Constitutional Law

Fundamental Interests and Equal Protection

1. Closer scrutiny for classifications that bear upon fund rights i. Main ones: access to voting and access to the court/judicial process (criminal and quasi-criminal). ii. Got steam and then petered out - was Lawrence (dignity as a fusion word) a revival of this doctrine? Basically a fusion doctrine (DP + EP) - really important right (but not fund like race sex, maybe alienage) + indices of suspectness (but not suspect) = SS Some think its half and half meets whole (kennedy/ harper) Some think its bupkiss +bupkiss = bupkiss (scalia) Some think its whole fundamental right, plus guidance from equal protection One professor says how sometime you need to look through two glasses, synergistic, stereoscopic to see the whole. Justice breyer in his dissent to plyler, thinks that its bupkis, in a case involving undocumented kids (which are not treated to the same heightened level as aliens) going to public school Fundamental interest in voting: the original constitution contains no "right to vote . the explicitly left the states to the determination of of administration of votes for both national and state elections . see article I %2, and Aritcle II, %1. ButThe right of citizens of the United States to vote in any primary or other election for President or Vice President for electors for President or Vice President, or for Senator or Representative in Congress, shall not be denied or abridged by the United States or any State by reason of failure to pay any poll tax or other tax. Not exactly at issue below, since this is state administration issue not federal, so you have to take up other routes, in this case they do FIEP Should equal protection or due process get involved for ensuring that right to vote? 2. Harper v. VA State Board of Elections (1966) - poll tax invalidated. Right to vote not in the Constit. But it is a very important interest (DP) and once states make it a right of some, lines cannot be drawn which are inconsistent with EP. Ct says State has right to make qualifications for voting, but wealth is not related to "one's ability to participate intelligently in the electoral process. i. Issue - everyone treated the same, but there is a disparate impact on poor people. Wealth not a suspect classification, though, but courts do worry about it. And even if it were, law is facially neutral. Disparate impact would have to smoke out a bad purpose to invalidate it. So where is the EP part? At this time, disparate impact was still part of the Ct's jurisprudence (Davis was 1976). So this case deals with half and half but also disparate impact. So they treat the disparate impact of poor people as the same as if they said it (later cases also interestingly don't make a big deal about the distintion either either) Court says it's a FIEP violation (they treat it with heightened review) because 1 voting is really important/ precious, it helps preserve other rights (DP), and poor people are also someone the court is suspicious about. Skinner: a fiap case, bby the tiem it was deicided court had not recognized procreation as a fundamental right. (thought now it would be recognizes as such. They basically use FIAp analysis. poverty as ep half, procreation as due process. Obergefell: Zablocki v. Redhail, (1978), couldn't required noncustodial parents who were state residents attempting to marry inside or outside of Wisconsin to seek a court order prior to receiving a marriage license -also involved feud due process Turner: -struck down requirement of getting approval from warden if in jail to get be married (a little mix of due process and Windsor -several provisions in states DOMA (don't have to recognize same sex from other states Case about: as a matter of federal law marriage is between ma in women in federal courts. This was struck down under equal protection clause. Obergefell: -Justice kennedy -this case I part due process and part equal protection Reasons that this was due process/ fundamental liberty interest 1. autonomy (tied to cases dealing with family relationships + contraception) 2. Relationship: right to be in a relationship predates bill of rights (Griswold, about marriage relationship) 3. Child rearing (implicated here because of effects on kids) 4. Keystone of social order, so to keep 1 group out would be demeaning (fusion of DP & EP). Kind of like in Lawrence about demeaning. Mixing of the two EP + & DP connected saying : "these consideration lead to the conclusion that the right to marry is a fundamental right inherent in the liberty of the person, and under the due process and equal protection clauses of the fourteenth amendment." - he is basically saying there is a fundamental rights though, but equal protection is an important guidance. This is the 3rd vision of EP + DP , the epistemic vision, we learn about EP + DP by reading it, each may be instructing of the right of the other. One of the reasons to say we need ep is because double lens help us figure out what are the fundamental interests. Think about whether it would eb okay to have something while the others don't. means of testing what is a fundamental right. Kennedy might be using this to help dispel the idea that his decision is just subjective. Showing that he is being constrained by EP to determine what is fundamental Roberts : Thinks you don't have a due process claim -Claim of Lochnerizing, , unconstrained judging), thinks fundamental interest should only be based on history and tradition, not substantive due process. That should be left to legislatures a way -Also other fundamental liberties interest are about barriers this is just about recognition. You can still get married, this is just official recognition from state. -On the equal protection side he says this doesn't look like anything we've seen before. It doesn't say anything about level of scrutiny, etc. Scalia: Majority talks a lot about "liberty" here but takes away liberty to govern themselves (connected to the tension in the declaration) 2 ideaS of liberty always conflicting

Poverty and Wealth Classifications

Age classifications. Massachusetts board of retirement v. Murgina Court applied rationality standards in sustaining a mandatory retirement law for unifrmed police offices . and rejected suspect classification claim. Sayi the class of state police officer fver 50 does not constitute a suspect class for purposes of equal protection analysis . while the treatment of he aged in this nation has not been wholly free of discrimination, such person, unlike say, those hwo have bene discriminated against on the basis of race or atiaon al origajin , ahven to expected a "history of purposeful unequal tremetnt or been subjected to unique disabilities o nteh basis of steotped characteristics not truly indicative of their abilities. The class subecjt to the compulsory retirement features of the ma staute consist of unfimred state police officers over age 50. It cannot eb said to dismiante only agaistn the eledely. Rather ti draws the lien a certain age in middle life. But even odl age does not diene a dsicete and insular group in needo f extraordinary protection from the majoritarian political process;. Instead it makes a statage that each of us will reach if we live out our normal span. Justice marshals dissent observed: the court is quite right in suggesting distinctions exist between the elderly and traditional suspect groups such as negroes, and betwenelediyl and quasi suspect classes such as women or illegal aliens. The elderly are not isolated in society and discrimination against them is not epvaice but is eitend primarily in employment. But the elderly are undoubtedly discriminated agains ,and when legislation denies man this important benefit - employment - I concluded that to sustain the lecition here the state must so reosnable ly substantial litenrst an scheme reoasbyl ataitled ota hcieve that itnerst. Poverty and wealth classifications. Should governmental action that has differential impact depending upon economic conditions receive heightened scrutiny/ Consider the following comment on the difficulty of considering de factor wealth classification suspect: "the trouble is that , unlike de facto racial lciaslciton that usually must seek its jection I purposes comepelyl diect form tis race raltedi mptc, a de facto pecuniary classification typically carries a highly persuasive justification inseperable from the hard choices it forces upon he financially strained." Fpr te typical fro m assumed be such classfication is simply the charging of a price, reasonably approximating cost, foro sme good or serve which te ocmmalng may freely choose to purchase or not to purchase. But the risk of explores ure to amrekts and their diicosn is nor normally deem to objectionable to say the least n our society. Not only do we not inveigh generally against unequal diecitntio of income or full cost pricing for most goods. We uusall rgard it as mbto the fairest and most efficient argument to require each consumer to pay the full market price of what he consumes The court in declined to find wealth classifications alone sufficient trigger strict scutiny (although wealth classifications coupled with burden on fundamental interests are different matter ) James v. valiterra , for example Jsutice black's majority opinion rejected an equal protection challenge to a California constitutional reuemtn that no lwo rent housing npreocjt shall eharevater be developed by any state public body without prior approval in al coal referendum. The provision defined low rent housing as any development for person of low income person or family who lack the amount of income which is necessary to enable them without financial assistance is necessary to enable them without financial assistance to live in decent safe and saitydweleignsiwhtotu overcorign . He emphasized that rpovisn did not eivnvole dicitons based on race, and rejected the contention that the provision singled out out aoviates of low income housing by mandating a referendum while many other referenda only took place upon citizen initiative Justice marshals dissent, joined by justices brnan nand Blackmun insitutted that the provision on its face constituted inviosu diection;; ti t was an explicit classification o nteh abi of poverty- a suspect classification which demands judicial scrutiny.

Foreign Affairs and War Issues

Youngston Sheets & Tube Co v. Sawyers [Steel Seizure Case] In April of 1952, during the Korean War, President Truman issued an executive order directing Secretary of Commerce Charles Sawyer to seize and operate most of the nation's steel mills. This was done in order to avert the expected effects of a strike by the United Steelworkers of America. - Black/ majority thinks only the powers that are granted though count (formalist approach) We cannot hold that the commander in chief (even in war) has the ultimate power as such to take possession of private property in order to keep labor disputes from stopping production. This is a job for the nation's lawmakers, not for its military authorities. ... The constitution limits the presidents function in the lawmaking process to the recommending of laws he thinks wise and vetoing of laws he thinks bad. Congress makes laws president executes them. Frankfurter Concurring -More functionalist -emphasizes it's a constitution we are expounding, from McColloch -We have to look at this and think of balance of powers/ separation of powers -more tolerable though , since this is beyond the congressional power But he creates a list of assertions of executive power in comparable circumstances and finds that over years this was very rarely done (three times) so they shouldn't allow it. Jackson concurrence (**Most important) 1. Congress authorized - lenient standard / deference 2. Congress silent - grey area, "zone of twilight" 3. Congress rejects - "power is at its lowest ebb" , scrutnity and skepticism is necessary *none of these are absolute We should think about what levels of deference to give (think of these as a sliding scale), but also need to think of context a bit -there's space to act in certain contexts -The explicit text of the constitution gives congress and govnemrnet right to act in war (to raise and support arms and to provide and maintain a nave) -but congress gives right in support of rasing armies, black though it needed to be part of war Jackson said that congress forbids it through statutes granted in other contexts, but not this one. It is still I the third category though **Jackson also worried about when there is an actual emergency, maybe there is some residuall power in an emergency -says that the executive retains some power for emergencies, that there might be situations when congess will have to delay with maybe giving up its powers in that circumstances. "but it is the duty of the court to be last, not first, to give them up." *when analyzing exectuvie powers and using this case, begin with Jackson concurrence Chief Justice Vinston (dissenting):This is the exact type of ciruccmtance when the president should have emergency ppwoers, a strike thereaitnign to shut down the entire basic steel industry during time of war, needed for cotnitued prodiciton and stabizaition fo prices of steel. Zivotofsky v. Kerry Facts: In 2002, Manachem Zivotofsky was born in Jerusalem to parents who are United States citizens. Manachem's parents requested that the U.S. State Department record his place of birth on his passport as "Israel," in accordance with Section 214(d) of the Foreign Relations Authorization Act of 2003 (Act). The State Department refused and instead issued Manachem a passport that listed "Jerusalem" as his place of birth. His parents sued the Secretary of State on his behalf and sought the enforcement of Section 214(d). Congree thinks they should be able to assign Jerusalem born citizens asbeign born in Israel, passing the Foreign Relations Authorization Act. President though otherwise. Kennedy majority Textual: The only power the president has is whatever the president has alone, the power in this case was granted from the constitution - The reception clause (art II: president "shall receive ambassadors and other public Ministers." -so president alone can do this. "Recognition" connected to the reception clause Recognition power also comes from, the fact that it is for the president "by and with the Advice and Consent of the Senate, to "make treaties, provided two thirds of the senates present concur. " Art. II, %2, cl 2. In addition "he shall nominate, and by and with tha dvice and consent of the senate , shall appoint ambassadors" as well as "other public ministers an Consuls." -"As a matter of constitutional structure these additional power give the present control over recognition decisions" "the constitution thus assigns the present means to effect recognition on hiis own initiative. Congresss, by contrast has no constitutional power that would enable it to initiate diplomatic relations with a foreign nation." President can negotiate treaties initiate diplomatic relations. Functional Basis: This is an instance where the country should speak with 1 voice. In conducting foreign affairs and in recognition of nations we need to speak with one voice. -Only the executive has the characteristic of unity at all time, this helps it to excercise to a greater degree "decision, activity, security, and dispatch." (the federalist No.70 A. Hamtion. -the president is capable of engaging in the delicate and often secret diplomatic contact that may lead to decision non recognition. -he is also better position to take on the unequivocal action necessary to recognize other states at international law. Justice Thomas (concurring) Focusing on the fact that vesting clause doesn't say herein granted, so vesting clause gives present powers beyond the document to all those understood as falling within executive power of the federal government. Ex: "William blackstone desciebed the excetive pwoeri n engladn as icnlduign foreign affairs powers, such as the power of sending ambassadors to foreign states, .., making treaties ,alliances, making war and peace and issuing letters of marque and presial" -so given that is was the general practice at the time, the framers would have thought executive power include foreign affairs. -there are some needs for a broad resisudal power. Justice Roberts (dissenting) -textual dispute, reception clause deals with president's duties rater than power, so maybe its not an expansiion of powers of congress? -also the treaties and appointing ambassoars in Arti. II %2, are shared with congress so not exclusive **There are differences in powers granted to executive and congress. The question is how important is to be blackian? Maybe to speak with 1 voice, or is it okay to be more tolerant Justice Scalia (dissenting): Thinks that this makes the president akin to a king. -thinks they made a huge leap from recognition, a legal act, to making statement or issuing documents about national borders.

Cts sex jurisprudence

heightened RR Reed/Frontiero, Intermediate scrutiny Craig to VMI analysis (general insistence on formal equality or "gender-blind Constitution) w/ real differences exception, that gets unpacked below.. So court tries to combat stereotypes (doesn't care as much about generalizations since those pervade our law) . Stereotypes are negative and also maybe inaccurate (could be false in one of the three ways, (note all, or 51%, or more than average) but also maybe not based in biological aka pregnancy differences)

Facially neutral laws with racially discriminatory intent (purpose) or effect (the question we are looking at here is whether intent vs effect matters) -

i. Yick Wo v. Hopkins (1886)- laundries need to be in brick/stone building or need consent of Board of Supervisors - gave approval to non-Chinese, but not to Chinese operators. Ct strikes down bc although facially neutral, it is applied with an "evil eye and unequal hand" = bad intent and effect/administered discriminatorily ii. Palmer v. Thompson (1971) - Miss shuts down swimming pools after order to integrate. Ct rejects EP claim based on bad intention of legislature. Intent is not a sufficient reason to invalidate a law bc: • Hard to determine what a group of legislators motivations are. Can't determine the sole motive is bad - another plausible reason is that operating swimming pools is expensive and unsafe on an integrated basis. • If motivations are looked to, legislature can just "change the motivation" and re-pass the law • No affirmative duty for State to operate swimming pools • Old case law might seem like we were focusing on intent, but actually effect is what was the focus/what is important • What about Moreno (animus towards hippies)? White dissent - Bad message "closing the pools is an expression of official policy that Negroes are unfit to associate with whites." iii. Washington v. Davis (1976) - why we should focus on intent, not effects. Effects are not sufficient. Police screening test had disparate impact on blacks (failed more often), but Ct rejects claim bc no bad intent. Can use effect to infer intent (Bad effect = prima facie case of bad intent - ppl intend the natural and probable consequences of their actions), but effect is "not the sole touchstone" of and EP violation. Instead, a racially discriminatory purpose is what is necessary. • If bad effect smokes out bad purpose or have evidence of bad purpose, then "With a prima facie case made out, 'the burden of proof shifts to the State to rebut the presumption of unconstitutional action by showing that permissible racially neutral selection criteria and procedures have produced the monochromatic result." If have another reason that is not bad, then no need for strict scrutiny. If no other reason than bad intent, then apply SS. Why the court thinks intent is better? Using effects would lead a lot of legislation and programs (e.g. taxes, welfare) to fall based on how race is correlated with socioeconomic status, etc. Also, expect mutual reciprocity of advantage, but for D&I minorities, wins/losses might not even out over time. Intent shows this process defect. • Tried to distinguish Palmer v. Thompson saying that the holding had nothing to do with disavowing intent and had more to do with the fact that the gov end was valid. Dicta doesn't matter. Stevens concurring - the line betw discriminatory purpose and effect is not as bright and not as critical as majority suggests. ** so how do we look at Palmer & Davis? They seem to be opposing. In which case maybe only Washington v. Davis, counts and effects not sufficient but intent is. Or maybe you need both than, neither is sufficient. (P.S. Us is an outlier in that it says effects are not sufficient) iv. Arlington Heights v. Metropolitan Housing Corp (1977) - challenge to Chicago suburb's refusal to grant a request to rezone certain property. Rezoning would have resulted in an influx of minorities into the predominantly white area. Ct ends up rejecting challenge, but spells out the way to find a discriminatory purpose: • **"Davis does not require a plaintiff to prove that the challenged action rested solely on racially discriminatory purposes." Enough to show that a racially discriminatory purpose was a motivating force in the decision. • Need to look to the circumstantial and direct evidence of intent: impact, historical background of decision, specific sequence of events leading up to the challenged decision, departures from the normal procedural sequence or substantive departures if factors usually considered important by the decision maker strongly favor a decision contrary to the one reached. • Proof that the decision was motivated in part by racially discrim purpose shifts burden to defender of decision in establishing that the same decision would have resulted even had the impermissible purpose not been considered. • If they can do this, then no judicial interference necessary. v. Why apply SS once a bad intent has been discovered instead of just invalidating the law right away? Arguably, the reason is similar to that often given to avoid any motivation inquiries - the futility of invalidating laws when lawmakers could enact the very same law if their motives were pure. Pg. 529

States at First Sought 10th Ammenment immunity btu were mostly unccessfule

ii. NY v. US (1946) - federal tax to NY's sale of bottled water from state-owned springs. Ct rejects attack- "As long as Congress generally taps a source of revenue by whomever earned and not uniquely capable of being earned only by a State, the instit of the US does not forbid it merely bc its incidence also falls on the State." SO basically, can make a statute that affects everyone and also incidentally affects state, but not one that just directly targets state . ex not states capital or sate house, its public schools, parsk, etc. iii. National League of Cities v. Usery (1976) - fed regulation extends min wage and max hour provisions to employees of state and local govs. Ct strikes down - says extension w/in Congress' commerce authority, but nonetheless unconstit bc it impermissibly interfered w/ states' role as an employer. "signficantntly altering or displacing the states abilitites to structure employer employee relationshisp in such areas as fire prection, police protection, , santiciaton, public health, and parks and reucreation" *so an imrpotant case about cogness's ability to regulate states conduct under geernal laws that also regulate the similar conduct of priate actors (n this case as employers) iv. Garcia v. San Antonio Metropolitan TA (1985) - (setting min wage and overtime pay to gov emploes) overruled National League. Ct says effort to define "traditional gov functions"/state functions that were integral to state sovereignty that were immune from fed regulation had proved unworkable. Says state sovereignty is protected by 1) "procedural safeguards inherent in the structure of the federal system" (states have sway over who is elected to Congress and who is Prez so they can represent their interests at the national level), and. Dissent doesn't buy this. And focuses instead on the protections of states in the constitution, and said congress is insensitive to state land local vluvues ,and focused on the principal of a democratic self government. - pg. 131, 133

