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1. THE BASICS (ARTICLES)
a. I – LEGISLATIVE
i. sec. 5 – gives each house the ability to make it’s own
proceedings
b. II. – EXECUTIVE
c. III. – JUDICIAL
d. IV. – INTERSTATE COMMERCE
e. V. – AMENDMENTS
f. VI. – MISC
g. VII. – RATIFICATION
h. 50% + 1 is all that it takes to pass most measures
i. political issues intertwined in all of Con Law

2. CONSTITUTIONAL INTERPRETATION
a. Positivist/Literal/Legalistic <—> Purposes/Context
b. TEXT
c. HISTORICAL/CONTEXTUAL
i. ORIGINAL INTENT
(1) what did the framers mean?
ii. broader historical context
d. STRUCTURAL
i. FEDERALISM
ii. CHECKS AND BALANCES
iii. DEMOCRACY
e. DOCTRINAL (PRECEDENT)
f. FUNDAMENTAL VALUES
g. DELEGATION OF INTERPRETIVE AUTHORITY TO FUTURE GENERATIONS
i. broadly written opinions to keep unclear so future generations
could interpret
h. SLIPPERY SLOPE ARGUMENT (PRUDENTIAL)
i. the consequences of the ruling
ii. don’t do A because it will tumble to Z
(1) i.e. if we charter a federal bank it will allow the
government to do anything
(a) response is that are available turn offs

3. BACKGROUND
a. 1783 – U.S. having political and economical duress
i. interstate rivalry (state soverignty)
ii. U.S. needed credit with other countries
(1) Brits not interested in granting credit to states
(2) everyone started demanding cash
(a) led to Shay’s Rebellion – 1786
(3) U.S. needed capital ($) to build
iii. all led to 1787 Constitutional Convention
iv. 1787-1789 debate over whether to ratify Federalist Papers
(Hamilton/Madison)

4. THE FIRST ISSUE – ESTABLISHMENT OF A NATIONAL BANK

a. the bank debate was discussed as an issue before the Const., but
left out so that Const. could be ratified
i. putting it in as an ennumerated power would have made it
impossible to ratify

b. Hamilton – pro & felt it was Constitutional
i. broad view

c. Madison – opposed
i. Government has limited power
ii. 1st rule
(1) a loose interpretation of the Const. is not correct
(a) the “very characteristic” of the government is limited
power
(2) Hamilton’s response: Fed. govt. can set up a corporation to
exercise powers already granted in Const.
(a) Fed. and state govt’s can co-exist
iii. 2d rule
(1) if the words of Const. are clear – come hell or high water -
then accept the consequences
(a) when meaning is unclear , the consequences will determine
(b) this is a textual argument
(2) Hamilton “drives a truck thru the whole created here” by the
word clear
(a) focus on common usage of words for meaning
iv. 3d rule
(1) if meaning is not clear then look to the framers intent
(a) contemporary evidence is also relevant
(2) Hamilton: meaning of the text will show the intent
v. 4th rule
(1) likelihoop of being left to implication

d. McCULLOCH V. MARYLAND
i. MD. in angry response of 2d bank chartered imposed a $15K tax on
any bank “not chartered by the state”
ii. McCulloch (bank manager) argues that the federal gov’t has a
right to, and has, established this entity
iii. Marshall (maj.) – the word “expressly” was left out and
therefore powers express or implied are okay
(1) compared this to Art. of Conf. where word “expressly” did
appear (mistake in para. 16)
(2) the limitations in Art. 1 sec. 9 limits certain powers -
saying these are the limits on implied powers
(3) “In considering this question, then, we must never forget,
that it is a constitution we are expounding.”
(4) [Para 18-22] corporations are not an end, rather a means to
help. The gov’t can choose the means.
(a) continued to support implied powers
(5) [para 28-32] meaning of the word necessary
(a) does NOT mean absolutely necessary or indispensible
(i) this would be unworkable
(b) different people have different meanings
(i) example of post office (in Const.) to implied power of
punishing those who steal mail
(6) [para 42] holding:
(a) It is const. to charter a bank
(b) supremmacy clause exempts fed gov’t from state taxation
(i) state can not create regulations which pre-empt the law
of the land
(7) limited power re: foreign affairs does not apply (since
states have nothing to do with foreign policy)
iv. Jackson vetoed establishment of bank implying that the
President can make his own interpretation of Const.

5. THE MARSHALL COURT and the early years

a. ART. III – THE JUDICIARY
i. Judiciary Act of 1789
(1) state sup. ct. decisions could be appealed to U.S. Sup. Ct.
on Federal Const. issues
ii. Judicial Review of Congressional Legislation
(1) not explicit in const.
(2) can cts. say Congress and/or Pres. got it wrong?

(3) MARBURY V. MADISON (1803)
(a) Marbury was assigned to a fed. ct. the night before Adams’
term ended. However, Madison, the new sect’y of state did not deliver
the commission. Marbury was seeking a writ of mandamus (ordres an
official to do something).
(i) case only in sup.ct. because Washington D.C. had no lower
ct.
(b) ct. decided that the Const. gives the Sup. Ct. the
authority to review acts of Congress, and determine if they are unconst.
(i) ct. felt Marbury’s commission was instated at time paper
was signed in sealed and he is rightfully a fed. judge, but…
(ii) Congress steped beyond its Const. power by passing the
Judiciary Act giving the Sup. Ct. the right to issue a manadamus. The
const. says that the sup.ct. shall have original jurisdiction in all
cases affecting ambassadors, other public ministers and consuls, and
where a State is a party. In all other cases the ct. has appellate
jurisdiction. Therefore, the Judiciary Act was repealed (as unconst.)
and mandamus was denied.
(c) note that Marshall addressed whether Madison should be
granted remedy first, before getting to jurisdictional question so that
he could write a decision about the Madison issue
(d) Marshall: We have a limited gov’t…We have a written
Const….Const. is “paramount law”…court interprets law…
iii. Marshall’s interpretation of “Art III, sec. 2 cases arising
under the Const” makes the Const “a living thing” available to everyone
- court’s can interpret if there is a conflict between congressional
enactment and const.
iv. note that judicial review is not explicitly provided for by
Const. (as Marshall points out) – but is implied
v. Judicial review is beneficial by:
(1) preserving fundamental values
(2) help limit gov’t
(3) protect democratic process
vi. note: some other reasons why judicial review is good
(1) judges have leisurely scholarly way and institutions can’t do
this as well
(2) market theory (judges not subject to bribes)
(3) political theory (judges in for life – not subject to
political pressures)
vii. note: judicial review not good:
(1) counter-majoritarian
(a) i.e. court is protecting minority – but could be seen as
undemocratic (not looking out for majority)
viii. this is example of strict textual interpretation – i.e.
const. didn’t give ct. jurisdiction to issue mandamus

b. The protection of property right
i. FLETCHER V. PECK (1810)
(1) As to the farmers who pioneered a tract of land or the person
who held the piece of paper to the land – paper holder owned the land.
(2) in this case – GA legislaturers were bribed out of 35 million
acres – grant to this land was rescinded, but much of the land was
already resold – ct. said natural rights had vested – can’t take back
the vesting rights
(3) Marshall: Const. right to contract clause
(a) the grant was a contract
(b) the recision would equal the impairment of innocent 3d pty.
purchasers
(c) when a law is in its very nature a contract and absolute
(natural?) rights have vested under that contract, repeal of the law
cannot divest those rights
(4) in McCulloch Marshall said Const. should be read in light of
purpose clause was developed – however, here purpose of contract clause
is not what Marshall is giving it (broad interpret)
(a) i.e. Marshall says look to legislative history – yet, the
history here is questionable
(i) clause was created to prevent states from enacting debtor
relief laws that altered the existing contractual obligations
(5) Marshall feels the ct. is responsible for the last say on the
law re: the Const. b/c Congress can’t be judges on their own case and
the ct. is actors for the people who created and are following the
const.
(6) Natural law
(7) ex post facto: can’t repeal rights given (i.e. Dartmouth case
- NH tried to make Dartmouth public – but no good b/c already granted
the land)

c. regulation of interstate economy
i. GIBBONS V. OGDEN (1824)
(1) New York granted a monoploy to Livingston to navigate waters.
L assigned to Ogden the navigation between NYC and NJ. Gibbons,
however, was licensed by the Fed. govt.
(2) The issue is whether Congress can regulate commerce within a
state when it affects other states?
(3) originally NY cts made a slippery slope & federalist argument
that Fed control over the commerce would be
(a) inconvenient (too much for fed to handle)
(b) too unbalanced in fed. favor
(4) Marshall looked at meaning of word commerce (textual) and
“police power”
(a) commerce is traffic and “intercourse”
(b) police power refers to health and safety regulations
(5) Marshall took position of allowing concurrent state and
federal regulation of commerce unless in direct conflict with one
another – then fed dominates (structural)
(a) note that Marshall was attracted to position that Const.
grant of commerce power deprived states of any such power – but, did not
adopt that view in holding
(6) in McCulloch – limited fed. power here-expanding it
(a) but, here we are dealing more closely with object entrusted
to the gov’t
(i) can’t have all the states having different rules
regulating interstate concerns

