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A. Declaration of Independence
1. Radical notion: authority to get rid of King and self-govern is “natural” and “god-
given” (rights are inherent, innate, and antecedent to government)
a. Unalienable rights – cannot give up, cannot make foreign
2. Purpose of government (per John Hancock) is to protect the (these) citizens rights
3. Use of religious references invokes higher authority to justify reasons for revolt
4. Life, Liberty and the Pursuit of Happiness, taken from John Locke’s “Life Liberty
and Property”
5. Can you understand Constitution w/o understanding Declaration of Independence?
Should it be considered when interpreting Constitution?
B. Articles of Confederation
1. Mutual defense treaty
2. No president or national court (i.e., no executive or judicial branch)
a. Disputes resolved in state courts, may be biased to party from the state in
which suit brought
b. Needed executive branch to enforce the law
3. Regulated between states: trade, etc. (states were stronger than federal government)
4. Articles were ratified by states’ legislatures
5. Decided too decentralized and weak so decided to amend the Articles
C. Constitution
1. Ratified over 3 years, state legislatures didn’t vote, sent to ratifying conventions made
up of the people (Declaration: government gets power from consent of governed.) We
the people, not we the states.
2. Technically unlawful (delegates sent to come up w/ suggestions for amending
Articles to make it more workable, not creating a totally new government document)
as it did not follow the provisions of the Articles of Confederation and b/c Ratified by
people. Essentially engaged in another revolutionary act.
3. Legitimized b/c
a. States are bound to the people, states get power from people, if we decide as
the people to withhold some of that power from the states and create this
new federal government, it’s w/in our prerogative
b. Representatives there were there in the capacity as representing the people,
not as government officials/legislators
c. States gave up some power to federal government (as how Articles worked);
people had given power to states, decided to take some back and give to
federal government
4. Most people would argue that the adoption of the constitution was critical to the
survival of the country: ability to tax to pay off war debts, regulate commerce
(interstate rivalries – states were taxing each other)
5. Article One: Establishes the Legislative Branch
a. Splits legislation into House and Senate: Senate more like the Articles of
Confederation (each get two)
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b. House Elected by People (# of reps chosen proportional to population),
Senators Elected by legislature (by state, each gets 2)
i. Madison defends this process as not just representative of the people,
but representative of the states. Removed from people, passions would cool.
c. §7 Divides the lawmaking powers of the house and senate; lawmaking (how
to create laws); bicameralism (must pass House and Senate) and
presentment (must be signed by executive)
d. §8 Enumerated Powers (things Congress is allowed to do; will spend most
of course here)
e. § 9 Limits Powers of Congress (things Congress can’t do, despite
enumerations of powers)
f. § 10 Limits Powers of States (things states cannot do)
6. Article Two: Establishes Executive Branch
a. Details President and VP; how elected and how long serve
b. President does not make laws, just approves or vetoes them.
c. Ensures the laws are faithfully executed.
d. Commander and chief of military.
e. Can make treaties, with approval of 2/3 Senate: so nation speaks with one
voice.
7. Article Three: Establishes Judiciary
a. Not nearly as much power as the other two branches
b. Federal and SC
c. See Marbury v. Madison
8. Article Four: Interstate dealings
a. States and citizenship
b. States recognizing legal actions of other states as legal in their own, ex.
Marriage, drivers’ licenses.
c. Access to records, K valid between states, ct ruling still valid (unless
marriage – that depends on if goes against other state public policy)
9. Article Five: The Amendment Process
a. 2/3 of both houses and ¾ of states must agree to amend the Constitution
i. Because of concern over what groups of people might do if they
get lots of power.
ii. Requires consensus much like that which created the Constitution
10. Article Six: Supremacy of Constitution
a. Aka: Supremacy clause
b. Constitution and US laws/treaties are supreme law of land; all states bound
(state laws that conflict are void)
c. Grandfathering in treaties from Articles of Confederation (Constitution still
recognizes them)
11. Article Seven: Ratification
a. How Constitution comes into being
b. Only mention of god in Constitution is in reference to the year
12. Amendments
a. Note: class dedicated mostly to Amendments 9, 10, and 14
13. Bill of Rights
a. Some people thought the Bill of Rights was going to be a problem, because
it might be taken as a limited list of the rights of the people. Hence,
Amendment #9
14. Declaration of Independence
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a. Does the Constitution live up to the promises of the Declaration of
Independence? DI safeguard liberty the way the bill of rights does?
b. “All men created equal”
c. Checks and balances bring certain equality
d. Inalienable rights (life, liberty, pursuit of happiness)
i. Exclusion of women, indigenous peoples and slaves
ii. Article 1, § 2
a. 3/5 rule excludes indentured servants, slaves, indigenous
b. For purposes of taxation, women considered free
c. Reduces representation in the south so south wanted full
representation (reduced the amount of direct taxes they had to
pay, but then reduced representation)
iii. Article 1, § 9: Slavery not prohibited (law won’t change for 20yrs)
but can tax importation
iv. Article 4, § 2: Slaves, indentured servants, criminals fleeing to
another state can be returned to slave state
v. Article 5: amendments to constitution
a. Says can amend any part except cannot make amendments
until 1808 for slave provisions
15. Is the constitution a pro-slavery document?
a. Cognitive dissidence between extremely progressive document versus fact
that slavery still existed
b. Once of earlier drafts, Jefferson wanted to list encouragement of slave trade
as one of crimes of King George (removed for political reasons)
c. Deliberate inefficiency clearly built in (difficult to make laws); 1808
provisions suggest southerners were unsure how secure slavery would be
d. All references to slavery were indirect
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2. People are different – different skills, trades, businesses, etc.;
essentially, special interests groups
F. Can't prevent their formation so control their effects through competing factions, no
one will take absolute control – cancel each other out.
1. Representatives help (less biased, broader view – but won’t always be
enlightened)
2. Since can't just have representatives, setup government to allow ruling
passion (majoritarian view) to give up interests to protect all citizen’s rights
(act in interests of public as a whole)
3. Create separation of powers to lessen problem; 3 branches of government,
each w/ own areas to regulate, that checks each other
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2. Federal government can’t tax a state’s property that is used in
performance of its basic governmental functions
3. See McCulloch v. Maryland (outline p. 7)
8. Some things (such as education) historically in the domain of the states
1. Note that 21st amendment, in repealing 18th amendment gave the states
power to legislate their alcohol (almost specifically taking it away
from the states) -- and State regulation of liquor is wider than
constricted by commerce clause
PROCEDURAL LAW
“It is emphatically the province and duty of the judicial department to say what the law is. Those
who apply the rule to particular cases, must of necessity expound and interpret that rule. If two laws
conflict with each other, the courts must decide on the operation of each.” –Oliver Wendall Holmes
(1920).
Uniformity of application of federal law one of the more important roles of the Supreme Court.
Federalist 78
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“Interpretation of the law is the proper and peculiar province of the courts. A constitution is, in fact,
and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain
its meaning, as well as the meaning of any particular act proceeding from the legislative body. If
there should happen to be an irreconcilable ….”
