Constitutional Law Spring 2009 Professor Green Laura Lee Gilliland

Four Questions to Answer with Each Case: (1) What is the law? Federal? State? (2) What does the law do? (3) Why is the law constitutional/unconstitutional? (4) What clause in the Constitution supports that holding? 5 Kinds of Cases: (1) Federal Power (2) Separation of Powers (3) State powers (4) Fundamental Rights (5) Antidiscrimination Rights I. McCulloch v. Maryland (1819) (Part 1)
Facts: The state of Maryland (P) imposed a tax requiring all banks chartered outside the state to print their bank notes on stamped paper if they established any branch or office within Ps boundaries. The tax was similar to those passed in other states during a period of strong state sentiment against the Bank of the United States. The taxes were aimed at excluding the bank from operating branches within those states. The Bank of the United States fell within the statutory definition, but issued notes on unstamped paper. Accordingly, P brought an action for debt collection against McCulloch (), the cashier of the Baltimore branch of the Bank of the United States. The state courts imposed penalties on , and appeals. Issue: Even though the Constitution does not expressly grant Congress the power to incorporate a bank, can it do so under a doctrine of implied powers? Holding: Yes. -Under the Necessary and Proper Clause (N/P; I/8/18), any appropriate means that Congress uses to attain legitimate ends that are within the scope of the Constitution and not prohibited by it, but are consistent with the letter and spirit of the Constitution, are constitutional. -This case is one of the most important in the history of the Court because it established the doctrine of implied powers and emphatically articulated the supremacy of the federal government. The opinion went far beyond the needs of the specific case to promote a powerful federal government. Many commentators at the time objected that the idea of the nation as a union of sovereign states was being undermined. Instead of giving Congress only those additional powers that were needful or indispensable, the N/P was now a grant of discretionary power. However, exercise of this power must be based on powers granted by the Constitution. -I/8/18 is the textual argument, the N/P clause -Different viewpoints on the First Bank of the United States:

(1) Madison: a. Believed a bank was outside Congresss constitutionally delegated authority b. Federal government is granted particular powers not general powers with particular exceptions (2) Thomas Jefferson: a. In favor of states rights and strict construction of the Constitution b. Powers not delegated to the US by the Constitution nor prohibited to the states are reserved for the states c. Constitution allows for only those means that are necessary not convenient d. Liberal construction of certain clauses would need to be applied to all (3) Hamilton: a. In favor of a national economy b. Use of the word necessary should be constructed liberally especially in matters concerning general administration of the country and finances c. Relation between the nature and the mean employed toward the execution of a power must be the test of Constitutionality not the necessity A. Analysis of McCulloch 1. Marshall points to non-judicial precedent (ex. Congressional history of 1st bank) and demonstrates that the judicial system is not the only means on Constitutional interpretation 2. Constitution ratified by Convention, which symbolizes the people a. US Gov. is the government of the people. Its powers are granted by them, and exercised on them, for their benefit b. Constitutional power doesnt come from the states as states but as people of the states 3. Clauses Cited & Interpreted in Marshalls Argument a. Preamble (1st citation) b. Powers of Congress i. Lay and collect taxes ii. Borrow money iii. To raise and support the Army iv. To provide and maintain a Navy v. Necessary and Proper Clause c. Comity Clause (Article IV) i. Citizens of each state are entitled to all the privileges and immunities as the several states ii. Interstate relations d. Supremacy Clause e. Oath of Affirmation (Article VI) i. Members of Congress are bound by oath to support the Constitution f. 10th Amendment i. powers not delegated to the US Gov. are reserved for the states g. Analysis of different sections of the Constitution in forming an argument that the Constitution is a living document 4. US Gov., though limited in its powers, is supreme within its sphere of action a. Congress may select the means necessary to complete delegated powers b. Supremacy clause constitution and federal laws shall be the supreme law of the land c. Congress is bound by oath to protect the Constitution 5. Article I/9 (Powers Denied to Congress) has no purpose if I/8 is read narrowly (Framers would have denied the power to incorporate a bank in this section)

a. By expressly stating all powers provided for the means of exercising those powers, the Constitution would amount to unreadable legal code b. Its a constitution were expounding i. justifies giving legislature ample room to operate ii. enabling the legislature to adopt allows the Constitution to endure iii. Congresss enumerated powers should not be read narrowly, but instead Congress should have authority to choose the means to achieve the ends 6. Reasons supporting a broad construction of necessary a. STRUCTURAL N/P is found within the enumerated powers and the following section details specific powers denied to Congress b. STRUCTURAL Even without N/P Clause the Constitutions outline format provides for deduction of incidental or implied powers c. Textual Art. I/10 inserts absolutely necessary ; if framers intended Congress to have those powers only absolutely necessary to exercise delegated powers, framers would have added absolutely to N/P Clause B. Marshalls Methods of Constitutional Interpretation i. Text ii. Structure iii. Prudence/Consequences iv. History 1. Pre-ratification 2. Post Ratification important in precedent arguments v. Precedent 1. Judicial 2. Non-judicial (President, Congress, State & Local Gov.) 3. Allows for predictability in the law vi. National/Narrative Ethos 1. Is the interpretation faithful to the meaning or destiny of the country? vii. Uncertainness of Meaning 1. Ambiguity 2. Vagueness 3. Non literal Usage viii. Implied v. Inherent Powers 1. Implied linked to textually assigned powers (ex. power to charter a bank) 2. Inherent do not depend on any textual assignment (adding new states) ix. Constitutionality of Louisiana Purchase 1. Constitution did not explicitly give the government the power to hold foreign territory or incorporate it into the Union 2. Jefferson believed the territory would require a Constitutional Amendment 3. Balance between Constitutional fidelity and necessity
The issue: what implied powers does the federal government have? Can Congress charter a bank so that people can pay their taxes with paper, rather than gold? Marshall first says that implied powers exist based on general reasoning Necessary & Proper Clause (N/P) (Art. I, 8, cl. 18) (I/8/18) merely confirms existence (p. 45)

Next, N/P doesnt limit implied powers to strict absolute necessity, but allows whatevers convenient (pp. 45ff) Arguments for (incorporation of a national bank): Text: Absolutely necessary language in I/10 (Art. I 10) suggests that merely using necessary means only somewhat necessary (p. 46) ., Federalist 33 (Hamilton) (N/P only declaratory of a truth which would have resulted by necessary and unavoidable implication), Federalist 44 (Madison) (even without N/P, all the particular powers requisite as means of executing the general powers would have resulted to the government by unavoidable implication), Marshall in McCulloch saying N/P confirms earlier analysis ***Green thinks Marshalls argument is stronger Text: 10A just says delegated, not expressly delegated, like a similar provision in the Articles of Confederation (A/C) (p. 43) History/Precedent: Acquiescence by lots of people for a long time, thinking about the question carefully in response to well-developed arguments on the other side (p. 39, later Madison p. 37) Structure: Feds shouldnt have to depend on state banks (p. 51) Policy: Constitution would be ridiculously complex if every implied power were included (p. 43) Policy: Government could hardly work if Congress couldnt choose means (p. 43) Arguments against: Text: Specific powers would be superfluous if implied powers OKe.g., power to coin money plus power to punish counterfeiters (I/8/5 & I/8/6) (p. 30) Madison notes at one point that the N/P itself was described as merely restating what was implicit in the powers themselves History: Power to grant corporate charters considered & rejected by convention (p. 28) History: Broad interpretation of necessary & proper clause not offered in debates: said to be merely declaratory (p. 30) Structure: Incorporation is attribute of sovereignty & exclusive prerogative of states (p. 31) Policy: Allowing this seems to mean allowing anything (p. 29) Structural Argument Marshall says feds shouldnt be dependent on state banks; Maryland says feds shouldnt infringe exclusive state prerogative of incorporation These sorts of arguments can be pretty slippery & hard to pin downwhat does it even mean to say that a state is sovereign? *Green says it probably doesnt matter that the people, rather than the states, enacted the Constitution. Marshall relies on the Preamble and Article VII argument, but Green compares this to the p q analysis; basically saying people/states = same concept Historical Arguments Marshall & late Madison: Too late in the day to go back now Akin to adverse possessioneven if the current possessor doesnt own it, well let him keep it anyway Policy Arguments Well, maybe our government doesnt work very well, but thats the cost of having a government of limited & enumerated powers Well, maybe the feds can do anythingIm learning to live with lots of things, and I can live with that Same ~p to ~q style analysis used here With Madisons policy argument, the historical form of the argument against an omnipotent federal government is greatly bolstered by the 10A: the powers not delegated by the Constitution to the federal government presumably refers to something Is Marshall saying that interpreters can change the Constitution freely, that we shouldnt be bound by the dead hand of the past? No! His point is that, because the Constitution is enduring, and stays the same, we should interpret it to leave decisions to the political branchesbecause the things fixed by the Constitution are fixed permanently, we should assume that the Framers were sensible and didnt try to govern everything (e.g., the use of means for executing powers) by the Constitution

II. McCulloch v. Maryland (Part II)

Same facts as Part I. Issue: Is the federal government supreme over the states so that a bank created by it pursuant to its constitutional powers is immune from taxation by the states? Holding: Yes. -The Constitution and the laws made in pursuance thereof are supreme. They control the constitutions and laws of the respective states and cannot be controlled by them. A state, which represents only a part of the people of the nation, cannot act to control the government of the whole country. -The power to tax is the power to destroy. It is also the power to control. The tax that P imposed on the Bank of the US is an attempt by that state to control an operation of the government of the whole. The tax, therefore, is unconstitutional. -This portion of the opinion gave a wide scope to the Supremacy Clause. A state law is void if it retards, impedes, burdens, or otherwise interferes with the accomplishment of congressional purpose in enacting the federal law. Unless the US Gov. is supreme, it would be no better off than the weak government under the Articles of Confederation. Of course, the supremacy of the federal government still faced severe tests, but this case fleshed out the constitutional framework for the relations between states and federal government. A. Analysis 1. Power of taxation is concurrently exercised by state and federal government and state powers to tax should not be abridged by the federal government 2. Clauses cited in Marshalls argument a. Powers prohibited to states (I/10) states are expressly forbidden to lay duties on imports or exports unless absolutely necessary for executing their inspection laws b. Supremacy Clause (Art. VI) the Constitution and federal laws shall be the supreme law of the land (If Congress validly enacted a statute, both federal and state courts are required to enforce the federal statute even if it is contrary to a state statute or common law rule) i. Powers given to the federal government are supreme and the residual is given to the states under the 10th A ii. Constitution contains no enumerating state powers iii. Federal government is supreme under the principle of representation (everyone is represented by the Constitution) iv. Essence of supremacy removes obstacles to Congresss action within its sphere 1. Sovereignty of the states does not extend to the means utilized by Congress in executing its delegated powers 3. Prudence/Consequences Argument: ability of states to tax one government instrument would allow taxation of all; this was not the intent of the people a. Representation i. Inherent in the structure of the Constitution ii. The US Bank was created for the people, so MD cant tax

Demise of the 2nd Bank

A. President Andrew Jacksons Veto 1. Precedent: prior congressional decisions are equal; so arguments based on precedent arent meaningful a. Judicial Precedent alone will not guide presidential decision making i. Executive, Legislative, and Judicial branches should be guided by its own opinion of the constitution ii. Public officers from each branch take oath to support Const. iii. Court in McCulloch did not decide a bank was Const., they said that the incorporation of a bank was a Const. exercise of power iv. Congress & President are left to decide what particular features of the bank are necessary and proper 2. Textual Arguments a. Power of Congress to coin money : establishing a bank to accomplish the execution of this power equates to transferring its legislative power and making the Const. useless b. Necessary and Proper Clause i. Cannot be necessary that a US Bank be exempt from the same taxes that a state bank is subject to ii. Cannot be proper that the most essential powers reserved by the states be attacked by the federal government in exercising its power. 3. States rights: federal government should act for the benefit and protection of the States and leave each to move unobstructed in its proper orbit B. Presidential Veto i. Veto power enables the president to carry out his oath to preserve, protect, and defend the Const. ii. presidents often sign legislation containing constitutionally objective provisions and indicate that they will not comply with those provisions iii. Take Care Clause (Article 2/3) reflects presidential obligation to act in accordance with the Const. iv. President has the authority to engage in independent Constitutional interpretation C. Congressional authority Under the General Welfare Clause (I/8) i. Congress has the power to provide for the common defense and general welfare of the US ii. Madison held the clause not to include an express or implied general power to construct roads and canals D. Freedom of Expression and States Rights i. Sedition Act made it a criminal offense to criticize the gov., const., etc. ii. Alien Act authorized the President to order deportation of any alien dangerous to peace and safety of US iii. Meaning of 1st A 1. Did Framers intend it to encompass more than protection of the press from gov. censorship? 2. Levys Argument 1st A was not intended to nullify the common law criminalizing libel 3. Opponents of Alien & Sedition Act argued that it violated the 1st A

III. Marbury v. Madison (1803)

Facts: Marbury (P) and others were appointed justices of the peace for the District of Columbia by President Adams and confirmed by the Senate on Adamss last day in office. Their formal commissions were signed but not delivered. Madison (), as Secretary of State, was directed by the new President (Jefferson) to withhold Ps commission. P brought a writ of mandamus directly to the Supreme Court under the Judiciary Act of 1789, which established US courts and authorized the Supreme Court to issue writs of mandamus to public officers. Issue: Is the SC empowered to review act of Congress and void those that it finds to be repugnant to the Constitution? Holding: Yes. Ps action is discharged because the Court does not have original jurisdiction; the Judiciary Act is unconstitutional. -The facts demonstrate a plain case for mandamus action, and under the Judiciary Act this Court could so act -P claims that since the constitutional grant of jurisdiction is general and the clause assigning original jurisdiction to the Supreme Court in Article II, Section II, contains no restrictive words, the legislature may assign original jurisdiction to this Court in addition to that specified in the Constitution. But the clause specifies in what cases this Court is to have original jurisdiction, and that in all other cases its jurisdiction is appellate. Ps contention would render the clause ineffectual , an impermissible construction. Therefore, the Judiciary Acts grant of original mandamus jurisdiction is unconstitutional and void. a. Issues 1. Does Marbury have the right to his commission? 2. If he does, and that right has been violated, does he have a remedy at law? 3. If he does have a remedy at law, is it a mandamus issued from the USSC? 4. Notice the unconventional ordering of issues. Courts typically address whether they have subject matter jurisdiction first. b. ISSUE #1 1. Right originates from the Judiciary Act 2. Once a presidential appointment is made, presidential discretion ends and the legal right of the office holder begins 3. When a commission is signed by the president and sealed by the SOS, the appointment is made regardless of transmission to the person appointed 4. Court has no power to control presidential discretion in making appointments, but when appointment is made and a legal right is created, courts may intervene 5. Court held Marbury had a legally protected right to his commission c. ISSUE #2 -- Remedy 1. Appointment conferred a legal right to office 2. Refusal to deliver his commission violated his rights and he is entitled to remedy at law (mandamus) d. ISSUE #3 Can the Court Issue Mandamus 1. Judiciary Act authorizes SC to issue writs of mandamus 2. 3/2/2 Original Jurisdiction of Supreme Court i. Cases involving ambassadors and public officials, etc. ii. Appellate Jurisdiction in all other cases

3. Issuing a writ of mandamus is not listed among the areas of original jurisdiction and it is not an exercise of appellate jurisdiction or necessary for the exercise of appellate jurisdiction; therefore, the Judiciary Act is unconstitutional 4. Act of the legislature that conflicts with the Constitution is void e. Arguments for Judicial Review 1. No provision explicitly authorizes the federal judiciary to review the constitutionality of acts of Congress 2. Judicial Duty i. Courts determine which rule governs a case. In cases where the Constitution and federal law apply, but are in conflict, the Constitution must govern the case. ii. Those who apply the law must interpret the law and the Constitution should be regarded as law. Does not mean that only the judiciary can interpret the law 3. Textual Arguments supporting the Constitution as Law i. Powers denied to Congress as evidence of Const. Law a. prohibition to tax exports from states b. prohibition of bill of attainder or ex post facto laws c. rules of treason convictions ii. Oath of Affirmation a. Supports the idea that the Constitution is a rule for the government of Courts as well as the legislature iii. Written Constitution a. Used to support the argument for judicial review -Framers wrote the Const. down so that judges could compare the written Const. to the written rule of law -Written Const. allows judges to compare against state laws and determine whether state law exceeds Const. limits b. The Const. is a mechanism for channeling power. The People established a written government and limited power by creating branches. c. A written Const. would serve no purpose if the limits to power among the branches could be passed at any time. A. The Marshall Court and the Early Republic 1. Election of 1800 i. Thomas Jefferson defeated John Adams ii. 12th A passed in recognition of the rise of political parties iii. Before Jefferson took office, the Federalists controlled Congress, which passed the JA of 1801 a. established circuit courts b. gave President the power to appoint Federal Judges and justices of the peace c. eliminated duty of SCJustices riding circuit d. Adams appointed Federalist Judges to circuit court positions e. Attempt by the Federalist party to retain control over the judiciary f. Republican-controlled Congress later repealed the JA of 1801 and eliminated the circuit court positions
2 big separation of powers issues:

(1) When can a court tell the President what to do? 21 is foundation of political question doctrineissues that the Court leaves to other branches, because theyre discretionary Examples: constitutionality of procedures for impeachment trials is left to the Senates discretion Article IV guaranty of Republican Form of Government clause is left to Congresss discretion Nice little ditty on protection of the laws, which I think is very important for interpreting the 14A: The very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws, whenever he receives an injury. One of the first duties of government is to afford that protection. I think that when the 14A says equal protection of the laws, it means equal right to a remedy & protection from violence, not generic right against discrimination (2) When can a court tell Congress that legislation is unconstitutional? If Congress passes a statute, and a court thinks its unconstitutional, does the court have to enforce it anyway? Question of whether judicial power extends to the nullification of properly-enacted statutes Put another way: does the legislative power given to Congress include the power to make courts enforce statutes, disagreement about constitutionality notwithstanding? Important to distinguish Supreme Court review of federal statutesa separation of powers issuefrom Supreme Court review of state statutesa federalism issue McCulloch & lots of other earlier cases strike down state statutes, but very few strike down federal statutes Marbury & Dred Scott are the first two Arguments for Judicial Review (1) If unconstitutional legislation isnt void, then the legislature could change the Constitution ( 43-51) Lots of good stuff here about the nature and function of a constitution: the people settle particularly important structures and principles that will govern them at other times Im not sure it really settles the issue of judicial review, though Seems consistent to say that the Constitution is fixed & unalterable, but Congress has exclusive authority to judge constitutionality: its binding on Congress, but judges dont have the power to disagree One way to imagine a system without judicial review: the constitutionality of legislation is always a political question (2) It is emphatically the province and duty of the judicial department to say what the law is ( 52-54) (3) Otherwise, courts would just disregard the Constitution ( 55-68) But courts might still use the Constitution as an interpretive guide, even if they lacked the power to say that Congress had acted unconstitutionally Also, could consult Constitution where Congress hadnt resolved an issue (4) Why do we take an oath, otherwise? ( 69-72) -lots of officers take oaths But then, maybe judges job is just to apply the statutes Congress has written, and to consider their constitutionality as settled by Congress That might be wrong, but its not wrong just because judges take oaths The key is what judicial power amounts to, but Marshall doesnt give that much attention (5) In pursuance means consistent with ( 73-74) -procedural regularity? -a reference to time? Including/excluding past statutes/treaties? Better Arguments for Judicial Review: -history: huge numbers of framers assumed that judges could strike down unconstitutional statutes, and no one disputed that judicial power included the right to nullify statutes. Perhaps questioned if it was a good idea, but never questioned it as a judicial power.

Presidential Constitutional Interpretation -Oath argument to preserve the Constitution, Art. II Oath Even if the oath argument isnt conclusive, there might be good reasons to think that executive power or the Take Care power in II/3 (he shall take Care that the Laws be faithfully executed) include the power of executive review, or even review of the constitutionality of judicial decrees - Exercised by Jackson and Lincoln (Ex Parte Merryman) Some Constitutional Interpretation by the States: -Kentucky and Virginia Resolves protesting Alien and Sedition Acts on 1A grounds -JA of 1789 presupposed state courts could declare federal statutes unconstitutional -threat of quasi-revolutionary doctrine of states over fed gov.

IV. Regulation of the Interstate Economy Gibbons v. Ogden (1824)

Facts: A New York statute granted the exclusive right to navigate by steamboat between New York City and Elizabethtown, NJ, to Livingston and Fulton, who it turn conveyed the right to Ogden (P). Gibbons () also operated boats along Ps route. s boats were licensed in the coasting trade under the federal Coasting Act. P sought and obtained a state court injunction prohibiting s operation. appeals, claiming the power of Congress to regulate interstate commerce under the Commerce Clause is exclusive. Issue: Is state regulation of commercial navigation that excludes federally licensed operators constitutional? Holding: No. Judgment reversed. -P admits that Congress has the power to regulate commerce with foreign nations and among the several states, but would limit the meaning of commerce to traffic (buying and selling) or the interchange of commodities, and would exclude navigation. But one of the primary objects of the creation of the federal government was to grant power over commerce, including navigation. -The commerce power of Congress must be exercised within the territorial jurisdiction of the states, even though it cannot reach solely intrastate commerce. The power of congress does not stop at the boundary lines of a state; it follows interstate commerce into the territory of a state. -P attempts to analogize between the taxing power and the commerce power, claiming that since the taxing power is concurrent, the commerce power should be. But regulation of interstate commerce is an exclusive federal power. When a state regulates commerce with foreign nations or among the several states, it exercises the very power granted to Congress, and the analogy fails. -State inspection laws are recognized in the Constitution, but do not derive from a power to regulate commerce. They act upon the subject before it becomes an article of foreign commerce. - has been granted, through a federal license, the privilege of employment in the coasting trade. P would restrict such trade to property transport, excluding passengers. Such a narrow interpretation would eventually explain away the Constitution. Instead, safe and fundamental principles must be followed, and coasting trade includes transport of both property and persons for hire. -For these reasons, the federal license must be recognized, and state laws prohibiting exercise of such licenses are void. Concurrence: Creation of a federal power over commerce was one of the main purposes of adopting the Constitution. A. Issues:

1. Is the 1793 Act of Congress a constitutional exercise of the commerce power granted in I/8? 2. Can a state regulate commerce among the states when Congress is regulating? (state law conflicts with federal law) 3. This case does not decide the issue of whether states are prevented from acting in the area of interstate commerce even in the absence of federal law. 4. Textual Arguments i. Article I/8 gives Congress the power to regulate commerce among the several states a. Marshalls interpretation -read words in their natural sense -looks to purpose of the power given to resolve ambiguities in language b. commerce is commonly understood to include navigation c. among means between the states -does not extend power to purely internal commerce that does not affect other states -federal power is not a geographical subject and may extend into a States interior d. the sole restraint on the exercise of power is the influence of constituents on elected officials e. some powers may be exercised concurrently by state and federal govs (taxation) f. state and federal governments can act on the same objects, but one cannot exercise the power of the other ii. I/10 powers denied to the states a. States may not lay down any imposts or duties on imports or exports; except that may be absolutely necessary for executing inspection laws b. Marshall must determine whether the act of laying duties is a branch of the states taxing power or of the power to regulate commerce -Structural argument Congresss power to lay duties and imposts is grouped with its power to tax and its power to regulate commerce in a separate clause -Constitution considers the power to lay duties separate from the power to regulate commerce and places the powers in separate enumerations -Inspection laws are related to commerce, but their purpose is regulation of health & safety not commerce c. the states ability to lay duties or imposts on imports or exports is a branch of the taxing power not of the power to regulate commerce
D/C/C (1) Basic purpose & motivation for the Commerce Clause was to avoid protectionist trade wars between the states i.e., state burdens on commerce Cf. the purpose of the European Union or NAFTAto create one big market More on purpose stuff in a bit (2) I/10/2 export-import clause shows hostility to states taxing commerce, so maybe we should infer prohibition on states interfering more directly This argument wouldnt really work if, as per current doctrine, I/10/2 only covers imports & exports out of the country: Woodruff (1869)

This is essentially what Justice Johnson doessays I/10/2 is obviously hostile to state protectionism, so we should infer that other interference with interstate trade is also banned -the power to tax v. the power to destroy wouldnt the Constitution ban both? -which is more applicable: DCC or I/10/2? Arguments Against DCC: (1) exclusive power to regulate vs. power to regulate theres a big difference! (2) I/10/2 seems to imagine states regulating commercetaxes if Congress consents, and inspections even if they dont Marshall says at 173 inspections & taxes on imports & exports arent regulations of commerce, but they certainly seem to be Theyre statutes governing the methods by which interstate commerce can be conducted, arent they? (3) What about I/9/1, protecting the slave trade against Congress for 20 years? Pre 1808, states are allowed to prohibit the slave trade, only plausible ground for Congressional interference is the Commerce Clause POST 1808 -Marshall calls this a rare exception (4) Why not leave it Congress, or believe the Founders left it to Congress? -Can still accomplish the same task states arent stepping on Congressional toes if Congress is free to make regulations (5) Certain simple examples make the exclusivity claim implausiblee.g., speed limits on transportation that apply to people going from state to state, or drivers-license requirements, or limits on loading of steamboats -SC allows police regulations, but they are hard to distinguish -Founders purposes are useful as an interpretive guide to the Constitution -There are many things the Constitution cannot do on its own, which forces Congress to create means to accomplish goals that are not explicit in the Constitution

V. Fugitive Slaves Prigg v. Pennsylvania (1842)

Facts: Pennsylvania (P) prohibited self-help retrieval of fugitive slaves. A federal law, however, permitted a slave owner to seize a fugitive and present him to federal or state court. That court, applying the slave-owners home state law, would determine whether the fugitive owed labor to the owner. If so, the owner would receive a certificate. Prigg (), a Maryland slave-owners agent, seized a fugitive but was refused a certificate from a state magistrate. took the slave to Maryland anyways and was then convicted for violating Ps law. appeals. Issue: May a state prohibit recovery of slaves in a manner expressly permitted by federal law? Holding: No. Judgment reversed. -Article IV, 2 provides in part that a slave may not be discharged merely by fleeing to a nonslaveholding state. This was intended to secure the property rights of citizens of slaveholding states and was essential to formation of the Union. -The Constitution cannot be construed so as to defeat its purpose. No state can qualify, regulate, control, or restrain in any way the slaveholders rights to seize and recapture his slave in any state of the Union. -The Constitution also specifies that the slave shall be delivered up, on Claim of the Party to whom such Service or Labor may be due. The federal government is bound to effectuate this duty, as it has in this federal law. Although Congress has no express grant of power to provide a procedure for recovery of slaves, the procedure is a necessary and proper means of attaining the required end. A. ISSUE: Is the Fugitive Slave Act constitutional (did Congress have the power to pass the Act? 1. Textual Arguments i. Article IV 2 Fugitive Slave Clause

a. No person held to service or labor in one Stateescaping into another, shall be discharged from service or labor, but shall be delivered up to the party to which service is due i. Story argues that this clause implicitly gives Congress the power to pass legislation related to fugitive slaves; however, you could argue that this clause is not found in Article I which addresses legislative power, but is found in Article IV which deals with interstate relations ii. Article I 8 Necessary and Proper Clause a. Congress may exercise those powers which are necessary and proper as means to carry out rights expressly given iii. Concurrent Exercise of Power a. Is there concurrent power in the states to act upon the subject of slavery in the absence of federal legislation? i. Story says no, slave states would never have agreed to give nonslave holding states the power of regulation over slavery ii. Does this hold true in regard to all of Congresss enumerated powers? (is there concurrent power in the state to act upon a subject in the absence of federal legislation) Story says no
Storys Rationale states not involved, because if they were involved a little, they would have the right to do it their own way, but thats contrary to the spirit of the clause Cant be just slave owners, because that doesnt allow the person captured to say hes being kidnapped Cant be just feds, because not enough federal officials to do the job Problems with Self-help? But not if breach of peace or illegal violence (p. 220)isnt that exactly what Pennsylvania was worried about? No real remedy if there is illegal violence (e.g., a kidnapping of a free black person) What does claim mean in IV/2/3? Seems to suggest legal proceedings, not self-help, but hard to saymaybe claiming includes recapturing too Does self-help pose 5A DP problem? (Q1, p. 225)? I dont think so, because a kidnapping would just be private violencemurders dont violate the 5A, for instance, and Im not required to give an intruder a due-process hearing before using selfdefense States Cannot Interfere with Return of Fugitive Slaves Classic all-or-nothing reasoning: If states were involved, they could set whatever rules they wanted, and that wouldnt make sense, so they must not be involved at all (p. 220) Seems very questionable to mestates could set up procedures, and the Supreme Court could step in if states werent delivering up actual escaped slaves in good faith Might not be super efficient, but that might be the system we have Not obvious this fits with IV/2/3 language on shall be delivered Passive-voice problem, as with lots of the Bill of Rights (B/R), I/9 v. I/10 I/9/3 says no ex post facto or bill of attainder law shall be passed, but doesnt say by whom I/10/1 says no State shall pass bill of attainder or ex post facto law, though, so presumably normal passive voice refers to Congress B/R say lots of things cant be done, but dont say by whom But Federal Help is Allowed? How does this make sense? Green says it doesnt Is this authorized by I/8/18?

