Constitutional Law I – Outline

I. Federal Judicial Powera. Power of Judicial Review

i. Marbury v. Madison (1803)1. Republican v. Federalist factual context re an undelivered

judicial commissiona. Court held that it could not constitutionally hear the

case as a matter of original jx i. Thus Act allowing for such jx

unconstitutional by means of expansion2. Implicit that acts of both Congress and the executive are

reviewable, and that the Supreme Court is the one to decide if a political question exists

a. Necessity of limits – Congress cannot have the authority to set its own limits

b. Art. II §2 – power to decide cases arising from the Constitution

b. Limits of Federal Judicial Authority (Justiciability)i. Political Questions Doctrine (focus on subject matter)

1. What is a political questiona. A question invested in the political branches to

resolve rather than the judiciaryb. Query whether the doctrine comes from the

Constitution itself or rather an exercise of prudential discretion

i. Preservation of political capital2. Characteristics of a political question

a. Textually demonstrable constitutional commitment of the issue to a coordinate political department

b. Lack of judicially discoverable and manageable standards for resolving the issue

i. Nixon v. USA – not manageable because the word “try” in the context of judicial impeachment has broad meanings

1. Impeachment the only check that the legislature has on the judiciary

ii. Baker v. Carr – Equal Protection standards well-developed thus managable

c. Potential embarrassment - need to “speak with one voice”

d. Issues could produce enforcement problems or other institutional difficulties (i.e. chaos)

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i. Luther v. Borden – Congress must necessarily decide what government is established in the state before it can be determined if such government is republican or not (Guaranty Clause)

Spectrum of deference to other branches:

Strict Scrutiny →→→ Intermediate Scrutiny →→→ Rational Basis →→→ Pol. Quest. ↓ ↓ ↓ ↓Presumption of important & Presumption of No reviewUnconstitutionality closely related Constitutionality

ii. Prohibition of Advisory Opinions1. Art. III §2 requirement of “case” or “controversy”2. Advisory opinion results when an opinion is issued in the

face of lack-of-standing, mootness or non-ripenessa. Importance of separation of powers

iii. Standing (focus on litigants)1. Requirements (per Lujan v. Defenders of Wildlife)

a. Injury-in-Facti. Must be concrete/particularized and

actual/imminent (not abstract)ii. Otherwise need to use the political process if

“generalized grievance”b. Causation

i. Injury must be traceable to the challenged conduct of the defendant

c. Redressabilityi. Dependant on type of relief sought (i.e.

damages or injunction)ii. Must demonstrate that relief sought will

have a direct effect on this alleged injury to plaintiff

2. Congress’s power to confer standinga. Private citizens rights of action b. Zones of interest of Constitution/statutesc. Limits on this power

i. Art. III case or controversy requirementii. Separation of powers

3. Importance of the characterization of the injurya. Example of subcontractor

i. Injury as lost K = no standing

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ii. Injury as the inability to compete on equal footing = standing

iv. Mootness and Non-Ripeness (focus on timing)1. Mootness

a. Changed circumstances developing after initiation of lawsuit have ended the controversy (i.e. settlement, death, change in law)

i. Actual controversy must be before the court at all times

2. Ripenessa. Prevent premature adjudication; dispute too remote

or speculative in that not confrontation yet (no injury-in-fact yet)

3. Exceptionsa. Capable of repetition yet evading review (i.e.

pregnancy and abortion)b. Voluntary cessation of alleged behavior by

defendant (because defendant is free to resume the behavior)

c. Supreme Court Review of State Court Judgmentsi. Martin v. Hunter’s Lessee – established the legitimacy of Supreme

Court Review of state court judgments (both civil and criminal)1. Uniformity and final word/last resort 2. Affirmation of the constitutionality of §25 of Judiciary Act

d. Political Restraints on the Federal Courts i. Weapons of Legislative and Executive outside Art. III

1. Constitutional amendments2. Impeachment of Justices3. Congress to determine size and timing of S. Ct.4. Selection process of justices5. Executive enforcement

ii. Article III weapons1. Congressional discretion because of authority to create

inferior courts and define the appellate jx of such courts (Exceptions Clause)

a. Motives of legislature not questioned (Ex Parte McCardle)

iii. Limit on Congress’s Exception Power1. Congress may not interfere with essential/core functions of

the S.Ct. (absolute minimum is articulated, i.e. admiralty)2. Bill of Rights3. Cannot allow dismissed cases to be re-opened4. Cannot restrict jx in attempt to dictate substantial outcomes 5. Cannot violate other constitutional provisions

II. Powers of Congress

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a. Basic Framework: McCulloch v. Marylandi. Art. I §1 “All legislative powers herein granted shall be vested in a

