Con 3/16/99 - Rosi-Kessel



CONSTITUTIONAL LAW OUTLINE

Foundations For Judicial Review

A. Brown v. Board of Education: A Case Study in Constitutional Decision-making

Plessy v. Ferguson (1896)

Holding: Court held that “separate but equal” is constitutional and that the 14th A. does not apply to private discrimination.

Facts: Plessy said he was 1/8 black and thus should be able to sit in the white car. He said that he had a property interest in being white. Plessy did not challenge the fact that there were two cars.

Note: Harlan dissented stating that our Constitution is color blind.

Brown I (1954) Separate But Not Equal — EP ARGUMENT

Holding: Separate but equal violated 14th A. equal protection of the laws provision. State-sponsored segregation is not constitutional.

Facts: NAACP filed suit on behalf of Brown and similarly situated black parents seeking invalidation of Topeka’s segregated school system on the ground that it was inconsistent with the EP Clause of the 14th A. NAACP argued that this segregation was analogous to a racial caste system.

Notes: If Warren’s reasoning in Brown was based on the centrality of education, the Plessy ruling re: transportation would not necessarily be overruled.

Bolling v. Sharpe (1954)(p. 53)

The same facts as Brown, but this was in DC ( 5th A (not 14th).

Holding: The DP clause of the 5th A. obliged the federal government to provide equal protection. Federal government and state governments equally obligated to provide equal protection.

B. The Supreme Court’s Role in Our Political System—JUDICIAL REVIEW

1. Marbury v. Madison (1803)(p. 58)

Marbury established judiciary’s power to declare federal legislation unconstitutional.

Facts: P appointed Justice of the Peace for D.C., but afterwards Jefferson ordered none of the commissions to be given to those judges who had not yet received them. As a result, Marbury did not receive his commission.

Issues:

1. Whether P had a right to the commission. The court said he did.

2. Whether the laws provide a remedy for Marbury.

3. If he had sought the proper remedy of a writ of mandamus (order to a public official to perform their nondiscretionary duties), was the Supreme Court the proper venue?

• The key issue of the case was whether the SC had jurisdiction to adjudicate the lawsuit. The court said that the SC was not the appropriate venue because §13 of the Judiciary Act of 1789 was unconstitutional. Said that the court could not expand the jurisdiction under Article III.

Holding: If the SC identifies a conflict b/w a constitutional provision and a congressional statute, the court has the authority and duty to declare the statute unconstitutional and to refuse to enforce it. The SC can interpret the laws.

Rationale: Marshall said that 1) when a conflict b/w a statute and a Constitution arises, the SC power of judicial review is essential; 2) gov’t is one of limited powers—need to delineate the powers, otherwise, the gov’t is unlimited; 3) distinction b/w one w/limited powers and unlimited powers is meaningless w/o judicial review; 4) judicial review is essential in a Constitution giving limited and defined powers, “It is emphatically the province and duty of the judicial department to say what the law is”, 5) somebody has to put limits on Congress b/c Congress won’t, 6) judges interpret the law, this must have been the intent of the framers, otherwise, why have a judicial branch?

IMPORTANT CONCEPTS FROM MARBURY:

• Through judicial review, the SC is the final arbiter on issues that fall under its own power.

• If there’s a dispute re: the Constitution, the SC is not the only place where there’s an obligation to uphold the Constitution.

2. Cooper v. Aaron (1958)(p. 68)

Facts: Claim by Governor and Legislature of AK that they are not bound by the court’s holding in Brown that the 14th A. forbids states to use their powers to prevent children from attending schools on racial grounds.

Holding: The court held that there was a duty on state officials to obey federal court orders as to the SC’s interpretation of the Constitution and refused to uphold the AK suspension of school board plan to stop segregation. This case was a response to many state’s refusal to abide by the Brown holding.

3. Brown II

This was the conclusion of Brown I, which left the Brown II court to decide whether this issue should proceed from a federal or some other level. Brown I court asked states to reargue the issue.

C. Legitimacy and Limits of Judicial Review: Theories of Constitutional Decision-making

1. Textualist Theory (Scalia): Literalist argument, what the Framers intended.

2. Original Understanding: Court should strike down legislation if it violates the original framers understanding of the Constitution.

3. Purposovist Theory: Look at the purpose behind the policy.

4. Historical: Original intend of Constitution is used as a backdrop.

5. Structural: Stress particular principle or way gov’t set up( Ely

6. Doctrinal: Asserts principles derived from precedent; pieces together precedent and judicial decision, may not recognize social context.

EQUAL PROTECTION UNDER THE CONSTITUTION

FRAMEWORK: Is the government’s classification justified by a sufficient purpose?

(idea that similarly situated people should be treated similarly)

1. What is the classification? Facially neutral or Facially discriminatory? If facially neutral, is there a discriminatory impact or discriminatory administration?

2. What level of scrutiny should be applied?

a. strict scrutiny: (race, national origin) law upheld only if it is proven necessary to achieve a compelling government interest

b. intermediate scrutiny: (gender, non-marital kids) a law is upheld if substantially related to an important government purpose

c. rational basis: minimum level of scrutiny, law is upheld if rationally related to a legitimate gov’t purpose

3. Does the particular government action meet the level of scrutiny?

a. underinclusive laws

b. overinclusive laws

Racial Classifications after Brown

• EP issue re: public/private distinction—can we allow private segregation to exist and really approach issues that the framers were trying to reach?

1. Facially Discriminatory Classifications

a. Korematsu v. United States (1944)(p. 134) Strict Scrutiny Not Met

Last case where court upheld intentional government discrimination. This case established the strict scrutiny (compelling state interest narrowly tailored to achieve that purpose.) However, the court here found that public safety was compelling. This is the only case where strict scrutiny was not met.

Facts: Court upheld conviction of US citizen who refused to be relocated from the West Coast. Court said race by definition was suspect when any one group targeted on the basis of race.

b. Hirabayashi v. United States (1943)(p. 134) Beginning of SS (not explicit)

The court upheld a criminal conviction of US citizen for failure to follow curfew order put into effect for those of Japanese ancestry from 8 p.m. to 6 a.m.

c. Loving v. Virginia (1967)(p. 137) antimisegination laws

Facts: African-American woman and white man prosecuted in 1958 after getting married and settling in VA for violation of state anti-miscegenation law.

Holding: The statute is unconstitutional and violates the EP clause b/c distinctions being made on the basis of race. “There is patently no legitimate overriding purpose independent of invidious racial discrimination which justifies this classification.” DP clause also implicated b/c of a loss of liberty as to the freedom to marry.

Notes: Court did not apply strict scrutiny b/c the law was facially neutral = “equal discrimination.”

Dicta: The court did not use original intent approach; rather, took a more activist approach. Court said that the drafters of the post-war amendments “undoubtedly” intended them to remove all legal distinctions among all persons born or naturalized in the U.S. Query whether the court is saying there is a fundamental right to marry. There is an issue of federalism here…

NOTES:

• EP doctrine concerned with classifications, not individual rights. Due process clause goes more to procedural and substantive rights, more focus on the individual.

• EP clause in 14th A. is problematic b/c few laws are universal in their application. Fact of classification is not a problem, but rather the defects in the generalizations behind those classifications. Court has acknowledged that it’s almost impossible for there to be perfect congruence. Problem of delineating how over/underinclusive a regulation will be without violating the Constitution.

• Underinclusive = legislation capturing more people than those who are responsible for the “mischief” that the legislation is trying to remedy (Korematsu))

• Overinclusive = many people not related to mischief.

• EP concerns the way government may classify each other 1) as long as line drawing isn’t based on impermissible criteria or 2) arbitrarily burdensome to a particular group of individuals.

d. Palmore v. Sidoti (1984)(p. 141)

Facts: White couple got divorced, state judge gave mom custody of the child b/c said it was in the child’s best interest. After the mom married a black man, the court said it was in the best interest of the child for the dad to take the child.

Holding: Violation of EP clause, heightened scrutiny applied.

2. Facially Neutral Classifications (Discriminatory Intent and Effect)

Yick Wo v. Hopkins (1886)(p. 145)

Facts: P put in jail for operating a laundry in a wooden building w/o approval for something other than brick or stone. He had been there for 22 years and had a license to be there. At this time, most of the laundries were operated by Chinese and in wooden buildings. All Chinese applicants except one had been denied and all of those non-Chinese applicants accepted.

Holding: SC applied EP clause to strike down municipal practices discriminating against Chinese citizens living in the U.S.

Gomillion v. Lightfoot (1960)(p. 147)

Facts: Statute altered boundaries of Tuskegee from square to irregular 28-sided figure. Excluded 90% of blacks.

Holding: Gerrymander unconstitutional and the result of the statute is to remove all black voters from the district and to remove no white voters. Classification as indicated by result was clearly intended to target a specific group of people. Although on its face it may have appeared okay, the classification as indicated by result clearly intended to target a specific group of people.

The Court is worried about the effects AND the intent.

Palmer v. Thompson

Facts: Municipal swimming pools were separate (but “equal”), facially discriminatory. The Feds. said they must integrate, and municipality consequently closed all of the pools.

• The argument was that no one could use the pools, not even whites and hence it was not discriminatory. The court looked to the city’s motive.

Washington v. Davis (1976)(p. 150)

Before Washington, in order to establish the PFC only had to provide evidence of disparate impact based on race.

• After Washington, it is necessary to provide evidence that it is more than coincidental, that there was INTENT. This is much harder to prove. Strict scrutiny cannot be applied based on impact alone.

Facts: Blacks failed application test for DC police dept. at higher rate. P used disparate impact claim to show EP violation. Also introduced evidence stating that one’s performance on the test could not be equated with one’s job performance.

Holding: Court held that showing impact was not enough, had to also show intent.

TEST FOR RACIALLY NEUTRAL STATUTES:

1. state action

2. member of protected class

3. deliberate racial classification

4. intentional racial hatred

Arlington Heights v. Metropolitan Housing Development Corp. (1977)(p. 155)

Facts: City’s refusal to rezone a parcel of land to allow construction of low income housing challenged. Ps said this excluded blacks from the city.

Court’s explication on ways to show discriminatory purpose:

1. Statistical pattern

2. History re: government actions

3. Legislative or administrative history of a law

The State Action Doctrine: Constitutions protections of liberties and EP only apply to government—private conduct generally is inapplicable.

Three kinds of state action:

1. Congress passing a statute

2. “Functional test”: state has delegated one of its functions to what would otherwise be a private entity, such as fire, police (Marsh)

3. “Nexus test”: Where there’s such an interconnection, symbiosis, where public/private so intertwined that for all intents and purposes cannot tell where one starts and the other begins. Very fact dependent.

1. The Civil Rights Cases (1883)(p. 165) Example of judicial activism

Prohibited private racial discrimination. Court held it’s unconstitutional and adopted a restrictive view of the power of Congress to use these provisions to regulate private behavior. The 14th A. only applies to state and local government behavior, not to private conduct.

The Civil Rights Act, which prohibited private race discrimination, was deemed unconstitutional. The court used §5 of the 14th A. to support this holding, and said that §2 of the 13th A. was inapplicable because refusal to serve a person was “an ordinary civil injury”, not a “badge of slavery”. States primary guarantors of the rights of their citizens and federal government may protect those rights ONLY IF the states fail to do so. This is a reversal of the logical consequences of 13th, 14th, 15th As. to reduce fallback position and for federal government to be the guarantor of those rights.

Bradley’s view of scope of 14th A.: Narrow view, did not allow statute to fit w/in 13th A, only in relation to slavery. Must be able to find that Civil Rights Act constitutional under 13th A. b/c not under 14th. Bradley ultimately saying that individual invasion of individual rights not subject matter of 14th A.

Bradley’s interpretation of 13th A.: B/c there was this kind of discrimination in free states where blacks had some rights before 14th A., could not be a badge of slavery because this existed in areas where there wasn’t slavery. Bradley distinguished b/w “rights” and “privileges.

Harlan’s dissent: Harlan, unlike Bradley, thinks that P or I clause creates national citizenship in an affirmative way, not as a default position. Institution of slavery based on premise of inferiority of races. Any action perpetuating inferiority is perpetuated by the 13th A. Harlan rebuts Bradley’s assertion that allowing Civil Rights Act to stand is an intrusion into private rights by arguing that Congress owes special duties to people. If you held yourself out to the public, there are duties within it that could be regulated by the state.

2. Marsh v. Alabama (1946) Public functions exception

Facts: Company provided all of the services that normally the town would provide.

Holding: Court said since running a city is a public function, it must be done in accordance with the Constitution regardless of whether the town is run by the government or by a private corporation.

3. Shelley v. Kraemer (1948)(p. 181)

Issue: Were racially restrictive covenants enforceable?

Holding: Racially restrictive covenants were not enforceable. Discrimination was not illegal, but enforcement was illegal. In Shelley, private individuals can make arrangements, but if they come to the court to enforce, it becomes state action.

4. Burton v. Wilmington Parking Authority (1961)

Facts: The Eagle Restaurant was located in building owned by a state-created parking authority. Denied service to a customer b/c of their race. Building kept up by the government, government owned the land, citizens paid for upkeep. Eagle only leased space. Restaurant patrons used to the facility’s parking. The leasehold was tax-exempt b/c on government land. Benefits to Eagle as business(benefit of public entity. Holding: Government licensing and regulation okay for state action. Court found “symbiotic relationship” b/w the government and the private restaurant b/c the gov’t leased parking spaces to the restaurant, who denied a man admittance b/c he was black. The gov’t kept up the building w/public funds.

Can find state action where the government fails to act ====( could have made it clear that you can’t lease our space and discriminate

5. Moose Lodge Number 107 v. Irvis (1972)

Court held that state grant of liquor license to private club was insufficient for state action to apply.

How did the outcome of Civil Rights Cases (CRC) effect Congressional authority?

