Con Law Spring 2015 Outline

Barron v. Baltimore
-

State governments are not bound by the Fifth Amendment's requirement for just compensation in
cases of eminent domain.

The Supreme Court decided that the Bill of Rights (specifically the Fifth Amendment) are
restrictions on the federal government alone.

To demonstrate that Constitutional limits did not apply to states unless expressly stated,
Marshall used the example of Article I, Sections 9 and 10

In Barron v. Baltimore, the Supreme Court held that the BOR applies only to the federal
government. (The BOR was later applied to the states through the Due Process Clause of
the Fourteenth Amendment, under the doctrine of incorporation.)

Lecture 4
- Commander-in-Chief power
- Treaty power
- Vesting clause
- Hamilton v. Madison
o Take care clause
- The Alien Friends/Enemies Acts
- The Sedition Act
Lecture 5

Marbury v. Madison
-

The Court formed the basis for the exercise of judicial review in the United
States under Article III of the Constitution. The landmark decision helped define the
boundary between the constitutionally separate executive and judicial branches.

Holding that the provision of the Judiciary Act of 1789 that enabled Marbury to bring his claim
to the Supreme Court was itself unconstitutional, since it purported to extend the Court's
original jurisdiction beyond that which Article III established.

Slides: Judicial review

Separation of powers / functions

Youngstown Sheet & Tube Co. v. Sawyer

The Steel Seizure Case

- The President did not have the inherent authority to seize private property in the absence of either
specifically enumerated authority under Article Two of the Constitution or statutory authority conferred
on him by Congress.

In Youngstown v. Sawyer (1952), the Supreme Court held that President Truman was not
acting within his constitutional power when he issued an order to seize the nations steel
mills to supply the armed forces in a time of war. The decision establishes that the president
possesses no inherent legislative power in a time of emergency.

While a concurrence, Justice Jackson's opinion is used by most legal scholars and members
of Congress to assess executive power.
o

The Solicitor General lastly grounds support of the seizure upon nebulous, inherent
powers never expressly granted but said to have accrued to the office from the
customs and claims of preceding administrations. The pleas is for a resulting power
to deal with a crisis or an emergency according to the necessities of the case, the
unarticulated assumption being that necessity knows no law. (183/4)

Slides: Pg. #11 19

o Presidents powers: Justice Jackson
AI + AII
AII
AII AI
The most influential opinion in Youngstown has been that of Justice Jackson. Jackson
described presidential powers as fluctuating, and identified three categories for analyzing
their extent. Under Category 1, the President acts pursuant to the express or implied
authorization of Congress (AI+AII); under Category 2, Congress is silent (AII); and under
Category 3, the President acts incompatible with the express or implied will of Congress (AIIAI).

Lecture 6
- Slides: Review of separation of power/functions
- Vesting clauses: Separate powers and shared functions
- Other justices on the Presidents powers
- Slide 7: Justice Frankfurter: Gloss on executive power

McCulloch v. Maryland
-

Although the Constitution does not specifically give Congress the power to establish a bank, it does
delegate the ability to tax and spend, and a bank is a proper and suitable instrument to assist the
operations of the government in the collection and disbursement of the revenue.

Because federal laws have supremacy over state laws, Maryland had no power to interfere with the
bank's operation by taxing it.

The Court invoked the Necessary and Proper Clause of the Constitution, which allowed the
Federal government to pass laws not expressly provided for in the Constitution's list of
express powers, provided those laws are in useful furtherance of the express powers of
Congress under the Constitution.

This case established two important principles in constitutional law.

o

First, the Constitution grants to Congress implied powers for implementing the
Constitution's express powers, in order to create a functional national government.

Second, state action may not impede valid constitutional exercises of power by the
Federal government.

These are, 1st. that a power to create implies a power to preserve. 2nd. That a power to
destroy, if wielded by a different hand, is hostile to, and incompatible with these powers to
create and preserve. 3d. That where this repugnancy exists, that authority which is supreme
must control, not yield. (204/3)

Article I grants enumerated powers to the national legislature, which are spelled out in
section 8. The Supremacy Clause in Article VI of the Constitution makes federal law
supreme. An exercise of section 8 power is thus the supreme law of the land; but the
challenge is to determine the boundaries on section 8.

Lecture 2 Slides: Madison v. Hamilton v. Jacksons views

o Incidental v. implied v. departmental

Lecture 7 slides 2 - 4: Implied and incidental powers

o As Marshall constructed the N&PC, (1) the national legislature has discretion to
choose the means to carry into effect its enumerated powers, and (2) Let the end be
legitimate, let it be within the scope of the constitution, and all means which are
appropriate, which are plainly adapted to that end, which are not prohibited, but
consist with the letter and spirit of the constitution, are constitutional.

Non-delegation doctrine
o According to the non-delegation doctrine, Congress may not excessively delegate
legislative power. A delegation of legislative power is not excessive as long as
Congress shall lay down by legislative act an intelligible principle to which the
person or body authorized to exercise delegated authority is directed to conform.
(216/4)

Lecture 7
Legislative Powers
- The Contempt Power:

Kilbourn v. Thompson
103 U.S. 168 (1881), decided by a vote of 9 to o; Miller for the Court. The House of Representatives in 1876
appointed a special committee to examine the dealings of a real estate partnership in Washington, D.C.
Hallett Kilbourn was ordered by the committee to appear and testify. He refused to answer a question or
produce records. The committee declared Kilbourn to be in contempt of Congress and ordered him
committed to jail. He brought an action of false imprisonment against John Thompson, the sergeant-atarms who had taken him into custody, and the members of the House committee.
The trial court held in favor of Thompson, but the Supreme Court reversed. The justices left open the
question whether either house of Congress had power to punish for contempt, a question that was
subsequently answered affirmatively. The Court invalidated the contempt order on the ground that it was
rendered in pursuit of an unconstitutional objective. Congress may conduct investigations only for the
purpose of gathering information relevant to contemplated future legislation. The proceedings at issue
concerned debts owed by the real estate partnership to certain parties, including the United States. The
Court viewed this as a judicial, not as a legislative, matter. Under these circumstances, the House
exceeded its authority by investigating the private affairs of individuals. Consequently, it had no power to
require Kilbourn to testify as a witness. Subsequently, however, the Supreme Court approved a broader
investigative power, allowing Congress limited inquiry into private matters.

A house may not punish for contempt where it assumes judicial power. In Kilbourn, the Court
concluded that the House of Representatives had assumed judicial power because (1) it inquired
into a matter that had been before a federal bankruptcy court; and (2) its interest was in reopening
that case. Its power was retrospective and particular rather than prospective and general.

McGrain v. Daugherty
The Constitution grants Congress auxiliary powers to carry out its duties. As congressional investigations have
a legislative purpose, Congress has the power to make inquiries and to compel information when it is
necessary and proper to execute Congress' authority under the Constitution.

McGrain v. Daugherty was a case heard before the Supreme Court, decided January 17, 1927. It
was a challenge to Mally Daugherty's contempt conviction, which he received when he failed to
appear before a Senate committee investigating Attorney General Harry Daugherty's failure to
investigate the perpetrators of the Teapot Dome Scandal. The Court upheld his conviction.[1]

In the case, the Supreme Court held for the first time that under the Constitution, Congress has the
power to compel witness and testimony.[1]

While [our] cases are not decisive of the question we are considering, they definitely settle two
propositions: One, that the two houses of Congress, in their separate relations, possess not only
such powers as are expressly granted to them by the Constitution, but such auxiliary powers as are
necessary and appropriate to make the express powers effective; and that neither house is
invested with general power to inquire into private affairs and compel disclosures, but only with
such limited power of inquiry as is shown to exist when the rule of constitutional interpretation just
stated is rightly applied. (253-254)

Bicameralism and Presentment

-

Pg. #79:
INS v. Chadha
o Examination of the action taken here by one House pursuant to s244(c)(2) reveals
that it was essentially legislative in purpose and effect. . . . [It] had the purpose and
effect of altering the legal rights, duties, and relations of persons, including the AG,
Executive Branch officials, and Chadha. (265/2)

Clinton v. City of New York (flip side of Chadha)

o Clinton v. City of New York, 524 U.S. 417 (1998), is a legal case in which
the Supreme Court of the United States ruled that the line-item veto as granted in
the Line Item Veto Act of 1996 violated the Presentment Clause of the United States
Constitution because it impermissibly gave the President of the United States the
power to unilaterally amend or repeal parts of statutes that had been duly passed by
the United States Congress.
o The President's unilateral striking of portions of legislation passed by Congress pursuant to
the Line Item Veto Act was without legal force, because the U.S. Constitution did not authorize
the President to enact federal law of which both houses of Congress had not previously
approved the text.

Lecture 8
Executive Power

In re Neagle
In re Neagle, 135 U.S. 1 (1890)[1], was a United States Supreme Court decision that determined the
question of whether the Attorney General of the United States had authority to appoint U.S.
Marshals as bodyguards to Supreme Court Justices.

U.S. Marshal David Neagle was appointed by the attorney general to serve as a bodyguard to
Justice Stephen J. Field while he rode circuit in California. David S. Terry, a disappointed litigant with
a grudge against Field, approached and appeared to be about to attack Field. Neagle shot and killed
him. Neagle was arrested by California authorities on a charge of murder. The United States sought

to secure the release of Neagle on a writ of habeas corpus. In the absence of a law specifically
authorizing the appointment of bodyguards for Supreme Court Justices, the government relied on a
statute that made the writ available to those "in custody for an act done or omitted in pursuance of a
law of the United States."

Section 3 of Art. II of the U.S. Constitution requires that the Executive Branch "take care that the laws be
faithfully executed." The court determined that the appointment of bodyguards to Supreme Court Justices
ensured the faithful execution of the law of the United States. The court also relied on a statute
granting marshals "the same powers, in executing the laws of the United States, as sheriffs and their deputies
in such State may have, by law, in executing the laws of the state."

In In re Neagle, the Supreme Court held that the President had a power under the Take Care Clause
to protect federal instrumentalities and property. The Court concluded that doing so was part of what
it meant to take care that the Constitution itself was enforced: the President had to defend the
system of government set up under it. (312/4, 313/3). This power has been called the protective
power.

The Jewels of the Princess of Orange

Now to your question can the President enter into an immunity agreement with a potential
witness? Probably yes, but two troubling possibilities arise. First, what if federal prosecutors won't
play ball? Can the President simply order the U.S. attorney not to prosecute? This is more
complicated than it seems. Many scholars contend that, George W. Bush's protestations
notwithstanding, the President in many contexts is not the decider regarding federal prosecutions
he's authorized to appoint and remove deciders, but his job is to supervise.
In 1831, President Andrew Jackson was faced with this very issue. Two years earlier, a man known as
Constant Polari or Carrara broke into the palace of Laken [link] in Brussels and stole, among other
things, royal jewels belonging to the Prince and Princess of Orange. After some intrigue straight out
ofNational Treasure (some of the items taken were hidden in a compartment in a writing desk),
Polari was arrested by U.S. customs agents [link]. Some of the jewels were retrieved, and the
President wanted to return them to the Netherlands. Unfortunately, the district attorney was
pursuing a forfeiture claim against the jewels and wasn't inclined to stop. Jackson asked thenattorney general Roger Taney if he could make the DA back off. Taney's opinion, titled The Jewels of
the Princess of Orange [link], said he could, sort of. The President has the power to direct the district
attorney to stop, Taney wrote, but:
The District Attorney might refuse to obey the President's order; and if he did refuse, the
prosecution, while he remained in office, would still go on; because the President himself could give
no order to the court or to the clerk to make any particular entry. He could only act through his
subordinate officer, the district attorney, who is responsible to him and who holds his office at his
pleasure. And if that officer still continues a prosecution which the President is satisfied ought not to

continue, the removal of the disobedient officer and the substitution of one more worthy in his place
would enable the President through him faithfully to execute the law.
The opinion of Attorney General Taney in the matter of the jewels of the Princess of Orange argues
that the President has a power to stop federal prosecutions. The basis of this authority is either the
Pardon Clause or the Take Care Clause. (Can you describe these arguments?) William Wirts
opinion in the matter of the accounting officers suggests that the President lacks a power to control
or review the conduct of officers exercising legislative power.

United States v. Cox (?)

Buckley v. Valeo
-

Read notes
o How does it apply to the slides?

The Court upheld federal limits on campaign contributions and ruled that spending money to influence
elections is a form of constitutionally protected free speech.

Buckley v. Valeo, 424 U.S. 1 (1976), was a landmark case in American campaign finance
law. In a per curiam opinion, the Supreme Court of the United States struck down on First
Amendment grounds several provisions in the 1974 Amendments to the Federal Election
Campaign Act. The most prominent portions of the case struck down limits on spending in
campaigns, but upheld the provision limiting the size of individual contributions to
campaigns. The Court also narrowed, and then upheld, the Act's disclosure provisions, and
struck down (on separation of powers grounds) the make-up of the Federal Election
Commission, which as written allowed Congress to directly appoint members of the
Commission, an executive agency.

Morrison v. Olson
The Court upheld the independent counsel provision of the Ethics in Government Act because it did
not violate the separation of powers principle by increasing the power of one branch at the expense
of another. Instead, even though the President could not directly fire an Independent Counsel, the
person holding that office was still an officer of the Executive branch, and not under the control of
either the U.S. Congress or the courts.
The Independent Counsel Act is constitutional, as it does not increase the power of the judiciary or legislative
branches at the expense of the executive.

Lecture 11

Our Study of Executive Power and Separation of Powers

United States v. Curtiss-Wright Export Corp.

-

See notes
See slides
o Lectures 11 and 12

While the Constitution does not explicitly say that all ability to conduct foreign policy is vested in the President,
it is nonetheless given implicitly and by the fact that the executive, by its very nature, is empowered to conduct
foreign affairs in a way that Congress cannot and should not.

United States v. Curtiss-Wright Export Corp., 299 U.S. 304(1936),[1] was a United States
Supreme Court case involving principles of both governmental regulation of business and the
supremacy of the executive branch of the federal government to conduct foreign affairs. The
Supreme Court concluded not only that foreign affairs power was vested in the national government
as a whole but also that the President of the United States had "plenary" powers in the foreign affairs
field that was not dependent upon congressional delegation.