d. slavery
i. THE ANTELOPE (1825)
(1) Ship was captured on international water suspected of
violating American statute against slave trade. Spain wanted their
property back
(a) Marshall determined that slavery is against natural law,
but not against the Law of Nations and not illegal on international
waters
(i) U.S. “positive law” extends only to U.S. boundaries
(ii) note that “positive law” (U.S. law) is critiqued by
“natural law”
(b) dissent possibilities: no property right when natural
rights exist
(i) common law of England (not good source)
(ii) charters of liberty
1) Magna Carter
2) Eng. Bill of Rights
(iii) social contract of reasoning
(c) cts. of one country does not extend to another, so even if
ship was in violation of their own country’s law, U.S. is not the place
to try them
(d) not all slaves were returned, because ship owner was
sailing under a flag that was not his own

e. Privleges and Immunities clause decisions discussed later

f. American Indians
i. CHEROKEE NATION V. GEORGIA
(1) Cherokee’s failed attempt to be regarded as a sovereign
nation and establish original jurisdiction in Sup. Ct.
(a) U.S. would not recognize them
(b) Marshall: Cherokee is not a “foreign nation” per Art. III
(i) textualism: “foreign nation”
1) realism: if they were foreign, we’d be invaded
(ii) relation to U.S. resembles ward to guardian

6. THE TANEY COURT

a. PRIGG V. PENN (1842)
i. When MD slave owner went to retrieve a slave in PA and get a
state judge to certify the return of the slave – and was denied the
certification – the owner forcibly returned the slave to MD.
Subsequently, he was convicted of violating a PA statute making it
unlawful to retrieving slaves in such a manner. There existed, however,
the Fugitive Slave Act which authorized the owner to get the slave and
bring him before a fed. judge for certification that it was indeed a
slave.
(1) Ct. overturned conviction stating the PA statute was unconst.
because it conflicted with Fed. stat and Art. IV
(a) ct. felt art. IV gave owner the right to reclaim slave and
Congress alone has right to making laws around Act (no concurrent laws)
(i) “this is a SHOCKING case” and shows how far the ct. is
willing to manipulate the text of the Const to support a policy they
believe is important
(2) warped contextual/historical and text argument
(3) Art. IV sec. 3 is referred to as “fugitive slave clause” and
superseded by 13th amend.
(4) dissent: reiterates that Act requires taking the fugitive
before a Fed. judge and both laws can remain concurrent
(5) Prigg allowed owners to forcibly remove slaves from free
states and return them to slave states without any legal process at all

b. DRED SCOTT V. SANFORD (1857)
i. Scott was brought to a free state by master who later died.
Sanford, as executor of estate sought to return Scott to slavery. Scott
went to bring action in Fed. ct. under a diversity of citizenship claim
- but, ct. struck him down as not being a citizen
(1) Taney: Black slaves and their descendants are not citizens
under the Const.
(a) very strict framers original intent interpretation
(i) i.e. in 18c. blacks were not “citizens” so therefore they
can not now be considered citizens
1) criticized decision for not ever allowing enough
flexibility for change and evolution of our society
(ii) also D of I “all men are created equal”
1) since this wasn’t true – must mean blacks aren’t covered
by Const. either
(b) dissent: blacks in free states were considered by that
state to be a citizen of the state, therefore they should be considered
citizens of the U.S.
(i) also, just because a person can not enjoy all the rights
of the state – does not mean they are not a citizen (age, sex, etc.
limitations)
1) i.e. voting rights

c. post DRED SCOTT
i. 13th amend. abolishes slavery but, no such thing as civil rights
ii. southern whites try to keep slavery going as long as possible
iii. Civil Rights Act of 1866
(1) Fed stat. prohibited race differentiation-but, questioned
whether Congress had right to pass such a bill

7. YEARS 1864 TO 1934

a. RACE DISCRIMINATION
i. 14TH AMENDMENT
(1) “All persons born or naturalized in U.S….are citizens of
U.S.” was added to completely reverse Dred Scott
(a) state no longer had power to determine citizenship (now
Fed. determines)
(b) states cannot abridge privledges of persons
(2) but, note very broad language
(a) use of word “male” – voting rights
(b) sec. 5 granted power to Congress on matter
(3) the key elements:
(a) sec. 1
(i) Priv & Immunities of citizens
(ii) Due Process (L, L, P) of persons
(iii) Citizenship Clause (see 7(a)(i)(1) above)
(iv) Equal Prot. of persons
(b) sec. 5
(i) Congressional power
1) i.e. 42 USC 1983 – deprivation of rights secured by
Const. and laws under color of state law
(4) STRAUDER V. W.V. (1880)
(a) Black man was convicted of murder by an all white jury
(b) Ct. said exclusion of Blacks was unconst. by virtue of 14th
amend.
(i) looked to historical purpose of 14th amendment framers
(c) 14th amend. protects against “unfriendly legislation”
passed by gov’t against someone based on color
(5) MINOR V. HAPPERSETT (1874)
(a) 14th amendment did not add priv & immun., just insured that
he got what he already had
(b) there is no question that women are citizens, before or
after 14th amend.
(i) but, historical approach: framers did not intend to give
women voting rights
(6) PLESSY V. FERGUSON (1896)
(a) later overturned by Brown v. Board
(b) man who 7/8 white was arrrested for sitting in the white
section of the train
(i) statute required “separate but equal” railroad
accomodations
(ii) Plessy claimed that this stamped a badge of inferiority
on blacks and was unconst. under 13th and 14th amend.
(iii) maj: said sep. but equal is const. and a lawful
exercise of a state’s police powers. Where this has been the
established “custom, usage or tradion” in the state.
(c) Harlan dissent:
(i) The statute interferes with personal freedoms. All
citizens are to be treated alike. Constitution is color blind.
(ii) Purpose or Effect of law:
1) Effect:
a) Tangible or intangible
b) looking at intangible might suggest decision was
unconst.
c) can’t deny that statute hurts blacks more than whites
(d) Formalism v. Realism
(i) was majority looking at reality of the issue or just the
formal words of the statute
(e) note: Plessy and Strauder are distinguishable because
Plessy had a gender neutral statute (separate but, equal) and didn’t
look past that. Strauder dealt with a blatant gov’t discriminatory law.
(f) the other part of Plessy (handout #4)
(i) determined that giving conductor the right to decide who
is what race was unconst. and Plessy is not barred from a civil action
against company
(7) THE CIVIL RIGHTS CASES (1883)
(a) five citizens were appealing convictions for violating
Civil Rights Act of 1875 which gave blacks “full and equal enjoyment of
accomodations…”
(b) ct. held this act to be unconst.
(i) 13th and 14th amends. apply only to state actions.
Cannot prevent mere private discrimination
(c) Harlan dissent: 13th amend was created to destroy all
burdens created by slavery, including discrimination
(i) 14th amend. establishes the citizenship of all persons
born in U.S. – and thus is not limited to state actions
1) even if it is – trains, inns and public places can be
viewed as agents of the state
a) this is today’s view – but, still good law that 14th
amend. prevents only discrim. state action
(d) note: exhaust all state remedies b/f federal question

b. PRIVLEGES AND IMMUNITIES
i. THE EARLY CASES – DEALING JUST WITH ART. IV.
(1) CORFIELD V. CORYELL
(a) certain fundamental rights exist – which state must grant
equal to citizens and non-citizens of the state
(i) but, law saying only NJ citizens can get clams from state
waters is okay – not infringing on out of stater’s fundamental right
(2) CRANDALL V. NEVADA
(a) can’t tax a person going from state to state
ii. PROTECTION OF ECONOMIC RIGHTS (14TH AMEND.)
(1) THE SLAUGHTERHOUSE CASES
(a) Butchers were claiming LA statute granting a monopoly to
one slaughterhouse was a violation of their P & I, Lib. & Prop. and Equ.
Prot. set out in th 13th and 14th amend
(i) ct. held that 13th and 14th amends. were created to
remedy the evils of slavery and ensure national citizenship, P & I, etc.
1) must look to the state for protection against state laws
a) the rights at issue here were created or destoryed by
the state
2) no deprivation of property
3) equal prot. does not apply b/c meant to apply to blacks
(original intent)
(ii) Ct. held P & I are access to seaports, protection
abroad, etc…
1) this case destroyed the P & I clause of the 14th amend.
and fed. protection of it – in essence states could do what they wanted
2) slippery slope argument – otherwise we’d have a federal
dictatorship
(b) dissent felt P & I were being read too narrowly – even read
broadly would not harm the state’s power (i.e. no slippery slope)
(i) state’s police powers are limited to health, safety, etc.
issues
(ii) Regulating the standards of butchers is okay – but,
granting monopoly denies others right to choose their trade
(2) Myra Bradwell
(a) denied admission to the bar based on sex
(i) sup.ct. said P & I does not apply to practicing law
(3) note: 2 separate spheres have been set up:
(a) Fed. Const.
(i) P & I
1) liberty of Contract
(b) State police powers
(i) ask: is law reasonable or a direct means to a legitimate
end?