• Narrowed Congressional Authority. Under the 13th a., prohibited slavery only—not discrimination. 13th A. is a self-executing amendment (requires no further congressional action). §2 limited to ensuring that the self-executing amendment was not violated. Only congressional authority after CRC(Congress could act to eliminate the badges and incidents of slavery. All forms of racial discrimination were left untouched. 14th A. narrowed in CRC through §5—same wording as in §2 in 13th A. except that §2 does not talk about provisions because self-executing. §5 narrowed (unless state action, Congress can’t reach private action.

• Relationship b/w Judicial and Congressional power under the 14th, 15th As in context of racial discrimination: The courts broad interpretation under §5 (if Congress wanted to say that Congress does have the authority), look to McCulloch v. Maryland for precedent. Test for Congressional power, interpretation of Necessary & Proper Clause as not only is it necessary, but it’s not prohibited if legitimately related to a specific power.

Congressional Authority to Enforce Civil Rights

Katzenbach v. Morgan (1966)(p. 206) Deferred to Congress

Issue: Constitutionality of section 4(e) of the Voting Rights Act of 1965, which says that if a person has finished 6th grade in a school in Puerto Rico with Spanish instruction cannot be denied the right to vote b/c of an English literacy requirement, challenged by NY.

Holding: SC upheld provision as “a proper exercise of the powers granted to Congress by §5 of the Fourteenth Amendment.” Rational basis applied, deferential posture to Congress. A positive grant of authority to Congress.

Suggests that Congress under §5 of the 14th A. may independently interpret the Constitution and overturn the SC.

Dissent: Harlan, Stewart argued that the majority gives Congress too much power. Said essentially Congress could define away the rights they are trying to enforce. Implications of majority opinion are that judicial review becomes ridiculous.

Oregon v. Mitchell

US lowered voting age to 18, but Oregon’s voting age was 21. Court found that age can be lowered in Federal elections and not in state elections. (1970 the 26th A changed this anyway).

City of Rome v. United States (1980)(p. 212)

Facts: Under Voting Rights Act pre-clearance re: electoral changes granted only if the jurisdiction proves the absence of discriminatory intent and discriminatory effect. Rome convinced DC that certain changes had not been discriminatorily motivated. Court denied pre-clearance b/c the changes would have a discriminatory impact.

Appellants claim: §1 of 15th A. prohibits only purposeful racial discrimination with regards to voting and that under §2, Congress cannot prohibit voting practices that have a discriminatory effect but no intent.

Holding: Court said that even if §1 prohibits only purposeful discrimination, the prior decisions foreclose any argument that Congress may not outlaw voting practices discriminatory in effect pursuant to §2. Thus, the VRA’s ban on electoral changes that are discriminatory in effect is an appropriate method of promoting the purposes of the 15th Amendment, even if it is assumed that §1 of the 15th Amendment only covers intent, and not purpose. Court suggested here that Congress had the authority under §2 of the 15th Amendment to interpret the meaning of the 15th Amendment. The only time Congress can affirmatively anticipate a specific past violation is when there is a judicially determined problem.

1. City of Boerne v. Flores (1997)(p. 218) (Congress’ most recent interpretation as to §5 of the 14th Amendment) Big seperationof powers argument going on….

Facts: Archbishop of San Antonio filed suit against Boerne when the city denied the Archbishop’s application for a building permit to enlarge a church b/c it was within a historic district, claiming that the permit denial violated the Religious Freedom Restoration Act. Boerne town council had passed a historic district ordinance saying that they must get approval from town for expansions.

PP: First claim challenged the federal statute in federal district court, which ruled that RFRA unconstitutional. 5th Circuit reversed.

Issue: Did RFRA violate the Constitution?

RFRA established in response to Smith, where Indians were denied unemployment benefits when they lost their jobs as a result of using peyote, which was a religious rite. Smith court used Sherbert as a balancing test. After Smith, Congress unanimously passed RFRA and explicitly said they were passing it to nullify the Smith decision by the SC. Essentially Congress said we’re interpreting the Constitution differently.

Boerne indicated a power struggle b/w the courts and Congress as to who is the appropriate branch to interpret substantive rights under the Constitution.

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Sherbert Test: Conflict between law of general applicability and 1st A. Must show:

1) Did the state statute substantially burden the state’s free exercise of religion?

2) If so, must apply strict scrutiny test(burden shifts to state to prove a compelling state interest.

Smith departed from using the Sherbert Test b/c said too high of a standard; rather, it lowered the state’s burden in cases where free exercise of religion was at issue. Rather, the court said needed to have a substantial burden and then they would do a balancing test. If this test had been applied in Boerne, the compelling state interest would be to keep the historic district intact. (Is this compelling enough?)

Societal concerns v. individual rights.

Holding: 6-3 decision. Had to prove a legitimate state interest using a balancing test. Did the benefit of the historic district outweigh the burden of the church not being able to do what it wanted?

SC’s invalidation reaffirmed the principle that in order to secure a gov’t of limited and enumerated powers, congressional legislation enacted pursuant to §5 must be carefully scrutinized by the courts to ensure that Congress is truly enforcing the provisions of the 14th A., not just redefining the substance under the guise of enforcement. Reaffirmed the remedial theory in Rome but in this case, the court found that it was unsupported – Congress was not able to show that it was really a problem.

What’s Left of Katzenbach after Boerne?

Scalia: Concurred except for IIIA(1), not ready to concede that §5 is a positive grant of legislative power.

O’Connor, Breyer: Dissented b/c thought Smith incorrectly decided. She likely would have upheld RFRA. Breyer joins b/c he doesn’t have a problem for majority’s view that it’s unconstitutional if Congress had the authority to pass FRFA. He’s not concerned w/the Smith, Sherbert standard of proof.

Seuter: Doesn’t think cert should have been granted, doesn’t think the issue is ripe for the Supreme Court.

Stephens: Thought it was a direct violation against 1st A. establishment of religion (concurred but for different reasons)

Florida Pre-Paid

Holding: Congress can legislate under §5 to enforce the 14th amendments other provision but the object of such legislation must be the remediation of constitutional violations.

Discusses Seminole Tribe v. Florida – Holding: Congress under the Indian Commerce Clause cannot enact legislation abrogating the 11th amendment immunity of the states to suit in federal court. Congress does not have such authority to subject states to suit when it legislates under §5 of the 14th amendment.

VAWA (US v. Morrison)

Issue: Fourth circuit ruled that the Violence Against Women Act created a private cause of action in federal court against anyone who commits such a crime. Is this Constitutional?

Two questions before the court:

1. Basic Constitutional commitment to a federal system that both guarantees the states a major role and gives Congress broad responsibility over interstate commerce. (Federalism- balance states authority against Congress’ authority – dual sovereignty)

2. The commitment of a nationwide guarantee that all persons enjoy equal protection of the law. (Equal Protection – 14th Amendment)

*This case was a new civil rights remedy for abused women.

*States rights will not be interfered with under this private cause of action.

The Affirmative Action Controversy: Benign Classifications or Reverse Discrimination?

1. Hopwood v. Texas: Through index scores, UT picked three different types of people presumptively denied, accepted, and minorities. A special committee would read over these applications.

District Court: Used strict scrutiny, denial of en banc hearing. Judge’s brought request for en banc hearing. State had compelling reasons to admit students in this way.

*Four white plaintiffs appeal to the fifth circuit – also used strict scrutiny but struck the decision down.

Fifth Circuit: UT was trying desperately to increase its diversity and strikes down their system. Decided by a three judge panel – 2 to 1.

Holding: SC invalidated UT Law School’s affirmative action program. Held that the 14th Amendment does not allow the court to favor classes of minorities. Court said no compelling justification that alllows it to elevate some races over others, even to correct racial imbalance.

2. Boston Latin (Wesman v. Gittens) RACIAL BALANCING DOES NOT EQUAL INDIVIDUALISM

US Court of Appeals, 1st Circuit, 1998 (Supplement): This case was about who had the burden of proof and what constituted sufficient proof. School thought it met its burden; however, the majority didn’t. Said violation of Equal Protection Clause because the policy “effectively forecloses some candidates from all consideration for a seat at an examination school simply because of the racial or ethnic category in which they fall.”

3. Regents of the University of California v. Bakke (1978)(p. 233) Court first considered Affirmative Action. The only way out is to protect everyone.

Facts: UC at Davis medical school reserved 16 seats for minority applicants. The people who go the 84 remaining seats never competed with the 16 reserved seats people. Bakke, a white applicant, filed suit claiming that minority students of lower qualifications were admitted when he was not.

Holding: Admissions program violated Title VI of the Civil Rights Act of 1964 b/c it constituted racial discrimination by a recipient of federal financial assistance. No majority as to rationale of the decision and thus no agreement or ruling as to the appropriate standard of review. Court did not like the quota system – they liked the Harvard system – race was a factor in the outcome or decisions – not a separate categories.

**This is a plurality opinion – no majority as to analysis and basis of the decision – but they arrive at the same decision.

Stevens, Burger, Stewart, Rehnquist: Did not discuss the level of scrutiny.

Powell: Said strict scrutiny should be applied because the Equal Protection clause protects all people equally. Favored the Harvard College plan because it made race “a” factor and not “the” factor.

Brennan Four dissent: Wanted to apply intermediate scrutiny. They said strict scrutiny inappropriate for “benign” racial classifications, which they said consisted of those that do not stigmatize those disadvantaged by the classification. Said UC Davis’ “purpose of remedying the effects of past societal discrimination” is “sufficiently important to justify the use of race-conscious admissions programs where there is a sound basis for concluding that minority under-representation is substantial and chronic, and that the handicap of prior discrimination is impeding access of minorities to the Medical School.”

4. Fullilove v. Klutznick (1980)(p. 236)

No majority opinion. Court upheld against a facial challenge a 1977 federal statute providing federal funds to state and local government building projects that required that absent an administrative waiver, at least 10% of the money had to be spent procuring goods or services from minority business enterprises. Burger, along with White and Powell said Affirmative Action justified to remedy past discrimination but refused to extend or expand on analysis in Bakke. Marshall, Brennan and Blackmun concurred in upholding the AA, but said that intermediate scrutiny should be used.

Dissent: Stewart, Rehnquist, Stevens said strict scrutiny should be applied.

5. Wygant v. Jackson Board of Education (1986)(p. 237)

Court struck down a collective bargaining agreement between a public school board and a teacher’s union that provided that layoffs be made on a seniority basis “except that at no time will there be a greater percentage of minority personnel laid off than the current percentage of minority personnel employed at the time of the layoff.” Powell said there was no proof that remedial action was really necessary.

Toward a “Consistent” Race-Neutral Principle of Equal Protection?

1. City of Richmond v. J.R. Croson (1989)(p. 247)

Strict Scrutiny should be applied in evaluating state and local affirmative action programs

Facts: Richmond adopted the Minority Business Utilization Plan in 1983, which required non-minority prime contractors receiving city construction contracts to subcontract at lease 30% of the $ amount to one or more MBEs, which were at least 51% controlled by minorities. Plan said it was remedial and was enacted to promote wider participation of minorities in aiding in the construction of public projects. Richmond’s population was 50% black, but only .67% of prime construction contracts had been awarded to MBEs b/w 1978 and 1983. Croson was a non-minority contractor. Richmond thought that they were doing the right thing because this was exactly was what the court upheld in Fullilove.

Holding: (O’Connor) Court said this program clearly not narrowly tailored to remedy the effects of private discrimination. This case holds that all state and local racial classifications are subject to strict scrutiny (after Croson, answered question as to whether there’s a separate standard for Congress).

1. No consideration of any race-neutral means to increase minority business participation.

2. Quota can’t be said to be narrowly tailored to any goal except outright racial balancing.

However, O’Connor said that affirmative action classifications are not per se unconstitutional. The Croson plan was problematic because it only gave broad nationwide statistical information as justification. The majority distinguishes Fullilove by saying that Congress did that under §5 of the 14th Amendment.

Notes: SC approved of the same kind of minority business enterprise set asides in Fullilove. Richmond patterned their plan on Fullilove’s. Richmond included Blacks, Spanish, Asians, Aleuts. The majority thought that these categorizations were random. The issue in Richmond was really about Blacks. This category was the federal definition of MBE’s at the time.

• Importance of state action evident here. Courts seem to view as private discrimination, use lesser standard. If ordinance focused on discrimination in contractors, court looks at it as attenuated.

• Washington v. Davis + state action = serious limitations on Congress to enact legislation.

• §5 of 14th A: Extent to which Congress can reach out and address remedially facially neutral discrimination(requires finding of state action, judicially cognizable constitutional violation. Does not mean the court has to have declared Richmond as being in violation.

2. Metro Broadcasting, Inc. v. Federal Communications Commission (1990)(p. 254)

SC held that Affirmative Action programs approved by Congress only needed to meet Intermediate Scrutiny

Facts: Issue re: federal race-based preferences for increasing minority ownership of TV and radio stations. Only 2.1% of these stations minority-owned in 1986. Policy had arisen whereby minority applicants for licenses would get preference, and where a limited number of existing stations could be transferred only to minority controlled firms. FCC’s definition of “minority” included Blacks, Hispanics, American Eskimos, Aleuts, American Indians and Asian Americans.

Holding: Court upheld program by applying intermediate scrutiny, stating that Fullilove did not impose strict scrutiny on the federal program challenged. The court proceeded to adopt intermediate scrutiny as the appropriate standard for assessing federal “benign” racial classifications. Majority said the interest in enhancing diversity in the broadcast industry was an important government objective and the means were substantially related to the achievement of diversity.

Dissent (O’Connor): Said strict scrutiny should apply. Said that the only compelling interest involves remedying the effects of identified racial discrimination, which the FCC could not show.

Croson/Metro Compared:

• Croson used strict scrutiny, one year later in Metro, intermediate scrutiny used in dealing with 1st A. issues.

• Stevens switched sides, thought that broadcast would have more of an effect in the future. Distinction b/w forward-looking approach and a remedial one, which he sees as backwards looking.

• Croson was about the 14th Amendment; Metro was about the 5th Amendment.

• Brennan wrote opinion in Metro.

• Court struggles w/EP doctrine and the question of who is the guarantor?

