Constitutional Law



Constitutional Law – Chronology of Major Cases

1803 Marbury v. Madison – C.J. Marshall – mandamus

• est judicial review; boundaries of power of judicial (law) and executive (policy) branches

• 1st time SC struck act of Congress (§13 of 1789 Judiciary Act < Art III)

• SC has final word on constitutionality

1810 Fletcher v. Peck – C.J. Marshall – “Natural law” property rights

• 3rd party bona fide purchasers have right to land purchased through sweetheart deal scam by GA legislature; later legislature cannot repeal land grants

• Art I §10 (states) and 9 (congress) – no bills of attainder, ex post facto laws

• §10 prohibits states from impairing contracts (not absolute – heightened scrutiny)

1819 McCulloch v. Maryland – C.J. Marshall – Nat’l bank (p.17)

• “necessary and proper” – if ends w/in Art. I §8 enumerated pwrs, any “appropriate” means ok

• sweeping expansion of Congressional power

• non-enumerated pwrs retained by people not states

• states cannot tax fed institution

1824 Gibbons v. Ogden – C.J. Marshall – state vs. fed licenses for NY waterways (126)

• Fed law trumps state law (commerce + supremacy)

• Commerce power “plenary,” broad, includes navigation, control of waterways; Congress controls commerce “which concerns more than one state” (some intrastate)

• States retain police power (incl quarantine of immigrants for public health, etc)

1833 Barron v. Baltimore (113)

• Bill of Rights applies to fed not state gov’t

• (Overruled by 14th amend (1868) and subsequent incorporation cases)

1837 NYC v. Miln – Barbour – state police power vs fed commerce (316)

• NY law making ship captain responsible for Irish immigrants ok b/c police power not commerce; police power “inherent” pwr to protect public health/well-being

• Story dissent: NY law about commerce, invalid b/c congress’s pwr exclusive (dormant commerce clause)

1842 Prigg v. Pennsylvania – Story – Struck Penn law prohibiting self-help catching fug. slaves (173)

• Constitution may not be interpreted as to nullify a right, must choose interpretation that favors enforcement of the right

• Congressional action preempts state laws where congress granted power by constitution

• “constitution not a suicide pact” (political reality, need to federalize slave laws)

1851 Cooley v. Bd of Wardens – (?) – Penn law requiring local pilots on ships in/out of harbor ok

• Concurrent power btwn state and fed to regulate commerce – state law ok if not in conflict w/ fed law (rejecting dormant commerce clause idea)

• Intent of state law important

1857 Dred Scott v. Sanford – C.J. Taney – slaves brought to free state suing for freedom (183)

• Struck part of Missouri Compromise limiting slavery in new territories

• Divides state citizenship from national – blacks not US citizens, cannot use fed courts

1861 Ex Parte Merryman – Taney – Lincoln suspension of habeus corpus (

• Exec cannot suspend habeus corpus – congress only (suspension mentioned in Art 1, not Art 2)

1863 The Prize Cases – (unsigned, 5-4) Lincoln confiscated Confederate supply ships before war decl. (220)

• Ok under exec power to suppress insurrection (Art 2 and 1795 Act)

• War as “non-justiciable” political issue; Court will not question president’s judgment

• Ends justify means

• Congress can retroactively ok president’s usurpation of congressional war powers (1861 Act)

[1865 13th Amendment – no slavery]

1866 [Civil Rights Act – guarantee to blacks right to make contracts, own property, access courts;

based on 13th only (pre-14th); limited to ‘civil’ rights, separate from ‘political’ rights, i.e. voting.]

Ex Parte Milligan

[1868 14th Amendment –states cannot deprive DP or EP]

[1870 15th Amendment – black men can vote]

1873 The Slaughterhouse Cases – Miller – Upheld La. monopoly grant over slaughterhouses (315)

• State law ok under police power, public health etc.

