CON LAW OUTLINE

CON LAW OUTLINE

Professor Nowlin, Spring 2008 (Updated Sterling Kidd)I.Introduction

Popular Sovereignty: The foundation of the government is the consent of the governed (popular sovereignty).

Government Purpose - To protect natural rights from private violence and promote human equality.

Danger is that government becomes oppressive or tyrannical.

Anarchy/state of nature: Lack of government. Habeas Corpus: Govt have to give a reason for the detention of a person they are holding.

Declaration of Independence: A major theme in the DOI is federalism. It is no surprise, therefore, that a clearly limited government emerged.

The bill of particulars backs up the statement that the king and British government had become tyrannical.

By negative implication, this list is a bill of rights, b/c it shows what a just govt SHOULDNT do.

Important principles: all men are created equal with certain inalienable rights, the rights of life, liberty, and the pursuit of happiness. The ultimate guarantee of the protection of liberty is the civic virtue of the people.

The United States is a political community. It exists and is not a set of provinces. This sense of community is necessary before government can be created.

The form of the government is a republican representative democracy.

The ultimate goal of government is the civic virtue of the people.

DOI in what sense a Constitution?

Purpose of a Constitution is to create a government. (The U. S. Constitution does this, not the DOI). They also state values or aspirations of the government; in that sense the DOI is a kind of Constitution. (Reaffirmed by Constitution) DOI does in some sense create a political community. (Reaffirmed by Constitution).

Governmental Limits: To enforce the purpose of government, the government is limited in the Constitution. There are two types of limits:

Structure Limitsthe entire theme is the diffusion of political power

Bicameralismthe founders felt the legislature was the most powerful branch (some) and they therefore split it up to weaken each individual house and instill a sense of competition. (Obviously, closely related to idea in DOI that legislative assembly is impt.). Senate

House of Representatives

Separation of Powers

Representation in the way we structure the selection of public officers.

Federalism

Juriesa method of weakening the judicial branch (some viewed this as the most powerful branch) Various other means of checks and balances.

The slow-moving decision making process inherent in a bureaucracy.

Constitutional rights

Right to trial by jury

Free Speech

Freedom of Religion

II.Judicial Power

The judicial branch gets their power from judicial review and exercises their power in a very quiet, unobtrusive way.

Tocqueville: judges and lawyers actually comprise a type of aristocracy, or, more specifically, a juristocracy. He said political questions become Constitutional questions. Lawyers thus have power that they dont have in other countries.

The anti-populist reply to this is that lawyers should have this much power because the people who know the most about the law should be ruling. Test hint: take note whether an argument is populist or anti-populist (elitist). (In class, this has been references more in terms of judicial supremacy). Texas v. Johnson A Texas statute made it illegal to desecrate a flag. Overruled. Burning done to communicate political message and this is protected as free speech. The statute is prohibiting the message not the act, so it violates free speech; their whole reason for passing the statute is to protect flags value. Even though burning the flag is distasteful, must enforce the limits of the Constitution. Court has to take cases even though they are controversial to resolve Constitutional issues. W/in Courts authority/duty to resolve these types of questions. (Orthodox view of role of S.C.) Relates back to Marbury & Separation of Powers; Supreme Judicial Review. Dissent: was allowed to use other forms of protest or say anything he wanted, just not burn the flag (arguing that the statute didnt suppress free speech). Flag is an intangible asset that should be protected, a symbol of unity in times of crisis, which is an important state interest. The burden on Johnson in not being able to burn the flag is trivial. You cant spray paint the Lincoln Memorial, and so you shouldnt be able to burn the flag. Judicial review evaluated by basic principles of federal government:

Balance and diffuse Pro: checks and balanceslimit power of Congress and executive to violate Constitution.

Cons: Five votes do not properly balance/diffusetoo much power to judiciary. 5 justices can beat out the other 4 justices, the states, the Presidents and Congress, etc. (Ex. Texas v. Johnson). Representation

Pro: Judges not representative, not subject to popular opinion. Laws are technical questions that are properly left to legal experts.

Cons: Decisions being made by non-representative institutionsjudges not elected.

Also free speech issuerepresentation as free speechmay be undermined when judges make decisions.

Popular sovereignty

Judges as legal experts are just enforcing laws ratified by the majority

Civic virtue

Pro: reaction to Supreme Court inspires reaction and popular input about constitutional issues

Con: apathy, Let the Supreme Court handle it.Marbury v. Madison This case establishes judicial review in the American system.

Arguably can be departmentalism or judicial supremacy, but its general cited as created judicial supremacy.

McCulloch v. Maryland (1819) made the first clear statement of judicial supremacy. By this tribunal alone can Constitutional questions be resolved.

Judiciary Act of 1789 granted the Supreme Court the power to issue the writ, but the act was in conflict with the original jurisdiction of the Supreme Court as established in the Constitution, as outlined in Article III, 2.

In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be a party, the supreme court shall have original jurisdiction. In all the other Cases before mentioned, the supreme court shall have appellate jurisdiction, both as to law and fact, with such exceptions and under such regulations as the Congress shall make.

Therefore it was unconstitutional for SC to have original jurisdiction over this matter.

Argument that Marshall makes for the right to declare the Judicial Act unconstitutional:

Constitutional supremacy Constitution is supreme; therefore SC cannot be granted a power by Congress that conflicts with the Constitution.

Constitutional Supremacy is based on:

Supremacy Clause (Article VI, Clause 2)

The very purpose of and existence of Constitution to limit government.

Popular sovereignty We the people Written document.

Judicial Power Judiciary has the power to interpret Constitution, so it can determine whether or not it should have original jurisdiction concerning writs (i.e. if Constitution gives judiciary the right of original jurisdiction over such matters).

Power of judicial review is based on:

Article III jurisdictional language gives S.C. power to hear cases arising under the Constitution. The judicial oath to uphold the Constitution. Constitution binds the court.

Separation of powers Province and duty of S.C. to say what the law is. Constitutional Interpretation Four possible setups for constitutional interpretation: Legislative supremacy Congress had the final authority to determine the meaning of the Constitution. Supported by a few at the founding, clearly rejected by Marbury. Executive supremacy never seriously supported by anyone.

Judicial supremacy/Supreme Judicial Review the SC is supreme in its explanation of the Constitution; ultimate arbiter. Marshall, most federalists support this.

By the late 19th Century this had become the orthodox view, although some say it was later than that.

Cooper v. Aaron (1958) asserts this view U.S. v. Nixon (1974) . Very close to what we have today.

From McCulloch v. Maryland (an Article I, Bank of the United States case), we get a new argument for thisthe settlement function. Judicial review serves to maintain civic peace and help avoid civic discord.

Settlement Thesis only a branch like the judiciary can settle these issues peacefully and quickly. This limits the hostility between branches and gives one answer to promote constitutional stability. (Viewed as a more powerful argument) 4th argument along with separation of powers, Article III arising under, and judiciary oath.

Counter-arguments to judicial supremacy (under a departmentalism view): Separation of Powers All three branches are supposed to be equal under the Constitution; who checks the Court when they violate the Constitution? They all need power to check each other.

Settlement Thesis Settlement at the expense of the other two branches is actually judicial tyranny. Discussion and debate are good. Article III means judicial review, not supreme judicial review.

Why would the founders have intended for the cts to have this tremendous power and not even bother to write it down? Departmentalism does not eliminate judicial review. It just makes it only appropriate in its own sphere. All of the public officials take an oath to uphold the constitution, just as the court members do.

Departmentalism or Coordinate Review all three branches equally share power. This was the view that all 3 branches shared equally in their power to interpret the Constitution. Instead of supreme judicial review there would be MERE judicial review.

Marbury is consistent with departmentalism or judicial supremacy, but is cited for judicial supremacy.

Departmentalism was supported by Jefferson. and most Republicans.National Supremacy, State Supremacy or Federal Departmentalism

Struggle between national government and state government. National supremacy (many founders supported this) States are supreme over their state constitutions, so federal government should be supreme over US constitution. Arguably, this is what federalism means. Separation of Powers National government should answer questions of constitutionality because

State legislatures are less competent and

State legislatures do not have the power to perform judiciary functions.

Many of the arguments for judicial supremacy apply here again; Article III, etc.

Settlement Thesis national is better equipped to interpret the constitution because if states are given the power there may be 50 different interpretations. In addition, if nobody to solve, may lead to states taking up arms against each others. National supremacy ultimately won out; many thought national supremacy debate was settled after civil war, but debate reemerged during civil rights movement in the 1960s.