3. Adarand Constructors, Inc. v. Pena (1995)(p. 255)

Court overruled Metro and established that strict scrutiny must be applied to all government sponsored affirmative action programs. (Croson had left open the question of whether strict scrutiny standard would be applied for a 5th A. claim)

Facts: Gov’t awarded prime contract for highway construction project to Mountain Gravel & Construction Co., who solicited subcontractor bids for some of the work. Adarand submitted low bid, but MG chose Gonzales b/c they would receive additional money from the government for hiring a small business controlled by “socially and economically disadvantaged persons.”

Holding: All racial classifications imposed by the government but be reviewed under a strict scrutiny analysis. The classifications can only be deemed constitutional if they are narrowly tailored to measures that further compelling governmental interests. Overruled Metro to the extent that it is inconsistent.

• Adarand court says there are 3 “settled” principles about the EP clause of the 5th A (still good law today):

1. Skepticism: Anything based on ethnic criteria is an issue of heightened scrutiny

2. Consistency: Resolves issue of what standard of review, colorblind concept that race will by definition trigger strict scrutiny.

3. Congruence: Moves 5th Amendment EP component to be the same analysis as with the 14th.

• NOTE: Scalia said that there could never be a compelling interest in using racial classifications to remedy prior discrimination.

Lutheran Church-Missouri Synod v. Federal Communications Commission DC Appeals Ct. 1998

Church challenges FCC order re: hiring & recruitment. Ct. finds the EEO regulations are unconstitutional.

Objectives for Affirmative Action:

1. Remedying Past Discrimination:

• Proponents: Argue that AA necessary in order to aid in stopping AA.

i.e. Fullilove: SC upheld federal law that set aside public works monies for minority-owned businesses. Court held that AA justified as a remedy as a result of the long history of discrimination. (not clear if this case survives later rulings)

• Opponents: Better to look solely at the merits.

i.e. Croson: O’Connor held that past discrimination cannot justify racial quotas.

Adarand: Apply strict scrutiny to federal affirmative action efforts.

Wygant: Said affirmative action as a remedy to general societal discrimination was not a sufficient justification for affirmative action.

• Currently:

1. Affirmative Action allowed if directed at entities prove not have engaged in illegal discrimination if limited to providing a remedy to those who are proven victims of that discrimination.

2. Affirmative Action won’t be allowed if based on desire to remedy the history of racism.

3. Question as to if it’s allowed when dealing with particular sectors of economy where proven discrimination but beneficiaries weren’t victims.

2. Enhancing Diversity

• Often used in university admissions and hiring processes.

• Bakke: Powell (writing only for himself) argued that diversity is a compelling interest.

• Metro Broadcasting: Court agreed that the value of the diversity of views over broadcast media would enhance goal of racial diversity. O’Connor’s dissent said that diversity not a compelling interest.

• SC has not accepted this as compelling justification up to this point. In Hopwood, the court invalidated UT Law School’s affirmative action program. In doing so, did not decide whether diversity is a compelling interest.

3. Role Model Argument

• SC rejected this as a justification in Wygant.

4. Enhancing Services Provided to Minority Communities

• SC rejected this as a justification in Bakke.

Techniques of Affirmative Action:

1. Numerical Set-Asides: SC said will only be allowed to remedy clearly proven past descrimination.

• Bakke: set aside unconstitutional

• Fullilove: set aside of 10% of federal public works monies to local gov’t for minority owned businesses constitutional b/c remedy long history of discrimination in construction. (may not have survived Croson, Adarand—would only be allowed if strict scrutiny was met)

• Croson: SC invalidated AA program setting aside 30% of public works monies for MBEs. Ct said not narrowly tailored b/c benefited other minority groups that might not have suffered from prior discrimination. Also so alternatives had been explored.

• Adarand: Set asides must meet strict scrutiny when created by federal law.

Using Race as One Factor

1. Bakke: Powell emphasized that UCD could use race as one factor in admissions decisions.

2. Metro Broadcasting: When overruled by Adarand, did not discuss whether this also applied to their comment that race be used as one factor.

3. Hopwood: Appeals Court said race could not be used as one factor in deciding to enhance diversity.

Facially Neutral Classifications and “Majority-Minority” Voting Districts

NOTE: These cases hold that the use of race in drawing election districts must meet strict scrutiny.

Political gerrymandering triggers strict scrutiny when…

1. It is seen as facially irrational

2. When race is used as a proxy for fulfilling other purposes

3. When race becomes the dominant motive in a redistricting plan.

Two section of Voting Rights Act that we will be concerned with…

1. §5 – Pre-clearance – a duty to remedy

2. §2 – Civil Rights claim section – the liability section for failure to remedy.

Does a state’s duty to comply with the Voting Rights Act show a compelling state interest?

1. Shaw v. Reno (1993)(p. 271) Redistricting

Use of race in drawing election districts is only constitutional if the government can show that it’s necessary to achieve a compelling purpose.

Facts: NC reapportioned state’s seats in HR based on 1990 census included one majority-black congressional district. After AG objected to the plan pursuant to section 5 of the VRA, the General Assembly created a second majority-black district. There was no claim of vote dilution, but that the Constitution required a color blind redistricting. They claim that the separating by race, violated the plaintiff’s constitutional right to participate in a color-blind voting process. Plaintiff’s claim that it is so irrational that it could not be anything else than to sort the district by race.

Holding: A plaintiff challenging a reapportionment statue under the EP Clause may state a claim by alleging that the legislation, even though race neutral on its face, rationally can’t be understood as anything other than an effort to separate voters into different districts on the basis of race, which lacks sufficient justification. O’Connor says district is bizarre looking, she compares this to the gerrymandering of the 1870s. Said this type of legislative line drawing prohibited minority voting historically. Claimed constitutional right to color blind districting. She invokes Washington and says the central purpose of the EP Clause was to prevent the states from discrimination. She infers intent from the manner in which the district was drawn. It doesn’t matter whether the state intended to be racially discriminatory or not. If the result of reapportionment dilutes a minority vote, it is a violation of the Voting Rights Act.

• Cites Gomillion, Wright in order to set up precedent re: the fact that race-based classifications have not previously been allowed. Both cases intended to stop an exclusionary principle.

• Court says they are not reaching the issue of whether a minority-majority district is ever permissible.

2. Shaw v. Hunt (p. 287)(Shaw II)

Said state had compelling interest in complying with the VRA. SC reversed, said districting not necessary to remedy any violations of the Act. Rehnquist says racial classifications antithetical to 14th A. whose central purpose was to eliminate racial discrimination. Said must apply strict scrutiny, result must be narrowly tailored.

Rehnquist said 2 conditions to satisfy state having compelling state interest:

1. Identified public/private discrimination with some specificity b/f a race conscious remedy would be arguable okay; and (this further narrows applicability)

2. Must be a strong basis in evidence that remedial action is necessary before you embark on it.

3. Hunt v. Cromati (supp. 10-12) 1999

NC legislature adopted new configuration for 12th Congressional District as result of Shaw v. Hunt, and which was again challenged as unconstitutional. SJ had been granted, but in opinion by Thomas, Court remands for trial b/c “data as a whole supported a political explanation at least as well as, and somewhat better than, a racial explanation.

NOTES:

• These cases indicate interdepartmental warfare b/w the legislature and the courts. The legislature is trying to create these districts, the courts say they’ve overreached.

• These cases can be distinguished from education, employment in that the 15th A. provides a stronger rational for Congress, for courts to defer to VRA.

• O’Connor, other justices emphasize traditional districting principles. Traditional reasons for drawing districts in certain ways—these reasons were political to make sure that constituencies with common interests would be able to elect officials who would promote those interests—keeping incumbents in power.

• Prof says this is the same thing, just different constituency: “Legitimate motives v. race conscious line drawing”

• Two ways to demonstrate that race used in drawing election districts (apply strict scrutiny):

1. if the district has a “bizarre” shape (Shaw v. Reno, Shaw v. Hunt)

2. If it can be proven that race predominant factor in drawing the lines (Miller)

Is there anyway to redistrict without taking race into account?

Sex and Gender-Based Discrimination Under Equal Protection Doctrine

1. Bradwell v. Illinois (1873)(p. 307)

Facts: Bradwell’s application to IL bar rejected on the basis that she is a married woman.

Holding: SC affirmed and upheld IL law prohibiting women from having licenses to practice law.

Miller said Bradwell’s argument that this violated the P or I clause did not apply b/c admission to the bar of a state is not one of the privileges and immunities of US citizenship. P or I did not apply to Bradwell b/c married women were seen as possessions of their husbands at that time. She is a citizen of the US and IL, however.

Slaughterhouse was decided the day before, this case effectively nullified the P or I clause.

2. Muller v. Oregon (1905)(p. 309)

Holding: Upheld maximum hours law for women employed in factories. The court said that women needed “protective” legislation.

Note: This decision is particularly interesting in light of the Lochner decision three years earlier. Lochner said it was unconstitutional to set a maximum hours law for bakers; however, in light of the aggressive protection of freedom of contract in this time, the court still upheld regulations concerning women.

3. Reed v. Reed (1971)(p. 313)

Facts: Idaho statute designated a “tie-breaker” preference for males over females of equal degrees of relationship to be appointed to administer an estate.

Holding: SC used rational basis and struck down the statute, stating that the classification “must be reasonable, not arbitrary, and must rest upon some ground of difference having a fair and substantial relation to the object of the legislation, so that all persons similarly circumstances shall be treated alike.” Statute facially discriminatory.

• This demonstrates a small step away using more than rational basis (although they still called it rational basis at this time). Beginning of the idea that sex-based classification should also be treated as suspect.

4. Frontiero v. Richardson (1973)(p. 313)

First time the court explicitly discussed standard of review re: sex and gender.

Facts: Statute said serviceman could claim wife as “dependent” w/o regard to if she was dependent on him for any part of her support; however, a servicewoman couldn’t claim husband as a “dependent” unless he was dependent on him for +1/2 of his support. 5th A. violation of EP component was the basis for discrimination.

Holding: SC reversed lower court decision and held that classifications based on sex are inherently suspect and must receive heightened scrutiny. (Brennan says strict scrutiny, but not a majority)

Notes: The court did not give one answer to what the standard of review should be applied because there was no agreement. Stewart agreed with Brennan’s finding, but not with the applicable standard. He agreed, however, that there was invidious discrimination. Three justices agreed with the outcome, but not that all classifications based on sex are subject to strict scrutiny. These justices wanted to use Reed, thought it was premature to put sex into that classification because the ERA had not yet been ratified by the states, but had been approved by Congress. Additionally, interesting that P in this case was male and the ERA had been passed, but not ratified.

• Brennan: “High visibility of the sex characteristic.” He seems to be saying that immutable characteristic of sex is like that of race.

• Kahn v. Shevin (1974): Court upheld state statute allowing widows, but not widowers, to receive a property tax exemption. Court said that women faced more barriers in the job market.

5. Craig v. Boren (1976)(p. 320)

SC agreed that Intermediate Scrutiny appropriate standard for gender classifications.

Facts: OK statute prohibited the sale of 3.2% beer to men under 21 and to females under 18. Did not prohibit the possession or consumption of beer by males 18-20. Male in this category filed suit as EP violation.

State’s argument: Claimed higher % of male drunk drivers in this age bracket and traffic safety was the specific interest.

Holding: Court declared the statute unconstitutional, first time intermediate scrutiny applied for gender classifications. The court said that traffic safety was not substantially related to gender discrimination.

Intermediate Scrutiny:

1. Important government interest

2. Means must be substantially related to reaching the interest (not just reasonably related)

Dissent (Rehnquist): He says that he does not see any discrimination of men, rather that gender discrimination deals with women. This is the same CF who says that “race is race is race”, don’t have to prove long discrimination against blacks to use strict scrutiny. Says should not find for P b/c men are not historically discriminated against.

6. United States v. Virginia (VMI)

Holding: SC declared unconstitutional the exclusion of women by VMI. Court said creation of the Virginia Women’s Institute for Leadership at Mary Baldwin College was insufficient. Ginsburg used intermediate scrutiny.

VMI’s justifications:

1. maintain diversity of educational benefits, said women and men learn differently. (Ginsburg said this justification did little more than reinforce stereotypes)

2. Preserving the adversative method of education.

Dissent: Intermediate scrutiny applied, even though the dissent disagrees. Dissent suggests that Ginsburg has added language that makes it more than intermediate scrutiny by her use of the language “exceedingly persuasive”. They say this sounds like compelling interest. But these weren’t Ginsburg’s words.

Arguments for intermediate scrutiny and not strict scrutiny for gender classifications:

1. Historical argument that Framers intended the 14th A. only to apply to race.

2. Strict scrutiny not always appropriate b/c there are biological differences b/w women and men—real differences argument.

3. Since women area political majority and are not isolated from men, they cannot be considered a discrete and insular minority.

4. Gender as a construct

5. Sex = immutable characteristic.

7. Miller v. Albright (1998)(S. 9)

Facts: Couple was not married, when citizen parent is the mother and the parents aren’t married, kid is a citizen if the mother meets minimum presence requirements. If mom is a citizen, in order for a foreign-born child to be a citizen, must just have established residence here for a minimal period of time. If father, as in this case, is a citizen, must:

1. prove paternity by clear and convincing evidence; and

2. show evidence of actual relationship with kid during period of child’s minority (b/f 18)

Holding: SC rejected challenge to federal statute that gave US citizenship automatically to child born out of wedlock to an American mom in a foreign country, but denied citizenship to child whose only US parent was her father, unless a paternity decree was entered b/f the child turned 18. Authority under Article I, §8, clause 4/

Stevens, Rehnquist: Found that the statute was based on a neutral state goal of ensuring reliable proof of parenthood, use rational basis.

O’Connor: Said that stereotypes can survive rational basis, but probably not strict scrutiny. Kennedy and O’Connor imply that if proper P before them (the father), they would apply intermediate scrutiny and it wouldn’t stand.

Thomas, Scalia: No standing b/c Miller, the daughter is a 3rd party. Must prove you’re the injured party.