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c. Goes beyond Marbury (not just that SC can tell Congress laws
unconstitutional – now, SC is ultimate authority determining
constitutionality)
d. “federal judiciary is the supreme in the exposition of the law of the
Constitution”
Calder v. Bull p. 69
A. Is this an ex post facto law? No.
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B. Highlights different forms of Constitutional interpretation.
C. Is Natural Law included in interpretation of the Constitution?
D. Justice Chase – legislature cannot exceed their authority beyond natural law (rights inherent
to people, preexist government; not necessarily written)
1. Natural rights are a higher power that has to be answered to. An “unwritten
Constitution” of natural law, which is enforceable against the states even though they
are not in the Constitution.
2. Law that contradicts natural law is not law (courts have to strike down; Judges have
power to strike down enactments b/c natural law is part of the Constitution; in fact
isn’t even a law)
3. Declaration of Independence: “All men… are endowed with certain unalienable
rights…”
4. These rights constrain the legislature and supersede government laws
E. Justice Iredell – Does not support natural law, as there is no fixed standard, difficult to
implement.
1. Power of legislature given by the people
2. Courts don’t have power to strike down such a law
3. Fears that people might disagree on the interpretation of natural law. Fears
Constitution will be usurped by natural law.
4. Gives too much power to judges. Nothing to constrain judges’ discretion. Make
decisions based on moral judgments rather than constitutional ones.
5. If judges are given this kind of power, we don't know what they will do (are more
likely to agree about what Constitution says b/c is written than we are about natural
laws that are abstract)
Constitutional Interpretation:
Originalism – fixed meaning of the Constitution, constrains judges. See pg. 685
Natural Law – moral order that pre-exists government
Moral Arguments – representation reinforcement
Tradition – common law and precedent
Shared understanding – popular will of the people
“[If] the courts are free to write the Constitution anew, they will, by God, write it the way the
majority wants”
~ Justice Antonin Scalia
A. Amend Constitution
1. House and Senate must both support by 2/3 OR 2/3 of the states can call for
Constitution Convention; THEN ratified by ¾ of sates
2. Long and difficult process.
3. Overrides court interpretation by changing Constitution.
4. Some limits to what can be amend
a. Can’t deny a state its equal representation in the senate
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b. Slavery and apportionment of taxes could not be amended until after 1808
B. Judicial Appointments
1. President nominates; senate advises and consents.
2. Allows for influence on future court (not lots of control)
3. Imperfect means of controlling the courts. Can change numbers of justices;
president can’t be sure that justices will vote the way they want to. (ex: Souter,
O’Connor, etc.)
C. Impeachment
1. Judges hold their offices during good behavior
2. Only one justice was impeached: Samuel Chase; Impeached but not convicted, so
retained seat.
3. Not a very prominent or commonly used check.
4. Judge has never been removed, although threat of impeachment can influence
decisions
D. Popular Opinion
1. Taking into account what the public wants. Protests, etc.
2. Probably does not have much direct effect, more of a personal choice.
3. “The Supreme Court follows the election returns”
4. Court does not have power of judgment enforcement on its own
E. Jurisdicitionalism
1. Does Congress have the ability to limit the jurisdiction of the court? See Ex parte
McCardle
2. Congress determines what kinds of cases courts can hear and establishes lower
federal courts
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Case or Controversy (limitations on court):
A. Article 3 frames judicial power in terms of cases and controversies.
1. Separation of power principles (relate to policy)
2. Court cannot initiate issues – has to actually have a case; so courts lack agenda
control (legislative and executive branches can address whenever they want)
3. Useful b/c: 1) judicial restraint, 2) resolve concrete disputes, 3) promote individual
autonomy/self-determination (person injured only gets to sue)
4. Court only resolves what it has to (not other, larger issues); minimal (not grand
pronouncements about how the world should be); vindicate individual rights in the
case
B. SC cannot issue Advisory Opinions
1. Can only rule on constitutionality of a law when a specific case has been brought
before them; absent a controversy, court cannot give opinion
2. Court cannot advise other branches of government
C. Standing Requirement
1. Have to have a cause of action; third party cannot sue for someone else (close family
might be OK); person actually w/ a stake in controversy should bring issue forward
2. Elements
a. Injury in fact (an invasion of a legally protected interest which is concrete and
actual/imminent)
b. Causation (causal connection between injury and conduct complained of)
c. Redressability (must be likely that the injury will be redressed by a favorable
decision; positive result w/ direct effect on P)
3. Cannot waive standing b/c it’s part of establishing jurisdiction
a. Further you go in the case, have to show more and more standing (requires
more evidence)
b. Constitutional limits (Art 3): two general types
i. Art III standing and Prudential standing (reasons why courts may pass
on the case)
ii. Su esponte
D. Political Questions (outline p.)
Standing:
TEST: to determine standing, court must “ascertain whether the particular plaintiff is entitled to an
adjudication of the particular claims asserted.” see Allen
Allen v. Wright p. 87
A. IRS refuses to revoke tax-exempt status of segregated private schools; parents of African-
American school children sue IRS for policies that hinder the desegregation efforts
(wanted IRS to revoke tax-exempt status); charge:
1. Failure to enforce: IRS failed to enforce federal law stating that racially
discriminatory schools are not eligible for federal tax exempt status
2. Hinder desegregation process: This continued exemption encourages the schools
to continue to be segregated (slowed desegregation process; policy means there
will be more discriminatory schools)
3. Stigma: P harmed directly by the mere fact of discriminatory schools –
desegregation is not going to happen; that government is involved w/ segregated
schools is an associated stigma that is itself an injury
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B. Court Rules they have no standing because:
1. There was no causation: not direct enough a link between IRS action and
discriminatory policies of schools.
2. Court does recognize general and social harms of segregation, but states that these
are not enough injury to hold standing.
3. There was no direct injury: the P’s furnished no proof, nor did they allege, that
their children were discriminated against (stigma is not a sufficient injury)
a. If court had held they were injured, anyone w/in the stigmatized group
could bring suit
C. Constitutional rules ONLY apply to government institutions – unless pass a statute
that says otherwise, other institutions can discriminate w/o violating the Constitution
(may be violating federal law, but not the Constitution)
UC v. Bakke (supplement?)
A. P can’t prove would have gotten into med school but for the program, but still has
standing (like contractor case)
B. Both institutions are governmental so gives Constitution violation basis
C. As for standing, P alleges decreased chance of getting in – certain spots set aside so he’s
not even able to compete for those spots no matter what he did (he did apply and was
denied admission)
D. Lost opportunity to go (or at minimum, his opportunity was diminished)
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B. Friends file affidavits from people living near water; were specific individuals living in the
area w/ specific claims; their subjective fear is reasonable
C. Non-tangible harms can be real injuries (don’t expect people to be chemists and other
industry experts; do expect that if company is complying then are safe and people can rely on
that safety; if company violates permit violations, don’t expect people to test the water
themselves)
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2. i.e., dropping charges against person to keep case f/ being heard
Political Questions
Like standing, political questions are an issue of judiciability
What makes a political question? see Baker C.