• Restricting where butchers may work does not deprive them of property (DP property claim)

• “privileges and immunities” of national citizenship under 14th amend basically meaningless

• 13th amend involuntary servitude narrowly interp as applying only to black slavery

Bradwell v. Illinois – Miller – Upheld that only men can be lawyers (330)

• Women cannot contract so cannot represent clients

• State right to police granting of licenses trumps individual right to work (reiterates Slaughterhouse limits of privileges and immunities)

• Concurrence by Slaughterhouse dissenters Field and Swayne – whatever right to work exists as privilege/immunity of citizenship N/A to women

• ‘natural law’ of separate spheres, women’s ‘natural’ tendencies not suited to being lawyers, etc.

1875 US v. Cruikshank – Waite – 2nd and 14th Amendments (410)

• 2nd Amendment not incorporated against states under 14th

• Function of 2nd Amend to prevent federal gov’t from dismantling militia; states can regulate guns

• (limited by US v. Miller 1939 narrowly reading 2nd Amend to allow fed regulation of guns)

Minor v. Happersett – Waite (unanimous) – upholding state law that only men can vote (268)

• Explicit rejection of suffragist theory of 14th Amendment (otherwise why 15th necessary?)

• Voting not privilege or immunity of citizenship

• Citizenship alone does not give women right to vote

1877 Reconstruction Ends (compromise of 1877)

1880 Strauder v. West Virginia – Strong – Struck state law limiting jury eligibility to whites (259)

• Black D convicted by all-white jury denied EP

• 2 arguments –

1. 14th Amend means law should be colorblind

2. 14th prohibits “Unfriendly legislation” (suggests “friendly” race classification ok)

• * W.Va. law discriminatory on its face*

1883 The Civil Rights Cases – Bradley – Struck Civil Rights Act of 1875 (not ok under 13th or 14th) (285)

• 14th amend applies to state action, cannot be used to prohibit discrimination by private actors (incl. public accommodations)

• Racial discrimination alone is not “Badges and incidents of slavery” prohibited by 13th amend – no constitutional guarantee of social equality (add’l dicta: no “special treatment” for blacks)

• Harlan dissent: Act ok by broader reading of 13th, 14th, and 1866 Civil Rights Act

1886 Yick Wo v. Hopkins – Matthews – San Fran laundry licenses discriminatory against Chinese (846)

• Facially neutral law struck b/c as applied violates EP

• Statistical evidence used to show pattern of discrimination

• Police power must be reasonable, good faith, for promotion of public good, not for oppression of particular class

1889 Chae Chan Ping v. US – Field – 1888 Chinese Exclusion Act trumps 1868 treaty w/ China (40)

• Treaty same pwr as act of Congress; most recent trumps

• Congress has inherent pwrs of sovereignty, incl pwr to deal w/ other nations (need not be enumerated)

1896 Plessy v. Ferguson – Brown – Upheld *facially neutral* racial segregation in public accom. (272)

• “Separate but equal” ok, does not violate EP; segregation not per se sign of inferiority;

• Cannot legislate away prejudice; law reflects people’s desire to self-segregate, freedom of association as freedom from integration.

• Harlan dissent: law should be colorblind (but social inequality ok), people may self-segregate but law may not require it w/out violating 13th ‘badges and incidents” and 14th EP; state may not infringe freedom of association as freedom to integrate.

1903 Champion v. Ames – Harlan (5-4) – Lottery tickets (357)

• Congress’s commerce power plenary and exclusive; power to regulate = power to prohibit

• “moral pestilence” of lotteries legit motivation for congress as for states

• Interstate shipping companies “instrumentalities” congress may regulate under commerce

• Dissent: fed law unconstitutionally usurps states’ police power; lottery tix not articles of commerce

1905 Lochner v. New York – opinion – Struck state law limiting work hours for bakers (337)

• Impairs bakers’ freedom of contract

• Gov’t cannot interfere w/ bakers’ DP property right to work – economic DP > workers’ protection

1908 Muller v. Oregon – Upheld max hours law for women (351)

• Distinguished from Lochner b/c women needed protection, and max hrs law about “health”

[1913 16th Amend – fed income tax]

[1914-1919 WWI]

1918 Hammer v. Dagenhart – Day – Struck fed law prohibiting sale of products of child labor (362)

• Congress cannot prohibit child labor directly, and cannot regulate indirectly by prohibiting interstate sale of goods made by children

• Separates production from commerce

• Goods themselves harmless (distinguished from Pure Food and Drug Act, Mann Act, etc – ok), Congress can only regulate/prohibit “articles” of commerce noxious “in themselves.”

