Constitutional Law - KWF

Non-Formulaic Considerations for Arguing Non-Fundamental Liberty Interest should be a Fundamental Right:

(1) Both Plaintiff & Defendant argue their view of correct way to describe the liberty interest infringed by the law (2) Apply the history & tradition test (Palko) (3) Plaintiff will be sure to note that history & tradition test is a starting point not a stopping point/defendant will acknowledge this is accurate based on Lawrence v. Tx; Obergefell v. Hodges (4) Plaintiff & Defendant will make arguments asking Court to follow or distinguish its substantive DP precedent cases (i.e. Griswold; Moore; etc.) based on whether law infringes on decisional autonomy and/or spatial autonomy in ways similar to court's analysis in prior majority substantive DP cases (5) Plaintiff will argue the Court can rely on other considerations as Justice Kennedy did in Lawrence and Obergefell

Adkins v. Children's Hospital LOCHNER

- Facts: Washington, D.C. passed a law fixing minimum wages for women and children. - Issue: Does the D.C. law violate the DP Clause (of 5th Amendment)? - Holding: The law violates the Due Process Clause because it infringes on the freedom/right to enter contracts. Post-19th Amendment--now that women can vote, they are not as in need of protection as they were when Muller was decided. - Rule: A DC law setting a minimum wage for women violates the DP Clause.

How are judicial decisions enforced today?

1. Executive compliance If they said NO, not much they can do 2. SCOTUS has the power of the pen - interpret what the Constitution means 3. Judicial power is enforced and exists when SOCTUS is viewed as that type of authority - President must publicly support and comply - Independent willingness to comply

Constitutionality will NOT be presumed when:

*fewer members of current SC accept the premise of the Carolene Products footnote 4 theory behind modern EP* · Legislation within a specific prohibition of the constitution (BOR) · Legislation restricts political process · Prejudice against discrete and insular minorities - Today, fewer members of the current SC accept the premises of Carolene Products footnote 4 that said if a law puts a politically insular minority at disadvantage the court will use strict scrutiny - The focus went from classes of persons to classifications

(Regulation of) Procreation & Contraception Cases

- Buck v. Bell - Skinner v. Oklahoma - Griswold v. Connecticut

Allgeyer v. Louisiana Lochner Case

- Facts: A Louisiana law prohibited out of state insurance companies from operating in-state without a known place of business and an authorized agent in the state. - Issue: Does the Louisiana law violate the Due Process Clause of the 14th Amendment? - Holding: Yes. The "liberty" mentioned in the Due Process Clause includes a freedom/right to enter into all contracts (even w/ out-of-state insurance companies) which may be proper, necessary, and essential, and this law interferes with that right. - Rule: A law restricting the ability to enter a contract with out-of-state insurance companies violates the DP Clause of the 14th Amendment.

Nebbia v. New York

- Facts: New York passed law setting price controls on milk. - Issue: Does the New York law violate the Due Process Clause of the 14th Amendment? - Holding: No. ■ New standard: Is the law unreasonable or arbitrary? Does it have "relation" to the purpose? - Rule: ANY Law setting price controls on milk does not violate the DP Clause of the 14th Amendment.

Muller v. Oregon

- Facts: Oregon passed a law that limited women to working 10 hours a day in "any mechanical establishment." - Issue: Does the Oregon law violate the Due Process Clause of the 14th Amendment? - Holding: No. ■ End is "appropriate and legitimate" - women are weaker and need special protections. ● Contention supported by "Brandeis briefs." ■ Means has "a direct relation" to that end. KWF says: Rulings like this subjected the Court to same critiques that were made after certain Commerce Clause cases - the Court says the right is fundamental but sets it aside when it interferes with a policy they like.

Weaver v. Palmer Bros. Co **Lochner

- Facts: Pennsylvania consumer protection law banned comforters filled with filthy rags. - Holding: The law violates the Due Process Clause, because no evidence that this is actually a public health risk. - Rule: A bedcovers consumer protection law violates the DP Clause of the 14th Amendment. - Holmes dissent: The Court should not be second guessing policy makers on matters such as these.

Gov/State Action Exceptions

- Govt/state action doctrine US Constitution only limits govt power—EXCEPT: - Two situations in which non-government entity could successfully be sued for violating the Constitution (AKA 2 situations where private conduct must comply by Constitution): - (1) Public function exception: if a private entity performs a task traditionally, exclusively performed by the government—the Constitution applies to it.; ■ Application: Ask, how much is the entity here acting like the government? Are they acting like a company town? - (2) Entanglement exception: If the govt. affirmatively authorizes, facilitates, or encourages unconstitutional conduct—the Constitutional applies. - Ex: An organization that regulated high school athletes was non-government entity, but most of the employees were public school employees, government paid their salaries including pensions, they used government stationary. They were all entangled up!

Coppage v. Kansas Lochner era

- Holding: State law that facilitated union organizing struck down because it interfered with the right to contract for personal employment. - Rule: A state law facilitating union organizing is a violation of the DP Clause of the 14th Amendment.

Michael H. v. Gerald D

- Key takeaway: A plaintiff or defendant's success in a Substantive Due Process case largely depends on how broadly or narrowly the right at issue is defined. - Facts: California law provides that if a child is born to a woman living with her husband, he is presumed to be the father. The presumption can be rebutted under limited circumstances by the wife or husband. Michael is the biological father - Gerald is the mother's husband - and says he has a fundamental right to function as the child's/Victoria's father. - Issue: Does the Ca law violate the Due Process Clause of the 14th Amendment? - Holding: No. - Analysis: The court finds there is no fundamental right so it applies rational basis review. ■ What is the right at issue? The right of a natural father to assert parental rights over a child born into a woman's existing marriage of another man. ■ Is it a fundamental right? - Is it so rooted in the traditions and conscience of our people as to be ranked fundamental? (Palko) Pay attention to "the teachings of history" and "the basic values of our society." >>> No. No other states grant this right. And there's nothing about it in Scalia's favorite book, "Adulterine Bastardy," published 1836, or otherwise in our tradition. ■ Strict scrutiny or rational basis? - Rational basis, since it's not a fundamental right. And it skips right through. Footnote 6: Here's how Courts could define the scope of the right at issue: 1. The current rule is that the judge just gets to decide which is more persuasive based on the facts. 2. But Scalia proposes that the interest should always be described at the most narrow/specific level possible - minimizing judicial discretion as much as possible. 3. That means in Loving, the Court would have asked whether there was traditional acceptance of miscegenation, instead of marriage in general. This would have yielded a much different result. 4. **Not current Court precedent, but could be where the precedent is heading: issue should be described in the most specific way possible Dissent: the CA law did infringe a fundamental right. Using the tradition & history test is a starting point but not the whole test for finding if a right is fundamental. [can use this to argue #4 on list for arguing a non-fundamental right is fundamental]

Marriage Regulations cases

- Loving v. Virginia - Zablocki v. Redhail - Michael H. v. Gerald D

Stevens Dissent DC v. Heller

- Method of interpretation: pluralist/purposive (non-originalist) - Whether the Second Amendment protects the right to possess / use guns for nonmilitary purposes like hunting and personal self defense? - Sources of interpretation: (pluralist) 1. Textualism: Look to actual text: "A well-regulated militia, being necessary to the security of a free state" * IDs preservation of militia as 2nd Amendment's purpose * Explains that militia is necessary for freedom * Recognizes that militia must be well regulated - "Bear arms" is derived from a Latin idiom meaning "to bear war equipment" - "Keep" according to contemporaneous militia laws just meant keeping your militia weapons in your house. 2. Originalism (specific-intent): Framers' specific intent - No indication that the Framers intended to enshrine the common-law right of self-defense 3. Precedential - Miller's holding was that it was OK to regulate possession that has no reasonable relationship to the preservation of the militia ● Breyer dissent- Doctrinal analysis ■ Suggests adopting a standard of review a la intermediate scrutiny for whether gun regulations are Constitutional under the 2nd Amendment

Methods of Constitutional Interpretation

- Non-Originalism Pluralist (current method adopted by the majority) * not limited in the sources of meaning - Originalism: * Limited in sources of meaning by definition * Only way the Constitution's meaning can change is via Amendment * THREE STYLES 1.Specific Intent - infer based on what those who wrote it intended it to mean 2. Modified / Abstract Understanding: Critiques specific intent because it doesn't let you go anywhere — Framers definitely wouldn't have thought a woman could be president. So we take a more general view of what these guys meant, but not too specific. 3. Original Meaning and Understanding: Text as a source of meaning; Rejects specific intent of framers look at historians arc dictionaries at that time, legal scholars of the time, state constitutions at the time (DC v. Heller)

Political Question Doctrine

- Political questions are certain "topics" that are off-limits for the judiciary—does the substantive claim present a political question/issue relating to the political branches (legislative and executive) that makes the claim unreviewable? What topics are off limits? ■ Foreign policy, national security, war power ■ Would Court want to declare the Vietnam War unconstitutional? No.

Post Lochner 1937 Substantive Due Process

- Post Lochner-era: laws regulating the economy and "ordinary" legislation do not infringe on fundamental right (so apply rational basis)

Modern black letter rule Sub. Due Process

- Substantive due process limits the policy choices government can make, specifically with regard to fundamental liberty interests. - Standards of review: Govt. needs sufficiently adequate reason for infringing on liberty. If non-fundamental liberty interest : rational basis review - End is permissible as long as Court can conceive any goal not prohibited by the Constitution. - Means are permissible as long as there is a rational relationship to that purpose. If fundamental liberty interest : strict scrutiny - End must be "compelling" goal not prohibited by the Constitution - Means are only permissible as long as they are necessary/the least burdensome means of achieving compelling goal. Procedural due process: Procedures the government must undertake when taking away your life, liberty, or property. - Notice and an opportunity to be heard--hearing.

Origin and scope of judicial review

- The Constitution is silent on the subject, but the practice was known to the Framers, who had observed it elsewhere. - The Constitution gives states a general police power, so they generally do not need to prove action they have taken is something they have the right to do. - One-part inquiry: Does what the state did violate civil rights and civil liberties? But when the federal government acts, the action may be challenged for constitutionality. - Two-part inquiry: ■ Did the Constitution give to the government (President, Congress) the right to do what it did? ■ If so, does what the government did violate civil rights and civil liberties?

Griswold Harlan Concurrence

- This is a question of whether this statute infringes the DP Clause of the 14th Amendment bc the enactment violates basic values implicit in the concept of ordered liberty - Reproductive autonomy is fundamental because it is crucial to the concept of ordered liberty.(Palko) - Judicial self-restraint is key. * Self-restraint is the only thing keeping judges from deciding what constitutes a fundamental right based on their own policy choices. * Use history, contemporary values, and doctrines of federalism and separation of powers as their guide.

DC v. Heller Holding and Rationale

-The court held that the govt can't prevent you from having a gun for recreational and self-defense purposes, but neither of those are in the 2nd amendment—so the decision doesn't solely rely on the words of the constitution Scalia judicial philosophy: Constitutional rights were enshrined with the scope they were thought to have when the people adopted them, and judges cannot change or diminish that scope. It does not matter if there is an epidemic of gun violence - the Court's job is to follow the Constitution, and nothing more. - Originalism : meaning is fixed to the time of the Constitution - But also says MEANING CAN CHANGE, just need 2/3 of states to amend the Constitution Prefatory and Operative Clause OPERATIVE: - Holder of the right = "the people" - Substance of the right = "have weapons" - Consults 1773 dictionary and state constitutions - "arms" means any weapon not just those for military - "keep arms" & "bear arms" mean have weapons not just for military use - Operative clause means: The 2nd Amendment guarantee[s] the individual right to possess and carry weapons in case of confrontation; individual right to bear arms. - A pre-existing right, but not an unlimited one. (The Constitution confers no absolute rights!- IE: can regulate mentally ill, highly unusual weapons, etc.) PREFATORY: - Does not limit or expand scope of operative clause, only announces intent. - "Well-regulated militia" = all able-bodied, trained men, not just members of a government-organized militia - "Security of a free state" = security of a free government—broader than only to protect state govt power (1) repel invasions and suppress insurrections; (2) no need for large standing federal army unnecessary; (3) if men are trained in arms and organized they can better resist tyranny Relationship between clauses: - Tyrants had eliminated militias by taking away the right to bear arms - that was the situation that prompted the Amendment. - But to protect against tyrants wasn't the only reason Americans valued the right. It was simply their concern that the new government might become tyrannical, so they introduced it this way. - Court says people back then were even more stoked about hunting and self-defense.; Originalism is supposed to be constraining, but Scalia doesn't really seem constrained here. He's going far beyond the text. So what is the purpose of the 2nd Amendment ■ Majority : Limit government power to regulation non-military use of OR ■ Minority : Prohibit newly created federal government from confiscating weapons of state militias in the 1700s? Precedent Analysis: ■ United States v. Miller, decided in 1939, held that the 2nd Amendment does not protect the right to own a double-barrel sawed-off shotgun. ■ It did not hold that you have to be in a militia for that right to be protected. ■ Majority says case stands only for the proposition that government has the power to ban certain types of weapons ■ Right secured by the second Amendment is not unlimited