Background[edit]
Congress, acting by joint resolution, had authorized the President to place an embargo on arms
shipments to South American countries engaged in the Chaco War. Acting pursuant to the
resolution, President Franklin Roosevelt proclaimed such an embargo. When Curtiss-Wright Export
Corp. was indicted for violating the embargo through the sale of bombers and fighter planes to
Bolivia, it defended itself on the grounds that the embargo and the proclamation were void because
Congress had improperly delegated legislative power to the executive branch by leaving what was
essentially a legislative determination to the President's "unfettered discretion."
In 1936, the defendant Curtiss-Wright Corporation was charged with illegally sending arms of war
to Bolivia prior to the revocation of the first proclamation.[1]

Issue[edit]
The defendant raised several issues for consideration by the Court:
1. Did the Joint Resolution passed by Congress grant too much authority (and legislative
power) to the President, in violation of the non-delegation doctrine?
2. Was the President required by due process considerations to make findings of fact in support
of the proclamation?
3. Did the revocation of the May 1934 proclamation operate to eliminate the penalty for its
violation?

Decision of the Court[edit]

Justice Sutherland wrote in his opinion of the Court:
The ["powers of the federal government in respect of foreign or external affairs and those in respect
of domestic or internal affairs"] are different, both in respect of their origin and their nature. The
broad statement that the federal government can exercise no powers except those specifically
enumerated in the Constitution, and such implied powers as are necessary and proper to carry into
effect the enumerated powers, is categorically true only in respect of our internal affairs.
And he added:
It is important to bear in mind that we are here dealing not alone with an authority vested in the
President by an exertion of legislative power, but with such an authority plus the very
delicate, plenaryand exclusive power of the President as the sole organ of the federal government in
the field of international relationsa power which does not require as a basis for its exercise an act of
Congress, but which, of course, like every other governmental power, must be exercised in
subordination to the applicable provisions of the Constitution.
While the Constitution does not explicitly say that all ability to conduct foreign policy is vested in the
President, it is nonetheless given implicitly and by the fact that the executive, by its very nature, is
empowered to conduct foreign affairs in a way that Congress cannot and should not. The Court
stated that "there is sufficient warrant for the broad discretion vested in the President to determine
whether the enforcement of the statute will have a beneficial effect upon the reestablishment of
peace in the affected countries."[1]
The upshot of this ruling not only upheld export limitations on the grounds of national security
(similar ones still exist today) but also established the broader principle of executive supremacy in
national security and foreign affairs, one of the reasons advanced in the 1950s in favor of the
almost-successful attempt to add the Bricker Amendment to the Constitution.
The Court has not recognized the full scope of executive power suggested by Justice Sutherland's
sweeping language. Congressional authorization may be necessary to legitimize many executive
acts. In Regan v. Wald(1984), for example, the Supreme Court cited Curtiss-Wright in upholding the
constitutionality of the president's regulations restricting travel to Cuba expressly on the ground that
they had been authorized by Congress. On the other hand, in Federal Energy Administration v.
Algonquin SNG, Inc. (1976), the Court validated presidential restrictions on oil imports, based on
very broad congressional language delegating apparently unlimited regulatory authority to the
executive branch.
In an opinion written by Justice Sutherland, the Supreme Court rejected these arguments and found
in favor of the government. Despite the controversy surrounding it, the Curtiss-Wright decision is one
of the Supreme Court's most influential. Most cases involving conflicts between the executive and
legislative branches involve political questions that the courts refuse to adjudicate. Therefore, the
sweeping language of Curtiss-Wright is regularly cited to support executive branch claims of power
to act without congressional authorization in foreign affairs, especially when there is no judicial
intervention to interpret the meaning of that text.

http://en.wikipedia.org/wiki/United_States_v._Curtiss-Wright_Export_Corp.

Dames & Moore v. Regan

-

See notes
See slides

Executive orders dissolving judgments and suspending pending civil claims against Iranian government were
constitutional.

War Power
The Prize Cases: See S&N (slides and notes) Lectures 11 and 12

The original understanding was that the President would have the power to repel sudden attacks,
but not otherwise begin a war. In the Prize Cases (1863), the Court held that the President had the
authority to decide when a rebellion had become a civil war, and thus to apply the law of war, and
the Court would not review his decision.
The War Powers Resolution contains Congresss interpretation of the CIC. It states that the
president has the authority to initiate hostilities only (1) after a declaration of war, (2) statutory
authorization, and (3) after an attack on the US. The statute requires the president to consult with
and report to Congress before and during hostilities he initiates. It also requires the president to
terminate unapproved hostilities after 60 days or upon a two-house resolution.
Lecture 12

Hayburn's Case (advisory opinions)

Non-judicial duties cannot be assigned to federal courts in their official capacity.

Allen v. Wright (standing)

Parties lack standing to sue where the policies of a government agency are alleged to be insufficient to prevent
school segregation.

Allen v. Wright, 468 U.S. 737 (1984), was a United States Supreme Court case that determined that
citizens do not have standing to sue a federal government agency based on the influence that the
agency's determinations might have on third parties.
The court found that the asserted right to hold the government to the law is not enough by itself to
create standing to sue. Nor is discrimination enough unless the plaintiff is personally denied equal
treatment by the government. Here, the link between IRS standards and school discrimination was
too tenuous. The Court concluded that the doctrine of the separation of powers dictated this result,
because otherwise the courts could always be called upon to restructure the Executive branch.

http://en.wikipedia.org/wiki/Allen_v._Wright
-

Look at notes/slides

What makes a political question?

PQ doctrine: Baker v. Carr

Baker v. Carr
The redistricting of state legislative districts is not a political question, and thus is justiciable by the federal
courts.

Baker v. Carr, 369 U.S. 186 (1962), was a landmark United States Supreme Court case that
retreated from the Court's political question doctrine, deciding that redistricting (attempts to change
the way voting districts are delineated) issues present justiciable questions, thus enabling federal
courts to intervene in and to decide redistricting cases. The defendants unsuccessfully argued that
redistricting of legislative districts is a "political question", and hence not a question that may be
resolved by federal courts.
Reynolds v. Sims (1964) was another major case of the Warren Court era involving representation in
state legislative districts and called for "one man, one vote," and both state houses in legislatures to
be apportioned by population rather than geographic districts.
http://en.wikipedia.org/wiki/Baker_v._Carr

Justiciability doctrine
- Develops this core idea about the nature of disputes in a federal court, consists of five parts:
(1) the ban on advisory opinions,
(2) standing doctrine,
(3) ripeness,
(4) mootness, and
(5) political question doctrine.
Federalism / Commerce Clause
-

Read notes

Commerce Clause:

Gibbons v. Ogden
The New York law was found invalid because the Commerce Clause of the Constitution designated power to
Congress to regulate interstate commerce and that the broad definition of commerce included navigation.

Gibbons v. Ogden, 22 U.S. 1 (1824),[1] was a landmark decision in which the Supreme Court of the
United States held that the power to regulate interstate commerce, granted to Congress by the
Commerce Clause of the United States Constitution, encompassed the power to regulate navigation.
-

Look at Opinion excerpts

http://en.wikipedia.org/wiki/Gibbons_v._Ogden

Look at slides (for quotes)

o Lecture 13: 20-24
o Lecture 14: 2-3

After Gibbons: The interstate CC gives Congress the power to regulate:

(1) Commercial intercourse extending into multiple states;
(2) Commercial activity that affects more than one state;
(3) Where necessary to interfere for the purpose of executing a general power of government

Carter v. Carter Coal Co.

Carter v. Carter Coal Company, 298 U.S. 238 (1936), is a United States Supreme Court decision
interpreting the Commerce Clause of the United States Constitution, which permits the United States
Congress to "regulate Commerce... among the several States." Specifically, it analyzes the extent of
Congress power, according to the Commerce Clause, looking at whether or not they have the right
to regulate manufacturing.
The court found that the Coal Conservation Act is not within Congress power according to the Commerce
Clause. Just because a commodity will, in the future, be sold in interstate commerce does not give Congress
the right to regulate it before the event occurs.

Main points of the case[edit]

The court points out that the activity that Congress is trying to regulate, according to the Bituminous
Coal Conservation Act, is the production of coal, not commerce. Also, they make it clear that the flow

of goods has not begun when coal is still being produced. Therefore, there is not a current of
commerce. Third, the direct versus indirect test was used and the court found that the production of
coal does not have a direct effect on interstate commerce. Lastly, the issue of whether or not the
production of coal could be categorized as an evil was discussed. It was determined that, in this
case, the production of coal is a local evil. Congress doesnt have the right to regulate all evils, just
national ones.
http://en.wikipedia.org/wiki/Carter_v._Carter_Coal_Co.
-

Look at slides: Lecture 14

o Commerce v. production
o Direct v. indirect effects on commerce

United States v. Darby Lumber Co.

The issue was whether Congress had overstepped its constitutional authority in creating the Fair
Labor Standards Act. An American lumber company in Georgia that did not meet these standards
was charged with violating the law, but had won an appeal, where the appellate judge found that the
federal government is barred by the10th Amendment from interfering in matters that are strictly local,
that is, within state boundaries. The Act also required the keeping of records to verify compliance;
the appellee argued that this violated his 5th Amendment right protecting him from self-incrimination.

The decision[edit]
The Court reversed the appellate court decision. It affirmed the constitutional power of Congress to
regulate interstate commerce, which power "can neither be enlarged nor diminished by the exercise
or non-exercise of state power." FindLaw. The Court held that the purpose of the Act was to prevent
states from using substandard labor practices to their own economic advantage through interstate
commerce. In the Dagenhart case, the Court had made the distinction between manufacturing and
interstate commerce, so that a business could argue it was engaging in the former, but had not
intended the latter. Twenty-two years later, the Court found that earlier argument facile, explaining
that Congress was well aware that businesses produce their goods without thought to where they
will go; product is pulled and shipped to meet the orders of the day. The Court also found that the
requirement of record keeping was entirely appropriate as a matter of enforcing the Act.
Congress may prescribe hours and wages. The power of Congress over interstate commerce is not
confined to the regulation of commerce among the states. It extends to those activities intrastate
which so affect interstate commerce . . . as to make regulation of them appropriate means to the
attainment of a legitimate end . . . See McCulloch v. Maryland. (606/5)

Wickard v. Filburn
-

Disregarded direct and indirect distinctions

Wickard v. Filburn held that the government may regulate personal cultivation and
consumption of crops, due to the aggregate effect of individual consumption on the
government's legitimate statutory framework governing the interstate wheat market.
Production quotas under the Agricultural Adjustment Act of 1938 were constitutionally applied to agricultural
production that was consumed purely intrastate, because its effect upon interstate commerce placed it within
the power of Congress to regulate under the Commerce Clause.

The federal government has the power to regulate interstate commerce through the Commerce
Clause of the Constitution. In Filburn the Court unanimously reasoned that the power to regulate the
price at which commerce occurs was inherent in the power to regulate commerce.
Filburn argued that since the excess wheat he produced was intended solely for home consumption,
his wheat production could not be regulated through the Interstate Commerce Clause. The Supreme
Court rejected this argument, reasoning that if Filburn had not used home-grown wheat, he would
have had to buy wheat on the open market. This effect on interstate commerce, the Court reasoned,
may not be substantial from the actions of Filburn alone but, through the cumulative actions of
thousands of other farmers just like Filburn, its effect would certainly become substantial. Therefore
Congress could regulate wholly intrastate, non-commercial activity if such activity, viewed in the
aggregate, would have a substantial effect on interstate commerce, even if the individual effects are
trivial.
-

For quotes: Look at website and slides (Lecture 14)

http://en.wikipedia.org/wiki/Wickard_v._Filburn

Heart of Atlanta Motel, Inc. v. United States

-

Look at website and slides (Lecture 14)

Congress did not unconstitutionally exceed its powers under the Commerce Clause by enacting Title II of the
1964 Civil Rights Act, which prohibited racial discrimination in public accommodations.

http://en.wikipedia.org/wiki/Heart_of_Atlanta_Motel,_Inc._v._United_States
The power of Congress to deal with these obstructions depends on the meaning of the Commerce
Clause. Its meaning was first enunciated . . . in Gibbons v. Ogden . . . . That the intercourse of
which the Chief Justice spoke included the movement of persons through more States than one was
settled as early as 1849 . . . . (614/2, 4)

Katzenbach v. McClung
Section 201(a), (b), and (c) of the Civil Rights Act of 1964[1] which forbids discrimination by restaurants offering to
serve interstate travelers or serving food that has moved in interstate commerce is a constitutional exercise of the
commerce power of Congress.

Katzenbach v. McClung, 379 U.S. 294 (1964), is a United States Supreme Court case in which the
Court held that Congress acted within its power under the Commerce Clause of the United States
Constitution in forbidding racial discrimination in restaurants as this was a burden to interstate
commerce.
In Section 5 of the decision, the Court affirmed previous decisions that Congress has the authority to
regulate local intrastate activities if the activities significantly affect interstate commerce in the
aggregate, citing United States v. Wrightwood Dairy Co., Wickard v. Filburn, Gibbons v. Ogden,
and United States v. Darby.
The appellees objected to Congress' approach in determining what affects commerce, the court
held, Where we find that the legislators, in light of the facts and testimony before them, have a
rational basis for finding a chosen regulatory scheme necessary to the protection of commerce, our
investigation is at an end.
http://en.wikipedia.org/wiki/Katzenbach_v._McClung

United States v. Lopez

-

For quotes: Look at Lecture 14 slides 22-28

Possession of a handgun near school is not an economic activity that has a substantial effect on interstate
commerce. A law prohibiting guns near schools is a criminal statute that does not relate to commerce or any
sort of economic activity.
-

Class notes: Economic activity is not specifically defined in Lopez

o Generalize from the list of examples in last paragraph of pg. #620
o Work by analogy
Slides
o In United States v. Lopez (1995), we see the return of some of the progressive-era distinctions
(commerce v. production / direct v. indirect). The Court held that regulations of intrastate
economic activities that had a substantial effect on IC were presumptively constitutional.
However, regulations on intrastate non-economic activities would be independently reviewed
by the Court, and if the purported connection between the activity to be regulated and IC
implied that traditionally state-controlled activities were subject to federal power, the regulation
would exceed Congresss authority. (This is the same as saying the effect on IC is only
indirect.)