Recall Marbury; Court should occasionally pass on a case
o Some branches of government get to act in certain ways and are responsible for
making sure Constitution not violated (either way, if act Constitutional or not, certain
matters not for court to decide)
Vested legal right v. political question
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o FL S. Ct. issues another decision with technically the same outcome
o Goes back to the US Supreme Court and the Court reverses for a final time
• Questions to think about:
o Did SCOFLA order violate Equal Protection Clause?
o Did SCOFLA order violate Article II?
o Was the case justiciable (did it present a political question)?
o Should SCOTUS have taken the case?
• What was the basis for the equal protection claim?
o Standard for determining the vote is what was the intent of the voter
o 1. Lack/variation of standards (in the various precincts) to determine the intent of the
voter
o 2. Overvotes were counted in some counties and not in others
o 3. Miami-Dade recount that was not finished was going to be concluded
o 4. No clear way to object to the application of incomplete standards
o These 4 things in combination rise to the violation of equal protection
o Note: 7 of 9 justices found there was an equal protection violation
• The equal protection claim is where the holding of the case comes from
• Rehnquist, Scalia, Thomas:
o Article II: “Each State shall appoint, in such manner as the Legislature thereof may
direct, a number of Electors…”
o FL S.Ct. rewrote legislative statue by extending certification date
o “Textualists” judges very concerned about FL S. Ct. ignoring text of legislative
statute
• Had Bush v. Gore been prior to Baker, case would have been ruled a political question
• Justice Breyer’s argument: “no preeminent legal concern, or practical concern related to legal
questions, required this Court to hear this case, let alone to issue a stay that stopped Florida’s
recount process in its tracks.”
Powers of Congress:
Commerce Clause
Gibbons v. Ogden p. 143
A. NY legislature grants sole rights to waterways in NY state to Fulton and Livingston. F&L
license Ogden to operate a ferry between NYC and Elizabethtown Point NJ.
B. Gibbons operates a boat on same route (licensed via federal act). O sues, says G violated the
NY statute. Granted injunction by state court.
C. Can Federal Act overrule state statute? Does Congress have the right to create this act which
asserts jurisdiction over waters w/in NY?
D. Commerce clause: Congress granted the rights over commerce by Constitution. Congress
may regulate interstate commerce. Court tries do define “commerce”
a. The congress shall have power…to regulate commerce w/ foreign nations and among
several states…
b. Traffic, intercourse between states, movement of goods/svcs/money/etc.
c. Marshall asserts navigation is understood to be part of commerce
d. Further, is necessary to regulate streams, etc. as they go through multiple states
e. Marshall defines “regulate” as to proscribe the rules and make regular (and
enumerated several areas that should be left to the states – bottom of p. 145).
E. So what remains beyond Congress’s reach?
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a. Regulation includes promoting commerce. Does it also include limiting commerce
(see Hammer case)?
b. Limits:
i. Completely within a state
ii. Does not affect other states
iii. And is not necessary to interfere.
1. Intrastate commerce, state specific regulations that do not affect other
states, then congress has no power.
2. Acting upon an object before it becomes an object of international
commerce also not allowed.
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A. Agricultural Adjustment Act sets quota for wheat production (to inflate wheat prices by
regulating quotas). Filburn has dairy farm and grows wheat for his cows and family
B. Filburn produces more bushels than his quota, but uses them to feed cows, etc. Argues no
commerce b/c was sort of manufacture/production that never left his premises (not buying or
selling wheat)
C. Court says act still applies.
a. Congress has right to regulate not only supply for wheat but also demand. When F
produces more bushels, he lowers his demand b/c he does not have to buy from other
farmers (if all farmers only grew allotment, all have to purchase)
b. Undermines government program if all milk producers grown own wheat
c. Need to stimulate trade – personal growth reduces control
D. Compare to marijuana sales (for medical use)
a. Not bought, given by friend (so no commerce); trivial use b/c so small use/amount
b. Federal government under commerce clause should not regulate consumption
c. Government says letting her go will then have to let others go which ads up to large
aggregate population; control of drug too hard when let some people get off;
undermines regulatory scheme
d. Wickard precedent says cannot use the drug
e. Allowed to prohibit lottery tickets, why not prohibit sale of drugs
f. If allow anyone to have it, there’s more of a market (more chance that folks will sell)
g. All illicit drug laws are based on commerce clause
Post Wickard:
Maryland v. Wirtz: Court upheld regulation of wages and hours of employees (any enterprise
engaged in commerce is a commercial activity and Congress can control). Any and all commerce
not just interstate commerce. Wickard theory of effects.
Perez v. United States: Loan Sharking made federal crime under same theory (aggregate of all loan
sharks has larger impact together on national markets)
Heart of Atlanta Motel v. U.S. and Katzenbach v. McClung: Challenges to Title II of the Civil Rights
Act as it applies. Provision regulates motels and restaurants that use or accommodate interstate
commerce (travelers or supplies), stating they are not allowed to discriminate against clientele. P.
183, 184; If people don’t think they can eat or sleep in places when traveling, won’t travel; does not
overturn Wickard (Activity that’s subject to sanction here is an economic activity – whereas
Wickard took himself out of the market)
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c. Can be seen as function of how many steps (too many between guns and commerce
vs. wheat and commerce) – but ultimately not important (go straight to activity – is
economic or not; always question of degree b/c no bright line)
d. Guns in schools can affect economic activity but is not an economic activity itself
i. Cannot let argument take aggregate into account (otherwise, you can argue
regulation of everything b/c everything affects economics)
ii. May, in theory, be some activity that’s not an economic impact but court has
never reached so far
iii. Thus, is incompatible w/ idea of judicially enforceable line
E. Concurrence (Kennedy): broader theory of commerce regulation. Congress has power to
legislate anything that has to do with national economy.
a. Balance of roles between states and nation. Schools generally left to states.
F. Concurrence (Thomas): Commerce applies in the most limited ways possible. Dislikes the
aggregation principle: It’s clever, but has no stopping point. Commerce Regulation should be
VERY limited (if have broad interpretation, why have enumerated powers)
a. Thomas is about 3 opinions from selling himself back into slavery.
G. Dissent (Stevens): Look at potential federal of interests affected. Guns are articles of
commerce and can be used to restrain commerce, so Congress should have the right to
restrict them anywhere.
H. Dissent (Souter): We should be careful when overriding the legislature. Congress decides
what relates to Congress. Rational basis test: Could a member of Congress who wasn’t
smoking crack come to this conclusion? Yes, b/c multiple studies have shown that education
has a huge impact on commerce. Also, if voters don’t like idea, won’t reelect representatives
Supreme Court does not have the right to hear state cases when the state court has ruled on an issue
that is independent and sufficient to the state. (If there are state Constitutional issues that are
sufficient to rule on the case, then the SC can’t take it.)
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B. Congress wants drinking age raised to 21. Makes law stating that cannot get federal highway
funds unless state drinking age is 21 (b/c encouraging drinking encourages drinking and
driving so it relates).
C. Congress is allowed to do this. Not coercive. But must be relationship between the restricted
funds and regulated behavior.
