Constitutional Law Outline

Constitutional Law Outline For each category: 1. History 2. Era – What signifies this? 3. Rule 4. Major Cases 5. Squib Case Table 6. Conclusions – What affect?

Separation of Powers Supreme Court Authority: Judicial Review Federal: Legislation and Executive Acts State Court Decisions Limits of Adjudication Justiciability (Political Questions) Case Requirements Standing Advisory Opinions Ripeness and Mootness

Judicial Review Concept of JR grows out of the Constitution, and was intended by the FFs (Federalist 78 – neither purse nor sword) . The Constitution is a superior document – it takes a constitutional amendment to trump a SC decision o 11th – gave states immunity from some cases in federal courts o 14th – gave citizenship to blacks o 16th – allowed a federal income tax o 26th – lowered voting age . Without the SC, the Constitution is a document without meaning – no limit on Legislature

Federal Marbury v. Madison (1803) . CJ Marshall created the idea of JR by stating: o The Constitution is an ironclad, superior document – trumps all other legislation o The duty of the Sup. Ct. is to uphold the Constitution, not to follow Congress . SC must solve conflicts of law . Operates under checks and balances . Marshall denied a writ of mandamus in this case because neither Article III nor § 13 of the Judiciary Act allow the SC original jurisdiction in this case (only appellate)

1 Constitutional Law Outline Martin v. Hunter’s Lessee (1816) . SC established JR over state actions and court decisions – there must be one voice . Issue of whether federal law or state law is supreme – Court says that federal law is o Rejected the constitutional idea that federal government cannot act upon the sovereign states (also rejected in McCulloch)

Case Issue Rule Authority Outcome Marbury v. Whether the SC has the (1) the Constitution Checks and Established Madison authority to declare the trumps all else Balances, JR over (1803) Constitution superior to (2) the SC has the duty Supremacy federal congressional of protecting the Clause actions legislation and superiority of the executive acts Constitution Martin v. Whether the SC has JR The SC has the final Article III Established Hunter’s authority over state authority in deciding all (appellate JR over Lessee actions issues – it is the issue, power not state (1816) not the court that gives limited to a actions the SC jurisdiction particular jurisdiction) Cohens v. Whether federal or The SC has the Supremacy Established Virginia crime law reigns supremacy to provide JR Clause JR over all (1821) supreme in criminal in any type of case state cases actions Cooper v. Whether states have to SC decisions are Supremacy SC Aaron follow SC decisions supreme to all law – all Clause decisions (1958) (school segregation) must follow as law Dickerson v. Whether Congress can NO – Congress cannot Constitution SC US overturn SC decisions overturn a SC decision decisions (2000) without a constitutional without violating the can only be amendment Constitution because the overruled decisions set up by the SC constitutionality

Limits to Adjudication

Justiciability WHAT can be heard before a court

Political Question Doctrine . The SC cannot make decisions on political issues . Any question arising out of the Guaranty Clause (Article IV § 4: all citizens are guaranteed access to a republican government) is non-justiciable because it is inherently political o Political questions arise from relationship between branches of the federal

2 Constitutional Law Outline government, not between federal and state governments o It is the job of Congress, not the SC, to determine the path of Republican government Baker v. Carr (1962) . A Tennessee redistricting claim brought under the EPC (current plan blocks access to the political process) examined by SC and found to be justiciable (remand) . Questions are political if: 1. the Constitution grants power over this issue to another branch 2. another branch would be more competent to redress this issue 3. there is a policy decision standing between the issue and a decision analysis (courts cannot make policy decisions) 4. a decision would embarrass/disrespect another branch 5. another branch already made a decision on this issue, and changing that decision would result in chaos 6. there is likely to be a different answer from another branch (avoid embarrassment of duplicitous decisions) . Frankfurter’s dissent argues that the Guaranty Clause has no place in court – legislation is all about compromise, not judicial band-aids Nixon v. United States (1993) . Are issues of impeachment (of a federal judge) justiciable? – NO . There is no Article I evidence (§ 3, cl. 6) that JR was intended in legislative self-regulation o There are already two trials involved (criminal + impeachment) o Impeachment is the only check on the judiciary by the legislature (can’t abolish it) o Impeachment is a political process What is non-justiciable? . Impeachment (Nixon v. US) . Constitutional amendment questions (Coleman v. Miller) . Presidential elections o Bush v. Gore – court intervention only to meet 12th amendment deadline

Advisory Opinions The Court may not issue advisory opinions for another branch – they have their own lawyers Advisory opinions would fall outside the role of the SC envisioned in Article III

Case Issue Rule Authority Outcome Baker v. Carr Whether political If none of the political Article III SC found for (1962) redistricting EPC questions are answered Пs in EPC claims are justiciable affirmatively, then issue claim – is justiciable remanded Luther v. Where is an issue non- 1. where a decision will GC Established Borden justiciable? = chaos Article III ways to find (1849) 2. where the state a case non- doesn’t recognize court justiciable

3 Constitutional Law Outline 3. where the GC is the only constitutional authority on this issue Goldwater v. Is treaty abrogation NO – because Constitution No treaties in Carter (1979) justiciable? Constitution is silent on (grants court court’s authority in Exec. and foreign policy Leg. power) Powell v. Does the SC have the YES – because the Article I SC is the McCormack authority to review dispute requires a constitutional (1969) congressional disputes constitutional interpreter between Art. I § 2 and interpretation (SC’s § 5 (unseating job) members)? Nixon v. Are matters of judicial NO – this is a purely Article I Impeachment United States impeachments political question is non- (1993) justiciable? justiciable

