Constitutional Law Outline


I. The Nature and Sources of the Supreme Courts Authority

Concept 1 [Origins of Judicial Review]:
· Historical Backdrop to the Marbury decision: (Early 1800’s) A fight continued between the Federalists (wanted a stronger Federal government) and the Jeffersonians (wanted stronger powers for the states) over who was to control the federal government.
· THE SETUP: Prior the end of his term in office, President Adams appointed his secretary of state, John Marshall, as the fourth Chief Justice of the United States. Marshall was sworn in and then asked by Adams to remain secretary of state for the remainder of Adams’ term, which was about a month.
· THE CIRCUIT COURT ACT: Reduced Supreme Court justices from 6 to 5. Now it is 9. During the last month, the Federalists, to which Adams and Marshall belonged, passed the Circuit Court Act, which reduced the number of Supreme Court Justices and eliminated a part of the 1802 term of the Supreme Court, leaving the Court unable to rule on issues. The Act also established 16 new circuit courts and federal judgeships. Adams quickly filled these slots with federalist appointees. All but four justices received their confirmations days before Jefferson was to take office. Those who received their conformation became known as “midnight judges.” Marbury, however, was one of the four who did not receive confirmation. When Jefferson took office, his new secretary of state, James Madison, refused to deliver the last confirmation. Jefferson was also livid about this. These positions were later abolished in 1802.
· THE POSITIONS: The Federal Government hoped that Jefferson would be in office by the time the Court was to rule on Marbury, and indeed he was. In 1803, the Court was again allowed to begin ruling on issues. By this time, the stage was set for the Federalist views, represented by Chief J. Marshall, to be pitted against the Jeffersonian views, represented by President Jefferson. Marbury is asking for writ of mandamus. Madison does nothing b/c Jefferson orders him to ignore the whole thing. Very touchy subject if Marshall did grant that mandamus b/c Jefferson will ignore it (he’ll thumb it). The Chief Justice of US S.Ct. and learn that there is a huge crisis about to happen, Adams main man in court, and needs to make a statement about the power of the S.Ct. to avoid this confrontation and constitutional crisis. Extremely important!! Marshall wasn’t Adams first choice, John Jay was the first choice but he declines b/c he thought it was a position of no power.
· THE ETHICAL CONSIDERATIONS: J. Marshall was intimately connected with the case itself as he was the one who signed the commissions, while his brother was the one who failed to deliver the final four confirmations. Today, it would be impossible for a justice to hear a case that affected them personally. But, the ethical considerations were different at that time, as it was an elitist society where everyone knew everyone else, including the framers of the Constitution.
· First of all, Congress eliminates 1802 term. First move in this chest game. That is why it is finally argued in 1803. Feb 11, 1803.

Application 1:
1. THE SUPREME COURT HAS THE POWER, BY WAY OF JUDICIAL REVIEW, TO REVIEW STATUTES AND STRIKE THEM DOWN IF UNCONSTITUTIONAL: Marbury v. Madison – Marbury filed a complaint in the original jurisdiction (this is rare) of the Supreme Court seeking a writ of mandamus, which applies only to non-discretionary (acts covered by the law as opposed to policy decisions) government officials. J. Marshall broke the case down into three issues:
1. Does Marbury have a right to commission?
· Yes, Adams and the secretary of state had signed once the commission, the right was “vested and not revocable.”
· Two Criticisms Arose of this Statement:
a) PROPERTY LAW: In property, a right is generally on the vested upon delivery, not upon sealing. Although this does not mean Marshall was wrong, it does mean that the opinion could have come out differently if Marshall had chosen to avoid the Constitutional issues entirely.
b) GENERAL RULE: If there is an easy way to non-constitutionally reach a lawful decision, then it should be utilized rather than discussing constitutional issues.
2. If he has a right, does he have a remedy?
· Yes, a writ of mandamus could be an appropriate remedy. But, many felt at the time that the acts of the President and his officials were not reviewable by a court. An extremely strong proponent of this view was Jefferson. Marshall stated that not all acts of the executive branch are reviewable by the court (discretionary acts). Rather, the court has the power to review the non-discretionary acts (acts that are covered by the law) of the government.
3. Under its original jurisdiction, can the Supreme Court issue a writ of mandamus?
· No. Marshall turned to the wording of the Judiciary Act in which the words “writ of mandamus” followed a discussion of appellate jurisdiction and not original jurisdiction. Hence, historians have suggested that Marshall misinterpreted the Judiciary Act. Nonetheless, Marshall read the Act to mean that writs of mandamus can be issued in original jurisdiction. In follows therefore that Marshall concluded the Act to be in conflict with the Constitution b/c there is no mention of the possibility of a writ of mandamus in Article III as it relates to original jurisdiction.

· THE FINAL ISSUE: Marshall was then left to determine whether or not a repugnant statute, that unconstitutionally expands the scope of the Constitution, could exist in conflict with the Constitution. He answers in the negative and strikes the statute down. Hence, Marshall’s ultimate conclusion follows from this as he declares that the Supreme Court, as the final authority, has the power to judicially review a statute.
· The affects of the Marshall decision: [Prof. Comments] Marshall, in some form or another was able to appease all parties. Marbury was able to say, “Although I lost, I had a judicial right to that opinion,” while Jefferson could reason, “I am angry that you declared some of my acts to be reviewable, but at least Marbury did not get the appointment.”
2. In class discussion®IS JUDICIAL REVIEW CONSTITUTIONAL? IS IT INHERENT IN THE CONSTITUTION? [Prof. says] In some ways, yes, because out system is set up in such a way that a question of law will ultimately end up at the highest court. That highest court then acts as an arbiter to resolve an issue.
· Two schools of thought arise out of Marbury:
a) Interpretivist: The school of thought that believes recognized norms should be expressed and enforced in the Constitution that are clearly implicit or explicit. Hence, judges that fall under this category enforce norms that are implicit or implied in the Constitution.
b) Non-Interpretivist: The school of thought that enforces a norm that is not clearly implicit in the Constitution. This school of thought is not limited by recognized norms. Rather, they read more things into the Constitution.
· What school does Marshall fall under? He is likely an interpretivist as he checks Article III and reads directly from it.
4. In class discussion®THE HAND (Judicial Restraint) VS. WECHSLER DEBATE (Judicial Activism):
· Judicial Activism – [Wechsler] It is a judges obligation to strike down any statute that is in conflict w/ the Constitution. (J. Marshall falls into this category).
· Judicial Restraint – [Hand] This school does not jump into every issue, as it is not comfortable with judicial review. This school does not believe judicial review is supported by history. Hence, a judge from this school would strike down statutes only when necessary.

*NOTE: Interpretivism/Non-interpretivism does NOT necessarily correlate with restraint/activism.

Concept 2 [Supreme Court Authority to Review State Court Judgments]:
· Sub-Concept (a): The Supreme Courts Power to Review State Law
· Supreme Court Authority over state Civil Disputes: The Supreme Court has the power, pursuant to § 25 of the Judiciary Act of 1789, to review state civil disputes.
· Supreme Court Authority over state Criminal Disputes: The Supreme Court has the power, pursuant to § 25 of the Judiciary Act of 1789, to review state criminal disputes.

· Sub-Concept (b): Modern Court Jurisdiction and Practice [Certiorari Pool and Workload Problems of the Supreme Court]
The Supreme Court Docket: The Supreme Court docket is 99% discretionary. They can decide what cases they want to hear based on the changes of 1988 in which the Court reviews only petitions for certiorari. Prior to 1988, The court heard both “appeals,” as defined by statute, and petitions for certiorari. The petitions most frequently heard are those that include a district court controversy, called a “lack of uniformity” or “efficiency rule.” But, would a certiorari pool be a good idea to promote efficiency? What is the certiorari pool idea?
· “Certiorari Pool”: [This idea is already partially in place] Initially, three law clerks write reviews to give to three judges as summaries. Other judges in the Supreme Court pride themselves in not participating in the pool. In today’s court, however, almost every justice participates in the pool, meaning that they are not independently reviewing each petition in its full length.
Workload problems in the Supreme Court: There was a petition to add another court to the federal system to reduce the workload of the Supreme Court. Specifically, three ideas were presented:
a) Froin Committee (1970’s) – Suggested a court below the Supreme Court that would screen the petitions for certiorari and would select limited number of about 400 cases for review.
b) Hruska Commission – An overflow court idea. The Supreme Court could screen their own petitions and upon finding cases that did not contain weighty issues, those cases would be referred and passed down to an overflow court for ruling, with the possibility to appeal again to the Supreme Court.
c) Intercircuit Pool – This idea was for a court to be developed to hear only disputes among the state courts.
Adequate and Independent State Grounds Doctrine [Federalism Issue]: The Supreme Court should not decide a case if there is a state law issue in that case b/c state courts should review state law.
· Background: Prior to the Long decision, it was presumed that state court decisions containing an issue of state law were not reviewable. After Long, however, that presumption was replaced by the ‘Long Presumption’ which stated that it was presumed that the Supreme Court could review State decisions, unless it was explicitly stated by the States that they were interpreting state law exclusively.
· NOTE: The Martin decision would probably be unable to be heard in the Supreme Court today, as it was an issue dealing solely with state legislation and state law.

Application 2:
Sub-Application (a):
1. THE SUPREME COURT CAN REVIEW AND OVERRULE ANY STATE SUPREME COURT CIVIL DECISION: Martin v. Hunter’s Lessee – [J. Story – Marshall recused himself] Lord Fairfax, a British loyalist and Virginia citizen, owned a large parcel of land in Virginia. Fairfax then willed the land to his nephew, Martin. Subsequently, Virginia passed a law, which confiscated any land owned by formed loyalists. Virginia then granted a portion of Martin’s land to Hunter. Martin brought suit against Hunter to recover the tract of land. The Virginia Supreme Court entered a judgment for Hunter (and the State). In 1813, the US Supreme Appellate reversed, entering a judgment for Martin. The Virginia Supreme Court, however, refused to execute the judgment. The Supreme Court was then called upon to rule whether or not the Supreme Court can overrule a State Supreme Court decision. They answered in the affirmative, citing §25 of the Judiciary Act and reasoning that the US Supreme Court had the jurisdiction and authority to review all state acts “arising under” the Constitution, laws, and treatises of the US.
· Article III grants the US Supreme Court jurisdiction over all cases “arising under” the Constitution, Laws, and Treatises of the US. The Judicial Act, as a law, thereby gave the Court the requisite authority.
2. THE SUPREME COURT CAN REVIEW AND OVERRULE ANY STATE SUPREME COURT CRIMINAL DECISION: Cohen’s v. Virginia – [J. Marshall] Virginia, pursuant to a VA law in place, prosecuted citizens for the selling of lottery tickets. The Cohen brothers were selling lottery tickets in the District of Columbia, which was in violation of Virginia laws. The Cohen brothers were convicted in a Norfolk court for the selling of the lottery tickets. The Supreme Court, on appeal, had to decide whether or not they could review state criminal decisions. Answering in the affirmative, the Court upheld the VA law, but in the process they reinforced/extended the holding in Martin to criminal proceedings.

Sub-Application (b):
1. In class discussion®IS IT A GOOD POLICY TO HAVE THE CERTIORARI POOL: Prof: Perhaps not because it is better to have each judge look at each petition in its full length. But, workload issues might prevent this from taking place. Hence, a “guided” or “supervised” certiorari pool might be best.
2. In class discussion®WORKLOAD PROBLEMS OF THE SUPREME COURT: Prof: There may be a workload problem but the solutions are unreasonable. We don’t want to expand justices or reduce the time of oral argument or add another tier to the court system. Comments:
a) The Freun idea seems the most constitutionally questionable because Article III states that there shall be a Supreme Court in the land. A petition for cert is directed to that Supreme Court, and not to an intermediary.
b) The inter-circuit idea seems to be a poor idea b/c the Martin case suggests that the Supreme Courts main job is to hear disputes among the state courts. Therefore, it would make no sense to pass off the most important cases.
3. THE LONG PRESUMPTION®ALL STATE COURT DECISIONS ARE REVIEWABLE UNLESS THE STATE EXPLICITLY SAYS THE OPINION IS BASED SOLELY ON STATE LAW: Michigan v. Long – (1983) The 4th Amendment prevents “unreasonable search and seizure.” States can give more constitutional protection to its citizens, but not less. Long’s search and seizure rights were violated. The State Supreme Court held that the policeman violated the 4th Amendment and provisions of Michigan law, though the opinion spoke primarily of federal law. By discussing some state law, the state court tried to prevent federal review. The Supreme Court, however, held that a mere whiff that the case is based on state law is insufficient to prevent judicial review by reasoning that, in order to avoid judicial review, a state decision must clearly state that the issues in that case are based on state law.
· Significance: This case shifted more cases toward judicial review, not less.

Concept 3 [Checks on the Supreme Court’s Authority]:
· How much control does Congress have over the appellate jurisdiction of the Supreme Court pursuant to an interpretation of Art. III § 2 (Clause 2), which states that “the US Supreme Court shall have appellate jurisdiction with such exceptions and regulations as Congress shall make”? Three views:
Absolute Control – Congress can completely control the appellate jurisdiction of the Supreme Court [broad reading of McCardle].
· Congress can limit some jurisdiction of the Supreme Court because the broad language in McCardle has never been overruled.
Neutral – Congress can only limit jurisdiction in a “neutral” way, i.e. Congressional limitation must not be designed to change the result of a certain case. Therefore, Congress cannot destroy the Supreme Courts appellate jurisdiction entirely. [Klein]
Can not limit the Supreme Court’s Authority to Establish Uniformity – Congress can not destroy appellate jurisdiction in a way that would undermine the ability of the Supreme Court to maintain uniformity in the Supremacy of the Federal law. [Marbury].

Application 3:
1. VIEW 1®CONGRESS CONTROLS THE APPELLATE JURISDICTION OF THE SUPREME COURT: Ex Parte McCardle – During the Reconstruction Era, Congress enacted the Reconstruction Act, which placed military forces in the Southern States. Congress wanted to prevent judicial overruling legislation. The Congressional Act of 1867 granted a prisoner a writ of habeas corpus directly to the Supreme Court. Congress then repealed that act and limited the appellate jurisdiction of the Supreme Court pursuant to Art. III §2 Clause 2. A broad reading of this case suggests that Congress has absolute control over the appellate jurisdiction of the Supreme Court.
2. VIEW 2®CONGRESS CAN LIMIT THE APPELLATE JURISDICTION OF THE SUPREME COURT IN A NEUTRAL WAY ONLY: US v. Klein – A federal state of 1863 was in place, which stated that all those who did not participate in the rebellion could reclaim their land. After Klein was given a presidential pardon, the SC allowed him to reclaim his land. The government appealed, and Congress passed an act state that such pardons are conclusive proof of participation in the rebellion. Klein then argued that the act was unconstitutional based on Separation of Powers. The SC agreed, holding that the act was unconstitutional based on the Separation of Powers because Congress was trying to tell the SC how to rule.

II. The Structure of Government: Nation and States in the Federal System
Concept [Power of Congress – The Relationship between the State and Federal Governments]:
The Powers of Congress:
I. Doctrine of Enumerated Powers – The list of the powers of Congress contained in Art I § 8. Through these powers, Congress can make laws that create our government. Generally, Congress is expected to act pursuant to these powers. Why do we have these powers?
1. Stronger Framework: At the Constitutional Convention, the Framers wanted a stronger framework of government than they had under the articles of confederation.
2. Written Limitations: The Framers were concerned that the National Government would have too much power and overwhelm the states so they listed what powers Congress would have.
II. Doctrine of Implied Powers – [Means-Ends Analysis] Congress may use any rationally related means not prohibited by the Constitution to achieve an end specified in the enumerated powers. Hence, Congress can use a any reasonable means (i.e. not unreasonable) to carry out any enumerated powers. People grew concerned that Congress was acquiring too much power and they began to question where the source of implied powers came from. There are two sources:
1. Execution of Enumerated Powers: Congress has the power, outside of the “necessary and proper” clause to facilitate or carry out the execution of enumerated powers.
2. The “necessary and proper” clause: A debate arose about the meaning and significance of the necessary and proper clause and how much power it actually gave Congress. There were two contending positions:
a) Jefferson – He lobbied for state’s rights, via the 10th Amendment, and thought the necessary and proper clause contained only the absolutely essential implied powers necessary to administer the enumerated powers.
b) Hamilton – Worked as the Secretary of the Treasury and lobbied for federal rights. He believed that the implied powers were broad and Congress can use any congressional means that are proper or had a natural relation to the execution of enumerated powers.
· NOTE: J. Marshall acts as almost a stand-in for Hamilton, though he does impose some limitations through pretexts.
The Limitations on the Powers of Congress:
I. Pretext Laws: Congress cannot pass any laws for an improper purpose.
· Pretext Law – A law that hides an unconstitutional purpose. This concept involves a difficult interpretation of what the law may actually mean. Therefore, we must often accept what Congress says the law is for b/c the court is not a legislature and does not often delve into the actual meaning or purpose of the law.

1. Implied Powers®Congress can use any rationally related means to carry out an end specified in the enumerated powers: McCulloch v. Maryland –
Historical Background:
· McCulloch – Not a likeable guy. He was involved in both embezzlement and corruption. Both he and the bank were not popular at this time.
· The Bank – the Bank was in its second charter at this point and was initially enacted to reduce economic depression or “panic” among US citizens. However, the panic did not subside after the Bank’s creation and it was therefore blamed.
Maryland sought to enforce a statute, which imposed a tax on banks operating within the state but not chartered by the state, against a Bank of the US and McCulloch (D), its “cashier” in Baltimore. The design of the taxing statute was to discourage Banks of the US from operating in the branches within their state. D refused to pay the tax and the Maryland lower court imposed penalties on D. On appeal, the Maryland appellate court affirmed and D appealed directly to the Supreme Court. The Supreme Court therefore was faced with determining the issue of whether or not Congress has the power to incorporate a bank or are the states true sovereigns.
· Maryland argued: The dual sovereignty theory – The states and national governments are separate equivalent entities. The Constitution emanates from the states and the states delegate power to the Federal Government. Because the Bank branch is not found in the doctrine of enumerated powers, it is beyond the power of the government to create a national bank. This is a similar view to the view taken by the judges in Martin v. Hunters Lessee.
· Marshall’s Opinion: He does not buy the dual sovereignty theory. Rather, he states that power emanates from the people, not from states individually. Therefore, because the power does not come from the states, but rather from the people, the states have no power to limit congressional authority and the federal government is paramount to the states. Hence, the incorporation of a bank is a legitimate exercise of congressional power because it is found within the enumerate powers (criticism: Marshall does not say which enumerated power incorporation of a bank might be found in). This congressional authority contains both implied and enumerated powers, which Marshall has three ideas about:
1. Constitution as a set of broad principles: We are construing a Constitution. Therefore, it could not include EVERYTHING a government would have to do because it would become too detailed. Therefore, the Constitution outlines a set of broad principles and can adapt to change. Therefore, a bank IS possible.
2. Means-Ends Analysis for Implied Powers:
a) Any necessary means: The government was given great power by the enumerated powers. Therefore, the government needs any necessary means to carry out those powers. The Bank is a means to carry out enumerated powers. The Bank is not an “ends.”
· Prof: Marshall does not explain what the bank is designed to carry out. But, a bank, as a lending institution, is reasonably and logically related to the commerce clause.
b) Any logical/rational means: Congress can use any appropriate means to carry out a legitimate end through the implied powers of the “necessary and proper” clause. Marshall defines “appropriate” as a logical (i.e. not illogical) or rational (i.e. not irrational) means of carrying out an enumerated power.
· Prof: A court can always fall back on this means-ends analysis to make sure their actions are “not illogically” related to carrying out some ends.
3. Limitations on Congressional Powers: Congress cannot pass “pretext” laws for any improper purpose.
2. In class discussion®is the view of the constitution in mcculloch the same as in marbury: The view of the Constitution in McCulloch is broader than the view expressed in Marbury. Marshall says, in McCulloch, that the Constitution is a broad document that can change with the times and can therefore evolve. Marbury is a more narrow decision.

III. The Various Powers of the National Government
· Commerce Clause Power: [Art. I § 8 Clause 3 and the “necessary and proper” clause] The power of Congress to regulate commerce among the states (interstate commerce) and among foreign nations. This is the most frequently used power by Congress to regulate. It is considered the “lynchpin” of the federal government.
· Evolution of the Commerce Clause Power: The Framers envisioned a nation with no tariff barriers to impede the flow of commerce. Rather, they wanted free markets within the country.
· Impact of the Commerce Power: It restrains state action while providing a source of congressional authority.
· Commerce Clause Trends:
1. Until the New Deal, the court was more inclined to uphold moral or police regulations and strike down economic regulations.
2. Modern Trend = Shreveport

· Modern Standards of the Commerce Clause (Handout 2/2)
Congress can regulate any activity, even a local one, if it has a close and substantial relationship/affect on interstate commerce. Small affects can be aggregated. [Wickard, extension of Shreveport, Darby]
Congress has plenary control over the channels and facilities of interstate commerce.
Congress can regulate activities that are completely local in order to effectuate its regulation of interstate commerce.
· Considering the above three standards, is there Commerce Power too broad, or does it make sense?
· Prof: The potential for abuse is there, so perhaps the clause is too broad.

Application 1:
Subsection (a): Development of the Commerce Power Doctrine from 1824-1936
1. ANALYSIS OF ECONOMIC REGULATION®Congress has plenary, or complete, control to regulate in interstate commerce: Gibbons v. Ogden: NY gave a boating license to two people. Those two people then assigned their license to Ogden (P). Gibbons (D) acquired his license by way of federal statute. Desiring a the exclusive right to sail along the coastline by way of steamboat, Ogden got an injunction to stop Gibbons from sailing from NY to NJ. Gibbons appealed to the SC.
· P argues (Ogden): This is not commerce. Therefore, the Federal Government cannot regulate this situation. My actions concern navigation and navigation is not commerce.
· D argues (Gibbons): It is a violation of the Constitution to allow P to utilize the waters exclusively. The Supremacy Clause should trump state law and allow Gibbons to operate along the coastline.
The SC, via Marshall, held that federal law preempts the state law in this area because the creation of the federal statute that gave Gibbons his license was a valid exercise of the commerce clause. Defining the commerce clause, Marshall reasons that commerce includes navigation because commerce is commercial intercourse or trade in its broadest sense. Focusing on the phrase “among the several states,” Marshall says that commerce concerns more than one state and therefore two, as in this case, is sufficient. Discussing the difference between interstate/intrastate commerce, Marshall declares:
1. Interstate Commerce: Congress has plenary, or total/complete/full, control over regulation within the commerce clause. Their power has no limitations.
2. Intrastate Commerce: Commerce does not have the ability to regulate trade entirely within one state.
· Prof: Marshall’s ideas about congressional power law dormant until the 1890s because Congress did not pass much large scale regulatory legislation until the late 19th century, when the industrial age began.
Time passes…The country begins to develop economically and Congress is called upon to pass large scale regulatory legislation because industry is developing. Once the regulation of national enterprises began, people grew concerned that Congress was getting too involved with local matters. Battles, therefore, began in the 1890s about how much power Congress has to regulate industry and continued until the Court Packing Plan of the 1930s. The views taken during this battle broke down into:
1. Those who believed in the broad powers of Congress (Shreveport).
2. Those who believed in the narrow powers of Congress (Knight).
2. ANALYSIS OF ECONOMIC REGULATION®IN ORDER FOR A LOCAL ACTIVITY TO BE REGULATED UNDER THE COMMERCE POWER, IT MUST HAVE A DIRECT IMPACT/AFFECT UPON INTERSTATE COMMERCE: US v. Knight – The government filed suit against Knight to challenge their alleged monopolization of the sugar industry. At the time, Knight had acquired four companies and controlled 98% of the sugar industry. The SC held that the occurrences regarding the sugar industry were too indirect to be regulated by Congress, reasoning that manufacturing is not commerce and did not have a direct logical relationship with commerce by focusing on the fact that there is no exchange of goods.
· This case is an example of a court protecting state’s rights by attempting to limit potential abuses of regulation under the commerce power.