Supreme Court decision[edit]

In a 54 decision, the Supreme Court affirmed the decision of the Court of Appeals. It held that while
Congress had broad lawmaking authority under the Commerce Clause, the power was limited, and
did not extend so far from "commerce" as to authorize the regulation of the carrying of handguns,
especially when there was no evidence that carrying them affected the economy on a massive scale.
[9]

Chief Justice Rehnquist, delivering the opinion of the Court, identified the three broad categories of
activity that Congress could regulate under the Commerce Clause:

The channels of interstate commerce

The instrumentalities of interstate commerce, or persons or things in interstate commerce[10]

Activities that substantially affect or substantially relate to interstate commerce[11]

4 points under the 3rd category below

The Court summarily dismissed any consideration of the first two categories and concluded that the
resolution of the case depended only on consideration of the third categoryregulation of activities
that substantially affect interstate commerce. The Court essentially concluded that in no way was the
carrying of handguns a commercial activity or even related to any sort of economic enterprise, even
under the most extravagant definitions.[12]
The opinion rejected the government's argument that because crime negatively impacted education
Congress might have reasonably concluded that crime in schools substantially affects commerce.
The Court reasoned that if Congress could regulate something so far removed from commerce, then
it could regulate anything, and since the Constitution clearly creates Congress as a body with
enumerated powers, this could not be so. Rehnquist concluded:

To uphold the Government's contentions here, we have to pile inference up

not enumerated, and that there never will be a distinction between what is

The Court specifically looked to four factors in determining whether legislation represents a valid
effort to use the Commerce Clause power to regulate activities that substantially affect interstate
commerce (4 points under the 3rd category above):
1. Whether the activity was non-economic as opposed to economic activity; previous cases
involved economic activity
2. Jurisdictional element: whether the gun had moved in interstate commerce
3. Whether there had been congressional findings of an economic link between guns and
education
4. How attenuated the link was between the regulated activity and interstate commerce

It is important to note that although the ruling stopped a decades-long trend of inclusiveness under
the commerce clause, it did not reverse any past ruling about the meaning of the clause. Later,
Rehnquist stated that the Court had the duty to prevent the legislative branch from usurping state
powers over policing the conduct of their citizens. He admitted that the Supreme Court had upheld
certain governmental steps towards taking power away from the states, and cited Lopez as a
decision that finally stepped in to check the government's authority by defining clearly between state
and federal powers.[13]

LOOK AT SUMMARY OF COMMERCE

CLASS NOTES

CLAUSE IN LECTURE 15 SLIDES: 1-6 AND

Look at website for Morrison and Gonzales!|

1.
2.
3.
4.

Katzenbach v. McClung (1964)

Katzenbach v. Morgan (1966)
US v. Lopez (1995)
City of Boerne v. Flores (1997)

5. US v. Morrison (2000)
o In United States v. Morrison (2000), the Court invalidated the Violence Against
Women Act, which created a federal tort cause of action against perpetrators of
gender-motivated violence. The Court held that Congressional findings of an effect
on interstate commerce was not sufficient to satisfy the Courts independent
evaluation.
Application of principle laid out in Boerne v. Flores
6. Gonzales v. Raich (2005)
o In Gonzales v. Raich (2005), the Court upheld the regulation of marijuana in the
federal Controlled Substances Act. Writing for the Court, Justice Stevens said
Wickard established that Congress can regulate purely intrastate activity that is not
itself commercial, in that it is not produced for sale, if it concludes that failure to
regulate that class of activity would undercut the regulation of interstate market in
that commodity. (635/3)

US v. Morrison (2000): Court invalidated Violence Against Women Act

o
o

Independent evaluation to determine if Congress reached that activity, it would reach

those areas traditionally held by states
In a 54 decision, United States v. Morrison invalidated the section of the Violence
Against Women Act (VAWA) of 1994 that gave victims of gender-motivated violence
the right to sue their attackers in federal court, although program funding remains
unaffected. Chief Justice Rehnquist, writing for the majority, held that Congress
lacked authority, under either the Commerce Clause or the Fourteenth Amendment,
to enact this section.

With regard to the Commerce Clause, the majority said that the result was controlled
by United States v. Lopez (1995), which had held that the Gun-Free School Zones Act of
1990 was unconstitutional. There as in Morrison, the Court stressed "enumerated powers"
that limit federal power in order to maintain "a distinction between what is truly national and
what is truly local." Lopez therefore limited the scope of the Commerce Clause to exclude
activity that was not directly economic in nature, even if there were indirect economic
consequences. Lopez was the first significant limitation on the Commerce Clause powers of
Congress in 53 years.

The majority, quoting from NLRB v. Jones & Laughlin Steel Corp. (1937), said that the scope
of the interstate commerce power

must be considered in the light of our dual system of government and may not be extended so
as to embrace effects upon interstate commerce so indirect and remote that to embrace them,
in view of our complex society, would effectually obliterate the distinction between what is
national and what is local and create a completely centralized government.

The Lopez court stated that Congress may regulate (1) use of the channels of interstate
commerce, (2) the "instrumentalities" (for example, vehicles) used in interstate commerce,
and (3) activities that substantially affect interstate commerce. Because VAWA's civil remedy
concededly did not regulate the first or second categories, the Morrison court analyzed its
validity under the third.
http://en.wikipedia.org/wiki/United_States_v._Morrison

Gonzales: Upheld regulation of marijuana in the Federal Controlled Substances Act

o Look at lecture 14 slide #6
o Congress may ban the use of marijuana even where states approve its use for medicinal purposes.
Class notes:
Can reach a non-commercial intrastate activity (i.e. growing marijuana for
medical purposes with license from state), if its okay to reach it to an
economic activity of interstate commerce
As part of a broader commercial regulation, Congress had to reach
that non-commercial intrastate activity
http://en.wikipedia.org/wiki/Gonzales_v._Raich
o

The decision[edit]
The ruling was 6-3 with Justice Scalia joining Justices Kennedy, Stevens, Ginsburg, Souter and
Breyer for the majority. It was one of the few times in the Court's history that Conservative justices
sided with those for the legalization of illicit drugs.

The opinion began by pointing out the Respondents did not dispute that Congress had the power to
control or ban marijuana for non-medical uses:
Respondents in this case do not dispute that passage of the CSA, as part of the Comprehensive
Drug Abuse Prevention and Control Act, was well within Congress' commerce power. Nor do they
contend that any provision or section of the CSA amounts to an unconstitutional exercise of
congressional authority. Rather, respondents' challenge is actually quite limited; they argue that the
CSA's categorical prohibition of the manufacture and possession of marijuana as applied to the
intrastate manufacture and possession of marijuana for medical purposes pursuant to California law
exceeds Congress' authority under the Commerce Clause.
Banning the growing of marijuana for medical use, the Court reasoned, was a permissible way of
preventing or limiting access to marijuana for other uses:
Even respondents acknowledge the existence of an illicit market in marijuana; indeed, Raich has
personally participated in that market, and Monson expresses a willingness to do so in the future.
More concretely, one concern prompting inclusion of wheat grown for home consumption in the 1938
Act was that rising market prices could draw such wheat into the interstate market, resulting in lower
market prices. Wickard, 317 U.S., at 128. The parallel concern making it appropriate to include
marijuana grown for home consumption in the CSA is the likelihood that the high demand in the
interstate market will draw such marijuana into that market. While the diversion of homegrown wheat
tended to frustrate the federal interest in stabilizing prices by regulating the volume of commercial
transactions in the interstate market, the diversion of homegrown marijuana tends to frustrate the
federal interest in eliminating commercial transactions in the interstate market in their entirety. In
both cases, the regulation is squarely within Congress' commerce power because production of the
commodity meant for home consumption, be it wheat or marijuana, has a substantial effect on
supply and demand in the national market for that commodity.
The relevant precedents for the Court's analysis are Wickard v. Filburn (1942), United States v.
Lopez (1995) and United States v. Morrison (2000).

Scalia's opinion[edit]
Justice Scalia wrote a separate concurrence that had the effect of differentiating the decision from
the previous results of United States v. Lopez and United States v. Morrison. Although Scalia voted
in favor of limits on the Commerce Clause in the Lopez andMorrison decisions, he said that his
understanding of the Necessary and Proper Clause caused him to vote for the Commerce
Clausewith Raich for the following reason:
Unlike the power to regulate activities that have a substantial effect on interstate commerce, the
power to enact laws enabling effective regulation of interstate commerce can only be exercised in
conjunction with congressional regulation of an interstate market, and it extends only to those
measures necessary to make the interstate regulation effective. As Lopez itself states, and the Court
affirms today, Congress may regulate noneconomic intrastate activities only where the failure to do
so could undercut its regulation of interstate commerce. ... This is not a power that threatens to
obliterate the line between what is truly national and what is truly local. [9]

Dissenting opinions[edit]
Justice O'Connor, dissenting, began her opinion by citing United States v. Lopez, which she followed
with a reference to Justice Louis Brandeis's dissenting opinion in New State Ice Co. v. Liebmann:

Federalism promotes innovation by allowing for the possibility that "a single courageous State may, if
its citizens choose, serve as a laboratory; and try novel social and economic experiments without
risk to the rest of the country..."[10]
O'Connor concluded:
Relying on Congress abstract assertions, the Court has endorsed making it a federal crime to grow
small amounts of marijuana in ones own home for ones own medicinal use. This overreaching
stifles an express choice by some States, concerned for the lives and liberties of their people, to
regulate medical marijuana differently. If I were a California citizen, I would not have voted for the
medical marijuana ballot initiative; if I were a California legislator I would not have supported the
Compassionate Use Act. But whatever the wisdom of Californias experiment with medical
marijuana, the federalism principles that have driven our Commerce Clause cases require that room
for experiment be protected in this case.
Justice Thomas also wrote a separate dissent, stating in part:
Respondent's local cultivation and consumption of marijuana is not "Commerce ... among the
several States."
Certainly no evidence from the founding suggests that "commerce" included the mere possession of
a good or some personal activity that did not involve trade or exchange for value. In the early days of
the Republic, it would have been unthinkable that Congress could prohibit the local cultivation,
possession, and consumption of marijuana.
and
If the Federal Government can regulate growing a half-dozen cannabis plants for personal
consumption (not because it is interstate commerce, but because it is inextricably bound up with
interstate commerce), then Congress' Article I powers as expanded by the Necessary and Proper
Clause have no meaningful limits. Whether Congress aims at the possession of drugs, guns, or
any number of other items, it may continue to "appropria[te] state police powers under the guise of
regulating commerce."
and further:
If the majority is to be taken seriously, the Federal Government may now regulate quilting bees,
clothes drives, and potluck suppers throughout the 50 States. This makes a mockery of Madison's
assurance to the people of New York that the "powers delegated" to the Federal Government are
"few and defined", while those of the States are "numerous and indefinite." [11]

I. The Taxing Power

A. Taxes versus Penalties
II. The Spending Power
A. Constitutional Text and US v. Butler
B. South Dakota v. Dole
-

Look at Lecture 15 slides starting at pg. #7

Scienter is a legal term that refers to intent or knowledge of wrongdoing. This means that an
offending party has knowledge of the "wrongness" of an act or event prior to committing it. For
example, if a man sells a car with brakes that do not work to his friend, but the seller does not know
about the brake problem, then the seller has no scienter. If he sells the car and knew of the problem
before he sold the car, he has scienter.
Reading the Taxing and Spending Clause:
To lay and collect Taxes, Duties, Imposts and Excises, to [i.e., in order to] pay the Debts and
Provide for the common Defence and general Welfare.
-

Look at class notes:

o RRRR (reasonably related to raising revenue)
o DSCC (detailed and specified course of conduct)
o Hamilton (2 power: Raise and spend)
Bank of US (perfect example)
o Madison (1 power: general welfare )
Court sides with Hamilton:
o US v. Butler

LOOK AT NOTES (pink sticky note)!!!!

United States v. Butler

United States v. Butler, 297 U.S. 1 (1936), was a case in which the Supreme Court of the United
States ruled that the processing taxes instituted under the 1933 Agricultural Adjustment Act were
unconstitutional. Justice Owen Roberts argued that the tax was "but a means to an unconstitutional
end" that violated the Tenth Amendment.[1]

The main issue of the case was whether certain provisions of the Agricultural Adjustment Act of 1933
conflicted with the Constitution. In the Act, a tax was imposed on processors of farm products, the
proceeds to be paid to farmers who would reduce their area and crops. The intent of the act was to
increase the prices of certain farm products by decreasing the quantities produced.
The Court held that the so-called tax was not a true tax,[2] because the payments to farmers were
coupled with unlawful and oppressively coercive contracts[2] and the proceeds were earmarked for
the benefit of farmers complying with the prescribed conditions. The court also held that making the
payment of a government subsidy to a farmer conditional on the reduction of his planned crops went
beyond the powers of the national government.[2] Specifically, Justice Roberts said:
The act invades the reserved rights of the states. It is a statutory plan to regulate and control
agricultural production, a matter beyond the powers delegated to the federal government. The tax,
the appropriation of the funds raised, and the direction for their disbursement, are but parts of the
plan. They are but means to an unconstitutional end.

Taxing and spending for the general welfare

Although it struck down the Act, the Court dealt positively with taxation and the expenditure of funds
to advance the general welfare as specified in Article 1 8 of the Constitution. The Court stated that
the issue presents the great and the controlling question in the case. After comparing expansive vs.
restrictive interpretations of the Spending Clause, the Court adopted the philosophy that:
The clause confers a power separate and distinct from those later enumerated[,] is not
restricted in meaning by the grant of them, and Congress consequently has a substantive
power to tax and to appropriate, limited only by the requirement that it shall be exercised to
provide for the general welfare of the United States. It results that the power of Congress
to authorize expenditure of public moneys for public purposes is not limited by the direct
grants of legislative power found in the Constitution.
http://en.wikipedia.org/wiki/United_States_v._Butler

Slides: The Spending Clause is a substantive grant of power, and thus Congresss
authority to appropriate money is not limited to the other enumerated powers.
(United States v. Butler)
Related to the Affordable Health Care Act case

South Dakota v. Dole

Congress may attach reasonable conditions to funds disbursed to the states without running afoul of the Tenth
Amendment.