• Overruled by Darby

[1919 18th Amendment – Prohibition]

[1920 19th Amendment – women can vote]

1923 Adkins v. Children’s Hospital – opinion – Struck minimum wage law for women (351)

• Followed Lochner; distinguished from Muller v. Oregon b/c here about wages not hours (hrs justified as about health, not adjustment of bargaining pwr); argued that 19th Amend eliminated women’s social inferiority (Holmes dissented).

1925 Gitlow v. New York

1932 Powell v. Alabama

[1933 21st Amendment – Prohibition Ends]

1934 Nebbia v. New York – Roberts – Upheld NY price control law for milk (set min. price) (416)

• Expanded businesses “affected with the public interest” (and therefore subject to price regulation)

• DP requires law to be reasonable, not arbitrary/capricious, real relation to legit objective

Home Bldg Assn. v. Blaisdell – C.J. Hughes – Upheld Minn. Mortgage Moratorium Act (417)

• Law temporarily prevented banks from foreclosing, emergency response to Depression

• challenged by bank as violating freedom of contract

• “Emergency does not create power” – gov’t can only do what already had power to do

• Law ok b/c addressed to legit end (protecting society, not changing balance of power in contract), temporary, reasonable and appropriate to emergency conditions

1936 US v. Butler – Roberts – Struck Agricultural Adjustment Act (paying farmers to produce less) (371)

• Invalid use of tax & spend power – cannot use const means for unconst ends

• States regulate agricultural production

1937 [FDR’s judiciary plan]

West Coast Hotel v. Parrish – C.J. Hughes – Upheld minimum wage for women (427)

• Overruled Adkins, undercut Lochner

• Liberty not absolute, may be restrained by reasonable regulation in public interest

• ‘The people’ via legislature may require employers to pay livable wage to prevent employees from depending on public assistance

NLRB v. Jones & Laughlin – C.J. Hughes – Upheld Nat’l Labor Relations Act (464)

• Congress can legislatively alter bargaining power btwn employers and employees under commerce (Act prevented “unfair labor practices,” protected employees’ right to collective bargaining)

• Congress can regulate of anything having “close and substantial relation to interstate commerce” such that regulation is necessary burdens on and obstructions of commerce.

1938 US v. Carolene Products – Discrete and insular minorities (428)

1941 US v. Darby – Stone – Upheld Fair Labor Standards Act (max hours and min wage) (465)

• Overruled Hammer v. Dagenhart – Congress may prohibit commerce in goods produced in substandard conditions – Congress can regulate manufacturing as “commerce”

• Commerce power plenary – overrides states’ police power

• 10th Amendment a “truism”

• Low rational basis scrutiny, congressional motive not questioned

• No direct/indirect test for how something affects interstate commerce

• Congress can regulate commerce to achieve non-economic objectives

1942 Wickard v. Filburn – Jackson – Wheat grown for private use violates Agricultural Adjustment Act (468)

• Aggregate effect of local activity on interstate commerce – Congress may regulate

Ex Parte Quirin (822)

1944 Korematsu v. US – Black – Upheld Exec Order 9066 (Japanese detention) (810)

• Wartime deference to military authority

• Detention/exclusion about “real military dangers,” not racial prejudice

1946 Marsh v. Alabama – Jehovah’s Witness’ right to distribute pamphlets in company town

• Though private property, “public” enough of a space that 1st Amend applies; both her free speech rights and the information rights of townspeople

• Public function exception – in company town, company performing public function