KNIGHT ½---------------------------------------------------------------------------------------½SHREVEPORT
Direct/indirect test substantial economic effect
[Must be direct] [could be indirect]
3. ANALYSIS OF ECONOMIC REGULATION®CONGRESS CAN REGULATE AN ACTIVITY [INTER/INTRA] IF IT HAS A CLOSE SUBSTANTIAL EFFECT ON INTERSTATE COMMERCE: The Shreveport Rate Case – The Interstate Commerce Commission (ICC) established RR rates for transportation of goods between Shreveport, Louisiana and points within Texas. For the Shreveport RR, their intrastate rates were lower than their interstate rates. The ICC ordered them to set their rates uniformly. The Shreveport RR challenged the constitutionality of this order, claiming that Congress does not have the power to control the intrastate charges of an interstate carrier. The court held that intrastate and interstate commerce can be regulated by Congress if the rates have a “close relationship to” or “substantial economic effect” on commerce. In this case, the Shreveport RR has a huge affect on commerce because it keeps a large quantity of goods off the market by keeping inconsistent rates.
Expansion of CC to include an analysis of…
a) Champion v. Ames [The Lottery Case] – Champion was indicted for shipping lottery tickets from Texas to CA. Champion challenged his conviction on the grounds that regulation of lottery tickets under the CC was unconstitutional. The court held that commerce could regulate the shipment of lottery tickets under the CC on the grounds that lottery tickets are inherently evil.
b) Hippolite Eggs – Congress passed the Pure Food and Drug Act of 1906. In accordance with this act, shipments of impure eggs were seized after they had arrived in the state of their destination. The court held that regulation of these eggs was within the commerce power by reasoning that the eggs were adulterated.
c) Hoke v. US [The Mann Act] – The Mann Act was in place, which prohibited the transportation of women in interstate commerce for immoral purposes. The court sustained the act based on the Champion decision. However, this case was the first example of regulation of impure goods as applied to persons.
5. POLICE POWER AND MORAL REGULATIONS®[MANUFACTURING] large scale regulatory measures unrelated to goods are too attenuated for regulation and therefore cannot be upheld: Hammer v. Dagenhardt [Child Labor Case] – A federal statute prohibited the interstate transport of articles produced by companies that employed children under certain ages. The statute was struck down because unlike previous cases, the goods shipped in interstate commerce were themselves harmless. The court reasoned that it was only the employment of child labor that was evil, rather than the goods being transported. This employment was not related to interstate commerce.
· Holmes Dissent: [Becomes precedent in 1937]: Regulation that has an indirect impact on state and local matters is insufficient to render it unconstitutional – Congress has constitutional power to regulate interstate commerce. The fact that a regulation has a collateral/peripheral affect on local activities otherwise left to local matters of the state (10th Amendment) does not render the statute unconstitutional. This argument rejects the 10th Amendment as a limitation on federal authority.
Barriers imposed by the court on the New Deal, resulting in a narrowing of the CC…
6. COURT BARRIERS TO THE NEW DEAL®[Shift to Knight Logic] There must be a “direct” and “logical” relationship between the intrastate activity being regulated and interstate commerce:
a) Carter v. Carter Coal Co. – The Bituminous Coal Conservation Act of 1935 set maximum hours and minimum wages for workers in coal mines. The court found this act unconstitutional under the Knight rationale regarding production and commerce. Production, which was regulated here, was a purely local activity despite the fact that the materials produced would all ultimately be sold in interstate commerce. There was no direct logical relation between production and interstate commerce.
· Cardozo Dissent: The Act is valid because the prices for intrastate coal sales have a direct impact on the prices of interstate coal sales and regulation of interstate coal sales can not be successfully carried out without regulation of intrastate coal sales. Hence, there is a direct logical relation between production in intrastate commerce to interstate commerce.
b) ALA Schecter Poultry Corp. –The National Industrial Recovery Act (NIRA) authorized the president to adopt codes of fair competition for various trades or industries. A NY state version of the NIRA was in place to limit wages and hours. Schecter Poultry was convicted of violating the fair competition portion of this after buying and reselling stock to local dealers. The court rejected the arguments of the government and held that the NIRA did not apply to ALA Schecter Poultry because their activities were not within the current or stream of commerce and did not affect commerce under the Shreveport rationale (direct/indirect).
Introduction of the Court Packing Plan…
· Court Packing Plan: Is the addition of justices unconstitutional?
· Prof: The law is not unconstitutional, but it is unwise and politically motivated. Had it been successful, the plan would have totally pitted the president against the court. Also, even if the law was ruled Constitutional, who would have been able to rule on the law because each justice is supposed to recuse himself from a case if it effects him or her. Hence, because the issue effects every justice they would all have to recuse themselves and no one would be able to rule on the issue. Regardless, a “switch in time that saved 9” took place in which Justice Stewart changed his position on the Court Packing Plan in order to support staying with only 9 justices.
Subsection (b): The Decline of Limits on the Commerce Power (The Era beginning in 1937)
7. AGGREGATION THEORY®CONGRESS CAN REGULATE EVEN A SMALL LOCAL ACTIVITY IF, in taken in the aggregate, IT HAS A CLOSE SUBSTANTIAL RELATIONSHIP TO INTERSTATE COMMERCE: Wickard v. Filburn – Wickard was a farmer selling wheat. Wheat production was, at the time, limited through the Agriculture Adjustment Act (1938). It was limited because so many farmers were growing so many agriculture products. Hence, if everyone were farming, prices would be so low that no one would make profits and everyone would have to go out of business. Wickard claimed he was growing the extra for home production only and that he was using it only for his family. Hence, it would not be sold interstate and has no affect on commerce. The court held that local wheat competes with interstate commerce by using an aggregation theory. The court reasoning that if the farmer had not grown it on his own, they would have to buy it on the open market thereby increasing the demand for wheat. Hence, homegrown wheat increases supply, but not demand.
Hammer v. Dagenhardt is overruled
8. BOOTSTRAP IDEA®Congress can regulate activities that will ship goods into interstate commerce: Darby v. US -- Darby was a lumber manufacturer. A penalty act was in place that prohibited the shipment in interstate commerce of goods produced by employees working the maximum hours and were not paid the prevailing rates. The company argued the act was unconstitutional, citing Hammer, because it regulated the hours and wages of a local activity. The court held that it does not matter what the purpose of Congress is because Congress has “plenary” power over the shipment of goods in interstate commerce, even goods that are not inherently evil or injurious. Because they have this power, Congress, through the Bootstrap Idea, can regulate anything locally that happens to these goods prior to being shipped.
· Prof: If people did not follow this idea, then other companies would be able to hire employees at a higher or lower rate.
Criminal Aspects of the Commerce Clause – All federal criminal statutes are based on the commerce power.
9. In order to regulate, Congress can make reasonable assumptions that local activities have interstate tie-ins: Perez v. US – D was involved in loan sharking within the state and the interest was ½ on the loans he gave out. The Consumer Credit Protection Act was in place, which made a federal crime of extortionate credit transactions. Extortion, as defined by the court, was trying to get property from someone else by resorting to violence. Perez argued that loan sharking is a purely local activity that is not covered by this federal act. He also argued that he was not a part of organized crime. Using the aggregate theory, the court held that loan sharking is a component of organized crime which is an interstate organization and a large source of revenue.
· Prof: This could be analyzed by our three modern commerce clause standards too…
a) Close Substantial Relationship Effect: Organized crime likely has a close substantial relationship effect on interstate commerce because loans are made that should not be made and payback interest rates are higher than they should be.
b) Plenary Power: Accepting that organized crime and loan sharking is involved then the facilities of interstate commerce are used to effectuate their business (by use of phone, mail, etc.)
c) Local Activities: Congress can regulate any interstate enterprise and the local ties to that enterprise. Organized crime is the interstate enterprise and the local ties are loan sharking.
Civil Rights Background: After Brown v. Board of Education (1954), all public facilities had to be de-segregated. But, Brown was not applicable to the private sector because the 14th Amendment applies only to limit the actions of federal and state/local governments. To apply desegregation to the private sector, a federal statute, deriving its power from the commerce clause, would have to be passed. Thus, the 1964 Civil Rights Act was passed to ban discrimination in private establishments that moved sufficient goods in interstate commerce so as to be regulated by the commerce clause. This Act, however, was challenged on the basis that it could not regulate the smaller hotels or restaurants because they did not participate in interstate commerce.
Two decisions extinguished any doubts as to the constitutionality of the 1964 Act…
10. Pursuant to the Civil Rights Act, Congress can regulate even the most private industries so long as they have a sufficient affect, either direct or indirect, on interstate Commerce:
· Heart of Atlanta v. US – The P was a motel located in downtown Atlanta that refused to rent rooms to African Americans. The hotel was located near two interstate highways, derived 75% of its occupancy from out-of-state guests, and solicited business in the national media. Using a Commerce Clause analysis, the Supreme Court held that the motel could be reached by the 1964 Civil Rights Act. The court reasoned that b/c congressional findings showed that racial discrimination discouraged travel on the part of a substantial portion of the black community, Congress could regulate such discrimination. Other standards (from handout):
a) Yes, discrimination has a substantial affect on where people travel.
b) Yes, the channels through which people travel to get to this hotel could be regulated by commerce.
· Katzenbach v. McClung – A small restaurant that refused to serve African Americans was located some distance away from both highways and bus stations. Their only interstate connection arose from the fact that they purchased 46% of their food from a supplier who had purchased the food in another state. Using the aggregate theory, the court held that the restaurant could be regulated under a commerce clause analysis because discrimination affects where people live and purchase goods. The court reasoned that discrimination discourages travel and obstructs interstate commerce. Other analysis (handout):
a) Close substantial relation: A substantial amount of their food traveled through interstate commerce. Their discrimination affects the amount of people who want to eat there, both whites and blacks. Hence, Congress could conclude there is a rational basis, or not irrational basis, for a relation between interstate commerce and a local restaurant that discriminates.
[1936-1976] The 10th Amendment was not considered to be a source of constitutional limitation or a check on federal government powers.
Subsection (c): External Limits on the Commerce Power (State Autonomy and Sovereignty Concerns)
11. The 10th Amendment restricts the federal government from regulating traditional state governmental functions under the commerce clause: National League of Cities v. Usury (1976) – Congress had enacted a federal statute making federal minimum wage and overtime rules applicable to state and municipal employees. The Court, in defiance of its holdings and reasoning in prior decisions, held that the 10th Amendment barred Congress from imposing said regulations on state and local governments. While the Court conceded that the minimum wage/overtime rules as applied to state employees did affect interstate commerce, nevertheless it concluded that Congress may not exercise power in a fashion that would infringe on the States’ “separate and independent existence.”
· Note: This case was a sort anomaly because it would mark the only time that 10th served to directly limit the Commerce Clause.
12. the political process, and not The 10th Amendment, is a check on the commerce power: Garcia v. San Antonio Metropolitan Transit Authority (1985) – The Fair Union Standards Act was in place to limit the hours and wages of state employees. The court, in overruling National League of Cities, held that this was a permissible regulation and stated that the National League of cities analysis did not yield a “workable system.” In saying that the 10th Amendment does not limit federal action, the court reasoned that if Congress has passed an act, the state’s opinion has already been heard when the State voted on that law. Hence, the manner in which the federal government is checked is through the political process in which a state representative represents each individual and the state itself then represents the views of that state as a whole.
13. In order to regulate under the commerce clause, the activity regulated must substantially affect a commercial activity unrelated to a state “local function”: Lopez v. US (1995) – The Gun Free School Zones Act was in place which state that an individual cannot possess a firearm in a school zone (1000 feet around a school). The arguments:
· Government Argued: Gun possession in schools does have a substantial affect on commerce possession of a firearm in school may result in violent crimes. Violent crimes, in turn, affect the functioning of the national economy in a variety of ways. For example, the costs of crime are spread across state lines through the interstate insurance market. Also, violent crimes reduce interstate travel and the economic productivity of the workforce (they are less educated).
The court rejected the government’s aggregation argument and stuck down this Act, holding that the regulation was a pretext and does not have a substantial relation or impact to or on interstate commerce except by stacking inferences. J. Rehnquist, writing for the majority, found five factors to determine if the government had validly exercised its power under the commerce clause:
a) The regulated activity must substantially affect commerce.
b) The activity must be “commerce” or “any sort of commercial/economic activity.”
· Unlike Wickard, this statute has nothing to do with a commercial activity or any other economic enterprise.
c) Jurisdictional element – The activity must be moved in interstate commerce.
· There was no requirement in the statute that the gun had to move in interstate commerce.
d) The legislative history must demonstrate that the regulated activity has an impact on commerce.
· The legislative history did not do much research to show that guns around school zones affect interstate commerce.
e) The activity must not relate to traditional state “local functions.”
· Education is a local function. Therefore, as a local matter, Congress cannot regulate a school.
Dissent [Breyer, Stevens, Souter, Ginsberg]: If students are unable to learn because they are afraid of crime, then they will not be as productive in their working lives. Also, people will have to move away from their homes if they are afraid of where they live. The dissent uses a mean-ends analysis to show that there was a rational basis for Congress to conclude that guns affect interstate commerce. [The majority required a closer fit between the means and the ends].
· Prof Note: The evolution of the commerce clause continues. There will always be splits in society about this issue. This case shows a split in the justices. [J. Thomas wants to do away with the aggregation concept from Wickard].
14. Congress may not compel a state or local government’s executive branch to perform ministerial functions: Printz v. US (1997) – In 1993 Congress enacted the “Brady Bill,” aimed at controlling the flow of guns. As a temporary 5-year measure, the law ordered local law enforcement officials to conduct background checks on prospective purchasers, until a national computerized system for doing the checks could be phased in. Printz, a county sheriff in Montana, objected to the federally-imposed requirements. The majority held that Congress may not compel the States to enact or administer a federal regulatory program. Such requirements were an incursion into state sovereignty. The majority reasoned that an essential principle of federalism is that states remain independent and autonomous within their sphere of authority.
· Dissent: J. Stevens held that federal government can impose the disputed requirements upon state officials. Stevens reasoned that Congress could regulate handguns, under the commerce clause. Therefore, pursuant to the “necessary and proper” clause, Congress then has the right to implement its regulation through the imposition of temporary requirements upon local police officials to perform background checks.
· Prof Notes:
1. Congress has no authority to force local/state governments to enact (as opposed to administer) legislation or regulations.
2. This decision undermined, but does not overrule, both Martin v. Hunter’s Lessee and Garcia where the Court highlighted the supremacy of the federal government.
3. The majority opinion [written by Scalia] did not support their states’ rights holding with any constitutional analysis [i.e., the 10th Amendment]. The basis for their decision was unclear.
15. WHEN DEALING WITH COMMERCE CLAUSE ISSUES, THE COURT IS OFTEN MOST CONCERNED WITH WHAT IS BEING REGULATED: Reno v. Condrin – The Federal Law 1994 Driver’s Privacy Protection Act was in place, which restricts disclosure by state motor vehicle departments and private parties of “personal information about any individual” contained in motor vehicle records. The court held that this law did not violate the 10th Amendment because the Act regulates an article of interstate commerce within Congress’s commerce clause power. They reasoned that the law is constitutional because it does not require the states to enact laws or command state officials to assist in the enforcement of the statute. They further reasoned that the statute regulates the databases that contain information, an article of interstate commerce, and not the states themselves.
16. VIOLENCE AGAINST WOMEN ACT: Brzonkala v. Virginia Tech – P alleged that she was raped by two university football players 30 minutes after she met them. She sued the university and the players under the Violence Against Women Act, which provides a civil remedy to parties injured by “a crime of violence motivated by gender.” The players moved to dismiss, arguing that VAWA is unconstitutional and that P failed to state a claim under the statute. The US intervened to defend the statute’s constitutionality. The case has yet to be decided, so how might the court rule?
· Prof: VAWA likely regulates an activity, violence against women, that has a substantial affect on interstate commerce. Perhaps women will not live in certain areas and others will be more careful/reluctant to go out at night. Violence of this nature impairs commercial activity. Ultimately, the law will likely be struck down because the court is moving to cut back on the commerce power and this act regulates violence that is of a criminal nature, not a civil nature.
17. THE HYPOs:
1. Can Congress, pursuant to the Commerce Clause, pass legislation to create a national uniform drinking age of 21 years?
a) Ogden – How would Marshall, as seen in Gibbons, resolve this question? Would Marshall think this is Commerce?
· Marshall described the commerce clause as plenary and it knows no limitation. Hence, Marshall would think this hypo is covered by the commerce clause.
b) Knight – The Knight court would say that drinking is not regulated under the commerce clause.
c) 1st standard from the handout – Yes, by way of aggregation (Wickard) of small effects, drinking has a close and substantial relationship to interstate commerce. Also, this would be control of injurious goods (Champion, Hippolite, Hoke).
d) 2nd standard from the handout – Under the broader “plenary control” standard, Congress could regulate the channels through which the alcohol travels.
· Prof: Under any standard, Congress could regulate this hypo under the CC.
2. Could Congress enact a national marital, i.e. divorce, act?
· Perhaps not because by tradition, family matters are left to the states. But, there is nonetheless a huge economic effect that results from patchy divorce law.
3. Could Congress pass a national products liability act?
a) Standard 1 – Yes, because there is a close substantial relationship between the liability of goods and commerce.
b) Standard 2 – Yes. Under the “plenary control” standard, Congress could pass this regulation because the products pass through the channels of interstate commerce. This Act has actually been proposed many times, especially for cars because they are the source of 40% of tort litigation, but it has not actually gotten anywhere.
4. Could Congress pass a nationalized curriculum for public schools?
a) Standard 1 – It may have a substantial effect because better-educated citizens have higher levels of productivity.
b) Standard 2 – Perhaps yes because better public schools have an effect on people to the extent that they may move and live according to where the good schools are located.
· Although this is likely the least economic example that we have looked at, Congress could have control over a national curriculum under the CC.
c) Standard 3 – Education is generally considered a local activity. This would therefore become a problem for the Lopez majority. It is likely that this law would be struck down under Lopez.

Concept 1 [THE TAXING POWER] – (Remember, the taxing power can “piggyback” on the commerce power.):
· Background: A taxing challenge arises when someone feels that the federal government is trying to regulate state materials/goods by taxing.
· Why is the public so concerned with taxes?
· Because taxes are a symbolic and focused activity, which represents one of the few ways that the federal government makes people do things, i.e. it is a regulated area.

· General Standards for the Taxing Power:
If Congress has an independent power to regulate in an area, then it can tax under the necessary and proper clause.
· This standard is not used very often because the commerce power encompasses this first standard of the taxing power.
If Congress has no independent power to regulate, it can tax only if the dominant purpose is raising revenue. [But, the court asks, are penalty provisions extraneous to any revenue need? Remember the facts of Kahriger for an example].
· Statutes that seem regulatory, but generate substantial revenue, are often upheld.

Application 2:
1. A TAXING STATUTE THAT IS DESIGNED TO REGULATE, NOT RAISE REVENUE, IS UNCONSTITUTIONAL: Child Labor Tax Case (1922) – [Standard 2] A law was enacted that imposed a federal excise tax on 10% of annual profits for companies that employed child labor. The Act did not say that you could not use child labor. But, it said that if you did, you would be taxed. The court held that this statute is unconstitutional because it was a pretext to almost penalize companies that elected to use child labor. The court reasoned that the statute was not designed to generate revenue, as a tax statute should. Rather, this statute was designed to regulate.
2. A STATUTE THAT HAS SOME REGULATORY PROVISIONS, BUT NONETHELESS GENERATES REVENUE WILL BE UPHELD: US v. Kahriger (1953) – [Standard 2] The 1951 Revenue Act was in place, which taxed 10% of profits won by gambling. In upholding the statute, the court held that although the law contained some regulatory provisions, it was primarily designed to generate revenue because the tax produced almost $4 million in revenue. In blending regulatory aspects with generating revenue, the court announced the “litmus test” which stated that (1) the Act should be revenue raising and (2) penalty provisions must not be extraneous to any revenue need.
3. HYPO: Congress places a 10% tax on the profits of companies hiring undocumented aliens. Constitutionally, can Congress so tax? What cases (compare facts) is this scenario similar/dissimilar to? How would you apply the above the standards (applying the facts of the hypo to legal standards)?
· In general, try to distinguish the Child Labor Tax case by stating that it is an archaic case, and then use Kahriger to your benefit. Using the standards:
The taxing power, alone, is used infrequently because most things are covered under the Commerce Clause.Congress can regulate areas of citizenship and therefore immigration. Hence, they can tax under the necessary and proper clause. Other regulatory areas?
· Commerce Clause – Hiring of undocumented aliens would likely have a substantial affect on commerce, as wages would go down because the aliens would work for less money, and as a result others would lose jobs.
2. If Congress had no enumerate power, Congress can tax if their goal is regulatory (revenue raising), and not penal. Here, one could argue that regulation of aliens is constitutional and would serve to raise substantial revenue.

· General Standards for the Spending Power:
If Congress has an independent power to regulate in an area, then it can spend (under the necessary and proper clause).
If Congress has no independent power to regulate in an area, then its spending must be for the “general welfare” (Hamilton’s, NOT Madison’s view – see Butler), and not for a “local purpose” (see – Steward Machine and SD v. Dole).

Application 3:
· US v. Butler – The Agricultural Adjustment Act was in place in 1933 in an attempt to end the depressed farm prices by authorizing the Secretary of Agriculture to make payments to farmers who agreed to reduce their acreage or production. Butler challenged this act as an expenditure because the government was spending money on farmers. In their analysis, the court considered two views:
a) Hamilton view: Spending can be for the general welfare and not just pursuant to an enumerate power.
b) Madison view: Spending power is its own power and therefore it can be used independently.
The court agreed with and adopted the Hamilton view, but concluded that the act is unconstitutional because it is coercive. The government cannot contract with farmers to reduce their acreage.
· Prof: This case is illogical because the court adopts Hamilton’s view and then arrives at a contrary result. The better rule is Hamilton’s view, so just ignore the result. But if Butler came up today, how would it be analyzed under the two standards?
· Standard 1: Today, Congress WOULD have an independent power to regulate under the commerce power.
· Standard 2: Food is a necessary item and is part of the general welfare and could therefore be regulated.
· Charles C. Steward Machine v. Davis – The Unemployment compensation tax and payment provision of the Social Security Act was in place. Title IX of the Act imposed a payroll tax on employers of 8 or more. The money gained from this act was to go into general funds. The court upheld the tax and payment provision, distinguishing Butler by saying that this act is not coercive. While Butler dealt only with farmers while this provision dealt with the entire nation. The court reasoned that the national tax and spending powers were properly exercised to prevent national economic consequences of unemployment.
2. SO LONG AS THE EXERCISE OF THE SPENDING POWER DOES NOT INFRINGE IN A LOCAL PURPOSE, THE LAW WILL BE FOUND CONSTITUTIONAL: South Dakota v. Dole – Congress enacted a law that withheld 5% of federal highway funds otherwise payable to the states by the government if any state permits the purchase or public possession of alcohol by individuals under the age of 21. The court said that this would not be a good subject for regulation under the commerce power and held that this is a valid subject for regulation under the spending power. Although they reasoned that this law was for the general welfare and not a local purpose, the court backed away from the Hamilton view in their analysis, but states that the Constitutional bars on regulation under the spending power are “scant.”
· Prof: This case shows that the spending power is broader than the taxing power.
· Prof: Today the court is interested in cutting back on both the commerce/spending powers. Lopez represents the first case since 1935 to strike down a commerce power act. This shows that the court desires somewhat of a return to isolationism.
3. HYPO: If the interstate commerce power continues to be cut back by the SC (Lopez, VAWA), what will be the effect on the taxing and spending powers? Also, some members of the SC want to cut back the reach of the necessary and proper clause. How would this affect the commerce power, the taxing power, and the spending power?

· General Standards for the War Power:
The Constitution grants Congress the authority to raise and support armies.
Only Congress can declare war.
The president is the commander-in-chief of the army and navy.

Application 4:
1. THE WAR POWER CAN BE USED TO REGULATE STATE/LOCAL MATTERS THAT HAVE ARISEN DURING, THROUGHOUT, AND AFTER THE WAR HAS ENDED: Wood v. Cloyd W. Miller Co. – During WW2, Congress enacted legislation pursuant to its war power that regulated housing and housing prices. After the war, there was a significant increase in the demand for housing. In this case, a landlord challenged the constitutionality of the federal housing regulations, arguing that since the war was over, Congress could no longer regulate state and local housing pursuant to its war power. The court upheld the federal regulation as a valid exercise of its war power, despite the fact that the war had ended. The court reasoned that since the aftermath of the war still had an effect on the housing market, Congress had the authority to regulate.
· Concurring [J. Jackson]: Agrees that the federal housing regulation should be upheld, but suggests that during war-time heightened emotions often lead to irrational results, i.e., the Japanese Internment incident.
2. Hypo: Under the war power, could Congress establish a permanent rationing of gasoline in order to prepare for potential war at any time?
· Prof: It is likely that this would be a valid exercise of the war power because during modern times, war can happen overnight.

Concept 5 [The Treaty/Foreign Affairs Powers]
· Treaty Power [Art. I, §8] – It is divided into two branches of the federal government. The President may make a treaty but it must be ratified (agreed to) by 2/3 of the Senate.
· Background: The power to ratify a treaty is an enumerated legislative power. Thus, even though a subject area might not otherwise be within congressional control, if it falls within the scope of an otherwise valid treaty, it will be valid as a “necessary and proper” means of exercising the Treaty power. It will also be binding to the states under the Supremacy Clause.

Application 5:
1. A VALID EXERCISE OF THE TREATY POWER DOES NOT VIOLATE THE STATE’S 10th AMENDMENT RIGHTS: Missouri v. Holland – A statute was initially enacted to protect migratory birds, which was invalidated because no constitutional provision granted Congress the power to regulate the birds. Later, the US entered into a treaty with Great Britain that dealt with the same issues that the statute dealt with. The state then sought to prevent the federal game warden from enforcing the Migratory Bird Treaty. The Supreme Court held that the Treaty represented a valid exercise of the Treaty power does not conflict with the 10th Amendment. The court reasoned that federal treaties, assuming they are validly passed, trump any state laws about bird hunting because of the Supremacy Clause.
2. A TREATY MAY NOT VIOLATE CONSTITUTIONAL GUARANTEES: Reid v. Covert – This dealt with Congressional power to provide for military jurisdiction over civilian dependents of American servicemen overseas. The court held that no agreement with a foreign nation can confer power on Congress that is free from the restraints of the Constitution.

