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Meyler – Fall 2005

Constitutional Law Outline!

Fall 2005

Rules are in bold

Important dissent is underlined

I. Judicial Review

A. Marbury v. Madison (1803)

1. The case: The court established that it has the power to review acts

of Congress and determine whether they are unconstitutional. If

they are unconstitutional, the court has the power to strike them down.

In this particular case, the court invalidated the clause of the Judiciary

Act of 1789 that gave the Supreme Court the power to grant writs of

mandamus, saying that Congress did not have the power to expand the

scope of judicial powers beyond those granted in Article III, Section 2.

The court emphasized that the Constitution must be superior to ordinary

law, and that requires that ordinary statutes that conflict with the

Constitution must yield to the Constitution.

2. The commentary

a) This decision contradicted the judgment of some of the very people

who drafted the Constitution, since many of them took part in

legislating the Judiciary Act of 1789.

b) Other countries do not have judicial review yet can still maintain

constitutional government.

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c) Is the oath judges take to uphold the Constitution sufficient to

establish judicial review, especially since executive officers take

the same oath?

d) Could the framers’ intent have been for the Supreme Court only to

evaluate the procedural integrity of cases rather than substantive

law?

e) Severability: Can the Supreme Court declare part of a law

unconstitutional, while leaving the rest of the law intact? This

requires looking to the intent of the legislature.

3. The presidents on judicial review

a) Jefferson: Jefferson pretty much thinks that all three branches

should be judging the constitutionality of their actions, and that it

is unreasonable to give the Supreme Court the “last word” over the

other branches in deciding what is and is not Constitutional.

b) Jackson: Jackson says that the Supreme Court should have no

more authority over the other two branches than the other two

branches should have over the Supreme Court.

c) Lincoln: Lincoln worries that the power of individuals in litigation

will be hampered by the Supreme Court’s fixing the law in its

rulings for all time.

4. Learned Hand: “May a Congressman vote against a bill because he

believes it to be unconstitutional even though the Court has held to the

contrary? May the President veto such a bill on this ground?”

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5. The Federalist Papers on judicial review

a) Federalist 78: 1) The judiciary’s independence from the other

branches, afforded by the lifetime tenure of the justices in good

behavior, puts it in a good position to be a check on the legislature.

2) For the Constitution to be superior to normal statutes, the

Supreme Court must have the power to override unconstitutional

legislation. 3) Furthermore, the Constitution represents the

majoritarian will of the people having power over the legislature

(criticism: Can’t the unelected court be anti-majoritarian?)

b) Federalist 81: The Supreme Court and federal courts are not going

to have greater latitude than the state courts in interpreting the

Constitution.

B. Cooper v. Aaron (1958)

1) The government of Arkansas refused to enforce Brown v. Board of

Education because it claimed it was not a party in that case. The

court said that the Constitution is the supreme law of the land and

as such was is as binding on state government officials as it is on

the federal government whether they are parties in the original

case or not, noting that state officials take the same oath of office to

uphold the Constitution as federal officials.

2) Laurence Tribe: Tribe dismisses the views that Cooper only broadens

the Supreme Court’s power or that it makes the Supreme Court’s

judgments equivalent to the Constitution. He says instead that the

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judiciary is supreme in this respect not because its decisions are the

Constitution, but because the judiciary’s interpretations are supreme

under the Constitution.

3) Could Arkansas have said that its delay in desegregation was not

disobedience, but an attempt to prevent violence under its

constitutionally mandated responsibility to keep the peace?

C. Bush v. Gore (2000)

1) Justice Breyer, in his dissent, said that while the issue of whether or

not the Supreme Court should terminate the Florida recount in the

2000 presidential election was of national importance, it was a

political question, not a legal one, and thus beyond the scope of the

court’s powers of judicial review.

2) This decision was not supposed to be precedent for other decisions.

Breyer also criticized it because it was a split decision along party

lines that had to potential to undermine confidence in the court.

3) Alexander Bickel: Does the Supreme Court exert a counter-

majoritarian force because the unelected court can overturn the

decisions of an elected body?

4) Jesse Choper: The court’s counter-majoritarian decisions usually has

the effect of negating legislation, reinforcing the tendency of the

American political system to require broad consensus for major

changes.

D. Carolene Products footnote (1938)

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1) The appellee in this case claimed that the law that forbade him from

selling his product across state lines was unconstitutional under the

due process and commerce clauses. The court decided that the law

was constitutional and said that in the future it would apply a

standard of “rationality review” to economic legislation, in effect

giving such legislation the benefit of the doubt as to its

constitutionality unless the facts make it impossible to believe

there was a rational basis for the legislation.

2) There would be a different, tougher standard, however, for

congressional legislation dealing with “discrete and insular

minorities” or legislation within the scope of the first ten amendments

and the fourteenth amendment.

3) Jack Balkin: Balkin believes that in this footnote the court was trying

to bring into the political decision-making process groups which had

heretofore been excluded from political power but were subject to its

authority. Hence, the scrutiny for laws dealing with “discrete and

insular” minorities.

4) Bruce Ackerman: By showing that the political process has resulted in

the undemocratic situation of non-participation by “discrete and

insular minorities,” the court has, in the Carolene footnote, attacked

insinuations that it exerts a counter-majoritarian influence.

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5) Justice Lewis Powell: Did the Carolene footnote substitute one

judicial activism for another by championing the rights of “discrete

and insular” minorities instead of property rights as it did in the past?

6) Should only “discrete and insular” minorities be covered? Why not

groups that are not discrete, or not insular, or are not minorities (like

women)?

II. The Judiciary in Apartheid South Africa (also known as, “What happens if you

don’t have judicial review?”)

A) “Toward Racial Justice in South Africa”

This essay traces the evolution of the South African judiciary. Despite

some early experiments with judicial review, the Union of South

Africa adopted the British model of Legislative Supremacy, in which

Parliament’s acts could not be overturned by the courts.

Thompson: South Africa was too diverse ethnically and politically for the

British constitutional system to safeguard the rights of all the groups in

South Africa. The white minority could easily use its dominance of

the legislature to enforce arbitrary government.

The essay suggests that a lack of a Bill of Rights that could be upheld by

judicial review is connected with South African apartheid.

B) State v. Tuhadeleni and Others (1969)

This is what a court opinion looks like in a country without judicial

review.

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Some guys were arrested in Namibia (then under a South African

mandate) under the Terrorism Act. They tried to get the court to

declare that the Terrorism Act did not apply to them because the

Constitution Act supposedly did not give parliament the authority to

legislate in the mandate.

The court flatly said that it had no authority to invalidate parliamentary

legislation.

The court was not supposed to make policy determinations

The court only wanted to interpret the plain meaning of the statutes

and the Constitution.

The court was in a position of weakness and knew that it would be

restrained if it challenged the legislature.

The court did not believe pragmatically that it could enforce its

decisions even if it did exercise judicial review.

III. Political Question Doctrine

A) Nixon v. United States (1993)

Nixon, a federal judge, was convicted of making false statements to a

grand jury and was thrown in prison. He refused to resign, however,

so he was still getting paid. This pissed off Congress, so the House of

Representatives impeached him. The House presented the articles of

impeachment to the Senate, which delegated the task of sifting through

the evidence to a special committee. This committee then reported its

findings to the whole Senate, along with the House and the defense’s

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briefs. After three hours of oral argument, the Senate voted by more

than the required two-thirds majority to convict Nixon. Nixon sued

the government, claiming that the entire Senate was required by the

Constitution to “try” him, and that they didn’t do that because they

delegated much of the work to the small committee.

Textually-based reason: The majority said that this was a non-

justiciable (can’t be decided by the court) political question

because there was a textually demonstrable commitment of the

issue to another branch of government and a lack of a judicially

manageable standard for resolving it. Prudential reasons: The

Senate was given sole power under Article I, Section 3, clause 6 to

handle impeachments, which means the court is supposed to butt out.

Impeachment is also the only check on the judiciary, and giving the

judiciary review over that would violate the Separation of Powers.

The court is also too small. Furthermore, if the president was being

impeached and could appeal the decision in federal courts, there would

be an awkward possibility of two rival presidents.

The dissent held that the court should not so rashly give up its right to

review things like impeachment proceedings and should have reserved

the right to step in if the Senate did something egregious. Also, Souter

said the justiciability of a case should be decided on a case-by-case

basis. They also suggest that by the word sole, the court actually

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meant to distinguish the role of the Senate in impeachments from the

role of the House of Representatives.

B. Commentary on Nixon

1) Martin Redish: Is the court’s decision in Nixon consistent with

Marshall’s statement from Marbury that “it is emphatically the

province and duty of the judicial department to say what the law is?”

Martin Redish says no.

2) Herbert Wechsler: All the political question doctrine means is that the

courts have to judge whether the Constitution has committed a

decision to another branch, a judgment that requires constitutional

interpretation itself! Therefore it’s more than just a discretion to

abstain or intervene.

3) Louis Henken: Henken believes the political question doctrine is just

a packaging of a bunch of other established doctrines. All it says is

that the court has to accept “decisions by the political branches within

their constitutional authority.”

4) Michael J. Gerhardt: Nonjusticiability does not just say that a

government behavior is constitutional, it also closes off areas of

litigation for official misconduct in certain areas.

5) Does the Senate really have exclusive power to determine the nature of

impeachment proceedings? For example, could a federal judge seek

judicial review of an impeachment and conviction alleging something

obviously unconstitutional?

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6) Raoul Berger: Impeachment was designed to be a check on the

executive; there was no intention of delivering the judiciary or the

executive to the “unbounded discretion of Congress.”

7) Charles L. Black: It would be scary if the Supreme Court could

reinstate an impeached and convicted president.

Powell v. McCormack: Congress wanted to add qualifications to the existing

requirements for Congressmen. The court decided that this was

unconstitutional and different from Nixon because the way in which

impeachment trials are conducted is not specified in the Constitution, but the

way in which Congressmen can be qualified is specified in the Constitution.

Coleman v. Miller

Justiciability: The question was whether an amendment lapsed if it was

not ratified or whether a state could ratify an amendment it had

previously rejected was declared a nonjusticiable political question

by the Supreme Court because Congress was given exclusive

authority to do this by the Constitution. Allowing the unelected

court authority over the amending process which is supposed to go

to the people seems inappropriate. But what if Congress declared

that no black person could be involved in the ratification process?

Judicially manageable standards: The appraisal of things like political,

economic, and social conditions that would be necessary to

determine a reasonable length of time for amendment creates a

situation where there’s no judicially manageable standard.

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Prudence: Maurice Finkelstein suggests that political question derives

more from prudential concerns, where the court simply feels it is

inappropriate for it to act like when:

the issue is “strange” or “intractable”

the issue is momentous and thus likely to unbalance judicial

judgment

there is anxiety that the judgment should be ignored but will not

be

there is self-doubt in the courts from being an unelected

institution in a mature democracy

Gilligan v. Morgan: Students at Kent State sought to restrain the National Guard

so another massacre would not occur. The court of appeals ordered the

district court to investigate whether the training and weaponry of the National

Guard troops made the Kent State Massacre more likely, but the Supreme

Court under Burger said that the National Guard was the equivalent of the

Militia in the Constitution and that only Congress and the states, not the

courts, had the power to regulate it. If the courts could, would there be a

judicially manageable standard for making a remedy?