State supremacy (few founders) Federalism departmentalism (many) the states would have the power to determine the constitutionality of federal laws within their boundaries; the national government would have power in DC and other federal territories. Sedition Act of 1798: Meant to suppress the expression of the Jeffersonian Republicans, although said the purpose was possible war w/ France.

You couldnt criticize the V-P, who was Jefferson.

J-R state governments said the Sedition Act was unconstitutional, and thus it was null and void.

Federal departmentalism is also known as:

Nullification (State Constitutional Review) this is the state asserting the right to nullify a federal law the state thinks is unconstitutional.

Nullification was killed out in 1960s.

Interposition the state will interpose their political authority between the unconstitutional acts of the national government and their citizens, in order to protect them. State Constitutional Review state conventions sit in and determine whether or not acts of the federal government are unconstitutional.

Federal departmentalism arguments:

The Constitution is a compact between state governments. When the entity created by the contract does something its not supposed to do, the members of the contract get to decide how to deal with it.

We know that the states are members of the contract because of Article VII. The ratification of the conventions of nine states shall be sufficient for the establishment of this constitution between the states so ratifying the same.

Also, nullification is parallel to the actions taken against the British government.

Centralizing power in the national judiciary is tyranny. Again, their arguments mirror the ideas denying the supremacy of the judiciary.

Nullification Crisis of 1832: S.C. decided that a tariff was unconstitutional, and nullified the tariff; Congress authorized an army to march into S.C.

Tariff bill was repealed, and S.C. repealed nullification; also nullified force bill, but that became irrelevant. Summary: Marshall believed in National and Judicial Supremacy; Jefferson believed in federal and national departmentalism; others were in between.

Our practice today tends to be Marshalls practice. Constitutional Interpretation Hamilton in Federalist 78 said that as long as the judiciary exercised its judgment power and not its will then legit. Courts role is its judgment, not its will.

Judgment is law interpretation through interpretative methods.

Said the Constitution is supreme over the Congress and over the S.C.

Legislative power is will.

Major sources of constitutional interpretation: (List moves from most legal to least). Text of the Constitution-Should always be the starting point. Original Understanding / Intent looking at the intent of the persons who wrote the constitution (i.e. what the authors had in mind). Can provide constraint in interpretation; some think good others bad.

Judicial precedent: Stare decisis. Sometimes there are no precedents, and sometimes they are wrong.

Legal Traditions traditions of American people should be looked at because they reflect the fundamental values of the US (just as the Constitution does). Modern/evolving legal traditions; what Americans think today. Probably dont look at Gallup polls; but maybe state legislatures.

Policy judgments: natural law/rights, moral philosophy, or judges values; pragmatic

Judicial Activism v. Judicial Restraint (Calder v. Bull 1798) Chase: we need to protect natural rights; if govt violates it, they have violated Constitution; meaning judge has right to invalidate law.

Activists loose constructionists who do more and are more flexible.

They emphasize discretion, policy arguments, & non-deference to elected officials.

Want to adapt the constitution to modern values and protect minority rights.

Sources include text, precedents, and popular values and natural law.

Iredell disagreed: Said courts did not have the power to invalidate laws:

Restraint strict-constructionists who do less and seek precedents; they are more rigid.

Want to minimize policy discussions, and discretion.

Maximize legalistic forms of interpretation, & deferential to elected officials.

Think that it undermines democracy to be too activist.

Want to protect majority rule; want a constraining (not adaptable) Constitution.

Sources include text, precedents, original understanding or intent, and legal traditions.

Historical v. Living Constitution

Contrast between a living constitution approach and a historic constitution approach. Remember, this contrast is a sliding scale.

Living constitution emphasize flexibility/adaptability due to evolving legal traditions, policy judgments, consensus values, and probably precedent.

Connected with judicial activism.

Pros

Maybe the founders intended for it to be a living constitution.

This reflects current practice more closely.

Has been used to expand our rights.

Allows us to adapt.

Cons

Too much political input; might overreach. Elitist view, since the lawyers are elitist; may give a bias for the upper classes through the rulings.

The constitution does not constrain properly

Historical constitution emphasizes text, original understanding, and precedent.

Connected with judicial restraint

If the values change we should evaluate them to make sure they stay in tune with the Constitution.

Has respect for political process. Pro-democracy.

If we want to change the Constitution, there is an amendment process available. Separation of Powers. Let the legislature make the laws.

Pros

Stable, predictable

Rely on legal materials, not political whims

The constitution restrains

There are some horrible things that could possibly be upheld under a living constitution that would not be upheld under this constitution.

Cons

Dead-hand control

Roper involved a case where the S.C. has to interpret the Constitution as to whether or not they could put a minor to death.

The founders did not hesitate to execute people.

Consensus value appeared that executing 17 yr olds was not good.

The S.C. ruled against the juvenile death penalty; they also struck down the ability to execute the mentally retarded (Atkins). Checks on the Judiciary

Power of Reprisal political control of the SC

Constitutional Amendment

4 amendments were made in reflex to a SC holding:

Amendment XI( establishing sovereign immunity for states. Amendment XIV(deeming Americans of African descent citizens of the US

Amendment XVI(expanding power of Congress to tax

Amendment XXVI(setting voting age

This check is very difficult to exercise: you need super majorities. The Power to Appoint

Political branches decide who sits on the S.C. Presidents nominate justices and those nominations must be approved by the senate.

A very large power, but it is impossible to completely predict a justices actions while on the bench.

Effective, but spotty; vacancies usually occur every 2-3 years (although recently we have had longer periods). Impeachment happened once, but never removed so its largely ineffective b/c justices know they will not be removed unless they commit a crime.

Life tenure SC judges serve for life in an effort to promote judicial independence.

Controlling sitting judges, informal mechanisms and self-imposed limits judges are sensitive to political pressures; they dont exist in a political vacuum.

Article III, 2 gives court appellate power with such exceptions and under such regulation as the congress shall make. Some argue this gives Congress the power to strip courts of rights of appellate jurisdiction.

So, there has to be a Constitutional and Statutory basis for appellate jurisdiction to lie.

Ex parte McCardle states that Congress can make exceptions through explicit statutes (The S.C. does not have appellate jurisdiction in this type of case), or implied, by saying they have appellate jurisdiction in some areas, and thus leaving others out. 2 differing interpretations of this opinion: Plenary Power Reading: Full power; no limit on what Congress can do in limiting S.C.s appellate jurisdictions.

Textual: Article III says appellate jurisdiction can be limited by exceptions made by Congress.

Structural: Separation of powers: Provides a check on the Supreme Courts power.

Limited Power Reading (Essential Judicial Functions Argument): Congress may make exceptions and regulations but cannot bar S.C. from hearing a kind of case entirely; they have to leave at least one path of appeal. Textual: The nature of the word exceptions means that it should not wipe out all appellate jurisdiction.

Structural: The proper role for S.C. is the supreme expositor of the Constitution.

McCardle can still get back to the S.C., just through a different habeas statute than the one relied upon. Case or Controversy

Case or controversy requirements

The judicial power only extends to cases and controversies stems from an implicit reading of Article III, 2

SC has no power to issue advisory opinion b/c Article III says the court can only decide case or controversy.

Justiciability Doctrines (standing, mootness, ripeness, and political question) assure there is a case/controversy for SC to resolve to ensure the court is not issuing an advisory opinion or something that looks like an advisory opinion:

Standing

Allen v. Wright case dismissed b/c parties didnt have standing.

Standing requirements: Constitutional Requirements (1) Injury in fact - it must be distinct, individualized, & concrete; real injury. Citizen standing (i.e. every citizen is harmed when government doesnt follow the law) fails: not individualized.

Class Standing (i.e. African Americans are being discriminated against so they should have standing): fails.

Only those who are denied admission.

Impairment of Desegregation racial imbalance is caused by government therefore there is an injury in fact to parents forced to send their kids to non-segregated schools. This is injury in fact.

(2) Causation fairly traceable to the defendant. No proximate causation (too many intervening causes) between racial imbalance and tax exemption; no statistics, etc.

(3) Redressable by the court court has to be able to issue a remedy (overlaps w/ the other 2). In Allen, the S.C. should not micromanage how the executive branch runs its affairs; thus, this tightens up the traceability analysis.

Dissent: It is basic elementary economics: the govt is improperly subsidizing racial discrimination.

Also says surely the courts can tell the IRS to enforce the 14th amendment and follow the internal revenue code: in other words, not to break the law.