Application of Intermediate Scrutiny (How the court does it today

Craig v. Boren (1976) - 3.2% beer case, first showing of intermediate scrutiny test (requiring "important" ends and "substantially related" means. State says objective is traffic safety. Ct rejects - "appellee's statistics (.18% of 18-20 females drink and drive vs. 2% of males) in our view cannot support the conclusion that the gender-based distinction closely serves to achieve that objective and therefore the distinction cannot under Reed withstand EP challenge." "Certainly if maleness is to serve as a proxy for drinking and driving, a correlation of 2% must be considered an unduly tenuous fit." Also, statute doesn't prohibit males from drinking 3.2% beer, just prohibits from purchasing it. *so issue was the lack of fit Concurrence Powell: Thinks under rational basis review (with bite) would overturn this law. Doesn't care about intermediate scrutiny Concurrence Stevens; doesn't like the tiered system of equal protection analysis, thinks this should be strict scrutiny ,and the law wouldn't pass Rehnquist dissent - finds it weird that men are allowed to invoke the protection (no showing that they are disadvantaged as a group, etc) and also thinks RR should be applied, which he would find would uphold the statute. 4. Miss University for Women v. Hogan (1982) - Ct sustains challenge of male applicant to all-female nursing school. O'connor's maj opinion - "That this statute discriminates against males rather than against females does not exempt it from scrutiny or reduce the standard of review." Introduces "exceedingly persuasive justification" language - test "must be applied free of fixed notions concerning the roles and abilities of males and females." Does statutory objective reflect archaic and stereotypic notions? If obj is to exclude or "protect" members of one gender bc they are presumed to suffer from an inherent handicap or to be innately inferior, the obj is illegitimate. State said this was compensatory objective - educational AA for women. Ct rejects - no evidence to say that women have been discriminated against in receiving an education in nursing. 5. J.E.B. v AL (1994) - peremptory challenges to jurors based on gender unconstit, says needs "exceedingly persuasive justification" as well the fact that we can't justify laws based on stereotypes (that men will favor men in paternity actions and women will favor women (who bear children) rehnquist dissent: thinks there are experience differences between men and women that we should consider. 6. US v. Virginia (1996) - (case on admittance of women to Virginia military institute)). upholds the exceedingly persuasive justification analysis. Says the burden of justification is demanding and rrets on the state. Need to show that it serves important governmental objectives and that the discriminatory means employed are substantially related to the achievement of those objectives. The justification must be genuine, not hypothesized and invented post hoc I response. And it must not rely on overbroad generalization about the different talents, capacities, or preferences of males and females. Reasons courts turned down this case (showing it was kinda strict scrutiny, but maybe about more) 1. Fit: bad fit, male as proxy doesn't work, overbroad, and needs a strict fit. Even if men generally are more adverse, that's not good, because one or a few women might be as well 2. Generalizations + Inferiority (anticast), perpetuating inferiority (this was rejected/ lessened as a focus in Washington v. Davis) 3.Overbroad plus demeaning (expressive) -differences between men and women should be cause for celebration not denigrations 4. Article constraints on an individual opportunity (to be in this unique and esteemed position/ gates of opportunity), maybe this wouldn't be as relatvant though itif it wasn't such an important opprtuntiy -more like due process Also making an attempt to make an alternative school program is no good, because it was not the same types of program and some of the women ma y prefer the adversarial vs the cooperative programs. Also there are prestige and benefits associated with the VMI that don't come with vmi. Vwil may be valuable but it is not a cure at a ll for ht opportunity and advantages withheld form women who want a vmi education and can make the grade. So they fail to meet the exceedingly persuasive justification. Sub factor.Courts have the purpose of just keeping women out (the purpose you use has to be the real basis, not just a rationalization). Side Note: *stereotyping is a negative form of generation *ways things can be true as a generalization: all, 51%, more than other ones Like Craig case (men more likely than women) Turns down the argument that single sex education provides important educational benefits, and the option of single sex education contribute to diversity I educational aprpaoches. -says no fit, diversity is good but the history shows this wasn't meant increase idversity And reject that ht vmi method of a character decelopemtn training would have to e be modified to admit women -state should not deny women who have ht will land coapcity, , we take a hard look at genraitlaito nor tendencies of the kind expressed by Virginia. Some women may want to do it, one might not, also some men might not want to. Concurrence Chief justice Rehnquist: Even if diversity in educational oprpotutntiy were the statse actual objective that would still be problematic because they only had a program for women. Says its not the exclusion of women that violate equal protection clause, but the maintenance of an all men school without providing any- much less comparable institution. (so he is focusing on equality, rather than on liberty. Says state needs to provide a comparably institution for women) Scalia dissent: (thinks justice Ginsburg is applying strict scrutiny. Thinks that the fact that there could be 1 women who wants to do it means that its not fit isn't good) -That's kind of true, but she could say there were interests were at play, to just the lack of fit thinks that the standard of review applied was too high, should be intermediate security, based o an substantial relation between state action and interest served. Says Virginia's decision not to maintain within its system one school that provides the adversative method is substantially related to its goal of a good education. Virginia election tot fund one public all male instiution and one on the adversative model and to constitute its resources in single entity that serves both these interests in diversity - is substantially related the to states important educational interests. Is single sex education ever constitutional? This case might suggest no , but Ginsburg says in a note that's not true if its evenhanded to support diverse educational opportunities. After Virginia iswloer courts have upheld sexually segregated athletic programs in public education. Though. -so maybe not about perfect fit but also about fit + something else (one of the other three factors)

Privacy

During the Lochner era there was no need to distinguish between economic and noneconomic substantive due process because both were fine. 1. Consistent with Lochner economic liberty rationale, Ct strikes down several other laws: i. Meyer v. Nebraska (1923) - Ct struck down law that forbade teaching of foreign language to children. (economic in the sense of teaching opportunities/ jobs; noneconomic in terms of family rights) ii. Pierce v. Society of Sisters (1925) - Ct struck down law that made public education compulsory (instead of private). (economic in the sense of teaching opportunities/ jobs; noneconomic in terms of family rights) iii. Skinner v. Oklahoma (1942) - Ct struck down law mandating sterilization for third time offenders of certain crimes. After Lochner era ended, so Ct was careful to not use same rationale, so relied on Equal Protection because of classification of crimes that counted (crimes poor ppl commit counted, but not white collar). But in reality this was a non-economic substantive due process case: "We are dealing here with legislation which involves one of the basic civil rights of man. Marriage and procreation are fundamental to the very existence and survival of the race. [There] is no redemption for the individual whom the law touches ... He is forever deprived of basic liberty."This was overall an intermediate case Griswold v. Connecticut (1965) - Supreme Court ruled that a state's ban on the use of contraceptives violated the right to marital privacy (or maybe more than marital privacy depends how you analyze it). Ct adopts a strategy to avoid getting in to Lochner rationale/ to make it more legitimate at the time. Finds right to privacy by tethering it to multiple provisions in the BofR, "penumbras" of the 1st, 3rd, 4th, 5th, and 9th = fundamental right to privacy (Rationale 1). Not saying there are fundamental liberties that are not enumerated bc that's Lochner, but then Douglas does basically says that later in opinion kind of as a backup/sidenote when he establishes the right to privacy basically "We deal with a right of privacy older than the BofRs."(Rationale 2 -natural rights view). Right to privacy is intruded on by the contraceptive law - coming into home/marriage. Key that the law regulating use (bc now intruding on the marital bedroom) and not just sale or manufacture. He also talks about meyer + pierce by reaffirming them and showing that if they are rightly decided how could we get that result without considered the penumbra of rights. The only way the BoR can be meaningful is if its protects things around them. Goldberg concurrence - Uses 9th Amendment to say that "liberty" protected by 5th/14th does not just encompass first 8 amendments. Other rights that are fundamental are protected - says right of privacy in marriage is fundamental that is "retained by the ppl" under the 9th amend, which is really an inspiration/ reminder and can be looked at more broadly (for substantive due process) Harlan concurrence - 14th amendment is its own enumeration of rights. The right stands on its own bottom. Don't need to look to other amendments to find right. Basic value implicit in concept of ordered liberty. (also for substantive due process) Black dissent - accuses majority of "Lochnerizing." Doesn't find a right to privacy in the constitution. Willing to say meyer and such were wrong, rejects everything about Lochner / substantive due process. . Doesn't like that it allows judiciary to determine something in a way that is not constituionally based, so too subjective. *Harlan majority responded to this though saying that there are values of judicial self restraint coming from history traditions, etc. that protects against that concern. Possible scope of right to privacy in Griswold: i. Decisions ii. Marital relations iii. Professional Relationships iv. Body (maybe) and procreation v. Special dimension of privacy (the home) Analysis of Griswold v. Lochner: were both wrongly decided, both rightly decided, or was Lochner wrong and Griswold right? i. Similar (so one wrongly and one rightly decided) • Inferring a right that is not specifically stated • Could argue that economic rights are equally pre-political • Giving judges too much power (Black) - No constraint on judicial decision- making, worried about subjectivity ii. Different (so both rightly decided) • Lochner infers an economic right - Not as important as personal liberty which is important to the non-intrusion into one's personhood. • Could argue privacy more pre-political than the economic rights - econ rights only come about bc of the state • Privacy right is closely connected to text of Constit, economic interests are not • Griswold is not taking sides in economic dispute Lochner wrongly and Griswold rightly • Harlan's response to Black - Judges will be restrained through history, values, federalism, and separation of powers. Role of judge requires them to separate themselves from the legislature. 5. Eisenstadt v. Baird (1972) - Ct strikes down law that banned distribution of contraceptives under EP. But dicta of the case arguably broadened the scope of the right set out in Griswold: "If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted gov intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child." i. Depending on what you thought the right in Griswold was will make a difference in whether you think this case was properly decided (e.g. if thought right in Griswold was about marriage, then you would think this was wrongly decided bc about unmarried person). 6. Carey v. Population Services Int'l (1977) - Ct struck down law banning sale or distribution of contraceptives to minors under 16. Plurality opinion stated that strict scrutiny was required for restrictions on access to contraceptives, not bc there is a fundamental right to contraceptives but "because such access is essential to exercise of the constitutionally protected right of decision in matters of childbearing that is the underlying foundation of the holdings in Griswold, Eisenstadt, and Roe." Ct did not think legis purpose of regulation of morals of minors or discouraging sexual activity among young people was sufficiently significant nor did he think this law would actually effectuate that purpose.

Abortion

Holding generally: the constitutional right of privacy is broad enough to include the right to abort a premature fetus. Ct doesn't pin where rt of privacy comes from (14th or 9th) but says it is there and it encompasses a woman's decision to term pregnancy (although it seems more about the doctor's decisions in consultation with the woman). The majority basically accepts that we are going to protect those rights, but then goes no to describe how we are going to do so. In this case, the cite Eisenstadt, Meyer, Skinner, basically summing up all of the justifications for abortion "First amendment; in the fourth and fifth amendments; in the penumbras of the bill of rights [grislwold]; in the ninth amendment[id..] I or in the concept of liberty guaranteed by the 14th amendment [meyer]. These decisions make it clear that only personal rights that can be deemed "fundamental" or "implicit in the concept of ordered liberty" [palo]. Are included in this guarantee of personal privacy. They also make it clear that the right has some extension to activities relating to marriage, procreation [skinner], contraception [Eisenstadt], family relations, and child rearing and education [Pierce; Meyer]. The case notes this liberty interest of privacy for the individual But also the states interests: 1) Protecting the health of the mother -starting at the end of the 1st trimester 2) Protecting the unborn child (end of the second trimester) Majority says these interests are legitimate but they have to be "compelling" they don't become compelling until the end of the first trimester, because of the health crisis don't start til then. First right becomes compelling after first trimester and second one becomes compelling after viability of fetus (essentially start of third trimester). Once the interest becomes compelling, state can regulate. Could proscribe abortion during third trimester except when necessary to preserve health or life of mother. The court asks whether this is a person in truth, and sidesteps the question saying its not the judiciaries role to decide (, rather legislature, similar to Holmes dissent in Lochner). Even still the court makes an intertextual argument saying person always referred to a person post natally in the constitution (ex: 14th amendment) so that's what the constitution would have said about it. Said if fetus were a constitutional person the challengers would definitely lose: -in that case a persons life would guaranteed by the 14th amendment which would trump their liberty interest -a counterargument though is that you dont have to give up your liberty to support someone's life (attached to a violinist example) - also Kind of inconsistent if not going to call fetus a Constit person, but then still say it has interests. More specifically, he said he was being neutral and tried to take a Holmesian approach, but then chose a sliding scale (at month 30, when it would be compelling, so that would be based on something about morality and the start of life that he determined.. Also interesting to think about: Carolene Products Footnote 4 and Roe: "discrete and insular minority" - fetuses have no access to political process or could say women (women not a numerical minority though) White Dissent - majority exercising "raw judicial power" Rehnquist Dissent - says this is not really about privacy, have to go to a med provider (public/commerce) so this has moved to more about autonomy (and this has gone astray from the privacy right actually protected) Also argued that the other decisions were mostly self-regarded decisions but this is not necessarily self-regarded. (so he's emphasizing the difference between roe and the other cases, though processor notes that meyer isn't purely self regarded) **thematically, important to note private rights has morphed to one of decisional autonomy, form Griswold to roe Between Roe and Casey, Ct struck down almost all regulations of abortion procedures to do with adult women with private resources - spousal vetoes, hospital requirements, informed consent, waiting periods, second doc, all struck down. But for Minors - parental notice and consent requirements upheld though, as long as they had a judicial bypass for special circumstances (emergencies, abusive parents, etc) And abortion funding laws upheld - e.g. Medicaid paying for childbirth but not abortion (under rust v. Sullivan? was a case in the United States Supreme Court that upheld Department of Health and Human Services regulations prohibiting employees in federally funded family-planning facilities from counseling a patient on abortion Planned Parenthood of Southeastern Pennsylvania v. Casey (1992) -. Upheld: 24-hour waiting period, informed consent, reporting and record requirements. Struck down: spousal notification requirement. Uphold essential holding of Roe - right of woman to abort before viability, post-viability state can regulate, but need exception for health and life of mother. (introduces undue burden language) and an autonomy view of liberty It adds that decision should be without undue influence from the state - "undue burden" language = the decision should be uninhibited by any law that has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus (no one really knows what this means entirely - a lot of debate). **Reaffirm state interests of fetal life and health of mother, BUT Ct says state has right at protecting fetal life throughout the pregnancy (rejects trimester framework), and woman's health for that matter (not just once it becomes compelling) and can make laws to that end as long as it doesn't place undue burden on woman to access abortion. (maybe more of a gradual increase of the states interest, though they are always there?). i. Ct emphatically adopts fundamental liberties framework - not limited by BofR or history. 14th amend has substantive component that protects liberty including that to make choices central to personal dignity and autonomy. Broad conception vs. Gris' "marital bedroom" right. ii. But how strong is this right when Ct allows 24 hour waiting period law? Stare Decisis Ct says Roe not wrongly decided, but still does Stare decisis analysis: iv. Compares to other overrulings - Lochner and Plessy. It focuses on these cases because they are salient to the general public, ppl paid attention to these cases and same thing with Roe. Overruling justified in West Coast Hotel and Brown because of shift n factual underpinnings. No factual changes in this case. v. discussion of prudential concerns - Ct's legitimacy. Want populous to think we are doing law, not politics. "Overruling under fire" = undermine legitimacy. So basically, even if we got roe wrong, we would need to follow it, in order to avoid appearing to use politics in our opinions (ex: now that its more unpopular with a repub pres changing it), and also just promoting legitimacy overall. Neither sword nor purse, Marbury v. Madison (and some other case?) **Ultimately, viability is still important in some ways like in roe (state cannot regulate abortion until viability established) but rejects the trimester framework from roe and supports under burden framework, but allows things like the 24 hour waiting period and extra informed consent is okay. But no husband marital consent required. And stare decisis implemented because no factual changes between this and previous case (note this was bgi case), and prudential concerns/ courts legitimacy Scalia dissent - disturbed by opinion, says Ct should not pay attention to public opinion, even if worried about Ct's legitimacy, paying attention to the public will undermine it. Respect for the rule of law comes from us doing our job and deciding cases right. Shouldn't hold by erroneous opinions just based on stare decisis. How has the approach of Casey extended things from roe and such? 4. The right defined in Casey: i. AUTONOMY - "Constitution places limits on a State's right to interfere with a person's most basic decisions abt family and parenthood, as well as bodily integrity" ii. AUTONOMY MIXED WITH DIGNITY - "Our law affords constitutional protection to personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education. These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the 14th." iii. DEFINING ONE'S OWN EXISTENCE - "At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life." Overview of past cases, with regard to Roe + Casey, we care about both doctrine and theory Theory -What's the grounding for fundamental rights in the constitution -Whether its important for the court to support legitimacy (scalia dissent) Doctrinally -privacy (but really a mix of autonomy, autonomy mixed with dignity, defining existence) is a fundamental liberty - state needs to identify for other rights when they are compelling -state has interest of health of child and mother - Court will see if state law is narrowly tailored to achieve its interest Casey represents both a reaffirmances of aspects of the roe holding and some different -many think it left it as an empty shell Two important features of change to roe -the intent that the state has that are compelling are present through pregnancy -state can regulate in ways as long as it does not impose an undue burden)rather than strict scrutiny) -undue burden has only been used in the abortion context -one question often asked is where this takes the analysis *an important theme throughout the class, the courts power lives in its legitimacy 0in federalist papers, no sward no purse, courts power comes from its respect, is that important? -in justice scalias dissent in casey they say its not important -we are sort of reading into Marbury just argument. 0casey is more direct , saying that what hes doing. Thinks that it should be explained, but maybe it shouldn't (just do it implicitly like marshal loes0 because then what do you have about legitimacy if you are trying to explain your reasoning and such Stenberg v. Carhart (2000) - struck down Nebraska law prohibiting late-term D and X abortions that did not provide exception for life of the mother. Statute required a health exception when the procedure is necessary - D and X can sometimes be beneficial to the health of the mother, therefore this law needed one. Lack of one = an undue burden. This applied the holding of Casey. i. This case is the first time that a majority of the court said that that the undue burden test is to be used in evaluating laws regulating abortion. Gonzales v. Carhart (2007) - upholds federal ban on "partial-birth" abortions (specifically intact "D&E"), distinguishes Stenberg rather than overruling it. Congress had following interests: 1) Perception of doctors as healers - Drawing a bright line between abortion and infanticide (kind of protecting fetal life interest but not really), 2) Protecting the mental health of the mother (this is a broadening of state interest in maternal health). Law would be unconstitutional if ban posed significant (mental)health risk to mother, but this is contested. -the court ultimately has no measurable proof, but does rational basis review (not strict scrutiny) , basically the conclusion seems likely, like in lee optical case. Bottom line: if law is facially challenged and there is controversy over the med necessity, then the law will not be invalid/no undue burden *assuming they do rational basis review -ginsburg dissented says that there was no proof Like in Casey, not applying traditional strict scrutiny, but they're still looking at the relationship btw means and ends. It's far more deferential here than in Casey: even admits that there is no data for the their point about mental health of mother, but says its reasonable for Congress to think that. Also, this case was paternalistic... Uses "substantial obstacle" language instead of "undue burden" - substantial obstacle requires more of a reason, this is more about women's access to abortion (this is not that important of a point) Whole Woman's Health v. Cole - law says abortions must be performed in ambulatory surgical centers and physicians have to have admitting privileges at local hospital. Questions: 1. What is the level of undue burden necessary? 2. What is the health rationale of the law? Is this a question in isolation or relational to the burden? *Court says the requirements are unconstitutional, they apply strict scrutiny *this leaves us ultimately unsure where we are overall with things lower scrutiny in Gonzales and Casey, but then strict scrutiny here like roe Says the regulations are not close enough to protect women's health. (abortion complications often happen after the fact, also not really any less dangerous than other procedures Also court doesn't like that there's a presumption in the ways the laws are favoring childbirth over abortions. Another thing to emphasize about whole womens health is the see saw affect from case -they are looking at how much of a burden it is on the women -teaxs is a bit state , may have more of a burden to travel far away if more places shut down so not enough of a benefit . also most of these places will be more busy then . June Medical Services *present day case, idt that was in the reading maybe tighten up and see if we needed to read thsi) -Louisiana passed essentially the same statute in whole women's health Some factual differences -treats other facilitates similarly too, less cities where there were centers that would meet the standard, Louisiana smaller Appellate court reversed and upheld it Petitioners asked for a state oro appel Justice Robert joined the other judges granting the stay. Either he had 1: a change of heart about the merits 2. Didn't change heart, when court grants certain legislation (s*8idk what she said here) 3. Believes that the law of the land is what the court says it is, so spepals has to follow Kavanaugh filed a dissent on the stay, emphasizing the factual issues, saying giving a facial challenge , practical effects