Pacific States Tel. & Co. v. Oregon: Oregon amended its Constitution to make it

so citizens could make legislate through an initiative process. This was

challenged by the petitioner on the grounds that every state in the Union was

to be guaranteed a “republican” form of government by Congress under

Article IV, Section 4 (guarantee clause) of the Constitution and that this

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behavior was “democratic” rather than “republican.” The court said that this

was a nonjusticiable political question because it was up a political decision

for Congress to determine what will be a form of “republican” government in

the states.

Luther v. Bordman: This case was cited in Pacific States Tel. and said that

Congress, not the courts can guarantee a republican form of government and

decide what that even is. Thus guarantee clause claims are not justiciable.

Baker v. Carr

Justice Brennan held that Tennessee’s legislative apportionment scheme

was justiciable and under the equal protection clause because it

involved the allocation of political power within a state.

The dissenting justices said that this was nonjusticiable because it fell

under the guarantee clause cases (see Pacific States Tel. and

Luther). Criticism: There might be a judicially manageable

standard here after all (one man, one vote?) and while the guarantee

clause may be nonjusticiable, there are claims which fall under the

guarantee clause but in addition deal with the equal protection

clause and are therefore justiciable.

Brennan says that not every case that deals with foreign relations is

beyond judicial scrutiny. While it’s up to the executive to

recognize foreign states, once sovereignty over an area is

determined, the courts can examine whether a statute applies in that

area.

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New York v. United States

The court decided that a federal statute requiring New York to legislate on

nuclear waste exceeded Congressional authority. In reply to the

suggestion that this might be a guarantee clause claim (and thus

off-limits to the court), Justice O’Connor hearkened back to pre-

Luther rulings in which the court treated guarantee clause claims as

if they were justiciable. She did not feel the need to say under what

circumstances guarantee clause claims would be justiciable, and in

this case it did not matter because the federal statute was not

threatening to change New York’s form of government anyway.

Hypo: If the court were to decide guarantee (of republican form of

government) clause cases were justiciable, would things like citizen

initiatives and referendums be attacked by the court as violations of

the guarantee clause (for being democratic rather than republican)?

Maybe the founders believed that republican government meant

citizen participatory government rather than a structure of

government and the guarantee clause is supposed to protect

participatory government in the states rather than a structurally

republican form of government.

Goldwater v. Carter

The court, dealing with a dispute between the executive and the legislature

over termination of relations with Taiwan without Congressional

approval, said the question was nonjusticiable because it involved

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foreign relations and a dispute between “coequal” branches of

government.

Justice Powell in his concurrence gave a prudential reason for not ruling

on this case since Congress had not yet taken any action to assert its

constitutional authority in confrontation with the executive branch.

He disagreed with the use of the political question doctrine here

because the Constitution did not unquestionably grant the power to

abrogate treaties to the president alone and there was no lack of

judicially discoverable and manageable standards. According to

this concurrence, this case does not match Nixon.

Justice Brennan in his dissent argued that while the courts should not deal

with the political decisions in cases where power is granted to a

coordinate political branch, the courts must first decide whether

that branch has the exclusive political power to make such political

decisions in the first place.

Are questions about participation in armed conflicts, deployment of the

military, and executive powers over the military justiciable?

See entry number 3 in this outline under Baker v. Carr.

Vieth v. Jubelirer

This was another gerrymandering case. The plurality said that while

gerrymandering to the advantage of a political party could be

unconstitutional if it went “too far,” there was no judicially

manageable standard for determining when such had happened, and

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thus this question was presumed to be nonjusticiable. Indeed,

Justice Scalia, writing for the plurality said that no judicially

manageable standard was even discernable for gerrymandering

cases.

Justice Kennedy in his concurrence said that while there was no judicially

manageable standard for identifying unconstitutional

gerrymandering in this case, it would be possible that a

gerrymandering case in the future might present one and that the

court should not dismiss all gerrymandering cases out of hand as

nonjusticiable. This closely resembles the dissents in Nixon.

The dissenters said that there were indeed judicially manageable standards

in this case, but all identified different ones. In the lecture, Meyler

suggested that the plurality was right in this case because the

dissenters disagreed with each other.

The “case-by-case” approach in Souter’s dissent in Nixon and Kennedy’s

concurrence in Vieth indicate a more functionalist approach to

separation of powers, by making sure each time that a branch is not

intruding on the powers of another. A more formal approach

(likely to be used by people like Scalia) would say that the rules of

which branch can do what are fixed from the beginning.

IV. The Necessary and Proper Clause

A) McCulloch v. Maryland

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The state of Maryland was trying to tax a federal bank for operating within

its borders without state authority. The state sued the cashier of the

bank and the Maryland Court of Appeals upheld the tax. This case

forced the court to consider (among other things) whether the federal

government had the power to establish the bank. The court decided

that Congress has the power under the “necessary and proper

clause” (Article I, Section 8, clause 18) to pass laws intended to help

it carry out its enumerated powers. Therefore, even though the power

to establish the bank was not specifically enumerated as being among

Congress’s powers by the Constitution, establishment of the bank was

connected with Congress’s effective exercise of its enumerated power of

the purse. Maryland interpreted the clause as limiting Congress’s

powers, claiming that Congress should only be able to pass laws that are

absolutely necessary for carrying out its enumerated powers. Marshall

took a broader view, saying that “necessary” in the necessary and proper

clause meant that Congress should be able to pass laws calculated to

produce an end related to Congress’s enumerated powers. The power to

establish a bank could be seen as a component of Congress’s power over

the purse. The court also noted that the necessary and proper clause was

among the list of things Congress could do rather than the things it

couldn’t do. The court finished by saying that the court would find

Congressional legislation not calculated to advance the ends of the

enumerated powers would be unconstitutional.

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U.S. Term Limits Inc. v. Thornton

This case involved a state placing new requirements beyond

those required by the Constitution for its congressional

candidates. The majority struck this down, drawing an

analogy to the court’s refusal to recognize the Constitution’s

silence on the subject of state power to tax corporations in

McCulloch to this case, where it refuses to interpret the right

to set qualifications for members of Congress as an original

right reserved to the states. The court said that the power to

set qualifications for membership in Congress is not a

reserved power of the states, but a delegated power of

national sovereignty. The majority also argued that the right

to choose representatives belongs to the people, not the

states.

In his concurrence, Justice Kennedy said that just because the

states ratified the Constitution the people can only delegate

power through the states of which they are citizens.

The dissent argued that “the people” means the people of the

states, not the people of the nation as a whole. They interpret

Madison as saying that the people of the several states are the

ultimate source of power.

B) Specified Powers as the Only Sources of Federal Legislative Power

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Kansas v. Colorado: The court ruled that Congress could not legislate to

irrigate non-federal lands because such a power does not have enough to

do with any of the enumerated powers. The necessary and proper

clause does not delegate new and independent powers to Congress,

but only provisions the making effective of its existing powers.

Panama R.R. v. Johnson: The court gave Congress the power to increase

the rights of injured seamen even though maritime legislation was not

one of the enumerated powers in Article I, Section 2 because Article III,

Section 2 of the Constitution granted Congress the implicit power to

legislate in this area.

Erie R.R. v. Tompkins: The court ruled that in diversity cases, federal courts

could not ignore the applicable state laws in favor of “federal common

law” because Congress did not have the power under the Constitution to

force states to accept substantive rules of common law.

V. The Commerce Clause – Origins and Expansion

A) Historical Background: The commerce clause is what authorizes most of

Congress’s national legislation. Initial commerce clause jurisprudence was

modest, limiting state power rather than expanding Congressional power.

Ever since the “switch in time” during the 1930s in which the court started

authorizing more of Congress’s economic legislation, Congress has had

extensive powers under the commerce clause. These powers often include

things that don’t seem to be related to commerce. Recently, the court has

been restricting these powers more.

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B) Gibbons v. Ogden

1) Ogden, who was licensed by the state of New York to operate a ferry

between New York and New Jersey tried to get an injunction in a state

court to stop a competitor, Gibbons, who was licensed by the federal

government to operate a ferry between the same states.

2) First, the court decided that commerce is more than just buying and

selling of goods, it encompasses many forms of “intercourse,” and

that includes ferrying people between states. Marshall reads

“commerce” broadly here.

3) Second, the court decided that Congress has the power to regulate all

commerce that is not confined completely within the borders of a

single state. Furthermore, if Congress can regulate this, the states

can’t.

4) Under Marshall’s ruling, Congress cannot regulate commerce that

occurs completely within the confines of a single state, commerce in

non-navigable waters, or manufacturing and trade.

5) States can’t burden or discriminate against interstate commerce.

6) Congress cannot interfere with the “police powers” of the states.

7) Congress began using this power in earnest with the passages of the

Interstate Commerce Act and the Sherman Act in 1887 and 1890,

respectively.

C) Paul v. Virginia: The court allowed Virginia to regulate interstate insurance

transactions on the grounds that insurance is not an article of commerce.

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D) Kidd v. Pearson: The court upheld an Iowa ban on the manufacture of

liquor intended for sale out of state on the grounds that manufacturing and

production are not forms of interstate commerce subject to regulation by

Congress.

E) Daniel Ball v. United States: The court upheld the enforcement of federal

safety regulations on a ship that was only operating in Michigan waters

because it was involved in transporting goods that would eventually be

destined for other states.

F) Hammer v. Dagenhart

1) Congress tried to prohibit interstate transportation of articles produced

by child labor.

2) The court says that this is beyond Congress’s authority. It gives as a

prudential reason that regulation of manufacturing is a local matter. It

also said that while use of child labor made for unfair competition,

legislation to prevent unfair competition was within the police powers of

the states.

3) Meyler seems to think that Congress could have gotten away with this if

it had done this through taxation rather than an outright ban.

4) Justice Holmes dissented, claiming that the fact that the articles were

intended for interstate commerce was paramount, and that the fact that

such regulation might have interfered with state policy was not enough

to invalidate Congress’s power to regulate.

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5) The court also struck down an attempt by Congress to regulate this sort

of thing through taxation on Tenth Amendment grounds.

G) Schechter Poultry Corp. v. United States: The court struck down a federal

code that regulated a poultry producer. The producer’s birds came from

other states, but were processed entirely within the state and only sold to

local retailers. The court said that there was not “direct” enough a

connection with interstate commerce to make this subject to regulation by

Congress.

H) Carter v. Carter: The court struck down federal regulations on coal mining

labor. The provisions of the code dealt with production and not commerce.

The court said that an activity had to have a “direct” rather than “indirect”

impact on interstate commerce to be within the realm of congressional

regulation. Meyler used the word “immediacy.” There must not be too

many intervening factors if Congress, rather than the states, is to regulate an

activity.

I) NLRB v. Jones & Laughlin Steel Corp.

1) After the “switch in time” the court upheld an application of the

National Labor Relations Act to a steel mill that wrongly discharged its

workers. The court said that while the manufacturing itself was the

subject of local regulation, the potential “seriousness” of the

consequences of a strike to interstate commerce justified an intervention

from Congress. The court paid some lip service to federalism and

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reiterated that some things were still too remote from interstate

commerce to be subject to federal regulation.

2) The dissenting justices criticized the majority’s interpretation of the

“seriousness” of the possibility of the strike, since only ten workers were

laid off.

J) United States v. Darby

1) This case involved two provisions of the Fair Labor Standards Act. The

first of these provisions kept goods manufactured under suboptimal

working conditions from even entering the channels of interstate

commerce. The second required employers to conform to federal wage

and hour conditions when making something intended for interstate

commerce.