Five Justiciability Doctrines

1. Prohibition against advisory opinions 2. Standing (highly discretionary); 5 requirements: (1) Injury: There must be a concrete, particularized, and legally cognizable harm to the plaintiff (2) Causation: Harm must be traceable to actions by the defendant. (3) Redressability: The relief sought must alleviate plaintiff's injury and must be tied to the remedy sought (4) Prohibition against third-party standing: Party has standing only to assert own rights (5) Prohibition against generalized grievances: No "citizen" or "taxpayer" standing 3. Ripeness: Plaintiff may not present a premature case or controversy, often a consideration of when Court may rule on the constitutionality of a law before it is enforced against the plaintiff. 4. Mootness - Is it too late? Plaintiff must present an on-going injury at all stages of litigation (exceptions for voluntary cessation and class actions) 5. Political Question Doctrine

Illicit Equal Protection Classifications:

1. Race (ethnicity, & national origin) : SUSPECT 2. Gender: QUASI SUSPECT 3. Alienage (Citizenship) : SUSPECT 4. Legitimacy (non-marital children) : QUASI SUSPECT

Standards of Review

1. Strict scrutiny- tight fit between the means and ends regulated (highest SOR).End (purpose)=must be a compelling purpose (not prohibited by Constitution)means (law) = narrowly tailored to achieve that purpose/interest (only permissible if necessary (least burdensome) way to achieve the purpose) 2. Intermediate scrutiny test - Somewhere in between.Ends = important govt interestMeans = means substantially related to achieving that interest 3. Rational basis test - loose fit between the means and ends regulated (lowest SOR).End (purpose) = legitimate govt interest permissible as long as court can conceive ANY goal not prohibited by ConstitutionMeans (law) = permissible as long as has a rational relationship to the purposeDoes the law further a permissible purpose? And is there any rational relationship b/w the means and the purpose?

Marbury Holdings

1. The S.C has power to review federal law - The Court has the authority to review executive actions, such as Jefferson's revocation of Marbury's appointment. - The Court has the authority to review legislative action, such as the Judiciary Act of 1789. - But, the Court did not strike down another federal law until Dred Scott v. Sanford in 1857. 2. ○ Congress cannot expand the original jurisdiction of the Supreme Court, laid out in Article III. Reasoning of Marshall: - Because Article III gives power to issues arising under the Constitution : applies to Constitution and federal law in conflict --> Power extends to all cases including those which the laws conflict with the Constitution - By giving examples of ex post facto laws, there is an implication of needing someone to review those types of laws if they are attempted to be enforced - IF DISCRENTIONARY, ONLY A POLITICAL PROCESS CAN CHECK IT Rule: if a federal law violates the constitution it cannot be the law of the land (bc judicial review)

Three approaches to the law:

1. Theory: A general method and/or set of ideas for approaching a legal problem. For example originalism is a THEORY of interpretation. Ex: How do we determine the meaning of ambiguous parts of the Constitution? - Original intent? - Role of precedent? - Ex: How best to balance the powers of our federal government? 2. Doctrine: Specific rules, tests, standards that guide decisions in particular legal cases. - Ex: The way that courts apply strict scrutiny to racial classification is settled constitutional law doctrine. - Important to know which doctrines are settled and which are unsettled! 3. Political Ideology: AKA policy preferences. Positions and beliefs about government structure and policies. ○ Ex: Identifying as a liberal or a democrat; preferring laws that limit access to guns. ○ We don't do this in law school. Stay out of here!

ASSESSING WHETHER A LAW VIOLATES DP CLAUSE OF 14TH AM

1. What is the right asserted? ** How should the right be described? - Carefully. Highly discretionary. * Broad descriptions: Griswold; Loving; Zablocki * Narrow descriptions: Bowers; Michael H.; Glucksberg - Dissenting view: Always narrowly; see Michael H., footnote 6. 2. Is it a fundamental right? First: Has the Court already decided it is a fundamental right? * Right to marry - Zablocki; Obergefell * Reproductive autonomy/right to contraception - Griswold; Eisenstadt * Right to define family; live with family members - Moore * Right to interracial marriage - Loving * Right to choose children's schools/control student's education - Meyer/Pierce Second, **For Identifying a New Fundamental Right: -Majority: Court has discretion over which description of the asserted interest to accept; Considers but is NOT bound by PALKO tradition/history analysis; precedent-based reasoning judgment as to whether interest should be treated as a new fundamental right - Non-formulaic considerations: ■ P/D argue correct wat to describe liberty interest ■ Apply history / tradition [PALKO] ■ P will say history / tradition ■ P/D will ask court/argue to distinguish or follow substantive due precedent cases based on whether law infringes on decisional autonomy and / or spatial autonomy in ways similar to court's analysis in prior major SDP opinion ■ P will argue that court can rely on other considerations as Justice Kennedy did in Lawrence / Obergefell - Dissent: Consider only PALKO tradition/history analysis and court must adopt narrow description of asserted interest - Plaintiff usually frames fundamental right broadly and Defendant will usually frame the fundamental right narrowly Third: Is the activity or circumstance a principle of justice so deeply rooted in this nation's history and tradition and implicit in the idea of ordered liberty such that neither liberty nor justice would exist if they were sacrificed? (Palko) Fourth: Use reasoned judgment based on precedent, including broad principles articulated by the Court in the past. (Lawrence; Obergefell) - For example, consider whether the law imposes a burden on: (Lawrence; Obergefell) * Spatial autonomy - ex: activity happens in the home. * Decisional autonomy - ex: intimate conduct. : Cf. Griswold, Moore. * Or, whether it's considered a fundamental right elsewhere in the world, or whatever other factors are relevant. (Obergefell) - Dissenting view: Look only to tradition and history. See Lawrence dissent. Even if the right is fundamental, it can be limited. (Roe; Casey) Strict scrutiny or rational basis? 1. Strict scrutiny applies if the right is fundamental. * Compelling government purpose? - Typically, Court gives it to them. - Compelling: Health of mothers and unborn babies (Roe/Casey); preventing overcrowding (Moore); payment of child support (Zablocki) * Law narrowly tailored to accomplish that purpose? - Not narrowly tailored: Parent-child-based housing restriction (Moore); restricting marriage if child support owed (Zablocki) - Fit must be tight - cannot be under or over-inclusive (Korematsu) 2. Rational basis applies if the right is not fundamental. * Legitimate government purpose? - Legitimate: Protecting vulnerable patients (Glucksberg) - Not legitimate: Morality (Lawrence) - Bare desire to harm a politically-unpopular group is never a legitimate government purpose and under rational basis, defendant will lose. This is rational basis with bite.(Obergefell) * Law rationally related to that purpose? Wins if the law is "at least reasonably related" to those concerns, unless rational basis with bite. (Lee Optical) 3. Abortion laws: Apply undue burden analysis. * Pre-viability, state has a compelling interest in maternal health and potential life. - State may not prohibit abortion nor impose a substantial obstacle but may regulate - Regulation ex: Make women listen to an anti-abortion speech before they have the procedure. - Whole Women's Health: Cannot make it practically impossible for women to get - Post-viability, state has a compelling interest in maternal health and life of the unborn. - State may prohibit abortions made for maternal life and health.

The 10th Amendment and Interpretation

10th Amendment: The powers not delegated to the United States by the Constitution, nor prohibited by it to the States are reserved to the States respectively, or to the people. - Old interpretation: The 10th Amendment is simply a reminder that the Federal government cannot exercise powers not granted by the Constitution. - Current interpretation: The 10th Amendment is a judicially-enforceable limitation on the Federal government that reserves certain powers for the states. ○ Federal government cannot commandeer states to enact or administer federal program ONLY GO THROUGH 10TH AMENDMENT IF ITS IN FACTS AND QUESTION: If facts come up with commandeering state legislature OR state law enforcement --> then 10th amendment analysis if those facts aren't present then do not get into this analysis

Whole Woman's Health v. Hellerstedt

Application of Undue Burden Test—Casey Facts: A Texas law required (1) that the doctor performing the abortion procedures have admitting privileges at a hospital within 30 miles and (2) that standards for an abortion facility/clinics must match those of "ambulatory surgical centers." Issue: Do the provisions of this law constitute an undue burden under Casey? Holding: Yes. Analysis: - Each law goes beyond "regulation," imposing substantial obstacles to abortion access before viability without conferring a medical benefit to justify them. - UNDUE BURDEN: people actually affected not the overall people who might be affected Rule: if a law regulates abortion—apply the undue burden test but note it is highly discretionary.

The Necessary and Proper Clause

Art. I, Sec. 8, Cl. 18 (The Necessary and Proper Clause): The Congress shall have 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 of the United States, or in any Department or Officer thereof. -Not many Necessary and Proper Clause cases - Could be read to give Congress very broad power, but that hasn't happened in practice.

The Commerce Clause

Art. I, Sec. 8, Cl. 3 (The Commerce Clause): The Congress shall have Power... to regulate Commerce with foreign nations, and among the several States, and with the Indian Tribes. - Unlike McCulloch, which dealt with implied powers, Commerce Clause cases interpret the scope of a textual express power of Congress. Current law interpretation of "commerce": - Commerce is all aspects of business and life in the United States - Congress may regulate commerce that has any effect on interstate commerce. Current law interpretation of the 10th Amendment: - Supreme Court does enforce 10th Amendment and thus it can be violated. Current rule: 2 Step Approach to Asses Constitutionality of Legislative Acts Under Commerce Power: Step (1) Is the law enacted within scope of Congress' authority conferred by the Commerce Clause? Step (2) Does the law violate the 10th Amendment/federalism principles? Pre-1890s commerce power: Broad definition of "The Commerce Power." - Lochner-Era commerce clause --> * Courts are very pro-big business * Court struck down laws regulating labor laws in different industries as not being within the commerce power 1890s - 1937 commerce power: A Limited Commerce Power 1. Doctrinal underpinnings: * Commerce defined as a stage of business separate from mining, manufacturing, and production. * Rigid zones of activities left to the states, under the 10th Amendment. Court's role to protect those zones. * Interstate commerce must be affected directly. 2. Inconsistent application of underlying doctrine. 3. Policy, not legal rule, dictated the outcomes of cases. 1937 - 1995 commerce power: Very broad federal commerce power!!! - A new, deferential standard of review for Congressional acts: Whether Congress has a rational basis to conclude that the activity considered in the aggregate has a "substantial effect on interstate commerce." NO LAWS STRUCK DOWN

Rule for Identifying New Fundamental Right Under Substantive Due Process Analysis:

CURRENT MAJORITY RULE Court has discretion over which description of asserted interest to accept - Consider BUT NOT BOUND BY Palko tradition & history analysis; precedent-based reasoned judgement as to whether interest should be a new fundamental right - Protection of non-textual rights requires "careful description of the asserted fundamental liberty interest" * Plaintiff typically describes the right broadly (parenthood is a fundamental right) * Defendant describes the right typically narrow (fatherhood rights of men who have affairs w/ married women & get them pregnant is not a fundamental right) REJECTED DISSENTING VIEW: - Consider ONLY Palko Tradition & history analysis and court must adopt narrow description of the asserted interest * Non-textual rights protected only if = a tradition, stated at the most specific level of abstraction for protecting the right

1890s-1937 Commerce Cases

Cases—Limited Commerce Power: 1. E.C. Knight: striking down federal law (anti-monopoly regulation of sugar refining industry) 2. Carter Coal: striking down federal law (labor standards and price regulation in coal mining industry) 3. Shreveport Rate Cases: upholding federal law (limiting rates charged for out-of-state lines in railroad industry) 4. Schechter Poultry: striking down federal law (prohibiting child labor, minimum wage, maximum hours, labor standards in poultry industry) 5. Hammer v. Dagenhardt: striking down federal law (prohibiting sale of products produced by child labor) ○ Champion v. Ames: upholding federal law (making it illegal for shipping company to carry packages containing lottery tickets)

Transition between Brown I and Brown II

Civil rights victories in court don't mean much if your client doesn't get a good remedy - See Brown II and U.S. v. Virginia Why are schools still, in 2019, segregated? ■ Partially comes down to how Court meted out remedies in Brown II ■ But also, in '70s and '80s, Court did act with regard to school segregation and remedies. - The legality of modern segregation lies in the distinction between de jure segregation and de facto segregation * Brown recognized that de jure segregation is outside the bounds of state and Federal government power. * De facto segregation is not reachable by the Equal Protection Clause because it is not the result of explicit government action. Washington v. Davis: Anyone alleging a violation of Equal Protection has to demonstrate government purpose if it isn't on the face of the statute. KWF says: Equal Protection analysis is based on how a law classifies, not whether it discriminates.