South Dakota v. Dole, 483 U.S. 203 (1987)[1], was a case in which the United States Supreme
Court considered the limitations the Constitution places on the authority of the United States
Congress when it uses its authority to influence the individual states in areas of authority normally
reserved to the states. It upheld the constitutionality of a federal statute that withheld federal funds
from states whose legal drinking age did not conform to federal policy.

Background[edit]
In 1984, the United States Congress passed the National Minimum Drinking Age Act, which withheld
5% [1] of federal highway funding from states that did not maintain a minimum legal drinking age of
21. South Dakota, which allowed 19-year-olds to purchase beer containing up to 3.2% alcohol,
challenged the law, naming Secretary of Transportation Elizabeth Dole as the defendant.

Related to the Affordable Health Care Act case

Decision of the Court[edit]

The Supreme Court held, 72, that the statute represented a valid use of Congressional authority
under the spending clause, and that the statute did not infringe upon the rights of the states. The

Court established a five point rule for considering the constitutionality of expenditure cuts of this
type, noting that:
1. The spending must promote "the general welfare";
2. The condition must be unambiguous;
3. The condition should relate "to the federal interest in particular national projects or
programs";
4. The condition imposed on the States must not in itself be unconstitutional; and
5. The condition must not be coercive.

Condition is related to spending on highway funds

o

Relationship btw drinking age and fed highway money is safety

Writing for the majority, Chief Justice William Rehnquist noted that the National Minimum Drinking
Age Act clearly met the first three restrictions, leaving only the latter two restrictions worthy of
consideration. Rehnquist wrote that the Congress did not violate the Tenth Amendment because it
merely exercised its right to control its spending. Rehnquist wrote that the Congress did not coerce
the states because it only cut a small percentage of federal funding, thus applying pressure, but not
irresistible pressure.

Dissent[edit]
Justices O'Connor and Brennan each filed dissents. O'Connor agreed that Congress may attach
conditions on the receipt of federal funds, and that the Twenty-First Amendment gives states
authority over laws relating to the consumption of alcohol. But O'Connor wrote that the attachment of
condition on the states must be "reasonably related to the expenditure of funds." O'Connor
disagreed with the Court's finding that withholding federal highway funds was reasonably related to
deterring drunken driving and drinking by minors and young adults. She argued that the condition
was both over and under-inclusive: it prevented teenagers from drinking when they are not going to
drive on federal and federally funded highways, and it did not attempt to remedy the overall problem
of drunken driving on federal and federally funded highways. She held the relation between the
condition and spending too attenuated: "establishment of a minimum drinking age of 21 is not
sufficiently related to interstate highway construction to justify so conditioning funds appropriated for
that purpose."

Just like taxing, Congress can use Spending power for regulatory purposes
o By adding conditions to the federal funding
Look at class notes and textbook: Pg. #648-649
o 4 general restrictions on the spending power

Under-inclusive and over-broad

Rehnquist: Its okay if the law is under-inclusive and over-broad
because there is a reasonable relationship that its related to fed.
Interest
Courts should defer substantially to the judgment of Congress 2 (pg. #649)

Congresss spending power is subject to four basic limits:

(1) it can only be exercised in pursuit of the general welfare;
(2) conditions attached to funds must be unambiguous;
(3) conditions attached to funds must be related to the federal interest in a national project or
program (the purpose of the spending); and
(4) it cannot be barred by other constitutional limits. The relatedness requirement is satisfied even if
a condition is overbroad and under-inclusive. (South Dakota v. Dole)

Related to the Affordable Health Care Act case

Like the taxing power, Congress may use its spending power to accomplish regulatory aims that
would otherwise be beyond federal authority. But this power is subject to limits imposed by the Tenth
Amendment. [I]n some circumstances the financial inducement offered by Congress may be so
coercive as to pass the point at which pressure turns into compulsion. A 5% reduction in federal
highway funding did not pass this point. (Dole)

Related to the Affordable Health Care Act case

New York v. United States

The "take title" provision of the Low-Level Radioactive Waste Policy Amendments Act violates the Tenth Amendment
and exceeds Congress's power under the Commerce Clause.
-

10th Amm. stands for state sovereignty

Take title clause violates state sovereignty

The "take title" provision[edit]

After noting the constitutionality of the first two incentives, Justice O'Connor characterized the "take
title" incentive as an attempt to "commandeer" the state governments by directly compelling them to
participate in the federal regulatory program. The federal government "crossed the line distinguishing
encouragement from coercion." The distinction was that with respect to the "take title" provision, the
States had to choose between conforming to federal regulations or taking title to the waste. Since
Congress cannot directly force States to legislate according to their scheme, and since Congress
likewise cannot force States to take title to radioactive waste, O'Connor reasoned that Congress

cannot force States to choose between the two. Such coercion would be counter to the federalist
structure of government, in which a "core of state sovereignty" is enshrined in the Tenth Amendment.
The Court found the "take title" provision to be severable, and, noting the seriousness of the
"pressing national problem" being addressed, allowed the remainder of the Act to survive.

Look at Lec. 15 slides 14-16

http://en.wikipedia.org/wiki/New_York_v._United_States

Tenth Amendment (State sovereignty)

The Tenth Amendment (Amendment X) to the United States Constitution, which is part of the Bill of
Rights, was ratified on December 15, 1791.[1] It expresses the principle of federalism, which
undergirds the entire plan of the original Constitution, by stating that the federal
government possesses only those powers delegated to it by the Constitution. All remaining powers
are reserved for the states or the people. In drafting this amendment, its framers had two purposes
in mind: first, as a necessary rule of construction; and second, as a reaffirmation of the nature of the
federal system.[2]

Understanding the Affordable Care Act

-

NFIB v. Sebelius (2012)

As expansive as our cases construing the scope of the commerce power have been, they all have
one thing in common: They uniformly describe the power as reaching activity. (687/4)
-

My question: Not regulation of inactivity? (As in Wickard)

o Look at notes
Regulation of growing wheat (Wickard)

Not an inactivity of not growing it

Construing the Commerce Clause to permit Congress to regulate
individuals precisely because they are doing nothing would open a
new and potentially vast domain to congressional authority. Every day
individuals do not do an infinite number of things. In some cases they
decide not to do something; in others they simply fail to do it. (687/5)
Allowing Congress to regulate inactivity would greatly expand federal
power

The Individual Mandate cannot be sustained under the N&P Clause (691/3)
o The act forces you into commerce
o And then Congress(/fed. govt) regulates it
Govt relies primarily on Gonzales (691/4)
Necessary for larger picture of regulating health insurance
Like regulating marijuana
Each of our prior cases upholding laws under that Clause involved exercises
of authority derivative of, and in service to, a granted power. . . . The
individual mandate, by contrast, vests Congress with the extraordinary ability
to create the necessary predicate to the exercise of an enumerated power.
(691/3)

Taxing and Spending

o See class notes
o See slides

See Lecture 16 Review

Slides 1 to
10!!!!!!!!!!!!!!!!!!!!!!!!!!!
I. The Reconstruction Amendments
A. The Thirteenth Amendment
B. The Fourteenth Amendment
II. The Privileges or Immunities Clause:
The Slaughter-House Cases

Slaughter-House Cases
(the butchers and the monopoly company)
Privileges or immunities of citizens of the United States were to be protected by the Fourteenth Amendment not the
privileges or immunities of citizens of a state.

The Slaughter-House Cases, 83 U.S. 36 (1873) were the first United States Supreme
Court interpretation of the recently-enacted Fourteenth Amendment to the Constitution. It was a
pivotal case in early civil rights law, reading the Fourteenth Amendment as protecting the "privileges
or immunities" conferred by virtue of Federal, United States citizenship, to all individuals of all states
within it; but not to protect the various privileges or immunities incident to citizenship of a state.
However, Federal rights of citizenship were at that time few (such as the right to travel between
states and to use navigable rivers;) the 14th Amendment did not protect the far broader range of
rights covered by state citizenship. In effect, the 14th Amendment was interpreted to convey limited
protection pertinent to a small minority of rights.

Resolution by the Court[edit]

In a 5-4 decision issued on April 14, 1873, by Justice Samuel Freeman Miller, the Court held to a
narrow interpretation of the amendment and ruled that it did not restrict the police powers of the
state. The Court held that the Fourteenth Amendment's Privileges or Immunities clause affected only
rights of United States citizenship and not state citizenship. Therefore the butchers' Fourteenth
Amendment rights had not been violated. At the time, the Court viewed due process in
a procedural light rather than substantively. The Court further held that the amendment was primarily
intended to protect former slaves and so could not be broadly applied.
We do not conceal from ourselves the great responsibility which this duty devolves upon us. No
questions so far reaching and pervading in their consequences, so profoundly interesting to the
people of this country, and so important in their bearing upon the relations of the United States and
of the several States to each other, and to the citizens of the states and of the United States, have
been before this court during the official life of any of its present members. We have given every
opportunity for a full hearing at the bar; we have discussed it freely and compared views among
ourselves; we have taken ample time for careful deliberation, and we now propose to announce the
judgments which we have formed in the construction of those articles, so far as we have found them
necessary to the decision of the cases before us, and beyond that we have neither the inclination
nor the right to go.
Slaughterhouse Cases: 83 U.S. 36, 67 (1873)
And,

"The next observation is more important in view of the arguments of counsel in the present case. It
is, that the distinction between citizenship of the United States and citizenship of a state is clearly
recognized and established. . . .
It is quite clear, then, that there is a citizenship of the United States, and a citizenship of a state,
which are distinct from each other, and which depend upon different characteristics or circumstances
in the individual.
We think this distinction and its explicit recognition in this Amendment of great weight in this
argument, because the next paragraph of this same section, which is the one mainly relied on by the
plaintiffs in error, speaks only of privileges and immunities of citizens of the United States, and does
not speak of those of citizens of the several states. The argument, however, in favor of the plaintiffs,
rests wholly on the assumption that the citizenship is the same and the privileges and immunities
guaranteed by the clause are the same.
Slaughterhouse Cases: 83 U.S. 36, 73-74 (1873)
Miller believed that the first sentence of the Fourteenth Amendment ("All persons born and
naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United
States and of the State where they reside") differentiated between two citizenships, one of the
United States and one of the state. Furthermore, the second sentence forbidding states from making
"any law which shall abridge", only applied to federal rights alone. [1] Thus, the Privileges and
Immunities Clause of the U.S. Constitution only protected rights guaranteed by the United States,
not by individual states. As author Jack Beatty put it, these rights included "access to ports and
navigable waterways, the ability to run for federal office, and to be protected while on the high
seas...they did not include what we call 'civil rights.'" [1]
Miller argues that if the privileges or immunities clause protected the civil rights of citizens of a state
from that state, then the 14th amendment would in essence be granting to the Federal government
the power to protect all civil rights that had previously been protected by the states, and that "in the
absence of language which expresses such a purpose too clearly to admit of doubt", this was too
radical a change to be within the scope of the 14th amendment. He asks
"Was it the purpose of the fourteenth amendment, by the simple declaration that no State should
make or enforce any law which shall abridge the privileges and immunities of citizens of the United
States, to transfer the security and protection of all the civil rights which we have mentioned, from
the States to the Federal government? And where it is declared that Congress Shall have the power
to enforce that article, was it intended to bring within the power of Congress the entire domain of civil
rights heretofore belonging exclusively to the States?
All this and more must follow if the proposition of the plaintiffs in error be sound...[T]he effect is to
fetter and degrade the State governments by subjecting them to the control of Congress in the
exercise of powers heretofore universally conceded to them of the most ordinary and fundamental
character....
We are convinced that no such results were intended by the Congress which proposed these
amendments, nor by the legislatures of the States which ratified them."
Slaughterhouse Cases: 83 U.S. 36, 77-78 (1873)

Justice Stephen J. Field later wrote that Miller's opinion effectively rendered the Fourteenth
Amendment a "vain and idle enactment".[4][5]
Field, joined by three other justices, wrote an influential dissent in which he accepted Campbell's
reading of the amendment as not confined to protection of freed slaves, but rather as embracing
the common law presumption in favor of an individual right to pursue a legitimate occupation. Field's
reading of the due process clause of the amendment would prevail in future cases in which the court
read the amendment broadly to protect property interests against hostile state laws.

Bradwell v. Illinois
(woman lawyer wants to be admitted to the bar)
Bradwell v. State of Illinois, 83 U.S. 130 (1873),[1] was a United States Supreme Court case that
solidified the narrow reading of the Privileges or Immunities Clause of the Fourteenth Amendment,
and determined that the right to practice a profession was not among these privileges. The case is
also notable for being an early 14th Amendment challenge to sex discrimination in the United States.

Supreme Court set up early precedents against rights of women

The Court's Decision[edit]

Majority[edit]
The Supreme Court disagreed with Bradwell. In an 8-1 ruling, it upheld the decision of the Illinois
court, ruling that the Privileges or Immunities Clause of the Fourteenth Amendment did not include
the right to practice a profession, so it was properly regulable by the states. The majority opinion
forgoes lengthy discussion of this point by referring to the discussion of privileges and immunities in
the Slaughterhouse Cases.
The majority also dismissed any claim under the privileges and immunities clause of the unamended
ConstitutionArticle IV, Section 2, Clause 1. Bradwell argued that because she had been born in
Vermont but later moved to Illinois, Illinois' denial of a law license was inter-state discrimination. But
the Court noted that under the recently enacted Fourteenth Amendment, "All persons born or
naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United
States and of the State wherein they reside." Because Bradwell had been a resident of Illinois for
several years, she was now a citizen of Illinois, and the interstate provision of Article IV did not apply.

Other opinions[edit]
Although the majority opinion makes virtually no reference to Bradwell's sex and does not decide the
case on the basis of her being a woman, three justices found her sex critical. Justice Bradley's
opinion concurring in the Court's judgment posits that [t]he natural and proper timidity and delicacy
which belongs to the female sex evidently unfits it for many of the occupations of civil life... The
paramount destiny and mission of women are to fulfill the noble and benign offices of wife and

mother. This is the law of the Creator. 83 U. S. 130, 142. This is at odds with Bradley's dissent in
the Slaughterhouse Cases, where he had argued (with respect to men) that "the right of any citizen
to follow whatever lawful employment he chooses to adopt (submitting himself to all lawful
regulations) is one of his most valuable rights, and one which the legislature of a State cannot
invade, whether restrained by its own constitution or not." 83 U.S. 36, 114.