8. THE HEYDAY OF JUDICIAL ACTIVISM (1890-1934)

a. LOCHNER V. NEW YORK
i. considered to be one of the most important cases in Con Law for
it’s implications regarding methods of interpretation, the judiciary
role, and justices enforcing values “outside the text.” (i.e. ct. was
making right to K a fundamental right which was not in const.)
ii. Lochner was fined for allowing a baker to work more than the
state allowed 60 hours per week.
(1) Peckham maj: found statute unconst.
(a) standard of review (p.287)
(i) is this a fair and reasonable exercise of police power?
1) tobe appropriate use of police power – an act must have
a direct relation, as a means to an end, to an appropriate and
legitimate state objective
(ii) Liberty of contract is a fundamental Const. right (and
this is a K question)
1) right to buy and sell labor is part of the liberty
protected by the 14th amend.
2) right protected by 14th amend.
a) 14th amend. limits state’s exercise of police power
(b) the means (limiting hours) is not a close relation to the
ends (health of bakers)
(c) said the state can only persue certain goals thru it’s
police power
(d) look to the effect and words, not legislative intent, of
statute
(e) slippery slope argument:
(i) not just bakers hours can be regulated – but, then every
profession…
(2) Harlan’s dissent:
(a) challenger has burden of proof to show a statute unconst.
by showing statute has no real or substantial relation to public health,
etc…
(i) courts should stay out unless there is a clear violation
1) matter for the state legislature
2) “if there be a doubt as to the validity of the statute,
that doubt must be resolved in favor of it’s validity, and the courts
must keep their hands off”
(3) Holmes’ dissent
(i) accusses the rest of the court of imposing there own
economic theories on the const.
(ii) legislature has the authority to restrict liberty unless
it infringes on fundamental principles
1) lottery cases, Sunday laws, etc…
(iii) give states lots of power
(4) critics of Lochner: Judge’s placed too much weight on own
subjective value

b. post – Lochner (1890-1934)
i. ct. struck down some 200 statutory and administrative
requirements – but, also sustained many as well
ii. 11th amendment
(1) a state can not be sued in federal court
(a) attys. got around this by suing the atty. general
iii. Regulation of commerce
(1) U.S. V. E.C. KNIGHT
(a) not good law!
(b) ct. required a direct and logical relationship with
commerce
(c) ct. said that manufaturing is not “commerce” and can be
regulated by the states
(i) putting the product into the mainstream, rather, is
commerce
(d) example of formalism argument
(i) i.e. delving into the meaning of “commerce” and
“manufacturing”
(2) CHAMPION V. AMES (the lottery case)
(a) Harlan majority: it is const. to prohibit the
transportation of lottery tickets from state to state
(i) since a state, to protect the morals of the people in
that state, may prohibit lottery sales – Congress for the purpose of
guarding against the pestulent spread of lotteries can regulate such
“commerce”
(ii) first of a line of cases that validated Congress’ use of
commerce power as a device of regulating social goals
(3) HAMMER V. DAGENHART (child labor case) (1918)
(a) not good law (overruled by U.S. V. Darby)
(b) ct. strikes down a federal statute prohibiting the sale of
goods by companies which illegally employ children
(i) ct. says this is a power left to the state – and does not
fall under “commerce”
(ii) further, the products themselves are not dangerous to
society (as are the lottery tickets)
(c) Holmes dissent: is now majority view of restrictive 10th
amend.
(i) so long as congressional action technically comes within
a const. enumerated power it is valid no matter how substantially it
impairs the states ability to regulate what would otherwise be local
affiars
1) broad view

c. THE BROADENING OF FEDERAL COMMERCE POWER & THE DECLINE OF JUDICIAL
INTERVENTION
(1) in 1937 ct. switched to greatly broaden Congress’ commerce
power
(2) note court in 1932:
(a) McReynolds, VanDevanter, Sutherland, Butler
(i) felt Lochner (liberty of Contract – expansive) was still
good law
(b) Stone, Brandeis/Cordozo, Holmes
(i) expansive gov’t power
(c) Taft/Hughes, Roberts
(i) liberal swing votes
(3) NEBBIA V. NEW YORK (1934)
(a) ct. held 5 to 4 regulating milk prices was const. because
of a public necessity
(i) “the guaranty of due process…demands that the law shall
not be unreasonable, arbitrary or capricious, and that the means
selected shall have a real and substantial relation to the object sought
to be attained”
(4) MOREHEAD V. TIPALDO (1936)
(a) “the State is without power by any form of legislation to
prohibit, change or nullify contracts between employers and adult women
workers as to the amount of wages to be paid”
(i) invalidated a New York minimum wage law for women
(5) WEST COAST HOTEL V. PARRISH (1937)
(a) Lochner and Adkins had too limited view of a state’s police
power
(b) minimum wage for women is necessary for them to survive
(c) women have an unequal bargaining power
(d) “Liberty” does not necessarily equal freedom of Contract
(i) the Const. does not speak of freedom of contract – rather
it speaks of liberty – and prohibits the deprivation of liberty w/o due
process
(ii) “what can be closer to the public interest than the
health of women…and their protection from…overreaching employers?”
(6) U.S. V. DARBY(1941)
(a) (also NLRB v. JONES) – overturned E.C.Knight
(i) substantial economic effect on interstate commerce
(b) trend is turning from distinguishing commerce and
manufacturing to relating the two together
(c) ct. found it const. to restict certain wage and labor
standards whether in one state or not, if the product was to effect
intrastate commerce
(i) substandards in wage and labor practices drove down the
prices, thereby effecting intrastate commerce and giving Congress const.
power to regulate it
(d) reversed Hammer
(e) extends power not just to regulate products it deemed
harmful, but also articles created under harmful conditions
(f) 3 theories now current law on Congress’ ability to regulate
commerce
(i) substantial economic effect on commerce is okay to
regulate (NRLB)
(ii) accumulative effect theory
1) man raising his wheath (alone is not impactful – but
taken as a whole will be) (FILBURN)
(iii) commerce prohibiting technique (DARBY)
1) once you go over state lines Congress can regulate you
(7) WICKARD V. FILBURN (1942)
(a) even though excess grain was produced for on the farm
consumption – it still effected commerce and thereby fell under federal
jurisdiction
(i) ct. rid of direct and indirect distinctions – broadening
power of Congress and fed. gov’t

9. THE MODERN DOCTRINE OF ECONOMIC DUE PROCESS

a. Economic Due Process refers to the taking of liberty without due
process (5th – fed and 14th – state)
i. RATIONAL BASIS standard of review
(1) something a rational person would agree to
(2) does the statute have a rational relation to a legitimate
government objective?
ii. Challenger has the burden of rebutting a strong presumption
that facts exist to support rational relation to government objective
(1) state has a lot of leeway in determining these objectives
(the state is presumed to have a legitimate government objective)
(2) challenger rarely wins!

b. UNITED STATES V. CAROLENE PRODUCTS
i. attempt by dairy council to have congress stop the sale of
“filled milk” (filled with animal by-products and thereby cheaper) for
the not-so-real reason that the filled milk was unhealthy
(1) ct. rejected a due process challenge to a federal statute
prohibiting the interstate shipment of filled milk
ii. “disproof in judicial proceedings of all facts which would show
or tend to show that a statute…had a rational basis” would invalidate
the statute. But the existence of facts supporting the legislative
judgment is to be presumed.
(1) beginning of RATIONAL BASIS standard
iii. Lochner “liberty of contract” doctrine is gone – however case
is alive in other areas

c. WILLIAMSON V. LEE OPTICAL (1955)
i. state of OK passed a statute prohibiting opticians from doing
just about any business practice without a prescription from an
opthamologist or optometrist
(1) optician challenging statute 14th amend. “liberty”
(interference with a legitimate business)
(2) ct. found statute const. and state was within their police
powers
(3) a regulation enacted by a state is not beyond const. bounds
unless it has no RATIONAL RELATION to a legitimate state objective
(i) far fetched rational basis approach
(ii) landamrk “minimum rationality” standard case