Judicial Review

Def: The power to strike down actions of legislative and executive branches when they are unconstitutional. - It is the power of the Court to "say what the law is." (yet other branches have some authority to interpret the law as well, like the executive branch in Marbury: in the political question context, the executive has the authority) - The Court can rule in any case where a law is in conflict with the Constitution. - The power is rooted in the Constitution's limit of the legislature's power. It is the judiciary's role to enforce this limit.

West Coast Hotel Co. v. Parrish

ENDED LOCHNERISM Facts: Washington State passed a minimum wage law for women and minors. A worker at West Coast Hotel brings suit for difference b/w her pay and the state minimum wage. The Hotel owner challenges the minimum wage law as violating DP Clause of 14th Amendment. Issue: Does the Washington state minimum wage law violate Due Process clause of 14th Amendment? Holding: No. ■ Upheld because there is a legitimate police power and the state law has and meets the real purpose of promoting employee health, safety, welfare. ■ Laws that are not arbitrary or capricious will be upheld. ■ The Supreme Court will no longer protect a fundamental right to contract AKA strike down anything that "violates economic liberty." Rule: a state law setting a minimum wage for women and minor is not a violation of the DP Clause—overrules Adkins v. Children's Hospital.

Federalism

Federalism - the distinction between state govts of general power & federal govt of enumerated power * State govts - governments of general power—they have police power to regulate for health, safety, welfare * Federal govt - for federal govt to act it needs enumerated power The Federal government is one of enumerated (limited) power and one of supreme power - When the government does exercise its limited powers, they are superior to the powers of state governments. Art. I, Sec. 1 (legislative power "vesting" clause): All legislative Powers herein granted shall be vested in a Congress of the United States which shall consist of a Senate and House of Representatives. ● Note: Not much detail here!

Wickard v. Filburn

Facts: A federal law (National Agricultural Adjustment Act) regulated the price of wheat by limiting how much of it farmers could grow. Appellee was an Ohio farmer. He was fined for exceeding the amount of wheat he was allotted to grow under the Agricultural Adjustment Act. The purpose of the Act was controlling the price of wheat—keep it high enough so farmers could get by with it. Appellee did not sell this wheat he grew. Issue: Does Congress have the power, under the Commerce Clause, to regulate wheat that is home grown and intended for home consumption? Holding: Yes. Analysis: **Test: Whether Congress has a rational basis to conclude that the activity considered in the aggregate has a "substantial effect on interstate commerce." - Congress can regulate intrastate activities that individually have small effect on interstate commerce if Congress has rational basis to find a cumulative "substantial effect" on interstate commerce ■ The act of not putting wheat on the market affects interstate commerce by affecting the prices consumers experience across the country. ■ Growing and consuming an extra amount of wheat than what's allotted affects the overall price of wheat because when considering it in the aggregate, it affects price by affecting demand ■ Whether an activity has a "direct or indirect" effect or constitutes "production or commerce" is no longer part of the calculus. Rule: Congress has power under the commerce clause to regulate home-grown and home-consumed wheat because it has a rational basis to conclude that if considered in the aggregate it has a substantial effect on interstate commerce by affecting the price of wheat. - Congress CAN regulate intrastate activities that individually have small effect on interstate commerce IF congress has a rational basis to conclude that it has cumulative substantial effect on interstate commerce Note: ■ Recognizes to a degree that any effort to police the line of the Commerce Clause by the judiciary end up implicating Court's policy preferences ■ Court justifies broad power to Congress by reminding that Congress is ultimately controlled by the People and their votes. ■ WHEN THE ACTIVITY IS ECONOMIC: WICKARD ■ WHEN THE ACTIVITY IS NON-ECONOMIC: APPLY MORRISON/LOPEZ (aka apply the Lopez factors)

Baker v. Carr

Facts: 1962 established a highly-discretionary test for determining whether an issue is a non-justiciable political question (hard to determine the outcome) Initial Steps (extremely discretionary) : 1) Identify the precise claim. 2) Determine whether the claim implicates the separation of powers. 3) Determine whether the ultimate authority over the claim rests in one of the political (non-judicial) branches. Criteria : 1) A demonstrable textual commitment of the issue to a coordinate political department - Ie: to see if something is constitutional, must first look to the Constitution to see if they have the power to hear case on the merits 2) A lack of judicially-discoverable and manageable standards for resolving the issue - Court decides based on the facts 3) An initial policy determination of the kind premised on non-judicial discretion 4) Expressing lack of respect for coordinate branches 5) Unusual need to adhere to a political decision already made 6) The potential for embarrassment from multiple decisions by various departments on one question

DC. v. Heller

Facts: A DC law barred possession of handguns and required registered firearm be disassembled or trigger locked; The 2nd Amendment: A well-regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed. Heller is a D.C. special police officer. D.C. law bars possession of handguns and requires registered firearms be disassembled or trigger-locked. Heller wants to the Court to enjoin these laws. Rule: The 2nd amendment gives an individual the right to bear arms apart from a militia—but the govt can still limit that right (can restrict the right for felons/mental/schools & govt buildings and another limit is weapons normally possessed at home). Majority Opinion Method of interpretation: original meaning originalism; Sources of interpretation: Text, Founding era writings—constitutions, dictionaries, scholarly writings, Case precedent, Post-civil war era understandings, State Declaration of Rights Issue: Does the DC law regulating gun ownership violate the 2nd amendment? Holding: Yes- BUT NO STANDARD OF REVIEW WAS ADOPTED (Plaintiffs wanted strict scrutiny but court was hesitant to adopt)

Lochner v. New York

Facts: A New York law set max working hours for bakers. Bakers could not work longer than 10 hours a day and 60 hours a week, under this law. Issue: Does the New York law violate the Due Process Clause of the 14th Amendment? Holding: Yes. The right to make a contract is part of the liberty protected by the Due Process Clause. - Bakers have the right not to make the contract; but they are not wards of the state and can take care of themselves. Standard - a law interfering with the right to contract will only be upheld if: 1. End is "appropriate and legitimate" police power concern- specifically, public health, safety, or morals. (Need proof of problem.) 2. Means has "a direct relation" to that end. Modern critique: - The two parties, employers and employees, are not on the same ground. It's not realistic to say they are dealing with each other on the same level, and that a right to contract, if it even was protected, is implicated. - Justices are motivated by policy - fearful that if states come in and start regulating labor conditions, economic progress will be lost. Holmes dissent: - Gives the quintessential modern day critique - this case is being decided based on economic policy, not the law. The court shouldn't be making these policy decisions. - Sets up post-Lee Optical perspective - if a reasonable man thinks that this is a rational means to regulate the economy, we should let it be.

NLRB v. Jones & Laughlin

Facts: The National Labor Relations Board charged J&L with discriminating against employees in hiring and tenure, and interfering with their ability to unionize. J&L's shipping, mining, and manufacturing activities stretch across the Midwest and eastern United States. Issue: Is the National Labor Relations Act, which empowers the NLRB, unconstitutional in its scope of regulation? Holding: No. Analysis: ■ Congress has Constitutional power under Commerce Clause to pass National Labor Relations Act. ■ Not determinative that the workers here were only engaged in production - because J&L is such an expansive national presence, its acts affect commerce among the states. Rule:*highly deferential to Congress*When a federal statute is challenged the test is whethercongresshas a rational basis to conclude that activity being regulated (by federal law) considered in the aggregate has a substantial effect on interstate commerce

Zablocki v. Redhail

Facts: A poor/indignant man was prohibited from marrying because he owed child support and there was a Wisconsin state law stating if a person had a court order against them for missing child support they must get court approval before obtaining a marriage license. AKA this law prohibited him from marrying. Issue: Does the Wisconsin law violate the Due Process Clause of the 14th Amendment? Holding: Yes. Reasoning: This law triggers strict scrutiny: ■ Compelling government purpose? Yes. To protect children from suffering from unpaid child support. ■ Law sufficiently related to purpose? No. There are many alternative ways - such as garnering wages - that do not interfere with the fundamental right to marry. ■ In fact, allowing the person to get married might actually put them in a better financial circumstance. ■ Thus, the law does not actually meet the purpose of protecting kids with a tight fit—there's other ways to do this. Rule: Apply strict scrutiny to state laws regulating the fundamental right of marriage because freedom of marriage is a fundamental right that cannot be deprived without due process. - Requires a tight means-ends fit where the compelling govt purpose is met in the least restrictive way (there's no less restrictive way to meet the purpose). - Only need to fail one prong either no compelling govt purpose of means not sufficiently related to ends to fail this test!

Skinner v. Oklahoma

Facts: An Oklahoma law "Habitual Criminal Sterilization Act" subjected those convicted twice or more of felonies involving moral turpitude to sterilization. Defendant was sentenced to a forced vasectomy for "moral turpitude." Holding: The court analyzed this as an EP question and found procreation is a fundamental right and thus laws regulating it are subject to strict scrutiny BUT under the EP Clause. Stone concurrence: Raises question of whether a due process right is implicated in forced sterilization cases, not EP. - States that the question should be presented as: Whether the wholesale condemnation of a class to such an invasion of personal liberty without opposition to any individual to show his is not the type of case : does THAT violate due process? Note: Court is still haunted by the ghost of Lochner, so they are not eager to use substantive due process.

Perez v. United States

Facts: Congress passed Title II of the Consumer Credit Protection Act, a law criminalizing violent loan sharking. Perez, criminal defendant, was a loan shark who used such violence as a method of collecting $. Perez argues creation of criminal law (loan sharking) is typically a power reserved to the states. Issue: Does Congress' commerce power extend to the passage of federal criminal laws? Holding: Yes. Congress reasonably concluded that loan sharking substantially affects the national economy, by funding interstate crime. Three categories of activities Commerce Clause allows Congress to govern: * Categories 1 and 2 [don't need to know diff. b/w these]: ○ (1) Use of the channels of interstate commerce. ○ (2) Instrumentalities of and persons or things in interstate commerce. * Category 3: ○ Local (Intrastate) activity that affects interstate commerce (Lopez; Morrison; Raich)

New York v. United States

Facts: Congress passed a law-- Low-Level Radioactive Waste policy Amendments Act. One facet of the agreement said that if a state cannot provide for disposal of their waste, the state itself will have to take possession of it. New York brings this suit arguing the federal government cannot commandeer states. Issue: Does the "take title" provision of the Low-Level Radioactive Waste Policy Amendments Act violate the 10th Amendment by commandeering states? Holding: Yes. ■ Congress cannot commandeer a state legislature. - Legislating is an attribute of state sovereignty "reserved to the states" by the 10th Amendment. - This makes the Federal government completely unaccountable (to the voters) for its actions. - The Commerce Clause does not extend to allow Congress to regulate state governments' regulation of interstate commerce. - It doesn't matter that the states agreed to this arrangement - the leaders of the state don't have the authority to consent to be compelled to regulate because federalism protects individual liberties and freedom, not the liberties of the states. Note: ■ New York concedes the Federal government has the power to regulate the waste pursuant to its Commerce power — this is NOT a step one question.

United States v. Carolene Products Co

Facts: Congress passed the Filled Milk Act, which prohibits the sale of milk mixed with oil or non-milk fat. Issue: Does the Filled Milk Act violate the Due Process Clause (of the 5th Amendment)? Holding: No Because law does not infringe on fundamental rights, it gets rational basis review. - Unless there is no rational basis for the law - if the law is justified by a known or even a reasonably assumed fact - it will be presumed Constitutional. **Footnote four provides guidelines for when Constitutionality will NOT be presumed and stricter scrutiny may be applied. (1) Legislation infringes on a specific prohibition of the Constitution, such as the Bill of Rights. (2) Legislation restricts or infringes upon the political process, (3) Legislation prejudices "discrete and insular minorities." Rule: Economic laws on common commercial products will be scrutinized under the rational-basis test. There is a presumption of validity

Powell v. McCormack

Facts: Congress refused to seat Rep. Powell after he was elected because he had been "dubious with expenses." Powell filed suit, saying he met the Constitutional requirements for being seated in the House and thus excluding him was unconstitutional Article I, Sec. 2 dictates basic requirements, such as age (he's over 35), USC of over 7 years, resident of the state he's representing etc. - Issue: Is the question of whether Powell may take his seat in the House a non-justiciable political question? - Conclusion: No. - Holding: The Constitution leaves deciding on the enumerate requirements to congress—but it doesn't give congress the power to decide on whether someone can join the house by majority vote AKA --> The constitution does not delegate the authority to exclude someone on the basis of any other factor besides Article I, Sec. 2, this is not a political question, and the Court can decide it. ■ Rule: Restrictions on congressional members set by the house are NOT political questions and thus are justiciable.