Standing WHO can be heard before a court

Constitutional Requirements v. Prudential Bans Constitutional: 1. Claimant must have suffered personal injury/threat as a result of the defendant’s action 2. Claimant must be able to reasonably trace his injury to the defendant’s conduct 3. Claimant must be able to seek adequate judicial redress Prudential: 1. Claimant must present his own rights and interests (no third party claims) 2. Claimant cannot bring wide public grievances 3. Claimant’s complaint must fall within the court’s jurisdiction

Case Issue Rule Authority Outcome Warth v. Can a group bring suit NO – standing Constitutional NO standing Seldin for the potential requirements ban third and for (1975) exclusion danger of party claims and prudential generalized zoning ordinances? generalized grievances limits to claims standing Lujan v. Can a group bring a NO – (1) there is no Constitutional NO standing Defenders of general claim for specific, personal and for Wildlife harm to mankind and injury, (2) there is no prudential impersonal (1992) animals for decreased adequate remedy limits to claims species protection sought standing funding abroad? Friends of the Earth v. Laidlaw Environmental Services (2000): people deterred from using a

4 Constitutional Law Outline polluted lake had standing to sue even though there was no real harm Allen v. Wright (1984): black mother denied standing to sue IRS for failing to provide tax exemptions to a private school from which she was discriminated Craig v. Boren (1976): third party beer retailer allowed age discrimination claim because Court found that buyer and seller had same economic interests in case Frothingham v. Mellon (1923): individual tax payers lack standing when suing government for policies not directly affecting them because harm is too minute Flast v. Cohen (1968): exception to Frothingham noted for Establishment Clause claims limiting spending to religious institutions United States v. Richardson (1974): Frothingham affirmed in claim requesting disclosure of CIA operatives Schlesinger v. Reservists Committee to Stop the War (1974): members of the reserve army lack standing to challenge congressional involvement in reserves (if they can’t sue – who can???) Elk Grove Unified School District v. Newdow (2004): father denied standing to challenge use of “God” in Pledge of Allegiance because his family status was questioned Raines v. Byrd (1997): Court denied congressional challenge to line item veto because Congress has its own redress for Executive Branch Department of Commerce v. United States House of Representatives (1999): Congress as a whole cannot bring suit against an agency for loss of seats in census – only individuals and counties who may lose specific seats can

Ripeness and Mootness WHEN an issue can be heard by a court

Ripeness . A court can deny standing if a case is brought too soon . United Public Workers v. Mitchell: workers only said that they would violate a law Mootness . A court will not hear a case whose time has passed because facts/laws have changed . Exception: Roe v. Wade (court battles last longer than pregnancies)

Federalism Federal v. State Powers Separation of Powers Executive Privilege

Federal v. State Powers . Federalist 51 – Madison gives a good impression of federalism as double security . Federalist 25 – Hamilton says that national defense is good for states because they are unlikely to succeed on their own . Federalist 45 – Madison says that states retain the most power . Separation:

5 Constitutional Law Outline o Art. I and II enumerate federal powers . Art. I, § 10 bars state acts that interfere with enumerated powers o 10th amendment leaves everything else to the states . Articles of Confederation restricted federal power too much  problematic . Federalist 44 – Madison discusses the use and need for the N&PC – necessary to proper legislative functioning

McCulloch v. Maryland (1819) . Can a state question the validity of a federal law (establishing a national bank)? – NO . Constitution is a superior document because the people ratified it . N&P Clause allows federal government to do anything that is necessary and proper in the function of a government  implied powers (10th amendment) o Use a means-ends test to determine if there is an implied power o Congress needed to establish a national bank o There are degrees of necessity – FFs intended N&P to grant powers, not limitations . Use the “fair” construction of constitutional words . Taxing the bank is illegal because it is counter-productive to the constitutional intent (supreme power)  states can only tax individuals . Rule: States cannot impede, retard, burden or seek to control the legitimate actions of the US government

Separation of Powers

Separation in General Touby v. United States (1991): Congress can seek assistance from the Executive States v. Curtiss-Wright Export Co. (1936): Congress should not limit the Executive because the President is the representative of the nation

Specific Actions Steel Seizure Case(1952) . Executive branch tried to stop a steel strike during the Korean War (in interest of defense) – NO . Labor disputes are a legislative problem (President is the law enforcer, not law maker) . Concurrence: president undertakes a duty to protect Constitution – this is a clear violation . Dissent: the President should be empowered to avert disaster Dames & Moore v. Reagan (1981) . Can Reagan return Iranian assets in violation of Carter’s executive precedent? – YES . The President may act under his congressionally-given powers (ability to make executive agreements) INS v. Chandha (1983) . Can Congress make laws that only require one house to invalidate an executive action? – NO

6 Constitutional Law Outline . Congress must follow the structure in the Constitution (defer to FF intent) – bicameral legislature  BOTH houses must agree Line Item Veto Clinton v. New York (1998) . SC invalidates use of line item veto – President cannot act as a legislature (absence of power in Constitution = no power) . Check already exists in the veto – that is the option available to the Executive Impeachment . Presidents can be impeached for “high crimes and misdemeanors”  bribery, treason and crimes against the public trust

Executive Privilege

The Executive Presidential powers are vastly extended beyond FF intent . United States v. Pink (1942): executive agreements will be treated as treaties because they have “similar dignity”