D. Limitations:
a. Has to be for the “General Welfare” (legislature needs wide berth here – if passes
both houses of congress and signed by president, it’s for the general welfare)
b. Unambiguous conditions; any clear conditions (where states are obligating
themselves to some condition, are waiving sovereignty, states have to KNOW theyre
doing it)
c. Relationship; has to be some relationship between purpose of the money and the
condition
d. Independent bars; government can't condition receipt of money on unconstitutional
conditions (usually comes up when money goes to an individual, not the state and
there’s a question of first amendment rights)
E. Conditions cannot be coercive
F. Dissent (O’Connor)
a. Accepts above test and applies it more rigidly than majority
b. Conditioning highway funds on 21yr old drinking age
c. Meets all of above tests except for relationship clause – depends on opinion
d. Can argue that giving money for building and maintaining roads/highways is too
remote from drinking age
G. Issue of coercion: language in Butler and Stuart Machine discussing why is (B) or is not
(SM) coercion; as the law stands today, court does not draw line here (regarding
impermissible or permissible conditions on spending for regulatory affects)
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b. Also says, states retain sovereign authority only in so far as the Constitution has not
divested them of powers by delegating them to the national government.
c. States interests are more properly protected by procedural interests.
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o Spending clause
o Treaty power
o (Section 5 of 14th Amendment)
External limits
o Affirmative limitations (explicit examples: bill of rights)
o Anti-commandeering Rule (not just looking at text but at the structure itself and
nature of limitations this structure/history itself imposes)
o Sovereign immunity
States are immune to suit where they have not given it up (people cannot sue
states; can still be sued by federal government)
(don’t see mentioned in first six articles) first appears in the Eleventh
Amendment
• Chisom v. Georgia
Residual in the states
• Sovereign not b/c of 11th Amendment but b/c of limits of federal
government (inherent to sovereignty)
• States never gave up immunity when Constitution signed (people
never too that back)
• States have to consent to give up
o Are all kinds of federal programs (funding) that come w/
strings attached (have to give up sovereign immunity for
purposes of that grant; i.e., agree to be sued in exchange for
public transportation funds
Presidential Powers
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i. Too tenuous a connection. Commander and chief does not have the ability to
take over private property in the U.S. for war means. Use of War Powers too
far removed from military concerns: private citizens, private company, etc.
ii. Other branches of government have war powers, too (Congress declares war
and appropriates money)
b. Executive Powers:
i. President can’t execute a law the Congress didn’t pass.
ii. Further, Congress had specifically refused to allow such an action a few years
earlier in Taft-Hartley Act, indicating that Congress did adopt legislation to
address these concerns, but decided not to give president this specific power
c. Residual Executive Powers:
i. There is no authority under residual executive powers. President has no law
making authority at all.
ii. President has some policy making decisions (who to prosecute, etc.) but not
all (what to prosecute).
C. Frankfurter, concurring: Congress implicitly withheld authority
a. But in certain circumstances, the action might have been acceptable. Perhaps, if
during a declared war, things would be different. There is ambiguity.
b. Congress’s interpretation of the Constitution should be relevant. Here Congress has
interpreted that the pres should not be allowed to intervene.
c. Pres already had Taft Act (chose not to invoke)
d. Founding fathers were familiar w/ concept of emergencies – would have added
necessity clause if thought was appropriate
D. Jackson, concurring: three types of presidential acts, varying in authority:
a. President acts with Congressional authority, authority is at a maximum
b. When acts in grey area (not expressly in or outside approval) absence of Congress but
can rely on Constitutional powers independently granted: “zone of twilight” in which
the president and congress’s powers cross
i. Congressional indifference may sometimes enable or invite independent
presidential responsibility
c. When acts contrary to Congressional approval
i. Presidential powers are at their lowest because he can rely only on his own
Constitutional powers minus the Constitutional powers of Congress.
ii. Can act in these situations when and only when
1. Executive does have sole power to do X
2. Congress cannot prevent president from doing X
iii. This case falls into this category. Congress has openly disapproved of similar
actions and president does not have a clear right to take over steel mills in the
name of the war powers. This is not a monopoly. This is not a strictly military
action, Congress has power to raise and support (and thus supply) the military.
iv. BUT, Congress didn’t explicitly prohibit steel seizures. If case was instead in
category two, it might come out differently because of Congressional
indifference.
d. Also says faithful execution of law does not apply: there is no law here. 5th
Amendment says government can’t appropriate property without due process of law.
E. Douglas, concurring: President could seize and then Congress could approve seizure.
(Provided that the court doesn’t stop it first.) But congress didn’t. The branch of government
that has power to pay compensation for seizure is the only one ale to authorize such seizure
or make a seizure lawful.
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F. Dissent (Vinson, Reed and Minton): Bases theory on the “existing emergency” of war time.
Because work stoppage could threaten national defense. (Red Scare?) Only applicable to
materials needed for war. Otherwise president is powerless.
a. President filling the void – until congress passes legislation telling him those are not
his powers, President should be given wide berth
b. Assertion of power (power “grab”) was not hidden or sneaky (President warned
Congress)
G. Importance of “adverse possession” of Presidential powers (unbroken, past use of this
power); although many governmental powers are clear, others are not and historical use
might very well be used
H. Regan and air traffic controllers: ATC were federal employees, so Reagan could fire them.
Issue was what level of civil protecting were they afforded?
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Military Commissions:
Issues for tomorrow: Does the president have the authority to issue an Executive Order for the trying
of non-citizen enemy combatants to be tried by military tribunal?
Which of Jackson’s categories would this fall into?
What do we make of the Milligan (Civil War, Indiana) and Quirin (Nazi’s tried for sabotage)
precedents? Should it apply to Moussaoui?
Can the president proscribe military tribunals for non-U.S. citizens in the war on terrorism?
Milligan: U.S. citizen (non-confederate soldier) tried for conspiracy in Indiana during the Civil War.
Court rules unconstitutional. Emergency powers do not extend to situations where there is already a
court system. Cannot have martial rule coinciding with an open court system. There was a pre-
established court system to try U.S. citizens.
Quirin
Declared war; Nazi saboteur. In times of war and great public danger the powers of the pres. As
commander and chief are not to be set aside by the courts without the clear conviction that they are
in conflict with the Constitution or the laws of Congress. No war time emergency like in WWII.
Undeclared war. But is not already established that Moussaoui is agent of foreign power…
The Congressional order applied only to those involved in September 11. So….
What about the right of the people to seek remedy? People of NY, DC, etc. Art IV §2(2), 10th
Amendment,
Could it be argued that this actually falls into Jackson’s third category?
One of the points of separation of powers is the prevention of tyranny. Federalist papers.