2) This decision consciously overturned Dagenhart. The court said

that so long as congressional regulations of commerce did not

violate a constitutional provision, they would be upheld. The court

said that Congress could regulate anything with a “substantial

effect” on interstate commerce. The court would give Congress the

benefit of the doubt in deciding what a “substantial effect” is. The

end of the opinion appears to downplay the importance of the Tenth

Amendment. This decision was unanimous.

K) United States v. Sullivan: The court upheld the conviction of a druggist who

improperly labeled drugs in his store, even though they had already

completed their time in transit between states. The court said that

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Congress’s power to regulate commerce was effective from the moment of

introduction into interstate commerce to the delivery to the consumer.

L) Scarborough v. United States: The court upheld a federal ban on possession

of firearms by convicted felons so long as the firearms had at some point

been involved in interstate commerce.

M) Wickard v. Filburn

1) Federal regulations on agriculture prevented a farmer from growing

wheat separately for his own consumption.

2) The court decided that although what the farmer was doing was local

and confined to his own household, if enough people did what the

farmer was doing, the effect on interstate commerce would be

substantial. By growing extra wheat for himself, the farmer was

increasing the supply and diminishing the demand, something that

Congress is allowed to regulate.

3) This decision extended commerce clause powers to encompass the

activities of individuals.

N) Maryland v. Wirtz: The court extended the reach of commerce clause

powers to schools and hospitals because they are major users of products of

interstate commerce.

O) Perez v. United States

1) The court upheld a federal ban on loan sharking even on a local level

because it was a component of organized interstate crime. If Congress

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can regulate a class of activities, the courts can’t overturn an instance of

that regulation because that instance is individually small.

2) The dissent was not satisfied with the reasoning that loan sharking could

be subject to regulation by Congress because it was a component of

interstate crime. The dissent said that all crime can have interstate

components, but it’s still up to the states to combat it.

3) Because of the highly integrated nature of the modern American

economy, does the “aggregation” principle allow Congress to regulate

just about anything anyone does?

P) Woods v. Cloyd W. Miller Co.: The court upheld federal controls on

housing rents instituted during wartime under Congress’s war powers after

the hostilities had ceased because they were motivated by a housing

shortage that was created by the war even though the war was over.

VI. The Commerce Clause – New Limitations

A) United States v. Lopez

1) The court struck down the Gun-Free School Zones Act which made it a

crime to knowingly possess a firearm in a school zone.

2) The court said that Congress had the authority to regulate:

a) The use of the channels of interstate commerce – possession

of a gun in a school zone is not commerce, so the act fails here.

b) The instrumentalities of interstate commerce – the act did not

limit the reach of Congress’s power to a discrete set of firearms

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possessions that had a connection with or effect on interstate

commerce. (Meyler seems to think this factor gets more weight)

c) Things which have a substantial effect on interstate

commerce – Congress did not make findings sufficient to the

court’s satisfaction that possession of guns in a school zone

affects interstate commerce. The connection between the effects

of such crimes (like making people afraid to go to school) and

interstate commerce was too attenuated for the court to allow this

regulation under the interstate commerce clause.

3) The court said that allowing the “costs of crime” to “national

productivity” arguments to justify Congress’s actions would give

Congress authority to regulate all violent crimes and activities which

might lead to them. The court did not wish to give Congress this much

power.

4) The court affirmed the use of rationality review, but said it would be

stricter about applying it from now on.

B) United States v. Morrison

1) The court struck down a provision of the Violence Against Women Act.

2) The court closely followed its reasoning in Lopez:

a) Gender motivated violence is not commerce.

b) The section of the Violence Against Women Act in question

does not contain a jurisdictional element limiting the federal

cause of action to cases involving interstate commerce.

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c) While unlike in Lopez, Congress made findings as to the effect

of gender motivated violence on interstate commerce, the court

was not satisfied with them.

d) The suppression of crime, as the court also said in Lopez is one

of the states’ “police powers” and it would demolish the

distinction between state and federal power to give Congress the

power to legislate in this realm.

5) If something does not involve the channels or instrumentalities of

interstate commerce, it is the states’ to regulate, not the federal

government.

6) Unlike the majority, the dissent was satisfied by the congressional

findings that violence against women affects interstate commerce. The

dissent cited Wickard to argue that instances of violence against women

could have an aggregate effect on interstate commerce. The dissenting

justices were also unhappy with the majority’s creation of a formalistic

set of activities which were beyond the scope of Congress’s commerce

clause powers. They were also perplexed as to why the fact that the

states requested this action from the federal government did nothing to

persuade the majority that this was a national problem in need of a

national solution. Other dissenting justices rejected a strict federal/state

dichotomy in power distribution.

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C) Jones v. United States: The court decided that federal arson statutes did not

apply to owner-occupied residences that were not being used for

commercial purposes.

D) Jesse H. Choper and John C. Yoo: The influence of the law and economics

movement has allowed Congress to say that a lot of the crimes it is

attempting to regulate have economic motives.

E) Solid Waste Agency of Northern Cook County v. United States Army Corps

of Engineers: The court overturned a federal statute regulating waste

dumping in an isolated, nonnavigable body of water. The dissent argued

that this is precisely what Congress should be regulating because dumping

waste in the water usually has an economic motive.

F) Nelson and Pushaw: The framers of the Constitution may have wanted

economic uniformity, but not political, social, and cultural uniformity

among the states.

G) Stephen Gardbaum: It’s not a matter of protecting the states from federal

intrusions, but of properly allocating responsibility for a particular problem

to the level of government best equipped to handle it.

H) Gonzales v. Raich

1) A federal statute here conflicted with a California statute that allowed

people to grow their own medical marijuana.

2) The majority argued that allowing people to grow their own marijuana

would have an effect on the illicit market for the drug, making the

activity economic and under the purview of Congress’s powers under

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the commerce clause. The majority was skeptical of California’s ability

to seal off the medical marijuana from the national market and said that

the small number of people growing it did not matter because of the

aggregate effect (Wickard) of many people doing it. The majority is

presuming that Congress’s actions are acceptable.

3) Scalia’s concurrence said that this was allowed not only under the

commerce clause, but possibly also under the necessary and proper

clause. Since the ban on growing marijuana was authorized under the

commerce clause and Congress’s purpose in enacting the law was

preventing drug use, the necessary and proper clause would support this

ruling since this ban was necessary and proper for enacting Congress’s

anti-drug policy.

4) The dissent argued that regulating things like the growing of drugs

would fall within the states’ “police powers.” O’Connor said, “To draw

the line wherever private activity affects the demand for market goods is

to draw no line at all, and to declare everything economic.” As for the

necessary and proper clause reason, O’Connor said that something more

than a bare assertion by Congress is required for it to be able to justify

power over a local activity to prevent the necessary and proper clause

from being a back door to unconstitutional federal activity. As for the

Wickard connection, Congress actually made a case there for the

connection between how much an individual farmer grew and the

national market. Here, Congress didn’t do that.

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VII. Federalism and State Sovereign Immunity

A) New York v. United States

1) The majority found that Congress can tax revenue earned by the state so

long as that revenue was not earned in some way that only a state can

earn revenue. The tax must be non-discriminatory.

2) Justice Stone thought that even non-discriminatory taxes were

unconstitutional if they interfered with the state’s performance of its

governmental functions.

3) Justice Douglas thought that if local governments were among the things

that the federal government could tax, the ability of the local

governments to serve their citizens would be curtailed.

B) Massachusetts v. United States: The court said that if the states’ immunity

from federal taxation were extended beyond revenue from traditional state

functions, the burden of the immunity would fall on the federal government,

and no constitutionally protected value would be helped by this. Also, the

political process, by which the federal government decides who to tax and

how, is a better way of accommodating demands for national revenue and

state independence. A non-discriminatory tax to pay for a government

service that affects all its beneficiaries, including the states, is not offensive

to the Constitution.

C) Federal Immunity from State Taxes: The court has never questioned that

the states cannot tax the federal government.

D) Maryland v. Wirtz

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1) Congress can not only tax, but can also regulate state-run schools and

hospitals because their activities affect interstate commerce in the same

way that the activities of privately owned hospitals and schools do.

When exercising its “delegated power” the federal government can

override state interests whether those are governmental or proprietary in

character.

2) The dissenters did not like the idea of the federal government forcing the

states to either spend millions more dollars on hospitals and schools or

reduce services in them.

E) National League of Cities v. Usery: Rehnquist overruled the above

principle in Wirtz. It is not within Congress’s power to regulate how

states carry out their governmental functions. Justice Blackmun was

uncomfortable with this, but liked Rehnquist’s balancing approach.

F) Garcia v. San Antonio Metropolitan Transit Authority

1) This case was about application of the Fair Labor Standards Act to

municipally-owned and operated mass transit systems.

2) The court said there were four standards from Hodel that a federal

statute had to meet to be unconstitutional:

a) The federal statute must regulate the “States as States.”

b) The statute must address matters that are “indisputably attributes

of state sovereignty.”

c) State compliance with the statute would have to directly impair

the states’ ability to structure its governmental operations.

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d) Federal intervention must not be justified by federal interests.

3) Only standard c) is in question here. The court did not want to expressly

declare what state “governmental functions” are. The court rejected a

“historical standard” of what state governmental functions are because it

would prevent the court from accommodating changes in the historical

functions of the states. The court also rejected a non-historical standard

for finding immune state governmental functions because there could

not be a judicially manageable standard for finding this out. The court

ended up rejecting the entire notion that it could design a

freestanding standard of what is and is not a state governmental

function for determining state sovereign immunity for the purposes

of the commerce clause.

4) The court placed its faith in the political process to protect state

sovereignty, given the states’ electoral role. The court reasoned that the

procedural design of American federalism is enough to protect state

sovereignty and that the courts should only intervene when those

political processes have failed to protect states’ power. The court

emphasized that states frequently get federal funds and are exempt from

a wide variety of obligations imposed under the commerce clause. The

majority said that those processes did not fail here, so this statute was

constitutional.

5) The dissent was not satisfied with the majority’s reasoning that the

political processes, by virtue of state participation in federal electoral

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politics, would protect state interests. The majority did not explain how

this would work. The dissent was also unsatisfied that the success of the

states in acquiring federal funds was enough to show that state

sovereignty was adequately protected. The dissent would have preferred

the approach that balanced state and federal interests from National

League of Cities.

G) South Carolina v. Baker: Justice Brennan, while recognizing that regulation

of states could still be attacked on political procedural grounds, allowed

Congress to ban certain types of state bonds on “anecdotal” rather than

“concrete” evidence that the bonds were being used to dodge taxes.

H) Gregory v. Ashcroft: O’Connor’s majority refused to apply the Federal Age

Discrimination in Employment Act to the state governments saying that

Congress has to be clear in the language of its statutes that it intends to alter

the balance of state and federal power. The remaining justices from the

Garcia majority dissented, believing that this contradicted their decision in

that case.

I) Printz v. United States

1) Part of the Brady Bill required state executive officials to determine

whether handgun sales were lawful under the statute.

2) Cutting against Garcia, the majority said that historical precedent did

not allow Congress to impose federal responsibilities on state officers

without the states’ consent. The majority also complained that federal

power would be unacceptable enhanced at the expense of state power if

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the federal government, at no cost to itself could press state officials into

its service. The majority was also wary of allowing Congress to get

around executive power of the President by requiring state executive

officers to enforce its laws rather than allowing the President to do so.

3) The majority’s main concern however, was that Congress, through this

statute could force state governments to administer federal policy,

something incompatible with independent, autonomous state

authority. This provision of the Brady Bill was thus

unconstitutional. The fact that the states, rather than the federal

government would be expected to pay for this made it much worse.