Prudential Standing a court may have constitutional standing, but may choose not to hear the case as a prudential matter. Prudential limits are self-imposed restraints on the court to promote the policies created by justiciability. Political Questions a political question is a constitutional question for resolution through the political process (political branches) rather than through the courts. S.C. has never said whether or not this a Constitutional requirement, or prudential. (Exception to Jud. Supr.) In Baker v. Carr, a malapportionment of representation occurred in TN due an influx of large numbers of people.

Foreign policy is often seen as a political question.

Internal Operations of Congress are also often seen as a political question.

The Guaranty ClauseArticle IV, 4promises citizens of the states a republican government, not a monarchy. In the 1840s, the SC decided that the Guaranty Clause only creates political questions. It needs to be enforced, but it needs to be enforced by the President or Congress. (Luther v. Borden. The Borden Rebellion/Rhode Island case. If any department of the US was empowered by the Guaranty Clause to resolve this issue, it was not the judiciary.)

While they could not make decision on Guaranty Clause, they could on Equal Protection Clause.

Six factors indicating something is a political question.

(1) Demonstrable textual commitment of the issue to another branch. (2) Lack of judicial standards that allow the Courts to resolve the question; (3) A need for policy decisions that are outside the judicial scope; (4) If making a decision would show lack of respect for political branches; (5) Need for strict adherence to political decisions already made; or (6) Judiciary deciding could cause embarrassment, such as Pres. and Congress saying we are at war, S.C. saying not. Dissent, wants a broader interpretation of political questions. He feels this is a guaranty clause political question in disguise.

Federalism/State autonomy

Have to be concerned with judicial isolation from controversial political areas.

Ripeness

Ripeness is linked to standing and is about bringing a case too soon. The case is non-justiciable because the case isnt ripe.

If the court feels there may be standing in the future, but the timing isnt right. If there is prosecution the case is ripe; if there is threat of prosecution the case may or may not be ripe. Mootness Bringing something too late; if there is no controversy that is alive. Settling creates a moot case; also withdrawing of the law by the legislature may moot a case if the court chooses.

Policy reasons behind limiting SC power to case and controversy, and not having advisory opinions: Major concern about the separation of powers and other constitutional structures like federalism. While the Supreme Court might have the power to interpret the Constitution (thanks to Marbury), it doesnt have that power at all times; there must be some level of judicial restraint. Conserve Judicial Resources efficiency rationale; limit the number of cases.

Soundness of Judicial Decision when we have a true controversy, the adversarial situation will bring out the best, concrete arguments. The Court will take it seriously if there are actual parties. Fairness to the persons who are the proper litigants A group may be negatively affected by a law, but be willing to hit a compromise with the government. An ideological third party might hurt the proper litigants.

Arguments FOR allowing advisory opinions

Promotes efficiency in the other branches, b/c they might pursue policies the S.C. thinks is unconstitutional.

Might actually conserve some judicial resources so that the lower courts dont have to deal with whether or not some actions are Constitutional.

If S.C. is guarder of Constitution, should do it at the outset.

The Courts sympathy for certain parties might actually make it less sound in decision-making.

III.Race and the Constitution (14th Amendment EP). 14th AMENDMENT

1. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.

State v. Post Does the new NJ constitution prohibit slavery? If the framers of the NJ constitution wanted slavery out of NJ, they would have written a clearer statement of abolition. He allows slavery to continue and says the statement that all men had the right to freedom was just aspirational and the first step in a series of changes.

DOI: All men are created equal. Fundamental commitment of equality in U.S., even if we havent always lived up to that.

There was slavery at time of DOI; author was a slave-owner.

There was also a condemnation of slavery in the original draft of the DOI, but was removed.

Some argue that the word men did not include slaves.

There was an existing evil, and they hoped to deal w/ it after the Union was solidified, and would disappear over generations.

Hypocrites wrote the DOI.

Constitutional mentions of slavery: 3/5ths Clause Persons held in bondage should count as 3/5ths of a person for purposes of representation and taxation. Did not use word slave here.

Importation Clause (Art. I, 9) allowed the importation of slaves for 20 more years before Congress could ban it. Fugitive Slave Clause (Art. IV, 2) if slaves from slave-states escaped to non-slave states, the non-slave states had to return the slave to the slave states.

Dred Scott v. Sandford (Free African Americans are not citizens; slaves arent either) Clear endorsement of original intent.

Is Scott a citizen of MO? The owner was a citizen of NY so he can get into court if he has diversity jurisdiction. Constitution did not have original intent for African Americans descended from slaves to be citizens. Constitutionality of MO Compromise? 1st time Court took away major national political issue away from the political branches. MO Compromise made slavery not allowable in MN Territory. A constitutional right to own slaves that stems from the 5th amendment and that the MO compromise is unconstitutional. First example of substantive due process.

Substantive DP: The federal govt doesnt have the power to take property w/o due process of law and therefore disallowing slavery is taking away property without due process of law.

Counterarguments:

There were African-American citizens at the time of the framing of the Constitution, and the Constitution cannot take that away.

There are freed slaves who voted for adoption of the Constitution and who fought in the Revolutionary war, they were citizens. Article IV gave Congress the ability to make laws for the territories.

If the 5th Amendment had meant to protect certain substantive rights, it would have, and in fact, does. SDP is an oxymoron. The government gave notice and they passed the law; therefore there was due process of law.

The whole opinion is doctrinally contradictory. It flies back and forth between judicial activism and judicial restraint and reeks of politics.

Also, there was no jurisdiction to rule on the MO Compromise, b/c court didnt have jurisdiction b/c Scott wasnt a citizen.

The decision that is politicized to the core; this is an anti-slavery rule! This is not a good faith interpretation of the Constitution.

This is an activist decision that pretends to be restraint by citing original intent. Reconstruction Amendments There are delegated & enumerated powers in Const. for national government; was expected that national govt would have narrow powers.

B of R put limits on national govt; did not apply to the states originally.

State has general jurisdiction, and the police power (policy power). It was expected that states would pass the laws that affect our lives on a day to day basis.

So they should have the power to enact moral ideas, etc.

Civil War Amendments showed idea that state government had become the real evil.

Shifted a good deal of power to the federal governments.

Also set up a battle as to who had control over the enforcement and interpretation jobs; S.C. limited their power greatly under these amendments. 13th(abolished slavery

14th(due process clause, equal protection clause (of the laws), privileges and immunities (of U.S. citizenship) Grants citizenship to those born or naturalized in the US. (Overturns Dredd Scott) 5 Includes a provision for Congressional enforcement.

Questions arising: Protected Class (Who is Protected); and State Action Dimension (From whom is the person protected).

15th(prohibits race discrimination in voting. Strauder v. West Virginia the purpose of the 14th was to protect blacks from hostile state legislation (this is hostile, b/c an assertion of inferiority) Black was convicted of murder by jury. Only white men over the age of 21 who were citizens of the State could serve as jurors. This violated the 14th because the 14th declared that the law in the States had to be the same for blacks and whites.

S.C. allowed for many other exclusions, but could not be based solely on race. The dissent said the 14th amendment was not meant to protect jury service. Slaughter-House Cases establish that the equal protection clause is just about race.

It presents a two-tier approach.

Race receives a high level of scrutiny.

Everything else receives a low level of scrutiny.

Dissenters focused on the distinctions between civil/political rights. The 14th amendment was clearly meant to protect civil rights, things like enforcement of contracts, the right to sue, the right to acquire property, etc. Jury service and voting were actually considered political rights. State Action Theory

State Action Theory there can be no violation of the 14th Amendment unless the State has acted. 14th is fundamentally about protecting African Americans from racial discrimination by the State. (See SlaughterHouse, Civil Rights, Strauder). EP Clause

Civil Rights Cases (1883) Congress passed the Civil Rights Act that prohibited all persons from denying, on the basis of race, any individuals equal access to inns, public transportation, theatres, and other places of public accommodation.

This exceeds Congress power under 5 of 14th because if there is no state action there is no violation of the 14th. Also not closely related enough to 13th Amendment, b/c not related to slavery.

Dissent thought there was a close enough connection under 13th amendment (racist attitudes supported slavery); and also that it fits w/in 14th amendment (says not focused on ep clause, but on the wide grant authorizing Congress to prevent blacks from not being treated as citizens.) SC says you should go to the state for remedy.

Plessy v. Ferguson The 14th was undoubtedly enacted to enforce the absolute equality of the races, it was not intended to abolish distinctions based on color, or to enforce social equality of commingling of the races. Narrow view of 14th.