d. TAKINGS CLAUSE – 5TH AMEND.
i. “nor shall private property be taken for public use without just
compensation”
(1) the takings clause has been read into 14th amend. referral to
property (MAHON case below)
ii. PENN. COAL CO. V. MAHON(1922)
(1) Coal company would sell the “surface rights” to a property,
while retaining the right to mine all the coal underneath, free from
liability of any damages that may occur
(a) legislature passed a statute forbidding mining which caused
the subsidence of any residential structure
(i) ct. held that the “regulation exceeded the permissable
limits of the state’s police powers and compensation had to be paid”
(ii) Holmes majority: the act is not justified as an act for
public safety – especially when no notice is given to coalminers
1) property buyers bought the surface rights fully knowing
what they were doing
2) the company has a clear and valuable property right to
take the coal underneath
a) “baseline” (place to start the judicial query) is at
this right
b) to allow the statute would be to “take” this right
3) note the tension and similarities in this opinion and
his dissent in Lochner
(iii) Brandeis dissent: baseline is common law of nusiance
(right to enjoy property)
1) statute is not “taking” anything, but preventing harm
iii. VILLAGE OF EUCLID V. AMBLER REALTY
(1) zoning restriction by town which realtor said lowered their
property value was held to be constitutional
(a) flexibility of const. with the changing times argument
(i) “while the meaning of const. gruantees never varies, the
scope of their application must expand or contract to meet the new and
different conditions which are constantly coming…”
(ii) but, note, apartments in that area considered to bring
in “undesirables”
iv. MILLER V. SHOENE
(1) Ceader “rust” was hurting Virginia’s apple orchards – statute
was passed destroying such trees – the tree owners demanded compensation
(a) ct. held statute const. and denied the compensation
(i) “…the state does not exceed its const. powers by
deciding upon the destruction of one class of property in order to save
another which…[is of greater value]”
v. NOLLAN V. CALIFORNIA COASTAL COMMISSION
(1) construction of a larger home would block the public view of
the ocean from the street
(a) ct. said commission could have denied permission to build
the house or require an easement from the street to the ocean
(perpindicular) across Nollan’s property – but, commission required a
lateral easement connecting one public beach to another
(i) this requirement had no “nexus” to the reason for the
building restriction
1) Scalia majority: must be connection (nexus) between
condition imposed and the state interest or objective
2) Brennan/Marshall dissent: effect to Nollan’s land was
negligible at best
a) and felt majority placed “an unreasonably demanding
standard for determining the rationality of state regulation”
(2) PENN CENTRAL TRANSPORTATION V. NY & 4 part balancing test
(see below)
(a) landmark preservation will seldom result in takings
(b) ct. upheld restriction of building something over and
around Grand Central Station
vi. LUCAS V. SC COASTAL COUNCIL
(1) ordinance prohibited the building of any permanent structures
on his lot found to be a taking
(2) 2 categories in which regulations are compensable to owner
(Scalia)
(a) does regulation compel property owner to “suffer a physical
invasion?”
(i) YEE V. ESCONDIDO – doesn’t have to be physical to be
physical invasion
(b) does regulation deny all economically beneficial or
productive use of the land?
(i) uses a strict scrutiny standard
1) heavy burden on state
2) compensate for takings unless necessary to a compelling
public interest
(ii) if yes – is considered a taking and should be
compensated for, unless the law diminishing the use of the property
existed before acquisition of the property
(iii) if no – it is not a taking as long as they leave an
economicaaly viable use for the property
1) four part balancing test:
a) does the taking advance a public interest
b) without destroying a classic property interest (i.e.
right to exclude)
c) is there some value left to owner?
d) is there some reciprocity of benefit?
2) the regulation will be found to be a taking if it
unjustly reduces the economic value of the property
(c) something that was always a nusiance can be taken w/o
compensation (can’t say it’s a nusiance midstream)
(3) DOLAN V. CITY OF TIGARD
(a) hardware store wanting to double in size – city says okay
if they deed some land to them – not related to a legitimate government
interest
(i) must be an essential nexus between condition and request
of city or;
(ii) at least a rough proportionality between concern and
city’s condition on the land
(4) HAWAII V. MIDKIFF(1984)
(a) Rational relation test – taking 90 % of Hawaii owned by few
people to resell to renters – public use and eminent domain argument
(i) – besides they were compensated
(ii) remedying a social and economic evil
(5) today in the court
(a) Dolan and Nolan express the way the ct. goes
(i) harsher review by the ct. of land use regulations
1) means chosen by local gov’t must substantially advance a
legitimate aim
2) any give up by over must be roughly proportional to the
harm caused by the new land use
3) failure of 1 or 2 can result in damage awards to the
landowner
(ii) limit the gov’t power to isolate individuals for
scrafice to the general good
(iii) bar gov’t from forcing some people alone to bear public
burden which in all fairness and justice should be borne by the public
as a whole (DOLAN)

10. THE CAROLENE PRODUCTS FOOTNOTE & DISCRIMINATION

a. CAROLENE FOOTNOTE
i. note Stone in CAROLENE suggests in certain cases the court will
exercise stricter review when:
(1) para 1: the law on it’s face violates a specific prohibition
listed in the bill of rights
(a) on case by case basis the ct. may impose b of i on 14th
amendment (i.e. incoporate 5th into 14th)
(2) para 2: legislative acts that restrict political process’
should be subject to greater scrutiny (i.e. widespread denial of voting
for blacks and the EVANS case on gays!)
(3) para 3: statutes directed towards discreet and insular
minorities cannot strip rights because the normal political process’
have broken down

b. about to enter cases relying less on original intent

c. KOREMATSU V. UNITED STATES
i. West coast Japanese Americans were rounded up and placed in
camps after Pearl Harbor bombing on grounds of national security
ii. “All legal restrictions which curtail the rights of a single
racial group are immediately suspect….courts must subject them to the
most rigid scutiny….pressing public necessity may [justify existence
of restrictions]
(1) Korematsu was claiming the taking of his liberty without due
process
(2) Black: “Pressing public necessity may sometimes justify the
existence of such restrictions”
(3) “classic example of Carolene footnote” (b/c court applied
strict scrutiny – even though it failed)
iii. dissent: overinclusive and underinclusive (didn’t arrest
Germans….) – but over/under is allowed
iv. ctics: loose definition of “means necessary”

d. SIMPLE JUSTICE

e. BROWN V. BOARD OF EDUCATION
i. overruled “separate but equal” Plessy doctrine
(1) integration of schools case
ii. the original intent problem – 14th amend. did not intend to
abolish segragation in public schools, so therefore is it Const. to
desegregate?
(1) Warren says we can’t really know what the original intent of
14th amend. was (i.e. Did Equal Protection mean separate, but equal?)
and public education wasn’t a pertinent issue at time of Plessy
(2) Alexander Bickel: original intent can be divided over long
term and short term intent
(a) possibly 14th amend. framers intended to leave the door
open
(3) Robert Bork said just look at the text. Ct. doesn’t have to
look to framer’s intent – just focus on the text (not considered a good
argument)
iii. tangible and intangible factors are to be considered
(1) seperating black and white children has the intangible effect
of making black children seem inferior – even if physical facilities are
similar and inferiority effects learning
iv. in BROWN II: the complexities of implementation was left to the
school districts and District Cts. to enforce

f. BOLLING V. SHARPE
i. District of Columbia case on same desegregation issue decided
the same day
ii. even though 5th amendment intent had nothing to do with “equal
protection” – Ct. used the word “liberty” and “due process” and extended
Brown decision to the D.C. school
iii. note: Prof. Rosenblatt’s argument is that segregated schools
were part of a racial domination system and a direct descendant of
slavery and therefore unlawful under the 13th amend. (but, the ct. was
not as wise as he!)

g. the after-math of BROWN
i. COOPER V. AARON
(1) Governor refused to follow ruling of sup.ct. underscoring the
notion that rulings are not always obeyed
(a) ct. held that the Sup.Ct. is the supreme law and the
governor cannot decide to not follow their decision to desegregate

11. THE PROBLEM OF CLASSIFICATION AND GENERALIZATION

a. under/over inclusive rule
i. ct. held it const. for a rule to be over or under inclusive if
addressing the following:
ii. rule or “trait”
(1) i.e. in transit authority case – prohibition of any person
who tests positive for narcotics use (whether legal or illegal)
iii. “mischief” – the problem the rule tries to handle
(1) i.e. safety and employability riskes
iv. graph:

b. basic criteria for Rational Classification
i. the purpose of the law should be connected to the discrimination
ii. iti is not irrational to impose the regulation on X, but not on
Y if: (rational basis test)
(1) Application of the regulation to X reduces the total amount
of mischief more than if applied to Y
(2) X causes a greater amount of mischief than Y
(3) Y’s cost of complying with the regulation is greater than X’s
(4) exempting Y will serve an ancillary objective
(5) X posseses trait T, and
(a) on average employing T as a classification trait is more
efficient than than employing a more narrower, more individualized
trait; and i.e.
(b) the practical necessity of the legislative classifications
based on valid generalizations that may not necessarily hold true for
each member of the class; also:
iii. The “one step at a time” justification
(1) RAILWAY EXPRESS AGENCY V. NYC
(a) It is no requirement of equal protection that all evils of
the same genus be eradicated or none at all
(2) also, in LEE (above): a legislature has traditionally been
allowed to take reform “one step at a time”
iv. All tort and K law should reflect economic market. Con law
also reflects political market.