4) Justice Blackmun has a broad view of what state sovereignty is and is

not. Basically, he seems to think that whatever the federal government

doesn’t do is in the realm of state sovereignty.

5) O’Connor’s concurrence said that it was important to note that this

decision did not affect “purely ministerial” federal requirements on

states, like the reporting of missing children to federal authorities. It

would only prevent Congress from forcing state officials to administer

federal regulatory programs.

6) The dissent warned that this decision might curtail Congress’s ability to

deploy state officials to respond to an emergency. They said that

Congress has already taken care of the problem of unfunded mandates in

other legislation and that limiting the ability of Congress to enlist the

help of state officials in enacting its programs creates an incentive for

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Congress to further aggrandize itself. The dissent also pointed out that

central governments in other federal systems enlist elements of local

governments to help carry out their programs.

7) Meyler believes the court might have allowed this to slide if the

participation of the state executive agents were a) voluntary or b) a

necessary condition of receiving federal funds.

J) D. Bruce La Pierre: Private interests use the political processes to combat

federal intrusion into their interests. By doing so, they also protect state

agents who are doing the same thing!

K) Laurence Tribe: Perhaps requiring state officials to merely gather

information is a tantamount to forcing them to administer a federal program,

but merely requiring them to report existing information is not.

L) Reno v. Condon: The court unanimously allowed Congress’s Driver’s

Privacy Protection Act which barred state departments of motor vehicles

from selling personal information about drivers on the grounds that sale of

such information is interstate commerce!

M) Garcia and Printz are broadly about Congress’s commerce power and the

effect it has on the states.

N) Jinks v. Richland County: The court unanimously allowed Congress to toll

state statutes of limitations for state law claims which are declined by a

federal court and must be re-filed in state court. While Congress does not

have unlimited power to regulate state courts’ procedure, state statutes of

limitations are not immune from Congressional legislation.

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O) Meyler on formalist vs. functionalist approach:

2) A formalist approach (like the one used by Scalia) prefers bright-

line rules and imposes specific limitations on federal or state

actors. Formalists will prefer to look directly to the text of the

Constitution and will prefer to say that things have not changed

much since the eighteenth century.

3) A functionalist approach (like the one used by Blackmun) prefers

to employ standards and balancing tests. Functionalists will look

at the history of constitutional interpretation and focus on the

Constitution’s adaptability.

VIII. Congress’s Enforcement Powers under the Fourteenth Amendment

A) Meyler on the equal protection clause of the Fourteenth Amendment:

1) The equal protection clause of the Fourteenth Amendment applies to all

persons in the United States, not just citizens. The amendment also

specifies who is a citizen.

2) The court has three levels of scrutiny for examining Congress’s

legislation under the Fourteenth Amendment (from strictest to most

lenient):

a) Strict scrutiny: The legislation must be the least restrictive

alternative for what Congress is trying to accomplish and must

serve a “compelling” end. Most legislation will not survive this

level of review without modification. Statutes that could

35


discriminate on the basis of racial and/or national origin typically

get this level of review.

b) Intermediate scrutiny: The legislation must closely fit what

Congress is trying to accomplish. This must serve a “substantial

and significant” end. Legislation dealing with gender will

usually get this level of review.

c) Rationality scrutiny: The legislation must have a conceivable

rational relationship with what Congress is trying to accomplish

and must serve a “legitimate” end. Just about everything not

dealing with race or gender will get this level of review.

B) Katzenbach v. Morgan

1) A provision of the Voting Rights Act of 1965 prohibited enforcement of

a New York law requiring the ability to read and write English to vote in

New York.

2) Brennan uses rationality review here to say that the legislation can easily

be said to be adapted to the end of preventing discrimination against

non-English-speaking voters.

3) Brennan also said the courts did not have to declare the New York law

unconstitutional under the equal protection clause before Congress could

act because, just like in McCulloch, the necessary and proper clause

gave Congress the power to pass laws that would allow it to exercise its

anti-discrimination powers under the Fourteenth Amendment.

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4) The practical effect of the law was to discriminate against Puerto Rican

voters in New York, even if the intent was to merely set voter

qualifications. The majority said this was enough to allow Congress to

act. The court would not look at Congress’s findings to see whether

there was actual discrimination, but would trust Congress to determine

whether there was any discriminatory intent in the state’s action.

5) Justice Brennan said that discrimination actually occurred here and that

the right to vote is a preservative of all other rights. Not allowing a

particular minority group to be included in the political processes was

something that the court was trying to fix in the Carolene Products

footnote.

6) The dissenting justices agreed that while Congress has the power to take

remedial measures under the equal protection clause and the necessary

and proper clause, they disagreed that the remedial measure here was

actually fixing anything. There were not enough findings by Congress

that Puerto Rican voters were actually experiencing discrimination. If

Congress had found what the dissent believed to be enough legislative

facts, the dissent might have agreed with this ruling. The dissent also

believed that states should get the same benefit of the doubt as to their

legislation as Congress gets.

C) Meyler says that Congress cannot create substantive new rights, it can only

remedy violations of existing rights.

D) Boerne v. Flores

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1) This case involved a city government’s attempt to deny a Catholic

Church a building permit that would have involved the demolition of

one of its old churches because the city viewed the old church as an

historical landmark. The church challenged this under the Religious

Freedom Restoration Act which prohibited government from

substantially burdening a person’s exercise of religion even if the burden

results from a generally applicable rule unless the burden furthered a

“compelling state interest” and was the least restrictive means of

advancing that interest. The Religious Freedom Restoration Act was

inspired by a furor ignited when a controlled substances statute

prevented a man from using peyote as per the requirements of his

religion in Employment Division v. Smith.

2) Writing for the majority, Justice Kennedy said that the Religious

Freedom Restoration Act was unconstitutional. He reiterated that

Congress can only remedy violations of constitutional rights, it can’t

create new ones. Congressional legislation intended as a remedy for

a violation of a right must be “congruent and proportional” to the

injury being remedied or prevented. If it’s not, Congress is

effectively creating a substantive new right. There was no

constitutional right being remedied, only generally applicable laws that

happened to inconvenience religious practices.

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3) The majority also said that if Congress could say what the Fourteenth

Amendment did and did not mean, the condition of the Constitution as a

“superior, paramount law” would be threatened.

4) Congress did not offer enough evidence to convince the majority that the

laws being challenged under the Religious Freedom Restoration Act

were motivated by religious bigotry. Kennedy said there would be

enormous costs to states as a result of litigation under the act that would

be far out of proportion to the supposed injury that the act is attempting

to remedy.

5) In his concurrence, Justice Stevens said that this act violated the

establishment clause because it made a remedy available only to

religious people and not to atheists or agnostics. Meyler spoke about a

possible inherent tension between the establishment and free ex” would

be threatened.

6) Congress did not offer enough evidence to convince the majority that the

laws being challenged under the Religious Freedom Restoration Act

were motivated by religious bigotry. Kennedy said there would be

enormous costs to states as a result of litigation under the act that would

be far out of proportion to the supposed injury that the act is attempting

to remedy.

7) In his concurrence, Justice Stevens said that this act violated the

establishment clause because it made a remedy available only to

religious people and not to atheists or agnostics. Meyler spoke about a

39


possible inherent tension between the establishment and free exercise

clauses.

8) The dissenting justices believed that Smith had been wrongly decided

and that a proper decision in this case required a reevaluation of that

case.

9) Mark Tushnet: Boerne is a modern day Marbury. Congress was trying

to say how the Constitution is supposed to be interpreted and Justice

Kennedy reasserted that the court, not Congress would decide what

standards to apply in determining what is and is not constitutional.

Should the court have the last word? The court is better able to examine

the Constitution and its interpretations of the Constitution are more

stable than that of Congress, it might be the better choice. On the other

hand, Tushnet reminds the reader that Congress is more representative

of the popular will and is better able to see how Constitutional rights

work in practice.

E) McConnell: McConnell asks whether there are any judicially manageable

standards for balancing the impact of a law on religious freedom against

public interest.

F) Rome v. United States: The court upheld the Attorney General’s refusal to

approve changes to Rome, Georgia’s electoral system because they would

have created de facto discrimination against black voters. The fact that

there was a discriminatory effect in an area that had a history of

discrimination against black voters was enough to convince the majority,

40


even though there had not been any voting discrimination in the past

seventeen years. The dissent did not agree that Congress could be said to

have been acting remedially when it presumed purposeful discrimination in

a locality even after the locality has disproved discrimination.

G) Kimel v. Florida Bd. of Regents

1) The majority held that states were immune to suit under the Age

Discrimination in Employment Act. The court decided that the act was

not a proportional remedy to the problem of age discrimination, and as

such was not preventing unconstitutional behavior. Employees affected

by age discrimination would have to look to state statutes for remedies

instead.

2) The dissent said this should have turned out the other way because

Congress needs to have the power to enforce federal remedies against

state agencies that violate federal statutes to make the power to impose

those statutes meaningful.

H) Florida Prepaid Postsecondary Education Expense Board v. College

Savings Bank

1) The petitioner accused the state of violating one of his patents and

pulling sovereign immunity to prevent his claim from being enforced.

2) The majority said that Congress could provide remedies (in the form of

the Patent Remedy Act) in cases like this where the states don’t offer

any remedies or inadequate remedies, since only in such cases could

there be said to be deprivation of property without due process. Just

41


because the state-provided remedies are less convenient does not mean

they are not adequate.

3) The dissent argued that the patent system has always been nationally

uniform in nature and that state judges are unlikely to have the

experience or the impartiality to try cases like this. The Patent Remedy

Act was based on the “substantiated fear” that states would be unwilling

or unable to provide remedies for their own patent violations. The

dissent also argued that the act did not interfere with state law, but only

effectuated an existing policy which confined patent litigation to federal

courts.

I) United States v. Morrison

1) This is the same case that was discussed earlier. The court held that

Congress has no power to grant civil remedies for gender-motivated

violence despite evidence that state officials perpetuated gender

stereotypes that affected how they investigated gender-motivated

crimes.

2) The majority held that since the statute was directed against individuals

who committed the crimes and the Fourteenth Amendment’s equal

protection clause was only supposed to apply to the states. The statute

was directed at the criminal, not the investigators of crime.

3) The dissent said that conduct did not have to be unconstitutional for

Congress to enact remedial legislation, citing Boerne and that Congress

42


did not have to document the discriminatory behavior in every single

state. The findings made by Congress were sufficient for the dissent.

J) Ira C. Lupu: Maybe Congress could attack domestic violence under the

Thirteenth Amendment by likening it to slavery.

K) Board of Trustees of Univ. of Ala. V. Garrett

1) This case involved a suit against the state for not providing disabled-

accessible accommodations for employees in one of its buildings under

the Title I Americans with Disabilities Act.

2) The majority only applied rationality review here. Rehnquist said that

under the equal protection clause, states only have to refrain from

actively discriminating against the disabled; they do not have to go out

of their way to accommodate them. Any accommodations for the

disabled would have to be mandated by a statute, not the equal

protection clause. A complaining party would have to show that there

was no rational basis for the employer’s decision.

3) The majority added that unlike the Voting Rights Act, the Americans

with Disabilities Act is not congruent or proportional to actual injuries it

is said to remedy.

4) The dissent thought that there was indeed enough evidence to show a

pattern of discrimination to make the remedy of the Americans with

Disabilities Act Congruent and proportional. The majority was accused

of requiring far too much proof from Congress, and the dissent reiterated

that Congress is in a better position than the courts to make and judge

43


findings of discrimination. Congress should not be held to the same

standard as the courts in its examination of evidence. The dissent

marveled at how the majority applied a harsher standard of review to the

Americans with Disabilities Act which helps disabled people than the

actions of the state which hurt them.

