Constitutional Law

Article VI

Section 2: Supremacy Clause

Massachusetts v. EPA

Standing Argument: - Lujan requirements: must show a concreate and particularized injury that is either actual or imminent, that injury is traceable to D and a favorable decision will likely redress the injury - The state does have standing to sue the EPA over not regulating carbon emissions due to the state's interest in protecting the potential harm caused by global warming. Satisfies the Lujan requirements - Article III courts will not issue advisory opinions, will only give opinion to a specific case or controversy must demonstrate standing, cannot just assert a generalized grievance - Chief Justice Roberts said dissenting that this was a nonjudiciable political question

De jure vs. de facto segregation

De Jure segregation: Segration by law De Facto segregation: Segregation by practice

Caperton v. Massey Coal Company

Elected judges should not rule on cases involving their major backers: - When the probability of actual bias on the part of the judge is too high to be constitutionally tolerable - violation of 14th due process for a judge who received campaign contributions from a company to not recuse himself for a case dealing with that company - Too high a risk of probability of bias on judge to actually be a fair judge - Aspects of 1st amendment, but decided as a due process case because fair trial in fair tribunal is basic requirement - Due process just sets the floor for recusal, states can adopt more rigorous standards - Kennedy was swing justice and his view of judicial integrity becomes the Courts view. Foster respect from public of judicial system to require judges who were elected like this to recuse. Rules with the majority because this was under due process, not 1st campaign finance (Kennedy hates campaign finance laws)

Severability Clause

If there is a severance clause, the court can review legislation and get rid of the section they do not like.

Bowsher v. Synar

Legislature cannot have sole power to remove an Executive

Article VII

Ratifying the Constitution

Habeas Corpus

Article I, Section 9, Clause 2- Legislature has the only power to suspend habeas corpus when public safety requires it (Suspension Clause) Guarantees individuals who have been seized and detained by the government the right to question the grounds for their detention available to citizens, non-citizens, slaves, alleged spies and enemies Article II Section 2 Clause 1- commander and chief clause, but does not necessarily give president right to detain individuals during a time of war without habeas corpus rights

Judicial Challenges:

Facial challenge to a law: arguing that in no circumstances as the law is written, could it actually be constitutional As it is applied challenge to a law: the law generally may be fine constitutionally but applied to a certain individual it is unconstitutional. Much more narrow challenge of the law Avoidance Canon: the court will avoid ruling on a constitutional basis if they can, they would rather get rid of the case on a statutory basis. When ruling on a constitutional matter the only way to get rid of that is to amend the constitution, or have the Court overrule their own decision. Another way the Court limits their own jdx Nonjusticiable canon: if the court feels the political branch is the one that the constitution said should resolve the problem, the court will say it is nonjusticiable and stay away from ruling on a political issue

Inherent Presidential Powers

Unitary executive theory: each branch has exclusive spheres of influence, Congress has no ability to stop executive when using powers given to President under Article II o Issues with this theory!!!!! - president cannot declare war, only Congress can. Treaties are made by the executive but need consent of the Senate. Article II says president is required to take care laws are faithfully executed, but this does not make him a lawmaker. o Executive is at its zenith during wartime, but not limitless as we see in Youngstown

US v. Nixon

"Executive privilege" is not unlimited - The Court refused to quash the subpoena and orders Nixon turn over the tapes. No absolute presidential confidentiality privilege for general interests - This case created executive privilege (not found anywhere in the constitutions), but only for diplomatic and national security purposes, not for general interest - Allowing privilege would infringe on due process rights (5th and 6th) - Unanimous decision

Civil War Amendments (13th, 14th, 15th)

- 13th amendment • Section 1 Abolished slavery and indentured servitude • Section 2: Congress has power to make new laws to enforce this - 14th amendment • Section 1: Citizen of US and States if born or naturalized. Privileges and immunities. Due process clause. Equal protection. • Section 2: Removed 2/5 black count Penalty clause: if a state is disenfranchising the black population, the state will lose a % of their Congressional representation that is similar in size to the black men that have been denied the right to vote 21 year old male to vote. • Section 3: Disqualified to hold office if engaged in rebellion (on the side of the Confederacy) Congress can remove this disqualification by a 2/3 vote • Section 4: Debts of rebellious states will not be paid: the US is not paying anyone for freeing their slaves • Section 5: Congress has power to enforce this through new laws - 15th amendment • Section 1: Race cannot be used as criteria for voting: Black men get the right to vote • Section 2: Congress has power to enforce this through new laws

Boumediene v. Bush

- Alien enemy combatant held at Guantanamo do have right to Habeas Corpus and suspending it was an unconstitutional violation of the suspension clause - Government's argument that the constitution does not apply in Guantanamo is not accepted, this would create a lawless place, and government cannot turn constitution on and off like that- Guantanamo is clearly under US control - Factors to decide if detainee should be covered by suspension clause: citizenship and status of detainee (alien arrested outside US and enemy combatant), location of apprehension and detention (Guantanamo), practical hindrances in determining if detainee has writ (not a big problem for the military).

Gonzales v. Raich (Weed in California)

- Controlled substance act is valid exercise of federal power under CC and under Supremacy clause, the federal law controls - Weed is a fungible commodity, therefore Congress has a rational basis for connection homegrown weed to interstate commerce. Congress wants to prevent illegal weed market - substantial affects test used - Scalia's Concurrence: substantial affects test can be under CC and under necessary and proper. Congress could still regulate even without a substantial affect - O'Connor's Dissent: Let Cali be the test state for medical weed, gives Congress too broad of power to potentially sweep all productive human activity into federal regulatory reach. Using necessary and proper would create an unconstitutional backdoor for federal regulation - Thomas's Dissent: by allowing federal regulation of this (which has no interstate commerce involved) gives Congress power to regulate almost anything, and goes beyond their enumerated powers. Thomas hates the substantial affects test because he thinks it gives Congress too much power, should never decide CC solely on substantial affects

National Federation of Independent Business v. Sebelius (Affordable Care Act )

- Did Congress have power to enact the Affordable Care Act? YES and NO.: • Individual mandante: Must buy insurance or pay a penalty • Individual Mandate under CC- NO because Congress can only regulate commerce that already exists, but cannot compel individuals to participate in commerce that does not already exist (this is not controlling law, because pure dissent and therefore no controlling majority) • Individual Mandate as ability to tax- YES because it was a valid exercise of Congressional authority because the payment is collected by IRS (normal means) • Individual Mandate under N&P- NO, mandate was necessary to make sure insurance market would not implode, but not proper. • Medicaid expansion under spending power- NO, unconstitutional coercive spending power because it was 100% of the state's Medicaid dollars(far too extreme compared to 5% in South Dakota v. Dole) • Law was trying to get close to 100% coverage, and to cover those in poverty, the law wanted to expand Medicaid to 133%. • Anti-Injunction act: Pay first, litigate later rule to the IRS. Congress directed penalty to be assessed like a tax. Congress said penelties are included. Penelty bears collection in the same manner as a tax. - Controlling law is that Congress has power of individual mandate based on taxing power - For procedural purposes, the court decides this is a penalty and not a tax, so Anti- Injunction Act does not bar this. But then decides the constitutional argument by saying this is a tax not a penalty

United States v. Virginia: Women must be allowed into VMI

- Excluding women from admission to VMI does violate equal protection, and creating an alternative program just for women does not fix this equal protection issue - Virginia failed to provide an exceedingly persuasive justification for excluding women. Creating an all-women's school does not provide a meaningful alternative because so different and substandard - Scalia's dissent: shuts down long standing historical institution. There are inherent differences between men and women that justify different schools.