Congress” – enumerated powers1. All residuary powers left to the states2. Ultimate sovereign as the people as a whole, not the states

a. Authority to charter a national bank as an implied right to choose means/delegate with discretion

i. Expanded the scope of Congressional authority

1. Republican Concern – tenuosness of the “house that jack built”

b. Justified based upon the “Necessary and Proper Clause” which gives Congress power rather than limits it (Art. I §8)

i. Necessary meaning desirable, not essential1. Example – establishing a post office

ii. Thus lesser role of courts in policing the boundaries of Congress’s judgment

ii. Importance of national supremacy – power to create entails power to preserve

iii. Constitutional interpretations1. structural (government)2. textual (constitution)3. historical understandings4. originalism (intent of the framers)5. evolution of understandings (living constitution/broad)

b. Commerce Power (Art. I §8)i. Pre-1995 Understanding

1. Pre-New Deala. Laissez-faire mentality and judicially unmanageable

standards (i.e. formalistic distinctions such as manufacturing v. commercial intercourse and indirect v. direct)

i. Change triggered with the switch in time that saved nine

2. Post-New Deala. Wickard v. Filburn – aggregation principle

regarding regulation of wheat grown for home consumption

i. Look at all similarly situated farmers and determine if a substantial effect of interstate commerce exists

ii. Rational basis for finding a substantial effect (quite deferential)

b. Heart of Atlanta Motel – evaluation of the racial discrimination of private accommodations providers

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i. Moral ends are acceptable uses of commerce clause power

ii. Discouragement of interstate travel and dampening effect on movement as a rational basis for concluding that there is a substantial effect

1. Still extremely deferential (essentially treating commerce power as a political question)

ii. Contemporary Understanding1. United States v. Lopez, 1995 – Gun Free School Zone Act

a. Permissible arenas involving commerce poweri. Use of the channels of interstate

commerce1. RR, planes, telecommunications

ii. Instrumentalities of, or persons of things in interstate commerce

1. RR safety, planesiii. Activities that substantially affect

interstate commerce (actual effect)1. Economic or Commercial in

naturea. Viewed in the aggregateb. If not econ/comm., view as

individual instance2. Jurisdictional Element

a. Limiting language regarding a nexus

3. Congressional findingsa. Regarding the effects upon

interstate commerce4. Areas of historical state

sovereigntya. Such as crime and education

5. Congress has a rational basis in exercising what is necessary and proper

a. Per Gonzales v. Raichb. Essential part of a larger

regulation of economic activity in which the regulatory scheme could be undercut unless the intrastate and non-economic activity were regulated

2. Post-Lopez

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a. U S v. Morrison – Violence Against Women Acti. Failed the “substantial effects” test because

connection between such violence and interstate travel is too tenuous

ii. Such limitations on Congress as a major shift

b. Gonzales v. Raich – Challenge of CSA application re: Compassionate Use Act (not commerce)

i. Must look at Congress’s comprehensive scheme and determine if rationale basis is had for the exercise of what is necessary and proper to regulate controlled substances

1. necessary and proper to regulate the channel by regulating possession/use

c. Spending Power (Art. I §8)i. Most significant power – Congressional power to provide for the

general welfare of the USA1. Congress may not coercively regulate for the general

welfare (would undermine the whole concept of enumerated and limited powers)

ii. Conditional spending requirements (South Dakota v. Dole)1. Spending must be in furtherance of the general welfare

a. Textual requirement2. Clear statement of the obligation and its terms

a. Nature of a contract3. Must be germane/related to the federal interest

a. Rather loose standard (O’Connor disagrees)4. Cannot induce unconstitutional action by states

a. Congress may, however, achieve objectives indirectly that it could not achieve directly, as long as the state enters into agreement voluntarily

5. Cannot be coercion (allusion to this factor)a. Importance of voluntary nature of state’s agreementb. Factors to evaluate include percentage of funds

being withheld and historical factorsi. Dole case - 5% a valid withholding

d. Treaty Poweri. Missouri v. Holland – Congress enacted a law to enforce a US-UK

treaty regarding migratory birds1. Necessary and Proper for Congress to enact law to carry

into execution powers vested by the Constitution in the government

a. Here the power is Constitutionally vested in the president to make treaties

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b. Treaties as the law of the land and prevail over all conflicting state law (conflict with federal law – last in time controls)

ii. Thus may use such treaty power to make legislation it would otherwise not have the power to enact

1. Such power structurally augments Congress’s other powers2. Congress still always bound by the constraints of the

Constitutiona. Treaties as the law of the land and prevail over

conflicting state lawb. If conflicting federal law then last in time controls

(first attempt to give effect to both)e. Power Conferred by Fourteenth Amendment, Section 5

i. Section 5 as the enforcement mechanism for other sections such as Equal Protection of §1 (mini necessary and proper clause)