1948 Shelley v. Kraemer – State action “such action as may fairly be said to be that of the States”

• “State action” under 14th expanded

• Entanglement exception to state action doctrine, here judicial action entangled w/ private discrimination - racially discriminatory conduct in which the state was entangled – state via court not creating the discrimination but facilitating, enforcing, enabling

• Enforcement by courts of racially discriminatory covenants (otherwise ok b/c private) violates 14th

1950 Johnson v. Eisentrager

• Enemy aliens held by US outside US cannot access courts for habeus corpus

1954 Hernandez v. Texas – C.J. Warren – Exclusion of Hispanics from juries violated D’s EP (831)

• “Ethnicity” vs. “race” for EP

• 14th Amend not limited to race/color, incl. discrimination based on ancestry, nat’l origin

• Proved latinos considered separate “class” from whites (“community attitudes test”), and systematic exclusion of otherwise eligible latinos as a class from juries (de facto, law facially neutral)

Brown v. Bd of Education

1955 Youngstown Sheet & Tube v. Sawyer – Black – Pres seizure of steel mills unconstitutional

• Executive orders = declarations of national policy in areas under president’s control – authority to issue the order must come from constitutional grant of power to president, or delegated by congress by statute.

• Under emergency powers, pres can sometimes interfere w/ dem values civil liberties & sep pwrs

• Jackson’s concurrence – 3 “zones of power”: president can act unless forbidden to do so by congress

1. expressly authorized by congress – strongest

2. congress is silent – acts in absence of congressional denial or grant of power – “twilight” zone; likely to be fact specific whether action ok or not; should give– president can respond faster than congress and therefore should respond in emergency however necessary

3. acting against express or implied will of congress – must rely on own const pwrs minus const powers granted to congress – weakest [Jackson found this case to fall in 3rd category]

• Douglas – 2 ways of usurping pwr: doing other branch’s job, and preventing other branch from doing job

Williamson v. Lee Optical – opinion – Upheld Okla. law controlling making eyeglass lenses (435)

• Law rationally related to health, does not deprive opticians of any DP interest

• Ok that law both over-inclusive and under-inclusive – ‘wisdom’ of legislature not questioned

• Rational basis

1961 Burton v. Wilmington

1964 Civil Rights Act

24th Amendment – No poll tax in federal elections

Heart of Atlanta Motel v. US – opinion – Upheld Title II of Civil Rights Act (public accommodations)

• Act justified by theory that discrimination in public accommodations affects interstate commerce

• Aggregate effect (Wickard)

• Congress’s motive irrelevant if there are in fact valid reasons for the statute (Darby)

Katzenbach v. McClung [Ollie’s Barbeque]

• Small local business (unlike Heart of Atlana serving interstate travelers) but 64% of beef from local supplier who gets it from other states.

• Low rational scrutiny

1965 US v. Cox – Bell, Wisdom (old 5th Cir.) – Exec privilege not to prosecute (622)

• AG suing fed judge over judge’s order holding prosecutor in contempt for refusing to prosecute 2 negroes indicted for perjury after testifying in voter discrimination case.

• “sword and shield” – exec branch prosecutorial ‘sword’ going after individual; judiciary ‘shield’ protecting individuals from unwarranted prosecution (judiciary cannot initiate prosecution).

• Prosecutor/exec and grand jury/judicial supposed to serve as checks on each other – “the grand jury provision in the Bill of Rights cuts both ways: it prevents harassment and intimidation and oppression through unjust prosecution – by the Grand Jury or by the Government.”