Brown v. Board of Education (1954)

- Segregation in schools deprives blacks of equal, segregation perpetuates racism. - Because the history of 14th is too all over the place, have to look at role of public education today - Education is necessary in order to succeed therefore must be made available on equal terms. Public schools weren't prevelant before. - Doll test as argument that segregation had prevalent psychological effect on black children. -Brown 1955 thinks about remidies and give latitude to local school districts to apply desegregation quickly - Unanimous decision

Williamson v. Lee Optical (1955)

- deference to legislative decisions - No equal protection violation when state does not allow opticians to fit glasses, the state is regulating a particular health and safety problem - Even if law is a needless requirement , legislatures job to balance advantages and disadvantages, not the court. Legislature clearly had some reason for law, and if people disagree take it to the polls to fix, not the court

New York City Transit v. Beazer

-Either you use narotics and the Transit Authority fired you, or they saw you were using methadone treatments and they fired you - Overinclusive law that refused to employee all methadone users is not a violation of equal protection because the state had a rational interest in not employing narcotic users, therefore a total exclusion policy is okay - Dissent: difference between those who have successfully used methadone to cure addiction versus those trying to escape addiction. Those who beat addiction are just as employable as general public

US v. Carolene Products (Footnote 4)

-In 1923, Congress passed the Filled Milk Act (FMA), which criminalized the shipment in interstate commerce of skimmed milk compounded with any fat or oil other than milk fat, so as to resemble milk or cream. -Whether the FMA violated the 5th Amendment -Carolene Products Co. (defendant) owned a milk processing plant. The United States government (plaintiff) indicted Carolene Products in district court for violating the FMA. -Carolene was accused of shipping a product called "Milnut" that consisted of a compound of skim milk and coconut oil. - Explains that prejudice directed against discrete and insular minorities may call for more searching of facts and subjution to judicial inquiry -Looking with rational basis scrutiny - Footnote No. 4 explains judicial inquiry resulting in the start of strict scrutiny

South Dakota v. Wayfair

-SC overrules Quill which previously required physical presence to remit sales tax -Now all states can try to enforce sales tax through online sales -Wayfair we not in south Dakota in a meaningful way because they are online, but the Court Overruled the physical presence rule. -Congress could solve the problem by passing legislation, but never has. Therefore the Dorman CC here applies.

Amendments

1) Freedom of speech and religion 2) Right to bear arms 3) Quartering soldiers- cannot force homeowners to give soldiers room and board 4) Unreasonable Search and seizure- valid warrant based on probable cause required 5) Rights of a person- protected from being held for crime without indictment, forced to testify against yourself, being tried for same crime twice, property being taken without compensation, due process 6) Rights of accused- Speedy trial, impartial jury, confront witnesses, have a lawyer 7) Guarantees a jury trial in federal civil court cases 8) Protection against cruel and unusual punishment- no excessive bail 9) Unenumerated- other rights exist that are not listed, rights retained by the people 10) Any power not granted to federal government is vested in the state 11) Supreme court has original jurisdiction over a suit brought against a state by a citizen of another state 12) How president and vice president are chosen by electoral college 13) Abolished slavery 14) Guaranteed rights: equal federal and state law protection, removed 3/5 count for slaves on census. Ensured the US would not pay debts of rebellious states, 21 years old male to vote, privileges and immunities, due process 15) Race cannot be used as criteria for voting 16) US can collect income tax 17) The people chose senators, instead of the state legislatures 18) Prohibition 19) Women's suffrage- gender cannot be used as criteria for voting 20) Terms of president, VP, congress and presidential vacancy 21) Repealed 18th 22) Presidential tenure- 2 four-year terms 23) DC has three electors for presidential elections 24) Abolition of poll tax 25) Line of succession of president and rules if president becomes unable to perform duties (passed in wake of JFK assassination) 26) 18 years old to vote 27) Increase pay of legislators can only take effect after an election

Only way to overturn a Supreme Court decision

1. The Court overturns their own decision; or 2. The constitution is amended • Dred Scott v. Sandford o Overturned by the Civil War amendments (13,14,15) • Plessy v. Ferguson o Overturned by Brown v. Board of Education • Lochner v. New York o Overturned by West Coast Hotel v. Parrish • Korematsu v. US o Partially overturned by 18 USC 4001: "no citizen shall be imprisoned or otherwise detained by the US except pursuant to an Act of Congress" o Specifically adopted so it would be impossible for a future president to do what Roosevelt did in WWII • Craig v. Boren o Overruled Goesart v. Cleary which found that gender discrimination did not violate equal protection o This case started intermediate scrutiny for gender discrimination (different alcohol age) o Still good law • US v. Miller o Partially overturned by DC v. Heller which said a person has a right to have a gun in home for self defense • Austin v. Michigan Chamber of Commerce and parts of McConnell v. FEC (which upheld corporate ban on electioneering communications) o Overturned by Citizens United v. FEC

Equal Protection Clause

14th amendment clause that prohibits states from denying equal protection under the law, and has been used to combat discrimination. No equal protection in 5th amendment BUT the Court reads it in in Bolling v. Sharpe (looking at racial discrimination at public school in DC, which is not a state so looking at 5th, and the court read equal protection into 5th in this case in order to reach same conclusion they did in Brown because DC is a federal district). • Reverse incorporation: reading 14th as applying to federal government in order to get equal protection applying to federal government

Early Civil Rights Cases: De Facto Segregation

14th only applies to state action, not private - Congress did not have the power to pass Civil rights act because they cannot legislate private discrimination (this is the reason Ollie's BBQ and Heart of ATL used CC to stop private discrimination, because they couldn't use 14th to do so) - Private individuals being discriminated by privately owned businesses is outside scope of Congress's 14th power - Dissent: court ignored spirit of Civil Rights Act and its intent to stop discrimination

West Coast Hotel v. Parrish

1937 - Supreme Court upheld the Washington state minimum wage statute. - The state can regulate minimum wage paid to female employees, minimum wage law are passed by the state to promote health and safety of female employees - Constitution does not explicitly say freedom to contract, therefore not an absolute or unqualified right, and thus it is permissible for states to make limits on contracts .

