I. CONSTITUTIONAL STRUCTURE
- Article III does not give the federal courts the right to judicial review
A. Judicial Review
Marbury v. Madison (1803) - pg. 2 - Est. judicial review - fed executive subject to judicial orders, fed judic can strike down laws of congress
B. Congressional Power
1. Introduction
- Necessary and Proper Clause - Article I § 8 [18] - congress has all powers necessary and proper to carry into execution the powers const granted
McCulloch v. Maryland (1819) - pg. 101 - Federal law is enumerated - 10th Amend does not say just “express”, subject to interpret - Article I § 8 - when enumerated power exercised, federal will always trump state law
2. The Commerce Power
Commerce Clause - Article I § 8 [3] “Congress shall have the power to regulate commerce w/foreign nations, and among the several states, and among the Indian tribes”
Three main questions in commerce cases: 1. What is commerce? 2. What is “among” the several states? 3. Is there a 10th amendment zone of authority?
The Four Eras of Commerce Clause Jurisprudence: 1. Early American History - 1890’s = broadly defined but minimally used 2. 1890’s - 1937 = narrowly defined and used 10th amendment as a limit 3. 1937 - 1990’s = expansive scope and refusal to use 10th amendment to limit 4. 1990’s - current = narrowed scope and 10th amendment as an independent, judicially enforceable limit
a. Early American History - 1890’s: Define the Commerce Power
Gibbons v. Ogden (1824) - pg. 113 - YES, can use FCP - For commerce to be “among the several states” use “intermingled” approach - concerns more than 1 state - Enumerated presupposes something non-enumerated - completely internal commerce of a state
b. 1890’s - 1937: A Limited Federal Commerce Power
Three Doctrines in this Era: 1. narrowly defined “commerce” 2. applied restrictive conception of what is “among the states” 3. Congress violates the 10th amendment when it regulates matters left to state governments
1. What is “Commerce”?
United States v. E.C. Knight (1895) - pg. 117 - NO, cannot use FCP - Commerce is limited to trade between two states - does not include manufacturing
Carter v. Carter Coal (1936) - pg. 118 - NO, cannot use FCP - Commerce is “intercourse for the purposes of trade” - transportation, purchase, sale, and exch commod - Does not include production or mfc, just trade - even if “leading up to” trade
2. What does “among the states” mean?
Shreveport Rate Cases (1914) - pg. 120 - YES, can use FCP - Congress may regulate intrastate transactions if they affect interstate commerce - When affecting interstate commerce, affects both fed and state - so fed should trump
ALA Schechter v. US (1935) - pg. 122 - NO, cannot use FCP - Stream of commerce only applicable while still in the stream - here, already out of stream in final dest - Restricts Congress to only intrastate matters with a “direct effect” on interstate commerce, not “indirect”
3. Does the 10th amendment limit congressional powers
10th amend - Powers not delegated to Fed nor prohibited to the States are reserved to the States
Two approaches of interpreting 10th: 1. Reminder to Congress that they are limited to Constitutional rights - not a separate constraint (Gibbons) 2. Reserves a zone of activity to the States for exclusive control - cannot be intruded upon by Fed
Hammer v. Dagenhart (1918) - pg. 125 - NO, cannot use FCP - Uses second approach - 10th amend prevents Fed from intruding on State zone of activity (labor laws) - DISS - MFC of goods to be sold in other states should be considered interstate commerce
Champion v. Ames (1903) - pg. 128 - YES, can use FCP - Morality (lottery) allows limit of interstate commerce - 10th amend fails - more obvious IC than Hammer
c. 1937 - 1990’s: Broad Federal Commerce Power
- Depression Era - FDR in power, upset with court preventing New Deal legislation - From 1937-1995, not one federal law was declared unconst for exceeding commerce power
1. Changing the FCP
NLRB v. Jones & Laughlin Steel (1937) - pg. 131 - Commerce power extends to activities with “close and substantial relation to interstate commerce” - Power to regulate commerce is power to enact all appropriate legis for its protection or advancement
United States v. Darby (1941) - pg. 134 - Overrules Hammer - Commerce also includes production and MFC, not just trade - Claims 10th amend is just a truism to allay fears of states - 1st approach - no State zone of activity
Wickard v. Filburn (1942) - pg. 136 - Substantial economic effect on IC - effectively makes FCP unlimited - here, farmer growing own food
2. Meaning of “commerce among the states”
Three areas for considering the meaning of “commerce among the states”: 1. Civil rights laws 2. Regulatory laws 3. Criminal laws
Heart of Atlanta Motel v. US (1964) - pg. 139 - Hotel discrim against blacks affects interstate travel/commerce - no 14th for discrim in private actions
Katzenbach v. McClung (1964) - pg. 141 - Again morality issues of racial discrim prevented by extending commerce clause to “affects” of IC
National League of Cities v. Usery (1976) - pg. 145 - Applying FCP directly to States is limited by 10th when integral operations of traditional govt function
Garcia v. San Antonio Transit Authority (1985) - pg. 148 - Overrules Usery - 10th is truism again - unworkable standard to determine what is trad vs. non-trad func - Process federalism - Congress elected to rep States - won’t enact legis unfairly impeding state power - DISS - PF won’t work, Congress won’t police itself as Fed members when it comes to State rights