· Dormant Commerce Clause – One of the two federalism-based congressional powers (the other is preemption). The DCC is the unexercised power of Congress to regulate in an area that, had legislation been enacted, would have been done through the commerce clause.
· Where does the power come from? The court established power comes from the mere existence of the Commerce Clause, which restricts the states from discriminating against or unduly burdening interstate commerce. But…
· Justices Scalia and Thomas argue there is no DCC because there is no provision in the Constitution that grants the court this regulatory power. Therefore, the court should stay out of matters where Congress has not exercised their power.
· How does a challenge arise? A problem may arise if a state has passed some law that is a barrier or burden on incoming goods. As a concern of the Framers, the court must protect the free flow of goods through the DCC if Congress did not pass a law on it. The DCC sends a message to the states to think before passing a law. A DCC clause case can arise in three scenarios:
1. Transportation Cases [Southern Pacific]: These cases look at (1) the burden on commerce and (2) the state interest of the law.
2. Facially Discriminatory Laws®Flow of Goods Cases [Dean Milk and Philadelphia v. NJ, Cooley v. Board of Wardens] A state law that is facially discriminatory against out of state goods in some way (ex. Added tax or outright ban on the goods) and has a “protectionist” effect so as to favor that state’s goods. The standard imposed by the court is very strict. The burden on the state is to prove that the law is not designed to protect a local activity (ex. Has a legitimate purpose) and there are no non-discriminatory alternatives. Because this is so difficult, there is generally no need to balance state interests. The court considers:
a) Whether interstate commerce is burdened.
b) The state interest.
c) Whether there is a less restrictive alternative. If so, doubt will be cast on the legitimacy of the state purpose.
· NOTE: Where extra taxes are added, and the free flow of goods are restricted, then it is almost a per se rule.
3. State Business Law Cases – Very lenient in which the states are afforded tremendous power to regulate [CTS Case]. These laws are said to have an indirect affect on commerce. Courts generally do not want to strike down state business laws b/c if they did, they would have to strike down ALL state business laws.

Application 6:
Development of the DCC
1. THE FACT THAT CONGRESS IS SILENT ON A COMMERCE CLAUSE ISSUE DOES NOT AFFECT THE POWER OF THE COURT TO REGULATE BECAUSE THE POWER OF CONGRESS TO REGULATE COMMERCE IS EXCLUSIVE: Gibbons v. Ogden – NY gave a boating license to two people. Those two people then assigned their license to Ogden (P). Gibbons (D) acquired his license by way of federal statute. Desiring the exclusive right to sail along the coastline by way of steamboat, Ogden got an injunction to stop Gibbons from sailing from NY to NJ. Gibbons appealed to the SC. Gibbons argued that the NY monopoly to Ogden violates the federal commerce power. J. Marshall held that the NY monopoly was invalid because the power to regulate interstate is exclusive to Congress. He reasoned that Congress can regulate all interstate commerce power. Therefore, if there is an exclusive power, then there is some dormant power of Congress.
· Prof: This is a broad view of the congressional power on state commerce power.
2. IF CONGRESS HAS NOT REGULATED IN AN AREA, A STATE’S REGULATION WILL BE UPHELD SO LONG AS THE STATE OBJECTIVE DOES NOT RESTRICT THE FREE FLOW OF GOODS: Wilson v. Blackbird – A Delaware statute was enacted, which authorized the building of a dam across a navigable creek. The dam obstructed the passage of ships, including those with federal licenses. Wilson owned a sloop, which broke and injured the dam in order to pass through the creek. The Marsh Company sued Wilson for damages. In facing the issue of whether or not a state law authorizing the construction of a dam, which effectively blocked passage of federal vessels through a creek violated the commerce clause, Marshall narrowed his view of the DCC. Specifically, he held there was no violation of the commerce clause because the DE law was not enacted to restrict the free flow of goods. Rather, it was designed to promote the health, safety, and welfare of the surrounding community.
3. STATES ARE FREE TO REGULATE THOSE ASPECTS OF INTERSTATE COMMERCE THAT ARE OF SUCH A LOCAL NATURE SUCH THAT UNIFORMITY IN LAW IS UNNECESSARY: Cooley v. Board of Wardens – A state law was in place which stated that ships entering the port of Philadelphia must have a local pilot. The point of this law was alleged to be a safety precaution. The penalty for violating this law was the ship would have to pay half of what the local pilot would have earned. In upholding the state law, the court held that Congress generally has a right to uniformly regulate in an area. However, when the area is a local one, as in this case, the regulation is traditionally left to the states.
· NOTE: This is more the modern view that narrows Gibbons v. Ogden.
The court and facially discriminatory laws…
4. GENERAL®A DISCRIMINATORY STATE LAW THAT PLACES AN OUTRIGHT BAN ON THE FLOW OF GOODS WILL BE STRUCK DOWN REGARDLESS OF ITS PURPOSE [PER SE RULE]: Philadelphia v. New Jersey – [Facial Discriminatory Case] Philadelphia challenged a law stating that stated the importation of waste collected outside of NJ was prohibited. NJ argued that the state enacted the law for the purposes of environmental health and safety. The court held that generally a balancing test is used to evaluate the state interest along with the purpose of the law. But, in a case such as this one when the law is clearly discriminatory and places an outright ban against certain goods, a court invokes a per se rule and does not utilize the balancing test. The court reasoned, in striking the law down, that they were concerned with the intent of the framers and this laws affect on the flow of goods. When there is an outright ban, it disrupts commerce and sets up the states as little nations, which they are NOT.
· EXCEPTION®FACIAL DISCRIMINATION IS UNCONSTITUTIONAL UNLESS A STATE’S ONLY OPTION IS TO REGULATE IN A DISCRIMINATORY MANNER: Maine v. Taylor – [Facial Discriminatory Case] A state law was in place that banned the importation of out of state baitfish. The state claimed that the law was health and safety related because they believed the fish would cause uncertain ecological effects. The court agreed with the state’s argument, holding that the ban had a legitimate environmental purpose that could not be served in non-discriminatory ways. The court reasoned that although they are committed to special scrutiny of discriminatory laws, law with a legitimate state interest that cannot be served by only discriminatory means will be uphold.
a) West Lynn Creamery v. Healy – [Facial Discriminatory Case] A Mass law taxed all milk at the retail level. The proceeds of this tax were given only to Mass Dairy Farmers. However, 2/3 of the taxed milk came from out of state dairy farmers. In striking down this law, the court held that the law was both discriminatory and a pretext to benefit Mass dairy farmers. The court reasoned that a law that handicaps out of state competitors so as to benefit in state production of goods is discriminatory and therefore unconstitutional.
A new standard is announced to apply to discrimination cases…
b) Dean Milk v. Madison – [Facial Discriminatory Case] An ordinance was in place that barred the sale of milk in Madison unless the milk had been pasteurized within 5 miles of Madison. Dean Milk, located in Madison, pasteurized its milk in Illinois. Their milk was labeled Grade A and federally inspected but they could not sell it in Madison due to the ordinance. Dean Milk challenged the constitutionality of the ordinance. The court chose to announce 3 questions for analysis of a goods case:
a) Does some local law discriminate against interstate commerce (burden)?
· Yes, even though they could sell in other areas, the limiting portion of the ordinance restricted milk sales for Madison. It is therefore an interstate burden because all other milk producers had to comply with the ordinance.
b) What us the purpose of the state law? Is the purpose a health and safety objective? [Court balances the state purpose with the federal interests].
· Although the court favors health and safety objectives, they strike the law down because of the dominating federal interest in promoting the free flow of goods.
c) Us there a less restrictive alternative available that would not burden interstate commerce?
· Yes, Madison could send people to inspect the milk or just accept the fact that Dean Milk had met the federal standards. The fact that Madison did not accept the federal standard makes you question the true purpose of the law.
Upon considering the results of their analysis, the court holds that the law was likely in place to favor the production of local industry and protect local economic interests.
6. A STATE LAW THAT FAILS TO PROVE AN ADEQUATE STATE PURPOSE WILL NOT RECEIVE THE THREE PART DEAN MILK BALANCING TEST AND WILL BE STRUCK DOWN AS IRRATIONAL: Southern Pacific RR v. Arizona – A law was in place, which stated that a RR could not have a train with more than 70 freight cars or 14 passenger cars attached at once. The state sued Southern Pacific to recover funds from Southern Pacific’s violations of the law. Southern Pacific argued that the problem with this law is that they would have stop before entering Arizona to separate the trains. The Supreme Court agreed with Southern Pacific that it was a huge burden to change the trains and declared that the law was irrational and should therefore be struck down. The court reasoned that the safety rationale of this law was irrational because more shorter trains would likely mean more accidents. The court did not bother to do the balancing test prior to striking the law down.
· Prof: She disagrees with the Supreme Courts analysis because it is likely that more shorter trains would mean less accidents. The larger trains travelling at high speeds are more likely prone to fall of the tracks when going around corners.
7. A LAW THAT DOES NOT RAISE COMPETITIVE ECONOMIC INTEREST ISSUES AMONG THE STATES WILL NOT BE EVALUATED UNDER THE DCC: GM Case (Supplement) – A state law stated that anyone that sold natural gas in the state could be taxed, but a state utility company that sold gas was not taxed because they were not considered gas companies. In state independent gas sellers were taxed, however. The court held that a DCC challenge is not raised in this instance because there is no economic competition; the state utility companies and natural gas providers are not the same company. Rather, they are not in competition with one another because state utility provides more than just natural gas. Therefore, a DCC challenge is not available.
8. DISCRIMINATORY LANGUAGE CONTAINED IN THE LAW CAN INVOKE AN “ALMOST PER SE” RULE ANALYSIS TO BE INVALIDATED: Camps v. Town of Harrison (Supplement) – A Maine law was in place that allowed a property tax exemption charitable institutions of the state. The law, however, denied exemption to institutions that operated for the purposes of out of state residents and therefore taxed them. After the law was introduced, a non-profit summer camp was forced to pay the taxes that they were normally exempt from for serving out of state residents. If they were forced to continue paying the taxes, it would put them out of business. The court held that the law is almost facially invalid because by its language (i.e. in state/out of state) it discriminated against other states. The court invokes the “almost per se rule” analysis to strike down the law. In doing so, the court ignores the fact that the law is geared at non-profit institutions because commerce is nonetheless affected.
· Dissent 1: If you served out of state residents, you should not count as a charity. Citing the GM case, this dissent stated that serving in state residents is different from serving out of state residents. Therefore, the DCC should not even be discussed.
· Dissent 2: The DCC does not exist. Other aspects of the Constitution should or might be applied in order analyze this situation.
· Prof: The Supreme Court splinters a bit on the DCC here and wants to cut back a bit from the logic of Dean Milk and Southern Pacific. Four of the members do not like it. They are therefore backing off a bit from crafting ways of using it. This four-member cut back should be contrasted to the five members who want to cut back on the CC itself.
9. A STATE BUSINESS LAW WILL BE UPHELD SO LONG AS THE STATE LAW GOVERNS ONLY ITS CORPORATIONS AND DOES NOT PURPORT TO DISCRIMINATE AGAINST OUT OF STATE BUSINESS INTERESTS: CTS Case – [Business Law Case] An anti-takeover law stated that no one can acquire an Indiana corporation without the approval of a majority of pre-existing stockholders. Also, management could delay the shareholder vote for 50 days. was in place to protect jobs for local residents. Because it looked like local economic protectionism, the CTS company challenged the law. The company argued that the law is protectionist, local, and prevents the purchase/sale of businesses. Therefore, it represents a huge burden on interstate commerce. In noting that the pragmatic impact does benefit local shareholders, the court nonetheless held that the law did not violate the DCC because the law does not prevent takeovers entirely. For example, an in state corporation could take over another in state corporation. Hence, the law does not prejudice out of state corporations and is not geared to do so. The court did not apply the balancing test here.
· Prof: This is a violation of the DCC because it imposes a huge burden on commerce. Pragmatically, when you buy a large company, you are generally out of state. But, the court is not interested in striking down these laws because of the waterfall affect that might result because if state business laws are found to conflict with the DCC, uniformity of the law will be lost because different results may govern different states.
10. Hypos:
a) California is concerned with the cardiovascular health of its citizens. It proposes an additional 5% sales tax on “fast food” snacks (chips, etc, i.e. high fat snacks) that are imported into the state. Is this constitutional? [Like the Philadelphia case]
· Prof: This is almost a ban on importation be way of 5% tax. We should therefore use almost a “per se” rule against this law. Although there is somewhat of a health interest behind the state purpose, this is overlooked b/c it is discriminatory.
Change the facts…Now, 85% of the snacks are produced out of state [like West Lynn Creamery]. Do we still strike the law down?
· Prof: Use the Dean Milk standard because now the law will not necessarily benefit local economic interests:
a) Yes, commerce is impacted because both in and out of state people are burdened.
b) Health and safety purpose? Yes, this law has a health-oriented goal.
c) There is no real less restrictive alternative available.
Remember that we can only strike down laws that are irrational and this one is not. Based on the above analysis, this law would likely be upheld. Under a commerce clause analysis, this law might be struck down. The main difference between this hypo and the Dean Milk case is that there was a less restrictive alternative available to Madison and their law obviously favored local producers. And, although interstate commerce may be burdened, it does not favor local interests because it is does not ban importation. Therefore, only a minor burden is created because the state interest seems strictly health oriented.
b) California is concerned with the safety of school children on school buses. It legislates that all school buses sold in the state must have seat belts. Assume that 90% of all school buses are not manufactured in CA.
· Prof: This is not a per se rule because it is not directed toward a ban of out of state vehicles. Interstate commerce is burden, but this burden is likely outweighed by the state’s safety interest. Hence, the law should be sustained. Many states actually do have this law and they are upheld on the basis of the safety interest, the fact that the law does not favor local interests, there is only a small burden on commerce, and there is no restrictive alternative.
Segway to preemption…
HYPO: Congress passes an act regarding “local matters” and the state then complains that no state action exists by saying that such an act violates the Commerce Clause [See Darby, Wikard, Lopez]
Change facts…Congress has not acted, state action does take place, then the DCC is implicated.
Congress has acted as well as the State and both are regulating in the same area. The automatic issue becomes whether the federal is said to preempt the state law?
Concept 7 [PREEMPTION]
· Preemption: Pursuant to the “Supremacy Clause” [Article VI], any law or regulation passed by Congress supercedes any state law which purports to regulate the same, or similar, field. The standard is [Evolution coming to head in Pacific Gas]:
1. Federal Occupation of the Field – A state law can be struck down on the theory of preemption by (1) implied occupation of a regulatory field and (2) implied preclusion of conflicting state regulations such that Congress has controlled the field or area in question. To analyze whether Congress has controlled the area, numerous factors are considered [Pacific Gas]:
a) Traditional State Field: Is the area in question that is traditionally regulated by the states?
b) Clear and Manifest Congressional Purpose: Is there a clear and manifest purpose of Congress to preempt the state regulation in the statute?
c) No state/federal law (“actual”) conflict – There must be a state act in the federal field or exclusive federal authority. In cases of actual, obvious conflict between congressional and state regulation, in which Congress expressly states their regulatory intent within a statute, the state statute is invalid. Ask does the state statute fall within this expressly regulated area? If so, then there is conflict between the state and federal statutes and the state statute is preempted.
d) Capable to comply with both laws: Can you comply with both the federal and state schemes?
NOTE: The modern trend is not to preempt. However, if Congress demonstrates a clear and manifest purpose, then state action in that area must fail no matter how well it agrees with the federal action or policies.

Application 7:
1. Preliminary Preemption Standards:
a) Hines v. Davidowitz (1941) – The government enacted a complete scheme of regulation and therefore provided a standard for the registration of aliens.
b) Rice v. Santa Fe Elevator Corp. (1947) – Congress regulated grain warehousing prices, a field traditionally reserved for the states.
The court’s combined analysis: Together the two courts, in analyzing the above situations set out questions, which constituted the beginning of what became the foundation of preemption analysis. They were:
1. Is the law a pervasive federal regulation?
2. Does the law contain a dominant federal purpose?
3. Does the state law “frustrate” the federal purpose?
Initial Application of the Standards and Resulting Confusion
2. DODD RULE (HANDOUT)®WHEN CONGRESS HAS REGULATED THE FIELD WITH “UNIFORM STANDARDS,” THERE IS NO ROOM FOR STATE REGULATION: Campbell – A federal Tobacco inspection act was in place to grade tobacco on a scale of AAA, AA, BB, and B. In Georgia, there was a state law that invoked the Federal Grading Scheme along with another state law that used color-coding. The color-coding scheme assigned a white tag to Georgia’s tobacco and a blue tag to North Carolina tobacco. The court struck the law down, holding that Congress occupied and preempted the field.
· Prof Criticism: The court did not really analyze the persuasive federal regulation. It is not clear that there was a dominant federal purpose either. Finally, the fact that you could comply with both laws suggests flawed reasoning. Therefore, the result could only be explained if the majority had found some hidden state purpose (this, however, would be more of a DCC analysis).
· Class Question: If there was a hidden state purpose, what was it?
· Prof: The state might have tagged each of the tobacco products in a favorable manner. She suggests that because white stands out as more of a dominant color, the tagging system was not neutral. Therefore, Georgia assigned themselves the dominant white color tags to promote their local purpose in an attempt to benefit Georgia tobacco.
[Note the contrasting applications]
3. DODD RULE (HANDOUT)®A REGULATORY PROGRAM THAT LACKS COMPREHENSIVE COVERAGE AT THE FEDERAL LEVEL WILL LEAVE ROOM FOR STATE LEGISLATION: Florida Lime and Avocado Growers v. Paul – A federal standard for ripeness of the shipment of avocados was in place. The state of CA, however, had their own standard based on the oil content of the avocados. This resulted in imported avocados meeting the federal standard but not the state standard, while the CA avocados met both standards. The court held that the federal law does not preempt in this case because the federal law in this area only sets up a minimum standard and (Dodd Rule) compliance with both laws is possible. The court reasoned that there was no intent to preempt in the federal statute and was therefore enacted solely to insure minimum standards.
· Prof: It seems obvious that the state law was enacted for local economic advantage but it was not struck down. Although the alleged state purpose for the law might be health, it was more likely to benefit local avocados.
Standards are, for the most part, finalized. But, the application of these standards remains unpredictable. The modern court, as in the following example, does lean toward state’s rights and therefore away from preemption.
4. A STATE REGULATION DEEMED SO LOCAL THAT IT IS TRADITIONALLY RESERVED FOR THAT STATE WILL NOT BE PREEMPTED: Pacific Gas and Electric v. State Energy – Congress extensively regulates the nuclear power industry through the Nuclear Regulatory Commission [NRC], which licenses and inspects all nuclear power plants. CA passed a law stating the construction of any new nuclear plant in the state is contingent upon “adequate storage facilities and means of disposal” for the waste the plant will produce. A CA utility company wanted to build a new plant, but did not want to comply with the strict CA law, claimed that Congress preempted the entire field of nuclear regulation, and, therefore, they did not have to comply with the CA law. HELD [Prof. thought the Court’s reasoning flawed: to the extent that the arguments the court can make are easily manipulable, court has much freedom on how rule on case either way based on whether they think this is safety or economic regulation, you could write this decision either way. Ultimately what control is here b/c doctrine of preemption is so manipulable; what about the judicial review here?]® The CA law is valid. The Court said that in order to determine whether or not the Congress has preempted a field, the Court must look at the objectives of both the state and federal laws. In this case, the Court reasoned that since the federal system of licensing nuclear plants was set up solely to deal with safety issues, and since the CA law asserts that its statute was aimed at the economic problems of storing and disposing of waste, the CA statute does not come w/n the area preempted by Congress. The court announced an applied a three part standard:
a) Traditional State Field: Is the law regulating in a field traditionally regulated by the State?
· Prof: Here is the first example of flawed reasoning. Generally when a federal agency is given regulatory power over a specific field, it is an indication of congressional intent to preempt in that field.
b) Clear and Manifest Congressional Purpose: Look at congressional intent to determine if a manifest purpose to preempt the state law. If so, the state law may frustrate the federal law.
· In this case, the CA statute was economically based while the Federal Energy Act is safety based.
· Prof: Here lies another example of flawed reasoning. CA argued that the law was economically based solely to avoid a conflict. The court accepted this contention without any scrutiny. Hence, this is the reason why this is a bad case.
c) No state/federal law conflict: No state act in the field or exclusive federal authority.
· No state act in the field because the purpose was health and safety (as opposed to the exclusive federal authority, which was economic).
d) Capable to comply with both laws: Look to determine whether compliance with both laws is possible.
· In this case, the court says yes. It is possible to comply with both laws.
Tying it all together: The Hypos
5. HYPO (Handout 2/23):
Assume that federal laws require all alcohol sold at the retail level to have labeling which clearly sets forth the percentage of alcohol present, the number of ounces present, the city and state where bottled, and certain nutritional information (such as whether sulfites are present).

The state of CA is considering two new laws in the alcohol area. The first would require all alcohol sold at the retail level to have the following warning: “consumption of alcohol during pregnancy can cause birth defects, including fetal alcohol syndrome.” The second law would require all wine sold in CA to have labeling stating the vintage (year) of the grapes of the wine, the country an state of the grapes’ origins, and the types and percentages of grapes present.

Does the federal law preempt the state laws?

Preemption Analysis of Law 1:
1. Purpose (Clear and Manifest): Health based and the health purpose is accurate because alcohol may cause fetal alcohol syndrome.
2. Compliance with both federal and state law? Yes.
3. Does the state law frustrate the federal purpose? No.
· Cambell: Federal law pervasive regulation? No.
· FLA Lime: Federal law is minimum standards? Yes.
4. Traditional state field or federal field? It is a federal field considering the federal governments’ participation in prohibition, Constitutional Amendments, and the federal taxes on alcohol.
5. Overall balance: Does the federal law preempt? No. There is no secret state purpose and it is based on health only. Hence, if no hidden purpose and the state law is based on health, then the regulation should be left to local matters.

Change facts…Dormant Commerce Clause Analysis of Law 1 (assuming no federal law):
· Prof: This law is not struck down under a DCC analysis because there is no hidden purpose.

Preemption Analysis of Law 2:
1. Purpose – Hidden purpose? Perhaps there is a hidden economic purpose because when people want to buy wine, a lot of people want it to be CA wine. Therefore, this system advantages wines from the best parts of CA because listing the grapes acts as a bias.
2. Can you comply with both federal and state laws? Yes.
· Cambell: Federal law pervasive regulation? No.
3. Overall balance: Using the standards rigorously, the law could likely be preempted. On balance, however, no preemption in this case either because preemption is not a neutral doctrine. We never presume preemption. It is important to remember this because the doctrine and rules for preemption may be clear, but the application is not.

Change facts…Dormant Commerce Clause Analysis of Law 2 (assuming no federal law):
· Goods Case –
a) Is interstate commerce burdened? Commerce would be burdened because special labels would have to be used on the bottles.
b) Does the state law have a health/safety objective? It is difficult to see how this second law has a health and safety purpose.
c) Less restrictive alternative? Yes.
· Prof: There is a stronger argument to strike down this law under the DCC analysis. This shows how interrelated the two doctrines are and how they work together (they could be involved together). See CTS Case where they were both discussed together.