Subsequent History[edit]
Because the Court limited the application of the Privileges or Immunities Clause of the Constitution
to the privileges of non-citizens in foreign United States states and because the Court extremely
limited the Privileges and Immunities Clause of the Fourteenth Amendment in the Slaughterhouse
Cases, subsequent parties alleging discrimination turned to the Equal Protection Clause.
In 1971, the Court would, for the first time, overturn, using the Equal Protection Clause, a genderbased distinction in Reed v. Reed. While the Court in Reed applied only a rational basis review to
strike down a decision giving males preference to females for administrator of estates positions, the
Court would later apply intermediate scrutiny in Craig v. Boren. Today, the Court's approach
in Craig is still applied.

Minor v. Happersett
Minor v. Happersett, 88 U.S. 162 (1875), is a United States Supreme Court case in which the
Court held that the Constitution did not grant women the right to vote. The Supreme Court upheld
state court decisions in Missouri, which had refused to register a woman as a lawful voter because
that state's laws allowed only men to vote.
The Minor v. Happersett ruling was based on an interpretation of the Privileges or Immunities
Clause of the Fourteenth Amendment. The Supreme Court readily accepted that Minor was a citizen
of the United States, but it held that the constitutionally protected privileges of citizenship did not
include the right to vote.
The Nineteenth Amendment, which became a part of the Constitution in 1920, effectively
overruled Minor v. Happersett by prohibiting discrimination in voting rights based on sex. [1] Minor v.
Happersett continued to be cited in support of restrictive election laws of other types until the 1960s,
when the Supreme Court started interpreting the Fourteenth Amendment's Equal Protection
Clause to guarantee voting rights.[2]

http://en.wikipedia.org/wiki/Minor_v._Happersett

Strauder v. West Virginia

Exclusion of individuals from juries solely because of their race is a violation of the Equal Protection Clause.

In Strauder v. WV (1880), the Supreme Court held that a state law

expressly excluding qualified black citizens from sitting on a jury violated
the Equal Protection Clause. The law violated EPC because (a) it drew an
express racial distinction, (b) it asserted inferiority, and (c) it undermined
the protective function of the jury.
Opinion of the Court[edit]
The majority, speaking through Justice William Strong, held that categorical exclusion of blacks from
juries for no other reason than their race did indeed violate the Equal Protection Clause, since the
very purpose of the Clause was "to assure to the colored race the enjoyment of all the civil rights that
under the law are enjoyed by white persons, and to give to that race the protection of the general
government, in that enjoyment, whenever it should be denied by the States." The Court did not say
that exclusion of blacks from juries violated the rights of potential jury members; rather, such
exclusion violated the rights of black criminal defendants, since juries would be "drawn from a panel
from which the State has expressly excluded every man of [a defendant's] race."
The Court did not hold that any particular jury must be racially balanced in order to satisfy equal
protection; the categorical exclusion from all juries was the problem. This holding is reaffirmed in the
important 20th-century equal protection case Washington v. Davis: "[Strauder] established that the
exclusion" of African-Americans from juries violates equal protection, but if a particular jury or series
of juries "does not statistically reflect the racial composition of the community does not in itself make
out an invidious discrimination forbidden by the Clause 246U.S. 229 (1976)
While a victory for the rights of black defendants and an important early civil rights case, Strauder v.
West Virginia upheld the right of states to bar women or other classes from juries, holding, in the
words of Justice Strong, that a state "may confine the selection to males, to freeholders, to citizens,
to persons within certain ages, or to persons having educational qualifications. We do not believe the
Fourteenth Amendment was ever intended to prohibit this. ... Its aim was against discrimination
because of race or color."[2]
Look at slides for quotes! Lec. 17 and 18.

II. Section 5 Enforcement Power

A. Morrison (again)
- Sec. 5 enforcement power only extends to state or state actors

o It protects federalism

There are four great clauses in section 1 of the 14A:

the Citizenship Clause, the Privileges or Immunities
Clause, the Due Process Clause and the Equal
Protection Clause. It applies to state governments,
not private individuals. Section 5 of the 14A contains
a positive grant of power to Congress to enforce the
provisions of the amendment, including section 1.

City of Boerne v. Flores (1997)

(the RFRA and permit for Church case)
City of Boerne v. Flores, 521 U.S. 507 (1997), was a Supreme Court case concerning the scope
of Congress's enforcement power under the fifth section of the Fourteenth Amendment.
Enactment of the Religious Freedom Restoration Act of 1993 exceeded congressional power under Sec. 5 of
the Fourteenth Amendment.

In City of Boerne v. Flores (1997), the Supreme Court held that section 5 of
the 14A only empowers Congress to enforce existing constitutional rights,
rather than create them. This implies that Congress may not define
constitutional rights under section 1 of the 14A in contravention of a judicial
decision. It also implies that legislation under section 5 must be congruent
and proportional to the injury to be prevented or remedied. (1334/4) The
legislative record should show the injury to be addressed, and there should
only be necessary incursions on state authority. (1333/5)
- Can enforce, not create
- Enforce existing rights
o i.e. Congress cant say blank violates the DPC and Sec. 5
allows Congress to provide remedy

- Congruent ant proportional (use cases)

- Look at class notes!
The Archbishop brought suit, challenging the ruling under the Religious Freedom Restoration
Act (RFRA) of 1993. Flores argued that his congregation had outgrown the existing structure,
rendering the ruling a substantial burden on the free exercise of religion without a compelling state
interest.[2]
Congress also applied the law to state and local governments, the City of Boerne in this case,
relying on the Fourteenth Amendment, in particular Section 5, which says "The Congress shall have
power to enforce, by appropriate legislation, the provisions of this article."

Supreme Court[edit]
The Court, in an opinion by Justice Anthony Kennedy, struck down RFRA as it applies to the states
as an unconstitutional use of Congress's enforcement powers. The Court held that it holds the sole
power to define the substantive rights guaranteed by the Fourteenth Amendmenta definition to
which Congress may not add and from which it may not subtract. Congress could not constitutionally
enact RFRA because the law was not designed to have "congruence and proportionality" with the
substantive rights that the Court had defined. Although Congress could enact "remedial" or
"prophylactic" legislation to guarantee rights not exactly congruent with those defined by the Court, it
could only do so in order to more effectively prevent, deter, or correct violations of those rights
actually guaranteed by the Court. RFRA was seen disproportionate in its effects compared to its
objective. Justice Kennedy wrote:
Congress' power under 5, however, extends only to "enforc[ing]" the provisions of the Fourteenth
Amendment. The Court has described this power as "remedial." The design of the Amendment and
the text of 5 are inconsistent with the suggestion that Congress has the power to decree the
substance of the Fourteenth Amendment's restrictions on the States. Legislation which alters the
meaning of the Free Exercise Clause cannot be said to be enforcing the Clause. Congress does not
enforce a constitutional right by changing what the right is. It has been given the power "to enforce,"
not the power to determine what constitutes a constitutional violation. Were it not so, what Congress
would be enforcing would no longer be, in any meaningful sense, the "provisions of [the Fourteenth
Amendment]." (citations omitted)
Moreover, remedial or prophylactic legislation still had to show "congruence and proportionality"
between the end it aimed to reach (that is, the violations it aimed to correct), and the means it chose
to reach those endsthat is, the penalties or prohibitions it enacted to prevent or correct those
violations. Because RFRA was not reasonably remedial or prophylactic, it was unconstitutional.

Implications[edit]

Congruence and proportionality[edit]

Boerne is important for several reasons. One reason is that it introduced a completely new test for
deciding whether Congress had exceeded its section-five powers: the "congruence and
proportionality" test, a test that has proven to have great importance in the context of the Eleventh
Amendment. Another reason was that it explicitly declared that the Court alone has the ability to

state which rights are protected by the Fourteenth Amendment. Yet another was that it had First
Amendment consequences too, in that it spelled the end for any legislative attempts to
overturn Employment Division v. Smith.
The "congruence and proportionality" requirement replaced the previous theory advanced
in Katzenbach v. Morgan that the Equal Protection Clause is "a positive grant of legislative power
authorizing Congress to exercise its discretion in determining the need for and nature of legislation
to secure Fourteenth Amendment guarantees." Before the 1997 Boerne decision, Katzenbach v.
Morgan was often interpreted as allowing Congress to go beyond, but not fall short of, the Court's
interpretation of the Equal Protection Clause. But that is not how the majority opinion
in Boerne interpreted Katzenbach:
There is language in our opinion in Katzenbach v. Morgan, 384 U.S. 641 (1966), which could be
interpreted as acknowledging a power in Congress to enact legislation that expands the rights
contained in 1 of the Fourteenth Amendment. This is not a necessary interpretation, however, or
even the best one.... If Congress could define its own powers by altering the Fourteenth
Amendment's meaning, no longer would the Constitution be "superior paramount law, unchangeable
by ordinary means."
The holding of Boerne said that only the Court could interpret the Constitution, in order to maintain
the "traditional separation of powers between Congress and the Judiciary." Also, Boerne relied on
arguments for protecting the rights that pertain to state governments [8] based on "enumerated
powers." The intent of Boerne was to prevent "a considerable congressional intrusion into the States'
traditional prerogatives and general authority." The holding of Boerne specifically mentioned the
state action doctrine of the Civil Rights Cases as a Court interpretation of the Equal Protection
Clause that limits the "remedial or preventive" power of Congress.

Constitutionality of the RFRA[edit]

This case has been used to claim that the federal RFRA is "unconstitutional". [9] The constitutionality
of RFRA as applied to the federal government was confirmed on February 21, 2006, as the Supreme
Court ruled against the government in Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal,
546 U.S. 418 (2006), which involved the use of an otherwise illegal substance in a religious
ceremony, stating that the federal government must show a compelling state interest in restricting
religious conduct.

Read opinion: http://en.wikipedia.org/wiki/City_of_Boerne_v._Flores

Overturned decision in Emp. Div. v. Smith (below)

Employment Division v. Smith (1990)

The Free Exercise Clause permits the State to prohibit sacramental peyote use and thus to
deny unemployment benefits to persons discharged for such use. Neutral laws of general applicability do not
violate the Free Exercise Clause of the First Amendment.

US v. Morrison (2000)
Court invalidated Violence Against Women Act
In United States v. Morrison (2000), the Court held that a federal cause of action against
perpetrators of gender-based violence was not a congruent and proportional remedy for
bias in state courts against victims of gender-based violence.
There were two problems: First, the cause of action did not apply to state officials, which
raised federalism concerns. Second, the remedy applied in all states, not just those where
the evidence demonstrated a bias problem (not congruent and proportionate).
o

In United States v. Morrison (2000), the Court invalidated the Violence Against
Women Act, which created a federal tort cause of action against perpetrators of
gender-motivated violence. The Court held that Congressional findings of an effect
on interstate commerce was not sufficient to satisfy the Courts independent
evaluation.
Application of principle laid out in Boerne v. Flores

Independent evaluation to determine if Congress reached that activity, it would reach

those areas traditionally held by states
In a 54 decision, United States v. Morrison invalidated the section of the Violence
Against Women Act (VAWA) of 1994 that gave victims of gender-motivated violence
the right to sue their attackers in federal court, although program funding remains
unaffected. Chief Justice Rehnquist, writing for the majority, held that

Congress lacked authority, under either

the Commerce Clause or the Fourteenth
Amendment, to enact this section.
-

With regard to the Commerce Clause, the majority said that the result was controlled
by United States v. Lopez (1995), which had held that the Gun-Free School Zones Act of
1990 was unconstitutional. There as in Morrison, the Court stressed "enumerated powers"
that limit federal power in order to maintain "a distinction between what is truly national and
what is truly local."

Lopez therefore limited the scope of the Commerce Clause to exclude activity that was not
directly economic in nature, even if there were indirect economic consequences.

Lopez was the first significant limitation on the Commerce Clause powers of Congress in 53
years.

The majority, quoting from NLRB v. Jones & Laughlin Steel Corp. (1937), said that the scope
of the interstate commerce power

must be considered in the light of our dual system of government and may not be extended so
as to embrace effects upon interstate commerce so indirect and remote that to embrace them,
in view of our complex society, would effectually obliterate the distinction between what is
national and what is local and create a completely centralized government.

The Lopez court stated that Congress may regulate (1) use of the channels of interstate
commerce, (2) the "instrumentalities" (for example, vehicles) used in interstate commerce,
and (3) activities that substantially affect interstate commerce. Because VAWA's civil remedy
concededly did not regulate the first or second categories, the Morrison court analyzed its
validity under the third.
http://en.wikipedia.org/wiki/United_States_v._Morrison

Class Notes
-

Has to be aimed against state actors

o Sec. 5 enforcement powers only extend to state or state actors
o Because it protects federalism
Worry that fed cause of action in fed court could replace or bypass states
powers
The remedy has to be congruent and proportional to the injury
o Theres evidence of bias in 21 states out of 50
o But created a cause of action that applies to all 50
o Not congruent and proportional to constitutional injury
No connection between interstate commerce and the commerce clause
Strauter: Could not remove case > political question

I. Segregation
- How do you tell when a distinction, classification
or discrimination is not offensive?
o Purpose: The distinction is relevant to some
agreed upon result
Look at class notes!

Brown v. Board of Education

Segregation of students in public schools violates the Equal Protection Clause of the Fourteenth Amendment,
because separate facilities are inherently unequal.