Plessy stands for 3 things:

Equality can allow separation as long as the separation is equal Separate, but equal = equal protection under the laws; although Plessy didnt say that; the LA statute said that, and it was upheld. Social rights are outsides the protection of the 14th The 14th was to protect blacks from hostile legislation and the court says that this legislation is not hostile (i.e. its not a badge of inferiority). Suggested that social rights are not protected; only civil/political rights. Dissent: obvious hostility, and an endorsement of white supremacy. The Road to Brown (The weakening of separate but equal) Cumming v. Board of Education (1899) local authorities have substantial discretion in allocating funds between white and black facilities; courts can only intervene in the case of clear and unmistakable disregard of rights and abuse of discretion. Separate but equal really means equal enough. McCabe v. Atchison (1914) takes separate but equal seriously; said no discretion granted to states. No deference to political actors. There actually has to be equality.

Gaines v. Canada (1938) practice of denying black law school applicants admission into Missouri law school was unconstitutional even though there was a program set-up to pay for out-of-state expenses incurred when a black student had to go to another state to attend a school that MO didnt offer for black students. MO has to create a black law school or let blacks into Missouri.

Sweatt v. Painter (1950) court ordered the admission of a black student to a white school b/c the parallel black school was not equal, esp. on intangibles.

McLaurin v. OK (1950) OK admitted a black student, but required him to sit in a special seat, he couldnt eat with the white students, and he had a reserved place in the library. Basically denied him interaction. Brown v. Board of Education of Topeka Brown (1954) Segregation of children in public schools solely on the basis of race, even though the physical facilities and other tangible factors may be equal, deprives the minority children equal educational opportunities, so inherently unequal. Separation on the basis of race is detrimental to a childs education because there is an inherent feeling of inferiority. 14th Amendment EPC, at the time it was passed, at least some thought should invalidate segregation. (Really inconclusive)

At time it was passed, public education was really nonexistent; now had become central to state government functionality; opens doors. Brown only says segregation in public schools is unconstitutional, but as the court receives additional cases concerning segregated water fountains, etc. they say unconstitutional see Brown.

Therefore, Browns true rule is Segregation is Unconstitutional! Why? Option 1: Mere fact of racial classification is wrong

Option 2: Invidious(Unfair; Unfairly Injurious) Discrimination

Brown is very easy for a judicial activist to swallow. Think the majesty of the Constitution require that we use moral insight to interpret it. People in favor of restraint think it is difficult to justify; they could go back to the 14th Amendment to attempt to show that originally were for it. Or, just by applying precedent from the previous cases, it shows that segregation is unconstitutional. Brown II required states to move with all deliberate speed; actual desegregation took many years, esp. in the South. *Reverse Incorporation* The 14th incorporated the original bill of rights. Reverse incorporation is when a provision of the 14th incorporates something into the bill of rights. EPC is one such reverse incorporation. Bolling v. Sharpe

Because the 14th Amendment is just geared (explicitly) to the states, the Court used the Due Process Clause to defeat segregation; says there is a substantive component even though there is only a discussion of process. There is no EPC in 5th Amendment. Whatever the states cant do under the EPC, the federal government cant do under the DPC. This is known as reverse incorporation.

Judicial activism opinion.

The court held that segregation in schools in DC is unconstitutional.

Levels / Tiers of Scrutiny

Ends

Means Strict Scrutiny (Race

Compelling

Necessary

Ethnicity, National origin)

Triggered if there is a suspect classification, govt usually loses.

Intermediate Scrutiny Significant, Substantial, or Substantially Related

(Gender, illegitimacy)

Important

Triggered if there is a quasi-suspect classification.

Rational Basis Review

Legitimate

Rationally Related

(Age, disability, sexual orientation, wealth, national origin could also be here; for things like immigration, political functions, etc.)

This is a non-suspect classification. Korematsu v. United States Technically a 5th Amendment case; although came before Bolling. Korematsu establishes strict scrutiny for racial classifications.

All legal restrictions which curtail the civil rights of a single racial group are immediately suspect, and subject to rigid/strict scrutiny. In Korematsu, the compelling state interest is the war effort. The law is viewed as necessary to affect the compelling end.

This is not an ordinary SS case, because generally nothing passes SS.

Why? It is a political constitutional question; they are trying to avoid second-guessing military during a time of war.

Court claimed it was not about anti-Japanese racism.

Dissent said military cannot do anything they want simply b/c time of war; the military has to at least be reasonable.

Unreasonable b/c limited to all Japanese.

Racism: Over-inclusive (included loyal Japanese) and under-inclusive (did not include unloyal Germans & Italians) Military will likely violate Constitution during war, and courts should not interfere, but should not give stamp of approval.

General feeling is that Korematsu was decided wrongly, but it stands today that any classification based on race is subject to strict scrutiny. Why are racial classifications subject to strict scrutiny:

Race isnt relevant to legitimate government decision making usually. So, if govt suddenly decides to make it relevant-suspicious.

History of race problems and race based oppression (white supremacy) in America.

14th Amendment is fundamentally about race; protecting African-Americans from discrimination (by a slight extension, ag other minorities). There is also a broader equality component that underlies the Constitution, and stems from the Declaration of Independence.

Immutable characteristic

Political process fails to protect discrete and insular minorities (from a footnote in Carolene Products) minorities that are socially distinguishable and isolated in some sense. When we have those groups in a democracy, we are worried that political process might not protect their rights.

Racism is wrong (Normative) wrong to place stigmas on people, wrong to discriminate, and is broader social harm of some kind/racial disharmony. Instead of treating people as individuals, we treat them as groups, which is often under/over inclusive.

Reinforce stereotypes by classifying on the basis of race.

The flip side of this argument maintains that discrimination is only morally wrong if it stigmatizes or brands a group as inferior.

Palmore v. Sidoti (1984) SC overruled statute that allowed children to be taken away from a white mom who married a black. Private biases cannot allow the government to create racial classifications. Anything that has the real whiff of racism is going to fail strict scrutiny; it is a very tough test. Express and Non-Express Racial Classifications:

Express classifications all three of these categories receive strict scrutiny.

Laws that disadvantage traditionally discriminated-against groups (Korematsu)

Laws that are facially/apparently neutral as between traditionally discriminated-against groups and other groups.

Analytically identical to separate but equal.

Loving v. Virginia. Inter-racial marriage ban. The law is facially neutral because it affects whites and black equally. Virginia wants to be analyzed under a no discriminatory effect standard. All express classification will immediately receive strict scrutiny. Laws that advantage traditionally discriminated-against groups.

Discussion below-Bollinger cases and Adarand.

No express race classifications

Laws with no express classifications might still have a race-based purpose but no effect.

These laws will receive RBR; there may be some question here.

Palmer v. Thompson. Public pool case. There was a racial purpose, but a neutral effect. Keep in mind that it might have been argued that the effect was not neutral if you could prove that African-Americans were more likely to be in a socio-economic bracket that would utilize a public pool. This is the only case that addresses this weird category and the Court might change their application later.

Village of Arlington Heights v. Metropolitan Housing Development how do you prove discriminatory purpose when there is no express racial classification?

(1) Look to the general historical background; (2) departures from normal procedures; (3) specific legislative/administrative history; and (4) patterns of behavior (no other groups to explain stark pattern of discriminatory impact) (5) statistics (6) common sense. If discriminatory purpose is shown, it can still be upheld if govt can convince ct. that they would have made the same decision w/o the racially discriminatory purpose.

Laws with race-based effects, but not race-based purpose.

These laws will receive RBR 14th Amendment was really meant to prohibit purposeful discrimination, not really incidental discrimination.

Washington v. Davis. Just b/c test had disparate impact does not mean that the test was written with the purpose of causing discrimination. If every law had to pass strict scrutiny, the government would essentially be prevented from making laws.

D.C.P.D. had also made affirmative recruiting efforts, showing their purpose was not discriminatory. Dissent said showing the effect goes a long way towards adding the purpose. McCleskey v. Kemp. No indication of a racially motivated purpose from the legislature in enacting the death penalty statutes; said showing risk of discrimination (Baldus study) not enough; must show discrimination with his case. (So, jurors, prosecutors, legislature).

Other justifications for upholding the penalty: They would raise an inference of racial bias in the entire Georgia judicial system. This argument is best left to the legislature. A very spirited dissent bemoaned the irony that the majority seemed afraid of too much justice. They also reinforce the idea that the role of the court is to protect people who cannot protect themselves through the democratic process; There is a manifest racism.

Purpose and effects are race-based

These laws will receive strict scrutiny.

Hunter v. Underwood. Discrimination against more than one group does not shield you from judgment under a race-based purpose.