c. The purpose of law debate:
i. Brennan: Purpose of law is to be determined by text and
legislative history (and no expansion after that!)
ii. Rehnquist: Says there is no actual purpose – everyone votes for
a law for different reasons – so go on whatever the legislation is
(1) i.e. narcotics rule is just that and the “safety and
employability stuff is nonsense”

d. one view of equal protection is it is meant to say: treat
similarly situated people similarly (with respect to the law)

e. The “public choice theory” (a.k.a. market theory)
i. funding certain objectives by public
(1) smoking lobby
(2) campaign financing law
ii. this is Clarance Thomas’ theory
iii. opposite theory is “civic republican theory”
(1) Stevens dissent in NORDLINGER
iv. NORDLINGER V. HAHN (1992)
(1) Rationality analysis and property tax in relation to equal
protection
(2) should pubically elected policy be subjected to a different
standard? (give more defference to public referendum)
(3) “the Const. presumes that, absent some reason to infer
antipathy, even improvident decisions will eventually be rectifed by the
democratic process and the judicial intervention is generally
unwarrented no matter how unwisely we may think a political branch has
acted”
(4) Stevens dissent: legislation must be public regarding – and
not just interest on the favorite class – no one self interest faction
that may oppress other groups should be allowed to become dominant
(a) politicians should arise above public interest pressures
and legislate for the good of the whole

12. STRICT SCRUTINY AND DISCRIMINATION

a. strict scrutiny requires statute to be NECESSARY TO A LEGITIMATE
or compelling government purpose
i. government has the burden

b. Strict scrutiny TRIGGERED by ANY RACIAL CLASSIFICATION (KOREMATSU)

c. PALMORE V. SIDOTI (1984)
i. ct. applied strict scrutiny in case where natural mother (white)
married a black man and overturned state courts ruling taking away
mother’s custody
ii. sup. ct. said “the best interest of the child is indisputably a
substantial gov’t interest for purposes of Equal Protection Clause”
(1) private prejudice is a substantial threat to well being of
kids – the law may not directly or indirectly give effect to private
prejudices (anti-Scalia traditions argument)
iii. core purpose of 14th amend. “is to do away with all
governmental distinctions based on race”

d. MCLAUGHLIN V. FLORIDA (1964)
i. court invalidated a statute punishing interracial cohabitation
ii. use strict scrutiny if race classification is irrelenavt to any
gov’t purpose
iii. look to see if there is a discriminatory purpose or specific
intent
iv. color-blind const.

e. LOVING V. VIRGINIA (1967)
i. ct. invalidated rule against interracial marriage
ii. both this case and MCLAUGHLIN statutes challenged were “direct
descendants” of slavery….13th amend. could have been used

f. LEE V. WASHINGTON(1968)
i. only case subsequent to KOREMATSU – can segregate in prisons to
avoid riots

g. GRIGGS V. DUKE POWER CO. (and see DAVIS below!) (1971)
i. under Civil Rights Act – Title VII (prohibits discrimination in
employment)
ii. Blacks could only shovel coal at Duke by company policy. After
Act, Duke instituted a test (or required a H.S. diploma) to discourage
blacks from getting better jobs in the company
iii. ct. held the touchstone is “business necessity” – test must be
related to job performance – only under title VII
iv. RULE ONLY HAS TO HAVE A DISPROPORTIONATE IMPACT on one race or
the other (under title VII)
(1) burden shifts to company to prove need for test (strict
scrutiny)
v. no need to show discriminatory intent
vi. Eq. Prot. Clause and Title VII should not have the same meaning
(1) 14th amend is for state action while title is for employment

h. WASHINGTON V. DAVIS (1976)
i. “test 21? given to police officer candidates on job related
skills – where 4x # of blacks failed than whites is not a violation of
equal protection
ii. “disproportionate impact” is NOT strict scrutiny standard, but
rather a RATIONAL BASIS STANDARD
(1) therefore to enter into strict scrutiny challenger must show
an INTENT to discriminate – or make a prima facie discrimination case -
otherwise apply a rational relation standard
(a) intent doesn’t have to be the only motivating factor – just
one of…
(b) sometimes inference of discrimination will be enough
(i) i.e. white jury venires or disproportionate white juries)
(c) Also see FEENY below

i. HUNTER V. ERICKSON (1969)
i. Akron ordinance which made it difficult to pass a “fair housing”
act (i.e. needed to be approved by a majority of voters) regarding the
“race or color” of prospective leasors or buyers
ii. White/Harlan majority: official distinction based on race will
automatically engage the strict scrutiny standard
(1) racial classifications are automatically Constitutionally
suspect
(2) used “cumulative harm” argument in FEENY and BROWN
(3) Harlan used fair political competition argument from CAROLENE
footnote para. 2
(a) Disadvantaging minorities in getting to the political
process

13. CLASSIFICATIONS BASED ON SEX

a. REED V. REED (1971)
i. applied a rational basis standard to determine that it was
irrational to assume men are better executors of an estate than women
(1) but, still didn’t really address what standard should be
applied

b. FRONTIERO V. RICHARDSON (1973)
i. a statute provided that women wives are automatically eligible
for benefits as dependents, but husbands of servicewomen must prove that
their husbands depend on the wife to receive benefits (5th amend. due
process challenge)
(1) Brennan/Douglas/White and Marshall majority:
(a) found classifications based on sex inherently suspect
(b) recognized the long history of gender discrimination
(i) immutable characteristics (“highly visable”) b/w men and
women
(c) Gender discrim. should have a heightened scrutiny (at this
time “strict”) applied because:
(i) long history of discrimination
1) perpetualizing institutionalized gender inequality)
(ii) highly visable immutable characteristics
1) leads to stereotyping

c. STANTON V. STANTON
i. rejected an archaic and overbroad generalization by rejecting a
Utah statute making women a minority to 18 and men a minority to 21
(also note cases on page 822)

d. CRAIG V. BOREN (1976) – actually male discrimination case!
i. law prohibited men from buying beer till age 21, but women could
buy beer at 18 (attempt to lower drunk driving)
ii. finally a majority decided that an INTERMEDIATE STANDARD should
apply in gender discrim. cases
(1) Government must show that the classification is substantially
related to an important government interest
(a) why? (as stated in this case) — stereo typing and
immutable characteristics. Also washback effect on women
(i) i.e. CAROLENE footnot para. 3
(b) also – too small number of mischief (1.8 % of men) is not
enough to deny all men
iii. Why INTERMEDIATE? – not just from this case, but in
general….
(1) Powell’s concurrence in FRONTIERO – don’t adopt strict
scrutiny because ERA will be passed and ratified (but, it wasn’t)
(2) original intent: 14th amend framers did not intend to include
women in equal protection clause

e. P.A.M. v. FEENY (1979)
i. female was passed up several times for a civil service job which
was given preference to veterans
(1) neutral rule which inherently disadvantaged women
ii. ct. asked three key questions:
(1) what group deserves heightened judicial protection?
(2) what to do about “neutral rules w/ unintentional
discrimination
(3) affirmative action
iii. related to para. 2 and 3 in CAROLENE footnote (“process
theory”)
iv. is it a [gender, racial, illegitimacy, disability, etc...]
classification?
(1) see HUNTER and SEATTLE
v. 1st question: Is it overt (prima facie) or covert(needs intent)
classification?
(1) if yes-overt, then apply strict scrutiny
(a) why?:
(i) b/c race is always irrelevant to a legitimate government
purpose (Color-blind Const. as in MCLAUGHLIN)
(ii) CAROLENE footneote para. 2 and 3
1) para 2: political access
2) para 3: prejudice against discreet and insular
minorities
(iii) cumulative harm (i.e. in BROWN – harm to black
children)
1) also in HUNTER below
vi. 2nd question: Neutral rule with a disparate impact?
(1) “Discrim. purpose” triggers a heightened scutiny
vii. If not heightened, then apply rational basis test
viii. Disparate impact, by itself is not considered applicable but,
okay on Title VII challenges
ix. Stewart/Stevens majority: need specific intent (all or nothing)
(1) current law
x. Marshall dissent: look to see if there should have been
forseeability

f. MICHAEL M. V. SUPERIOR CT. OF SONOMA CTY. (1981)
i. Rehnquist majority: Upheld a California statute making only men
criminally liable for statutory rape
(1) applied rational basis (but, called it heightened scrutiny!)
(a) purpose of statute as given by state (accept unless it is
an impossible purpose):
(i) prevent illegitamate teen pregnancies is a legitamate
gov’t objective
(b) Rehnquist really gave great defference to the statute,
sounding more like a rational basis test
(i) Brennan dissent: felt the state had to show (under
Intermediate – the state has burden…) that a gender neutral statute
would be less effective
(2) Rehnquist also applied real differences approach
(a) men and women are not similarly situated with respect to
the stated purpose
(i) biological differences
(ii) legally created differences
1) as supported by the draft laws
(iii) behavioral patterns
ii. Stewart concurrence (and opinion in subsequent preganancy
cases) felt preganant women cannot be categorized with men
(1) applied a low standard of review (rational basis)

g. MISSISSIPPI UNIV. FOR WOMEN V. HOGAN (1982)
i. O’Connor’s first opinion – joined by Brennan, White, Marshall
and Stevens
ii. state supported school allowing only women in effort to combat
gender discrim. Hogan was male trying to get in
(1) state did not overcome intermediate scrutiny – classification
is not related to any legitimate objective
(2) Statute cannot reflect archaic notions: “if the statutory
objective is to exclude or “protect” members of one gender because they
are presumed to suffer from an inherent handicap or…to be inferior the
objective itself is inferior” (citing FRONTIERO)
iii. Powell, Rehnquist, Berger and Blackmun dissent: Hogan doesn’t
represent a class – just wants to go to the school for convenience. (no
other male joined the complaint) Also, majority is preventing state
from offering an alternative to co-ed schools

h. types of feminism: (interesting for background purposes)
i. equality feminism
(1) anti-discrimination or anti-differentiation
ii. difference feminism
(1) acknowledges some differences (i.e. pregnancy)
iii. dominance feminism
(1) women have been dominated
iv. transformational feminism
(1) “Rosenblatt’s fourth”
(2) Both men and women need more time at home