Not a foregoing power, and not a power given to an official, so seems not Giving federal judges power might be OK, though, since they have judicial power over federal questions, but this ground wouldnt authorize federal officials to go recapture slaves Story reasons that weve got to have federal help, or the system wouldnt work Can turn this argument around, though, and say that this is a reason to think that states are to be involved, because theres no provision for federal officials, and if states arent involved, no one will be checking on possible kidnappings of free blacks So, at the end of the day, Im inclined to think Story is probably wrong on all three holdings: states are allowed to insist that all recaptures happen through official state channels, and theres no good warrant for federal officials being involved

VI. Dred Scott v. Sandford (1857)

Facts: Dred Scott (P), a slave owned by a Missourian, had resided with his owner in the northern Missouri territory and in Illinois, which was a free state, before returning to Missouri. When the owner died, P brought suit against the administrator, Sandford (), claiming his residence in Illinois had liberated him. contested diversity jurisdiction on the ground that P was not a citizen. The lower court held Ps status as a slave reattached when he returned to Missouri. P appeals. Issue: Does a slave or a descendent of a slave have status as a citizen to bring suit in federal court? Holding: No. Judgment affirmed. -The Negro race had been considered an inferior race by the Europeans for a hundred years before the Constitution was adopted. They were bought and sold and treated as ordinary articles of commerce. The correctness of this opinion was not doubted. -The colonies accepted the English view that blacks were slaves. The words of the Declaration of Independence, that all men are created equal, do not apply to the black race; nor do the terms people and citizens as used in the Constitution. Other provisions in the Constitution specifically uphold the institution of slavery. -The northern states began to disuse slaves because of climate and because slave labor was unsuited to the economy of those states. However, the law of each state in the Union, except Maine, treated blacks as inferior politically. -The power of naturalization, which Congress exclusively possesses, is confined to persons born in foreign countries. It does not extend to raising to the rank of a citizen anyone born in the United States who by law belongs to an inferior or subordinate class. This Court must accept its duty of applying the Constitution without merely reflecting the popular opinions or passion of the day. Dissent: (Curtis) Citizens of the several states are citizens of the United States. Free native-born inhabitants of certain states were citizens, even if descended from African slaves. They are entitled to the privileges and immunities of the several states. Comment: Much of the full opinion dealt with the Missouri Compromise, which the Court held unconstitutional. The Court held that Congress could not legitimately legislate for a territory after its occupants could legislate for themselves. It also held that depriving a citizen of his property ( a slave) merely because he took that property to a particular territory (non slave state) was a denial of due process. The citizenship issue decided in Dred Scott was later resolved by the Fourteenth Amendment, which granted citizenship to all natural-born Americans. A. ISSUES: 1. Can descendents of slaves, who are not slaves themselves, be considered citizens under the Constitution and sue as a citizen in federal court?

2. Is the Missouri Compromise constitutional? B. Analysis 1. Textual i. Preamble a. people of the US is synonymous with citizen b. framers used words as they were commonly understood and people would not be understood to include slaves ii. Enumerated Powers a. Naturalization Clause -States have the power to establish citizenry, but any rights of citizenship would be restricted to the state -Constitution permits Congress to establish uniform rules of naturalization -States are not permitted to naturalize an alien as a citizen of the U.S. iii. Other Clauses a. Fugitive Slave Clause -weak argument because the act deals with slaves not descendents of slaves b. Limits on Congress (I/9) -The migration or importation of such persons as any of the states now existing shall think proper to admit, shall not be prohibited by Congress until 1808 -Taney interprets this as giving states the right to hold slaves c. Taney believes these clauses point to slaves as a separate class iv. Early Federal Legislation a. Naturalization law confined right of becoming a citizen to aliens being free able-bodied male citizen must be enrolled in the militia b. Militia Law every free must be enrolled in the militia c. Employment on private vessels act limited employment to US citizens, persons of color, and US natives (Taney uses separate classification of persons of color in the statute to support his argument) v. Constitutional Amendment a. Vehicle to change unjust provisions 2. History i. Used to determine framers intent with regard to the status of slaves ii. Colonial Legislative History a. State statutes punishing inter-racial marriage iii. Articles of Confederation a. Entitles free inhabitants of the states to privileges 3. Precedent i. Crandall v. State CT case that held that while slaves were citizens of CT they were not citizens of the Constitution 4. Missouri Compromise i. Territory Clause (Art. IV 3) confers on Congress the power to dispose of and make all needful rules and regulations respecting territory belonging to the US

a. Taney argues that the clause was not applicable to the case because territory referred only to territory settled by treaty with GB not acquired later from foreign governments ii. Due Process Clause (5th A) a. Taney argues that the MO Compromise deprived slave owners of their property and that the Constitution protects slavery as a fundamental form of property C. Holding #2 -Congress has no authority under the Constitution to prohibit slavery in the federal territories, therefore the MO Compromise is unconstitutional D. Dissent 1. native-born descendants of slaves were citizens of many states at time Constitution was written 2. If a person is a citizen for state purposes they should also be a citizen under the Constitution 3. Naturalization laws deal with aliens and do not apply to descendents of slaves born in the US F. Why is Dred Scott a bad opinion? 1. Bad result descendants of slaves not considered citizens under the Constitution 2. Constitutionalized the institution of slavery by classifying lsaves as property protected under Due Process Clause 3. Taney let his own feelings/preferences regarding slavery cloud his interpretation of the Constitution
Three Big Dred Scott Holdings: (1) Free blacks not citizens, so cant sue in federal court (2) Travel to free states do not free the slave if the slave goes back (3) Congress cant ban slavery in territories, both on dont have the power and 5A SDP grounds Other Dred Scott Issues: Recognizes that anti-miscegenation laws are degradingunderstands the social meaning of separation (p. 234) Taney reasons (1) states (properly) ban interracial marriage; (2) bans on interracial marriage impose a stigma inconsistent with equal citizenship, so (3) states arent required to recognize the equal citizenship of free blacks. We might reason this way now: ~(3) states are constitutionally obligated to recognize the equal citizenship of freedmen; (2) bans on interracial marriage impose a stigma inconsistent with equal citizenship, so ~(1) states are not constitutionally allowed to ban interracial marriage. ***The holding about whether travel to free states results in freedom is very important, but essentially settled by Strader MC Holding Congress Cant Ban Slavery in Territories: The holding on the constitutionality of the Missouri Compromise was super-important politically, and pretty questionable, as I see it On the federal power Q, seems really implausible that Congress cant do things in territories that the people of the territory could do as soon as they became a state On the SDP Q, Curtiss dissent gives a bunch of really compelling counterexamples of states that limit slavery territorially (p. 251) Saying a legislature cant limit slavery territorially is pretty different from saying a legislature cant confiscate property, or reassign it arbitrarily (the vested-rights doctrine) Commentary on IV/2/1 P&I Clause:

The stuff on the IV/2/1 Privileges & Immunities Clause is very important historically in terms of what the privileges of citizenship were: he lists 1A, 2A rights as among them Taney treats IV/2/1 as if all citizens have to have the same rights, but thats not the generallyunderstood meaning of the clause: IV/2/1 only prohibits discrimination against citizens of other states on the basis of the fact that theyre from other states Taney says if free blacks were citizens of the United States, wed have to let them have guns, for instance, but this isnt really rightthe clause only requires states to give outsiders as many rights as they give insiders, and allows, e.g., racial discrimination against both in-state & out-of-state people Executive Constitutional Interpretation & Right to Disagree with USSC -Lincoln essentially reruns Jacksons arguments -ironically both Lincoln and Jackson denied states the right to disagree with the feds Constitutional Meaning Yet the men who framed this declaration were great men-high in literary acquirementshigh in their sense of honor, and incapable of asserting principles inconsistent with those on which they were acting. (p. 235) We have to distinguish three things: (1) The meaning of the Founders words (2) The Founders beliefs about the application of their words (3) The Founders practices Taney goes straight from (3) to (1) in his reasoning about the D/I, and his reasoning about Article III rightto-sue stuff follows the same line of thought The material in Curtiss dissent makes a very compelling case that the Founders were inconsistent in lots of ways, but lots of states at the Founding clearly allowed black citizenship Theres a gap between (2) and (3), because its possible to do something we know is unconstitutional, or wrong For instance, DC voting in the House: some people say, Yeah, its probably unconstitutional, but on the chance that courts will uphold it, lets pass it anyway -gaps between expected application and meaning; you can be wrong about the application, but not wrong about the meaning of the words

VII. The Fourteenth Amendment

1. All persons born or naturalized in the US, and subject to the jurisdiction thereof, are citizens of the US and of the State wherein they reside. 2. No State shall make or enforce any law, which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property without due process of law; not deny to any person within its jurisdiction the equal protection of the laws 3. Provided national protection against unconstitutional actions of the States 4. Gave federal government new and broad power to oversee the states in the name of individual rights 5. Privileges & Immunities a. Narrowly construed by the court b. What are the privileges and immunities of US citizens? i. Not very clear based on Slaughterhouse Cases ii. Some claim they encompass the Bill of Rights and other equate them to natural rights iii. Most judicial interpretation deals with Due Process and Equal Protection 6. Citizenship a. 14th Amendment Created 2 Categories:

i. State citizenship ii. US citizenship b. Categories act as statuses which invests you with certain privileges and immunities c. 14th A prevents states from taking away the attributes of US citizenship status 7. Representation a. 14th A penalizes representation in Congress for states who deny the right to vote b. some interpreted 2 as an implicit acceptance of states rights to exclude blacks from voting so long as it was willing to accept the penalty c. others argued that it served as a specific penalty to be imposed on a state if it violated its Constitutional duty to fairly enfranchise its citizens A. Limitations on the 14th A 1. Did the amendment protect against discrimination of blacks or did it guarantee a set of substantive rights to the general population?
14A Legitimacy Bruce Ackerman: non-Article V amendment, related to Johnsons capitulation in order to prevent conviction at impeachment trial He wants to use Reconstruction as a precedent for unconventional constitutional change during the New Deal To make 14A fit Article V: Essential element #1: OK under Article I to exclude South from Congress, so Congress could propose it legitimately, because either Congress has absolute power to exclude members (Harrison), or The Southern governments werent republican in form (Amar), or The rebellion forfeited the Souths Article I right to representation (Amar backup theory, and the theory I like) Essential element #2: ratifications OK, because either Even coerced ratifications are legitimate (Harrison), or OK to coerce Southern states to ratify with threat of non-representation, because they werent republican in form (Amar), or Southern states lost their Article V denominator power with respect to ratifications (Amar backup theory, and the theory I like)

VIII. The Slaughterhouse Cases (1873)

Facts: The state of Louisiana granted a state corporation the exclusive right to operate facilities in New Orleans for the landing, keeping, and slaughter of livestock. The Butchers Benevolent Association (P), a group of excluded butchers, sought an injunction against the monopoly on the grounds that they were prevented from practicing their trade unless they worked at the monopolist corporation and paid its fees. The state courts upheld the law. Ps appeal, based on four main grounds: (1) that the statute creates an involuntary servitude forbidden by the 13th A; (2) that it abridges the privileges and immunities of citizens of the US; (3) that it denies P equal protection of the laws; (4) that it deprives them of their property without due process of law, under the 14th A. Issue: Do the Civil War Amendments grant US citizens broad protection against the actions of state governments? Holding: No. Judgment affirmed. -The proper interpretation of the Civil War Amendments must reflect their historical setting. Thus, the meaning of involuntary servitude as used in the 13th A is restricted to personal servitude, not a servitude attached to property as Ps claim.

-The 14th A clearly distinguishes between citizenship of the states and citizenship of the US. Only those privileges and immunities of the US are protected by the 14th A; privileges and immunities of state citizens upon which Ps rely here are unaffected, and rest for their security and protection in the power of the several states as recognized in Article IV. The Constitution does not control the power of the state governments over the rights of their own citizens except to require that a state grant equal rights to its own citizens and citizens of other states within its jurisdiction. Therefore, Ps have no privilege or immunity as citizens of the US that has been infringed by the state law. -The EPC of the 14th A is intended primarily to prevent state discrimination against blacks, although Congress may extend its scope to other areas. But Ps have not claimed a denial of equal justice in the state courts and therefore have no reason to have a remedy under the Equal Protection Clause. -The restraint imposed by Louisiana upon the exercise of Ps trade simply cannot be held to be a deprivation of property within the meaning of the 14th A. That clause should not be construed to cover such state restraint upon trade. Dissent (Field, Chase, Swayne, Bradley): These amendments were intended to protect the citizens of the United States against the deprivation of their common rights by state legislation. The majority holding as to the Privileges and Immunities Clause would add no more protection than existed prior to adoption of the amendments, making it meaningless. A distinguishing privilege of citizens of the United States is equality of 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. Dissent (Bradley): A state infringes personal liberty when it grants a monopoly to individuals or corporations. A law that prohibits a large class of citizens from pursuing a lawful employment deprives them of liberty as well as property without due process of law. Their occupation is their property, their choice, their liberty. The law also deprives them of equal protection. Comment: This case, the first requiring interpretation of these amendments, rendered the Privileges and Immunities Clause ineffective in protecting individual rights against invasion by state governments. Instead, the Court looked to the Due Process Clause and Equal Protection Clause. Ps, in this case, were not attacking the procedure used, but the actual fairness of the state-approved monopoly. Although the Court rejected the notion of substantive due process in this case, the scope of the clause was unclear for many years. Gradually the Court began to examine the substantive reasonableness of state legislation. A. Analysis 1. Police Power private interests must sometimes be subservient to general public interests 2. McCulloch held that wherever a legislature has the right to accomplish a certain result, and that result is best accomplished by incorporation, the legislature has the right of incorporation 3. 13th and 14th Amendments i. P argues that the legislation violates the Constitution a. creates involuntary servitude (13) b. abridges privileges and immunities (14) c. denies equal protection under the law (14) d. deprives them of property without due process (14th) ii. Courts interpretation

a. pervading spirit of the amendments was freedom of slaves b. 14th A -protects privileges and immunities of citizens of the US but does not speak to citizens of the States -not meant to protect citizen of a state from state legislature c. Article IV citizens of each state are entitled to privileges and immunities of citizens in the several states -prevents discrimination by the states against citizens of another state -What are the privileges and immunities of citizens of the several states? Seems to deal with movement of citizens amongst the states B. 14th Amendment v. Article IV 1. Article IV 2 clause did not require a state to grant any particular right to any person, but only prevented a state from conferring certain benefits on its own citizens while denying them to citizens of other states 2. 14th A protected rights of citizens against infringement even by their own state Early Application of the 14th A to Race Discrimination A. This line of cases deals with the interpretation of the 14th A 1. P&I substantive applies to US Citizens 2. EP procedural applies to persons within jurisdiction (broader category than US citizens) 3. DP procedural applies to persons (creates the condition for taking away your life. Liberty, or property)
6 Possible Meanings of of in No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.: (1) possessed in virtue of the existence of the Union by (Justice Miller & Slaughterhouse majority) (2) traditionally possessed (e.g., under the common law) by (Senator John Sherman in 1872, Senator Jacob Howard, Justice Bradley, Representative John Bingham in January 1871Corfield) (3) possessed under the Constitution against the federal government by (Senator Allen Thurman in 1872, Justice Black, Bradley, Howard, Bingham in March 1871, Akhil Amar) (incorporation by definition) (4) generally possessed under the common law in 1868 by (Steve Calabresi, Earl Maltz) (5) possessed as a moral matter by (Ronald Dworkins moral reading) (6) generally possessed locally by (i.e., antidiscrimination/equal-citizenship provision) (Justice Field, John Harrison, Michael McConnell) (1) is Slaughterhouse, (2) to (5) are various fundamental-rights readings; (6) is the antidiscrimination reading Can combine them, so clause protects more than one of themdisjunctive readings (1) makes P/I superfluous, as Field points out without effective response from the majority To the extent that things in the B/R are traditional common-law privileges, we can get a lot of (3) if we adopt (2) (3) is incorporation by definition, but (2) could allow for incorporation in virtue of tradition, if things in the B/R are traditional common-law rights Disjunctive (either-or) theories are somewhat implausible, especially if the two meanings are particularly different Howard, Bradley, and Bingham seem, at first blush, to adopt (2)-or-(3) as theory of the clause, but that seems very awkward Using the incorporation-in-virtue-of-tradition view can better reconcile the incorporation bits with the Corfield bits, I think I like the (2)-or-(6) reading, and thats a little bit disjunctive, but its a little less awkward I think:

 Traditional privileges = generally possessed in America over time Local privileges = generally possessed in locality in space -and abridge could mean shorten, relative to what they are now -would expanded privileges include voting? Slaughterhouse Specifcally Court adopts really implausible view of P/I, which makes it superfluousa right that is possessed in virtue of the existence of the Union was already protected against state interference by the Supremacy Clause of Article VI Theres some interpretive question whether Slaughterhouse actually allows for incorporation of the B/R, based on the reference to rights under the Constitutionbecause the Court repudiated that in Cruikshank (1876), I think its an exceptionally implausible view of Slaughterhouse The alternative views, though, seem awfully open-endedwhat counts as a fundamental right? what counts as second-class citizenship?so we should be somewhat sympathetic to the Courts effort to find a reading that is more restrained and manageable Field: exemption from all disparaging and partial enactments, in the lawful pursuits of life (p. 327) Essentially the issue that the Court will deal with in its equal-protection cases, but seems awfully squishy and hard to clarify Bradley: the fundamental rights of the citizen (p. 329) Essentially what the Court will assess in its SDP cases, but also seems very squishy; analysis of common law & protection-of-tradition rule would help tighten things up a bit

IX. Strauder v. West Virginia (1880)

Facts: West Virginia (P) permitted only white male persons at least 21 years old to serve on juries. Strauder (), a black, was charged with murder. s attempt to remove the case to federal court was disallowed, as was his challenge to the jury panel. was tried and convicted. The state court upheld the conviction, and appeals. Issue: May a state prohibit all blacks from serving jury duty? Holding: No. Judgment reversed. -The 14th A was adopted to ensure that blacks have the same civil rights enjoyed by whites, and to make sure that habitual discrimination against them were not perpetuated by state law even after the Civil War. Thus, it is to be considered liberally to carry out this purpose. -Ps law excluding blacks from juries is clearly discriminatory, just as it would be if whites as a class were so excluded. The composition of a jury is an essential part of the protection of a right to trial by jury. was denied equal protection by Ps exclusion of blacks. -Although P may not prohibit blacks as a class from serving as jurors, it may prescribe other relevant, non racial qualifications for jurors. A. Analysis 1. 14th Amendment i. purpose was to protect against States infringement upon civil rights ii. jury is supposed to be comprised of your peers iii. compelling a person to submit to a trial by a jury from which his race is excluded is a denial of equal protection iv. amendment does not prohibit a state from confining jury duty to people of certain qualifications (age, citizenship, gender) v. equal protection clause seems to imply equal administration of the law a. the court does not read the clause this way and struggles with how to apply EP to a who is making a protection argument vs. an excluded juror b. Court struggles with determining whether jury service is a civil right protected by EP clause or a political right

B. Holding 1. Presumes race bias in a jury from which s race is expressly excluded (civil right) 2. Case did not decide whether citizens may be excluded from juries based on race (political right) C. Dissent 1. 14th Amendment only protects civil rights not political rights 2. Political Rights should be determined by the states
-14th A bars assertions of inferiority; a statute expressly denying all rights to participate in the administration of the law, such as sitting on a jury, because of their color, though they are citizens, is practically a brand on them, affixed by law, an assertion of their inferiority -A stretch to say voting rights includes right to sit on a jury -distinction between civil rights and political rights had blurred considerably between 1866 and 1870, so possible for jury rights to be both civil & political

Establishment of Separate but Equal Doctrine

X. Plessy v. Ferguson (1896)

Facts: Plessy (P), who was seven-eighths white and one-eighth black, refused to comply with a demand that he sit in the black railway carriage rather than the one for whites. P was convicted of violation of a state statute providing for separate railway carriages for the white and black races. P challenged the law but lost. P appeals. Issue: May a state require that separate railway carriages be provided for black citizens and white citizens? Holding: Yes. Judgment affirmed. -The law does not imply the inferiority of either race. The only proper restraint on the exercise of state police power is that it be reasonable and intended for the promotion of the general good. The state legislature may properly have concluded that the law would preserve the public peace and good order. -It certainly is no more obnoxious to the 14th A than laws requiring separate schools, which are universally accepted. Legislation cannot overcome social prejudices; the attempt to do so can only result in accentuating difficulties. The Constitution can act to equate civil and political rights of the two races, but cannot affect social standing. Dissent (Harlan): No legislature or court may properly regard the race of citizens where civil rights are involved. Every citizen, regardless of race or color, has a right to occupy the public transportation of his choice; governmental infringement of that right is unconstitutional. Our constitution is color-blind and neither knows nor tolerates classes among citizens. Any evils resulting from commingling of the races are less than those resulting from curtailment of civil rights upon the basis of race. A. Analysis 1. 13th A a. a statute that implies a distinction between two races does not amount to involuntary servitude 2. 14th A a. state law requiring separation of races in an exercise of state police power b. all exercises of police power must be reasonable c. to determine reasonableness the court looks to established customs d. equal protection clause was designed to ensure civil not social equality

e. social prejudices will not be overcome by legislation and must come from individuals
-Badge of inferiority? -Seems to agree with Strauder that a legally-imposed stigma (i.e., assertion of inferiority) would be unconstitutional, but denies that segregation imposes one -Acquiescence in the stigma isnt essential to the injuryif I have been tattooed Defective, Ive been labeled as inferior, even if I dont agree with the label Agrees with Strauder that if discrimination implies inferiority, its unconstitutionaljust egregiously wrong about whether enforced separation implies inferiority A crazy argument: The argument also assumes that social prejudices may be overcome by legislation, and that equal rights cannot be secured to the negro except by an enforced commingling of the two races (551) Absurd as an argument defending compulsory segregationPlessys only asking that social prejudices not be embodied in legislation Three-way distinction: mandatory integration freedom of association mandatory segregation Plessy attacks (1), but the plaintiff is only attacking (3) -What about the EPC? Obviously Harlan addresses equal citizenship in dissent, but not EPC. Reference to the recent amendments of the constitution, by one of which the blacks of this country were made citizens of the United States and of the states in which they respectively reside, and whose privileges and immunities, as citizens, the states are forbidden to abridge. (p. 364) We boast of the freedom enjoyed by our people above all other peoples. But it is difficult to reconcile that boast with a state of the law which, practically, puts the brand of servitude and degradation upon a large class of our fellow citizensour equals before the law. (p. 365) These dont really fit with EPC rationale; would work much better with P/I

