CONSTITUTIONAL LAW OUTLINE

I.

The Judicial Function and Its Limits

Class #1: An Introduction to the Constitution and Constitutional Argument

THE CONSTITUTION:-- pp. xxv-lvii

o

Preamble: We the People of the United States, in Order to form a more perfect Union, establish justice,
insure domestic Tranquility, provide for the common defense, promote the general Welfare, and secure the
Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United
States of America.
Article I: (Congress & Legislative Branch)
! Section 1: All legislative Powers herein granted shall be vested in a Congress of the United States which
shall consist of a Senate and House of Representatives.
! Section 2: (1) House of Reps elected every two years by electors from the several states. (2) must be at
least 25 and a resident of the state elected from. (3) apportionment of the reps from each state, based on
the census. (4) vacancies for reps and how to replace them. (5) House of Reps shall choose its own
speaker and other officers and have sole power of impeachment.
! Section 3: (1) The Senate is composed of 2 Senators from each state and have one vote. (2) Senatorial
vacancies (changed now). (3) Senators must be at least 30 and be from the state elected from. (4) Vice
President of US presides over Senate with no vote unless there is a tie. (5) Senate shall chose its own
other officers. (6) Senate has sole power to try impeachments with 2/3 vote to impeach. (7)
impeachment trials may result only in removal from office with prejudice, but shall include criminal
indictment, etc., which is still possible for person being impeached by other agencies.
! Section 4: (1) election powers of each state with possibility of change by Congress. (2) Congress must
meet at least once per year.
! Section 5: (1) a majority of each house shall constitute a quorum for doing business and make other
attendance rules internally as it sees fit. (2) each house may determine its own rules and with 2/3 vote
may expel a member. (3) each house shall keep a journal and publish it from time to time, except for
information that may be secret and if 1/5 of vote may publish Yeas and Neas on record in journal. (4)
neither house may adjourn for more than 3 days or to another place without the consent of the other.
! Section 6: (1) Congress receives compensation for service. (2) Congressional members cant by
appointed to other US civil office positions while they are serving in Congress.
! Section 7: (1) All revenue bills shall originate in the House of Reps and the Senate may propose
amendments. (2) After a bill passes the House and Senate, it must be presented to the President of the
United States for final approval before becoming law. Also spells out what happens if President vetoes.
(3) All orders, resolutions and votes passing both houses must also go before President for approval.
! Section 8: (1) Congress has power to lay and collect taxes to pay the debt and provide for common
defense and general welfare; and must be uniform throughout the US. (2) Congress has power to borrow
money on the US credit. (3) Congress has power to regulate commerce with foreign nations and among
the States and with Indian Tribes. (4) Congress has power to establish uniform naturalization and
bankruptcy rules throughout the US. (5) to coin money and regulate the value. (6) to provide the
punishment of counterfeiting the Securities and current Coin of the US. (7) to establish post offices and
postal roads. (8) to promote the progress of science and useful arts, by securing patents and copyrights.
(9) to constitute tribunals (courts) inferior to the supreme court. (10) to regulate and create admiralty law;
(11) to declare War. (12) to raise and support armies with defense budgets lasting no more than 2 years at
a time. (13) to provide and maintain a navy. (14) to make regulations of government, land and naval
forces. (15) to call forth militia to enforce US law and to suppress insurrections, and repel invasions.
(16) to create UCMJ and creating State militia authority to the States according to the UCMJ. (17) to
exercise legislation over government property. (18) to make all laws that shall be necessary and
proper for carrying into execution the foregoing powers, and all other Powers vested by this
Constitution in the Government of the United States, or in any Department or Officer thereof.
! Section 9: (1) migration or importation for persons to move from state to state with possible entrance fee
(not in existence now). (2) the privilege of the Writ of Habeas Corpus shall not be suspended, unless

when in Cases of Rebellion or Invasion the public Safety may require it. (3) No Bill of Attainder or ex
post facto Law shall be passed. (4) No Capitation, or other direct, tax shall be laid, unless in proportion to
the Census or enumeration herein before directed to be taken. (5) No tax or duty shall be laid on article
exported from any State. (6) No preference shall be given by any regulation of commerce or revenue to
the ports of one state over those of another: nor shall vessels bound to, or from, one state, be obligated to
enter, clear, or pay duties in another. (7) No money shall be drawn from the treasury, but in consequence
of appropriations made by law; and an accounting shall be published. (8) No title of nobility shall be
granted by the US: and no person holding any office of profit or trust under then, shall, without the
consent of the Congress, accept of any present, emolument, office, or title, of any kind whatever from any
king, prince, or foreign state.
! Section 10: (1) No state shall act independently in the powers Congress. (2) No state without consent of
Congress shall create any import/export tax or duty; and if they do with consent, the money will go to the
US treasury. (3) No state shall, without the consent of congress, lay any duty of tonnage, keep troops, or
ships of war in time of peace, enter into any agreement or compact with another state, or with a foreign
power, or engage in war, unless actually invaded, or in such imminent danger as will not admit of delay.
Article II: (President & Executive Branch)
! Section 1: (1) the executive power shall be vested in a President of the United States and shall hold
office for a four-year term. (2) explanation of the electoral college. (3) more election rules. (4) time and
day of elections all on same day throughout US. (5) must be a natural born citizen of the US and be at
least 35 to be president. (6) replacement of the President if removed or dies. (7) President shall be
compensated. (8) Oath of Office.
! Section 2: (1) President as Commander in Chief of the Army and Navy and militia and have power to
grant pardons. (2) power to make treaties with 2/3 of Senate approval, and shall nominate judges,
ambassadors, etc. (3) Presidential power to fill vacancies in the Senate during recess of Senate by granting
commissions that expire at the end of next session.
! Section 3: President gives State of the Union, and take care that the laws are faithfully executed and shall
commission all the officers of the United States.
! Section 4: President, Vice President and all civil Officers of US shall be removed by impeachment for,
and conviction of treason, bribery, or other high crimes and misdemeanors.
Article III: (Judicial Branch)
! Section 1: The judicial power of the United States shall be vested in one Supreme Court and in inferior
courts, as Congress establishes. The Judges of the Supreme Court and inferior courts shall hold their
offices during good behavior, and shall, at stated times, receive compensation, which shall not be
diminished during their continuance in office.
! Section 2: (1) cases and controversies under the Constitution, Laws of United States, and Treaties made;
Jurisdiction includes: controversies to which the US shall be a party, controversies between two or more
states; between a state and citizens of another state, between citizens of different states, between citizens
of the same state claiming lands under grants of different states, and between a state, or the citizens
thereof, and foreign states, citizens or subjects. (2) In cases affecting ambassadors, other public ministries
and consuls, and those in which a state shall be a party, the Supreme Court shall have original
jurisdiction. In all other cases, the Supreme Court shall have appellate jurisdiction, both as to law and
fact, with exceptions as Congress makes. (3) All crimes shall be tried by jury in the state the crime
occurred in, except impeachment proceedings.
! Section 3: (1) Treason against the United States shall consist only in levying War against them, or in
adhering to their Enemies, giving them Aid and Comfort. No person shall be convicted of Treason unless
on the Testimony of two Witnesses to the same over Act, or on Confession in open Court. (2) The
Congress shall have Power to declare punishment for treason.
Article IV: (The States)
! Section 1: Full faith and credit shall be given in each state to the public acts, records, and judicial
proceedings of every other state.
! Section 2: (1) The citizens of each state shall be entitled to all privileges and immunities of citizens in the
several states. (2) A person charged in any state with treason, felony or other crimes who flees to another
state, shall be extradited upon request of the executive authority, back to the original state of the crime.
(3) no person held to service or labor in one state, under the laws thereof, escaping into another state, shall

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be discharged of said labor and will be returned upon claim of the party to whom such service of labor
may be due.
! Section 3: (1) New states can be added to union upon consent of state legislature and Congress. (2)
Congress shall makes rule and regulations regarding territory and property of United States.
! Section 4: United States guarantees a republican form of government to every state and shall protect each
state against invasion and domestic violence.
Article V: The Congress shall propose Amendments to the Constitution from time to time to be approved by
2/3 of each state legislature.
Article VI: (Supremacy clause)
! (1) grandfathering in of all contracts, engagements, and debts previously entered into before ratification of
the Constitution. (2) This Constitution is the supreme law of the land. (3) all state and federal officers
shall be bound by Oath to the Constitution and no religious test shall ever be a qualification to any office
or public trust.
Article VII: Ratification of nine states constitutes acceptance of the Constitution into law.

Class Notes:

Why not include Bill of Rights original Constitution

o Afraid that if they listed some rights, it would mean that others, not listed, were not included
o Scope of Congress's Power
! Art. I does not give general police power, instead state governmental power to do so on any issue
! Only if you had a govt with general police power, would you need to legislate against them.

Readerpp. 4-12 (Bobbit)

Modalities/Strategies of Constitutional Theory: No argument between them, but there are arguments
right and wrong in each.
Historical: Relying on the intentions of the framers and ratifiers of the Constitution.
o What words in Constitution originally meant
o Originalist Argument
o Understanding of the intervening generations
o Acceptance of this standard that has developed and we have framed our law around.
o Historical arguments before the founding of the document
Textual: Looking to the meaning of the words of the Constitution alone, as they would be interpreted
by the average contemporary "man on the street".
o What the words mean now to us.
Structural: Inferring rules from the relationships that the Constitution mandates among the structures it
sets up.
o Document as a whole argument, how are the words put together
o Looks at the big principles that are generated
Doctrinal: Applying rules generated by precedent.
o Stare decisis - we already decided this similar case before, therefore we will decide the present case
in the same manner.
o Also negative doctrinal arguments - the other side does not win because the case they say is on point,
is not on point.
Ethical/Cultural: Deriving rules from those moral commitments of the American ethos that are
reflected in the Constitution.
o There are a bunch of cases decides by the spirit of Americanism.
o Limited government - something exceeds what we want government to do, therefore not able to
apply
3

o 2nd to 4th Amendment arguments about protecting one's own home

o Self-reliance
o Self-defense
Patriotism: SIEGEL - Broader than Bobbitt thinks, but this is really about American values
Prudential: Seeking to balance the costs and benefits of a particular rule
o Consequences of decision-making
o Rarely free-standing argument, usually in conjunction with other modalities

--Casebook pp. 11-34

District of Columbia v. Heller (2008) (p. 13) (Scalia)
Facts:
o Respondent, a special policeman, filed action after the District refused his application to register a
handgun.
o Argues violates 2nd Amendment right to bear arms.
Holding:
o The court held that the Districts ban on handgun possession in the home and its prohibition against
rendering any lawful firearm in the home operable for the purpose of immediate self-defense violated the
2nd Amendment.
o The court held that the 2nd Amendment protected an individual right to possess a firearm unconnected
with service in a militia and to use that firearm for traditionally lawful purposes, such as self-defense
within the home.
o The Court determined that the 2nd Amendment prefatory clause (a well-regulated Militia, being
necessary to the security of a free State) announced a purpose but did not limit or expand the scope of
the operative clause (Right of the people).
o The operative clauses text and history demonstrated that it connoted an individual right to keep and
bear arms, and the Courts reading of the operative clause was consistent with the announced purpose of
the prefatory clause.
Dissent: (Stevens, Souter, Ginsburg, and Breyer)
o Not a question of individual rights versus collective rights.
o The 2nd Amendment plainly doesnt protect the right to use a gun to rob a bank.
o There is no indication that the Framers of the Amendment intended to enshrine the common law right of selfdefense in the Constitution.
o Already decided this question in U.S. v. Miller.
Dissent: (Breyer, Stevens, Souter, and Ginsburg)
o The 2nd Amendment protects militia-related, not self-defense-related, interests.
o The protection the 2nd Amendment provides is not absolute.
o What constitutional standard should the court use? It doesnt meet a rational basis standard where a court
upholds a regulation so long as it bears a rational relationship to a legitimate governmental purpose.
Class #2: Judicial Review (and Judicial Supremacy)
Casebook pp.1-10 (Marbury and related materials)
Marbury v. Madison (1803) (p. 2) (Marshall)
The applicant and two others contended that the late President of the United States had nominated them to the
Senate and that the Senate had advised and consented to their appointments as justices of the peace. The
commissions were signed by the late President and the seal of the United States was affixed to the commissions
by the Secretary of State. The commissions were withheld from the applicants and they requested their delivery.
The Court granted a rule to show cause, requiring the Secretary to show cause why a mandamus should not issue
to direct him to deliver the commissions. No cause was shown and the applicant filed a motion for a mandamus.
The Court determined that the applicant had a vested legal right in his appointment because his commission had
been signed by the President, sealed by the Secretary of State, and the appointment was not revocable. The Court
found that because the applicant had a legal title to the office, the laws afforded him a remedy. However, the
Court held that 13 of the Act of 1789, giving the Court authority to issue writs of mandamus to an officer, was
contrary to the Constitution as an act of original jurisdiction, and therefore void.

Significance of Decision:
o Judges duty is to follow the constitution - meaning refusing to uphold the commission because it violates the
Constitution due to the judicial review role in this case.
o Logical argument:
! Judicial branch must be able to enforce the constitution or it would be pointless to have a constitution.
! This is guidepost for the basic structure and norm of law in government.
! "It is emphatically the role of the judiciary to say what the law is."
! It has been the job of the judges to decide the law, and that job interprets the constitution in division
of the branch powers. Courts have a special role in interpreting because they have special skill to
do so.
! Narrower argument: "the little old judge" argument
Judicial review is no big deal because that's what judges are supposed to do when a case is
brought before them. Just added Constitution to list of jobs judges do in resolving disputes like
they always have done. No big deal.

Reader pp. 244-265

Sabri v. United States (p. 245) 2004) (Souter)
o The Court found that while not every bribe or kickback offered or paid to agents of governments covered by 18
USCS 666(b) would be traceable skimmed from the specific federal payments, that possibility portended no
enforcement beyond the scope of federal interest because corruption did not have to be that limited to affect
the federal interest. Money was fungible, bribed officials were untrustworthy stewards of federal funds, and
corrupt contractors did not deliver dollar-for-dollar value. Money could be drained off because a federal grant
was pouring in, and officials were not any the less threatening to the objects behind federal spending just because
they accepted general retainers. It was enough that the statute conditioned the offense on a threshold amount of
federal dollars defining the federal interest and on a bribe that went well beyond liquor and cigars. Congresss
decision to enact 18 USCS 666 only after other legislation had failed to protect federal interests was further
indication that it was acting within the ambit of the Necessary and Proper clause, US Constitution Article I, 8, cl.
18.
o Rule: Congress has authority under the Spending clause to appropriate federal monies to promote the
general welfare and it has corresponding authority under the Necessary and Proper clause to see to it that
taxpayer dollars appropriated under that power are in fact spent for the general welfare.

South Dakota v. Dole (1987)(p. 248) (Rehnquist)

o Petitioner State permitted persons 19 years of age or older to purchase beer pursuant to SD codified Laws.
However, 23 USCS 158 permitted the reduction of federal highway funds otherwise allocable to a state if the
state had a minimum drinking age below 21. Petitioner sought a declaratory judgment that 158 violated
Congresss spending power and that it violated the 21st Amendment. The trial court rejected petitioners
claims, and the Court of Appeals for the 8th Circuit affirmed. On cert., the Court affirmed holding that: (1) the
statutes indirect imposition of a minimum drinking age was a valid exercise of Congresss spending power,
reasonably calculated to advance the general welfare and national concern of safe interstate travel; and (2) the
21st Amendment was not violated as the statute did not induce petitioner to engage in unconstitutional
activities.
o Rule: Congress may place limits on funds that it has allocated for the general welfare and public good.
o Dissent: (Brennan): Believes that the power to regulate the minimum age to purchase alcohol falls squarely
within State power by the 21st Amendment.
o Dissent (OConnor): Congress may condition grants under the spending power only in ways reasonably
related to the purpose of the federal program. Establishing a minimum drinking age of 21 is not
sufficiently related to interstate highway construction to justify so conditioning funds appropriate for that
purpose.

Reconstruction Era Amendments:

13th Amendment prohibits slavery and giving Congress power to enforce the article through legislation.

14th Amendment (1) citizenship to persons born or naturalized; (2) nor may states deprive any person of life, liberty,
or property without due process of law or deny any person of equal protection of the laws; and (3) Congress shall
have power to enforce, by appropriate legislation.
15th Amendment the right of citizens of the US to vote shall not be denied or abridged by the US or by any State on
account of race, color, or previous condition of servitude and Congress has the power to enforce with appropriate
legislation.

Who do the Post-Civil War Amendments Regulate?

o Only state and local government actions, not private conduct.
o The Civil Rights Act of 1875 provided that all persons were entitled to the full enjoyment of the
accommodations, advantages, facilities and privileges of inns, public conveyances, on land or water, theatres,
and other place of public amusement; subject only to the conditions and limitations established by law, and
applicable to citizens of every race and color, regardless of any previous condition of servitude.
What is the Scope of Congresss Power?
o Two Approaches:
! Narrow and accords congress only authority to prevent or provide remedies for violations of rights
recognized by the Supreme Court. Congress cannot expand the scope of rights to provide additional
rights.
! Accords Congress authority to interpret the 14th Amendment to expand the scope of rights or even to
create new rights. Congress may create rights by statute where the Court has not found them in the
Constitution, but Congress cannot dilute or diminish constitutional rights.

United States v. Morrison (2000)(p. 253) (Rehnquist)

Rape victim that was a student at Virginia Tech and was raped by football players, sued under Commerce Clause
and as an activity that substantially affected interstate commerce, and under the 14th Amendment.
Petitioner victim brought an action against respondent offender under 42 USCS 13981, which provided a federal
civil remedy for the victims of gender-motivated violence. The lower court struck down 13981 and concluded
that Congress lacked constitutional authority to enact the statute under either the Commerce Clause or 14th
Amendment 5. The court rejected petitioners argument that 13981 was a regulation of activity that
substantially affected interstate commerce. The court affirmed the decision of the lower court and held that
gender-motivated crimes of violence were not considered economic activity, and therefore, the Commerce Clause
did not vest Congress with the authority to enact a statute regulating such. Moreover, the courts affirmed that
the civil remedy contained in 13981 should be struck down as it was outside Congresss remedial power
under the 14th Amendment because they affected individual activities and not governmental. The civil
remedy was not found to be corrective in its character nor adapted to counteract and redress the operation of such
prohibited state laws or proceedings of state officers. Instead, the subject statute redressed private discrimination
and was outside Congresss power to enact.