14. AFFIRMATIVE ACTION

a. UNIV. OF CALIFORNIA REGENTS V. BAKKE (1978)
i. white man claimed that U.C. Davis’ Medical School affirmative
action program – reserving 16 seats out of 100 for blacks – is
Unconst.(violation of Equal. Prot. and Title VI of Civil Right Act)
(1) school claimed whites are not a discreet and insular minority
(i.e. Carolene footnote)
(2) note: 2464 applications, 100 openings, 16 reserved
ii. court was shaply divided 1-4-4 decision ending up in admitting
him
iii. the majority: Stevens, Burger, Stewart and Rehnquist (and
Powell is “1?)
(1) majority besides Powell, never got to the Constitutional
question – simply found policy violative of Title VI
(2) POWELL (swing vote both ways)
(a) agreed policy is violation of equal protection (got to
Const.)
(b) wanted to apply strict scrutiny (only one who wanted this
standard). Why?:
(i) textual – equal protection for every person
(ii) history and precednt – “forget what was meant in 1868 -
b/c now we are a “nation of minorities”
(iii) racial classification as “odious” – people’s rights
should not be judged by immutable characteristics
(iv) law/politics distinction – if we try to answer CAROLENE
footnote (which groups are insular and discrete, etc.
1) Doesn’t want cts involved in deciding what groups
deserved added protection
(c) diversity as a goal is Const. – but, quota is not (“Forward
looking”)
(d) treat all races the same – but, joined the dissent in
saying it is okay to consider race as one factor of many
(e) admit him
(3) STEVENS
(a) never got to Constitution – found policy violated Title VI
of the Civil Right’s Act
(i) effort to get back to Congress on this issue
iv. the dissent: Brennan, Marshall, White, Blackmun
(1) all found policy okay under Title VI of Civil Rights Act
(2) BRENNAN
(a) focused on the CAROLENE footnote approach
(i) racial problems are because of history
(ii) wanted to apply an intermediate scrutiny
(iii) “our prior cases unequivocally show that a state gov’t
may adopt race concious programs…to remove disparte impact…”
(b) don’t admit him

b. UNITED STEEL WORKERS V. WEBER (1979)
i. since Union agreement did not involve state action – was not
addressed under 14th Amend. – and rather Title VII
ii. Brennan majority upheld plan for union to hire 50% blacks until
number of blacks in union equaled percentage in workpool
(1) to eliminate racial imbalance
(a) this was intention of Title VII (and 14th amend.)
(b) plan doesn’t “fire” white workers and is temporary
iii. Rehnquist dissent: no racial discrimination is okay, even to
help minorities
(1) strict textual approach

c. SHEET METAL WORKERS V. EEOC (1986)
i. ct. imposed an affirmative action policy on a union where the
discrimination was aggregious
(1) majority (Brennan, Marshall, Blackmun and Stevens: wanted to
dissapte the effects of discrimination (backward looking)
(2) dissent: narrow view – Title VII only provided relief to the
actual victims
(a) this is Scalia, Rehnquist view in today’s court
(b) “backward looking” view

d. WYGANT V. JACKSON BOARD OF ED. (1986)
i. Majority (Powell, Burger, Rehnquist, O’connor) “Forward
looking” reason: to safeguard minority teachers with less seniority to
provide role models to alleviate discrimination
(1) was not good enough to allow affirmative action policy
(a) need to show some prior discrimination by the gov’t unit
involved before allowing the limited use of racial classifications in
order to remedy the discrimination
(b) board’s policy is not sufficiently “narrowly tailored”
(c) “the idea that black students are better off with black
teachers could lead back [to the system BROWN overruled]”
(d) disparte impact on minorities (i.e. policy allows a
justification for a small percentage of minorities)
(i) also – remedy does not have an adequate relationship to
harm caused by prior discrimination
(ii) but, remember Davis – need discriminatory intent to be
Unconst.
(2) Note: Powell in Bakke wanted diversity in the school (what if
that had been the reason here?)
(3) O’Connor concur:
(a) apply strict scrutiny
(b) can make a prima facie title VII case by evidence showing
the percentage of blacks working vs. number in job pool is highly
disproportionate (“backward looking” view)
(4) Stevens dissent: would benefit students to have diversity

e. FULLILOVE V. KLUTZNICK (1980)
i. federal government as spender
ii. Ct. upheld “minority business enterprise (mbe)” provision of
the Public Works Act of 1977 requires 10% of federal funds (“set-
asides”)granted for local public works projects be used to hire minority
businesses – even when not the lowest bidder. White businesses sued
under 5th and 14th amend.
iii. Burger said provision was “an equitable and reasonablly
necessary means with a compelling goal”
(1) sort of a strict scrutiny application
iv. Marshall, Brennan and Blackmun concurred and referred to their
opinion in Bakke
(1) “the proper inquiry is whether racial classifications
designed to further remedial purposes serve important governmental
objectives and are substantially related to achievement of those
objectives”
(a) intermediate scrutiny (BUT KEEP READING DOWN!)
v. Stevens dissented on process grounds
(1) Congress needed to gather more stats on the issue

f. CITY OF RICHMOND V. J.A. CROSON
i. state government as spender
ii. 30% set-aside for MBE’s was destroyed by ct.
iii. O’Connor majority:
(1) 1st time a majority agrees on strict scrutiny (at least
applied in state cases)
(a) O’Connor with Rehn, White, and Kennedy (and Scalia from
previous opinion)
(2) distinguished this case from FULLILOVE – in that the state’s
power is limited by the 14th amend. – Fullilove was Federal and Congress
has power to regulate 14th amend.
(a) also Congress looked for a race neutral answer to the
problem and Richmond did not
(3) need to find disparity in percentages as outlined above in
Wygant
(4) don’t need actual victims bringing the suit – but must be
able to prove that a minority is being “frozen out” before enacting an
affirmative action “set-aside”
iv. Scalia concur: apply strict scrutiny, but need actual victim to
remedy
(1) too hard to “overcome the effects of past discrimination”
(2) this is a “backward looking view”
v. Marshall, Blackmun and Brennan dissent:
(1) felt policy must “serve important government objectives and
be substantially related to the achievement of those objectives”
(a) intermediate scrutiny
(2) note: the entire dissent is gone from the court!

g. so today’s court….
i. White has been replaced by Breyer, but the entire dissent was
replaced
ii. applies strict scrutiny in state cases
(1) compelling giv’t interest (by showing there was past
discrimination – see Croson)
(a) don’t need the actual victims suing – but, show there are
actual victims
(2) the means are necessary or “narrowly tailored” to goal
iii. METRO BROADCASTING V. FCC
(1) affirm. action policies giving minorities preferential
licensing grants by FCC held to not violate 5th amend equal prot.
(2) apply intermediate scrutiny in Federal cases (current law in
Fed. cases unless current ct. changes it)
(a) goal: broadcast diversity is important gov’t objective and
classification must be substantially related
(b) owe Congress deferrence
(i) O’Connor, however, says that power is derived only from
14th amend.
(c) but, majority was Brennan, Marshall, Blackmun, White and
Stevens and only Stevens is now still on the court!
(i) note: Brennan, Marshall and Blackmun were the dissent in
Croson
(ii) Also note: Brennan wanted to apply intermediate scrutiny
to all affirm. cases: Bakke, Webber, Croson, Johnson) – but not good
law!
(3) dissent: Rehnquist, O’Connor, Kennedy and Scalia
(a) apply strict scrutiny here as well!

h. the forward and backward looking distinction:
i. forward looking & process: “racially integrated future”
(1) Justice Stevens in general
(2) role model theories
(3) diversity of student body theory
(a) Powell in Bakke
(4) Federal gov’t as regulator
ii. Backward looking “redress for past specific sins of racism”
(1) looking to the nature of the thing remedied and scope of the
remedy
(2) only actual victim is entitled to remedy
(a) Rehnquist in Sheet Metal
(b) Scalia in Croson
(3) Gov’t as spender (Croson and Fullilove)
(a) O’Connor’s percentage theory in Wygant