Incorporation Cases

Palko v. Connecticut (Justice Cardozo) supported selective incorporation saying that there is no such general rule, some bill of rights guarantees applies to the states some did not, but things like the right to trial by jury and the immunity from prosecution do not.. one must violate a "principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental." (so he is for both selective incorporation, but basically looking at the list and thinking about what is fundamental) Justice Frankfurter concurred saying: a construction which gives to due process no independent function but turns into a summary of specific provisions of the bill of rights would assume no other abuses would reveal themselves the court of time than those which had become manifest in 1791. (thinks we should actually look beyond the list, selective but even more expansive than Cardozo. In Adamson v. California. Justice black dissented to a similar argument as above made by Cardozo, saying that the "natural law" theory degrades the constitutional safeguards of the bill of rights, and gives the Court a power which they are not authorized to exercise. Black said the purpose of 14th amendment was to extend to all the people of the nation the complete protection of the bill of rights. (this is his stance for total incorporation) Black said majorities fundamental fairness - essence of a scheme of ordered liberty approach was too vague and open-ended and left too much for subjective views. Wanted to curb judicial discretion by relying on the allegedly clearer standards of the specific guarantees of the bill of rights. *So selective was used at first to limit the 14th ammendment to the fundamental ones list at the time, this has changed to being used for increasing protections/ fundamenetal fairness even beyond the list today. Ultimately, selective incorp won out. However so many of the BOR provisions have been incorporated that it has ended up a victory for the total incorp ppl too. Duncan v. Louisiana (1968) -(Justice White] Duncan was convicted of battery, a misdemeanor punishable by a maximum of two years imprisonment and a $300 fine. He sought trial by jury but because the Louisiana constitutions grants jury trials only in cases in which capital punishment or imprisonment at hard labor might be imposed, the trial justice denied the request. He was convicted and sentenced to sever 60 days in the parish prison and pay a $150 fine. He argued on appeal that the 14th amendments due process clause incorporates the right to trial by jury in state criminal prosecutions where a sentence as long as two years may be imposed} Justice White (basically using total incorporation though he says he's using is selective): -First eight amendments have mostly been incorporated by the test of fundamental fairness. - "the question is whether the right is among those 'fundamental principles of liberty and justice which lie at the base of all our civil and political institutions' or 'basic in our system of jurisprudence" ; and whether it is a 'fundamental right, essential to a fait trial" - White believes that trial by jury in criminal cases is fundamental to the American scheme of justice." So, Illustrative of Ct saying using its selective incorporation (based on "fundamental fairness", but end up incorporating almost all of BofR. Instead of asking about particular practice in case, asking about parts of BofR and if they are essential to fundamental fairness. Also says that all the doctrine surrounding a right is also incorporated. So they decide basically the federal jurisprudence is incorporated. Justice Harlan dissent (he prefers selective incorporation): The first section of the 14th amendment was meant neither to incorporate nor to be limited to the specific guarantees of the first eight amendments, they did not think they were incorporated the bill of rights. -neither history, nor reason, supporting using the 14th amendment to put the states in a constitutional straightjacket with respect to their own development in the administration of criminal or civil law. Although I fundamentally disagree with the total incorporation view of the 14th amendment, it seems to me that such a position does at least have the virtue, lacking the court's selective incorporation approach, of internal consistency: we look to the bill of rights, word for word, clause for clause, precedent for precedent , I because, it said, the men who wrote the amendment wanted it that way. Apart from the absolute incorporationist approach there is only one approach that makes sense, to start with words of liberty and due process of law and attempt to define them in a way that accords with American traditions and our system of movement. - doesn't think a jury trial is the only fair means of resolving issues of fact. , its not requisite for due process.

Discrimination based on other arguably suspect classifications, alienage, disability, age and poverty :

Sexual orientation: While classification based pn sexual origination have not been formally acknowledged as suspect, court has struck down sodomy laws, a state constitutional amendment excluding sexual orientation from the reach of state antidiscrimination laws, and laws denying marriage so as to preclude official recognition of same sex marriage in both federal and state laws. Often involve intertwine of substantive due process and equal protection Alienage: Equal protection clause does not condition equal protection on citizenship . also alienage is not a n unalterable trait since noncitizen may become naturalized citizens. Aliens are legitimately excluded from voting, as the court has laws as recognized; citizenship is the finding prerequisite of political participation. . Following cases trace the escalation of scrutiny of most but not all state discrimination against noncitizens. Note that federal government has considerably greater latitude , under immigration and naturalization power to discriminate against and among noncitizens given the federal interest in immigration.. The cases that follow involve ilegally resident aliens. Undocumented aliens - those who are not legal residents in the country- have to be accorded heightened equal protection security, with the exception of undocumented children barred from attending public school, see plyer v. doe. In plyler, the court explicitly rejected "the claim that 'illegal alliens'' are a suspect class. Noting that undocumented status is not irrelevant to any proper legislative goal, the court also said that status was not an absolutely immutable characteristic since it is the product of conscious, indeed unlawful, action" 1.Strict scrutiny of state alienage classifications. Graham v. Richardson, court held that states could not deny welfare benefits to noncitizens. Blackman states that classification based on alienage, like nationality or race are inherently suspect and subject to close judicial scrutiny. Aliens are a class of a discreete and insular minority, for whom such heightened judicial solicitude is appropriate., and discrimination against them should be confined to narrow limits. -Also offered a significant additional reason, federal -state relations, nothing that congress has not seen fit to impose any burden or rejection on aliens who became indigent after their itnery into the us. He concluded that stat laws that reiect their eligibility for welfare based on alienage confliic with these overriding national policies and are constitutionally placed to federal government. Bar admission: In re Griffiths: divided court applied the strict scrutiny protected by graham to invalidate Connecticut's exclusion of resident aliens from law practice. The undoubted interests in high professional standards not the role of lawyers in protecting interest in serving a s the officers of court established that state must exclude all aliens form the a practice of law. Civil service jobs:. Sugarman v. Douggall The court likewise invalidated new york's law providing that only American citizens might hold permanent position in competitive classified civil service. -court emphasizes that the state barrier did not cover all high policymaking positions but covered a number of menial ones. Therefore, the reiection had little if any relation to the states substantial l internet in having an employee off undivided loyalty. Justice Blackmun cautioned that the court was not holding that state may not I nan appropriately defined classes of positions require citizen as a classification for office . such power inheres I interstate by virtue of its obligation not to preserve the basic conception nfo a political community. And this power and responsibility of the state applies not only the qualifications of voters but also t operosn holding state elective or important nonelective executive legislative and judicial protections for offices hw o peroaciatel directl in the formulation, execution or reive of broad public policy perform functions that go to the heart of protective government. Such state action is not wholly immune from scrutiny under equal protection. But our scrutiny will not be so demanding where we deal with matters arising firmly with in the states constitutional prerogatives. -Rehnquist's dissent questioned nay extension of suspect classifications beyond the race area. The governmental (professor cause it voting) function exception: Justice Blackmun's dicta in Dougal regarding greater deference to the exclusion of noncities from public policy functions that go to the heart of representative government bore fruit in a series of cases rejecting equal protection clauses by noncitizens. **professor says it could have been things that affect voting on a range (from those that specifically effect voting, those that impact the citizen partiicaption to some degree, to super discretion) Police officers Foley v. Connelly . Justice burgers majority opinion held that new York could bar employment of aliens as state troopers. Arguing that to require every statutory exclusion of aliens to clear that high hurdle of strict scrutiny would obliterate all the distinctions between citizens and aliens, and thus depreciate the historic values of citizenship. So court will not be so demanding when we deal with a states constitutional prerogatives. Not only need rational basis. RR. Said police forc fell within Dougal exception: police officers in the ranks do not formulate policy , per se, but they are clothed with authority to exercise an almost infient varieties fo discretionary powers. Clearly the exercise of police authority calls for vey high degree of juement and sicmtion . in the enforcement and execution nfo the law the police funcito nis one where citizenship bears rational relationship to special demands of the particular position. Public school teachers. Ambach V. Norwick (1979) applied the public function exception not hold that a state may refuse to employ as elementary and secondary school teacher aliens who are eligible for citizenship but refuse to seek naturalization. Justice Powell, emphasized that less demanding scrutiny was rerued when aliens were included form state functions that were bound up with the operation of the sate as governmental entity. He stressed the importance of public schoosl in preparing individual for participation as citizens and in the teaching of values in which our society interests and noted a teaches opportunity to influence the attitudes of students toward government the political process, and citizens social responsibility. Accordingly it was clear htht e public school teacher come will within the governmental function principle recognized in dougall and foley. a. Notaries public . Bernal v. Faitner , identified a limit to the public function exception Found that it could not justify texas's barrier ot aliens becoming nratireis bpublic. Marshall applied strict scrutiny and said we emphasize as we have in the past that political function exception must be narrowly construed; otherwise the exception will swallow the ruel and depctiate the signfiance that hsoud lattact tto the diition fo a group as a discrete and insular minority for whom heightened judicial solicitude is appropriate. In finding the dougall exception inapplicable to notaries public, he relied on the fact that their duties although important ,were essentially clerical and ministerial. In the absence of other policymaking responsibility of broad discretion of the type excised by each other and other public employees, the duties would not be deemd to be within the governmental function exception Alienage restrictions and federal preemption: These cases might be better excused though with federal concerns, as some have said that since the federal government does not admit resident aliens to the political community - admission doesn't to cover citizenship -the statement may exclude resident aliens from state political function without offending federal power. A rare decision striking down a state alienage restriction on federalism related rather than equal protection concerns. Toll v. moreno (19820 struck down the university of Maryland's policy of granting preferential tuition and fees treatment to student with instate states nonimmigrant allens were not eligible for scu statues even if the were domiciled n Maryland. Brennand relied entirely on federal preemption saying In light of congress' expclict dicinio not to bar such aliens from acquiring domicile the state decision to deny instate students solely on account of their r federal immigrant status , surely amount to an ancillary burden not contemplated y congress' I admitting these laienet ot the us. The untitiys policy vialtes the supremacy clause. And stated that many cases like tatakahasi and gram may be better explained on preemption grounds., and stand for ht broad principle that as state regulation not congressionally sanctioned that distinctions against aliens lawfully admitted to the country is impermissible if it imposes additional burdens not contemplated by congress. 4. Federal rejections o aliens congress has broad latitude to control the flow of immigrants across nations' borders. Indeed national immigration and naturalization power has often been reads as virtually plenary. But are there limitations on the power of fed to discminate against and among aliens? Public employment> Humpton v. mow sun wong , invalidated a civil service commiision regulation barring resident aliens from employment in the federal cimpeotivve civi lserice even whie lreognziign the overring natioan ltienrest may rpvoivde jeuctiosn for ciitznhsip reureiemetn I nteh federla serive through a nidential reeuement may not be enfoced by astates. Stevens opiion found that that national interest offered in the defense of the ban were not properly the concen of the csc and had not explicitly emanated from congress or the psent or b had not been evaluated fully by the csc. The justice found it necessary to determine the substantive viability of the laiene bar under the equal protection component of the fifth amendment due process and rested on the narrower ground that essential procedures had not been followed - procedures involve the source and the deliberativeness of the regulation ; " since the residents admited as a result of action made by congress an the president, due process ureieeres the idicito not impose the dieciton of an important liberty to be made either at acoemrpabel elvle of ovnemetn or if it is to be petmite ot be made by te csc that it be djucited by reason which are properly the concern of the agency. And these structural due process requirement had not been satisfied here. He explained that when an overriding national interests asserted as reason for a discriminatory rule which would be barre by equal protection iif adopted by state " due prices requirements that there be legitimate basis for presuming that federal rule was actually intended t oserve that interest . " here there was n oabsss for such preictmtuon. If he was eiwllgi not assume that if the ocngreso r present ahd expressly imposed the citizenship requirement it would eb justified by the national interest in providing an incentive for aliens to become naturalized or possibly even as providing the president with an expendable token for treaty negotiation purposes but those were to itenrst which can reasonably be assumed to have influenced the csc; we aren to willig nt o rpeusme the agency was deliberately fostin and interest so far removed form its normal responsibilities. Justice rehnquist said that the melding of substantive due process and equal protection was fully, . and said the overriding national interest er was ntoany peici interin excluding these particular aliens, from civil service but a gnealitnering in formulating policies towards aliens. Medical benefits:Mathews v. davis The corutheld that the congress ma ocntion an leietns eleiegnibtiyl for pariicion I nfeederla medical program on an admission for premeant reisdnce an continence residence in the sutneid sate fogive years. -stevens majority applied a deferential standard of review reasingtigngn that congress under its broad power over naturalization and immigration regularly made rules that would be unacceptable if applied to citizens ; disperate treatment of aliens and citizens did not doematet invidiousness. Turning to the welfare area , he insisted that the congressional provision of some benefits to citizens odes not reuemeutie toti to provide like benefits for all aliens. The real eueition was to whether idmciation between citizens and aliens is permissible but whether the statutory dimenion within the class of aliens- allowing benefits to some aliens but not to others" was valid. Justice Stevens security was extremely deferential:" the areas that preclude judicial review of political ueistns also dicate anrorw stnard of review documents made by congress ofh tep rsneti n tehari of immigration and naturalization"

Cases applyign Fiep, Harper & Obergefell

Should equal protection or due process get involved for ensuring that right to vote? 2. Harper v. VA State Board of Elections (1966) - poll tax invalidated. Right to vote not in the Constit. But it is a very important interest (DP) and once states make it a right of some, lines cannot be drawn which are inconsistent with EP. Ct says State has right to make qualifications for voting, but wealth is not related to "one's ability to participate intelligently in the electoral process. i. Issue - everyone treated the same, but there is a disparate impact on poor people. Wealth not a suspect classification, though, but courts do worry about it. And even if it were, law is facially neutral. Disparate impact would have to smoke out a bad purpose to invalidate it. So where is the EP part? At this time, disparate impact was still part of the Ct's jurisprudence (Davis was 1976). So this case deals with half and half but also disparate impact. So they treat the disparate impact of poor people as the same as if they said it (later cases also interestingly don't make a big deal about the distintion either either) Court says it's a FIEP violation (they treat it with heightened review) because 1 voting is really important/ precious, it helps preserve other rights (DP), and poor people are also someone the court is suspicious about. Skinner: a fiap case, bby the tiem it was deicided court had not recognized procreation as a fundamental right. (thought now it would be recognizes as such. They basically use FIAp analysis. poverty as ep half, procreation as due process. Obergefell: Zablocki v. Redhail, (1978), couldn't required noncustodial parents who were state residents attempting to marry inside or outside of Wisconsin to seek a court order prior to receiving a marriage license -also involved feud due process Turner: -struck down requirement of getting approval from warden if in jail to get be married (a little mix of due process and Windsor -several provisions in states DOMA (don't have to recognize same sex from other states Case about: as a matter of federal law marriage is between ma in women in federal courts. This was struck down under equal protection clause. Obergefell: -Justice kennedy -this case I part due process and part equal protection Reasons that this was due process/ fundamental liberty interest 1. autonomy (tied to cases dealing with family relationships + contraception) 2. Relationship: right to be in a relationship predates bill of rights (Griswold, about marriage relationship) 3. Child rearing (implicated here because of effects on kids) 4. Keystone of social order, so to keep 1 group out would be demeaning (fusion of DP & EP). Kind of like in Lawrence about demeaning. Mixing of the two EP + & DP connected saying : "these consideration lead to the conclusion that the right to marry is a fundamental right inherent in the liberty of the person, and under the due process and equal protection clauses of the fourteenth amendment." - he is basically saying there is a fundamental rights though, but equal protection is an important guidance. This is the 3rd vision of EP + DP , the epistemic vision, we learn about EP + DP by reading it, each may be instructing of the right of the other. One of the reasons to say we need ep is because double lens help us figure out what are the fundamental interests. Think about whether it would eb okay to have something while the others don't. means of testing what is a fundamental right. Kennedy might be using this to help dispel the idea that his decision is just subjective. Showing that he is being constrained by EP to determine what is fundamental Roberts : Thinks you don't have a due process claim -Claim of Lochnerizing, , unconstrained judging), thinks fundamental interest should only be based on history and tradition, not substantive due process. That should be left to legislatures a way -Also other fundamental liberties interest are about barriers this is just about recognition. You can still get married, this is just official recognition from state. -On the equal protection side he says this doesn't look like anything we've seen before. It doesn't say anything about level of scrutiny, etc. Scalia: Majority talks a lot about "liberty" here but takes away liberty to govern themselves (connected to the tension in the declaration) 2 ideaS of liberty always conflicting

Privileges and Immunities

Slaughter House Cases (1873) - state-chartered butcher monopoly & the privileges and immunities clause of 14th. Majority found that P&I does not equal the content of BofR nor does it equal fundamental/natural rights. Instead P&I are a narrow set of rights (that the rights you impose on your own citizens you must grant to those from other jurisdictions within it). It was really only meant to address slavery though Court doesn't think the 14th amendment makes such a dramatic change, to really bring all federal privileges and immunities from the another amendments to apply to the states, . -others would say why did we have a war then? Should it have been so dramatic. -14th doesn't change relationship between states and fed gov, protections should come from the state not be transferred to the federal government. Worried about cts being censor of state laws. Fed gov- bring suit. States - protect through the political process. Field Dissent - criticizes that the maj making P&I insignificant, just fought a war over this, would think its pretty important. P&I of citizens of US = includes right to be free from hostile and discriminatory laws such a the right to pursue a lawful employment in a lawful manner, without other restraint than such as equally affects all persons. / right to be treated the same as everybody else in the state for this. Bradley Dissent - right to make a living is under the P&I. Slaughterhouse essentially gutted the P&I clause Note: While one of the central purposes of the fourteenth amendment was to protect "the newly made freeman and citizens from the oppression of those who had formerly exercised unlimited dominion over him". One of the fourteenth amendments main architects, congressman john bingham, stated more than once that it was (also) intended to reverse the Barron decision and after the amendment's ratification, Bingham explicitly pointed to the bill of rights as the main source of the amendment's protected privileges and immunities. and immunities in the first 8 amendments One the other hand Charles Fairmans influential 1949 treatment of the debates discounted Bingham's statements, concluding that the amendment was not supposed to apply against the stated the restrictions set forth in the bill of rights. Fairman also took the lack of public comment over incorporation in the process and lack of discussion in the state reiction debates of the changes that incorporation would l involve for state law and government as evidence that the Ammendment was not intended to incorporate new rights against the states. Privileges and Immunities of National Citizenship: Resurrection of the privileges and immunities of national citizenship: the right to travel and durational residency requirements. One of the cases that Justice Miller cites to identify what rights are included in the "privileges and immunities of national citizenship is Crandall v. Nevada (1867). In Crandall, the Court invalidated a tax on passengers leaving the state via seat of the national government. That holding came to serve as the basis for later cases identifying a right to travel between states. In Edwards v. California, 314 US 160 (1941) , for example, the court invalidated a law making it a misdemeanor to bring into California "any indigent person who is not a resident of the state, knowing him to be an indigent person" this so-called anti-okie law became especially controversial during the great depression. California argued that the huge influx of migrants into California in recent years has resulted in problems of health, morals ,and especially finance. The court was unanimous in striking down the law, but the judges differed about the proper reasoning . Justice byrons's majority opinion relied solely on the commerce clause. Justice Douglas's concurrence, argued that the right of persons to move freely from state to state occupies a more protected in our constitutional system than does the movement of cattle, fruit, steel and coal across state lines, and suggested that the right was an incident of national citizenship protected by the privileges and immunities clause of the fourteenth amendment against state influence .