d. 1990’s - Present: Narrowing of FCP and Revival of 10th as Constraint
1. What is Congress’s authority to regulate “commerce among the states”?
United States v. Lopez (1995) - pg. 153 - Reverses trend of allowing tenuous “substantial effects” - raises rational basis to actual subst effects test - Gun control near schools no subst effect - infringes on State police power
United States v. Morrison (1996?) - pg. 165 - Rape case - more facts but still not enough for subst effect - not economic in nature - policing the States
Solid Waste v. US Army (2001) - pg. 170 - Migratory birds - not covered in federal statute - States’ traditional and primary power over land/water use
Gonzales v Raich (2005) - Supplement pg. 1 - Counter to era - homegrown medical marijuana can be regulated by FCP - like Wickard - rational basis
2. Does the 10th amendment limit Congress’s authority?
New York v. United States (1992) - pg. 177 - Commandeer State legis to enact laws violates 10th - regulation ok, not forcing to enact (waste disposal) - Federal must regulate directly instead of telling State govt to do so
Printz v. United States (1997) - pg. 186 - Fed cannot circumvent legis in NY v. US by directly compelling State agents to enforce those laws
Reno v. Condon (2000) - pg. 195 - 10th challenge fails b/c fed law applies to State and private - not forcing state to enact/enforce but to abide
3. The Taxing and Spending Power
- Article 1 § 8 - Congress has duty to lay and collect taxes to pay debts, provide common defense, etc.
United States v. Butler (1936) - pg. 198 - Hamilton - separate power not restricted by enum powers; Madison - restricted by § 8 enum powers - Hamilton wins, but unconst b/c using Taxing/Spending to get around 10th (NY v US) and enact legislation
Sabri v. United States (2004) - pg. 201 - Sets broad scope for Fed spending clause - Fed can condition money given to entities to protect gen welf - If broad Fed interest, no need for Congress to state jurisdictional hook
South Dakota v. Dole (1987) - pg. 205 - 3 part test: 1. for general welfare, 2. unambiguous/clear wording, 3. somewhat related to fed interest - Congress has power to place conditions and fixing terms on money allotted to States - Still harder than straight legislation - clear wording harder to agree on - forces legislators to take a stand
4. Congressional Power Under the Post Civil-War Amendments
- 13th amend - prohibits slavery; Congress has power to enforce - 14th amend - State can’t abridge P or I, nor deprive life, lib, prop w/out DP, or deny EP; power to enforce - 15th amend - No denial or abridge of right to vote based on race, color, slavery; power to enforce
Two main questions about Congress enforcement power: 1. May Congress regulate private conduct or just government actions? 2. What is the scope of Congress’s power?
a. Whom may Congress Regulate under the PCW Amends?
- Civil Rights Cases - cannot use § 5 of 14th to apply amendment to private individuals
United States v. Morrison (2000) - pg. 209 - After trend in Guest toward using § 5 for private entities, court overrules here and says no - DISS - using § 5 on State actors for inaction in providing adequate protection against private actors
b. What is the scope of Congress’s Power?
Two approaches: 1. Narrow - Congress only has auth to prevent/provide remedies for violating rights recognized by Sup Ct 2. Broad - Congress may expand the scope of rights or create new rights not yet recognized by Sup Ct - Argument over “enforce” - enforce means no new rights vs. enforce Amendment by adding protections
Katzenbach v. Morgan (1966) - pg. 212 - Court takes broad approach - Congress may add new right under § 5 - literacy tests are unconst
City of Boerne v. Flores (1997) - pg. 216 - Congress power is remedial or in some cases preventative, but not substantive change or definitional - Law must be proportional or congruent between means adopted and ends achieved - what is P or C? - REREAD - confusing as shit
C. Executive Power/Separation of Powers
- See notes for full rundown of executive rights and history - current changes with party politics - Party politics so important that Congress backs Executive based on party instead of limiting power
1. The Non-Delegation Doctrine and Its Demise
ALA Schechter Poultry v. US (1935) - pg. 293 - Non-delegation doctrine - Congress cannot delegate Exec unfettered discretion to enact legislation
Whitman v. American Trucking (2001) - pg. 296 - Court allows Congress to delegate power with very little restriction - could have reverted to NDD - Reasons Congress would delegate power: lack of expertise, too busy, avoid accountability
2. The Legislative Veto and Its Demise
INS v. Chadha (1983) - pg. 299 - 1 house legis veto unconst - need presentment & bicameralism - Congress can’t control once delegated
3. Checking Administrative Power
a. Appointment Power - Article II § 2
Morrison v. Olson (1988) - pg. 307 - PART 1 - Exec may appoint positions (spec counsel) w/out senate approval if “inferior” but not “principal” official - Factors for determining level: subject to removal, limited duties, policy formulation, jurisdiction, tenure
Myers v. United States (1926) - pg. 313 - President may remove Postmaster b/c has full power to appoint & full power to remove exec positions
Humphrey’s Executor v. United States (1935) - pg. 314 - President must show good cause to remove non-exec (FTC) - no exec func, not subj to pres orders, indep
Weiner v. United States (1958) - pg. 315 - Follows Humphrey’s - instance where independence from Pres is desirable so no removal w/out cause
Bowshar v. Synar (1986) - pg. 317 - Member of legis branch cannot be granted exec power - Congress can’t give exec power to themselves
Morrison v. Olson (1988) - pg. 318 - PART 2 - Good cause limits by Congress on when Pres can remove do not interfere with Pres exec power
b. Inherent Presidential Power
Youngstown v. Sawyer (1952) - pg. 272 - Pres can’t use aggregate powers (CIC, Chief Exec, exec law) to legis - need Congress auth or Const prov - JACKSON CON - 3 zones: 1. Cong auth; 2. Zone of Twilight - Cong indiff; 3. Against Cong (this case) - VINSON DISS - Pres needs extraord power in extraord times
4. Separation of Powers and Foreign Policy
- Court generally declares issues of foreign policy non-judiciable political questions for exec and legis
a. Are foreign policy and domestic affairs different?