15. PRIVACY AND FUNDAMENTAL RIGHTS

a. in any issue of fundamental rights – apply strict scrutiny

b. GRISWOLD V. CONNECTICUT (1965)
i. ct. invalidated statute under which a doctor and patient were
convicted on law prohibiting use of contraceptives in maritial relations
ii. strict scrutiny – i.e. a compelling state interest – applied
to social areas of law
(1) ct. does not apply liberty in 14th amend. when dealing with
economic, business or social affairs, but this case deals with intimate
relations
iii. Douglas maj: (joined Clark, Warren and Brennan): privacy is
read into Bill of Rights
(1) Goldberg concurrence: look to ninth amendment and privacy is
a basic and fundamental right (implied fund. rights)
(2) Harlan concurrence: 14th amend. stands on itts own to protect
basic values – connection to Poe on p.951
iv. dissent: strict textual interpretation (Black and Stewart):
“privacy” is not in the Const.

c. EISENSTADT V. BAIRD (1972)
i. rights to contraceptives must be equal to married and unmarried
persons
ii. state’s purpose was to deter premarital sex
(1) ct. said this was not good enough
iii. applied a rational relation standard. Why?:
(1) Brennan, Douglas and Marshall applied to get Stewart’s vote
(a) under rational relation it is difficult for challenger of
statute to win
(2) note: White, Black and Burger dissented only on process

d. ROE V. WADE (1973)
i. statute in TX made it illegal to have an abortion unless
mother’s life was in danger
(1) ct. invalidated the statute as the state’s compelling
interest in the fetus does not happen until at least the end of the
first trimester – until then the mother’s right of personal privacy has
a line of precedent
(2) Blackmun maj: ct. may still impose certain police powers but,
Const. has an implied right to privacy
(3) Douglas concur: statute is overbroad (encompassing also the
1st trimester)
(i) fetus is not viable until it can survive on it’s own
(a) also, liberty in 14th amend includes freedom of choice in
marriage, contraception, education and upbringing of children, etc…
ii. Rehnquist and White dissent: apply rational relation in
economic or social issues of due process
iii. note that the main holding – articulated in Casey below by
O’Connor – is:
(1) that the state does not have a compelling interest in the
fetus until viablity (may it be at 28 weeks in this case, or 24 weeks as
said in later cases)
(2) state may restrict abortion after viability – provided health
to woman is not in danger
(3) state has legitimate interest in fetus and mother’s health
from the outset

e. CAREY V. POPULATION SERVICES INT’L (1977)
i. ct. (Brennan majority) extended right to an individual’s
decision to childbearing
(1) struck down NY law preventing the sale of contraception to
minors and requiring contraception to not be sold “over the counter” or
by a non-pharmacist
ii. Burger and Rehnquist dissented

f. AKRON V. AKRON CENTER FOR REPRODUCTIVE HEALTH (1983)
i. ct. strikes down as unconst. list of statutes like the doctor
must tell patient before abortion that the fetus might be a viable life
ii. Powell maj: ct. “reaffirms” that a state’s interest in an
unborn life becomes viable at the end of first trimester
iii. state may impose informed consent as within state’s police
powers regulating the woan’s safety – but, PENN informed consent is
established to persuade woman not to consent
iv. 24 hr. waiting perios does not uphold any legitimate state
interest
v. O’Connor (with Rehnquist and White) dissents suggesting “the
undue burden standard”
(1) undue burden created later in Webster
(a) an undue burden is not okay when challenger can show policy
creates a substantial obstacle
(i) reasonably related to a state interest would be okay
however
(2) looking to the nature and scope of issue
(a) says Roe did not give a const. right to abortion….just
right to undue burdens
(3) trimester framework established in Roe is without merit today
(on a collision course with itself)
(a) first semester viability might not be too far off
(b) lines have been “blurred”

g. MICHAEL H. V. GERALD D. (1989)
i. Calif. statute stating any child born to a husband and wife who
are cohabitating, and the husband is not sterile, is conclusively
presumed to be a child of the marriage
(1) Michael H. is the biological father, and was on and off in
relationship with his young daughter and her mother. He is seeking
visitation – which was granted by the courts – but the husband (Gerald
filed for summary judgement on grounds of the statute)
ii. Michael is making a procedural challenge and a substantive
challenge
(1) substantive is his liberty interest (having a relationship
with his daughter) – purports that protection of the marital union
(Carole and Gerald) is not a substantial state interest
(a) ct. affirms Ca. statute
(i) “liberty” interest is rooted in history and tradition
1) traditions protect the family unit
(ii) Scalia feels there is a conflict between the rights of a
married man to have a peaceful family unit and the rights of an
adulterous man to see his biological child (this would be “freedom to
conform”)
1) dissent calls Michael’s right “freedom to not conform”)
(iii) ct. is addressing traditions of our society
(2) procedural is the denial of Michael’s due process to a
paternity hearing
(a) Scalia maj (with Rehnquist, O’Connor, Stevens and Kennedy):
looks to legislative intent of statute which is to not upset the family
unit (footnote f – only Scalia!)
(i) having a paterninty hearing would upset the family
(“destructive to the family integrity”)
iii. Brennan, Marshall, Blackmun dissent:
(1) looking to tradition with such specifity is incorrect
(2) we are a pluralistic society – must view Const. in terms of
the society it exists in
(3) precedent shows that unwed fathers who have a substantial
bond with child does provide them const. rights surrounding the child
iv. White dissent: biological father’s rights cannot be denied
without due process of law

h. PLANNED PARENTHOOD OF SE PENNSYLVANIA V. CASEY (1992)
i. precedent (doctrine of stare decis – when to adhere to
precedent)
(1) why follow precedent? – like Roe
(a) legal principle
(i) credibility and continuity
(b) predictibility
(c) reliance
(i) i.e. two decades of allowing abortions have led women to
make certain choices (economic and societal) – should contraception fail
(d) status quo – keep change from happening
(e) common frame of reference
(f) efficiency
(g) A decision to overrule Row in today’s circumstances would
undermine the court’s legitimacy and the nation’s commitment to the rule
of law
(2) why should we not follow precedent?
(a) correct mistakes
(b) resolving doubt
(c) change in conditions
(d) evolution of societal norms
ii. O’Connor’s discussion of why West Coast Hotel overruled Lochner
(1) “The facts which the earlier case had premised a const.
resolution of social controversy had proved to be untrue, and history’s
demonstration of their untruth not only justified, but required the new
choice of const. principle that West Coast Hotel announced”
(a) note: how following Lochner – country hit the depression
(the “facts” of the country’s economic policies proved “no longer to be
true”)
(b) also note O’connor says this why Brown finally overruled
Plessy
(c) this is Fund. values/Consequences/changed circumstances
critique
(i) the old critique was that the court was infringing on the
legislature
1) i.e. there was no const. protected right to contract
because it was not in the text and – at the time – there was no
precedent
a) first noted in Holmes critique!
b) note the tension though – this critique (infringing on
legislature) would go right to the heart of Roe – hence O’Connor’s new
critique
c) also is what Rehnquist says in this case’s dissent
d) Rosenblatt disagrees with this critique (but, he’s in
the minority)
iii. case deals with five provisions of PA Abortion Control Act
requiring: woman must give her informed consent – 24 waiting period
after receiving information [not undue burden - left open question of
distance, etc.] – parental consent/or judicial bypass [no undue burden
so long as bypass avaialable] – must tell her husband [yes- undue
burden] – requirements of abortion facilities in recordkeeping [held to
be undue burden].
(1) Joint opinion: O’Connor/Souter/Kennedy with Blackmun and
Stevens concuring
(a) O’Connor takes a general view of 14th amend. – i.e. even
though “marriage” is not mentioned – it is nevertheless protected by
const.
(i) the court has “respected the private realm” and the very
intimate choices a person must make in a lifetime central to “personal
dignity and autonomy” – these are central to the 14th amend. protection
of liberty
(ii) abortion is a unique act – and while it is “conduct” it
does not follow that the state should be able to proscribe it – the
liberty of the woman is at stake
(b) note: “it is a const. liberty of the woman to have some
freedom to terminate her pregnancy”
(c) Webster held that it is not unconst. for a state to create
rules designed to inform mother that there are arguments against
abortion
(i) “not every law which makes a right more difficult to
exercise is, ipso facto, an infringement of that right”
(ii) so long as rule does not impose an “undue burden” on the
woman (this case holding)
1) i.e. state cannot place a “substantial obstacle” in the
path of a woman seeking an abortion
a) state may not prohibit a woman’s final decision to
have an abortion
b) this upholds Roe and recognizes state has interest
(d) Roe had state’s interest compelling at viability – now
state’s interest is compelling at conception
(2) Stevens concur:
(a) more concerned with legitimacy of state’s purpose as said
in the statute
(b) state can express preference but, cannot try to dissuade
(c) note: 1st amend. prevents religion from entering legal
doctrine
(d) on waiting period: there is no evidence that waiting
contributes to more informed decision
(i) Rehn and Scalia said this is wrong standard approach
(i.e. don’t need evidence – that’s rational review)
(3) Blackmun concur: eloquent restatement of Roe
(4) dissent: White/Rehnquist/Scalia/Thomas want to overturn Roe
(a) Scalia takes a very specific view of 14th amend.
(i) no text in const. protecting abortion right
(ii) go with accepted law and tradition
(b) Rehn critiques undue burden standard
(i) i.e. minors still burdened
(ii) should go with a rational relation standard