Tensions and relationships between Declaration and the Constitution

- In the constitution, and declaration, there is the tension regarding how to the authors were slaveholders - There's also tensions of the values of liberty and equality at the time of both -Equality wasn't mentioned in constitution, unlike the Declaration until the 14th amendment - Constitution answers a lot of the complaints expressed in the Declaration

Post New Deal - A Turn to Deference

- NLRB v. Jones and Laughlin (1937) - Court upheld application of National Labor Relations Act, which prohibited discrimination against union members, to nation's 4th largest coal steel producer. Reasoning

Why the declaration is relevant:

-T's up some important themes & reminds us that the court draws on things beyond constitution. -ex: Scalia + Thomas have both cited Declaration in dissenting opinions even though they are originalists - The Declaration also inspired movements

Congress' Civil Rights Enforcement Powers Section 1: The Civil Rights Statutes of the Reconstruction Era

1. The 1866 Act. The 13th Amendment, gave constitutional support to the wartime Emancipation Proc.. Congress however, considered additional protection of the newly freed slaves necessary - partly because of the "black codes' enacted in several states. The Civil Rights Act of 1866 sought to end the black clodes. Section 1 stated that all person born in the Untied States were "citizens of the United States" and proceeded to list certain rights of "such citizens, of every race and color, without regard to any previous condition of slavery" - such as the right to contract and own property. Its modern counterparts remain codified in 42 USC %1981 & 1982. A criminal enforcement provision followed in %2, codified today as 18 U.S. %242. During the debates on the 1866 act, constitutional doubts were raised about the adequacy of the 13th amend to support the constitutionality of the law. This question motivated the enactment of new amendment designed in part to validate the 1866 act. The result of the process was the 14th Amendment, which was ratified in 1868. 2. The 1870 Act. The 15th Amend was ratified prohibiting denial of the franchise "on account of race, color, or previous condition of servitude." Unlike the 14th Amend, it explicitly mentions race. Congress promptly passed enforcement legislation. The 1870 Enforcement Act dealt primarily with state denials of voting rights. Section 6, however, went further: It provided criminal sanctions for private conspiracies to violate federal rights. the current version of this criminal provisions is 18 U.S.C. %241. 3. The 1871 and 1875 Acts. In 1871, Cong. enacted a new law, the Civil Rights Act of 1871, known has the Ku Klux Klan Act, which reestablish civil liabilities together with parallel criminal liabilities. The substance of these civil provisions has been preserved. For example , 42 U.S.C. %1983 creates a cause of action for deprivations, under color of state law, or of rights secured by the constitution and federal laws. And 42 U.S>C>C %1985 (2)provides for civil actions for certain private conspiracies to interfere with civil rights. The Civil Rights Act of 1875, which contained, inter alia, "public accommodation provisions, was in large part held unconstitutional as exceeding Congress' power in the 1883 Civil Rights cases. 4. Civil Rights laws that survive from Reconstruction. As outlined above, many of Congress's earliest statutes enforcing civil rights still remain in force today, including the following: a. Criminal provisions; 18 U.S.C, %241 (derived from %6 of the 1870 Act); 18 USC %242 (derived from %2 of the 1856 Act) b. Civil provisions: 42 USC %1981 (derived from the 1866 and 1870 Act); 42 USC %1982(derived from the 1866 Act; 42 USC 1983 (derived from %1 of the Civil Rights Act of 1871); USC %1985(3) (derived from Civil Rights Act of 1871): c. occasioned by such injury or deprivations, against any one or more of the conspirators." d. The second wave of civil rights (second reconstruction) legislation in the 1960s. Renewed congressional efforts at a civil rights enforcement began with the Civil Rights Act of 1957, which, like the Civil Rights Act of 1960, primarily expanded remedies against racial discrimination in voting. The civil Rights acct of 1965 moreover substantial beyond the area of voting rights. The 1965 Act included several provisions primarily rooted in the post-Civil War Amendments. Thus Titles I and VIII contained new voting rights provisions, and Titles IIII and IV dealt with desegregation of schools another public facilities. After the Voting Rights Act of 1965 was adopted, Johnson administrations proposals for additional omnibus civil rights laws were repeatedly blocked fron the senate. In 1969, however- after the assassination in April 196 of Rev. Dr. Martin Luther King, Jr. - new legislation was enacted adding new federal criminal laws against violent deprivations of civil rights in 18 USC. %245. 5. One question underlaying these laws was how far they could extend under the constitution. Since the 14th amend gives Congress the power to enforce a provision prohibiting "States" from depriving individuals of certain rights, when, if ever, could congress reach the actions entities other than states?

Taxing Power

Taxing power (Article I, %8) is very broad, "the Congress shall have the power to lay and collect taxes, duties. imposts, and excises, to pay the debts and provisions for the common defense and general welfare of the United States" , but less powerful than what you can do under the commerce clause since all you can do is tax. 1. Congress can tax for purposes that promote the general welfare. It is an enumerated power so must be a separate power, not just a means to utilize other powers (i.e. cannot be a N&P clause for other powers) - generally only matters when there are limits on the CC. 2. Bailey v. Drexel Furniture Co. (1922) aka Child Labor Tax case (justice taft) - 10% tax on net profits if use child labor. Ct determines it is a penalty and not an authorized exercise of the tax power bc (per Roberts in NFIB): 1) heavy burden - 10% of net receipts is really high, it also didn't vary with the infraction, if you had one underage kid working for you vs. 500 underage kids, you still paid the same penalty 2) scienter req - Such scienter requirements are typical of punitive statutes because Congress wants to only punish those people who intentionally break the law 3) paying to DOL, an agency responsible for punishing violations of labor laws, not collecting revenue (makes it look more like a regulation than a tax). ** Bailey case mentions some other cases like Veazie Bank v. Venno (in which ha law increased a tax on the circulating notes of person and state banks for one percentum to ten per cenum was okay. The sole objection not the tax was its exceevie character, btu stillupeheld. Legieiamte means taken by congress to secure a national medium or cocurence by restianing circulation oas money of notes not issued under its authority." Court also mentions maccray v. untied states, In which tax on oleomargarine as a substitute for butter had a one cent tax for white margarine and ten cent per pound for yellow margarine. The motive for discouraging sale or manufacture of an article by a higher tax than on some other was fine. Finally the case mentions United states v doremus, which involved a tax on manufacture importation or sale of opium. Required erson subject to the special tax to register with collector or his name and place of business . this was fine as an excercise on manufacture importation and sale . Ultimately these three show that the motive for taxation, not shown in the face of the act, doesn't matter (unlike in commerce). United States v. Constantine (1935) defended and convicted of conducting business of retail dealer in malt liquor contrary to the laws of Alabama without having paid a special excise tax of $1000 imposed by congress. He paid the normal tax of $25 for conducting the business, and the e question rpesented was whterh the extension of $1000 in addition, by reason solely of his violation of stat elaw is a tax or penaltiy. -justice Roberts opinon concluded that the $1000 excise tax is too strong to be disregarded, and is a punishment Sozinsky v. United States (1937) Court upheld the national firearms act of 1934 which h imposed a $200 annual license tax on dealers in firearms,. Nothing the that the tax is productive of some review and we are not free to speculate as to the motives which moves congress to impose it or to the extent to which it may operate to restrict the activities taxed. Since is not attended by an offensive regulation and operates as a tax within taxing power. United States .v Kahringer (1953),upheld the constitutionality of a federal occupational tax imposed on gambling (which levied a tax on persons engaged inthe bsienss of accepting wages and required such person to register with icolelctive or internal revenue). Justic Reed said it was no determinative that the legislative history suggested a congressional motive to suppress wagering. An intent to curtail and hignder as well as tax was upheld n earileir cases (ie veaz) atax does not cease to be valid merely because it discourage or eters the acities taxed. Nor is the tax invalid because the revenue obtained is negligible. In this case the tax has reualatory effecti and it does ahgarner lots ore revneu. Power to tax shoudltn be litied by indirect effects. Registration reuriemeents are also fine, it just makes the tax simpler to collect (doesn't matter if the tax law has a regulatory effect/ purpose/ intent/ , also doesn't matter if not much revenue is generated) NFIB v. Sebelius (2012) (Justice Roberts) Uphold Affordable Care Act (ACA) under taxing power using Drexel factors: 1) not that heavy of a burden - tax will never be more than insurance costs, 2) no scienter reqs, 3) pay to IRS (makes its look more like a tax bc revenue collecting agent). Penalty = punishment for unlawful conduct. Indiv. Mandate not saying that not having health ins is unlawful - no negative legal consequences other than pmt to IRS. Payment/"penalty" intended to induce the purchasing of health insurance, but taxes seeking to influence behavior is "nothing new." Having a regulatory effect is not dispositive of it being a penalty. i. Should the Ct defer to labels (ACA labels it a penalty)? Scalia in the dissent thinks so, and says that we shouldn't rewrite the statute made by congress, and for the sake of political accountability. · Yes - political accountability. Congress can't just go around passing taxes (ppl get mad), shows the political will. · No - then legis can just get cute and call anything a tax in order to regulate something (get around CC power).

Pre Civil War, on Slavery/ Black Freedom Question:

The constitution never directly says slavery but Art. I, %2 provided that slaves would be counted as three-fifths of a free person for apportionment and taxing purposes; Article I %9 prohibited congress from closing the international slave trade until 1808 and from imposing taxes higher than ten dollars on each imposed slave; and Article IV, %2 declared that fugitive slaves remained subject to recapture and return even if they made it to a free state. Congress reached a deal, brokered by Henry Clay to admit Missouri as a slave state but prohibit slavery in all territories north of Missouri's southern border and, to preserve the balance between slave states and free states in the Senate to admit Maine as a free state. This started to waver by the time of Dred scott. Not clear if you were free by entering free state. At this 1857 inauguration, President James Buchanan optimistically noted that he slavery question would soon be "speedily and finally settled' by the Court in the Dred Scott case. Days later, the Court released its opinion: Dred Scott v. Sanford (1857) - Dred Scott's slaveholder Dr. Emerson dies while they are in the Iowa Territory in 1843. Scott attempted to purchase his and his wife's freedom from Emerson's widow, Eliza Sandford. When she reused to accept his offer, Scott sued for a declaratory judgment arguing that his two-year residence in the Wisconsin territory- where congress had prohibited slavery by law -had rendered him free. Scott sued in Federal court under diversity jurisdiction. 2 Questions: Can he sue/ Does he have jurisdiction? But also, if he can sue, did he gain his freedom by being in a free state if he resided there vs sojourned there. In order to sue it have would to be in diversity jurisdiction and he would have to be a citizen of Missouri as she was a citizen of NY. Justice Tanley says he is not a citizen Justice Tanley uses a textual and also positivist (using reasoning and logic, one who finds that the law is just a descriptive question) argument: Jurisdiction Question: He points to declaration of independence and says it would not have the same power, this would be hypocritical, if African Americans were included as citizens, since they said all men were created equal yet has a fugitive slave clause, which suggests African americans were not considered free . **side note, that Tanley though the Missouri compromise was incorrect because it violated a power (congress deciding above the line free below the line not free) Merits Question: Thinks congress cannot deprive someone from private property -Therefore if somoeone deprives you of property/ if you go in a free state and the federal government takes away your property then you have a right to protection. Curtiss (dissent says), Jurisdiction Question: They were individually born free on the soil/ were citizens of the states at the time, & the constitution doesn't take away freedoms, so you can't make that blanket statement now. (so he's textual in a way too and idealist a bit like Douglass) Merits Question: says the institution of slavery must be created by positive law (this is really a response to sandfords' / the property claim) The fifth amendment is protecting some property, but how do you know what's considered property? You can look to what the state law says its property, it didn't say salves where in this case. -so Sandford claims she has some natural right to property (not defined in the states), but Curtis is saying there cannot be a natural right of property of slaves because its evil. You would need a positive right So Curtiss thinks somethings may be may be a natural rights, like land or goods, but slavery is not so the 5th amendment claim doesn't really matter **This case didn't officially overturn the Missouri compromise, but treated it like dicta (13th Amendment, 14th Amendment and 15th Amendment will change everything though) Wendell Phillips (1811-84) maintained that the Constitution of the United States immorally protected slaveholding. In his The Constitution, a Pro-Slavery Compact. Says people responsible for the Constitution intended to establish a slaveholding republic. He mocks the "compromise," which was made between freedom and slavery, in 1787; granting to the slaveholder distinct privileges and protection for his slave property, in return for certain commercial concessions on his part toward the North. He says they prove also that the nation at large were fully aware of this bargain at the time, and entered into it willingly and with open eyes. The clauses of the Constitution to which we refer as of a pro-slavery character are the following: ART. 1, SECT. 2.--[the three-fifths clause]; ART. 1, SECT. 8. — Congress "shall have power . . . to suppress insurrections."; ART. 1, SECT. 9. — [the twenty year moratorium on federal bans on the international slave trade] ; ART. 4, SECT. 2.—[the fugitive slave clause]; ART. 4, SECT. 4.— [the guaranty clause] Then he goes on to describe the ways these clauses had historically , and are continuing to be used to promote slavery: "The first of these clauses, relating to representation, confers on a slaveholding community additional political power for every slave held among them, and thus tempts them to continue to uphold the system: the second and the last, relating-to insurrection and domestic violence, perfectly innocent in themselves, yet being made with the fact directly in view that slavery exists among us, do deliberately pledge the whole national force against the unhappy slave if he imitate our fathers and resist oppression — thus making us partners in the guilt of sustaining slavery: the third, relating to the slave trade, disgraces the nation by a pledge not to abolish that traffic till after twenty years, without obliging Congress to do so even then, and thus the slave trade may be legalized to-morrow if Congress choose: the fourth is a promise on the part of the whole nation to return fugitive slaves to their masters, a deed which God's law expressly condemns, and which every noble feeling of our nature repudiates with loathing and contempt." Thus, Phillips is taking a textualist approach, but with positivist, Tanley is also positivist Douglass Textualist, but idealist, doesn't care about history or intention of Framers Says: Framer's 3/5th clause gives people in free states more power as they count as full persons. -He then talks about the fugitive slave provision and notices it mentions Services due, slaves don't have services due, so it wasn't about slaves. - Says the prohibition on bill of attainder was an antislavery bill "The Constitution forbids the passing of a bill of attainder: that is, a law entailing upon the child the disabilities and hardships imposed upon the parent. Every slave law in America might be repealed on this very ground. The slave is made a slave because his mother is a slave" Says that people have given the constitution a slaveholding point of view, he instead reads it as the most morally appealing possible constitution possible. This is idealist Positivism what the law is just a descriptive question. How people have interpreted it and how things ought to be doesn't matter. All that matters is what the law is. -for Wendell Philipps he sees it as a proslavery document so that's bad, tanley is fine with it Idealism: for Douglass law and morality as intimately connected, law is always tending towards what the law ought to be.. It has to fit the text and legal material, has to fit reasonably well. But tit also has to be justified, what it is to be is what it is to be good. **Ultimately, Dred scott is a moral embarrassment, whether it is a mistake legally is a question. Wendell Philips would have said its correct (but morally wrong). Douglass would have said its not correct.

The Early Commerce Power

a. Four theories: i. Spatial - if external concern of the nation or internal concern that affects states generally, then interstate commerce. If going on completely w/in boundaries of the state, then not. • Ex. Gibbons v. Ogden (1824) Justice Marshall upheld a Federal statute , which entitield licensed ferry operators to "the privileges of ships or vessels employed in the coasting trade' and imposed fines for operating without a license (this was meant to stop a steamboat monopoly): . Ct says commerce not just about buying and selling goods, its also about transportation (navigation). The channels "commerce is more than traffic, to buying and selling , to interchange of commodities" it includes navigation, intercourse, "describes the commercial intercourse between nations, and parts of nations, in all tis branches, and is regulated and prescribing rules for carrying on that intercourse." . "Among" is comprehensive,, but also restrictive, anything involving more states than one. Things completely interior to the sate wouldn't count. Interstate, effecting interstate. If it was truly interstate then they couldn't regulate it. ii. Direct/indirect effects - can regulate internal aspects only if they have direct effects on interstate commerce (early and new cases don't worry about this). Ex. US v. E.C. Knight Co. (1895) aka Sugar Trust case - American Sugar acquired four sugar refineries, such that they controlled 98% of all of the sugar business in the country. §1 of the Sherman Act prohibits any contract, combination, or conspiracy in the restraint of trade or commerce among the several states.%2 provided penalties for any person who shall monopolize, or combine, or conspire to monopolize any part of the trade or commerce among the several states. -the government alleged that the acquired companies had produced about 33% of all sugar refineries in yhr US, and that American's acquisition gave it control of 98% of the nation's sugar refining capacity. The court interpreted the statute not to extend to the challenged monopoly, based on the view that Congress could not constitutionally regulate "manufacture" under the Commerce clause. Ct said Act could not be upheld under commerce clause here bc operation only had, at best, an indirect effect on interstate commerce, and Congress cannot regulate those activities with indirect effect - just because something is manufactured for export does not mean it is part of inter commerce. -"commerce succeeds to manufacture, and is not a part of it. The regulation of commerce apples to the subject of commerce and not to matters of internal police> Contract to buy, sell or exchange goods to eb transported among the several states, the transportation and its instrumentalities, and articles bought, sold , or exchanged for the purposes of such transit among the states, or in the way of transit, may be regulated, but this is because they form part of intestate trade or commerce. The fact that an article is manufactured for export to another state does not of itself make it an article of interstate commerce and the intent of the manufacturer does not determine the time when the article or product passes from the control of the state and belongs to commerce. Contracts, combinations or conspiracies to control domestic enterprise in manufacture, agriculture, mining, producing in all its forms, or to raise or lower prices or wages might unquestionably tend to restrain external as well as domestic trade, but the restraint would eb an indirect result, however inevitable and whatever extent, and such result would not necessarily determine the object to the contract, commitment or conspiracy." Harlan dissent: any combination that disturbs or unreasonably obstructs freedom in buying and selling article manufactured to be sold to person in other states or to be carried to other states affects people of all states directly.

b. The Contemporary Commerce Power - Rehnquist's Revival of Internal Limits on CC