INS v. Chadha

1983, the Supreme Court case that ruled legislative vetoes were unconstitutional, but Congress continues to enact laws containing them.: - Congress vetoing the AGs recommendations for who should not be deported is unconstitutional. A one house veto in perfectly unconstitutional - Presentment (President signs legislation into law, but has power to veto) and Bicameralism (law must be passed by both houses) shows the Framer's intent to make sure the law was carefully considered and requires both of these. - Only four instances where the Constitution specified that one of the Houses can act alone (without presentment and bicameralism) • House has power to initiate impeachment • Senate has power to conduct trials following impeachment • Senate given final unreviewable power to approve or disapprove presidential appointments (cabinet) • Senate alone given unreviewable power to ratify treaties - This case lacks presentment and bicameralism, is not one of ^ exceptions, therefore unconstitutional act by the House - Powell's Concurrence: Congress assumed power of the judiciary. Careful not to undue all of Congress's vetos - White's Dissent: no legislative veto creates a Hobson's Choice. Either Congress has to not legislate at all, and concede most of their power to the executive, or they have to micromanage legislation for the executive. no good option without veto power

U.S. v. Windsor (DOMA)

2013, ruled 5-4; A landmark civil rights case in which the United States Supreme Court held that restricting U.S. federal interpretation of "marriage" and "spouse" to apply only to heterosexual unions, by Section 3 of the Defense of Marriage Act (DOMA), is unconstitutional under the Due Process Clause of the Fifth Amendment; Justice Kennedy wrote: "The federal statute is invalid, for no legitimate purpose overcomes the purpose and effect to disparage and to injure those whom the State, by its marriage laws, sought to protect in personhood and dignity." - State using DOMA to actually injure a married surviving spouse by not allowing tax exemption which is deprivation of liberty under 5th -Full faith and credit argument as well. - DOMA seeks to injure class that NY is trying to protect and makes same sex marriage a second class marriage - 10th amendment Federalism Argument: Marriage is a state issue, so inappropriate for federal government define marriage - DOMA unconstitutional because it singles out a class of persons and denies them of their liberty under 5th amendement due process - Robert's dissent: Congress was just using definition of marriage that every state has used before. Uniformity - Scalia's dissent: nowhere does constitution take a stance on same sex marriage, court does not give a rational review - Alito's dissent: recognition of same sex marriage should be done by elected officials through voice of the people

Planned Parenthood v. Casey

A 1992 case in which the Supreme Court loosened its standard for evaluating restrictions on abortion from one of "strict scrutiny" of any restraints on a "fundamental right" to one of "undue burden" that permits considerably more regulation: - Allows abortion pre viability, state can regulate after viability and even ban abortions. Can enact regulation to further health and safety of woman getting abortion, BUT unnecessary health regulations that put a substantial obstacle on women seeking abortion imposes an undue burden on that right - Court had an opportunity to overturn Roe v. Wade but do not - O'Connor: "Liberty finds no refugee in a jurisprudence of doubt", requiring spousal notification could lead to more spousal abuse Gonzalez v. Carhart - Congress uses commerce clause to outlaw very late term abortions, upheld

Privileges and Immunities Clause

A clause in Article IV, Section 2, of the Constitution according citizens of each state most of the privileges of citizens of other states. Comity Clause: prevents states from treating citizens of another state in a discriminatory manner Full faith and credit: states will honor another states court judgement against you on behalf of the state where it was issued

Clinton v. Jones

A sitting president is not immune to civil litigation. - President is not immune from all civil litigation while in office, cannot delay until he is out of office - Separation of powers does not require courts to withhold actions against the president while in office - President trying to say he is above the law, Court says the law applies to you the same as it does to everyone else - Unanimous decision

Dormant Commerce Clause

A situation in which the federal government has the Commerce Clause power to regulate an area of commerce but has chosen not to regulate that area of commerce: State legislation cannot discriminate against interstate commerce. Strikes down laws where the state is favoring its own goods and citizens. States cannot erect protectionist laws that favor in state businesses, with one EXCEPTION Market participant exception: state can favor its own citizens if the state itself is selling the goods or services, than the state can discriminate in favor of its own citizenship. Ex: Pricing between in-state and out-of-state college students.

Grutter v. Bollinger

Allowed the use of race as a general factor in law school admissions at University of Michigan: - Can use race as a factor for admission when race is considered, but is not outcome determinative like it is in the undergrad program. - Exception that actually passes strict scrutiny test. Law school admission is narrowly tailored because admissions gave individualized attention to every single applicant - "Critical mass" of minorities in classroom to avoid tokenism, avoid racial stereotypes and add to classroom - Student body diversity is compelling state interest that justifies use of race in admissions - O'Connor says there will be a sunset on affirmative action in 25 years - Ginsburg concurrence: affirmative action should be phased out because hopefully we won't have problem admitting minorities - Scalia's con/dissent: holding was too fact specific and will not be applicable in future cases - Thomas's con/dissent: admissions policy is elitist, no compelling state interest because state does not need law school - Kennedy's dissent: strict scrutiny applies wrong, should have inquired more about review process of applicants.

Heart of Atlanta Motel v. US

CC to regulate discrimination in hotels: - Congress does have the power to pass Civil Rights Act in order to regulate interstate commerce - Black travelers are the interstate commerce - Congress has power to regulate local activities that have a substantial or harmful effect on interstate commerce, therefore has the power to regulate discrimination in hotels based on CC power - By using the CC, this allows Congress to regulate private discrimination - **Unanimous decision: Concurrence saying this should have been a 14th amendment equal protection case to give people more protection

Katzenbach v. McClung (Ollie's BBQ)

CC to regulate discrimination in restaurants: - Ollie's BBQ purchased food from outside the state, and aggregated with similar situations, counts as substantial affect, therefore Congress does have the power to regulate discrimination in restaurants - Interstate travel is directly affected by discrimination against Blacks, businesses suffer, and new businesses would refrain from starting in area of discrimination

US v. Lopez

Channels, instrumentalities, or substantial affect : - Rehnquist: The gun free school zone act exceeded Congress' CC authority because it did not regulate a commercial activity or have any relation to interstate commerce, therefore it was unconstitutional for Congress to pass a law prohibiting guns near schools (Congress has no generalized police force) - Lopez Three (broad categories that Congress can regulate under CC authority) • Use of channels of interstate commerce- how the product traveled through interstate commerce • Instrumentalities of interstate commerce, even if threat only comes from intrastate activities- Internet • Activities that have a substantial affect no interstate commerce when aggregates - A gun in a school zone is not an economic activity that can affect any interstate commerce - Kennedy's concurrence: act is unconstitutional because it upsets federal balance. States can enact anti-gun laws in school zone to figure out what works best - Thomas's concurrence: substantial affects test is not supported by language of constitution, gives Congress police power which was never intended - Steven's dissent: Congress can regulate guns because they are articles of commerce, and can be used to restrain commerce - Souter's dissent: Court is unraveling the entire past century's decision and interpretation of commerce clause - Breyer's dissent: Court could have found a substantial affect by looking at guns and education