Page 31 of 59
c. Court willing to give executive/legislature looser leash in foreign affairs
d. No question about powers having ever been in realm of states (always federal issue)
War Powers:
Congress President
1. Power to declare war. 1. Commander and Chief
-should be harder to start a war than 2. First to end war via treaty
to end one (last time was WWII) 3. September 18 resolution is more of
2. Ratify treaties ending war. a blank check (not actual
3. Appropriate Money declaration); Allows president to
make determination of what’s
necessary; Politically, allows
Congress to pass the buck (if
decision goes poorly, can say they
thought President would make
better decision, that didn’t vote for
THAT particular action)
Hamdi v. Rumsfeld
1. (note: Youngstown says in theatre of war, get more leeway; careful at home)
2. Detention of enemy combatants authorized by Authorization of Use of Military Force
a. President can use force to go after September 11 perpetrators
b. Court does not answer if President has this power on his own
c. Necessary and appropriate force authorized president, by congress
i. President determines who harbors terrorists and who to go after
3. Plurality, p. 57 (O’Conner )
a. Criminal prosecution not necessary – just prove who he is; don't have to let him go –
just have some proceeding to determine who he is
b. Judiciary dictates process by which captured combatant is treated (Scalia and Thomas
say no, Judiciary does not have power to dabble in war powers, Congress creates
processes b/c bulk of war powers is statutory)
c. Court assumes (but does not decide) president needs congressional authorization to
detain Hamdi (many acts permissible under international law that can’t do w/o
congressional permission)
4. Souter, p. 75
a. Prosecute in civil court or suspend habeus corpus
b. Congress hasn’t authorized detention, but they could – have power to detain (i.e.,
invoke Detention Act); can't hold him w/o it
5. Scalia, p. 80
a. Draws on Civil War cases where civilians tried in military courts
b. Can’t detain/try citizen in military courts unless habeus corpus suspended
c. Founding father’s general mistrust of military powers
d. Clearly in jurisdiction b/c in US
e. Try for treason, hang them; don’t hold onto them b/c they’re “dangerous”
f. Let him go or charge him
g. If congress wanted to do something about it, they could – but they did not
h. Habeus corpus: suspended only very select reasons (rebellion – internal war, or
invasion – NOT for overseas activities); ultimately, is congress’ decision to suspend
(not up to court)
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6. Thomas
a. Judiciary can’t oppose any process; prefers bright line rules
b. Congress and executive have war powers – judiciary has NO such powers (C and E
can duke it out; J might be able to intervene when they’re really fighting; otherwise, J
is supposed to stay out)
7. Whole issue of US citizen not addressed – comes down to enemy combatant
US v. Nixon
1. June 17, 1972, burglary of Dem. Nat’l HQ in the Watergate bldg in D.C.; over the next year,
discovered that burglars were connected to campaign to re-elect President and high-level
White house officials were involved in a cover-up
2. Pres. aide, Alexander Butterfield, revealed secret taping system in the Oval office and that
presidential conversations were routinely recorded.
3. Political pressure prompted an internal investigation and Attorney General Cox assigned
special prosecutor to the case. Cox subpoenaed tapes of White house conversations and the
president challenged the subpoena in court; SC ruled Nixon had to comply w/ subpoena;
impeachment still being decided.
4. The tapes made available w/ gaps showing Nixon obstructed justice by ordering Watergate
matter not be investigated; 3 days later Nixon resigned
5. Nixon says case is non-justiciable b/c Cox works for president
a. Can’t just get involved in any dispute between the branches of government
6. Court says there is executive privilege (but are limits)
a. Privilege is important
i. Don’t want to take attention f/ job (distracted by personal issues)
ii. Keeping sensitive info f/ leaking (classified; i.e., discussions of national
security, bombing, political negotiations, military interests,
diplomatic/military secrets, etc.)
iii. Executive branch might not function well w/o executive privilege (think
Marbury v. Madison)
iv. Each branch has independence of operating internal operations privately (need
branches to respect the others)
b. On the other hand, can't get a “free pass” just b/c are executives
7. b/c Nixon fired Cox, need someone to investigate executive branch independently
a. Morrison v. Olsen – independent council is Constitutional (Scalia was the lone
dissenter – somewhat prophetic in tunnel-vision and other problems in using; since
then, both parties been subjected to them and don’t like)
b. Political consequences pres suffered f/ firing Cox not enough (counter-argument:
unlimited budget, no accountability, only one target)
8. Impeachment: organization of power
a. House has “sole power of impeachment”
b. Senate has “sole power tot try impeachments” (some say this is one option and one
option only – can’t censure president or give other punishment)
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c. Judgment only “removal f/ office” and disqualification
d. For “treason, bribery, or other high crimes and misdemeanors” (debate about what
these are)
e. None of these powers are justiciable
SUBSTANTIVE LAW
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a. Citizen of Missouri, free b/c resided where Congressional act “MO Compromise”
didn’t allow slavery (also in Ill., state not allowing slavery)
E. Court says:
a. No jurisdiction, b/c Scott is slave = property he cannot be a citizen and thus no
diversity federal jurisdiction. Shouldn’t continue w/ ruling if already say lack
jurisdiction.
i. Not just that slaves aren’t citizens, but the class of people who are black
ii. Concept of blacks as not citizens “fixed and universal,” though in some states
there is evidence that free blacks ratified the Constitution.
iii. If Scott was free in IL and MN, he relinquished freedom when returned to
slave states; Scott’s status is determined by Missouri, not Illinois, law; b/c
Scott returned to Missouri, Illinois law does not apply
b. Court does not have power to decide fairness of such laws (is up to legislature); just
interpret law (went so far as to say how inherently inferior slaves were, that keeping
them in slavery was for their own good)
F. MO compromise unconstitutional b/c slaves are property – can't take w/o due process
a. Taking slave away when traveling into another state is not due process
b. Congress substantively infringed upon liberty of slave owners
c. Art 4, § 3: (federal) government can take a lion (certain type of property) f/ owner;
why not slaves? Has to do w/ idea of due process as something more
d. Congressional act declaring the Louisiana Territory slave-free was void
e. Congress doesn’t have power to deprive citizen-owner of their (slave) property rights
f. Constitution expressly guaranteed right to own slaves for 20 yrs
g. Isn’t bring a salve into territory where slavery is prohibited violating the law of
making that person a slave?
h. Due process not just procedural, is substantive right (law saying can't hold a slave
would not be due process); Congress passes law through open process, people know
about it
i. Justice Taney wrong as far as his assertions of founding fathers intent (never intended
to include African Americans in “free men” statements); relying on original intent
problematic
i. Used assertion of race, not just slaves
ii. Were some free, African American reps. at Constitution ratification
convention; in some states, race was irrelevant to citizenship
G. First example of judicial review since Marbury but not denying SC right to do something, but
Congress’s. Ugly side of judicial review.