Palko v. Connecticut,

Facts: Connecticut statute allowed the state to appeal criminal convictions. Palko argued that the 5th Amendment's protection against double jeopardy should apply and thus prohibit this. Issue: Does the 5th Amendment's Double Jeopardy Clause apply to the states through the 14th Amendments Due Process Clause? Holding: No. - Analysis: - Rejecting total incorporation—not all the rights in the BOR are incorporated. - Approving selective incorporation but—the 5th Amendment protection against double jeopardy failed selective incorporation test ● **Only rights that are a principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental apply to the states through the Due Process Clause. * Or, "implicit in the concept of ordered liberty." Meaning, only such rights are incorporated to the states; Denial of such a right is denial of due process of law. Rule: In order for a provision of the BOR to be incorporation it must be a principle of justice so rooted in the traditions & conscience of our people as to be ranked as fundamental—the 5th Amendment didn't pass this test and thus isn't incorporated. Notes: ■ A plaintiff's attorney will apply this test to any "non-fundamental" right they want to argue is fundamental. ■ Other iterations of the same test: ● Twining: "Tradition and history." ● Is the privilege so critical to free government that you cannot imagine free government without it?

Obergefell v. Hodges

Facts: Consolidated cases brought by plaintiffs challenging laws or Constitutional provisions in their states that banned same-sex marriage—states only recognized marriages as those between a man and woman. Key takeaway: there is a fundamental right to marriage and (sexual) intimacy. So laws regulating marriage or sexual intimacy are subject to strict scrutiny. - So this case said that the word liberty in 14th amendment includes a FR for 2 consenting adults to have sex. - Thus, the Constitution doesn't permit govt action to bar same sex couples from marriage based on religious views - Religious and moral views do not justify violating fundamental rights Issue: Do the bans on same sex marriage violate the Due Process Clause of the 14th Amendment? Holding: Yes. Analysis: looks to history & tradition but does not stop there - What is the right at issue? Freedom to marry. - Is it a fundamental right? Seems to be. ** Start with this: Is the activity deeply rooted in this nation's history and tradition? (But do not stop here! - The past should not rule the present.) ■ When appropriate, "describe it carefully" with reference to specific historical practices. ■ Here, not appropriate. Why? Doesn't say, but perhaps because of swiftly changing public opinion. ■ Here, states are divided on the issue; attitudes have changed. ** Then: Use reasoned judgment based on precedent, including broad principles articulated by the Court in the past. ■ Zablocki protected marriage autonomy, said it couldn't be withheld because of failure to pay child support. ■ Griswold protected reproductive autonomy. [Four reasons that the right to freedom of marriage should be applied to same-sex couples]* - Decisions are fundamental to human autonomy - Signifies important commitment - Safeguards children and families -Marriage is keystone of American social order Strict scrutiny or rational basis? ■ Rational basis, even though it seems to be a fundamental right. - Legitimate government purpose? No, because motivated by a bare desire to harm a politically unpopular group, which is never a legitimate government purpose. - Law rationally related to that purpose?Doesn't reach KWF says: - Kennedy says the meaning of the word "liberty" was not meant to be fixed - Kennedy plants the seed for different Courts to define liberty in different ways. ** He was an individual libertarian and did not want to etch immovable standards in stone forever. - Because the case is so marriage-specific, unclear whether any of this analysis can be applied to other cases. - Precedent for concluding that adult consensual intimacy triggers strict scrutiny - Liberty under DP clause must be defined in a most circumscribed manner with central reference to a specific historic practices

Brown II

Facts: Court, in deciding Brown I, left the remedy to the lower courts. (Meaning, no order to desegregate.) We now know the Court didn't order a remedy because the individual justices were worried about going too fast. Issue: What remedy is appropriate? Holding: Court creates a system where each school district in America has to be individually litigated. - Court defines parameters: Admit students as soon as practicable, but, delay may be allowed if: * Public interest - want to make sure that desegregation doesn't cause a lot of trouble for the schools * Burden rests on defendant schools to argue how much time is needed to comply. ○ "With all deliberate speed." - Deliberate means slow — this is an invitation to be slow. Rule: desegregate with "all deliberate speed." Key takeaway: Brown I is followed up with not much of a remedy - a requirement that individual schools litigate and take as much time as they need to implement desegregation.

Duncan v. Louisiana

Facts: Duncan was charged with simple battery. (He is a black man who slapped a white man's elbow.) In Louisiana at the time, you only got a jury trial if you were facing the death penalty. (Cheaper and quicker.) Issue: Is the right to a jury trial in a criminal case fundamental so that it should apply to the states via the 14th Amendment. Holding: Yes. ■ Enunciates the test in several different ways - each one rooted in history. - Whether the right is among those fundamental principles of liberty and justice which lie at the base of our civil and political institution. - Whether the right is "Basic in our system of jurisprudence." - Whether the right is "Fundamental to the American scheme of justice." Black concurrence: - This test is too subjective - any judge can make the argument that a right is "basic in our system of jurisprudence." - Black wanted to incorporate the entire Bill of Rights, because he did not want to open the door to using the Due Process Clause to interpret the Constitution to protect any unenumerated rights. Notes: ■ It is Substantive Due Process that creates protections for unenumerated rights, using the same test the Court used to determine whether a right should be incorporated. ■ **If there were no unenumerated rights, the government could, for instance, sterilize you, and only be subject to rational basis review. Thomas, Alito, and Kavanaugh think the Due Process Clause does not create protections for any unenumerated rights. - Thomas thinks that incorporation happens via Privileges and Immunities Clause and that the Due Process Clause should not be interpreted as providing protection for unenumerated rights. * He thinks the liberty protected by the due process clause is only physical liberty. * This argument is undermined by the Ninth Amendment, which expressly says the rights protected by the Constitution are not limited by those that are enumerated. What do originalists think about the Ninth Amendment? Bork said it was like if an ink blot was spilled on the Constitution — just ignore it.

Reno v. Condon

Facts: Federal statute--Driver's Privacy Protection Act of 1994, prohibits states and private entities from selling personal information provided to state DMVs like SSNs, addresses, etc. South Carlina law conflicts with this statute as it states any info in the state's DMV records is available to any person or entity that fills out a form listing the requestor's name and address and stating the info won't be used for telephone solicitation. Issue: Does the Driver's Privacy Protection Act of 1994 exceed Congress' 10th Amendment authority by commandeering states by prohibiting states from selling DMV information? Holding: No. Federal laws that regulate state and non-state entities aren't commandeering ■ This law doesn't require the states in their sovereign capacity to regulate their citizens--it regulates the states as the owners of their databases. KWF says: The fact that this decision seems policy-driven underscores the point that trying to enforce the 10th Amendment forces the court to resort to policy arguments.

Adamson v. California

Facts: In California, prosecutors could comment upon the defendant's choice not to testify, for the jury to consider. Issue: Does the 5th Amendment's protection against self-incrimination apply to the states through the 14th Amendments Due Process Clause? Holding: ■ No. ■ Again, rejecting total incorporation and applying selective incorporation test ■ Applies Palko and finds that the failure to protect this 5th Amendment right against self-incrimination does not breach the state's obligation to give a fair trial. ****Note: This right was incorporated later in another case.

Nixon v. United States

Facts: Nixon was a federal district court judge who protested that he had been "tried" before being removed from office by the Senate. Nixon asked the court to decide if Senate Rule XI allowing a committee (thus not all) senators to hear evidence against a person who has been impeached then present that to the rest of senate, then vote on it—is unconstitutional because--the Constitution says the Senate has "sole power" to try all impeachments. Issue: Whether this case involves a non-justiciable political question? Holding: Yes, the issue of the constitutionality of Senate Rule XI is a non-justiciable political question ■ "Sole power" means the Court cannot interfere. ■ Entire point of impeachment proceedings was to keep out the judicial branch because of bias fears. ■ Impeachment is the legislative branch's only check against the judicial branch. Rule: Deciding on the constitutionality of an impeachment proceeding presents a non-justiciable political question in this case. ■ NOT a bright line test about impeachment trials nonreviewable ■ Doctrine is extremely discretionary

Katzenbach v. McClung

Facts: Ollie's Barbecue is a family-owned restaurant in Birmingham, Alabama. It only has a take-out service for African Americans-- does not allow them to dine inside the restaurant. Unlike the Heart of Atlanta motel, it does not have an obvious tie to interstate commerce. About 46% of the meat it buys comes from interstate commerce. Since the passage of the CRA of 1964 it was operating in violation of it. Issue: Is Title II's application to Ollie's Constitutional under the Commerce Clause simply because a substantial portion of the food served there had moved in interstate commerce? Holding: Yes. Court will defer to Congress as long as there's a rational basis. Rule: Apply Wickard test --> Whether Congress has a rational basis to conclude that the activity considered in the aggregate has a "substantial effect on interstate commerce." - Congress concluded that states sell less food due to discrimination. - Rational basis: Congress heard that fewer goods had been sold across state lines because of discrimination. - Aggregated, substantial effect on interstate commerce: Ollie's alone may not have much of an impact on interstate commerce, but all the restaurants together in aggregate do have a substantial impact. Holding: Congress has the constitutional power under the Commerce Clause to prohibit race discrimination by privately-owned restaurant where substantial portion of the food served moved in interstate commerce (Title II of the CRA of 1964)

Muller v. Oregon Lochner Court

Facts: Oregon passed a law that limited women to working 10 hours a day in "any mechanical establishment." Issue: Does the Oregon law violate the Due Process Clause of the 14th Amendment? Holding: No. ■ End is "appropriate and legitimate" - women are weaker and need special protections. ● Contention supported by "Brandeis briefs." ■ Means has "a direct relation" to that end. - KWF says: Rulings like this subjected the Court to same critiques that were made after certain Commerce Clause cases - the Court says the right is fundamental but sets it aside when it interferes with a policy they like.

Lawrence v. Texas

Facts: Police officer, responding to weapons disturbance call, went into Lawrence's apartment and saw him engaged in a consensual homosexual act. A Texas law forbids two persons of the same sex from engaging in sexual activity together. Plaintiffs ask to overturn precedent. Issue: Does the Texas same-sex prohibition violate the 14th Amendment Due Process Clause? Holding: Yes. Analysis: Bowers misunderstood and did Substantive DP analysis incorrectly which is why this court will revisit it. They misunderstood history—it didn't ban gay sex, it banned non-procreative sex. Also, history & tradition are a starting point in substantive DP analysis—not the ending point to finding a fundamental right. Bowers should be overturned. Stare decisis analysis: - Has the legal rule in the case become "unworkable" (can judges apply it)? - Has society come to rely on the holding (detrimental reliance)? ** Here, no detrimental reliance, because it didn't give a liberty protection. - Has the law changed to make the case obsolete—erosion of the case? - Have facts changed? ** Here, Bowers mischaracterized historical analysis of homosexual relationships - they got the history wrong, thus, the facts have changed. What is the right at issue? Freedom of sexual autonomy. Is it a fundamental right? Seems to be. - Start with this: Is the activity deeply rooted in this nation's history and tradition? - Then: Use reasoned judgment based on precedent, including broad principles articulated by the Court in the past. ■ Court considers developments around the world. ■ Court also considers restriction on: * Spatial autonomy - activity happens in the home. * Decisional autonomy - intimate conduct. Cf. Griswold, Moore. ■ ***History and tradition is a starting point, not a stopping point [See Lawrence v. Texas] Strict scrutiny or rational basis? ■ Rational basis, even though it seems to be a fundamental right. - Legitimate government purpose? No, moral concerns are never a legitimate purpose for government regulation. (See also Stevens dissent in Bowers) *** Bare desire to harm a politically unpopular group is never a legitimate government purpose. - Law rationally related to that purpose? Doesn't reach. KWF says: One practical effect of this ruling is that the Court can consider another law regulating sexual autonomy and apply only rational basis review. - If you want to argue rational basis with bite, you want to argue that the law had a bare desire to harm a politically unpopular group. Extremely discretionary. Scalia Dissent: - Majority doesn't say right to homosexual sodomy is a fundamental right nor does it apply strict scrutiny * Plants the seed for future Courts to say that Lawrence didn't apply a specific type of scrutiny, so still an open question. * If morality isn't a legitimate interest, can you regulate bigamy, incest, etc? * KWF says: Protected interests can be regulated; see Roe v. Wade. Rule: (1) cannot ban homosexual sodomy simply because it is immoral; (2) decisions by married people over intimacies of their relationship even when non-procreative is a liberty protected by the DP Clause of the 14thAmendment (BUT doesn't say it's a fundamental right); (3) Bowers is overruled.