Summary of laws w/o Express Classifications Effect RBR

Purpose RBR

Effect and Purpose SS

Affirmative Actionany attempt to advantage member of a historically discriminated-against group. Problem? The EPC only talks about individuals, not groups.

Adarand Constructors, Inc. v. Pena (1995) Main issue(whats the appropriate level of scrutiny?

The lesson of Adarand is that express racial classifications will always lead a strict scrutiny analysis.

The narrow-tailored argument must look both at time and if there are any race-neutral alternatives. OConnors analysis:

Skepticism we should be suspicious of race-based classifications.

Consistency

Same level of scrutiny for all groupsnot just disadvantaged

14th Amendment protects individuals, not groups

Dissent: we can tell the difference at a common-sense level between things that are meant to help/hurt minorities.

Race discrimination was worse in the country, but easier for women to get preferential treatment.

The states have been the worst offenders in race; Congress should have more deference.

Congruence same standard for state and federal governments

14th EPC=5th DPC: substantive content with component of EPC

National and state government under same equal protection standardalso Congress.

Remediation of general social harms has not been upheld as a compelling state interest. The remedial action is read very narrowly. Application of Strict Scrutiny

Strict scrutiny is NOT fatal in fact; The govt does not always lose Compelling State Interest (Remedy past discrimination); Narrow Tailoring (Consideration of race-neutral alternatives; Duration)

Scalia thinks AA never ok; this would be a creditor/debtor race, rather than black/white.

Thomas thinks AA is paternalism; their intent and effect is to stigmatize the achievements of racial minorities.

If there is an express racial classification strict scrutiny will apply: it doesnt matter if minorities are advantaged, disadvantaged, or facially treated equal. Arguments For and Against SS for Affirmative Action Classification:

Purpose of 14th: protected blacks; created color blind Constitution. History of Racial Discrimination Is toward minorities, so a classification that benefits minorities doesnt need SS.

History is filled with racism, all racial classifications need SS.

Racism is Wrong

All classifications based on race are wrong, so they all need SS

Race is Irrelevant

Therefore no sense in race-based classifications, so need SS.

We are not there where race is irrelevant, so if classification benefits minority it should not be subjected to SS.

Political System Failure

Minority cant represent itself in political process, so not every classification should be subject to SS.

Grutter v. Bollinger Michigan law school/race-conscious admissions program

Diversity is a compelling state interest; gives deference to educators. Gives preparation for people to work w/ people of other races.

Narrow Tailoring Analysis: The program still gave individualized, holistic file review, w/ race as a plus factor. Diversity plus is not just

race either.

The majority also reports an implied time limit. (Ginsburg doesnt want a time forecast). (Dissent notes there is no sunset provision). Quotas, etc. are frowned upon.

There was an examination of race-neutral alternatives; they were not tenable.

Dissent notes that the plus for race is really a super plus.

By upholding the unconstitutional program, we do not force the smart people at Michigan to come up with a better alternative, as they should.

Disagrees with the schools theory of critical mass. The school is really just trying to achieve a proportional representation of minorities; impermissible remedial measure. Diversity could be met by lowering admission standards. Maintaining a top 10 status not compelling state interest.

Take note of the fact that the court says its applying strict scrutiny, but it seems to be applying a less stringent test. Gratz v. Bollinger Minorities got 20 bonus points merely b/c of color. Too mechanical, point factor is too big, little individualized consideration.

Still a compelling interest, not narrowly tailored.

After these two cases, affirmative action became very expensive.

Parents Involved in Community Schools v. Seattle School District School assignment was based in part on race in order to have diversity in the schools.

Race diversity was all they sought; by itself not enough.

It is ok to promote diversity w/ special emphasis on race, but they had gone beyond this.

Not clear the programs were making much difference in racial balance.

Remedial Measures as CSI

Proven discriminator and proven victim = remediation as CSI Proven discriminator, but no victims = unclear if remediation is a CSI

Paradise allowed it to be CSI.

General Discrimination in a Particular Field No proven discriminators and no proven victims = NOT a CSI.

General Societal Discrimination (No discriminator, no victim) = remediation is not a CSI.

The 2 proven CSI are diversity promotion and remedial measures where there is a proven discriminator and victim.

IV.Equal Protection Clause (14th) - Classification

**Typical RBR** NY Transit Authority v. Beazer methadone user case

The classification is drug-users & non drug-users. In Beazer, the court applies RBR because the majority does not think this is a suspicious classification.

The whole point behind RBR is to avoid policing laws on the basis of good and bad policy. It is in place to maintain judicial restraint. Even though its over/under inclusive, that is not necessarily problematic under RBR. RBR routinely allows a significant amount of over-inclusion and under-inclusion. Think of it as a sliding scale: perfect fit(underinclusive(overinclusive(perfect non-fit

The dissent argues that it should be a tighter, more narrow connection.

Classification serves the general objective of safety and efficiency; therefore the classification is not irrational and is upheld.

Railway Express Agency v. NY Prohibition of advertising on vehicles except those used in delivery does not violate EPC. (Demonstrates underinclusion). It is not a requirement of EPC that all evils of the same genus be eradicated. Reduction in the number of advertising clutter is a rational basis; legislature doesnt have to eradicate all evils of the same kind and it doesnt violate EPC to prohibit some and not all.

Williamson v. Lee Optical unlawful to fit lenses without a prescription (if youre not an optometrist or ophthalmologist).

Field classification doesnt require a higher level of scrutiny; court hypothesizes a possible legitimate state interest (safety / public welfare). Minnesota v. Clover Leaf Creamery Co. (1981) plastic milk jugs were outlawed.

The legislature might have made an incorrect judgment call, but the Courts job is not to second-guess the legislature.

Again, they can hypothesize: Empirical proof that it fulfilled the goal is not necessary.

Unless the judgment is totally irrational, the law is upheld. **RBR w/ Teeth (Bite) Atypical RBR** City of Cleburne v. Cleburne Living Center (1985) It might just be tightened because the mentally retarded represent a discrete and insular minority.

High school nearby, concerned about possibility of hostility in community, and concerned about the floodplain causing them to drown.

Dissent hates tiers. He thinks that every problem is actually approached from a spectrum point of view.

Moreno. Allowing food stamps only to families fails RBR because the real motive is just to harm a politically unpopular group (hippies). animus. Using a tighter standard because the rule has indicia of a politically suspect classification. It would pass true RBR because RBR doesnt typically look at motive.

Romer fits here, too, but is discussed in-depth later. Idea of animus again comes up. RBR Overview Under RBR all that is required is legitimate state interest and classification is rationally related to that state interest. State is allowed to solve one problem at a time.

Not all evils of the same genus must be eradicated at one time.

Efficiency will justify over or under inclusion.

Dont look into actual purpose, but ask if there is a plausible legitimate state interest. Everything passes RBR in its typical application (when it has no teeth)

GENDER/SEX Reed v. Reed First Supreme Court decision to invalidate gender classification under the equal protection clause.

Law which preferred one sex over another in administering an estate was held as unconstitutional because it was an arbitrary choice based on convenience.

Test was RBR with teeth! Frontiero v. Richardson

Can military make men prove dependence on wives to be classified as dependent when females do not have to prove dependence? No. This case receives close scrutiny some form of intermediate scrutiny (or higher scrutiny than RBR). This case slides up the line from Reed.

Administrative convenience is not enough.

Refers to past discrimination and how it was based, not on animus, but on romantic paternalism.

Some call for SS b/c history, immutable characteristics (somewhat) and political power concerns.

Hes trying to explain why this is a suspect classification. The Carolene Products argument is difficult to make because women are actually a majority, but because of the legacy of social discrimination, women are underrepresented in democratic institutions.

Other argues for RBR, but still holds that classification violates EPC.

Craig v. Boren

Establishes intermediate scrutiny as a test for gender classifications.

States interest(enhancement of traffic safety (b/c males 18-20 are involved in more drunk driving and traffic incidents, but only 2% overall).

Statute found to be unconstitutional because there was no substantial relation between means and end Some: when gender is involved, just apply RBR with a sharper focus. Dont want to muddy the waters with a middle tier.

Some; thinks the tiers are silly; just flexibly evaluate each case.

Some: men do not have a history of discrimination so the classification is completely non-suspect.

The main thrust of this argument (IS for gender classifications) seems to be an analogy to race.

Immutable/Highly visible. History of discriminationnot animus, but romantic paternalism. Amendment 14 2 says you cant disenfranchise men, but can women.

