Rights (cont.)
a) The Incorporation Controversy CL 729-735
b) Barron v. Mayor & City Council of Baltimore
c) Murray v. Hoboken Land & Improvement Co.
d) Twining v. New Jersey
e) Palko v. Connecticut
f) Adamson v. California

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 g) Duncan v. Louisiana
22) Substantive Due Process: The Protection of Economic
a) Interests CL 735-752
b) The Road to Lochner
c) Lochner v. New York
d) Nebbia v. New York
23) Substantive Due Process: The Protection of Economic Interests (cont.) CL 752-761
a) West Coast Hotel Co. v. Parrish
b) United States v. Carolene Products Co.
c) Williamson v. Lee Optical
d) Ferguson v. Skrupa
24) Substantive Due Process: The Modern Doctrine The Right of Privacy:
a) Griswold v. Connecticut CL 831-843
b) Roe v. Wade CL 843-855
c) Planned Parenthood v. Casey CL 864-883
d) Bowers v. Hardwick CL 910-911
e) Lawrence v. Texas CL 912-927

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Unfiled Notes
Class 11/31

Exam Review
A. Focus on McDonald for due process incorporation
B. Review the standard of review for 14th, CC, etc. cases
1. Heightened v. rational basis, etc.
2. Boerne – congruence & proportionality
C. Deference to Congress
1. Court is ultimate decider
i. Commerce clause sufficiency
ii. EP congruent & proportional
D. DCC
1. Burdens excessive in relation to local health and safety interest
2. See Hunt & Kasel (ct recognizes bad motive but decides on balancing)
E. Seemed dodgy about political processes – study for exam
1. Mcculloch, raich, Nevada, 10th, dcc
F. Review modalities more
1. Functional v. formal (steel seizure)
G. Abrogation of sovereign immunity
1. Congress can only abrogate under § 5 and not commerce clause
2. Seminole Tribe
H. Good Exams
1. Strong command of basic doctrines and cases
2. Sophistication and though how areas relate to themes
3. Recognize nuance (e.g. line of cases more justified – good arg. for both sides)
4. Quality of writing – well organized
I. Bad Exams
1. No details, relationship, write non-linearly
J. Quotes
1. Need to be able to identify opinion and justice who wrote it (SHIT)

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