IV. Selected Individual Rights [Broad Question: What rights do we have as individuals that are guaranteed under the Constitution so as to limit the federal/state government from infringing on those rights?]
Concept 1: [Some Procedural Contents of Due Process]
· Early Conceptions of the Applicability of the Bill of Rights to the States:
· Background: The Constitution was not initially set up to give many rights to individuals. People, therefore, began to worry that the central government would become too strong. The Bill of Rights was then enacted to combat this perception and constrain the central government.
· Amendments 1-8: These Amendments guarantee certain rights against oppression by the federal government. Note then that the BOR was initially set up solely to limit the actions of the federal government.
· Amendments 13,14, 15: These Amendments were passed and initially applied only to the states.
a) Amendment 13: Outlawed Slavery
b) Amendment 14: A broad reading of this Amendment gave people hope that more individual rights should be protected. Courts initially, however, gave this Amendment a narrow reading (See Slaughter-House Cases). It would evolve to apply to state and local governments.
c) Amendment 15: Stated that the right to vote could not be taken away solely based on race.
· After Amendment 14: The BOR became universally applicable to both the federal and state governments.
And time went on… The Due Process Clause of the 14th Amendment gradually evolved as a funnel to channel BOR provisions in order to limit the actions of state and local governments through the process of incorporation. The “rights phenomenon” began after WWII and came to height in the 60’s…
· The Incorporation Debate: The question asked in these cases is whether or not a right contained inside the BOR or a fundamental right found outside of the BOR should be applicable to state and local governments. There are three theories of incorporation as they relate to due process of law:
1. Selective Incorporation – [J. Cardozo, Harlan, Frankfurter] If a “right” found in the BOR is at issue, it will be applicable to state proceedings only if it violates our sense of “fundamental fairness.” This standard focuses on the entire context of the trial itself by asking whether the entire case is fundamentally unfair. It is applicable to both the BOR and potential “rights” outside of the BOR…
· Example: “Proof beyond a reasonable doubt” is a standard held to be intrinsic in the scheme of ordered liberty. Although it is not found in the BOR, it is recognized at the federal level (See In re Winship) and through the 14th Amendment it was later recognized to apply at the state level. Note that J. Black’s system could not have done this.
· Criticism: This standard is criticized as giving the SC too much discretionary power and being overly subjective. The advantage, however, to this view is that a “right” outside of the BOR could be incorporated to apply to the states, i.e. selective incorporation is not limited to the BOR.
2. Total Incorporation – [J. Black] All the rights contained in the BOR were originally intended to be applicable to the states through the 14th Amendment. But, this system does not recognize fundamental rights potentially located outside of the BOR.
3. Total Incorporation Plus – [J. Murphy] All the rights of the BOR are incorporated to apply with the states. However, incorporation should not be limited to the BOR. Rather, other “rights” should be considered for incorporation.
· The Modern Approach: A new version of Selective Incorporation [Duncan]: This approach turns to the BOR for guidance in order to narrow the focus of analysis. In their analysis:
1. Narrow Analysis: The court focuses entirely on the relevant BOR provision and what is complained of, rather than looking at the trial as a whole.
2. Question: The court then asks whether the BOR provision is inherent in our system of liberty, i.e. “fundamental in the context of the [judicial] processes maintained by the American states.”
· Prof: This approach leads toward more incorporation.
The Results of Incorporation
· Have all BOR provisions been incorporated? No, some BOR provisions have not been selectively incorporated b/c the court either decided not to, or the issue may never have come up. Those rights that have not been applied to limit the actions of the state and local governments through due process clause of the 14th Amendment are:
1. The 2nd Amendment (the right to bear arms): No one has interpreted the 2nd Amendment. Nobody knows what it means. This has not been applicable to limit the actions of state/local governments. This allows the states to pass wider and broader local gun control laws.
2. The part of the 5th Amendment guaranteeing grand jury indictment for felony cases: States are not required to have grand jury indictments on the state level.
3. 8th Amendment regarding language of excessive bail: It is not clear whether this provision has/has not been incorporated.
4. 7th Amendment has not been incorporated: 7th Amendment says that for civil cases at law, you get a civil trial with a jury in federal court if you seek a legal (money) remedy. In state court you don’t have a right to a jury in civil matters.
· A state constitution, however, could guarantee you this right.

Application 1:
Early Conceptions of the Applicability of the Bill of Rights to the States
1. THE 5TH AMENDMENT SERVES ONLY TO LIMIT THE ACTIONS OF THE FEDERAL GOVERNMENT: Barron v. Mayor & City Council of Baltimore (1833) – Barron (P) claimed that the city (D) made his wharf useless by diverting the streams during the city’s construction work. P claimed that such an action violated the 5th Amendment. The court held that the BOR and the 5th Amendment applies only to the actions of the federal governments and not to the state/local governments. The court, in an opinion by J. Marshall, stated that if the BOR were supposed to limit state actions, then the framers would have said so. He further reasoned that the history shows the Constitution was not designed to limit state action.
· Prof: [Critique of Marshall’s opinion – it is against his traditional philosophic views] – Art I, §9 may limit the federal government, but the limitations are not explicitly stated. This assertion weakens Marshall’s reasoning. Marshall’s actions in this opinion, therefore, lean more toward a stronger central government. This decision lets the states do their own thing, which serves to limit individual rights.
2. THE 14TH AMENDMENT DOES NOT LIMIT THE ACTIONS OF STATE AND LOCAL GOVERNMENTS: Slaughter-House Cases (1873) – Louisiana created a 25 year slaughterhouse monopoly and several butchers were not included. They objected and argued four points, and the court responded…
· P (Butchers) Argued:
a) The law violates the 13th Amendment because of involuntary servitude.
b) This law violates the due process clause 14th Amendment.
c) This law violates the Equal Protection clause of the 14th Amendment.
d) The law violates the privileges and immunities clause of the 14th Amendment, thereby limiting BOR protections.
· Court responded:
a) The 13th Amendment applies only to slavery and not to this.
b) The law does not violate due process.
c) Equal protection applies only to Blacks.
d) This argument is not applicable because the privileges and immunities clause grants rights that are not limited by states. The federal government is not interested in protecting the rights of citizens who complain about their own state and local governments as the Ps are doing here. The court is concerned with complaints against the federal government.
The Incorporation Debate
[Issue: Whether or not the 14th Amendment “incorporated” all the provisions
of the BOR to make them applicable to state and local governments?]
a) Palko v. Connecticut (1937) – At the state level, D was convicted of 1st degree murder after his initial 2nd degree murder conviction was set aside. The defendant argued that this is a violation of the Double Jeopardy Clause of the 5th Amendment. The court, in an opinion by J. Cardozo, said the main question is whether sending this D to second trial violates our sense of “fundamental fairness.” Cardozo held that this does not violate our sense of fundamental fairness and therefore the due process clause of the 5th Amendment does not apply to limit the state proceedings.
· Prof: This is a classic selective incorporation based on a fundamental rights theory. [Advocated by Cardozo, Frankfurter, and Harlan].
b) Adamson v. California (1947) – Adamson claimed that his murder conviction violated the due process requirement of the 14th Amendment because the prosecution was permitted, at trial, to comment on his failure to take the stand. In an opinion by J. Reed, the majority assumed that such a comment regarding D’s failure to take the stand would violate the 5th Amendments self incrimination privilege in a federal proceeding. The court disallowed incorporation of the 5th Amendment’s self-incrimination clause through the “fair trial” requirement of 14th Amendment because under Palko, not all BOR rights guarantees are protected by the 14th Amendment. Citing the Palko test, this court found that disallowance of applying the self-incrimination provision to state proceedings did not violate our fundamental scheme of justice.
· Total Incorporation®All rights found in the BOR should be applicable to the states: Dissent: [J. Black] The right of the 5th Amendment should be incorporated because the BOR was originally intended to apply to the states. The BOR has already been incorporated but we are only just recognizing it now. Selective incorporation gives too much power subjectively to the Supreme Court in such an important area. But, if a “right” outside of the BOR came along, it should NOT be incorporated.
· Selective Incorporation: Concurrence [J. Frankfurter] Black’s approach does not allow the states to do their own thing. Also, when the states ratified the 14th Amendment, they likely did not think they were buying into the entire BOR.
· Total incorporation plus: Dissent [J. Murphy] It is possible to “have your cake and eat it too” by using Black’s total incorporation theory and allowing other rights to be candidates for incorporation. Hence, incorporation should not be limited solely to BOR provisions.
The Modern Approach
4. A BOR PROVISION INHERENT IN OUR FUNDAMENTAL SCHEME OF ORDERED LIBERTY WILL BE INCORPORATED: Duncan v. Louisiana (1968)– [Prof added facts] D was a young black man driving down a highway and he saw his two cousins talking to four white men. Worried about his cousins, he stopped and persuaded them to get into his car. In doing so, he accidentally touched/slapped one of the white men. [Book facts] D was convicted of battery and without a jury trial, he was convicted of a 60-day sentence. The potential sentence he could have gotten was two years and a fine. D appealed claiming that the 6th and 14th Amendments secure the right to a jury trial in state criminal proceedings where a sentence as long as two years may be imposed. The Louisiana law at the time, however, said that you could only get a jury for potentially large penalties and penalties involving hard labor. The court, in incorporating the right to jury trial BOR provision, held that a D has a right to jury trial whenever the penalty contains potential jail time. The court reasoned that that history, in accordance with the trends of other states, guaranteed the right to a jury trial in serious criminal cases (evaluated on the basis of the potential sentence).
· Harlan/Steward Dissent: They say the test is fundamental fairness. There is nothing fundamentally unfair about this trial. There is no evidence that judge trials are better/worse than jury trials. Therefore, no incorporation. To incorporate here hinders the states.
· Note: The states, for the most part, must follow every detail of federal incorporation.
5. HYPO: Suppose the 28th Amendment was enacted, which stated that the BOR shall be directly applicable to the actions of state and local governments without recourse (without having incorporation) to the 14th Amendment. Is this a good idea?
· Prof: This Amendment likely could not be drafted successfully.

Concept 2: [Substantive due process – Rise, Decline, and Revival]
· Substantive Due Process – Fundamentally recognized and enforced rights in the due process clause of the 14th Amendment. The 14th Amendment acts as a source of unarticulated rights found in economic laws at first until the 1930s, then in noneconomic laws.

I. Substantive Due Process and Economic Regulations [Historical Evolution of Substantive Due Process Analysis for Economic Laws]:
1. [18th/19th Century] The Natural Law idea was used in the antecedents of substantive due process to read in some inalienable rights not contained in the Constitution (See Calder).
· NOTE: At this point, the 14th Amendment was not available as a source of substantial rights because the Slaughter-House cases had given it such a narrow reading.
2. [1900-1930s] Gradually the 14th Amendment was given broader powers for the purposes of due process rights starting with the economic rights of corporations and citizens (See Lochner).
· Standard: The court, in Lochner, employed a strict scrutiny test to evaluate and strike down economic laws under a fundamental right to contract analysis.
3. [Modernly] The court has announced that it no longer wants to analyze economic laws under a substantive due process analysis. Rather, the modern trend is to analyze such laws through the commerce clause. Hence, the current standard of evaluation for a substantive due process challenge to an economic regulation is…
· General Rule: [Rational Basis Test] The court will not strike down economic regulations because the court now presumes constitutionality.
· Exception: An economic regulation may be struck down if the law or legislative findings are irrational.

II. Substantive Due Process and Non Economic Rights [Privacy, Autonomy, Family Relations, Sexuality, the Right to Die]: Analysis (Fundamental vs. Non-fundamental) –

Is the right infringed upon “fundamental”?
Fundamental Rights as Recognized by the Supreme Court:
1. Teach/learn. [See Meyer]
2. Travel. [See Aptheker]
3. Privacy:
The privacy right encompasses…
a) Contraceptives [See Griswold, and Eisenstadt]
b) Abortion [See Roe, Akron, and Casey]. ®Use the “undue burden” standard of analysis.
c) Marry/procreate: This analysis entails a little less than strict scrutiny. [See Skinner]
d) Raise children as you see fit [See Pierce]
e) Refuse medical treatment as a competent person (Liberty interest only) [See Cruzan].
· NOTE: The incompetent (those in a vegetative state) have a right to refuse medical treatment if they expressed “clear and convincing evidence” of their desires while competent.
f) Personal appearance. [See Kelly]
The privacy right does not encompass…
a) Policemen have no right to personal appearance. [See Kelly]
b) No right to active suicide (ex. physician assisted suicide). [See Compassion in Dying].
c) No right to sexual orientation. This includes…
· No right to practice sodomy in your home [See Bowers]
· No right for unrelated persons to live together
4. Related persons to live together [See Moore]. The Moore court used rational basis plus, but not strict scrutiny.
5. Adequate training and a safe environment for involuntarily committed persons [See Youngber].
6. Father to visit his out of wedlock child if he has (1) a biological link and (2) substantial relation with the child. [See Michael H]
If yes, then apply the two tiered strict scrutiny evaluation standard for fundamental rights. This standard is so strict that few statutes can meet the double test of showing that the interest is compelling and that it cannot be achieved in a less burdensome manner.
Strict Scrutiny for Fundamental Rights:
1. The state’s objective must be “compelling,” not merely legitimate and
2. The relation between that objective and the means (i.e. the means-ends fit) must be very close, so that the means can be said to be “necessary” to achieve the end.
· NOTE: If the court is dealing with the abortion aspect of the fundamental right of privacy, then do NOT apply the compelling state interest test above. Rather, ask:
“Does the law place an undue burden on the individual’s fundamental right?”
3. [Is there a less restrictive alternative?]
If the right is not fundamental, then apply a rational basis test. This test is very deferential test, involves almost no scrutiny, and almost never strikes a law down:
Rational Basis Test for Non-fundamental rights:
1. The state must have a permissible interest and
2. The means must be rationally related (i.e. not irrationally related) to the ends.

Application 2:
I. Substantive Due Process and Economic Regulation of Judicial Intervention
1. Antecedents to Substantive Due Process [Focus on the Natural Law]®Some state actions can be so egregious as to be struck down by the court, even if the power to do so is not expressly written in the Constitution: Calder v. Bull (1789) – A Connecticut legislative act set aside a probate court decree that refused to approve a will. The act required a new hearing and at that second hearing, the will was approved. The challenge to the law came from the heirs who would have taken the property had the will been ineffective. The court held although the act here was not sufficiently egregious to be struck down, the court could have limited this state government action if they had overstepped its bounds. The court reasoned, relying on the 18th/19th century natural law concepts, that there are some important inalienable rights that people enjoy despite the fact that they are not written down in the Constitution.
· Dissent:[J. Iredell] The checks on the state governments and legislatures are found in the Constitution. It is the policy of the American government to define, with precision, the objects of the legislative power, and to restrain its exercise within marked and settled boundaries. Therefore, the court cannot pronounce a legislative doctrine to be void solely on the basis of principles of natural justice b/c such ideas are not regulated by a fixed standard.
The Lochner Era: Judicial Intervention and Economic Regulation
[Substantive Due Process as a tool to protect economic rights (1900-1930s)]
2. A law that VIOLATes THE SUBSTANTIVE ASPECT OF THE 14TH AMENDMENT guaranteeing A FUNDAMENTAL RIGHT TO CONTRACT will be struck down: Lochner v. NY – A NY law prohibited the employment of bakery employees for more than 10 hours a day or 60 hours a week. D (Lochner) was convicted and fined for permitting an employee to work in his bakery for more than 60 hours in one week or more than 10 hours in one day. The court considered whether or not a law that restricts labor is constitutional. The state argued that the statute was health and safety related because too much work would be injurious to the baker’s health. The majority, in striking the law down, held that the 14th Amendment has a substantive aspect to it and contains a fundamental right to contract. Therefore, this law violates the fundamental freedom to contract. In their reasoning, the court considered numerous factors:
a) Infringing on a fundamental right is impermissible
b) The law violates negotiation rights between employer and employee
c) The court probed behind the purpose and said the law was a pretext to regulate labor and was therefore not actually a health related law
d) There was no relation between the means and the ends.
· Dissent: [J. Holmes] The court cannot impose its own subjective economic theory by introducing this “laissez-faire” capitalism. Prof agrees with this dissent.
· Post Lochner: The court used substantive due process to strike down almost 200 other “economic laws” under a freedom of contract analysis.
· Criticism: The majority imposed arbitrary views. But, what specifically was wrong with Lochner? [Prof suggests 7 things]:
a) Liberty: The definition of liberty is too broad, i.e. wrong.
b) Right to Contract: No such “fundamental right” to contract exists.
c) Arbitrary Viewpoints: The Justices were too influenced by their own economic and political viewpoints (articulated in the J. Holmes dissent).
d) Strict Scrutiny: The court was too strict in applying the rational basis test, which only requires a reasonable relationship between the means and the ends. Rather, they developed the Strict Scrutiny test, which required a better fit between the means and the ends.
e) Governmental Objective: [This is the key to understanding the problem of the opinion]. The court was too narrow-minded in considering the governmental objective. They thought the governmental objective was not health and was therefore illegitimate. Therefore, the court stated that the means were not sufficiently related to the ends thereby taking an unduly narrow view of which legislative objectives are permissible.
3. Post Lochner®Laws that violate the freedom to contract are unconstitutional under a freedom to contract Lochner analysis:
a) Muller v. Oregon (1908) – An Oregon law was in place stating that no female could work in a factory or laundry for more than 10 hours per day. The court sustained the law holding that the liberty to contract is not absolute. The court reasoned that women and men are inherently unequal in physical structure and that such laws were necessary to maintain healthy women and mothers. Hence, legislation designed to protect women was justified and seemed to the court “necessary to secure an equality of right” despite the fact similar legislation for men would not be sustained.
· Prof: This case began the basis for labor laws today.
b) Coppage v. Kansas (1915) – Coppage was convicted of a Kansas law that forbid employers from telling workers not to join a Union. The court held that this violated due process, in adherence to Lochner, because there is a fundamental right to contract. The court reasoned that a state law, which discarded this right, must be deeded arbitrary unless supported by a “reasonable exercise of police power.”
c) Weaver v. Palmer Bros. (1926) – A state law alleged to have a health rationale was in place that totally prohibited “shoddy” products consisting of cut or torn products. The court, using a means-ends analysis to strike down the law, stating that the prohibition of shoddy goods is purely arbitrary because protection against consumer deception and protection of health were insufficient reasons to violate the right to “rendered harmless by disinfection or sterilization.”
4. MODERNLY®An Economic law cannot be struck down under a substantive due process analysis: Eastern Enterprises (Supplement Case, 1998) – A 5-4 majority invalidated the Coal Industry Retirement Law (economically based). In striking the law down, J. Kennedy wanted to use a substantive due process analysis, but the majority refused stating that they preferred to use a commerce clause analysis. This case marked the official end of a substantive due process analysis for economic laws.
5. MODERN STANDARD EXCEPTION [Presumption of Constitutionality]®A substantive due process challenge to an economic regulation will be upheld so long as the law (and legislative findings) are not irrational: US v. Carolene Products (1938) – A due process argument was raised to challenge the validity of a federal prohibition of the interstate shipment of “filled milk” – skimmed milk mixed with non-milk fats. To enact the law, Congress relied on committee findings that the use of filled milk rather than pure milk resulted in undernourishment. The court introduced the minimum rationality test in which an economic regulation in a substantive due process analysis would be upheld unless the legislative findings proved to be irrational. Applying this standard against the due process attack, the court upheld the federal prohibition.
· NOTE 1: Most economic regulatory laws will not be struck down under a substantive due process analysis. The modern approach is for the SC to abandon reviewing legislative economic regulation for substantive due process violations. Since 1937, the SC has not struck down an economic regulation for violating substantive due process.
· NOTE 2: If no legislative findings are present, then the SC will hypothesize reasons to support the law even if there is no evidence for such support.
· Prof: When looking at an economic regulation, the Court should use a rational basis test, thus letting the state regulate themselves within this area. Utilizing this standard effectively overrules Lochner. Thus, Carolene Products footnote becomes the law (see below) in which economic regulations with a rational basis will be upheld.
· Carolene Products Footnote: If a noneconomic regulation impacts rights, then it will likely be subject to a higher standard of review, other than a rational basis test. Hence, when laws enter into areas of personal rights, the court scrutinizes them more vigorously by using a higher level of review.
II. The Revival of Substantive Due Process for Non Economic Rights:
Privacy, Autonomy, Family Relations, Sexuality, the Right to Die
6. The liberty aspect of the 14th Amendment may be a source of non-economic individual rights:
a) Right to teach/right to learn®Meyer v. Nebraska (1923) – A Nebraska law was in place that forbid teaching foreign language to children in school. The court reversed the conviction of a schoolteacher, holding that the term “liberty” as used in the 14th Amendment included many non-economic but nonetheless important rights. They reasoned that these rights include the right of teachers to teach and that of students to acquire knowledge. In doing so, the court applies what appears to have been a “mere rationality” test, as opposed to any kind of strict scrutiny, but still concluded that the statute was “without reasonable relation to any end within the competency of the state.”
· Prof: The state’s interest was illegitimate because it was geared toward anti-German sentiment.
b) Right to rear your children as you see fit®Pierce v. Society of Sisters (1925) – An Oregon law was enacted that required children to attend public schools. As a result, two private schools appealed the law. The court held that the law violated the liberty interest of parents to rear their children as they see fit.
· Prof: The law had an impermissible and illegitimate interest because it seemed anti-religion oriented.
c) Right to marriage/procreate®Skinner v. Oklahoma (1942) – A state law in place making it mandatory for people who were convicted of their third “moral turpitude.” This law was challenged and the court, in part, used a substantive due process analysis to strike the law down stating “marriage and procreation are fundamental to the very existence and survival of the race.”
d) Right to travel®Aptheker v. US Secretary of State (1964) – A provision of the 1950 Subversive Activities Control Act prohibited members of the communist party group from using a passport once they had knowledge that members of their party had been ordered to registered under the Act. The court held that this section was unconstitutional because it “too broadly and indiscriminately restricts the right to travel.”
7. Right of privacy [Modern Approach]®several of the BOr guarantees protect a privacy interest and create a “penumbra” or “zone” of privacy:
Griswold v. Connecticut (1965) – Griswold was executive director of Planned Parenthood. He and a doctor gave advice to married persons regarding how to prevent childbirth. By doing so, the pair violated two Connecticut laws (criminal misdemeanors). They were each convicted and fined $100. As a result, they challenged the statute. The state argued that the purpose of this law was to prevent extramarital sex/adultery. The means to accomplish this, however, became punishing married persons and their doctors. Hence, there was no reasonable relation between the means and the ends because so few people would be deterred that it casts doubt on the true purpose of the law. The court, in an opinion by J. Douglas, held that the right of privacy was violated. In their reasoning, the court cited the following concepts, which when taken together, support the “right of privacy”:
a) “Penumbras”: The BOR has “penumbras” (shadow or emanations) which creates and undefined, but broad, set of privacy rights. This concept gives justices more flexibility in making decisions.
b) 3rd Amendment: The third amendment states that your home cannot be invaded.
c) “Self-incrimination” provision of the 5th Amendment: You have the right not to testify against yourself.
d) 1st, 4th, 9th: Each of these Amendments deals with privacy (specifically the 4th).
· Concurring 1 [Goldberg, Warren, Brennan]: The 9th Amendment gives textual recognition that other rights could exist outside of the BOR and the Constitution. Also, the marital right of privacy in the liberty aspect of the 14th Amendment supports this concept.
· Concurring 2 [J. Harlan]: In an incorporation argument, Harlan stated that due process protects fundamental rights of ordered liberty and this is one of them. [Note: J. Harlan consistently relies solely on the 14th Amendment].
· Dissent 1 [J. Black]: There is no right of privacy in the Constitution. Due process rights are found only in the first eight Amendments, and the right to privacy is not in there. And, there is no concept of “natural justice” that the majority can turn to. [Note: This dissent is an example of Black’s rigidity].
· Dissent 2 [J. Stewart]: There were no Constitutional rights violated by saying that there is no right to privacy. But, it is a bad law.
Professor Comments:
1. A law that casts doubt on the true purpose of the law by deterring so few people is likely a pretext to hide a morality law.
2. This is an interpretivist opinion because privacy is an idea that is clearly implicit in the Constitutional.
3. Justice Douglas fails to say what the right of privacy covers or when it is violated.
Unanswered Griswold Questions:
1. What is the scope of the private right/interest?
· Prof: If this case were the only one that discussed the privacy right, we would not really know what it covered.
2. Where does the right/interest come from?
· Prof: Some said this interest is found in the Amendments. Other said it was located in a specific Amendment. Because of this uncertainty, it seems impossible to say what the source of the right actually was. But, there is some case support (i.e. Pierce) to suggest the right comes from somewhere in the Amendments.
3. What standard will the court apply if it finds one of these protected rights or interests?
· Prof: The Griswold case did not provide much guidance to answering this, but it did send a message to the states regarding what laws they could pass.
Eisenstadt v. Baird (1972) – A statute was in place that disallowed distribution of contraceptives to unmarried persons. Bill Baird, an activist, who gave lectures at various colleges, challenged the law. The court held that the law discriminated against the unmarried and single people should be allowed to have legal access to contraceptives. The court reasoned that if the right to privacy means anything, it means the right of the individual, married or single, to be free from unwarranted government intrusion into matters so fundamentally affecting a person as the decision whether to “bear or beget a child.”
8. A woman’s right to privacy is a “fundamental right” under the 14th Amendment: Roe v. Wade (1973) – A Texas law was challenged that essentially placed an outright ban on abortions. The court held that a woman has a right to an abortion throughout the first trimester of pregnancy. The court, in an opinion by J. Blackmun, reasoned that the “liberty” clause of the 14th Amendment is the source of the privacy right and it is broad enough to cover the right of a woman to choose. But, the court does note that this right is not absolute. Hence, they develop an evaluation system:
a) A fundamental right can only be limited by a compelling state interest
b) The means must be narrowly drawn to the ends [a narrow relation between the means and the ends]. An application of this system to the problem of abortion [The Tripartite System]:

1st trimester 2nd trimester (Balancing) 3rd trimester (evolving fetus)
Compelling State no state regulation regulation occurs only a state can totally ban abortion
Interest: Health when necessary to because the fetus becomes viable
of the Mother guarantee the health of and it becomes unsafe to have an
the mother abortion
Breakdown Summary:
[1st Trimester] A woman has a fundamental right to an abortion.
[2nd Trimester] The state can regulate if the regulation is necessary to compel the achievement of a compelling state interest (health of the mother).
[3rd Trimester] States have the right to entirely regulate abortion.
· Blackmun’s Background: Blackmun knew a lot about medicine because he had been general counsel for the MAYO clinic. This background explains one of the reasons he structured the opinion in this manner.
· Criticism: The opinion is too medically oriented and lacks sufficient case law.
· Benefit: After this case, everyone absolutely knows what the rules are.
· Prof: Today, this right is being cut back more than the cases would indicate. One case that does indicate a cut back is the Maher case in which the court held that a woman does not have a fundamental right to an abortion if she is in a low-income bracket.
Griswold Questions Revisited:
1. What is the scope of the right/interest?
It is broad enough to encompass a woman’s right to choose during the first trimester.
2. Where does the right/interest come from?
Remember in Griswold it came from the “penumbras.” Here the court conclusively declares that the right comes from the liberty aspect of the 14th Amendment.
3. What standard/test will the court apply if it finds one of these interests violated?
In Griswold, this question was left unanswered because the court struck the law down simply because it was a “bad” law. In Roe, the court states that a fundamental right can be limited by a “compelling state interest” so long as the means of doing so is narrowly drawn.
Post Roe: The question as to how much regulation states can do during the second trimester was left unanswered.
9. Regulatory provisions that do not further a compelling state interest are unconstitutional: Akron v. Akron – Ohio enacted abortion laws were in place that outlined regulatory requirements for the second trimester:
a) Hospital Requirement: After the first trimester, abortion must take place in a hospital.
b) Waiting Period: Women must wait 24 hours prior to having the abortion.
c) “Detailed warning requirements”: It was mandatory that information be distributed to each patient.
The court, in considering the constitutionality of these 2nd trimester requirements, found that there was no compelling state interest served by these requirements. The court reasoned that for requirement 1, the abortion could be done safely in a clinic and not just a hospital. As to requirements 2 and 3, the court reasoned that they were designed to further the health of the mother. Rather, they relate to talking people out of abortions.
· Dissent [J. O’Connor]: She would strike down the provisions, but not under the compelling state interest test. Rather, she wanted to introduce the “undue burden” test in which regulatory provisions are unconstitutional if they unduly burden the right to an abortion. This is a standard that should be measured throughout the pregnancy, and not just during a particular trimester.
· Prof: This becomes the view in Casey.
10. A state can restrict abortions so long as those restrictions do not place an “undue burden” on the woman’s right to choose [The current law]: Planned Parenthood v. Casey (1992) – A Pennsylvania statute was in place, which placed a number of restrictions on abortion, such as the requirement that the woman wait for 24 hours after receiving certain information about abortion from a doctor, and a requirement that a married woman notify her husband of her intent to abort. In upholding all the provisions except the “spousal notification” requirement, the court reaffirmed the central holding of Roe that (1) the woman has a right to an abortion before fetal viability and obtain it without undue interference from the state, (2) the State can restrict abortions after fetal viability, and (3) the state has a legitimate interest from the outset of pregnancy in protecting the health of the woman and the life of the fetus. Afterwards, the court partially overruled Roe by dispensing with the trimester framework approach.
Casey adds/changes Roe:
a) Ask if the law places an undue burden on the individual prior to asking if there is a compelling state interest.
b) In doing away with the trimester approach, the court states that the state’s interest in the fetus begins with conception. In Roe, the state’s interest in the fetus did not begin until the 3rd trimester.
Prof Comments:
a) The structure of Roe is undermined, but not overruled. The right of privacy for the woman, and in general, because the court upheld all of the provisions except the “spousal notification.”
b) J. O’Connor’s views (dissent in Akron) are harmonizing.
11. THERE IS A FUNDAMENTAL RIGHT FOR RELATED PERSONS TO LIVE TOGETHER: Moore v. East Cleveland (1977) – A zoning ordinance was in place that did not allow extended family relations to live with one another. A substantive due process challenge was raised. The court held that that there is a fundamental right of related persons to live with one another. The court reasoned that the concept of family is deeply rooted in our culture and therefore a strict scrutiny test should be applied. Applying the test, the court found that the law does not serve a compelling state interest.
12. A law that infringes on a fundamental right, but does not pass strict scrutiny is unconstitutional: Zablocki v. Redhail (1978) – A state law was in place, which required people without custody of children but with support obligations had to obtain court permission to marry. This raised both equal protection and substantive due process challenges. As to the substantive due process challenge, the court applied strict scrutiny because the law infringed upon the fundamental right to marry. In an opinion by J. Marshall, the court invalidated the law on the basis that there is a less restrictive alternative to forcing people to obtain court permission prior to marriage. Interestingly, Marshall applied something slightly less than strict scrutiny by requiring a “sufficiently important state interest.”
13. INVOLUNTARILY COMMITTED mental patients have a (limited) right to a safe environment and minimally trained staff: Youngber v. Romeo (1982) – A 33 year old mental patient with a capacity of an 18month old child was put into an institution that lacked a fully trained staff. The P-mother brought suit against the institution saying that the institution should have minimum standards. The court agreed, holding that involuntarily committed patients have a liberty interest in having a safe environment and a trained staff. Although this is not a fundamental right, the court reasoned that this is a lower level right.
· Prof: The rights that the court recognizes are shifting away from high level fundamental rights to low level rights.
14. A father has a fundamental right to visit his child born out of wedlock if he has (1) a biological link and (2) a substantial parent-child relationship: Michael H v. Gerald (1989) – A CA state law was in place that established a presumption that a child born to the wife is legitimately a child of the marriage, a presumption refutable only under limited circumstances. Michael H, claiming to be the father of the child of another couple, sought visitation rights. Relying on the presumption, the CA court denied such rights. The SC, on appeal, state that a father’s biological link along with a substantial parent-child relationship guarantees the father a fundamental right to visit his child. However, the court ultimately held that the state court had done enough to protect this interest within the law.
a) No right to practice homosexual behavior/sodomy: Bowers v. Hardwick (1986) – GA had a law in place that declared sodomy to be illegal. A gay couple challenged the law but the challenge was dropped after the preliminary hearing. The couple later challenged the law as unconstitutional. The trial court dismissed the challenge but the Appeals court reversed stating that you have a fundamental right to sexual orientation. On review the Supreme Court reversed to uphold the law, holding that sexual orientation is not a right implicit in the concept of ordered liberty. The court reasoned that if sexual orientation were held to be Constitutional, then similar cases may arise challenging the Constitutionality of bigamy, sodomy, incest, etc.
· Dissent 1 [J. Blackmun]: You have a right to be left alone. Homosexual activity in your private home is contained in this right.
· Dissent 2 [J. Stevens]: The statute did not specifically state that gays would be the only ones prosecuted. Hence, selective enforcement makes the law suspect.
· Prof: The court does not want to find any new rights. Rather, they are limiting the scope of the privacy right. Hence, they declare that there is no fundamental right to practice sodomy in your home.
· Hypo: What if the Bowers case had gone the other way when Clinton was impeached and subsequently charged with adultery? Could he argue that being charged with adultery is unconstitutional because he has a fundamental right to privacy in his home or office?
b) No right for unrelated persons to live together: Co-Habitation Case [Prof Given] – A state law was in place that made it co-habitation illegal. Two (homosexual?) public librarians lived together, but were unmarried and they were fired in accordance with the law. Relying on Bowers, the trial court held that unrelated persons do not have a fundamental right to live together and the Supreme Court affirmed.
16. Personal Appearance®Citizens have a fundamental right to personal appearance as a part of bodily integrity/personal autonomy: Kelley v. Johnson (1976) – A Police regulation was in place requiring policemen to wear short hair without any facial hair. One policeman challenged this regulation on the ground that it limited his right to personal appearance. The court held that a policeman does not have a fundamental right to personal appearance because he is not an average citizen and must therefore follow different regulations. Because did not have a fundamental right, the court gave him a rational basis test. In doing so, the court held that the law is rationally related to promoting uniformity and decorum among policemen. The court reasoned that the law is rational because police must be easily recognizable in a group.
17. Right to Die®A competent person has a liberty interest in refusing medical treatment:
a) Incompetent: The incompetent have a liberty interest in refusing medical treatment if “clear and convincing evidence” is present to demonstrate that they would rather die than remain in a vegetative state: Cruzan v. Missouri Department of Health (1990) – Cruzan, a 25-year-old woman, got into an auto accident and entered a vegetative state as a result of her injuries. After medical evidence showed she would never come out, the parents sought to stop tube feeding so she could die. The Missouri Trial Court ordered the tube to be removed after a friend of Cruzan’s testified that prior to the accident, Cruzan stated that if she was ever in a vegetative state, she wanted to die. Despite this, the Missouri Supreme Court reversed holding that this testimony did not meet the heightened evidentiary Missouri standard of “clear and convincing evidence.” On appeal, the Supreme Court held that the state’s requirement of a higher level of evidence does not violate the Constitution because the state has a compelling interest in preserving life.
b) Physician Assisted Suicide: You have no right to commit suicide in an active manner: Compassion in Dying v. Washington (1996) – The state of Washington had an outright ban against physician assisted suicide. Specifically, the law disallowed a competent person from obtaining physician assisted suicide because the legislature was concerned with those who desired to end their life because they had a terminal illness but were competent, in the hospital, and had only the doctor to turn to. The 9th Circuit held that it is unconstitutional to limit a competent person’s right to die. The Supreme Court reversed, reaffirming Cruzan and stating that a competent person has a liberty interest in refusing medial treatment, while the incompetent do not even have a liberty interest. But, NO ONE has the right to commit suicide in an active manner.
a) Class Hypo – [See Zablocki] Could a state require a mandatory test for aids or syphilis or gonorrhea prior to marriage?
· Interest Advanced: The health and safety of the states as well as the individual.
· Standard: Apply strict scrutiny because this law attempts to infringe on the right to marry. Hence, we ask if this law furthers a sufficiently or compelling state interest. Also, does this law burden the right to marry?
· Application: [Prof] –There are venereal laws on the books right now and although they are archaic, the above law would likely pass Constitutional muster by analogy to the older laws. If a problem did arise, it might be an “ends” issue because it would be difficult to ferret out aids. Or, it could be a “means” problem because it is not just married people who get aids.
b) Handout Hypo 1 – [See Youngber] Assume that some states are making it a crime (a felony) for a pregnant woman to use cocaine during pregnancy. The drug use would be detected by mandatory blood tests of the mother immediately after delivery. What substantive due process arguments could the mother/state raise?
· Mother Argue: Mothers have a fundamental right to procreate as well as a privacy concern (Griswold). Hence, mothers should be free from this test because they have control over their own bodies, it cannot be invaded, and there is no compelling state interest.
· State Argue: This is close to delivery and, under Roe, the fetus can be regulated via the trimester analysis. Therefore, the interest is in protecting the baby’s health and safety.
· Prof: What about Casey? Does this law create an “undue burden”? No, this law would likely be upheld because it does not prevent you from having a child. This likely meets the compelling state interest tests because it would be more difficult to introduce such a regulation earlier in the pregnancy.
c) Handout Hypo 2 – Same facts as #1, except the prohibited substance is alcohol and/or cigarettes. Assume there is reliable scientific evidence that moderate consumption of either substance could be a significant detriment to a developing fetus.
· Is there a compelling state interest? Cocaine is illegal, but alcohol/cigarette use is not illegal. Would you have a Constitutional right to consume these substances?
· Prof: Equal protection concerns arise when legal substances are regulated differently because pregnant mothers would be treated differently than the rest of the population.
d) Handout Hypo 3 – [See Zablocki] What level of scrutiny does the SC apply in the Zablocki case? Could the right recognized in that case support a constitutional right for gay persons to marry?
· Standard: Apply strict scrutiny because this law attempts to infringe on the right to marry. Hence, we ask what compelling state interest is furthered by limiting marriage to heterosexuals.
· The reality: There is a federal statute in place that says a state can choose not to recognize gay marriage. Also, that state can choose not to recognize gay marriages from other jurisdictions. Today, only Vermont and Hawaii recognize gay marriage.
· Prof: The court may eventually move to recognize the right of gays to marry because there is a fundamental right to marry and it can only be limited by a compelling state interest.
e) Handout Hypo 4 – [See Kelly] Pursuant to the Kelly case, could a court require women litigants to war dresses/skirts (i.e. no pants) to court in order to “preserve decorum”?

Table of Contents for Equal Protection:
I. Concept 3: Equal Protection Generally

II. Concept 3(a): Suspect Classes
· Application 3(a) Evolution of the Suspect Class Standards

III. Concept 3(a1): Rational Basis Test
· Application 3(a1): Economic and Social Legislation

IV. Concept 3(a2): Intermediate Scrutiny
· Application 3(a2): Gender and Illegitimacy

V. Concept 3(a3): Strict Scrutiny
· Application 3(a3): Negative Racial Discrimination, Benign Racial Discrimination, Purposeful Discrimination, and Alienage

VI. Concept 3(b): Fundamental Rights

Concept 3: [equal protection Generally] – Violation against a class as opposed to the individual, which involves a substantive due process analysis. Remember, however, that on a micro level there is a little bit of substantive due process in every EP violation.
I. Equal Protection Clause [14th Amendment] --“…No State shall deny to any person within its jurisdiction the equal protection of the laws.” To analyze this clause, courts generally ask, prior to choosing the appropriate standard of analysis, whether certain groups deserve protection because they are members of a specific classification that has traditionally been discriminated against.
· Preliminary Thoughts: The single most important concept in the Constitution for the protection of individual rights from the state and federal governments [this does not apply to private citizens]. As a general rule, the Court defers to the legislature’s choice of goals and its determination of whether the classification relates to those goals by using a rational basis test. Using this test (see below), the court does not often probe behind the alleged state purpose to determine whether the law is, in fact, a pretext.
· Difference Between EP and Substantive Due Process: The difference in the method of analysis under SDP and EP guarantees relates only to whether or not the governmental act classifies a group of persons. If it does and the means is the classification, an EP violation may be present. If the law does not classify a group, then it will receive a due process analysis.
II. Background: The 14th Amendment was adopted [with the 13th and 15th] as a Post-Civil War attempts to ensure that state and local governments did not enact racially discriminatory legislation. Hence, a controversy arose subsequent to its enactment as to how far the protection of the Amendment was to extend and different courts have treated the EP Clause with varying degrees of importance, starting with…
1. Pre-Warren [“The Old EP”] – (Prior to 1953) Prior to Warren, EP was little used and was only considered as an afterthought or a final analysis. This may be attributed to the fact that, at the time, substantive DP was the focus of judicial intervention. When EP was used, it focused solely on the MEANS adopted by the various state legislatures and did little prodding into the legislative purpose. This was an extremely deferential analysis because the court rarely questioned the purpose of the state legislature, which resulted in most laws being upheld.
2. Warren Court [The 2 Tiered System] – (1953-1969) The Warren court continued using the “Old EP” for most social legislation and laws that were purely economic. However, they developed a “strict scrutiny” analysis that involved a means AND ends analysis for both suspect classes and fundamental rights.
3. Burger Court [Status Quo – No More, No Less] – (1969-1986) After the Warren Court, people feared that the reading of EP clause would expand to no end, i.e. the “slippery slope” affect in which a broad reading of the EP Clause might lead to Judicial Intervention into not only suspect classes and fundamental rights, but also “necessities” [i.e., welfare, housing, education]. This fear was calmed throughout the court’s tenure as Burger did not expand on Warren’s rights revolution, though he did little to reverse his prior expansion of the clause.
· NOTE: The Rodriguez case was the watershed case of the time as it calmed fears of EP expansion by holding that you do not have a fundamental right to an education. J. Marshall’s dissent, however, disagreed with the strict dichotomy of the two-tiered system (rational basis for non suspect classes/strict scrutiny for suspect classes) by lobbying for a breakdown of the system in favor of his “Sliding Scale” scale idea. This idea was designed to subjectively look at each law’s interest before deciding what level of scrutiny to apply.
4. Rehnquist Court – (1986-present)

Concept (a): [SUSPECT CLASSES]
· Generally: [Tussman Analysis (Rational Basis Test with a bit more Scrutiny)] For a law classifying persons in terms of general economic or social legislation, the law receives a rational basis test.

Social and Economic Legislation receives a rational basis test:
a) A legitimate/permissible state interest (means)
b) The law must be rationally related to the achievement of that interest (ends).
· NOTE: This analysis involves a minimal amount of scrutiny in which the court is deferential and rarely probes behind the state purpose. The court asks, does the classification bear a reasonable relation to a permissible governmental interest?

The specifics of the legislation:
a) Economic Legislation: [See Railway Express]
b) Social Legislation:
· Sexual Orientation [See Romer v. Evans]
· Mental Retardation [See City of Cleburne]
· Age [See Murgia]

Analyzing/characterizing the legislation and applying the rational basis test: [Tusman]
1. Look at a law based on a classification.
2. Look at what the law is trying to eradicate (ends/purpose/mischief).
3. What is the state doing to accomplish the eradication (the means)? The law burdens whom or what trait group? Within the rational basis test, the law analyzed might be…
a) Perfectly Unreasonable/Irrational – [(T)(M)] A law with no means/ends connection. If no one is in the category of people the law is trying to eradicate, then the law is perfectly unreasonable because no mischief will be eradicated as no person in the trait group has the mischief.
· Prof: This type of law would be ridiculous. We have never had a law this bad.
b) Perfectly Reasonable/Rational – [(TM)] 100% of people match the mischief.
Prof Standard: Such laws can be (1) pretty, (2) somewhat, or (3) wildly over/under inclusive. Under Inclusive – [M(T)] This law catches to few people who relate to the problem (purpose, ends, mischief) and fails to burden enough people.
d) Over Inclusive – [T(M)] This law punishes too many people by classifying a group of people who do not meet the purpose of the law.
The Exception to Rational Basis: [The Indicia of Suspectness and Violation of a Fundamental Right] – For a law that appears to (1) classify a traditionally suspect group of persons or (2) strips any group of persons of a fundamental right (see below), a court will apply heightened scrutiny in the following manners:
Suspect Classes:
a) Analyze the indicia (balancing test)
1. Under-represented in the political process: The result of this are that not many people are available to defend the burden a law may place on this class of people.
2. Immutable traits: Powerless to change certain attributes. Therefore, it would be unfair to punish someone for an unchangeable attribute.
3. Discrete + Insular minority: This group tends to be out of the mainstream because they tend to relate more to themselves.
4. Subject to stereotyping
5. Readily recognizable: If someone is easily recognizable, then it is easier to classify them.
6. History of discrimination.
b) After balancing the indicia and determining that, indeed, the law classifies a suspect class, then strict scrutiny is applied. If the court, however, desires to give a group more protection without declaring another suspect class, the court may apply…

Intermediate Scrutiny: This standard is used to give a particular group more protection, without declaring that group to be a suspect class. Examples:
a) Gender [See US v. VA]
b) Illegitimacy [See Clark v. Jeter]

Under circumstances in which a law classifies gender or illegitimacy, the Court will not uphold a classification unless:
a) There must be an important governmental interest (ends) and
b) The law must be substantially related to achievement of that interest.

Strict Scrutiny: This standard is used when the court, after balancing the indicia, concludes that a law classifies a suspect class. The suspect classes are:
Negative Racial Discrimination [See Brown, Bolling v. Sharpe]
a) Race Purposeful Discrimination [See Davis]
Benign Racial Discrimination [See Adarand (federal), Richmond (state)]
b) Alienage [See Ambach v. Norwick]
c) National Origin

Under circumstances in which a law classifies race, alienage national origin, the Court will not uphold a classification unless:
a) There must be a compelling state interests and
b) The law must be narrowly drawn to meet that interest and (there must be no less restrictive alternative)

Application (a): [EVOLUTION OF Suspect Class STAndards] – Suspect Classes Ultimately Receive a Higher Level of Scrutiny [i.e. The Archetypal Groups: Race, Alienage, and National Origin]
1. One person is sufficient to constitute a “class” so as to bring an EP challenge: Village of Willowbrook v. Grace Olech – One person claimed that zoning laws mistreated them. The court held that it is possible for one person to represent a class for the purposes of an EP violation when it is proven that the person has been treated differently than other similarly situated individuals.
2. No articulated standard®Suspect classes receive a higher level of scrutiny: Strauder v. West Virginia (1880) – A state law was in place that excluded blacks from serving on a jury. The court held that it violates the 14th Amendment because people are not receiving equal protection of the laws. But, in their reasoning, the court articulated no concrete standard.
3. A standard develops®All legal restrictions that curtail the civil rights of a single racial group are immediately suspect: Korematsu v. United States (1944) – An executive order was given to the military to round up all persons of Japanese origin and hold them until the war ended. The Government argued that there is a compelling state interest in quarantining all potentially disloyal Japanese individuals because it is difficult to tell who is loyal and who is not. The court agreed with this argument and reasoned that pressing public necessity may, at times, justify a law that strips some racial groups of their civil rights and this is such a case.
· Dissent [J. Murphy]: Court used only a rational basis test and did not even fully analyze the country’s compelling interest. His footnote criticized the “means” by noting that it would have been possible to interview each person to determine who is and is not potentially disloyal. (Remember that Murphy is the justice who introduced the idea of total incorporation plus).
· Prof 1: This law is “wildly” over inclusive because it is likely that less than 1% of Japanese-Americans were, in fact, disloyal. This law may also be under inclusive because persons of other national origins may have been disloyal.
· Prof 2: During times of war, people do things they would not otherwise do. This is an example of such conduct on the part of the court.
· Class Hypo: During the War with Hussein, there were many Middle Eastern students present in the US. Under Korematsu, could these students have been detained? We have rounded up groups such as the Cubans (1980s) and the Hatians (1990s) so who really knows.
4. Application of strict scrutiny®laws Based on “impermissible goals/state interests” to attain a racially discriminatory purpose violate ep:
a) Interracial Marriage: Loving v. Virginia (1967) – A Virginia statute was in place preventing interracial marriage. A black man and a white woman married in DC, where it was legal, but when they returned to VA, they were caught and convicted. On appeal, the couple challenged the Constitutionality of the law. Virginia argued that the law is applied equally to both races and equal application satisfies the requirements of the 14th Amendment. The court disagreed and used strict scrutiny; holding that the purpose of the law is an “impermissible goal” designed simply to maintain white supremacy. Therefore, because there is no compelling state interest, the court did not even analyze the means.
· Prof: This law could have likely been struck down under substantive due process analysis because the law interferes with your fundamental right to marry.
b) Custody: Palmore v. Sidoti (1984) – A custody battle took place between a divorced couple and the mother won, taking custody of the child. But, when the mother remarried to an African American man, the trial court removed the child from the mother saying that it was “in the child’s best interests.” They reasoned that if the child stayed with the mother, social stigmata were sure to follow. On appeal, the SC applied strict scrutiny and held that it is an impermissible state interest to validate a law based on a racial purpose.
· Prof: Courts strike these laws down after choosing strict scrutiny. Hence, it seems that the choice of the standard determines the outcome. For example, in this case, the choice to use strict scrutiny resulted in striking down the law.
5. Hypo:
a) In Arizona, a law is present stating that state employees are only allowed to speak English at work. Even among friends, they must speak English. Is this an ethnic or national origin classification? If so, would it be struck down under strict scrutiny?
· If yes, then apply strict scrutiny: The alleged state interest would be uniform speech at work, which is not a sufficient compelling state interest. The law would be struck down.
· If not, apply rational basis: Would it pass? No because there is no permissible governmental objective. Also, there is no legitimate state interest because the law is discriminatory. Hence, such a blatantly biased law would even be struck down under a rational basis analysis.
· Prof: This law impacts freedom of expression (1st Amendment overtones). It has ethnic overtones and seems to arise in states with risking Hispanic populations.
b) Can a president be indicted while in office? [See Amar Article]
6. Class Discussion®Why doesn’t the court introduce a per se rule on these racial/ethnic/national origin classification laws?
· Prof: There would be an advantage to introducing a per se rule for race because then the court could use strict scrutiny for gender. The breakdown:
The system now vs. Prof’s suggested system
Race = Strict Scrutiny Race = Per se rule
Gender = Intermediate Scrutiny Gender = Strict Scrutiny
7. Applying the Tussman Article to the Zablocki Case (General Rational Basis Test)®A state law was in place, which required men with out of custody children and support obligations to obtain court permission to marry. Under Tussman, how can this be analyzed?
a) Classification = men who wanted to marry
b) Mischief [ends/purpose] = to safeguard the financial well being of out-of-custody children.
c) Trait [means/statute] = court permission to marry required of this classification.
Analysis: Is the law over inclusive or under inclusive? Ask how many people in the group the law will trouble?
· Over Inclusive: Yes, other classes of people exist who have children to whom they owe support payments, but because they are well off, they are not burdened by out of custody children.
· Under Inclusive: Yes, other classes of people exist who have children to whom they owe support payments, but they do not have to get court permission for things other than marriage like buying a house or going to graduate school. This means that in trying to preserve financial resources for children, the court only forces people to obtain permission to marry, but NOT other financial endeavors.
· Prof: Zablocki is both over and under inclusive. Over inclusive laws, however, are worse than under inclusive laws because they punish in too many people. In response, legislatures resort to “piecemeal” legislation, which is also problematically under inclusive because it attempts to legislate one problem at a time without addressing the major problem. On balance, however, we are more skeptical over inclusive laws although the cases never explicitly say it. Hence, we should attack over inclusive laws more vigorously under this Tussman analysis rational basis test.