Ginsburg (dissenting) joined by Souter, Bryer: Relied on anti-stereotyping rationale for heightened scrutiny set forth in Craig and VMI. Say should apply intermediate scrutiny, does not pass.

Oucome determinitive

8. Michael M. v. Superior Court (1981)(p. 337)

Facts: P moved to have a statute that made men alone criminally liable for statutory rape invalid.

Holding: SC affirmed, following cases where courts held that the laws realistically reflected that the sexes are not always similarly situated.

Rationale: Rehnquist stated that it was a compelling state interest to prevent illegitimate pregnancy.

“The statute at issue here protects women from sexual intercourse at an age when those consequences are particularly severe.” Men suffer few consequences. Court goes on to say that a neutral statute would prevent enforcement b/c females would not report crimes that they could be prosecuted for. This case turns on the argument that men and women are not similarly situated re: statutory rape.

Blackmun (concurred in judgment, not in rationale): Said that Sharon not an unwilling participant at the beginning of the interaction.

Brennan (dissenting): CA presented no evidence showing that this statute would be less enforceable or effective in deterrence. Used historical evidence to state that the reason for the enactment of this law initially had nothing to do with pregnancy, but rather was b/c women deemed legally incapable of consenting to sex, as opposed to men. No protection for men b/c the law thought they could make decisions for themselves.

Notes: In light of VMI, this is probably not good law today b/c laws based on stereotypes don’t work.

9. Rostker v. Goldberg (1981)(p. 339)

Facts: Section 3 of the Military Selective Service Act challenged on Equal Protection grounds b/c it excludes women. The MSS requires “every male citizen” and male resident aliens b/w 18 and 26 to register for the draft.

Issue: Has Congress, acting under an explicit constitutional grant of authority, by that action transgressed an explicit guarantee of individual rights which limits this authority.

Holding: “Men and women, because of the combat restrictions on women, are simply not similarly situated for purposes of a draft or registration for a draft.” Further stated that this sex-based classification was “closely related to Congress’ purpose in authorizing registration.”

Marshall, Brennan (dissenting): Says that the question under the Craig test is not whether the gender-neutral classification would substantially advance important governmental interests, but rather whether the gender-based classification is substantially related to the achievement of the asserted gov’t interest.

NOTE: example of judicial deference to the legislature.

H. “Suspicious” Classifications Outside of the Racial/Gender Context

1. Alienage, Non-marital Children and Age

• The court has held that aliens are an example of a discrete and insular minority and that classifications based on alienage are suspect.

• EP Clause: no “person” shall be denied equal protection of the laws. Does not mention “citizen”.

• See Yick Wo.

a. Massachusetts Board of Retirement v. Murgia (1976)(p. 303) No heightened scrutiny for age

Ct upheld 50 year old retirement age for state police. No heightened scrutiny for age classifications, should use rational basis.

b. United States Department of Agriculture v. Moreno (1973)(p. 304)

Ct held that the “statutory classification…[regarding food stamps] is clearly irrelevant to the stated purposes of the Act,” which was essentially to help the hungry. Originally, households were excluded from participation in the Food Stamp Act if they had one or more unrelated person living in the household.

Rehnquist, Burger (dissenting): Relied on Dandridge v. Williams, which upheld a state limit on the amount of welfare a single family could receive.

2. Wealth and Physical/Mental Disability

a. M.L.B. v. S.L.J. (1996)(p. 367)

Facts: Ct. terminated parental rights of P, who couldn’t appeal b/c couldn’t afford the fees required to prepare a record for appeal.

Holding: Unconstitutional for the state to require P to pay the fee. Court cited due process and equal protection concerns.

Rationale: Compared Ps interest w/ the State’s interest.

b. City of Cleburne v. Cleburne Living Center (1985)(p. 367) Rational Basis for Disability

Facts: CLC wanted to establish a group home for the mentally disabled. City had zoning regs that req’d special permits for building hospitals for the “feeble-minded.” City denied the permit.

PP: AC overturned City’s action, stated that the mentally disabled were considered a “quasi-suspect class, applied intermediate scrutiny, and said that the zoning regulation was invalid on its face and by application.

Issue: Apply heightened scrutiny of not?

Holding: SC held that the AC was wrong in holding mental retardation to be a quasi-suspect classification.

• The city does not require permits for other buildings, apartment houses, etc. (Most types of buildings do not require a special permit in this area.) The court said that the difference in the mentally retarded and these other groups who aren’t required to obtain a special permit are “largely irrelevant” unless the home “would threaten legitimate interests of the city in a way that other permitted uses such as boarding houses and hospitals would not.”

SC held that there was no rational basis for believing the home would pose any special threat to legitimate interests.

Stevens, Burger (concurring): Stevens says the analysis should not be a tiered analysis, but rather should look at the issue on a continuum.

Marshall, Brennan, Blackmun (concurring in judgment in part, dissenting in part): Marshall uses “sliding scale” approach, where the “substantiality of the state interests to be served” and “the reasonableness of the means by which the State has sought to advance its interests” are key factors. Says statute should have been invalidated on its face.

3. Sexual Orientation

a. Watkins v. U.S. Army (1989)(p. 376)

Unlike most other SC cases which have ruled that cases re: sexual orientation deserve only rational basis review, the Watkins court held that strict scrutiny should be used for discrimination based on sexual orientation. Court said Army’s policy of excluding gays, lesbians, bisexuals violated the EP strict scrutiny.

Rationale: Strict scrutiny generally triggered if: 1) group has a history of purposeful discrimination; 2) the discrimination embodies a gross unfairness inconsistent with the ideals of EP, enough to call it invidious; 3) the penalized group lacks effective political representation needed to protect itself form social and state prejudice.

b. Romer v. Evans (1996)(p. 379) First time court invalidated discrimination based on sexual orientation.

Issue: Challenge to Amendment 2 of CO constitution which says that CO laws should not adopt legislation entitling homosexuals to be entitled to claim minority status, quota preferences, protected status or claim of discrimination.

Holding: SC held that Amendment 2 of the CO constitution discriminated based on sexual orientation, said failed rational basis b/c there was no legitimate basis for denying homosexuals the same political process available to others. Ct says that “Amendment 2 fails, indeed defies, [rational basis] inquiry.”

Scalia, Thomas, Rehnquist (dissenting): Says goal of the amendment is to preserve sexual mores, not to harm homosexuals. Argues that the majority is saying that there is not equal protection w/o preferential treatment. Adds that majority does not confront the issue as to whether homosexuals should be afforded special protection.

Notes: In entire majority opinion, the court never mentions Bowers, even though they say they’re overturning it.

c. Equality Foundation of Greater Cincinnati (1997)(S. 12)

SC reaffirmed its position in Romer and said that Colorado’s Amendment 2 can be distinguished from Cincinnati Charter Amendment b/c did not deprive homosexuals of legal protections, but did not allow preferential treatment. Question as to if the court adequately distinguished Romer.

d. Baehr v. Lewin (1993)(p. 389)

Facts: Two gay couples filed suit and alleged that Hawaii’s Marriage Law was unconstitutional b/c it denied same-sex couples the same marriage rights as different sex couples.

Holding: State action sex discrimination requiring strong justification under the EPA to Hawaii’s Constitution.

• Denied of rights and benefits allotted to married couples.

• HI Marriage Law deemed unconstitutional unless D can show that the sex-based classification is justified by compelling state interests and that the statute was narrowly tailored to avoid affecting the appellants constitutional rights.

Baker v. State of Vermont

Holding: Denying benefits of marriage is unconstitutional under Vermont constitution (common benefits clause).

Court left it to the legislature to say whether gay & lesbian couples could marry. Since have passed civil union legislation. This case was set up so that it can’t go to the SC, and VT court not bound by 3 tiers of analysis used by Fed Courts. Rather: appropriate overriding interest & the govt’s purpose must be reasonably necessary to accomplish the state’s claimed objective. What was key in this case was the fact that VT already allowed gay/lesbian couples to adopt.

Concurrence/Dissent: - Why send this to the legislature, we found a violation & should just fix it.

- Based on sex, not sexual orientation.

FUNDAMENTAL RIGHTS UNDER THE CONSTITUTION

Generally:

• Gov’t can’t infringe upon fundamental rights unless strict scrutiny is met.

• Broadening beyond EP Clause to protect rights. Often source of protection is grounded in due process laws. “No person can be deprived of life, liberty or property without due process of law.”

• EP has to do with the classification itself; due process, on the other hand, has to do with whether an individual is appropriately classified.

• Since fundamental rights are not enumerated rights, states are our protector of these rights. Bill of Rights only applied to the federal government.

• The court is not consistent as to what extend the 14th A. incorporates the rights in the first 8 amendments from federal intrusion.

• Under §5 of the 14th A., Congress has the authority to enforce whatever provisions necessary for the implementation of the 14th A.

• Right to travel, right to vote both protected under EP clause.

• Most rights protected under DP and EP.

• If right protected under DP, issue is if the government’s interference is justified by a sufficient purpose (this used if right denied to everyone). If under EP, the issue is if the government’s discrimination re: who can exercise the right is justified by a sufficient purpose (this used if right denied only to some.)

• DP Analysis: If a right is found to fall under substantive due process, the constitutional issue is whether the government’s interference is justified by its public purpose. If the right is fundamental, that purpose must be compelling.

EP Analysis: If analyzed under EP, government’s purpose is presumed to be legitimate and the focus is on the classification as to who can exercise the right.

• Four prong test:

1. Is there a fundamental right?

2. Is the constitutional right infringed?

3. Is there a sufficient justification for the government’s infringement of a right?

4. Is the means sufficiently related to the purpose?

• In determining Fundamental Rights, can look to: text, historical intend, precedent, national rights theory, representative reinforcement.

• Three sources to look for fundamental rights in 14th A.=>P or I, DP, EP

A. Unenumerated Rights and the “Incorporation Doctrine”

1. The Slaughter-House Cases (1873)(p. 399)

Application of Bill of Rights to the States could not be through the P or I Clause

Facts: LA law banned slaughter houses within the New Orleans city limit, with an exception for the Crescent City Company, which was given a monopoly as a result.

Butchers’ Arguments: Said that 14th A. P or I clause protected their fundamental right to work at their trade.

Holding: P or I Clause not meant to protect individuals from state gov’t actions and not meant to be a basis for federal courts to invalidate state laws. SC upheld law, rejected butchers arguments. Said P or I clause only protected a limited set of national rights. Said that P or I of 14th A. refers to citizens of US, while P & I clause of Article IV refers to citizens of states. Court said right to pursue a trade probably protected by Article IV, but this only applied to

discrimination against nonresidents. Also said that 13th and 14th As were to enacted to protect former slaves.

Dissent: Argued for broader reading of P or I Clause. Field stated that “all pursuits, all professions, all avocations are open” to American citizens equally.

Notes: P or I Clause became defunct after this case. Slaughterhouse is still good law, selective incorporation occurs under DP not P or I. Instead of P or I bearing the weight of natural rights, it falls to EP and DP to carry the weight of protecting individual rights. Specifically, it falls to DP, which deals w/individual rights. The irony is that “due process” by definition is procedural.

• Both Palko and Adamson rejected the total incorporation view of the 14th Amendment and instead adopted the “fundamental rights” or “ordered liberty” approach.

2. Palko v. Connecticut (1937)(p. 401)

Facts: Jury found D guilty of second degree murder, however, jury wrongly instructed as to the difference between first and second degree murder. State said if proper instructions had been given, he would have been properly convicted of first degree murder.

Issue: D argued he would be placed in double jeopardy if tried again on the same offense under the 5th Amendment.

Holding: Jury returned verdict of first degree murder, D sentenced to death. SC affirmed conviction for first degree murder and rejected the incorporation doctrine—the court said this was not double jeopardy and trying him twice did not violate the norms of due process. Ct looked at it from the perspective of whether it was fundamentally unfair for CT to have laws different from other states and ultimately ruled that it is not. This case embodies case about due process, and whether it violates the norms of “ordered liberty” for CT to have this law. The court does not use double jeopardy language, rather it looks at it as if the 14th A. was its own sphere.

This case is the beginning of 14th A. limitation and using the DP clause to change state power. Palko essentially starts a process of litigation which changes the legal landscape in this country. Asks if DP clause should be the vehicle to constrain local and state actors from interfering w/the rights set forth in the Bill of Rights.

3. Adamson v. California (1947)(p. 404)

Facts: Adamson convicted of first degree murder. CA allowed the prosecutor and the judge to comment and to allow the jury to take into account if the D failed to take into account the evidence.

1. Issues: D doesn’t have to take the stand according to the 5th Amendment. The prosecutor cannot call the

Holding: Court says that 5th Amendment is not made effective by the 14th Amendment. Court also says that all of the Bill of Rights are not extended to the 14th Amendment. Says that there is neither total or selective incorporation. The court concedes that if this was a federal provision, this would violate the 5th A. But even assuming as such, this does not mean that it violates the 14th A.

*This case has the best argument for the total incorporation view. Black in its dissent argues that the B of R should be incorporated through the 14th A.

California, unlike many other jurisdictions, allows limited comment on a D’s refusal to testify. Court says that “It seems quite natural that when a defendant has opportunity to deny or explain fact and determines not to do so, the prosecution should bring out the strength of the evidence by commenting upon defendant’s failure to explain or deny it.”

Dissent: Black’s dissent says that the 14th Amendment explicitly guarantees that the Bill of Rights should also be applied to the states, and therefore that the protection given to the 5th Amendment against compelled testimony should be applied to the state.

4. Skinner v. Oklahoma (1942)(p. 410) Right to Procreate

Facts: OK has a Habitual Criminal Sterilization Act which says that if someone is a habitual criminal then they will be rendered sexually sterile. A habitual criminal is someone who has been convicted two + times for crimes “amounting to felonies involving moral turpitude”. Skinner convicted 2 times for robbery and once for stealing chickens.

Holding: SC said Sterilization Act unconstitutional. Court said that “sterilization of those who have thrice committed grand larceny, with immunity for those who are embezzlers, is a clear, pointed, unmistakable discrimination.”