XI. The Civil Rights Cases (1883)

Facts: The Civil Rights Act of 1875 made it unlawful for anyone to deny a person the enjoyment of accommodations at inns, on public transportation, etc., on the basis of race. Certain blacks were excluded from inns, theaters, and a railroad in five separate states. The cases were consolidated before the Supreme Court. Issue: May Congress prohibit private discriminatory actions by facilities generally open to the public? Holding: No. The Civil Rights Act is unconstitutional. -The 14th A permits Congress only to take corrective action against state laws or acts done under state authority. The Civil Rights Act is directed toward acts by individuals and cannot be upheld under the 14th A. -The 13th A permits direct as opposed to merely corrective legislation, but it covers only slavery or involuntary servitude, or the lingering badges of such. Refusing accommodation to a black does not impose any badge of slavery or servitude. Mere racial discrimination is not a badge of slavery. -Congress had no power to pass the Civil Rights Act, and Ps must seek a remedy in state law for any cause of action against private individuals or corporations that are discriminating. Dissent (Harlan): The Court has ignored the substance and spirit of these amendments. Freedom includes immunity from and protection against racial discrimination, especially in the use of public, albeit privately owned, accommodations and facilities licensed by the state. Comment: The common law of all states at the time of the Civil Rights Act of 1875 held that it was unlawful to deny the facilities of inns and carriers to any person. Therefore, Ps did have a

remedy in state law. However, this case illustrates the approach to state action that permitted individuals to discriminate freely if they wanted to. A. Analysis 1. 14th A a. nullifies any state legislation that impairs the privileges and immunities of US citizens b. invests Congress with the power to enforce the amendment via legislation c. state action Congress may only act after a State law has been passed that is adverse to rights of citizens d. Private Action 14th A does not empower Congress to forbid discrimination by private persons e. Congress is authorized to adopt corrective legislation, not general legislation 2. Civil Rights Bill of 1866 a. Distinguished from 1875 act in that it was corrective in character (designed to counteract state law and customs that had the force of law) 3. 13th A a. does give Congress the power to pass primary legislation to enforce the A b. not a prohibition of state laws establishing/upholding slavery but a declaration that slavery does not exist in the US c. gave Congress the power over fundamental rights (make Ks, purchase/convey real property, sue, etc.) d. did not give Congress power over social rights B. The Protection of Economic Rights Under the Due Process Clause 1. In Slaughterhouse, the SC initially resisted using the 14th A to strike down economic legislation a. Rapid industrialization resulted in a rise in economic regulation b. During the period there was a gradual weakening of the courts rejection of substantive due process c. Court began to apply DPC to economic regulations d. person in the Due Process Clause was held to encompass artificial persons (corporations) 2. Substantive Due Process a. even if an unreasonable law is passed and signed into law legally (procedural due process); substantive due process can make the law unconstitutional i. procedural due process notice and opportunity to be heard ii. substantive due process reasonableness b. The Constitution contains no description of what processes were intended to be allowed or forbidden i. Intended to mean law of the land ii. How do we know whether a process enacted by Congress is due process -Look to the Constitution to see whether process is in conflict with any of its provisions (Congress passed ex post facto law) -Common law and state statute
So what is the problem? The law applies even if states behave entirely properly: the statute does not profess to be corrective of any constitutional wrong committed by the States; it does not make its operation to depend on any such wrong committed. It applies equally to cases arising in States who have the

justest laws respecting the personal rights of citizens, and whose authorities are ever ready to enforce such laws, as to those which arise in States that may have violated the prohibition of the amendment. (p. 375) Congress isnt allowed to say, as a matter of factfinding, looks to us like states arent enforcing equal common-carrier rights, so come on in to federal court Note, no claim from the individual people involved that States were actually enforcing common-carrier rights; they only complain that even if States were, the law wouldnt account for it If Congress had merely included a requirement that plaintiffs show that states were not enforcing common-carrier rights, that requirement would presumably be easily met Harlan complains that being so strict in construing federal civil-rights-protecting power doesnt fit well with generous approach to federal slavery-protecting power in Prigg Hes got a point, I think Note that Harlans dissent relies on the citizenship declaration, not the EPChe thinks states are obliged to provide the privileges of citizenship to everyone, without racial discrimination But what was secured to colored citizens of the United Statesas between them and their respective statesby the grant to them of state citizenship? With what rights, privileges, or immunities did this grant from the nation invest them? There is one, if there be no others exemption from race discrimination in respect of any civil right belonging to citizens of the white race in the same state. (p. 382) Citizenship in this country necessarily imports at least equality of civil rights among citizens of every race in the same State. (p. 382)

XII. Lochner v. New York (1905)

Facts: Lochner () was convicted of permitting an employee to work for him more than the statutory maximum of 60 hours per week. appeals, claiming the law violated his freedom to contract under the Fourteenth Amendment Due Process Clause. Issue: May a state generally prohibit private agreements to work more than a specified number of hours? Holding: No. Judgment reversed. -The general right to contract in business is clearly part of the individual liberty protected by the Fourteenth Amendment. However, the right to hold both property and liberty are subject to such reasonable conditions as may be imposed by a government pursuant to its police powers. -An earlier law restricting the work hours in certain dangerous occupations was upheld. The aw here challenged, however, has no reference whatever to the health, safety, morals, or welfare of the public. The state claims an interest in the individual workers health, but this goes too far; the individuals liberty must impose some restraint on the police power. -This is not a substitution of the Courts judgment for the legislatures but merely a determination of whether the attempted regulation is within the states police power. Dissent (Harlan, White, Day): There is room for debate about the validity of the states interstate interest in preventing more than 10 hours work per day. Excessive work could impair the ability of the workers to serve the state and provide for their dependents. The Court should not go beyond determining that such reasons for the law exist. Dissent (Holmes): Many comparably restrictive uses of the police power have been upheld by the Court. The Constitution was not intended to embody a particular economic view, but was framed to permit expression of dominant opinions; that the laws freely reflect the peoples choices. The law is not clearly unrelated to public health and ought to be upheld. Comment: In Lochner, the Court applied principles of general constitutional law that formerly had been applied only in diversity cases. The Court began to define the limits of the police power

where it excessively imposed upon individual freedoms, the scope of which the Court in turn was broadening. The Court began inquiring as to the propriety and reasonableness of the objectives sought through exercise of the police power. A. Analysis 1. 14th Amendment a. statute interferes with the right to contract which is a liberty protected by the A b. A is not intended to interfere with state police power (powers related to health, safety, general welfare) c. state, through its police power, has the authority to prevent the individual from making certain contracts in the name of general welfare and the federal gov cannot interfere d. When reviewing a state exercise of police power, the court asks: i. Is it a fair, reasonable, and appropriate exercise of police power OR ii. Is it an unreasonable, unnecessary, and arbitrary interference with individual rights? e. NY Statute limiting the number of hours bakers can work is not a necessary and appropriate health law; therefore, it is an unreasonable exercise of police power that violates the 14th A f. Statutes regulating inspections of bakery premises, however, would be a necessary and appropriate health law and a reasonable exercise of police power B. Lochner and Substantive Due Process 1. Procedural Due Process permits Congress to enact laws that deny life (death penalty), liberty (criminal laws) and property; however, citizen must first receive due process of law 2. Lochner holding moved away from the traditional procedural meaning of Due Process and instead applied a reasonableness standard 3. Cases following Lochner appear to apply the reasonableness standard arbitrarily (laws restricting work hours of female factory workers and RR employees are upheld) C. Lochner Analysis 1. What law? NY State law 2. What does the law do? Limits working hours of bakers. 3. Why is the law unconstitutional? Violates the liberty to K. 4. What clause in the constitution supports holding? Due Process of the 14th A. 5. The court in Lochner believed that bakers had a right to freely contract under the DPC. The limit of that right is reasonableness. D. Meaning of Liberty, Property, and Process 1. Terms are read broadly in furthering substantive due process cases 2. Liberty a. Lochner held that liberty included the general right to make a K b. Traditionally meant right to be free from physical restraint (incarceration) c. Also, embraces freedom to enjoy faculties (live and work where you want) 3. Property a. Courts have held property to include private property and used the construction to further substantive due process cases
-Arguments: Infringes DP rights of liberty; no rational basis for statute b/c health rationale is not legit: Health rationale is bogus, they say: Statutes limiting the hours in which grown and intelligent men may labor to earn their living are not saved from condemnation by the claim that they are passed in the exercise of the police

power and upon the subject of the health of the individual whose rights are interfered with, unless there be some fair ground, reasonable in and of itself, to say that there is material danger to the public health, or to the health of the employees, if the hours of labor are not curtailed. (p. 419) [F]rom the character of the law and the subject upon which it legislates, it is apparent that the public health or welfare bears but the most remote relation to the law. (p. 420) Harlan-White-Day dissent thinks its same as Holden (1898), which allows maximum hours for miners Can we distinguish miners from bakers? Holmes dissent would chuck the whole idea of economic SDP Suggests tradition is the key: regulation OK unless it can be said that a rational and fair man necessarily would admit that the statute proposed would infringe fundamental principles as they have been understood by the traditions of our people and our law. (p. 422) -Also proof based on economic supply/demand charts that the regulation becomes uneconomical with the regulations regulations cause supply to decrease (less time), and price to increase, resulting in a deadweight societal loss also results in unemployment/under employment -minimum wage could have the same effect as the maximum hours looks the same on supply/demand curve Can we distinguish maximum-hours legislation from other labor regulations? Minimum wages? Safety? Child labor? Pretty hard to make these distinctions about when paternalisms OK & when its not Lochner: The Good and The Bad Under-appreciated good things: Doesnt come out of nowheretheres a lot of precedent supporting freedom of contract Not so outrageous as an interpretation of P/Ibasic privilege to work as hard as you like does have a pretty long pedigree, and its pretty intuitivestate cant just walk in and say, we know your interests better than you know them yourself legislation was probably aimed at eliminating competition with lower-cost immigrant labor Bad things: Seems like moral reasoning is doing too much of the worksomething tethered to tradition would make much better rule of law and be less subject to manipulation by particular judges (probably fits actual meaning of P/I better too, I imagine) Not really something judges do particularly well Hard to distinguish OK paternalism from not-OK If DP is really only about procedures, then the clause is wrong never good to base doctrine on the wrong clause

Congressional Regulation of Interstate Commerce

XIII. Champion v. Ames (1903)

Facts: Champion () was arrested for shipping a box of lottery tickets by railroad from Texas to California in violation of the Federal Lottery Act, which prohibited importation, mailing, or causing interstate carriage of lottery tickets. Claiming that the Act was unconstitutional, obtained a writ of habeas corpus. appeals from a dismissal of the writ. Issue: Does Congress have the power under the Commerce Clause to regulate undesirable activity? Holding: Yes. Judgment affirmed. -Lottery Tickets are subjects of commerce. They can be sold and transported. Hence, they can be regulated when trafficked from state to state. The power to regulate includes the power to prohibit. -This statute does not interfere with traffic or commerce carried on exclusively within the limits of a state. A state could prohibit sales of lottery tickets within its boundaries; so may Congress,

for the purpose of guarding the people of the United States against the widespread pestilence of lotteries, and to protect the commerce that concerns all the states, prohibit the carrying of lottery tickets from one state to another. -Congress has the complete power to prohibit such commerce because it is the only governmental power capable of protecting the public from the evils of interstate traffic of lottery tickets. Dissent (Fuller, Brewer, Shiras, Peckham): Congress does not have power to suppress lotteries. Use of the police power has been reserved to the states by the Tenth Amendment. Furthermore, lottery tickets are not objects of commerce. This decision attempts to transform a noncommercial article into a commercial one simply because it is transported. Comment: This is but one of several decisions that treat the commerce power almost as a federal police power. The rationale is simple; since Congress has plenary power over the channels or facilities of interstate commerce, it may prohibit their use for any activity that it deems adverse to the public health and welfare. Congress may prohibit entry into interstate commerce of (i) Goods harmful to interstate commerce itself, such as diseased animals that might spread the disease; (ii) Commercial items that are harmful, such as adulterated or misbranded articles and; (iii) Noncommercial items that constitute an evil activity, such as stolen goods. A. Analysis 1. Commerce Clause a. power to regulate commerce among the states has been expressly delegated to Congress b. Congress has the power to occupy, by legislation, the whole field of interstate commerce; therefore, the act is not a violation of the 10th A B. Dissent 1. Lottery tickets are contracts and the court has previously held that contracts are not commerce Congress may prohibit interstate traffic in lottery tickets Dissent says ticket is just an act of communication, not an article of commerce, despite the fact that its bought and sold: not a completely crazy view, and gets 4 votes If Congress is allowed to ban interstate traffic in slaves based on the commerce power, as I/9/1 seems to presuppose, then Champions clearly right that power to regulate includes power to prohibit

XIV. Hammer v. Dagenhart (1918)

Facts: Dagenhart (P) sought to enjoin Hammer (), the United States Attorney General, from enforcing the Child Labor Act, which prohibited the shipment in interstate commerce of any product that was produced or mined by child labor. P was the father of two children who were to be discharged in compliance with the law by the company where they worked. The district court enjoined enforcement; appeals. Issue: May Congress prohibit the transportation in interstate commerce of goods manufactured by children? Holding: No. Judgment affirmed.

-Congress does not have general police power. Unlike Champion, this case involves goods that are themselves harmless. Congress does not have power to prohibit movement of ordinary commodities. -Manufacturing is a purely local activity, not subject to the congressional commerce power. The constitutional scheme must be respected; only the states may regulate purely local matters. -Even though this result leaves those states without their own child labor laws with an advantage in interstate competition, Congress simply has no power to force states to exercise their police power or to equalize conditions among the states. Dissent (Holmes): The Child Labor Act does not meddle with state rights. When products are sent across state lines, the states are no longer within their rights. If there were no Constitution and no Congress, their power to cross the line would depend on their neighbors. Under the Constitution, control of such commerce belongs to Congress and not to the states. Congress may carry out its views of public policy, whatever the indirect effect on the states. Instead of being encountered by a prohibitive tariff at her boundaries, the state encounters the public policy of the United States, which is for Congress to express. Comment: This case was the first of many that frustrated attempts by Congress to deal with the many social and economic problems created by the industrialization of America. The conflict between the legislatures and executives broad view of congressional commerce power and the Courts narrow view of that power came to a peak during President Franklin Roosevelts first term, when the Court struck down many of the programs of the New Deal. A. Analysis 1. Commerce Clause a. authority to prohibit is an exertion of the power to regulate b. previous cases dealing with Congresss power to regulate commerce dealt with the transportation of harmful/illegal products c. In the case at bar, the goods shipped are not themselves harmful. d. Act is intended to equalize competition by closing channels of interstate commerce companies that use child labor and have lower labor costs e. States have the power to deal with the evils of child labor through exercise of their police power B. Dissent 1. Majority opinion employs a narrow reading of commerce which is inconsistent with Champion 2. Power to regulate commerce includes the power to prohibit certain types of commerce 3. Power to regulate commerce or any enumerated constitutional power should not be qualified by the fact that it might interfere with a States domestic policy a. Federal government is permitted to enforce public policy views provided that their implementation is supported by constitutional power 4. Court should not intrude its judgment on questions of policy or morals C. Law vs. Politics 1. Similar to the Due Process cases, the court has a difficult time divorcing itself from its political views when interpreting the Commerce Clause 2. What is the difference between law and politics in these cases? a. Lochner court applies economic policy (politics) to due process clause (law) b. Hammer court applies public policy view (politics) to commerce clause (law)
Cant prohibit interstate traffic in goods produced with child laborthats an attempt to regulate manufacturing, not commerce

Given the universal pre-13A understanding that Congress couldnt abolish slavery in the states, its very hard to see how Congress is allowed to regulate labor conditions directly under the Comm/Cl E.g., consider the Corwin Amendment, proposed by Congress in 1861 as an attempt to stop the Civil War: No amendment shall be made to the Constitution which will authorize or give to Congress the power to abolish or interfere, within any State, with the domestic institutions thereof, including that of persons held to labor or service by the laws of said State. Obviously presupposes what virtually everyone thought at the timethat Congress didnt have the power then Second question: Is it OK to use commerce power as pretext for regulating labor conditions? Could pre-13A Congress have prohibited interstate commerce in anything produced by slave labor? Congress tries to stop child labor by tax; Court strikes it down in Drexel (1922) What about other Amendments? 15A gives freedmen right to vote: should we conclude more generally that they get political rights, despite protestations of 14A framers? Would be important for Strauder in answering Fields 14A only covers civil rights, not political rights! argument 16A allows federal income tax: should we conclude more generally that redistributive legislation is OK? 18A bans sale & transportation of alcohol: should we conclude more generally that there arent constitutional rights against paternalism? 19A allows women to vote: should we conclude more generally that sex discrimination is banned? Adkins (1923) relies in part on 19A in striking down D.C. minimum wage All of these pose the basic question we discussed earlier with the DCC: are the framers purposes on an equal plane with the Constitution itself?

The Decline of Judicial Intervention Against Economic Regulation -The court begins to back away from the application of substantive due process to economic matters

XV. Nebbia v. New York (1934)

Facts: New York (P) passed a law establishing minimum and maximum retail prices for milk. The purpose was to aid the dairy industry, which was in a desperate situation because the prices received by farmers for milk were below the cost of production. Nebbia (), a retail grocer, sold milk below the minimum price and was convicted for violating the statute. challenges the statute as a violation of due process. Issue: May a state strictly control retail prices, even if such control inhibits the use of private property and the making of contracts? Holding: Yes. Judgment affirmed. -As long as the Court finds the law to have a reasonable relationship to a proper legislative purpose, to be not arbitrary or discriminatory, and to have means chosen that are reasonably related to the ends sought, due process is not offended. -No area is outside the province of state regulation for police power purposes, including the direct regulation of prices. Dissent (McReynolds, Van Devanter, Sutherland, Butler): This statute is not regulation but management. is deprived of the fundamental right to conduct his business honestly and along customary lines, and consumers are deprived of their liberty to but a necessity of life in an open market. The milk industry is not affected with a public interest. Comment: Under Lochner, supra, regulation of business affected with a public interest was permissible. Nebbia applied a broad interpretation of this concept, in effect rejecting it as a restriction on economic regulation.

A. Analysis 1. What law? NY State Law 2. What does the law do? Sets minimum milk price. 3. Why is the law constitutional? (what standard does the court articulate to analyze the law) Court applies a reasonableness standard and holds that the state regulation is reasonable and does not violate Due Process 4. What clause in the constitution supports holding? Due Process of 14th A (14th A applies to state laws, while 5th A applies to federal laws). B. Contracts Clause 1. Listed among powers denied to the states. 2. Powers denied in this section all prevent the state legislature from acting retroactively in a way that is unfair. 3. No state shall make any Law impairing the Obligation of Contracts

XVI. Home Building & Loan Association v. Blaisdell (1934)

Facts: Minnesota passed a law that permitted extensions of the period of redemption from a foreclosure and sale of real property under the power of sale in a mortgage. The Blaisdells (s) obtained such an extension, thereby preventing Home Building & Loan Association (P) from obtaining possession and conveying title in fee. P sought to have the law invalidated as an improper state interference in private contracts. The state defended the law as a needed emergency measure to deal with the Depression. The state courts upheld the law. P appeals. Issue: May a state alter existing contractual obligations to respond to emergency conditions? Holding: Yes. Judgment affirmed. -An emergency does not create power, but it may justify the exercise of existing power. Maintenance of government is a necessary prerequisite to having enforceable contracts. Therefore, circumstances may arise when exercise of the police power to alter contracts is justified to maintain effective government. Here, the vital interests of the state were involved, and the police power was properly exercised. -The policy behind the Contract Clause requires that any legislation affecting private contracts must be addressed to a legitimate end, as it was here. Additionally, the relief afforded must be appropriate to the emergency, and the means employed must be reasonable. The states law satisfies these requirements. -Finally, the legislation is temporary in operation, so that it deals specifically with the emergency and does not destroy the contractual obligations involved. Dissent (Sutherland, Van Devanter, McReynolds, Butler): The history of the Contract Clause is clear: no state may act to impair the obligation of contracts, even where such action is to give relief to debtors, especially during a time of emergency. A. Analysis: 1. Emergencies dont change limitations on powers granted 2. Constitution itself was adopted in the period of grave emergency 3. Contracts Clause is a general clause that requires judicial interpretation to fill in gaps 4. Clause was added in response to wide spread legislative interference with contractual obligations following the Revolutionary War 5. In reviewing legislation the court asks whether the states impairment of the obligation to K was reasonable 6. States still retain the right to interfere with contracts in the name of public welfare

7. The state of emergency that existed when the clause was added to the Constitution is no different from the financial crisis during the Depression era so why should the clause operate differently? a. The court argues that constitutional understanding of contracts has evolved b. Contracts no longer only affect the original parties contracting. Now contracts impact the entire economic structure on which the good of all people depends i. Question then becomes does the Constitution forbid the states means of avoiding a financial crisis? c. Its a Constitution were expounding i. Court cites McCulloch as support for their interpretation of the Contracts Clause ii. Citation isnt appropriate in this context because the Court in McCulloch was interpreting the N&P clause to determine whether incorporation of a bank was an appropriate means to an end iii. Blaisdell court is changing the meaning of the Contracts Clause instead of interpreting the meaning B. Holding 1. Legislation was temporary in operation 2. Legislation was vital to public interests 3. Legislation was conditioned on the state of emergency C. Doctrine of Economic Due Process 1. Court has embraced the rational basis analysis of legislation regulating the economy 2. Court will defer to the wisdom of Congress and ask if there is a rational basis for the law a. Relaxation of judicial constraints on exercise of congressional power b. Court backed away from subjecting economic regulation to judicial policy judgments c. New Deal judges believed in broad federal power and judicial restraint in social and economic legislation and they changed constitutional doctrine accordingly
Key issue is relationship of B/R to traditional common-law rights: (1) Is incorporation an alternative to protection of traditional common-law rights? i.e., we incorporate, rather than deal with LochnerizingIll get to this in a moment (2) Is incorporation in addition to protection of traditional common-law rights? 14A seems to have 2 prongs that way, which is a little weird (3) Is incorporation in virtue of the protection of traditional common-law rights? i.e., we might not protect everything in the B/R, but only rights that are well-established in tradition That seems to be Justice Harlans view in his early dissents Tempting to retreat to B/R as a nice, straightforward statement of rights, once we decide that Lochnerizing is too amorphous Thats Justice Blacks motivation in 1947, and Senator Thurmans in 1872 9A gives some support to a not just the B/R argument, though: this is Senator Shermans response to Thurman in 1872, and Justice Goldbergs response to Black in Griswold (1965) The B/R was never intended to be a comprehensive statement of American civil liberty, so people who use phrases like privileges of citizens of the United States should be construed to be including more than just B/R

Of course, we could use the B/R for purposes other than what it was intended: we could say explicitly, No state shall abridge the privileges stated in the first eight amendments to the Constitutionits just that that would be using the B/R in a way its framers didnt intend Allows suspension of foreclosuresbanks not allowed to enforce their contracts allowing foreclosures Court appeals to incidental effects on contracts from prohibition lawse.g., contract to sell alcohol would be impaired if the state prohibits such a sale, p. 503 Here, however, the contracts are specifically targeted: the whole point is to avoid enforcement of the foreclosure contract Court dismisses evidence of original meaning pretty breezily: In the construction of the contract clause, the debates of the Constitutional Convention are of little aid. (p. 502) The dissents evidence seems pretty compelling that the situation in the 1780s was very similar to that of the 1930s: Legislatures were concerned about poor people getting kicked out of their homes, and the Philadelphians were concerned about banks refusing to lend in those circumstances Some people argue that New Deal measures like this prevented the resumption of normal practices of lending for several years Policy & historical question obviously disputed, but seems to be essentially the same policy dispute as that of the 1780s

XVII. West Coast Hotel v. Parrish (1937)

-The Court rejected a Due Process challenge to a state law fixing minimum wages for women and children. Marked the abandonment of the courts expansive protection of contractual freedom under substantive due process
Is it possible to reconcile allowing minimum wage in West Coast Hotel and banning maximum hours in Lochner? Pretty hard: both essentially ways of pushing us up & left on the demand curve: one method pushes toward the left, and the other pushes up If we require higher wages, there will be fewer people willing to pay that much, so well inevitably restrict output If we restrict output, the smaller pool of people who really want the labor will be willing to pay more Lochner is very skeptical of the health rationale, but West Coast Hotel says health rationale is enough, pretty summarily: What could be closer to the public interest than the health of women? (p. 512) One distinction is that by 1937, lots of states are trying to enact these laws: The adoption of similar requirements by many States evidences a deep-seated conviction both as to the presence of the evil and as to the means adapted to check it. (p. 512) Might argue that, because labor regulations were unusual in 1905, but common in 1937, the status of free labor as a well-established common-law right had changedin P/I terms, no longer a privilege of American citizens, since states all over the country are trying to restrict these rights -Wed need more evidence of the exact numbers than the Court gives, though

XVIII. United States v. Carolene Products Co. (1938)

Facts: Congress enacted the Filled Milk Act which provided that filled milk (skimmed milk combined with nondairy fats) was an adulterated article of food, the sale of which was a fraud upon the public. The Act prohibited the shipment of filled milk in interstate commerce. Carolene Products Co. () shipped a product containing skimmed milk mixed with coconut oil, made to imitate condensed milk or cream. was indicted for violating the Act. The district court sustained s demurrer to the indictment. The United States appeals. Issue: May Congress prohibit interstate commerce in products it finds are injurious to public health? Holding: Yes. Judgment reversed.