US v. Curtiss-Wright (1936) - pg. 321 - Pres has greater powers regarding foreign affairs than domestic - battle b/t fed exec and fed legis
b. Treaties and executive agreements
- Treaty - agreement b/t US and foreign country negotiated by Pres - effective when ratified by Senate - Exec Agreement - agreement b/t US and foreign country - effective when signed by Pres - EA does everything treaty does - EA never been ruled unconst - EA prevails over state law/policy
Dames & Moore v. Regan (1981) - pg. 325 - Pres may settle claims to resolve FP dispute via EA - still not plenary power to Pres - historical practice
5. Presidential Power and the War on Terrorism
Hamdi v. Rumsfeld (2004) - pg. 332 - Pres may deem US citizen “enemy combatant” for duration of conflict when Congress auth granted - DP gives meaningful opportunity to contest factual basis for detention before neutral decisionmaker - SCALIA DISS - if citizen, should simply prosecute in fed court for treason w/full DP
Ex Parte Quirin (1942) - pg. 347 - Unlawful combatants (un-uninformed) subject to military tribunal trial and punishment including death
6. Checks on the President
a. Suing and prosecuting the president
Nixon v. Fitzgerald (1982) - pg. 354 - President given absolute immunity from civil suits for official actions while in office - Reasons: many suits, inhibit decisions, distraction, political harassment, other checks, tarnish image
Jones v. Clinton (1997) - pg. 357 - President is NOT immune from civil suits for any unofficial acts - therefore never while not in office
US v. Nixon (1974) - pg. 282 - Court has power to decide how Const limits Pres power (exec priv) & Const provides laws enf on Pres
D. Limits on State Power
- Skipped Dormant Commerce Clause - Take small notes on Privileges AND Immunities - pg. 365-366
II. INDIVIDUAL RIGHTS
A. Application of the Bill of Rights to the States
- BOR did not apply directly to states when created - no express language - BOR not in const b/c fed made as limited and unable to infringe AND enumeration would be incomplete
1. Rejection of Application Before the Civil War
Barron v. Mayor of Baltimore (1833) - pg. 447 - BOR do not apply to the States only the government that created them - federal govt.
2. Privileges or Immunities and the Slaughter-House Cases
Slaughter-House Cases (1873) - pg. 449 - None of 13th, 14th DP, EP, PI can be used to apply the BOR to states - mainly PI - DISS - Rights belonging to every citizen of the US cannot be abridged or taken away by the States
Saenz v. Roe (1999) - pg. 456 - Court uses 14th PI to invalidate a state law - right to travel means no limits of rights to new State citizens - DISS - PI should be rethought and carefully applied to prevent new tool for inventing fund rights
3. Incorporating BOR using 14th DP
Twining v. New Jersey (1908) - pg. 458 - First to discuss using 14th DP to apply to States - fundamental rights of procedural nature inherently in DP
4. Debate over Incorporation
Palko v. Connecticut (1937) - pg. 460 - Cardozo - DP only includes “principles of justice so rooted in tradition and conscience to be ranked fund”
5. What’s Currently Incorporated
Three main arguments over using 14th DP to incorporate BOR: 1. History - whether framers intended 14th to apply to BOR - both sides argue history on their side 2. Federalism - BOR heavily restricts states - federalism not sufficient reason to tolerate violating fund rts 3. Judicial Role - subjective role of judic vs too much judic oversight on fund rts thus less room for democ
Duncan v. Louisiana (1968) - pg. 464 - Trial by jury included by 14th DP - test: fund princ of lib/just, basic sys of juris, fund right ess to fair trial
- REREAD 463-468 - RIGHTS INCLUDED NOT YET INCLUDED BY 14th DP
B. State Action - Applying BOR and Const to Private Conduct
1. The Requirement for State Action
- 13th amend only one that directly regulates private conduct - no one can have slaves - “State action” means any government action, not just one by states
The Civil Rights Cases (1883) - pg. 469 - No fed laws for prevention based on 14th, only remedial - must have some state law/action first - Fed does not have the power to govern individual behavior - not a right given to fed by const
Costs and benefits of state action doctrine: - Cost - w/out § protection, private conduct can infringe most basic rights - Benefit - gives zone of private autonomy - limits reach of fed law/judic power - priv may ignore const - Benefit - sets zone of state sovereignty - enhances federalism - legal relations of priv left to states not fed