16. SEXUALITY AND SEXUAL ORIENTATION

a. BOWERS V. HARDWICK (1986)
i. Issue is whether the const. protects a homosexual’s right to
engage in sodomy and hence invalidate laws against it
ii. White/Rehn/O’Con/Burger/Powell majority
(1) not supported by precedent
(a) procreation
(b) family
(c) marriage
(2) fundamental rights
(a) homosexuality is not a fund. right and therefore subject
only to rational basis
(b) deeply rooted in nation’s history against sodomy
(c) state does have right to pass law on a moral issue
(3) privacy not good argument
(a) i.e. other crimes – i.e. incest can be punished which take
place in the home
iii. Blackmun/Brennan/Mar/Stevens dissent
(1) wrong to base law of Henry IV times

b. HIGH TECH GAYS V. DEFENSE INDUSTRIAL SECURITY CLEARANCE OFFICE
(9th cir.)
i. issue of whether sexual orientation is a suspect class has not
been addressed by sup.ct.
ii. suspect classification
(1) History of discrimination
(2) Obvious immutable or distinguishable characteristics
(a) majority: says not immutable
(b) dissent says doesn’t matter as in alienage – but, are
nevertheless, immutable
(i) i.e. it is not a chosen trait (what would a straight
person have to do to “change” orientation?
(3) Minority or political powerlessness
(a) dissent: just because there has been some civil rights
legislation does not mean the class has political power (as the maj.
thinks)
(i) and political power is only in a few states (barring
employment discrim. against gays, etc.)
(ii) blacks are a suspect class – and hold a lot of political
power – why shouldn’t gays be a suspect class? – gay discrim. should
trigger strict scrutiny
iii. dissent points out that there is no connection b/w orientation
and telling national secrets to the enemy

17. THE ROMER V. EVANS QUESTION – homosexual rights and the right to
EQUAL POLITICAL PARTICIPATION

a. Colo. sup.ct. struck down a statute which prohibits the state and
agencies from classifying gays as having a “protected status” or claim
of discrimination

b. REITMAN V. MULKEY (1967)
i. Sup.ct. invalidated Proposition 14: neither the state nor any
subdivision…shall deny, abridge…the right of any person,
who…desires to sell, lease or rent any…property, to decline to sell,
[etc.] to such persons…as he…chooses
(1) purpose was to overturn state laws that bore on the right of
private sellers and lessors to discriminate and to forestall future
state action that might circumvent this right
ii. White (with Warren, Douglas, Brennan, Fortas) majority:two
ways to look at a statute:
(1) the immediate stated objective
(2) ultimate effect
(a) blacks were now denied political process if discriminated
against making it easier for people to discriminate
iii. what is state action?
(1) 14th amend. reaches the states but not private actions
(2) sufficient state involvement is enough for a state action
(a) i.e. in another case (BURTON) the mere fact that a diner
was in a public building was enough
(3) however, current doctrine is unclear
iv. Harlan dissent (with Black, Clark, Stewart):
(1) statute is facialialy neutral
(a) 14th amend. only forbids a state to pass or keep laws
discriminating on account of race
(2) to strike down the statute must have an “invidious” purpose
or effect
(3) note Harlan was on Hunter maj b/c statute on it’s face was
discriminatory to minorities – here it’s not

c. JAMES V. VALTIERRA (1971)
i. ct. upholding statute requiring that no-rent housing could be
built without first passing majority vote referendum
(1) appellants suing under supremeacy clause, P & I, and equal
prot.
ii. Black, Burger, Harlan, Stewart, White maj:
(1) supremacy clause no good – just because fed govt has funding
for low rent housing, does not mean the state must as well
(2) P & I flatly rejected
(3) equal prot no good -
(a) appelant basing on Hunter – which is not applicable here
because Hunter dealt with race as a class and a statute dealing directly
with race (const. suspect)
(i) Hunter put special burdens on minorities
(b) a lawmaking procedure which “disadvantages” a particular
group does not always deny equal protection
iii. Marshall, Brennan, Blackmun dissent: poor is a suspect class
and this statute places substantial burdens on the poor
(1) 14th amend. protects everyone
(a) “it is far too late in the day to contend that the 14th
amend. prohibits only racial discrimination”

d. GORDON V. LANCE (1971)
i. state required a 60% vote to get to the school board and the
district could only muster 55% – district claimed requiring 60% is
unconst. – ct. said it is const.
ii. Burger maj with Black, Douglas, Stewart, White, Blackmun (and
Harlan concurring):
(1) “no independently identifiable group or category that favors
this legislation” (i.e. no sector of population has been “fenced out”)
(a) also no “discreet and insular minority”
(2) “We conclude that so long as such provisions do not
discriminate against or authorize discrimination against any
identifiable class they do not violate the equal protection clause”
iii. Brennan and Marshall dissent

e. WASHINGTON V. SEATTLE SCHOOL DISTRICT (1982)
i. Initiative 350 stating: “No school board shall directly or
indirectly require any student to attend a school other than [the
nearest school]” held to be unconst.
(1) statute made it more difficult for minorities to reach
decision making power
ii. Blackmun, Brennan, Stevens, Marshall, White majority said issue
of bussing had strong racial overtones
(1) relocation of gov’t decision making power must be done in a
racially neutral manner
iii. Powell, Burger, Rehnquist and O’Connor dissent: said power was
always with the state – i.e. state has power over school board so no
political decision making process had been altered

f. CRAWFORD V. BOARD OF EDUC. OF L.A. (1982)
i. sup.ct. upholds proposition I saying remedies only given in
instances of de jure (by law) segregation and not de facto
ii. Powell, Burger, Brennan, White, Blackmun, Rehnquist, Stevens
and O’Connor majority
iii. Marshall dissent: Seattle and Crawford should be decided the
same way
(1) but,says maj, this is not making it harder for minorities to
reach decision making power – just changing the remedy to what was
originally intended under 14th amend.
(2) note that Marshall has a point in that there is a greater
burden on minorities to show segregation (i.e. by de facto) – this is
Jay’s thought
iv. who makes law and where do rights come from?
(1) Marbury v. Madison narrow view
(a) strict const. interpretation – mechanical model
(i) just read the law and apply it
(2) McCulloch view
(a) broad
(i) rights change with the times and evolution of law
(ii) implied rights in const.
(iii) fundamental rights are not necessarily explicit in
const.
(iv) judges play a role in the political process and remedies
are a part of that proces – restricting remedies restricts access to
system
1) hence problem here

g. EVANS V. ROMER (I) Appellate Ct. decision
i. provision similar to Reitman, but involving gays – giving
individuals right to discrim. against gays – hence denying gays right to
political process
ii. Eq. Prot. Clause applies to all citizens
(1) to reach strict scrutiny need: 1) suspect class or 2)
violation of fund. rights
(a) gays not suspect class, but violation of fund. right (right
to participate in process)
(2) Broadened Hunter to say special burdens cannot be placed on
any group (not just racial minorities)
(a) ct. says that since Gordon mentioned Hunter without
distinguishing on the race – nonrace issues that must mean that Hunter
should be more generally applied – THIS IS A LOUSY ARGUMENT (I say)
(3) held that political process is a fund. right (by reading into
Hunter, Gordon and Seattle) and therefore subject to strict scrutiny -
and cannot “fence out” an “indenpendently identifiable class of persons
iii. dissent denies there is a fundamental right to the political
process
(1) feels Hunter – Gordon – Seattle – James were all cases
dealing with violations of equal prot.with or without a suspect class
(that was question)
(2) James did not apply strict scrutiny – therefore access to
political process is not a fund. right
(a) but, James did not address an independently identifiable
group!
iv. EVANS II – after remand state came up with 6 compelling state
issues – majority pulled them apart one by one – and dissent tried to
uphold one by one
(1) most persuasive compelling gov’t interest is preserving
family values (Michael H. and Scalia traditions argument)
(a) but, social and moral norms are not compelling – rather
substantial state interests
v. so what’s going to happen?
(1) KEEP REFERENDUM:
(a) Scalia – Thomas – Rehnquist
(i) reluctant to recognize new rights and protection of
public morals is important
(2) MAYBES
(a) O’Connor – Souter – Kennedy
(i) Casey, but Barnes
(3) DUMP REFERENDUM!
(a) Stevens – Ginsburg

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