United States v. Virginia

If a state sponsored single-sex school denies women, state cant offer a parallel program for opposite sex while retaining single sex status of school. New language into intermediate scrutiny: exceedingly persuasive justification. May tighten gender test to some weird place somewhere between intermediate scrutiny and strict scrutiny.

Diversity is a sham; women can be accommodated in the boot camp style method; strongly suggests separate but equal not possible.

The different styles of teaching make them unequal.

Other did not like the new language; not part of test.

Thought state could remedy the situation by creating another school, of the same/similar quality; Separate not always unequal like race.

Some women find this decision to be anti-women because this decision essentially eliminates the possibility of the creation of special, tailored universities just for women. Basically gives women right to go to school w/ men. Women who are big into acknowledging the legitimate differences between men and women are disappointed by this decision.

This IS* also makes it less likely for affirmative action programs to pass.

Scalia uses lots of rhetoric: says they are shutting down the school; accuses majority of judicial activism.

Keep in mind that you can get intermediate scrutiny without an express gender classificationbut only if the purpose seemed to be based on some sort of gender bias and the effect has a gender bias.

Also, running underneath all these cases is a tension between real differences and stereotypes. It is hard to distinguish them. (Argument for RBR, rather than IS). Michael M: Statutory Rape statute: Punished males, not females court upheld rape conviction of a 17 year old boy who had sex with a 16 year old girl because state interest was to prevent illegitimate pregnancies and to deter males by making sex at that age criminal. Concern: Are they basing their rationale on the idea that men are aggressive and women need their chastity and to be protected from male aggressors. Sexual Orientation There is a big status/conduct controversy. Romer v. Evans (1996) Amendment 2 of CO Constitution prohibits municipalities from adopting ordinances (statutes, etc,) to benefit homosexuals (lesbians or bi-sexuals).

The court uses RBR (with bite) to invalidate Amendment 2.

State interests include:

Put them in same position as every1 else, dont give special rights. Ordinary Rights says that civil rights are basic and there is nothing special about them.

Express State Interest Resource conservation (more groups must be protected by civil rights, less resources there are to go to worth groups) Express State Interest Freedom of association (persons may want to discriminate against gay people to exercise their freedom of assoc.)

Imposing discrimination. Civil rights are only necessary when there is discrimination. Real state interest is animus; bare desire to harm.

There is no equal protection for gay people. Dissent: idea of electoral procedural discrimination is absurd. Says it is not animus based on status, but moral disapproval of conduct; analogizes to polygamists.

Court uses RBR with bite by using the racial analogy: There is history of discrimination between gays and lesbians. Its a minority group (4%) which some might say is politically powerless Some might think sexual orientation is immutable Sexual orientation is not relevant to governmental decision making

Different views of the moral purpose of sexual activity:

Views Purpose

Reactionary..Procreation

Conservative.Marriage and Family

Liberal...Intimacy

Radical..Pleasure

Homosexual Marriage Analysis:

Goodridge: MA court held that the state interest banning homesexual marriage did not pass muster. (Baker in Vt. also says state couldnt). State interests:

Said procreation was one of the goals; some people that get married cant procreate.

Same sex couples not good parents; again, not a proper fit. Same-sex couples more financially independent; again not enough.

Moral disapproval also not enough justification.

Ct. later said civil unions not enough; have to use a marriage.

Defense of Marriage Act: Defines marriage as one man and one woman. Same sex not married for purposes of law (taxes, etc.) No state has to recognize another states same sex marriage (as under full faith and credit clause which says each state has to give credit to other states) 3 Obama administration believes it is unconstitutional, wont defend in federal court. State attorneys defending it in court. V.Due Process Clause Implied Fundamental Rights (SDP) In interpreting due process clause, or privileges and immunities clause, where do we look to determine what rights are substantive?

Some cases have said no rights.

Tradition.

Natural Law.

Bill of Rights.

Dred Scott was first recognition of SDP.

The Slaughter-House Cases (1873)

Do the Civil War amendments grant US citizens broad protection against the actions of state governments? No.

The P & I clause is held NOT to contain extra implied rights. They list rights that were already implicitly included. Limit app. only to black people. They argue that this would be a drastic change in the fed. structure of the Con. Dissent: This is an unreasonable restriction on the way to make a living; wants to go to natural law to determine meaning of P & I clause. Other dissent urges to look to traditional rights.

Its still good law. But this ushers in the era of SDP.

Substantive Due Process

14th and 5th have a DPC.

Procedural due process says you can take away a certain amount of life, liberty and property as long as the correct due process is given.

Substantive due process says these things cannot be taken away no matter how much process is given.

SDP 2 Doctrines:

Barron v. Baltimore stated that B of R did not apply to states govt.

Incorporation of Bill of Rights

Total Incorporation

Pseudo Incorporation

Selective Incorporation

Incorporation Three Different Views of Incorporation:

Total incorporation

Incorporates ALL/ONLY the Bill of Rights. Simple approach to a complex problem. Does not allow for the inclusion of other rights.

Pseudo-Incorporation / Fundamental Fairness (Used to be favored) 14th amendment doesnt incorporate the Bill of Rights, but 14th amendment protects fundamental rights.

Tradition/Natural Law/Political importance helps determine if right is fundamental.

Selective Incorporation (Won out) Duncan v. LA made it.

Actual incorporation, but only some not all. Decision based on fundamental fairness.

Compromise between total and pseudo incorporation. First prong: Does the text of the Bill of Rights really apply? [from total incorporation school.] Second prong: Apply the fundamental fairness test to see if it will be included.[Psuedo] The rights considered fundamental by most Americans have been incorporated. .Economic SDP Rights specific right protected under SDP, but not as part of incorporation of bill of rights: Right to Contract. Economic SDP does not exist today. Lochner v. New York (1905).

New York regulation prevented bakers from working more than 10 hours a day. Said to violate the DPC. No direct relation in this case upon health of the employee or public. Act interferes w/ freedom to contract, to allow this will allow it to creep in many professions.

State can put in legitimate safety and health regulations limiting freedom of K, but cannot be pure labor regulations. Ct. said it was more about evening the bargaining power b/w employee/employer who wants you working long hours.

Dissent: Baking is actually a very physically demanding job, so at least debatable that it is a health measure. State laws may regulate life in ways which we find injudicious or which interfere with the freedom to contract. Constitution does not embody a particular economic theory; therefore court shouldnt impose its own (laissez faire). Says it is a perverse interpretation of the 14th Amendment when it is used to prevent outcome of dominant opinion, unless that outcome interferes w/ a traditional fundamental right.

Whats Wrong with Lochner:

Decision is too activist

Most liberals say it is picking out the wrong rights, by protecting right to K.

Libertarians would think that it is rightly decided.

The Lochner era was put to bed by the Great Depression.

West Coast Hotel Co. v. Parish

Statute establishing a minimum wage for women was upheld. Public interest in protecting women. Community should not have to provide a subsidy to women who are not paid enough b/c of unconscionable employers. Williamson v. Lee Optical of OK

Formalizes standard of review for deprivations of economic liberties RBR. Ferguson v. Skrupa

Could only be debt adjustor if you are a lawyer. Similar to Slaughter House cases completes the circle (SH to Lochner, back to Skrupa).

Rise and fall of economic substantive due process

Slaughterhouse no economic rights protected under 14th amendment (RBR)

Lochner economic rights protected under 14th Amendment broad contract rights, economic conservatism

1930s-1960s Lochner dissents become majority opinion in 1930s. Lochner implicitly overruled (economic SDP rights disappear). Social SDP RightsContraceptives (Right to Privacy)

Griswold v. Connecticut (1965) Does a constitutional right of privacy exist that prohibits states from making the use of contraception by married couples a crime? Yes. Bill of Rights casts shadows and the right to privacy is within these shadows (penumbras).

Majority doesnt recognize a SDP to privacy because they are new deal appointees who were put on the court to end economic SDP rights, so they dont want to create any SDP rights. They try to make it look like incorporation; not SDP.

Harlan wants to look at it from a 14th Amendment/Due Process/fundamental fairness standpoint (SS); this becomes the dominant view later. There is a substantive component of the due process clause. Living legal tradition methodology.

Privacy part of living traditionsright to privacy in home, marital bedroom is fundamental.

Goldberg argues that it should be found w/in the 9th amendment, since it leaves open rights not enumerated. Ct. said that it was criminalizing a husband and wife having sex, so not narrowly tailored enough (meant to prevent extramarital sex). Black & Stewart say there is not constitutional right to privacy. Griswold is a very narrowing holding, but has been criticized bc it led to Roe. Eisenstadt v. Baird the court used EPC (based on marriage classification) and applied RBR (a-typically because statue was overruled). Now considered more about the scope of right to privacy The ct. invalidated a law that prohibited contraceptive devices from being given to unmarried persons violated EP clause, b/c did not prevent married couples from obtaining it. Claimed to be applying RBR, but clearly wasnt.