1. US v. Morrison – federal civil remedy in Violence Against Women Act allowing victim to sue alleged perpetrator – exceeds Congress’s §5 power ↓

2. Required standard of “congruence and proportionality” between the injury to be prevented or remedied and the means adopted to that end not met

a. Congress under 14 Amendment authority may regulate only state and local governments, not private conduct

f. State Sovereignty-based Limits on Congress’s Legislative Authorityi. Tenth Amendment and the structural principles it presumes

1. New York v. US – low level radioactive nuclear waste policy compromise between officials challenged by N.Y.

a. Falls with Commerce Clause power via “substantial effects” test, and is an economic activity thus Congress could directly regulate the issue overall

i. However, Congress cannot regulate the State’s regulation of interstate commerce

1. incentives and encouragement ok (importance of choice)

ii. Officials cannot waive away federalist principles of sovereignty

1. Structural divisions of authority that are fundamental and will in the long run preserve liberty

b. “Commandeering” not allowedi. Congress cannot directly compel a state to

do something/administer a federal regulation1. Importance of political

accountability: if federal government can command a state, then the state

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bears the political costs without choice

c. Not commandeering if Congress is subjecting states to “generally applicable” laws (both gov’t and private individuals)

2. Printz v. US - Anti-commandeering policy applies also to:a. Local governments as well as to states, and tob. Executive authority

i. Cannot conscript officers to enforce/administer a scheme

1. permissible to make a recommendation to state legislature

a. use of concurrent authorityii. Distinguish prohibitions of conduct from

affirmative mandatesii. State Sovereign Immunity and the Eleventh Amendment

1. Sovereign immunity of the states via the 11A, however such immunity may be abrogated by 14A §5 power

a. i.e. Americans with Disabilities Act lawsuits

III. Structural Limits on State Powera. Dormant Commerce Clause

i. In the wake of Congressional silence, states cannot regulate in a manner that discriminates against or unduly burdens interstate commerce

1. Core purpose to prevent protectionism2. Only instance where Congress can overturn the Supreme

Court by speaking to the issue (thus no longer silent)3. Scope of dormant commerce clause same as regular

commerce clause (channels, instrumentalities, substantial effect)

Congressional Silence↓

Does the regulation discriminate against interstate commerce?↓ ↓

Yes No ↓ ↓

Rigorous means-ends scrutiny Determine if undue burden on inter. comm.↓ ↓

Yes, unconstitutional No, fine

ii. Facial Discrimination Against Interstate Commerce

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1. If so, then rigorous means-ends scrutiny is required to “smoke-out” the discrimination (Philadelphia v. New Jersey re prohibition of waste)

a. Ends must be legitimatei. May determine via a political cost-benefits

analysisb. Means must be the only available

i. Must be no non-discriminatory alternatives2. Rigorous scrutiny also applies to discrimination by local

governments as against both interstate and intrastate commerce (because intrastate commerce is still being advantaged in relation to interstate commerce) (Dean Milk v. Madison)

iii. Discrimination Against Interstate Commerce in Purpose or Effect

1. Facially Neutral Lawsa. Price floor for milk had the practical effect of

protecting in-state dairy farmers and disadvantaging out-of-state farmers (Baldwin v. G.A.F. Seelig)

b. Labeling requirement had the practical effect of incurring extra costs on out-of-state apple producers thus causing their loss of competitive advantage (Hunt v. Washington Apple Comm’n)

iv. “Undue Burdens” on Interstate Commerce1. Burden on interstate commerce must be clearly excessive in

relation to the law’s supposed benefitsa. Presumptive constitutionality, thus more deferential

2. Pike balancing of benefits and burdens (determine if the burden on interstate commerce outweighs the benefit to the regulating state)

a. Easy analysis if the benefit is illusory (Kassel v. Consolidated Freeways)

i. More difficult case involves value judgment which is usually entrusted to legislators

3. Extraterritoriality legislation as an undue burden on interstate commerce

v. Exceptions to Dormant Commerce Clause Review1. Congressional Authorization

a. Allows states to have total discretionb. Query whether authorizing act is within Congress’s

enumerated powers (i.e. commerce clause)2. Market Participation

a. Applies when a state or locality is a buyer or seller rather than a regulator

b. Regulating/governing outside of the market in which the state is participating is not permissible –