-Congress clearly has power to prohibit shipment of adulterated foods. Yet claims that the Act violates its Fifth Amendment right not to be deprived of property without due process of law. -The Court has previously upheld a state statute that prohibited the manufacture and use of filled milk, on the ground that the states may take action to protect the public from fraudulent substitutions in food products. IN the 20 years since that decision, additional evidence of the public danger of adulterated foods has accumulated. Congress held hearings to investigate the problems of filled milk that support its conclusions regarding the generally injurious effects of filled milk. -Congress is not compelled by the Constitution to ignore such evidence. Even though the ban was not extended to oleomargarine or other butter substitutes that use vegetable fats instead of butter fat, the Fifth Amendment does not have an Equal Protection Clause. Even the Fourteenth Amendment Equal Protection Clause, which applies only to the States, still does not require legislatures to prohibit all evils. -The Act was supported by sufficient evidence to sustain it. Even if there had not been any hearings, the existence of facts supporting the legislative judgment must be presumed. When the existence of a rational basis for legislation depends on facts outside the sphere of judicial notice, the court may inquire into those facts, but in this case, the evidence is sufficient to support the Act. Comment: Footnote 4 of the Opinion sets forth principles regarding this varying presumption of constitutionality. It noted that the scope of the presumption may be narrower when the legislation appears on its face to be within a specific prohibition of the Constitution, such as those of the Bill of Rights. Another area that may invoke a narrower presumption is when legislation may restrict the political process that could lead to repeal of undesirable legislation. The third general area is legislation directed at particular religions or minorities. A. Exception to Judicial Presumption of Constitutionality 1. Legislation is specifically prohibited by the Constitution 2. Legislation restricts political processes that are essential to repealing bad legislation (ie restricting voting rights) 3. Legislation that discriminates against a discrete, insular minority 4. In these cases, the court may subject legislation to a higher level of scrutiny because the process is defective, undemocratic, or impure
Carolene Products (1938) formalizes the new doctrine: [R]egulation affecting ordinary commercial transactions is not to be pronounced unconstitutional unless in the light of the facts made known or generally assumed it is of such a character as to preclude the assumption that it rests on some rational basis within the knowledge and experience of the legislators. Where the existence of a rational basis for legislation whose constitutionality is attacked depends on facts beyond the sphere of judicial notice such inquiries, where the legislative judgment is drawn in question, must be restricted to the issue whether any state of facts either known or which could reasonably be assumed affords support for it. (p. 515) Footnote 4, very famous footnote, gives 3 exceptions to the new deference to legislatures (p. 515): specific prohibition of the Constitution, including B/R incorporation legislation which restricts political processes discrete and insular minorities

XIX. Williamson v. Lee Optical Co. (1955)

Facts: Lee Optical Co, (P) challenged a state law that, among other things, (i) forbids an optician from fitting or duplicating lenses, even replacements, without a prescription from an

ophthalmologist or optometrist, (ii) prohibits advertising of eyeglass frames, and (iii)prohibits optometrists from working in a general retail establishment. The district court held these three parts of the Act invalid under the Due Process Clause of the Fourteenth Amendment. Williamson (), a state official, appeals. Issue: Does the Fourteenth Amendment prohibit all state business regulation that is not essential and directly related to the harm it intends to cure? Holding: No. Judgment reversed. -Although the law may exact a needless, wasteful requirement in many cases, the legislature, not the courts, must balance the advantages and disadvantages of a new requirement. There is ample reason for the legislative means adopted to correct an actual evil. The law need not be logically consistent with its aims in every respect to be constitutional. -The Court will not strike down state laws regulating business and industrial conditions merely because they may be unwise, improvident, or out of harmony with a particular school of thought. The people as voters, not the courts, are the protection against legislative abuse. Comment: The Court has not invalidated any economic regulation on substantive due process grounds since 1937. Compare this to the Courts expansive approach to substantive due process in the area of fundamental personal liberties.
Lee v. Williamson Optical (1955), allowing protection of ophthalmologists cartel on eyeglass prescriptions: [T]he law need not be in every respect logically consistent with its aims to be constitutional. It is enough that there is an evil at hand for correction, and that it might be thought that the particular legislative measure was a rational way to correct it. (p. 521) What do we do if we think both (a) the 14A protects certain economic liberties, but (b) judges are really bad at deciding exactly which ones, and judicial power shouldnt extend to those decisions? One way to do it: distinguish 2 parts of constitutional law: (1) constitutional interpretation: figuring out the meaning of the words of the Constitution (2) constitutional construction: formulating administrable lines in order to enforce the Constitution It might be that considerations of institutional competence make us think that Courts should defer to legislatures, because its very hard to set an exact enforceable limit to what the legislature may do, but that there are important constitutional considerations for legislatures to consider themselves Akin to political question doctrine: courts wont interfere, even though the Constitution may have things to say to other branches The constitutional adverse possession idealetting things lie once theyre well-established would be similar See note 2 at pp. 554-55 for more, applying the idea to federal power Is constitutional economic liberty totally dead? Not quite: Despite Blaisdell, still have some Contract Clause limits on state power to repudiate contracts E.g., CA5 case on 16th Section land in Columbus was a Contracts Clause case 5A takings clause protects some takings of property 1A commercial speech doctrine allows businesses some freedom to speak DP forbids grossly excessive punitive damages (BMW v. Gore & progeny)

The Commerce Power A. The previous cases dealt with the regulation of activities crossing state lines, but this line of cases deals with the court deciding whether intrastate activities have a substantial effect in interstate commerce B. Cases move away from regulation of the transport of goods to the regulation of economic activities.

XX. NLRB v. Laughlin Steel Corp.

A. Facts: NLRA prohibits employers from engaging in any unfair practice affecting interstate commerce. ER charged with interfering with collective bargaining rights of EEs. B. Analysis: 1. What is the law? Federal 2. What does the law do? Prevents unfair labor practice. 3. Why is the law constitutional (what standard does the court articulate to analyze the law)? Court applies the close & substantial relationship standard a. Congress may exercise its commerce power to regulate those activities that have a close and substantial relationship to interstate commerce but not those that are indirect and remote b. Power extends to intrastate activities provided that they have a close and substantial relationship to interstate commerce C. Holding: Court affirmed congressional commerce power to authorize NLRB injunctions against unfair labor practice -NOTE: the activity being regulated here is not the movement of goods across state lines, BUT direct regulation of the employer
Congress can regulate things that merely affect commerce: Although activities may be intrastate in character when separately considered, if they have such a close and substantial relation to interstate commerce that their control is essential or appropriate to protect that commerce from burdens and obstructions, Congress cannot be denied the power to exercise that control. (p. 550) So can Congress do anything? No: this power may not be extended to embrace effects so indirect and remote that to embrace them would effectively obliterate the distinction between what is national and what is local (p. 550) What exactly, though, cant Congress do? Not at all clear

XXI. United States v. Darby (1941)

Facts: The Fair Labor Standards Act of 1938 prescribed maximum and minimum wages for workers who manufactured goods for interstate commerce and prohibited interstate shipment of goods made by workers not employed in compliance with the Act. Darby (), a lumber manufacturer, was charged with violating the Act. The district court quashed the indictment, finding the Act inapplicable to s employees, who were involved in manufacturing, not interstate commerce. The United States (P) appeals. Issue: May Congress establish and enforce wage and hour standards for manufacture of goods for interstate commerce? Holding: Yes. Judgment reversed. -The interstate shipment of manufactured goods is clearly subject to congressional regulation. Congress has in the past prohibited interstate shipment of various articles pursuant to public policy, and the Court has no control over legislative judgment of public policy. Prohibition of interstate shipment of goods covered by the Act is constitutional as long as the labor standards involved are properly within the scope of federal power. -Congress has adopted the policy of excluding from interstate commerce all goods produced for that commerce that do not conform to the specified labor standards, and Congress may choose appropriate means of accomplishing that policy. Federal power extends to intrastate activities directly affecting interstate commerce. The means here adopted so affect interstate commerce as to be within Congresss power to regulate.

-The Act is directed at the suppression of unfair competition in interstate commerce, a valid purpose. Therefore, the Act is constitutional. A. Analysis: 1. Why is the act a constitutional exercise of power? a. Commerce Clause the power of Congress over interstate commerce is not confined to the regulation of commerce among the states. It also extends to activities intrastate that directly affect interstate commerce b. N&P Clause Congress may choose the means to achieve the permitted end even if it means controlling intrastate activities c. Exercise of power does not violate the 10th A 2. Court defers to legislative judgment (differs from the court in Hammer which carefully scrutinized national economic regulation) 3. Overrules Hammer which limited Congresss power to regulate those articles that were themselves harmful, but refused to uphold legislation that served to equalize competition
Darby abandons Hammers distinction between regulating the actual article of commerce and regulating the manner in which the article was produced: may now look at articles method of manufacture to decide whether to allow interstate commerce in it 10A just a truism (p. 553) Gary Lawson: A truism with an attitude Certainly 10A presupposes that there is, in fact, something that has not been granted to the federal government

XXII. Wickard v. Filburn (1942)

A. Facts: Federal Government seeks to penalize a farmer for growing wheat in excess of the allotment under the Agricultural Adjustment Act even though the surplus was intended for personal consumption and not for sale. B. Issue: Can the federal government regulate the amount of wheat grown by a farmer for personal consumption? C. Analysis: 1. Under the Commerce Power Congress can regulate production, consumption, and marketing provided its effect on interstate commerce is substantial. 2. Power to regulate commerce also includes the power to regulate prices and practices affecting prices 3. Primary purpose of the Act was to increase the market price of wheat by limiting the market supply a. Farmer may introduce the wheat earmarked for home consumption into the stream of commerce in the event of rising prices b. Farmers home grown wheat would otherwise be purchased in the open market; therefore it competes with wheat in commerce c. While the farmers single contribution to the demand for wheat is trivial, his contribution taken together with that of others similarly situated is not i. Aggregation principle Congress may act on the theory that collective activity has a close and substantial effect on interstate commerce D. Holding: Production and consumption of home grown wheat substantially affects interstate commerce; therefore the Act regulating the activity is unconstitutional

1. Provided for regulation of discreet intrastate activity that was not in and of itself commercial E. Congressional Power Under the Commerce Clause 1. Where does Congress get the power to regulate the national economy under the Commerce Clause? a. Congress is empowered to legislate areas where the states are incompetent b. When regulations of a state have a strong spillover affect on other states, Congress should have the power to harmonize relations between the states via legislation
Wickard: may utilize economic reasoning to show regulation is necessary & proper: [E]ven if appellees activity be local and though it may not be regarded as commerce, it may still, whatever its nature, be reached by Congress if it exerts a substantial economic effect on interstate commerce (pp. 553-54) May regulate local wheat production Really more a N/P case than a commerce power casethe question is how far Congress may go in doing what it deems economically necessary to regulate actual interstate commerceCourt concedes wheat production is not itself commerce We like Darby, but dont like Wickard, so how can we distinguish between them? Both the labor conditions of manufacturing and agriculture are related to interstate commercethe difference is that manufacturing happens before the interstate commerce, and agriculture happens after Both statutes were essentially efforts to limit competition to businesses engaging in interstate commerce the FLSA approved in Darby was limiting competition from low-wage, long-hours workers the agricultural quota approved in Wickard was limiting competition from home-grown wheat, forcing farms to buy wheat from the market We might say that the right to grow wheat is more fundamental than the right to work for low wages, or for long hours, but its not clear how that issue should affect what counts as a regulation of interstate commerce (or whats necessary & proper for one)

XXIII. Heart of Atlanta Motel v. United States (1964)

Facts: The Heart of Atlanta Motel was easily accessible to interstate highways. The owner of the motel (P) refused to rent rooms to blacks. P challenged Title II of the Civil Rights Act, claiming that it was unconstitutional. The Act was sustained. P appeals. Issue: May Congress prohibit racial discrimination by private motels that accept out-of-state business? Holding: Yes. Judgment affirmed. -Racial discrimination has caused blacks great difficulty in finding accommodations when traveling. Because of the burden this places on interstate commerce, Congress may act under the Commerce Clause. The fact that racial discrimination is a moral and social wrong, as well as an obstruction to interstate commerce, does not render Congresss enactment less valid. CRA64 upheld in Heart of Atlanta & Katzenbach v. McClung based on conceivable relation to commerce:
[W]here we find that the legislators, in light of the facts and testimony before them, have a rational basis for findig a chosen regulatory scheme necessary to the protection of commerce, our investigation is at an end. (p. 561)

XXIV. United States v. Lopez (1995)

Facts: In the Gun-Free School Zones Act, Congress made it illegal for any person knowingly to possess a firearm in a school zone. Lopez (), a 12th grade student, carried a concealed gun to his high school. was ultimately convicted under the Act. The court of appeals reversed on the ground that Congress did not have power under the Commerce Clause to regulate this type of activity. The Supreme Court granted cert. Issue: May Congress prohibit the possession of firearms within a school zone?

Holding? No. Judgment Affirmed. -As business enterprises expanded beyond local and regional territories and became national in scope, the scope of the Commerce Clause as interpreted by the Court also expanded. In cases such as NLRB, the Court noted that while power to regulate commerce is broad, it does have limits. - There are three broad categories of activity that come within Congresss commerce power: (i) Congress may regulate the use of the channels of interstate commerce; (ii) Congress may regulate the instrumentalities of interstate commerce, as well as persons or things in interstate commerce; and (iii) Congress may regulate activities that have a substantial relation to interstate commerce -The Act in this case is a criminal statute that has nothing to do with commerce. Possessing a gun in a school zone does not arise out of a commercial transaction that substantially affects interstate commerce. Nor does the Act contain a requirement that the possession be connected in any way to interstate commerce. -The government claims that possession of a firearm in a local school zone substantially affects interstate commerce because it might result in violent crime. This in turn imposes costs on society that are borne throughout the country through insurance rates. The government also claims that guns disrupt the educational process, which leads to a less productive society, which ultimately affects interstate commerce. If either of these propositions were adopted, there would be no limitation on federal power. The only way to find an effect on interstate commerce in this case is to pile inference upon inference, and the result would be to uphold a general police power for Congress. A. Concurrence: 1. Kennedy & OConnor a. Since disagreement exists on the best way to regulate guns in schools, states should be left to perform their own due diligence and devise a solution 2. Thomas a. textual argument i. Broad interpretation of the Commerce Clause to include all activities that substantially affect interstate commerce makes other enumerated powers superfluous (ex. power to make bankruptcy laws) B. Dissent: 1. Souter a. The practice of deferring to rationally based legislative judgment is the paradigm of judicial restraint b. However, the court will not automatically defer to legislative findings and still subjects an Act to rational review 2. Breyer a. Basic principles of Commerce Clause Interpretation i. power to regulate commerce encompasses the power to regulate local activities insofar as they significantly affect interstate commerce (GIBBONS) ii. In determining whether a local activity will likely have a significant effect, the court must consider, not the individual act, but rather the cumulative effect of all similar instances (WICKARD) iii. Courts are responsible for determining whether Congress has a rational basis for determining that an activity substantially affects interstate commerce

-Commerce power is given to Congress under the Constitution and Congress is better situated to make such a determination with accuracy b. Congress could have rationally found that violent crime in school through its effect on the quality of education significantly affects interstate commerce c. Supreme Court has previously upheld congressional actions with less significant connections to intrastate commerce than the effect of school violence
Lopez: if gun-free school zones are within the commerce power, anything is: if we were to accept the Governments arguments, we are hard pressed to posit any activity that Congress is without power to regulate. (p. 603) Except for Thomas, though, they dont repudiate the effects test, though, and the dissent makes a pretty reasonable argument that kids feeling safe could well help them learn and become better workers & consumers Thomas footnote suggests he might stick with some of the New Deal cases, even if he thinks they were wrong: Although I might be willing to return to the original understanding, I recognize that many believe that it is too late in the day to undertake a fundamental reexamination of the past 60 years. Consideration of stare decisis and reliance interests may convince us that we cannot wipe the slate clean. (p. 610) If the courts are really out of the business of second-guessing legislative factfinding and legislative assessments of the directness of an effectwhich they say they arehard to see how Court says legislation OK if its an essential part of a larger regulation of economic activity, in which the regulatory scheme would be undercut unless the intrastate activity were regulated (p. 602) Hard to tell what counts as a regulation of economic activitynot perfectly obvious why protecting education isnt one *** Morrison (2000) Morrison: gender-motivated violence outside commerce power As in Lopez, the dissents argument that making women feel safe will make them better workers & consumers doesnt seem so different from the reasoning allowed in Darby & Wickard Raich: may ban growing marijuana for personal consumption Scalias with the majority in favor of federal power, says N/P allows regulations if government is worried about spillover Some might say Raich might be right even if Wickard is wrong, because the right to grow wheat is more important than the right to grow marijuanamight make sense as a policy argument, but hard to fit that into what counts as a regulation of commerce, or N/P incident thereto

South Dakota v. Dole (1987)

-Court may bribe states to raise drinking age with transportation funds -Builds on cases we didnt look at closely earlier in which there were similar rise and fall of limits on federal power Butler (1936): Congress cant bribe farmers not to grow crops Steward Machine (1937): Congress may use taxing & spending power to get people into Social Security OConnor dissents, saying there should be a substantial connection between the spending and the regulation, but the Court allows very cursory analysis of the existence of a national problemits enough that the money is for highways and the drinking limits aim at highway safety

XXV. New York v. United States (1992)

Facts: Low-level radioactive waste is generated in substantial quantities by various industries including the medical and research industries, but in 1979 the only three U.S. disposal sites for radioactive waste were in Nevada, Washington, and South Carolina. Each of these states objected to accepting wastes from other states, and in 1980, Congress enacted the Low-Level Radioactive Waste Policy Amendments Act. The Act authorized states to enter into regional compacts that, once ratified by Congress, could after 1985 restrict the use of their disposal facilities to waste generated within member states. By 1985, only three approved regional

compacts had operational disposal facilities the ones existing in 1979. Thirty-one states (unsited states) were not members of these compacts. Congress amended the Act in 1985, based on a proposal submitted by the National Governors Association, whereby sited states agreed to accept waste for seven more years, collecting a graduated surcharge for waste from the unsited states, and unsited states agreed not to rely on the sited states after 1992. A portion of the surcharges would be collected by the Secretary of Energy, who in turn would pay them to the unsited states that complied with a series of deadlines for joining a regional compact or creating their own disposal sites. States that failed to meet the deadlines could lose access to disposal sites. Finally, any state or regional compact that was unable to dispose of all waste generated within its borders by 1996 would, upon the request of the waste generator, take title to the waste and be liable for all damages incurred by such generator as a consequence of the states failure to take possession of the waste once notified that it is available. New York (P) did not join a regional compact, but did enact legislation providing for the sitting and financing of disposal facilities. The two target counties (Ps) objected and joined P in suing the United States (), seeking a declaratory judgment that the Act violates the 10th A. The district court dismissed the complaint. The court of appeals affirmed. The Supreme Court granted cert. Issue: May Congress direct the states to regulate in a particular field or a particular way, using them as implements of regulation? Holding: Judgment reversed in part. A. Analysis: 1. The Constitution does not specifically address the issue, so court employs the principle of sovereignty a. Contrast the supremacy principle employed in analyzing the 2nd issue in McCulloch (can a state tax the federal bank) b. McCulloch a single state cannot tax an entity created for the people c. New York flip side of McCulloch; federal government cannot force a state to legislate 2. Congress exercises conferred powers subject to the limitations contained in the constitution 3. Constitution permits Congress to legislate directly over individuals and private companies (ex commerce clause cases) but not states (cannot direct states to legislate according to Congresss instructions) 4. Congress may encourage a state to regulate in a certain way via incentives a. Spending Power Congress may attach conditions to federal funds 5. Congress may pre-empt state regulations contrary to federal interests a. Commerce Clause b. Under either method citizens of the state retain the decision of whether the state will comply 6. 10th Amendment a. The power to regulate the issue hasnt been delegated to the federal government or denied to the states in the Constitution; therefore it is reserved for the states 7. When federal government compels a state to regulate, accountability of state and federal officials is diminished (the electorate will not know who to blame for which problem) 8. Articles of Confederation permitted the Federal Government to issue command to the states and this structure proved ineffective 9. United States Arguments

a. Consent Public officials that represent NY supported the Act i. State official cannot consent to the enlargement of the powers of congress beyond those in the Constitution ii. The Constitution divides authority between federal and state governments for the protection of individuals (not states) against arbitrary government iii. The Constitution protects us from our own best intentions b. Supremacy Clause requires that state judges uphold federal law i. No analogous grant of power to Congress c. Guarantee Clause the federal government shall guarantee every state a republican form of government i. Congress, not the judiciary, should decide what government is established in a state
The three areas: Protection for traditional governmental functions 11A & 11A-style immunity Anti-commandeering casesNew York and Printz For all of these, its not very clear where the limits on federal power come fromseems to be just the fact that states are sovereign, whatever that means Lots of framers, however, thought that states had immunities like thesethe historical argument is much better than the textual one Maybe its just implicit in the word State May Congress apply Fair Labor Standards Act to states? Maryland v. Wirtz (1968): yes National League of Cities (1976): no Lots of cases try to figure out what traditional governmental functions are Garcia (1985): yestoo hard to manage; states have to rely on the political safeguards of federalism (Herbert Wechslers phrase from the 1950s) The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State. Seminole Tribe (1996), main modern case, but basic move beyond the text was made in Hans (1890) Famous quote from Scalia, first made in Blatchford (1991): Despite the narrowness of its terms we have understood the Eleventh Amendment to stand not so much for what it says, but for the presupposition of our constitutional structure which it confirms: that the States entered the federal system with their sovereignty intact; that the judicial authority in Article III is limited by this sovereignty, and that a State will therefore not be subject to suit in federal court unless it has consented to suit Lots of scholars say the 11A really only meant to restrict diversity jurisdiction, not federalquestion jurisdiction, even by citizen of another state Court goes beyond the text by conferring general immunity from unconsented lawsuits, but diversity-reading scholars would read it to give less than the text, since federalquestion cases by citizens of other states would be allowed Doesnt apply to state v. state or US v. state lawsuits Doesnt apply to suits against state officials (Ex Parte Young)thats why civil lawsuits about 14A stuff are always citizen v. official, not citizen v. state Everyone agrees that under the Articles of Confederation, the only way for Congress to act was by asking the states to actlegislation on states aloneand that the Convention wanted to change that Articles were like the UN nowscolding states that misbehave, but not having any real ability to enforce rules See, e.g., Medellin (2008), where the International Court of Justice said that Texas should give Medellin a hearing to consider violations of the Vienna Convention (right to talk to the Mexican consulate before police questioning), and President Bush told Texas to

comply, but Texas went ahead and executed the guy anyway, with the blessing of the Supreme Court President of Sudan was just indicted for war crimes by the International Criminal Courtwill the UN go and arrest him? Difficult question is how to read the Constitutions repudiation of this situation: did they replace Congress acting on states in their legislative capacities with Congress acting on individuals, or did they supplement it? Stevenss dissent says they supplemented itpre-existing authority in Congress to tell states to adopt legislation, and nothing in Constitution takes it away Court says it was replacementCongress has the ability to legislate directly on individuals, and no ability to do anything else Historical materials give the majority some support, but its tedious to evaluate

XXVI. Printz v. United States (1997)

Facts: The federal Brady Handgun Act required the United States Attorney General to create a national system to instantly check the background of prospective handgun purchasers. Pending establishment of the national system, the Act also required the chief law enforcement officer (CLEO) of each local jurisdiction to conduct the background checks. Printz (P) and another sheriff challenged the statute under New York v. United States. The lower courts upheld the statute. The Supreme Court granted cert. Issue: may Congress compel state officers directly to enforce a federal regulatory program? Holding: No. Judgment reversed. A. Analysis 1. Doctrine (jurisprudence) a. New York federal government may not compel states to enact or administer a federal regulatory program i. Diminished accountability of federal legislature and higher financial burden on states 2. Structure a. Dual federalism although the states surrendered powers to the Federal Government, they retained a residuary b. Enumerated Powers implied residual state sovereignty by conferring only discrete enumerated powers c. 10th Amendment expressed residual state sovereignty d. Federal control of state officers would impact the separation and balance of powers set forth in the Constitution 3. History a. Absence of executive-commandeering statutes in early Congress which is strongly corroborative of the fact that the power did not exist under the Constitution (interpretation by inference) B. Dissent: 1. Act is a constitutional exercise of the Commerce Power, and the 10th A imposes no restriction on the exercise of a delegated power 2. Federalist Papers expressly give the Federal Government the power to demand local officials implement national policy programs 3. State and local judges used to perform many executive functions 4. Excluding the use of state officials in implementation of its programs is inefficient

Key analogy is state judges, who are uncontroversially assigned duties under federal lawsee VI/2 (state judges specially bound to enforce federal statutes), IV/1 (full faith and credit given to other states law, presumably to be enforced by judges) Testa (1947) allows feds to require state judges to enforce federal law Two possible ways to read this rule: (1) Since its clear that state judges can be required to enforce federal law, we should infer that no one else may be similarly required (expressio unius est exclusio alterius argumentexpression of one thing is exclusion of others) (2) Since state judges can be required to enforce federal law, there must not be any general principle that state officials are immune from a requirement to enforce federal law Which is stronger? Like all expressio unius arguments, (1) depends on how likely it is that an expression of this duty would be comprehensive, covering all possibilities (2) depends on how much historical support there is for a special exemption for state & local executive officialsas with New York, I think the historical materials do give the majority some support, but its tedious to evaluate General issue weve seen several times: read a particular rule as (a) illustrating a general idea, or (b) as implicitly excluding other similar particular rules?