1. U.S. v. Lopez (1995) - Ct struck down the Gun-Free School Zones Act of 1990, which made it a federal crime to have a gun within 1,000 feet of a school. Rehnquist identifies three major categories which fall under Congress's power to regulate inter commerce: 1) The use of channels of interstate commerce - Heart of Atl (hotels on interstate roads forced to intergrate & Gibbons) 2) Regulate and protect the instrumentalities of interstate commerce, or persons or things in interstate commerce, even though the threat may come from only intrastate activities (Darby) 3) Those activities having a substantial relation to interstate commerce, cannot have substantial relation wihtoute beign economic acvitites (Wickard). Substnaial is economic acivites that can bee aggregated to have a large effect. i. Prior case law was uncertain as to whether an activity must affect or substantially affect interstate commerce, Rehnquist opts for the more restrictive latter reading. Says if this law going to fall in any category, it would be category 3, but still doesn't cut it: 1. Needs to be econ activity (like Wickard), exception if theres a 2. there is no jurisdictional nexus (functionalist) or hook (formalist) here (if its part of a larger economic statute) - Court is concerned that there is no limiting principle that limits the statute in question to actual interstate commerce (wants the statute to make clear that only guns purchased in interstate commerce are regulated). Worried that accepting the gov's long chain of inferences (while plausible) regarding violent crime and economy would impose no limits on the use of the CC (slippery slope). Two reasons: 1) Gov of enumerated powers 2) Federalism concerns (need distinction betw what is local and what is national) *Overall, Rehnquist's perspective is very formalist, and there might be a lot of backdoor workarounds. Court also notes the lack of factual findings as unhelpful in the case. In fact court later rewrote this with economic workaround -theres also concern that there wasn't enough proof shown i. Concurrence (Kennedy), more functionalist - main concern is that ppl know who to hold accountable. If lines between fed and state blur, ppl won't know who to get rid of for things they don't like. Federalism concern. Makes argument for judicial deference and judicial action/oversight. ii. Concurrence (Thomas) Thinks the itnerpretation of the Constiution has gone too far, thingks we should get rid of substantial effects test. iii. Dissent (Breyer) - This is an area where we defer to congress as long as it is rationally related. It is not the court's job to ask whether there is interstate commerce, but whether Congress could have rationally thought there was a connection to interstate commerce ivi. Dissent (Souter) - we want the judicial branch to be deferential/show restraint. Dissent doesn't care if there is no limit on CC bc: 1) Congress can police itself 2) Changing economy - very interconnected, national/global now. 2. U.S. v. Morrison (2000) - Ct strikes down VAWA (Violence Against Women Act) civil damages. U.S.C. % 13891 "a person including a person who acts under color of any statute, ordinance ,reugaltion, custo, or usage of any state) who commits acrime of violence motived by gener...shall be liabel to the party injured, in an action nfor the reccorvery of compensatory and punitive damage,s injuctive and declaratory relief, and such other relief as a corut may deem appropriate." Reaffirms 3 categories in Lopez - category 3 case. Key difference from Lopez is that there were extensive factual findings from Congress indicating that the state laws were inadequate, that gender-motivated violence costs the American economy billions of dollars a year and is a substantial constraint on freedom of travel by women throughout the country. Ct in Lopez found the lack of factual finding unhelpful indicating that if there were factual findings, it would allow the Ct to show more deference to Congress. But in this category 3 case, this was a non-economic activity so even extensive factual findings couldn't save the law. Rehnquist sayign this is "in no way an economic activity". Also, says that you cannot use an aggregate of non-economic activity to turn it into economic activity. Again makes no limits and federalism arguments. The regulation nand punishment of interstate violence that is not directed at the the instrumentalities, channels or goods involved in interstate commerce has always been the province fo the states. (THis was very formalistic, someone could maybe then add a jurisdictional hook/nexus and then to the VAWA and maybe then it would be passed). There in fact have been later revisions of it that have passed (professor wasnt sure if that was why and was going to look into it. i. Concurrence (THomas) Thinks we should get rid of substantial effects test. ii. Dissent (Souter) - Ct just needs to check that Congress' conclusion is rational. (defer to cogress on if it's a valid application of commerce power) iii. Dissent (Breyer) - Economic/non-economic distinction is difficult to apply. World has changed, nearly everything can affect commerce. Congress' job to strike appropriate federal/state balance.. Congressional finding are neither necessary nor sufficient to ensure a statute's constitutionality under CC. Where should the commerce clause be at this point? Class Discussion - Rehnquist: Formalist - must be substantial - economic vs noneconomic - Kennedy: Functionalist: to limit confusion - Breyer: Everything can be connected to interstate commerce- only question is if it substantially effects, and we should defer to congress, and states have representatives in congress + so there are political means of accountability) Professor thinks that a) everyone agrees there should be some be some judicial review. But then what about judicial activism? She thinks that judicial activism is just a term people use when there are results you dont like. She says there is an interaction between stare decisis and judical activism. 5. Gonzales v. Raich (2005) - CA statute allows for medical MJ in conflict with fed statute. Ct upholds fed regulation that says weed is illegal. Despite limiting of aggregation approach, Ct squarely relies on Wickard: "Our case law firmly establishes Congress's power to regulate purely local activities that are part of an economic 'class of activities' that have a substantial effect on interstate commerce. Our decision in Wickard is of particular relevance. Wickard establishes that Congress can regulate purely intrastate activity that is not itself 'commercial,' in that it is not produced for sale, if it concludes that failure to regulate that class of activity would undercut the regulation of the instate market in that commodity." "production of the commodity meant for home consumption, be it wheat or marijuana, has a substantial effect on supply and demand in the national market." It is part of a larger regulatory scheme involving interstate commerce - because tied to an economic statute (CSA), activity considered economic (really that different from Scalia?) distinguishing it from Morrison and Lopez. • So basically, event though its not economic (ironic cause of Morrison), if it will leaving a gaping hole in the state that is largely economic than its important. Since its not economic you cant aggregate it. If it was economic you could. Anything that is necessary for the larger economic statue is key. • There's also an argument that homegrown marijuana would effect interstate commerce even if tits regulated as it would effect market conditions, as it would get mixed with illegal marijuana and one couldn't really tell where the source is. (This is part of a larger economic statute, so the fact that you can't aggraugate doesn't matter.) noneconomic part of a broad economic statute. i. Concurrence (Scalia) - Uses N&P clause: "Where necessary to make regulation of interstate commerce effective, Congress may regulate even those intrastate activities that do not themselves substantially affect interstate commerce." I.e. Non-econ activity okay if hooked to an econ statute (really that different from the maj?) ii. Dissent (O'Connor) - States as labs. No limits on the substitution effect - anything can be called econ activity now: "To draw the line wherever private activity affects the demand for market goods is to draw no line at all, and to declare everything economic." Statute in Wickard at least had exemption for small producers - CSA has no such provision. Ex: would mean that charagdes can be regualted because it impacts the movie industry. **So if its not economic (you might lose - Lopez Morrison, but you might win if it has an imapct on a larger economic statute that impacts commerce./economic (Gonzalez). Or there might be another route as shown by scalia through necessary and proper close (but not that different than majority) NFIB v. Sebelius (2012) - Government contends that the individual mandate is within Congress's power because the failure to purchase insurance has a substantial and deleterious effect on interstate commerce by creating a cost-shifting problem. Ct majority says not okay under CC bc Congress trying to regulate inactivity (ppl who are not buying health ins) and only allowed to regulate econ activity. "Force you to eat your broccoli" • So court is emphasizing that while this is economci ,it really isnt an activity. But couldn't you say Wickard and Raich be considered to regulate inactivity (both not going into market to buy product)? Maybe the distinction is under Wickard and raich there is a metaphysical activity you are directing (stopping weed and wheat growing) even though really its logic was forcing to buy from the market) ii. Ginsburg says this is actually regulating activity - everyone will get healthcare at some point, just regulating the manner in which you access healthcare (a la dissent) • She is broadening the time frame, not just looking at regulating activity now but also in the future. *in a way this is what happened in the Heart of Atlanta case as well, because they were regulating an "inactivity" in a way, forcing the hotel to be open to african americans, but if you look in a larger frame the yare just regulating how the hotels go about their activity.

6 Hypotheses to Consider with EP

Hypothesis 1: treat like cases alike, (this is more important in the beginning, you treat like cases alike with respect to the statute, focus on the means with which the statute attains its purpose, aka rationality review, but also what is the purpose, is it appropriate? They actually defer entirely so purpose not that important) --- These next four become more relevant with strict scrutiny 2: It's the thought that counts 3: Anti-Classification: 4: Bad effects 5: expressing denigration

Facts about events from states After Articles of Confed & proceeding Constitution

-a lot of small farmers had huge amounts of debt they couldn't pay. - Payment programs led to inflation - Shay's rebellion (cause by farmers who didn't get relief in MA, and so they closed courthouse to prevent foreclosures , congress couldn't step in to do anything) -Annapolis convention -Then Philadelphia constitution meeting in 1787

Equal Protection Broadly

14th amendment: "nor deny to any person within its jurisdiction the equal protection of the laws." 1. DP vs. EP: justness vs. fairness. When we look at SDP, we are looking at the fundamental liberty interests that you are entitled to. EP, on the other hand, is a comparative evaluation, that looks at how you are treated as compared to other people. 1 hypothesis of equal protection is treat everyone the same. The problem is we cant treat people the same, wee we need to discriminate sometimes. Ex need to pass some sort of exam to practice law. So some of these will be permissible. -should be equal applicability of law? What is the best way to go about ti. -also sometimes when things are "equal" they aren't equitable 2. EP broad concept: Can't possibly treat everyone the same, but possible to have distinctions that are unfair. Need to treat like cases the same. If treating them differently, need to have connection between means and purpose of law. Depending on the level of scrutiny, the closeness of connection required will increase. Different cases can be treated differently.

Disability

Cleburne v. Cleburne Living Center Il. The court rejected the argument that heightened scrutiny was appropriate n case involving exclusion of a group home for the mentally disabled, yet struck down the classification while purporting to apply rationality review: 1. Think heightened scrutiny wasn't meant to extend to mental retardation. 2. The federal government has done programs regarding mental retardation, and we don't want to make it have to justify its efforts in a away that might make it not act it all. 3. Third, the legislative response , negates any claim that the mentally related are politically powerless in the sense that they have no ability to attract attention of lawmakers . Though they have had a history of discrimination they are not so insulated as to not be able to work though political means 4. If the large amorphous class were deemed quasi suspect, it would eb difficult to find ap principled way to distinguish a variety of other groups who have perhaps immutable disabilities setting them of from others. Similar considerations needed for the aging, th disabled, an, the mentally ill, and the infirm. They are still protected by the potential for legislation and here under equal protection from rational basis review. The city was worried about negative attitude of property owners and elderly to the people coming in (not legitimate). second was concerned that the facility was across for junior high school and feated that the student might harass the occupants of the home (not legitimate because the school had mentally retarted kids too). Third, the homes location was within 500 yards of a floodplain, (not legitimate because they're things are allowed there similar),some ela with the risk of legal liability issues from actions by mentally related people, but the same could be said about people who are in fraternity. Lastly, The counsel was concerned with size of the home and the number of people that would occupy it, but there were not reductions on other similar homes Concurrence: Stevens: thinks you should use a continuance on spectrum between rational , intermate ,and strict scrutiny. While racial could be strict and economic classification rational, everything else should be on spectrum not because they are irrelvant but because the characteristics of these groups are sometimes relevant and sometimes not to valid public purpose or more specifically to the purpose that challenged laws purportedly intended to serve.Upholds their rrish analysis Justice marshal concurrent in the judgment and dissenting in part: Thinks the court did not hold a true rational basis review but instead was basically doing heightened scrutiny,. Doesn't like that . says this was a substantial interest of protecting and it seems this would protect them well. . kind of confusing actually, maybe hes saying it should have involved more of test idk

Marbury v. Madison

Judicial Review Article III - Created federal judiciary & defines its powers, but never expressly gives fed courts power of judicial review. Marbury v. Madison (1803) (Marshall) - Case known for establishing judicial review. (although some evidence that it existed prior to this case). In 1 view the decision is a byproduct of the ordinary judicial function in deciding lawsuits, in another, the decision reads the Constitution as endowing the court w/ power. Question: (1: Is the Constitution the supreme law of the land? 2. Are the court's the ultimate or exclusive interpreters of the Constitution, or do other branches of government share in that authority?) Facts: Marbury asked the Supreme Court (directly) to issue a writ of mandamus for his political appointment. Judiciary Act by congress said SCOTUS could issue writ, but not permitted in Constitution - only appellate review. Holding: Right - Marbury has a right, he is entitled to commission because it was signed and sealed by the president, the appointment is made, and the commission was complete when the seal of the US was offered to the Sec of State. Remedy - 1. When a person has a right, they are entitled to a remedy (otherwise the right would not mean anything). 2. Was issuing the Writ of Mandamus appropriate for the SCOTUS? Judiciary Act says he can issue the writ to the public official under original jurisdiction, but Art. III limits original jurisdiction of SCOTUS H: Court held that the provision of the Jud Act was unconstitutional because Congress cannot allow original jurisdiction beyond what is enumerated in the Constitution - Constit is highest law of land and anything that conflicts is void. (By declaring law unconstitutional = SCOTUS has power to review the constitutionality of federal executive actions and federal statutes. "It is emphatically the duty of the Judicial Department to say what the law is." • Legislature should not have power to both make the laws and interpret their constitutionality, Marshall is worried about legislative omnipotence - Policy would rise and fall with passions of majority . Political Question Doctrine: This all leaves a question though what is legal and what is political. • In this case, the judge getting his writ signed was legal (affecting the individual party) and political (effecting a lot of people). Court ultimately said that the legal aspect was critical, though both relevant. Who decides if the law is in conflict w/ constitution then? Main arguments for supremacy / judicial review: 1. Soft Voice. This is the judge doing their job of assessing a case. Ct. has to interpret the constitution to decide if there's a right which needs remedy. 2. Avoiding a Fox (the legislature) guarding the hen house (laws/ the constitution), legislature should not be able to both make the laws and interpret their constitutionarlity 3. Judges take an oath of office to protect the constitution (even though others do this too) - Judges specialize in judgment, neither concerned with the "sword" or the "purse," they are impartial: Unelected, Life tenure - Judges bring expertise to the process - Restraining function of a Const. becomes moot if other branches allowed to exceed their bounds 4. Loud voice: Judicial function; it is emphatically the power and duty of the judicial department to say what the law is. Overall Thematic Questions touched upon in or related to Marbury: Why is judicial review justified? - Historical (as discussed in class): The Federalist No. 78 argued that: When rights being deprived affects us all equally we can vote them out, but when its an unpopular view the legislative branch has no incentive to protect it. But the judiciary does - acts as a check. Protecting minority rights. - Balance of powers: The judicial branch is restricted in general, it has neither sword nor purse (only justice) they aren't powerful so we need something to push back with to give us power -The constitution is close to the people, so we need an intermediary between constitution and democratic majority today - This question pervaded constit. law (question over who decides what the constitution means?) - Law vs. Politics. The court decided that this case was interpreting the law. *Case book says the two main questions raised are (1: Is the Constitution the supreme law of the land? 2. Are the court's the ultimate or exclusive interpreters of the Constitution, or do other branches of government share in that authority?) these have relevance in the two sections below:

Affirmative Action , generally and earlier case

Question going into this/ how racial classifications could be treated before Argument for lower than strict scrutiny(so factual inquiry) -if we say intent is what really matters, and in this case intent is a good one, they provide people with benefits (help a previously disadvantaged group). Think like feeney, a case with a no bad intent, serves a legitimate purpose v. Moreno )bad intent based on a desire to target a specific group of people). Whats an argument for scrutiny? -Brown v. board & loving (not facial neutral/ racial classification) -Maybe you an argue that they only looked at intent when the was a facially neutral law -So in bakke the standard of review is strict scrutiny, but once you applied strict scrutiny its not that strict less strict in Harvard (though simply advising in a sense there) for example than UC davis. In Grutter v. Grates court does same thing. Side note for AA cases: Protections under Title VII of the Civil rights act of 1964? Right of action for this case connected through equal protection.."*this isn't important 1. Regents of Univ of CA v. Bakke (1978) (Powell, 4 concurring on that uc Davis violate the ep, 4 concurring that race can be a plus factor in admission, powell is the only one w/ both, but reaffirmed in whole in Grutter.)- affirmative action (quota) at Davis medical school. Ct rules that this statute is invalid yet schools can use race as + factor. i. Issue 1: Strict scrutiny or rational review? As said by powell) For SS: anti-classification - statute clearly classifies based on race. Bad meaning/message - minorities cannot get in on their own merits ("reinforce stereotypes"). Problems in justice with the idea of preference based on ancestry (as he says). / Hard to tell that preference is being. also there is a measure of inequity in forcing innocent person in respondent's position not bear the burdens of redressing grievances not of their making / should instead be based on compelling interest For RR: anti-caste - (more of discussion/ analysis here, not from case) this statute is trying to eliminate castes by raising minorities up and including them in historically white predominated areas. Bad effects - this actually has a good effect by helping minorities become doctors. Bad purpose - this is a good purpose, trying to remedy past wrongs. Bad message - this is a good message, the gov wants all ppl to have access to higher education. -he goes with SS Issue 2: Is there a compelling interest? (Since this is under strict scrutiny): He says it 1. Preference for a racial group No It is facially invalid to make a preference for a specific ethnic or racial group so trying to assure a certain percentage no good 2. Combatting historical discrimination (yes, but only if gov played a role)Even though state has a legitimate and substantial interest in ameliorating the disabling effects of identified discrimination, we have never approved a classification that had persons perceived as members of a relatively victimized goru pa at the expense of other innocent individual in the absence of found violations. 3. Improving health care services might to victimized groups Yes, but there is not a good fit / proof that this program of selecting certain ethnic groups will held that. For the last one 4. (a diverse student body Yes, but only under the courts view of diverse) the court says that it is a compelling interest to make a diverse student body, but only in what he sees as diverse (not just racial) So Ct (Powell) ends up using strict scrutiny to turn it down iii. Issue 3: Whether the program's racial classification is necessary to promote this interest? Ct says it is not. Can use race as a "plus" as in Harvard's program, but explicit racial classification/facial intent is not allowed. Need to treat each applicant as an individual. Brenan concurrence/dissent - wants to use intermediate scrutiny for AA. Thinks under two prong test that the past societies' discrimination is sufficiently important to justify a race conscious admissions programs where it 1. combats systematic educational opportunities challenges. 2 and it does not stigmatize any discrete group. It compensates educationally disadvantaged rather than simply advancing less qualified applicants

History between Declaration of Independence the Constitution

- After the Declaration was the Articles of Confederation and Perpetual Union -each state had its sovereignty, each had 1 vote regardless of size. - Several factors made Article of Confederation weak: - no power to tax (so congress couldn't pay back debt), - no power for fed to regulate commerce - in order to amend required unanimity (so amending impossible due to holdouts) - representatives can be recalled so they were focused mostly on state issues, - no judicial or legislative branch

Overall Thematic Questions touched upon in or related to Marbury: Why is judicial review justified?