Katzenbach v. Morgan & Morgan, (1966) (p. 256)(Brennan)

o NY law that prohibited people that couldnt meet a 6th grade English standard of literacy was not
allowed to vote. Challenged under the Equal Protection clause. NY argued that it was a state right
under the 10th Amendment.
o Appellee registered voters challenged the constitutionality of 4(e) of the Voting Rights Act of 1965, which
provided that no person who met specified educational requirements could be denied the right to vote due to
inability to speak or write English, insofar as the Act prohibited enforcement of NY Constitution Article II, 1
and NY Elec. Law 150, which provided that no person could become entitled to vote unless such person was
also able, except for physical disability, to read and write English. The district court granted declaratory and
injunctive relief to appellees, holding that in enacting 4(e) Congress exceeded the powers granted to it by the
Constitution and usurped powers reserved to the states by the 10th Amendment. Appeal was taken directly to
the Court, which reversed. It held that under the McCulloch v. Maryland standard, 4 of the Act was
plainly adapted to furthering the Equal Protection Clause and that its remedies constituted means
consistent with the letter and spirit of the constitution. It therefore held that the state English literacy
requirement could not be enforced to the extent that it was inconsistent with 4(e) of the Act.
o Dissent (Harlan & Stewart): See franchisment rights as a state concern.

City of Boerne v. Flores (1997)(p. 260)(Kennedy)

o Petitioners challenged the judgment in favor of respondent that upheld the constitutionality of the Religious
Freedom Restoration Act of 1993 (RFRA), under an action challenging respondents church building permit
denial. On review, the court held that Congress was afforded broad powers under the Enforcement Clause of
the 14th Amendment. However, in most cases, the state laws to which RFRA applied were not ones motivated
by religious bigotry and, thus, the RFRA was not considered remedial or preventative legislation. The Court
determined that the RFRA appeared to be an attempt to invoke substantive change in constitutional
protections. Thus, the court held that the RFRA was unconstitutional because it allowed considerable
Congressional intrusion into the states general authority to regulate for the health and welfare of their
citizens.
o Dissent (OConnor & partially Breyer): Believes that an earlier case (Smith) that the Court relies on to
determine Congresss power to enforce 5 of the 14th Amendment was wrongly decided and would use this
case to put 1st Amendment jurisprudence back on track.

Class #3: An Introduction to Constitutional Theory

ORIGINALISM AND ITS ALTERNATIVES:
Constitutional Theory: What is a "constitutional theory?
o An overall construct
o An overall framework, structure, set of rules
o It is an algorithm of order of operations
Do we need one?
The leading modern candidate: Originalism
Definition: Originalism: Based on the intentions or purposes of the Framers
o The closest thing we have to a methodology, but the court still uses pragmatism
o Somehow we should be governed by the original "something", but the original what?
"intent" of the Framers
Definition: Textualism: Stresses the precise language used in the Constitution
o The ideas we thought they were expressing and figuring out what they would have decided in today's
question based on that intent
o Intent sets the bar really high for the Court to figure out in a collective Framer perspective.
o Intent is awfully close to motive, and we don't really want to dig into their motives.
o Intent is not written down, making the process too subjective, moving the question away from the text of
the document.
o "Understanding" of the framers/ "meaning"
! How would the language in the document have been understood at the time?
! How would an informed or educated observer at the time think that this language would have meant.
"Original Conceptions"
o Higher level of generality
o Not what did this word mean, but what did they mean in this as a value?
Arguments Pro/Con
Pros:
! It creates limits
! Appealing that framers are wiser and have original understanding
! Buy in for the constitution and there is a fear of the judges making up their own rules
! The constitution is the oldest in the world allowing us to look at the document to determine what you
can and cannot do.
! It's a document that allows you as a principle to follow the document
Cons:
! It is impossible to understand/know the original intent
Literally impossible - judges cannot know what the original meaning is because each framer
thought something different, etc.

"Arrogance masked as humility"

It's too hard to do.
Constitutional Convention wasn't representative of the populous - not representative methodology
Self-contradictory - original intent is that we shouldn't be bound by the original intent through
Preamble
Bad Result - Can you imagine how much the world would suck if we live in the framers' world

!
!
!

Reader pp. 91-113

Originalism: The original intent of the framers ought to control constitutional interpretation.
Textualism: stresses the precise language used in the Constitution.
Evolutionary Approaches: view Constitutional law as changing with the times.
Robert H. Bork, Neutral Principles and Some First Amendment Problems (92-100)
Supports:
o Argues an originalism approach to jurisprudence.
o If the judiciary really is supreme, able to rule when and as it sees fit, the society is not democratic.
o A Madisonian system is not completely democratic, if by democratic we mean completely majoritarian. It
assumes that in wide areas of life majorities are entitled to rule for no better reason [than] that they are majorities.
o The Courts power is legitimate only if it has, and can demonstrate in reasoned opinions that it has, a valid
theory, derived for the Constitution. If it does not have such a theory but merely imposes its own value choices,
or worse if it pretends to have a theory but actually follows its own predilections, the Court violates the postulates
of the Madisonian model that alone justifies its power. It then necessarily abets the tyranny either of the majority
or of the minority.
o If [the Court] does not have and rigorously adhere to a valid and consistent theory of supremacy, given the
axioms of our system, is, precisely to that extent, illegitimate. The root of its illegitimacy is that it opens a chasm
between the reality of the Courts performance and the constitutional and popular assumptions that give it power.
o A principled judge would, I believe, continue to consider himself bound by an obligation to the document and to
the structure of government that it prescribes.
o If we have Constitutional rights and liberties already, rights and liberties specified by the Constitution, the Court
need make no fundamental value choices in order to protect them, and it certainly need not have difficulty
enunciating principles.
o Where Constitutional materials do not clearly specify the value to be preferred, there is no principled way
to prefer any claimed human value to any other. The judge must stick close to the text and the history, and
their fair implications, and not construct new rights.
o The judiciary has no role to play other than that of applying the statutes in a fair and impartial manner.
o Courts must accept any value choice the legislature makes unless it clearly runs contrary to a choice made
in the framing of the Constitution.
Opposed to:
o one essential premise of the Madisonian model is majoritarianism. The model has also a counter-majoritarian
premise, however, for it assumes there are some areas of life a majority should not control. There are some things
a majority should not do to us no matter how democratically it decides to do them. These are areas properly left
to individual freedom, and coercion by the majority in these aspects of life is tyranny.
o Majority tyranny occurs if legislation invades the areas properly left to individual freedom. Minority tyranny
occurs if the majority is prevented from ruling where its power is legitimate. Yet, quite obviously, neither the
majority nor the minority can be trusted to define the freedom of other.
Paul Brest, The Misconceived Quest for the Original Understanding (100-113)
The most widely accepted justification for originalism is simply that the constitution is the supreme law of the
land. The Constitution manifests the will of the sovereign citizens of the United States
Originalism may be supported by more instrumental rationales as well: Adherence to the text and original
understanding arguably constrains the discretion of decision-makers and assures that the Constitution will be
interpreted consistently over time.
Discusses differences between strict textualism and strict intentionalism. Sees each of them as mutually
antagonistic. The reader need only consider the strict textualists and intentionalists views of the first

amendment protection of pornographic literature. By contrast, moderate Textualism and intentionalism closely
resemble each other in methodology and result.
Strict originalism cannot accommodate most modern decisions under the Bill of Rights and the fourteenth
amendment, or the virtually plenary scope of congressional power under the commerce clause.
Moderate originalism is a perfectly sensible strategy of constitutional decision-making.

Diane Wood, Our 18th Century Constitution in the 21st Century World
Tackles the question of whether courts should interpret the US Constitution from an Originalist or dynamic
approach.
Judge Wood argues for the dynamic approach and defends it against the common criticisms that doing so allows
judges to stray from the original intent of those who wrote the Constitution or take into consideration improper
foreign influences.
She argues the necessity of an unwritten Constitution since a literalist approach to interpretation would lead to
unworkable or even absurd results in the modern context.
Believes that some liberties are so fundamental that no governmental entity may deny them; acknowledges that
much of the Bill of Rights applies to states through selective incorporation; and inferring principles from the
structure of the constitution and pre-constitutional understanding.
Judge Bork:
Prevents both majority and minority tyranny.
Weakness:
o Gives court no discretion - if not in constitution we should just trust what the majority rule is. Therefore, he
endorses tyranny.
Everyone is making it too complicated. Leave it to the legislature. You're doing it wrong if you have to contrive all
these arguments to construe the constitution.
Everybody calm down.
Judge Posner:
Judges should be able to use their own judgment.
o Publish opinion to everyone and all of my colleagues are smart and I'm smart.
Pragmatist - looking forward.
What the law would be in the future. Wisdom and knowledge in past decisions, and it would be folly not to rely on
them
Optimizes society
Law in economics
Judge Wood:
Assessing the evolution of future
The law should protect minority constitutional views
o Interracial marriage
o Segregation of schools
It can be written into the constitution, otherwise minority rights would be left behind.
Professor Dworkin
All decisions are just what the judge thought was right based on history, and judges' position.
Judge Strauss
Can't throw common law out, but sometimes the constitution is clear
The constitution is specific is where it intends to be specific and vague where vague was intended.
Con law resembles common law.
Healthy way to have an evolving constitution that doesn't move too fast.
Judge McConnell
Critic of everyone else:

It's always a judge by judge judgment is a sham. Judges that are pragmatists are well meaning, but is missing
humility and that they might be wrong.
The right approach of judging is more humble and more compassionate. Is less judicially ambitious.
Originalism has the consistency and humbleness of an approach
We're all originalists at some level.
Case by case basis
Won't use moral argument or historical modality, but will use safer modalities: text, precedents, etc.
Modern conservative
o

Class #4: Justiciability

pp. 40-72 (plus handout)

I (Primarily Focusing on Standing)

Justiciability Doctrine:
Limits on federal judicial power what matters can be heard in federal courts.
o Constitutional: Congress cannot override them
o Prudential: they are based on prudent judicial administration and can be overridden by Congress since they are not
constitutional requirements.
Raise basic questions about the proper role of the federal judiciary in a democratic society.
Five Major Doctrines - the prohibition against:
o Advisory opinions:
! Must be an actual dispute between adverse litigants
! Must be a substantial likelihood that a federal court decision in favor of a claimant will bring about some
change or have some effect.
! Plaut v. Spendthirft Farm, Inc. (1995)(p. 43)(Scalia)
Invalidating federal legislation that allowed the Congress to reopen cases in which judgment had
already been rendered
A judgment conclusively resolves the case (retro legislation that affects cases pending appeal, OK)
Petitioner investors previously brought an action against respondent securities investment company for
fraud and deceit in the sale and exchange of stock in violation of 10(b) of the Securities Exchange Act of
1934, and Rule 10b-5 of the SEC. Petitioners action was dismissed with prejudice and became final after
petitioner did not file and appeal. Subsequently, 27A of the Securities Exchange Act of 1934 was
codified. Petitioners then sought to have their action reinstated pursuant to 27A. The district court
found that the section required the reinstatement of petitioners action, yet found the section to be
unconstitutional and affirmed the decision of the lower court. Section 27A, by retroactively commanding
federal courts to reopen final judgments, violated the fundamental principle that a judgment conclusively
resolves the case. Thus, the separation of powers principle was violated by 27A, when Congress
codified the section.
Standing:
! Determination of whether a specific person is the proper party to bring a matter to the court for adjudication.
Constitutional Requirements of Standing: (not overridden by Congress)
o Plaintiff must allege that he has suffered or imminently will suffer an injury. (INJURY)
o Plaintiff must allege that the injury is fairly traceable to the defendants conduct. (CAUSATION)
o Plaintiff must allege that a favorable federal court decision is likely to redress the injury.
(REDRESSABILITY)
Prudential Requirements of Standing: (able to be overridden by Congress)
o Party generally may assert only his own rights and cannot raise the claims of third parties not before
the Court.
o Plaintiff may not sue as a taxpayer who shares a grievance in common with all other taxpayers.
! Constitutional Standing Cases:
Allen v. Wright (1984)(p. 46)(OConnor)

Denied standing, NO CAUSATION between IRS tax break-concentration of whites at private schools

10

o
o
o

Although change in IRS policy may redress, insufficient because IRS didnt cause segregation, not direct
enough
Stigma INJURY = too abstract, basis for standing ONLY for individuals who are personally denied equal
treatment
CAUSATION & REDRESSABILITY are separate requirements, standing requires both to be satisfied

Respondents challenged the IRS guidelines and procedures with respect to granting tax-exempt status
to private schools under Rev. Proc. 75-50, 1975-2 C.B. 587. Respondents alleged that the IRS
violated their rights by granting tax-exempt status to discriminatory private schools. The district
court dismissed the action for lack of standing. The court of appeals reversed, holding that
respondents had standing and enjoined the IRS from granting tax-exempt status to any racially
discriminatory schools. Petitioners sought review. The Court granted cert and reversed the court of
appeals ruling and vacated the injunction. The first basis for standing alleged by respondents, that
they were harmed directly by the mere fact of government financial aid to discriminatory private
schools, did not constitute a judicially cognizable injury and second basis, that their children were
being deprived of an opportunity to receive an education in racially integrated schools, although a
judicially cognizable injury, was not fairly traceable to the government conduct that respondents
challenged as unlawful.
Dissent: (Stevens, Blackmun)
! Respondents have adequately alleged injury in fact
! Their injury is fairly traceable to the conduct that they claim to be unlawful
! The separation of powers principle does not create a jurisdictional obstacle to the consideration
of the merits of their claim.

Massachusetts v. Environmental Protection Agency (2007)(p. 53)(Stevens)

o Standing granted, INJURY: harm to be suffered due to EPA greenhouse regulatory failure is
actual/imminent
o REDRESSABILITY: substantial likelihood that judicial relief requested will prompt EPA action
in reducing risk.
o Issues:
! Whether the EPA has the statutory authority to regulate greenhouse gas emissions from new
motor vehicles; and if so, whether its stated reasons for refusing to do so are consistent with the
statute.
! The Court may not address those two questions unless at least one petitioner has standing to
invoke our jurisdiction under Article III of the Constitution.
Whether petitioners have such a personal stake in the outcome of the controversy as to
assure that concrete adverseness which sharpens the presentation of issues upon which
the court so largely depends for illumination.
o Rule:
! Article III limits federal court jurisdiction to cases and controversies
The business of federal courts to questions presented in an adversary context and in a form
historically viewed as capable of resolution through the judicial process.
o The EPA argued that the Clean Air Act (CAA) did not authorize the EPA to address global climate
change and that, in any event, executive policy specifically addressing global warming warranted the
EPAs refusal to regulate in such area. The U.S. Supreme Court first held that petitioners had
standing to challenge EPAs denial of their rulemaking petition since at least one petitioner state
properly asserted a concrete injury from the potential further loss of its coastal land, much of which
was owned by the state, from rising sea levels caused by climate change. Further, because
greenhouse gases were clearly within the CAAs broad definition of an air pollutant, the EPA had the
statutory authority to regulate the emission of such gases from new motor vehicles, and there was no
showing of any congressional intent to bar the EPA from addressing global warming. Also, it was
undisputed that global warming threatened serious harms, and policy considerations were irrelevant to
the EPAs statutory mandate to determine whether the greenhouse gases contributed to global

11

warming and whether motor vehicles emissions of such gases actually or potentially endangered
public health or welfare.
City of Los Angeles v. Lyons (1983)(p. 59)(White)
o Respondent, a motorist injured by the city police when subjected to a choke hold after being stopped for a
traffic violation, argued that an injunction directed at the municipality was warranted to prevent respondent
and others similarly situated from being threatened with injury in the future. The Court disagreed, explaining
that federal courts were without jurisdiction to entertain respondents claim for injunctive relief. The
Court held that to invoke jurisdiction, respondent was required to show that he was in immediate
danger of irreparable injury; neither the existence of past injury nor conjecture over the prospect of
some future injury created the case or controversy required for jurisdiction. The Court held that while
respondent may have had a claim for damages based on the injury he already sustained, injunctive relief was
not available absent a real and immediate likelihood that respondent would again be targeted by the
municipality. There was no showing, the Court concluded, that the municipalitys revised policy on the use
of choke holds would be applied indiscriminately and thereby result in injury to respondent or other citizens.
o Dissent (Marshall, Brennan, Blackmun, and Stevens):
! Since no one can determine when they are going to be choked by the police, using their chokeholding
policy, no one will ever have standing to challenge the continuation of this policy and the citys police
may continue do this as long as they are willing to continue paying out damages for injury and death that
may result.
Lujan v. Defenders of Wildlife (1992)(p. 61)(Scalia)
o Petitioner, the Secretary of the Interior, promulgated a new interpretation of 7 of the Endangered Species Act
of 1973, which required consultation only for actions in the United States or on the high seas. Respondents,
wildlife conservation organizations, filed suit seeking declaratory judgment and injunctive relief to restore
petitioners initial interpretation. The district court granted petitioners motion to dismiss for lack of standing,
but the circuit court reversed. On writ of certiorari to the US Supreme Court, the circuit courts decision was
reversed and remanded because the Court reasoned that respondents lacked standing under Article III of the
Constitution to bring an action, as respondents failed to establish all three prongs required for standing. The
burden of proof was not met regarding causation and redressability of respondents injury. Therefore,
petitioners motion for summary judgment should have been granted.
o The injury in fact test requires more than an injury to a cognizable interest. It requires that the party
seeking review be himself among the injured.
o Dissent (Blackmun and OConnor):
! Due to the affidavits and depositions taken in this case, they would conclude that there is sufficient facts
to create a genuine issue for trial concerning whether one or both would be imminently harmed by the
projects abroad.
o Holding: Denied standing, couldnt show likelihood of future INJURY from destruction of species
! Injury in fact test requires more than injury to cognizable interest; REDRESSABILITY: govt conduct
may not change anyway
o Issue: If the possibility of govt noncompliance is enough to undermine redressability, few cases would
survive.
United States v. Hays, (1995)(p. 65)(OConnor)
o The States congressional redistricting plan was challenged by the voters, under the Voting Rights Act of
1965, as being a racially discriminatory gerrymander that violated the 14th Amendment. However, none of
the voters lived in the district that was the primary focus of their appeal. The district court found that the
voters had standing and that the redistricting plan was unconstitutional. The Court vacated the district courts
judgment and held that the voters did not have standing. The Court held that to have standing, a
litigant was required to have a concrete and particularized injury as opposed to a generalized
grievance. Only those who were personally denied equal treatment by the challenged discriminatory
conduct had standing to challenge the alleged discrimination. Because the voters presented no evidence
that they were personally subjected to a racial classification, they had no standing, and their complaint was
dismissed.
Federal Election Commission v. Akins, (1998)(p. 65)(Breyer)
o The Federal Elections Campaign Act imposed extensive recordkeeping and disclosure requirements on
political action committees. The Federal Elections Commission (FEC) found that petitioner was not a