Printz v. United States

Facts: The Brady Act, a gun control bill, forces state and local law enforcement personnel to perform background checks in the interim period before the national background check system comes online. Issue: Does the Brady Act exceed Congress' 10th Amendment authority by commandeering the states? Holding: Yes. The Federal government cannot commandeer states to enact or administer federal programs. ■ History: First Congress did not command state officials help enforce federal laws, it merely recommended that they do. ■ Constitutional structure: Federal and state authority were meant to be concurrent; not designed to have Federal government act through the states. ■ New York v. United States: Similar - and worse - intrusion upon state sovereignty. Rule: if a federal law commandeers local and state law enforcement to do carry out background checks for the federal law this violates the 10thAmendment

United States. v. Darby

Facts: The Fair Labor Standards Act prevented the shipment and production of items that were produced under substandard labor conditions. Issue: Does the Fair Labor Standards Act exceed congress's commerce power? Holding: No. ■ Congress' power extends to intrastate activities which affect interstate commerce. ■ The 10th Amendment is a "truism," not an Amendment that can be violated. It was intended to reassure the states that the Federal government would not exceed its granted powers. - It does not deprive the government of the authority to exercise its granted powers, so long as the means are appropriate and adapted to the permitted end.

Heart of Atlanta Motel v. United States

Facts: The Heart of Atlanta Motel, accessible to interstate and state highways, solicited business from out of state guests. They refused to rent rooms to African Americans. Title II of the Civil Rights Act of 1964 outlawed such racial discrimination in public accommodations, which includes hotels. The owners of the Motel brought action claiming the Title II of CRA of 1964 exceeds Congress' Commerce Power. Issue: Does the passage of the Civil Rights Act exceed Congress' authority to regulate interstate commerce? Holding: No. ○ Analysis: - Discrimination against people of color creates an effect on interstate commerce both individually and in the aggregate. "If it is interstate commerce that feels the pinch, it matters not how local the operation which applies the squeeze." - Test: Whether Congress has a rational basis to conclude that the activity considered in the aggregate has a "substantial effect on interstate commerce." * Rational basis: Congress heard from millions who had struggled to travel; guidebook had to be created to find lodging. * Individual experience: It interferes with the individual traveler's "pleasure and convenience." * Aggregated, substantial effect on interstate commerce: These difficulties cause travelers to forgo interstate travel altogether. - Because the commerce power is an express power, Congress does not have to justify its purpose. If the effect on commerce it seeks to address is morally-based, rather than simply commercially-based, that's fine. Rule: Congress has the power under the Commerce Clause to prohibit race discrimination by privately owned hotels that affect interstate travel—Title II of CRA of 1964. Douglas: ■ Would apply the 14th Amendment instead of the Commerce Clause—that would more clearly protect the majority holding. - Section 5 of the 14th Amendment gives Congress the power to enforce the 14th Amendment, including substantive due process and equal protection. - But in another case, the Supreme Court held that a civil rights law cannot be passed pursuant to section 5 power - Douglas critiques this precedent.

Gonzales v. Raich

Facts: The federal Controlled Substance Act made marijuana a schedule 1 drug. Raich & Monson are California residents who use marijuana for medical purposes, which is legal under state law. They sued the Attorney General arguing that the federal Controlled Substances Act, which makes marijuana a Schedule I drug, exceeds Congress' power under the Commerce Clause. Issue: Does Congress have the power to prohibit intrastate manufacture and possession of marijuana or does this exceed its commerce clause power? Holding: Yes, Congress has the power under the Commerce Clause to prohibit intrastate manufacture & possession of marijuana for medical purposes legal under state law. Analysis: Local (intrastate) activity that substantially affects interstate commerce. (1) This is economic activity, so apply Wickard test whether congress has rational basis to conclude the economic activity has a substantial effect on interstate commerce - Economic activity = production, distribution, and consumption of commodities. ** KEY ANALYSIS FOR ECONOMIC v. NONECONOMIC - Here, marijuana is being produced so that's economic activity - And like Wickard, there is a rational basis to believe one person's marijuana growing/selling can, in aggregate, have a substantial effect on interstate commerce. - If you don't like it, vote the bums out. Scalia: ■ Regulation of any intrastate activity is permissible in order to regulate an interstate activity. ■ Power to regulate interstate commerce extends to laws that that prohibit interstate commerce ■ He just doesn't like marijuana. KFW says: Almost impossible to limit Wickard without deteriorating into policy judgments. ■ Preserving Wickard standard preserves authority in Congress and keeps judges from legislating from the bench.

Brown v. Board of Education

Facts: The plaintiffs were African American students who wished to gain admission to the white public schools in their communities (but had been denied due to race). The initial lawsuit consisted of four state lawsuits and a fifth from the District of Columbia. Issue: Do separate but equal schools violate the Equal Protection Clause of the 14th Amendment? Holding: Yes. Analysis: ○ Court uses pluralism as method of interpretation (not Originalism) ○ Court relies on social science and morality - not many traces of modern Equal Protection analysis. - Focuses on the importance of education to be a full citizen - Focuses on psychological impacts of going to racially segregated schools on African American kids ○ One paragraph does offer Court's analysis, but it is not the current majority rule. - That is, no legislation should exist discriminates on the basis of race. ○ Could have begun an era of robust, positive rights-based protection against race-based classifications ○ Overall, however, ruling hinges on the importance of education. - Argument not grounded in Equal Protection but in psychology of black children: an ode to education the way that Obergefell is an ode to marriage. - But no fundamental right to education under Substantive Due Process - see Rodriguez. KEY takeaway: Ended American apartheid and ended Jim Crow race caste system and overturned Plessy!!! Reverse incorporation: The fifth case, Bolling v. Sharpe, was based on a 5th Amendment claim, since it was in D.C. and 14th Amendment does not apply. Court said there is a "non-textual Equal Protection component" in the 5th Amendment. Rule: Jim Crow laws violate the EP Clause because this case said so (conclusory).

Timbs v. Indiana

Facts: Timbs was found guilty and convicted for drug dealing & conspiracy to commit theft. Then the state got a private law firm to bring a civil action against him to forfeit the vehicle he purchased with non-criminal money claiming bc it was used for transportation of the drugs. The vehicle cost $42k exceeding the maximum penalty of the crime. Issue: Whether the 8th Amendment bar on excessive fines is incorporated to apply to state & local govts? Holding: Yes it is incorporated. ■ Safeguards against govt abuses of criminal and punitive law enforcement are fundamental to liberty and this was historically mentioned and is also in all 50 states' constitutions.

Roe v. Wade

Facts: Various state laws outlaw abortion. Issue: Do these abortion laws violate the 14th Amendment Due Process Clause? Holding: Yes. Analysis: fundamental right to terminate pregnancy pre-viability + strict scrutiny is applied to laws infringing this liberty. ■ What is the right at issue? Freedom to have an abortion. ■ Is it a fundamental right? Yes, but not an absolute right. - The right must be (1) deeply rooted in this nation's history and tradition and implicit in the idea of ordered liberty such that neither liberty nor justice would exist if they were sacrificed and (2) carefully described. - Here, history does not prohibit the Court from finding a right to abortion, because traditionally, American law did not always outlaw abortions, and neither did ancient law or English common law. ■ Strict scrutiny or rational basis? - Strict scrutiny, since it's a fundamental right. * Compelling government purpose? Yes, compelling interest in protecting women's health and protecting pre-natal life. But, each of these rights becomes compelling at different points. *** First trimester - no compelling interest. Very few laws that regulate abortion will be upheld here. *** Second trimester - compelling interest in maternal health. Regulations aimed at protecting maternal health will likely be upheld. *** Third trimester - compelling interest in material health and pre-natal life. Almost any regulation will be upheld. ● Note: Abortion decision is left to the mother's attending physician! ● Note: When looking at the government action (ie: whatever the abortion regulaiton requires), if it lacks an exception to when the health of the mother is at risk, then it fails to satisfy the roe v. wade requirement

US v. Lopez

Facts: the Federal Gun Free School Zones Act of 1990 made it illegal to knowingly possess a gun at a place a person knows/has reasonable cause to know is a school zone. A Student was arrested with a gun at a school in San Antonio, Tx. He was charged under Tx law, was charged under this federal act. Court of Appeals held that Congress had exceeded its power in passing this law. Issue: Does the Gun Free School Zones Act exceed Congress's power under the Commerce Clause to regulate interstate commerce? Holding: Yes. Congress does not have the power under the Commerce Clause to pass this Gun Free School Zone Act legislation. Analysis: govt argued guns at school affects interstate commerce bc it affects education, insurance, travel—but court focuses on whether the activity the law is regulating is economic—and it is not—thus applies noneconomic activity 4-factor analysis.; - There are, in fact, outer limits to Congress' commerce power. - Three categories Congress can regulate under commerce power: 1. The channels of interstate commerce. 2. Instrumentalities, persons or things in interstate commerce. 3. Local (intrastate) activity that substantially affects interstate commerce. ****** Four highly-discretionary factors to use to consider whether a federal law substantially affects interstate commerce (no single factor swings outcome one way or other): ■ (1) Essential part of larger regulation of economic activity? If yes, Wickard applies. ● No - this was a criminal statute, unrelated to commerce. ■ (2) Is there a jurisdictional element in the crime that a prosecutor must prove? For example, that the gun traveled over interstate lines? ● No - must be explicit in the statute. ■ (3) Is there a legislative finding related to the impact on interstate commerce of bringing a gun to school? Not determinative. ● No - no Congressional findings. ■ (4) Is reasoning linking the intrastate activity and interstate commerce close? Or too attenuated? ● No - it is too attenuated. Too many steps between interstate commerce and regulated activity. If it can regulate this it can regulate anything ● On exam you can dig in to whether reasoning is too attenuated or not—argue it When applying Lopez factors don't have to predict outcome since its highly-discretionary but point out the 2 cases we have where court found exceeded commerce power Rule: If the activity the federal legislation is regulating is non-economic apply 4-factors to consider if the activity substantially affects interstate commerce: (1) essential part of larger regulation of economic activity; (2) includes explicit jurisdictional elements; (3) congressional findings may help but NOT determinative; (4) relies on reasoning linking the intrastate activity and interstate commerce that is too attenuated ■ If activity regulated is economic--> Wickard test ■ If activity regulated is noneconomic (intrastate activity)--> Lopez analysis' Kennedy Concurrence: It's time to police the line between federal and state power. Dissent: This holding (1) ignores precedent; (2) forces Court to make fuzzy factual determinations that got it into trouble pre-1937; (3) unsettles a very settled area of law. ■ Further, there is hard data showing that regulating guns affects commerce. - KWF says: This data is empirically accurate. - But, majority says the connection is too attenuated and not backed up by legislative findings. Notes: - Majority concerned commerce power was infinite/too broad. They knew Congress would always win under Wickard standard. So they needed to modify it. - So long, rational basis - Court takes it upon themselves to second guess Congress' findings related to the costs of gun violence.

Moore v. East Cleveland

Family Living Regulation Rule: Law governing/regulating the HOME/family relatedness/family living situations will be subject to strict scrutiny. Facts: An East Cleveland housing ordinance limited single unit dwellings to single families—but only recognized some family members. Because one of the grandsons in Mrs. Moore's home did not live with his mother since she died, the city filed a criminal charge against her for having an illegal occupant in her home. Issue: Does the East Cleveland ordinance violate the Due Process Clause of the 14th Amendment? Holding: Yes. Analysis: if a government action regulates the home, then strict scrutiny applies. 1. What is the right at issue? Freedom of personal choice in matters of marriage and family life. 2. Is it a fundamental right? Yes. - As a matter of precedent, because it is the type of right the Court has already protected. - Also, based on history and tradition. The sanctity of the family is deeply rooted in this nation's tradition, which extends to uncles, aunts, cousins, and grandparents. 3. Strict scrutiny or rational basis? - Strict scrutiny, since it's a fundamental right (infringes on family decisions / living situations) * Compelling government purpose? Yes. Preventing overcrowding, minimizing traffic are compelling. * Law narrowly tailored to achieve this purpose? No. Whether the person living with you is your son or your grandson does nothing to address crowdedness.