Privilege In General, the SC recognizes a “qualified presumptive privilege” for the executive – Nixon and Clinton act as the limits to this power (it is NOT absolute) Case Law: Mississippi v. Johnson (1867): President (before Nixon) exempt from judicial proceedings Sealed Case (1998): Secret Service does not have immunity Nixon v. Fitzgerald (1982): Presidents have complete civil immunity (no liability for official acts) United States v. Nixon (1974) . Can the President invoke executive privilege to avoid a federal subpoena? – NO . Nixon argues that Article II allows privilege – but SC holds that there must be a separation of powers . Only diplomatic/military secrets have absolute immunity BUT court will use in camera review and act respectfully and responsibly – strike a balance between judicial need and the ability of the President to do his job Clinton v. Jones (1997) . Is the President immune for acts committed before he took office? – NO . Clinton’s request to stay proceeding was rejected – acts occurred before term = no immunity (FF: the President’s character has no immunity), and it is unlikely that a trial will interfere with Clinton’s ability to do his job

Commerce Clause

A Growing Need/The Conservative Era: 1824-1936

7 Constitutional Law Outline CC added to Constitution as a response to trade problems under Articles of Confederation . Animosity between states necessitated congressional oversight and regulation Gibbons v. Ogden (1824): Commerce = traffic, navigation, trade . Commerce is internal and external, state and national issue . Must be completely inside state to be intrastate . Unlimited congressional power to regulate interstate commerce  broad powers Sugar Trust Case (1895): Court allowed a sugar monopoly (98% control) under the notion that Congress cannot regulate a manufacturing monopoly because manufacture is not commerce (does not fall under CC)  slippery slope argument given for allowing manufacture regulation Addyston Pipe & Steel Co. v. United States (1899): Court extended CC to cover prices (pricing = commerce) Shreveport Rail Case (1914): Court upheld an ICC order allowing regulation of intrastate RR pricing when it interfered with interstate RR functioning . Congress reigns when there is a dispute between state and federal control Swift & Co. v. United States (1905): Court upheld price-fixing injunction for meat because meat is a part of the stream of commerce Stafford v. Wallace (1922): Congress can regulate local stockyards as part of the stream of commerce Late 19th century CC use to “police” states . Gambling, prostitution, theft . Congressional regulations of morality . Regulations that prevent interstate movement of “immoral” goods The Lottery Case (1903): Court upheld the Lottery Act prohibition of transportation of lottery tickets over state lines (tickets = commerce, states have a congressionally-protected right to regulate morality within their borders) Hipolite Egg v. United States (1911): Court upheld confiscation of “deleterious” eggs, even though they were already in intrastate commerce stream mingling with local products doesn’t take away a product’s origin Hoke v. United States (1913): Court upheld Mann Act prohibiting the interstate transfer of women for immoral purposes Hammer v. Dagenhart (1918): Court invalidated ban on interstate traffic of products of child labor . Use of interstate commerce is not the harmful act (harm is entirely local) o There is no federal jurisdiction under CC o Child labor laws = state jurisdiction . Congress doesn’t have the power to regulate the morals of states . Dissent: If Congress can regulate the direct effects, why not the indirect as well? New Deal programs (win some, lose some) justified under CC because problems are economic RR Retirement Board v. Alton RR Co. (1935): Court invalidated mandatory RR retirement and pension plan under CC – law was not made to regulate interstate commerce under the intentions of the CC

8 Constitutional Law Outline Schechter Poultry Corp. v. United States (1935): Court invalidated federal legislation’s regulation of NY wage and hour requirements  You cannot use federal law to regulate intrastate commerce . No CC justification because NY local practices have no effect on interstate commerce Carter v. Carter Coal Co. (1936): Court invalidated “Coal Act” regulations of hours and wages in coal mines  there is no general welfare provision in the Constitution (esp. not in CC) – labor laws = production, production NOT commerce . Rule: Court must examine whether a product’s affect on interstate commerce is DIRECT (okay to regulate under CC) or INDIRECT (no federal regulation) Court-packing: in 1937 FDR announced his plan to appoint a new justice for every justice over age 70 who had served 10+ years on the bench (up to 15 justices) . Response to Court’s invalidation of ND programs . “Save the Constitution from the Court”

Lowering Limitations/The Liberal Era : 1937-1995 Court utilized RBR to give broad deference to Congress . Extensions to criminal law, civil rights law (13th and 14th amendments) To get CC okay, look for: 1. Jurisdictional hook a. Must demonstrate a connection to interstate commerce 2. Economic activity 3. Findings of Fact a. Can be broad  must be a connection between CC and the actual law 4. RBR a. Can you reasonably link activity prevented to interstate commerce?

NLRB v. Jones & Laughlin Steel Corp. (1937) . NLRB (federal fair labor investigator) brought suit against Jones for intrastate union discrimination (only supposed to investigate industries involved in interstate commerce) . Court says that CC regulates the source of commerce, not the source of injury . Rule: Congress may regulate anything that has a substantial relation to interstate commerce . Court rejects Carter and Schechter as guiding . If a corporation’s reach is national, how can they be exempt from congressional control? . Court found for П, upheld NLRB acts . Dissent: any effect on interstate commerce in this scenario would be indirect and remote  no CC power United States v. Darby (1941) . Lumber manufacturer challenged constitutionality of regulating local hours and wages  Are the hours and wages of producers so closely related to interstate commerce that Congress has jurisdiction under the CC? – YES . Can commerce regulate work that produces goods for interstate commerce? – YES o Congress can regulate anything that may lead to unfair competition o Fear that unfair competition  unfair and unhealthy working conditions