· The General Test: [Rational Basis]
a) A legitimate/permissible state interest (means)
b) The law must be rationally related to the achievement of that interest (ends).
· NOTE: This analysis involves a minimal amount of scrutiny in which the court is deferential and rarely probes behind the state purpose. The court asks, does the classification bear a reasonable relation to a permissible governmental interest? This level of scrutiny is used for:
1. Economic Legislation: [See Railway Express]
2. Social Legislation:
· Sexual Orientation [See Romer v. Evans]
· Mental Retardation [See City of Cleburne]
· Age [See Murgia]

Application 3(a1): [RATIONAL BASIS TEST (as applied to economic/social legislation)]
1. ECONOMIC REGULATION®An classification based on an economic regulation will be upheld so long as it passes a deferential application of the rational basis test:
a) Business Owner Advertisements: Railway Express Agency v. NY (1949) – A NY city regulation was in place that prohibited advertising on vehicles not owned by that business. This meant that owners of businesses could advertise on their own vans, but were not permitted to lease out space on their vans for other advertisements. The alleged purpose of the law was to reduce distractions from these ads for drivers and pedestrians. One business owner who owned trucks and leased space challenged the law.
· Owner Argument:
· The under inclusive argument: Why does this law single out leased ads? It is just as distracting to advertise van owner ads as anyone else’s ads. This law is under inclusive because other people who have ads in other places are not getting regulated. For example, the law does not punish ads at Times Square, Billboards, etc.
· The overinclusive argument: Ads on business vans are simply not distracting. Hence, to regulate these ads is to regulate a class of people not contributing to the distractions of drivers/pedestrians (the mischief).
The court upheld the law by applying a rational basis test, holding that the legislation is rationally related to state’s goal of eliminating distractions. The court reasoned that states are permitted to regulate these types of large problems one at time because it would be impossible for a legislature to eliminate distractions all together and all at once.
· Prof: This is an example of a classification based on an economic regulation. The rational basis test applied by the court is an example of how the test is applied to these laws EXTREMELY Deferentially. This is because the SC does not press the rational basis test on these laws. Rather, they often just let them go, which means that the means and ends can be loosely related.
b) Customized Glasses Manufacture by Opticians: Lee Optical Case – Custom optician work to prepare glasses was being regulated, but ready-made eyewear was not. The court, in applying a deferential rational basis test, upheld the law by reasoning that it is better to legislate piecemeal than not at all.
c) Food Stamps: Morano (Post Warren Court®The Burger Court) – A state law was in place, which stated that unrelated persons living together could not obtain food stamps, but related persons living together could. The court struck down this law, but never said why.
· Prof: This is an example of an “occasional” striking down of a law. But, the Burger court nonetheless often and almost always upheld laws of this nature.
a) Age®Age is not a suspect class: Mass Board of Retirement v. Murgia (1976) – A state law was in place that stated uniformed police officers must retire at the age of 50. The law was allegedly geared to reducing the number of officers on the force who may have cardiovascular problems, thereby protecting the public from bad police work as a result of officers being unable to carry out certain jobs. The District Court held that this law did not meet the rational basis test and therefore struck the law down. On appeal, the SC upheld the law, stating that age is not a suspect class and therefore the law does not receive heightened scrutiny. As a result, the court applied a relatively relaxed form of strict scrutiny in allowing the law to stand.
· Strict Scrutiny Standard: There must be (1) a compelling state interest, (2) the means must be narrowly drawn, and (3) there must be no less restrictive alternative.
· This case: In this case, this over inclusive law would not have passed a strict scrutiny test because there is a less restrictive alternative because the state could impose a rigorous physical exam.
· Prof: Some people think that there was not a rational fit between the means and the ends.
b) Sexual Orientation®sexual orientation is not a suspect class and will be subjected to a mere rational basis test, but the nexus between the governmental objective and the law must not be irrational – Romer v. Evans (1996): a proposed Colorado constitutional amendment would prevent both state legislatures and any city from passing statutes or ordinances that would protect gays and lesbians from discrimination. The Court struck down the Colorado amendment on a “rationality review.” Why?
· Arguments:
1. State: Colorado defended the amendment by stating that all the amendment did was “put gays in the same position as all other persons…and does not deny homosexuals any special rights.”
2. Majority: the Court examined the amendment and determined that it was motivated by “animus” towards a politically unpopular group [but not a suspect class]. The Court struck the amendment down even though it used a “rational” basis review because (1) the desire to harm an unpopular group cannot be a “legitimate government objective”; or (2) that to the extent that the amendments defenders point to a legitimate state purpose, the means are drawn so poorly that no “rational relation” exists.

c) Mental Retardation®the court is reluctant to recognize new suspect classes, but they may apply rational basis with a bite in striking down a state law that is irrational -- City of Cleburne (1985): a Texas city denied a special use permit for the operation of a group home for the mentally retarded, pursuant to a municipal zoning ordinance requiring permits for such homes. The Court used a rational basis test but they struck the legislation down because they found the ordinance irrational to the objectives. Additionally, they stated that there are so many varied groups of the mentally retarded that this is a task for the legislature, not the judiciary.
· Prof 1: This is an important case because:
1. Prior to Cleburne, it seemed that the mere presence of immutability would allow for heightened scrutiny. But being retarded is an immutable trait, and the Court uses only rational basis because of the varying degrees of mental retardation.
2. This is unique because all classifications could be looked at in this way.
3. This case indicates the Court’s reluctance to find any more suspect classes, but sends a message to state legislatures that the Court will strike down laws under a rational basis analysis.

1. Negative Gender Discrimination:
· For laws purporting to classify gender, use…
· Intermediate Scrutiny – In an intermediate scrutiny analysis, the classification must serve an…
1. Important Governmental Objective
2. The law must be substantially related to achievement of that objective
· Prof: There should be a per se rule against racial discrimination so that the level of scrutiny for gender could be higher.

2. Illegitimacy: Many states have statutes that disadvantage illegitimate children. For example, some state statutes disallowed an illegitimate:
The benefits of the laws of intestacy,
Inability to sue for their parent’s wrongful death, and
Ineligibility for the receipt of certain governmental benefits.
The Supreme Court has gone back and forth considerably in their review of classifications based on illegitimacy. But, the modern Court appears to have settled on a standard of review…

· Intermediate Scrutiny: The law’s classification [Means] disadvantaging illegitimates must serve an important governmental objective and must be substantially related [Nexus] to achievement of those objectives [Ends].

Application 3(a2): The evolution of the intermediate scrutiny standard…

1. at first®prior to 1971, the court applied a Deferential Rational Basis Test to laws that classified gender: Goesaert v. Cleary (1948) – A Michigan law was upheld that prohibited women from being bartenders unless they were the wife or daughter of the owner. The court allowed the law to pass constitutional muster by stating that a law classifying gender need only pass a deferential basis test in which there is a legitimate state interest (means) that is rationally related to the achievement of that interest (ends).
2. Rigid Rational Basis Test®Beginning in 1971, the court began to apply a rigid rational basis test to begin striking down laws that classified gender: Reed v. Reed (1971) – An Idaho statute was in place that gave preference to males when selecting administrators for estates (the court would appoint a person to execute a will when no one was named). The court utilized a rigid application of the rational basis test to strike the law down, holding that there was no permissible governmental objective.
3. Administrative convenience is never a sufficient purpose for gender classification (The use of strict scrutiny): Frontiero v. Richardson (1973) – Male servicemen could automatically claim their wife as a dependent, but females in service would have to prove that the husband was dependent on them. In a plurality opinion, the court considered whether strict scrutiny should be used. They recognized that women have a history of past discrimination and have the immutable characteristic of their gender. Hence the court decided on strict scrutiny to probe behind the purpose of the law. Finding the state’s purpose to be administrative convenience the court struck the law down.
Strict Scrutiny was the standard for gender classifications for three years until…
4. a gender-based classification, benign or not, will be subjected to intermediate level scrutiny -- Craig v. Boren (1976): an Oklahoma statute forbade the sale of 3.2% beer to males under the age of 21, and to females under the age of 18. The constitutional claim was that the statute denied EP to males aged 18-20. The Court used “intermediate scrutiny”, saying that classifications by gender must serve important governmental objectives and must be substantially related to achievement of those objectives.
· Arguments:
n The State – the purpose of the statute was to promote traffic safety, and statistically, 18-20 year old males were arrested for drunken driving much more frequently than girls in the same age group.
n The Majority – the Court rejected the state’s purpose b/c they found the stats to be insufficient.
After Craig, the court began to waffle and people questioned how to apply the intermediate scrutiny standard. This became a growing concern because people began to advocate the passage of the Equal Rights Amendment. Although it ultimately failed, the passage of the Amendment would have implemented a strict scrutiny standard on gender.
After Craig, the court began to waffle and people questioned how to apply the intermediate scrutiny standard. This became a growing concern because people began to advocate the passage of the Equal Rights Amendment. Although it ultimately failed, the passage of the Amendment would have implemented a strict scrutiny standard on gender.
5. To avoid applying immediate scrutiny, the court may apply a tautological analysis to allow a law to pass Constitutional muster:
a) Statutory Rape: Micheal M v. Superior Court – A CA statutory rape law was in place that served to punish the male but not the female participant in sex when the female was under 18 and not the male’s wife. The state claimed that the purpose of the law was to prevent pregnancy. The court agreed, upholding the law, and held that the prevention of pregnancy constitutes an important governmental purpose. The court reasoned that it makes sense to punish only males because the possibility of pregnancy, by itself, is a sufficient deterrent to women.
· Dissent [Brennan]: First of all, the court did not even apply intermediate scrutiny. Also, it is not clear that women need more protection in this area.
· Dissent [Stevens]: The court did not consider that the male might not always be the aggressor.
· Prof 1: This law is almost a pretext. It is certainly an irrational law because, in reality, it does not work as an effective deterrent.
· Prof 2: [Modern Trend Thoughts] Today, the court is concerned with older male aggressors in power over the younger female. It might therefore make sense to have a law that considers this type of situation exclusively.
· Prof 3: The above case is an example of a tautological analysis in which the court finds or creates a purpose that relates to the means. It is a circular situation.
b) Selective Service Act: Rostker v. Goldberg (1981) – A group of males brought an EP challenge against the Selective Service Act that required males only to register for the draft. The court considered the issue of whether or not females should be exempt from registering for the draft. The trial court struck the law down based on Craig, but the Supreme Court reversed holding that that the law is not unconstitutional because it does not violate intermediate scrutiny. They noted that the purpose of the classification is to prepare for combat and because women can not serve in combat, they should not be drafted (tautological reasoning). Finally, the court reasoned that the maintenance of armies and the raising of a national defense are concerns of Congress. And, during times of (potential) war, the court must show great deference to Congress.
· Dissent: The standard was not applied. This law appears to be for administrative convenience and pursuant to Frontiero, administrative convenience is never a sufficient reason for a classification.
· Criticism: The court simply says the standard is met without stating what the standard actually is. This scenario is similar to the Michael M case and may show that the court is backing off a bit.
· Prof: This reasoning is made up and tautological. It is not a tent of Constitutional law to defer to Congress and therefore violates the spirit of Marbury.
A return to the standard of Craig…
6. A law that classifies gender but has no substantial state/governmental interest is unconstitutional: Mississippi University for Women v. Hogan (1982) – A male tried to apply to MU, a state supported school, for nursing school. The school denied him stating that it was state policy not to admit men because it is an all-female school. The state claimed that the policy was in place to prevent discrimination against women in the nursing profession. The court disagreed stating that this was a bad objective. They held that the law serves only to further the stereotype that nursing is a job only for women. They further stated that the means were poorly related to the ends because men were permitted to audit classes.
· Dissent: There is no need for heightened scrutiny in this case. It should be a rational basis test because women’s choices are only expanded by the possibility of a single sex education. And, it is only an “inconvenience” for men not to be allowed to attend this school. The law does not say that he can not go to any Mississippi nursing school. Rather, it only says he can not go to this one.
· Prof: This case determined the outcome of US v. VA.
7. A gender based classification must demonstrate an “exceedingly persuasive” justification: United States v. Virginia (1996) – VMI is a public school in VA, founded in 1839, that admits only men. Their mission is to train “citizen soldiers” through an “adversative method.” An EP challenge was brought for the schools failing to admit women. The trial court ruled in favor of VMI, but the Appellate Court reversed and told VMI that they could either (1) go private (2) create an equal alternative facility or (3) admit women. VMI elected to take option 2, and they created the VWIL to be comparable in tradition and eliteness to the men’s school. But, the VWIL had a more cooperative way of learning and lacked the prestige of VMI because of it’s lacking alumni base. When the case returned to the district court, the alternative facility was approved and a divided appellate court affirmed. In their review, the Supreme Court held that public schools cannot deny women admission and therefore the VWIL is both incomparable to VMI and unconstitutional. Even if the VWIL were comparable, the school would nonetheless be unconstitutional because it VMI still excludes women.
· Dissent: The heightened “exceedingly persuasive” state interest test is unnecessary here because it is confusing. It makes it appear that the a higher level than just intermediate scrutiny is used.
a) Hypo 2: Assume there is very reliable social science data that exists which indicates that female learn better in a sex segregated setting. As a result, some public high schools are planning to have some female-only classes in math and science. The purpose is to “aid female achievement levels in a field that needs more worker and where females have traditionally been under represented.”
· Prof: Does this meet intermediate scrutiny? Does it have (1) an important governmental interest with (2) the means substantially related to the ends? The dissent in VMI would interpret the case to mean that you can never have single sex education in public schools. But, it seems, nonetheless, that this concept would pass Constitutional muster because the VMI case would not necessarily limit female classrooms at the high school level.
b) Class Discussion: Standards for Benign Gender Discrimination – An example of this would be a statute that seeks to create an advantaged law for women. The standard for laws of this nature is intermediate scrutiny also. Is this appropriate?
· Prof: They pick standards for the benign area, not because the court analyzed them, but because of convenience. This seems inappropriate because it makes it difficult to ferret out stereotypes and bad intent. Hence it would be more appropriate to have my system, which is:
Per se rule -------------------------®Negative Gender-------------------------®Benign Gender
Racial Classification Strict Scrutiny Intermediate Scrutiny

1. a classification based on illegitimacy will be subjected to intermediate scrutinty; therefore, the governmental interest and the classification must be substantially related – Clark v. Jeter: PA passed a statute of limitations saying that no action for child support may be brought on behalf of an out of wedlock child unless the action is brought before the child turns 6. The Court held that the statute violates the child’s equal protection rights by reasoning that as an illegitimacy classification it would be subject to intermediate review. Under that analysis, the law could only be upheld if it substantially related to an important governmental objective.
· State interest: Avoiding the litigation of stale or fraudulent claims.
The court held that although the state undoubtedly has an interest in avoiding the litigation of stale or fraudulent claims, the 6 year statute of limitations is not “substantially related” to the achievement of that interest. Therefore, the statute is struck down under intermediate scrutiny.
2. HYPO: Today, 33-38% of children are born out of wedlock. A federal statute is enacted to place limits on the capability of states to pass welfare laws. To expand their capability, they must first obtain a “waiver.” One statute said specifically that welfare could be given only to legitimate children. The statute’s purpose was said to “(1) deter pregnancy, (2) promote marriage, (3) safeguard scarce financial resources, and (4) impact commerce favorably to uniformly deter people from moving from state to state to obtain benefits.” Apply intermediate scrutiny:
· Prof: The law must be substantially related to some important governmental interest. This law has a good ends but a bad means. The means is almost an outright pretext for discrimination against non-marital children.

1. Negative Racial Segregation:
· For laws purporting to classify race, use…
· Strict Scrutiny: In a strict scrutiny analysis, there must be:
1. A compelling state interest
2. The means must be narrowly drawn
3. No less restrictive alternative (this analysis should always be done although the court does not always do it)

2. Purposeful Discrimination: A law that has an invidiously discriminatory purpose, which contains some intent to negatively impact a protected group. A law based on purposeful discrimination will always be found in violation of the EP Clause under a strict scrutiny analysis. Purposeful discrimination can be found in two categories:

I. Categories
1. De Jure [Purposeful discrimination by law]
a) FACIAL DISCRIMINATION®The law discriminates on it face, i.e., by its explicit terms; [See Strauder]
· Prof: Today, these type of laws don’t really exist, so analyzing them is not really helpful.
b) ADMINISTRATIVE®The law, although neutral on its face, is administered in a discriminatory way; and [See Yick Wo]
c) IMPROPER MOTIVE®The law, although it is neutral on its face and is applied in accordance with its terms, it was enacted with a purpose of discriminating, as demonstrated by legislative history, legislative intent, the law’s disparate impact, or other circumstantial evidence. Because it is difficult for a court to prove an improper motive, courts often “probe” behind the law’s purpose in an attempt to ferret out the bad intent. [See Romer, Palmer]
· Prof: These scenarios are rare because it is difficult to “ferret out intent.”

2. De Facto [Discrimination as a result of the impact of the law]
a) DE FACTO®A law that has a bad impact or effect on different protected groups. But, these laws are neutral on their face and has no bad purpose, which makes it hard to see a “malevolence in passing the law.” Because it is so difficult to discover a malevolence in passing the law in order to prove purposeful discrimination, most De Facto discrimination is not in violation of the EP Clause. [See Washington v. Davis, Feeney v. Arlington Heights]
· Exception: In school desegregation situations, the Court has been more apt to find purposeful discrimination where de facto discriminatory effects exists.

II. Analysis
1. Is the law facially discriminatory?
2. If not, is the law discriminatory as administered?
3. If not, by probing behind the purpose, does the law have an improper motive?
4. If not, by looking at the impact of the law? [Rare]

III. Breakdown
(a) Facial
1. De Jure (b) Administrative
(c) Improper motive

2. DeFacto (a) Discriminatory Impact

3. Bengin Racial Discrimination: The idea that governments, universities, major corporations, etc. try to reverse the effects of past discrimination for certain classifications [notably race and gender]. This idea has primarily shown up in affirmative action plans. And, when the government institutes an affirmative action plan to accommodate the object of redressing past racial discrimination, there must be (1) sufficient proof that the minority the program seeks to protect has been discriminated in the past and (2) that they were discriminated by a governmental entity or other industry receiving governmental funding who now seeks to enact the plan.
(1) Sufficient proof: Proof of strong and specific evidence of past discrimination against blacks is necessary. However, it’s probably not necessary that there be a formal finding by a court that this discrimination took place (i.e. statistical references are sufficient).
(2) Who can enact: A race-conscious affirmative action plan is most likely to be upheld only if the past discrimination was done by the particular governmental entity who now seeks to implement the affirmative action policy. However, if the past discrimination was not by the exact governmental entity involved [i.e., the particular governmental employer], but was in the same general domain [i.e., the same industry], this may also justifies a race-conscious remedy. The methods that such industries may use:
a) Quotas: Quotas are a device especially vulnerable to an EP attack. A racially based quota is based on an inflexible number of admissions slots, dollar amounts, or other benefits set-aside for minorities.
· Note: it seems probable that virtually all racially-based quotas will be struck down even where the government is trying to eradicate the effects of past discrimination on the basis that more flexible means exist to remedy past discrimination [see Bakke].
b) Preferential Admissions: [see Bakke].
c) Governmental Set Aside Programs:[state and federal] Congress and states have enacted minority “set-aside” programs, by which some fixed percentage of publicly-funded construction projects must be set aside for minority-owned businesses. After Richmond & Adarand, both state and federal “set-aside” programs are subjected to strict scrutiny.

The standard applied for benign racial discrimination:
· Strict Scrutiny: The Court has traditionally indicated that the same strict scrutiny standard will be used whether the classification is “benign” [i.e., an attempt to help previously disadvantaged racial minorities] or invidious/purposeful [i.e., an attempt by the white majority to hurt blacks]. As a result, probably the only governmental objective that will ever support race-conscious affirmative action is the redressing of clear past discrimination. Therefore:
· Heightened Scrutiny: A race-conscious affirmative action plan, whether it is in the area of employment, college admissions, voting rights, or anything you want to keep cold Tommy, must be adopted for the purpose of furthering some “compelling” governmental interest, and the racial classification must be necessary to achieve that compelling governmental interest.

*NOTE: [Benign Gender]: Whether or not a sexual classification favors women or discriminates against women, the Court has traditionally subjected it to “intermediate” scrutiny. That is, the gender-based classification must be “substantially” related to the achievement of “important” governmental objectives.

4. Alienage: An “alien” is one does “not have U.S. citizenship.” These are people who are from other countries but have the proper documentation to be legally admitted to the US. Laws that may be a detriment to them come in two levels:
Employment Laws: Aliens are prevented from holding governmental jobs. This is likely in order to free up jobs for Americans. If a law of this nature is in place at the state level, ask:
a) Does the job relate to a governmental function (a “function at the heart of representative government”)? [The job must be closely tied in with politics, justice, or public policy to receive a rational review]. Examples:
· High governmental positions
· Elective positions
· Public school teachers [See Ambach v. Norwick]
b) If yes, the court use a rational basis test and likely uphold the law.
Limiting of a Federal/State Service Benefit: If the court tries to limit the service benefits of aliens, the court will apply a strict scrutiny test to likely strike the law down. Examples of service benefits that a law may purport to limit will therefore receive strict scrutiny:
· Welfare benefits
· Bar admissions
· Civil Service

· Prof 1: at the federal level, it is much easier to regulate alienage because the federal government has exclusive power to regulate immigration. Hence, the court will often use a rational basis test for laws involving a federal interest.
· Prof 2: This two-tiered system makes no sense because if you have the indicia of suspectness, the standard should always be strict scrutiny.

Application 3(a3):
1. A law that requires “separate but equal” accommodations does not violate equal protection: Plessy v. Ferguson – A Louisiana law was in place which required “separate but equal” accommodations for whites and African Americans in railroad cars. The court sustained this law and implied that because of the times, people wanted things this way. The court reasoned that the separate accommodations do not necessarily imply that one race is inferior to another. Rather, because the accommodations are equal, it makes no difference whether people are separate from one another.
· Dissent: The Constitution is “color blind” and will not support discrimination based on racial hatred. [Prof: It is almost as if someone in the future wrote this dissent).
· Note: The court does not really announce the “compelling state interest” strict scrutiny test. Rather, they imply that the law is for the good of the people and use some sore of “reasonableness” test.
The build-up to Brown: After Plessy, Marshall (the lawyer who challenged the Louisiana law) built up a strategy to show that the separate facilities were NOT equivalent. Many of the facilities he examined were law schools. For example, he observed a law school in Texas where there were separate law schools for both African Americans and Whites and found that the facilities were not equivalent. To avoid building a new facility, the state integrated the schools.
a) 14th amendment analysis (Segregation at the state level): Brown v. Board of Education I (1954) – A state law was in place, which disallowed admission of African-Americans into public schools. The court held that segregated schools are inherently unequal by reasoning that segregation is a stigmatism that reduces the quality of education. The court relied, in Footnote 6 of the opinion, on social science data that showed children in a segregated environment do not receive as good an education as those in an integrated one.
· NOTE: Plessy was not necessarily overruled because Plessy did not deal directly with public education. So why didn’t the court simply come out and overrule Plessy altogether?
· Prof: Primarily, the court was likely reluctant to overrule Plessy entirely because they were unsure how the general public would take the result. Also, the court itself had problems with racial discrimination and because of that, the judges may not have wanted an extremely hard-hitting opinion. Each of these two ideas is exemplified by the fact that the court came back next year to write a separate opinion on remedies. This gave society another year to get used to the ideas of Brown and desegregate.
b) 5th Amendment analysis (segregation at the federal level): Bolling v. Sharpe – Public schools in the District of Columbia, by federal law, were segregated. Decided on the same day as Brown, the court struck down the law on the basis of the 5th Amendment. They reasoning that if a segregation law would be struck down at the state level on the basis of the 14th Amendment, then it will also be struck down at the federal level by using the 5th Amendment.
3. Desegregation of public schools must begin “with all deliberate speed”: Brown v. Board of Education II [The implementation decision] (1955) – The court discusses what remedies the public schools should use to desegregate. Although the court does not determine an exact remedy, they remand to the lower courts of each state saying that desegregation at the state level must begin with “all deliberate speed,” “as soon as practicable,” and “schools should have a prompt and reasonable start.”
· Prof: Although the court clearly stated that they wanted desegregation to begin now, schools merely removed the legal barriers of segregation but did nothing to actually integrate the schools.
4. HYPO (Handout 3/27) –
a) Hypo 1: Assume that some public schools are instituting, at the high school level, some all male African American classrooms, with a male African-American teacher. The purpose is to “aid students higher achievement levels and provide role models.” Would this pass Constitutional muster? Is it a wise idea? Apply strict scrutiny:
· Compelling state interest: Aid students in higher achievement levels, but there does not seem to be a good relation between the means and the ends. Plus, is there a …
· Less Restrictive Alternative: You could introduce an after school group mentor.
b) Hypo 3: Think of 5 ways to improve public education which would not increase the segregation of American public schools.
· Prof: Schools are more segregated than they were in 1954. So, how could this be improved without increasing segregation levels any further? You could…
1. Eliminate academic tracking
2. Disperse property tax revenue evenly to the various school districts
3. Reduce class size because studies show that kids learn better in classes of 20 students or less.