Hamdi v. Rumsfeld

Citizen detainee get 5th Due Process rights and Habeas Corpus: - Hamdi is entitled to 5th amendments rights, even as an enemy combatant Affirmed fundamental nature of a citizen's right to be free from involuntary confinement by government without due process of law - Plurality opinion: A citizen detainee seeking to challenge his qualification as an enemy combatant must receive notice and a fair opportunity to rebut his confinement before a neutral decision maker o Wins for Hamdi: opportunity to rebut grounds of detention before neutral court, access to counsel, notice o Wins for government: hearsay evidence allowed in, can keep detained until the conflict is over so the enemy cannot return to the battlefield - Justice Scalia and Steven's dissent says this should be dealt with as treason - Justice Souter and Ginsburg's dissent says the detention is completely illegal and he should be freed immediately

Rostker v. Goldberg (1981)

Congress can draft men without drafting women: - Upheld draft registration to only men (combat ready) because women were excluded from combat by statute, therefore men and women were not similarly situation therefore no violation of equal protection - Pointless to make women register if they can never even participate in combat - White's dissent: no law that prohibit women serving in other military positions and those

Commerce Clause (Article 1, Section 8)

Congress can regulate trade between nations, between states, and among Indian tribes. • From founding until Great Depression - very narrow commerce clause • From Great Depression until 1995 - very expansive commerce clause o Wickard: Substantial affects test o Atlanta Motel, Katzenbach • From 1995/2000 on - court citing to the two radically different reads of CC ^ o Lopez: Congress getting lazy in legislative drafting, gun in school zone is outside of CC power (Narrow) o Morrison: VAWA outside CC power (Narrow) o Raich: back to expansive CC and court rediscovers Wickard, national market for weed that can be regulated o NY: federal government cannot commandeer state legislature o Printz: feds cannot commandeer state police to enforce feds laws • CC authorizes congressional actions, but also limits state and local regulations through dormant CC

Supremacy and Preemption

Congress has Commerce Clause power, which they use to pass certain legislation since they do not have a generalized police power that can be used to regulate. Preemption when there is a conflict between federal and state law and the federal law is constitutional Express preemption: Congress says so in a law that this law preempts everything else Conflict preemption (Implied): conflict between federal and state law, federal law wins Field preemption (implied): Congress occupies the entire field of regulation, therefore no room for states to make any laws about the topic

Procedural Due Process

Constitutional requirement that governments proceed by proper methods; limits how government may exercise power: Procedural: right to trial, right to jury- things the government owes you before they can lawfully take away one of your rights.

Citizens United (non-profit corp) v. FEC

Corps can buy unlimited political ads: - Corporations can spend their money on political ads for independent expenditures and electioneering communications - FEC is allowed to require disclosure of donors - disclosure of money is politics is constitutional (8-1) (Survives Intermediate Scrutiny). - Governments argument of banning political speech for corperations to prevent corruption is rejected because no facts - Scalia's concurrence: modern corporations are nothing like old times and we cannot say framers wanted to remove 1st rights from corporations - Steven's Dissent: corporate spending can skew democratic process by giving money to candidates who support the corporation. Corporations should get less political speech protection than individuals -Corporations allowed to use independent expenditures and communicate before.

Lochner v. New York (1905)

Declared unconstitutional a New York act limiting the working hours of bakers due to a denial of the 14th Amendment rights: freedom to contract as substantive due process right - HUGE mistake by the courts Know holding for exam. - Freedom to contract was a right protected by due process (right to contract for labor), therefore NY law controlling bakers hours is invalidated because it abridges baker's liberty to contract and therefore violates due process - This is not a valid exercise of the states police power, because not about baking bread is immoral that requires the state to intervene and limit contracting - Harlan's dissent: Statute was to protect well-being of bakers (bad working conditions, therefore proper use of police power). This is a way the courts can check the state legislature and make sure the laws are not discriminatory or taking away citizens' rights - Holmes's dissent: Constitution was not meant to embody an economic theory, cannot add lasseiz faire economics into constitution, states interfere with freedom to contract all the time (religious and usury laws). Criticizes the judges for a majority based merely on their opinion. Judges must interpret the law. **This becomes the law after Lochner era! • Lochner era was the time between Lochner and West Coast Hotel • Court knocks out labor law and wage laws - criticized as a major overstep by the court!!! • Great Depression puts a lot of pressure on Lochner ruling o Expansive freedom to contract in Lochner limited freedom to contract in West Coast

Regents of Cali v Bakke (1978)

Diversity in class is compelling state interest: - Set aside rule was a violation of equal protection, colleges can use race as a factor to benefit minorities - No majority opinion (4-1-4 decision): Powell (1) becomes the law: diversity within classroom is compelling state interest (from Harvard Amicus), Powell agrees with no quotas. - 5 justices order Bakke's admission to med school, 5 justices agree on no quotas

McCulloch v. Maryland

Elastic clause start (N&P) creates US bank: - Congress did have the power to create the bank of the US - not an enumerated power (Art I Sec 8), but falls under necessary and proper clause (elastic clause because it expands the power of Congress) - Not constitutional for the state to tax the bank of the US because taxing the government destroys the entire purpose of the government taxing the people, and the Constitution is supreme law of the land and controls state constitutions - Supremacy clause: state constitution cannot control laws enacted under federal constitution -State of Maryland has interfered with one of congress' implied powers. States cannot interfere with the federal government when using the necessary and proper clause. Congress can create the bank, and Maryland is not allowed to tax the bank out of existence.

Marbury v. Madison

Established Judicial Review (Supreme Court has the final say in the law): - Madison won, Marbury has right to receive commission and sue in court, but Supreme Court does not have authority to order delivery of commissions because not in original jdx of the Court outline in Article III - Where the Constitution, as interpreted by the Court, conflicts with laws enacted by Congress, the Court may declare the law unconstitutional and invalid - Created the authority for judicial review of executive actions and legislative acts power to strike down laws and say what the constitution means - This is an unelected branch trumping an elected branch, but puts a check on legislative body because the judicial branch is insulated from politics -Nothing can be more clear that their acts can be reviewable. Court indicates that some things are left to the political branches.