9 Constitutional Law Outline . Although the manufacturer is local, their products cross state lines o Without products to ship and sell, there would be no interstate commerce . Relies on The Lottery Case – congress may regulate any good that may be dangerous to the public health and welfare o Purpose of regulation = promote public health and welfare

New era of cases rely on whether the effect of the product on interstate commerce is enough to get regulation under the CC Wickard v. Filburn (1942): small dairy farmer appealed his conviction for harvesting above his wheat quota  court upholds conviction, even though farmer is local producer and wheat is not sold off his farm because Congress can regulate if an act touches interstate commerce . Wheat quotas instituted in order to raise wheat price on open market and stabilize economy – h farmer must buy what he cannot produce to help the economy . Court sheds direct v. indirect approach to CC jurisprudence o Look instead to “substantial effect on interstate commerce” Maryland v. Wirtz (1968): Court upheld labor act amendments that extended regulation of hours and wages to all employees at corporation affecting interstate commerce (rather than just those employees who affected commerce directly) Hodel v. Virginia Surface Mining & Recl. Ass’n (1981): Court upheld congressional ability to regulate local activities that might have an effect on other states’ pollution levels (only RBR required) Title II of 1964 CRA enacted under CC powers because hotels serve interstate travelers Heart of Atlanta Hotel v. United States (1964): Court upheld Title II under the idea that racial discrimination at hotels in unconstitutional because segregation is a deterrent to interstate travel  commerce threatened Katzenbach v. McClung (1964): Court upheld Title II application to restaurants – there is an effect on interstate commerce because blacks aren’t eating out or traveling (RBR) Perez v. United States (1971): Court upheld federal loan sharking + violence act because crime (especially racketeering) substantially effects interstate commerce o Stewart’s dissent: How is this crime different than any other?

New Limits: 1995-present CC only applicable if action/law meets Lopez standards

United States v. Lopez (1995) . ∆ appeals conviction under federal law for possession of a handgun on school grounds (statute passed under guise of CC but ∆ argues that gun possession is unrelated to interstate commerce) . SC – law is unconstitutional because it is beyond the limits of the CC . CC can be used in three ways: 1. channels of interstate commerce 2. instrumentalities of interstate commerce

10 Constitutional Law Outline 3. activities have a substantial relationship to interstate commerce . Guns at school have nothing to do with commerce – Law invalid (slippery slope)

United States v. Morrison (2000) . SC applies Lopez factors to determine that gender-motivated violence statute does NOT substantially affect commerce . Congress cannot regulate non-economic crimes (new era of jurisprudence) – goes against FF’s intentional deletion of a federal police power . Law enacted under 14th amendment and CC  there is no federal jurisdiction under 14th

The text of the Constitution only grants CC power to commerce between states, with foreign nations, or with Indian tribes

The 10th and 11th amendments act as external limitations on congressional CC powers because they restrict what the federal government can do in regard to states

10th amendment

In General Authorizes states a general police power – Congress can only police through some other power States argue that Congress cannot police states  early cases hinted that this might impede on state autonomy Coyle v. Oklahoma (1911) – invalidated federal law that specified the capital of Oklahoma upon making it a state – ability to name your own capital is an essential state function United States v. California (1936) – CA argued that it should be immune from federal RR safety regulations because it was operating its RR as a sovereign state  Court said that there is no immunity from federal regulation as long as federal government treats public (state) and private (individual) concerns equally New York v. United States (1946) – word of caution said that Congressional treatment of the state may become so harsh that it interferes with the sovereignty of the state

Case Law New York v. United States (1992) . Court invalidated federal waste disposal incentive to states because the federal government cannot compel state action (federal power is only over people) under the 10th amendment o Congress can encourage state action through incentives, but not compel . Government cannot compel action because it = coercion (lowers the accountability of state governments) . Social utility does not override constitutionality Printz v. United States (1997) . Court strikes federal law requiring local police to enforce federal gun control – 10th amendment forbids federal government from compelling local officials to carry out federal programs

11 Constitutional Law Outline . Policed powers granted to the Executive (not Legislature) – maintain separation of powers

Anti-Commandeering Principle Federal statutes cannot commandeer the legislative authority of states Hodel v. Virginia (1982) – three part test (predecessor to NY and Printz tests): . Statute must regulate states as sovereign states . Statute must involve matters that are indisputably matters of the sovereign . State compliance with the regulation cannot impair their ability to carry out their affairs  Court looks for “commandeering language” – language that commandeers the authority of the state  usually comes with spending power (but this can be seen as constitutional when it is treated as an incentive rather than a regulation – New York)

Process Theory Garcia v. San Antonio Metropolitan Transit Authority (1985): The SC can intervene when there is a failure in the political process  It is the Court’s job to ensure that congressional limitations on states are constitutional National League of Cities v. Usery (1976) – Fair Labor Act extended to state governments  Court says that Congress cannot “impermissibly interfere with significant [state] government function”. Court was concerned that requiring certain labor practices in traditional state domain would be an undue invasion of state autonomy . Dissent: advocates judicial restraint . JR should not be the process by which state autonomy is protected  “Process Argument” (aka “Process Theory”): the Court should defer to the process unless someone is treated so unfairly that they can never seek justice under the process

11th amendment

In General 11th amendment provides an external limitation to the national power of the judiciary . Bans diversity jurisdiction when suing a state or foreign nation The 14th amendment supersedes the 11th – so congress can regulate states under the 14th In General: . Citizens can sue state officials under Edelman, the federal government can sue states directly, and citizens can sue cities directly . States can waive sovereignty and allow suits  the federal government can condition aid upon this waiver . You can sue a public official in his private authority (his public authority is immune under the color of the law) Today: . You cannot sue your state in another state (Alden v. Maine, 1999) . State liability is limited