Note: Didn’t expressly overturn Buck, but did so by implication.

5. Buck v. Bell (1927)(p. 414) The Right to Procreate

Holmes upheld a VA statute that established a process for the sterilization of mentally retarded persons in state institutions. Statute based on assumptions that developmental disability is inheritable. Buck argued that the statute intruded her bodily integrity in violation of DP and since it only applied to those people who were institutionalized, it violated EP. Homes said there was a state interest in promoting the public welfare to justify the statute against substantive DP attack.

Note: The SC later held that the right to procreate is a fundamental right ( so gov’t imposed sterilization must meet strict scrutiny)

B. Liberty of Contract and Substantive Due Process: The Lochner Era

1. Muller v. Oregon (1908)

Court upheld maximum hours law for women.

2. Allgeyer v. Louisiana (1897)(p. 420) Right to Pursue Livelihood

SC struck down LA law requiring insurance on LA property to be issued by insurers registered to do business in the state. Said law interfered w/freedom of contract so it violated the 14th A.

This case was a big step in substantive due process movement.

3. Lochner v. New York (1905)(p. 420)

Facts: Lochner charged w/violating statute saying bakers could not work more than 60 hours a week.

Holding: Court held that statute invalid as a labor law, says law did not involve safety or welfare and thus no reasonable ground for interfering w/the liberty of person or the right of free contract b/c it did not serve a valid police purpose.

Dissent: Argues that the statute was designed to protect health and safety.

4. West Coast Hotel v. Parrish (1937)(p. 426)

Court upheld state law establishing a minimum wage for women. Overruled Lochner. Said that government could regulate to serve any legitimate purpose, and that the judiciary would defer to the legislature’s choices as long as they were reasonable.

5. REA v. NY (1949)(p. 294)

Facts: Statute says that it’s okay to advertise re: work of owner, but not formal advertising. Appellant sells space on exterior of its trucks. Makes EP argument that distinguishes b/w those w/sold advertisements and those w/advertisements for its own company. Argument that unequal treatment not justified by aim of regulation (traffic safety).

Holding: Court upheld the statue.

6. Williamson v. Lee Optical (1955)(p. 427)

OK statute upheld. Statute prohibited opticians from duplicating or replacing lenses w/o a written prescription from an ophthalmologist or optometrist, even though opticians have the expertise and equipment to determine the prescription from the lens. Court stressed need for judicial deference to legislature.

**Review: EP Analysis: 1. Is the classification permissible? (Assume the end is permissible, focus on the line drawing). Those who have glasses/those who don’t. Opticians/medically trained. 2. Are the classifications protected?

C. Property Rights and “The Takings Clause”

Generally:

• Takings Clause prohibits gov’t from taking “private property for public use without just compensation.”

• “Possessory” taking = when the government confiscates or physically occupies property (eminent domain)

• “Regulatory” taking = when the government’s regulation leaves no reasonably economically viable use of the property.

Two overriding issues in the Takings Clause:

1. Redistribution: Government should not be able to take property of one person and give it to another

2. Loss Spreading: If public interest, public should deal with costs.

General Questions:

1. Is it a taking? (possessory or regulatory?)

2. What is property?

3. Is it a taking for public use? If not, the gov’t has to give it back. Courts define public use so broadly that it’s almost never found not to be a public use.

4. Is the person entitled to just compensation? Loss to property owner, not public benefit.

1. Penn Central Transportation Co. v. City of New York (1978)(p. 431)

Facts: NYC Landmarks Preservation Commission refused to approve plans to construct a 50-story office building over Grand Central Terminal, which was designated as a “landmark”. Terminal owner filed a taking challenge to the law.

Issues: until Lucas, these were thought to be the issues in a regulatory takings case.

a. economic impact

b. character of the government’s action—physical invasion, regulatory to the extent of rendering the property useless

c. extent to which the regulation interfered w/ “investment-backed” expectations.

Analysis: Court said must look at economic impact of the regulation, the extent that the regulation interferes w/investment-backed expectations, and the character of the governmental action.

Holding: NYC law doesn’t interfere with present uses of the terminal, thus terminal’s expectation as to the use of the land is kept intact. The regulation did not prevent owners all profitable use of the building.

2. Nollan v. California Commission (1987)(p. 437)

Facts: CA Coastal Commission required Ps to allow public to walk along the beach as a condition for receiving a permit to build a larger beach house.

Holding: Permit condition was a taking b/c lateral access was not closely enough related to the gov’ts right to protect the view of the ocean. The court said that the Commission could have banned the construction on the basis of the public’s right to see the ocean from the street.

3. Dolan v. City of Tigard (1994)(p. 438)

Facts: Government gave owner of plumbing and electric supply store permit to expand the building, but this was conditional on the basis that land be set aside for a public greenway along a creek in order to minimize flooding and a bike path to relieve traffic congestion.

Analysis: Used two-prong test:

1. Is there a “nexus…between the legitimate state interest and the permit condition created by the city.” (Nollan). Court said yes. (condition rationally related);

2. Whether the exactions on development were roughly proportionate to the governement’s justifications for regulating. Reasonableness test(rough proportionality standard. (burden imposed by the condition roughly proportionate to the government’s justification for regulating.)

Holding: Court found nexus b/c expansion and city’s need to reduce traffic congestion and limit development in floodplain. Used “rough proportionality” test.

4. Lucas v. South Carolina (1992)(p. 440)

Facts: Lucas paid $975K for two residential lots in 1986. Two years later, Beachfront Management Act enacted which barred Lucas from building on his parcels.

Issue: Does the Act’s effect on the economic value of Lucas’ lots accomplish a taking of private property requiring “just compensation” under the 5th and 14th As.?

Categories of compensable action: 1. Regulations that compel the property owner to suffer a physical “invasion” of his property; 2. Where regulation denies all economically beneficial or productive use of land.

Holding: Court said that the Act was a regulatory taking unless there was a similar restriction on development when he bought the land.

5. Phillips v. Washington Legal Foundation (1998)(p. 16)

Facts: Texas adopted an Interest on Lawyers Trust Account program, where certain client funds held by an attorney in connection with his practice are deposited in bank accounts, and the interest generated is paid to foundations financing legal services for low-income individuals.

Issue: Whether interest earned on client funds held in IOLTA accounts is “private property” either of the client or the attorney for purposes of the Takings Clause. (Majority’s manner of framing the argument). Focuses on premise that interest arises from principal.

Holding: It is the client’s property.

Dissent: Critical of majority’s framing the response in an abstract way, as opposed to specifically looking at the jurisprudence around takings.

Dissent would frame the question “whether Texas, by requiring the placing of the funds in special IOLTA accounts and depriving the funds’ owners of the subsequently earned interest has temporarily ‘taken’ what is undoubtedly ‘private property,’ namely, the clients’ funds…” Not taking b/c government created the benefit—the legal services. Dissent would say that the question the majority is asking is outside of the facts. If the question is simply dealing w/the fact pattern (majority), the case would come out in a different way.

• Some would say this case is in line w/Lucas, federalizing property rights.

• Constitutional source of the theory behind takings—5th Amendment.

• These cases raise issues of federalism, natural rights, and substantive due process, and their interrelationship.

• How a case about IOLTA funds has implications for how the court may view in the future substantive due process, and will it view them differently w/respect to economic rights, as in Lochner.

Applying Penn Central’s Three Principles to Phillips

1. economic impact—was the property the principal or the interest? The majority said that interest followed the principal. Under IOLTA facts, state of Texas req’t to put funds in an account does nothing to the diminution of the property—the funds weren’t going to earn the interest anyway. Not large impact on client’s principal, if principal is the property.

2. character of the government’s action—maybe the client thought the funds would be in an interest bearing account and they’d gain interest, but this isn’t how it often works when funds were in escrow. This wasn’t seen as an investment. Souter—temporary use of private property, not even permanent.

3. Extent to which the regulation interfered—there weren’t investment-backed expectations.

D. Basic Rights for the Least Advantaged and the Right to Travel

1. San Antonio Independent School District v. Rodriguez (1973)(p. 459)

No Fundamental Right to an Education. Wealth is not a suspect classification.

Facts: Mexican-American parents whose kids attend school in Edgewood brought class action on behalf of minorities who live in school districts w/low property tax base. Disparity b/w amount of $ spent in San Antonio compared to Edgewood School Districts (least and most affluent districts in San Antonio) ($356/kid v. $594/kid)

PP: DC held that dual system of public school financing violated EP clause. Found wealth to be a “suspect” class.

Holding: SC overruled, said there is no evidence that the difference b/w per pupil $ is directly related to the quality of education. People do not have a fundamental right to an education. Surprising considering Brown.

2. Plyler v. Doe (1982)(p. 463)

Facts: School districts authorized by Texas statute to deny enrollment to kids not “legally admitted” to the U.S.

Holding: Court held statute unconstitutional, violation of the EP Clause. No legitimate state interest. Court did not specify which level of review it used, but said more than rational basis. Appears as if using intermediate scrutiny.

3. Edgewood Independent School District v. Kirby (1989)(p. 465)

Issue: Constitutionality of the Texas system for financing the education of public school children.

Holding: Court held that Texas state financing system isn’t financially “efficient” and is therefore unconstitutional. The court reads “efficient” to mean “equitable.” Says “amount of money spent on a student’s education has a real and meaningful impact on the educational opportunity offered that student.” Looked at framers intent to say that framers did not intend to have a system w/such disparities.

Notes: States can exceed the rights the federal government gives you, but cannot give you fewer. So Texas can interpret its own constitution. But if a state affords you a right that isn’t recognized by the federal government, you can’t be assured that you have that right if you move to another state.

3. Shapiro v. Thompson (1969)(p. 472) Right to Travel

Court struck down rules denying welfare assistance to residents who had not lived in the jurisdiction for at least a year. Not clear if this is a fundamental rights (right to travel) or a equal protection case.

DP Argument: Deprivation of a property interest (welfare). Property = liberty.

EP Argument: Two-classes of citizens, those who have been there for more than a year and those who have not.

Saenz v. Roe (1999)(S 31)

Facts: Pregnant couple moves from OK to CA. Husband takes leave of absence from work to help his wife during her difficult pregnancy. HE was fired. Couple could not obtain welfare benefits.

Issue raised: Q of whether there is a new home for rights other than EP strand that where there not equality rights or procedural, that this will be a new home for fundamental rights. LPR v. Durational Residency Reqt. Is there a right to travel—the right of newly arrived citizens to the same priveleges and immunities enjoyed by other citizens of the same state.

Holding: State’s legitimate interest in saving money provides no justification for its decision to discriminate among equally eligible citizens. Thomas suggests that this case opens PI to be reinterpreted to be a source of POSITIVE RIGHTS, he also states that slaughter house cases were wrongly decided.

a. Protects rights of citizens of one state to enter and leave to another state

b. the right to be treated as a welcome visitor rather than an unfriendly alien when temporarily present.

c. LPR rt to be treated like other citizens of that state. The court applies EP analysis applying strict scrutiny and found that California cannot meet its burden.

Note: As attorney for P, want to try to get strict or heightened scrutiny. EP will likely not get you there b/c wealth is not a suspect classification. Since EP is about classifications, need to argue it under fundamental rights grounds (DP).

Note: As attorney for P, want to try to get strict or heightened scrutiny. EP will likely not get you there b/c wealth is not a suspect classification. Since EP is about classifications, need to argue it under fundamental rights grounds (DP).

E. Procedural Due Process and the Welfare State

1. Goldberg v. Kelly (1970)(p. 547)

Court held that the state can’t terminate welfare benefits being provided to a recipient w/o affording the opportunity for an evidentiary hearing before termination.

2. Mathews v. Eldridge (1976)(p. 553):

Facts: Worker notified by mail that state planning to terminate disability benefits. Worker contended that his failure to have a pre-termination hearing violated his DP rights.

Court said that the “fundamental requirement of due process is the opportunity to be heard ‘at a meaningful time and in a meaningful manner’”. This case deals with what process was due.

Three elements of balancing test:

1. How important was the liberty or property interest at stake? The court thought disability payments of lesser importance than welfare payments. The private interest that will be affected by the action—length of deprivation of benefits.

2. The extent to which the requested procedure was likely or not to reduce an erroneous decision. What was the likelihood of the agency making the wrong decision? Court said disability payments had to do w/doctor’s reports, etc. Risk of erroneous deprivation of such interest through procedures used and probable value of add’l procedural safeguards; fairness and reliability of existing pre-termination procedures.

3. The likelihood or not of additional procedure improving the decision against how burdensome to the government to provide that procedure. Government’s interest, including the function involved and the fiscal and administrative burdens and the additional or substitute procedural requirements.

Holding: Court says government only needs to provide post-termination hearing when social security benefits are terminated. Court says deprivation in this case would likely be less substantial than in Goldberg, and thus it is sufficient to follow the principle “that something less than an evidentiary hearing is sufficient prior to adverse administrative action.” Held that “All that is necessary is that the procedures be tailored, in light of the decision to be made, to ‘the capacities and circumstances of those who are to be heard,’ to insure that they are given a meaningful opportunity to present their case.

Fundamental Privacy Rights

1. Meyer v. Nebraska (1923)(p. 474)

Supreme Court struck down Nebraska law that prohibited teachers from teaching kids in any language other than English in public or private school. “No emergency has arisen which renders knowledge by a child of some language other than English so clearly harmful as to justify [the] infringement of the rights long freely enjoyed.”

*Constitutional protection of privacy from government control.

Right to acquire useful knowledge under 14th Amendment, “liberty” provision. Must ask if there is a legitimate state goal. Court concluded that there was only xenophobia, there was no evidence that there was really a problem.

Notes:

• Meyer, Pierce beginning of individual’s rights to pursue an education, for communities to decide what kind of education would be offered, and for parents to decide what schools to place their kids in. These cases indicate an extension of the Lochner concept to a new arena going to personal and family autonomy.

• These case preserve a very traditional view of the family by safeguarding parental control as opposed to social engineering, social policy. Protecting the family unit from the legislature dealing with issues infringing on family autonomy.