12

political action committee within the meaning of the Act. Respondent voters challenged that determination.
The lower court found that respondents did not have standing to challenge the FECs order. The intermediate
appellate court affirmed. Respondents sought review. The court found that the Act provided any person who
believed a violation of the Act had occurred to file a complaint with the FEC. Any party aggrieved by an
order of the FEC that dismissed a complaint filed by such party could file a petition in court to seek review of
the dismissal. The court reversed and remanded because the injury related to voting, the most basic of
political rights, and was sufficiently concrete that the fact it was widely shared did not deprive Congress of
the power to authorize its vindication in federal court.
Prudential Standing Requirements:
o Singeton v. Wulff, (1976)(p. 68)(Blackmun)
o The physicians filed a complaint in district court that challenged the state limit set on abortion funding,
alleging standing based on the fact that each had provided and anticipated providing abortions to patients who
were eligible for Medicaid payments. The district court dismissed the case for lack of standing. The
appellate court reversed, holding that the physicians had standing and that, on the merits (the law) violated the
Equal Protection Clause. On appeal, the Court affirmed the physicians standing, holding that there was
adequate injury asserted for the physicians to bring a claim. The Court held that the physicians were qualified
to litigate the constitutionality of the Chiefs interference with, or discrimination against, an abortion funding
decision, because there were significant obstacles that could have prevented women patients from litigating.
The Court held that the appellate court erred by determining the claim on its merits when the Chief had not
presented evidence but only filed a motion for dismissal. Injustice was more likely to be caused than avoided
by deciding the issue without the Chiefs having had an opportunity to be heard.
o Focused on two factors in determining whether a plaintiff could sue on behalf of a third party:
! The closeness of the relationship between the plaintiff and the injured third party.
! The likelihood that the third party can sue on its own behalf.
o Barrows v. Jackson, (1953)(p. 70)(Minton)
! The homeowners sued the grantor for damages for a breach of a restrictive covenant agreement entered into
between the parties. Under the terms of the restrictive covenant, the signors and their successors promised
that no part of the real property would ever be used or occupied by persons who were not white. The
homeowners brought suit after the grantor conveyed her property to minorities and failed to include the
restrictive covenant in the deed. Affirming the lower courts order sustaining a demurrer to the petition, the
Court held that because enforcement of the restrictive covenant at law would have constituted state action,
the states enforcement would have denied minorities of their right to enjoy property on the same terms as
whites, so that said denial of equal protection of the law would be in violation of the 14th Amendment.
While noting that the grantor would not be constitutionally injured, the Court permitted the grantors
assertion of others rights where the need to protect fundamental rights would be denied if the action for
damages was maintained.
o Craig v. Boren (1976)(p. 71)(Brennen)
! Appellants, a male between 18 and 21 years of age and a liquor vendor, filed an action in district court that
sought declaratory and injunctive relief against the enforcement of Okla. Stat. tit. 37, 241 and 245.
Together, the statutes prohibited the sale of non-intoxicating three and two-tenths percent beer to males
under the age of 21 and to females under the age of 18. A bartender challenged the law on behalf of male
customers between the ages of 19 and 21. The bartender suffered economic loss from the law, thus fulfilling
the injury requirement. The Court allowed the bartender standing to assert the rights of his customers and
explained, that vendors and those in like positions have been uniformly permitted to resist efforts at
restricting their operations by acting as advocates for the rights of third parties who seek access to their
market of function.

Class #5: Justiciability II (Primarily Focusing on the Political Question

pp. 81-113
o Ripeness
o Poe v. Ullman, (1961)(p. 81)(Frankfurter, Warren, Clark & Whittaker)

13

Doctrine)

The parties and doctor challenged the constitutionality under the 14th Amendment, the state statute prohibiting
the use of contraceptive devices and the giving of medical advice in the use of such devices. The state
supreme court held that the statutes were applicable to married couples even under a claim that conception
would constitute a serious threat to the health or life of the female spouse. On appeal, the Supreme Court held
that the mere existence of a state penal statute constituted insufficient grounds to support a federal courts
adjudication of its constitutionality in proceedings brought against the states prosecuting officials if real
threat of enforcement was wanting. Prosecutors in the state had not prosecuted anyone for violation of the
statute, and the patients and the doctor were not in any danger of immediately sustaining some direct injury as
the result of its enforcement. The Court dismissed the action.
! Dissent (Douglas):
Because the parties have not yet been arrested for violating the law, does and should not affect their
standing to have their problem resolved. The Court has left the parties no other choices but to either
break the law and hope they arent arrested, or surreptitiously break the law and hope they arent caught.
The issue is ripe now because they will imminently be arrested upon breaking this law in order to protect
the female spouses life.
Abbott Laboratories v. Gardner (1967)(p. 84)(Harlan)
! Petitioners appealed a judgment, which dismissed their complaint that challenged regulations issued by the
Commissioner of Food and Drugs. Petitioners argued that the Commissioner had exceeded his authority
under the Federal Food, Drug, and Cosmetic Act by requiring labels, advertisements, and other printed matter
to designate the established name of a drug every time its trade name was used. The dismissal was based on a
holding that pre-enforcement review of rules was precluded by the Act, and because no case or controversy
existed and no relief was available under the Administrative Procedure Act or the Declaratory Judgment Act.
The Supreme Court held that there was no explicit statutory preclusion of pre-enforcement review and no
persuasive reason to conclude Congress intended to preclude such review. The Court held that the
controversy was ripe for adjudication where the legal issues presented were fit and judicial resolution and the
challenged provisions of the Act imposed an immediate change in petitioners conduct, with serious penalties
for noncompliance. Accordingly, judgment dismissing petitioners complaint was reversed.
Mootness
! A plaintiff must present a live controversy at all stages of federal court litigation. If anything occurs while a
lawsuit is pending to end the plaintiffs injury, the case is to be dismissed as moot.
! The mootness doctrine is derived from Article IIIs prohibition against federal courts issuing advisory
opinions. If a case is moot, there no longer is an actual controversy between adverse litigants.
! Exception:
Wrongs Capable of Repetition:
o Even if the current controversy (number of signatures necessary for a measure to be entered on the
ballot in a particular state for a particular election ends because the election has occurred, Moore v.
Ogilvie, or a pregnancy ends due to birth of a child, Roe v. Wade) is no longer present, normally
making the case moot, there is a continuing controversy because the issue is subject to repetition
(another election under the same signature requirement, Moore v. Ogilvie, or another pregnancy, Roe
v. Wade).
Voluntary Cessation.
o A case is not to be dismissed as moot if the defendant voluntarily ceases the allegedly improper
behavior, but is free to return to it at any time.
o Friends of the Earth, Inc. v. Laidlaw Environmental Services, (2000)(p. 89)(Ginsburg)
! The Supreme Court reversed an appeals court decision that held that petitioners citizen suit for
civil penalties under Clean Water Act was moot when the respondent came into compliance.
The Court first addressed whether petitioners had standing to bring the action. It found
respondents discharges, the petitioners reasonable concerns about the effects of those
discharges, directly affected petitioners recreational, aesthetic, and economic interests. The
civil penalties petitioners sought carried with tem a deterrent effect that made it likely the
penalties would redress petitioners injuries by abating current violations and preventing future
ones. Thus, petitioners had standing. The Court then addressed whether the matter became
moot when respondent came into compliance with its discharge permit. The Court held the
action may have become moot only if respondents compliance or respondents closure of its
!

14

facility made it absolutely clear that the respondents permit violations could not reasonably be
expected to recur. The effect of respondents compliance and facility closure on the prospect of
future violations was a disputed factual matter. Thus, the matter was not moot.
Class Action Suits:
o United States Parole Commission v. Geraghty, (1980)(p. 90)(Blackmun)
o Respondent was denied parole and challenged the parole guidelines and sought certification as a
class of federal prisoners eligible for parole. The Court, on cert, held that the court of appeals
properly heard respondents challenge even though his personal claim had expired, limiting its
holding to ruling that a case or controversy still existed in a class action because another
class member could step up to take the class representatives place, and remanded for the
district court to determine whether respondent was the appropriate person to represent the class.
Political Question Doctrine:
! Refers to allegations of constitutional violations that federal courts will not adjudicate, and that the Supreme
Court deems to be inappropriate for judicial review.
! The Constitution is meant to insulate matters from the political process and therefore it is wrong to leave
constitutional provisions to the elected branches of government to interpret and enforce.
! Cases under the Guaranty Clause:
Baker v. Carr (1962)(p. 93)(Brennan)
o Plaintiffs, residents of several counties, filed a complaint against defendants, state officers and
election officials, alleging that a state statute arbitrarily and capriciously appointed representatives
without reference to any logical or rational formula and that it deprived them of the equal protection
of the laws in violation of the 14th Amendment by engaging in political gerrymandering. The Court
reversed and remanded, holding that the complaints allegations of a denial of equal protection
presented a justiciable constitutional cause of action upon which plaintiffs were entitled to trial
and a decision. The right that plaintiffs asserted was within the reach of judicial protection under the
14th Amendment. The court further found that if discrimination were sufficiently shown, the right
to relief under the Equal Protection Clause would not be diminished by the fact that the
discrimination related to political rights.
Veith v. Jubelirer, (2004)(p. 96)(Scalia)
o The voters contended that the districts created by the officers legislation were meandering and
irregular, and ignored all traditional redistricting criteria, including the preservation of local
government boundaries, solely for the sake of partisan political advantage. A plurality of the US
Supreme Court held, however, that the existence of the alleged political gerrymandering was a
political question which precluded judicial intervention. While prior Supreme Court precedent
indicated that the constitutional provision for equal protection of the law granted judicial authority to
control political gerrymandering, such precedent was erroneous in view of the lack of judicially
discoverable and manageable standards for resolving the propriety of voting districts. The judicial
power to rectify gerrymandering based on race did not provide a basis for considering the political
advantages or disadvantages of voting districts, since political affiliation was clearly not permanently
discernible and the effects of political gerrymandering could never be adequately assessed. The US
Constitution provided equal protection to persons, not equal representation to political parties.
o Concurrence (Kennedy):
! (1) No substantive definition of fairness in districting seems to command general assert. (2) the
absence of rules to limit and confine judicial intervention. With uncertain limits, intervening
courts, even when proceeding with best intentions, would risk assuming political, not legal,
responsibility for a process that often produces ill will and distrust.
o Dissent (Stevens):
! When partisanship is the legislatures sole motivation, when any pretense of neutrality if forsaken
unabashedly and all traditional districting criteria are subverted for partisan advantage, the
governing body cannot be said to have acted impartially.
! He would apply a narrow form of rational basis to decisions where political gerrymandering is at
issue.
o Dissent (Souter and Ginsburg):
! I would require the plaintiff to make out a prima facie case with give elements.

15

(1) The resident plaintiff would identify a cohesive political group to which he belonged.
(2) A plaintiff would need to show that the district of his residence, paid little or no heed to
those traditional districting principles whose disregard can be shown straightforwardly:
contiguity, compactness, respect for political subdivisions, and conformity with geographic
features like rivers and mountains.
(3) The plaintiff would need to establish specific correlations between the districts deviations
from traditional districting principles and the distribution of the population of his group. Ex)
They would need to show that when towns and communities were split, Democrats tended to
fall on one side and Republicans on the other.
(4) A plaintiff would need to present the court with a hypothetical district including his
residence, one in which the proportion of the plaintiffs group was lower (in packing claim)
or higher (in a cracking one) and which at the same time deviated less from traditional
districting principles than the actual district.
(5) The plaintiff would have to show that the defendants acted intentionally to manipulate the
shape of the district in order to pack or crack his group.
! I would then shift the burden to the defendants to justify their decision by reference to objective
other than naked partisan advantage.
o Dissent (Breyer):
! When necessary, a court should prove capable of finding an appropriate remedy to political
gerrymandering. Courts should be able to identify the presence of one important gerrymandering
evil, the unjustified entrenching in power of a political party that the voters have rejected. They
should be able to separate the unjustified abuse of partisan boundary-drawing considerations to
achieve that end from their more ordinary and justified use. And they should be able to design a
remedy for extreme cases.
Powell v. McCormick, (1969)(p. 105)(Warren)
o Petitioner challenged the US House of Representatives refusal to allow him to take his seat in the 90th
Congress by voting to expel him by a 2/3 vote after the 89th Congress found him guilty of filing deceptive
travel expense reports and making illegal salary payments to his wife. The parties agreed that petitioner met
the standing qualifications for election to Congress set forth in the US Constitution, Art. I, 2. The Supreme
Court held that (1) the case was not mooted by petitioners being seated in the 91st Congress; (2) congressmen
named as defendants were immune from suit under the Speech or Debate Clause of US Constitution, Art. I,
6, but congressional employees named as defendants were not immune; (3) the 90th Congresss denial of
membership to petitioner was an exclusion, not and expulsion; (4) the judiciary had subject matter jurisdiction
over the suit; and (5) the case was justiciable rather than barred by the political question doctrine. The
court remanded with instructions to issue a declaratory judgment in favor of petitioner.
o The Constitution leaves the House without authority to exclude any person, duly elected by his constituents,
who meets all the requirements for membership expressly prescribed in the Constitution. Therefore, the
textual commitment formulation of the political question doctrine does not bar federal courts from
adjudicating petitioners claims.
Political Question Doctrine: Foreign Policy
o The underlying issue, as with all areas of the political question doctrine, is whether this is appropriate judicial
deference or unwarranted judicial abdication on an important constitutional issue.
! Goldwater v. Carter, (1979)(p. 107)
President Jimmy Carter rescinded the USs treaty with Taiwan as part of recognizing the Peoples
Republic of China. Senator Goldwater brought a constitutional challenge arguing that the Senate
must rescind a treaty, just as the Senate must ratify the making of a treaty.
Concurrence (Rehnquist, Warren, Stewart, and Stevens)
o The basic question presented by the petitioners in this case is political and therefore
nonjusticiable because it involves the authority of the President in the conduct of our countrys
foreign relations and the extent to which the Senate or the Congress is authorized to negate the
action of the President.
Concurrence (Powell)

16

Prudential considerations persuade me that a dispute between Congress and the President is not
ready for judicial review unless and until each branch has taken action asserting its constitutional
authority.
Concurring in the Judgment and Dissenting (Brennan)
o Reliance upon the political question doctrine is inconsistent with our precedents on previous
occasions to decide whether one branch of our government has impinged upon the power of
another.
o The political question doctrine rests in part on prudential concerns calling for mutual respect
among the three branches of government. Thus, the Judicial Branch should avoid the
potentiality of embarrassment [that would result] from multifarious pronouncements by various
departments on one question.
o The doctrine incorporates three inquires: (1) Does the issue involve resolution of questions
committed by the text of the Constitution to a coordinate branch of Government? (2) Would
resolution of the question demand that a court move beyond areas of judicial expertise? (3) Do
prudential considerations counsel against judicial intervention?
Political Question Doctrine: Impeachment and Removal
o Challenges to impeachment and removal are not justiciable.
o Nixon v. United States, (1993)(p. 110)(Rehnquist)
! Petitioner, a former federal judge, challenged his impeachment conviction. Petitioner argued the
impeachment proceedings violated the authority of the Senate under the Impeachment Clause, to try
all impeachments because the whole Senate did not take part in evidentiary hearings. The Court
held the controversy was a nonjusticiable political question as there was a textually
demonstrable constitutional commitment of the issue to the legislature and a lack of judicially
discoverable and manageable standards for resolving it. The Impeachment Clause granted sole
authority over impeachments to the Senate, and did not require or provide a means of judicial review.
As impeachment was designed to be the only check on the judiciary by the legislature, it was
counterintuitive to have judicial review of impeachment proceedings. There were no discoverable
standards for judicial review of impeachment proceedings, and fashioning relief was difficult.
Plus:
! Principles of avoidance Justice Brandeis Ashwander v. Tennessee Valley Authority:
The court will not pass upon the constitutionality of legislation in a friendly, nonadversary, proceeding,
The Court will not anticipate a question of constitutional law in advance of the necessity of deciding it.
The Court will not formulate a rule of constitutional law broader than is required by the precise facts to
which it is to be applied.
The Court will not pass upon a constitutional question although properly presented by the record, if there
is also presented some other ground upon which the case may be disposed of.
The Court will not pass upon the validity of a statute upon complaint of one who fails to show that he is
injured by its operation.
The Court will not pass upon the constitutionality of a statute at the instance of one who has availed
himself of its benefits.
It is a cardinal principle that this Court will first ascertain whether a construction of the statute is fairly
possible by which the question may be avoided.
o

LOCHNER ERA
Class #6: Unenumerated Rights and the Judicial Role
Calder v. Bull, 3 US 386 (1798) (focus on debate between Justices as to whether the Constitution protects
unenumerated rights)
o A probate court decreed a will invalid in favor of plaintiffs in error, who stood to obtain property through
inheritance. However, the state legislature passed a law enabling defendants in error to obtain a new hearing on
the probate courts decree, which resulted in the will being validated in favor of defendants in error, who stood to

17

take under the will. The Court rejected the contention made by plaintiffs in error that the lawn authorizing the
rehearing was an unconstitutional ex post facto law because there was previously no right to a rehearing. The
Court defined the ex post facto laws prohibited by the US Constitution to include only those related to crimes,
which (1) made an innocent action done before the passing of the law, criminal; (2) aggravated a crime or made it
greater than it was when committed; (3) inflicted a greater punishment than the law annexed to the crime when
committed; (4) altered the legal rules of evidence, and received less, or different, testimony than the law required
at the time of the commission of the offense to convict the offender. Thus, the Court held that the state law at
issue did not fall within the constitutional prohibition.
(609-614, 624-626, 628-30)
Lochner v. New York (1905)(p. 609)(Peckham)
o The state supreme court, which found that the employer allowed his employee, a baker, to work more than 60
hours in one week in violation of 1897 N.Y. Law art. 8, upheld the labor law as a constitutional exercise of the
states police power. The US Supreme Court reversed. The general right to make a contract in relation to
ones business, and the right to purchase or to sell labor, was part of the liberty protected by the 14th
Amendment. The statute was not necessary as a health law to safeguard the public health or the health of the
individuals who labored as bakers. The trade of a baker was not an unhealthy one to such a degree that would
authorize the legislature to interfere with the right to labor and the right to free contract on the part of the
individual. Various regulations already governed the cleanliness of the quarters in which bakeries were to be
conducted. Restricting the number of hours that a baker could work would not further the purpose of those
regulations. It was not possible to discover the connection between the number of hours a baker could work and
the quality of the bread that he produced.
o Dissent (Holmes):
! The word liberty in the 14th Amendment, is perverted when it is held to prevent the natural outcome of
dominant opinion, 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.
o Dissent (Harlan, White & Day):
! While this court has not attempted to mark the precise boundaries of what is called the police power of the
state, the existence of the power has been uniformly recognized, equally by the Federal and State courts. All
the cases agree that this power extends at least to the protection of the lives, the health, and the safety of the
public against the injurious exercise by any citizen of his own rights.
! I take it to be firmly established that what is called the liberty of contract may, within certain limits, be
subjected to regulations designed and calculated to promote the general welfare, or to guard the public health,
the public morals, or the public safety. The rule is universal that a legislative enactment, Federal or state
is never to be disregarded or held invalid unless it be, beyond question, plainly and palpably in excess of
legislative power.
Themes Stemming from Lochner v. New York (1905-1937)
o Freedom of contract was a right protected by the Due Process Clauses of the 5th and 14th Amendments;
o The government could interfere with freedom of contract only to serve a valid police purpose of protecting public
health, public safety, or public morals;
o The judiciary would carefully scrutinize legislation to ensure that it truly served such a police purpose.
o This is classic substantive due process: The Due Process Clause was used not to ensure that the government followed
proper procedures, but to ensure that laws served an adequate purpose.
! The court scrutinized both the ends served by the legislation, to ensure that there really was a valid police purpose
! And the means, for the laws to sufficiently achieve its purported goal.
END OF LOCHNER ERA & BEGINNING OF JUDICIAL DEFERENCE TO GOVT ECONOMIC
REGULATION
West Coast Hotel Co. v. Parrish (1937)(p. 624)(Hughes)
o A female employee filed an action for back wages under the Washington Minimum Wages for Women Act.
The Supreme Court held that the Act did not violate the Due Process Clause of the 14th Amendment
because it was a valid exercise of the states police power to protect the health and safety of women.
The Court reasoned that the state had a valid interest in the wages paid to women because their support would

18

fall on the state if women were not paid adequate wages. The Court specifically overruled a case relied on by
the employer which held that minimum wage laws for women were an unconstitutional burden on the right to
contract. The Court reasoned that the case could not stand because employers and employees did not
stand on equal footing in the contract process, and the states interest in the protection of women was
valid. The Court held that equal protection was not violated because there was no doctrinal requirement that
required the legislation to be couched in all-embracing terms. The Act was directed at a social position
unique to women, so the Act did not constitute arbitrary discrimination.