L) Nevada Dep’t of Human Resources v. Hibbs

1) Nevada was giving female employees longer parental leave than male

employees and was sued for doing so under the Family and Medical

Leave Act. This was challenged on the grounds that it by giving women

longer medical leave, the stereotype that women belonged at home with

the children was advanced.

2) This is an example of the stronger standard of intermediate review being

applied instead of rationality review. In a strange decision for

Rehnquist, the majority was in this case satisfied by the evidence that

the states were participating in and fostering gender-based

discrimination in granting longer parental leave to women.

3) The act was a “congruent and proportional” remedy to the targeted

violation by which female employees were stigmatized and hired less

because they were required to get longer parental leave. The fact that

this was narrowly targeted to family leave rather than “every aspect of

the state employers’ operations” as in Garrett helped convince the

majority.

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4) The dissent was not satisfied with the quality of Congress’s findings

regarding gender discrimination in the passage of the act. The dissenters

also felt that the discriminatory conduct was limited to a few states and

that state sovereign immunity should not be abridged across the board

M) Tennessee v. Lane

1) This case involved private individuals suing the state under the

Americans with Disabilities Act for not providing disabled access to the

courts.

2) The majority ruled that Title II of the act’s requirement of program

accessibility was enough to enforce disabled persons’ access to the

courts. To the majority, this case was not about whether Congress could

subject the states to private suits for failing to provide program access,

but the power of Congress to enforce the constitutional right of access to

the courts.

3) The dissent was not convinced that there was any evidence that disabled

persons were not getting their constitutional right to access to the courts

(no congruence and proportionality). The justices said that the

constitution is only violated when someone is denied access to a judicial

proceeding, not when they simply cannot make it into the courtroom

without assistance. The dissent also disliked the case-by-case as-applied

analysis the majority said it planned to use, since the states would be

fending off constant litigation from individuals testing the law. Scalia in

his extra dissent said he doesn’t like prophylactic measures like this.

45


4) Meyler thinks the dissents reasoning would allow states to discriminate

against the disabled so long as they made it sound like the law was

intended to do something else. She adds that state legislatures are not

apt to say that their states discriminate against the disabled and need

federal help.

N) Meyler on state sovereign immunity and the Fourteenth Amendment:

1) State sovereign immunity is usually only invoked against enforcement

of federal laws against the states. States usually don’t invoke it against

their own laws.

2) States can implicitly give up their sovereign immunity by doing things

like not invoking it quickly enough.

3) Acts that were upheld in spite of state sovereign immunity: Family

Medical Leave Act (Hibbs), Title II of the Americans with Disabilities

Act (Lane), Voting Rights Act (Morgan).

4) Acts that were struck down because of state sovereign immunity:

Religious Freedom Restoration Act (Boerne), Title I of the Americans

with Disabilities Act (Garrett), Age Discrimination in Employment Act

(Kimel)

5) For Congress to override state sovereign immunity in its attempts to

enforce the equal protection clause of the Fourteenth Amendment, it

must:

a) show an established pattern of infringement of a right

(speculative possible infringements do not count)

46


b) show that the remedy is congruent and proportional to the injury

6) Most of the statutes which were upheld involved gender or race/national

origin and thus survived because of the higher level of scrutiny the court

gave to the state action. The ones that were struck down did not deal

with race or gender. One can see the different levels of review in this.

IX. The Spending Clause

A) United States v. Butler

1) The Agricultural Adjustment Act of 1933 allowed the federal

government to contract with farmers to reduce their acreage for certain

commodities in exchange for benefit payments paid out of a fund

generated by taxation on the very commodity being limited.

2) The majority struck the act down because it invaded state jurisdiction to

regulate individual farmers. By exercising the power to grant or

withhold unlimited benefits, Congress had the power to coerce.

3) The court discussed two competing views of federal authority. Madison

believed that the federal government could only use its powers of

taxation and spending for the general welfare if it did so within the

scope of its enumerated powers. Hamilton believed that the spending

power was distinct from the other enumerated powers and would require

only that Congressional legislation be intended for the general welfare.

4) The dissent disagreed that there was any coercion involved here, since

farmers could choose not to take the money.

B) Steward Machine Co. v. Davis

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1) Title IX of the Social Security Act gave the states a 90% tax credit for

payments to state unemployment funds.

2) The majority upheld this provision of the act. Congress can use its

spending power to promote the “general welfare” so long as the

states are not coerced or their quasi-sovereign powers are not

violated.

C) Helvering v. Davis: Congress can use its spending power to deal with

problems that are national in scope and beyond the powers of the states.

D) South Dakota v. Dole

1) The federal government withheld highway funding from states which

had a drinking age below twenty-one.

2) The majority held that Congress can encourage states to adopt

policies with its spending powers if it does so 1) in pursuit of the

general welfare 2) in a way enables states to choose to participate

and know the consequences of participating or not participating

(must be unambiguous to abrogate state sovereign immunity) 3) in

pursuit of an end related to federal interest in particular national

projects or programs, and 4) when there is no independent

constitutional bar to what Congress is doing. The court decided that

there was no independent constitutional bar to Congress’s action here

because the Tenth Amendment did not limit conditions on federal

grants and no constitutional rights of anyone were violated by the

federal program.

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3) O’Connor in her dissent argued that this fell outside of Congress’s

regulatory powers and within the regulatory powers of the states.

E) Sabri v. United States

1) Congress made it a federal offense to bribe state or local officials

whose agency received more than $10,000 in federal funds.

2) The majority decided that Congress has the combined power under the

necessary and proper clause and the spending clause to ensure that

agencies receiving federal funds were using them to promote the

general welfare.

3) In his concurrence, Justice Thomas voiced discomfort with combining

the spending and necessary and proper clauses.

4) Meyler said that there are two types of challenges to statutes in

constitutional law. A facial challenge claims that the law is

unconstitutional in and of itself. An as-applied challenge claims

that a law is only unconstitutional in the circumstances in which it

is being challenged or as applied to a particular group or

individual.

X. The Dormant Commerce Clause

A) Crosby v. National Foreign Trade Council: Congress has the power to

preempt state law.

B) Wyoming v. Oklahoma: In addition to the positive powers it grants

Congress, the commerce clause has a negative aspect in terms of what it

49


takes away from the states. States cannot create protectionist statutes that

discriminate against interstate commerce.

C) Pike v. Bruce Church: An evenhanded state statute that furthers a

legitimate local interest and only incidentally burdens interstate

commerce is not unconstitutional unless the burden on interstate

commerce outweighs the local interest being promoted.

D) Gibbons v. Ogden: Chief Justice Marshall mused about whether states

could exercise powers expressly granted to the federal government which

were neither granted nor forbidden to the states. He didn’t make up his

mind.

E) Willson v. Black-Bird Creek Marsh: In this case Marshall allowed a state

regulation involving a navigable waterway that did not interfere with any

federal statute.

F) Baldwin v. G.A.F. Seelig, Inc.

1) New York attempted to prohibit the sale of milk from outside the state

at lower prices than its regulated price within the state.

2) The majority struck down the statute as unconstitutional. The court

reasoned that economic unity among the states was important and that

by projecting its legislation into Vermont, New York was going above

and beyond its police powers. States cannot create protectionist

statutes that discriminate against interstate commerce.

G) Dean Milk Co. v. Madison

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1) A Madison ordinance prohibited the sale of milk not processed within

five miles of Madison even though nearby Chicago had similar safety

standards for processing.

2) The majority struck this down. State action which discriminates

against interstate commerce is unconstitutional under the dormant

commerce clause even if it’s tied to a state objective if reasonable

nondiscriminatory alternatives exist. If there is no reasonable

nondiscriminatory alternative, the court might let it slide.

3) The dissent felt that just because a health regulation imposes burdens

on trade does not mean that it discriminates against interstate

commerce and that the ruling in this case elevated commercial rights

above the right to protect health.

H) Breard v. Alexandria

1) The majority upheld a Louisiana statute which prohibited out-of-state

merchants from selling to its residents door to door because the statute

protected privacy rather than an economic interest.

2) The dissent pointed out that the statute exempted local farm producers

from its enforcement.

I) Hunt v. Washington State Apple Advertising Comm’n: The court struck

down a North Carolina law requiring apples form out of state to either carry

USDA grades or to be marked “not graded.” The statute discriminated

against Washington apples in favor of local growers. The inspection

standards used in Washington were actually better than the USDA ones, so

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there was no fit between the state interest and the burden being placed on

interstate commerce.

J) Bendix Autolite Corp v Midwesco Enterprises, Inc.

The court struck down an Ohio statute requiring out-of-state corporations

to appoint agents for service of process and to defend themselves in all

suits even when there was no personal jurisdiction. The state could

have served process on out-of-state corporations through a long-arm

statute.

Scalia’s concurrence agrees with the outcome here but criticizes the Pike

balancing test as being too mysterious about how state and federal

interests are compelling.

K) New Energy Co. of Ind. v. Limbach: The court struck down another Ohio

statute that deprived products made out-of-state because they were made out

of state. The court said that states could subsidize their own industries but

not put tax penalties on goods from other states.

L) West Lynn Creamery, Inc v. Healy

1) Massachusetts placed a tax on all milk wholesalers, in state and out of

state, but the tax was offset for the state’s own producers by a parallel

subsidy.

2) The court found this unconstitutional. The tax and the subsidy were

not unconstitutional by themselves, but combined they created a

protectionist, unconstitutional burden on interstate commerce.

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3) The concurring justices would have come to the same conclusion but

believed that the majority’s reasoning could be extrapolated to state

regulations that supposedly are constitutional. Scalia said that

Massachusetts could have accomplished this with discriminatory taxes

on out of state industry, a tax that is nondiscriminatory, but which

contains credits for in-state producers, a tax that is nondiscriminatory,

but whose funds are then used to subsidize local industry (what

Massachusetts did), and a nondiscriminatory tax combined with a

subsidy for local industries taken from the state’s general revenues.

Scalia believes that all of these methods are unconstitutional except for

the last one. Massachusetts did the third one, which was

unconstitutional, but Scalia would have allowed it to get away with the

fourth one.

M) Granholm v. Heald: The majority struck down a law allowing in-state

wineries to sell wine to consumers in that state but prohibiting out of state

wineries from doing so. To prevent minors from getting alcohol, the state

had to use less discriminatory means. The dissenting justices believed the

state’s action was authorized by the 21st Amendment and was thus exempt

from the dormant commerce clause.

N) The commerce clause allows the federal government to make economic

laws rather than the states. The dormant commerce clause prohibits

the states from making economic laws.

O) H.P. Hood & Sons, Inc. v. Du Mond

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1) New York prohibited an operator of three licensed milk-receiving

depots for milk which would be distributed in Boston from opening up

any more, citing a regulation which required the commissioner to find

that opening up more would not promote destructive competition or

harm the public interest.

2) The court struck this down as-applied. States cannot use legitimate

regulations intended to protect the health and safety of their

citizens to suppress out-of-state competition. Furthermore, the

nation is a single economic unit. The states are not authorized to

decide when a part of the market is already adequately served.

3) The dissent did not believe there were enough facts to support the

contention that there was suppression of competition here.

P) Parker v. Brown: The court upheld a California requirement that required

raisin producers to submit to state regulation because of a strong and

recognized state interest in stabilizing the raisin market.