- Historical (as discussed in class): The Federalist No. 78 argued that: When rights being deprived affects us all equally we can vote them out, but when its an unpopular view the legislative branch has no incentive to protect it. But the judiciary does - acts as a check. Protecting minority rights. - Balance of powers: The judicial branch is restricted in general, it has neither sword nor purse (only justice) they aren't powerful so we need something to push back with to give us power -The constitution is close to the people, so we need an intermediary between constitution and democratic majority today - This question pervaded constit. law (question over who decides what the constitution means?) - Law vs. Politics. The court decided that this case was interpreting the law. *Case book says the two main questions raised are (1: Is the Constitution the supreme law of the land? 2. Are the court's the ultimate or exclusive interpreters of the Constitution, or do other branches of government share in that authority?) these have relevance in the two sections below:

Anti-Commandeering

(main cases) New York v. U.S. (1992) - Government passes a policy for dealing with nuclear waste, which generates monetary incentives for states to dispose waste within borders. Fed law has 3 incentives for creating radioactive waste disposal sites: monetary incentives; access incentives; & take title incentives. Ct analyzes 3 of them separately: 1) Monetary incentives: within spending power of Congress - Things the federal government can't command may still be incentivized through money. 2) Access incentives: Allows states to increase prices for incoming things not meeting guidelines. This is important because (Dormant Commerce Clause: prohibit state legislation that discriminates against interstate or international commerce.) Under Commerce Clause power, discrimination between states = permissible. 3) "Take title" sanction: if a state fails to create a disposal site for internally created waste, then it must take title to the waste & is liable for any damages = unconstitut. Coercion: Standing alone, both options (accepting ownership of waste or regulating according to instructions of Congress) the state is given would not be allowed. Therefore, giving a choice between the two is equally impermissible. Both are coercive, not an -offer/incentive. Ex. If a gunman says, "Your money or your life," he has not created an incentive, but a penalty = give away your money or die. Accountability Issue: - negative impact on state officials when federal officialinsulated - If fed gov forces a state to pass the law, the people won't realize that the people who should be held accountable = federal government. People would blame state but really its federal government. White dissent - states participated in/cooperated with the production of this legislation. There is no failing in the national political process. Printz v. United States (1997) - Ct strikes down Brady Handgun Violence prevention Act's efforts to require state law enforcement officials to temporarily help in administration of federally enacted regulatory scheme (reviewing the background checks collected by gun dealers). Why? 1) No commandeering of state officials - The Constitution gives Congress power to regulate individuals, not States. These are state employees and the Brady Act is directed at them in their official capacities. 2 Caveats: i. Spending Clause Power - Congress can buy the power of the state officials (but what does this say about Scalia's accountability argument? Or maybe since state agrees to take on the job they are equally accountable). 2) Accountability Problems - State law enforcement would be left to implement the Act w/o the President's control, who "shall take care that the laws be faithfully executed." If a citizen doesn't like a policy, she needs to know who to blame so can "vote the idiot out." Congress takes credit, while states absorb costs and state actors receive criticism. Dissent - more deference to Congress. History suggests that Congress was to have the power to demand that local officials implement national policy programs. Maj rule wants to protect states, but their rule will incentivize the National Govt to aggrandize itself - create vast national bureaucracies to implement its policies. iii. Bottom line - Congress may attach conditions to the receipt of fed funds and where Congress has the authority to regulate private activity under the CC, Congress can offer the states the choice of regulating that activity according to fed standards or having a state law preempted by fed regulation. Dissent: While majority thinks that federalist was ambiguous and only ainvovled states acting for federal govnement because they consented, the dissent there thinks that ti was unambvious and also demonstrated an intent to enchance the capacity fo the gederal govnemetnto make demands directly on indiviudals by working with local offocials "Generally Applicable Laws" -Reno v. Condon, p173 - the law was aimed at data selling in general, not at the state officials in their role as data collectors (couldn't disclose or make available to others personal info about inviudal obtained by department for motor vehicle without their consent. The law also imposed extensive regulations on the resale or disclosure of dmv info obtained by private persons and entitties. The line between laws regulating the state s and laws requiring states to regulate their ow citizens curical -this is regulating state activities rather than controlling or influencing the manner in which states regulate private parties. Does not require that states in their sovereign capacity regulate their own citizens . the ddpa regulates that states as the owners of databases. The ddpa regulates the universe of entities that patriciate as suppliers of the marktr for motor vehicle information - the sates as initial supplier of the information in interstate commerce and private resellers or redisclosure of the information in commerce

Main Cases (New York, and Printz on 10th Ammendment)

(main cases) New York v. U.S. (1992) - Government passes a policy for dealing with nuclear waste, which generates monetary incentives for states to dispose waste within borders. Fed law has 3 incentives for creating radioactive waste disposal sites: monetary incentives; access incentives; & take title incentives. Ct analyzes 3 of them separately: 1) Monetary incentives: within spending power of Congress - Things the federal government can't command may still be incentivized through money. 2) Access incentives: Allows states to increase prices for incoming things not meeting guidelines. This is important because (Dormant Commerce Clause: prohibit state legislation that discriminates against interstate or international commerce.) Under Commerce Clause power, discrimination between states = permissible. 3) "Take title" sanction: if a state fails to create a disposal site for internally created waste, then it must take title to the waste & is liable for any damages = unconstitut. Coercion: Standing alone, both options (accepting ownership of waste or regulating according to instructions of Congress) the state is given would not be allowed. Therefore, giving a choice between the two is equally impermissible. Both are coercive, not an -offer/incentive. Ex. If a gunman says, "Your money or your life," he has not created an incentive, but a penalty = give away your money or die. Accountability Issue: - negative impact on state officials when federal officialinsulated - If fed gov forces a state to pass the law, the people won't realize that the people who should be held accountable = federal government. People would blame state but really its federal government. White dissent - states participated in/cooperated with the production of this legislation. There is no failing in the national political process. Printz v. United States (1997) - Ct strikes down Brady Handgun Violence prevention Act's efforts to require state law enforcement officials to temporarily help in administration of federally enacted regulatory scheme (reviewing the background checks collected by gun dealers). Why? 1) No commandeering of state officials - The Constitution gives Congress power to regulate individuals, not States. These are state employees and the Brady Act is directed at them in their official capacities. 2 Caveats: i. Spending Clause Power - Congress can buy the power of the state officials (but what does this say about Scalia's accountability argument? Or maybe since state agrees to take on the job they are equally accountable). 2) Accountability Problems - State law enforcement would be left to implement the Act w/o the President's control, who "shall take care that the laws be faithfully executed." If a citizen doesn't like a policy, she needs to know who to blame so can "vote the idiot out." Congress takes credit, while states absorb costs and state actors receive criticism. Dissent - more deference to Congress. History suggests that Congress was to have the power to demand that local officials implement national policy programs. Maj rule wants to protect states, but their rule will incentivize the National Govt to aggrandize itself - create vast national bureaucracies to implement its policies. iii. Bottom line - Congress may attach conditions to the receipt of fed funds and where Congress has the authority to regulate private activity under the CC, Congress can offer the states the choice of regulating that activity according to fed standards or having a state law preempted by fed regulation. Dissent: While majority thinks that federalist was ambiguous and only ainvovled states acting for federal govnement because they consented, the dissent there thinks that ti was unambvious and also demonstrated an intent to enchance the capacity fo the gederal govnemetnto make demands directly on indiviudals by working with local offocials "Generally Applicable Laws" -Reno v. Condon, p173 - the law was aimed at data selling in general, not at the state officials in their role as data collectors (couldn't disclose or make available to others personal info about inviudal obtained by department for motor vehicle without their consent. The law also imposed extensive regulations on the resale or disclosure of dmv info obtained by private persons and entitties. The line between laws regulating the state s and laws requiring states to regulate their ow citizens curical -this is regulating state activities rather than controlling or influencing the manner in which states regulate private parties. Does not require that states in their sovereign capacity regulate their own citizens . the ddpa regulates that states as the owners of databases. The ddpa regulates the universe of entities that patriciate as suppliers of the marktr for motor vehicle information - the sates as initial supplier of the information in interstate commerce and private resellers or redisclosure of the information in commerce

Grutter, Gratz, And Parents Invovled (cases showing modern approach to AA)

- (university of Michigan law school admittions policy) 1. reaffirms that strict scrutiny applies in context of affirmative action. 2. Diversity is compelling gov interest, that can justify the use of race in admissions (adopt Powell's view from Bakke). 3. Means do not have to be the only way to achieve diversity - do not have to "exhaust every conceivable race-neutral alternative" to be considered narrowly tailored. But, school does have to give "serious, good faith consideration of workable race-neutral alternatives" and cannot "unduly burden individuals who are not members of the favored racial and ethnic groups." Ct upholds AA plan in this case. i. Why is diversity compelling gov interest? • 1.Global marketplace - good for business people • 2.High-ranked officers and civilian leaders of military say its important • 3.Legitimacy in our leaders - path to leadership needs to be "visibly open to all talented and qualified individuals of every race and ethnicity". This is the training ground for our nations leaders. 4. livelier discussions/ better education (like in bakke) 4. Issue of deference - is diversity compelling bc university thinks so or bc Ct thinks so? Who decides whats compelling? -they could be differing completely (saying if you get to chose what interest) but they are also saying tis the proper to give that right (so many that's the appropriate right and not just something given out of difference) Court clarifies in Fisher that there is no deference to university about narrowly tailoring, but there we dont know if there is deference about compelling interests. 5. Note: sunset provision: "We expect 25 years from now, the use of racial preferences will no longer be necessary" -the comment that the use of racial plus factors wont be needed for ever -this may not be that important, saying everything in society changes, -or ou might be saying it should really only be for 25 years. 6. Next aspect of the opinion to discuss is what role the 1st amendment plays / educational mission / freedom of speech (Court says it does play a role, professor says not so much really) -2nd thing is do we have a contract on that role 7. What is individualized inquiry (since the entire admissions process is somewhat generalized)? • Flexible, non-mechanical - no quota • Race as a plus factor - need to do holistic review, must look at other elements of diversity Grutter v. Bollinger & Gratz v Bollinger Comparison You still need it to be narrowly tailored (as seen be grutter v gratz). - court says Need individualized inquiry. But what is that individualized inquiry? In grutter -race is a trait among many (it's a plus factor but harder to pin down/ less specific) In Gratz -court doesn't like the point based system (maybe we should weigh at all) -important to point out though that this is an undergraduate school hard to do so not mathematically - didn't like the high weighing of race - too specific -maybe requires a human being to read over every file Professor says - a rigid cutoff might not be bad -we need a theory of what it means to be an individual. Another aspect of individualized inqiury is you don't need to go through all other options Thomas dissent- echoing Adarand concurrence. Says there was way too much deference. If there is strict scrutiny, they shouldn't defer at all (the two are direct opposites). Is upset that they are saying in the majority that scrutiny but giving deference ( however one can say that the fact that they upheld grutter and turned down gratz shows some security). Also he says, school could do this in race neutral way, but this would lower selectivity and therefore prestige of the school. That, however, is not a compelling gov interest and shouldn't be able to have both in this case like majority allows. Showing that court does not defer to school for individualized inquiry (doesn't allow race to serve as proxy for diversity, unlike above) Parents Involved v. Seattle School District (2007) - Two cases merged - Seattle (did not have de jure segregation) and Louisville (had de jure segregation). In Seattle, race used as tiebreaker in determining where school children will go to school (children got to rank which school they wanted to go to and if school was too popular, would send child to other school based on siblings at that school and secondly race). In Louisville, all "non-magnet" schools required to maintain at minimum 15% black enrollment and max 50%. What kind of strict scrutiny are we working with? Strict A fractured opinion by the judges. Just Roberts signs, kennedy writes his own opinion. The debate between the judges seems to be that Kennedy wants to allow race to be a factor because education is so important (it seems he's assuming Roberts opinion is suggesting race should not be a factor at all) i. Roberts - very strict, traditional. Does not buy the ends: Not remedying past discrimination - Seattle never had de jure seg and Louisville attained unitary status. Diversity not compelling in K-12 - no admissions process, and here just about racial diversity, not diversity as a whole. Does not buy the means either (says maybe the means implied in grutter were oly allowed for higher ed) : only minimal effects on student assignments, other means available. Not trying to get educational and social benefits from diversity. Just trying to racial balance. Renaming "racial balancing" to "racial diversity" does not make it a Constit compelling gov interest. -he does think tha t its important to remedy past effects, but doesn't like racial balancing. • Imputes to lawyers who argued Brown a view of the Constit that bars any use of race to classify or different treatment on the basis of race. Accurate? Pg. 575 -but Roberts does specify that he does think racial diversity at least is important, cites cases where school is located in between two zones to promote racial integration. ***in a sense Robert thinks racial balancing is not compelling or permissible or legitimate while Kennedy thinks its not compelling but permissible. Kennedy says you can use race neutral means to try to address it . when ti comes to facially neutral instances, Roberts it is not clear. Says it isn't for the court to decide then/ not before the court that. , maybe Kennedy thinks he was more opposed than he actually was) ii. Breyer - allowing for a little "wiggle room," not "fatal in fact," a little more permissive. Buys the ends, Grutter makes them compelling - three elements of the interest: 1) remedial, 2) overcoming adverse educational effects associated with segregated schools, and 3) reflecting the diverse society we live in - teaching children to learn to work/play w/ children of different backgrounds) and the means (race is one factor among many - school first uses student choice, then siblings, then race). School are trying to bring about integration that Brown promised. iii. Kennedy - probably somewhere between Roberts and Breyer, comes up with ends for School District kinda/buys their ends - there is a compelling interest to avoid racial isolation, but nixes them on the means bc bothered by use of racial classification and thinks race-neutral means could have been used. Thinks race can be taken into account to adopt policies that encourage a diverse student body, one aspect of which is racial composition.

Canon/ Anti-canon

Canon: Most Important Works Anti-Cannon: Embarrassments/ mistakes (ex: Plessy). Good tests for asking would a policy make this right/ wrong.

N&P Cases Following Mcculoch

Courts have generally applied chief justice marshals broad interpretation of the N&P clause in Mcculloch, often in the context of similar broad interpretations of congress's commerce power., but limits exit there, and there are questions about similar limits on n&p clause. United States v. Comstock (Breyer) Question: Court considered the question of whether the Necessary and Proper Clause grants authority to Congress to enact a statute, 18 U.S.C. %4248, the Adam Walsh Child Protection Act, allowing federal district courts to order the civil commitment of mentally ill, sexually dangerous federal prisoners beyond the dates they would otherwise be released. The court found, by a vote of 7-2, that the clause does grant such authority. Holding/ Rational: in determining whether Necessary and Proper Clause grants the legislative authority to enact a particular fed statute, look to whether the statute constitutes a means that is "reasonably adapted" to implementation of an enumerated power. Congress possesses broad authority to do each of those things in the course of carrying into execution its enumerated powers. The statute properly accounts for state interests, as it doesn't invade into state sovereignty but rater requires accommodation of state interest; it requires the attorney general to encourage the relevant states to take custody of the individual without into inquiring into the suitability of their intended care of treatment, and to relinquish federal authority whenever a state asserts its own. OK if many links in the inference chain and a pretty loose connection. Also limited in a way, its reach is limited to individuals already in the custody of the federal government., it is just reasonably extending its longstanding civil commitment system to cover mentally ill and sexually dangerous individuals, and it is reasonably adapted to its power as to act a s a federal custodian (a power it already had).. Justice Kennedy, concurrance; thinks we should just a rational basis test, like in commerce clause The dissent, however, criticized what it characterized as the court's expansive interpretation of the necessary and proper clause. National Federation Of Independent Businesses v. Sebelius (Chief Justice Roberts) by contrast to above, a 5-4 majority of the Court found the N&P Clause an insufficient basis to sustain the individual mandate aspects of the Patient Protection and Affordable Care Act of 2010, which it also deemed to exceed the bounds of Congress's enumerated power under the Commerce Clause. Holding: N&P clause an insufficient basis for the ACA. -responsibility to declare unconstitutional those laws that undermine the structure of our government established by the constitution, that aren't proper means for carrying into execution congress' enumerated powers because individual mandate vests congress with extraordinary ability to create the necessary predicate to the exercise of an enumerated power. Just as the individual mandate cannot be sustained as a law regulating the substantial effects of the failure to purchase insurance, neither can it be upheld as a necessary and proper component of insurance reforms. -has to be related to an enumerated Dissent (Ginsburg) would have found the invalidated provisions "an 'essential part of a larger regulation of economic activity'" valid under both clauses. They argue that without it there would be death spiral in the health insurance market United States v. Kebodeaux (Breyer). Facts: the court addressed whether congress has authority under the N&P clause to require a convicted member of the air force to register as a sex offender under the sex offender registration and notification act (SORNA), enacted after his conviction Holding/ Rational: Yes, congressional authority under n&p clause. Noone claims other similar acts are outside N&p clause, this is just an extension of that. And the scope of N& P clause is broad, ex: while the constitution doesn't mention much about federal criminal law, the N&P has authorized powers to create federal crimes, to confine offenders to prison, to hire guards and other prison personal, etc. and constitution explicitly grants congress power to make rules for the regulation of the land and naval forces.. So this fits

Considerations with Due Process Overall

Protection only against bill of rights or also fundamental liberties? List never dies especially after Lochner, Also question of how to describe what fundamental liberties have been protected - only could be more open ended (mysteries of human life vs designing them in a more specific way) 2nd consideration How important is history? Ex: natural right older than bill of rights (freedom older than BOR0 Or fundamental liberty is limited to judicial decision / legislation through history. -but just American or also European? 3rd consideration -how do you decribe the right within history? How specific -is it right to own a gun ,or right to self protection? -right to dignity or right to have same sex relations

Understanding Rationality Review

When a regulation does not involve a racial or other (quasi) suspect classification held to warrant heightened scrutiny, the Ct has applied minimal rationality review to determine whether there is a rational relationship to a legitimate gov interest. Such review does not demand anything approaching a perfect fit to an actual purpose - any conceivably rational basis will suffice. i. Do the laws even need to have a rational reason? Probably not -see case below ii. Generally legitimate if it advances a traditional "police" purpose: protecting public safety, public health, or public morals. iii. Ct has generally been extremely deferential to the gov when applying RB test - has said that a law should be upheld if it is possible to conceive any legitimate purpose for the law, even if it was not the government's actual purpose. Rehnquist majority in Fritz: "Where, as here, there are plausible reasons for Congress' action, our inquiry is at an end. It is, of course, constitutionally irrelevant whether this reasoning in fact underlay the legis decision bc this Ct has never insisited that a legis body articulate its reasons for enacting a statute." Railway Express v. New York (1949) - Law doesn't allow vehicles to have advertisements on them unless the vehicle is used in the course of the business and the ads are for that business. Legis says this law to prevent distractions (public safety on streets), but P challenges this makes no sense bc there were still be ads on some trucks. Ct says legis could have thought ads on business owners' vehicles have a different nature than commercial ads and thus pose less of an issue. Upholds law. "No req of EP that all evils of the same genus be eradicated or none at all." RE: legis did not address Times Square ads i. Example for deference to gov ends. Deferential language: "may well have concluded," "We cannot say the judgment is not an allowable one." -Basically the fit didn't matter much at all, so deferential as to do nothing. Jackson concurrence: Finds "real difference between doing in self-interest and doing for hire" such that the classification is allowed. U.S. Railroad Retirement Board v. Fritz (1980) - RR retirement elimination of dual benefits issue. Ct says bc Congress could have eliminated windfall benefits for everyone, not an illegitimate purpose to phase out benefits by drawing lines between groups of employees. Next question is whether Congress did so in a "patently arbitrary or irrational ay." Says no, Congress could have thought/assumed XYZ. Plausible reason = inquiry over (deferential to purpose in rr even if maybe some classification as long as its not suspect to heightened review/ strict scrutiny ). Law upheld. ***This case is important because highly deferential but says that only when the court is suspicious that there's a bad purpose will they have heightened review to uncover the bad purpose. Like in moreno when rationality has more bite. Williamson v. Lee Optical Co. (1955) - Ct rejected EP and DP challenge to OK's scheme for regulation of opticians, but not of sellers of ready-to-wear glasses. i. Example of deference to means-ends relationships and allowing the legis to act under-inclusively or "one step at a time" in combatting perceived evils. 5. Under deferential approach, law can be stupid, but can't be based purely on animus or a bare desire to harm a politically unfavorable group:

Application of "Loose" Strict Scrutiny to other Racial Groups (this is anti-canon in a way)

i. Korematsu v. US (1944) - Japanese internment camps. Strict scrutiny applies bc of racial classification. (strict scrutiny means we need to look at what the purpose is and if the means meet the purpose) *one question before this was were we just talking about African Americans under strict strutiny? This case says no other races, ethnicities), other classified groups) But, in this case "pressing public concern"/ "nat'l security interest justifies use of racial classification - ends tied to means close enough - means were "necessary" bc can't distinguish between loyal and disloyal Japanese Americans. Main criticism is that they didn't really apply the test ("loose strict scrutiny"). *After this mistake we should really apply stricter strict scrutiny. -Also in this case there was a large deference because f military needs, since this was wrong maybe after we think military needs should not be granted such deference Dissent - not tight enough fit between means and ends. Rounding up all Japanese Americans because of a few potentially disloyal members is not necessary. • Embarrassing, but never been overruled like Plessy, Lochner, dred scott (actually it was). Justice Jackson dissent did not want SCOTUS to put a stamp of approval on military action. Military will do what they do in times of war, but those actions are not indefinite. SCOTUS okay memorializes the action, though.