2. Exceptions to the State Action Doctrine
Two exceptions to state action: 1. Public functions exception - private entity must comply w/const if task trad/exclusively done by govt 2. Entanglement exception - priv conduct must comply w/const if govt has auth, encouraged, or facilitated
a. The public functions exception
Marsh v. Alabama (1946) - pg. 474 - Expansive definition of public functions - balance const rts of property vs relig/free speech - latter wins
Jackson v. Metropolitan Edison (1974) - pg. 476 - Narrow definition of public functions - electricity not trad govt function, even w/monopoly & heavy regul
b. The entanglement exception
- If entanglement, either private party must abide by const OR govt must cease its involvement
1. Judicial and law enforcement actions
Shelley v. Kraemer (1948) - pg. 487 - Broad definition - any judicial enforcement converts to a state action - here, restr cov to keep out blacks
Two areas where courts consider judicial enforcement a state action: 1. Use of courts for prejudgment attachment 2. Use of peremptory challenges at trials
Lugar v. Edmondson (1982) - pg. 490 - Private party working with state officials to seize disputed property is a state action
2. Government Regulation/Licensing
Burton v. Wilmington Parking Auth (1961) - pg. 495 - Broad finding of govt involvement making state action - restaurant in parking deck - mutual benefit
Moose Lodge v. Irvis (1972) - pg. 497 - No state action in giving license to private club - narrows Burton - not related to the discrim
3. Government Subsidies
Norwood v. Harrison (1973) - pg. 499 - Govt subsidies support private discrim is state action - even if not for discrim purpose - segr priv schools
Rendell-Baker v. Kohn (1982) - pg. 501 - Govt subsidy alone is not enough to convert to state action - doesn’t extend Norwood beyond school segr
Blum v. Yaretsky (1982) - pg. 504 - Narrow interpretation of state action - discharge Medicaid patient decision by priv home not state officials
C. Economic Substantive Due Process
- Subst DP - whether govt has adequate reason to deprive - sufficiency of justification - compelling interest
1. Substantive DP of the Lochner Era
Allgeyer v. Louisiana (1897) - pg. 524 - First case to use subst DP to strike down economic regulation
Lochner v. New York (1905) - pg. 526 - Police power can’t extend to interfere w/freedom of K - need direct relation (means to end) to challenge - Similar to saying freedom of K fund right and need compel interest to overcome - meshed together here - HOLMES DISS - Judicial activism - const has no economic theory - no freedom of K under 14th - HARLAN DISS - Means to end does not have to be best way, just not clearly illegal - like rational basis
Coppage v. Kansas (1915) - pg. 531 - Freedom of K can’t be infringed by State - state can’t bar employers from forbid unions - free to decline
Muller v. Oregon (1908) - pg. 534 - Protecting women (max hours) ok for infringing freedom to K - social science used to show valid interest
Adkins v. Children’s Hospital (1923) - pg. 536 - Women min wage not valid interest b/c freedom of K protects employer as well - also unequal to men
Weaver v. Palmer Bros (1926) - pg. 537 - Consumer protection legislation invalidated - arbitrary reasoning is not enough interest
Nebbia v. New York (1934) - pg. 539 - Milk price regulations ok for infringing freedom of K - public health interest - end of Lochner era
2. Economic Substantive DP since 1937
West Coast Hotel v. Parrish (1937) - pg. 541 - Freedom of K not so fund (overrule Adkins) - other liberties more important - leaning to rational basis
US v. Carolene Products (1938) - pg. 543 - Establishes rational basis test - deference to legis branch - presume constitutional - Footnote - Exceptions when: facially violates const, restricts political process, discrete insular minorities
Williamson v. Lee Optical (1955) - pg. 545 - Rational basis test used - no more DP to strike state law - judicial deference to political power
BMW v. Gore (1996) - pg. 547 - Excessive damages are arbitrary and fail the rational basis test - violates DP - like striking econ subst DP
D. Takings Clause
- 5th says - “nor shall private property be taken for public use w/out just compensation” - don’t want to force private parties to bear public burdens