Q) Pike v. Bruce Church, Inc.: The court struck down an Arizona statute

requiring a cantaloupe packer to pack Arizona cantaloupes in Arizona. The

statute burdened the producer with high costs so as to enhance Arizona’s

commercial reputation. The dormant commerce clause does not allow states

to require work to be done within their borders for the sake of promoting

local employment or to do so to enhance the state’s commercial reputation.

R) Philadelphia v. New Jersey

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1) A New Jersey statute prohibited New Jersey landfill operators from

accepting money from out-of-state garbage collectors to allow them to

use the New Jersey landfills.

2) The court struck this down as unconstitutional. The dormant

commerce clause prohibits states from keeping “bad” things from

other states out with legislation that discriminates based solely on

the out-of-state origins of such bad things. States cannot isolate

themselves from each other’s problems with protectionist legislation.

3) The dissent argued that “bads” should be distinguished from “goods”

for the purposes of the dormant commerce clause and that what New

Jersey was doing was a legitimate attempt to protect the health and

safety of its citizens.

S) Maine v. Taylor: The court allowed Maine to restrict importation of baitfish

because it could show that 1) there was a legitimate and substantial

purpose in prohibiting the importation and 2) less discriminatory

means were unavailable to accomplish that purpose. The possibility of

less discriminatory means in the abstract did not affect the analysis.

T) Reeves Inc. v. Stake

South Dakota owned and operated a cement plant and favored South

Dakota buyers when selling the cement.

The court upheld this. States actions are not suspect under the

dormant commerce clause when the state is acting as a market

participant rather than a market regulator. This is because 1) all

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traders and manufacturers, including states when they act as such,

are free to exercise their discretion as to with whom they will deal

2) states are burdened with the same market restrictions as private

entities so they should have the same freedoms from federal

constraints that private entities have and 3) it’s too hard for the

courts to analyze state actions as market participants under

dormant commerce clause analysis.

The dissent argued that the dormant commerce clause applies to states

regardless of whether they are acting as market regulators or market

participants.

U) South-Central Timber Development, Inc. v. Wunnicke

1) Alaska contractually required purchasers of its state-owned timber to

saw the timber into certain sizes before shipping it out of state.

2) The court struck this down. The state’s power as a market

participant is limited to a “discrete, identifiable class of economic

activity in which it is a major participant.” States cannot regulate

the market as participants when they affect the market too far

upstream or downstream from their own direct involvement.

3) The dissent thought this was too formalistic and that the court would

have allowed the state to do this in another way.

V) Some state actions are described as being constitutional because they are

part of the states’ “police powers.” This seems to be a catch-all for things

states are normally allowed to do.

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XI. Privileges and Immunities Clause

A) United Building & Construction Trades Council v. Mayor of Camden

1) A Camden, New Jersey city ordinance required that at least 40% of

employees of contractors and subcontractors working on city projects

be Camden residents.

2) The court almost struck this down as unconstitutional. Neither states

nor municipal governments can treat citizens of other states or

municipalities unequally with regard to their privileges and

immunities under Article IV of the Constitution.

3) Only individuals, not corporations can sue under the privileges

and immunities clause. This differentiates it from the dormant

commerce clause, as corporations can take advantage of that.

4) This ruling treated the right to pursue a “common calling” as one of

the rights covered under the privileges and immunities clause. The

right to travel is also treated similarly. Still the scope of the privileges

and immunities is not as broad as the rights citizens have as citizens of

states.

B) Lunding v. New York State Tax Appeals Tribunal: The court struck down a

New York state income tax deduction for alimony payments that was only

available to New York residents because there was no reason for the

difference in treatment and the discrimination against nonresidents bore no

relation to any state objective.

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C) Hillside Dairy, Inc. v. Lyons: The court upheld a tax that did not facially

discriminate against out-of-state residents.

XII. Separate of Powers

A) Montesquieu

1) Montesquieu suggests a government with (in his hierarchical order) 1)

an executive branch made up of the monarch 2) a legislature 3) a

judiciary (he doesn’t say much about this).

2) Montesquieu calls for a system of checks and balances between the

branches to prevent tyranny. Montesquieu reasons that arbitrary

government would result from allowing the monarch to both create

and enforce laws.

3) Montesquieu’s executive is different from the American executive

because 1) it’s a monarch 2) it has an absolute veto 3) it has absolute

and exclusive power over the military and foreign affairs 4) there’s no

impeachment 5) the monarch reigned for life and 6) it could tell the

legislature when it could and could not convene.

4) Montesquieu’s judiciary is weak. It also requires that peers be tried by

juries of other peers and that commoners be tried by juries of

commoners.

B) Madison in the Federalist Papers

1) Madison emphasizes separation of powers more heavily than

Montesquieu.

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2) Madison counts on the ambitions of individuals in the different

branches to counter each other.

3) Madison would give the judges in the judiciary (but not the executive)

lifetime tenure. This would give them independence from the people

who appointed them.

4) Madison also notes that different states have different conceptions of

what separation of powers means.

C) Gerhard Casper

1) Casper says that Montesquieu and Madison conflated the concepts of

mixed government and separation of powers. Mixed government is

government whose power stems from the monarch and the people.

This was difficult to fit in to the American context because the people

were the only source of power.

2) Casper notes that the framers found the lack of separation of powers a

major weakness in the Articles of Confederation and many state

governments (which had the executive chosen by the legislature).

3) Should the Constitution contain an overt provision for the separation

of powers?

XIII. Emergencies and the Executive

A) Youngstown Sheet & Tube Co. v. Sawyer (The Steel Seizure Case)

President Truman ordered the Secretary of Commerce to seize and operate

most of the steel mills in the United States during the Korean War

to avert the possible threat to American steel supplies if workers

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went on strike. The president tried to justify this as part of his

powers as “commander-in-chief” during wartime.

In several concurring opinions the court found the president’s action

unconstitutional. The majority said that the president was

legislating, which was not his job. The president’s authority to

act must stem from either the Constitution or from

congressional authorization. The currently accepted doctrine

comes from the Jackson concurrence which has three standards for

executive action:

When the president acts under the express or implied

authorization of Congress, his or her authority is at its

maximum.

When the president acts in the “zone of twilight” in which

either s/he or Congress can theoretically have authority

or his or her action has received neither congressional

approval nor disapproval, the constitutionality of the

action depends on the circumstances.

When the president acts contrary to the will of Congress, his

or her action is only if it stems from his or her own

constitutional powers.

Douglas said that the president’s action fell into the third category here.

The president’s commander-in-chief powers are not unlimited. The

president’s power to seize or to do any “takings” is qualified by the

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due process clause. For such a taking to be constitutional,

Congress would have had to authorize it.

The dissent believed that the president can do stuff like this if Congress

were to approve after the fact. The president has better access to

information in wartime and can act faster.

B) Dames & Moore v. Regan: The court upheld a presidential executive order

to implement an agreement between the United States and Iran on securing

the release of the Iranian hostages. The agreement prohibited parties from

either country from suing each other, requiring Americans with claims

against the Iranian government to use a specially-created claims tribunal

instead. Congress had indirectly authorized this under the International

Emergency Economic Powers Act. The fact that the executive action also

created an alternative forum in which to pursue a remedy helped.

C) Bruce Ackerman has proposed an alternative model for executive power in

emergencies. He would allow the executive to have sweeping and extensive

emergency powers (including detention), but would require increasing

supermajorities in Congress for such powers to be extended over a

significant length of time. He believes such a set of powers would allow the

public to be reassured while safeguarding civil liberties.

D) Ackerman’s proposal has been criticized because it leaves little role for the

judiciary to review the executive’s action, reassuring the public should not

be the goal of emergency powers, and the political temptation for

authorizing repressive responses to even small emergencies might be too

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strong to resist. Furthermore, a cycle of terrorist attacks could create

escalating cycles of repression.

E) The congressional resolution on emergencies adopted in 1976 also gives the

president sweeping emergency powers for a limited time and requires

accountability to Congress.

F) Different Eastern European constitutions have different provisions for

emergency powers in terms of how emergencies are defined, who declares

them, whether the executive is accountable to the judiciary or the

legislature, the permissible duration of the powers, and the rights affected by

such powers.

XIV. Foreign Affairs and War Powers

A) United States v. Curtiss-Wright Export Corp.

Congress authorized the president to prohibit arms sales to Bolivia and

Paraguay. Curtiss-Wright was indicted for violating the prohibition.

The court upheld the president’s action. The president has implied

powers over foreign affairs because the Constitution gives the

president some of these powers directly and because for prudential

reasons the president is better equipped to deal with external

matters.

The fact that Congress authorized the president to do this did not seem to

matter much; the court probably would have allowed the president to

do this anyway.

B) Campbell v. Clinton

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Some members of Congress accused the president of violating the War

Powers Resolution by starting a war without congressional approval.

The D.C. Circuit Court dismissed this for lack of standing. The question

of whether a war is going on is a non-justiciable political question.

The court said that no judicially manageable standards exist for

determining who started a war. The president also has independent

authority to react to military aggression.

The dissent believed that not only is whether or not a war is happening

something that the judiciary can determine, but also that the question

here was not whether the war was going on or whether the president’s

action was wise, but whether the president acted within the scope of

his war powers.

Meyler thinks Congress gave the president tacit approval by not stopping

him.

XV. Habeas Corpus and Executive Branch Detentions

A) Hamdi v. Rumsfeld

Yasser Hamdi was an American citizen captured as he was fighting with

the Taliban in Afghanistan. His habeas corpus rights (which would

have required that he either his detention be explained to the court so

that he could be charged with something or released) were suspended.

The government used the term “enemy combatant” rather than the

established term “illegal combatant” to make the fact that Hamdi was

an American citizen irrelevant.

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The plurality said that this was unconstitutional. The executive branch

does have the power to indefinitely detain “enemy combatants”

but cannot suspend their right of habeas corpus without

congressional approval. O’Connor used a balancing test to determine

that the government had a stronger interest in preventing enemy

combatants from returning to battle than Hamdi had in not being

detained, but that he at least had a right to challenge his detention.

Souter and Ginsburg’s concurrence argued that the indefinite detention

was not valid in the first place because of the Non-Detention Act.

In their concurrence, Stevens and Scalia said that the Authorization for

the Use of Military Force Act was not a suspension of habeas corpus

by Congress and that Hamdi thus still had the right.

Thomas dissented and argued that detention powers like this inherently

belonged to the president.

XVI. Substantive Due Process in the Economic Sphere.

A) Allgeyer v. Louisiana: The court struck down a Louisiana statute that

prohibited making contracts for marine insurance with companies not

licensed to operate in the state. The court held that the police power of the

state did not in this case override the “liberty” to make private contracts

under the substantive due process clause of the Fourteenth Amendment.

B) Lochner v. New York

A New York statute prohibited bakers from making their workers work

more than sixty hours a week or ten hours a day.

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The court struck this down as unconstitutional. The majority claimed that

there was a substantive right protected by the due process clause of the

Fourteenth Amendment to make private contracts in spite of the states’

police powers. The court articulated something like rationality review

for things like this and said that the state was not furthering a

reasonable objective here because all jobs are supposedly dangerous

and working at a bakery is too.

The dissent said that the majority was endorsing a specific laissez-faire

economic theory rather than interpreting the Constitution.

The majority initiated an era here in which almost all economic regulation

was struck down as a violation of freedom of contract. The exception

was Muller because it dealt with women and gender differences were a

big deal then.

People criticized this in class because people in a position of little power

do not really have freedom of contract in these circumstances.