Printz v. US (1997)

Federal Gov't has no authority to coerce states to force background checks for gun owners. - Congress cannot compel state officials to participate in administrative federal programs (background checks on perspective gun purchasers) - Constitution specifically created dual sovereignty, therefore Congress compelling state officials violates status of state as separate entity - Dissent: nowhere in 10th does it grant state ability to ignore command from Congress that was made under their enumerated powers

South Dakota v. Dole

Federal government allowed to use spending power to influence state policy for the public welfare (drinking age went up in the states in order to get federal funding): - The statute requiring the state to have 21 year old drinking age, or the government would withhold % of highway funds is a constitutional exercise of Congressional spending power - just because the condition attached to the money achieved a Congressional objective, does not make it unconstitutional or coercive. - The states did not have to take the money offered if they didn't like the condition attached, the % of funds that would be taken away was very small. The states were not forced to accept, they voluntarily did - Congress wanted all states drinking age to be 21, used spending power to incentivize by highway funds with this condition attached appropriate use of spending power - Limitations of Congressional Spending Power • Must be in pursuit of general welfare, Congress can put a condition of funds but must do so unambiguously, Conditions on funds are illegitimate if they are unrelated to the federal interest

Texas v. Johnson (1989)

Flag-burning is symbolic speech with a political purpose and is protected by 1st Amendment: - Texas statute criminalizing flag burning as political protest is violation of first amendment and unconstitutional - Burning flag is protected expression under 1st because his actions were distinctively political in nature therefore fell into expressive conduct that allows 1st amendment protection - Content based regulation on speech which is fully unconstitutional - could burn the flag at end of its life - Rehnquist's dissent: flag is so highly respected, 1st should not allow burning - Steven's dissent: flag is so unique, allowing burning does not protect freedom of expression

Griswold v. Connecticut (1965)

Found a "right to privacy" in the Constitution that would ban any state law against selling contraceptives: - Statute fining those who used contraceptives is unconstitutional because it intrudes on right to marital privacy under 14th - Douglas: emanation and penumbras of the bill of rights - has implied many freedoms which created fundamental zones of privacy guaranteed by constitution • 1,3,4,5,6 amendments create core and emanations of those create the right to privacy. - Goldberg: Just because privacy is not mentioned in constitution, does not mean we do not have it, instead it is an unenumerated right based off 9th amendment - Harlan: unconstitutional based solely off 14th, do not even need the 9th - White: Statute is to prohibit promiscuous sex but banning contraceptives for married couples does not help this - Black's dissent: constitution only protect privacy at certain times. The use of 9th and 14th is broad and unbounded use of judicial authority that are used to strike down laws they do not agree with - Stewart's dissent: law may be unwise, but not unconstitutional. Use democratic process to elect people to repeal these laws. Not appropriate for the judiciary to be constitutionalizing their views on contraceptives

Merrill v. Lynch

Gag order lifted - Government failed to give a basis that link between disclosure and risk of harm was substantial (info as already available to public anyways)- gag order lifted - Overly broad nondisclosure requirement that government could not justify -> Court decided government failed to show a good reason, instead of ruling on 1st amendment issue (avoidance canon).

Fugitive Slave Act of 1850

Gave new powers to federal officers to override local law enforcement to deputize and enforce the return of slaves: • Anyone who helped a runaway slave was penalized, denied slaves a right to jury trial, slaves can testify but statements not admitted into evidence (big impact on free blacks in north because they could not give evidence they were actually free) • Preempted northern states law that freed slaves, and the Act was constitutional because 13th amendment which abolished slavery had not been passed yet

Craig v. Boren (1976)

Gender discrimination can only be justified if it serves "important governmental objectives" and be "substantially related to those objectives": -Establishes Intermediate Scrutiny applies to gender - Different treatment of men and women of a certain age violates equal protection because the stats are not enough to justify the states broad categorical rule prohibiting sale to male, but not females of same age. - Law is not substantially related to achieving government interest because no justification for the law and no equal protection for males between 18 and 20 - Dissent: should apply rational basis

US v. Morrison

Gender motivated crimes are not an economic activity, therefore no CC regulation: - Congress did not have authority to pass Violence Against Women Act that gave a federal civil remedy for gender motivated violence - Gender motivated crimes are in no way economic activity, and Congress cannot regulate noneconomic, violent criminal conduct based solely on conduct's aggregate effect on interstate commerce (fails Lopez #3 because you can only aggregate claims that are economic) - Congress cannot regulate crimes like this, because no police power. That is given to the states - Dissent: Congress collected tons of data and made conclusion gender based violence does have a substantial affect -The Original Violence Against Women Act provided a Federal Civil Remedy for victims of gender motivated violence.

Whole Woman's Health v. Hellerstedt

Government regulation on abortions: - Admitting privileges and surgical center requirements by the state do not confer any health benefits and create an undue burden on women seeking abortions, therefore violates interpretation of Casey - No benefits to women, just made it harder to get an abortion in the state of Texas - Dissent: Court rewrites the undue burden test in Casey, could have been severed

Horizantal Federalism vs. Vertical Federalism

Horizantal Federalism vs. Vertical Federalism: Power between states vs. Power between states and federal government.

Buck v. Bell (1927)

In this case, the Supreme Court upheld the Constitutionality of forced sterilization laws such as the 1907 Indiana law authorizing doctors to sterilize insane and "feeble-minded" inmates in mental institutions so that they would not pass on their "defective" genes to children. The decision was largely seen as an endorsement of eugenics—the attempt to improve the human race by eliminating "defectives" from the gene pool. -Is the right to reproduce a fundamental liberty? - No. The right to reproduce is not a fundamental liberty. Substantive due process affords fundamental rights not explicitly mentioned in the Bill of Rights or the Fourteenth Amendment. However, any such unenumerated rights must be fundamental liberties to be protected under a claim of substantive due process. -In this case, the right to reproduce as a mentally ill person is not a fundamental liberty. Accordingly, Virginia's state law permitting involuntary sterilization of a mentally ill person does not violate the person's substantive due process rights.

Korematsu v. United States (1944)

Internment of Japanese-Americans during WWII does not violate 14th Amendment Equal Protection Clause (gets strict scrutiny but national security is a good enough reason to justify the racial discrimination): - President and Congress did not go beyond their power when interning Japanese American citizen because it was justified during time of war and legit need to prevent espionage and sabotage (military necessity) - Dissent: no evidence of immediate threat, just assuming all Japanese are dangerous, deprives citizens of due process by allowing this without judicial process - Exception where strict scrutiny is applied, but the law is actually upheld

Loving v. Virginia, 1967 (9-0 decision)

Invalidated state laws prohibiting interracial marriage: - Statute preventing interracial marriage was a violation of due process and equal protection of 14th - The right to marriage is a fundamental right protected by "liberty" clause of due process, and state cannot use race to limit marriage because that is a violation of equal protection - The equal application of the law to blacks and whites the same does not remove it from 14th, the state cannot show any non-racial purpose for the statute -Court uses strict scruitiny test, which finds that there is no compelling state interest in arguing that races could not marry.