12 Constitutional Law Outline Case Law Hans v. Louisiana (1890): the 11th amendment restricts diversity and federal question jurisdiction Edelman v. Jordan (1974): you can sue a public official under the color of the law, but only for prospective laws (forward-looking)  injunctive relief is only available to disallow future actions Fitzpatrick v. Bitzer (1976): Congress can allow states to be sued directly under § 5 of the 14th amendment (DPC)  Congress can allow states to violate EPC (i.e. AA)

Due Process

Incorporation of Individual Rights Individual Rights are limitations on state power granted under the DPC (5th and 14th amendments) No incorporation pre-Reconstruction amendments Incorporation must be on a case-by-case basis – there is no automatic incorporation

Case Issue Rule Authority Outcome Barron v. Can an individual sue a NO – there is no federal 9th and 10th No Baltimore city for taking his jurisdiction for this case incorporation (1833) property without just because the 9th and 10th of BoR compensation under 5th amendments make it rights onto amendment? very clear that the BoR states only applies to the (pre-14th) federal government Dred Scott Can Congress pass NO – taking away 5th Slave = (1857) laws to end slavery? someone’s property property interferes with DP under DPC of 5th Slaughter- Do the 13th and 14th NO – zoning 14th 14th protects House Cases amendments protect segregation (for health) freed slaves, (1873) butchers from police is a legitimate police not butchers empowered power that the 14th was monopolies? not intended to protect Saenz v. Roe Can a state condition NO – (1) EPC protects 14th – EPC States cannot (1999) welfare benefits on the right to travel, (2) and P&IC condition residency length? P&IC protects the right federally- to state and federal funded aid privileges (welfare in on residency any state) length

13 Constitutional Law Outline

Post-Reconstruction, the SC allowed the 14th to incorporate some of the BoRs onto states: Incorporation: . Powell v. Alabama (1932): DP applies to criminal law . Twining v. New Jersey (1908): rights are incorporated not merely because they are part of BoR, but because they are essential to DP . Palko v. Connecticut (1937): BoR incorporated when right fundamental to the concept of ordered liberty (if neither liberty nor justice would survive without it) . Adamson v. California (1947): SC implements “selective incorporation” in upholding Palko Effects: . Saenz v. Roe (1999): Court invalidated a CA law granting lower welfare benefits to newer state residents (see below) . United States v. Guest (1966): although Constitution does not explicitly grant the right to travel between states, the right is implicit . Crandall v. Nevada (1867): the right to travel within the US is implicit . Edwards v. California (1941): CC implies a right to travel – cites Baldwin v. Seelig to assert that states cannot isolate themselves . Shapiro v. Thompson (1969): precursor to Saenz – states cannot restrict welfare benefits on length of residency under 14th . Dunn v. Blumstein (1972): states cannot restrict voting rights based on length of residency or penalize the right to travel . Memorial Hospital v. Maricopa County (1974): states cannot condition access to emergency medical treatment on length of residency . Sosna v. Iowa (1975): it is okay for a state to require a one-year waiting period to get a divorce because family law is an exclusively state jurisdiction

Privileges and Immunities Clause Slaughter-House: . There is a difference between P&I awarded by states and those awarded by the federal government . States must give the same P&I to travelers as they give to their citizens . States can create their own list of fundamental rights . Federal P&I do not mirror state-given rights – cannot give federal government too much power

Substantive Due Process SDP: economic regulations  privacy issues SDP used to cement fundamental rights when there is no textual support Look to the substantive nature of the laws – is there a substantive liberty interest involved? (does the state have a good enough reason to deny you the right?)

Economic Regulations Lochner antecedents:

14 Constitutional Law Outline Calder v. Bull (1798): Court invalidated probate legislation on the idea that the Constitution exists as a social compact between the people and the legislature – the people make the legislature and it must be governed  this probate law rejects natural justice and reason  unconstitutional Dred Scott v. Sanford (1857): SDP applied to uphold a slave owner’s fundamental right to his property Davidson v. New York (1877): Court’s formal acknowledgment of the complexity of DPC Munn v. Illinois (1877): Court recognized the need and legitimacy of regulation to promote the public good Santa Clara County v. Southern Pac. RR (1886): corporations are people under the 14th  laws apply equally Chicago, M. & St. P. RR Co. v. Minnesota (1890): Court upholds the right to JR of RR pricing Mugler v. Kansas (1887): Court upheld their right to sustain legislation for the public moral good by upholding prohibition statutes Allgeyer v. Louisiana (1897): Court used DPC to invalidate a LA statute that deprived people of freedom to conduct business Lochner v. New York (1905) . NY statute regulating baker hours is unconstitutional – interferes with the right to contract under 14th  inappropriate use of the state’s police power o Men can stand up for themselves – baking is not an especially dangerous profession, so they do not require extra state protection . 14th supplies some fundamental rights – right to contract, right to purchase and sell labor o Rights can only be taken away by a reasonable police power (need to protect public health and welfare) Lochner Era: Muller v. Oregon (1908): female labor laws are okay because women are delicate creatures needing the protection of men (legislators) to produce healthy offspring Bunting v. Oregon (1917): 10-hour workday maximum (plus 3 hour OT with time and a half pay) upheld for all people Coppage v. Kansas (1915): the freedom to contract prohibits employers from banning union membership (unions are necessary to create a negotiation equality) Adair v. United States (1908): no federal “yellow dog” union laws  banned through 5th’s DPC Adkins v. Children’s Hospital (1923): Court banned female minimum wage laws stating that women got enough protection under 19th amendment Williams v. Standard Oil Co. (1929): states can only regulate prices where there is a public interest New State Ice Co. v. Liebmann (1932): state cannot prohibit business entry into the market of non-public companies Weaver v. Palmer Bros. Co. (1926): there is a limit to public health standards – shoddy parts can be used as long as they are sterilized and disclosed on label Nebbia v. United States (1934): SC upheld law fixing the price of milk (promotes public health and welfare through economics)  economic regulation is allowed where the ends require an increased public health standard