MODERN Substantive Due Process:

Regulation of: · Procreation & Contraception · Marriage · Family visitation · Family living · Parenting choices · Medical decisions · Abortion decisions

Limits on Government in General

In general, Constitutionality is presumed, but not when: - Legislation within specific prohibition of the Constitution - Legislation restricts political process - Prejudice against "discrete and insular minorities" Why argue against substantive due process? - It allows judges to rely too much on their own selective judgment

Justiciability Limits

Justiciability: Whether the plaintiff can sue or be sued in Federal court. ● Who can sue? ● When can the suit be brought? ● What subject matter can be considered? ● All are threshold requirements of justiciability. Justiciability: · Highly discretionary—left to the discretion of federal judges

Marbury v. Madison

Key Takeaways: - Created authority for judicial review of executive actions the power to declare laws/acts unconstitutional (the power was not word for word vested in the Constitution) - Establishes authority for judicial review of legislative actions (declares a federal law unconstitutional) Facts: Jefferson wins contested presidential election; Marshall named Chief Justice by Adams, nearing the end of his term before the election; Congress enacts Organic Act of the District of Columbia, authorizing presidential appointment of 42 justices of the peace; Adams announces nominations of justices of the peace and senate confirms the nominees; Marshall signs the commissions and sends his brother to deliver them. Jefferson inaugurated; Marbury's commission not delivered in time; Jefferson orders the secretary of state, to withhold the undelivered appointments. Marbury files petition for writ of mandamus from the Supreme Court to have the commissions instated; says that Judiciary Act of 1789 gives them the power to grant it. Issues: 1. Did Marbury have a legal right to the commission he demands? Yes - because he was already appointed & Jefferson did not have the legal right to revoke the commission, and it was not revoked when the commission was not delivered. 2. Can such an act of the executive branch be reviewed by the judicial branch (ie: Can the Court afford a remedy?) - If it was a "political"/discretionary act (writ asked for is purely within the power of the executive), it cannot be reviewed by the court (only review is voters). - The check on the executive in this context is the political process itself. - If it was not discretionary (aka if its mandatory) — if Jefferson was legally obligated to see the commission through the act can be reviewed by the court. ** Here, the delivery was not discretionary, and therefore reviewable, because Marbury had a legal right to the commission. 3. Can the Court issue the writ of mandamus requested by Marbury? - No. Even though such a writ by the court is authorized by the Judiciary Act of 1789, that would give the Supreme Court original jurisdiction in some cases. Article III only grants the Court appellate jurisdiction. - And the legislature does not have the power, under the Constitution, to alter the Supreme Court's jurisdiction. - Statute conflicted with the Constitution which is the SUPREME LAW OF THE LAND

The Slaughter-House Cases

Key takeaway for TOOLBOX: Slaughter-House Cases made the Privileges or Immunities Clause of the 14th Amendment protect virtually nothing—virtual nullity at a really key point in time; NO LONGER GOOD LAW. Facts: Butchers sued after the a Louisiana law--City of New Orleans granted a monopoly in the Crescent City Slaughter-House, requiring all butchers, etc. to slaughter their animals there for a fee. Butchers sued under the 13th Amendment, arguing involuntary servitude; the 14th Amendment's Due Process Clause; the Amendment's Equal Protection Clause; and the Amendment's Privileges or Immunities Clause. Issue: Whether the Louisiana law violates this slew of new constitutional provisions? Holding: No - it violates none of them. The 13th Amendment was designed only for the purpose of ending "African slavery." - The Amendment only talks about "servitude" because drafters wanted to ensure slavery didn't come back under a different name. The 14th Amendment was also intended to insure the "freedom of the slave race" - BOR aren't privileges or immunities of US citizenship. - The Privileges or Immunities Clause only protects U.S. citizenship rights, unlike the Privileges and Immunities Clause, which talks about the rights of citizens of states - fundamental rights that are protected by the states. - U.S. citizenship rights are kind of stupid rights. - The right of free access to seaports and subtreasuries - Not intended to apply the Bill of Rights to the states. - Would mean Court would be constantly reviewing state laws - and if the Court meant to do something that dramatic, it would have simply said so. - The Equal Protection Clause only applies to newly-freed slaves - We have a much broader interpretation of this today ● KWF says: There is a strong, prevalent view that the Privileges or Immunities clause was meant to incorporate the Bill of Rights. - Clarence Thomas thinks Privileges and Immunities Clause should be interpreted to have meant that the provisions of the Bill of Rights apply to the states, Which is fine, but he also wants to undo all of the Court's Substantive Due Process jurisprudence, and that ain't no trade-off at all.

Bowers v. Hardwick

Key takeaway: - Overturned in Lawrence v. Texas. - Religious reason is NOT a legitimate govt purpose; a moral purpose is insufficient to satisfy even rational basis review Facts: A Georgia law criminalized sodomy. Police officer observed Hardwick engaging in consensual homosexual sodomy in Hardwick's own home. He was arrested pursuant to a Georgia law that made sodomy illegal. Issue: Does the Georgia sodomy law violate the Due Process Clause of the 14th Amendment? Holding: No. Analysis: Apply rational basis review because this govt action doesn't infringe a fundamental interest. Previous cases regarding family relations, procreation, child-rearing have nothing to do with the right at issue here: What is the right at issue? right to engage in consensual homosexual sodomy. Is it a fundamental right? No. - The right must be implicit in concept of ordered liberty. - Court applies history & tradition analysis and finds history and tradition outlawed sodomy. Strict scrutiny or rational basis? * Rational basis, since it's not a fundamental right. - Legitimate government purpose? Yes, moral and religious opposition is a legitimate. ****Lawrence opinion hones in on this, calling it "animus" - it is one of the main bases upon which this case is overturned. * Law rationally related to that purpose? Yes, the law is "at least reasonably related" to those concerns. (Lee Optical) Dissent: [not automatically doctrine just bc majority is overturned but can use it to argue] - Characterizes the right broadly as "the right to decide for themselves whether to engage in particular kinds of consensual sexual activity." - To say that an activity was illegal in the past is not enough to say that a right is not fundamental. - Idea of protection of decisional and spatial autonomy in prior precedent support the view that this is a fundamental right. * Autonomy as to certain decisions; Moore - the decision to live with certain family members; Griswold - the decision to control your family planning. * Autonomy as to certain places: See 4th Amendment cases - the home is sacred. Stevens Dissent: - Majority was wrong—the GA law violates the DP Clause of the 14th Amendment. (1) just because the governing majority in a state has traditionally viewed a particular practice as immoral IS NOT SUFFICIENT a reason on its own to uphold a law prohibiting the practice; and (2) Per Griswold, individual decisions by married people concerning their intimacies, even when not for the purpose of having children, is a form of liberty protected by the DP Clause of the 14thAmendment.

McCulloch v. Maryland

Key takeaway: Congress has implied powers, beyond those expressly listed in the Constitution. Facts: Congress created the Bank of the US (federal bank) and Maryland passed a law designed to limit its operation by taxing it. Issues: (1) Does Congress have (implied) power to create a national bank? (2) Does the Maryland law—taxing the national bank-- violate another provision of the Constitution? Holding: (1) Yes, Congress has the power to create a national bank. - Specific intent originalism: We know the Framers of the Constitution would have allowed the Bank of the United States, because they are the ones who created it the first time. - The People created the Constitution: * Maryland argues states can tell Congress what to do, because Congress' power comes from the states * No, the government was created by the People, not by the states. - Implied powers: Nothing in the Constitution prohibits implied powers. * The 10th Amendment did not say those powers that are not expressly given to Congress are given to the states, like the Articles of Confederation did. *Textual rationale* * A Constitution is not a statute - it's written with broad goals in mind, which can necessitate broad means that are not described in the Constitution. - Necessary and Proper Clause: * "Necessary" means that if the end is legitimate, and within the scope of the Constitution, all the means which are appropriate and plainly adapted to that end are permitted by the clause. * Not, as Maryland suggest, only what is absolutely necessary. (2) Yes. - The power to tax is the power to destroy, and Maryland does not have that power over the Federal government. - In fact, the state of Maryland has no power over the Federal government - only the People have that. Analysis: (1) the Constitution omitted the word "expressly" in saying Congress has powers listed in the constitution (as opposed to only has powers EXPRESSLY listed in the constitution). Thus, it gave Congress implied powers too. - Thus, if a power belongs to Congress, Congress can infer the means (an implied power such as creating a national bank) to carry it out. (2) The Necessary & Proper Clause gives implied powers to provide the means to meet Congress' enumerated powers - The check on Congress is the judiciary deciding if the end is legitimate Rule: Congress has implied powers—to decide the means to accomplish its enumerated ends (and the check on this is the judiciary). *** 2-step approach to assessing constitutionality of Federal law (act of congress): (1) is the law enacted within the scope of Congress' authority under the Constitution? (2) Does the law violate some other constitutional provision (SoP, BoR, federalism, 10thAmendment)

Plessy v. Ferguson

Key takeaway: Creation of "separate but equal" doctrine. Facts: State of Louisiana had a law that required train companies to separate passengers by race—i.e. have separate carriages for black & white people. Homer Plessy, a black passenger, refused to go to back area of the train. Issue: Does the Louisiana "separate but equal" law violate the Equal Protection Clause of the 14thAmendment? Holding: No. ● Analysis: - Just because the facilities are separate does not mean they are not equal. - States have long had the power to segregate as part of their classic police powers. - The court says the law doesn't say blacks are inferior—that's how they interpret it (white superiority is presumed throughout opinion) - Classic counter-precedent - this case does not cite rules or language in the Constitution, just latent beliefs about race. Rule: Upholding this state Jim Crow law as constitutional under the EP Clause of the 14th amendment by introducing the separate but equal doctrine. Harlan dissent: ○ This law DOES violate the EP Clause ○ The Equal Protection Clause should prohibits laws that deprive people of their rights based on race, especially "caste"-based classifications such as these. ■ This law puts a "badge of servitude and degradation" upon blacks. ○ Equal Protection Clause was supposed to remedy the effects of slavery. ■ KWF says: This guy was definitely racist but he was able to put it aside and recognize what equal protection was supposed to mean. ○ KWF says: This dissent always comes up in the context of the current debate about affirmative action/racially inclusive laws. ■ Original meaning originalists don't dwell on the wording of the constitution when they argue against affirmative action — they cite Justice Harlan, Brown, and, like, the "I Have a Dream" speech

Griswold v. Connecticut

Key takeaway: Lots of pithy quotes and debate, not much black letter law. Facts: Connecticut has a statute preventing anyone from using - or assisting another person in using - contraception. Griswold is the executive director of the local Planned Parenthood chapter who would advise married people on their contraceptive options—he is fined under the law. Issue: Does the Connecticut statute regulating contraception violate a fundamental right/the constitution? Holding: Yes. - Court majority was afraid of using SDP—but got over it later so not a toolbox case aka do not apply the prenumberable or emanation analysis * Instead Harlan's concurrence said the way to decide if this statute is within states power is to use Substantive DP * Aka this case is never cited for majority if anything it's for Harlan concurrence Majority: ■ NOT analyzing this as a substantive DP issue. ■ The right implicated here "emanates" from the "penumbras" of several amendments - the 4th and 5th, for instance - which together create "zones of privacy" that are violated by the Connecticut law. - Declines use the 14th Amendment because still wary about using Due Process to invalidate state laws willy-nilly, "sitting as a super legislature." - KWF says: This kind of "reading between the lines" of the Amendments is a valid, "structural" approach to Constitutional analysis. But - be alert to any kind of red-zone policy analysis creeping in. Goldberg: Ninth Amendment protects unenumerated rights such as the right to privacy and the right to marry. - The 14th Amendment that protects that right from infringement by the states. - Cites Palko: Look to the traditions and collective conscience of our people."

Loving v. Virginia

Key takeaway: Marriage (later, only "interracial marriage") is a fundamental right (protected by the Due Process Clause). Facts: The Lovings were a white-African American couple who had gotten married in D.C. and then moved to Virginia and established their home. They were indicted in Virginia for violating the state's ban on interracial marriages and told to leave the state. Issue: Does the Virginia law violate the Due Process Clause of the 14th Amendment? Holding: Yes. Reasoning: - Freedom to marry has long been recognized as a vital personal right and to deny this freedom based on race deprives them of liberty without due process. marriage is a fundamental right - "Marriage is one of the basic civil rights of man." - Court compares a state law to what other states are doing, in order to see how the right at issue stands in terms of tradition and history. ** Here, the states had been repealing such laws. - Rule: Apply strict scrutiny to state laws regulating the fundamental right of marriage because freedom of marriage is a fundamental right that cannot be deprived without due process.

Barron v. Baltimore

Key takeaway: Provisions of the Bill of Rights do not apply directly to limit the power of state and local governments. **remains good law but limited by the incorporations doctrine Facts: Barron sued the City of Baltimore under the Takings Clause of the 5th Amendment after the city diverted water and flooded his wharf. 5th Am says, "...nor shall private property be taken for public use, without just compensation." Issue: whether the City of Baltimore flooding Barron's wharf without just compensation violates the takings clause of the 5th amendment? Conclusion: No. Holding: The Takings Clause does not apply to state/City governments because the Bill of Rights does not apply to states—it was intended to limit the actions of the federal government. - State Constitutions are responsible for governing state power - Original intent of the U.S. Constitution was to limit Federal power only - Wasn't until after the civil war that there was a target on state power. - Rule: The Bill of Rights does not apply to state/local govt actions.