Williamson v. Lee Optical of Oklahoma, Inc. (1955)(p. 628)(Douglas)

o The optician sought to have Okla. Stat. Ann. Tit. 59 declared unconstitutional because the effect of 941 was
to forbid an optician from fitting or duplicating lenses without a prescription from an ophthalmologist or
optometrist. In practical effect, it meant that no optician could fit old glasses into new frames or supply a lens
without a prescription. The trial court found that portions of the statute were unconstitutional. On appeal, the
US Supreme Court held that, although the law might have exacted a needless, wasteful requirement in
many cases, it was for the legislature, not the courts, to balance the advantages and disadvantages of
the new requirement. In reversing the Judgment, the Court held that the law did not violate the Equal
Protection Clause of the 14th Amendment and that the laws prohibition on the use of advertising for the sale
of eyeglasses and lenses was constitutional because the legislature could treat all who dealt with the human
eyes as members of a profession who should use no merchandising methods for obtaining customers.
o The day is gone when this Court uses the Due Process Clause of the 14th Amendment to strike down state
laws, regulatory of business and industrial conditions, because they may be unwise, improvident, or out of
harmony with a particular school of thought. For protection against abuses by legislatures the people must
resort to the polls, not to the courts.

Class #7: Unenumerated Rights and Contemporary Due Process Doctrine

--pp.970-988
Griswold v. Connecticut, (1965)(p. 970)(Douglas)
o Defendants appealed from their convictions under Conn. Gen. Stat. 53-32 (rev. 1958) as accessories. They
contended that the application of the accessory statute violated the 14th Amendment. The appellate court
affirmed their convictions, as did the state supreme court. On further appeal, the Court first held that as
accessories, defendants had standing to challenge the substantive law and to raise the constitutional rights of
the married people with whom they had a professional relationship. In examining the US Constitution, the
Court found a right of privacy implicit in the 3rd Amendments prohibition against the quartering of soldiers,
the 4th Amendments right of people to be secure in the persons, the 5th Amendments right against selfincrimination, and the 9th Amendments right to retain rights not enumerated in the constitution. The right of
privacy to use birth control measures was found to be a legitimate one. Thus, the Court concluded that the
Connecticut law was unconstitutional.
o penumbras- partial shadows, formed by emanations from those guarantees to help give them life and
substance. Various guarantees create zones of privacy.
o Concurrence (Goldberg, Warren & Brennan):
! Believes that the right of privacy in the marital relation is fundamental and basic a personal right
retained by the people within the meaning of the 9th Amendment. Connecticut cannot constitutionally
abridge this fundamental right, which is protected by the 14th Amendment from infringement by the
States.
o Concurrence (Harlan):
! While relevant inquiry may be aided by resort to one or more of the provisions of the Bill of Rights, it is
not dependent on them or any of their radiations. The Due Process Clause of the 14th Amendment stands
on its own bottom. Judicial restraint will be achieved in this area, as in other constitutional areas, only be
continual insistence upon respect for the teachings of history, solid recognition of the basic values that
underlie our society, and wise appreciation of the great roles that the doctrines of federalism and
separation of powers have played in establishing and preserving American freedom.
o Concurrence (White)
! The Connecticut law as applied to married couples deprives them of liberty without due process of
law, as the concept is used in the 14th Amendment.

19

I wholly fail to see how the ban on the use of contraceptives by married couples in any way reinforces
the States ban on illicit sexual relationships. One is rather hard pressed to explain how the ban on
use by married persons in any way prevents use of such devices by persons engaging in illicit sexual
relations and thereby contributes to the States policy against such relationships.
o Dissent (Black & Stewart):
! The Court talks about a constitutional right of privacy as though there is some constitutional
provision or provisions forbidding any law ever to be passed which might abridge the privacy
of individuals. But there is not.
! I think it belittles the 4th Amendment unreasonable search and seizure provision to talk about it
as though it protects nothing but privacy. To treat it that way is to give it a [miserly]
interpretation, not the kind of liberal reading I think any Bill of Rights provision should be given.
! I think that if properly construed neither the Due Process Clause nor the 9th Amendment, nor both
together, could under any circumstances be a proper basis for invalidating the Connecticut law.
They are merely being used by the Court to claim the federal judiciary power to invalidate any
legislative act which the judges find irrational, unreasonable or offensive.
! I reject the philosophy that it is the duty of the Court to keep the Constitution in tune with the
times. The idea is that the Constitution must be changed from time to time and that this court is
charged with a duty to make those changes.
o Dissent (Stewart & Black):
! If, as I should surely hope, the law before us does not reflect the standards of the people of
Connecticut, the people of Connecticut can freely exercise their true 9th and 10th Amendment
rights to persuade their elected representatives to repeal it. That is the constitutional way to take
this law off the books. Not the courts role.
Eisenstadt v. Baird, (1972)(p. 977)(Brennan)
o Appellant was convicted of, among other things, giving vaginal foam to an unmarried woman at the close of a
lecture, a violation of Mass. Gen Law. The district court dismissed appellants petition for habeas corpus
relief, but the circuit court vacated the district courts order, and remanded with instructions to grant the writ.
The Court affirmed the circuit courts order. Appellant had standing to assert the rights of unmarried people
to access the contraception because he served as an advocate for the 3rd-party right. In so ruling, the Court
emphasized that the reason for giving away the foam was to test the statute. Then, the Court held that the
state statute violated the Equal Protection Clause of the 14th Amendment. There was no rational
reason for the different treatment of married and unmarried people. The right of privacy to be free of
unwanted intrusions into the fundamental decision of whether to have children was the same for
married and unmarried alike. The Court rejected appellees argument that the distinction was health
related, noting that unmarried persons had as great an interest in avoiding the spread of harmful diseases.
o If the right of privacy (asserted in Griswold) means anything, it is the right of the individual, married or
single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person
as the decision whether to bear or beget a child.
o Dissent (Burger):
! Cant view Griswold as controlling authority in this case.
! By relying on Griswold (the use of contraceptives) versus this case (the distribution by unlicensed
professionals), the Court has passed beyond the penumbras of the specific guarantees into the
uncircumscribed area of personal predilections.
Carey v. Population Services International (1977)(squib case)(p. 978)(Brennan)
o (Sale or distribution of contraceptives to minors under 16)
o The Court thus said that strict scrutiny must be met for the government to justify a law restricting access
to contraceptives.
o Compelling is of course the key word; where a decision as fundamental as that whether to bear or beget a
child is involved, regulations imposing a burden on it may be justified only be compelling state interests
and must be narrowly drawn to express only those interests.

Major Question: Should the Court protect such a right that is not mentioned in the text and was not clearly intended by
the framers?

20

Roe v. Wade, (1973)(p. 979)(Blackmun)

o Plaintiffs and intervener appealed directly to the instant Court on the injunctive rulings. The State cross-appealed
from the declaratory judgment. The Court affirmed the judgment, holding that abortion was within the
scope of the personal liberty guaranteed by the Due Process Clause. This right was not absolute, but could
be regulated by narrowly drawn legislation aimed at vindicating legitimate, compelling state interests in the
mothers health and safety and the potentiality of human life. The former became compelling, and was thus
grounds for regulation after the first trimester of pregnancy, beyond which the state could regulate abortion to
preserve and protect maternal health. The latter became compelling at viability, upon which a state could
proscribe abortion except to preserve the mothers life or health. The Texas statutes made no distinction between
abortions performed early in pregnancy and those performed later, and it limited the legal justification for the
procedure to a single reason saving the mothers life so it could not survive the constitutional attack. This
conclusion made it unnecessary for the Court to consider the doctors vagueness challenge.
o Tiers of Regulation:
! For the stage prior to approximately the end of the first trimester, the abortion decision and its effectuation
must be left to the medical judgment of the pregnant womans attending physician.
! For the stage subsequent to approximately the end of the first trimester, the State, in promoting its interest in
the health of the mother, may, if it chooses, regulate the abortion procedure in ways that are reasonably
related to maternal health.
! For the stage subsequent to viability (the time when the fetus could live outside the mothers womb), the State
in promoting its interest in the potentiality of human life may, if it chooses, regulate, and even proscribe,
abortion except where it is necessary, in appropriate medical judgment, for the preservation of the life or
health of the mother.
o Dissent (Rehnquist):
! Doesnt believe the right to privacy is involved in this case. Nor is the privacy that the Court finds in this
case in the ordinary usage of that word, even a distant relative of the freedom from searches and seizures
protected by the 4th Amendment.
! The decision here to break pregnancy into three distinct terms and to outline the permissible restrictions the
State may impose in each one, for example, partakes more of judicial legislation than it does of a
determination of the intent of the drafters of the 14th Amendment.
! The only conclusion possible from this history (of abortions restricting laws since 1850s) is that the drafters
did not intend to have the 14th Amendment withdraw from the States the power to legislate with respect to this
matter.

II. Federalism and the Limits of Legislative Power

Class #8: Introduction to Federalism:
--pp.115-126
(a) The Classic Case: McCulloch v. Maryland, (1819)(p. 117)(Marshall)
The Maryland legislature had passed an act to impose a tax on all banks, or its branches, within the state of
Maryland, not chartered by the legislature. The defendant, a cashier at the Bank of the United States, had issued
notes that were not issued on stamped paper in the manner prescribed by the state act. The plaintiff, State of
Maryland, brought suit to recover penalties under the act. The county court found for the plaintiff, and the court
of appeals affirmed. On appeal, the court reversed holding that the act to incorporate the Bank of the United
States was a law made in pursuance of the Constitution. Moreover, the court held that the law imposing a tax on
the Bank of the United States was unconstitutional and void because the states had no power to burden the
operation of the constitutional laws enacted by Congress.
Necessary and proper to carry into execution the powers, of the government.
o The clause is placed among the powers of congress, not among the limitations on those powers.
o It terms purport, to enlarge, not to diminish the powers vested in the government. It purports to be an
additional power, not a restriction on those already granted.
Issue:
Has Congress's power to incorporate a bank?
Whether the state of Maryland may, without violating the constitution, tax that branch?

21

Analysis:
Bank:
Though any one state may be willing to control its operations, no state is willing to allow others to control them.
The nation, on those subjects on which it can act, must necessarily bind its component parts.
The question is not left to mere reason: the people have in express terms, decided it, by saying, "this constitution,
and the laws of the U.S., which shall be made in pursuance thereof," "shall be the supreme law of the land,"
There is no power in the enumerated powers to form a bank or creating a corporation. But there is no phrase in the
instrument which, like the articles of confederation, excludes incidental or implied powers; and which requires that
everything granted shall be expressly and minutely described.
The govt which has a right to do an act, and has imposed on it, the duty of performing that act, must, according to
the dictates of reason, be allowed to select the means; and those who contend that it may not select the means; that
one particular mode of effecting the object is excepted, take upon themselves the burden of establishing that
exception.
"Necessary" - controlling the whole sentence "which may have relation to the powers conferred on the govt, but
such only as may be "necessary and proper." This means as indispensable and without which the power would be
nugatory. - excludes the choice of means, and leaves to congress, in each case, that only which is most direct and
simple.
Tax:
The power to create implies a power to preserve;
That a power to destroy, if wielded by a different hand, is hostile to, and incompatible with these powers to create
and to preserve;
That where this repugnancy exists, that authority which is supreme must control, not yield to that over which it is
supreme.
Taxation is said to be an absolute power, which acknowledges no other limits than those expressly prescribed in the
constitution, and like sovereign power of every other description, is entrusted to the discretion of those who use it.
(b) The Values of Federalism
--READER pp.270-295

Class #9: The History of the Commerce Clause

--pp.158-184

Gibbons v. Ogden, (1824)(p. 159)(Marshall)

o The subject to be regulated is commerce; and our constitution being one of enumerations, and not of
definition, to ascertain the extent of the power, it becomes necessary to settle the meaning of the word.
Intercourse; the commercial intercourse between nations and parts of nations.
o If Congress has the power to regulate it, that power must be exercised whenever the subject exists. If it
exists within the States, if a foreign voyage may commence or terminate at a port within a State, then
the power of Congress may be exercise within a State.
o A state act gave an exclusive right to certain individuals to use steam navigation in all the waters of New
York for 30 years from 1808. An injunction was issued restraining defendants from navigating steamboats in
the waters within the state because of this exclusive privilege violated an act of Congress which regulated the
licensing of ships and vessels in the coasting trade and fisheries and was repugnant to the Constitution and
laws of the United States. The state court found in favor of the plaintiff, and defendants appealed. On
appeal, the court reversed, finding that the act of Congress gave full authority to defendants vessels to
navigate the waters of the United States. The law of the state of New York, prohibiting the vessels from
navigating the waters of the state, was repugnant to the Constitution and void.

The Limited Federal Commerce Power (1890s-1937):

o Dual Federalism: the view that the federal and state governments were separate sovereigns, that each had
separate zones of authority, and that it was the judicial role to protect the states by interpreting and enforcing
the Constitution to protect the zone of activities reserved to the states.
! Doctrines of Dual Federalism:

22

The Court narrowly defined the meaning of commerce so as to leave a zone of power to the states.
Commerce was one stage of business, distinct from earlier phases such as mining, manufacturing, or
production. Therefore, only commerce itself could be regulated by Congress; the others were left to
the states.
The Court restrictively defined among the states as allowing Congress to regulate only when there
was a substantial effect on interstate commerce. In all other areas, regulation again was left to the
states.
The Court held that the 10th Amendment reserved a zone of activities to the states and that even
federal laws within the scope of the commerce clause were unconstitutional if they invaded that zone.
Broad Federal Commerce Power (1937-1990s):
o Roosevelts Court packing plan that would have added up to six new justices to the Supreme Court in order
for Roosevelt to secure votes to New Deal legislative challenges. There were currently nine justices and
extreme political pressure for a less rigid court as it related to interstate commerce in order to jump start the
economy back from the Great Depression.
o The court packing plan met with opposition because there was a fear that it would interfere with judicial
independence from the political process.
o However, one of the justices, Owen Roberts, changed his position on a couple key issues that upheld some
key New Deal legislation, allowing Roosevelt to back off of the court packing plan. This was known as a
switch in time that saved nine, meaning that if Justice Roberts had not switched his position, there could
have potentially been up to 15 Supreme Court Justices.
o Commerce includes all stages of business; no longer is a distinction drawn between commerce and
other stages of business such as mining, manufacture, and production. Congress can regulate any
activity, intrastate or interstate, that has a substantial effect on interstate commerce.