Holding
Reporters who observed the court holding were surprised by two facts. First, the court made a
unanimous decision. Prior to the ruling, there were reports that the court members were sharply
divided and might not be able to agree. Second, the attendance of Justice Robert H. Jackson who
had suffered a mild heart attack and was not expected to return to the bench until early June 1954.
"Perhaps to emphasize the unanimity of the court, perhaps from a desire to be present when the
history-making verdict was announced, Justice Jackson was in his accustomed seat when the court
convened."[31] Reporters also noted that Dean Acheson, former secretary of state, who had related
the case to foreign policy considerations, and Herbert Brownell, the current attorney general, were in
the courtroom.[32]
The key holding of the Court was that, even if segregated black and white schools were of equal
quality in facilities and teachers, segregation by itself was harmful to black students and
unconstitutional. They found that a significant psychological and social disadvantage was given to
black children from the nature of segregation itself, drawing on research conducted by Kenneth
Clark assisted by June Shagaloff. This aspect was vital because the question was not whether the
schools were "equal", which under Plessy they nominally should have been, but whether the
doctrine of separate was constitutional. The justices answered with a strong "no":
[D]oes segregation of children in public schools solely on the basis of race, even though the physical
facilities and other "tangible" factors may be equal, deprive the children of the minority group of
equal educational opportunities? We believe that it does. ...
"Segregation of white and colored children in public schools has a detrimental effect upon the
colored children. The impact is greater when it has the sanction of the law, for the policy of
separating the races is usually interpreted as denoting the inferiority of the negro group. A sense of
inferiority affects the motivation of a child to learn. Segregation with the sanction of law, therefore,
has a tendency to [retard] the educational and mental development of negro children and to deprive
them of some of the benefits they would receive in a racial[ly] integrated school system." ...
We conclude that, in the field of public education, the doctrine of "separate but equal" has no place.
Separate educational facilities are inherently unequal. Therefore, we hold that the plaintiffs and
others similarly situated for whom the actions have been brought are, by reason of the segregation
complained of, deprived of the equal protection of the laws guaranteed by the Fourteenth
Amendment. (Quoted on 1362/4)

Loving v. Virginia
The Court declared Virginia's anti-miscegenation statute, the "Racial Integrity Act of 1924", unconstitutional, as
a violation of the 14th Amendment's Equal Protection Clause.

Carrico cited as authority the Virginia Supreme Court's decision in Naim v. Naim (1955) and argued
that the Lovings' case was not a violation of the Equal Protection Clause because both the white and

the non-white spouse were punished equally for the crime of miscegenation, an argument similar to
that made by the United States Supreme Court in 1883 in Pace v. Alabama.[10]

Decision[edit]
The U.S. Supreme Court overturned the Lovings' convictions in a unanimous decision (dated June
12, 1967), dismissing the Commonwealth of Virginia's argument that a law forbidding both white and
black persons from marrying persons of another raceand providing identical penalties to white and
black violatorscould not be construed as racially discriminatory. The court ruled that Virginia's antimiscegenation statute violated both the Due Process Clause and the Equal Protection Clause of the
Fourteenth Amendment.
Chief Justice Earl Warren's opinion for the unanimous court held that:
Marriage is one of the "basic civil rights of man," fundamental to our very existence and survival....
To deny this fundamental freedom on so unsupportable a basis as the racial classifications
embodied in these statutes, classifications so directly subversive of the principle of equality at the
heart of the Fourteenth Amendment, is surely to deprive all the State's citizens of liberty without due
process of law. The Fourteenth Amendment requires that the freedom of choice to marry not be
restricted by invidious racial discrimination. Under our Constitution, the freedom to marry, or not
marry, a person of another race resides with the individual and cannot be infringed by the State.
The court concluded that anti-miscegenation laws were racist and had been enacted to
perpetuate white supremacy:
There is patently no legitimate overriding purpose independent of invidious racial discrimination
which justifies this classification. The fact that Virginia prohibits only interracial marriages involving
white persons demonstrates that the racial classifications must stand on their own justification, as
measures designed to maintain White Supremacy.
Associate Justice Potter Stewart filed a brief concurring opinion. He reiterated his opinion
from McLaughlin v. Florida that "it is simply not possible for a state law to be valid under our
Constitution which makes the criminality of an act depend upon the race of the actor."

Washington v. Davis
(the police dept. written entrance case)
In a 7-to-2 decision, the Court held that the procedures and written personnel test did not constitute racial
discrimination under the Equal Protection Clause. The Court found that the Clause was designed to
prevent official discrimination on the basis of race; laws or other official acts that had racially
disproportionate impacts did not automatically become constitutional violations. The Court reasoned that
the D.C. Police Department's procedures did not have discriminatory intent and were racially neutral
measures of employment qualification.

To be unconstitutional under:

1. The equal protection jurisprudence (DPC of the 5th Amm. in this case, which contains an equal
protection component), racial discrimination by the government must contain two elements:
a. A discriminatory purpose and
b. A discriminatory impact

2. Unlike the constitution, Title VII of the Civil Rights Act of 1964 was interpreted in Griggs v.
Duke Power Co. to prohibit employment practices that have a racially disparate impact
irrespective of whether they were adopted with a discriminatory purpose.

Justice Byron White (J. White) said our cases have not embraced the proposition that a law can
be a violation of equal protection on the basis of its effect, without regard for governmental
intent. Disproportionate impact is not irrelevant, but it alone does not trigger the rule that racial
classifications are subject to the strict scrutiny standard of review. The police forces efforts to
recruit black police officers are evidence that the police department did not intentionally
discriminate on the basis of race.
The exam is rationally related to the legitimate government purpose of ensuring that police
officers have acquired a particular level of verbal skill.
Concurrence. Justice John Paul Stevens (J. Steven) said that frequently the most probative
evidence of intent will be a showing of what actually happened. A Constitutional issue does not
arise, however, every time some disproportionate impact is shown.
Discussion. After this case, a court confronted with a law that has a disproportionate effect on
a racial minority, must first determine if the law is race specific. If it is, either because the law is
facially discriminatory or because the law was motivated by a racial discriminatory purpose, the
law will probably be invalidated under the strict scrutiny standard of review. If the law is nonrace specific, the court will apply the rational basis standard of review, regardless of the laws
impact on racial minorities.
Lecture slides:
[W]e have difficulty understanding how a law establishing a racially neutral qualification for
employment is nevertheless racially discriminatory and denies any person . . . equal protection of
the laws simply because a greater proportion of Negroes fail to qualify than members of other racial
or ethnic groups. (1382/2)
Discriminatory intent and impact are required
Our cases have not embraced the proposition that a law or other official act, without regard to
whether it reflects a racially discriminatory purpose, is unconstitutional solely because it has a
racially disproportionate impact . . . The differentiating factor between de jure segregation and so
called de facto segregation . . . is purpose or intent to segregate. (1381/1, 3)
Proving discriminatory intent: unequal application
This is not to say that the necessary discriminatory racial purpose must be express or appear on the
face of the statute, or that a laws disproportionate impact is irrelevant . . . A statute, otherwise
neutral on its face, must not be applied so as invidiously to discriminate on the basis of race. It is
also clear . . . that systematic exclusion of Negroes is itself such an unequal application of the law . .
. as to show intentional discrimination. (1381/4)

Proving discriminatory intent: totality of circumstances

Necessarily, an invidious discriminatory purpose may often be inferred from the totality of the
relevant facts, including the fact, if it is true, that the law bears more heavily on one race than
another. . . . Standing alone, [disproportionate] impact does not trigger the rule that racial
classifications are to be subject to the strictest scrutiny . . . . (1381/5)

Grutter v. Bollinger (the Admissions case)

University of Michigan Law School admissions program that gave special consideration for being a certain
racial minority did not violate the Fourteenth Amendment.

Grutter v. Bollinger, 539 U.S. 306 (2003), was a landmark case in which the United
States Supreme Court upheld the affirmative action admissions policy of the University of Michigan
Law School. Justice Sandra Day O'Connor, writing for the majority in a 5-4 decision and joined by
Justices Stevens, Souter, Ginsburg, and Breyer, ruled that the University of Michigan Law School
had a compelling interest in promoting class diversity. The court held that a race-conscious
admissions process that may favor "underrepresented minority groups," but that also took into
account many other factors evaluated on an individual basis for every applicant, did not amount to
a quota system that would have been unconstitutional under Regents of the University of California
v. Bakke.
Chief Justice Rehnquist, joined by Justices Kennedy, Scalia, and Thomas, dissented, arguing that
the University's "plus" system was, in fact, a thinly veiled and unconstitutional quota system.

Supreme Court's decision[edit]

The Court's majority ruling, authored by Justice Sandra Day O'Connor, held that the United States
Constitution "does not prohibit the law school's narrowly tailored use of race in admissions decisions
to further a compelling interest in obtaining the educational benefits that flow from a diverse student
body." The Court held that the law school's interest in obtaining a "critical mass" of minority students
was indeed a "tailored use". O'Connor noted that sometime in the future, perhaps twenty-five years
hence, racial affirmative action would no longer be necessary in order to promote diversity. It implied
that affirmative action should not be allowed permanent status and that eventually a "colorblind"
policy should be implemented. The opinion read, "race-conscious admissions policies must be
limited in time." "The Court takes the Law School at its word that it would like nothing better than to
find a race-neutral admissions formula and will terminate its use of racial preferences as soon as
practicable. The Court expects that 25 years from now, the use of racial preferences will no longer
be necessary to further the interest approved today." The phrase "25 years from now" was echoed
by Justice Thomas in his dissent. Justice Thomas, writing that the system was "illegal now",
concurred with the majority only on the point that he agreed the system would still be illegal 25 years
hence.
The decision largely upheld the position asserted in Justice Powell's concurrence in Regents of the
University of California v. Bakke, which allowed race to be a consideration in admissions policy, but
held that quotas were illegal.

Public universities and other public institutions of higher education across the nation are now
allowed to use race as a plus factor in determining whether a student should be admitted. While race
may not be the only factor, the decision allows admissions bodies to take race into consideration
along with other individualized factors in reviewing a student's application. O'Connor's opinion
answers the question for the time being as to whether "diversity" in higher education is a compelling
governmental interest. As long as the program is "narrowly tailored" to achieve that end, it seems
likely that the Court will find it constitutional.
In the majority were Justices O'Connor, Stevens, Souter, Ginsburg, and Breyer. Chief Justice
Rehnquist and Justices Scalia, Kennedy, and Thomas dissented. Much of the dissent concerned a
disbelief in the validity of the law school's claim that the system was necessary to create a "critical
mass" of minority students and provide a diverse educational environment.
The case was heard in conjunction with Gratz v. Bollinger, 539 U.S. 244 (2003), in which the Court
struck down the University of Michigan's more rigid, point-based undergraduate admission policy,
which was essentially deemed a quota system.

To be narrowly tailored, an admissions policy cannot employ a quota, or assign a fixed

number of points based on an applicants race. (Gratz, p1403; Bakke, p1402) One narrowly
tailored policy considered an applicants race among other factors in an effort to assess the
contribution that applicant would make to the school. In the affirmative action context, at
least, narrow tailoring does not require exhaustion of every race-neutral alternative.
(1395/1)
Look at class notes: Apr. 23rd Review

Gratz v. Bollinger
Gratz v. Bollinger, 539 U.S. 244 (2003),[1] was a United States Supreme Court case regarding
the University of Michigan undergraduate affirmative action admissions policy. In a 63 decision
announced on June 23, 2003, Chief Justice Rehnquist, writing for the Court, ruled the University's
point system's "predetermined point allocations" that awarded 20 points to underrepresented
minorities "ensures that the diversity contributions of applicants cannot be individually assessed" and
was therefore unconstitutional.
A state university's admission policy violated the Equal Protection Clause of the Fourteenth Amendment
because its ranking system gave an automatic point increase to all racial minorities rather than making
individual determinations.

Question
Does the University of Michigan's use of racial preferences in undergraduate admissions violate the Equal
Protection Clause of the Fourteenth Amendment or Title VI of the Civil Rights Act of 1964?

Yes. In a 6-3 opinion delivered by Chief Justice William H. Rehnquist, the Court held that the University of
Michigan's use of racial preferences in undergraduate admissions violates both the Equal Protection
Clause and Title VI. While rejecting the argument that diversity cannot constitute a compelling state

interest, the Court reasoned that the automatic distribution of 20 points, or one-fifth of the points needed
to guarantee admission, to every single "underrepresented minority" applicant solely because of race was
not narrowly tailored and did not provide the individualized consideration Justice Powell contemplated in
Regents of the University of California v. Bakke, 438 U.S. 265 (1978). Chief Justice Rehnquist wrote,
"because the University's use of race in its current freshman admissions policy is not narrowly tailored to
achieve respondents' asserted compelling interest in diversity, the admissions policy violates the Equal
Protection Clause."

Yick Wo v. Hopkins (Chinese laundry case)

Yick Wo v. Hopkins, 118 U.S. 356 (1886),[1] was the first case where the United States Supreme
Court ruled that a law that is race-neutral on its face, but is administered in a prejudicial manner, is
an infringement of the Equal Protection Clause in the Fourteenth Amendment to the U.S.
Constitution.
Racially discriminatory application of a facially neutral statute violates the Equal Protection Clause of the
Fourteenth Amendment.

An introduction to the law of sex

discrimination
Personnel Administrator of Massachusetts v.
Feeney
A state law giving hiring preference to veterans over non-veterans does not violate the Equal Protection Clause
of the Fourteenth Amendment to the Constitution

Personnel Administrator of Massachusetts v. Feeney, 442 U.S. 256 (1979), was a case heard by
the Supreme Court of the United States. The Supreme Court's decision upheld the constitutionality
of a state law giving hiring preference to veterans over non-veterans. [1]The law was challenged as
violating the Equal Protection Clause of the Fourteenth Amendment to the United States
Constitution by a woman, who argued that the law discriminated on the basis of sex because so few
women held veteran status.[1]

Geduldig v. Aiello

Denial of benefits for work loss resulting from normal pregnancy does not violate the Equal Protection
Clause of the Fourteenth Amendment.

Geduldig v. Aiello, 417 U.S. 484 (1974), was an equal protection case in the United States in which
the Supreme Court ruled on whether unfavorable treatment to pregnant women could count as sex
discrimination. It held that the denial of insurance benefits for work loss resulting from a
normal pregnancy did not violate the Fourteenth Amendment. The California insurance program at
issue did not exclude workers from eligibility based on sex but did exclude pregnancy from a list of
compensable disabilities. The majority found that even though only women would be directly affected
by the administrative decision, the classification of normal pregnancy as non-compensable was not a
sex-based classification, and therefore the court would defer to the state so long as it could provide
a rational basis for its categorization.