Emergency Power During War Time A. Article II 1. Does not list enumerated powers similar to those delegated to Congress under Article I a. Article I 1 all legislative powers herein granted shall be vested in the Congress b. Article II 1 executive power shall be vested in the president

XXVII. Nixon (1974)

a. Countermanding issue i. Since Jaworski is Nixons subordinate, why cant Nixon just tell Jaworski not to get the tapes? ii. The precedent on which the Court relies deals with presidential disagreement with the result of a detailed quasi-judicial process-the Board of Immigration Appeals 1. This is pretty unlike a prosecutorial decision about what evidence to seek iii. A promise not to fire Jaworski without consent of Congressional leaders isnt obviously constitutional 1. Cant put executive power in the hands of Congress 2. I/6/2 bars Congressmen from holding executive offices, and the general principle would bar them from making executive decisions b. Presidential privilege issue i. Presidents get to keep some secrets, but not all of them (balancing test which Nixon loses here) ii. Whats the textual basis? 1. President has the executive power-II/1/1 2. The British monarch is the basic model for what executive power looks like, but certain aspects of his powers dont work under our scheme (ex. Power to tell other branches what to do and make them report to him)

a. Hard historical questions about what exactly executive power expressed iii. Burr, the main case on which the Court relies is really quite different: it involved a treason defendants rights to get evidence from the president, not the governments 1. Aaron Burr said that Jeffersons papers would prove that he wasnt a traitor, and Marshall (sitting as circuit justice) says cant prosecute him unless he gets access to the papers a. Jefferson refused to give access to the papers, and Marshall didnt hold him in contempt or anything like that-the only sanction was not being able to pursue certain counts of the indictment iv. Theres a lot of stuff from Marbury about the right of the presidents people to keep information confidential that the Court ignores
II. III. Since Jaworski is Nixons subordinate, why cant Nixon just tell Jaworski not to get the tapes? The precedent on which the Court relies deals with presidential disagreement with the result of a detailed quasi-judicial processthe Board of Immigration Appealswhich a. Pretty unlike a prosecutorial decision about what evidence to seek Also, a promise not to fire Jaworski without consent of Congressional leaders isnt obviously constitutional a. cant put executive power in the hands of Congresssee N4, p. 757 b. I/6/2 bars Congressmen from holding executive offices, and the general principle would bar them from making executive decisions

IV.

XXVIII. Morrison (1988)

c. Inferior officers i. Court allows independent counsel, appointed by special division of D.C. Circuit, shielded from removal by cause requirement 1. 2 basic objections: the appointment process and the difficulty of removal ii. II/2/2 says that president gets to appoint everyone except inferior officers, who can also be appointed by heads of departments or courts iii. Scalias DISSENT: inferior = subject to command and control 1. The clause then has a straightforward point of eliminating any officials who are insulated from higher authority-the only people courts or department heads can appoint are people iv. Court: inferior = limited in power 1. Point of II/2/2 is to give the President power over all the important people in the executive branch 2. In Edmond, Scalia seems to write his version of II/2/2 back in to the law: Morrison did not purport to set forth a definite test d. Insulation from removal i. A lot of water under the bridge at this point (precedent?) 1. Myers (1926) says president has general power of removal and Congress cant say removal okay only if Senate agrees a. This vindicated Andrew Johnson-he was impeached for removing the Secretary of War without Senate approval

b. Chief Justice Tafts great opinion 2. Humphreys Executor (1935) says independent agencies (like the Fed) are okay, because theyre quasi-judicial a. Odd-case since it simultaneously undermines separation-ofpowers objections to the New Deal administrative state but gives FDR a slap in the face for supposed presidential overreaching ii. Court in Morrison reframes Humphreys Executor standard 1. Question now isnt whether the independent agency is quasijudicial, but whether the limit on removal undermines the functioning of the Executive Branch a. Because independent counsel is limited in scope and Attorney General can remove him (albeit for cause), Court says its okay
V. Three chief textual sources a. Inferior officers in II/2/2, if we take Scalias reading b. The executive power in II/1/1 i. Strikingly different from I/1, which refers to all legislative powers herein granted, which denies a general legislative power to Congress ii. III/1, which talks about the judicial power, but which is then defined specifically in III/2/1 (The judicial power shall extend to ) iii. So the president has the executive power, neither limited to whats granted elsewhere in Article II, nor spelled out explicitly 1. As I explained a minute ago, its hard to say exactly what powers are executive, since the main model, the British monarch, isnt a perfect model c. Take-care clause of II/3: he shall take care that the laws be faithfully executed i. Cant do that unless he has the power to tell lower executive officials what to do question is how much detail that power has to takeif hes got a general power to supervise & remove, is that enough? Under II/2/1, president has power to require heads of departments to give official reports to him: which way does this cut? Reading II/2/1 to limit presidential power: if the president had to be given the explicit power to ask for the opinions of his subordinates, surely he didnt have a general power to countermand or remove them Maybe heads of departments have to tell the president what theyre doing, but not obey him Reading II/2/1 to confirm broad presidential power: confirms that heads of departments report to the president, i.e., as to a superiorwould be a little odd to report to someone if the Presidents own job has nothing to do with the department heads jobs Weve seen this several times before: reading a provision as implicitly excluding things that are nearby, versus reading a provision as an example of a general principle: need to get into the history to see which is more plausible 2 internal issues related to presidential control over lower officials: Personnel questions: whom can the president appoint & remove? Countermanding questions: who is obliged to obey the president? 2 external issues related to the executive branch as a whole: Privilege question: what secrets can the executive branch keep? defensive presidential power Authorization question: when does the President need Congressional authorization for an action, and when doesnt he? offensive presidential power Issue in Youngstown (1952), for today

IXXX. Youngstown Sheet & Tube Co. v. Sawyer (1952)

Facts: At the time of the Korean War, American steel production was indispensable to supply steel for weapons and other war materials. The United Steelworkers of America announced its intention to start a nationwide strike. Citing the serious national interest in steel production, President Truman ordered Sawyer (), Commerce Secretary, to seize the steel mills and keep them running. Youngstown Sheet & Tube (P) challenged the seizure as unconstitutional and unauthorized by Congress. Congress has earlier passed the Taft-Hartley Act, giving the president authority to seek an injunction against such strikes, but had rejected an amendment to permit government seizures to avoid serious shutdowns. The district court issued a preliminary injunction against , which was stayed by the court of appeals. The Supreme Court granted cert. Issue: May the President, acting under the aggregate of his constitutional powers during time of war, exercise a lawmaking power independent of Congress to protect serious national interests? Holding: No. Judgment of the district court affirmed. A. Analysis 1. Presidents power comes from two places a. Constitution b. Act of Congress 2. Position of Commander in Chief of the Armed Forces does not give the power to seize private property a. President puts on his Commander in Chief hat when country is at war b. Theater of war does not encompass labor disputes 3. Take Care Clause a. Presidents power to see that laws are faithfully executed does not mean that he can make laws b. Constitution limits the lawmaking power of the President to recommending laws and vetoing laws c. Art I expressly states that all lawmaking powers are vested in Congress 4. State of emergency does not create powers 5. Separation of powers was not created to promote efficiency but to preclude exercise of arbitrary power 6. Justice Blacks arguments are textual a. Textual Constitutional commands can be derived from the plain meaning of the text b. Prudential considers the political and economic circumstances surrounding a decision; generally hold that emergency creates power B. Concurrence: 1. Frankfurter a. Congress has already laid out specific procedures for dealing with this type of crisis under the Labor Management Relations Act; therefore, the President must follow those procedures b. Constitutional law shouldnt be narrowly confined to the words of the Constitution disregarding the gloss that life has written upon it i. gloss interpretations or commentaries written in margins ii. systematic executive practice never refuted by Congress is treated as a gloss on executive power 2. Jackson

a. Opinion viewed as more important than the majority opinion b. Doesnt base analysis on history or jurisprudence but on experience (Jackson served as Attorney General) c. Analytical Framework for Challenging Presidential Powers i. President acts pursuant to express or implied authorization of Congress Highest judicial deference ii. President acts in absence of congressional grant or denial of authority and relies on independent powers Twilight zone iii. President acts contrary to the expressed or implied will of Congress Highest judicial scrutiny d. Presidents seizure of the steel mills falls into category 3 e. President is not Commander in Chief of the country, only the military f. Structural Argument i. 3rd Amendment even in war time, the seizure of military housing must be authorized by Congress C. Dissent a. President acted to preserve the status quo until Congress had the chance to act b. President has a duty to take care that laws be faithfully executed (A II/3) i. Military procurement programs ii. Anti-inflation legislative programs c. Past presidents have taken similar actions during national emergencies i. Jefferson LA Purchase ii. Lincoln Emancipation Proclamation
Court says Truman wasnt allowed to seize the steel mills in response to threatened strike 2 basic issues: Did the Taft-Hartley Act (the LMRA of 1947) implicitly forbid this action? If Congress is silent, what is the President allowed to do? Tripartite scheme in Jacksons concurrence (relied on by lots of later full majorities, so you can definitely cite it) Category 1: Congress says yes Category 2: Congress is silentthe twilight zone Category 3: Congress says no Dispute among judges about (a) whether this is Category 2 or Category 3, and (b) what happens in Category 2 In this case, Truman agreed that if it was Category 3if Congress said nohed lose But there are also important questions about when the President might be able to do something, even if Congress told him not toi.e., what might be an interference with the II/2/1 commanderin-chief power Classic sort of dispute between Frankfurter and Black: Black wants a nice, crisp, clean, clear rule, and Frankfurter thinks its more complicated and flexible (p. 824 footnote, Frankfurters oddly located paragraph) Dispute over B/R incorporation features exactly the same disputeBlack wants nice, clear incorporation of the whole thing, and Frankfurter wants complicated inquiry into the place of particular rights in a scheme of ordered liberty The vote might be 5-4 saying Congress didnt bar the action (Black & Douglas dont say they did, plus the Vinson-Reed-Minton dissent, versus the 4 concurrences saying Congress said no) and 7-2 on whether Truman could act in the face of Congressional silence (the 4 concurrences, plus the 3 dissenters, versus Black & Douglas), which would mean Truman got a majority on each issue in the case, but still lost pretty wacky, but it can happen (N6, p. 837) Its not perfectly clear, though, what Black & Douglas thought about the statutory issue, and what the concurrences thought about the what-if-its-category-2 issue

LMRA of 1947 (Labor Management Relations Act, or Taft-Hartley Act, amending 1935 NLRA National Labor Relations Act, or Wagner Act) would allow president to seek a labor injunction to stop a strike, but not simply to seize plants Four of the concurrences rely on this fact: Frankfurter: Congress made a conscious choice of policy in a field full of perplexity Congress could not have more clearly and emphatically have withheld authority than it did in 1947, p. 825 Jackson: Congress has not left seizure of private property an open field, but has covered it by three statutory policies inconsistent with this seizure, p. 828-29 Burton: Congress has prescribed for the President specific procedures, exclusive of seizure, for his use in meeting the present type of emergency, p. 831 Clark: where Congress has laid down specific procedures to deal with the type of crisis confronting the President, he must follow those procedures in meeting the crisis, p. 831 Classic question of when a statute pre-empts other actionrecall McCulloch on whether authorizing a bank forbids a tax, and Gibbons on whether federal shipping rights forbid a state monopoly Black for the Court and Douglass concurrence suggest President cant do anything if Congress hasnt said its OK Black: Congress has exclusive constitutional authority to make laws, p. 824 Douglas: the power to execute the laws starts and ends with the laws Congress has enacted, p. 827 Intuitively, seems crazy for President not to be able to respond to sudden attacks without congressional authorizatione.g., shooting back at planes dropping bombs at Pearl Harborbut whats the constitutional basis? Jackson makes a 3A argumentcan only quarter soldiers during war in a manner to be prescribed by law, and seizing steel for an army is pretty similar to seizing residences for an army Historically, almost everyone used sudden attacks as the standard for presidential power in lieu of congressional authorization, even though its not in the constitutional text; lots of history of presidents acting first and getting congressional blessing after the fact Under I/10/3, states have a very similar power to make war without congressional consent if actually invaded, or in such imminent danger as will not admit of delay Maybe we should say that the President has a similar power under the commander-inchief power of II/2/1 to use force when theres no time to get congressional authorization Even if the LMRA didnt forbid Truman to act, its still relevant to whether the strike was an emergency since he couldve gotten an injunction, and the labor dispute had been brewing for some time, it really doesnt look too sudden or emergency-like I think this is probably where I come outPresident has power to act if theres no time to ask Congress or use procedures in place, but probably not otherwise (and see above) I.e., Truman can go ahead and nuke the Chinese & North Koreans, but hes got to remember the folks back home that hes nuking the Communists for! Jackson: I should indulge the widest latitude of interpretation to sustain his exclusive function to command the instruments of national force, at least when turned against the outside world for the security of our society. But, when it is turned inward, not because of rebellion but because of a lawful economic struggle between industry and labor, it should have no such indulgence, p. 829-30 Black concedes that maybe the President can act in a theater of war, p. 823, but Youngstown, Ohio isnt part of one Not super obvious thats the casehistorically, a number of labor-agitator types have said that labor unions around the world should rise up to resist the war machines and deprive them of the material they need Frankfurter, p. 825: Deeply embedded traditional ways of conducting government cannot supplant the Constitution or legislation, but they give meaning to the words of a text or supply them. It is an inadmissibly narrow conception of American constitutional law to confine it to the words of the Constitution and to disregard the gloss which life has written upon them. In short, a systematic, unbroken, executive practice, long pursued to the knowledge of the Congress and never before questioned, engaged in by Presidents who have also sworn to uphold the Constitution, making as it were such

exercise of power part of the structure of our government, may be treated as a gloss on executive Power vested in the President by 1 of Art. II. Jackson, p. 827: Just what our forefathers did envision, or would have envisioned had they foreseen modern conditions, must be divined from materials almost as enigmatic as the dreams Joseph was called upon to interpret for Pharaoh. A century and a half of partisan debate and scholarly speculation yields no net result but only supplies more or less apt quotations from respected sources on each side of any question. They largely cancel each other. This attitude drives me bonkersthe historical question is really hard, so Im not going to try to resolve itno, dang it, get your fingernails dirty! Cf. Judge Wilkinson on Hellerblithely assumes the historical 2A evidence is in equipoise, without discussing the material at all

I.

The Constitutional Treatment of Race a. This line of cases focuses on the meaning of the Equal Protection Clause of the 14th Amendment with respect to racial equality i. EP Clause - No state shall deny to any person within its jurisdiction the equal protection of the laws b. Background of Brown v. Board of Education i. Many regarded racial mixing in professional schools as less invidious than in primary or secondary schools ii. NAACP lawyers exploited the social peculiarity by first attacking separate but equal in professional schools 1. Sipuel v. OU Board of Regents court held that had a constitutional right to an equal education and could not be denied entry into a state law school based solely on race; however, on remand the court gave the state the option of establishing a separate black school (consistent with Plessy) 2. Sweatt v. Painter Court held that a law school established for blacks could not provide an education equal to that offered by the UT Law School. Black law school wasnt equal to UT law because of tangible aspects, but more importantly it did not possess those intangible qualities that make a law school great (e.g. prestige, reputation of faculty, etc.) 3. McLaurin v. Oklahoma State black student admitted to a state universitys graduate program not offered at the school for blacks could not be required to sit in separate sections of the cafeteria, classroom, library a. Court held that such restrictions would impair the black students ability to study and learn his profession b. Court points out that there is a vast Constitutional difference between restrictions imposed by the states on racial intermingling vs. the refusal of individuals to mingle of their own accord; removal of restrictions may not bring groups together but state shouldnt deny the opportunity i. Recall that the court in Plessy stated that legislation cant force people to come together, but still upheld a statute that made it impossible for them to do so

c. Questions on Brown i. What is the rule from Brown? 1. Discrimination based on race violates the Equal Protection clause of the Constitution. ii. What harm is remedied by the decision in Brown? 1. Feelings of inferiority caused by separating races 2. Recall from Plessy that the court rejected the idea that separation of the races stamps the black race with a badge of inferiority blacks were simply choosing to construe separation that way. iii. What/who inflicted the harm? 1. De jure discrimination iv. How does the court remedy the harm? 1. Brown asks for re-argument on the issue of remedy in Brown II. Remedies came from the courts guided by equitable principles v. How did the government comply with Brown? vi. What does Brown do with Plessy? 1. Court does not explicitly overrule Plessy, but states that any language in Plessy contrary to Brown is rejected vii. What would it mean for the country if we decided Brown was wrong? d. Court asked counsel in Brown to discuss the following questions in their brief and oral arguments i. Did Congress & ratifying states understand the 14th Amendment would abolish segregation in public schools? 1. This may not be a fair question since the states were required to ratify the amendment to gain admission back into the Union ii. If Congress and the states did not understand the 14th Amendment in that way, is it within the powers of Congress or the judiciary, in construing the amendment, to abolish segregation in schools?

XXX. Brown v. Board of Education (1954)

iii. FACTS: Case deals with the issue of segregation in elementary and secondary public schools. s contend that segregated public schools are not equal and cannot be made equal and deprive them of equal protection of the laws under the 14th Amendment. The trial court had denied relief based on the separate but equal doctrine announced in Plessy. iv. ISSUE: Does segregation of public schools, even though facilities are equal, deprive children of equal protection under the 14th Amendment? v. ANALYSIS: 1. The court has interpreted the 14th Amendment to proscribe all state imposed discrimination against blacks 2. The separate but equal doctrine was announced in Plessy, but the case involved transportation not education 3. Prior cases involving discrimination at the graduate school level did not re-examine the doctrine of separate but equal, and did not decide whether Plessy should be applicable in public education

4. Court bases its analysis on the effect of segregation itself on public education rather than on legislative history (which it finds inconclusive) or prior precedent a. Legislative history of the 14th Amendment occurred in a world where general public education was not yet widespread b. Court looks to sociology experiments dealing with the psychological effects of segregation to support its analysis vi. HOLDING: Segregation in school does violate the Equal Protection Clause of the 14th Amendment. Court does not explicitly overrule Plessy, but concludes that the doctrine of separate but equal has no place in public education because separate education facilities are inherently unequal. 1. Opinion was unanimous 2. Sort of corrects the mistake in Plessy of saying that segregation doesnt imply inferiority, but does so based somewhat on psychological evidence (Quote on pg 901, slide 5 3/24/09) a. Brown probably uses this as a face-saving measure to get unanimity on the Court, when the more intellectually honest thing would be to admit that Plessy wasnt candid about social meaning of separation b. In later cases, this stuff drops away; by Loving, its clear that the Court acknowledges that separation is an attempt to enforce white supremacy i. Right after Brown, a bunch of cases came up about segregation in buses, golf courses, and public accommodations, and they strike it down on the basis of Brown ii. The psychological stuff about the effect of segregation on school kids therefore isnt essential e. Brown on history i. Note the questions presented for reargument: did the proposers or ratifiers specifically contemplate that the 14A would desegregate the schools, or might in the future? 1. Specific-application form of originalism is only one kind: a. Original specific applications b. Original textually-expressed meaning c. Original ultimate purposes ii. Brown says that this evidence is at best inconclusive, but without digging into the evidence much at all iii. Brown sort of declares independence from the Founders-we cannot turn the clock back to 1868 when Plessy was written, but only as to specific application (Green thinks) 1. Green would say turn back the clock as to textually-expressed meaning, but not turn it back as to application f. Is Brown a reduction ad absurdum of originalism?

i. The reduction style of argument: assume something you want to disprove, and then derive something absurd from it 1. Assume originalism is true-i.e. were bound by the original (meaning/applications/purposes) of the Founders 2. But if thats true, then were bound by all of this historical stuff 3. But then Brown is wrong 4. But thats absurd-Brown is obviously right 5. So our assumption in 1 is wrong-i.e., originalism must actually be false ii. Four main sorts of evidence that the framers didnt intend desegregation: 1. James Wilson in discussing an early version of the Civil Rights Bill of 1866 says that nondiscrimination in civil rights and immunities doesnt require integrated schools, since schools arent a civil right 2. Northern negrophobia: Indiana excludes black people 3. Congressional failure to desegregate the D.C. schools 4. No one seems to have discussed the issue, which is strange if the 14A had such a big effect iii. Originalist evidence in favor in Brown 1. Even Dred Scott recognized the social meaning of separation as a badge of inferiority 2. In 1872 and following, majorities in Congress vote to ban school segregation on the basis of the 14A-cant overcome the filibuster so they take out the schools provision a. Virtually all of the 14A proponents then in Congress say yes b. Charles Sumner gives simple, compelling explanation of the argument: schools are a privilege given to all citizens, and separation is an assertion of inferiority iv. How can the originalist deal with the contrary evidence? 1. Wilsons conclusion explicitly depends on education not being a civil right, and (depending on our version of originalism) were entitled to disagree with him about that a. One response: Thats not originalism! i. My rejoinder: Well, its at least semi-originalismwere bound by the meaning expressed in the constitutional text, even though were not bound by the specific applications 2. For D.C. schools and Northern negorphobia, possible to act inconsistently with ones principles (can be akratic) 3. Lots of things on the publics mind in 1866, so we can forgive failing to discuss every single application v. How can the non-originalist reply to the Dred Scott and 1872 evidence? 1. Relying on post-ratification stuff isnt originalism! a. Reply: Wait a minute, youre the one trying to attack originalism. Why should I trust you about what should

count as real originalism? If I think 1872 evidence is the best evidence of the original meaning expressed by the constitutional language in 1866, Ill use that if I want to 2. Dred Scott was mainly talking about anti-miscegenation statutes, and theres lots of evidence that the 1866 framers didnt want to get rid of those, especially in CrA66 debates a. Reply: probably akratic-no good explanation for why that result was consistent with the general meaning of the 14A i. Also, in 1872, none of the Republicans who said that segregation was unconstitutional denied that anti-miscegenation statutes would be unconstitutional too vi. Of course, even if originalism is inconsistent with Brown, we might think there are compelling grounds for originalism anyway: So much the worse for Brown! 1. Harrison: Man is not the measure of all things, and neither is Brown 2. One mans reduction is another mans deduction vii. Congress requires the result in Brown in Title VI of CRA64, so the answer to what would the world look like without Brown? is probably pretty much like the actual world 1. Brown was effectively nullified in almost all of the South before Title VI in any event-only when money was on the line did the South make some changes 2. Gerald Rosenberg argues that the Court really didnt add much to the civil-rights movement viii. Why do we adopt one theory of interpretation over another, anyway? 1. Fits with the Framers theories of constitutional interpretation? a. Ex. Madison in 1824: I entirely concur in the propriety of resorting to the sense in which the Constitution was accepted and ratified by the nation. In that sense alone it is the legitimate Constitution i. But non-originalists who think Madisons views arent binding about the meaning of the Constitution presumably dont mind disagreeing with him about interpretation, surely 2. Fits with contemporary legal culture on constitutional interpretation? a. But non-originalists who think that we should go back to the original meaning of the Constitution (i.e., sometimes abandoning contemporary legal culture on particular disputes about meaning) presumably dont mind abandoning contemporary legal culture on the nature of interpretation 3. Theory produces good consequences?

a. Seems possible that weve got a Constitution that produces bad consequences, at least some of the time 4. Implicitly embedded in the Constitution itself? 5. The reduction ad non-Brownum argument seems to take 2 or 3 as the standards g. Reactions to Brown i. Southern Manifesto 1. Judicial Restraint - Courts holding amounted to legislating and encroached on Congresss powers and states rights 2. Adherence to Precedent Plessy has been followed in many other cases and the Supreme court unanimously declared in Lum v. Rice that the separate but equal principle does not conflict with the 14th amendment and was to be left to the states discretion 3. Fidelity to Original Understanding - 14th Amendment does not mention education 4. Respect of Structural Principles of Federalism - Decision of whether to retain segregation in public schools should be left to the states 5. Example of constitutional interpretation outside the courts ii. J. Warren wanted to write an opinion that was short, readable, nonrhetorical, unemotional, and non-accusatory iii. Opinion was criticized for rejecting history and custom and basing its decision on primacy of general welfare h. Bolling v. Sharpe (1954) i. FACTS: Segregation of public schools in D.C. ii. ISSUE: Does segregation of public schools violate the 5th Amendments Due Process Clause? iii. ANALYSIS: 1. 5th amendment, which applies to the federal government, does not contain an equal protection clause like the 14th amendment, which applies only to states 2. Court construes the term liberty broadly to include more than bodily restraint a. Liberty under law extends to the full range of conduct that a person is free to do and can only be restricted by proper government objective b. Segregation has no government objective and acts as an arbitrary deprivation of liberty and violation of the Due Process Clause 3. Since segregation of schools by the states is prohibited by the 14th amendment, it is unthinkable that a lesser duty be imposed on the federal government under the 5th Amendment iv. HOLDING: Supreme Court unanimously held that segregation of public schools in D.C. was unconstitutional under the Due Process Clause of the 5th Amendment

1. Court effectively holds that there is an equal protection component to the 5th Amendment 2. If the Due Process Clause under the 5th Amendment has an equal protection component then why does the 14th Amendment specifically spell out the EP clause? a. 5A bans racial discrimination, Court says: discrimination may be so unjustifiable as to be violative of due process i. Pretty implausible, Green thinks: in 1791, Congress engaged in all sorts of racial discrimination, ex. Against non-white aliens, and no one suggested a 5A problem 1. Only white aliens could become citizens until 1870, when Congress allows naturalization of Africans, but retains antiAsian ban (subject to increasing exceptions) until 1952 2. Green argues that this history is also a good reason to use P/I, not EPC, as the basis for the 14A anti-race discrimination norm: EPC applies to aliens, and there was lots of uncontroversial racial discrimination against aliens, as opposed to citizens 3. Says allowing segregation in D.C. while striking it down by states would be unthinkable 4. Long history of assuming feds cant discriminate a. Gibson v. MS (1896), pure dicta from Harlan, a month before Plessy: i. The Constitution of the U.S., in its present form, forbids, so far as civil and political rights are concerned, discrimination by the general government or by the states against any citizen b/c of his race. All citizens are equal before the law 5. Where could we go besides the 5A? a. Citizenship declaration of 14A, which isnt limited to the states? i. Harlans Civil Rights Cases dissent thinks citizenship declaration implies freedom from racial discrimination ii. But thats a stretch-the issue there was what Congress could do to enforce citizenship, not what Congress had to do b. Constitutional adverse possession? i. Weve had it so long, and federal government hasnt claimed to be free from the burdens of EPC doctrine, that government has effectively abandoned the power to violate the norms of the EPC