Three Key Cases in the Broadening Era:

o NLRB v. Jones & Laughlin Steel, Corp., (1937)(p. 170)(Hughes)
! Petitioner, the National Labor Relations Board, challenged the lower courts denial of its petition to
enforce an order requiring respondent employer, which was engaged in the manufacture of iron and steel,
to cease and desist from unfair labor practices, to offer reinstatement to 10 employees at one of its plants
who were dismissed for union activity, to make good their losses in pay, and to post notices. The court
reversed, ruling that the National Labor Relations Act was a proper exercise of Congresss power to
regulate interstate commerce, that employees had a right to self-organization, and that
discrimination and coercion to prevent exercise of this right was a proper subject for condemnation
by legislative authority. The court further ruled that the Act applied to respondents employees
who were engaged exclusively in production because intrastate activities that were closely
connected to interstate commerce were subject to regulation by Congress. The court also ruled that
the Act did not violate the 5th or 7th Amendments.
! Dissent (McReynolds, Van Devanter, Sutherland, & Butler):
The Court is departing from well-established principles followed in earlier cases (Schechter Poultry
Corp. v. United States, and Carter v. Carter Coal Co.). Though differing in some respects, all
respondents procure raw materials outside the state where they manufacture, fabricate within and then
ship beyond to the state. Manifestly that view of congressional power would extend it into almost
every field of human industry.
o United States v. Darby, (1941)(p. 173)(Stone):
! The Court reversed a district court judgment holding that the Act, which it interpreted as a regulation of
manufacturing within the states, was unconstitutional. At issue was whether Congress had constitutional
power to prohibit the shipment in interstate commerce of lumber manufactured by employees whose
wages were less than a prescribed minimum or whose weekly hours of labor at that wage were greater
than a prescribed maximum, and whether it had power to prohibit the employment of workmen in the
production of goods for interstate commerce at other than prescribed wages and hours. The court
ruled that the power of Congress under the Commerce Clause was plenary to exclude any article
from interstate commerce subject only to the specific prohibitions of the Constitution. Further,
Congress, having by the Act adopted the policy of excluding from interstate commerce all good
produced for the commerce which did not conform to the specified labor standards, could choose

23

the means reasonably adapted to the attainment of the permitted end, even though they involved
control of intrastate activities.
Wickard v. Filburn, (1942)(p. 175)(Jackson):
! Appellee farmer filed a complaint against appellants to enjoin enforcement against himself of the
marketing penalty imposed by amendment to the Agricultural Adjustment Act of 1938, and seeking a
declaratory judgment that the wheat marketing quota provisions of the Act applicable to him were
unconstitutional. The district court held that the agriculture secretarys speech advocating quotas had
invalidated the required referendum of farmers affected by the quotas. The district court enjoined
collecting a marketing penalty from appellee and from subjecting appellees entire crop to a lien for the
payment of the penalty and from collecting a penalty. The Court determined that the secretarys speech
did not have the effect of invalidating a referendum. Appellees complaint was found frivolous and
injunction unwarranted. The Court also found that the Act amendment was not violative of the 5th
Amendment. Appellee was not denied due process by a penalty being imposed because government
regulation was by an authorized act of Congress and was within its commerce powers. The
judgment of the district court was reversed.
Heart of Atlanta Motel, Inc. v. United States, (1964)(p. 178)(Clark)
o The motel, which discriminated in the renting of its rooms on the basis of race, sought review of a
judgment by attacking in the constitutionality of Title II of the Civil Rights Act of 1964. The motel
contended that in enacting the statute Congress exceeded its power to regulate commerce under the
Commerce Clause and violated the 5th and 13th Amendments. Affirming the judgment, the Court held
that the power of Congress over interstate commerce extended to those intrastate activities that so
affected interstate commerce or the exercise of Congressional power over it to make regulation of
them an appropriate means to exercise its power over interstate commerce. Further, the power of
Congress to promote interstate commerce also included the power to regulate the local incidents
thereof, including local activities in both the state of origin and destination, which might have a
substantial and harmful effect upon that commerce. Accordingly, Congress was within its power to
prohibit racial discrimination by motels serving travelers, however local their operations appeared.
o Concurrence (Douglas):
! The rights of people to move freely form state to state occupies a more protected position in our
constitutional system than does the movement of cattle, fruit, steel and coal across state lines. The
result reached by the Court is for me much more obvious as a protective measure under the 14th
Amendment than the Commerce Clause.
Katzenbach v. McClung, Sr. & McClung, Jr., (1964)(p. 180)(Clark)
o An injunctive restraining appellant from enforcing Title II of the Civil Rights Act of 1964 against
appellee came before the court on direct appeal. The court stated that it was important that a decision on
the constitutionality of the Act be announced quickly because interference with governmental action had
occurred. Appellee served food procured via interstate commerce and served interstate travelers, but
refused to serve Negroes. The district court held that the Commerce Clause did not apply because there
was no demonstrable connection between food purchased in interstate commerce and the conclusion of
Congress that discrimination in the restaurant would affect commerce. The court stated that the
enforcement of Title II had already been found to be a valid exercise of the power to regulate
commerce by requiring hotels to serve transients without regard to their race or color and held it
was equally valid in the case of restaurants. By refusing to serve Negroes, the restaurant spent less
money, restricted the ability of Negroes to travel interstate, and obstructed interstate commerce.
The court therefore held the regulatory scheme of Title II was valid.

Perez v. United States, (1971)(p. 182)(Douglas)

o For his extortionate credit transactions whereby he used the threat of violence as a method of collection,
petitioner was convicted for loan sharking pursuant to Title II of the Consumer Protection Act. Petitioner
sought review of his conviction, contending that the Act as construed and applied to him was an
unconstitutional exercise by Congress of its power under the Commerce Clause. On cert, the court affirmed,
ruling that Congress regulation of such credit transactions was supported by its findings, that while

24

extortionate credit transactions were purely intrastate, they directly affected interstate and foreign
commerce, and that there existed a link between local loan sharks and interstate crime.
Consequently, the Act was a valid exercise of Congress powers under the Commerce Clause, as the
regulation of the class designated as those who engage in extortionate credit transactions, in intrastate
activities, which affected interstate commerce, was an appropriate means for Congress to use to attain its
legitimate end of regulating interstate commerce.
Dissent (Stewart):
! A man can be convicted without any proof of interstate movement, of the use of the facilities of interstate
commerce, or of facts showing that his conduct affected. I think the framers of the Constitution never
intended that the National Government might define as a crime prosecute such wholly local activity
through the enactment of federal criminal laws.

Class #10: Modern Commerce Clause Doctrine I: Lopez, Morrison, and Raich
--pp.190-220
Narrowing the Commerce Power and Revival of 10th Amendment as a Constraint on Congress: (1990s now)

United States v. Lopez, (1995)(p. 190)(Rehnquist)

o Respondent was convicted of violating the Gun-Free School Zones Act of 1990 after carrying a concealed
handgun and bullets to school. Respondents conviction was reversed on appeal. In upholding the reversal, the
Court held the GFSZA was invalid because it was beyond the power of Congress under the Commerce Clause.
The law had nothing to do with commerce or any economic activity, and, therefore, could not be sustained as a
regulation of activity arising out of or connected with a commercial transaction, which when viewed in the
aggregate, substantially affected interstate commerce.
o Concurrence (Kennedy & OConnor):
o Concurrence (Thomas):
! In applying the effects test, we ask whether the class of activities as a whole substantially affects interstate
commerce, not whether any specific activity within the class has such effects when considered in isolation.
o Dissent (Stevens):
! Guns are both articles of commerce and articles that can be used to restrain commerce. Their possession is
the consequence, either directly or indirectly, of commercial activity. Congresss power to regulate
commerce in firearms includes the power to prohibit possession of guns at any location because of their
potentially harmful use; it also follows that Congress may also prohibit their possession in particular markets.
o Dissent (Souter):
! The majority opinion upsets the stare decisis of the past 60 years and returns to a time when economic industry
and freedom to contract were the only guiding principles of the commerce clause. We should stick to our
history and follow the course the court has taken since 1937.
o Dissent (Breyer, Stevens, Souter, and Ginsburg):
! The gun prohibition at schools law falls within the scope of the commerce power as this court has understood
that power over the last half century.
First, the power to regulate Commerceamong the several states, encompasses the power to regulate
local activities insofar as they significantly affect interstate commerce.
Second, in determining whether a local activity will likely have a significant effect upon interstate
commerce, a court must consider, not the effect of an individual act (a single instance of gun possession),
but rather the cumulative effect of all similar instances (i.e. the effect of all guns possessed in or near
schools).
Third, The Constitution requires us to judge the connection between a regulated activity and interstate
commerce, not directly, but at one remove. Courts must give Congress a degree of leeway in determining
the existence of a significant factual connection between the regulated activity and interstate commerce
both because the Constitution delegates the commerce power directly to Congress and because the
determination requires an empirical judgment of a kind that a legislature is more likely than a court to
make with accuracy.

25

The majoritys holding that falls outside the scope of the Commerce Clause creates three serious legal
problems.
First, the majoritys holding runs contrary to modern Supreme Court cases that have upheld congressional
actions despite connections to interstate or foreign commerce that are less significant than the effect of
school violence.
The second legal problem the Court creates comes from its apparent belief that it can reconcile its holding
with earlier cases by making a critical distinction between commercial and noncommercial
transactions. This courts earlier warning not to turn questions of the power of Congress upon
formulas that would give controlling force to nomenclature such as production and indirect and
foreclose consideration of the actual effects of the activity in question upon interstate commerce.
The third legal problem created by the Courts holding is that it threatens legal uncertainty in an area of
law that, until this case, seemed reasonably well settled.

United States v. Morrison, (2000)(p. 202)(Rehnquist)

o Petitioner victim brought an action against respondent offender under 42 USCS 13981, which provided a federal
civil remedy for the victims of gender-motivated violence. The lower court struck down the law and concluded
that Congress lacked constitutional authority to enact the statute under either the Commerce Clause or 14th
Amendment, 5. The Court rejected petitioners argument that the law was a regulation of activity that
substantially affected interstate commerce. The court affirmed the decision of the lower court and held that
gender-motivated crimes of violence were not considered economic activity, and therefore, the commerce clause
did not vest Congress with the authority to enact a statute regulating such. Moreover, the court affirmed that the
civil remedy contained in the law should be struck down as it was outside Congresss remedial power under the
14th Amendment. The civil remedy was not found to be corrective in its character nor adapted to counteract and
redress the operation of such prohibited state laws or proceedings of state officers. Instead, the subject statute
redressed private discrimination and was outside the Congress power to enact.
o Concurrence (Thomas):
! The very notion of a substantial effects test under the Commerce Clause is inconsistent with the original
understanding of Congresss powers and with this Courts early Commerce Clause cases. By continuing to
apply this rootless and malleable standard, however circumscribed, the Court has encouraged the Federal
Government to persist in its view that the Commerce Clause has virtually no limits. Until the Court replaces
its existing Commerce Clause jurisprudence with a standard more consistent with the original understanding,
we will continue to see Congress appropriating state police powers under the guise of regulating commerce.
o Dissent (Souter, Stevens, Ginsburg, and Breyer):
! The business of the courts is to review the congressional assessment, not for soundness, but simply for the
rationality of concluding that a jurisdictional basis exists in fact. Any explicit findings that Congress chooses
to make, though not dispositive of the question of rationality, may advance judicial review by identifying
factual authority on which Congress relied.
! All of this [history] convinces me that todays ebb of the commerce power rests on error, and at the same time
leads me to doubt that the majoritys view will prove to be enduring law.

Gonzales v. Raich, (2005)(p. 210)(Stevens)

o Respondents were California residents who suffered from a variety of serious medical conditions and had sought
to avail themselves of medical marijuana pursuant to the terms of the Compassionate Use Act. After an
investigation, court officials concluded that one respondents use of marijuana was entirely lawful under
California law; nevertheless, federal agents seized and destroyed all six of her cannabis plants. The Court held
that the regulation of marijuana under the CSA was squarely within Congresss commerce power because
production of marijuana meant for home consumption had a substantial effect on supply and demand in
the national market. Given the enforcement difficulties in distinguishing between marijuana cultivated
locally and marijuana grown elsewhere, and concerns about diversion into illicit channels, the Court had
no difficulty concluding that Congress had a rational basis for believing that failure to regulate the
intrastate manufacture and possession of marijuana would leave a gaping hole in the CSA. Congress was
acting well within its authority of the Commerce Clause.
o Concurrence (Scalia):

26

Our cases have mechanically recited that the Commerce Clause permits congressional regulation of three
categories: (1) the channels of interstate commerce; (2) the instrumentalities of interstate commerce, and
persons or things in interstate commerce; and (3) activities that substantially affect interstate commerce.
! I think the regulation must be sustained. Not only is it impossible to distinguish controlled substances
manufactured and distributed intrastate from controlled substances manufactured and distributed interstate,
but it hardly makes sense to speak in such terms. Drugs like marijuana are fungible commodities. As the
Court explains, marijuana that is grown at home and possessed for personal use is never more than an instant
from the interstate market and this is so whether or not the possession is for medicinal use or lawful use
under the laws of a particular State.
Dissent (OConnor, Roberts, and Thomas):
! It has always been a State role to protect the health, safety, and welfare of their citizens. Exercising those
powers, California has decided to allow medical marijuana use, first by ballot and then codified into law).
The Courts decision extinguishes the States authority without any proof of that the personal cultivation,
possession, and use of marijuana for medicinal purposes, if economic activity in the first place, has a
substantial effect on interstate commerce and is therefore an appropriate subject of federal regulation.

Class #11: The Taxing and Spending Power; The Necessary and Proper Clause
--pp. 241-250

Congress shall have the Power to lay and collect Taxes, Duties, Imposts, and Excises to pay the Debts and provide
for the common Defense and general Welfare of the United States, but all Duties, Imposts, and Excises shall be
uniform throughout the United States.
United States v. Butler, (1936)(p. 241)(Roberts)
o The government argued that the Act was valid because Congress was authorized to appropriate and authorize
spending for the general welfare under Article I, and that the Act was an effort to aid farmers during the great
depression. While the Act might have been within Congress power if it fell within the ambit of the term general
welfare, the Court did not have to reach the question of the interpretation of that whether it did so because the
Act was unconstitutional on other grounds. The Act was clearly designed to regulate agriculture by coercing
a non-cooperating minority to a desired action with economic pressure. However, the power to regulate
agriculture was not granted to Congress by the Constitution, but rather, was reserved to the States. The
tax, the appropriation of funds raised, and the direction for their disbursement, were possibly permissible
means to an unconstitutional end. Congress had no power to enforce its commands on the farmer to the ends
sought by the Act, and it could not indirectly accomplish those ends by taxing and spending to purchase
compliance.
o Dissent (Stone):
! The present stress of widely held and strongly expressed differences of opinion of the wisdom of the
Agricultural Adjustment Act makes it important to emphasize certain propositions that should have
controlling influence in determining the validity of the act:
The power of courts to declare a statute unconstitutional should be guided by (1) the courts are concerned
only with the power to enact statutes, not their wisdom; and (2) the only check upon the courts exercise of
power is our own sense of self-restraint.
The constitutional power of Congress to levy taxes upon the processing of agricultural products is not
questioned.
Considering the widespread depression of agriculture, there is no basis for saying that the expenditure of
public money in aid of farmers is not within the specifically granted power of Congress under to provide
for the general welfare clause.
No question of variable tax or of unauthorized delegation of legislative power is presented.
Sabri v. United States, (2004)(p. 245)(Souter)
o The United States Supreme Court found that while not every bribe or kickback offered or paid to agents of
governments covered by 18 USCS 666(b) would be traceably skimmed from specific federal payments, that
possibility portended no enforcement beyond the scope of federal interest because corruption did not have to be
that limited to affect the federal interest. Money was fungible, bribed officials were untrustworthy stewards of

27

federal funds, and corrupt contractors did not deliver dollar-for-dollar value. Money could be drained off because
a federal grant was pouring in, and officials were not any the less threatening to the objects behind federal
spending just because they accepted general retainers. It was enough that the statute conditioned the offense on a
threshold amount of federal dollars defining the federal interest and on a bribe that went well beyond liquor and
cigars. Congresss decision to enact the statute only after other legislation had failed to protect federal interests
was further indication that it was acting within the ambit of the Necessary and Proper Clause.

South Dakota v. Dole, (1987)(p. 248)(Rehnquist)

o Petitioner State permitted persons 19 years of age or older to purchase beer pursuant to S.D. Codified Laws 356-27. However, 23 USCS 158 permitted the reduction of federal highway funds otherwise allocable to a state if
the state had a minimum drinking age below 21. Petitioner sought a declaratory judgment the 158 violated
Congresss spending power, and that it violated the 21st Amendment. The trial court rejected petitioners claims,
and the Court of Appeals for the 8th Circuit affirmed. On cert., the Court affirmed, holding that: (1) the

statutes indirect imposition of a minimum drinking age was a valid exercise of Congresss
spending power, reasonably calculated to advance the general welfare and national concern of safe
interstate travel; and (2) the 21st Amendment was not violated as the statute did not induced petitioner to
o

engage in unconstitutional activities.

Dissent (Brennan):
! Regulation of the minimum age of purchasers of liquor falls squarely within the ambit of those powers
reserved to the States by the 21st Amendment. Since States possess this constitutional power, Congress
cannot condition a federal grant in a manner that abridges this right.
Dissent (OConnor):
! The statute is not a condition on spending reasonably related to the expenditure of federal funds and cannot be
justified on that ground. Rather, it is an attempt to regulate the sale of liquor, an attempt that lies outside
Congresss power to regulate commerce because it falls within the ambit of the 21st Amendment.
--pp.151-158

THE NECESSARY AND PROPER CLAUSE:

United States v. Comstock, (2010)(p. 152)(Breyer)

o The Necessary and Proper Clause granted Congress broad authority to criminalize conduct, imprison those who
engaged in that conduct, and enact laws governing prisons and prisoners in the course of carrying into
Execution the enumerated powers vested by the Constitution in the Government of the US authority
granted by the Necessary and Proper Clause. The law was a modest addition to a set of federal prison-related
mental-health statutes that had existed for many decades, aside from its focus on sexually dangerous persons. The
desire to address the specific challenges identified with mentally ill, sexually dangerous federal prisoners, taken
together with US responsibilities as a federal custodian with the constitutional power to act to protect
communities from the danger its prisoners could pose, satisfied a rational means review. Powers granted by the
Necessary and Proper Clause were, by definition not powers reserved to the States under the 10th Amendment
and, 4248 even required accommodation of state interests. Section 4248 was not too sweeping in scope. From
the implied power to punish, the federal civil-commitment power was inferred.
Five Considerations:
o The breadth of the Necessary and Proper Clause,
o The long history of federal involvement in this arena,
o The sound reasons of the statutes enactment in light of the Governments custodial interest in
safeguarding the public from dangers posed by those in federal custody,
o The statutes accommodation of state interests, and
o The statutes narrow scope.