C) Nebbia v. New York

Nebbia was convicted of underselling milk in violation of a New York

statute fixing the retail price of milk.

The court rejected Lochner by not striking this down. The court will use

rationality review for state economic statutes since neither

freedom to contract nor freedom to set prices are protected by the

due process clause of the Fourteenth Amendment. Such statutes

only need to be “affected with a public interest” (fall under the

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state’s police powers) and need only have a reasonable relation to

the legislative purpose.

The dissent thought that this statute arbitrarily interfered with the right to

set prices.

D) West Coast Hotel Co. v. Parrish: This case rejected freedom of contract

outright, this time overtly overturning Lochner.

XVII. Substantive Due Process and Privacy

A) Griswold v. Connecticut

Griswold was arrested for violating a Connecticut statute that forbade

giving information on contraception, even to married couples, by

giving a married couple such information.

The court struck the Connecticut statute down here. The different justices

had different reasons. Writing for the plurality, Justice Douglas said

the rights enumerated by the Third, Fourth, Fifth, and Ninth

Amendments create a “penumbra” of rights around themselves, which

includes the right to privacy. Such a right would have to be balanced

against a compelling state interest.

Justice Goldberg thought that the Ninth Amendment was enough to cover

this.

Justice Harlan thought that a statute that infringes on the due process

clause of the Fourteenth Amendment if it violates a right “implicit

in the concept of ordered liberty” even if such a right is not

specifically enumerated in the Constitution.

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The dissent did not believe there was a right to privacy in the Constitution

and that the government could infringe upon it unless there was a

constitutional bar on doing so under the circumstances.

B) Eisenstadt v. Baird: The court extended the ruling in Griswold to unmarried

couples. The equal protection clause was combined with the due process

clause to make it so no exceptions to the law could be made.

C) Planned Parenthood of Southeastern Pennsylvania v. Casey

The court was being asked to overturn Roe v. Wade again.

A woman has a right to be free from undue burden from the state in

getting an abortion before viability of the fetus. The state has a

substantial interest in the potential life of the fetus and can take

any measures that do not unduly burden the right to have an

abortion.

After viability the state has a substantial interest in protecting the life

of the fetus and may regulate abortion to do so unless an abortion

is necessary in appropriate medical judgment to protect the life or

health of the mother.

The court will overturn precedent contrary to stare decisis if:

d) There has been a change in facts

e) There has been a serious change in people’s understanding of

the facts.

f) The old rule was socially unworkable

g) There has not been long term reliance on the old rule.

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What is and is not a substantial burden:

A brief waiting period is not a substantial burden and it is

consistent with the state interest in the health of the mother

and in her making a well-informed choice.

Spousal notification is an unconstitutional undue burden

because of the possibility of an abusive spouse.

Parental notification is not an unconstitutional undue burden

on the right so long as there is a judicial bypass procedure.

Requiring facilities that perform abortions to keep and report

certain records is not an unconstitutional undue burden so

long as such procedures respect patients’ confidentiality.

This is related to the state’s interest in safeguarding

women’s health by having medical data.

When there is no clear majority, take the narrowest ruling.

D) Belle Terre v. Boraas

The petitioners challenged a local ordinance prohibiting a certain number

of unrelated persons from living under the same roof.

The court upheld this. Municipalities, neighborhoods, and states can

regulate housing and neighborhood organization so long as the

regulation bears a rational relationship to a permissible state

objective (rationality review).

Justice Marshall dissented, believing that the right to set up a home is

protected under the Fourteenth Amendment.

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E) Moore v. East Cleveland

A housing ordinance in East Cleveland prevented two grandsons who

were cousins from living with their grandmother.

The majority struck this down because the state interests were only

marginally preserved here. Intrusive state regulations of family

housing arrangements that do not relate to a strong state interest

will not be upheld (failure to meet rationality review).

The dissent thought that the majority was extending substantive due

process rights too far here.

The degree of blood relationship between the two cousins and the fact that

it would have been okay if they were brothers annoyed Justice

Stevens.

F) Quilloin v. Walcott

A biological father of an eleven year old child being raised by his mother

and stepfather who had not “legitimated” the child as required by

Georgia law to establish his parental rights and who had shown no

interest in raising or contributing to the child’s upbringing sought to

block the stepfather from adopting the child. The state allowed the

adoption on the grounds that it was in the child’s best interest.

The court unanimously upheld the state’s action. A state cannot break

up a natural family over the objection of the parents without

violating the due process clause solely because it thinks doing so is

in the best interest of the child unless some showing of unfitness is

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made. The court will allow the state to recognize a family unit

already in existence over the objections of a biological parent if

doing so is in the child’s best interest.

G) Troxel v. Granville

Grandparents petitioned the state to compel their granddaughters’ mother

to allow them visitation rights to the girls over the mother’s objection.

The state statute allowed “any person” to petition for visitation rights

at “any time” if the state court found that it was in the best interest of

the child.

The court struck this down as-applied. The due process clause of the

Fourteenth Amendment prohibits states from infringing on the

rights of parents to raise their children.

This statute was way too broad; it allowed anyone to petition for visitation

rights to a child with the court’s approval.

Justice Thomas called for strict scrutiny here, arguing that parental rights

are fundamental.

Souter would have overturned the whole thing, not just as-applied here.

H) Zablocki v. Redhail

A Wisconsin statute forbade divorced individuals with child-support

obligations from remarrying.

The court struck this down as unconstitutional. The right to marry is a

fundamental right protected by strict scrutiny. The exceptions are

regulations prohibiting incest and bigamy and laws that make it so

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you lose social security, child support, and alimony payments if

you remarry.

I) Michael H. v. Gerald D.

Michael H. biologically fathered a child in an adulterous affair with the

wife of Gerald D. The child was raised by Gerald D. and his wife.

Michael H. sought to establish his parental rights through his

biological relationship with the child.

The court denied that Michael H. had any paternity rights because there

was no tradition of states allowing fathers from adulterous

relationships to have paternity rights. The court might not

acknowledge a right not enumerated in the Constitution if it has

no basis in tradition or history.

Scalia seems to think that tradition can be shown by the presence of a state

statute.

Brennan’s dissent criticized the reference to “tradition” because the

concept is too “malleable and elusive.”

J) Lawrence v. Texas

The petitioners were arrested under a Texas statute banning sodomy.

The court overruled Bowers v. Hardwick and found the Texas statute

unconstitutional. The due process clause of the Fourteenth

Amendment prohibits the state from regulating the private sexual

behavior of consenting adults. Simply forbidding homosexual

sodomy is not a legitimate state interest. (THIS CAN BE

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BOLSTERED WITH THE EQUAL PROTECTION CLAUSE).

The court used European law to establish a dignity interest for the

petitioners here. Scalia did not like this.

The standards for upholding something on stare decisis established in

Casey were not met here.

The dissent disagreed with that this case met the standard for overturning

stare decisis under the Casey standard and thought that the majority

wrongfully claimed that homosexual sodomy is a “fundamental right”

protected by the Fourteenth Amendment.

K) Fundamental rights are usually (but not always) protected by strict

scrutiny. First, look to see what the right is. Then, to determine

whether it is a fundamental right, it must be based on tradition or be

implicit in the concept of ordered liberty.

L) Foreign Sources of Law

Scalia’s opinion – generally not a good idea

It’s worth looking at, but not citing

The Constitution does not provide for it.

Use of foreign law makes the court less democratically

accountable.

It’s too easy to pick and choose which foreign sources one does

and does not want to use in order to get the result one wants.

He is okay with old English common law since that is the

foundation of American law.

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Breyer’s opinion – sure, why not?

Use of foreign law aids in transparency and creates collegiality

among the world’s courts.

It’s useful to see how another perspective reasoned through a

similar problem.

The world is becoming more interconnected, making use of foreign

law more appropriate.

Foreign law should be a resource, but not binding authority.

Ginsburg’s opinion – bring it on!

Use of foreign law aids in the international recognition of human

rights.

International sources influenced the framers of the Constitution

and as such can be appropriate for interpreting it.

Courts around the world should hold each other in high regard.

Use of foreign law is consistent with the Constitution being a

“living document.”

Procedure in courts can change and referencing foreign law can

help guide the process.

Ginsburg lists foreign law journals, the UN Convention,

international customary trade law, foreign judicial decisions,

and the products of “team teaching” and international legal

education as appropriate sources of foreign law.

XVIII. The Equal Protection Clause

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A) Dred Scott v. Sandford

In the antebellum period, Dred Scott, a slave, tried to argue that he was

free after having been transported to a free state.

Chief Justice Taney held:

a) Because he was not white, Dred Scott was not a citizen of the

United States and not entitled to sue in federal court. Free blacks

were thus only citizens of the states in which they resided, not

the United States.

b) Congress could not make laws telling people where they could

and could not take their property geographically. Thus the

Missouri Compromise was ruled unconstitutional.

This decision was overturned by constitutional amendment after the Civil

War.

B) Plessy v. Ferguson

1) Plessy, being one-eighth black, was arrested for refusing to leave a

section of a railway car reserved for whites as required by Louisiana

statute rather than sitting in the non-white (colored) section of the

train.

2) The court upheld this as constitutional. The court believed that the

Fourteenth Amendment only required that the states treat people of

different races equally before the law, not that they be required to

allow the races to mix in public facilities.

3) In his dissent, the elder Justice Harlan said that this law obviously had

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a discriminatory purpose and that the Constitution did not recognize

and allow for the use of race as a basis for treating someone a certain

way under the law.

C) Korematsu v. United States

1) Korematsu, a Japanese American living in California during World

War II challenged his internment in a camp under the equal protection

clause of the Fourteenth Amendment.

2) The court upheld this as constitutional, but established that strict

scrutiny will be applied to any government action facially based on

racial classification. The government must have a compelling

interest and the means must be narrowly tailored.

3) This case was probably wrongly decided because the means weren’t

narrowly tailored, but it did introduce firmly for the first time the

doctrine of applying strict scrutiny when racial classifications are

involved.

D) Brown v. Board of Education

1) The petitioners challenged racial segregation of public schools.

2) The court overturned Plessy to strike down school segregation. Racial

segregation of public facilities by the states violates the equal

protection clause of the Fourteenth Amendment. Racial

segregation of public facilities by the federal government violates

the due process clause of the Fifth Amendment (Bowling v.

Sharpe).

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3) The court explained its willingness to overturn Plessy partly based on

social science data showing the detrimental effects of segregation and

the importance of public education, which had increased greatly since

the time of the Plessy decision.

4) This was similar to, but different from Sweatt v. Painter which struck

down law school segregation on the grounds that black law students

needed to attend law school with white students to be prepared to deal

with them in the professional environment.

E) Brown v. Board of Education II: This ruling required the states to comply

with the previous one.

F) Loving v. Virginia

1) The petitioners challenged a law that prohibited interracial marriage.

2) The court predictably struck down these shenanigans. Any state

statutes that classify or treat people differently based on race must

be justified by a compelling state interest. Preserving racial purity

is not one of those.

3) Stewart’s concurrence scoffed at the notion that a state could make

something criminal based on the race of the person doing it.

G) Yick Wo v. Hopkins

1) A law forbade owners of laundries whose buildings were not made of

brick or stone from operating without city approval. Although the law

was facially neutral, it only was enforced against Chinese laundry

owners.

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2) The court struck this down as unconstitutional. Facially neutral laws

of general applicability violate the equal protection clause when

they are only enforced on one racial group.

H) Washington v. Davis

1) The petitioners challenged an exam given to applicants for jobs as

police officers that tested certain reading skills. Blacks failed the test

in disproportionate numbers.