• Frankfurter saw these cases as class stratifying to a parents private property rights to his children. The connection speaks to the limitations on privacy issues.

2. Poe v. Ullman (1961)(p. 475)

Facts: Women brought suit b/c CT statute criminalizing birth control prevented them from receiving advice regarding their medical needs. The court ducked the statute when it first came in conflict in 1943 b/c said the doctor, who brought the case, had no standing. After this, activity trying to liberalize birth control information clinics in CT and MA.

Holding: The time was not ripe to hear this issue. Statute grew out of movement out of Victorian backlash against the industrialization and the impact that was having on gender roles and the family.

Harlan’s Dissent: Wrong for the state to regulate by criminal law the intimacy of a marriage. Said rational basis not enough, needed “a closer scrutiny and stronger justification” for the statute. Harlan says that there are rights beyond what the specific wording of the Bill of Rights says—it is a rational continuum. Cites Skinner, Bolling (D.C. companion case to Brown, education isn’t an enumerated right, to demonstrate that Due Process applied to the 5th and 14th Amendments.)

• Says if we affirm marriage affirmatively, then that is something that deserves protection. Right of privacy connected w/the marital bedroom.

3. Griswold v. Connecticut (1965)(p. 479)

Facts: Although there was not a statute prohibiting sale of birth control, it was illegal to use such devices. The court held that it was unconstitutional to have such a law.

Holding: Invalidated ban on use of contraceptives by married couples.

Dissent: Black, Stewart dissented b/c they wanted a more literal reading of the Constitution.

Douglas cited the following amendments: 1st, 3rd, 4th, 5th, 9th, 14th. He reasoned that since the Constitution in various specifics of the Bill of Rights and the penumbra protect rights which partake of privacy, it protects other aspects of privacy as well. Since the rights emanate from specific fundamental rights, it gets strict scrutiny. Infringement of this penumbra of rights is suspect b/c it comes from these fundamental rights.

• Is this Lochner under another name?

• He is trying to avoid the substantive due process, which is why he doesn’t mention Lochner.

• Justice Goldberg also failed to mention substantive due process. Only White, Harlan took on substantive due process clause head on saying that the statute was a violation.

• Argument that if Douglas had grounded his argument in 1st A. associational rights, this would be a stronger doctrinal basis today for some of the hotly disputed issues re: sexuality.

4. Eisenstadt v. Baird (1972)(p. 487)

Law prohibiting distribution of contraceptive to unmarried persons struck down. A right needs to be granted/regulated equally, right to privacy is an individual right, not a right solely allowed to a married couple as an entity. Court said using rational basis test, but was really heightened scrutiny. Broadened notion of privacy, no longer limited to marriage and the home. Brennan said this was a violation of the rights of single people under EP, rights must be the same for married/unmarried people.

Extension of Griswold: Griswold dealt mainly w/married, Eisenstadt “uncoupled” the right from a married person’s right to an individual, autonomous decision. Connects the right to the individual, not to the married unit.

Carey

5. Zablocki v. Redhail (1978)(p. 494) Right to Marry

Court invalidated WI’s law precluding the issuance of marriage licenses to people with outstanding child support obligations from a previous marriage.

6. Bowers v. Hardwick (1986)(p. 523)

Court upheld sodomy statute that on its face did not distinguish b/w homosexual and heterosexual conduct, but was selecctively enforced against gays. No right to homosexual sodomy in this country, not implicit in “concept of ordered liberty” nor “deeply rooted in Nation’s history and traditions.” Distinction b/w protected space and protected conduct.

EP Argument: Homosexuals v. Heterosexuals. Problems w/EP argument: The statute is not necessarily heterosexuals v. homosexuals, but rather anyone who engages in sodomy. The statute is facially neutral with respect to the classification which we think is operative in this case. The standard of review for facially neutral statutes is rational basis. The EP argument would be tenuous.

Substantive Due Process: Deprivation of liberty argument.

Sex Discrimination Argument: This would get you intermediate scrutiny.

Majority’s distinguishing Hardwick from line of precedents: Said line of precedent dealing with right to bear and not to bear children. Those cases about marriage, family, procreation.

• Importance of how the issue is characterized—White frames the question as whether there’s a constitutional right to homosexual sodomy. However, the court asks something different—whether the Georgia statute was constitutional under the Supreme Courts cases re: right to privacy issues.

• Posner—criminalizing homosexual behavior doesn’t stem from the behavior, but rather it stems from targeting a group. From this interpretation, discrete and insular minorities (Caroline), should be focused on--see Romer (can’t target group w/o underlying animus towards the group).

• Doing v. Being—legacy of Bowers.

• Powell v. State—GA Supreme Court recently struck down their sodomy law.

G. The Abortion Battle

1. Roe v. Wade (1973)(p. 495) Privacy

Established right to bodily integrity, freedom from intrusion into bodily integrity, right to be free from invasion of “property.” Choice is a fundamental right, derives from long line of childbearing cases. Applies strict scrutiny, fetus not a ‘person’ under 14th, divides pregnancy into 3 trimesters, as pregnancy progresses, state interest increases.

1st(no state involvement.

2nd(state interest increases, possible use of police powers.

3rd(state can regulate (ban abortion, compelling interest in health of fetus, only exception is mom’s health)

Court said that abortion is included in the right to privacy, yet this right should be considered against important state interests. Said woman does not have an absolute right to an abortion.

2. Webster v. Reproductive Health Services (1989)(p. 505)

Court upheld Missouri law requiring doctors to determine viability before performing an abortion after the 20th week of pregnancy.

3. Planned Parenthood of Southeastern Pennsylvania v. Casey (1992)(p. 506)

Facts: PA required woman seeking abortion to wait 24 hours in order to consider info regarding the risks and nature of the procedure.

Issue: Whether Roe should be upheld.

Holding: (O’Connor) Ct upheld informed consent, 24- hour waiting period. Reaffirmed holding of Roe, but allowed for greater regulation. The court said that this holding was as follows:

1. Upheld women’s right to choose b/f viability and to obtain w/o state’s undue interference from the State.

2. Said State had power to restrict abortions after viability, in the event that states have exceptions for pregnancies that put the woman’s life in danger.

3. State has legitimate interests from outset of the pregnancy in protecting the health of the woman and the life of the fetus.

Protection of abortion disseminates from 14th Amendment Due Process Clause, Individual liberty concept

Rejected Roe’s trimester framework.

• Only part of majority upheld Roe. Blackmun and Stevens urged complete affirmation of Roe.

Dissent: Rehnquist argued that right to abortion fails Palko’s “ordered liberty” test.

Notes: Court backing away from Roe – no language used like, “compelling”

What is left of Roe after Casey? Regulations were added.

1. If you are a minor you had to get consent of one parent or waiver from judge.

2. A woman has to tell her husband – raised in oral argument – forced speech – unconstitutional – only applies to married women – O’Connor asked what state interest was – to further integrity of marriage

3. Doctor has to give one-day waiting period, inform woman of procedure, etc. – forced speech .

4. In Roe the level of scrutiny into this right changes in Casey – in Roe it is strict scrutiny into the state’s interest, in Casey it is an important state interest with a balancing of interests

THE FIRST AMENDMENT

A. Free Speech and Competing Values

Background:

• Congress shall make no law abridging the freedom of speech or the press”.

• Political speech elevated to the highest protection by the court under the First Amendment.

• Low-level speech: i.e. commercial speech (advertising), obscenity. This is less protected, but not entirely unprotected.

• Freedom of speech covers all kinds of expressive speech—term of art used to describe something like flag burning. If you intend to communicate something with an action and people would tend to understand that you’re communicating it, it is understood as expressive speech. The courts have sometimes drawn distinctions b/w pure speech and symbolic speech.

• Prior restraint on speech such as censorship is about as reliable of a wrong as you can get to under 1st A. jurisprudence. After the fact, you can be punished for libel or other criminal consequences of speech, but courts have been very suspicious of prior restraints and typically the gov’t loses.

• There is some unprotected speech, which includes bribery, perjury, counseling to murder. These issues are uncontroversial and thus unlitigated.

• Other more controversial speech = incitement, fighting words, libel, obscenity, child pornography. These issues have been extensively litigated. Generally, they are unprotected, but there has been some shrinking of the boundaries surrounding these. Especially, statements that can be considered political.

• Note: If something falls within the 1st Amendment, it is a fundamental right and receives strict scrutiny.

Content based v. content neutral laws:

1. Content-based laws receive strict scrutiny. The gov’t cannot regulate speech based on its content. This includes viewpoint-based laws (RAV)

2. Content-neutral speech: Speech w/o regard for the message itself. Content-neutral regulations only need to meet intermediate scrutiny. (O’Brien)

Two types of content neutral regulations:

a. Regulation that doesn’t focus on the message, but rather is aimed at wider behavior and has only an incidental impact on speech (O’Brien)

b. Regulation that is aimed at expression, but for reasons unrelated to what the message is. (i.e. regulations that keep protesters a certain distance away from abortion clinics—this clearly implicates speech.)

Three principles of First Amendment Theory

1. Based on the concept of knowledge and truth in the marketplace of ideas.

Mills On Liberty said that suppression of an opinion is wrong regardless of whether that opinion is truth. He said if the opinion is true and it’s suppressed, society is denied the truth. If it is false and it’s suppressed, society is denied the fuller understanding of the truth that comes with falsehoods. If the opinion is partially true and false, argued that society could only learn the whole truth by allowing the erring of human ideas.

2. Focus on how free speech facilitates a representative government and democracy.

People who stress this value say that public speech (on public issues effecting self government) must be immune to regulation, whereas private speech is entitled to less protection. Counterintuitive that public speech should be immune to regulation. Private speech = slander (becomes public when it involves a public figure)

3. Individual autonomy, right to self expression, self fulfillment, focus on unique ability of human beings in their own personal development.

Emphasizes the intrinsic values of being able to express ourselves as human beings.

Brandenburg Test:

Three elements:

1. Express advocacy.

2. With intent to incite unlawful conduct.

3. Likelihood that the action you expressly advocated and intended is going to occur—foreseeability of result, imminent danger.

1. Texas v. Johnson (1989)(p. 564)

Facts: D convicted of desecrating a flag, which was a violation of Texas law, in political protest.

Holding: D’s conviction inconsistent with 1st Amendment.

P’s Argument: Wants to prevent breaches of the peace. However, the court says that no breach of the peace occurred.

Rationale: P said D’s conduct was expressive. Says that “the Government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.”

2. R.A.V. v. City of St. Paul (1992)(p. 566)

Facts: Petitioners burned cross on yard of black family, charged with violating the St. Paul Bias-Motivated Crime Ordinance. Court said “fighting words” not considered a speech element of communication, but rather they are “analogous to a noisy sound truck.”

Holding: Court said the ordinance was facially unconstitutional. Said First Amendment not the means by which this case should be continued. Scalia saying that this ordinance is unconstitutional on its face b/c it imposes special prohibitions on those speakers who express views on disfavored subjects. Can analogize color-blind issue in affirmative action cases with this view.

Schenck:

Mailed leaflet arguing the draft violates the 13th A.

“Weighing the circumstances”

Fire in a theater case. Clear and present danger.

Holmes and Brandeis thing the 1st A is IT….

Abrams

Russian leaflets (Bolshevic Revolution), court upholds conviction. In dissent Holmes says this goes too far.

Gitlow

C. Indirect Regulation of Speech

O’Brien: Intermediate scrutiny applied, court held that making it a misdemeanor to burn draft card was substantially related to the government interest at the time, which was that the draft card was one’s indication of whether you had registered..

1. Buckley v. Valeo (1976)(p. 644)

Part of federal campaign statute being challenged.

Issues: Facial challenges as to:

1. Whether campaign expenditures can be limited and

2. Whether campaign contributions can be limited.

Did the Act’s limitations on contributions and expenditures violate the Constitution? Challenged under several theories, including a First Amendment theory.

Holding: Court says can’t limit expenditures, but can limit contributions.

Court said speech = speaking through one’s donations, subsidizing messages.

2. Rust v. Sullivan (1991)(p. 676)

Facts: Involved challenge to a federal regulation that prohibited recipients of federal funds for family-planning services from providing counseling re: use of abortion as family planning or referral for abortion. Permitted grantees of the funds to provide pregnant women w/info about childbirth or prenatal care.

Holding: Regulation upheld on the ground that government can determine which activities to subsidize.

Why isn’t this viewpoint discrimination? This is the gov’t promoting family planning, not promoting a certain message. There are other options available.

3. Rosenburger v. UVA

UVA refused to provide payment to a Christian newspaper b/c they said it promotes religion. The court struck down the funding ban b/c First Amendment issues at stake.

National Endowment for the Arts v. Finley

( claim statute is facially invalid for viewpoint discrimination and vagueness. They have not bene denied gtants. O’Connor rights opinion, this is not doing anything, there are no categorcal differences here. Thomas and Scalia are in concurrence.

University of Wisconsin v. Southworth

Student are being compelled to support “speech” that offends them.

Court says: The idea of germain speech is not workable in a university setting.

Must use view point neutrality.

Campaign Finance

Nixon v. Shrink Missouri PAC

J. Soutter, a PAC and a candidate for state suditor bring this suit. Argues that there is no evidence of corruptio the statute is not justified empirically.

This is a question for the legislature according to J. Breyer. Should be a balancing test.

FEDERALISM

Note: The 10th A. states that powers not delegated to the US by Congress or prohibited by it to the states are reserved to the states.

FED LAW ANALYSIS—evaluating constitutionality of acts of Congress:

1. Does Congress have the authority under the Constitution?

2. If so, does the law violate another constitutional provision or doctrine?

STATE LAW ANALYSIS

1. Does the legislation violate the Constitution?

State gov’ts have police power, which allows state and local governments to enact laws not prohibited by the Constitution.

A. Competing Theories of National/State Sovereignty

Horizontal: Separation of powers of the branches, system of checks and balances among three branches (not focusing on this now)

Vertical: Relationship b/w the sovereignties that make up the federal system (this section).