Carey v. Population Services International widened the right to privacy as articulated in Griswold to include individual decisions about child-bearing (rather than just rights to privacy in marriage). Overruled statute which prohibited any1 besides pharmacists to distribute contraceptives. SDP. There is a continuum of what rights people think are included in 14th Amendment, in addition to due process: No rights History and Specific Tradition: Need documentation of tradition, to some degree. Living Tradition: Tradition changed by changing times Natural Rights-Like true liberty. Justice Public policy-The most activist; judges overrule things b/c they are bad public policy. Abortion (Right to Privacy / Autonomy Rights) Roe v. Wade May a state make it a crime to get an abortion except to save the mothers life? No. The right to privacy is expanded to include abortion. B/c privacy is a fundamental right=SS The majority moves to 14th DPC, not Bill of Rights. Majority actually seems to use more a true liberty/justice approach in its opinion because it cant use living tradition b/c at the time of Roe 46 states prohibited abortion in some way.

Also have policy analysis of what happens w/o availability of abortion.

Majority held that fetus is not a persons as referenced in the Constitution. Therefore fetuses have no rights.

Diff. theories about when life begins; no agreement on this matter, so Texas cannot decide itself.

The specifics (trimester scheme) have been overruled. What remains is a broad protection of womens reproductive autonomy.

Sliding scale of state interest: trimester rules:

Prior to end of 1st trimester, abortion must be unregulated.

After the 1st trimester, (2nd trimester) State may choose to regulate in ways that are reasonably related to maternal health; and

Post-viability (3rd trimester) state may proscribe abortion, but there must be a health exception for the mother. Emotional/mental health is included; it is likely very broad. This was decided in companion case of Roe.

Dissents: Extravagant exercise of judicial power b/c creates a new right for pregnant mothers that overrides most existing state abortion laws. Must be some historical rooting for a right to be fundamental.

Test is RBR and this statute passes (it wouldnt if it banned all abortion, but it has a health of the mother exception).

Roe in Reverse arguing Roe under EPC

If a state has liberal abortion laws can this violate Constitutional right to life under EPC? 14th amendment says cannot deny any person due process. Pro-life says person is broad enough to encompass unborn child.

Must determine if the birth-status classification (if you are born, cant kill you, if unborn, can kill you) is suspect, quasi-suspect, etc. Then justify some level of heightened scrutiny. Use SS to hold liberal abortion laws unconstitutional b/c it violates rights of fetuses under EPC. Court didnt choose this approach b/c they were pro-choice.

Planed Parenthood of Penns. v. Casey Moves the Roe spectrum down towards natural rights. Overrules trimester scheme and creates undue burden test. Some of the language discusses tradition; others discuss natural rights. The court talks about stare decisis: not overturning Roe, although they say Roe may be wrong. The new dividing line is viability. Pre-viability and post-viability (the line seems to be at about 23 weeks; will change as tech. advances)

The pre-viability test(undue burden/substantial obstacle. If the regulation in purpose or effect places an undue burden with a womans ability to have an abortion, the regulation will be overturned.

Post-viability test(as long as there is a health exception for life & health of mother, regulations that restrict abortion will be upheld as valid.

This exception likely has to be very broad, and include emotional health.

Application of undue burden to statute in Casey:

Spousal notification was an undue burden;

Opens up the possibilities: Domestic violence, Divorce, Publication of wifes choice. 24-hour waiting period (along w/ medical info about abortion) may be a burden, but not an undue burden;

Parental consent (w/ judicial bypass option) for minors ok. Record keeping ok.

Roe is reaffirmed (excluding trimester scheme) because

Individual autonomy is a SDP right that should be adhered to.

They mix in living tradition/justice approach.

Mystery passage-Heart of liberty is right to define own concept of existence, of meaning, of the universe, of the mystery of human life. Special reasons not to observe Stare Decisis: None present Unworkable Unlike Lochner, and Plessy, Roe has not proven unworkable;

Lack of Reliance repudiation would create hardship for those who have come to rely on the decision;

Doctrinal Erosion no con law development has made Roe obsolete; and

Question of Facts changes of facts have not affected Roes central holding.

Institutional Integrity if the court overruled under the political pressure they would in essence cave-in and that would subvert their legitimacy; suggest they are not making their decisions based on Con. Blackmun wants to look at this under gender equality; equal protection clause; intermediate scrutiny

Geduldig said pregnancy classifications are not gender classifications. Not everybody who is not pregnant is a man.

Dissent, takes apart opinion piece by piece: SDP is narrow not broad; fake stare decisis because Casey overturn Roes legal doctrine (so this is not real stare decisis analysis); fact argument is irrelevant because Lochner and Plessy were overturned due to being wrong the day they were decided (no need for facts to change); and looks worse if you refuse to change a wrong decision than if you change under political pressure.

Scalia says this is a decision for the state legislatures.

Also says this will not kill the controversy.

Stenberg v. Carhart

Partial-birth abortion ban was overruled because it was not specific enough and might have been used to outlaw standard abortions and because it did not include a health exception post-viability.

If D&E is banned it would effectively ban abortion because it is the most common form of abortion. This would be an undue burden.

Ct focuses on language that made it unlawful to deliver into the vagina a living unborn child, or a substantial portion thereof.

Said the health exception, which only protected life of mother, was not strong enough.

Stevens says equally gruesome-irrational distinction.

Ginsburg extends Stevens and says it is only used to express hostility.

The law was seeking to prohibit Intact D&E (D&X), but statue was ambiguous and could have also banned D&E.

Three procedures

D&E = fetus killed inside the womb

D&X = skull collapsed and extracted partial birth

Homicide = killing the fetus when it has been birthed.

Arguments that NE statute is unconstitutional

95% of 2nd trimester use D&E (did not want to affect these);

Remaining abortions use D&X (statute was trying to prohibit these).

Court says it did prohibit these.

Dissent Roe and Casey are wrong and when theyre overruled any prohibition on abortion will be constitutional.

Kennedy: there is a state interest in banning D&X b/c it may numb medical community to the wonder of human life; and this only applies to D&X b/c state says it does!

Ct. focuses on only 1 part of statute, instead of looking at it a whole.

Federal Ban on Partial Birth Abortions: Congressional fact finding found that D&X were usually more unsafe than D&E and never safer. There was also a more careful description of D&X to ensure language could not be used to prohibit D&E also. Gonzales v. Carhart S.C. upheld federal ban on partial birth abortion, which had banned D & X.

Kennedy said state has rational interest in banning partial birth abortion, prevent from dehumanizing the medical profession.

NO health exception is necessary in this scenario. This was a facial challenge, saying the entire statute was unconstitutional. In the face of medical uncertainty, Congress is free to legislate. Litigants are free to bring cases showing that in some circumstances there is medical necessity.

Dissent again argued that there is no rational basis for the distinction, fed govt is attempting to express hostility to abortion.

The question is how far the federal ban reaches; there has to be a link to give federal govt power over it.

Possible categorizations for the reproductive line of cases:

Fundamental rights

Substantive due process

Privacy rights

Reproductive privacy

Autonomyindividual freedom

Sexual freedom.

All of these simply represent different levels of generality about these cases.

The distinction matters because we need to know how to use these cases as precedents. Right to Die (Suicide)

Washington v. Glucksberg Prohibition against Physician-Assisted-Suicide does not violate 14th.

Unanimous decision but diff. rationale.

Concurrence: No right to physician-assisted suicide, but a physician may give treatment which hastens death when relieving pain. Specific Tradition Approach (Rehnquist) in almost all states and western society it is a crime to assist in suicides. Autonomy rights protected under SDP does not include all important, personal, and intimate decisions.

Caseys broad rights do not relate to suicide.

Cruzan assumed a competent person has the right to refused unwanted medical treatment. at common law, was a battery.

Test: RBR the ban must be rationally related to the states interest. Unqualified interest in the preservation of human life;

Suicide is a public health problem;

State interest in protecting integrity and ethics of medical profession;

Risk of subtle coercion and undue-influence in end-of-life decisions.

O Conner wants a person to have right to receive pain treatment if they are terminal, and in excruciating pain, even if side effect you might die.

Souters concurrence seems to leave the door open for physician-assisted suicide in some form one day.

He does not want to stick to specific historical tradition.