Williamson v. Lee Optical

Key takeaway: Rational basis is an extremely low bar, and it will always be applied to economic regulations. Facts: Oklahoma state law prohibited opticians from making new glasses for without a prescription from a licensed ophthalmologist or optometrist. History showed that the state legislature had been heavily lobbied by ophthalmologists, who didn't want to miss the opportunity to charge patients for an eye exam. Issue: Does the Oklahoma optician law violate Due Process clause of 14th Amendment? Holding: No. Reasoning: The law is permissible if there is a concern at hand and the law is rational to correct it. So long as there is a legitimate purpose for the law and the means of accomplishing it through the law are rationally related to it, the law is Constitutional. Standard: Rational basis. The means the law uses must be rationally-related to its legitimate purpose. - Purpose: To make people get more frequent eye exams. ○ Is that the real reason? Court says - we don't care. - Means: Forcing people to get eye exams before getting new glasses. - Is this the best way to accomplish that purpose? Court says - we don't care. Rule: Economic regulations are subject to rational basis review (low bar). Laws regulating the economy do not infringe on a fundamental right, thus the standard of review they are subjected to is rational basis.

Planned Parenthood v. Casey

Key takeaway: Reaffirms fundamental right--woman's right to terminate her pregnancy before viability--but modifies the legal test set forth in Roe v. Wade. Facts: Pennsylvania's Abortion Control Act requires women to give informed consent to get abortion; requires that they be provided with certain information at least 24 hours before the procedure—waiting period; requires spousal notification; for minors it requires getting consent of 1 parent -but there's judicial bypass option; and has a recording and record keeping provision, and medical emergency provision. Issue: Does the PA Act violate the DP Clause of the 14th Amendment? ● Holding: ○ Informed consent provision isn't a substantial obstacle not an undue burden ○ 24 hour waiting period isn't a substantial obstacle not an undue burden ○ Parental consent for minor with *w/ judicial bypass* isn't a substantial obstacle not an undue burden ○ Spousal notification is a substantial obstacle UNDUE BURDEN ○ Recording & reporting requirement is a substantial obstacle UNDUE BURDEN ○ Medical emergency provision not a substantial obstacle --> not an undue burden Analysis: Roe should not be overturned. *** Considerations in overruling established precedent: 1. Has legal rule in case become "unworkable" (can judges apply it)? - Not at all. Courts have to analyze the facts in each case, but that's what we're here for. 2. Has society come to rely on the holding (detrimental reliance)? - Yes. People have organized intimate relationships and defined their place in society on the basis of availability of abortion. 3. Has the law changed to make the case obsolete? - No changes in Constitutional law have left Roe v. Wade to be a sole survivor of obsolete Constitutional thinking. 4. Have facts changed? - A little - but the central finding, that the state has no compelling interest in pre-natal life before viability, is intact. Abandons Roe trimester framework. - Is it a fundamental right? Yes, but not an absolute right. ** But apply UNDUE BURDEN TEST: does the law have the purpose or effect of placing substantial obstacle in the path of a woman seeking an abortion before fetus viability? ○ Unclear test—but seemingly loose fit depending on the judge—unclear fit b/w means and ends ○ Compelling government purpose? ○ What is "substantial obstacle"?!?!? - Analysis doesn't end with the 1% of women it affects, it begins there—proper focus is the group for whom the law is a restriction not the group for whom its irrelevant (courts analysis in saying spousal notification is substantial burden) - Pre-viability, state has a compelling interest in maternal health and potential life. ** State may not prohibit abortion nor impose a substantial obstacle but may regulate (Regulation ex: Make women listen to an anti-abortion speech before they have the procedure.) ** Post-viability, state has a compelling interest in maternal health and life of the unborn. (State may prohibit abortions made for maternal life and health.) Rule: Women have a fundamental right to abortion pre-viability—but the government may regulate that right as long as it does not create an undue burden on the woman. ○ Undue burden test: does the law have the purpose or effect of placing a substantial burden in the path of a woman seeking an abortion pre-viability. Takeaways: ○ Recognition of the right of the woman to choose to have an abortion before viability and to obtain it without undue interference from the state ○ Confirmation to the state's power to restrict abortions after fetal viability if the law contains exceptions for pregnancies which endanger a women's life or health ○ The state has interest at the outset of the pregnancy in protecting the health of the woman and the life of the fetus

Prigg v. Pennsylvania

Key takeaway: The Supreme Court adopts view of federalism interpreting the Constitution to give Congress very broad power to protect rights of slaveholders. Facts: The Pennsylvania legislature passed law (PA personal liberty law) in 1826 prohibiting the removal of "negroes" from the state for the purpose of enslaving them. In 1832, a black woman named Morgan moved from Maryland to Pennsylvania. She was never emancipated, but her owner essentially granted her freedom. His heirs wanted her returned and sent Prigg to capture her. Prigg was convicted in Pennsylvania for violating the 1826 law, argued before Penn. Supreme Court that law violated Fugitive Slave Clause and the Fugitive Slave Act. - Did Pennsylvania's personal liberty law violate Art. IV, Sec. 2, Cl. 3 (the constitution)? - Did the law violate the Fugitive Slave Act of 1793, as applied by the Supremacy Clause? - Is the Fugitive Slave Act of 1793 constitutional? Holding: Yes. ■ Yes, the PA personal liberty law was unconstitutional bc deciding the rules of the road of slavery is a federal govt power Art. IV, Sec. 2, Cl. 3 confers a "positive, unqualified" right to own slaves that state laws cannot supersede. ■ This right empowers the Congress to pass the Fugitive Slave Act, further protecting this right ■ The Fugitive Slave Act is constitutional. Rule: The Constitution gives an unqualified right to own slaves and state laws cannot supersede that (thus, finding an unenumerated right to slavery). Dissent: Even if her owners claim a right to enslave her—that doesn't prevent her from having a right to a full hearing for her and her children before being re-enslaved. ■ Nothing in the Constitution says that the right to enslave someone also gives you the right to kidnap them from another state. ■ We can have a "slavery-protective" Constitution and still have laws that regulate slavery.

Civil Rights Cases

Key takeaway: The initial articulation of the government action doctrine. Congress lacks power to pass civil rights laws banning discrimination by operators of public accommodations (strikes down CRA of 1875). Facts: Reconstruction era Congress passed a law saying that all persons, regardless of race and color, are entitled access to any public accommodation—it prohibited discrimination in places of public accommodations. Stanley and Nichols owned an opera, and sued so they would not have to open up their accommodations to African Americans (AKA the owners of the facilities are the ones challenging the law). Issue: The issue is whether Congress has the power to pass the CRA of 1875? Holding: No it was unconstitutional. -Unconstitutional to attempt to prohibit discrimination in public places / accommodations on the basis of race. Reasoning: - Equal Protection Clause + Section 5 does not give Congress the power to regulate private action. - Can only regulate state actors/entities - Limiting the actions of the people who owned these establishments violates their right to exclude people from their businesses based on race. ● Why did Congress think they had the power to pass? - 13th Am: Section 2 enforcement provision (Congress has the power to pass) - 14th Am: Section 5 enforcement provision * Note: Puts the Equal Protection Clause out of commission as far as protecting civil rights until the 1960s.; This is why Congress relies on the commerce power instead.

Dred Scott v. Sandford

Key takeaways: (1) Interprets Constitution as prohibiting any person of African descent born in the U.S from being a U.S. citizen. (2) Interprets Constitution as limiting Congress' power to enact Federal laws like the Missouri Compromise because right of property in enslaved persons is protected in Constitution. Federal laws conferring freedom on anyone held as a slave in any state infringes on that right. Facts: Dred Scott, a slave, escaped Missouri to Illinois; the Missouri Compromise had made all states north of 36°30', such as Illinois, free states. Scott sued the executor of his owner's estate, Sanford, claiming he was now free because he was on "free soil," per Missouri Compromise. issues: (1) Whether a person of African American descent can be a US Citizen?; (2) Is the Missouri Compromise—outlawing slavery north of the 36 30 constitutional? Holding: (1) No, a person of African American descent cannot be a US Citizen and thus cannot assert their rights in court. (2) No, there is a textual right (to slavery). The court finds there is an absolute right to be a slaveowner ● Congress does not have the power to ban slavery because such a ban infringed on absolute right of slavers to enslave persons of African descent. Early discussion of issues that would surface in the future ■ Federalism: States cannot create laws that contravene the U.S. Constitution ■ Unlisted rights: Court colors in aspects of the right to own slaves that are not in the Constitution, foreshadowing future Supreme Court discussion of "unenumerated" rights. - See McCullough v. Maryland - Marshall says the Constitution is not a statute - it means more than just its words. Dissent points out inconsistencies of the argument, saying that it's rooted in policy. - Under the Constitution, every person born on the soil of a state who is a citizen of the state is also a citizen of the US

Parenting Choices Regulation Cases

Meyer v. Nebraska, 1923 - Facts: A Nebraska law made it illegal to teach in any public or private school in any language other than English. - Issue: Did the Nebraska law violate the DP Clause of the 14th Amendment? - Holding: Yes. - Analysis: Parents have a fundamental right to control the education of their children and the school their children attend. ● Govt purpose: foster a homogenous people w/ American ideals appreciable purpose ● Means: exceed govt police power because there's no need to interfere w/ this right at a time of peace + proficiency in foreign languages isn't injurious to health or morals of ordinary children Pierce v. Society of Sisters, 1925 - Facts: Oregon law required students to go to public school. - Holding: Law interferes with the fundamental right of parents to send their children to the school of their choice.

Judicial Review of State Acts: Cohens v. Virginia

Non- Originalist Analysis Facts: 2 brothers were convicted in Virginia of selling DC lottery tickets in violation of VA law. Appealed to the Supreme Court, arguing that the tickets were authorized by Congress so their actions were protected by the Constitution. Issue: Can the Supreme Court review state criminal decisions where the State is a party? Holding: Yes. The Supreme Court can review state criminal decisions and cases where the state is a party. - We cannot fully trust state courts to adequately protect federal rights because state judges are prejudiced toward state interests, bc they depend on the state legislature for their jobs. - Important not to have different interpretations of the Constitution across different state lines. - Need uniform interpretation of federal law

Cooper v. Aaron

Non-Originalist Analysis - Key takeaway: The Supreme Court does have supreme power in interpreting the supreme law of the land, but federal judiciary needs executive enforcement to enforce its decisions— here, the President — enforcing the court's decisions. - Contrast to when Jackson ignored the Supreme Court and forced the Cherokee to march from Georgia to Oklahoma in Trail of Tears—"you made the decision you enforce it" Facts: President Eisenhower has been unwilling to let Arkansas officials disobey Brown v. Board of Education. Arkansas officials argued they did not have to comply. Holding: The Court cited the Supremacy Clause and Marbury v. Madison for the propositions that: ○ The Constitution is in fact the supreme law of the land ○ The justices have the supreme power to interpret it ○ State officials must act in accordance with SCOTUS interpretation of the Constitution *** But it's not truly the words or decision of SCOTUS, it is the president supporting and complying

Judicial Review of State Acts: Martin v. Hunter's Lessee

Non-originalist analysis Facts: US & England entered 2 treaties to protect the rights of British citizens. Land dispute in which one person claims to own land via inheritance from British citizen; another claims that Virginia had seized the land and given it to him. Virginia court agreed, but the Supreme Court reversed. Virginia court struck back, saying that the Supreme Court has no power of review over state courts. Issue: Does the Supreme Court have the power to review state court decisions? Holding: Yes. The Supreme Court has power of judicial review over state courts deciding federal law questions. - The Constitution created the Supreme Court and gave them the authority to establish lower courts. What if the Supreme Court had not exercised that authority? The Court would have barely any power (just to review via original jx) - unless they had power over state courts so the structure of the Constitution creates this power - Further, state courts may sometimes prejudice litigants with their own provincial attachments, jealousies, and interests. - If the Supreme Court did not have the power to settle federal law, it would not be uniform across the United States. Interpretation: This case is a lesson in Constitutional interpretation. The Court will often: 1. Either apply its prior precedent or explain standard for overturning that precedent. 2. Rely on contemporaneous (18th Century) understandings of the wording of the Constitution 3. Rely on the text itself and the justices' own parsing 4. Rely on the purpose of the Constitution ■ The Framers were concerned state entities might be prejudiced by state government interests. ○ Rely on the structure of the Constitution - Reading between the lines - Art. III did not require the creation of lower Federal courts, meaning the Framers intended for the Court to review state courts since— after all, there might not be any lower Federal courts.

Hodel v. Indiana

REGULATORY LAWS Facts: Upheld federal law that regulated strip mining. Holding: Court may only invalidate a federal law enacted under the Commerce Clause when it's clear there is no rational basis for Congress to conclude that the activity considered in the aggregate "affects interstate commerce." Rehnquist criticizes the absence of the word "substantial" in Wickard test.