Fisher v. University of Texas (2013)

Issue: Fisher is a white female denied admission and claims that it is based on race Decision: Sided with UT on the basis of racial diversity in that Fisher was not an exceptional student: -Top 10% gets admission into school. But that would fill up the freshman class, so nobody allowed outside of Top 10% (then 1-6). -Petitioner didn't make the cut, claimed she didn't get in because she was Caucasian. -Application must be narrowly tailored. -Court defered to the University's policy. - Survives strict scrutiny because there was no race neutral alternative which means this police was the least restrictive means (#3): top ten percent only policy did not achieve the diversity the school wanted, this because no race neutral alternative to getting the diversity they wanted, so the court allows Texas to use race as a sub factor -Remanded to lower court because they failed to use Strict Scrutiny - **Unusual 4-3 opinion because Scalia was dead and Kagan recused himself.

United Building & Construction Trade Council of Camden v. Council of Camden

Municipality same as state citizenship : - City derives authority from the state, therefore cannot have a city ordinance that discriminates on the basis of municipality (municipality can fall within the category of state citizenship) - Non NJ residents wouldn't enjoy same privileges as NJ residents, therefore P&I issue - Out of state resident's interest in employment in another state is fundamental to promotion of interstate harmony, and because they are being discriminated against, this is a P&I issue

Campbell v. Clinton

No congressional standing to sue the President (sued Clinton over war powers in Bosnia). - Congressmen arguing their vote to not declare war had been nullified by the president's actions, but President was not acting under war powers act and had not actually declared war - Members of Congress cannot bring suit against the president for ordering military action without Congressional authorization - no standing to sue because the Congressmen have self-help (they could have stopped providing funds and essentially stopped the war that they are objecting to) - The question of whether or not the country is actually at war or not is a nonjusticiable questions

Williams-Yulee v. Florida Bar (2015)

No self-solicitation for campaign money judges (narrowly tailored): - Canon restricting self-solicitation of campaign money by judges upheld and does not violate 1st amendment because narrowly tailored to compelling state interest of keeping integrity of judiciary. Because of the specific reason carried out, 1st amendment can be tapered. - Applied strict scrutiny which needs the law to be narrowly tailored to achieve a compelling state interest- public's confidence in judiciary - Concurrence: political jurisprudence should not apply to judicial elections, much different than political elections - Scalia and Thomas's dissent: restrict fully protected speech based on content which is clear violation of 1st. No evidence to show this will improve confidence in judiciary - Kennedy's dissent: elections are foundation of freedom and require free speech to educate - Alito's dissent: law is not narrowly tailored to meet Bar's compelling interest, applies to all solicitations

Youngstown Sheet v. Sawyer

President is not a lawmaker : - Not within inherent presidential power to direct Secretary of Commerce to take possession and operate most of US steel mills during the Korean War - Denies blanket presidential authority to seize private property during wartimes, Congress already refused to take this drastic of measures to prevent work stoppage and Article II did not give president this power—Congress has power to make laws, president has power to enforce laws - Justice Jackson's three categories of presidential authority and Congress Working under express of implied authorization of Congress- President has most authority, given deference When Congress is silent on issue, President is in Twilight zone with his authority- Court might defer to president, might not Working against express or implied will of Congress- President has least authority *this case*- least deference

Unites States v. Progressive

Prior restraint (Publishing H-Bomb Case): - Injunction from a federal judge- prior restraint on publication. Publication of H bomb info is equivalent to publishing troop movements (Near) and therefore falls within the narrow exception to the rule against prior restraint - Also, publication could cause direct, immediate, grace and irreparable harm to US and therefore should be restrained (NYT) - National security overrides Progressive's right to freedom of press - Expands executive power because Department of Energy succeeded in stopping publication, and expands judicial power because this was a rare instance the court stopped press from publishing

Skinner v. Oklahoma (1942)

Procreation is an important human right. Forced sterilization is not allowed under the 14th Amendment: - Sterilization based on habitual criminal acts is unconstitutional because it violates substanitive equal protection right to marry and procreate. - Clear equal protection issue because it discriminate against certain types of criminals and creates an unequal class inside criminals, as well as between citizens and criminals - Using equal protection to get at the fundamental right to procreate, not through due process -Concurring opinion by Stone: Not equal protection issue, but rather a due process issue.

DC v. Heller

Right to keep a firearm in home for self defense For Heller, the DC code that required guns be unloaded, disassembled and registered violated his 2nd amendment right - Prefatory clause (militia) does not limit operative clause (guaranteed right to possess and carry weapons) for all people - Scalia recognized limits to 2nd amendment rights felons, mentally ill, prohibiting firearms is schools and government buildings, government conditions and qualifications attached to sale of guns, prohibiting dangerous and unusual weapons - DC is a federal entity so this only applied to federal action, the states can protect more - Dissent: Stevens said nowhere does 2nd amendment state the right to use guns for self-defense, and 2nd does not create unlimited right to possess. Breyer said 2nd only protects militia, not self-defense.

In Dred Scott v. Sandford (1857)

Ruled that African Americans cannot be U.S. citizens and that Congress has no power to forbid slavery in U.S. territories: - A slave is not a citizen and is not protected by constitution, not intended to be included in "citizen" as written - Scott is not a citizen of Missouri therefore not entitled to sue in the court: not a citizen of US or state, no diversity jdx - No slave can be free upon entering a free state because slave is property, and constitution protects property

Slaughterhouse Cases (1873)

Ruled that the Fourteenth Amendment safeguarded a person's rights only at a federal level, not at a state level. - Privileges and immunities protected only "rights of national citizens" - essentially let states expand Jim Crow laws - Gets rid of P&I at federal level and substantive due process essentially replaces It

Plessy v. Ferguson : De Jure Segregation

Separate but equal: - Separate but equal state law for railway does not violate equal protection because one is not inferior to the other, and each class gets equal treatment - Blacks feeling of inferiority is self- imposed in your head -Harlan's Dissent: constitution is color-blind and does not tolerate class among citizens. Predicts the case will be overturned just like Dred Scott was. Obvious reason for the law was to keep blacks away from whites .

South Central Timber v. Commissioner

State as a regulator is not within market participant exception: - Even though the state is a market participant here, therefore can impose burden on commerce, they cannot go further than that and put conditions on the sell that has a substantial regulatory effect outside the market - Conditions on sale of timber is the state indirectly regulating conditions relating to the timber processing market as a result of their involvement in raw timber market -Alaska loses the protection because of the regulation enforcing timber processing in Alaska. - Dormant CC still applies, because the additional regulation took Alaska out of market participant exception - Dissent: line drawn between state as market participant and market regulator is artificial.