15 Constitutional Law Outline . Court should defer to the legislature (RBR) when there is a reasonable use of the police power West Coast Hotel v. Parrish (1937): court upholds minimum wage for women because it is in the public’s best interest to help women (weaker sex) so that they can produce healthy babies United States v. Carolene Products (1938): SC upheld ban on filled milk  inferior milk is injurious to the public health (Nebbia established that Congress must decide when this is true) . There should be a general presumption that ordinary commercial regulations have a rational basis (rational basis = plausibility) . FN4: SC will apply SS where there are “discrete and insular minorities” . Racial and religious minorities that are vulnerable under the judicial process . You must be in the political process and blocked somehow Olsen v. Nebraska (1941): law must have constitutional roots to be good Ferguson v. Skrupa (1963): SC MUST defer to the legislature – not a super-legislature BMW v. Gore (1996): Court can invalidate excessive awards of punitive damages under SDP and PDP Eastern Enterprises v. Apfel (1998): retroactive provisions in property contracts are unconstitutional because they violate DP Williamson v. Lee Optical (1955): SC uses loose RBR to uphold eye care legislation – laws are okay as long as the legislature might have had a reasonable basis for the law

Non-economic Regulations

Privacy Pre-Griswold case law: Meyer v. Nebraska: establishes the right of pupils to acquire knowledge, and right of parents to control that education Pierce v. Society of Sisters: right of parents to bring up their children outside of state control Skinner v. Oklahoma: three strikes laws cannot force castration on sex offenders (means have to be narrowly tailored to the ends of diminishing liberty interests – SS) Buck v. Bell: mentally ill offenders can be castrated

Griswold v. Connecticut (1965) . Right to marital privacy (use of contraceptives) found within the penumbra of other constitutional rights o 1st  assembly, 3rd  quartering, 4th  search and seizure, 5th  self- incrimination, 9th  enumerated rights cannot seen viewed as to deny other rights . Marriage is sacred, privacy is at the heart . Can also look to basic values implicit in the concept of ordered liberty

Eisenstadt v. Baird (1972): extended right of privacy (use of contraceptives) to individuals Carey v. Population Services International (1977): SS used to allow minor access to contraception (further expansion of privacy rights)

16 Constitutional Law Outline Roe v. Wade (1973) . Court denies the Griswold penumbra idea to violate an abortion statute under the 9th amendment . The right to privacy is implicit and fundamental . The right to abortion is not absolute – there are limits to abortion (trimester structure)

Doe v. Bolton (1973): states cannot vote to exclude abortions or establish procedural requirements Consent, Regulations, and Casey details on Notes, pp. 66-68

Planned Parenthood v. Casey (1992) . SC upheld the essential details of Roe and established a great deal for women’s rights . DPC has been used to protect personal liberties since Mugler in 1897 . Overrules trimester framework, but lays out details of abortion law

Sexuality Court refused to address sexual conduct in examining abortion – but forced to address it in terms of homosexuality Bowers v. Hardwick (1986) . SC upheld sodomy laws as applicable to homosexuality because the right to privacy applies to marriage, procreation and family . Sodomy laws are deeply rooted in American tradition, but the act of sodomy is NOT . SDP Rule: To overrule the law requires a right that is implicit in the concept of ordered liberty and deeply rooted in the American tradition . Not all crimes committed in the home are immune – look to morality

Lawrence v. Texas (2003) . SC overruled Bowers to invalidate a Texas sodomy criminal law . Bowers invites discrimination – NOT okay . Privacy is NOT confined to marriage – people have the liberty to be gay even if it isn’t proscribed by the Constitution . Overrule the Bowers arguments regarding history – most sodomy laws not until 20th century . EPC and DPC are linked – both protect homosexuals . O’Connor’s concurrence uses EPC alone – plain discrimination (no moral bans allowed)

State Protection White v. Rochford: mother won 7th Circuit case when police refused to protect her children after they arrested their guardian

DeShaney v. Winnebago (1989) . There is no constitutional (DPC) duty to protect abused children . Does SDP allow a right of protection from violence? – DPC only protects people from the state, it doesn’t offer them protection

17 Constitutional Law Outline . State doesn’t require obligation to provide housing or abortion . 8th amendment forces state to protect prisoners because prisoners lose their liberty interests and are involuntarily committed . Blame should be placed on victim’s father, not state . There is no EPC claim because the state did not deny protection as discrimination