28

Class #12: The Health

pp.121-151

Care Cases: The Commerce, Taxing, and Spending Powers Revisited

National Federation of Independent Business v. Sebelius, (2012)(p. 129)(Roberts)

o Twenty-six states, as well as private individuals and organization of independent businesses, brought action
against federal Health and Human Services (HHS), Treasury, and Labor Departments and their Secretaries,
challenging constitutionality of Patient Protection and Affordable Care Act (PPACA). The United States District
Court granted summary judgment to defendants on state plaintiffs' claim that Act's expansion of Medicaid was
unconstitutional, concluded that Act's individual mandate provision exceeded congressional authority and was not
severable, and declared entire Act invalid. The District Court further clarified its order and entered a stay pending
appeal, 780 F.Supp.2d 1307. Defendants appealed, and state plaintiffs cross-appealed as to Medicaid expansion.
The United States Court of Appeals for the Eleventh Circuit, Dubina, Chief Judge, and Hull, Circuit Judge, 648
F.3d 1235, affirmed as to unconstitutionality of individual mandate, reversed determination of non-severability,
and affirmed as to constitutionality of Medicaid expansion. Certiorari was granted.
Centerpieces of Bill (Affordable Healthcare Act):
Individual Mandate
o Relates to everyone paying so that insurance companies can afford to pay for the sick since they can't charge
differently for pre-existing conditions.
Insurance Exchanges:
o Each state can create a place to shop for insurance
o States that didn't set it up, the federal govt set up for them.
o Tax credit for premiums for policies purchased on the exchange.
Increase Medicaid Eligibility and encouraged states to broaden Medicaid
o 133% of poverty line covered
o If state didn't change its current plan, all federal Medicaid funding would be withheld.
The Case:
After oral arguments, it seemed pretty clear that there were 5 votes to strike down the individual mandate.
After oral argument, Chief Justice Roberts, changed mind on tax issue
Opinion:
o Scorecard:

Issues:

C.J.
Opinion

Ginsberg
Opinion

Scalia
(SKAT)

1: whether the individual mandate is allowed in the commerce No

clause. (4-5 struck down)

Yes

No

2: whether the individual mandate is allowed as a taxing

power? (5-4 upheld)

Yes

No

3: whether the Medicaid extension is valid under the spending No

power or whether it is coercion. (2-7 struck down)

Yes/No

No

4: whether the Medicaid expansion could be saved or

severed? (5-4 upheld)

Yes

No

Yes

Yes

Core Arguments:
Commerce Clause: Dicta
! No one joins in it, but conclusion is joined.
! Unnecessary to the outcome of the case.
Commerce Clause: Holding:
! Because they agreed with conclusion
! Thoroughly engaged in and vetted by the court
! Everyone thinks its an important issue in the case
! Congress tried to pass as commerce clause legislation and is presented as commerce clause case

29

That is the obvious place that the court should start, and only after commerce clause is decided, then you look
to taxing authority issue.
Commerce Clause: Analysis
! Lopez/Morrison Test
Congress can regulate under the Commerce Clause: (1) Roads, (2) People working in commerce Jurisdictional hook crossing state lines, (3) Substantial effect on interstate commerce
! Arguments why substantially effects interstate commerce:
Legislating to prevent raising the price of healthcare for everyone, affecting the quality/quantity
of care for everyone.
Every person has an interaction with Healthcare market, but it is unpredictable
Regulates the market for goods and services in healthcare
Mandate tries to affect the timing (when they participate), that they have to include third party
(insurance company), and how to pay (by prepayment vs. payment at time or post service)
Any sort of good affects other goods in the market of commerce; therefore squarely within the
current schema for interstate commerce.
Most people believe that the commerce clause challenge was frivolous
! Arguments why commerce clause shouldn't be inclusive in the mandate
Pulling into the market a few people that didn't have anything to do with healthcare
The balance diet and eat healthier - forcing people to buy vegetables and eat healthier, which
affects healthcare cost even more than uninsured.
You can make people buy broccoli, but can't make people eat broccoli
Take away people's right to control own financial affairs
Compelling someone into the market without voluntary consent
Abstention from commerce is not interstate commerce - it's non-commerce
Unprecedented the arguments were - why in 200 years have they never done this before
Two powers that constitution grants the federal govt
General principle of reading the powers carefully - don't read them to their full extent if their
full extent leads to an ultimate police power
If congress can do this, they can do anything
! What did Scalia/Kennedy/Thomas/Alito say:
Lessons of broader commerce clause jurisprudence:
Attempted to apply the commerce clause to something that was not yet a commercial
activity
In analyzing the commerce clause you can't regulate things that are non-economic and
looking at the specific markets making sure you aren't compelling commercial activity
A person has to do something in order to be regulated under the commerce clause
Created a penalty for an omission, instead of creating an incentive for buying health
insurance.
Is this about ends or means?
"let the end be legitimate, but are consistent with the spirit of the constitution
should be included in it, but not those that are not" John Marshall argument
Congress has limited powers, not general police power, shared authority with states,
land of freedom where can't be compelled to do things, creates a jurisprudence of
improper means.
Something rotten about what's going on here, that isn't enough, you can't do this in
America
This was unprecedented - these particular means didn't resonate with American law
at any time in past until now. Ground breaking
Debate about Taxing Power:
Can you create a penalty or a tax under Congress's power
Choice of buying health insurance or you may pay money to treasury as "penalty"
Can you pass this under taxing power
5 Justices say yes
Problems with calling a tax
!

30

Congress didn't call a tax

Only constitutional if it is an indirect tax
If a direct tax, it must be apportioned by the states capitation
Congress didn't call this a tax - then it wouldn't have passed
! Scalia opinion
Court's opinion on tax issue - undemocratic
That's why we give congress taxing power
It's hard to pass taxes because so unpopular
Anti-injunction argument:
Not a tax within the statute called anti-injunction tax
You must pay tax and sue for refund or not pay and wait until someone comes for you.
If individual mandate is a mandate, there could be consequences for not doing it
Are you a law breaker
A choice instead,
Overall Opinion:
o Roberts looked at Commerce Clause
Move back to very restrictive
He gave Democrats a nudge, but made things more restrictive overall re: Congress' power
His is the moderate position
Substantial reduction of Congress' powers - major move of law to the right
Medicaid Issue:
o Sneaked in, not major issue
o Nothing wrong generally, but 7 justices struck down.
o What is Medicaid system before law:
State administered programs with federal matching funds
Given to people at poverty level:
! With children
! With disabilities
! Blind
! Sick
Administered by states on their own criteria
States voluntarily take money from states prior to 2010
Law does:
Reform the program giving states new criteria
! Covered people up to 133% of poverty line - healthy adults with or without kids
! Adds new condition to states that said if you don't change over criteria, you won't get any federal dollars for
Medicaid.
Constitutional:
! Yes, because a choice for states
! More complicated because the existing program already called Medicaid that states have already established to
cover some people.
If states did not expand program to include more different classes of people, then they lose all federal funds
for Medicaid/
Does South Dakota v. Dole apply:
Are states asked to give up federal funding/do something regulatory and if so, they lose federal dollars.
Are these programs sufficiently distinct
Every state has federal highways - must maintain roads in every state
Dole only loses 5% of funding vs. all funding like ACA
Prior decision by states that already include allowing for changes in Medicaid
If these are distinct pots of money, then is there a constitutional requirement that the federal
funds cannot be coercive?
Must offer states genuine choice.
States
are not offered genuine choice here because

It is the single largest line item in states' budgets

!
!

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It's a total 100% loss of money

States don't really have choice
There is no keystone issue in Medicaid issue
If state opts out, then its citizens are paying to federal taxes that they do not get to take part in.
Counter argument to coercion:
States aren't required to get rid of Medicaid all together
As long as Congress has ability to dismantle whole program and put something in its place, this
is simply procedural, but not substantive.
By calling it coercive to states, it takes away the federal govt's ability to dismantle program and
eliminates congress's choice, making it coercive for on federal govt.
What's the rule: What's too coercive?
Size of funding cut (somewhere between 10%-100%)
We don't know where the line truly is?
Medicaid - Saved or Severed:
Medicaid is invalid to lose all 100% funding
But if state opts out, they lose money for additionally covered individuals but not all money

Class #13: The Civil Rights Enforcement Powers

--pp. 251-266; 284-296

United States v. Morrison (2000)(p. 253) (Rehnquist)
Rape victim that was a student at Virginia Tech and was raped by football players, sued under Commerce Clause
and as an activity that substantially affected interstate commerce, and under the 14th Amendment.
Petitioner victim brought an action against respondent offender under 42 USCS 13981, which provided a federal
civil remedy for the victims of gender-motivated violence. The lower court struck down 13981 and concluded
that Congress lacked constitutional authority to enact the statute under either the Commerce Clause or 14th
Amendment 5. The court rejected petitioners argument that 13981 was a regulation of activity that
substantially affected interstate commerce. The court affirmed the decision of the lower court and held that
gender-motivated crimes of violence were not considered economic activity, and therefore, the Commerce Clause
did not vest Congress with the authority to enact a statute regulating such. Moreover, the courts affirmed that
the civil remedy contained in 13981 should be struck down as it was outside Congresss remedial power
under the 14th Amendment because they affected individual activities and not governmental. The civil
remedy was not found to be corrective in its character nor adapted to counteract and redress the operation of such
prohibited state laws or proceedings of state officers. Instead, the subject statute redressed private discrimination
and was outside Congresss power to enact.
Section 13981 is not aimed at proscribing discrimination by officials which the 14th Amendment might not itself
proscribe; it is directed not at any State or state actor, but at individuals who have committed criminal acts
motivated by gender bias.
If the allegations here are true, no civilized system of justice could fail to provide her a remedy for the
conduct of respondent Morrison. But under our federal system that remedy must be provided by the
Commonwealth of Virginia, and not by the United States.
Katzenbach v. Morgan & Morgan, (1966) (p. 256)(Brennan)
o NY law that prohibited people that couldnt meet a 6th grade English standard of literacy was not allowed
to vote. Challenged under the Equal Protection clause. NY argued that it was a state right under the 10th
Amendment.
o Appellee registered voters challenged the constitutionality of 4(e) of the Voting Rights Act of 1965, which
provided that no person who met specified educational requirements could be denied the right to vote due to
inability to speak or write English, insofar as the Act prohibited enforcement of NY Constitution Article II, 1
and NY Elec. Law 150, which provided that no person could become entitled to vote unless such person was
also able, except for physical disability, to read and write English. The district court granted declaratory and
injunctive relief to appellees, holding that in enacting 4(e) Congress exceeded the powers granted to it by the

32

Constitution and usurped powers reserved to the states by the 10th Amendment. Appeal was taken directly to the
Court, which reversed. It held that under the McCulloch v. Maryland standard, 4 of the Act was plainly
adapted to furthering the Equal Protection Clause and that its remedies constituted means consistent with
the letter and spirit of the constitution. It therefore held that the state English literacy requirement could not be
enforced to the extent that it was inconsistent with 4(e) of the Act.

City of Boerne v. Flores, (1997)(p. 260)(Kennedy)

o Petitioners challenged the judgment in favor of respondents that upheld the constitutionality of the Religious
Freedom Restoration Act of 1993 (RFRA), under an action challenging respondents church building permit
denial. On review, the court held that Congress was afforded broad powers under the Enforcement Clause of the
14th Amendment. However, in most cases, the state laws to which RFRA was not considered remedial or
preventative legislation. The court determined that the RFRA appeared to be an attempt to invoke
substantive change in constitutional protections. Thus, the court held that the RFRA was unconstitutional
because it allowed considerable Congressional intrusion into the states general authority to regulate for
the health and welfare of their citizens.
o Dissent (OConnor and Breyer):
! But as a yardstick for measuring the constitutionality of RFRA, the Court uses its holding in Employment
Div., Dept. of Human Resources of Oregon v. Smith (1990), the decision that prompted Congress to enact
RFRA, as a means of more rigorously enforcing the Free Exercise Clause.

Board of Trustees, University of Alabama v. Garrett, (2001)(p. 284)(Rehnquist)

o The lower court had held that the Americans with Disabilities Act (ADA) validly abrogated the States
immunity under the 11th Amendment. Relying on its prior equal protection precedent, the court
concluded that the states were not required by the 11th Amendment to make special accommodations
for the disabled, so long as their actions towards such individuals had a rational basis. Thus, if special
accommodations for the disabled were to be required, they would have had to come from positive law
and not through the Equal Protection Clause of the 14th Amendment. Congress had not identified a
history and pattern of unconstitutional employment discrimination by the states against the disabled because
its general findings and the anecdotal incidents in the ADAs legislative history fell short of suggesting a
pattern of unconstitutional discrimination on which the 14th Amendment legislation was required to be based.
Even if a pattern of discrimination were shown, however, the rights and remedies in the ADA were not
congruent and proportional to the targeted violation given the ADAs sweeping requirements.
o Dissent (Breyer, Stevens, Souter & Ginsburg)
! Section 5 grants Congress the power to enforce, by appropriate legislation the 14th Amendments equal
protection guarantee. As the Court recognizes, state discrimination in employment against persons with
disabilities might run afoul to Equal Protection Clause where there is no rational relationship between
the disparity of treatment and some legitimate governmental purpose. In my view, Congress reasonably
could have concluded that the remedy before the court constitutes an appropriate way to enforce this
basic equal protection requirement. And that is all the Constitution requires.

Nevada Department of Human Resources v. Hibbs, (2003)(p. 291)(Rehnquist)

o The employee sought leave under the FMLA to care for his ailing wife. Petitioners granted the employees
request but terminated him when he failed to return to work. The Court determined that the employee could sue
the State for money damages in federal court for violation of 29 USCS 2612(a)(1)(C). Congress acted within
its constitutional authority when it sought to abrogate the States immunity for purposes of the FMLAs
family-leave provision. Congress validly exercised its power under the 14th Amendment by enacting the
prophylactic legislation in order to prevent and deter gender-based discrimination in the workplace. The
States record of unconstitutional participation in, and fostering of, gender-based discrimination in the
administration of leave benefits was weighty enough to justify the enactment of prophylactic Equal Protection
Clause legislation. 29 USCS 2612(a)(1)(C) was congruent and proportional to its remedial object, and could be
understood as responsive to, or designed to prevent, unconstitutional behavior.
o Dissent (Scalia):
! The Constitutional violation that is a prerequisite to prophylactic congressional action to enforce the 14th
Amendment is a violation by the State against which the enforcement action is taken. There is no guilt by

33

association, enabling the sovereignty of one State to be abridged under 5 of the 14th Amendment because of
violations by another State, or by most other States, or even by 49 other States.
Dissent (Kennedy, Scalia, & Thomas):
The court is unable to show that States have engaged in a pattern of unlawful conduct which warrants the
remedy of opening state treasuries to private suits. The inability to adduce evidence of alleged
discrimination, coupled with the inescapable fact that the federal scheme is not a remedy but a benefit
program, demonstrate the lack of the requisite link between any problem Congress has identified and the
program it mandated.

Class #14:

The 10th Amendment, the 11th Amendment, and the Anti-Commandeering

Principle
--pp.220-241
--pp.266-268; 270-275; 304-316 (plus handout)

III. Federalism and the Limits on the States Regulatory Authority

Class #15: Introduction and Summary
--pp.432-434, pp.461-487
Cooley v. The Board of Wardens of the Port of Philadelphia, (1851)(p. 463)
o Plaintiffs brought writs of error and sought to be exempted from the payment of half-pilotage fees, which they
were required to pay pursuant to a state law that required certain ships to either receive a pilot or pay a fee.
Plaintiffs contended that the state law contravened provisions of the Constitution. Plaintiffs complained that the
state law was repugnant to the provision of the Constitution that provided that Congress had the power to regulate
commerce with foreign nations and among the several states. The Court affirmed the finding that the state law
was valid and not in conflict with any provisions of the Constitution. The Court found that the grant to
Congress of the power to regulate commerce did not deprive the states of the power to regulate pilots.
Although Congress was granted such power nothing required that it should be exercised exclusively by the
Congress.
Cooley Test:
States could regulate local matters or a national matter
Is it the kind of thing that congress would have wanted a single answer or was it ok to have many answers
depending to the locality?

South Carolina State Highway Department v. Barnwell Bros. Inc., (1938),(p. 464)

About the size of trucks that can travel on state highways

Is this a local concern of a national concern?
o Highway safety?
Court says its a local matter
o Out of state shippers will have to use special equipment to service SC.
Will cost more for everyone (in and out of SC)
The court said they wouldn't assess the safety standards and left it to SC state legislature
Southern Pacific Co. v. Arizona ex rel. Sullivan Attorney General, (1945)(p. 466)

The state brought an action against railroad company to recover statutory penalties for operating within the state two
interstate trains, one a passenger train of more than 14 cars and one a freight train of more than 70 cars. The trial
court gave judgment for the railroad company. The Supreme Court of Arizona reversed and directed judgment for
the state. On appeal, railroads principal contention was that the law contravened the Commerce Clause. The court
held that although the commerce clause conferred on the national government power to regulate commerce, its
possession of the power did not exclude all state power of regulation. However, the Court found that the states were

34

not deemed to have authority to impede substantially the free flow of commerce from state to state, or to regulate
those phases of the national commerce which, because of the need of national uniformity, demanded that their
regulation be prescribed by a single authority. The court concluded that the law went too far, having a seriously
adverse effect on transportation efficiency and economy, and passed beyond what was plainly essential for safety.
About trains, but very similar to South Carolina case
o Argument: Because trains are built more for interstate travel
Court asks:
o Arizona's law is peculiar and different from everywhere else
o What burdens imposing on other states
Other states have to equip their trains to meet AZ laws
Create additional cost
What is the purpose of the AZ law:
! No good reason - not really safer or not - not a significant safety benefit
Court balanced
! Violates the dormant commerce clause

Shift to balancing test has been modern principle since 1945

Scalia, Thomas, Rehnquist have expressed frustration of balancing tests
o You are balancing incommensurate things - apples to oranges
o Unless there is discrimination, we should let the legislature handle this.

Class #16: The Dormant Commerce Clause (continued)

--pp.487-508, 513-516
If Law is Deemed Nondiscriminatory (treating in-staters and out-of-staters the alike)
o Where the statute regulates even-handedly to effectuate a legitimate local public interest, and its effects on
interstate commerce are only incidental,
o it will be upheld,
! Unless the burden imposed on such commerce is clearly excessive in relation to the putative local benefits.
! If a legitimate local purpose is found, then the question becomes one of degree.
And the extent of the burden that will be tolerated will of course depend on the nature of the local interest
involved, and on whether it could be promoted as well with a lesser impact on interstate activities.
Exceptions to the Dormant Commerce Clause:
If Congress approves the state law.
o Even a clearly unconstitutional, discriminatory state law will be allowed if approved by Congress because
Congress has plenary power to regulate commerce among the states.
Market Participant Exception:
o A state may favor its own citizens in receiving benefits from government programs or in dealing with
government-owned businesses.

Supreme Court of New Hampshire v. Kathryn A. Piper, (1985)(p. 513)(Powell)

o Appellee applied and passed the New Hampshire bar. Appellee would have been accepted to the bar of New
Hampshire had appellee established a home address in New Hampshire. Appellee alleged that N.H. Sup. Ct. R.
42, that excluded nonresidents from the bar, violated the Privileges and Immunities Clause of US Constitution,
Art. IV, 2. Appellant, Supreme Court of New Hampshire, alleged that if the state could not exclude nonresidents
from the bar, its ability to function as a sovereign political body would be threatened. The Court held that the
right to practice law was protected by the Privileges and Immunities Clause. The court considered whether
the discrimination bore a close or substantial relationship to the states objectives and considered the
availability of less restrictive means. The court held that that means chosen did not bear the necessary
relationship to the states objectives. Court affirmed that residency requirements violated the Constitution.
City of Philadelphia v. New Jersey, (1978) (p. 469)
Solid or liquid waste
No non-NJ waste shall come into NJ, unless fed to swine
People might want garbage in NJ from outside because there is money to be made processing

35

NJ doesn't want to be the dump of the east coast

Problem with the law:
o Garbage is an article in commerce, but there is a per se rule that prevents the article of commerce from
crossing the boarder
o About a commercial matter and its discriminatory on its face - it has a very high burden to overcome
Must prove that there is no non-discriminatory alternative here

Hunt, Governor of the state of North Carolina v. Washington State Apple Advertising Commission, (1977)
(p. 474)
WA has labelling on apples that has been in place for 60 years, used for marketing and making WA apples more
valuable
NC didn't want any additional labels other than the USDA label.
Facially neutral
Court says law is discriminatory because:
o Battle is between WA and NC apple sellers
o Discriminatory against WA apples and imposes a substantial burden
Different equipment for shipping
Different labeling standards for apples shipped into NC only creating burden to WA apple growers

Wes Lynn Creamery, Inc. v. Healy, Commissioner of Massachusetts Department of Food & Agriculture, (1994)
(p. 480)
Taxed all milk (both in state and out of state) and gave proceeds to in state milk producers in MA
Court asks
o what the purpose is
o Is it discriminatory
o What is the burden
Asking primarily out of state industry to subsidize an in state dairy industry
Court is concerned about purpose of subsidy
o Because they can't compete against out of state dairies
o Protecting local industry against out of state competition.