H. Court intended to put slavery issue to rest but had opposite effect: sped march to civil war
I. Additional Notes:
a. Paradox of Constitutional law: to enforce limitations on government power, is
necessary to create some countervailing government power
b. Before Civil War, were few Constitutional restraints on state government power (this
was intentional); after Civil War, became apparent that sometimes need to protect
citizens f/ state power (thus need stronger federal government)
c. Congress passed several legislative acts/amendments (particularly protecting newly
freed citizens)
d. Courts reacted by limiting the scope of these laws (slaughterhouse cases) making sure
only applied to newly freed slaves
i. US v. Harris, didn’t extend 14th Amd to private conduct of KKK lynch mob
ii. SC invalidated public accommodation sections of 1875 Civil Rights Act
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Reconstruction Amendments:
13th Amendment: Abolished Slavery
14th Amendment: Grants Citizenship and the rights therein to all persons born in the United States
and not subject to foreign powers. (Reverses Dred Scott, blacks are citizens.) §1, due process, equal
protection – to ensure states would protect all people equally; §2 revokes the 3/5ths person scheme
for representatives; §3 persons engaged in rebellion against the nation cannot take political office,
unless approved by a 2/3 vote of Congress; §4 U.S. won’t take responsibility for debts incurred by
the Confederacy; §5 Congress has power to enforce.
Equal protection
15th Amendment: Can’t deny right to vote based on race, color, or former servitude (male suffrage)
THESE AMENDMENTS ONLY APPLY TO STATE ACTION, see Cruikshank, bottom of pg. 434
Page 37 of 59
Cooper v. Aaron
A. P sites disruption, etc. to end “experiment” of desegregation; wants to delay integration
process; SC overturns lower court’s ruling for P
Brown II p. 453
1. All deliberate speed to implement programs – massive resistance
2. Cooper v. Aaron – School district said after 6 months of turmoil.
3. Should the ruling in Cooper been stated in 1955 instead of 1958.
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a. If it effects places outside the current district, the remedy can involve those areas.
C. Powell: de facto v. de juree segregation
a. De Facto – mandated by law
b. De Juree – societal consequence
c. Integration does not mean every school is perfectly integrated; all-white or all-black
school not necessarily segregated unconstitutionally, if system itself is integrated
d. “Public Schools are creatures of the state, and whether segregation is state-created or
state-assisted or merely state perpetuated should be irrelevant to constitutional
principle”
D. Majority says de juree segregation in Denver authorizes the court to imply remedies
E. Rehnquist: objects to finding whole district tainted b/c a part of it is gerrymandered
Limits on Brown
A. All about what courts can order (what kind of relief can they mandate) school districts to do
B. Milliken I
a. Inter-district desegregation unconstitutional
b. Limited court’s ability to remedy segregation; SC beginning to go the other way –
strikes down inter-district relief when there’s no impact on area outside district
c. Relief can't be extended beyond district (can't order district to wk w/ neighboring
suburbs not in district)
i. To have a multi-district remedy, there must be a problem in each district
ii. In Denver, did not cross district lines, just sections of district
d. Constitutional issue is not the lack of “mixed” schools - it’s the use of race to
segregate
C. Milliken II
a. Goes the other way again
b. Dist court judge can order other things beyond redistricting lines and bussing (can
create magnet schools, fund various programs to encourage diversity, etc.)
D. Jenkins I
a. Based on Miliken, can order different/additional relief so says can order tax increase;
ordered doubled taxes to stem financial issues and help desegregation
b. Court struck down (although in theory courts can order tax increase)
E. Jenkins II
a. Like MI and MII together; involves non-bussing remedies (teacher salary increases)
b. Order explicitly designed to attract students f/ outside district (get them to migrate in)
c. Court strikes down b/c does not matter what remedy you’re looking at; either way,
scope of remedies must track the scope of the harm
i. Inter-district remedy goes beyond harm of intra-district harm
ii. Trying to get students from outside the district
iii. Indirect means to achieve things that they would not be able to do directly
d. Different views of what Brown did and should mean impacts subsequent case law (is
it that you can’t use race at all, period or can you in certain circumstances?)
Note Cases
Railway Express Agency v. New York (p. 484)
A. Rule that cannot place advertising on trucks because of safety reasons, but trucks that already
have ads on them can keep them
B. Court found that there was not even a pretense of safety because trucks that already have ads
are no more safe than trucks that would put the ads on after the law passed and thus does not
withstand the rational basis test. Blatant discrimination against certain companies.
Page 41 of 59
D. Scalia, Rehnquist, and Thomas issue an extremely homophobic dissent about how being gay
is un-American and immoral. The dissent compares homosexuals to murders polygamists and
those who abuse animals.
Page 42 of 59
even w/ convenient excuse of military authority. SC permits inference of inheritable guilt,
against fundamental assumptions of system. Person always has constitutional rights.
Palmore v. Sidoti
1. Couple divorces, mother awarded custody
2. Mother remarries to African-American so court awards father custody
a. b/c in best interest of child b/c of pressures of being inter-racial child
3. SC reverses, allows mother to regain custody
a. Usually best interest of child always holds sway
b. Why is race different?
c. Court says can't let hecklers limit first amendment rights of parents and child (b/c of
other people’s views)
d. What if was study showing deep psychological impact of child (not based on any
external influence – totally impossible, but just for pretend)?
i. (parallel to Brown)
ii. Might change outcome
Washington v. Seattle School District No. 1 (Its all about the process baby, see C.) p. 535
A. Washington passes a referendum prohibiting any school districts in the state from busing,
except for X reasons. X reasons were all the reasons to bus other than for racial reasons
B. The initiative place “special burden on racial minorities”
a. Precludes the school boards from bussing, ever b/c puts decision making process in
“new and remote” level of government (state, not local)
C. Court does not like the process by which it was done. (Opinion by Blackmun)
a. The state is free to structure its local schools however it wants, but it can’t structure
the political process to place an undue burden on any racial group.
b. Decision making process must be a fair fight; one group can’t rig it so that the other
group gets what it wants.
i. Defense: it’s a fair, it’s just the political process and they lost; SC disagrees
D. Powell dissent: authority of school boards previously unchallenged on Federal level; no prior
constitutional infringement which would mandate bussing; eliminating doesn’t violate rights.
E. Blackmun (majority) goes other way in Crawford v. Board – decided the same day and
viewed as indistinguishable; distinguishes case based on process, not outcome.
a. In Washington, they restructured the process; in Crawford they just repealed law; can
repeal law if process followed; cannot change the process so as to place an undue
burden on the other side to change it back.
b. Question from Adler: so why isn’t this then a political process case?
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c. But doesn’t this discount motivation, which the court has found to be important in
other cases – look at intent – rational basis, strict scrutiny, etc.
– strict scrutiny applies to all race-based regs. Marshall argues intermediate should be applied here
A. R requires that 30% of construction contracts for city be given to companies owned by
minorities.
a. Goal to remedy discrimination against minorities in hiring processes.
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B. Court disallows city’s policy, saying that race based distinctions, even when giving
advantages to minorities, should be under the strictest scrutiny standard.
a. O’Connor’s ends-means test:
i. Ends: must have compelling interest in making said regulation.
ii. Means: First should try racially neutral means, if that does not work, means
must be narrowly tailored to the goal of the specific instance.
C. Population is an issue: 50% of Richmond population is African-American, but only .67% of
contracts given to AA’s.
a. Court does not see this as evidence of a compelling interest.
i. Just because 50% minority in gen. pop. doesn’t mean that 50% of contractors
are minorities. Gen. pop is not the proper standard.
ii. What percentage of minorities were eligible (have required skills/businesses)
to apply for the subcontracts.