He says those arguing for application of Casey standard are not completely wrong.

Suicide is not longer a criminal deal; has analogies to Roe.

He, too, is concerned w/ the slippery slope leading to involuntary suicide.

Sexual Privacy Bowers v. Hardwick

Court upheld a GA law banning homosexual Sodomy; declines to classify sodomy as fundamental right, in sexual freedom/individual freedom line. They instead use specific tradition methodology no deeply rooted right in our culture to engage in homosexual sodomy historically criminalized.

Test no specific tradition, no fundamental right RBR

Lawrence v. Texas Liberty presumes autonomy of self that includes certain intimate conduct; Court overrules Bowers to invalidate an anti-sodomy statute.

Point to living tradition and justice analysis.

Specific tradition analysis in Bowers is wrong because we should look at emerging trend which is to move away from anti-sodomy laws, and no prosecution. So there is suggestion for fundamental right.

Also Casey and Romer create doctrinal erosion because they are sweeping statements of individual autonomy and class-based legislation denies EPC to homosexuals.

There is also no apparent reliance.

Bowers was wrong day it was decided, and has been subjected to lots of criticism.

Level of scrutiny: Pretty clear using SS, event though say no legitimate state interest which represents RBR. Kennedy has a living tradition argument of the constitution Asks what laws are on the books that prohibit sodomy. Argues that the fundamental right is not sodomy but personal relationships that include intimate conduct, in privacy of their own homes, between consenting adults. Says this case is not about sex in public, minors, coercion, commercial transactions, and marriage.

OConnor Concurring Holds statute should be struck down under the EPC Homosexuals should be able to since heterosexuals are able to Scalia Dissenting RBR should be the standard; Moral disapproval is a rational-basis This decision dismantles distinction between heterosexual and homosexual unions

They also look to the EU; he hates this.

Also points out that there was an oscillation back and forth between broad and narrow views of SDP. If Casey erodes Bowers, then Bowers must logically have eroded Roe.

Says the ct. is disingenuous; dont believe their analysis and this is elitism. SDP Considerations Liberty interest Infringement Fundamentality Specific tradition-longstanding historical tradition. Living tradition Natural justice Apply test SS-if fundamental, this applied. RBR-if non-fundamental, this applied. Notice-these do not always apply, they may create their own test.

Common Social Substantive Due Process Cases Procreation Contraception & Reproduction & Abortion. Griswold, Roe, Casey Sexual Privacy/Intimate Relationships. Lawrence Medical Autonomy

Right to die.

Family Autonomy

Washington v. Gluxberg: Physician-assisted suicide.

Is there a right to have a physician help you commit suicide? Washington prohibits it. The tradition has been to prohibit this. It is not a fundamental right, so it is subject to RBR. Is there a rational basis for this?

Rehnquist (opinion)- State has an interest in protecting life and preventing people from committing suicide. Also helps protect vulnerable groups of people (mentally ill, etc.) We need to help these people, not give them the means to commit suicide.

Ethics of the medical community; Doctors should be healers. If people have the option to commit suicide, they may feel pressured if the option exists. (Grandma has 3 weeks to live, wants to live, but worries about hospital bills, etc.)

Could lead to euthanasia, voluntary or even involuntary, doctors deciding to kill very sick patients without consent. Insurance companies making these decisions, refusing to pay for more treatment, etc.

OConnor, concurring: Agrees there is no generalized right to commit suicide. But, there is no need to answer the question of whether or not you can receive palliative care, which may endanger their lives, right now.

Souter, concurring: Doesnt like fundamental, specific tradition approach in majority opinion, thinks it should be broad, living tradition methodology. Says that now that suicide is not a crime, assisting in one is not a crime and we should revisit this argument because of medical autonomy. State interest that wins out in this case is the same question as in majority about vulnerable groups. Worries that doctors may have trouble distinguishing who should be a candidate for this. sFamily Autonomy SDP Rights Myer v. Nebraska and Pierce v. Society of Sisters There exists a fundamental right to family autonomy (parental control) NE statute said only English could be taught in schools; Pierce concerned a state law that outlawed attendance at private schools. Overruled Interfere with parents right to control childrens upbringing; This is Lochner era, so there are contract arguments; and Tradition these are rights long recognized at common law. Moore v. East Cleveland There is a family autonomy SDP right; tradition based right. Family fundamental right heightened scrutiny because the family is a traditional area of liberty. Maybe strict, maybe not. State interest will have to be pretty weighty. Expansion of SDP rights should be approached cautiously, but family autonomy is a deep rooted tradition. Traffic, overcrowding, etc, are not enough.

Justice White basically says he is suspicious of SDP.

In re Michael H. court used specific tradition analysis to hold that there was no fundamental right to paternity of a biological father if the mother was married (i.e. husband, not father has paternity right). This statute subjected to RBR and upheld because state has interest in preserving the marriage. Court says no specific tradition. Could even argue that the legal tradition favors the marriage unit, rather than the mere biological relationship.

Brennan (dissent) blood relationships important, father should have right. Troxel mothers son has died and she wants visitation rights with his child (her grandchild). Judge says he has right to grant visitation to anyone if its in the best interest of the child. Mother says this sweeps too broadly. Majority applies some level of heightened scrutiny; Dissent wants RBR There should be no fed. family law (Scalia) Thomas wants to overrule SDP precedents, or pick level of scrutiny.

Overview: A long line of cases emerge where the court recognizes some fundamental right.

Right to refuse unwanted medical treatment Cruzan.

Permission to live with ones family Moore v. City of East Cleveland.

Marriage as a fundamental right (note this was also related to race) Loving v. Virginia.

Parental freedom and rights related to the upbringing of children Meyer v. Nebraska.

The existence of private schools Pierce v. Society of Sisters.

But the court did not recognize an unwed fathers parental rights as overwhelming the states interests In Re Michael H. All the rights you have under 14th Amendment, you have under 5th Amendment, but 5th Amendment applies to fed., rather than states.

This is where reverse incorporation comes into play.

VI.Federalism

Federalism distribution of power between a national government and state governments.

General Rule:

For an act of the federal government to be valid it must fall within the federal powers specifically enumerated in the Constitution and it must not violate any particular limitations on federal powers found in the Constitution.

Federal balance balance between ensuring the state governments have all the power theyre supposed to have and no more and ensuring the federal government has all the power its supposed to have and no more. Problems emerge when the line must be drawn.

Some want fed or state to be more powerful than the other.

Values of Federalism:

Individual choice / Satisfaction with government allows states to make their own decisions to reflect their local or regional feelings, and if you dont like it you can move. Efficiency more efficient to do things at the local level. State experimentation Louis Brandeis notion if we had a system without federalism, we would have to pick a state guinea pig and force the experiment upon them. 50 laboratories are better than one. Federalism allows states to try new policies and if they work other states can adopt them.

Promotes democracy breaks down the government into small constituent parts and makes people feel involved in the smaller governments. Easier to influence local government. Protection from tyranny less likely that power will be abused.

Federalism in the US Constitution:

Congress is a government of delegated and enumerated authority. Congress can pass a law when it is enumerated in Article I. States=general jurisdiction. The 10th Amendment reasserts a basic tenet of the Constitution by saying that powers not delegated to the US by the Constitution are reserved to the States. Art. 1 8 - National governments powers:

Few and defined; specific jurisdiction. (only things on list or N&P) No general police power

Delegated to Congress from states.

States powers:

Numerous and indefinite; General Jurisdiction. General police power. (police comes from policy) State can do anything as long as they dont violate the Constitution. U.S. Senate is allocated by states.

Constitution was ratified by state approval.

Powers of Congress: Overview Interstate Commerce Clause Congress may regulate commerce among the States. This includes:

Channels of Commerce (waterways),

Instrumentalities (Greyhound bus on interstate),

Stream / Flow of Interstate Commerce, and

This obviously includes going across state lines to sell things.

Any economic activity that when aggregated substantially affects IC.

Purely non-economic activities that Congress cannot regulate include crime, family law, and education.

Limits on Congress Commerce Power:

Traditional State Functions Garcia: Congress can regulate the states as if they were a private business as long as the regulation is one of general applicability (i.e. applies to States and private businesses).

No Commandeering The federal government may not commandeer a state legislature to pass the laws that Congress wants (cannot commandeer a state to carry out Congress plans).

Congress can use conditional spending (carrots) and conditional preemption (sticks), but not commandeering.

Congress cannot commandeer state executives or officers.

Power to enforce the 14th through 5 Congress has the power to enforce 14th through appropriate legisl