Four questions during analysis: 1. Is there a taking? a. Possessory taking - govt confiscates or physically occupies property b. Regulatory taking - govt regulation leaves no reas economically viable use of property 2. Is it property? 3. Is the taking for public use? - if not, govt must give property back - only need rational basis, however 4. Is just compensation paid? - measured in terms of loss to owner, gain to taker is irrelevant
- No bright line test or set formula - ad hoc basis of factual inquiries
Loretto v. Teleprompter Corp (1982) - pg. 575 - Even the most minor physical taking is still a taking
Pennsylvania Coal v. Mahon (1922) - 578 - If extent of regulatory taking is great and the public damage is not great - it is a taking
Miller v. Schoene (1928) - pg. 580 - Not a taking when public interest great and priv property interest minimal - police power, social policy
Three factors of particular significance in analysis of when it is a taking: 1. Economic impact of the regulation on the claimant 2. Extent to which regulation has interfered with investment-backed expectations 3. Character of the government action
Penn Central v. NYC (1978) - pg. 581 - No taking b/c diminution of value if reas econ viable uses remain - always taking when no reas econ use
Lucas v. SC Coastal Council (1992) - pg. 585 - Taking unless govt can justify with bkgrd princ of nuis and prop law - laws in place at time of taking - Interfering with the reas expectations of the property owner is a taking - similar to Penn coal
- Zoning ord and other laws almost never a taking - still econ use and strong public interest police power
Nollan v. Cali Coastal Community (1987) - pg. 590 - Condition on development of property must serve same purpose as regulation justification
Dolan v. City of Tigard (1994) - pg. 591 - Two part test: 1. essential nexus b/t legit SI and permit condition, 2. rough proportion taking to impact - Burden on taker to show taking is related both in nature (1) and extent (2) to impact of development plan
Tahoe-Sierra v. Tahoe Regional Planning (2002) - pg. 602 - Temporary moratorium not always a taking - use Penn Central - regulation on priv, not taking for public
Kelo v. City of New London (2005) - Supp - Taking but is there public use - even if private makes public economic benefit OK - rational basis PU
Brown v. Legal Found Washington (2003) - pg. 613 - Just compensation is equal to loss - here $0 - taking ends up compensated free - interest off client money
E. Equal Protection
- Fed govt challenged under 5th, state govt challenged under 14th
Three questions to ask: 1. What is the classification a. Classified on face of law - ex. Blacks can’t vote b. Discrim impact to the law or discrim effect from its administration - Need discrim impact AND discrim purpose 2. What is the level of scrutiny a. Strict scrutiny - Govt must prove law is necessary to achieve a compelling govt interest - Must also show cannot achieve objective thru any less discrim alternative - Ex. Race, national origin, most alien cases b. Intermediate scrutiny - Govt prove law is subst related (not necess) to an important (not compel) govt purp - Ex. Gender, non-marital children c. Rational basis - Must be rationally related to a legit govt purp - burden on challenger to show irrational - Ex. Everything else Criteria for determine the level of scrutiny to use - Immutable characteristics warrant heightened scrutiny - can’t be changed, not chosen - Ability of group to protect via govt process - active voice in political process - History of discrim - also, courts judgment concerning likelihood of class reflecting prej - Ex. Race always prej, gender more times where not prej - biological - Dissent factors - const/social imp of adverse effects, invidiousness of the basis - Some argue no real tiers - but rational with more “bite” 3. Does the government action meet the level of scrutiny - Ends must be justified based on compelling, important, or rational - Means often use degree of under/overinclusiveness - but all laws are under/over to some extent - Amount of under/over allowed depends on scrutiny - strict must be least restrictive
Protecting fund rights under EP: - Used to avoid shortcomings of DP under Lochner, but result is same - strict scrutiny if fund right - May be unconst for violating EP by discrim among people in ability to exercise fund rights - Ex. Procreation (sterilization), voting, access to judic proc, and interstate travel
1. Rational Basis Test
Two part test for rational basis: 1. Does the law have a legitimate purpose? 2. Is the law rationally related to achieving it?
a. Does the law have a legitimate purpose?