Obergefell v. Hodges

States obligated to recognize same-sex marriage from other states: - Violation of 14th to deny the right to marry or to no recognize a gay marriage that was lawfully performed in another state -State cannot maintain ban - Full faith and credit: states must recognize marriages from other states - Same sex couples have constitutional right to marry protected by 14th, because Court previously said marriage is a fundamental right - Robert's Dissent: matter for legislature to decide, instead of court substituting - Scalia's Dissent: undemocratic for justices to make this decision - Thomas's Dissent: no actual liberties were deprived here, just governmental benefits

Gratz v. Bollinger (2003)

Struck down use of "bonus points" for race in undergrad admissions at University of Michigan: - Admission policy of 20 bonus points for minorities fails strict scrutiny and violate equal protection because it essentially guarantees admissions to minorities which elevates race to a decisive factor in admission decision - Not narrowly tailored enough to achieve the purpose of creating diverse student body because no individualized - O'Connor's concurrence: racial classification to promote equality is no different than one that discriminates. University is trying to combat history of racial inequality, no evidence policy was designed to limit enrollment of any particular racial group

Wickard v. Filburn (1942)

Substantial affects test: Federal Gov't can regulate issues that could affect interstate trade: - Farmers production of wheat, though completely local, can still be reached by Congress if It exerts substantial economic effect on interstate commerce - The aggregation of homegrown wheat does have a substantial effect on interstate commerce, therefore Congress can regulate - Substantial effect on interstate commerce = ability to be regulated by Congress through CC

Due Process

Substantive: certain rights the government can never take away from you: • Incorporation: 14th by terms only applies to 50 states, and federal government is only covered by the 5th amendment, but court has found same rights as applies to both state and federal by incorporating the bill of rights and applying them to states through 14th • Reverse incorporation: 14th applied to federal government through 5th

New York Times v. US (Pentagon Papers)

Supreme Court case that rejected the government's attempt to prevent publication of documents that detailed the U.S.' involvement in the Vietnam war: - Government did not overcome the heavy burden necessary to justify prior restraint, therefore Pentagon papers were allowed to be published - Disclosure of the info will not create any immediate, direct or irreparable damage to the nation, will only cause some damage to public interest, which does not justify prior restraint - Dissent: no way the court can say the document does not have anything that could actually be a threat to national security because the document is so large and litigation was too quick

Roe v. Wade

The 1973 Supreme Court decision holding that a state ban on all abortions was unconstitutional. The decision forbade state control over abortions during the first trimester of pregnancy, permitted states to limit abortions to protect the mother's health in the second trimester, and permitted states to protect the fetus during the third trimester: -Is abortion a fundamental right covered by the Substanative Due process right (liberty) in the 14th Amendment - Even though Roe had her baby, this case is not moot because it is capable of repetition yet would evade review - Abortion is a fundamental right covered by "liberty" of 14th, but can still be subject to state regulation - Expands right to privacy in Griswold to include abortions, but the privacy is not absolute and the state can still regulate when they have a compelling interest greater than woman's right to privacy (first trimester) - Fetus does not have 14th rights until live birth - Women are free to decide about abortion up until "compelling point" (end of first trimester) free from regulation, after first trimester, state can regulate how they want - Dissent: an abortion by doctor is not private, so not a right to privacy at issue here. Justices imposing their personal opinion on the issue like they do in Lochner

New York v. US

The Court held that the Low-Level Radioactive Waste Policy Amendment Act, which required every state to regulate their waste, was unconstitutional under the 10th Amendment: Federal government cannot force state legislature to implement federal policy - Congress does not have the power to compel states to enact and administer federal regulatory programs, federal can only encourage states to provide waste disposals - Congress can urge state to adopt a program consistent with federal interests in two ways: • Condition attached to federal funds • States can chose to follow federal regulations for certain private activities, or create their own laws - Take title provision crossed the line from encouragement to coercion - both an instruction to take title to waste, and direct order to regulate. Both alone go beyond Congress's authority - White's Con/Dissent: act is constitutional under CC, and does not violate 10th amendment because this act was a compromise between the states, that they tried to solve and went to Congress for help - Steven's dissent: federal government already regulated certain state actions, therefore Congress should be able to regulate waste disposal the same way

Railway Express Agency v. New York

The court held the state law, which allowed advertising on business vehicles but prohibited advertising on all other vehicles, was constitutional because the classification was rationally related to the legitimate state interest of public safety. Equal protection does not require that a classification eliminate all evil of the same type. - It is okay that the statute is underinclusive and this does not violate equal protection (only bans strictly advertising vehicles, but allows ads on other trucks) - Legislature can decide to just regulate one specific type of ad at a time with a rational reason. - Concurrence: statutes are more often struck down based on due process, rather than equal protection. Better to use equal protection because states can still change law and make it apply to whole class, whereas ruling on substantive due process grounds makes it so that the state can no longer legislate in that area.

Martin v. Hunter's Lessee

Translates Marbury to apply to state court decisions too: - Virginia refused to carry out judgement that Martin was entitled to the land Supreme Court rejected the claim that Virginia and the national government were equal sovereigns - Supremacy clause gives federal courts the power to review state court decisions that interpret federal law, constitution, and federal treaties Supreme court can override state courts to ensure a uniform system of law. Justice Story said federal interpretations of federal law supersede state interpretations - BUT Supreme Court will almost never grant certiorari to review state court questions of state law, they will let state supreme court interpret their state constitution (unless interpreting a federal treaty like we see here).

Arizona v. US (2012)

US Supreme Court case that involved an act allowing Arizona police force to ask anyone suspected of being an illegal immigrant to show their papers. The supreme court upheld it 5:3: - Federal immigration law preempts the state immigration law and renders it invalid because federal law makes up entire field of immigration law (field preemption, supremacy clause) - Unlawful for an immigrant to be in US without authorization, but it is not a criminal offense, there removal of an alien is a civil matter - Additional state regulations are not allowed, because federal government occupies the entire field of alien registration - Conflict Preemption because states cannot create their own immigration policy. Foreign relations must have one voice - Dissent: preemption infringes on state power to exclude which is core of state sovereignty. Arizona should be able to have its own more rigorous enforcement policy as long as it does not conflict with the federal law.