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distinguish sale of timber from the processing of timber (South Central Timber)

b. Privileges and Immunities Clause of Article IV, §2i. Part of a bundle of sections involving comity based on the

importance of the unity of one nation/interstate harmony1. Guarantees no substantive rights; focus on equality2. prohibits presumptive discrimination based on state

citizenshipa. Out-of-State citizens do not have political

representationb. Not an absolute prohibition (okay if substantial

reason and close relation had)c. Overlap with dormant commerce clause and equal

protection clause, buti. No exceptions to p&i (i.e. no market

participation doctrine)ii. Only individual citizens may challenge; not

corporations not aliensii. Test

1. Discrimination on its face to out-of-state residents2. Does the regulation/law burden one of the privileges

and immunities protecteda. Standard: only with respect to those “privileges &

immunities” bearing upon the vitality of the nation as a single entity must the state treat all citizens, resident and non-resident, equally

i. i.e. livelihood/pursing a common callingii. License fee for elk hunting not protected

3. Is there a “substantial reason” for the difference in treatment

a. More than a legitimate interestb. i.e. taxation in state as a subsidy; education as a

portable benefit (thus i in ensuring true resident)4. Does the discrimination bear a “close relation” to the

asserted interesta. Intermediate review

i. Determine if the nonresident constitutes a particular source of the evil at which the statute is aimed (United Building v. Camden)

b. Look to available alternatives/less restrictive means

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c. Preemption – When federal law and state law conflicts, state law is preempted (made null/void) to the extent of the conflict (Supremacy Clause); Statutory interpretation based on Congressional intent

i. Presumption against preemption principle when area is one which states have traditionally regulated

ii. Express1. Preemption by statement or by savings clause (articulating

what is Not preempted)iii. Implied

1. Conflicta. Impossibility

i. Where it would be impossible to comply with both the federal and state regulations

b. Frustration of Purposei. Where Congress has implicitly stated its

purpose and law in question would be an obstacle to the accomplishment of Congress’s purpose

1. Sprietsma v. Mercury Marine – Coast Guard’s silence on the matter demonstrated the purpose to be a lack of the need to interfere, not to ensure the absence of regulation at all (thus no preemption)

2. Fielda. Congress has regulated to such an extent that one

may infer the intent to leave no room for states to supplement or complement

IV. Executive Authority and the Separation of Powersa. Separation of powers to avoid the abuse of powers

i. Checks and balances involving branch intermingling and necessary coordination

ii. Executive power to enforce and execute laws vested in the president

1. Inherent authority exists beyond the Art. II enumerations? a. Absence of qualification on powers

2. Commander-in-Chief, Recommendations, Repreive and Pardon, Make Treaties with Senate Approval, Nominations and Appointments

b. Presidential Encroachment on Legislative Powersi. Executive Authority to Make National Domestic Policy

1. Youngstown Steel Seizure – unconstitutional presidential executive order to seize steel mills based on national emergency because of the Korean conflict

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2. Jackson’s 3 categories of Presidential Inherent Authority (formalistic)

a. Acts with the authorization of Congress i. Only an issue if the federal government as

an undivided whole lacks powerii. Presidential and Congressional power

combinediii. 99% of all presidential acts fall into this

category1. presumption of validity

b. Zone of Twilight with concurrent authority i. Murky area of fact and case-specific

situations involving Congressional silenceii. 1%

c. Acts against the express or implied will of Congress i. Only permissible when Congress does not

actually have the power to act upon this subject (i.e. unlawful interference with Constitutional power)

1. Such situations rarely occurii. Steel seizure executive order falls into this

categoryii. Executive Authority Over Foreign and Military Affairs

1. Generally more deference to executive authority and court is more willing to recognize inherent presidential power

2. Dames & Moore v. Regan – Executive agreement to end the Iran hostage crisis upheld

a. No statute addressing the third provision regarding judicial mediation thus analyzed as within the Zone of Twilight

i. Although Jackson’s categories actually part of a more complex spectrum

ii. Court ultimately infers Congressional authorization for the provision

c. Executive Discretion in Times of War or Terrori. Allocation of war powers

1. President as Commander-in-Chief2. Congress to declare war and to appropriate (raise and

support, supply and maintain armies)ii. Pre-Sept. 11th

1. Ex Parte Milligan – Civil War over with civilian courts open and functioning thus use of military tribunal to try US citizen non-soldier as unconstitutional

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2. Ex Parte Quirin – Military commission appropriate because of law of war issues pertaining to status as an “enemy belligerent”

3. Johnson v. Eisentrager – No extraterritoriality jurisdictioniii. Responses to Sept. 11th

1. Congresses joint resolution of express authorization for the use of military force (AUMF)

a. Presidential executive order for military commissions to try non-US citizen terrorists

2. Rasul v. Bush – Habeas Corpus jurisdiction is had over Guantanamo Bay detainees

a. Custodial power sufficient and special circumstances of Cuba

3. Hamdi v. Rumsfeld – US citizen detained in Guantanamo, designated as an “enemy combatant” and transferred to Virginia

a. Authority to detain enemy combatants had via express authorization via AUMF (plurality opinion)

b. Process that is due (so long as writ not suspended by Congress)

i. Notice of charges and fair opportunity to rebut them; and

ii. Quasi-judicial hearingiii. Battlefield captures are not afforded this

processd. Congressional Encroachment on Executive Powers

i. Non-delegation Doctrine1. Congress commonly delegates broadly to the executive

branch and to executive agencies → at what point does such delegation violate the separation of powers doctrine?