Death Cruzan v. Director (1990) . SC found (1) there is a right to refuse medical treatment and (2) a discontinuance of nutrients is not required in the Constitution . Balance individual interests v. personal liberties . Heightened evidence to ensure the victim’s wishes is okay given the potential abuses . Scalia’s concurrence: the federal courts have no right to interfere in state decisions There are 4 situations under which the Court addresses the right to die: 1. suicide  NO right 2. withdrawl of life support for the terminally ill  YES (Cruzan) 3. physician-assisted suicide  NO (Glusckberg) 4. active euthanasia  NO Vacco v. Quill (1997): Court upheld ban on assisted suicide, but allows termination of support (not EPC because everyone is treated the same)  doctor takes on a different role in each scenario Washington v. Glucksberg (1997) . Court invalidated a right to physician-assisted suicide  there is no 14th DPC right to die . NO historical roots . There are state interests in preventing suicide: preventing causes of suicide, protecting the integrity of the medical profession, protection of vulnerable groups, protection against euthanasia Schiavo (2005) . In order to get a TRO, you need to pass the Remedy Law Test: 1. you will win (court said that it was unlikely that parents would win) 2. you have an irrepairable injury (cannot be repaired with money – life qualifies) 3. you can balance the equities (one party needs the injunction more than the other needs the action to proceed) 4. public opinion is on your side . Determining this case on remedy law was an easy way out for the court o Necessity Rule: The Court doesn’t address constitutional issues unless it is absolutely necessary

Equal Protection

Race Straughter v. West Virginia: black man’s conviction overruled by SC because convicted by an

18 Constitutional Law Outline all-white jury – violation of EP rights

Strict Scrutiny See below

Segregation Korematsu v. United States (1944): Court used SS to uphold Japanese internment camps as a “pressing public necessity” Hirabayashi v. United States (1943): upheld Japanese curfew Plessy v. Ferguson (1896): court upheld separate but equal RR conditions under EP – right to equality, but not to integration  there is no badge of inferiority, but rather a legitimate police power that promotes the public good (legislation is powerless to equalize race) Brown v. Board (1954) . Court invalidates school segregation under EP – everyone has right to public education  no inferiority complex . Didn’t say anything about SS – used stigmas and social science information . Rejects precedent in light of social change and necessity . Constitution is a changing document – EP should not decided on precedent or FF intent . Criticism: If education and stigmas are so important, why didn’t they include desegregation efforts in the 14th? . Brown II demanded all deliberate speed and prompt and reasonable efforts to desegregate Bolling v. Sharpe (1954): Brown for DC schools Green v. County School Board (1968, p. 698): Court invalidated district’s actions under the Brown freedom of choice plan because not enough segregation had occurred – 85% of black kids remained at black school, no whites at black school Swann v. Charlotte-Mecklenburg Board of Education (1971, p. 698): Court disapproved of Charlotte’s plan because it only implemented some redistricting and some bussing Keyes v. School District (1973, p. 699): Пs must prove a district’s attempts to retain segregation rather than ineffective integration attempts to invalidate such attempts under Brown Loving v. Virginia (1967): . Court used 14th to invalidate bans on interracial marriage – laws are not okay even if they punish all races equally . SS – invalidation of law because it is entirely based on race McLaughlin v. Florida (1964, p. 683): Court used SS to invalidate a interracial cohabitation statute – race cannot be used in criminal statutes Palmore v. Sidoti (1984, p. 683): Court invalidated custody award to dad after mom remarried to a black man – a court cannot decide cases based on race  action doesn’t pass SS (prejudice is not a reason to remove a child from mother) SS is used even where the application of race is “symmetrical”

Purpose and Effect

19 Constitutional Law Outline Yick Wo v. Hopkins (1886, p. 685): Court invalidated a SF laundry statute that was intended to discriminate against Chinese applicants even if the law was facially neutral (there can be no racial motive) Motive v. Purpose Gomillion v. Lightfoot (1960, p. 687): court invalidated gerrymandering action intended to get rid of black vote as racially motivated Griffin v. School Board of PE County (1964, p. 687): Court invalidated a school board action that shut down all public schools and gave white families private school vouchers Palmer v. Thompson (1971, p. 687): Court upheld a city action closing all integrated swimming pools – there is no affirmative duty to operate swimming pools Griggs v. Duke Power (1971): . Burden Shifting: once П shows discrimination, burden shifts to ∆ to show a neutral policy objective, and then back to the П to show that there was a better way to meet that objective . Validity Testing: if an employer creates hurdles to employment that discriminate against a protected class those hurdles must be validated (must actually relate to employment) Washington v. Davis (1976): Court upheld police officer test in DC even though most failures were black  apply basic EP principles: (1) test is racially neutral, (2) test is not intended to be discriminatory, (3) test only seeks general verbal skills (use INTENT rather than IMPACT) Arlington Heights v. Metropolitan Housing Corp. (1977, p. 692): Court upheld Washington  a disproportionate impact is not always unconstitutional Rogers v. Lodge (1982, p. 694): Court determined that voting districts should be divided so that minority has a chance at least one seat (racially-motivated vote dilution case) . Purposeful discrimination is unconstitutional . Decreasing voter registration is not good Hunter v. Underwood (1985, p. 696): Court overturned AL constitutional provision blocking votes of people with “moral” convictions . Racially-motivated . Discriminatory impact Memphis v. Greene (1981, p. 697): Court upheld street closing between black and white neighborhoods as an inconvenience, but not a racial discrimination

Affirmative Action

In Schools Bakke v. Regents (1978) . Court finds quota AA systems unconstitutional . Use a heightened scrutiny – must use the least intrusive means to serve the ends (burden must be tailored to government interest) . Benefits of AA denied – Court says that there are other ways to develop those interests than straight racial classification quotas . Whenever there is a facial intent to discrimination there is a violation of the 14th

Grutter and Gratz v. Bollinger (2003)