Examples of legitimate purpose - Police purpose - protecting safety, public health, public morals - Anything not forbidden by const - Economic, peace, quiet, law, order, basically anything
Romer v. Evans (1996) - pg. 625 - No anti-gay laws - Rational basis test fails - arguable application of rat’l, “bite” - ensure not for purpose of disadvantaging
US RR Retirement v. Fritz (1980) - pg. 630 - no benefits unless fitting rules - Rational even though legitimate purpose given was not the actual purpose for passing - anything rational
Railway Express v. NY (1949) - pg. 634 - no ads for other companies on trucks - Rational even if proposed purpose is significantly underinclusive - may take legis “one step at a time”
NYC Transit Auth v. Beazer (1979) - pg. 637 - methadone users can’t work - Rational even if proposed purpose is significantly overinclusive
US Dept of Agriculture v. Moreno (1973) - pg. 640 - no food stamps for non-family houses - Rational fails b/c too arbitrary and irrational - argued rat’l with bite - overinclusive like Beazer diff result
City of Cleburne v. Cleburne Living Center (1985) - pg. 643 - permits for mentally retarded home - Rational fails b/c classification not reas related to the purpose of the law
2. Classifications Based on Race and National Origin
Dred Scott v. Sandford (1856) - pg. 649 - Blacks could never become citizens - slaves are property not people - MO compromise unconst
a. Facially discrim race/nat’l origin laws
Korematsu v. US (1944) - pg. 654 - Sets strict scrutiny for all race/nat’l origin classes - still may overcome strict w/compelling interest - war
Loving v. Virginia (1967) - pg. 659 - Interracial marriage ban has only purpose of discrim - no legit purpose, does not meet strict
Palmore v. Sidoti (1984) - pg. 661 - Private bias is not sufficient to overcome racial classes and strict scrutiny
Plessy v. Ferguson (1896) - pg. 663 - Separate but equal is ok - EP under law is not same as EP in social realms - no need for social EP
Brown v. Board of Education (1954) - pg. 667 - Separate is never equal - based on social science instead of morals - violates EP
b. Facially neutral w/discrim impact or administration
Washington v. Davis (1976) - pg. 671 - Facially neutral w/discrim impact is not enough - need discrim purpose
McCleskey v. Kemp (1987) - pg. 674 - Facially neutral w/discrim impact not enough - need purpose - simple awareness of impact is not intent
Palmer v. Thompson (1971) - pg. 684 - Closing pools to avoid deseg ok - no duty to operate pool - no unequal protection - no one can use - DISS - if pools why not schools - harder on rich than poor/blacks - rich have alternatives
Personnel Admin of MA v. Feeney (1979) - pg. 686 - Discrim purpose must have happened “because of” not “in spite of” - almost impossible to prove
Village of Arlington Heights v. Metro HD (1977) - pg. 688 - Use history for evidence of discrim purpose - almost never proven - only if outright racist - stupidity - Hunter - if subst impact and discrim purp shown, burden shifts to govt to show would have enacted w/out
3. Racial Classifications Benefiting Minorities - Affirmative Action
Three questions to ask: 1. What level of scrutiny to use for racial classifications benefiting minorities? 2. What purposes for AA are sufficient to meet the level of scrutiny? 3. What techniques for AA are sufficient to meet the level of scrutiny?
Richmond v. JA Croson Co (1989) - pg. 708 - Strict scrutiny for AA - need compelling interest - close link to remedying discrim
Adarand Constructors v. Pena (1995) - pg. 716 - Affirms strict on nat’l level - minorities have local majority - compelling interest, narrowly tailored - See notes here - page 32 - for arguments for and against AA
Grutter v. Bollinger (2003) - pg. 722 - AA ok in law school as one factor = NT - CI = diversity/critical mass - not indefinite - 25 years-ish - DISS - against 14th EP - insulting to blacks, inferiority
Gratz v. Bollinger (2003) - pg. 740 - AA not ok in undergrad - no automatic points allowed, only factor - not narrowly tailored
Johnson v. California (2005) - Supp pg. 43 - Temp prison segr still strict scrutiny - any race classif needs strict even if applied equally to all races
Ways to demonstrate race used for districting and strict needed: 1. Weird shapes with black majority 2. If not weird shape, prove race was a predominant factor in drawing lines
Easley v. Cromartie (2001) - pg. 748 - Districting ok for political but not racial motive - must be minority party not race - tough to prove purpose
4. Gender Classifications
a. The level of scrutiny
- Strict argument - immutable char, visible char, underrepresented in political process - Intermediate argument - framers intent 14th race only, bio differences, political majority - Those for strict worry about AA, tougher to get AA if strict not intermediate - limits helping women
Frontiero v. Richardson (1973) - pg. 755 - Servicewoman declaring man as dependant - Plurality (4) says strict for gender discrim - immutable char, no relation to capacity - sole basis was sex
Craig v. Boren (1976) - pg. 758 - Low alcohol beer sold to younger women than men - UNCONST - Sets intermediate scrutiny for gender - important govt obj and subst related to achieve obj - EP
United States v. Virginia (1996) - pg. 761 - VMI excluding women - UNCONST - Intermediate, but also “exceedingly persuasive justification”
b. Proving the Existence of a Gender Classification
Two ways to prove: 1. Facially discriminatory 2. If facially neutral, must show discrim impact AND discrim purpose