2. Legal standard (Whitman v. American Trucking Ass’n)a. Law must set out an “intelligible principle” by

which the agency can regulatei. The greater the power delegated, the more

specificity requiredii. But very low standard and easy to overcome

ii. Legislative Veto1. Legislative veto as a Congressional reservation of power to

veto executive action2. INS v. Chada – House of Reps vetoed agency’s finding of

hardship and ordered Chadha deporteda. Legislative veto found to be unconstitutional

i. “Finely wrought” process of making laws pursuant to Art. I §7 requiring

1. Presentment to president; and2. Bicameralism (both houses)

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ii. Nature of act involved – legislative in purpose and effect

3. Formalism v. Functionalisma. Formalist opinion in Chadha

i. Legislative in character, did not conform to Art. I §7, all legislative acts must conform, thus act is unconstitutional

b. Functionalist dissent focusing on purposesi. Broad purpose is separation of powers and

legislative veto as a means of balancing the power and preventing any one branch from getting too much; legislative veto necessary for keeping administrative agencies in check

4. Mechanisms left to Congressa. Pass a new lawb. Use the appropriations processc. Oversee via administrative agency reports

iii. Line-item Veto1. Congress attempting to give power away by giving the

president power to “cancel” certain appropriations provisions in statutes and approve the rest of the bill

2. Formalistic absence of bicameralism because what ends up becoming law was not passed in both houses (Clinton v. New York)

a. Also absence of presentment because bill already signed when items are cancelled

b. Thus line-item veto is unconstitutional3. Functionalistic dissent claiming that the nature and the

sheer number of appropriations in a bill make it impossible to pass each one as a separate bill

e. Congressional Control Over Executive Officersi. Appointment Power

1. President is given the authority to execute the law (via the Take Care Clause) with appointments and removals as part of this duty; Congress cannot interfere with this duty

a. Rationale – cannot have Congress enforcing its own laws; need certain politically insulated offices

b. Art. II. §2 cl. 2 grants the president power to appoint officers of the U.S. with the advice and consent of the Senate; Congress may vest the appointment of inferior officers as they think proper (may vest in president, courts or heads of departments)

i. Congress may not reserve any appointment power for itself

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2. Morrison v. Olsen (I) – Courts of law may appoint “inferior officers” including special prosecution/ independent counsel

a. Inferior officer based upon temporary nature of position; subservience to attorney general; limited jx

ii. Removal Power1. Power of the president based upon duty to execute the laws

(though Constitution actually silent)2. Early cases

a. Meyers – Presidential power to fire post master because (a) removal is incident to presidential Art. II powers; and (b) if officer is executive, the president must have unfettered removal power

b. Humphrey’s Executor – Removal of FTC officers only removable for “good cause” permissible because such officers were quasi-legislative/quasi-judicial in nature rather than purely executive

3. Recent casesa. Bowsher v. Synar – Officer removable only for

“good cause” per a provision of a Congressional joint resolution → unconstitutional because Congress cannot interfere with the removal of an executive officer nor with the execution of a law

b. Morrison v. Olsen (II) – Appropriate question:i. Whether the removal restrictions are of such

a nature that they impede the president’s ability to perform her Constitutional duty

1. Look to:a. Significance of the office; &b. Nature of the restriction

ii. Thus removal for “good cause” is permissible because the president still has ample authority to remove independent counsel through the Attorney General

c. Congress always has the alternative of removal via impeachment and conviction

V. Structure of the Constitution’s Protection of Civil Rights and Civil Libertiesa. The Bill of Rights to the States

i. Antebellum Era1. Barron v. Balitmore – Court found that the Fifth

Amendment does not apply to states, only to takings by the federal government

2. Bill of Rights as the First – Tenth Amendments

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a. Reconstructionist amendmentsi. 13 A codifies Emancipation Proclamation

(applies to private and government action)ii. 15 A prohibits discrimination on the basis of

race (applies to state and federal government)

iii. 14 A overrules Dread Scott and holds that states shall not abridge privileges and immunities, due process, not equal protection guarantees to U.S. citizens

ii. Slaughter-House Cases1. New Orleans slaughter house monopoly challenged on the

grounds that it violated the privileges and immunities of the 14 A; plaintiff claiming that the Bill of Rights applied as such a privilege and immunity (thus claiming that the Bill of Rights applies to the states)

a. Supreme Court rejects the concept of total incorporation of the Bill of Rights as applying to the states

i. Decision robs the privileges and immunities clause of any meaning until 1999

iii. Incorporation Controversy – what is due process per 14 A1. Right protected by die process if it is:

a. A principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental; implicit in a scheme of ordered justice (Palko)