State of Minnesota v. Clover Leaf Creamery Co.

Involves a statute in which no one can sell milk in plastic jugs
Seems facially neutral, no stats that show in or out of state milk producers use more or less
In state Paper carton containers are national leader in production within Minnesota
Dean Milk Co. v. City of Madison, Wisconsin
Pasteurization must be done quickly within geographic requirements (within 5 miles of City of Madison to be sold
in Madison)
Facially neutral
Discriminatory based on purpose or effect, that the burden to justify it becomes really high
o Two arguments if looks discriminatory:
1. (Clover Leaf case) - Has discriminatory effect by treating paper manufacturers more favorably, you are
giving in state industry more favor.
1. not that big of a burden for others to use paper milk cartons
2. No discrimination because the discrimination factors are so small and are secondary. The statute is
about milk and is too clever to really be discriminatory or constitutionally suspect.
2. Discrimination is justified because it is the only way.
Maine v. Taylor & United States, (1986) (p. 485)
Law that bans a particular kind of live bait
The fish exists in Maine, but you can't bring it in from out of state
o Bringing in out of state may taint in state fish from invasive species and the negative effects they may have

36

IV. Separation of Powers and the Scope of the Federal Executive Power
Class #17: Defining the Powers of the PresidencyThe Steel Seizure Case; Foreign Affairs
pp. 317-327; 369-376

Youngstown Sheet & Tube Co. v. Sawyer, (1952)(p. 318)(Black)

o On the eve of a strike certain steel companies, and executive order was issued directing the Secretary of
Commerce to take possession of most of the nations steel mills. The steel companies obeyed the orders but
brought proceedings against the government, charging that the seizure was not authorized by an act of Congress
or by any constitutional provision. The district court granted a preliminary injunction restraining the
governments continued seizure and possession of the mills, and the court of appeals stayed the injunction. Cert.
was granted. The Court found that a final determination of the constitutionality of the order was proper. The
Court held that the presidential power exerted here could not be sustained as an exercise of the Presidents
military power nor under the several constitutional provisions that granted executive power. The seizure
could not stand because Congress had the exclusive constitutional authority to make laws necessary and
proper to carry out the powers vested by the Constitution. Accordingly, the district courts judgment was
affirmed.
o Concurrence (Jackson): Presidential Powers
! 1. When the President acts pursuant to an express or implied authorization of congress, his authority is at its
maximum, for it includes all that he possess in his own right plus all that Congress can delegate. Then he
personifies the federal sovereignty.
! 2. When the President acts in absence of either a congressional grant or denial of authority, he can only rely
upon his own independent powers, but there is a zone of twilight in which he and Congress may have
concurrent authority, or in which its distribution is uncertain. Therefore, congressional inertia, indifference or
quiescence may sometimes, at least as a practical matter, enable, if not invite, measures of independent
presidential responsibility. In this case, any actual test of power is likely to depend on abstract theories of
law.
! 3. When the President takes measures incompatible with the express or implied will of Congress, his power is
at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional
powers of Congress over the matter. Courts can sustain exclusive Presidential control in such as case only by
disabling the Congress from acting upon the subject. Presidential power must be scrutinized with caution, for
what is at stake is the equilibrium established by our constitutional system.
o Concurrence (Douglas):
! The emergency did not create power; it merely marked an occasion when power should be exercised. The
President can move swiftly, but the Congress, whose power this is, must move much slower in order to allow
for contemplation and debate.
o
Concurrence (Frankfurter):
! The Congress made a conscious choice of policy in a field full of perplexity and peculiarly within legislative
responsibility not to act to intervene with the steel mill strike.
o Dissent (Vinson, Reed, & Minton):
! Emergency times call for emergency measures. The President has nay power under the Constitution to meet a
critical situation in the absence of express statutory authorization, this in on basis for criticizing the exercise
of such power in this case. The Presidents Commander in Chief powers and acted in full conformity with his
duties under the Constitution.

United States v. Curtiss-Wright Export Corp., (1936)(p. 370)

o A joint resolution of Congress authorized the President to declare the sale of arms to certain countries illegal.
Though the President initially issued a proclamation that declared that sales to Bolivia were unlawful, the
President later revoked his proclamation. Defendants allegedly sold arms to Bolivia before the revocation of the
proclamation, and demurred to the charges against them on the ground that the revocation of the proclamation
precluded their prosecution. On appeal, the granting of defendants demurrer was reversed and the case was
remanded. The President had broad discretion to determine the benefit of enforcing a joint resolution on
international relations. The power to make decisions regarding international affairs was vested in the President,
especially in areas that could lead to embarrassment of or security issues for the nation. Defendants argument

37

that the power to declare certain arms sales illegal was invalidly delegated to the President was unjustified. The
revocation of the proclamation did not change defendants violation of the joint resolution; the revocation only
stopped the joint resolution form being enforced against sales to Bolivia in the future.
Arguments Against Broad Interpretation of Presidential Power in Foreign Affairs:
1. Contention that Justice Sutherlands interpretation is inconsistent with a written Constitution that contains
provisions concerning foreign policy. If correct, there would have been no reason for the Constitution to
enumerate any powers in the area of foreign affairs;
2. The history on which Curtis-Wright rests is shockingly inaccurate and not based on the text of the constitution or
the framers intent.
3. If the President has broad powers in foreign affairs, does this mean that Congresss actions to limit the president
are unconstitutional?
Dames & Moore v. Regan, Secretary of the Treasury, (1981)(p. 374)
Petitioner company filed an action against defendants, the Government of Iran and Iranian banks, seeking money
owed for services performed. The district court issued orders of attachment directed against the property of
defendants. Petitioner was granted summary judgment. However, pursuant to an unrelated hostage agreement,
American hostages in Iran were released. The US President issued executive orders to implement the agreement. The
orders nullified all non-Iranian interests in Iranian assets and suspended all settlement claims. Petitioner filed an
action for declaratory relief against the government to prevent enforcement of the executive orders. The district court
dismissed the complaint. Petitioner then sought a writ of cert. The Court affirmed, holding that the executive
orders were sustained by the broad authority granted under the Trade with the Enemy Act. Thus,
attachments obtained by petitioner were specifically made subordinate to further actions that the President
might take under the International Emergency Economic Powers Act. Also, the President was authorized to
suspend pending claims because Congress consented.

Class #18: The Powers of the PresidentWar and the War on Terror
--pp. 376-393
Hamdi v. Rumsfeld, (2004)(p. 382)(OConnor)
The citizen-detainee was born in the US, detained in Afghanistan during the US military action against the Taliban
regime, and transferred to the US. Pursuant to a government officials declaration, the government contended that the
citizen-detainee was an enemy combatant. Aside from unspecified screening processes and military interrogations,
the citizen-detainee received no due process. The Court determined that the Authorization for Use of Military Force,
authorized the detention of individuals in the citizen-detainees circumstances and the the AUMF satisfied the laws
requirement that a detention be pursuant to an Act of Congress. However, under the Mathews analysis, the Court
determined that the citizen-detainee, seeking to challenge his classification as an enemy combatant, was entitled to
receive notice of the factual basis for his classification, and a fair opportunity to rebut the Governments factual
assertions before a neutral decision-maker. The Court rejected the Governments assertion that separation of powers
principles mandated a heavily circumscribed role for the courts in such circumstances.
The Government detention of Hamdi as an enemy combatant does not violate the Constitution. By detaining
Hamdi, the President, in the prosecution of a war and authorized by Congress, has acted well within his
authority.
Doe v. Bush, 323 F.3d133 (1st Cir. 2003)
Members of the US Military, parents of military personnel, and members of the US House of Representatives filed an
action against the President and Secretary of Defense, seeking a preliminary injunction preventing the President and
Secretary from initiating a war against Iraq. On appeal form the trial courts judgment dismissing the action, the court
of appeals held that (1) the plaintiffs argument that the President and the Congress were in collusion because the
President was about to act in violation of the Authorization for Use of Military Force Against Iraq Resolution of 2002,
was not ripe for review, (2) there was insufficient evidence to support the plaintiffs argument that the President and
Congress were in collusion because Congress handed over its exclusive power to declare war to the President; and (3)
under the circumstances, judicial intervention was not warranted.

38

Class #19: Checks on the President--Impeachment, Law Suit, Prosecution

-- pp.327-333; 419-429; review pp. 110-114
Executive Privilege:
The ability of the president to keep secret conversations with or memoranda to or form advisors.
Presidents contend that the executive privilege is necessary for them to receive candid advice and to protect national
security, and diplomacy is regarded as requiring secrecy.
United States v. Richard Nixon, President of the United States, (1974)(p. 329)
The President of the United States invoked executive privilege to avoid compliance with a third-party subpoena duces
tecum that required the production of tape recordings and documents. A special prosecutor sought to obtain
information concerning meetings between the President and certain individuals charged with obstruction of justice,
conspiracy, and other offenses. The Presidents motion to quash the subpoena was denied, and cross-petitions for
immediate review were granted. Holding that the Presidents general privilege of confidentiality did not extend to an
absolute privilege of immunity from all judicial process, the US Supreme Court affirmed the denial of the motion to
quash. Issues relating to the production of documents in a pending criminal case were justiciable and were properly
heard on interlocutory appeal in a case involving the President. Because the special prosecutor had demonstrated a
specific need for the evidence sought by way of subpoena and had complied with the requirements of the criminal
code, it was proper to compel production and to examine the material in cameral. The legitimate needs of the judicial
process outweighed the executive privilege.
Richard Nixon v. Ernest Fitzgerald, (1982)(p. 419)(Powell)
Respondent, a former government employee, filed a suit against petitioner, a former US President, for retaliatory
discharge. After petitioners motion to dismiss based upon a claim of absolute immunity was denied, petitioner filed a
motion for a writ of cert. In reversing the lower courts decision, the Court noted that a grant of absolute
immunity to the President would not leave the President with unfettered power. The Court stated that there
were formal and informal checks on presidential action that did not apply with equal force to other executive
officials. The Court observed that the President was subjected to constant scrutiny by the press. It noted that vigilant
oversight by Congress would also serve to deter presidential abuses of office, as well as to make credible the threat of
impeachment. The court determined that other incentives to avoid misconduct existed, including a desire to earn
reelection, the need to maintain prestige as an element of presidential influence, and a Presidents traditional concern
for his historical stature.
Clinton v. Paula Corbin Jones, (1997)(p. 422)(Stevens)
Respondent, a private citizen, sought to recover damages from petitioner, the President of the US, based on actions
that allegedly took place before his term began. Petitioner argued that in all but the most exceptional cases, the US
Constititution requires federal courts to delay such litigation until the Presidents term ends. The court held that the
doctrine of separation of powers did not require federal courts to stay all private actions against the President until he
leaves office. However, the court held that it was appropriate for the district court to consider potential burdens on the
President in evaluating the management of the case. It was an abuse of discretion for the district court to delay the
trial until after petitioner leaves office.

Class #20: (a) The Problem of the Administrative State; (b) Functionalism and
Formalism: The Legislative Veto and the Line-Item Veto
--reader pp. 355-364 (intro and Lawson)
--pp.333-358
Clinton, President of the United States v. City of New York, (1998)(p.333)(Stevens)
Appellees challenged the constitutionality of the Line Item Veto Act after appellant, the US President
exercised his authority under the Act to cancel one provision in the Balanced Budget Act of 1997, and two
provisions of the Taxpayer Relief Act of 1997. On review, the US Supreme Court affirmed that the cancellation
procedures set forth in the Act violated the Presentment Clause of the Constitution, in Art. I. The Court held

39

that constitutional silence on the subject of unilateral Presidential action that either repeals or amends
parts of duly enacted statutes is equivalent to an express prohibition. Thus, cancellations pursuant to the
Act had no legal force or effect and failed to satisfy the procedures.
Administrative State:
Agencies exercise legislative, executive and judicial authority.
The combination of L, E, & J power in the same hands is troubling.
Nondelegation Doctrine:
The principle that Congress may not delegate its legislative power to administrative agencies.
Schechter Poultry Corp. v. United States, (1935)(p. 340)(Hughes)
Defendant, a corporation, was convicted of violating the Live Poultry Code, which was promulgated under Section 3
of the National Industrial Recovery Act. The Act authorized the President to approve codes of fair competition, and
the Code was approved by an executive order. The Supreme Court reversed the judgment of the appellate court,
which sustained the conviction. The Court held that the code provisions invalid because the improperly delegated
legislative power to the Executive Branch and because the provisions regarding minimum wages and maximum hours
attempted to regulate intrastate transactions that affected interstate commerce only indirectly. The Court found that
the Act prescribed no constitutional method or procedure for ascertaining unfair methods of competition. Instead, of
prescribing rules of conduct, the Act authorized the making of codes to prescribe them. The discretion of the
President in approving or prescribing codes was virtually unfettered and, delegation of legislative power.
Panama Refining Co. v. Ryan, (1935) (p. 341)(Hughes)
Congress left a matter relating to oil transport in the hands of the President without standard or rule, to be dealt with
as he pleased.
This violated the constitutional provision that Congress is the legislative body and legislative powers are vested in
them alone.
Whitman v. American Trucking Association Inc. (2001) (p. 342)
The court found the CAA, which required the EPA to set air quality standards at a level to protect the public health
with an adequate margin of safety, fit comfortably within the scope of discretion permitted by its precedent. Also, the
court affirmed the court of appeals holding that the CAA unambiguously barred cost considerations from the
NAAQS-setting process. Further, the court found that the court of appeals had jurisdiction to review the EPAs
interpretation of the part of the CAA relating to the implementation of the revised ozone NAAQS, since its
implementation policy was a final agency action that was ripe for review. However, the court remanded the
action, since it held that the EPAs implementation policy for nonattainment areas was unlawful. Whatever effect
could be accorded gaps in the section addressing ozone specifically subpart 2, as implying some limited applicability
of section containing general nonattainment regulations that pertained to every pollutant, they could not be thought to
render subpart 2s carefully designed restrictions on EPA discretion utterly nugatory once a new standard had been
promulgated.

V. Equal Protection and an Introduction to Individual Rights

Class #21: The Structure of Individual Rights Claims
--pp. 517-539, 545-553
Evolution of Equal Protection:
Lockner Area
o Lots of second guessing
Time After that (1937-1990s):
o Extreme deference to legislature
Modern Solution:
o Not to treat all laws the same
o We sort laws and govt classifications, treating some with deference and some with scrutiny

40

Tiered System:
o Rational Basis
o Strict Scrutiny

Level

Means

Ends

Burden

Trigger

Rational Basis

Rational

Legitimate

Challenger

(default standard of review that doesn't make it a higher

standard)

Strict Scrutiny

Necessary

Compelling Government

Race, National Origin, Alienage, Fundamental Rights

Law; e.g. voting

Intermediate
Scrutiny

Substantial
Relationship

Important

Gender, non-marital children (legitimacy); e.g. test for

content neutral speech

Government

Framework for Equal Protection Analysis:

1. First, the one that alleges an equal protection violation has the burden of proving the existence of purposeful
discrimination and that they had a discriminatory effect on him.
2. Is there a discriminatory purpose?
3. What is the Classification:
a. Two basic ways of establishing a classification:
1. Classification exists on the face of the law specifically designates a group to prohibit.
2. Facially neutral, but there is a discriminatory impact to the law or discriminatory effects from its
administration. law requiring all police officers be 510 and 150 lbs. implicitly discriminates against
women who likely dont fit that standard.
4. What is the Appropriate Level of Scrutiny?
a. Strict Scrutiny - Discrimination based on race or national origin.
1. Discrimination against aliens
2. A law is upheld if it is proven necessary to achieve a compelling governemental purpose.
3. The Govt must have truly significant reason for discriminating and it must show that it cannot achieve its
objective through any less discriminatory alternative.
4. The Govt has the burden to prove that it is necessary to achieve a compelling state purpose.
5. Usually fatal to the challenged law.
b. Intermediate Scrutiny discrimination based on gender and for discrimination against nonmarital children.
1. A law is upheld if it is substantially related to an important govt purpose.
2. The court needs not find that the govts purpose is compelling but it must characterize the objective as
important
3. The means used need not be necessary, but must have a substantial relationship to the end being sought.
4. The government has the burden of proof.
c. Rational Basis a minimum level of scrutiny that all laws challenged under equal protection must meet.
1. A law will be upheld if it is rationally related to a legitimate government purpose.
2. The govt objective need not be objective or important, but just something that the govt legitimately may do.
3. The means chosen only need be a rational way to accomplish the end.
4. The challenger has the burden of proof.
d. Things to help Court decide:
1. Immutability unfair to penalize a person for characteristics that the person did not choose and that the
individual cannot change.
2. Ability of the Group to Protect itself through political process underrepresentation in political offices
and/or right to vote
3. History of Discrimination Against the Group
4. Likelihood that the Classification reflects prejudice as opposed to a permissible govt purpose.
1. Race virtually never an acceptable justification for govt action
2. Gender biological differences may require different standards.
5. Numerical minorities population

41

6. Insular - races tend to live among themselves

7. Classifications are more likely to be made based on stereotypes
5. Does the Government Action Meet the Level of Scrutiny?
a. Look at under-inclusiveness (does not apply to individuals who are similar) or over-inclusiveness (applies to those
who need not be include in order for govt to meet purpose)
Rational Basis Cases:
Rational Basis Cases have Two Types:
Some have intermediate scrutiny
Some have no scrutiny at all
How do we apply equal protection norms to the federal government:
Due process clause of the 5th Amendment, requires the federal government to read in due process to the 14th
Amendment.
Railway Express Agency, Inc. v. New York
336 U.S. 106 (1949)
(p. 727)
When you drive a motor vehicle in NY you can't advertise anything on the side of the vehicle, unless it is your own
business.
Challenged on equal protection for:
NY:
o Trucks were a distraction
Third Party Trucks:
o Owners trucks would be just as distracting as 3rd party trucks
Irrational statute that should violate the equal protection clause:
Holding:
Advertising done by owners might advertise differently than non-owners
The statute is meant to combat distraction, noise pollution, visual pollution
The court says that's enough because the statute's means meet the ends.
Forwards the overall scheme
It's" under-inclusive", but doesn't mean it's unconstitutional
Really protecting newspapers that competed all the time. They advertised loudly and with their big trucks. They thought
it was good for the city and commerce.
Justice Jackson's concurring opinion:
Agrees with the court ultimately, but doesn't like that equal protection claims are destined for a bigger future and
thinks that the equal protection clause will play a bigger role in democracy - doesn't bar the govt from doing
something and yet equal protection holds the legislature's foot to the fire and protects against govt over-reaching.
Holds that if you take away rights, not only other people's rights, but you have to limit your own too.
A revitalized equal protection clause might protect liberty, but limit govt over-interference.