United States v. Morrison

Rule: Apply same highly discretionary 4 factors from Lopez Key takeaway: Non-economic, criminal activities are more likely to be subject to this four-factor test for whether a local activity affects interstate commerce. Facts: Petitioner was a Virginia Tech Student who was allegedly raped by Morrison at Virginia Tech. After the school failed to take serious action, she sued Morrison and the school under the Violence Against Women Act. Issue: Does Congress have the power under the Commerce Clause to pass the Violence Against Women Act? Holding: No, it exceeds Congress' commerce power. Congress does not have the power under the Commerce Clause to pass this legislation. Analysis: Four highly-discretionary factors to use to consider: (1) Essential part of larger regulation of economic activity? If yes, Wickard applies. ○ No - criminal statute regulating gender-motivated violence. (2) Is there a jurisdictional element in the crime that a prosecutor must prove? For example, that the gun traveled over interstate lines? ○ No - must be explicit in the statute. (3) Is there a legislative finding related to the impact of gender-violence on interstate commerce? Yes, but not determinative. ○ Yes - Congress had a lot of findings to support this law. (But this factor is not determinative.) (4) Is reasoning linking the intrastate activity and interstate commerce close? Or too attenuated? ○ Too attenuated- connection between gender-motivated violence and its link to decreasing employment in interstate business, decrease of interstate transit, decrease in transacting interstate business, etc., is too attenuated. By that logic, any kind of activity is related to interstate commerce. ○ KWF says: This consideration is probably the most determinative. Notes: Again, majority just wants to make sure there's some power reserved for the states.

Incorporation Substantive Due Process

Rule: SC uses selective incorporation into the 14th Amendment DP Clause to apply provisions of the 1-8thAmendments to state & local govts power. The means by which the Supreme Court has made most Bill of Rights provisions applicable to state governments. - Involves Court's interpretation of the word "liberty" in the Due Process Clause. - Rule: Court uses selective incorporation to apply provisions of the first eight amendments to state and local governments' power - Said Framers of 14th Amendment didn't intend total incorporation, would not have wanted to limit state power so dramatically - Federalism: total incorporation would deprive state and local governments of autonomy; Total incorporation would result in too great a role for Federal courts in state and local government actions - Rejected Justice Black's view that 14th Amendment incorporates the Bill of Rights as a whole. Bill of Rights is now mostly incorporated ○ Explicitly not incorporated: ■ 5th Amendment grand jury indictment clause ■ 7th Amendment jury trial in civil cases

Lochner-era Substantive Due Process: pre 1937

SC was interpreting law based on a policy preference (free market) which delegitimized the court. - The liberty to contract was used as a limit on govt. power to regulate the economy - Ideology associated with Lochner Court: NON REGULATORY * On the side of the employers and bigger companies * No power to regulate because unfair : the employees should negotiate themselves; should not be regulated by laws - Undergirded with philosophy of social Darwinism - leave the economy unregulated and the fittest will survive * There was, back then, an idea that judges were divining natural laws. We've moved to a legal realism attitude - that judges read laws and interpret text. - Liberty includes fundamental right to contract * Court interprets the right to contract was based on pure ideology- No one on the court thinks this now

Assessing Constitutionality of legislative acts under the commerce power

STEP 1: Does the law that was enacted fall within scope of Congress's authority conferred by the Commerce Clause? (IF CROSSES STATE LINES : AUTOMATICALLY WITHIN POWER) - Is the regulated activity economic or non-economic? Economic = "the production, distribution, and consumption of commodities." Compare to facts in Raich - production of fungible commodity for which there is an established, lucrative interstate market? If ECONOMIC: 1. Does it make use of the channels of interstate commerce? (Darby) - If yes, it falls under Congress' commerce power. - If no, keep going. 2. Does it regulate or protect instrumentalities, persons or things that move in interstate commerce? - If yes, it falls under Congress' commerce power. - If no, keep going. 3. Does it involve intrastate activity that substantially affects interstate commerce? (SeeRaich) - Evaluate: Whether Congress has a rational basis to conclude that the activity considered in the aggregate has a "substantial effect on interstate commerce." - Wickard: Can include items that are produced and consumed at home, so long as activity has an aggregate effect on commerce. - Heart of Atlanta/McClung: This is a rational basis standard of review, meaning that Court's scrutiny of whether these laws are justified will amount to no more than a speed bump. IF NON-ECONOMIC: Four highly-discretionary factors to consider: (Lopez; Morrison) ■ (1) Essential part of larger regulation of economic activity? If yes, Wickard applies. ■ Did Congress have a rational basis to conclude that the activity considered in the aggregate has a "substantial effect on interstate commerce"? (Answer is going to be yes.) ■ (2) Is there a jurisdictional element in the law, such as in a crime that a prosecutor would have to prove? ■ (3) Is there a legislative finding related to the impact on interstate commerce of bringing a gun to school? Not determinative. (Morrison) ■ (4) Is reasoning linking the intrastate activity and interstate commerce too attenuated? - Presence of guns in schools less productive workforce too attenuated (Lopez) - Gender-motivated violence deter potential victims from interstate travel and employment too attenuated (Morrison) - **If law meets some combination of the factors, it could fall under Congress' Commerce Clause authority. STEP 2: Does the law violate the 10th Amendment/federalism principles? Does the "commandeer" the state for the enactment or administration of a program? - Compare to New York: Does it take over the state's legislative power? ■ If yes, law violates 10th Amendment. - Compare to Printz: Does it force state agents to administer a federal program? ■ If yes, law violates 10th Amendment. - Compare to Condon: Does it regulate both state and private entities? ■ If yes, it does not violate the 10th Amendment. Two interp of 10th Am ○ 1. Is the 10th Am simply a reminder that the federal government cannot exercise powers not granted by the Constitution? OR ○ 2. Is 10th Am a judicially enforceable limitation on federal government that reserves power to the states?

SUMMARY OF ANALYSIS FOR COMMERCE POWER

SUMMARY ANALYSIS FOR COMMERCE POWER IF CROSSES STATE LINES : AUTOMATICALLY WITHIN POWER 1. Does the Act exceed Commerce's Commerce Power? - Apply Raich 2. Whether the activity being regulated is economic? - Activity being regulated = smoking - Economic = production, distribution, consumption of a commodity - Argue BOTH WAYS - If it IS economic: Wickard Test (state that there is a strong presumption that the government will win) - If it IS NOT economic: Lopez / Morrison (can't really predict) --> Tempted to say that the government will lose, but THE COURTS ARE IN CHARGE OF APPLYING AND WEIGHING THE FACTORS

Medical Autonomy Regulation: Washington v. Glucksberg

Takeaway: unanimous decision to uphold state law prohibiting physician-assisted suicide—but the justices split 5-4 on rationale. Rule: Apply history & tradition and that's all. [KWF says do not stop with history & tradition—keep going like Lawrence & Obergefell]. Facts: A Washington State Law made physician-assisted suicide a felony. The plaintiffs, a group of doctors who practice in Washington, argued the presence of a liberty interest in the choice to commit physician-assisted suicide. Issue: Does the Washington law violate the Due Process Clause of the 14th Amendment? Holding: No. Analysis: 1. What is the right at issue? Freedom to commit physician-assisted suicide. - KWF says: The plaintiff probably described it more like, "freedom to die in the manner of one's own choosing." Or ending pain in terminal illness 2. Is it a fundamental right? No. - The right must be (1) deeply rooted in this nation's history and tradition and implicit in the idea of ordered liberty such that neither liberty nor justice would exist if they were sacrificed and (2) carefully described. - Here, history and tradition of this nation indicate, we have strongly rejected all efforts to permit it. * There is a long history prohibiting assisted suicide and precedent allows refusing lifesaving treatment but not allowing assisted suicide 3. Strict scrutiny or rational basis? ■ Rational basis, since it's not a fundamental right. - Legitimate government purpose? Yes, strong interest in (1) preserving life, (2) integrity of the medical profession, (3) protecting vulnerable groups, and (4) avoiding involuntary euthanasia. - Law rationally related to that purpose? Yes, the law is "at least reasonably related" to those concerns. (Lee Optical) - O'Connor: Would define the right more broadly - as "the right to control the circumstances of one's death" - but the law survives strict scrutiny because narrowly-tailored to achieve the important interests - Stevens: Agrees that this is not a fundamental right, but that there are situations when hastening your own death might be legitimate and worthy of protection. - Breyer: Would define the right more broadly as "the right to die with dignity." - KWF says: Different precedent could support a different outcome. For instance, what if the Court applied "decisional autonomy" as precedent? **** She said the concurrences are saying if we get another case like this we might find a fundamental liberty interest

Harlan Dissent in the Civil Rights Cases

The 14th Amendment was intended to Congress the power to pass the laws like the Civil Rights Act. - Congress HAD THE POWER. - Section 5 gives Congress the power to enforce the whole amendment, including equal protection of the laws for all. - Interprets Article I of 14th Amendment to mean that certain things come w/ being a citizen --> such as access to public facilities - Citizenship Clause of the 14th Am changed everything --> said ALL people born in the US are citizens - Practical enforcement of the 14th Amendment should mean holding public accommodation to a higher standard than a private dinner party. In fact, certain types of businesses (like inns or theaters) are instrumentalities of the government, and are charged with duties to the public. If we could uphold Fugitive Slave Act of 1793/1850: Why can't we uphold the Civil Rights Act of 1875? - It should follow if one is constitutional, because of an implication of power, then so should the latter Note: Court later expanded government action doctrine from the 14th Amendment to the entire Constitution (except 13th Amendment).

Incorporation Today:

The BOR is mostly incorporated What is not incorporated? - 5th Amendment (grand jury criminal indictment) - 7th Amendment (jury trial in civil cases) What is undecided? ○ 3rd Amendment (soldiers) ● 9th Amendment: "The enumeration in the Constitution of certain rights, shall not be construed to deny or disparage others retained by the people." - possible interpretations of 9th Amendment: (1) Language to make clear fundamental rights not limited to are not limited to the Bill of Rights and judges can find and enforce other rights. - Current majority approach. - But no substantive rights are protected by the 9th Amendment—thus no violations of 9thamendment (2) Precautionary language making it clear the Federal government has limited powers (no implied federal govt powers) (3) Same as answer (1) but Congress (not judges) should find and enforce unenumerated fundamental rights. (4) More than one of the above Helpful Substantive Due Process tip: Don't think of rights protected, but of government actions that are outside the boundaries of the power conferred to it by the Constitution. - Governments run afoul of the Constitution by using powers they are prohibited from asserting. 14th Amendment simply encompasses unenumerated prohibitions.

Tax Power

United States v. Butler, 2000 - Holding: upholding provisions of the Agricultural Adjustment Act as within Congress's Power to tax for the general welfare of the US NFIB v. Sebelius, 2012 - Issue: Does Congress have the Constitutional authority to pass individual mandate? - Holding: Yes Court upheld Affordable Care Act as within Congress' taxing power. * Congress does not have the power under the Commerce Clause to enact the individual mandate of the Affordable Care Act bc the mandate doesn't regulate pre-existing activity * Congress does have the power to enact the individual mandate under its power to tax for the general welfare.

Buck v. Bell

Virginia statute authorizing forced sterilization does not violate Due Process Clause. Was never overruled, but Skinner recognized fundamental right to procreate...

Gibbons v. Ogden

[still valid law but old—put at bottom of commerce clause toolbox] Facts: Dispute between Ogden, a steamboat operator working under an exclusive license from New York, and Gibbons, a ferry operator licensed to operate under Federal law. Gibbons argued the New York license violated the Federal law and interfered with Congress' commerce power. Issue: does Congress have the power through the Commerce Clause to regulate navigation of steamboats? Holding: Yes. Analysis: - The scope of "Commerce Power" is broad because "commerce" should be defined broadly. - "Commerce" is not just buying & selling (it's also includes navigations) - Commerce is "intercourse," including not only the interchange of commodity but, as relevant here, navigation as well. - "Commerce among the states" includes a state's internal affairs that have an effect in other states. * But does not include internal affairs that have no effect outside the state. - The 10th Amendment does not restrain Congress's power where, as here, Congress has a specific grant of power. * Where the grant is specific, Congress's power is "plenary." Rule: Commerce is not just buying & selling—also includes navigation. Congress can regulate via the commerce power, external concerns of nation and internal concerns which affect the US states—but cannot regulate things completely in individual states which do not affect other states Key takeaway: The oldest Commerce Clause case, but still good law. § TAKEAWAY- this is a broad interpretation of Congress's power ·-Things completely internal that don't affect other states (not within power) - Pretty much everything else is

Original Meaning Originalism Analysis (see DC v. Heller)

■ OMO inquires into how contemporaries understood a right, and how they expressed it in the laws they created, in order to understand what the Constitution meant at the time it was ratified. Look to: 1. Contemporaneous (late-18th Century) state constitutions - Four states had similar arms-bearing provisions; all four were for self-defense purposes. - Federal Constitution was obviously not meant to be an outlier. 2. Founding-era legal scholars. - Evinced general understanding that right to bear arms was not connected to militia service 3. Post-civil war court decisions, editorials, Congressional statements. Don't look to: Legislative history. - It is not relevant because this was the codification of a pre-existing right.