Judgment[edit]
Part II of the majority opinion first laid out the rational basis for the policy as argued by the state.
Justice Stewart focused largely on the economics of the benefit system, which had been operating
as a self-supporting system since its inception. The contribution rate to the disability fund as set
struck a balance that allowed the state to cover the health conditions that it had deemed eligible
under the program: in the years immediately preceding Geduldig, 90-103% of the disability funds
revenue had been utilized to pay disability and hospital benefits. Both parties acknowledged that to
cover more disability risks would require an increase in the amount of money going into the fund,
although they disagreed on the amount this would entail. [3] The District Court accepted the states
estimate that to cover normal pregnancy and delivery would require the fund to pay out over $100
million more in benefits but found that this would not destroy the solvency of the program, although it
would require reasonable changes in the contribution rate, the maximum benefits allowable, and
other variables.[4] The state, however, argued that such changes would jeopardize the ability of lowincome Californians to participate in the program, and thus it had a rational basis to maintain the
system in its existing state.
The majority pointed to Williamson v. Lee Optical, in which the Court found that a legislature could
legitimately address problems in phases, prioritizing issues which were most pressing.
The Geduldig majority stated that it would be particularly hesitant to second-guess such prioritization
and legislative calculation in regards to social welfare programs, citing the premise in Dandridge v.
Williams that the Equal Protection Clause does not require that a State must choose between
attacking every aspect of a problem or not attacking the problem at all. [5]California, the majority held,
could legitimately and constitutionally decide that it was better to keep benefit payments at an
adequate level for disabilities that are covered, rather than to cover all disabilities inadequately.
Finally, Stewarts opinion turned to the issue of whether Californias rational basis for its policy was
sufficient to uphold the states position. The majority found in the insurance system no invidious
discrimination that would violate the Equal Protection Clause, pointing out that women as a group
were still eligible for benefits even though the particular condition of pregnancy might not be
covered. The Court reasoned that there was no risk from which men are protected and women are
not, and no risk from which women are protected and men are not. As stated in Footnote 20 of the
majority opinion,
The program divides potential recipients into two groups-pregnant women and non-pregnant
persons. While the first group is exclusively female, the second includes members of both sexes.
The fiscal and actuarial benefits of the program thus accrue to members of both sexes.

While the Court acknowledged that only women could undergo the excluded condition, it does not
follow that every legislative classification concerning pregnancy is a sex-based classification.
Pregnancy was an objectively identifiable characteristic rather than a subjective judgment, and the
appellants had made no showing that the states asserted rationale for the policy was a pretext for
invidious discrimination. Thus, Californias policy was not one which the Court would subject to
the heightened scrutiny that it had used to evaluate cases such as Reed v. Reed and Frontiero v.
Richardson, and therefore the rational basis presented by the state was enough to allow the policy to
stand.
The majority reversed the lower courts decision and vacated the stay previously granted.

Reed v. Reed (1971)

(The estates case)
Administrators of estates cannot be named in a way that discriminates between sexes.

Reed v. Reed, 404 U.S. 71 (1971), was an Equal Protection case in the United States in which
the Supreme Court ruled that the administrators of estates cannot be named in a way that
discriminates between sexes.

The case[edit]
Sally and Cecil Reed, a married couple who had separated, were in conflict over which of them to
designate as administrator of the estate of their deceased son. Each filed a petition with the Probate
Court of Ada County, Idaho, asking to be named.[1] Idaho Code specified that "males must be
preferred to females" in appointing administrators of estates and the court appointed Cecil as
administrator of the estate, valued at less than $1000. Sally Reed was represented at the Supreme
Court by Idaho lawyer, Allen Derr, who argued that the Fourteenth Amendment forbids discrimination
based on gender.[2]
After a series of appeals by both Sally and Cecil Reed, the Supreme Court considered the case and
delivered a unanimous decision that held the Idaho Code's preference in favor of males was
arbitrary and unconstitutional.[1]
The Supreme Court ruled for the first time in Reed v. Reed that the Equal Protection Clause of the
Fourteenth Amendment prohibited differential treatment based on sex.[3]
Because the Idaho Code made a distinction based on sex, the court reasoned that "it thus
establishes a classification subject to scrutiny under the Equal Protection Clause" and using the
generic standard of scrutinyordinary or rational basis reviewasked "whether a difference in the

sex of competing applicants for letters of administration bears a rational relationship to a state
objective."[1]
Chief Justice Burger's opinion said:[1]
To give a mandatory preference to members of either sex over members of the other, merely to
accomplish the elimination of hearings on the merits, is to make the very kind of arbitrary legislative
choice forbidden by the Equal Protection Clause of the Fourteenth Amendment; and whatever may
be said as to the positive values of avoiding intra-family controversy, the choice in this context may
not lawfully be mandated solely on the basis of sex.
Those who brought the case had hoped for a broader decision that would have deemed all
classifications based on sex "suspect", a category the Supreme Court reserved for race. A suspect
classification would be held to a more exacting standard of scrutiny known as strict scrutiny.

Frontiero v. Richardson (1973)

(The army benefits case)
Any statutory scheme which draws a sharp line between the sexes solely for the purpose of achieving
administrative convenience necessarily commands dissimilar treatment for men and women who are similarly
situated and therefore involves the very kind of arbitrary legislative choice forbidden by the Constitution.

Frontiero v. Richardson, 411 U.S. 677 (1973), was a landmark United States Supreme
Court case [1] which decided that benefits given by the United States military to the family of service
members cannot be given out differently because of sex.
Sharron Frontiero, a lieutenant in the United States Air Force, applied for housing and medical
benefits for her husband, Joseph, whom she claimed as a "dependent." While servicemen could
claim their wives as dependents and get benefits for them automatically, servicewomen had to prove
that their husbands were dependent on them for more than half their support. Joseph did not qualify
under this rule, and therefore could not get benefits. Sharron sued, and the case was appealed up to
the Supreme Court.
A plurality of the Court (Justices Douglas, White, Marshall and Brennan, who wrote the plurality's
opinion) found the military's benefit policy unconstitutional, because there was no reason why
military wives needed benefits any more than similarly situated military husbands. The Air Force
argued that the policy was intended to save administrative costs by not forcing the
military bureaucracy to determine that every wife was in fact a dependent. Justice Brennan
dismissed this argument, saying that, although as an empirical matter more wives than husbands
are dependent for support on their spouses, still, by automatically granting benefits to wives who
might not truly be dependents, the Air Force might actually be losing money because of this policy
and the Air Force had not presented evidence to the contrary.
More importantly, the plurality argued for a strict standard of judicial scrutiny for those laws and
regulations that classified on the basis of sex, instead of mere rational basis review. (See the
appropriate section of the Equal Protection Clause article for more information on the different levels

of Equal Protection scrutiny.) A heightened standard of review, the plurality argued, was needed due
to America's "long and unfortunate history of sex discrimination":
[T]he sex characteristic frequently bears no relation to ability to perform or contribute to society. As a
result, statutory distinctions between the sexes often have the effect of invidiously relegating the
entire class of females to inferior legal status without regard to the actual capabilities of its individual
members. [Citations omitted.]
The plurality's application of "strict scrutiny" was not adopted in subsequent cases for evaluating
gender discrimination claims; instead, so-called "intermediate scrutiny" was adopted
in Craig v. Boren (1976).

Justices Blackmun and Powell, and Chief Justice Burger concurred in the result, but, in an opinion
written by Justice Powell, declined to decide whether discrimination on the basis of sex should
attract strict scrutiny. Justice Powell gave two reasons for leaving this question open. First, that
determination was not necessary to decide the case at bar, as the result was "abundantly" supported
by the Court's earlier decision in Reed v. Reed. Second, Justice Powell wrote that "deferring" on this
question was supported by the ongoing debate about over the Equal Rights Amendment which, if
adopted, would resolve the question precisely and "represent the will of the people accomplished in
the manner prescribed by the Constitution." Justice Stewart also concurred in the result, but said
nothing about the Equal Rights Amendment; instead, he stated only that he agreed that the statutes
in question "work an invidious discrimination in violation of the Constitution."
Justice Rehnquist dissented. Thus, Frontiero won her case by an 8 to 1 vote.

Craig v. Boren (1976)

(The 3.2% beer case)
To regulate in a sex-discriminatory fashion, the government must demonstrate that its use of sex-based
criteria is substantially related to the achievement of important governmental objectives.

Craig v. Boren, 429 U.S. 190 (1976), was the first case in which a majority of the United States
Supreme Court determined that statutory or administrative sex classifications had to be subjected to
an

intermediate standard of judicial review.

Issue[edit]
The Supreme Court was called upon to determine whether a statute that denies the sale of beer to
individuals of the same age based on their gender violates the Equal Protection Clause. Additionally,
the Supreme Court examined for jus tertii (third party rights), in this case the vendor of the 3.2%
beer.

Result[edit]
Justice William J. Brennan delivered the opinion of the Court, in which he was joined by
Justices White, Marshall,Powell and Stevens (Justice Blackmun joined all but one part of the
opinion; Blackmun, Powell, Stevens, and Stewart wrote concurrences [1]). The Court held that the
gender classifications made by the Oklahoma statute were unconstitutional because the statistics
relied on by the state were insufficient to show a substantial relationship between the statute and the
benefits intended to stem from it.
The court instituted a standard, dubbed "intermediate scrutiny", whereby the state must prove the
existence of specific important governmental objectives, and the law must be substantially related to
the achievement of those objectives.
As to third party rights, the court, expanding on the doctrine of standing, held that the vendors of
3.2% beer would be economically affected due to the restrictive nature of the sales to males
between 18 and 20. To have standing, one must show a "nexus" of the injury to oneself and the
constitutional violation of the statute. In this case, the statute directly affected Whitener only
economically, however the Supreme Court explains that Whitener and other vendors have standing
to assert concomitant rights of other parties (such as Craig). The Court acknowledged that parties
economically affected by regulations may challenge those regulations "by acting as advocates of the
rights of third parties who seek access to their market or function."
Justice Blackmun wrote a concurring opinion, agreeing that a higher standard of scrutiny was
appropriate.

Dissent[edit]
Chief Justice Burger and Justice Rehnquist dissented. Rehnquist dissented because he felt that the
law only needed to pass the rational basis analysis. (Previous cases in this area, such as Stanton
v. Stanton, had used only the "rational basis" test). Burger was "in general agreement with Mr.
Justice Rehnquist's dissent,..." but penned a separate dissent to emphasize that "a litigant may only
assert his own constitutional rights or immunities." He felt that the indirect economic injury to
Whitener and other vendors introduced "a new concept of constitutional standing to which I cannot
subscribe."

Reed v. Reed controls

IS > IGI > SR
IS: Between SS & RBR

Standard of intermediate scrutiny (IS), whereby the state must prove the
existence of specific important governmental interests (IGI) and the law must be
substantially related (SR) to the achievement of those interests
Which interests do not meet that criterion?
Reducing workload
Administrative ease
o Why are they not important?
Fit
Doesnt represent what the states interested
in
Not substantially related
Using gender as a proxy
o Look at Apr. 23rd class notes

Slides

Thus, in Reed, the objectives of reducing the workload on probate courts, and avoiding
intra-family controversy, were deemed of insufficient importance . . . . Decisions following
Reed similarly have rejected administrative ease and convenience as sufficiently important
objectives . . . . [as well as] fostering old notions of role typing and preparing boys for their
expected performance in the economic and political worlds. (1408/3)
It is unrealistic to expect either members of the judiciary or state officials to be well versed in
the rigors of experimental or statistical technique. But this merely illustrates that proving
broad sociological propositions by statistics is a dubious business, and one that inevitably is
in tension with the normative philosophy that underlies the Equal Protection Clause.
(1410/1)

Rostker v. Goldberg
The Act's registration provisions do not violate the Fifth Amendment. Congress acted well within its
constitutional authority to raise and regulate armies and navies when it authorized the registration of men and
not women.

United States v. Virginia (VMI Case)

United States v. Virginia, 518 U.S. 515 (1996), is a case in which the Supreme Court of the United
States struck down the Virginia Military Institute (VMI)'s long-standing male-only admission policy in
a 7-1 decision.
Commonwealth of Virginia's exclusion of women from the Virginia Military Institute violated Equal Protection
Clause of the Fourteenth Amendment.