Griswold v. Connecticut

1966 South Carolina v. Katzenbach – Upheld Voting Rights Act

• Broad discretion to enforce 15th Amendment

• Voting not guaranteed by constitution; EP prohibits discrimination in granting right to vote

Katzenbach v. Morgan – Brennan – NY English literacy test disenfranchised Puerto Ricans (488)

• Decided under 14th not 15th (b/c PR not prohibited from voting on basis of race/color/servitude)

• Upheld Voting Rights Act under §5 “positive grant of legislative power”

• Act prevents NY from denying to PR the right “preservative of all rights” – access to public services

• Distinguishable from Lassiter (literacy tests not per se unconstitutional) b/c no allowance for voters literate in Spanish but not English

• Limited by City of Boerne

1967 Loving v. Virginia – C.J. Warren – No anti-miscegenation laws (801)

• Marriage laws violate EP and DP clauses of 14th

• DP liberty interest in marriage

• Strict scrutiny (classify by race)

• “equal application” of socially stratifying law still violates EP

1968 Jones v. Alfred Mayer – opinion – Expanded “badges or incidents of slavery”

• refusing to contract w/ person in sale of property for reason of race violated 13th Amend

• 13th not limited to state action, reaches private conduct

1970 Oregon v. Mitchell

1971 [26th Amendment – Voting Age 18]

Griggs v. Duke Power – C.J. Burger – “disparate impact” enough under Title VII (849)

• Employer administered test to all applicants – test not predictive of job performance, and had disparate impact on black applicants ( invalid as discrimination that violates Title VII of Civil Rights Act

1973 Frontiero v. Richardson (988)

Roe v. Wade (1172)

1974 US v. Nixon (634)

• presidential confidentiality does not allow withholding evidence in criminal case

• suggests exec privilege much broader in areas of national security, military or diplomatic secrets, etc. – (explicit that this is not the case here).

Geduldig v. Aiello – opinion – Upheld CA law denying disability benefits for pregnancy

• Pregnancy discrimination not gender discrimination

• Rational basis

1976 National League of Cities – Rehnquist (5-4)

• Struck 1966 amend to Fair Labor Standards Act extending max hrs/min wages to state employees as violating 10th Amend and federalism

• Congress cannot regulate in areas of ‘traditional’/‘fundamental’/‘essential’ areas of state sovereignty (“traditional government functions”)

• Cannot dictate minimum wage/ max hours for state employees – pwr to determine hours, wages, etc. of gov’t workers is an “undoubted attribute of state sovereignty”

• Overruled by Garcia

Washington v. Davis – White – Discriminatory impact of police civil service test (851)

• To violate EP (5th or 14th), state action must have discriminatory purpose

• Title VII standards not constitutional rule – 14th claim requires more than disparate impact

• Stevens concurrence: evidence of impact ‘may be’ probative of intent (“the actor is presumed to have intended the natural consequences of his deeds”) – limited by Feeney.

Craig v. Boren

• Est Intermediate Scrutiny

• Gender classification ok if “substantially related” to “important” goal

1977 Arlington Heights v. Metropolitan Housing – Powell – Discriminatory impact of City Zoning (867)

• Discriminatory effect not enough (Davis), P must show discriminatory intent, i.e. race was “motivating factor” even if not sole or determining factor

• Factors to determine racial motivation, includes impact among others

• Where gov’t action motivated by racially discriminatory purpose, burden shifts to gov’t to prove same action would have been taken w/out racial motivation.

1978 Regents of Univ. of Cal. v. Bakke – opinion – Minority preference (899)

• Diversity not a sufficient gov’t interest for affirmative action program for employing minority faculty

• Race may be a factor, no set asides

1979 Personnel Administrators v. Feeney (1053)

• Discriminatory purpose – state action must be “because of, not in spite of” impact on identifiable group; requires more than awareness of consequences.

• Veterans preference in civil service jobs ok under EP despite harm to women b/c intent to help veterans, no intent to harm women, and only rational scrutiny.

• Focus on legislative intent

1980 Fullilove v. Klutznick – C.J. Burger –Upheld minority set-aside in fed contracts (921)

• Congress under plenary commerce powers can adopt a race-conscious affirmative set-aside program

• Unclear what level of scrutiny should be applied to such program – suggests intermediate (why program upheld)

1982 Rendell-Baker v. Kohn – Private charter school not state actor

• Private school (charter school for disabled – contracted out by public school); teacher sues on 1st Amend rights, rules that she has no right b/c school is not a state actor despite entanglement – 90% of funds from state – and obvious public function

• * Court’s shift away from using the state action exception to enforce civil rights actions during 1960s.