Geduldig v. Aiello (1974) - pg. 766 - Excluding disabilities include some from pregnancy - CONST - Discrim impact not enough - no purpose proven - excludes many disabilities - non-excluded are equal - Pregnancy Discrimination Act statutorily overrules this case - reasoning still applies though
c. Gender Classifications Benefiting Women
Three general principles: 1. Gender classifications benefiting women based on role stereotypes generally will not be allowed 2. Gender class benefiting women designed to remedy past discrim and diff in opportun generally allowed 3. Gender class benefiting women b/c of biological differences generally allowed
Orr v. Orr (1979) - pg. 769 - Only men pay alimony - UNCONST - Class not subst related to achieving obj of helping needy & remedy past discrim - use neutral alternatives
Mississippi Univ for Women v. Hogan (1982) - pg. 771 - Nursing school excludes men - UNCONST - Benign purpose not enough - not actual purpose - don’t perpetuate stereotypes - limited effect
Michael M. v. Sup Ct of Sonoma (1981) - pg. 774 - Statutory rape only punished men, not women - CONST - Benefit based on stereotype, but still upheld - actual purpose elusive - deference to state interest
Rostker v. Goldberg (1981) - pg. 777 - Military draft for men only - CONST - Women not eligible for combat, draft for combat - stereotype - defer to congr in defense - SR to purpose
Califano v. Webster (1977) - pg. 780 - Social Security women need less low earning years - CONST - Gender class ok if benefiting women as remedy - women hindered earning - direct remedy required
Nguyen v. Immigartion and Naturalization (2001) - pg. 782 - kid citizen diff if mom/dad is foreign- CONST - High congress interest - mom guaranteed biological link - more steps to prove ok - not irrational - DISS - not EPJ - not actual purpose - not subst related to govt interest - alternatives exist - not heightened
5. Alienage Classifications
- Alienage diff from national origin - discrim against non-citizens, not based on what country they’re from - EP says no “person”, not no “citizen” - thus should apply to non-citizens - Alienage discrim can be struck down based on EP or on preempting state rules - fed oversees immigration
a. General Rule is Strict Scrutiny
Graham v. Richardson (1971) - pg. 790 - Welfare laws require extra for non-citizen - UNCONST - Strict scrutiny - discrete and insular minority - insufficient SI - violates EP of 14th
b. Alienage Classification for Self-Govt and Democratic Process - Exception: Rational basis for right to vote, political office, jury duty, or trad govt power - Ok to prevent from police power (Foley), teacher (Ambach), public policy at “heart of repr govt”
c. Congressionally Approved Discrimination
- Fed law (Cong/Pres order) discrim only rational - plenary power to control immigration - foreign relations
d. Undocumented Aliens and Equal Protection
Plyler v. Doe (1982) - pg. 799 - TX denies undocumented children free education - UNCONST - Rational - not suspect, not immutable - educ not fund - not rat’l, no reason/evidence - not true rat’l
6. Non-Marital Children Classification
FILL IN EXTRA CLASSES HERE
F. Fundamental Rights
Four Question for Analysis: 1. Is there a fundamental right? Arguments for finding a fund right: - 9th amendment shows more rights than those just in text - Higher protection for most basic and natural rights of people
Arguments against finding a fund right: - Originalist view of text - expressly listed - Framer’s intent - Unelected judiciary defining rights
Where to look: - History and tradition - “deeply rooted in Nation’s past” - Society’s moral consensus 2. Is the constitutional right infringed? - Yes, if preventing the exercise of the right - Maybe if simply burdening the exercise of the right - look at directness and substantiality of the interference 3. Is there a sufficient justification for the govt’s infringement? - If strict, need a compelling govt interest - If intermediate, need an important govt interest - If rational, need a legitimate govt interest 4. Is the means sufficiently related to the purpose? - If strict, must be necessary to achieve the obj - prove no less restrictive means - narrowly tailored - If intermediate, must be less restrictive than rational basis - If rational, must be a reasonable way to achieve the goal - not necessary to be least restrictive
- Typically if a fund right exists use strict scrutiny; if not, use rational
1. Family Rights
a. The Right to Marry
Loving v. Virginia (1967) - pg. 821 - Ban on interracial marriage - UNCONST - Marriage is a fund right - race discrim is not a valid compelling interest - liberty under 14th
Zablocki v. Redhail (1978) - pg. 822 - No marriage for people paying child support - UNCONST - Marriage is fund right - SI exists, but was not sufficiently tailored to achieving it
b. The Right to Custody of One’s Children
Stanley v. Illinois (1972) - pg. 827 - Unwed father loses right to children on spouse death - UNCONST - Custody of child is a fund right - father showed active role/interest in lives - not narrowly tailored - DISTINGUISH - Lehr - Non-marital dad, no support, no registered paternity interest - ok to end rights
Michael H. v. Gerald D. (1989) - pg. 829 - Child born to married woman presumed husband dad - CONST - Marital father rights are traditionally protected, not those of adulterous fathers
c. The Right to Keep the Family Together
Moore v. City of East Cleveland (1977) - pg. 835 - Only certain fam members live together - UNCONST - Choosing to live with blood relatives is a fundamental right - tenuous relation to goals of law - DISTINGUISH - Belle Terre - only affects unrelated people - exception was made for blood relatives
d. The Right of Parents to Control the Upbringing of Their Children