1. Ex. In Bolling, the feds urged the Court to strike down D.C. segregation i. Original Meaning i. Originalism asks what the words used in the Constitution generally meant at the time they became law ii. Is Brown consistent with the original meaning of the words of the 14th Amendment? 1. Originalism does not prevent judges from reading fairly abstract concepts like privileges and immunities and equal protection of law to reflect contemporary sentiments 2. Some argue the terms PI and EP were intentionally vague and the issue of segregation was left open for future judicial construction. Thus, the result in Brown is a permissible construction of the words of the 14th Amendment iii. Strict originalism where the original understanding of a word used in the Constitution is known, it constitutes the legal meaning of the text and trumps precedent, structure, postenactment history, and consequences iv. Multimodalism judges should consult evidence of original understanding, but evidence is not controlling and must be weighed against other forms of constitutional argument (i.e. results in a living constitution) j. Brown II i. How did the court remedy the harm in Brown? 1. Schools had primary responsibility for implementing Brown I, but the courts were given supervisory authority over progress and would determine if action of schools constituted a good faith implementation of governing constitutional principles of Brown I 2. Courts were to be guided by equitable principles in their implementation of the decree in Brown, which allowed for practical flexibility in shaping remedies to accommodate unforeseen difficulties 3. Courts recognized that full implementation would take time, but required the schools make a prompt and reasonable start at implementation 4. Courts would also consider the adequacy of plans the schools proposed to effectuate implementation of Brown a. 3 Court Approved Desegregation Plans i. pupil assignments ii. assignment based on residence (i.e. consolidating dual attendance zones into unitary zones) iii. freedom of choice 1. most popular scheme, but did little to end school segregation b/c people were unwilling to exercise their freedom of choice 2. each child had the option of attending a formerly white or formerly black school

5. What was the rule in Brown? a. Discrimination based on race violates the Equal Protection clause of the Constitution. b. What is the rule in Brown trying to achieve? i. Non-racial admissions policies in schools? ii. Non-racial schools? (i.e. looking at the makeup of the students after implementation of Brown) iii. Elimination of the vestiges of discrimination? c. The goal of Brown was to transition from dual to unitary schools, but the rule that would accomplish the transition had to be worked out through case law 6. Legislature Responds a. Civil Rights Act of 1964 i. Authorized the attorney general to intervene in school desegregation suits ii. Prohibited discrimination in programs receiving federal funding 7. Green v. New Kent County School Board a. Case involved de jure segregation in a small school district b. Court evaluates the remedy employed by the district to determine whether it complies with the goal in Brown c. Court held that county could not employ freedom of choice when the effect was to perpetuate segregation i. Goal of Brown II was to effectuate a transition to a unitary, nonracial system of public education ii. Court DOES NOT hold that freedom of choice is unconstitutional iii. Freedom of choice will be upheld provided it is effective in desegregating schools iv. Freedom of choice is only a means to a constitutionally required endthe abolition of the system of segregation and its effects 1. What effects? a. Psychological b. Economic c. Social v. Is Green a logical extension of Brown? 1. Yes, racially identifiable schools perpetuate racial subordination of blacks and prevent equality 2. No, Brown deals only with assignment of students based on race. If schools become racially identified because of demographic shifts and other private choices then the Constitution is not offended 8. Swan v. Charlotte Board of Education

a. Case deals with the courts discretion in fashioning school desegregation remedies i. Court approves broad equitable discretion for the federal district courts in creating school desegregation remedies ii. Judicial intervention is only appropriate when local officials fail to take action to desegregate b. 4 Remedial Features in Desegregation Plans i. limited use of racial goals in remedial orders ii. acknowledged that some one-race schools was not necessarily indicative of the practice of segregation iii. once constitutional violation was shown, the court possessed the power to order pupil reassignments on the basis of race iv. approved the use of busing as a judicial remedy c. Limits of judicial intervention i. Once a district has fully implemented Brown, it is not required to make year-by-year assessments of racial composition ii. This does not mean that court cannot intervene if future problems arise following implementation, but it may only intervene following a showing of State action amounting to racial discrimination 9. Keyes v. Denver School District a. Denver school system had never been segregated by mandate of state law, but there were patterns of racial grouping in the school system b. Can the federal courts still order a school desegregation remedy even when there was no de jure segregation? YES c. While there was not de jure segregation in the particular district, there was in surrounding districts; therefore, the school district bears the burden of proving that segregation was not the product of de jure discrimination 10. De Facto v. De Jure Segregation a. De Facto segregation resulting from residential segregation and societal discrimination i. Northern segregation was often the result of de facto segregation b. De Jure segregation imposed by state law (i.e. product of intentional state action) c. Difference between de facto and de jure is the purpose or intent to segregate 11. Green, Swan, Keyes a. Green represented active participation by federal courts in the implementation of Brown

b. Green is significant b/c it interprets the goal in Brown: abolition of segregation and its effects i. This goal implies active court participation in Browns implementation c. Green held that freedom of choice isnt per se unconstitutional provided that it is effective in achieving the goal of a unitary school system d. In Swan, the court approved a variety of remedial measures and limited court intervention (i.e. once affirmative duty to desegregate is accomplished, courts are not required to intervene if demographic and economic shifts cause racial composition to get out of whack) e. Swan and Green both dealt with de jure discrimination, but in Keyes there was no de jure discrimination yet the court was still permitted to order a remedy 12. Milliken v. Bradley a. Case represents a shift from active judicial intervention to less active b. Predominately black urban area and white suburbs resulted in resegregation c. District court ordered busing even though they had found no evidence that the suburban districts had violated the constitution d. First time that the S.C. overturned a district courts desegregation decree for going too far (i.e. inter-district remedy was inappropriate absent inter-district violation) e. Marshall dissents suggesting that state action might have contributed to white flight to suburbs (i.e. purposeful acts of segregation caused a ripple effect on residential patterns); therefore, could should be permitted to intervene i. View appears to give the courts broad power to create and implement desegregation remedies 13. OKC v. Dowell a. Court upholds the dissolution of a segregation remedy b. What is the limit on a courts power to intervene and order remedies for past discrimination? i. Once a district has remedied past discrimination, courts regulatory control ends ii. Dissent argues that federal regulation should continue as long as conditions likely to inflict stigmatic injury remain iii. Difference between these two views deals with where the justice thinks the injury stems from 1. (i) thinks injury comes from the law 2. (ii) thinks the injury comes from the areas outside of the law

14. Missouri v. Jenkins a. Court strikes down a district courts remedial order that aimed to attract white students to predominately black schools through capital improvements and magnet programs b. Mere fact that a school is black does not mean it is a product of segregation; must prove that segregation resulted from intentional state action c. Difference between de jure and de facto segregation is purpose or intent to segregate d. The harm identified in Brown was tied to purely de jure segregation, not racial isolation or de facto segregation e. Courts in Brown did not need to rely on psychological studies to announce to fundamental truth that the government cannot discriminate against citizens based on race k. Desegregation in Institutions of Higher Education i. United States v. Fordice 1. FACTS: MS maintains 5 white and 3 black universities in its public university system. 2. ISSUE: Has the state met its affirmative duty to dismantle its prior dual university system? 3. ANALYSIS: a. Court distinguishes state university system from primary and secondary schools b/c a students decision to seek higher education is a matter of choice b. While students are free to choose which university to attend, their choices are influenced/limited by numerous factors i. Admission standards ii. Academic admissions/funding 4. DISPOSITION: Court remanded the case to determine whether retention of all 8 institutions effects student choice and perpetuates segregation l. Suspect Classification Doctrine i. Supreme Court case law requires strict scrutiny of government policies based on race ii. Brown did not declare racial classification as suspect, instead it addressed the harmful psychological consequences of school segregation iii. Courts extended Brown beyond the context of education (i.e. public transportation and recreation facilities) iv. Anti-miscegenation Statutes

XXXI. Loving v. Virginia

a. FACTS: VA state law makes interracial marriage a felony punishable by prison time.

b. ISSUE: Does a state statute preventing marriage solely on the basis of racial classifications violate the EP and DP clauses of the 14th Amendment? c. ANALYSIS: i. VA Arguments 1. 10th Amendment - regulation of marriage should be left exclusively to the State 2. 14th Amendment statute does not violate the 14th amendment because it applies equally to whites and blacks (i.e. members of each race are punished to the same degree) ii. Courts Arguments 1. Purpose of the 14th Amendment is to eliminate all state sources of racial discrimination 2. Strict Scrutiny a. Statutes that include racial classifications are subject to strict scrutiny standard of review b. Racial classifications must be shown to be necessary for the accomplishment of some permissible state objective to be upheld c. Court is concerned with the importance of the state objective i. In this case the objective of the state statute is promoting White Supremacy which the court rejects as a worthy objective d. Bulls Eye Analogy & Strict Scrutiny i. Bulls Eye objective of racial classification law ii. Arrows Means of achieving objective iii. In Loving the objective was White Supremacy; therefore the entire bulls eye violated the 14th Amendment iv. Generally, the state objective is permissible but the means of achieving the objective are unconstitutional (i.e. the law is not a good fit for the objective)

e. Pre-New Deal EPC doctrine was essentially that all arbitrary classifications were banned i. Done case by case, though cases like Strauder in 1880 say that stigma-imposing racial discrimination is usually unconstitutional f. Cases like Carolene Products in 1938 say, in general were not going to try to tell if classifications are arbitrary; well just ask if theres a rational basis and protect discrete and insular racial and religious minorities g. Korematsu in 1944 says that raciallybased internment of JapaneseAmericans is constitutional, but that all legal restrictions which curtail the civil rights of a single racial group are immediately suspect i. Difficult questions of how much to defer to military on questions of necessity-turns out that the general who ordered the internment had essentially no basis for it, and it was just racial paranoia, but it was hard for the Court to know that h. Loving in 1967: If racial classifications are ever to be upheld, they must be shown to be necessary to the accomplishment of some permissible state objective, independent of the racial discrimination which it was the object of the 14A to eliminate i. Nice, clear acknowledgement that white supremacy was the point of the law: pretty cleanly repudiates Plessys thats just because you put that construction on it nonsense

i.

j.

k. l.

ii. Context is explaining why Virginias interest wasnt enough to justify the racial classification iii. Short ditty at the end about marriage as a fundamental right-picked up some in the SDP cases later, and gaymarriage-as-constitutionalright proponents lean heavily on this Summary of equal-protection doctrine in a nutshell i. Strict scrutiny for racial classifications gets refined in later cases to necessary to promote compelling state interest test ii. 2 moving parts to the scrutiny tests: How important an interest is required? For strict scrutiny, compelling; for intermediate, important; for rational basis, legitimate; and How close a fit is required? (i.e., not too overinclusive or underinclusive) For strict scrutiny, very close: necessary (narrowly tailored); for intermediate, pretty close: substantially related; for rational basis, rationally related (Williamson v. Lee Optical) What gets strict scrutiny? Race, national origin i. Also the standard under SDP for fundamental rights What gets intermediate scrutiny? i. Sex, illegitimacy, alienage What gets rational-basis scrutiny? i. Everything else-age, wealth, disability, homosexuality, being a hippie

ii. Sometimes these get struck down: Department of Agriculture v. Moreno strikes down discrimination against hippies, Cleburne strikes down discrimination against mentally retarded, Romer strikes down discrimination against gays m. Some people who think all this tiersof-scrutiny stuff is malarkey i. Justice Stevens concurrences in Craig v. Boren, a sex discrimination case, and Cleburn: We should have just one standard, and decide whether the harms of a classification are worth the interests it promotes; Sliding scale approach, not so different from the preCarolene Products method (the worry is that this will lead the way to Lochnerizing) ii. Paulsen-Medium Rare Scrutiny 3. EP Clause a. Restricting rights of citizens on account of race violates EP Clause 4. DP Clause a. Marriage is a basic civil right b. Statute deprives of liberty without due process of law (substantive due process) d. HOLDING: VA statute banning interracial marriage violates the 14th Amendment and is unconstitutional. Law is invidious even though it is applied equally and is motivated by White Supremacy. e. Anti-Subordination v. Anti-Classification i. Anti-classification prohibits certain kinds of classification ii. Anti-subordination prohibits government action that helps sustain or reinforce unjust forms of social hierarchy iii. Court in Loving objected to the VA statute on both grounds

v. Race, national origin, and reasonableness

XXXII. Korematsu v. United States

a. Primary case cited in Loving b. FACTS: Following the attack on Pearl Harbor, Japanese citizens on the West Coast were removed to concentration camps. argues that order violated his right to Due Process under the 5th Amendment. c. ISSUE: Is the order to concentrations camps invalid under the 5th Amendment? d. ANALYSIS: i. All legal restrictions that curtail the civil rights of a single racial group are immediately subject to strict scrutiny by the court 1. This does not mean that all such restrictions are unconstitutional 2. Public necessity may justify existence of such restrictions ii. was not excluded from the military zone because of hostility to him or his race. He was excluded b/c U.S. was at war with Japan and the military feared a West Coast invasion e. HOLDING: Courts upholds military order of wartime concentration camps as constitutional. f. DISSENT: i. The judicial test of whether the government can deprive an individual of constitutional rights is reasonableness (i.e. is deprivation reasonably related to an immediate public danger) ii. Order is obvious racial discrimination that deprives individuals affected of EP under the 5th Amendment (court again reads an EP component into 5th Amendment) vi. Preferential Treatment for Racial Minorities 1. Court now had to consider whether racial classification designed to benefit minorities were constitutional (i.e. how do you evaluate them under the EP clause?) 2. Court continues to apply strict scrutiny standard of review even to remedial provisions 3. Analysis of Racial Classifications a. Strict scrutiny standard of review i. High skepticism by the court ii. Applies even to race-conscious classification designed to further remedial goals b. Compelling Government Interest i. Remedy a specifically identified discrimination, but not the effects of societal discrimination

c. Has the government chosen a means narrowly tailored to achieve a compelling interest? i. Looks at the relationship between the means chosen and the end goal ii. Court requires a close fit between the means employed to achieve the govt interest (i.e. law needs to come close to hitting the target)

XXXIII. Regents of the UC v. Bakke (1978)

d. FACTS: UC Davis Medical School set aside 16 seats out of 100 for economically disadvantaged and minorities. Bakke, a white male whose application was denied, argued that the policy violated the EP clause of the 14th Amendment. e. ISSUE: Is the special admissions program unconstitutional? f. ANALYSIS: i. Opinion raises three issues that would be important in later affirmative action cases: 1. What was the appropriate level of scrutiny? 2. What constituted a sufficiently compelling interest to justify affirmative action? 3. How could states prove that they had met the appropriate standard of scrutiny? ii. Level of Scrutiny Strict scrutiny iii. Compelling Interest 1. Must redress specific instances of racial discrimination 2. Remedying the effects of societal discrimination is not a compelling interest iv. Meeting the strict scrutiny standard 1. Compelling state interest a. Attainment of a diverse student body is a constitutionally permissible goal (i.e compelling interest) for an institution of higher education b. However, racial quotas were not appropriate means to achieve that goal 2. Narrowly tailored plan a. Harvard plus factor method to achieve educational diversity is narrowly tailored b/c it treats each applicant as an individual and does not result in unequal treatment

b. Davis plan specifically excludes certain applicants from a % of seats no matter their qualifications v. Useful to separate out three separate interests at stake: 1. Being fair to applicants 2. Having better educational experience during professional school 3. Fostering equality in graduates a. For 1, Powell says we can only have affirmative action if its a remedy for past identified discrimination b. For 2, Powell rejects balancing, but allows diversity; he likes the vague Harvard plan and rejects the rigid Davis one c. For 3, Powell rejects, because evidence not good enough that the program increases the number of doctors in minority communities vi. What counts as a remedial program? 1. There really isnt a huge distance theoretically b/t the 2 dissents on either side of Powells opinion a. Marshall, Blackmun, Brennan, and White say the Davis program is constitutional b/c its a class-based remedy for several hundred years of class-based discrimination b. Later cases striking down programs, like Croson, say race can be taken into consideration to remedy prior discrimination c. The main issue is how broadly or narrowly to construe what counts as remedial i. Scalia: only when were giving a remedy to the actual documented victims of discrimination by the same actor ii. OConnor and Powell: when linked to identified discrimination iii. Even in Grutter, OConnor says she hopes itll be gone in

25 years-overciming the history of discrimination in a broadly remedial way is what makes diversity compelling iv. Marshall: remedy for long history of discrimination vii. Does it make sense to allow vaguer plans? 1. Green isnt sure it does 2. Lets say a race-blind policy would produce X% minority admissions, and the university thinks thats too low a. Powell says we cant establish a minimum Y% and set it aside for minority applicants, but we can say we want more than X%-maybe it will be Y%, maybe it will be Y+2$, maybe it will by Y-2% 3. Any particular quota would be unconstitutional, but I cant see why the sort of system Powell approves would be any better than just saying that well pick a minimum quota randomly 4. Powell doesnt give Bakke a right against affirmative action in general, but a constitutional right that affirmative action programs be imprecise or murky-hard to see why wed think that right exists g. HOLDING: Affirmative action plan violated the 14th Amendment. i. No majority opinion ii. Admissions program in Bakke is unconstitutional iii. Race can still play some role in admissions, but not in the form employed in Bakke 4. Affirmative action: general take a. Certainly has costs, ex. you were an affirmative-action admit can be a pretty stinging insult, but the existence of the program makes that possible i. OConnor in Croson, Classifications based on race carry a danger of stigmatic harm. Unless they are strictly reserved for remedial settings, they may in fact promote notions of racial inferiority and lead to a politics of racial hostility ii. Powell in Bakke, Preferential programs may only reinforce common stereotypes holding that certain groups are unable to achieve success without

special protection based on a factor having no relationship to individual worth 1. People mainly get into law school b/c of their LSAT and GPA, but race is part of the reason too iii. Going race-blind has big costs too 1. Huge legacy of discrimination will make it much more difficult for African-American community to catch up 2. Never forget, we had a riot here in 1962 to prevent blacks from attending the school 3. Who is here will have a big symbolic effect, and discussions of the law will be very different (in a bad way) with only a few black people here iv. So, Im torn-there is a compelling rationale, but an obvious cost which is pretty close analogous to the central harm of the 14A antidiscrimination requirement

XXXIV. City of Richmond v. J.A. Croson Co. (1989)

b. FACTS: City of Richmond adopts a remedial program which required contractors who were awarded city construction contracts to subcontract at least 30% of the dollar amount of the contract to Minority Business Enterprises (MBEs). c. ISSUE: Is the remedial program unconstitutional? d. ANALYSIS: i. States have the power to remedy discrimination, but they must first specifically identify prior discrimination 1. Remedial provisions responding to identified discrimination is a compelling interest 2. An amorphous claim of past discrimination in the industry is not a compelling interest ii. Strict scrutiny standard of review should be applied to remedial provisions 1. Must serve compelling governmental interest a. Court is doubtful whether Richmond plan serves a compelling governmental interest and isnt simply racial politics or racial balancing 2. Must be narrowly tailored to that interest iii. Race-neutral solutions

1. Court considers race-neutral solutions when it evaluates whether the means are narrowly tailored 2. Race neutral solutions are constitutional means not subject to strict scrutiny standard of review 3. Courts are more friendly towards remedial provisions following a showing that race neutral devices were ineffective in remedying past discrimination iv. Richmond plan fails the strict scrutiny analysis 1. Failed to demonstrate compelling state interest in apportioning contracting opportunities on the basis of race (i.e. failed to specifically identify past discrimination) 2. Not narrowly tailored to remedy prior discrimination a. City did not consider race neutral means to increase minority business participation b. Quota system cannot be tailored to any goal other than racial balancing e. HOLDING: Because the city failed to identify a compelling state interest for remedial action in the awarding its public construction contracts, its treatment of its citizens on a racial basis violates the EP clause of the 14th Amendment. i. Court strikes down 30% set-aside for minorityowned construction business; strict scrutiny applies to all racial classifications, no matter what ii. 3 importantly differences from Bakke 1. Enacted by a local black majority, so maybe a bit suspect a. However, still allowed by Virginia law, and if the state-wide white majority didnt like it, they could bar local race preferences 2. No diversity educational rationale, since construction contractors dont all get together to talk about construction 3. Not obvious that minority ownership of construction businesses will make a big difference in opening employment opportunities to the construction trade, now that we have Title VII limits on employment discrimination

iii. Lots of dispute about how closely remedial program has to be 1. Worth remembering that this is the former capital of the Confederacy, but does that justify remedial race preferences forever? iv. Not quite clear how the dissent would work with strict-scrutiny doctrine: is it saying that if we know its remedial, then strict scrutiny doesnt apply at all, or is it saying that b/c its remedial, set-aside survives strict scrutiny? 1. The point of levels of scrutiny is that we decide what level to apply up front, but the is-it-properly-remedial question is complicated f. DISSENT: i. J. Marshall believes that race classifications designed to promote remedial goals should be subject to a relaxed standard of review, which gave deference to decisions of state legislative bodies ii. Marshalls dissent says apply lesser scrutiny once we know that the purpose is remedial, but thats considerably different from saying the harm of the classification is outweighed (i.e. that strict scrutiny is satisfied); rather, a more complicated inquiry is needed before we even get to the question of which tier of scrutiny were in 1. The awkwardness of this dissent is related to Grutter 5. Wygant v. Jackson Board of Education a. School districts affirmative action plan that would layoff non-minority teachers first to preserve current minority percentages fails under strict scrutiny i. Compelling state interest 1. Alleviating the effects of societal discrimination rejected as a compelling interest) ii. Narrowly tailored means 1. Layoff provision is not an appropriate means to achieve a compelling interest b/c it imposes a burden on innocent parties iii. Role Model Theory 1. Court rejects as a compelling state interest 6. Affirmative Action and Originalism a. Lots of folks point to the Freedmans Bureau and other racially-based benefits for freedmen given by Congress as evidence that the 14A doesnt bar affirmative action

b. Presumably, these could be defended as remedy for slavery i. Might be able to glean something from history about what counts as remedial, but the rationales werent always perfectly clear ii. It requires a lot of digging to figure out exactly what c. Some Democratic opponents of some legislation make arguments that the freedmen are being unduly favored i. Looking at the details of any Republican response might give a sense of what they thought was permissibly remedial d. Strauder explicitly considers a discrimination-againstwhites hypo and says it would obviously violate 14A

XXXV. Grutter v. Bollinger

e. Demonstrates how the court applies strict scrutiny in higher education admission policies f. FACTS: White MI resident who is denied admission to Michigan Law argues that the schools admission policy violates the 14 Amendment. Michigan argues that by enrolling a critical mass (meaningful representation) of underrepresented minority students they are promoting diversity. g. ISSUE: Is the affirmative action plan at Michigan Law unconstitutional? h. ANALYSIS: i. Bakke rejected the following as compelling interests: 1. Reducing deficit of underrepresented minorities in professional schools a. quota plans amount to racialbalancing plans that aim to remedy societal discrimination, and the 2. Remedying societal discrimination a. Such measures place the burden on innocent parties who had no responsibility for the harm the beneficiaries of special programs suffered b. Must specifically identify past discrimination 3. Increasing the number of minority physicians in underserved areas a. Even if this was a compelling interest the quota program was not shown to promote that goal b/c there was no guarantee that minority students would serve in those areas

ii. Bakke approved the use of race to promote attainment of diverse student body as a compelling interest iii. Court applies strict scrutiny standard of review 1. Classifications based on race are constitutional only if they are narrowly tailored to further compelling governmental interests iv. Rationale for Strict Scrutiny 1. 14th Amendment protects persons not groups, so classification based on groups must be strictly scrutinized to make sure that the individual right to EP has not been infringed 2. Strict scrutiny framework suggests that all racial classifications are harmful, and the only question is whether theres a big enough benefit in exchange for the harm (compelling state interest v. harm from classification) v. Attaining a diverse student body is a compelling interest in higher education 1. Law schools are training grounds for nations leaders 2. Law schools cant be isolated from the individuals with which the law interacts 3. Contributes to a robust exchange of ideas vi. Attributes of Narrow Tailored Plans 1. Cannot use a quota system but can shoot for a flexible range (i.e. some attention to numbers does not prevent a plan from being narrowly tailored) 2. Must ensure individual assessment 3. May consider race as a plus factor but it cannot be decisive 4. Good faith consideration of raceneutral alternatives a. Does not require exhaustion of every race-neutral alternative 5. Termination date a. Court predicts that in 25 years the use of racial preferences will no longer be necessary to further diversity interests i. HOLDING: Law school has a compelling interest in attaining a diverse student body and admissions plan is

narrowly tailored. Therefore, the plan satisfies the strict scrutiny and is constitutional. i. To be constitutional compelling interest in a diverse student body must be achieved through a system of individual assessment ii. Despite insisting that it is applying strict scrutiny, the court gives deference to the universitys definition of its educational objective j. DISSENT: Thomas says its hard to see running a public law school as a compelling state interest since lots of states get along fine without one i. If this is right, promoting diversity in a public law school cant count ii. Proponents of affirmative action would say that the policy in Grutter is one of the times that racial classifications are themselves helpful, not that the harm is outweighed by some other good iii. If the tiers-of-scrutiny framework were abandoned and we returned to the old general arbitrariness standard, Thomas argument would make sense 1. The issue wouldnt be whether there is enough benefit to outweigh the cost of a racial classification, but whether, in certain circumstances, racial classifications are improperly arbitrary and hence pernicious

XXXVI. Gratz v. Bollinger

iv. Court strikes down UM undergrad admissions policy of awarding 20 points to minority applicants v. Court held that the automatic distribution of 20 points had the effect of making race a determinative factor unlike an individual assessment used by the law school vi. DISSENT: Green thinks Souters dissent makes a powerful point: is avoiding stigmatic injury a reason to be vague? 1. BUT leaving things uncertain makes a for all I know, youre only here because of affirmative action insult plausible, which is pretty bad too 7. Compelling State Interest a. Since Bakke the only compelling state interest recognized by the court for race-conscious affirmative action in admission is diversity b. Non-Compelling State Interests i. Remedying past societal discrimination

ii. Promoting distributive justice among competing groups in the present iii. Providing role models c. Non-compelling does not necessarily mean illegitimate i. remedying societal discrimination is a legitimate goal, but not a compelling interest ii. promoting White Supremacy through inter-racial marriage statutes is an illegitimate goal and a noncompelling interest 8. Summary: Important to distinguish between purpose of affirmative action and imposition of a stigma a. Should we sharply distinguish laws whose entire purpose is to impose a stigma (ex. Segregation laws) from laws that may impose a stigma as a side-effect, or as a collateral damage? i. Thomas doesnt think we can make those distinctions, but distinction b/t purpose and side effect (i.e. b/t things done b/c of an effect, and things done in spite of an effect) is well-established in EPC law, criminal law, etc 1. Need discriminatory purpose! 2. Washington v. Davis (1976) and Arlington Heights v. Metro Housing (1977): inadvertent disparate impact on minorities (from police-officer examination or from strict zoning) not enough to invalidate action: need discriminatory purpose ii. Is there a stigma from being an in-state or a legacy admit to Ole Miss? 1. Maybe, but thats not the point of those preferences, and the possible stigmatic injury to black students from affirmative action isnt the point of those policies either

XXXVII. Parents Involved (2007)

Mandatory integration of public schools not allowed outside a remedy for past mandatory segregation Main distinction from the from the higher education cases is that theres no competitive admission to get into schools at all; issue is just assignment Theres no issue of accommodating history of discrimination on behalf of some applicants, but also no issue of imposing stigma about worthiness to be in school i.e., part of the motivation for the plan is gone, but also some of the costthe issue is purely whether the educational benefits of diversity are worth the cost in imposing racial labels & doing things like busing as a result

Lots and lots of stuff about implementing Brown & overcoming resistance to it that we didnt cover knowing that context would make Parents Involved a lot clearer

4-1-4, with Kennedy in the middle, striking down the plans Roberts has ode to race-blindness: [T]he way to achieve a system of determining admission to the public schools on a nonracial basis, Brown II, is to stop assigning students on a racial basis. The way to stop discrimination on the basis of race is to stop discriminating on the basis of race. (p. 136) Kennedy says as long as racial labels are avoided, racial motivation is OK (e.g., putting school near the boundary of a mainly-white neighborhood and a mainly-black one): If school authorities are concerned that the student-body compositions of certain schools interfere with the objective of offering an equal educational opportunity to all of their students, they are free to devise race-conscious measures to address the problem in a general way and without treating each student in different fashion solely on the basis of a systematic, individual typing by race. (p. 148) Executive and legislative branches, which for generations now have considered these types of policies and procedures, should be permitted to employ them with candor and with confidence that a constitutional violation does not occur whenever a decisionmaker considers the impact a given approach might have on students of different races. Assigning to each student a personal designation according to a crude system of individual racial classifications is quite a different matter; and the legal analysis changes accordingly. (p. 149)

II.