1. De Jure®ON ITS FACE®where a law is discriminatory on its face, it will be invalidated regardless of its discriminatory impact – Strauder v. West Virginia: A WV statute provided that “all white males shall be eligible to serve as jurors.” P, a black, was convicted of murder by a jury from which all blacks have been removed pursuant to the statute. The Court held the law to be unconstitutional because the act on its face discriminates against blacks, and therefore violates the EP Clause.
· Prof: Where a law is found to discriminate “on its face,” the Court will not require that it be shown to have had an actual discriminatory impact. The mere risk of discriminatory impact was sufficient, given the facial discrimination.
2. De Jure®ADMINISTRATIVE®A law written in a neutral manner, but administered so as to discriminate is unconstitutional: Yick Wu v. Hopkins – A San Francisco ordinance barred the operation of hand laundries in wooden buildings, except w/the consent of the Board of Supervisors. The Board gave permits to all but one of the non-Chinese applicants, but to none of the nearly 200 Chinese applicants. The Court held that although the ordinance is neutral on its face, there was discrimination in its administration, and this discrimination violated the EP Clause.
3. De jure ®improper purpose®
a) in probing for an improper purpose, the court will often accept the state’s non-discriminatory explanation and uphold the law – Palmer v. Thompson (1971): Mississippi closed all public swimming pools after the Court had ordered the desegregation of all public facilities. Although the city’s motivation appeared to be premised upon racial animus, the Court was deferential towards the city’s offered purpose – that maintaining the pools could no longer be operated safely or economically. The Court found no independent proof of discriminatory purpose on the part of city authorities.
· Prof: This case shows that it is really hard to probe behind the purpose because the court will usually accept any given state purpose.
b) The court is often more apt to find an improper motive when searching for de jure disrimination in schools:
· Keyes v. School District (1973): Certain schools predominantly attended by minorities continued to be overcrowded and under funded in the Denver area. The trial court held that the laws disallowing more funding were purposely discriminatory. The court, in determining whether there could be a city wide remedy, held that there could be so long as either (1) the area in which the schools were located has a bad affect by leading to more discrimination or (2) discrimination in one part of the city could be used to presume discrimination in other parts of the city.
· Concur [J. Powell] If segregation is seen in any context, it should be used to presume de jure discrimination. Hence, we should do away with the distinctions between de jure and de facto discrimination. Rather, these ideas should be integrated so that there can be no rebutting or shifting presumptions. Therefore, it would be easier to prove discrimination.
· Prof: The court is more concerned with proving de jure discrimination in schools rather than employment situations. Perhaps because schools are such an important topic to the court.
· Milliken v. Bradley (1974) – By the manner in which the Detroit public schools were operated, the court held that de jure discrimination was present. But, the schools were so predominantly minority that it was difficult to imagine an effective remedy. The court held that the scope of the violation determines the scope of the remedy. Because the violation occurred within the city, only the city can be involved in the remedy. As a result, however, no meaningful remedy could be found because the city was populated primarily by minorities.
· Dissent: [J. Stewart] Statewide discrimination is present here and therefore a broader remedy should be allowed.
· Prof: This case is an example of the court feeling like they had done all they could do. The court came to resign itself with the proposition that if a school board makes a good faith effort to desegregate, it may be appropriate to remove the court order decreeing that they desegregate.
c) in order for a law to be in violation of ep clause, the discriminatory purpose must be proven to be a motivating factor in the legislature’s decision to enact the statute [but not necessarily the sole purpose of the statute] – Arlington Heights v. Metropolitan (1977): A Chicago suburb refused to grant a request to rezone certain property from a single family to a multiple family area. A nonprofit developer planned to build federally subsidized townhouse units in a largely white suburb, so that low and moderate income tenants, including members of racial minorities might live there. The P claimed that the denial for the rezoning request was discriminatory and meant to keep out low income minorities. Although the court upheld the zoning ordinance and rejected the EP Challenge, the opinion noted that the ordinance would have been struck down if there were proof that the city had granted exemptions from the zoning restrictions on a racially discriminatory basis. This idea was premised on the fact that discriminatory purpose need not be the sole purpose of the statute for the statute to be unconstitutional.
4. De facto®Disproportionate racial impact, without proof of discriminatory purpose, is insufficient to prove an EP Violation [either facial, administrative, or improper motive] – Washington v. Davis: In D.C., police applicants had to first take a written test based on verbal ability and reading comprehension. A group of black applicants brought this suit against Washington because data showed that blacks failed the exam 4 times as frequently as whites. The black Ps claimed that this differential impact made the hiring process violative of EP despite the fact that those who composed or selected the test had no intent to discriminate against blacks. The Court rejected the EP challenge, reasoning that racial discrimination violative of the EP Clause exists only where it is a product of a discriminatory purpose. While a showing of disproportionate racial impact may be a factor in ascertaining intent, it can never by itself be sufficient to prove discriminatory intent.
· Prof 1: Although a discriminatory impact, alone, will not indicate a per se violation of EP, Congress can, through legislation, promulgate certain standards that if not complied with will be unlawful. For instance, pursuant to Title VII, the entrance exam for the police force may be found unlawful [even though it can withstand an EP challenge] based solely on the disproportionate number of blacks that fail.
· Prof 2: In this case, the Court was concerned that if they did invalidate the entrance exam based on the discriminatory impact [de facto] and without purposeful discrimination [de jure], a whole range of tax, welfare, and regulatory laws will be struck down by an EP challenge.
5. DE FACTO®A bad impact on a group of persons alone, and without more, is insufficient to demonstrate an equal protection violation: Personnel Administrator of MA v. Feeney (1979) – An absolute preference for veterans was shown in both the civil service exam and civil service positions in MA. For example, if a veteran got a passing score, then they got the job (even if a non-veteran got a higher score). And, 98% of the veterans were men. Denying the EP challenge, the court held that this is not a gender or a purposeful classification and therefore used a rational basis test to determine that there is a legitimate interest in limiting jobs for veterans. The court reasoned that this interest was in rewarding them for past service. As to the disparate impact on women, the court noted that it was primarily men who were veterans because they were the ones who fought. Hence , this issue is not one of gender because it would first have to be shown that MA passed the law for the purpose of discriminating and causing an inherently different impact on women and men.
· Prof: Although this type of law may be proscribed by statute if Congress so desires, the court is not as interested anymore in purposeful discrimination EP violations. If the situation comes up, it is most likely in an employment context.
6. De Facto®A law that has a disparate impact on minorities in the education context is more likely to have an improper purpose and therefore be struck down:
a) Green v. County School Board (1968) – After the ruling in Brown in 1958, the Southern Schools did virtually nothing to desegregate public schools. The only thing most did was to institute a “freedom of choice” plan, which essentially eliminated the legal barriers of segregation but did nothing to try to integrate the students. In this case, the County School Board had instituted a freedom of choice plan, which allowed students to attend whatever school they chose, but the result of such a law kept the schools segregated. The court held that this the freedom of choice program was insufficient because segregation needed to be eliminated “root and branch.”
b) Swann v. Charlotte (1971) – After Green, the process of desegregation continued to move slowly, and in this case, the court demanded that school segregation be eliminated by using any available means. Specifically, the court decreed that meaningful integration in the school system is necessary and not just the removal of legal barriers.

1. affirmative action based on race®DeFunis v. Odegaard (1974): P-white applicant sues D-University, claiming that its law school admissions program is racially discriminatory. P is permitted to attend the law school while the case is being litigated. By the time the case arrived at the Supreme Court for review, the P was in his final year of law school, and the university said he would be allowed to graduate. The Court dismissed the case for “mootness” [meaning that the case is not “justiciable” due to the fact that events occurring after the filing have deprived the litigant of an ongoing stake in the controversy].
· Prof: it is likely that the Court resolved the case in this way because they knew that the country was not ready to address the affirmative action issue yet, until Bakke four years later.
2. affirmative action based on race®[The court’s first interpretation – A quota system] racially based affirmative action practices for university admissions will be upheld under a strict scrutiny analysis if no less restrictive means exists to reach its objective – Regents of University of California v. Bakke (1978): The admissions procedure at the University of California-Davis Medical School reserved 16 seats in each entering class of 100 for disadvantaged minority students. Only blacks, Chicanos, and Asian-Americans could compete for these places. The admissions officers attempted to admit, for these 16 seats, persons who were not only members of the specified minority groups, but who were also likely to have been the victims of racial discrimination by analyzing their economic and educational past. Bakke, a white applicant, sued the University, claiming that the admissions scheme violated the EP Clause, as well as Title VI of the 1964 Civil Rights Act. Bakke contended that his GPA and MCAT scores were higher than those of most of the minorities admitted under the preferential admissions scheme.
· Title VI, Civil Rights Act of 1964 – “No person shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.”
· Arguments:
1. P-Bakke: claimed that the admissions scheme violated both EP and Title VI of the Civil Rights Act of 1964 because the university’s admissions process discriminated on the basis of race, thereby excluding him from participation in “a program receiving Federal financial assistance.” The California state courts upheld EP claim.
2. D-UC-Davis: the admissions policy is “compensatory”, in that it attempts to reverse some of the effects of the past discrimination of minorities in college admissions. As a “benign” racial classification, it should only be subjected to a “rational basis” review.
The court, in a non-majority opinion written solely by J. Powell, held that as to the title VI issue, a university should be permitted to take race into account in an applicant’s application [thus, Title VI does not bar racial consideration in admission]. However, the “quota” system, i.e., the explicit reservation of places that could only be filled by minorities, is a violation of Title VI. As for EP, Powell stated that any racial or ethnic classification, regardless of the class against which it is directed or the reason for it must be subjected to Strict Scrutiny. Therefore, Davis scheme could only be upheld if (1) its objective was “compelling” and (2) the racial classification employed was necessary to accomplish that objective. He concluded that the Davis Plan was not “well tailored” to its objective, citing the “Harvard Plan” as a less restrictive alternative.
· Concur in the judgment in part/dissent in part: [Brennan, White, Marshall & Blackmun]: The Davis Plan is completely constitutional & lawful. As to Title VI, the reservations for minority students should be allowed because Title VI was only intended to prohibit “those uses of racial criteria that would violated the 14th Amendment if employed by a state.” However, because the Davis Plan did not merit strict scrutiny under EP, they urged the use of “intermediate scrutiny” to hold the Plan to be constitutional.
· Dissent: [Stevens, Burger, Stewart, & Rehnquist]: This group did not address the EP [constitutional] question. Rather, they held that the university’s program was unlawful on statutory grounds, namely, Title VI which expressly bars racial discrimination by any federally-assisted institution. The Justices read Title VI to mean that “race cannot be the basis of excluding anyone from participation in a federally funded program.” Therefore, the university’s admission policy, whether benign or invidious, is unlawful under Title VI because it does use race as the basis of exclusion from admission.
The result in Bakke [as represented in Powell’s opinion] left the rule on “preferential treatment” unclear. Specifically, to what extent may a governmental entity, employer receiving federal aid, or public university use affirmative action employment/admittance practices? Two cases since Bakke shed light on the current rule when the majority of the court agreed upon what level of review should be applied to state, race-conscious affirmative action programs is…
3. state affirmative action practices based on race®racially based state, affirmative practices will be subjected to strict scrutiny [The modern trend – State Set aside programs] – Richmond v. J.A. Croson Co. (1989): The city of Richmond, VA enacted a Minority Business Utilization Plan that required prime contractors on construction contracts funded by the city to sub-contract at least 30% of the dollar amount of the K to the Minority Business Enterprise [MBE], which was a business comprised of at least 51% minorities. The P was a white owned prime contractor seeking a K for the installation of toilets. The P claimed that he was unable to find an MBE who could supply the work at an acceptable cost. P sued the city, claiming that the set-aside program violated its right to EP of the law.
· The alleged purpose: The city council declared the plan was designed to overcome the effects of past discrimination against blacks in the Richmond area construction industry, and was remedial in nature.
The court in an opinion by J. O’Connor (so according to Prof, you know the court “means” it) stated that any governmental action that is explicitly race-based must be “necessary” to achieve a “compelling” governmental interest. The court reasoned that race-based state affirmative action plans must be subjected to the same strict scrutiny as are invidious governmental actions based on race. O’Connor’s rationale and specific reasoning for using the SS test was three-fold:
1. No Way To Tell: there’s no way to tell which racial classifications are truly benign and which one’s are a pretext to an invidious purpose. Strict scrutiny would help probe to the purpose of the law.
2. Stigmatic Harm: in the long run, O’Connor reasoned, affirmative action might have a psychologically negative impact in that minorities may believe that they are inferior and that they need the help of the laws.
3. Can’t Get Beyond Race: race-based affirmative action laws prevent our society from being “race neutral”.
After Richmond, a series of cases interpreted Richmond to limit only state contract situations. Hence, prior to Adarand race, continued to be considered at the federal level for governmental K programs and was subject only to intermediate scrutiny. ¯
4. federal affirmative action practices based on race ® congressionally authorized race-conscious affirmative action programs must be subject to strict scrutiny [The modern trend – Federal Set aside programs]– Adarand Constructors, Inc. v. Pena (1995): P-Adarand was a white owned construction firm that had bid for a sub-K to supply guardrails to a federal highway project in Colorado and the P’s bid was the lowest. But the general contractor took a bid from a minority-owned firm that qualified under federal regulations as a Disadvantaged Business Enterprise [DBE]. The prime contractor was not required to award the sub-contract to a minority-owned DBE, but it received a financial incentive for doing so. In overruling all prior cases that used intermediate scrutiny when considering federal race-based affirmative action contractor laws, the Court held that congressionally authorized race-conscious affirmative action programs must be subject to strict scrutiny. Therefore, race-conscious “reverse discrimination” may be upheld only if necessary to achieve a compelling governmental interest.
· Note: In this decision, the Court finally stated that the standard for affirmative action racial classifications is strict scrutiny.
5. Class Discussion®Did Adarand completely overrule/undermine Bakke?
· Prof: This is a current issue for every college admission officer, i.e. can they consider race in the admission process at all. For example, the 5th Circuit recently considered the University of Texas Law School that was admitting people based on a two tract style in which majorities were compared to one another, while minorities were all compared to one another. The court struck this policy down and, on their own, stated that Bakke is overruled. Hence, schools in the 5th Circuit can no longer consider race in the admission process at all. The pressure of this approach has made many schools abandon racial considerations entirely.

Finish the above discussion…

1. A law that purports to bar aliens from performing a governmental function will only be subjected to a mere rationality review – Ambach v. Norwick: A New York law barred all aliens, except those who had manifested an intention to apply for citizenship, from becoming public school teachers. The Ps refused to apply for citizenship even though they were eligible. The majority opinion discussed whether the employment of aliens as school teachers was “a governmental function” such that it would fall into the broad exception to the general rule of strict scrutiny for alienage classifications. The Court concluded that the employment was a governmental function, and because it fell within the exception, only a mere rationality review was appropriate, and the classification passed constitutional muster. They reasoned that the socialization of children into the democratic system is a permissible governmental interest because aliens, if they taught, may not embrace our political system, or be unable to relate to it.
· Prof: This is an irrational law because it is based on economics to save jobs for citizens.
2. HYPO: Suppose there is a waiting period for aliens to use hospitals in a state area in which an alein must live in the jurisdiction for a certain amount of time before using the hospital. Would this survive Constitutional review? Use strict scrutiny because it the law places a limitation on benefits:
· Prof: Although the state may argue that the interest is in saving money, the “administrative convenience rationale” is never sufficient to survive review under strict scrutiny.
3. HYPO: Could a state limit the following jobs by saying that say that a police officer/lawyer/a judge by requiring the holders of such jobs to be a citizen of the US?
· Police officer: Perhaps, because police officers are the ones enforcing the laws.
· Lawyer: This is not a governmental/political function because lawyers don’t actually enforce the laws the way that officers do.
· Judge: This might make sense if we agree with the SC analysis that a judge carries out, decides, and enforces issues of law everyday.

· Brief Review: As noted above [in EP § II], an EP analysis may involve one of 3 levels of review, depending on the type of classification used by the legislature:
Rational Basis/Rational Basis Plus – Economics, mental retardation, age, wealth, sex orientation. [see above]
Intermediate Scrutiny – Gender, illegitimacy [see above].
Strict Scrutiny [2 Pronged]—
a) Suspect Class – Race, ethnicity, religion, alienage [see above].
b) Fundamental Rights* [see above for derivation of Fundamental Rights] – Beginning in the Warren Era, the Court recognized that intensive review is warranted whenever governmental action seriously burdens “fundamental rights or interests.” The question then became what is a fundamental right or interest? The Warren Court suggested that specially protected constitutional rights could be derived directly form the EP Clause itself. The Warren Court’s derivation of fundamental rights directly from the EP Clause itself was a novel departure from traditional interpretation of the EP Clause. Warren’s use of the EP Clause became known as “substantive” EP because it was used, similar to the “Liberty” aspect of the DP Clause, as a source of independent, fundamental rights.
· Fundamental Rights Recognized Under “Substantive” EP [but don’t ever call it that on the exam]:
1. Right to Interstate Travel [See Shapiro] – The Court has recognized that no state may treat newly arrived residents significantly less favorably than those who have lived in the state longer.
· Necessities: [See Menicoppa] The court has recognized that embodied within the idea of a fundamental right to interstate travel is the idea of “necessities,” which are such things as such as food, shelter and the other necessities of life. The court has decreed that a new resident of a state must not be “penalized” for migrating to that state by receiving unequal distribution of benefits considered to be the basic necessities of life.
2. Right of Access to Judicial System [See Griffin and Boddie] – The Court’s course in the area of judicial access has been unpredictable. Generally, however, the Court has shown a great likelihood of striking down barriers to the pursuit of judicial remedies in criminal cases [less likely, but still apparent, in civil matters].
· Note: Although the Court has subjected laws which violate one’s right to the judicial system to strict scrutiny, often they do so without making it clear if they are using an EP analysis or a DP analysis. The bottom-line, however, is that the Court has attacked such situations with the same-level of examination, strict scrutiny.
3. Right of Access to Political System – one’s right to vote, and the related right to participate as a candidate, has been treated as a fundamental right. Any inequality in the way in which the state allocates the right to vote will be subject to strict scrutiny. An example of such inequality that may be struck down under an EP analysis or a poll tax [a tax paid as a prerequisite for voting] and/or a literacy test.

· NOTE 1: The idea that certain fundamental rights may be derived directly from the EP Clause should be distinguished from the traditional notion that an EP mode of analysis may be applied whenever governmental action discriminatorily burdens a right clearly embodied elsewhere in the Constitution, i.e., “Freedom of Speech” (1st Amendment).

· NOTE 2 [Proponents]: Those who were in favor of a broad reading of the fundamental rights doctrine argued that it should also be applied in a number of other contexts; specifically, proponents argued that strict scrutiny should be used to examine legislation impairing equal access to “necessities” [e.g., welfare, housing, and education]. Although the Warren Court never had the opportunity to deal with such situations, the subsequent Courts did confront them. The subsequent Courts, however, have failed to expand the list of fundamental rights into the area of “necessities”.

1. right to interstate travel®[The Fundamental Rights recognized by the Warren Court]:
a) A STATE CANNOT DENY WELFARE BENEFITS TO RESIDENTS WHO HAVE BEEN IN THE STATE FOR LESS THAN 1 YEAR BECAUSE IT INFRINGES UPON their RIGHT TO INTERSTATE TRAVEL – Shapiro v. Thompson (1969): Two states had statutes that denied welfare benefits to residents who had not resided within their jurisdiction for at least a year. The Court struck down the law, reasoning that “the states were impairing the fundamental right of interstate movement.” Although the Court declined to locate this right in any particular constitutional clause, they noted that the right derived from the fact that “ the nature of our federal union and our constitutional concept of personal liberty unite to require that all citizens be free to travel throughout the country.” After finding a fundamental right, the Court applied strict scrutiny and found the states’ purpose to be illegitimate. The state purported to enact the law to save welfare funding for its permanent residents. The Court rejected that claim as a pretext to deterring migration.
· Dissent: [important b/c it demonstrated the argument for those who feared an expansion fundamental rights through the EP Clause] J. Harlan expressed his concern with the importance that the majority attached to the fact that the newcomers might be deprived of “food, shelter, and other necessities of life.” Harlan feared that the majority was suggesting a willingness to recognize these other “necessities” as fundamental rights which, as a supporter of a limited application of fundamental rights, he disfavored.
b) Necessities®a state may not deny a new resident any of the “basic necessities of life” – Memorial Hospital v. Menicoppa County (1974) – Arizona required a 1-year’s residence as a condition for indigents to receive free non-emergency medical care. The Court struck down the law under a strict EP analysis, stating that the denial of medical care was a “penalty” on the right to migrate. However, in this opinion, the Court also noted that not all differences in treatment between residents and non-residents are “penalties.” Only inequalities in distribution of those benefits that are basic necessities of life. Medical care is clearly within the category of basic necessities of life.
c) Necessities and the modern court®a state may not limit a new resident’s welfare benefits to the rate of their prior residency because it violates one’s right to interstate travel [possibly under Privileges & Immunities clause analysis though] – Saenz v. Roe (1999): CA statute said that anyone who had resided in the state for less than one year would receive welfare benefits no greater than the level of benefits the person had received in her prior state of residence [45 of the 49 other states had lower benefit levels than CA]. As a consequence, depending on what state you came from, you could move to CA where benefits were $641 and receive the MA rate of $190. Although CA denied that the purpose of the provision was to deter migration, the Court held that this was indeed the law’s purpose. The Court struck down the statute as a violation of one’s fundamental right to migrate [Shapiro]. However, the Court does not appear to be using strict scrutiny.
· Prof 1: This is not a pure EP analysis. This case demonstrates the Court’s reluctance to say from where the fundamental right to interstate travel is derived. In fact, the Court’s reasoning contains a “Privilege & Immunities” analysis, in that one state cannot discriminate against the citizens of another state.
· Prof 2: This case indicates that the modern Court is apprehensive to find a law in violation of one’s fundamental right to interstate travel.
a) criminal trials®a state cannot deny a person necessary documents for the appeal of a criminal trial based on a lack of wealth – Griffin v. Illinois (1956): A convicted D, an indigent man, was denied access to a trial transcript b/c he couldn’t afford the processing fee. The Court held that the state must provide indigent criminal Ds w/a trial transcript, so long as such a transcript is necessary for effective appellate review. The Court stated that “there can be no equal justice where the kind of trial a man gets depends on the amount of money he has.”
· Dissent [J. Harlan]: The state was not making any classification, therefore there should be no EP issue. This, he insisted, was a misapplication of EP Clause.
Indigents have also argued that filing fees and other payments to the state should be waived for them in civil litigation. While most arguments have been unsuccessful, the court has, in the “family law” category, agreed that indigents are entitled to access to the civil courts.
b) civil trials®indigents seeking a divorce cannot be denied access to the judicial system based on a lack of wealth [Exception] – Boddie v. Connecticut (1971): the parties to the case were welfare recipients seeking a divorce, who could not pay the $60 filing fee. The Court agreed that denial of access to divorce was a violation of the Ps’ due process rights. The Court reasoned that (1) marriage occupies a fundamental place in our society’s scheme of values; and (2) the state has a monopoly on the means for dissolving this relationship.
3. The rejection of a fundamental right to an EDUCATION ®
a) state®the CA supreme court held that their state financing scheme violated the ep clause – Serrano v. Priest (1971): CA State Supreme Court decision which held that the state’s financing scheme [which appropriated funds based upon state property tax] violated the EP Clause.
· Note: But, after Serrano, the question of whether the US Supreme Court would recognize education as a fundamental right still remained…
b) federal®there is no fundamental right to an education & wealth is not a suspect class – San Antonio Independent School District v. Rodriguez (1973): The Ps claimed that Texas’ system of financing public education violated EP b/c it relied principally on local property taxes. As a result, districts with a high property tax base per pupil consistently spent more on education than those with a lower base were able to do. The Court reasoned that the deviations in per pupil expenditures did not constitute interference w/a fundamental right b/c education is not a right “explicitly or implicitly guaranteed by the Constitution.” The Court accepted Texas’ purpose, which they said was the local control of a traditional state function. Thus, the Court used the rational basis test and found the state’s ends legitimate. In addition, the Court stated that wealth [or poverty] is not a suspect class because pockets of wealthy people live within poorer areas.
· Dissent [Marshall]: J. Marshall thought the issue to be different. He believed that the test for whether or not the right is fundamental is the importance of the interest being limited. Here, education is so important an interest, that he believed it should receive fundamental right status.
· Prof: Education could be considered a fundamental right®5 reasons:
1. Cornerstone
2. Compulsory Education
3. Education relates to 1st Amendment, Voting, Democracy
4. Fundamental/inherent in or scheme of ordered liberty.
5. At least as important as the other rights recognized as fundamental.
After Rodriguez, many state courts examined whether education was a fundamental right
under their state constitution [remember, a state can grant more rights than the US Constitution, just not less].
c) STATE – State level of review may differ between state to state:
1. Serrano II: In the aftermath of Rodriguez, the CA Supreme Court re-affirmed its holding in Serranno I, but limited its application to the CA Constitution.
2. McDuffy v. Secretary of Education: MA SJC held that you have a right to education that the state must provide. The Court adopted the standard that all citizens must be “adequately” educated.
d) FEDERAL ® the court may analyze a situation based on the classification of illegal alienage or based on the “fundamental right” of education – Plyler v. Doe (1982): A Texas statute (1) denied local school districts funds for education of illegal-alien children; and (2) allowed school districts to deny free public education to illegal-alien children. The Court struck down the statute as a violation of EP for a couple of reasons:
1. Protected by the 14th Amendment: The Court concluded that the EP Clause was intended to cover any person physically within a state’s borders, regardless of the legality of his presence.
2. Intermediate Scrutiny Applied: The Court applied middle level scrutiny b/c the children weren’t a suspect class [entry into the class was a voluntary]. They stated that a mere rationality review was insufficient b/c although their adult parents’ actions were voluntary, the children’s actions were not. The Court reasserted its position in Rodriguez that education is not a fundamental right.