MUW v. Hogan – O’Connor – Gender discrim in higher ed (Miss U. Nursing program women-only)

1983 INS v. Chadha – White – ‘One-house veto’ provision violates sep pwrs and bicameralism

• sep of pwrs and bicameralism – unconstitutionality of legislative veto in Immigration and Nationality Act of 1952

1985 Garcia v. San Antonio Metro Trans. Auth. – Blackmun (555)

• Nat’l League of Cities overruled – “traditional gov’t function” test rejected as unworkable

• About federalism and 10th Amend, not commerce power per se

1986 Bowers v. Hardwick

Wygant v. Jackson Bd of Ed – Powell – Role Model theory of affirmative action plan rejected (924)

• Challenge to adjustment of seniority list (order of lay-off) in order to favor minority faculty

• Reason was to address societal discrimination and provide role models for minority students – held NOT compelling interests

• Strict scrutiny applied

1987 McKlesky v. Kemp – Powell – No EP violation in disparate impact of death penalty

• No EP violation b/c M cannot prove decision-makers in his case acted w/ discriminatory purpose; focuses on jury, emphasizes discretion as integral to jury system; distinguishes from Title VII employment cases in part b/c jury has 12 decision-makers not one employer;

• Disparate impact on minority group must be because of, not in spite of minority status (Feeney) – requires discriminatory animus on part of decision makers; awareness of disparate impact not sufficient to strike facially neutral law – discrimination must be intentional.

• undermines Yick Wo principal that disparate administration of a facially neutral law can be enough to trigger EP (by requiring that outcome not enough, must show animus)

South Dakota v. Dole – C.J. Rehnquist – Tax & Spend must be carrot not stick (533)

• Conditioning highway $ on state raising drinking age to 21 ok

• 4 part test to determine carrots from sticks

(1) exercise of spending power must be pursuant to general welfare

(2) must act unambiguously (states make knowing choice, cognizant of consequences)

(3) ‘should’ be related to national project/program/interest (‘conditions on federal grants may be illegitimate if they are unrelated to the federal interest in particular national projects or programs’)

(4) other constitutional provisions may be independent bar to a particular condition (here 21st but ok)

Shaare Tefila Congregation v. Cobb

St. Francis College v. Al-Khazraji – White – Jews and Arabs protected under 14th (834)

• Jews and Arabs protected from “race” discrimination under these statutes b/c would have been considered distinct races in 1866 and 1870 when amendments and §§1981, 1982 passed.

• “Racial” discrimination is that against “identifiable classes of person” intentionally discriminated against on basis of ancestry or ethnicity.

1989 Richmond v. Croson – O’Connor – struck Minority Business set-asides in city construx contracts (927)

• City council minority business plan inappropriate racial preference, not “remedial”

• Suggests solution is race-neutral remedies using proxy for race (e.g. class) to avoid strict scrutiny

1990 Cruzan v. Missouri Dept of Health

Oregon Dept. Human Res. v. Smith

• Native American denied unemployment when fired for smoking peyote

• No exemption for religious exercise when it violates criminal law or other generally applicable, neutral law (overrules Sherbert v. Verner 1972)

1991 Gregory v. Ashcroft – O’Connor – Upheld Missouri’s forced retirement of state judges (567)

• Age not suspect class under EP

• Congress’s Age Discrimination in Employment Act < state constitution

Garrett v. Bd of Ed, Detroit – Exclusion of girls not justified by goal of helping at-risk boys (1050)

• Challenge to school district est. all-male academies to address problems of at-risk youth

• Gender used as proxy for determining at-risk status – goal of the school does not require sex-segregated environment, and girls at risk too and shouldn’t be denied oppt’y of these academies (no comparable opportunities for girls)

• Board’s asserted goal (helping urban boys) important, not ‘substantially related’ to exclusion of girls – not necessary to exclude girls in order to achieve goal