20 Constitutional Law Outline . Race may be used as one of many factors to admit students (tipping point) – like Harvard plan . Diversity is a compelling state interest – race may be used as one factor to achieve that end

In Public Employment Wygant v. Jackson (1986): Court requires use of SS to keep a racial quota layoff system – an act must show past discrimination to pass SS Fullilove v. Klutznick (1980): Court used RBR to uphold minority “set-aside” program for public contractors  Congress doesn’t have to be colorblind – it can ensure minority participation in the market Richmond v. JA Croson Co. (1989): Court uses SS to invalidate minority set-asides, rejecting both Wygant and Fullilove . SS should be used to “smoke out” discrimination and ensure that NO race is damaged . There must be (1) compelling state interest with specific aims and (2) evidence of past discrimination in order to pass SS Metro Broadcasting v. FCC (1990): Court used IS to uphold federal set-asides – Congress knows what is best to serve government objectives  compelling interests include remedying past discrimination and increasing diversity Adarand v. Pena (1995): Court uses SS to invalidate a set-aside program that helped all racially/economically disadvantaged classes  all race-based claims should use SS

Gender Craig v. Boren (1976): a man can bring a discrimination claim under EP – invalidate beer law under IS  gender laws cannot be based on archaic or overbroad generalizations Mississippi University for Women v. Hogan (1982): Court uses SS to invalidate a school’s exclusion of men because the school did not show “exceedingly persuasive evidence” for its discrimination J.E.B. v. Alabama (1994): Court used MUW’s “exceedingly persuasive evidence” standard to invalidate gender-motivated peremptory challenges United States v. Virginia (VMI) (1996): court invalidated VMI’s all-male policy through EP and Craig’s IS standard – Virginia made no attempt to have an equal program for women Look to Notes, pp. 100-101 for information about Purpose and Effect, Real Differences (p. 110), and History (p. 102)

Other Suspect Classes

Alienage Aliens cannot vote, but do have special class status  SS in 1970s, IS after SS Era: . Graham v. Richardson (1971): states cannot deny welfare aid to aliens because they are a discrete and insular class subject to SS . In re Griffiths (1973): aliens can practice law

21 Constitutional Law Outline . Sugarman v. Dougall (1973): aliens can hold classified civil services jobs HOWEVER state has the power to create a public community  can decide who can hold public jobs IS Era (reliance on Dougall exception): . Foley v. Connelie (1978): Court upholds Dougall exception . Ambach v. Norwick (1979): aliens who do not seek naturalization can be excluded from teaching . Bernal v. Fainter (1984): aliens can become notaries (this is the limit to Dougall) Is there a problem with EPC v. federalism? . Toll v. Moreno (1982): aliens are eligible for “in state” tuition where they reside . Hampton v. Mow Sun Wong (1976): federal government cannot ban aliens from public jobs Use of RBR: . Mathews v. Diaz (1976): federal government can place restrictions on alien eligibility for Medicare and can discriminate within classes of aliens

Nonmarital Children Illegitimacy is not a suspect class  Court is unpredictable, but uses heightened scrutiny through late 1970s (mostly IS) . Levy v. Louisiana (1968): Court used EPC to invalidate law banning illegitimate kinds from filing wrongful death suits for mother . Trimble v. Gordon (1977): illegitimate kids can inherit from father . Lalli v. Lalli (1978): Court overturned Trimble – illegitimate kids cannot inherit from father unless paternity is established during the father’s lifetime 1988: Court moves to IS . Clark v. Jeter (1988): states cannot set a statute of limitations on claims of child support for illegitimate children

Other Classes Given the Nod Disability – Cleburne (p. 107-108) Age – Mass. Board or Retirement (p. 108) Sexual Orientation Romer v. Evans (1996) . Court used EPC to invalidate CO constitutional amendment banning all discriminatory aid to homosexuals because they are too politically powerful . Heightened scrutiny used – but no tier discussion . Legislation even fails RBR – you just can’t take away protections that are automatically awarded to others Watkins v. United States Army (1988): 9th Cir. used SS to invalidate Army’s sexual orientation discrimination Cammermeyer v. Aspin (1995): Washington District Court ordered the National Guard’s reinstatement of a lesbian under RBR Meinhold v. U.S. Dept. of Defense (1994): 9th Cir. held that statements of sexual orientation do not equal homosexual actions Wealth

22 Constitutional Law Outline Rodriguez: education is not a fundamental right and poverty is not a suspect class Plyer v. Doe: you cannot charge aliens to send their kids to school (education is fundamentally important)

Levels of Scrutiny

Rational Basis Review Easiest standard to meet (hardest way to invalidate a law) . Only requires that the legislation have a rational basis . Deference to the legislature . Used in most economic liberty cases post-Lochner

Intermediate Scrutiny Intermediate standard TEST: Discriminating measures are constitutional when they: 1. serve a important government objectives 2. are substantially related to the achievement of those objectives

Strict Scrutiny Hardest standard to meet (easiest way to invalidate a law) . Statutes are invalid where there is unnecessary oppression . Used in privacy cases and ALL race issues . Use when there are racial issues or when the purpose of the law supports supremacy SS used when there is: 1. discrete and insular minority under Carolone 2. a discriminatory intent 3. discriminatory impact (not always used to get to SS) 4. a suspect class under Ely: a. a history of discrimination b. political powerlessness c. immutable/obvious traits d. question relevant to social policy TEST: Race-conscious measures are constitutional when they: 1. serve a compelling government interest 2. are narrowly tailored to further than interest