D. Argument that Richmond was a segregated city, this is necessary to remedy the historical
economic discrimination of the city.
a. Majority does not dispute this, but they say historical disadvantage is not the same as
current disadvantage. Can only be used to remedy current problems, not historical
ones.
E. Ruling does not preclude state taking action to end discrimination currently present in a city
or state and due to the state’s actions.
F. Marshall dissent: applies intermediate scrutiny and therefore does not require narrow
tailoring, he requires a substantial relationship between the remedy and the problem.
Grutter v. Bollinger
Croson was first time strict scrutiny applied to affirmative action case (five justices said
applied, as opposed to previous cases where court was divided)
Until Grutter, case never survived strict scrutiny test
U. Michigan says policy adopted not to make up for past discrimination, is b/c diversity is in
and of itself a compelling state interest
Would have been easier for UM to argue they discriminated a lot in the past
P’s claim is that while UM claimed to give individualized review to applications, in practice
it was a hard number that decided entrance
Court finds that diversity in higher education is a compelling state interest
p. 119 (supplement)
o Adopts Bakke – race can be a plus, not a hard rule, part of holistic review of
applicant’s file
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o Court not necessarily applying strict scrutiny
Doctrinal wrinkles, based on way court divided – makes for diversity of views in how to
handle such issues; outcome was compromise to get to majority holding
Raises doctrinal issues
o Is racial diversity in academic a compelling state interest?
Ends v. means adopted
Court found that diversity IS a compelling state interest
(learnt f/ Koramatsu that can’t just go along w/ state saying they have a
compelling interest in something; courts found it here)
o Is Michigan’s race-conscious admissions program narrowly tailored?
What’s serious good-faith consideration of race-neutral alternatives
Usually has to be a time limit – date when we know it’ll end
Remedial (as opposed to combative) type of program
Gratz v. Bollinger
Michigan’s undergraduate admissions program
Applicants rated based on point scale; above 100pts get in, below 75pts do not, then there’s
the gray area in-between
Points given to race were too great, did not allow for individualized consideration
Majority thinks these two plans should have risen together and been upheld or struck down
simultaneously (however, two justices liked one and not the other)
Page 47 of 59
14th Amendment adopted to deal w/ race issues (clearly to protect freed slaves), not gender
(separate amendment had to be adopted to grant women suffrage)
So why rational basis? b/c of gender discrimination
o Why not test in Moreno, etc. (cases where use rational basis to make sure legislators
are not totally out of wack or crazy)
o Usually very lenient – give legislators wide berth
o So, why not: when find law that treats women differently outright, then strike down;
if happens to treat women differently then uphold law if it meets rational basis test
o Is no Constitutional signal that we’re in a different space when it comes to race – do
not have the same when it comes to women
Purely numerically: women outnumber men, etc.
Nguyen v. INS
INS convicts of crime at 22yrs old, was going to be deported b/c was not citizen (mother was
not), father gets DNA test to prove son is citizen
Is citizenship rule a permissible gender-based classification?
Court decides that citizenship is a function of maternal (not paternal) citizenship
If had had test 5 years earlier (before turned 18), would have been made a citizen and not
deported
SC upholds statute
o Encourages fathers to have relationship w/ child
o Child is asserting citizenship that’s not automatic
o Paternity harder to prove
Intermediate scrutiny: would say state has to show is no sex-neutral test to meet same goals;
not the case here
Differences between different levels of scrutiny
o Minority days opinion was decided based on outmoded generalizations of women
(mothers v. fathers)
o Majority says the facts are rooted in biological differences (mother is present at birth,
etc.)
o Veterans cases are interesting – hard to tell which gender gets shafted
A. Implied Fundamental Rights: rights are not enumerated, not clearly in text but nonetheless
merit protection; where are they? What should courts protect?
B. 9th Amendment
a. Bill of Rights originally only applied to federal government
C. Privileges OR Immunities Clause (in 14th Amendment)
a. First time addressing some substantive limit to state police power
b. Different f/ equal protection clause (which was focused on classification distinctions)
D. Incorporation: debate of incorporation of Bill of Rights as against the states
E. Substantive Due Process: seen in Dredd Scott; sometimes used, although is good example of
how justices have trouble explaining decisions (due process does not have best pedigree so
often look for other ways to justify rulings)
F. Privileges AND Immunities (different f/ Priv. OR Immun. clause above)
a. Article IV
i. “the citizens of each state shall be entitled to all privileges and immunities of
citizens in the several states”
ii. Non discrimination clause – states can't treat own people better than other
states people
iii. Have to treat all US citizens the same w/in your state
b. 14th Amendment
i. “no state shall make or enforce any law which shall abridge the privileges or
immunities of citizens of the US”
ii. I.e., right of self defense
iii. First time adjudicated in Slaughter-House cases
G.
H. Ninth Amendment: All rights are not enumerated herein….
I. Privileges and immunities clause
a. Art. 4 “The citizens of each state shall be entitled to all privileges and Immunities of
citizens in the several states”
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i. Citizenship in one state entitles you to the rights of each state when in it.
ii. Non-discrimination by state of residency
b. 14th Am. “No State shall make or enforce any law which shall abridge the privilege
i. See Slaughter House Cases
J. Doctrine of incorporation (some things that fed. can’t do, states can’t do either)
a. The Bill of Rights was not intended to apply to the states, only the federal
government. (see Barron v. Baltimore)
b. What rights are incorporated? (see Palko v. Conn.)
i. Those essential to order liberty
K. Substantive Due Process
Page 51 of 59
Q. The Clause should not be interpreted to cover state restraints on trade. Those privileges are
left to the citizens of the states and thus left to state governments for protection, not the
federal government.
R. Field’s Dissent: The amendment guarantees basic freedoms for all United States citizens.
Rights protected by the privileges and immunities clause are those that belong to the citizens
of all free governments - it is clear that among these must be the right to pursue a lawful
employment in a lawful manner, without other restraint than such as equally affects all
persons. A distinct privilege of citizens of the United States is equality of the right to the
lawful pursuits of life throughout the whole country. To permit a state to interfere with such
a basic privilege is to ignore the true purpose of the fourteenth amendment.
S. Bradley’s Dissent: The right to choose one's employment, subject only to uniform regulations
equally applicable to all, is the most basic of rights and should be protected by the clause. To
force a butcher to only deal with one company, and force him to pay a toll, is a trade
restriction that materially interferes with its prosecution. It is onerous, unreasonable,
arbitrary, and unjust.
T. Because of this case, the 14th Amendment Privileges and Immunities Clause is essentially
dead
Economic Liberty:
Substantive Due Process and Economic Liberty
What if due process means more? Not just about how to set up procedures in convicting
people (but is about the substance of rule the state can punish you for in the first place)
Not a claim about process but a claim about substance
US v. Carolene Products (most famous footnote); suppression of competition (milk
products); discrete judgment not found (differ to legislative findings)
West Coast Hotel v. Parrish (switch of nine case – essentially overturns Lochner) p. 727
A. “Switch in time saves 9”
B. Explicitly reversed minimum wage law Adkins v. Children’s Hospital and upheld minimum
wage law for women
C. Court’s reasoning is that women are weak, no bargaining power, and are being exploited.
D. What happened to the right to K? Was this really to prevent women from underbidding men?
Meyer v. Nebraska
A. No teaching foreign languages in middle schools, specifically German.
B. Court says… dumb
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D. Goldberg agrees w/ 9th A, suggests due process
E. Harlan says forget penumbra, due process should protect; marriage part of tradition and
collective conscious, court has legitimate role in protecting
F. White ignores all this, just deals w/ rational basis and how this law fails that test – looks at
disease prevention or illicit relationships (that law does not protect citizens, etc.)