Sex Equality Are you a man or are you a woman? a. The previous section considered how the court interpreted the EP clause in regards to race, but the EP clause is not restricted to questions of race discrimination b. The line of cases shows how the S.C. applies the EP clause to questions of sex equality c. Sex-based state action is subject to intermediate, not strict scrutiny d. Intermediate Scrutiny i. Requires an important state interest ii. Law must be substantially related to that interest e. Rationale for applying a different level of scrutiny to sex-based classifications i. Sex-based classifications raise different questions than race-based classifications (e.g. womens and mens bathrooms vs. black and white water fountains) f. Bradwell v. Illinois i. claimed that state law denying women the right to practice law violated the 14th Amendment ii. Recall from Slaughterhouse that privileges and immunities clause was read narrowly and was not utilized as a basis for argument for 14th Amendment protection iii. During this era, the courts refused to uphold the assertion that the 14th Amendment was broad enough to emancipate women iv. Under Lochner states could regulate womens employment in ways barred for men v. Court viewed state actions that discriminated between the sexes as rationally reflecting the social roles or separate spheres occupied by men and women g. Goesaert v. Cleary

i. Court sustained a state statute forbidding a woman to work as a bartender unless she was the wife or daughter of the male owner ii. Court applied the rational basis level of scrutiny iii. Court held that the 14th Amendment does not require legislatures to reflect shifting social standards (i.e. 14th Amendment was not meant to uproot traditional societal views of men and women) th h. 19 Amendments Effect on the Court i. In Minor v. Happersett the court rejected the claim that the 14th Amendment guaranteed women the right to vote 1. Court acknowledged that women were citizens of the U.S., but that the right to vote was not a privilege or immunity of U.S. citizenship 2. Civil Rights Bill of 1866 a. Bill protected the civil rights of blacks but not political rights (i.e. suffrage) ii. The 19th Amendment prohibited states from limiting suffrage on the grounds of sex iii. Ratification of the 19th Amendment influenced the courts interpretation of the 14th Amendment 1. Prior to ratification, the court used gender-differentiated framework for enforcing liberty of K under the 14th Amendment (e.g. states could regulate womens employment in ways barred under Lochner for men) 2. After the ratification of the 19th Amendment, the court retreated from the gender-differentiated framework in determining whether labor legislation violated liberty of K under the 14th Amendment i. Reed v. Reed i. Does sex-based discrimination violate the EP clause of the 14th Amendment? 1. Modern basis for courts interpretation of sex equality cases ii. State law that preferred men over women as estate administrators iii. Court applied only a minimum rationality/rational basis standard 1. Lowest level of scrutiny; most deferential form of review 2. Requires only a legitimate state interest 3. Law must only be rationally related iv. Court used the EP clause to strike down a statute on the grounds that it discriminated against women & was an arbitrary distinction 1. This is evidence that the court is actually using something more than minimum rationality because most laws are upheld under minimum rationality level of scrutiny j. Race-Sex Analogy i. Basis for making sex equality claims under the 14th amendment by demonstrating how sex discrimination resembled race discrimination which the court had already invalidated under the EP clause

XXXVIII. Frontiero v. Richardson

ii. FACTS: Female lieutenant seeks housing and medical benefits for her husband under federal statute. Statute required females to demonstrate spouses dependency but not males. argues that the statute violates the 5th Amendment by discriminating based on sex. 1. Recall that the 5th Amendment does not have an equal protection clause; however, it does prohibit discrimination so unjustifiable that it violates due process iii. ISSUE: Is the federal statute that gives preference to servicemen unconstitutional? iv. ANALYSIS: 1. Standard of review a. Government Interest i. argues administrative convenience, but court strikes this down as a compelling governmental interest ii. court argues that the sex classification is arbitrary and bears no rational relationship to a legitimate govt interest (i.e. fails rational-basis standard) b. Court departs from rational-basis analysis c. Factors considered by the court when selecting the level of scrutiny i. History of discrimination against women ii. Political powerlessness (i.e. court makes up for lack of power by requiring that the law satisfy a higher standard) iii. Immutable characteristics d. Recall Caroline Products Co. i. NOTE 4: Exception to Judicial Presumption of Constitutionality court will subject legislation to a higher level of scrutiny when legislation discriminates against a discrete, insular minority e. Court holds that classifications based on sex, like those based on race, are subject to strict scrutiny 2. Non-Judicial Precedent a. Title VII of the Civil Rights Act expressly prohibits discrimination based on race, color, religion, sex, or national origin b. Court gives deference to the fact that Congress included sex as a basis for invidious classification v. HOLDING: Statute violates the due process clause of the 5th Amendment.
Does it make sense to have sex-discrimination cases under 14A if 19A was needed to abolish sex discrimination in voting? Recall that Adkins in 1923 took 19A as an encouragement: if theres no good reason to have sex discrimination in voting, theres also no good reason to have sex discrimination in labor regulation The arbitrariness of a particular classification in a particular piece of legislation might depend on what else is going onif lots of other things change, whether a classification is arbitrary might change

E.g., Bradwell in 1873 says its OK to keep women from being lawyers because married women cant enter contracts without their husbands consent If the latter rule was changed, maybe states then need to let women be lawyers too Also, its not obvious that the 19A was needed to give women the votemaybe its redundant with an antiarbitrariness reading of the 14A, but 19A needed to be added because 14A was wrongly interpreted Carolene Products says we generally defer to majorities, unless they are picking on a discrete and insular minority But in the case of sex discrimination and affirmative action, thats not happeningwomen are a slight majority of voters, and the majority isnt picking on people like Alan Bakke or Barbara Grutter or Jennifer Gratz Is judicial review limited to correcting identified problems with the majoritarian political processes, as Carolene Products says? Maybe not: might think judicial power means power to enforce the Constitution, not just power to enforce Constitution when there is an identified problem with majoritarian political processes As an issue of constitutional design, not obvious that we need judicial review in these sorts of cases, but thats different from what sort of Constitution we have

XXXIX. United States v. VA (VMI Case)

vi. FACTS: A female student seeking admission to VMI alleged that VMIs policy of admitting only women violated the EP Clause of the 14th Amendment. vii. ISSUE: Does VMIs admission policy that excludes women violate the EP Clause of the 14th Amendment? (i.e. are single-sex institutions unconstitutional) 1. Can you have separate but equal educational facilities for men and women? 2. Separate but equal educational facilities are prohibited for blacks and whites (race-sex analogy) viii. ANALYSIS: 1. Court of appeals asked the state to choose among three options a. Establish parallel program for women b. Admit women c. Become a private institution 2. State chose to establish a parallel program for women a. State must prove that its remedial proposal directly addresses the violation of EP b. Court holds that parallel program offered by VMI does not offer women a similar experience and is not equal i. Womens program did not have course offerings, facilities, faculty or other intangibles offered by VMI ii. Court points to Sweatt v. Painter where the court emphasized that intangible qualities such as prestige and an influential alumni network were not present in the law school designed for blacks 3. Parties who seek to defend gender-based government action must demonstrate an exceedingly persuasive justification a. States justifications

i. Single-sex education provides important benefits ii. Option of single-sex educations contributes to diversity in education iii. Schools adversative approach would have to be modified to admit women b. Benign justifications will not be accepted automatically under the standard c. Justifications must actually motivate the sex-based classification law 4. Intermediate Scrutiny a. Challenged classification must serve important government objectives i. Interest has to be genuine and be what actually motivated the law ii. Under rational basis there only has to be a legitimate interest and it can be hypothetical b. Discriminatory means employed must be substantially related to the achievement of those objectives i. Does not require a perfect fit between the classification and the state interest c. Heightened level of scrutiny does not necessarily forbid sex classifications i. Sex classifications cannot be used to perpetuate legal, social, or economic inferiority of women ii. Intermediate scrutiny framework will invalidate some forms of sex-based discrimination but not others ix. HOLDING: Neither the goal of producing citizen-soldiers nor VMIs implementing methodology is inherently unsuitable to women. VMI failed to show an exceedingly persuasive justification for excluding women. x. DISSENT: 1. Women are not member of a discrete and insular minority unable to employ the political process ordinarily relied upon that the heightened scrutiny from Caroline Products Co. was designed to protect xi. Judicial Interpretation of the 14th Amendment 1. What did the Framers of the 14th Amendment intend equal protection to encompass? 2. Scalias Dissent a. Constitution should be interpreted in the context of national traditions that embody the peoples understanding of the text (originalism) b. Equal does not prohibit gender discrimination in certain context

c. The people should decide whether to change a tradition through their state legislature 3. Majority a. Constitution should be interpreted in a way that allows it to respond to changing times and various crises of human affairs b. Courts function is to determine what equal protection means in modern times -Seems clear that there are real differences between men & women, which might sometimes justify distinctions between them, but which might also just be used to impose second-class citizenship on women k. Differences in body type, learning styles, aggressiveness, &c. may justify separate education i. Virginia acknowledges that its OK to acknowledge fundamental differences between men & women: 1. Supposed inherent differences are no longer accepted as a ground for race or national origin classifications. Physical differences between men and women, however, are enduring: [T]he two sexes are not fungible; a community made up exclusively of one [sex] is different from a community composed of both. Inherent differences between men and women, we have come to appreciate, remain cause for celebration, but not for denigration of the members of either sex or for artificial constraints on an individual's opportunity. -Very hard to say when a classification paying attention to sex is oppressive and when its taking legitimate account of physical differences l. Whats a pedestal and whats a cage? m. Basic doctrine is that an exceedingly persuasive justification is required, but its hard to say exactly what would count Some easy cases on either side: n. Banning women from practicing law pretty clearly imposes second-class citizenship (Bradwell in 1873) o. Separate restrooms for men & women pretty clearly dont, though some might disagree Most of the cases fall in between, though p. In Virginia, there does seem to be some distinctive value to a male-only militarypreparation culture, but also a cost if thats not something women are allowed to take part in i. West Point allows womenfactor both ways: 1. If women can go there, why do they need to go to VMI? a. A little disturbingly similar to the line given to James Meredith pre-1962you can go to school out of state 2. Heavens havent fallen in response to it a. But men-only education might still be distinctively valuableVMIs not saying that its approach is the only

one appropriate for military training, just that its one of the ways thats OK q. In MUW, there is some value in female-only education in terms of the discussions that are possible, but also a cost if the exclusion of men fosters stereotypes about womens work r. All-women Feminist Legal Theory class? Allows certain sorts of conversations, but without men, something important is left out too

XL. Mississippi University for Women v. Hogan

i. Case suggested for the first time that there might be a constitutional problem with single-sex educational institutions ii. Does a state statute that excludes males from enrolling in a state-supported professional nursing school violate the EP clause of the 14th Amendment? iii. State must prove that there is an exceedingly persuasive justification for classification based on gender iv. Exceedingly persuasive justification is met when: 1. Classification serves an important state interest 2. Discriminatory means employed are substantially related v. States gender-based classification fails under intermediate scrutiny

XLI. Griswold v. Connecticut (1965)

Facts: Griswold () and an associate were convicted as accessories to the crime of using contraceptives in violation of a Connecticut (P) statute prohibiting all such use. The conviction was upheld in state courts. appeals. Issue: Does a constitutional right of privacy exist that prohibits states from making it a crime for married couples to use contraceptives? Holding: Yes. Conviction reversed. -The specific guarantees in the Bill of Rights have penumbras, or peripheral rights, that make the specific rights more secure. A right of privacy has been noted in earlier cases, and ought especially to protect the marriage relationship. -The statute is overbroad and thus void Concurrence (Goldberg, Warren, Brennan): The Ninth Amendment expressly recognized fundamental personal rights not specifically mentioned in the United States Constitution. Privacy in the marital relation is clearly one of these basic personal rights retained by the people. Concurrence (Harlan): The Due Process Clause independently requires rejection of the Connecticut statute without reference to the Bill of Rights. Concurrence (White): Application of the law to married couples deprives them of liberty without due process of law. Dissent (Black, Stewart): While the law is offensive, it is not prohibited by any specific constitutional provision and therefore must be upheld. Constitutional amendments, not judgemade alterations, are the correct means of modernizing the Constitution. Dissent (Stewart, Black): The law is silly since it is obviously unenforceable, but there is no general right of privacy found in the Constitution, so we cannot hold that it violates the Constitution. Comment: More recently, the Court has simply held that the right of personal privacy is implicit in the concept of liberty within the protection of the Fourteenth Amendment Due Process

Clause i.e. it is one of those basic human rights that are of fundamental importance in our society. -3 Arguments to support decision: (1) Constitutional Purpose: penumbralism; purpose analysis: to protect privacy (2) Tradition: Connecticut had not traditionally enforced the statute (3) Policy: what is sensible for a state to do? What rights do people actually have? (2) and (3) are the big ones i. Modern Era of Substantive Due Process 1. Griswold v. Connecticut a. FACTS: State statute forbids use of birth-control. b. ISSUE: Does the statute violate the Due Process Clause of the 14th Amendment? c. ANALYSIS: i. Precedent 1. Court refuses to apply Lochner stating that the court was not a super-legislature whose job it was to determine the appropriateness of laws that touch economic conditions or social affairs a. In the Lochner era the courts applied substantive due process to economic and social welfare legislation 2. Court distinguishes the law in the case from the laws struck down in Lochner b/c it operated on the intimate relation of husband and wife 3. Court has held that several fundamental rights not mentioned in the constitution are protected 4. Meyer v. Nebraska state law prohibited teaching of foreign language; right to teach and right of parents to engage a teacher to instruct 5. Pierce v. Society of Sisters right to educate ones child as one chooses 6. NAACP v. Alabama cant force organization to give up membership lists; right to associate ii. Cases suggest that the Bill of Rights also have penumbras or surrounding areas of substantive rights 1. liberty protected by the 5th & 14th Amendments is not limited to the rights

specifically mentioned in the 1-8 Amendments 2. How big is the protected liberty cannot be restricted by laws that are arbitrary 3. Why do we need to protect penumbras? Rights that are expressly guaranteed arent useful without them iii. Textual Argument right to privacy is created by several fundamental constitutional guarantees 1. 1st Amendment Right to associate 2. 3rd Amendment Prohibition against quartering of soldiers implies right to privacy 3. 4th Amendment Prohibition against unlawful search & seizure implies right to privacy 4. 5th Amendment protects against selfincrimination; govt cannot for a person to surrender his zone of privacy to his detriment 5. 9th Amendment enumerated rights in the Constitution should not be construed to deny or disparage rights retained by the people iv. Standard of Review Strict Scrutiny 1. An encroachment on personal liberty will not prevail unless a. Compelling state interest b. Narrowly tailored law i. law cannot be unnecessarily broad ii. law cannot be arbitrary and capricious d. HOLDING: State statute forbidding the use of contraceptives is unconstitutional because the means sweep unnecessarily broadly and invade a zone of privacy i. Court recognized procreative rights of married people
-Three basic arguments for the conclusion: purpose, tradition, policy d. Douglas for the Court: Purpose analysis, penumbras formed by emanations (p. 1344) i. The basic rationale for 1A freedom of association, 3A freedom from soldier-quartering, 4A freedom from unreasonable searches, 5A freedom from compelled self-incrimination is privacy ii. Recall the sample midterm: we abstract from the text to the purpose, and then apply it to other things toopretty loosey-goosey stuff e. Harlan, recapitulating his Poe dissent from 1961: tradition! i. Failure to enforce the law for a long time, plus fact that Connecticuts law is the only one of its kind, suggest pretty strong tradition in favor of letting people use contraceptives

ii. Cf. Meyer (1923) (right to teach German): those privileges long recognized by common law as essential to the orderly pursuit of happiness by free men 1. Meyer is hip-deep in Lochner, which makes people like Black and Scalia not like it 2. Cf. Pierce (1925), right to send kids to private school f. Whites concurrence: this law doesnt make any sense, since there are so many ways to get contraceptives i. Cf. Stewarts dissent: this law is uncommonly silly, but its still constitutional Goldberg doesnt think the 9A applies against the states, and doesnt even think it supplies a rationale for striking down federal laws on its own g. I do not mean to imply that the Ninth Amendment is applied against the States by the Fourteenth. Nor do I mean to state that the Ninth Amendment constitutes an independent source of rights protected from infringement by either the States or the Federal Government. Rather, the Ninth Amendment shows a belief of the Constitution's authors that fundamental rights exist that are not expressly enumerated in the first eight amendments and an intent that the list of rights included there not be deemed exhaustive. (p. 1345) Really just a reply to Justice Blacks nothing-but-incorporation view in dissent: the fact that the B/R was not originally meant as a comprehensive charter of the important liberties of citizens suggests that the 14A, in protecting basic liberties, isnt limited to incorporation h. Works better as an interpretation of P/I than as an interpretation of SDP, though Very similar to what Senator John Sherman (R-OH) said in response to Senator Allen Thurman (DOH) in 1872: i. Thurman, 42-2 Congressional Globe app. 26: i. Every right, every privilege, every immunity that belongs to a man as a citizen of the United States is found in the Constitution. If not, where are we to find them? ii. [T]he rights of the citizen, as such, are found in the Constitution. j. Sherman (of Sherman Antitrust Act fame), Globe 844: i. [T]he ordinary rights of citizenship, which no law has ever attempted to define exactly, the privileges, immunities, and rights (because I do not distinguish between them, and cannot do it) of citizens of the United States, such as are recognized by the common law, such as are ingrafted in the great charters of England, some of them ingrafted in the Constitution of the United States, some of them in the constitutions of the different States, and some of them in the Declaration of Independence, our fathers did not attempt to enumerate. They expressly said in the ninth amendment that they would not attempt to enumerate these rights As a Republican sympathetic with the 14A itself, Shermans a much better source for original meaning of the 14A, so Im inclined to think Goldberg wins over Black on the limited is the 14A just incorporation issue, though we should switch from SDP to P/I

XLII. Roe v. Wade (1973)

Roe v. Wade (1973) Facts: Roe (P), unmarried and pregnant, sought declaratory and injunctive relief against Wade (), a county district attorney, to prevent enforcement of Texas criminal abortion statutes. The district court invalidated the statutes. Issue: May a state constitutionally make it a crime to procure an abortion except to save the mothers life? Holding: No. Judgment affirmed. -P claims constitutional right to terminate her pregnancy, based on the Fourteenth Amendment concept of personal liberty, the Bill of Rights penumbras, and the Ninth Amendment. claims a state interest in regulating medical procedures to insure patient safety in protecting prenatal life.

-The right of privacy generally relates to marriage, procreation, and contraception and includes the abortion decision, but is not without restraint based on the states compelling interests. The states interest in prenatal life cannot be based on the fetuss right to live, for a fetus cannot be considered a person in the constitutional sense. Unborn children have never been recognized in any area of the law as persons in the whole sense. However, the pregnant woman cannot be isolated in her privacy. The state may decide that at some point in time another interest, that of the health of the mother or that of potential human life, becomes significantly involved. The womans right of privacy must be measured accordingly. -The states interest in the health of the mother becomes compelling at approximately the end of the first trimester, prior to which mortality in abortion is less than mortality in normal childbirth. Only from this point forward may the state regulate the abortion procedure as needed to preserve and protect maternal health. -The states interest in potential life becomes compelling at viability. A State interested in protecting fetal life after viability may proscribe abortion except when necessary to preserve the life or health of the mother. -The Texas statute here is overbroad and cannot be upheld Concurrence (Douglas): The present statute has struck the balance between the womans and the states interest wholly in favor of the latter. It is overbroad. Concurrence (Stewart): The Court has generally recognized freedom of personal choice in matters of marriage and family life as a liberty protected by the Fourteenth Amendment. The Texas statute directly infringes on that right and is correctly invalidated. Dissent (Rehnquist): An abortion is not private in the ordinary use of this word. The court seems to define privacy as a claim of liberty from unwanted state regulation of consensual transactions, protected by the Fourteenth Amendment. But that liberty is not guaranteed absolutely against deprivation, only against deprivation without due process of law. The traditional test is whether the law has a rational relation to a valid state objective, but this test could not justify the Courts outcome. Instead, the court adopts the compelling state interest test, which is more appropriate to a legislative judgment than to a judicial one. The Courts conclusions are more like judicial legislation than determination of the intent of the drafters of the Fourteenth Amendment. Further, the fact that most states have had restrictions on abortion for over a century indicated that the asserted right to an abortion is not so universally accepted as P claims. Dissent (White, Rehnquist): There is nothing in the language or history of the Constitution to support the Courts judgment. The Court apparently values the convenience of the pregnant mother more than the continued existence and development of the life or potential life that she carries. The issue should be left with the people and to the political processes the people have devised to govern their affairs. 1. Roe v. Wade a. FACTS: TX abortion laws prohibited abortions except to save the mothers life. b. ISSUE: Is the state abortion law constitutional? i. Does it violate the Due Process clause of the 14th Amendment or ii. Does it violate the right to privacy protected by the Bill of Rights and its penumbras c. ANALYSIS:

i. Historical Survey 1. Hippocratic Oath prohibits giving abortions 2. Common Law a. Abortion after quickening was a crime b. quickening first recognizable movement of the fetus, alive, primitive form of evidence 3. English Statutory Law a. Early statutes imposed lighter penalties for abortions before quickening b. Later statutes dropped the distinction c. 1960s Act permitted abortions only when there were risks to a womans physical and mental health i. Massive liberalization of abortion statutes but still less permissive than Roe 4. American Law a. Early 19th century common law b. Mid-19th century distinctions between quick fetus disappeared and penalties increased c. 1950s most jurisdictions banned abortion unless performed to preserve the life of the mother d. 1970s some liberalization in abortion laws 5. Conclusion women enjoyed substantially broader rights to terminate pregnancy in the 19th century than they do today ii. Standard of Review 1. Abortion standard of review is its own standard (resembles strict scrutiny) a. Racial/Gender Classification Cases classification triggers strict scrutiny b. Abortion interests dont become compelling and standard isnt triggered until a point in time specified by trimester framework 2. Regulations limiting fundamental rights a. Compelling state interest b. Law must be narrowly tailored

iii. Compelling State Interests 1. Protect womens health from risks inherent in abortion procedures after 1st trimester 2. Protect prenatal life and potential life at viability (3rd trimester) iv. Right to Privacy 1. Not explicitly mentioned in the Constitution 2. Supported by a long line of S.C. decisions a. Loving marriage b. Skinner procreation c. Eisenstadt contraception d. Pierce/Meyers child rearing & procreation 3. Liberty in 14th Amendments DP Clause is broad enough to encompass a womans right to an abortion 4. Womans Compelling Interests a. Physical & mental health taxed by childcare b. Social stigma of unwed mothers 5. Right is not absolute and may limited by a compelling state interest (i.e. womens health (1st and 2nd Trimester) & potential life (3rd trimester)) v. Is a fetus a person within the context of the 14th Amendment? 1. Court holds that person applies only postnatally 2. Textual Argument a. 14th Amendment i. citizens are defined as persons born or naturalized in the U.S. 3. Historical Argument a. legal abortion practices were far freer in the 19th century (when amendment was ratified) supports that person did not include unborn vi. How does pro-life Roe look? 1. Abortion has always been a crime 2. A fetus is a person under the 14th Amendment and abortion takes away their life without due process of law 3. Pro-choice holding cuts off potential life interest of the fetus

4. Advancement of medical technology gives us better evidence of life than quickening vii. Roe Rule 1. Trimester 1 & 2 states interest is limited to protecting the womans health a. 1st state can require a physician approve and perform the abortion b. 2nd interest becomes protecting womens health c. 3rd interest becomes protecting human life and restrictions on the right to abort may be imposed st 2. 1 trimester is distinguished from later trimesters because it is an established medical fact that until the end of the 1st trimester morality in abortion may be less than morality in normal childbirth 3. The problem with the Roe holding is that it was keyed to medical technology which is always evolving a. Means that the time periods may narrow as medical technology improves b. Moves forward the point at which state may regulate for reasons of maternal health (i.e. later trimester abortions become safer) c. Moves back the point of viability at which state may proscribe abortions except when necessary to save mother d. HOLDING: State abortion law that only allows an abortion to save the mothers life, without regard to pregnancy stage and without recognition of other interests involved violates the Due Process Clause of the 14th Amendment. i. Fetuses are not persons within the meaning of the 14th Amendment 1. If fetuses were people abortion would deny life without due process and deprive fetus of EP under the law in violation of 14th Amendment ii. States do not have a compelling state interest in the protection of potential life from the moment of conception, only after the point of viability

1. Viability point where fetus is capable of life outside of the womb e. DISSENT: We Dont Know Roe i. Right to abortion was not known to the drafters of the 14th Amendment (i.e. many state laws limited abortion) ii. Trimester framework is legislative in character and gives states too little discretion to design their own regulations 2. Doe v. Bolton a. Court strikes down various procedural provisions of an abortion statute i. All abortions must be performed in hospital invalid ii. Special hospital accreditation requirements invalid iii. Permission of hospital staff committees & independent examinations by two physicians invalid (not required of other medical procedures) iv. Limited abortions of state residents invalid (to hold otherwise would mean state could deny other medical procedures to non-residents) 3. Decisions After Roe a. Court reviews other state regulations i. State funding & use of state facilities states have no duty to fund abortions (even though they fund childbirth) and hospitals had no duty to allow their facilities to be used for abortions
-First trimester, no regulation of abortion at all -Second trimester, only regulation directly in favor of womans health -Third trimester, regulations must have a health exception, and thats construed broadly enough to strike down even the more liberal abortion lawsif a single physician thinks abortion is necessary to protect psychological health, its unconstitutional to restrict it Blackmun stresses the fact that the common law only prohibited abortion after quickeningthis distinction wasnt changed until the 19C One problem with this argument: our knowledge of embryology was really primitive for a very long timemammalian ovum only observed in 1827, and we only had good enough microscopes to look at the process of fertilization by the 1870s or so Harlan says tradition is a living thing, and surely the law has to be allowed to respond to developments in our understanding of things like embryology Another problem: the 19C changes that happened were actually before the 14A, so the traditionbased argument would have to be that the 14A in 1866-68 required states to abandon changes to the common law that had been made earlier in the 19C in favor of earlier tradition Hard to imagine this claim in favor of, e.g., husbands who were upset at reforms to coverture laws that said the woman didnt own her own property the 14A might conceivably be a command to party like its 1868, but it isnt a command to party like its 1820, surely Is there a contemporary, emergent tradition in favor of Roes rule?