2. Selective incorporation (Duncan v. Louisiana)a. Not in a “jot for jot” manner; i.e. no requirement

regarding number of jury members or unanimity requirement

b. Unincorporated amendments: 2 bear arms, 3 house troops, grand jury indictment requirement, ban on excessive fines (though changing), jury requirement in civil trial

b. Revisiting the Privileges and Immunities Clause of the Fourteenth Amendment

i. Saenz v. Roe – California residency duration requirement for welfare benefits struck down as unconstitutional

1. State interest in saving money was not substantial enough to justify this infringement on the right to travel/become a resident of another state (discrimination based on duration of residency)

2. seeming application of strict scrutiny of the state’s interest

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VI. Economic Libertiesa. Substantive Due Process of the Lochner Era

i. Early History and Lochner v. New York1. Right/liberty to contract as a substantial right of due

processa. Analysis

i. What is the right?ii. Does the law infringe upon this

Constitutional right?1. What is the weight of the

government’s interest? 2. How well does the law advance

those interests?a. Seemingly heightened

standard – rigorous review thus presumptively invalid

ii. Lochner’s Demise and the Modern Approach1. West Coast Hotel

a. Right to contract not found in the Constitutionb. Need legitimate state interests (equalizing

bargaining power of women as legitimate)c. Rational Basis review

i. Thus presumptively valid2. Carolene Products – exceptional deference to legislative

judgment thus rational basis review of filled-milk prohibition

a. Footnote 4 by Justice Stonei. General deference appropriate, however,

judicial intervention permissible when:1. legislation appears on its face to be

prohibited by the Constitution;2. Circumstances when legislation

infringes/blocks the political process;3. Law affects a discrete or insular

minority3. Lee Optical – Leave balancing for legislature to do; rational

basis reviewa. Law need not be in every respect logically

consistent with its aims to be Constitutional b. Takings Clause (Fifth Amendment)

i. Framework1. Physical occupation is per se a taking and requires

compensation2. Regulatory taking – when regulations on a property and

its use “go too far”

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a. Penn Central factors to determine if “too far”i. Economic effect of legislation

ii. Reasonable investment-backed expectations of owner

iii. Nature of the governmental actionb. Lucas v. Coastal Commission – taking per se occurs

if a regulation deprives the owner of all economically beneficial use of the property

i. If regulation falls short of this, then analyze via the Penn factors

1. Temporary regulations would be analyzed via Penn

c. Subsequent owner may challenge regulations and assert that a taking has occurred (takings claim runs with the property)

ii. “Public Use” and Kelo v. New London1. Standard – Public purpose or for public benefit

a. Economic development to benefit the public via jobs and tax revenue as a legitimate purpose

2. Rational basis judicial standard of review – deference to legislature

a. Legitimate interest and “not irrational” meansb. Takings evaluation in light of the plan as a whole

and defer to legislature to determine which properties are necessary

3. States are permitted to set stricter standardsc. Contracts Clause (Art. I §10)

i. Generally1. Applies to state and local governments but not the federal

governmenta. Applies only to existing contracts

ii. Private contracts1. Rational basis review (Blaisdell; factors per Energy

Reserves)a. Is the impairment of the contractual obligation

substantial?b. Is the interest legitimate?c. Are the means reasonable?

2. Need to compromise between individual rights and public welfare

a. Greater deference to legislative judgments regarding economic affairs

iii. Public contracts1. Heightened form of judicial review (intermediate)

a. Interests must be importantb. Means must be reasonable and necessary

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2. Fear of self-dealing

VII. Modern Era: Fundamental Rights Under Due Process Clausea. Noneconomic Liberties – Introduction

i. Constitutionally protected right to control the rearing of one’s children (Lochner Era)

1. Meyer v. Nebraska – Law prohibiting the teaching of foreign languages in school struck down

2. Pierce v. Society of Sisters – law requiring children to attend public schools struck down

b. Contraceptioni. Griswold v. Connecticut – Law prohibiting the use of

contraceptives struck down1. Right to privacy within the marital relationship

a. Fundamental principle of liberty and justice ifi. Implicit in a scheme of ordered liberty; or

ii. Deeply-rooted in the traditions and collective conscience of our people

b. Right to privacy as collectively enumerated in the Constitution

i. Zones of privacy found via penumbras formed by emanations

1. First, Third, Fourth, Fifth and Ninth Amendments

2. Importance of the level of generality at which a right is described

a. Court more likely to recognize narrow rather than broad characterizations

3. Fundamental rights analysisa. Is there a rightb. Is the law Constitutional via appropriate means-

ends analysis?