Meyer v. Nebraska (1923) - pg. 839 - Teaching German to kids was illegal - UNCONST - Fund right to control the upbringing of your children - used subst DP from Lochner, but not overruled - See Also: Pierce says right to control education of children even though education is not a fund right
Troxel v. Granville (2000) - pg. 842 - Anyone w/court approval can visit anytime - UNCONST - Not enough weight to parent’s decision on who can visit child - grandma can be kept from seeing kids
2. Reproductive Rights
a. The Right to Procreate
Buck v. Bell (1927) - pg. 847 - Sterilizing feeble minded is ok - CONST - Before era change, no fundamental right to procreate at that point - never overruled
Skinner v. Oklahoma (1942) - pg. 849 - Moral turpitude violators may be sterilized - UNCONST - Procreation is a fundamental right - EP class doesn’t meet strict - still not unconst to sterilize
- NOTE: EP can be used where DP fails - state bans something for all no DP, but not for some under EP
b. The Right to Purchase and Use Contraceptives
Griswold v. Connecticut (1965) - pg. 850 - Crime to use of advise to use contraceptive - UNCONST - Penumbras - right of privacy zone for marriage that grants fund right of contraceptives
Eisenstadt v. Baird (1972) - pg. 856 - Denying contraceptives to unmarried people - UNCONST - Right of privacy zone extends to all, not just married - EP - contraceptives for all
c. The Right to Abortion
1. The recognition and reaffirmation of the right to abortion
Roe v. Wade (1977) - pg. 859 - Law making abortion criminally illegal - UNCONST - Fundamental right to abortion - outbalanced after first trimester w/interest in mom and fetus’s health
Planned Parenthood v. Casey (1992) - pg. 867 - 1 day waiting period ok, not an undue burden - CONST - Replace strict with undue burden test - change trimester rule - ignore stare decisis argument of Roe
2. Government regulation of abortion
Stenberg v. Carhart (2000) - pg. 879 - State law prohibited partial birth abortion - UNCONST - No exception for mother’s health or preserving life - too many options prevented, undue burden
3. The Right to Die - Medical Care Decisions
Cruzan v. Director Missouri Health (1990) - pg. 906 - Parents lack auth to remove feeding tube - CONST - Fundamental right to refuse medical treatment - strong SI of life - needs clear and convincing evidence - No scrutiny level set - no indication of evidence required to show clear and convincing - living wills, etc.
Washington v. Glucksberg (1997) - pg. 913 - Ban on physician assisted suicide - CONST - 3rd party involved, less privacy - easier to take advantage - ending vs shortening life - Court says no fund right, so only rat’l review - SI not as important
4. The Right to Sexual Activity and Orientation
Lawrence v. Texas (2003) - pg. 920 - Homosexual intercourse is illegal - UNCONST - No fund right - rat’l basis though applied oddly - no legit SI of morality - privacy, but not fund
5. The Right to Control Over Information
Whalen v. Roe (1977) - pg. 932 - State keeps records of all schedule II drugs - CONST - No fund right - rat’l basis - says sufficiently narrow to SI - no need, maybe implying more than rat’l
6. The Right to Travel
Saenz v. Roe (1999) - pg. 936 - Limit welfare to new residents - UNCONST - Fund right to interstate travel but not to foreign travel - 14th citizenship - Priv or Immun
7. The Right to Vote
Harper v. VA State Board of Elections (1966) - pg. 944 - Poll tax on voting rights - UNCONST - Fund right to vote under EP - wealth discrim - invidious and no relation to voter qualification - Not necessarily a right to vote for everything as a subst DP right - so far just EP
Kramer v. Union Free School Dist (1969) - pg. 945 - Voting only for parents or landowners - UNCONST - Broad invalidation of property ownership requirements - EP - not rational, not narrowly tailored
Ball v. James (1981) - pg. 948 - Voting right and proportion based on land ownership - CONST - Special local govt body - large effect on landowners - reas relationship - rat’l basis - DISS - Wrong level of scrutiny - not narrowly tailored - not private like Sayler
- NOTE - Literacy test is ok by const but outlawed by fed § - NOTE - Prisoners and convicted criminals - if convicted of felony, no vote - unless racial purpose/impact
Reynolds v. Sims (1964) - pg. 953 - Keeping districts underrepresented on old census data - UNCONST - Make as close to “1 person 1 vote” as possible - avoid dilution - need equal representation for EP - Need judiciary to make this rule b/c legislature won’t make it alone - it’s how they got elected
8. The Right to Judicial Access
Boddie v. Connecticut (1971) - pg. 985 - Court fees for divorce - UNCONST - Fund right - DP - affects marriage - wealth discrim - frivolous suit not SI - state monopoly on divorce
United States v. Kras (1973) - pg. 987 - Court fees to file for bankruptcy - CONST - No const rt to bkrpt - SI congress plenary in bankruptcy - no fund right affected - NT - not only way out
MLB v. SLJ (1996) - pg. 992 - Lost parental right court fees - UNCONST - Fund right implicated - right to parental custody - need strict - no overriding interest
Bounds v. Smith (1977) - pg. 995 - Law libraries needed - Fund right to access to courts - need law libraries in prison to have valid chance at access
Lewis v. Casey (1996) - pg. 996 - Poorly kept libraries don’t need to be improved - Fund rt is only to access not to have a great library - sub par library not enough - need diminished access
9. The Right to Education
San Antonio v. Rodriguez (1973) - pg. 999 - Public school funding based on prop tax - CONST - No fund right to education - no suspect class of poor - only rat’l - deference to state