V. Separation of Powers: The Powers if the President, Congress, and the Court
Background [PolySci-101]:
· The US Constitution establishes a federal government made up of 3 branches – the legislative, the executive, & the judiciary.
· In theory, each branch can only act pursuant to some Constitutionally enumerated/granted power. These powers are broken down and found within Articles I, II, & III respectively.
· The issue in any separation of powers dilemma is whether a particular branch is acting pursuant or consistent w/a power derived from the Constitution; and further, whether a branches actions encroach on the authority of another branch.
· Although each branch of the federal government derives its authority from a specific article of the Constitution, nevertheless the Framers intended to create some overlap among the branches. It is in this gray area [the overlap] that the issue the Court is deliberating on is generally found in a separation of powers problem.
· It is fair to say that the 3 branches have evolved into entities that the Framers did not foresee or intend:
1. The office of the President [and the Executive branch in general]: was designed to be weak. In creating the American government, the Framers were trying to remove themselves of the chances of another British monarchy. Therefore, they intentionally established a strong legislative branch [which was non-existent in England] as a “check” on a potentially strong president. Although there are times [i.e., Clinton’s impeachment] where the American presidency’s constitutional vulnerability becomes apparent, in reality the modern American president is THE figure-head both domestically and abroad. So the Framers weren’t entirely successful in meeting their intent.
2. The Legislature: [see the above description of the President] in addition to what has already been said, another way that the Framers’ tried to “check” the abuses of a President was in enumerating all domestic powers to a federal legislature. While the president has very little domestic powers, the legislature is given almost supreme control of domestic matters.
3. The Judiciary: After Marbury, the Court’s strength and potential strength became apparent. Although judicial review and the like were not constitutionally granted, any other potential abuses by the judiciary have been avoided.
· Separation of Powers: this area of constitutional law is relatively new [circa Vietnam/Watergate, but don’t forget the Steel Seizure Case] and as a result, the Court’s decisions are hard to characterize. The general powers of the Executive and Legislative Branches are:

The Executive Branch:
1. Ratify Treaties
Notice the overlap between the branches. The Framers intended this overlap so that neither branch could exert too much authority. Commander-in-Chief
3. Faithfully Execute the Laws
4. Appointing & Removing Ambassadors
The Legislative Branch:
1. Taxing/Spending/Commerce
2. Right to Declare War
3. Raise & Support Armies

Concept (a):
· The President’s Inherent Domestic Powers [The Conflict Between Executive Authority & Legislative Powers]: There are few powers which are explicitly granted by the Constitution to the President. These are enumerated in Article II, § 2 and deal mostly with the President’s powers in foreign affairs. With so few enumerated powers, many of the president’s powers are implied. What is clear is that the President can’t make laws, he can only carry them out. As a result, his only domestic power is the power of political persuasion. There is ONE exception….
Exception: the President can act domestically in a life or country threatening situation to protect the government [Dodd said: impending Civil War or bombers overhead – heh, heh, cackle, cackle]
It is the existence of this exception that gives rise to “separation of powers” problems b/c, how extreme/impending a national disaster must there be before he can act?

Concept (b):
· Appointment & Removal of the Executive Personnel [including impeachment]
· The Appointment & Removal Clauses: Article II, §2 -- The President, not Congress, is given the power to appoint federal officers. Therefore, the Congress itself may not make any appointments of federal officials.
· Privileges & Immunities of the President: prior to Nixon, it was thought that the President was immune from Service of Process b/c the Court had no power over a sitting President.
· Impeachment: Article II, § 4 – sets forth that the President…shall be removed from office for treason, bribery, and other high crimes and misdemeanors.

Concept (c) [No Cases]
· The President’s Foreign Affairs Powers
· Use of Military Forces

Application (a)
1. president’s lack of domestic authority®Where the President acts in contradiction to the express or implied will of Congress, his act will be found in violation of the separation of powers -- The Steel Seizure Case (1952): During the Korean War, a dispute arose between the steel companies and their employees over terms and conditions for the new collective bargaining agreements. The steel workers gave notice of a nation-wide strike and the Truman, believing that a national work stoppage would immediately jeopardize our national defense, issued an Executive Order directing the Secretary of Commerce to take possession of the steel mills.
· Arguments:
1. President: He felt that he was acting pursuant to (1) his commander-in-chief powers and that the strike interfered w/his ability to carry out that function, (2) theater of war theory [the production of steel is part of the staging area for the war, and (3) his power to act stems from an aggregation of all his powers.
2. Congress: They felt that in issuing an Executive Order, that the President was infringing upon a function exclusively reserved to the legislature.
· Court: the Court struck down the seizure order, concluding that it was an unconstitutional exercise of the lawmaking authority reserved to Congress.
· Majority: [Black] Because the President’s seizure order came w/o the consent of Congress, it was a clear usurpation of congressional lawmaking power. Further the taking of private property in order to keep labor disputes from stopping production of war material was too far removed from the actual “theater of war”.
· Concurring:
1. J. Frankflirter: THE GLOSS THEORY – The President’s powers are not limited to those listed in the Constitution. Tradition and practice have added a gloss to those powers. Thus, when the President engages in a series of unconstitutional acts, if Congress doesn’t object the President gains those powers.
2. J. Jackson: THREE CATEGORY APPROACH – the president has only two types of powers, inherent and explicit. Jackson’s 3-category approach:
a) Where the President acts pursuant to express or implied authorization of Congress, in which case his authority is maximum;
b) Where the President act in the absence of either a congressional grant or denial of authority, in which case “there is a zone of twilight in which he and Congress may have concurrent authority, or in which its distribution is uncertain”; and
c) Where the President acts in contradiction to the express or implied will of Congress; in this case, his power is “at its lowest ebb.” Jackson placed Truman’s actions w/n this category and, therefore, found them to be unconstitutional.

2. a president may be found to have acted w/n the scope of his authority where there is implied acquiescence by congress -- The Iranian Asset Case (1981): As part of the settlement of the hostage situation [Iran was holding US citizens hostage], President Carter took a number of actions affecting the claims of American creditors against Iran. Carter suspended all contractual claims against Iran then pending in American courts. The Court upheld Carter’s actions by finding that the claims suspension was w/n the President’s authority. The Court reasoned that although Congress had never explicitly delegated to the President the power to suspend such claims, it had implicitly authorized the practice by a long history of acquiescing in similar presidential conduct [Gloss Theory]. For instance, Congress had implicitly approved the use of executive agreements b/n the President and foreign powers to settle claims.
· Prof: Here we see the concurrences of the Steel Seizure Case playing into the Court’s decision. The Court first uses Black’s analysis to say that the International Emergency Economic Powers Act expressly granted the President the ability to nullify attachments thus this is a Type-1 situation and “is supported by the strongest presumption and the widest latitude of judicial interpretation.” They also used the Gloss Theory to say that Congress had acquiesced to the President’s right to suspend claims in the past.
President’s veto power…
3. president’s lack of domestic authority®any act that gives the president the authority to veto “specific” provisions of a bill while accepting the rest of the provisions violates the presentment clause of the constitution – Clinton v. NY (1998):
· The Line Item Veto Act: gave the President the power to “cancel” any of several types of provisions contained in new statutes enacted by Congress, including any “item of new direct spending” and nay “limited tax benefits.” The Act allowed the President to sign an entire bill [containing multiple provisions] into law, and then to “cancel” any individual spending or limited-tax-benefit item he wished, provided that he did so w/n 5 days after enactment. At that point, the only way Congress could restore the vetoed item was re-enact it as a separate “disapproval bill” which, again, the president could veto.
· Facts: Clinton vetoed 2 budget provisions. The city of NY challenged the vetoes, claiming them unconstitutional as violative of separation of powers [the president was performing a legislative function].
· The Court:
· Majority: [Stevens] The Court found that the Line Item Veto Act violated the “Presentment Clause,” Article I, § 7. The P-Clause provides that after a bill has passed both houses of Congress, but before it becomes a law, it must be presented to the president; if he approves it, he “shall sign it, but if not, he shall return it, w/objections to that house from which it originated.” This is the president’s veto power. Stevens held the Act to violated this clause b/c a line-item subverts this “presentment” process.
· Prof: This is clearly unconstitutional b/c it violates the essence of our system of government which involves a distinct process in which a bill gets passed.
The legislative veto…
4. congressional encroachments on presidential power®the legislative veto® all legislative vetoes are unconstitutional b/c they violate the presentment and bicameral clauses of the constitution -- INS v. Chadha (1983):
· The Legislative Veto: a device that enables Congress to monitor actions by the executive branch, including federal administrative agencies. Typically, such a legislative veto provision is included as part of a congressional statute delegating certain powers to federal agencies. If, after an agency takes a certain action [usually issuance of a regulation], Congress disagrees, the veto provision in the original bill allows one or both houses to cancel that administrative action by means of a resolution. The resolution is not presented to the President [as a statute must be pursuant to the “Presentment Clause”], and he does not receive the opportunity to veto it.
· Facts: Article I, § 8 of the Constitution gives Congress the right to establish rules of naturalization and immigration. Congress has always possessed the power to allow an alien, who would otherwise be deportable under existing immigration rules, to remain in the country through the passage of “private bills” which is legislation directed at and for the protection of a particular group of aliens. In an effort to decrease its load of “private bills”, Congress delegate to the Attorney General, in the Immigration and Nationality Act, the authority to suspend deportation of aliens in certain situations. However, Congress retained a legislative veto over each decision by the AG suspending deportation. P was one of several aliens as to whom the House of Representatives used its veto power to reverse the AG’s suspension of deportation.
· Majority: [Burger] the Court held the legislative veto to be unconstitutional because it violated the requirement that all statutes must satisfy two constitutional requirements:
1. Presentment – all legislation must be presented to the president prior to being enacted.
2. Bicameralism – no law can take effect w/o approval by both the House and Senate [BI (2) – Cameral (sides)].
In the case of a legislative veto, both principles, essential to US Democracy, are lacking b/c the President is by-passed and only the House [and not the Senate] are required to vote on it.
· Prof: Congress has failed to adhere to the rule of this case b/c they still pass laws containing legislative vetoes.

Application (b) [Appointment & Removal and Privileges & Immunities]
1. appointment & removal®an act in which gives legislative personnel the authority to perform a high level executive function will violate the a&r clauses of the COnstitution -- Bowshar v. Synar (1986): the Gramm-Rudman-Hollings Act established a maximum annual permissible deficit designed to reduce the federal deficit to 0 by 1991. A part of the Act allowed the Comptroller General to exercise independent judgement in evaluating the estimates submitted to him and report his conclusions to the President who was obligated, under the Act, to comply. The separation of powers issue centered around the fact that the Comptroller General was considered a branch of the legislature and he was removable by a joint act of Congress. The Court held the Act violated separation of powers because it violated the “appointment” and “removal” power in the Constitution. The Court reasoned (1) that the nature of the activities performed by the CG were high level executive functions but he was considered a legislative function, and (2) that he was not appointed under the Constitution [he was recommended by the President, approved by Congress, and removable by the President].
2. appointment & removal®Morrison v. Olson (1988): a 1978 Act authorized the appointment of an independent counsel [IC] to investigate and, if appropriate, prosecute certain high ranking government officials for violations of federal criminal laws. The Act required the AG, upon receipt of information that she considered “sufficient grounds” to investigate, to conduct a preliminary investigation and report to the Special Division of the US Ct. of Appeals who were to appoint the IC. The IC is removable by the AG only by a showing of good-cause.
· Majority: the Court upheld the Act because they held that it didn’t violate the removal provisions of the Constitution. Because the AG could terminate the IC for “good cause” the Executive Branch retains ample authority to assure that the counsel is competently performing his statutory responsibilities.
· Dissent: [Scalia – Dodd agrees] separation of powers requires that the President maintain complete control over the investigation and prosecution of violations of law. Since even by the majority’s reasoning the President’s control over the special prosecutor was curtailed, the Act was clearly a violation of the constitutionally-required separation of pwers.
3. privileges & immunities®a president cannot seek shelter in the p&I clause if the privilege and Immunity is outweighed by the need todevelop all relevant facts in a criminal trial -- Nixon Tapes Case: a federal grand jury indicted 7 Nixon aides on charges of conspiracy to obstruct justice and other Watergate-related activities. The President was named an unindicted co-conspirator. The federal trial court issued a subpoena to the President requiring him to produce various tapes and documents relating to certain meetings involving the President; the President refused to produce the tapes in their entirety. The trial court rejected the President’s claim of absolute immunity, and the matter was heard by the Court. In rejecting Nixon’s argument, the Court stated that (1) the President starts with a presumptive privilege [i.e., his documents], and (2) weigh the purposes of the documents sought v. the rights of the criminal defendant. In this case, the purpose for which the document was to be obtained substantially outweighed Nixon’s rights.
4. privileges & immunities®there is no immunity for acts that the president takes that are completely unrelated to the carrying out of his job -- Clinton v. Jones (1997): a private damages suit by Jones against President Clinton, filed while he was in office. Jones alleged that Clinton, as Governor of Arkansas, made illegal sexual advances. Clinton argued “temporary immunity” to last while he was in office. The Court unanimously rejected his claim, reasoning that privileges and immunities did not apply to the President’s unofficial acts. Therefore, there was no policy reason for allowing even temporary immunity for unofficial acts.

VI. Considerations Concerning the Adjudication of Cases Before the Supreme Court
Concept (a): Justiciability [Standing] Standing is an automatic issue.
· Justiciability – A doctrine evolved by the court to determine whether a case should be heard. It has seven elements:
The requirement of adversity
The court will not issue advisory opinions
The court will not hear a hypothetical case
Political Question Doctrine
Standing [The most important part]

· Standing – [Defn] A party’s right to make a legal claim or seek judicial enforcement of a duty or right. To have standing in federal court, a P must show (1) that the challenged conduct has caused him or her injury in fact and (2) that the interest sought to be protected is within the zone of interests meant to be regulated by the statutory or constitutional guarantee in question. For standing to be given, two things must be present:
Constitutionally Required – This is the constitutional requirement that the issue in front the court must be a “case or controversy” [Art III § 2]. This aspect is unchangeable by Congress.
Prudential Aspect – This is the Congressional requirement that Congress has, by way of statute, “given standing” to an individual. This requirement aids the court structurally in seeing the more concrete issues. Hence, the requirement makes for a better ruling because the cases are structured in a better manner.
Standing is further divided into two subtopics:
a) Taxpayer Standing – A taxpayer’s challenge to an allegedly unfair or unjust expenditure (governed by the spending power). Generally, this challenge comes as a result of the fact that they do not like the expenditure rather than the fact that they have an actual injury. If they had an actual injury, then they would be suing under ordinary standing. As a limited doctrine, taxpayer standing has two rules:
1. You must be challenging a congressional exercise of power under the Taxing/Spending Power [See Valley Forge Case]. If this requirement is not met, then the court analyzes whether or not the individual has ordinary standing.
2. You must allege that the spending exceeds some specific Constitutional limitation on the Taxing/Spending power.
· Prof: The court, in early times, liked taxpayer standing only when it accompanied an Establishment Clause challenge. [See Flast v. Cohen; The Melon Case]
b) Ordinary Standing – “Injury Standing” – Standing other then taxpayer standing in which a party has an “injury in fact” (distinct and palpable injury), and a showing that the injury is within the zone of the Constitution or statute.
· Prof: There is no such thing as “third party standing,” i.e. those who bring an action believing then that they have standing based on the injury of another. [See Warth]

Application (a):
1. HYPO [Citizen Standing] – Should we have a law that allows citizens to challenge governmental actions or laws? No, we do not have citizen standing. Hence, you cannot bring a challenge based solely on personal views or emotions. This is disallowed because citizen standing (i.e. moral complaints) was not designed to be a part of our legal system.
2. Ordinary Standing®Standing is not limited only to those “significantly” affected by agency action: US v. Studens Challenging Regulatory Agency Procedures (SCRAP) (1973) – A group of law students were concerned with the impact of federal laws on the environment. Specifically, SCRAP protested the failure of Interstate Commerce Commission to suspend a 2.5% surcharge on nearly all freight rates. SCRAP claimed standing because each of its members suffered economic, recreational, and aesthetic harm caused by the adverse environmental impact of the freight structure. They claimed that their “injury in fact” was that the increased freight rates adversely affected their use of the forests, rivers, streams, and so on. The court allowed standing stating that “we cannot say on the pleadings that the appellees could not prove them squarely among those persons injured in fact by the Commission’s action.”
· Prof: This case appeared initially to suggest that the possibility of obtaining standing in order to challenge a law would not be difficult. Over time, the requirements grew more stringent and this case became the exception.
3. Ordinary Standing®P’s who fail to sufficiently allege that the challenged practices harmed them and that they would personally benefit in a tangible way of the Court were to intervene do not have standing: Warth v. Seldon (1975) – People of low/moderate income challenged zoning laws on the basis that they impacted various racial groups adversely. The court held that no one had standing to challenge these laws because no one had a “distinct and palpable injury,” which Article III requires. Specifically, the court reasoned that without an injury, all a party has is a grievance and “unardorned speculation of harm is not enough to create standing.” The court, in the opinion, also disallowed the concepts of “third party standing” and standing in someone’s shoes who actually does have standing.
· Prof: Over time, the court has emphasized that the requirements of standing are extremely difficult to meet. Hence, a case with questionable standing will likely not receive standing. The exception to this is the SCRAP Case.
4. Taxpayer Standing®When the source of a complaint for taxpayer standing is not founded in a challenge to the use of the taxing and spending clause (Prong 1), there can be no taxpayer standing: Valley Forge Christian College v. Americans United for Separation of Church and State, Inc. (1982) – An old and unoccupied military hospital was situated on unused property. As what seemed to be a generous donation, the military sold the property to the Valley Forge Christian College for $1. The Americans United challenged this transfer as an unlawful expenditure, claiming that such a transfer violated the establishment clause because the government is subsidizing religion. The 3rd Circuit allowed standing but the Supreme Court reversed, holding that there can be no taxpayer standing because Congress was not acting pursuant to Art. I § 8 (The Taxing Power). Rather, the court reasoned, Congress was acting under the Property Clause. Hence, prong 1 of the Taxpayer standing test is not met. As a brief note, the court also stated that there could be no ordinary standing because there is no actual injury.
· Prof: Because of this case, it appeared that no one could challenge this expenditure, which did seem like the government subsidizing religion.
5. HYPO®Pursuant to ordinary standing, could the homeowners of the land where the hospital was in Valley Forge challenge the transfer? No. In fact, property values might even go up as a result of having a small college there. In any case, it is not clear that they would go down so there would be no basis for injury.
· Prof: It is difficult to challenge many laws because of the rigid standards of standing. Hence, we may have laws that are wrong, but people have no standing so they cannot be challenged. It is interesting to note that Congressmen are often giving standing for the purpose of challenging such laws (ex. Balanced Budget Act).

Concept (b): [State Action]
· Generally: The Bill of Rights, 5th, and 14th Amendments are used only prohibit certain federal, state, and local governments. Hence, when a state acts, that state action is subject to limitation by the Bill of Rights, 5th, and 14th Amendments. But, what is state action?
· State Action: Anything done by a government; especially in constitutional law, an intrusion on a person’s rights (esp. civil rights) either by a governmental entity or by a private requirement that can be enforced only by governmental action (such as a racially restrictive covenant, which requires judicial action for enforcement). Now, when can an individual be limited by the Bill of Rights, 5th, and 14th Amendments via state action? When a private person is so tied to the activity of the government, then there is state action. There are two specific theories:
Public Function – When someone performs a “public function” and they are a private actor or entity. Courts have defined the term “public function” as an “activity traditionally and exclusively reserved to the state.” Courts, however, have never interpreted this definition.
2. Nexus – A private actor is so tied to, intermingled with, or benefited by the state such that there is a sufficient nexus to bind them through the 14th Amendment. There is no clear test as to how much connection or relation is necessary in order for the private actor to be deemed to be a public one. Therefore, “nexus” situations are evaluated on a case by case basis. Although there is no concise test, courts have considered two situations where, if present, the court is more likely to find state action:
a) A private wrongdoer has been encouraged or commanded to do the complained of act: For example, a private restaurant may be segregated by race as commanded by state law. This is state action because the restaurant is commanded to obey state law.
b) There is so much interactivity between the private person and the government based on their contacts that the private actor is deemed to be a government actor.
· Prof: Don’t assume state action because the court is very reserved. Hence if a business receives government funding and discriminates, it is likely that such discrimination will not constitute state action.

1. Public Function®To determine the existence of a public function, the court will “balance the Constitutional rights of the owners of property against those of the people to enjoy freedom of press and religion”: Marsh v. Alabama (1946) – A company owned town was specifically owned by a shipping board. At one point, certain Jehovah’s witnesses were distributing information around the town. As a result, they were arrested and convicted of trespassing. The court held that there was state action, thereby making the Bill of Rights, 5th, and 14th Amendments applicable because despite being owned by a company, the town was run to benefit the public. The court reasoned that running a town is an “activity traditionally and exclusively reserved to the state.” Hence, by performing public function of running a town, the 14th Amendment applies to limit the town’s ability to arbitrarily limit 1st Amendment freedoms.
· Prof: After this case, people thought that the “public function” theory had limitless possibilities to limit private actors. But, it did not end up working out that way. For example, in a series of recent cases, it was held that there was no state action for private shopping centers, despite the fact that they cater to the public. As a result, shopping centers can legally kick distributors of material out or loiterers. Hence, it seems that the public function theory is largely held to the facts of Marsh.
2. Nexus Theory [Private wrongdoer commanded by federal government]®Because of the EP clause, courts may not use injunctions to enforce racially restrictive covenants in real property: Shelley v. Kramer (1948) – Frequently, when people that sold or conveyed land, they included covenants in the deed that ran with the land and required that the land never by sold to African Americans. In this case, certain homeowners with such covenants in their deed wanted to sell their land to African Americans and did so despite the covenants. Subsequently, their surrounding neighbors, relying on the covenants, brought suit seeking an injunction. In state court, the court enforced the covenants. The Supreme Court reversed and found state action by holding that judicial action of something discriminatory is equivalent to state action. In their reasoning, the court stated more broadly that judicial action equals state action. And, by ruling in the manner in which they did, the state encouraged the wrongdoing.
· Prof: This case’s holding might be limited to real property, i.e. a willing seller or buyer that is subject to private covenants.
3. Nexus Theory [Interactivity between the private person and federal government]®State action is present when a private establishment is in a “symbiotic” relationship with a governmental entity: Burton v. Wilmington Parking Authority (1961) – A public parking garage in Wilmington run by the government contained a private coffee shop within it. The shop had entrances both from the garage and from the street, and refused to serve African Americans. The court held that the actions by the private coffee shop constituted state action because the coffee shop, as a private entity, was intertwined with the government. The court reasoned that the garage was performing a public function and, in doing so, they collected rent from the coffee shop, which made the coffee shop sufficiently intertwined with the state so as to find state action.
· Prof: Again this theory appeared to have limitless possibilities. But, again, this belief was proven incorrect in the following cases.
4. Nexus Theory®State action is not present there is a lack of official aid or encouragement by the government to a private entity:
a) Moose Lodge Case (1972) – Within The Moose Lodge, a private club with a state issued liquor license, the club refused to serve liquor to African Americans. The court found no state action by reasoning that a state liquor license is insufficient to make the 14th Amendment applicable to the club.
· Prof: Although there is no state action, many of these racial scenarios are covered by federal statute.
b) Rendall-Baker v. Kohn (MA) – A private school in Brookline gave special education services and received 98% of their funding from federal, state, and local governments. While performing such services, the challengers alleged that the discharge of certain employees constituted state action. The court found no state action, holding that the relationship between a private school and its teachers is not changed because the state pays the tuition of most students. Specifically, the rout stated that “the school is not fundamentally different from many private corporations whose business depends primarily on contracts to build roads, bridges, dams, ships, or submarines for the government. Acts of such private contracts do not become the acts of the government by reason of their significant or even total engagement in performing public contracts.” Hence, because state regulation or the government funding programs did not influence the school’s employment practices, the discharge of the teachers did not involve state action.
· Prof: In these borderline cases, the state action doctrine is extremely limited and the cases that have found state action for private actors are generally held to their facts.


Post a Comment

<< Home