Three issues emerge in conjunction w/vertical federalism:

a. When can the federal government act?

b. When can the state government act?

1. Dual Sovereignty: Constitution contemplates system that allows for two sovereigns, with two spheres of influence. Textbook say it’s obsolete that the two sovereigns co-exist.

2. “The Preemption” Doctrine: Related to Supremacy Clause in Article IV. State regulation violates the Supremacy Clause if it interferes w/national regulation. If conflict, federal law always trumps state regulations.

3. Dormant Commerce “Clause” Doctrine: State laws unduly burdening interstate commerce, or federal authority under the commerce clause, are invalid and unconstitutional, even if federal Congress has not chosen to regulate in this area (underlined part is the “dormant” part). This extends beyond what is specifically stated in Commerce Clause.

1. Assuming that national government is otherwise acting w/in its authority, can it impose authority on states?

1. McCulloch v. Maryland (1819)(p. 750) Lends legitimacy to N&P clause, implied powers (Art. I, §8 (18))

Facts: One of the banks of the U.S. blamed for recession, states including MD tried to tax it. This lawsuit arose when MD sued McCulloch (cashier of bank branch) b/c Bank refused to pay the tax.

Issue 1: Does Congress have the power to incorporate/charter a bank of the U.S.?

Marshall’s Arguments:

1. Historical—Used the fact that the US incorporated the first bank so it could do so again.

2. Rejected “compact federalism” view that the states are sovereign b/c they created the U.S.

3. Said even though creation of a Bank is not enumerated, Congress can still create one as a means of carrying out its powers.

4. Invokes Necessary & Proper Clause (Art. I, §8—Congress has the power “To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government…” Viewed the N&P clause as an expansion, not a limit, on Congress’ powers. (not “necessary” = “essential”; but rather “necessary” = “useful”.)

Holding on Issue 1: Congress has the power to create a bank, reaffirmed judicial review.

Issue 2: Can MD tax the branch in MD without violating the Constitution?

Holding: The law passed by the MD legislature imposing tax on Bank of the U.S. is unconstitutional b/c this would impede its operation.

• Marshall focuses on the nature and the structure of the federal government. Marshall says the question is not whether the state has authority. Marshall saying that structurally, the constitution (i.e. supremacy clause) never contemplated the state being in control.

Implications: Limits states ability to interfere w/federal activities, establishes that federal government supreme over the states, expands Congressional power. This holding reinforces the preemption doctrine, says Framers intended that Congess would have the means to carry out certain powers.

2. U.S. Term Limits, Inc. v. Thornton (1995)(p. 761)

Facts: AK inserted provision into state constitution saying one could not serve in House for AK if already elected to three or more terms, or serve in Senate for AK if already served two or more terms.

Issue: Are state-imposed term limits on federal officials constitutional?

Holding: The power to add qualifications was not within the original powers of the pre-Constitution states, and the Framers intended that the Constitution be the exclusive source of qualifications for members of Congress.

1. Said that b/f the federal government came into existence, the states had no power to tax (McCulloch)

2. Constitution generally and the Qualifications Clauses particularly assured that for the “National Government, representatives owe primary allegiance not to the people of a State, but to people of the Nation.”

Powers Delegated to the National Government

1. The Commerce Power

• Commerce Clause: Article I, §8(3): Congress shall have the power “To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes”

• This has been interpreted to include an implied limitation upon state legislative authority to burden interstate commerce.

• Three overarching questions:

1. What is commerce?

2. What does among the several states mean?

3. Does the 10th A. limit Congress?

Different eras in the defining of Commerce:

1. 1887-1937: narrow definition

2. 1937-1995: very broad

3. 1995-(post-Lopez)

a. Gibbons v. Ogden (1824)(p. 769) Defining Commerce

Facts: Two men given exclusive license by NY legislature to operate steamships in NY waters. They assigned Ogden right to operate a ferry. Gibbons violated NY license by operating ferry. However, his ferries licensed as operating under the coasting trade, which was in accordance with a 1793 federal statute.

Issue: Was the judgment granting Ogden an injunction inconsistent w/the Commerce Clause?

“Commerce”: Navigation is included within this term.

Holding: Congress had the power to enact the statute at issue in this case, NY monopoly preempted by federal law. Marshall said commerce was more than just traffic—intercourse (broad definition of commerce). Said commerce includes all aspects of business, which includes navigation. Said that “among” meant concerning more than one state. Also said that Congress could regulate as if there were no state governments. (rejected 10th A. arguments)

He did concede of possibility that there was a narrow field by which states could regulate.

Three conditions of this must first be satisfied (all 3):

1. Completely internal or intra-state. (Shreveport Rate Case—travel b/w Marshall and Dallas)

2. Which do not effect other states.

3. It didn’t interfere w/any other general powers of the federal government. (Indirect) Congress has authority as court in Lottery Case to prohibit protective legislation from moving from one state to another.

b. United States v. E.C. Knight (1895)(p. 776) Definition of commerce more limited than Gibbons

Distinction b/w manufacturing/transporting commerce

Court held that Sherman Antitrust Act could not stop a monopoly in the sugar industry b/c the Constitution did not allow Congress to regulate manufacturing. The court said there was only an incidental, not direct, relationship b/w manufacturing of sugar and interstate commerce.

c. Champion v. Ames (The Lottery Case) (1903)(p. 777)

Harlan upheld the federal Lottery Act, which said it was illegal to take lottery tickets across state lines.

Congress said that its power to regulate commerce included its ability to restrict certain goods from being in interstate commerce. This case was an exception of sorts. Court looking to limit intrastate activities. Concerned about the moral issue. Contrast this w/The Child Labor Case.

e. Houston, East & West Texas Railway v. US (The Shreveport Rate Cases) (1914)(p. 778)

Further defining “among” the states.

ICC told railway to equalize its rates b/w Dallas and Marshall, TX and Marshall and Shreveport.

SC held that ICC had jurisdiction over the intrastate and the interstate rates.

“Wherever the interstate and intrastate transactions of carriers are so related that the government of the one involves the control of the other, it is Congress, and not the State, that is entitled to prescribe the final and dominant rule.” Court held that there was a direct impact on interstate commerce.

f. Hammer v. Dagenhart (The Child Labor Case)(1918)(p. 778)

Court held that Congress had no Commerce Clause power to prohibit interstate transportation of goods made by child labor. Court said this was case of federal regulation of manufacture, rather than commerce. (contrast w/The Lottery Case)

2. The New Deal and “The Switch in Time That Saves Nine”

a. Schecter Poultry Corp. v. U.S. (1935)(p. 782) (“Sick Chickens” Case)

Don’t need to know this case for the exam.

SC held federal law (Live Poultry Code for NY) unconstitutional based on an insufficient effect on interstate commerce. Said the law did not sufficiently relate to interstate commerce.

b. Carter v. Carter Coal (1936)(p. 783) Protecting States

Court declared Coal Conservation Act unconstitutional b/c said commerce didn’t include “incidents leading up to and culminating in the mining of coal.” Also focused on unconstitutionality of fixing wages and hours.

c. National Labor Relations Board v. Jones & Laughlin (1937)(p. 784)

Beginning of Change in Commerce Clause—MAJOR SHIFT IN LAW—“the fact that the employees…were engaged in production is not determinitive.”

Upheld the application of the NLRA’s labor-mgmt provisions to a nt’l steel company. Overruled E.C. Knight.

“Although activities may be intrastate in character when separately considered, if they have such a close and substantial relation to interstate commerce that their control is essential or appropriate to protect that commerce from burdens and obstructions, Congress has the power to exercise that control.”

e. U.S. v. Darby (1941)(p. 785)

Fair Labor Standards Act of 1938, which prohibited shipment in interstate commerce of goods made by employees paid less than minimum wage, was challenged and upheld. Said that manufacture is not interstate commerce, but shipment of goods is. Expressly overruled Dagenhart, said 10th A. does not limit Congress’ powers.

f. Wickard v. Filburn (1942)(p. 788) Congress can do anything under the CC

Court upheld Agricultural Adjustment Act. Secretary of Agriculture set quota for wheat production, farmers each given allotment. D owned farm, grew wheat mainly for his own use—for food and his livestock. He argued that his wheat would not be used for interstate commerce and so the law could not be applied to him. Court looked at cumulative effect of the wheat on the national market and said it had a substantial effect on interstate commerce.

3. The Commerce Clause Today

• From 1937 to 1995 the law was that Congress could regulate any activity if there was a substantial effect on interstate commerce.

• Lopez was a huge surprise in 1995 because it was the first time since pre-Roosevelt court packing plan (60 years) that the court had said that Commerce overreached its authority under the Commerce Clause. Pre-Lopez, Congress was basically given carte blanche under the Commerce Clause. Many felt giving Congress unlimited powers under the Commerce Clause was inconsistent with the Constitution’s enumerated powers.

• Balancing approach of the courts: Court rejected formalistic dichotomies (manufacturing/commerce—Congress could control all phases of business; direct/indirect). Instead, the court said a state regulation interfering with interstate commerce will be upheld if:

a) the regulation is rationally related to a legitimate state interest; and

b) the regulatory burden imposed on interstate commerce by this state regulation and any discrimination against interstate commerce by this regulation are outweighed by the state’s interest.

• Congress has almost unlimited authority to regulate under Article I powers, but the states can regulate if the two-prong test is met. If the state regulation is directly in contrast to federal legislation, federal legislation prevails under the preemption doctrine of the Supremacy Clause.

• Commerce clause used to get at acts of private discrimination not covered under §5 of the 14th Amendment.

a. Heart of Atlanta v. US (1964)(p. 789)

Facts: Motel refused to accommodate African Americans in violation of Title II of the Civil Rights Act. 75% of hotel guests from out of state. Constitutionality of Title II in the Civil Rights Act challenged (in essence the Act itself was challenged). Congress has said that if you fall within the listed establishments in the statute, you effect commerce.

Test of Congress’ power under Commerce Clause: Whether activity sought to be regulated is “commerce which concerns more States than one” and has a real (not pretextual) and substantial (not attenuated) relation to the national interest.

1. Relies on Gibbons for the proposition of a broad interpretation of commerce. Discusses definition of “intercourse.”

2. Addresses moral wrongs. (Lottery Cases)

Holding: Court upheld constitutionality of Title II of the Civil Rights Act and said that Congress’ adoption of Title II applied to a motel is within its power.

b. Katzenbach v. McClung (1964)(p. 791)(Ollie’s BBQ)

Ollie’s BBQ refused to serve African Americans. 46% of meat purchased came from out of state. Court held that Title II was constitutional in its application to Ollie’s BBQ. Clark said, “discrimination in restaurants had a direct and highly restrictive effect upon interstate travel by Negroes.” Court looked at cumulative impact of discrimination, not based on interstate impact of this particular restaurant.

c. Hodel v. VA Surface Mining (1981)(p. 793)

Court held that Congress could regulate activities causing air and water pollution, including requirement that local strip miners restore land to earlier condition. Rehnquist says that it would be a mistake to conclude that Congress’ powers under the Commerce Clause are unlimited. However, the test is still substantial effect on commerce and Congress’ findings must still pass rational basis test (same test as before, but Rehnquist foreshadowing what will happen a decade later in Lopez).

d. U.S. v. Lopez (1995)(p. 795) Major Shift

Facts: D, senior in high school, arrested for carrying a concealed gun with bullets to school. Charged w/violating the federal Gun-Free School Zones Act of 1990.

Holding: Gun Free School Zones Act held to be unconstitutional b/c it was not substantially related to any interstate commerce.

Dissent: Breyer characterizes the issue not whether the regulated activity sufficiently effects interstate commerce, but whether Congress could have a rational basis for so concluding. Kennedy says the line must be drawn somewhere and this is too far-fetched.

e. The VAWA Brief (Morrison)

Three categories of commerce which can be regulated by Congress:

1. Channels of interstate commerce (water, telephone, internet)—to keep them free of injurious uses (Darby, Heart of Atlanta): Cites Heart of Atlanta for the proposition that discrimination is an example of protecting channels of interstate commerce.

2. Instrumentalities of interstate commerce, or persons or things in interstate commerce. Cited Congress’ power to regulate railroads.

3. Activities having a substantial relation to interstate commerce. (Wickard, aggregate effect)

Question as to if §922 falls into this category.

Argument re: #3: Could argue that children are people or instrumentalities of interstate commerce and need protecting. However, Rehnquist does not focus on this. Could argue that guns are in the stream of commerce.

• Government argues that firearm possession substantially affects interstate commerce b/c it may result in violent crime, which effects the functioning of the economy.

a. High costs of crime spread to all by insurance

b. Violent crime reduces people’s willingness to travel.

• Court said that if they were to accept the reasoning of the Government’s activity, then they could likely find arguments for the government to regulate everything.

B. Limitations on Direct Federal Regulation of States

1. National League of Cities v. Usery (1976)(p. 820)

Only case b/w 137 and 1990 to find that a law violated the 10th A.

Held that application of the Fair Labor Standards Act violated the 10th A. and, thus it was unconstitutional to require the minimum wage to local and state employees. Said violation when interfere w/state and local government functions.

2. Garcia v. San Antonio Metropolitan Transit Authority (1985)(p. 822) Overruled Usury

Issue: Whether D subject to minimum wage and overtime requirements of the FLSA. Issue as to the FLSA “trench on ‘traditional government functions’”. Regulation of activities of state gov’t (former cases involved regulation of private actors)

PP: DC said no under Nt’l League.

Holding: Rejects rule of state immunity from federal regulation turning on a judicial appraisal of whether a gov’t function is “integral” or “traditional”. Overruled Usury in a very short time span. Said Usury had created such confusion and no one could figure out what kind of test to use to determine what a traditional state function was. Also stated that state’s interests should be protected by legislature.

3 inconsistencies:

1. Liberals consistently defer to federal law and conservatives (justices) consistently defer to state laws, which are usually the target for individual claims;

2. Structural arguments strike conservatives as having a better originalist pedigree. Focusing on the structure comes closer to the originalist intent.