Fundamental Right Compelling i Necessary/Narrowly Tailored fit

Strict Scrutiny

Non-Fundamental Right Legitimate i Rational Relationship Rational BasisArt. IV §2 (Priv. & Imm) Substantial i Substantial Relationship IntermediateDormant Commerce Clause Legitimate i Necessary Means Hybrid

ii. Eisenstadt v. Baird – Equal protection prohibits a distinction between married and unmarried individuals

1. Right to privacy is morphing from physical rights in the bedroom to rights involving fundamental personal autonomy

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c. Abortioni. Roe v. Wade – Fundamental right to choose to have an abortion as

a matter of personal autonomy1. State interest must be compelling and means-ends fit must

be necessary/narrowly tailoreda. State interest in the protection of human life – only

compelling after viabilityb. State interest in safeguarding the health of the

woman – only compelling after the first trimester2. Thus trimester framework

a. First trimester – decision left to woman and physician entirely

b. Second trimester – regulations to protect woman’s health are permissible

c. Third trimester – state may proscribe abortioni. But must have a life or health exception

1. state interest cannot trump a woman’s right to her health/life

ii. Post-Roe Regulations1. Invalidated regulations

a. Waiting periods, spousal consent, provision of info, hospital requirements, reporting requirements

2. Regulations uphelda. Minors – must have a judicial bypass regarding

parental notification/consentb. Funding

i. Maher – law denying state funding for non-medically necessary abortions

1. A woman’s right to choose means a right to choose with freedom from governmental interference

ii. Harris – Denied funding even for medically necessary abortions and only paid if woman’s life was at risk or if pregnancy was a result of rape or incest

1. No affirmative obligation of the government to fund constitutionally protected rights; Right means freedom from interference

2. Government does not need to remove an obstacle not of its own making

iii. Rust – Prohibition to counsel abortion as a method of family planning

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1. Woman is in the same position as if the government was not funding family planning counseling at all

iii. Planned Parenthood v. Casey1. Central holding of Roe retained – State’s interest at

viability is compelling; and Abortion is a fundamental right (right to obtain an abortion without an undue burden)

a. Fundamental based on realm of personal liberty, autonomy and the equality of women in society

2. Stare Decisis standsa. Overrule only when factors present:

i. If rule is unworkable/judicially unmanageable

ii. If reliance not hadiii. If there has been an evolution of a legal

principleiv. If there have been significant changes in the

factsb. Legitimacy of the Supreme Court

i. To overrule Roe would appear to be bowing to political pressure rather than applying the law

3. New Frameworka. Pre-viability – determine in the regulation imposes

an undue burden on the woman’s choicei. Undue burden = purpose or effect of

imposing a substantial obstacle in the path of the woman seeking an abortion of a non-viable fetus

b. Post-viabilityi. State interest compelling thus state can

proscribe abortion entirely 1. Super-fundamental right of

health/life of woman4. Regulations

a. Upheld – medical emergency, 24 hour waiting period, parental consent for minors, reporting requirements

b. Invalidated – spousal notificationi. Substantial obstacle

ii. View from perspective of the affected population

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d. Family Relationshipsi. Marriage

1. Loving – Invalidation of ban on interracial marriagea. Freedom to marry as a fundamental part of due

process pursuit of happiness2. Zablocki – Invalidation of judicial permission requirement

for child support obligors to marrya. Means not narrowly tailored to state interest

3. Turner – Invalidation of prohibition of prisoner’s right to marry

a. Right to marry as fundamental thus strict scrutiny4. Concept of marriage as between one man and one woman

ii. Living Arrangements1. Moore v. East Cleveland – invalidation of zoning ordinance

narrowly defining “family” to not include a grandmother and her two grandsons who were cousins

a. Right/ability to define what your family is; matter of autonomy

2. Belle Terre – Upheld law preventing non-related individuals from living together

a. Thus limiting definition of family to relativesiii. Paternity

1. Michael H. v. Gerald D. – Law upheld presuming that child a product of the marriage; Upheld based on notions of what is deeply-rooted in tradition

a. Importance of the level of generality at which right is described

i. Here the right was described very narrowly, thus no support for it found in tradition

iv. Child Visitation1. Troxel v. Granville – Court-ordered grandparent visitation

violated the mother’s substantive due process rightsa. Fundamental right of parents to make decisions

concerning the care, custody and control of their children

e. Sexualityi. Bowers v. Hardwick

1. No fundamental right for homosexuals to engage in sodomy (narrowly defined issue)

2. Dissent would characterize issue as “the right to be let alone” based on the fundamental interest all individuals have in controlling the nature of their intimate associations

ii. Lawrence v. Texas1. Freedom to choose personal bonds and intimacies as

Constitutionally protected; Right of consenting adults to engage in intimate activity of their choosing in private