G. Three ideas of where rights come from
H. Douglas: Penumbras
I. Goldberg: 9th Am
J. Harlan: only looks at 14th Am
K. Disagree on where substance comes from; agree on substantive due process, enforcing right
to privacy as state regulation through due process clause of 14th Am
L. Issue is if is right in and of itself
M. Ambiguity about where test is
N. Harlan’s discussion should flag readers that is strict scrutiny (same as fundamental liberty)
O. Right to Privacy
a. Lot of discussion of marriage
b. But what about unmarried couples?
c. No limits on sales
i. Compare to eyeglass case (Optical)
ii. Law restricting sales subject to strict scrutiny (limits access) unlike optical
(where does not impact fundamental liberty)
iii. Fundamental liberty takes out of rational basis test and makes test strict
scrutiny
P. Criticized b/c contradicts West Coast Hotel (ID non-enumerated liberties not subject to
rational basis)
Q.
R. State statute prohibits the use of contraceptives, even by married couples.
S. Struck down based on the penumbra of the bill of rights including a right to privacy.
T. Preventing use rather than sale is impractical: would have to go into the marital home.
U. Regulation was unnecessarily broad for goal of preventing extramarital affairs.
V. Harlan: Must look at history and collective conscience to maintain judicial self restraint.
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o Trimester framework (survives 20 years)
Medical judgment of physician
Regulate for maternal health
Regulate/proscribe (w/ life & health exception)
o Issue as time goes on and technology gets better so that
Babies can be born more and more premature
And abortions can be done later and later w/ lower risk to woman
Dissent says is legislative decision (not judicial) and is not fundamental right
Is Roe really an equal protection case?
o Only impacts women
o What’s result under intermediate scrutiny?
Gives states more leeway to regulate
Equal protection:
o No longer an issue of fundamental right, is about are men and women treated the
same (so strict scrutiny does not have to apply)
o Is intermediate scrutiny
Maher v. Roe; and Harris v. McRae
o Controversial decisions
Two issues:
Is abortion a fundamental right?
Can the state justify limitations?
Fundamental Right:
Fetus is not mentioned in the Constitution, and court determines fetuses are not persons.
14th Amendment says born or naturalized, not conceived. (If it said conceived, not
criminalizing abortion would be unconstitutional under equal protection.)
Woman’s right is in the penumbras of the right to privacy, based on 14th Amendment (see
pg. 824).
State Interest:
Discourage illicit sexual conduct
Texas doesn’t ever bother to argue this one
Protect health of the mother
No more risk than in pregnancy
Protect prenatal health
No rights for fetuses (see B.a.)
Court applies strict scrutiny in examining whether the state has a compelling interest. (strict
scrutiny is race based only in equal protection, not fundamental rights – like privacy.)
Court rules:
States can’t regulate abortion during the first trimester
After the first trimester, states may regulate abortion for the health of the mother
Subsequent to viability (3rd trimester) courts can regulate to protect the rights of the fetus.
Page 55 of 59
D. Implied fundamental rights
E. Casey takes a step back f/ this, gives undue burden analysis
a. Differs f/ Roe
b. Abortion not in terms of fundamental rights
c. Says sticking w/ past rulings
F. Case stands for fact that abortion has its own special test – own category
G. Some say is step away from fundamental right to abortion
H. Others say accounts for other (fetal) interests
I. UNDUE BURDEN test (not compelling interest w/ narrow tailoring; strict scrutiny)
J.
K. Penn. statutes requiring such things as spousal notification, parental notification, 24 hour
waiting period, etc.
L. Court affirms the “central” holding of Roe, but not the trimester plan, as it is no longer
medically correct. Upholds that abortion is an absolute right until the point of viability. Then
state can regulate. Also extends maternal health interest of state throughout.
M. Undue Burden: does the court apply the test that it articulates?
N. Stare Decisis: when can a rule be overturned?
a. Is the rule workable?
b. Is there reliance upon the rule?
c. Are the facts still applicable
d. Evolution of legal principles – “a doctrinal anachronism abandoned by society”
O. Based on Stare Decisis it was OK to overturn Lochner, but not Roe because of this
framework.
Bowers v. Hardwick
A. Does the right to privacy extend to homosexual sodomy?
B. Statue was, on its face, neutral; but was not being applied neutrally (unequally enforced)
C. (like Railway Express case – majority pass law they’re OK w/, too; has to be equally applied)
Lawrence v. Texas
A. Court overturns Bowers but does not say is fundamental right
B. “no legitimate interest” = rational basis
C. Scalia:
a. Argues decision makes gay marriage a foregone conclusion (O’Conner disagrees)
b. Also, says are all sorts of laws we think are silly that are ultimately moral legislation;
is say moral disapproval cannot pass rational basis, is not how historical development
Stare Decisis
Lochner (overturned by West Coast Hotel)
Plessy (by Brown v. Board)
Roe v. ???? (not yet)
Bowers (by Lawrence)
Court looks to:
o Precident unworkable
o Reliance interests
o Doctrine undermined or superceeded by president
o Change in fact
B/C of stare decisis, SC need Constitutional amendment to change past rulings
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Katzenback case (court gave leeway; small area of fundamental right that should not be
infringed upon so create “protective bubble” around it that includes range of cases not a part
of fundamental rights; so congress can create law to protect)
OK Too Broad
Right
Tests
Due Process Clause
Economic Measures => rational relation
Fundamental/Individual Rights => strict scrutiny
Equal Protection Clause
Gender => heightened scrutiny
Race => strict scrutiny
Note where immutable characteristic always causes a group to always be the structural
minority the test will always be strict scrutiny as a protection against the tyrannical thrust
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Cases Standard of Review
Romer (CO legislature forbid all rational basis review
local discrimination laws); voided
Moreno (Hippies); voided statute
NY Transit (methadone) OK
Lee Optical (limit fill lens
prescriptions); voided statute
Railway Agency (no car adds but
on professor. Vans); OK
City of Cleaborn (home for rational basis w/ teeth
retarded); voided
Craig v. Boren (girls buy beer intermediate scrutiny
early); voided
US v. VMI (no girls in our tree
house); voided
Nguyen (illegitimate kid and
citzenshiph/promote family); OK
Korematsu (Japanese internment); strict scrutiny
OK ** wartime
City of Richmond (race contractor
award quota); voided
Bakke (UC Davis racial admission
quotas); voided
Michigan Undergrad (20pts for
race); voided, disproportionate
Michigan Law (soft number award
to race apps); OK
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