2) The court upheld the test. For a facially neutral law to receive strict

scrutiny under the equal protection clause, the law must have

BOTH a discriminatory intent AND a discriminatory effect.

Having only one or the other is not sufficient.

3) In Palmer v. Thompson, a public swimming pool closure had

discriminatory intent (it was done to avoid integration) but no

discriminatory effect since no one, black or white, could use public

swimming pools anymore and so the action was not unconstitutional.

I) Personnel Administrator v. Feeney

1) A statute giving veterans an advantage in hiring for civil service

positions was challenged as disproportionately benefiting men.

2) The test for facially neutral laws to receive higher scrutiny also

applies to laws that affect gender.

3) The dissent seems to believe there was a discriminatory intent here

because there were exemptions for traditionally female jobs in the civil

service.

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J) Arlington Heights v. Metropolitan Housing Dev. Corp.

1) A municipality refused to allow land to be rezoned in a manner that

would permit racially integrated housing.

2) The court upheld this but articulated a standard for determining

whether discriminatory intent exists. Racially discriminatory intent

does not need to be the sole purpose of a law for higher scrutiny to

kick in. To determine discriminatory intent the court will examine

1) the historical background for the law 2) whether the sequence

of events leading up to the law’s passage is irrational unless

intended for racial discrimination and 3) the legislative history.

K) Castaneda v. Partida

1) In a county with a 79% Latino population, only 39% of grand jurors

from 1962-72.

2) The court was not happy with this. A disparity so large as to be

unlikely to be accidental will likely cause the court to infer

discriminatory intent. The burden would fall on the defendant to

rebut such a presumption.

L) United States v. Armstrong

1) All the defendants being prosecuted in a crack bust were black.

2) The court upheld this. To show racially discriminatory intent in

enforcement of a facially neutral law, a petitioner must show that

similarly situated individuals of a different race are not being

prosecuted.

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M) Mayor of Philadelphia v. Educational Equality League: The court did not

find discriminatory intent when all the petitioner had was statistics which

said that the racial makeup of the local school board did not match that of

the neighborhood. Simplistic comparisons are not enough because all

citizens are not necessarily fungible.

N) Batson v. Kentucky

1) The court said the state had a burden of showing that striking black

jurors in a case with a black defendent with peremptory challenges

was not discriminatory. Race cannot be used as a proxy for other

demographic considerations when using peremptory challenges.

2) Rehnquist’s dissent said that this would be okay if peremptory

challenges were used to exclude white jurors when the defendant was

white. Also, this ruling does not stop other demographic traits from

being proxy for race!

O) McCleskey v. Kemp

1) The majority upheld the capital conviction of a black defendant in

spite of a study that proposed that race motivated death sentences for

blacks. The court cited policy considerations that warranted not

calling on jurors to testify about how they reached their verdicts and

prosecutors to explain and defend decisions to pursue capital

punishment they had made years before.

2) The dissent agreed that jurors should not have had to testify as to their

motivations, but thought it was entirely appropriate that prosecutors’

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reasoning at the step at which racial considerations may have been

strongest in pushing them to seek the death penalty be examined.

P) Richmond v. J.A. Croson Co.

1) The petitioners challenged a law that required the city of Richmond to

give at least 30% of its construction contracts to firms that were at

least 51% minority owned.

2) The court struck this down. Strict scrutiny is to be applied to all

cases involving racial classification even if the discrimination is

presented as “benign” or “remedial” so inappropriate use of racial

classification can be “smoked out.”

3) The court was not convinced that the city was remedying actual past

discrimination specifically within the construction industry in

Richmond. The fact that there had been discrimination in the

construction industry historically on a national level was not enough to

justify this local remedy.

4) The quota here wasn’t tailored to remedying any specific

discrimination. The city could have tried to use a less-discriminatory

means to fix this problem and didn’t even try.

5) Justice Stevens in his concurrence agreed with the outcome here but

did not want racial remedies to be ruled out entirely.

6) The dissenting justices believed that there was not only a compelling

interest in remedying discrimination here, but that these means were

not as badly tailored to the end as the majority thought because

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minority contractors still got fewer contracts proportionally in spite of

existing prohibitions on discrimination.

Q) Adarand Constructors, Inc. v. Pena

1) The Department of Transportation was preferentially awarding

contracts to businesses owned by individuals from “socially and

economically disadvantaged groups.” This meant minorities. This

arose under the Fifth rather than the Fourteenth Amendment, but the

standard is the same.

2) The court struck this down, in the process overturning Metro

Broadcasting, Inc. v. FCC in which the court held that federal benign

discrimination only required intermediate review. Stare decisis does

not apply when the court is reapplying a sounder doctrine from

earlier cases. Also, racial classifications can pass strict scrutiny so

long as the interest is compelling and the means narrowly tailored.

3) Scalia’s concurrence, unlike the majority, said that there can never be

a compelling interest in using racial classification.

4) The dissenting justices noted a difference between racial classification

for the purposes of invidious discrimination and for the purposes of

remedying discrimination. Also there was concern about stare decisis.

R) Grutter v. Bollinger

1) Barbara Grutter was not admitted to the University of Michigan Law

School. She blamed the admissions policy which, while taking things

other than just test scores and grades into account, sought to enroll a

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“critical mass” of students from underrepresented minority groups.

2) The court upheld this. A racially diverse class in the higher

education context is a compelling state interest that survives strict

scrutiny. A system that takes race into account in individualized

consideration of an applicant but does not use quotas is enough to

meet the court’s requirement of narrow tailoring for strict

scrutiny.

3) The majority noted that such a program might no longer be appropriate

after a certain period of time when more racial equality had been

achieved.

4) The dissent questioned whether the majority was really using strict

scrutiny here. They did not agree that there was either a compelling

state interest or that this was the most narrowly tailored alternative to

reaching that even if there was such an interest.

5) Meyler seems to think that in contexts of benign discrimination the

court eases up a little on the narrow tailoring requirement. She thinks

they did that here.

6) The state was very deferent here to the university’s assertion of its

compelling interest.

S) Gratz v. Bollinger

1) Two white students were not admitted to one of the University of

Michigan’s undergraduate programs. They blamed an admissions

policy which gave individuals from underrepresented minority groups

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and automatic twenty points on the admissions selection index.

2) The court struck this down. Affirmative action programs which

give automatic, quantifiable admissions boosts to minorities

without being combined with any individual consideration are not

narrowly tailored enough for strict scrutiny.

T) Reed v. Reed: This case shows prior to 1973 laws that discriminated on the

basis of gender were held to rationality review.

U) Frontiero v. Richardson

1) A federal statute required military women to prove that their husbands

were dependents but not men to prove that their wives were

dependents.

2) The court struck this down mightily, establishing that intermediate

scrutiny is to be used for statutes that discriminate on the basis of

gender. The government interest must be important (although not

necessarily compelling) and there must be a close fit between the

government objective and the statute (although the statute need

not necessarily be narrowly tailored). Aesthetics and convenience

are NOT important enough interests for the purposes of this level

of scrutiny.

V) Craig v. Boren

1) An Oklahoma statute allowed the sale of nonintoxicating beer to

females at least eighteen years old but males at least twenty-one years

old.

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2) The court struck this down. While there was an important

governmental interest in promoting traffic safety, this statute was not a

close enough fit to that objective.

3) The dissent argued that “real differences” between men and women

justified the Oklahoma statute.

W) United States v. Virginia

1) The state run Virginia Military Institute, citing its physically harsh and

rigorous training regime, refused to admit women. The state offered to

start a separate school for women, but it would not have the funding or

prestige of the men’s school.

2) The majority struck this down. A single-sex school is only

permissible if a substantially equal alternative is available to the

other sex or if it can be proven that admitting both sexes would

substantially diminish the prestige of the school. Virginia could

prove neither of these here.

3) The dissent argued that the single-sex nature of VMI was essential to

its educational method and that diversity of educational choice was

hampered by the majority decision.

X) For there to be an important government interest to justify gender

discrimination, the statute must be based on “real differences” rather

than stereotypes.

1) Pregnancy-related differences are considered “real differences”

(Gedulig and Michael M., holding statutory rape laws that treated

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the sexes differently were justified by the possibility of women

getting pregnant).

2) Physical strength, the provocative effect of women, and combat

worthiness are considered “real differences” (Dothard where a

statute prohibiting women from having certain jobs as prison

guards was upheld and Rostker where a ban on requiring women

to register for the draft was upheld).

3) Jury-service and career-related differences are typically treated as

stereotypes (J.E.B. where using peremptory challenges to exclude

jurors just because of sex was struck down).

Y) Califano v. Webster: The court unanimously upheld the Social Security

Act’s granting of a higher chance of old-age benefits to women to

compensate for real discrimination in employment practices. This passed

the Craig test for close fit.

Z) Orr v. Orr: The court struck down an Alabama statute that only required

men to pay alimony. Use of sex as a proxy for need was unnecessary, since

individualized hearings to determine need already occurred. This failed the

Craig test for close fit.

AA)Mississippi Univ. for Women v. Hogan

1) Mississippi University for Women excluded men from its nursing

school and was sued.

2) The court struck down the university’s policy. While the state had an

important interest in alleviating discrimination against women,

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creating an all-female nursing school was nowhere near a close fit for

that objective. Remedial measures that reinforce gender

stereotypes are never a close fit for an important government

objective of ending discrimination.

3) The dissent argued that women never had a problem with this as

stereotyping them.

BB)Romer v. Evans

1) An amendment to the Colorado state constitution prohibited giving

any protected status based on sexual orientation.

2) The court struck this down. State action discriminating on the basis

of sexual orientation gets something slightly higher than

rationality review. There must be a rational relation to a

legitimate end. Animosity toward homosexuals is not a legitimate

end and sweeping denials of protections are overbroad and thus

not a rational relation to a legitimate end.

3) The dissent countered that this was simply a refusal by the state to give

special rights to homosexuals. Scalia said that the statute was

motivated by animosity toward a behavior, not a classification of

people.

CC) Lawrence v. Texas: O’Connor suggested that homosexuals could be

protected under the equal protection clause. Scalia did not like this idea,

saying that the sodomy law in the case applied regardless of one’s sexual

orientation.

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XIX. Free Exercise of Religion

A) Cantwell v. Connecticut: Freedom of belief is absolute, but freedom to

act on those beliefs is not.

B) Employment Division v. Smith

1) Native Americans were fired from their job after they failed a drug test

because they smoked peyote in a religious ritual.

2) The court upheld this. A facially neutral law of general

applicability that incidentally burdens religious practices will be

upheld as constitutional. It will only get rationality review.

3) The concurring justices argued that a fundamental right was at stake

here, but that there was a compelling state interest in preventing drug

use.

C) Church of the Lukumi Babalu Aye, Inc. v. Hialeah

1) The city of Hialeah passed an ordinance banning ritual animal sacrifice

(while allowing it for food purposes) as soon as practitioners of

Santeria came to town.

2) The court struck this down. If a law burdening free exercise is

passed with both discriminatory intent and effect, it will receive

strict scrutiny. Legislative history can be used to check on this.

D) Locke v. Davey: Washington state did not allow recipients of state

scholarships to use them for devotional religious studies, citing

establishment clause worries. The court upheld this. States can be stricter

in observance of the establishment clause than the federal government

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and they can be broader in the rights they give under free exercise.

Scalia dissented, but would have been okay with it if the state had positively

allowed every other area of study and happened to leave religious studies

out.

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