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a. Unclear as to whether this is a fundamental right or as to what standard of review is appropriate

b. Element of human dignity and equalityc. Kennedy’s use of European Court of Human Rights

and United Kingdom decisions2. Question regarding gay marriage reserved: government

need not give formal recognition to gay relationships3. Stare Decisis factors reworked:

a. Longstanding history (or lack thereof re: anti-sodomy same sex laws)

b. Planned Parenthood v. Casey as protecting intimate personal choices regarding dignity and autonomy

c. Reliance not hadi. Many courts declined to follow Bowers and

it was highly criticized

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Constitution of the United States of America

I. Article I – All legislative powers herein granted shall be vested in a Congress consisting of a Senate and a House of Representativesa. Section 1 – composition and electorsb. Section 2

i. Officers and impeachment – House of Representatives with the sole power of impeachment

c. Section 3i. Trial of impeachments – Senate with the sole power to try all

impeachmentsii. Judgment in cases of impeachments

d. Section 7i. Revenue bills

ii. Passage over veto of bills1. Bicameralism2. Presentment to president

iii. Passage over veto of resolutions1. Bicameralism2. Presentment to president

e. Section 8i. Powers of taxation (spending power)

1. provide for the common defense and general welfareii. Power to regulate commerce (commerce clause)

1. Regulate commerce with foreign nations and among the several states

iii. Post offices and post roadsiv. Patents and copyrightsv. Inferior tribunals – to constitute tribunals inferior to the supreme

courtvi. Offenses – piracies and felonies on the high seas and against the

law of nationsvii. Declare war

viii. Raise and support armies ix. Navyx. All necessary and proper laws

1. To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this constitution in the government of the US or in any department or officer thereof

f. Section 9i. Habeas corpus

1. privilege of the writ of h.c. shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it

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g. Section 10i. Powers denied to states

1. State shall not pass any law impairing the obligation of contracts

II. Article II a. Section 1 – The executive power shall be vested in a president of the USAb. Section 2

i. President shall be the commander-in-chief of the army and navyii. Power to make treaties with advice and consent of senate

1. Nominate with advice of senate2. Congress may by law vest the appointment of such inferior

officers as they think proper in the president alone, in the courts of law, or in the heads of departments

iii. Appointments during recess1. presidential power

c. Section 3i. Recommendations to Congress-Convene and adjourn Congress –

Receive ambassadors – Execute laws – Commission officers1. president shall take care that the laws be faithfully executed

d. Section 4i. Removal from office (impeachment)

III. Article IIIa. Section 1

i. Supreme Court and inferior courts1. Judicial power shall be vested in one supreme court and in

such inferior courts as the Congress may from time to time ordain and establish

b. Section 2i. Subjects and jurisdiction

1. Cases and Controversies ii. Jurisdiction of Supreme Court

1. original jurisdiction; and appellate jurisdiction with such exceptions and under such regulations as the Congress shall make (Exceptions Clause)

iii. Trial by juryc. Section 3

i. treasonIV. Article IV

a. Section 1i. Full faith and credit

b. Section 2i. Privileges and immunities of citizens

1. the citizens of each state shall be entitled to all privileges and immunities of citizens of the several states

2.

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ii. Delivery of fugitives (extradition)c. Section 4

i. Form of state governments – protection1. Guarantee clause

V. Article V – amendment of constitutionVI. Article VI

a. Prior debts invalidatedb. Supreme law (includes treaties)c. Oath of office

VII. Amendmentsa. 1 – religious and political freedomb. 2 – Right to bear armsc. 3 – Quartering soldiersd. 4 – Unreasonable searches and seizurese. 5 – Criminal actions; provisions concerning; Due Process of law; Just

Compensationf. 6 – Rights of the accusedg. 7 – Trial by jury on civil casesh. 8 – Cruel and unusual punishmenti. 9 – Rights retained by peoplej. 10 – Powers reserved to states or peoplek. 11 – Suits against states; restriction of judicial powerl. 12 – Election of president and vice presidentm. 13 – Slavery prohibitedn. 14 –Citizens of the US

i. No states shall make or enforce any law which shall abridge the privileges or immunities of citizens

ii. Nor deprive any person of life, liberty, or property without due process of law

iii. Nor deny to any persons within its jurisdiction the equal protection of the laws

iv. Section 5 power to enforce amendment – power to enforce by appropriate legislation the provisions of this article

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