1992 New York v. US – O’Connor – Struck Radioactive Waste Act (576)

• Federalism, states’ rights arguments

• Problem of “take title” provision

Planned Parenthood v. Casey (1202)

• “Undue burden” balancing test (quasi-strict scrutiny for quasi-fundamental rights that state may regulate)

1993 Tuan Anh Nguyen v. INS – Kennedy – Upheld gender classification in citizenship law (Supp 257)

1995 US v. Lopez – Rehnquist – Struck Gun-free Schools Act (512)

• Commerce power not federal police power

• No “substantial affect” of guns in schools on interstate commerce

• Commerce power allows regulation of categories of activity:

(1) channels (Darby, Heart of Atlanta)

(2) instrumentalities, i.e. people and things in commerce

(3) activities w/ substantial relation to or affect interstate commerce (Jones & Laughlin)

• Education and schools “traditional” area of state control

Adarand Constructors v. Pena (953)

• EP means no distinction btwn benign or invidious discrimination

• Any race-based classification whether by fed or state gov’t is subject to strict scrutiny

1996 US v. Virginia [VMI] – Ginsburg – Struck Va’s Exclusion of Women from VMI (1025)

• Ok for public schools to segregate by sex as long as equally funded, comparable opportunities, etc.

• Diversity is compelling interest, court willing to defer to experts on whether single-sex ed is educational benefit – but:

(a) no comparable facility for women,

(b) single-sex education not the reason VMI established or maintained as single-sex school;

(‘diversity’ is a post hoc justification, not actual reason for the exclusion of women).

Romer v. Evans – opinion – Struck Colo. Amend. 2 (1259)

1997 City of Boerne v. Flores – Kennedy – Struck Religious Freedom Restoration Act (536)

• §5 remedial only, not substantive

• Proportional and congruent

Printz v. US – Scalia – Struck Brady Handgun Act requiring sheriffs to do background checks (595)

• Fed gov’t cannot commandeer state officials to enforce fed regulation

• Historical, structural and precedential arguments (in that order)

Washington v. Glucksberg (1340)

• No liberty right to physician-assisted suicide

1998 Clinton v. City of New York – opinion – Line-Item Veto

1999 Alden v. Maine – state sovereignty and 11th Amendment

• Citizens cannot sue own state (for $ damages) in state court

• Extends Hans v. Louisiana (1890) extending 11th Amend to bar citizens from suing own state in federal court

• (11th prevents citizens from suing another state in fed court)

• Congress can abrogate 11th and create private right of action against state to enforce fed law passed pursuant to §5.

Brown v. City of Oneonta – Racial profiling ok where race one of several factors (Supp 193)

• Police “sweeps” for suspect ok b/c race was not sole factor – age and gender also factors

• where race is one of many factors, rational basis triggered, not strict scrutiny

2000 US v. Morrison (S. 69, 100)

Bd. of Trustees of Univ. of Alabama v. Garrett (S. 113)

• Challenge to ADA

• Disability a rational basis category (narrowest interp of Cleburne)

Bush v. Gore (S. 161)

Troxell v. Granville – Non-parent visitation law (S. 276)

Stenberg v. Carhart (S. 289)

2002 Atkins v. Virginia – Executing Mentally handicapped violates 8th Amend (S. 273)

2003 Nevada Dept. Human Resources v. Hibbs – Family and Medical Leave Act (S. 132)

• FMLA applies to state employees

• Remedy of suing the state for damages upheld b/c gender is a protected category entitled to heightened scrutiny (abrogation of 11th ok)

Grutter v. Bolinger [Mich Law] – O’Connor – Race in education ok if one of many factors (S. 197)

• Race ok b/c diversity in education is compelling interest

• One of several factors, no set ‘value’

Gratz v. Bollinger [U. Mich.] (S. 236)

Lawrence v. Texas – Kennedy – No anti-gay sodomy laws (S. 296)

[Goodridge v. Dept. Pub. Health (Mass. SJC)] (S. 323)

2004 Hamdi v. Rumsfeld (S. 22)

Rumsfeld v. Padilla (S. 59)

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