Theories of Constitutional Interpretation

i. Originalism - Two strands: 1) Intentions - what did the Framers intend? 2) Original Public Meaning - how was it understood at the time the Constitution was first written? ii. Textualism - Document only- focus on the words/text; don't care about intent. iii. Idealism - Partly textualist; interpretation has to fit reasonably well with text, but when law has two meanings (one innocent & one bad), interpret towards the good purpose. Look at spirit behind the letter and the ideals of the law. iv. Realism - unlike other theories above, says there is no right way to interpret the Constitution. Think that judges base decisions on politics and power.

Sex Discrimination Historicalyl

All other western countries mention sex-based equality except the U.S. constitution. It provided no federal protection against laws explicitly treating women different from men. Did the 14th amendment, contemplate equality for women? In bradwell v States (1873), the court denied federal privileges and immunities included in the right for women to practice law (saying man should be women's protector and defender. The constitution, which is founded in the divine ordinance and nature of things, contemplated a domestic sphere." Minor v. Happeset, court denied the federal privialeges and immunities included he right of women to vote In state elections , suggesting that women may be persons within the meaning of the 14th amendment, but that thy werent thereby entitled to participate in political or professional realm reserved to men. Only the 19th amendment addresses expressly any aspect of women's equality, providing that the right of citizens of the Untied states to vote shall not be denied or abridged by the United states or by any state n account of sex. (this has been considered narrowly to apply only to the formal franchise). Shortly after that though there wasn't extensions to jury service or state-licensed occupations. The 19th ammendment bears analogy to the guarantee against race discrimination in the 15th amendment, but no text explicitly specifies an equal protection guarantee for the sexes comparable to the general guarantee in the fourteenth ammendment Several successes on sex discrimination under equal protection in 14th amendment even though the court at the outset purported to apply the rationality standard and even though the court never did assimilate sex criteria to the fully "suspect" statue of racial ones. By the mid-1970s , in Craig v. Boren , a consensus was reached at last, the majority applied a heightened but only intermediate, not strict level of scrutiny. First deference to laws mainlining Separate spheres Goeseart v. Cleary, rejecting an attack on a Michigan law which provided that no women could obtain a bartender's license unless she was the wife or daughter of the male owner of licensed liquor establishment. Justice Frankfurter stated :" Michigan could, beyond question forbid all women from working behind a bar. The constitution does not require the legislature to consider sociological insight or shifting social standards, any more than itt requires them to keep abreast of the latest scientific standards. " said it was to ensure oversight rather than man's desire to gain monopoly over the provision. Justice Rutledge dissented saying that it was an inadequate fit between means and ends , saying benign , protective legislation for women was fine but that it didn't fit well.

How Constitutional Interp Applies to other Cases (Judicial Exclusvity in Con Interp)

Cooper v. Aaron (1958) - Facts: Gov of AK refuses integration after SCOTUS decision in Brown - says that was just SCOTUS' interpretation of the Constitution in order to resolve that individual case (i.e. only bound the parties of Brown). Holding (Chief Justice Warren and others): SCOTUS uses Article VI of the Constitution to say the Supreme Court's interpretation/ judgement on a case is "the supreme Law of the Land" and binds all, not just those parties to the case • (Need a final arbiter- can't constantly be re-litigating the same issue). Federal courts have the authority to review the constitutionality of state laws and actions of state officials. • Ruling followed the loud voice (judicial function) of Marbury "'it is emphatically the province abd duty of the judicial department to say what the law is'" SCOTUS addresses the actions of parties who were not directly bound by precedents of prior rulings, and brings them under the control and direction of those precedents. -the federal judiciary is supreme & the constit. is the supreme law of the land so they have right over all. - therefore their interp. of the 14th amend & other parts of the cons. are supreme law of the land - What the supreme court says is the authoritative rule of law. Because their interpretation is the law "the federal judiciary is supreme in the exposition of the law of the Constitution".

Right to Die Under DP

Lawrence v. Texas (2003) - law targeting sodomy among the same-sex only (GA law in Bowers banned sodomy for all). Ct strikes down under DP clause liberty interest: ii. SDP - Privacy -> Autonomy -> Dignity (Fusion word about DP and EP - Right to define/control life and right to not be demeaned) - just a Justice Kennedy thing or will two clauses fuse going forward? iii. Liberty right in Lawrence: 1. Choices central to personal dignity and autonomy 2. Personal relationships 3. Spatial (home, plus) Also History: using history (says laws weren't aimed at LGBT individuals until the 20th cent, only four states actually implemented laws targeting homosexuals) and foreign decisions (to reinforce that it is a fundamental right, evidence for the claim that it is so bc other ppl think its so). Ct never says it is a fundamental right, so not really sure what level of scrutiny applied, but it is definitely a heightened review. i. Kennedy writes opinion, has living constitution view - "Had those who drew and ratified the DP Clauses of 5th and 14th known the components of liberty in its manifold possibilities, they might have been more specific. They did not presume to have this insight." Pg. 477 Basically h's saying the drafters did not purport to know all the ways that one's fundamental liberty interests might be violated, were smart enough to realize they couldn't know all, so expected the court to employ some later iv. As an EP case - O'Connor concurrence (wants EP bc doesn't have the same issue of overturning democratically enacted legis (Lochner issues with DP) - in her opinion all legis has to do is make it apply to everyone and legis won't want to have the law as much bc maj won't want their liberty restricted. Using equality to protect liberty. v. Kennedy rejects this bc using EP allows laws to prohibit behavior for everyone (like Bowers) and the law would not equally affect both types of couples (stigma) - options for heterosexual couples' sexual expression is still not as limited as homosexual couples and so equality won't do the trick. Using liberty to protect equality. "State cannot demean (equality based word) their existence or control their destiny by making their private sexual conduct a crime." pg. 477 vi. "The petitioners are entitled to respect for their private lives." Is respect part of a liberty interest? How do you define respect? Scalia dissent - does not like rejection of morality as basis for legis. Worried about a slippery slope of a bunch of other laws being struck down. Thinks the Ct is "Lochnerizing" (mentions working 60 hours a week) - took sides in a culture war.

Sex under Due Process

Lawrence v. Texas (2003) - law targeting sodomy among the same-sex only (GA law in Bowers banned sodomy for all). Ct strikes down under DP clause liberty interest: ii. SDP - Privacy -> Autonomy -> Dignity (Fusion word about DP and EP - Right to define/control life and right to not be demeaned) - just a Justice Kennedy thing or will two clauses fuse going forward? iii. Liberty right in Lawrence: 1. Choices central to personal dignity and autonomy 2. Personal relationships 3. Spatial (home, plus) Also History: using history (says laws weren't aimed at LGBT individuals until the 20th cent, only four states actually implemented laws targeting homosexuals) and foreign decisions (to reinforce that it is a fundamental right, evidence for the claim that it is so bc other ppl think its so). Ct never says it is a fundamental right, so not really sure what level of scrutiny applied, but it is definitely a heightened review. i. Kennedy writes opinion, has living constitution view - "Had those who drew and ratified the DP Clauses of 5th and 14th known the components of liberty in its manifold possibilities, they might have been more specific. They did not presume to have this insight." Pg. 477 Basically h's saying the drafters did not purport to know all the ways that one's fundamental liberty interests might be violated, were smart enough to realize they couldn't know all, so expected the court to employ some later iv. As an EP case - O'Connor concurrence (wants EP bc doesn't have the same issue of overturning democratically enacted legis (Lochner issues with DP) - in her opinion all legis has to do is make it apply to everyone and legis won't want to have the law as much bc maj won't want their liberty restricted. Using equality to protect liberty. v. Kennedy rejects this bc using EP allows laws to prohibit behavior for everyone (like Bowers) and the law would not equally affect both types of couples (stigma) - options for heterosexual couples' sexual expression is still not as limited as homosexual couples and so equality won't do the trick. Using liberty to protect equality. "State cannot demean (equality based word) their existence or control their destiny by making their private sexual conduct a crime." pg. 477 vi. "The petitioners are entitled to respect for their private lives." Is respect part of a liberty interest? How do you define respect? Scalia dissent - does not like rejection of morality as basis for legis. Worried about a slippery slope of a bunch of other laws being struck down. Thinks the Ct is "Lochnerizing" (mentions working 60 hours a week) - took sides in a culture war.

McCulloch v. Maryland

McCulloch v. Maryland (1819) - MD taxing (or alternatively penalizing) the federal bank which was not authorized in the state. (Related to power to lay and create armies, commerice, tax , etc, power of the "purse") Question 1: Does Congress have the power to create banks? Holding (Marshall): Yes i. Constitution vs. legal code argument (broad outline vs. detailed, specific): "We must never forget it is a constitution we are expounding" - Constitution is a foundational document, it is impossible to determine all of the possible situations that might arise in the future, and because the constitution is meant to last a long time, it is best drafted and interpreted loosely (though it is in many ways in between an enumerated list of rules/ legal code and standards, it leans towards standards/ the spirit of the law) ii. Textual supports: • Looks to Article I, Section 8 (N&P Clause) - no enumerated power to create bank, but while we are a gov of limited and enumerated powers, that doesn't mean that there are not implied powers . • No expressly in 10th amend (pg. 64) and why have 10th amend if only had powers that were listed. • Add'tly why have Section 9 that limits powers - wouldn't need restrictions if powers were limited to those listed. iii. Deep dive into N&P Clause: What does necessary mean? Convenient, useful vs. absolutely necessary. Marshall says the former looser interpretation better ("sweeping clause") bc: · Constit argument again - needs to stand test of time · Better allows Congress to carry out enumerated powers · N&P Clause is in powers section, not limitations sections · Other parts of Constit use "absolutely necessary" so would have done so here if that was the intent · Ordinary/common usage of word Question though if bank itself would be considered as a means for serving one of the powers i. N&P (aka "sweeping clause) means to carry out enumerated powers - not big enough to be a general powers that would have been on the list, but still necessary *this basically says what's already said above. - Bank is useful means to carry out such powers of "the purse" - Degree of necessity is left to Congress - deference *ex: the government has the power to establish highways and those who steal mail helpful for creation post offices, so therefore it can do anything that's necessary and proper. "beneficial exercise of the power" Question 2) If Congress has the power to create the bank, does a state have the power to tax it (essentially a sovereignty question)? Holding: No i. Power to create = power to preserve & power to tax = power to destroy since these two conflict, authority that is supreme controls. ii. Fed sovereignty is that of the ppl (not of the States) bc the ppl created/ratified the Constit and so trumps any one State's sovereignty ("We the People of the United States," strong nationalist approach). Supremacy Clause supports this. iii. State taxing fed bank is essentially taxing the entire nation and so state would be exercising control over those they don't actually have control over and are not represented in their gov (which also means they can't oust the politicians that passed this tax and those politicians will not care about their interests as such). Representative reinforcement argument - central role of the courts is to make up for flaws in the operation of the rep gov or breakdowns in political process. The N&P Clause Summed Up from the Case • "Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional" -good if means are legitimate, not prohibited, and plainly adapted to congress's powers in con. • "But where the law is not prohibited, and is really calculated to effect any of the objects entrusted to the government, to undertake here to inquire into the degree of its necessity, would be to pass the line which circumscribes the judicial department and to tread on legislative ground" o Deference to congress Side note 1: Jefferson thinks that it if is a sweeping clause that is read too broadly it would be possible for the federal court to do anything, but too narrowly would mean you can't do anything. Side note 2: there is a dynamic between the commerce and the necessary and proper clause. When the commerce clause is read too narrowly congress may use necessary and proper clause as a backgdoor to get out of it.

"Real Differences" Exception: Pregnancy Classifications

Pregnancy Classifications iii. Geduldig v. Aiello (1974) - insurance policy provides coverage for disability with exception of pregnancy. Ct said not based on gender and therefore applied rationality review. Says that while it is true that only women can become pregnant, it does not follow that every legislative classification concerning pregnancy is a sex based classification - this is pregnant vs. non-pregnant - sure only women in first group, but both women and men in second group. Argument why this is sex-based classification and higher review necessary: 1) Disparate impact claim - people negatively affected by law are only women (men have all disabilities covered, while women do not). Can use disparate impact to smoke out improper purpose. *like Mass v. Feeney, the court says this is targeted at pregnancy not women **This case shows us the way disparate treatment and disparate impact are sometimes hard to differentiate. Some things important to note is that this is about funding ,not prvenign someone from doing something. And also just that this is kinda nominally neutral but not really. Pregnancy Classifications iii. Geduldig v. Aiello (1974) - insurance policy provides coverage for disability with exception of pregnancy. Ct said not based on gender and therefore applied rationality review. Says that while it is true that only women can become pregnant, it does not follow that every legislative classification concerning pregnancy is a sex based classification - this is pregnant vs. non-pregnant - sure only women in first group, but both women and men in second group. Argument why this is sex-based classification and higher review necessary: 1) Disparate impact claim - people negatively affected by law are only women (men have all disabilities covered, while women do not). Can use disparate impact to smoke out improper purpose. *like Mass v. Feeney, the court says this is targeted at pregnancy not women **This case shows us the way disparate treatment and disparate impact are sometimes hard to differentiate. Some things important to note is that this is about funding ,not prvenign someone from doing something. And also just that this is kinda nominally neutral but not really. Exclusion of women from the military draft: iv. Rostker v. Goldburg (1981) - upheld draft being just for men based on combat being restricted to men - huge deference to Congress on military matters. Purpose of raising and supporting armies is undoubtedly and important gov interest. Congress looked at alternatives and ultimately decided that if there was a draft, combat troops would be what was needed and since women excluded from combat, no need to draft them. Combat restriction makes men and women not similarly situated. pg. 609 • This not a case of biological differences, but rather of legal construct. Discrimination against unmarried fathers: Caban v. Mohammaed: 1979, invalidated a new York law granting a mother but not father of an illegitimate child the right to block the children's adoption by withholding consent.. Powell majority opinion concluded that the law was another example of overbroad generalization in gender based classification and that no showing has been made that the diction bears a substantial relation to the proclaimed interest of the state in promoting the adoption of an illegitimate child. Rejected the argument that the legistlation could be justified by fundamental difference between maternal and paternal relations. Insisting that there was no universal difference at every pashe of a child divnemetn. Even if unwed mothers as a class were closer than unwed father to their newborn infants. An unwed father may have relations with his children fully comparable to that of a mother. Justice Stevens dissent says that the real difference between male and female especially during child's infancy were significant and there were natural differences that made it probably that the mother not father or both parents would have custory of the newborn infant ii. Nguyen v. INS (2001) - child born not on US soil to unmarried couple, one who is US citizen, one who is not. If mother is citizen then auto citizenship. If father is citizen, then has to jump through a few hoops to prove paternity etc. Ct upheld law bc women have to be present at birth of child and therefore know its their child, men do not have to be present and even if was present, still might not know its his child. Basically there is biological differences n their circumstances ,that if not upheld would risk making the guarantee of equal protection superficial. The statute at issue is not marked by misconception or prejudice , not does it show depict for entire class. Equal protection does not forbid congress to address the problem at hand in matter specific to each gender. . Thomas and Scalia said there w would be no way to provide congerral of citizen on a basis other than that prescribed by congress. O'Connor dissent: notes the efficacy and availability of modern technology such as dna testing. And citizen the majority for ignoring the availability of sex neutral alternatives and f or overstating the evidentiary difference between proof of maternity and proof of paternity. While is is sodutbelss true that mothers relation not child is uniquely verifiable from the birth itself to those present at birth, it can not show that mother birth relation is uniquely verifiable by the ins, much less than an greater verifiability warrants a sex based , rather than sex neutral statute. Sessions v. Moralles Santana: Ginsburg, writing for six justices, applied intermediate scrutiny to invalidate under the equal protection principle implicit in the fifth amendment, a federal statutory scheme that ,as applicable to the respondent, allowed an unwed U.S> citizen mother to transmit citizenship to her child born abroad if she has lived continuously in the Untied States for just oen year prior to the child's birth, while requiring ten year's physically present in the Us prior rot the child's birth a, at least five of which after gaining age eighteen, for unwed u.s. citizen father an for married parents. Says this law regarded mother as the child natural sole guardian. The act discarded the father controls assumption concerning married parents, but codified the mother as sole guardian perception regarding unmarried parents . says that the concern about the attainment of or being born children to the us explained treatment of unwed citizen fathers, based on a stereotype that they would care little about have have scant contact with their non maternal children. The court constrains such overbroad generalizations Says laws according or denying benefits in reliance on stereotypes about women's domestic roles may create self-fulfilling cycle of discrimination that forces women to continue to assume the role fo primary family caregiver. Correspondly such laws may disserve men who exercise responsibility for raising their children. ' ** Important Note: Removing discrimination can make standards harder for both, may enlarge rather than cut back regulation: Thinks the congresses intent was to limit the statute, and that the mother shortened requirement was a exception, thus decided to put both to the enlarged 10 year standard to protect the statutory scheme . this is the first instance when the court chose to remedy the inequality by leveling down rather than leveling up.