Trop v. Dulles (1958)

Unconstitutional for the government to revoke the citizenship of a U.S. citizen as a punishment. -Taking away citizenship as a punishment for a crime is cruel and unusual penalty and violates 8th amendment - Military does not have power to take away citizenship of a deserter if dishonorably discharged - Justice Warren said "Citizenship is not a license that expires upon misbehavior", can only be lost by voluntarily renouncing it - This type of punishment violates evolving standards of decency because it creates a stateless person, which is more cruel than death penalty

Constitutional Issues raised post 9/11 with detainees

Under what authority are we keeping these detainees? - Authorization for Use of Military Force Do they have the right of habeas corpus? - Yes (Boumediene) What sort of due process rights are they entitled? - 8 of 9 in Hamdi agreed that the Executive Branch does not have power to hold a US citizen indefinitely without basic due process protections enforceable through judicial review. Things like heresy are allowed in Does the answer to any of those questions, depend on whether the detainee was a US citizen or not? - Sometimes, parts of Hamdi seem to turn on his US citizenship. But some parts do not dwell on his status as US citizen and turn more on the problem of an enemy combatant and an enemy returning to the battle field potentially. Boumediene is all about foreigners, but the Court still finds a right to Habeas for detainees at Guantanamo (all foreign detainees) Does it matter whether they were captured on US or foreign soil? - since he was picked up on the battlefield, it is important that he is kept detained until the battle is over so he cannot return to the battlefield Does it matter whether they are imprisoned on US soil or not? - 4001 was meant specifically to not allow a repeat of Japanese internment in WWII

Article V: Amending the Constitution

o 2/3 both House and Senate required to propose an amendments, ¾ of both houses and states to ratify an amendment

Article IV

o Section 1: Full Faith and Credit given by each state to every other state o Section 2: Privileges and Immunities (Comity clause)- prevents state from treating citizens of another state in a discriminatory manner

Article I: Legislative Branch

o Section 1: House of Representative o Section 2: Senate o Section 7: Approval/veto of bills House majority, senate majority, presidential approval **House and Senate have to pass identical bills before sending to President Any bill dealing with revenue or taxes has to start in the House (they control the purse) Any other type of bill can originate in either the House or Senate President veto: 10 days to sign or veto, once vetoed it is sent back to house it originated in and 2/3 of both houses can override a presidential veto. President does not have line item veto power o Section 8: Enumerated powers, Necessary and Proper clause, Commerce Clause IF Congress is not given the power, the 10th amendment reserves that power to the states o Section 9: Habeas Corpus

Article III: Judicial Branch

o Section 1: Supreme Court, and all Article III federally appointed judges o Section 2: Jdx- case or controversy

Article II: Executive Branch (President, VP, Cabinet, Administrative Agencies)

o Section 1: Vesting clause- Executive power vested in President o Section 2: Commander in chief clause- limits president (cannot declare war, only Congress can) o Section 3: State of the Union Address o Section 4: Impeachment- ultimate check on president's power House needs majority for articles of impeachment (Art I Sec 2) and then trial in Senate that requires a 2/3 vote (Art I Sec 3) Challenges to impeachment process are nonjusticiable political questions

Pre Civil War Constitution

• Article IV Section 2: a slave is still a slave in a different state, and must be returned to owner o Contemplates that there will be runaway slaves and runaway indentured servants, and if they do runaway, they must be returned • Article I Section 2: slaves are 3/5 a person o How the house will be apportioned among the states. States with bigger populations get more representation in Congress, and slave owning south has a lot of slaves, they want to count them, but not as full persons. (Great Compromise) • Article 1 Section 9: international slave trade legal until 1808, slave traders taxed $10 per imported slave • Article V: cannot amend constitution until after 1808. cannot take out the protection for the international slave trade o After 1808, the US did ban the importation of slaves, ending international slave trade o Slaves already in the US became a self-sustaining labor force o Even after it is outlawed in 1808, slave trade still continues through illegal smuggling and natural reproduction, which created a self-sustaining slave population until the civil war

Critiques of Brown vs. Board of Education

• Bell's interest convergence theory: understood as a Cold War decision and convergence of white and black's different interests to fight the Soviet Union. White people are okay with freedom as long as its white freedom. • Wechsler's toward neutral principles of con law: this was an unprincipled decision because courts liked the young black children as sympathetic people who were opposed to old mean white men. • Ely: this was principled, anti-subordination

Sources of Expansive Federal Power

• Elastic clause (N&P)- McCulloch • Commerce Clause • Spending Power: South Dakota v. Dole

House of Representatives

• Election every 2 years, closer to the people, more accountable, at least 25 years old • 435 members apportioned based on Census • Special election if Rep leaves in term, much easier to flip the House!

Senate

• Election every 6 years, re-election staggered in 2 year cycles, at least 30 years old • More protection from electoral accountability, insulated from democratic accountability which allows them to try to pass more unfavorable legislation • 100 Senators- 2 for every state • State law dictates if a senator leaves in term- either special election or governor picks interim senator

Is it in the constitution?

• Judicial review- no. But Article III section 2 gives judiciary cases they can hear • Separation of Powers- yes. Article I, II, III • Checks and Balances- yes. Article I, II, III • Separation of Church and State- yes. First amendment establishes freedom of religion • One man, one vote- no. Comes from case law in Reynold v. Sims (cannot deny vote because of race, gender, DC citizens can vote, no poll tax, 18 year olds. 15,19,23,24 amendments) • Electoral College- yes. Article II Section 1 speaks of "electors", but never the college itself. A statute established the "college of electors" • Right to Remain silent- no, Miranda case based on 5th amendment right against self- incrimination • Right to an abortion- no, Roe v. Wade based on the right to privacy as a basic human right and is protected by virtue of 9th amendment. Right to privacy as inherent in many of amendments of bill of rights • The right to marriage- no. Loving v. Virginia established fundamental right to marry • The right to a family- no. Moore v. City of East Cleveland constitution protects sanctity of family

Federalism

• Limited federal government - the relationship between federal government and states • Tenth Amendment: Any power not granted to federal government is vested in the state • States have police power, Congress does no • Police power = power of states to enact measures to preserve and protect the safety, health, welfare and morals of the community

Bodies of Judicial Interpretation

• Originalism- Scalia believed you needed to start with text of constitution and think about what framers intended by a piece of text in the constitution *Conservative* • Living interpretation- Brandice thought constitution was a living document and thinks constitution has to adapt to American society today. Gives court a wider latitude to interpret *Liberal* • Legal realists- Cardozo believed in the indeterminacy of law - law on the books are not very good predictors of legal disputes

When is Conduct Speech?

• US v. O'Brien: 1st does not protect you from prosecution for burning draft card even though it was communicative speech (regulation of non-communicative conduct) • Street v. New York: burning flag while giving speech is expressive and cannot be separated, therefore cannot convict. • Test to determine whether governmental regulation involving symbolic speech was justified o Was regulation unrelated to content? o Was regulation narrowly tailored to achieve government's interest?

Congressional War Powers

• We have not declared war since WWII • War Powers Resolution: requires president to notify Congress within 48 hours, and only keep troops there for 60 days • If President keeps troops abroad for more than 60 days, Congress has no judicial means to check the President's use of military force based on Campbell