Majority decision[edit]
Writing for the majority, Justice Ruth Bader Ginsburg stated that because VMI failed to show
"exceedingly persuasive justification" for its sex-based admissions policy, it violated the Fourteenth
Amendment's Equal Protection Clause. In an attempt to satisfy equal protection requirements, the
state of Virginia had proposed a parallel program for women, called the Virginia Women's Institute
for Leadership (VWIL), located at Mary Baldwin College, a private liberal arts women's college.[1]
However, Justice Ginsburg held that the VWIL would not provide women with the same type of
rigorous military training, facilities, courses, faculty, financial opportunities, and/or alumni reputation
and connections that VMI affords male cadets, a decision evocative of Sweatt v. Painter, when the
Court ruled in 1950 that segregated law schools in Texas were unconstitutional, since a newly
formed black law school clearly did not provide the same benefits to its students as the state's
prestigious and long-maintained white law school.[1] In her opinion, she stated that "The VWIL
program is a pale shadow of VMI in terms of the range of curricular choices and faculty stature,
funding, prestige, alumni support and influence."[2]

Rehnquist concurrence[edit]
Chief Justice William Rehnquist wrote a concurrence agreeing to strike down the male-only
admissions policy of the Virginia Military Institute, as violative of the Fourteenth Amendment's Equal
Protection Clause.[2] However, he declined to join the majority opinion's basis for using the
Fourteenth Amendment, writing: "Had Virginia made a genuine effort to devote comparable public
resources to a facility for women, and followed through on such a plan, it might well have avoided an
equal protection violation."[2] This rationale supported separate but equal facilities separated on the
basis of sex: "it is not the 'exclusion of women' that violates the Equal Protection Clause, but the
maintenance of an all-men school without providing any -- much less a comparable -- institution for
women... It would be a sufficient remedy, I think, if the two institutions offered the same quality of
education and were of the same overall caliber."[2]

Scalia dissent[edit]
Justice Scalia's lone dissent argued that the standard applied by the majority was closer to a strict
scrutiny standard than the intermediate scrutiny standard applied to previous cases involving equal
protection based on sex. Notably, however, the opinion for the Court eschewed either standard; its
language did not comport with the "important governmental interest" formula used in prior
intermediate scrutiny cases. Scalia argued that "if the question of the applicable standard of review
for sex-based classifications were to be regarded as an appropriate subject for reconsideration, the
stronger argument would be not for elevating the standard to strict scrutiny, but for reducing it to
rational-basis review."[1]

Slides:
To summarize the Courts current directions for cases of official classification based on
gender: . . . the reviewing court must determine whether the proffered justification is
exceedingly persuasive. . . . The State must show at least that the [challenged]
classification serves important governmental objectives and that the discriminatory means
employed are substantially related to the achievement of those objectives. (1418/5)

 Look at Apr. 23rd and 28th class notes

Due Process
Substantive Due Process (DP)
Calder v. Bull
(Conn. Legislature passed an act ordering a
new trial)
Calder v. Bull, 3 U.S. 386 (1798),[1] is a United States Supreme Court case in which the Court
decided four important points of constitutional law.
First that the ex post facto clause of the United States Constitution only applies to criminal acts, and
then only if the law does one of four things: "1st. Every law that makes an action done before the
passing of the law, and which was innocent when done, criminal; and punishes such action. 2d.
Every law that aggravates a crime, makes it greater than it was, when committed. 3d. Every law that
changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when
committed. 4th. Every law that alters the legal rules of evidence, and receives less, or different,
testimony, than the law required at the time of the commission of the offence, in order to convict the
offender."[1] The decision restates this later as laws "that create, or aggregate, the crime; or
encrease(sic) the punishment, or change the rules of evidence, for the purpose of conviction." (italics
in original)[1]
Second, the Supreme Court said it had no authority to decide if an act of a state legislature violated
that state's constitution. The Supreme Court decision says, "this court has no jurisdiction to
determine that any law of any state Legislature, contrary to the Constitution of such state is void." [1]
Third, the Supreme Court said that "that no man should be compelled to do what the laws do not
require; nor to refrain from acts which the laws permit."(italics in original)[1]
Fourth, the Supreme Court decided that this specific act of the Conneticut legislature, and any other
state legislative act, is not a violation of the ex post facto clause if "there is no fact done by
Bull and wife, Plaintiff's in Error, that is in any manner affected by the law or resolution
of Connecticut: It does not concern, or relate to, any act done by them."(italics in original)[1]

Meyer v. Nebraska, 262 U.S. 390, 399 (1923)

What is liberty?
[T]his Court has not attempted to define with exactness the liberty thus guaranteed, the term has
received much consideration and some of the included things have been definitely stated. Without
doubt, it denotes not merely freedom from bodily restraint but also the right of the individual to
contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry,
establish a home and bring up children, to worship God according to the dictates of his own
conscience, and generally to enjoy those privileges long recognized at common law as essential to
the orderly pursuit of happiness by free men.

Mathews v. Eldridge
(social disability benefits case)
Facts and procedural posture[edit]
The SSA terminated Eldridge's social security benefits through its normal procedures. However,
Eldridge was not provided with a hearing before the termination of his benefits in which he could
argue for a continuation of the benefits. He sued, even though he had not exhausted his posttermination administrative remedies. The district court held that the termination was unconstitutional,
and the court of appeals affirmed.
The Supreme Court reversed, holding that no pre-termination hearing was required.

Due process does not require a Goldberg-type hearing (welfare recipient) prior to the termination of social
security disability benefits on the ground that the worker is no longer disabled

Issue: Timing of Learning (class notes)

Legal principles[edit]
In determining the amount of process due, the court should weigh three factors:
1. The interests of the individual in retaining their property, and the injury threatened by the
official action
2. The risk of error through the procedures used and probable value, if any, of additional or
substitute procedural safeguards;

3. The costs and administrative burden of the additional process, and the interests of the
government in efficient adjudication

Social security benefits are a statutorily created property right implicating due process.
Termination of social security benefits does not require a pre-termination hearing.

Goldberg v. Kelly
Distinction btw Goldberg and Mathews
-

Welfare recipient (WR) v. disability benefit

o WR has no other means of an income
o WRs testimony will help (explain extra income)
o Disability departments cost of administration (comes out of disability program)

Return to: Calder v. Bull

-

Look at Apr. 30th class notes

o

Substantive DP
3 stages

Allgeyer v. Louisiana
(1 of 4 cases leading up to Lochner)
1. States may not prohibit citizens from contracting insurance out of state for acts performed outside of the
state.
2. States may not prohibit citizens from contracting out-of-state insurance by means of written communication,
even if the property to be insured is within the state.

Case Brief[edit]

Statute[edit]
In 1894, the Louisiana Legislature passed a statute entitled "An act to prevent persons, corporations
or firms from dealing with marine insurance companies that have not complied with law." The
purpose of the statute ostensibly was to prevent fraud by requiring statecitizens and corporations to
abstain from business with out-of-state marine insurance companies. Compliance with the statute
required that all out-of-state insurance companies have an appointed agent within the state. The text
of the statute read:
"That any person, firm or corporation who shall fill up, sign or issue in this State any certificate of
insurance under an open marine policy, or who in any manner whatever does any act in this State to
effect, for himself or for another, insurance on property, then in this State, in any marine insurance
company which has not complied in all respects with the laws of this State, shall be subject to a fine
of one thousand dollars, for each offence, which shall be sued for in any competent court by the
attorney general for the use and benefit of the charity hospitals in New Orleans and Shreveport."

Facts[edit]
On October 27, 1894, E. Allgeyer & Co. dispatched mail from New Orleans to the Atlantic Mutual
Insurance Company in New York to insure an international shipment of cotton, at the time in
Louisiana, under an open policy Allgeyer had with the insurance company.

Procedural history[edit]
On December 21, 1894 the State of Louisiana filed a petition in Orleans Parish court alleging
Allgeyer had violated the statute in three counts, and sought a cumulative fine of $3000. Instead of
offering an argument of innocence, Allgeyer challenged the statute on grounds that it violated the
Due Process Clause of the Fourteenth Amendment of the U.S. Constitution.
The case went to trial, and the parish court entered a judgment for the defendant, Allgeyer.
The Louisiana Supreme Court reversed the decision on appeal for one count, and found that the
other two counts were not proved. As a result, Allgeyer was fined $1000.

Issue[edit]
May a state prohibit a party within its jurisdiction from insuring property within the state through an
out-of-state insurance company which has no appointed agent within the state and where the
insurance contract is made outside the state?
Attorneys for Allgeyer claimed the statute violated both the Louisiana and United States
constitutions. They reasoned that liberty in the Due Process Clause entitled citizens to be free from
arbitrary restrictions. In particular, the attorneys claimed that:

the statute deprived Allgeyer of property without due process

the statute violated Allgeyer's right to equal protection

the action prosecuted fell outside the jurisdiction of Louisiana, thus making the statute not
applicable

the insurance contracts, and all business which transpired under them, were under the
jurisdiction of New York, and lawfully made under that jurisdiction

Allgeyer had the right to perform all acts necessary to execute the contracts in Louisiana.

Unanimous opinion[edit]
A unanimous court held for Allgeyer. Associate Justice Rufus Peckham authored the opinion of the
court, holding that the statute violated the Fourteenth Amendment.
"The 'liberty' mentioned in [the Fourteenth] amendment means not only the right of the citizen to be
free from the mere physical restraint of his person, as by incarceration, but the term is deemed to
embrace the right of the citizen to be free in the enjoyment of all his faculties, to be free to use them
in all lawful ways, to live and work where he will, to earn his livelihood by any lawful calling, to
pursue any livelihood or avocation, and for that purpose to enter into all contracts which may be
proper, necessary, and essential to his carrying out to a successful conclusion the purposes above
mentioned." [Emphasis added.]
Justice Peckham then defined liberty, using the dissent of Associate Justice Joseph P. Bradley from
the Slaughter-House Cases. However, Peckham did not give any indication of the limits of
permissible inroads of state police power upon this right, leaving such determinations to be made by
future courts over "each case as it arises."

Lochner
-

Substantive Due Process (DP)

Lochner v. New York, 198 U.S. 45 (1905), was a landmark United States Supreme
Court case that held that "liberty of contract" was implicit in the Due Process Clause of
the Fourteenth Amendment. The case involved a New York law that limited the number of
hours that a baker could work each day to ten, and limited the number of hours that a baker
could work each week to 60. By a 54 vote, the Supreme Court rejected the argument that
the law was necessary to protect the health of bakers, deciding it was a labor law attempting
to regulate the terms of employment, and calling it an "unreasonable, unnecessary and
arbitrary interference with the right and liberty of the individual to contract."

New York's regulation of the working hours of bakers was not a justifiable restriction on the right to
contract freely under the 14th Amendment's guarantee of liberty.

Griswold v. Connecticut
-

A Connecticut law criminalizing the use of contraceptives violated the right to marital privacy.

the Court had held that a right to privacy was implicit in the Due Process Clause of
the Fourteenth Amendment

Roe v. Wade (abortion)

-

Trimester
viability

PP v. Casey (abortion)
-

undue burden
substantial obstacle

Look at class notes

Gay Rights
I.

Gay Rights under the Equal Protection Framework

Romer v. Evans (1996) (Colorados Amendment 2 case)

An amendment to the Colorado Constitution that prevents protected status under the law for homosexuals or
bisexuals was struck down because it was not rationally related to a legitimate state interest.

Romer v. Evans, 517 U.S. 620 (1996), is a landmark United States Supreme Court case dealing
with sexual orientation and state laws. It was the first Supreme Court case to address gay
rights since Bowers v. Hardwick (1986), when the Court had held that laws criminalizing sodomy
were constitutional.[1]
The Court ruled in a 6-3 decision that a state constitutional amendment in Colorado preventing
protected status based upon homosexuality or bisexuality did not satisfy the Equal Protection
Clause.[2] The majority opinion in Romer stated that the amendment lacked "a rational relationship to
legitimate state interests", and the dissent stated that the majority "evidently agrees that 'rational
basis' - the normal test for compliance with the Equal Protection Clause - is the governing standard".
[2][3]
The state constitutional amendment failed rational basis review.[4][5][6][7]
The decision in Romer set the stage for Lawrence v. Texas (2003), where the Court overruled its
decision in Bowers,[1] and for the Supreme Court ruling striking down Section 3 of the Defense of
Marriage Act in United States v. Windsor (2013).

U.S. Supreme Court ruling[edit]

The case was argued on October 10, 1995.[16] On May 20, 1996, the court ruled 6-3 that Colorado's
Amendment 2 was unconstitutional, though on different reasoning from the Colorado courts.
Justice Anthony Kennedy wrote the majority opinion, and was joined by John Paul Stevens, Sandra
Day O'Connor, David Souter, Ruth Bader Ginsburg, and Stephen Breyer. The Court majority held
that the Colorado constitutional amendment targeting homosexuals based upon animosity lacked a
rational relation to any legitimate governmental purpose.[17]
Regarding the state's argument that Amendment 2 blocked homosexuals merely from receiving
"special rights", Kennedy wrote:[2]
Amendment 2's reach may not be limited to specific laws passed for the benefit of gays and
lesbians. It is a fair, if not necessary, inference from the broad language of the amendment that it
deprives gays and lesbians even of the protection of general laws and policies that prohibit arbitrary
discrimination in governmental and private settings....The state court did not decide whether the
amendment has this effect, however, and neither need we.
While leaving that question unresolved by his opinion, Kennedy concluded that the amendment
imposed a special disability upon homosexuals by forbidding them to seek safeguards "without
constraint".[2] Instead of applying "strict scrutiny" to Amendment 2 (as the Colorado Supreme Court
had done), Kennedy wrote that it did not even meet the much lower requirement of having a rational
relationship to a legitimate government purpose:[2]
Its sheer breadth is so discontinuous with the reasons offered for it that the amendment seems
inexplicable by anything but animus toward the class that it affects; it lacks a rational relationship to
legitimate state interests.[18]
And:[2]
[Amendment 2] is at once too narrow and too broad. It identifies persons by a single trait and then
denies them protection across the board. The resulting disqualification of a class of persons from the
right to seek specific protection from the law is unprecedented in our jurisprudence.
Kennedy did not go into depth in rejecting the claims put forward in support of the law (e.g.
protecting the rights of landlords to evict gay tenants if they found homosexuality morally offensive),
instead holding that the law was so unique as to "confound this normal process of judicial review"
and "defies...conventional inquiry."[2] He elaborated: "It is not within our constitutional tradition to
enact laws of this sort."[2]
Finding that "laws of the kind now before us raise the inevitable inference that the disadvantage
imposed is born of animosity toward the class of persons affected," the Court inferred that the
passage of Amendment 2 was born of a "bare...desire to harm a politically unpopular group".[2] The
Court added: "[I]f the constitutional conception of 'equal protection of the laws' means anything, it
must at the very least mean that a bare ... desire to harm a politically unpopular group cannot
constitute a legitimate governmental interest."(emphasis added)[19] The majority opinion in
Romer neither mentioned nor overruled the Court's prior opinion in Bowers v. Hardwick (1986),
which involved anti-gay animus backed up by criminal sanctions.[20]

Bowers v. Hardwick
In Bowers, the Court held that this right did not extend to private, consensual sexual conduct, at
least insofar as it involved homosexual sex. The 54 majority opinion in Bowers, written by
Justice Byron White, framed the legal question as whether the constitution confers "a fundamental
right upon homosexuals to engage in sodomy." The opinion answered this question in the negative,
stating that "to claim that a right to engage in such conduct is 'deeply rooted in this Nation's history
and tradition' or 'implicit in the concept of ordered liberty' is, at best, facetious." White was joined by
Justices William Rehnquist, Sandra Day O'Connor, Warren E. Burger, and Lewis F. Powell in
upholding the anti-sodomy law, while Justices Harry Blackmun, William J. Brennan, Jr.,Thurgood
Marshall, and John P. Stevens dissented, viewing the law as unconstitutional

II. Gay Rights under the Due Process Framework

- Lawrence v. Texas (2003)
III.
-

A New Direction in Substantive Due Process?

United States v. Windsor (2013)