3. Conservatives view structural claims as more susceptible to objective factual analysis that rights claims which they see as value-laden. What is the court’s role as a counter-majoritarian organization and when should it intervene.

C. State Immunity from National Commandeering: “Neo-federalism”

National Commandeering = when Congress created federal law and requires states or local municipalities to implement that without federal funding.

1. New York v. United States (1992)(p. 831) Second Time Law Said to Violate 10th A. (Usury)

Facts: In order to try to solve the “not in my back yard” problem, in 1985 Congress enacted the Low-Level Radioactive Waste Policy Amendments Act to encourage states to form their own disposal sites. NY and counties where sites were going to be located filed suit claiming that the statute inconsistent with the 10th A. and the Guaranty Clause in Article IV. Argue that the 10th A. limits the power of Congress to regulate in such a way where it directs the states to regulate its radioactive waste.

Holding: Unconstitutional for Congress to compel state legislatures to adopt laws or state agencies to adopt regulations.

1. Money provision: Court upheld provision authorizing states w/sites to impose surcharge on waste from other states and put it in escrow.

2. Denied access if not solving problems: Court upheld provision authorizing states and regional compacts to increase costs of access to those sites and deny access to states failing to meet federal guidelines.

3. Take Title: The court said that the “take title” provision is inconsistent w/the federal structure of the government—says Congress has crossed the line from encouragement to coercion. This provision tells states either to accept ownership of the waste or to regulate accdg to Congress’ instructions.

Court said no violation of Article IV Guaranty Clause.

• Limited revival of judicial intervention—“O’Connor’s Revenge”: she had a majority to support what she had dissented on in Garcia.

• There is no question that Congress has the authority to regulate in this arena. O’Connor says nothing has ever endorsed the idea that states can govern. If she is trying to give substance to the 10th A., by saying the 9th A. is a mirror of this is a way of saying that the 9th is defined by the 10th.

White’s Dissent: Dissented as to the third provision. They would have held that the take title provision was within Congress’ authority. They say that implied in the fact that Congress has the authority to regulate, then they could agree to rubber stamp an agreement of the states. If they could preempt, then why can’t Congress have the authority to compromise? The majority of the court basically lets NY challenge the constitutionality of something it was a party to. The dissent says that they’re just blowing open this compromise which the states came to.

2. Printz v. United States (1997)(p. 841)

Challenge to part of Brady Bill law requiring local sheriffs to make background checks.

This case raises the question of does the New York decision extend commandeering concept to the executive branch as well as to the legislative branch? In dicta, O’Connor made the statement that the fed gov’t may not compel the states to enact or administer a federal regulatory program.

This was an interim step until a national background check could be established. Only required them to make reasonable efforts.

Holding: Federal government can’t compel states to enact or administer a federal regulatory program.

Note: Not withstanding New York and Prinz, Congress is free to use other means to induce the states to adopt federal policies. This is viewed as different from commandeering—forcing states to engage. Conditional preemption. Federal government can make a grant of federal money conditional on meeting certain policies. Congress can always regulate the underlying conduct directly as to public and private under its commerce clause authority. (Delhi Sands fly).

D. The Dormant Commerce Clause as a Limitation on State Regulation

Dormant commerce clause is the principle that state and local laws are unconstitutional if they place an undue burden on interstate commerce.

TWO FUNCTIONS OF COMMERCE CLAUSE:

1) Authorization for congressional action under Commerce Clause (Congress can preempt state or local regulation.

2) Limiting state and local regulation under Dormant Commerce Clause (negative inference from Article I, §8.) Issue whether judiciary in absence of congressional action should invalidate state and local laws b/c they put an undue burden on interstate commerce.

Note: State/local laws can also be challenged under P&I Clause if the law discriminates against out-of-staters w/re: to a fundamental right or important gov’t activity.

Laws against out-of-staters can also be challenged under EP.

• Cooley Test: Drew distinction b/w nt’l subject matter (where state laws invalidated under DCC) and local subject matter (valid exercise of state/police power). Concept that some issues are so national in character that they need national solution and some are strictly local in character ( has more to do w/the competency of what level of gov’t should regulate than with the subject matter. The basic theme that has survived from Cooly is that the validity of state actions affecting interstate commerce must be judged in light of the desirablility of permitting diverse responses to local needs on the one hand and on the other hand the undesirability of permitting local interference with a national and int’l flow of commerce.

• If Congress has regulated, question is if the federal law preempts the state/local law. If Congress has not acted, however, the laws can still be challenged. Early cases—courts have always permitted the states to regulate in some ways that regulated interstate commerce (police v. commerce distinction, local v. national distinction (sick chicken case), direct or indirect distinctions)

• Where purpose and effect is so central to whether a state will be allowed to regulate is analogous to first amendment issues where content-based speech receives strict scrutiny and content neutral laws that effect adversely speech get intermediate scrutiny. In First A. law, if the purpose is discriminatory and/or the effect is discriminatory, whether it is the purpose or not, heightened scrutiny applies in the dormant commerce clause cases.

• This is distinguished from EP b/c where facial or intentional race discrimination, for example, receives strict scrutiny but laws that discriminate racially for their effect only w/o intent being proven simply gets low-level rational basis review.

Approach #1

|STEP |QUESTIONS TO ASK: |

|1. |What is the purpose of this regulation? |

| |If economic protectionism, it is per se invalid, move immediately to apply heightened scrutiny. |

| |If the purpose is not economic protectionism, then go to #2. |

|2. |Are the effects on interstate commerce incidental? If yes, go to #3. |

|3. |If incidental, do a balancing test of whether the burden on interstate commerce created by the state or local statute is |

| |excessive in relation to the benefit to the state or local government that enacted the regulation. Does the value outweigh the |

| |burdening even in the absence of interstate commerce. |

Approach #2

|STEP |QUESTIONS TO ASK: |

|1. |Does the regulation effect interstate commerce? |

| |A. If yes, go to #2. |

|2. |Does it discriminate b/w in and out of staters? KEY QUESTION FOR DCC ANALYSIS! |

| |If yes, the state in most instances must prove an important state interest (some heightened scrutiny). (City of Philadelphia). |

| |Only upheld if a state can prove it has no less discriminatory alternative to achieve a legitimate goal. |

| |If it treats both the same, there is a presumption of validity unless you can prove some pretextual purpose that is protectionist|

| |or that the law’s burdens on interstate commerce outweigh its benefits. (Exxon) |

1. Facially Discriminatory Against Out-Of-Staters and Laws that are Clearly Protectionist For In-State Business = Per Se Invalid.

• When law is facially discriminatory, court will not ask if law has a discriminatory effect, but will inquire only into the state’s justifications.

a. City of Philadelphia v. New Jersey

Invalidated NJ Waste Control Act which prohibited the importation of out of state waste into NJ b/c/ violates DCC (waste is commerce). Can’t block flow of interstate commerce.

• Can’t back out of a national problem

• RULE – where simple economic protectionism is effected by state legislation a virtually per se rule of invalidity has been erected.

• EXCEPTIONS – 1) Intent of Legislature is not solely protectionist. 2) No discriminatory effect on commerce – balance burdens 3) No discriminatory effect on out of staters

b. C&A Carbone Inc. v. Clarkstown

Invalidated “flow control ordinance” requiring all non-hazardous solid waste within town to be deposited at local transfer station b/c drives up cost for out-of-state businesses to dispose of waste and deprives them of local markets. Carbone was a private recycler, statute favored local businesses.

• Disparate impact against out-of-staters sufficient to invalidate law.

• RULE – You have to treat out of staters EXACTLY the same as in-staters.

c. Uniform National Standard v. Need for Local Standard--UPHELD

Cooley – Upheld PA statute requiring use of local pilots in port of Philly b/c it was regulation of intrastate commerce LOCAL enough in character.

RULE – whether the nature of the subject matter requires uniform national regulation or diverse local regulations.

• State should regulate if local nature dealing w/ health, safety, morals, welfare of State residents

• Congress should regulate if national in character and effects National citizens

• States are laboratories of experiment

2. Facially Neutral Statutes w/Significant Effects on Interstate Commerce

• A State violates the DCC when it places an undue burden on National Commerce

• Statute OK if State regulates Even-Handedly (burdens inter and intra state equally) i.e. all milk (Clover-Leaf Creamery), oil refineries (Exxon) then OK, BUT if States single out (embargo) on state (WA Apples) or out of staters and not in staters, then State cannot pass.

a. West Lynn Creamery v. Healy –Solely Protectionist

Invalidated MA tax on all milk sales in the state, whether produced in or out of state. Taxes were collected both in and out of state milk, but $ went to subsidy fund for MA milk producers. This handicapped out of staters and artificially encouraged in state production.

b. Trucks and Trains – State Uniformity requires National Regulation

• Extension of Cooley – Kassel – invalidated b/c US needs State uniformity to keep FLOW of IC open.

Kassel v. Consolidated Freightways Corp.

Invalidated IOWA statute prohibiting the use of “double” trucks b/c statute burdens IC and exceptions for in-staters create illusionary safety interest. Ct balances increase in safety v. burden on IC.

• SC usually affords “special deference” to state Highway Safety regulations, but SC less deferential where local regulation bears disproportionately on out of staters.

3. Exceptions to DCC

A. Market Participant Exception

• State is working as a market participant (functioning as a private business), rather than a market regulator and therefore not bound by the DCC

• If state directly hires (White), then they are a Market Participant

Limits on market participant exemption, State may Not:

1) States may not regulate downstream activity which they are not a participant (So-Cen. Timber)

2) Impose burdens w/ substantial regulatory effects outside of particular market participating in

3) Avail itself of the market-participant doctrine to immunize its downstream regulation of the market in which it is not a participant.

a. Hughes v. Alexandria Scrap Co.—MP Exception invoked

Ct upheld Maryland law that had state pay for abandoned cars that was easier for in-staters to turn the cars in,

Rule – State acting as MP and therefore its actions did not violate DCC

b. White v. MA Council –MP Exception invoked

CT upheld city ordinance that required construction projects have a workforce of 50 % residents of the city. B/C is was a MP city could favor its residents over out-of staters

B. See Maine v. Taylor(Exception to the MP Exception (where even if the law is facially discriminatory, it is not a per se rule if this state regulation serves a legitimate government purpose that could not be fixed by any other means)

C. Exception if Congress Agrees State can Discriminate Against Out of Staters (still could invoke EP or P&I)

G. P&I EXCEPTION(interests that are fundamental to the promotion of interstate harmony or to the maintenance and well-being of the nation. (Pursuit of livelihood!)

• States cannot invoke MPE as defense to Art 4 § 2 P&I claims

• P&I appears to be an exception to the market participant exception to DCC challenge

• Since the MPE excepts states from ordinary commerce clause analysis and has become the exception that has swallowed rule b/c DCC challenges are easy for States to overcome under MPE, P&I provides another way to challenge State legislation.

• Like DCC, P&I can be used to challenge state and local laws which discriminate against out-of-staters, limits ability of states to discriminate against out-of-staters w/re: to fundamental rights or important ec. Activities

• Most P&I cases involve out of staters w/re: to their ability to earn a livelihood.

DCC v. P&I

• P&I only used if discrimination against out of staters. DCC can be used to challenge laws which burden interstate commerce.

• Corporations and aliens can’t sue under P&I, but they can under DCC.

• DCC exceptions inapplicable to P&I.

Key Questions:

1. Has the state discriminated against out-of-staters re: P&I that it accords its own citizens?

2. If there is discrimination, is there a sufficient justification?

P’s P&I PFC:

1) nonresident’s interest is sufficiently fundamental to be protected by P&I (rt. to work – Piper)

2) AND that out of staters are not “peculiar source of evil”

State’s PFC to justify discrimination against non-residents. State must show:

1) non-residents constitute a “peculiar source of evil” at which the statute is aimed

2) nonresident’s interest is not fundamental to be protected by P&I or the discriminatory practices against nonresidents must bear a substantial relationship to the goal the state is trying to achieve (pretextual)

What is fundamental under P&I?

Coryfield v. Coryell

White

1) Recreation not fundamental

Baldwin v. MT Fish & Game: Court rejected challenge b/c elk hunting not a constitutional right or an important economic interest (lower fee to MT residents for pass)

United Building & Construction Trades Council v. Camden

Remanded Camden ordinance requiring at least 40% of K and subK employees on city projects be Camden residents for P&I.

• Ordinance OK under CC MPE but not under P&I

• P&I does apply to City Ordinances

H. PREEMPTION(IF BOTH FED AND STATE PASS STATUTE

Three ways FED can preempt state

1. Express Preemption

• Congress has made it clear that it is going to regulate in this arena, so state and local gov’ts are expressly forbidden to regulate in this area.

• There can be “savings” clauses where Congress consents to a state regulating in an area where it would otherwise be preempted.

2. Conflict Preemption (implied)

• Literally impossible to comply w/both federal and state/municipal law. Under Supremacy Clause, federal law trumps (Article VI, §2)

• Gade v. Nat’l Solid Waste Mgmt Ass’n: Court found IL law conflicted w/federal law and preempted it b/c federal objective inOSHA was to foreclose state regulation of workplace safety until a state gained permission. IL licensing statutes to protect workers from handling hazardous wastes mandated add’l training for workers handling hazardous wastes. Fed law allowed state to assume all regulatory authority over workplace safety if it obtained federal permission, which IL had not received.

3. Field Preemption:

Look for:

• Idea that Congressional intent was to occupy the field, but there is some question as to whether they have said that clearly.

• Whether the scheme of the regulation is so comprehensive that there no room.

• Need for national uniformity

• Interest in the fed govt. regulating subject matter

• Congress showed intent through (a) statutory language (b) structure and purpose of statute

• If intent is unclear, look at traditional classification of the subject matter

• Pervasiveness of the Fed reg.

• Similarity of the federal and state law

Cipollone v. Liggett Group

Claim: Federal law of cigarette label warning preempted state tort laws (failure to warn).

Court said there is no preemption issue b/c would only preempt stae legislation of cigarette labels.

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