New York Transit Authority v. Beazer
440 U.S. 568 (1979)
(p. 729)
Banned people that take methadone from working for the transportation department
Challenged under equal protection
Argument:
o Violates equal protection because law is over-inclusive because yes some people using methadone are likely
to relapse, but by in large most people that use methadone do not recidivate back to drug use. Therefore, no
difference in users.

42

There has to be some means and ends, but you can't bar people from working for the transportation
department overall, maybe only those driving trains.
Court overturns lower court's ruling
o No bright line rule to find where those that might recidivate and those that won't. It would have to be done on
the one off determination. It should be the legislature's responsibility to draw the line.
o If the court doesn't think that there is anything of bias in the statute, that over-inclusiveness is ok.
o Since the rule was not motivated by racial animus, there was no rebuttal claim that it was merely a
pretext for intentional discrimination.
o

U.S. Railroad Retirement Board v. Fritz

449 U.S. 166 (1980)
(scrib case on p. 725)

Lots of individual unfairness

Equal protection challenges were brought
Govt didn't understand statute so couldn't defend this
Questions:
o If you have a rational basis that the court thinks is rational, do you have evidence of the actual basis in the
record?
It only has to be a conceivable basis - it's too hard to figure out what the legislature even relied on at all.
As long as you come into court and you point to a conceivable basis, even if it's wildly over or underinclusive, it meets the standard rational basis review.
Legislatures don't always have just one policy reason, they can have different policy rationales for each.
Therefore, both types of rules are ok.

U.S. Department of Agriculture v. Moreno

413 U.S. 528 (1973)
(p. 733)
Changes to food stamps
Two plaintiffs that are categorically excluded from food stamps based on who they live with
Reasons motivating legislation:
Worried about hippies and communes
Worried that a lot of money would go into communes and would encourage not having jobs.
Arguments:
Govt:
o Prevents fraud
o Only certain categories of people are supposed to get food stamps
Plaintiffs
o Over-inclusive
o There are other ways of preventing fraud
Holding:
Court finds equal protection violation because duplicative, there are other anti-fraudulent laws, doesn't
actually work toward specific purpose because in practical operation, it more likely affects those in desperate
need of aid and isn't going to really eliminate fraud
This is really meant to target a specific group of people and is meant to harm people
"the mere desire to harm is animous" If it is clear that what is going on is the intent to harm an unpopular group,
it is going to fail.
Motivated by bias that is meant to treat people unequally.
City of Cleburne, Texas v. Cleburne Living Center, Inc.
473 U.S. 432 (1985)
(p. 736)

43

Mental retardation is a "quasi-suspect" classification and the ordinance violated the equal protection clause because
it did not substantially further an important governmental purpose.
What is the scrutiny of this group? Is a disability something that should rise to a higher level of scrutiny?
Court holds:
The particular decision in this case, doesn't meet rational scrutiny and is discriminatory.
Rational Basis "with bite" or rational basis "plus"

Romer v. Evans
517 U.S. 620 (1996)
(p. 720)

"neither knows nor tolerates classes among citizens." Plessy v. Ferguson (1896)
Challenged Colorado Amendment 2 that took away the designation to protect gays and lesbians.
Passed a statewide referendum that banned anti-discrimination of gays and lesbians passed by liberal municipalities
Rational basis review had previously been perfunctory, and were looking for a way to get heightened scrutiny
Court granted cert:
o Applied rational basis review, but applied a heightened rational basis and struck down law
State argument:
o Defending Amendment 2 is that it puts gays and lesbians in the same position as all other persons.
o Are these claims for equal rights or special rights?
o Respect for other citizens' freedom of association and in particular the liberties of landlords or employers who
have personal or religious objections to homosexuality.
Court Holding:
o This is almost a statute that takes a broad frontal assault on some types of people.
o This is irrational because lacks rational state interests
o Looks under hood and is motivated by animosity toward a specific group and meant to harm.
If you're in a world where you are trying to challenge on rational basis, --> in certain kinds of cases where
there's some reason to believe it is a bear desire to harm, we apply a different kind of rational basis -->"
rational basis with bite"/"rational basis plus"
o Perhaps Romer is a weigh station on the way to a heightened form of scrutiny for sexual orientation cases.

Class #23: Racial Classifications: The Coming of Strict Scrutiny and the End of
Segregation
--pp. 746-766
Strict Scrutiny: Race
Immutable - unable to pick your race
History of discrimination
Numerical minorities population
Insular - races tend to live among themselves
Classifications are more likely to be made based on stereotypes
Racial classifications will be allowed only if the government can meet the heavy burden of demonstrating that the
discrimination is necessary to achieve a compelling government purpose.
Either discriminatory on its face or facially neutral
Korematsu v. United States, (1944) (p. 748)
Petitioner challenged the assumption underlying the order and claimed that when the exclusion order was
enacted, all danger of Japanese invasion of the exclusion area had disappeared. The Corut held that the
exclusion order under which petitioner was convicted was valid and, thus, upheld the conviction.
Because the order curtailed the rights of a group based on national origin, the order was inherently suspect
and rigid scrutiny was applied. The Court found that the exclusion order, like a previously upheld curfew

44

order, was intended to prevent espionage and sabotage in threatened areas during war. Moreover, the
Court could not reject the judgment of the military and congress that there were disloyal members of the
population who constituted a menace to the national defense and safety. Compulsory exclusion of groups
of citizens from their homes, except under circumstances of direct emergency and peril, was inconsistent
with the basic governmental institutions. However, the Court held that the exclusion order was justified
by the exigencies of war and the threat to national security.
Loving v. Virginia, (1967) (p. 754)(Warren)
Appellants were indicted on charges of violating the states ban on interracial marriages. After their conviction,
appellants took up residence out-of-state and instituted a class action requesting that the state antimascegenation
statutes, be declared unconstitutional. The Court reversed the judgment of the appellate court, which had affirmed
appellants convictions and had upheld the constitutionality of the statutes. The Court rejected the notion that the
mere equal application of a statute containing racial classifications was enough to remove the classification from
the 14th Amendments proscription of all invidious racial discriminations and held there was no legitimate
overriding purpose which justified the classification. The court found the restricting the freedom to marry solely
because of racial classifications violated the central meaning of the equal protection clause and deprived
appellants of liberty without due process of law in violation of the Due Process Clause.
Plessy v. Ferguson:
Discrimination case of separate but equal railway cars for blacks and whites
1/8 black, but wanted same rights as whites, which he was 7/8.
th
The 14 Amendment was to enforce the absolute equality of the two races before the law, but in the
nature of things it could not have been intended to abolish distinctions based on color, or to enforce social
equality or commingling of the two races.
Since the separate but equal law do not provide for the inequality of either accommodation, it is
constitutional.
Brown v. Board of Education, (1954)
Segregation of public schools are not equal.
In the field of public education the doctrine of separate but equal has no place. Separate education
facilities are inherently unequal.
By focusing on the inherent inequality of racially segregated schools, and by supporting this claim with
citations to social science research, Warren was able to secure a unanimous ruling.
Class #24: Facially Neutral Laws that Burden Minorities; Affirmative Action and Other Race Conscious Remedies
--pp. 771-789
--pp. 837-861; 809-824

Class #25: Gender and the Emergence of Intermediate Scrutiny

--pp.866-880, 898-905
Lochner Area: rational basis
Strict Scrutiny: race, alienage
Should Gender Trigger Strict Scrutiny?
Immutable - generally unable to pick your gender
History of discrimination
Not numerical minority in population
Not insular - generally live in general population
Classifications are both based on stereotypes and on legitimate differences - Maybe not relevant
Reed v. Reed
404 U.S. 71 (1971)
(squib case 869)

Law that gave priority to men when an administrator wasn't named in an estate

45

Rationale are:
o Decisions must be made in the aggregate
Men are more likely to have more education, more experience from jobs, etc.
Efficiency - if case by case, then courts would have to weigh whose better qualified
If strict scrutiny - the govt would not have a compelling interest and it wouldn't pass.
If rational basis - it would likely pass because it would not be arbitrary and capricious and does have some govt
purpose in efficiency.
Holding:
o We don't need to decide whether this is rational basis or strict scrutiny
o This is arbitrary and not reasonable under rational basis, so no need to worry about strict scrutiny.

Frontiero v. Richardson
411 U.S. 677 (1973)
(p. 870)

Service women couldn't automatically claim benefits for their spouses, like men could for their wives.
Service women had to prove that their husbands were actually dependent on their wives for at least 50% of their
support.
Govt reason: administrative convenience
Holding: (plurality opinion)
o Should be strict scrutiny because this is more like race issues than not
o "Traditionally, such discrimination was rationalized by an attitude of "romantic paternalism" which, in
practical effect, put women, not on a pedestal, but in a cage."
o Striking down this law.

Craig v. Boren
429 U.S. 190 (1976)
(p. 872)

Whether such a gender-based differential constitutes a denial to males 18-20 years of ae of the equal protection of
the laws in violation of the 14th Amendment.
Widely over inclusive because statistically speaking men were more likely to drink and drive and cause mayhem.
Holding:
o The distinction cannot under Reed withstand equal protection challenge.
o Classification must be substantially related
It isn't because he doesnt believe the statistics are important or extraordinary enough.
Drinking low alcohol beer because there is no evidence of specifically drinking and driving with this
type of beer.
Dissent:
o "classifications by gender must serve important govt objectives and must be substantially related to
achievement of those objectives." - not right language for strict scrutiny
o He's more deferential than not, but it was an either or proposition (strict or rational basis)
Appellants, a male between 18 and 21 years of age and a liquor vendor, filed an action in district court that sought
declaratory and injunctive relief against the enforcement of Okla. Stat. tit. 37, 241 and 245. Together, the statutes
prohibited the sale of non-intoxicating three and two-tenths percent beer to males under the age of 21 and to females
under the age of 18. Appellants alleged that the statutes constituted invidious discrimination against males between
18 and 20 years of age. The district court sustained the constitutionality of the statutory differential and dismissed
the action. The Court reversed, holding that the gender-based differential that resulted from the statute invidiously
discriminated and constituted a denial of the equal protection of the laws to males who were 18 to 20 years of age.
The Court held that gender did not represent a legitimate, accurate proxy for the regulation of drinking and driving,
and therefore, the classification was not substantially related to the achievement of a legitimate government

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objective. The Court also noted that the 21st Amendment did not save the gender-based discrimination from
invalidation.
United States v. Virginia
518 U.S. 515 (1996)
(p. 875)
Issue:

Does Virginia's exclusion of women from the educational opportunities provided by VMI - extraordinary
opportunities for military training and civilian leadership development - deny to women "capable of all of the
individual activities required of VMI cadets," the equal protection of the laws guaranteed by the 14th Amendment?
If VMI's "unique" situation, as Virginia's sole single-sex public institution of higher education - offends the
Constitution's equal protection principle, what is the remedial requirement?

Rule:
Parties who seek to defend gender-based government action must demonstrate an "exceedingly persuasive
justification" for that action.
Argument:
VMI thinks that they should be allowed to only have the school open to men because the program is designed for
physical standards, etc. for men specifically, and if women were admitted the program would not be the same
because women couldn't cut it.
It is a unique educational opportunity that should be allowed
Women, if admitted would mess up the physical and mental discipline because men's focus would shift to the
women.
Harsh discipline would have to go.
This form of education is important "adversary education" because it is how we've formed society in Virginia
leaders. We won't have success in the Virginia society without this form of education.
Holding:
In the absence of an equivalent opportunity for women, this does not meet Equal Protection muster
Generalizes how women would choose. Some women would want this and some would not, as some men too.
The same opportunities are not equal but separate if brought to another campus
The military academies were integrated with both sexes now.
Imposed a requirement on the state of "exceedingly persuasive" purpose. - Intermediate Scrutiny

Nguyen v. Immigration & Naturalization Service

533 U.S. 53 (2001)
(p. 898)
Issue:

Whether the statutory distinction is consistent with the equal protection guarantee embedded in the Due Process
Clause of the 5th Amendment?

Facts:

When a child is born to a couple outside the United States and one parent is a U.S. citizen and one is not.
The statute imposes different requirements for the child's acquisition of citizenship depending on whether the
citizen parent is the mother or the father.
Nguyen was convicted of two counts of sexual assault of a child and the Immigration Board started proceedings to
deport him back to Vietnam.
If the mother is the citizen, then the child is a citizen
If the father is the citizen, then the child might be a citizen
o Is if:
Blood relationship between the person and the father is established by clear and convincing evidence.

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While child is under the age of 18, the person is legitimated under the law, the father acknowledges
paternity of the person in writing under oath, the paternity of the person is established by adjudication
of a competent court.

Argument:
Nguyen that 1409 violates equal protection by providing different rules for attainment of citizenship by children
born abroad and out of wedlock depending upon whether the one parent with American citizenship is the mother or
the father.
Men and women are differently situated to develop a parent/child relationship
Women have an opportunity to develop a relationship with the child, and men may not have that same opportunity.
Holding:
For a gender-based classification to withstand equal protection scrutiny, it must be established "at least the
[challenged] classification serves important govt objectives and that the discriminatory means employed are
substantially related to the achievement of those objectives."
Dissent:
The govt has not given a sufficient justification for having a different level of criteria for men and women.
This govt argument sounds like it could have been just as easily met with a gender neutral statute
Continued Gender Classifications Discrimination: November 24, 2014
Govt Interests per Gender:
Administrative convenience
This is to make up for gender bias and discrimination
Courts Say Intermediate Scrutiny in Gender Cases no matter who is burdened (man or woman).
Unique physical differences between men and women
Neither gender is a minority group - all about the numbers
Women aren't an insular group, they are integrated with the majority
One of the real ills of gender is a system of stereotypes, assuming that they have different roles in society, keeping
women in the cage and creating power dynamics for women. - Since stereotypes are the issue, relying on those
stereotypes just further the power dynamics
It is often hard to tell which gender is more discriminated against
Gender Classifications that Make up for Discrimination:
Orr v. Orr
440 US 268 (1979)
(p. 884)
Issue:

Whether the constitutionality of Alabama alimony statutes which provide that husbands, but not wives, may be
required to pay alimony upon divorce.

Rule:

To withstand scrutiny under the Equal Protection Clause, "classifications by gender must serve important
governmental objectives and must be substantially related to achievement of those objectives.

Michael M. v. Superior Court of Sonoma County

450 US 464 (1981)
(p. 889)
Men who have sex with women that are under age 18 is considered statutory rape.
Doesn't relate to women having sex with under age men

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Govt Interest:
Prevention of teenage pregnancy and VD
Protection of a young girl's virtue and the financial interests of the girl's family - protects property of father.
To protect against those that are vulnerable.
Compelling state Interest is primarily based on stereotypes, but being adapted to fit today's issues in this case.
Holding:
Men and women are not similarly situated because women have a natural deterrent in pregnancy when men don't.
Dissent:
Deterring just one gender, is not as effective as deterring both sexes. Govt has burden of proving
The role of real differences. When states establish gender specific statutory rape laws, they are thinking about potential
sexual encounters. These stereotypes that are reinforced:
In a sexual encounter that produces a pregnancy suggests that it's only a woman's issue
Rape is a bigger issue and has more complicated dynamics
Vision of sexuality where men are always the aggressors.
Women are apparently weaker and need more protection.
Implies a single gendered statutory rape stereotype, but what about under age boys raped by adult males.
Does this show the uselessness of intermediate scrutiny?
Govt has a fairly low burden
Or
Govt unless there is an extreme compelling state interest, should just create gender neutral laws.
If you are not willing to go to strict scrutiny, it says that some kinds of statutes are

Rostker v. Goldberg
453 US 57 (1981)
(p. 892)
Issue:

Men must apply for draft while women do not.

Is it ok to impose upon men this burden of a non-existent draft, but not on women?

Argue:
Women cannot fill combat roles, but women can fill all non-direct combat positions with either sex.
Having a draft to fill combat ready positions is a compelling govt interest
Women can't be in direct combat. - deferring to military
Holding:
Because military has drawn up these boundaries, we will defer to military to for gender specific draft
Dissent:
What is the true govt compelling interest to not have to register women for a draft that doesn't exist anyway.
Why can't women by on govt registration list too, especially when the draft isn't a real thing that is used.
If rational basis, the govt can define a reason why gender is a dividing line
Is intermediate scrutiny really about:
There are some kinds of classifications that are about fair difference and sometimes about prejudice and
discrimination - court use your best judgment about which it is.
Only difference between rational basis with bite and intermediate scrutiny is the burden of proof.

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Narrowly tailored
Gender: One More Topic

Tied into debate about modern sexual orientation

Three major cases on sexual orientation:
o None announced standard of review
o Courts of appeal assumed that since Supreme Court has not ruled on this, it gives them rational basis power
o Now some courts say they are going to apply intermediate scrutiny to sexual orientation/identity
What should the standard of review
o Court opinions work through criteria to determine if there should be heightened scrutiny:
Immutability
! Complex, politically divisive
! Debate scientific and political over degree to which we have control over sexual orientation
! Why do we care about immutability?
Can't do anything about
Kind of classification that is not likely to change over a life cycle
Wouldn't expect people to give up this sort of thing (religion, sex) to get certain govt
benefits.
History of discrimination
! Arguments both ways
Political powerlessness
! Arguments both ways
Scalia says they are winning left and right and changing laws everywhere; how can they
say they don't have political power?
Discrete, insular minority
Numerical minority
Kind of classification that seems relevant to govt policy
Courts are splitting on standard of review -ripeness is coming close
Three cases, all struck down
o Rational basis done right, strikes down most classifications
o Romer
o Windsor

U.S. v. Windsor
What standard of review:
Flood Gates Argument:
The court is really reluctant to trigger forms of heightened scrutiny on: if we start triggering heightened scrutiny
then some form of heightened scrutiny will always be applied - age, wealth, sexual orientation, - we'll have a much
less deferential court.
Very much like Lochner area
Why Lochner is wrong
o Don't want to go down that path because they don't want to go through the process of doing this case by case
on every case.
Class #27:
(a) Other Candidates for Heightened Review: Parentage, Disability, Age, and Class; Alienage
--pp.905-930
Substance:
Congruent and proportional analysis

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o
o

13th, 14th, 15th - power to pass legislation to pass laws around those amendments
Adopted a framework:
Are there existing constitutional issues
! Once sufficient record
Can anticipate violation
Must be congruent and proportionate
! Congruent - look at violations as set and set of people they are roughly similar - same people and
same kinds of violations
! Proportional - similar in size, not only a few people or too many people, scope of punishment too.
Wrinkle
Will give more latitude to congress in drafting remedial - if the conduct would
trigger heightened scrutiny
Really about race and gender

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