Surely not: about 2/3 of the states prohibited abortion except for life of mother, like Texass law struck down in Roe, and the others except NY had laws like Georgias law struck down in Doe v. Bolton, the companion case Were overturning 49 states laws in favor of a newly-emergent tradition makes no sense Two basic categories of policy argument regarding abortion Personhood questions Michael Tooley, Mary Anne Warren: fetus doesnt have enough higher-order mental functioning to count as a person Response would be to talk about sleeping or comatose people who also dont think: Can the Tooley people give an explanation for why sleeping people are persons, but not fetuses? Can the pro-lifer give explanation why conception marks the ethically-critical point? Even-assuming-personhood questions, e.g, Thomsons violinist argument: woman has right to refuse to aid fetus and defend her bodily integrity, akin to self-defense Burglar is a person with a right to life, but still allowed to use force against him, even deadly force May use deadly force to defend against rape: McDonagh, Breaking the Abortion Deadlock, stresses this in her recapitulation of Thomsons argument To resolve, wed have to talk about whether protection of the womans bodily integrity would be sufficiently analogous either to the sorts of situations where deadly force is allowed, or to situations where its not No awareness of Thomson-style even-assuming-personhood arguments at all: If this suggestion of personhood is established, the appellants case, of course, collapses, for the fetus right to life is then guaranteed specifically by the [14A]. (p. 1393) Footnote on p. 1393 makes same basic mistake, not thinking of obvious self-defense reasons for abortion where mothers life at stake No need to resolve the personhood issue itself: We need not resolve the difficult question of when life begins. When those trained in the respective disciplines of medicine, philosophy, and theology are unable to arrive at any consensus, the judiciary, at this point in the development of man's knowledge, is not in a position to speculate as to the answer. (p. 1393) Pretty strong argument in the note at p. 1403: if the Court doesnt know the answer, but Texas thinks it does, why not let them protect what it takes to be unborn human life? Could imagine a coherent opinion where the Court adopts either Tooleys view on personhood, or Thomsons view on defense of bodily integrity, but the actual opinion just doesnt make sense E.g., Regan, Rewriting Roe v. Wade (1979), adopts Thomsons argument with a sex-equality twist Roe also rejects a constitutional duty to protect the fetus, which Texas said it had Opinion slides over the state-action requirementthe state wouldnt be depriving the fetus of life, so DP clause wouldnt apply directly DeShaney (1989): state has no duty to protect people from violence Blackmun dissents (Poor Joshua!) For more, see my paper here at 299-301 Some of these arguments seem pretty silly: provision about who can be president couldnt apply to fetuses, of course The census argument about 14A section 2 has some bite, maybe: practice has been to count newborns, but not fetuses, even though the requirement is to count all persons However, we let corporations be 14A persons despite not getting counted in the census Justice Scalia told 60 minutes he likes this argument

XLVIII. Planned Parenthood of Southeastern Pennsylvania v. Casey (1992)

Facts: Pennsylvania adopted the Abortion Control Act, which required (i) that a woman seeking an abortion must be given certain information at least 24 hours before the abortion; (ii) that the woman give informed consent prior to the abortion; (iii) that, if a minor, the woman obtain the informed consent of her parents unless a judicial bypass option is followed; (iv) that, if married,

the woman certify she informed her husband; and that (v) facilities providing abortion services must make certain reports about each abortion, including the womans age, gestational age, type of abortion procedure, medical conditions and results, and the weight of the aborted fetus. Compliance with the requirements is not required in certain medical emergencies. Planned Parenthood of Southeastern Pennsylvania (P) challenged the act on its face by suing Casey (), the governor of Pennsylvania. The district court held all the provisions unconstitutional, but the court of appeals upheld everything except the husband notification requirement. The Supreme Court granted cert. Issue: May a state impose notification and consent requirements as prerequisites for obtaining an abortion? Holding: Yes. Judgment reversed in part. -The three parts of the essential Roe holding are reaffirmed. These are (i) the womans right to have an abortion before viability without undue state interference; (ii) the states power to restrict abortions after fetal viability, so long as there are exceptions to protect a womans life or health; and (iii) the states legitimate interests from the outset of the pregnancy in protecting the health of the woman and the life of the fetus that may become a child. -Substantive due process claims require courts to exercise reasoned judgment, and the Court must define the liberty of all, not mandate a moral code. The Constitution has been interpreted to protect personal decisions regarding marriage, procreation, and contraception. Defining ones own concept of existence, meaning, and the mystery of human life is at the heart of liberty. At the same time, abortion has consequences for persons other than the woman who is pregnant. -Roe should be upheld under the principle of stare decisis because it has not proven unworkable, because people have relied on the availability of abortion, because under Roe women have been better able to participate equally in the economic and social life of the country, because no evolution of legal principle has left Roes doctrinal footings weaker than they were in 1973 when the decision was announced, and because there have been no changed circumstances or new factual understandings. Even if Roe is wrong, the error involves only the strength of the state interest in fetal protection, not the liberty of women. Overruling Roe simply because of a change in philosophical disposition would undermine the Courts legitimacy. -Although Roe has been criticized for drawing lines, the Court must draw specific rules from the general standards in the Constitution. The trimester approach was not part of the essential holding in Roe and it both misconceived the nature of the pregnant womans interest and undervalued the states interest in potential life. It is therefore overrules and replaced with a line drawn only at viability. Under this approach, a law that serves a valid purpose not designed to strike at the right of abortion itself may be sustained even if it makes it more difficult or more expensive to obtain an abortion, unless the law imposes an undue burden on a womans ability to make an abortion decision. Thus, the state may further its interest in potential life but cannot place a substantial obstacle in the path of a womans choice. -The state may adopt health regulations to promote the health or safety of a woman seeking an abortion. It may not prohibit any woman from making the ultimate decision to terminate her pregnancy before viability. After viability, the state may promote its interest in the potentiality of human life by regulating and even proscribing abortion except where it is necessary to preserve the life or health of the mother. -With regard to the specific provisions of this act, the definition of medical emergency does not impose an undue burden on a womans abortion right. The informed consent requirement is also permissible because it furthers the legitimate purpose of reducing the risk that a woman may

elect an abortion, only to discover later, with devastating psychological consequences, that her decision was not fully informed. The 24-hour waiting period does not impose substantial obstacles, and it is not unreasonable to conclude that important decisions will be more informed and deliberate if they follow some period of reflection. The exception for cases in which a physician reasonably believes that furnishing the information would have a severely adverse effect on the womans physical or mental health accommodates the interest in allowing physicians to exercise their medical judgment. -The spousal notification requirement does impose an undue burden on a womans right to undergo an abortion and cannot be sustained. In well-functioning marriages, the spouses discuss important intimate decisions such as whether to bear a child, and the notification requirement adds nothing in such situations. However, millions of women are the victims of physical and psychological abuse from their husbands, and requiring spousal notification in these situations can be tantamount to preventing the woman from getting an abortion. The husbands interest in the life of the child his wife is carrying does not permit the state to empower him with a veto over the abortion decision. Men do not have the kind of dominion over their wives that parents have over their children. -The parental consent provision has been sustained before, and provided there is an adequate judicial bypass procedure, it is constitutionally reaffirmed. -The recordkeeping and reporting requirements are also permissible, with the exception of whether the souse was notified of the abortion. Concurrence and dissent (Stevens): The Court properly follows the principle that a developing organism that is not yet a person does not have a right to life. The states interest in protecting potential life is not grounded in the Constitution, but reflects humanitarian and pragmatic concerns, including the offense taken by a large segment of the population at the number of abortions performed in this country and third-trimester abortions specifically. But the womans interest in liberty is constitutional; the Constitution would be violated as much by a requirement that all women undergo abortion as by an absolute ban on abortions. The 24-hour delay requirement should not be upheld because it presumes that the abortion decision is wrong and must be reconsidered. The state may properly require physicians to inform women of the nature and risks of the abortion procedure and the medical risks of carrying to term, but it should not be allowed to require that all women be provided with materials designed to persuade her to choose not to undergo the abortion. Concurrence and dissent (Blackmun): The Courts decision preserves the liberty of women that is one vote away from being extinguished. The Court also leaves open the possibility that the regulations it now approves may in the future be shown to impose an unconstitutional burden. Concurrence and dissent (Rehnquist, White, Scalia, Thomas): Roe was wrongly decided, and it can and should be overruled consistently with the traditional approach to stare decisis in constitutional cases. Stare decisis is not a reason to retain Roe; the Courts legitimacy is enhanced by faithful interpretation of the Constitution. The Courts revised undue burden standard is an unjustified constitutional compromise that allows the Court to closely scrutinize all types of abortion regulations despite the lack of any constitutional authority to do so. The new undue burden approach is still an imposition on the states by the Court of a complex abortion code. Abortion involves the purposeful termination of potential life and is thus different in kind from the other areas of privacy recognized by the Court, including marriage, procreation, and contraception. Prohibitions on abortion have been part of the law of many of the states since before the Fourteenth Amendment was adopted; there is no deeply rooted tradition of

unrestricted abortion in our history that justifies characterizing the right as fundamental. A womans interest in having an abortion is a form of liberty protected by the Due Process Clause, but states may regulate abortion procedures in ways rationally related the a legitimate state interest. The act should be upheld in its entirety. Concurrence and dissent (Scalia, Rehnquist, White, Thomas): The states may permit abortion-on-demand, but the Constitution does not require them to do so. It is a legislative decision. The issue is not whether the right to an abortion is an absolute liberty, or whether it is an important liberty to many women, but whether it is a liberty protected by the Constitution. It is not because the Constitution says nothing about it and because longstanding traditions of American society have permitted it to be prohibited. Under the rational basis test, the statute should be upheld. Instead, the court perpetuates the premise of Roe, which is a value judgment, not a legal matter. The undue burden standard lacks meaningful content, and may be summed up by concluding that a state may regulate abortion only in such a way as to not reduce evating it to the national level where it is much more difficult to resolve than it was at the state level. Political compromise is now impossible, and Roe has been a major factor is selecting justices to the Court. The Court should not be concerned with predicting public perceptions but should do what is legally right by asking whether Roe was correctly decided and whether it has succeeded in producing a settled body of law. The answer to both questions is no, and Roe should therefore be overruled. The Courts reliance on judgments instead of interpreting text has created political pressure directed to the Court, whereby various groups of people demonstrate to protest that the court has not implemented the respective groups values. a. FACTS: State statute regulating abortion contains the following provisions ii. Informed Consent 1. 24-hour waiting period iii. Parental Consent w/ Judicial Bypass iv. Spousal Notification v. Mandatory Reporting Requirements b. ANALYSIS: vi. Court rejects the Roe trimester framework 1. Undervalues the states interest in the protection of potential life 2. Under Casey state has an interest in protecting potential life throughout the pregnancy not just after 3rd trimester 3. Based on changing medical technology (i.e. standard is not built to last) vii. Court changes the standard of review 1. Undue Burden state regulation has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of non-viable fetus 2. Not strict scrutiny b/c court is no longer looking for a compelling state interest and a law narrowly tailored to achieve that interest

3. Allows for greater leeway in abortion regulations 4. Court does not explain from whose standpoint undue burden is considered (i.e. one person, majority, etc.) viii. Regulations 1. Informed Consent a. Not an undue burden b. Must be truthful and not misleading c. Hypo Forcing woman to look at 3-D sonogram of fetus i. How successful is this measure at making a woman change her mind? ii. Unlike informative brochures this measure actually forces the mother to take in the information 2. 24-Hour Waiting Period a. Not an undue burden b. Significant data indicating waiting period is an undue burden (e.g. travel, harassment by protestors, financial constraints, explanation of whereabouts) c. Decisions will be more informed and deliberate if there is a waiting period 3. Spousal Notification a. Undue burden b. Would result in increased domestic violence 4. Parental Consent a. Not an undue burden b. One-parent consent c. Judicial bypass provision 5. Recordkeeping & Reporting a. Not an undue burden ix. When is a regulation an undue burden 1. When it is likely to prevent a significant number of women from obtaining an abortion c. HOLDING: x. Adopts undue burden standard xi. Rejects trimester framework xii. Reaffirms Roe holding womans right to an abortion

xiii. Retains viability as the point after which a state may prohibit abortions except in cases where they are necessary to protect the life of the mother
-First part briefly gives a new argument for Roe itselfwell talk about this today, alongside Glucksberg & Lawrence -Second, longer part gives stare decisis argument for keeping Roe, even if it was wrongly decided k. Adds a bit of sex discrimination to the argument: The ability of women to participate equally in the economic and social life of the nation has been facilitated by their ability to control their reproductive lives. (p. 1428) i. Given Geduldig, hard to see how we could make a straight sex-dicrimination argument for the result in Roe, but still has some intuitive appeal -The idea behind adverse possession is to let sleeping dogs lie: if people dont complain about a trespass for some number of years, we should say they cant complain anymore l. But, as the court notes, Roe has generated a lot of controversy and criticism m. If the adverse possession model is a good one, vocal outrage in response to a decision is a counterindication to a finding of adverse possessionjust like vocal outrage in response to a trespass n. Cf. John Roberts at his confirmation hearing, asked about Casey by Arlen Specter: i. In other cases, Payne v. Tennessee, for example, the court has focused on extensive disagreement as a grounds in favor of reconsideration. In Casey, the court looked at the disagreement as a factor in favor of reaffirming the decision. So its a factor that is played different ways in different precedents of the court. 1. Could easily imagine this line of thought: well ovrerrule Casey, because its approach to the relevance of disagreement is exactly backward -Certainly the passage of time means that theres some reliance interest, but its hard to see how we can say for sure that it surpasses the possible interest the state might have in protecting fetuses, unless we either o. (a) implicitly decide, Tooley-style, that fetuses arent worth protecting, or p. (b) implicitly decide that the womans rights (plus Roe-induced reliance interests) trump the fetuss, Thomson-style -Court says that its understanding of facts changed between Plessy and Brown, and between Lochner and West Coast Hotel (p. 1430) q. Given the failure of the Court to address straightforwardly either sort of policy argument over abortion, it would be easy to write an opinion saying that now that the Court has had a chance to consider those issues, it has a different conclusion -Some people (Gary Lawson, Michael Paulsen) would object on Marburian grounds to ever retaining incorrect precedent r. They say we should always enforce the actual Constitution, rather than an unconstitutional precedent, for the same reason we should enforce the Constitution, rather than an unconstitutional statute s. ***Our evaluation of the arguments in Marbury will be relevant here Also has a bit of discussion of the burden of pregnancy on women, which might be seen as the implicit adoption of a Thomson-style argument: a. [T]he liberty of the woman is at stake in a sense unique to the human condition, and so, unique to the law. The mother who carries a child to full term is subject to anxieties, to physical constraints, to pain that only she must bear. That these sacrifices have from the beginning of the human race been endured by woman with a pride that ennobles her in the eyes of others and gives to the infant a bond of love cannot alone be grounds for the State to insist she make the sacrifice. Her suffering is too intimate and personal for the State to insist, without more, upon its own vision of the womans role, however dominant that vision has been in the course of our history and our culture. The destiny of the woman must be shaped to a large extent on her own conception of her spiritual imperatives and her place in society. (p. 1426) b. Too much hedging hereto a large extent, without more, cannot alone be groundsto be quite sure how seriously this is to be taken Casey: not just traditions existing in 1868

VI.

VII.

a.

It is also tempting, for the same reason, to suppose that the Due Process Clause protects only those practices, defined at the most specific level, that were protected against government interference by other rules of law when the Fourteenth Amendment was ratified. See Michael H. v. Gerald D., 491 U.S. 110, 127-128, n. 6 (1989) (opinion of Scalia, J.). But such a view would be inconsistent with our law. i. Michael H. (1989), footnote 6: Scalia & Rehnquist say must take tradition at the most specific level available; not clear from the footnote that traditions are limited to 1868, but thats Caseys gloss on what it rejects 1. Scalia in dissent disavows Caseys reading of Michael H. (p. 1451)

XLIV. Lawrence v. Texas (2003)

Facts: Police officers responding to a reported weapons disturbance entered an apartment where Lawrence resided. The officers found Lawrence and another man (s) engaging in a sexual act. s were arrested and convicted of deviate sexual intercourse with a member of the same sex. s claimed that the statute was unconstitutional under the Equal Protection Clause of the Fourteenth Amendment. The Texas state courts upheld the statute. The Supreme Court granted cert. Issue: May a state criminalize private and consensual sexual activity between two adults of the same sex? Holding: No. Judgment reversed.
Lawrence: history is beginning, but not end, of inquiry Quoting Kennedys gloss on Glucksberg in Sacramento (1998) What does this mean? Appears in the context of a discussion of contemporary attitudes, so maybe the idea is that we might have new traditions tooso we look at Coke and Blackstone and Kent and all the old guys, but also the MPC and state patterns of prosecution Not a crazy desuetude argument for the result in Lawrencelaws like this hardly enforced at all, so reasonable argument that there is a newly-emergent tradition of the criminal law letting adults have consensual, private, non-commercial sex when they want cf. argument of Harlans Poe v. Ullman dissent Cf. the P/I slide from long ago Lawrence relies a bit at p. 1487 and p. 1489 on Dudgeon v. UK (1981), but without telling us much about it Theyre applying this language from Article 8 of the ECs Convention for the Protection of Human Rights and Fundamental Freedoms: Everyone has the right to respect for his private and family life, his home and his correspondence. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others. Some people get all hot and bothered about this sort of stuff, but not me As I see it, theres not much harm in citing foreign opinions, or law review articles, or cases under state constitutions, but the relevance is limited to the extent the text is similar, or the reasoning is useful

XLV. Washington v. Glucksberg (1997)

Facts: Washington () enacted a statute the prohibited assisting suicide. Glucksberg and other physicians (Ps) occasionally treated terminally ill, suffering patients and would assist these patients in ending their lives if not for s ban on assisted suicide. Ps brought suit seeking a declaration that the statute violates the 14th A, because Ps patients have a liberty interest in a personal choice to commit physician-assisted suicide. The district court held the statute unconstitutional. The court of appeals initially reversed, but after an en banc hearing, affirmed the district court. The Supreme court granted cert.

Issue: Is there a constitutional right to assistance in committing suicide? Holding: No. Judgment reversed. -tradition -has been reexamined and reaffirmed -extension of constitutional protection to an asserted right or liberty interest is only appropriate for those areas that are rooted in the nations history and tradition, and even then only when there is a careful description of the asserted fundamental liberty -s ban is rationally related to legitimate government interests the preservation of human life, the integrity and ethics of the medical profession, and protecting vulnerable groups
Mystery of human life passage: These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State. (p. 1426) Glucksberg seems to repudiate in 1997, albeit in two passages edited out of the book, at top and bottom of p. 1581: After first sentence summarizing Souters take on Poe, Court has a footnote explaining why Casey didnt abandon tradition-based approach: True, the Court relied on Justice Harlans dissent in Casey but we did not in so doing jettison our established approach. Indeed, to read such a radical move into the Courts opinion in Casey would seem to fly in the face of that opinion's emphasis on stare decisis. Court quotes the mystery of human life passage and says thats just a general summary of the holdings of several cases, not a description of methodits contained in the [In reaffirming Roe] bit at the bottom of p. 1581 Lawrence deploys in 2003, though, at p. 1488 So, status now unclear (also unclear quite what this is supposed to mean) Cruzan assumes at p. 1570 that there is an SDP right to refuse treatment, because all states recognize it and have recognized it for a long time Putting tubes in me without my consent = battery, some states say Glucksberg at p. 1581: Key distinction between suicide i.e., directly attempting to produce death and withdrawal of treatment i.e., producing death as a genuinely-regretted side effect (akin to collateral damage) Vacco, same day as Glucksberg, pp. 1587-88: [T]he law distinguishes actions taken because of a given end from actions taken in spite of their unintended but foreseen consequences. Dealing with EPC challenge to the rationality of the distinctionsame move distinguishes Cruzan All states except Oregon forbid assisted suicide, even though they all also give patients a right to refuse treatment Glucksberg: tradition! Our established method of substantive due process analysis has two primary features: First, we have regularly observed that the Due Process Clause specially protects those fundamental rights and liberties which are, objectively, deeply rooted in this Nation's history and tradition, [Moore in 1977], Snyder ("so rooted in the traditions and conscience of our people as to be ranked as fundamental"), and "implicit in the concept of ordered liberty," such that "neither liberty nor justice would exist if they were sacrificed," [Palko]. Second, we have required in substantive due process cases a careful description of the asserted fundamental liberty interest. (p. 1580) [T]he development of this Court's substantive due process jurisprudence has been a process whereby the outlines of the "liberty" specially protected by the Fourteenth Amendmentnever fully clarified, to be sure, and perhaps not capable of being fully clarifiedhave at least been carefully refined by concrete examples involving fundamental rights found to be deeply rooted in our legal tradition. (p. 1581)

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States. Whats the key term? I think its of6 possible meanings (1) possessed in virtue of the existence of the Union by (Justice Miller & Slaughterhouse majority) (2) traditionally possessed (e.g., under the common law) by (Senator John Sherman in 1872, Senator Jacob Howard, Justice Bradley, Representative John Bingham in January 1871Corfield) (3) possessed under the Constitution against the federal government by (Senator Allen Thurman in 1872, Justice Black, Bradley, Howard, Bingham in March 1871, Akhil Amar) (incorporation by definition) (4) generally possessed under the common law in 1868 by (Steve Calabresi, Earl Maltz) (5) possessed as a moral matter by (Ronald Dworkins moral reading) (6) generally possessed locally by (i.e., antidiscrimination/equal-citizenship provision) (Justice Field, John Harrison, Michael McConnell) In Glucksberg, dispute with Souter is between a reading of SDP like (2) and one like (5)is the issue tradition, as in (2), or whats genuinely right as policy, as in (5)? Casey disavows (4), but thats different from (2)

Overall Course Structure 1. History Marbury/McCulloch 2. Civil War Plessy/Strauder/Slaughterhouse 3. Economic SDP: Lochner Commerce Clause: Champion/Hammer Retreat from SDP: Blaisdell/West Coast Hotel/Caroline Products & n.4 (rational basis standard is applied) Doctrine 1.Modern Commerce Clause: Darby (overrules Hammer)/Wickard (expansion of CC & Aggregation principle) 2. Structure and Federalism: Youngstown/ NY/ Printz 3. Equal Protection and Race: Brown/Loving; racial classification triggers strict scrutiny -(requires compelling state interest & narrowly tailored law) 4. Equal Protection & Gender: VMI/Frontiero intermediate standard of scrutiny (requires an important state interest & a substantially related law) 5. Fundamental Rights: Roe/Casey/Griswold strict scrutiny; except abortion requires undue burden *how did Casey change the holding in Roe?