Powers & Rights

What are the powers the constitution gives to the federal departments (in each branch)? • Judicial Power; Congressional Power (N&P; Commerce); Executive Power What are the rights people have • Due Process; Equal Protection Clause

Overall, doctrinally for Executive Power

The constitutionality of the independent counsel: Should the Humphrey's executor principle extend beyond the independent agencies to any other office calling as practical matter for independence from the present? = Does the national need someone to guard the guardians, who must be politically insulated from presidential power? How insulated? Morrison v. Olson Factual Background: The Ethics in Government act of 1978 required the attorney general, upon "sufficient grounds' to investigate, to conduct a preliminary investigation of possible official violations of federal criminal law. The attorney general then reported to special decision of the us court of appeals for the district of Columbia circuit, consistent of three circuit judges appointed by the chief justice for two year terms, as to whether there were "reasonable grounds to believe that further investigation is warranted" If the attorney general found such reasonable grounds" she was required to apply to the special division for the appointment of an independent counsel, and the special division appointed such counsel and defined his or her jurisdiction. Morrison v. Olson arose after independent counsel alexia morrison was appointed to investigate possible obstruction of congressional investigations ,and a grand jury issued subpoenas to future solicitor general ted olson, who moved to quash the subpoenas on the ground that the At was unconstitutional . Chief Justice Rehnquist's majority opinion first rejected the claim that vesting the appointment of the independent clause fo art . 2% 2 lc 2. He found the independent counsel to be an "inferior" officer for purposes of the Clause because she was removable by the Attorney general for "good cause" her duties were limited under the act , and her tenure of fo office was temporary" she was therefore not a principal officer who could be appointed only by the president with the advice and consent of the Senate. Olson argued further that, even if the independent counsel was an "inferior" officer, the appointments clause did not permit congress to place the power to appoint outside the executive branch. The court, however, recognized a limited congressional power to provide for interbranch appointments. Vesting of the appointment power I nteh courts" would be performed by the courts and the performance of their duty to appoint," bbtu there there was not such incongruity. Finally, the court turned to broader challenges resting on structural separation of powers principles." Practical Question (sorta underlying this case): whether congress is entitled to remove the executive branch from doing some wrongdoing or the is the political aspect a sufficient check? Real question; Is the power given to the independent counsel exceeding the appointments clause because he can only be removed for good cause? For superior officers maybe only executive can appoint, for inferiors officers congress can appoint. So in one since this is a question if the independent counsel is a superior or inferior office Court holds that this is a superior office. Next, does the president have to have the power to fire, or can congress limit it in some ways? A. does the provision of the act resisting the attorney generals power to remove the independent counsel to only those instances which he can show good cause taken by itself, impermissibly interfere with the presidents exercise of his constitutionally appointed functions? -determine that its not, limitation is only that he can only fire someone for cause. That's the only reason he should do so anyways. So no imposition and what we really care about is if the president is limited in performing his job - we simply do not see how the presidents need to control the exercise of that discretion is so central to the function of the executive branch as a matter of constitutional law that the counsel be terminable at will by the president -nor do we think that ht good cause removal provision at issue here impermissibly burdens the presents power to control or supervise the independent counsel as an a executive office, in the execution of his or her duties under the acct. B. The final question to be addressed is whether the act, violates the principle of separation of power by unduly interfering with role of the executive branch. - the attorney general still has several means of supervising or controlling the prosecutorial powers that may be wielded by an independent counsel and still remove him for good cause. . Even though this gives the counsel some independence from executive supervision , there is still sufficient control to ensure the president is able to perform is constitutionally assigned duties. Scalia (dissent) -makes a more formalist approach. Thinks the limitation is too much, he should the president should be able to do what he thinks is appropriate, and should be making his own judgment. - there is a political check to the president.. pays the cost of political damage to his administration. -It is not for us to determine how much of the purely executive power government must be within the full control of the president The constitution prescribed that they all are

Political Question (Justiciability) Doctrine, and in particular, Impeachment:

Throwback to Marbury, Marshall said that "[1] questions in their nature political, or which are, [2] by the Constitution and laws, submitted to the executive can never be made in this court." (so questions in which the executive possessed a vested constitutional or legal discretion remain w/ executive, & political questions w/ legislature.) -Marbury also said certain "irksome" or "delicate" political matters should be removed from court's jurisd Thus, Chief Justice Marshall thus anticipated two strands of modern political question doctrine (which says when the court will not do something/ its not justiciable) and that will either be: 1. Textual/ Constitutional Interpretation - when there is "a textually demonstrable constitutional commitment of the issue to a coordinate political branch." (AKA when the power is assigned to another branch of gov/ some matters committed to unreviewable discretion of political branches) 2. Prudential / Judicial Discretion: - its allowed by the constitution, but want to avoid - 1. confrontation with other branches, 2. unclear standards, 3. danger to legitimacy of the court, 4. might be embarrassing from view of outsiders (as shown in Nixon) Congressional Qualifications Powell v. McCormack (1969), arose from a challenge to the refusal of the House of Representatives in 1967 to seat Representative Adam Clayton Powell, Jr., based on his embezzlement. Powell argued that he had met all the formal requirements of Art. I, %2, cl.2 including age, citizenship and residence "our system of government sometimes requires that federal courts interpret the constitution in a manner at variance with the construction given the document by another branch." The alleged conflict that such an adjudication may cause cannot justify the courts' avoiding their constitutional responsibility." -this is despite the risk of potentially embarrassing confrontation between coordinate branches *so justiciable on textual grounds, despite prudential concerns. Basically the court can judge what congressional qualification consists of (it can look to the constitution and interpret those rights given to congress), but does not address whether sc and determine a member satisfied qualifications. Impeachment Proceedings Article II, %4 provides that "the President, Vice President and all Civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of Treason, Bribery, or other high Crimes and Misdemeanors." The House has the "sole Power of Impeachment," Art. I, %2, cl 5, and the "Senate Shall have the sole power to try all impeachments." Artc I. %3, cl. 6. • Full section: The Constitution, Article I, Section 3: The Senate shall have the sole Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath or Affirmation. When the President of the United States is tried, the Chief Justice shall preside: And no Person shall be convicted without the Concurrence of two thirds of the Members present. Judgment in Cases of Impeachments shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust, or Profit under the United States, but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment, and Punishmnet, according to Law. Nixon v. United States (Judge Rehnquist): Facts: Nixon sued saying whole senate should try whole impeachment based on a provision of the constitution about the senate trying impeachment cases (Art. 1, %2, cl. 5). • Senate is emphasizing when it says senate has sole power to try impeachment, they can decide how to administer it and the supreme court cannot review it. Holding (Judge Rehnquist): Court held the question nonjusticiable on both textual and prudential grounds: Textual Rational: Argued that the word "sole" in Article 1. %2, cl. 5 meant that only the senate had the right for impeachment, and Supreme Court could not review. "The parties do not offer evidence of a single word in the history of the Constitutional convention or in contemporary commentary that even alludes to the possibility of judicial review in the context of impeachment powers." He thinks it's a nonjudicial political question. Professor notes: There is relevant law but only that branch can decide if they are following the law (only remedy is political - vote the idiots out). -Prudential rational (would cause chaos, professor says this means that it would cause a lot of confusion of who is in the seat after the impeachment upon waiting to see if there would be a judicial review). Souter concurrence says: What if the senate flips a coin and decides to impeach? It should be reviewable if it doesn't meet a certain bar. There is discretion to the senate, but there is some boundary White concurred only in judgment (thinking that the senates approach using a committee was fine) -thinks the word sole in the constitution is meant to separate between the senate trying and the house role in impeachment -but he emphasizes that it is still justiciable because the power to impeach would give power to legislative branch over the judiciary, so they should have thorough review. 2 Thematic Questions from Nixon : 1. What are the offenses from which a president can be impeached? - It's important to decide whether the constitution provides a specific enumerated list of offenses or if it is broad and those are just examples Treason + Bribery = High Crimes and Misdemeanors or Treason + Bribery + Other High Crimes and Misdemeanors - Doesn't tell us what HC&M are, but need to have some sort of common quality between treason & bribery -but there is conflicting loyalty, inappropriate mixing of personal and political -Treason against the United States would only count as organizing war against the untied states, etc. (there is a specific definition). Also giving enemies of the US aid and comfort. Also treason is more powerful than bribery - But Bribery has no definition in constitution, it can be thought of as disloyalty -maybe its an exclusion of positive loyalty for payment -What part of other stuff are like bribery and treason in that way? (disloyalty crimes) -do they have to be legal crimes though? -maybe not necessarily if they have the disloyalty component -If you think of bribery as violating duties of your role than a lot things can fit into it -that would have lead to Andrew Johnson impeachment for firing of a judge. 2. Who decides if he/she violated it? Also there's a question about who reviews? (which is most relevant here) Argument for Justiciability -gives too much power for senate to do what it wants (maybe not constitution) -if the judiciary can review then they have more of the power Argument Against justiciability -the supreme court may be biased by their selection from the president - this would lead to chaos

The Post- Civil War Amendments

In Slaughter-House cases, though, court found that the Civil War Amendment had not been meant to expand radically the power of the Supreme Court to regulate the relationship of the states to their own citizens.

Incorporation Continued, the Second Amendment Debate

"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 fringed." In United States v. Miller, the court upheld a conviction under the national firearms act, holding that regulated weapons lacked any reasonable relationship to the preservation nor efficiencies of a well regulated militia. Then focusing more on the individual rights component in 2008... i. DC v. Heller (2008) - Ct finds individual right to handgun (useful for self-protection in home) - invalidates D.C. law. Says can regulate who can get guns, where guns allowed (location), how one obtains (background check), but can't ban handguns. Left open incorporation of 2nd amend bc was dealing with fed law, since DC is governed by the federal government. Main arguments is that the operative clause of the second amendment codifies the "right of the people", which has always been used to refer to individual rights, not "collective' rights or rights that ay be exercised only through operation in some corporate body. So a strong presumption that second amendment right is existed individually and belongs to all Americans. Keep and bear arms, applies ot weapons not just in military capacity too. Justice stevens dissented saying 'the question is really what the scope of that individual right is. , it clearly allows the right to use weapons for certain military purposes , but maybe not the right to possess and use guns for nonmilitary purposes. And if you Look at US v. Miller maybe then you would see it was only for the maintenance of wel; regulated militia. No indication that the framers intended to enshrine the common-law right of self defense. McDonald v. City of Chicago (2010) - Alito: selective incorp (and says that you can determine this based on whether the right to keep and bear arms is fundamental to our scheme of ordered liberty or deeply rooted in this nation's history and tradition"), focused on history and tradition. Went back all the way to the 1689 English bill of rights which explicitly protected a right to keep arms for self defense. And blackstone asserted that the right to keep and bar arms was on of the fundamental rights of Englishmen . says this right was no less fundamental to those who ratified the bill of rights. - In general though thinks really we should focus on the American perspective, cant look to what other English speaking countries are doing now. *side note, what is literally in the bill of rights can be thought of as part of our history and tradition too, but it is unlikely we will go in that direction. Thomas concurring: thinks we should use the equal protections clause, and doesn't think we should focus on the process aspect thinks there is difficulty distinguishing between fundamental and nonfundamental rights Justice Stevens dissenting: The question is whether the particular right asserted by petitioners applies to the states because of the fourteenth amendment itself, standing on its own bottom (argues for selective incorporation, but comes out other way more on fundamental rights than history and tradition). -A little bit historical, British history, but more about fundamental rights. 1. Thinks handguns have an ambivalent relationship to liberty, they can increase it or also limit it depending on how its used. 2. It doesn't appear to be the case that the ability to own a handgun is critical to leading a life of autonomy dignity, or political equitability. 3. the experience of other advanced democracies including those that share our British heritage undercuts the notion that an expensive right to keep and bear arm is intrinsic to ordered liberty. 4. It was meant to protect states from encroachment from federal government not individuals. 5. States have a long and unbroken history of regulating firearms 6. this is quintessential area in which federalism ought to flourish without courts meddling. *also note: if you want to stress the theory, then total incorporation, if you want to stress the effect, then selective incorporation. All of the BofR have now been incorporated

Substantive Due Proccess & Economic Liberties (Lochner)

"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 fringed." In United States v. Miller, the court upheld a conviction under the national firearms act, holding that regulated weapons lacked any reasonable relationship to the preservation nor efficiencies of a well regulated militia. Then focusing more on the individual rights component in 2008... i. DC v. Heller (2008) - Ct finds individual right to handgun (useful for self-protection in home) - invalidates D.C. law. Says can regulate who can get guns, where guns allowed (location), how one obtains (background check), but can't ban handguns. Left open incorporation of 2nd amend bc was dealing with fed law, since DC is governed by the federal government. Main arguments is that the operative clause of the second amendment codifies the "right of the people", which has always been used to refer to individual rights, not "collective' rights or rights that ay be exercised only through operation in some corporate body. So a strong presumption that second amendment right is existed individually and belongs to all Americans. Keep and bear arms, applies ot weapons not just in military capacity too. Justice stevens dissented saying 'the question is really what the scope of that individual right is. , it clearly allows the right to use weapons for certain military purposes , but maybe not the right to possess and use guns for nonmilitary purposes. And if you Look at US v. Miller maybe then you would see it was only for the maintenance of wel; regulated militia. No indication that the framers intended to enshrine the common-law right of self defense. McDonald v. City of Chicago (2010) - Alito: selective incorp (and says that you can determine this based on whether the right to keep and bear arms is fundamental to our scheme of ordered liberty or deeply rooted in this nation's history and tradition"), focused on history and tradition. Went back all the way to the 1689 English bill of rights which explicitly protected a right to keep arms for self defense. And blackstone asserted that the right to keep and bar arms was on of the fundamental rights of Englishmen . says this right was no less fundamental to those who ratified the bill of rights. - In general though thinks really we should focus on the American perspective, cant look to what other English speaking countries are doing now. *side note, what is literally in the bill of rights can be thought of as part of our history and tradition too, but it is unlikely we will go in that direction. Thomas concurring: thinks we should use the equal protections clause, and doesn't think we should focus on the process aspect thinks there is difficulty distinguishing between fundamental and nonfundamental rights Justice Stevens dissenting: The question is whether the particular right asserted by petitioners applies to the states because of the fourteenth amendment itself, standing on its own bottom (argues for selective incorporation, but comes out other way more on fundamental rights than history and tradition). -A little bit historical, British history, but more about fundamental rights. 1. Thinks handguns have an ambivalent relationship to liberty, they can increase it or also limit it depending on how its used. 2. It doesn't appear to be the case that the ability to own a handgun is critical to leading a life of autonomy dignity, or political equitability. 3. the experience of other advanced democracies including those that share our British heritage undercuts the notion that an expensive right to keep and bear arm is intrinsic to ordered liberty. 4. It was meant to protect states from encroachment from federal government not individuals. 5. States have a long and unbroken history of regulating firearms 6. this is quintessential area in which federalism ought to flourish without courts meddling. *also note: if you want to stress the theory, then total incorporation, if you want to stress the effect, then selective incorporation. All of the BofR have now been incorporated

The Downfall of Lochner

"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 fringed." In United States v. Miller, the court upheld a conviction under the national firearms act, holding that regulated weapons lacked any reasonable relationship to the preservation nor efficiencies of a well regulated militia. Then focusing more on the individual rights component in 2008... i. DC v. Heller (2008) - Ct finds individual right to handgun (useful for self-protection in home) - invalidates D.C. law. Says can regulate who can get guns, where guns allowed (location), how one obtains (background check), but can't ban handguns. Left open incorporation of 2nd amend bc was dealing with fed law, since DC is governed by the federal government. Main arguments is that the operative clause of the second amendment codifies the "right of the people", which has always been used to refer to individual rights, not "collective' rights or rights that ay be exercised only through operation in some corporate body. So a strong presumption that second amendment right is existed individually and belongs to all Americans. Keep and bear arms, applies ot weapons not just in military capacity too. Justice stevens dissented saying 'the question is really what the scope of that individual right is. , it clearly allows the right to use weapons for certain military purposes , but maybe not the right to possess and use guns for nonmilitary purposes. And if you Look at US v. Miller maybe then you would see it was only for the maintenance of wel; regulated militia. No indication that the framers intended to enshrine the common-law right of self defense. McDonald v. City of Chicago (2010) - Alito: selective incorp (and says that you can determine this based on whether the right to keep and bear arms is fundamental to our scheme of ordered liberty or deeply rooted in this nation's history and tradition"), focused on history and tradition. Went back all the way to the 1689 English bill of rights which explicitly protected a right to keep arms for self defense. And blackstone asserted that the right to keep and bar arms was on of the fundamental rights of Englishmen . says this right was no less fundamental to those who ratified the bill of rights. - In general though thinks really we should focus on the American perspective, cant look to what other English speaking countries are doing now. *side note, what is literally in the bill of rights can be thought of as part of our history and tradition too, but it is unlikely we will go in that direction. Thomas concurring: thinks we should use the equal protections clause, and doesn't think we should focus on the process aspect thinks there is difficulty distinguishing between fundamental and nonfundamental rights Justice Stevens dissenting: The question is whether the particular right asserted by petitioners applies to the states because of the fourteenth amendment itself, standing on its own bottom (argues for selective incorporation, but comes out other way more on fundamental rights than history and tradition). -A little bit historical, British history, but more about fundamental rights. 1. Thinks handguns have an ambivalent relationship to liberty, they can increase it or also limit it depending on how its used. 2. It doesn't appear to be the case that the ability to own a handgun is critical to leading a life of autonomy dignity, or political equitability. 3. the experience of other advanced democracies including those that share our British heritage undercuts the notion that an expensive right to keep and bear arm is intrinsic to ordered liberty. 4. It was meant to protect states from encroachment from federal government not individuals. 5. States have a long and unbroken history of regulating firearms 6. this is quintessential area in which federalism ought to flourish without courts meddling. *also note: if you want to stress the theory, then total incorporation, if you want to stress the effect, then selective incorporation. All of the BofR have now been incorporated Nebbia v. New York (1934) -Ct upheld legislation fixing selling price of milk. - There is no closed class being protected, rather there are limits on a number of businesses that impact a public interest. So basically the industry is "subject to control for public good." Subject to control by the legislature. "If the laws passed are seen to have a reasonable relation to a proper legislative purpose, and are neither arbitrary nor discriminatory, the requirements of due process are satisfied." = deference. West Coast Hotel Co. v. Parrish (1937) pivotal overruling of Lochner, in which the Court overruled Adkins and upheld a min wage law for women. The prevention of the exploitation of a class of workers who are at a disadvantaged bargaining position is in the best interest of the health of the worker and economic health of the community. Court unequivocally declared that it no longer would protect freedom of contract as a fundamental right - 1. gov could regulate to serve any legitimate purpose, and judiciary would defer to the legislature's choices so long as they were reasonable. (deferential) 2. also change the baseline from one in which the condition today is fine to one in which legislation is necessary to establish circumstances fair for the community. not regulating would be a "subsidy to unconscionable employers" who would evade their fair share of the welfare costs they imposed upon the community. -both deferential 6. US v. Carolene Products Co. (1938) - rejected challenge to fed prohibition on interstate shipment of filled milk - extremely deferential standard of review. Footnote 4 - "political process" rationale suggesting judicial intervention is more appropriate the less political processes are trusted to even out winners and losers over time. 3 types of cases deserving more scrutiny: 1. Right in the BofRs affected, 2. "political process" failings e.g. state restriction on voting. In order to allow ct to take deferential approach, need to safeguard the political check, 3. "Prejudice against discrete and insular minorities" - not just any minority bc that is how democracy works (e.g. you're in the minority on minimum wage law), but about certain groups of ppl who lack political power/viewpoint continuously discounted) Williamson v. Lee Optical Co (just a good example of how extremely deferential the court became, allowing a legislation on filling prescription for eyeglasses by an opticians such that no optician can fit old eyeglasses into new frames or supply a lens or one to duplicate a lost or broken lens without a prescription. Something to do with public interest of health, but really super deferential clearly. *overall there has been a large repudiation of Lochner for the reason considered previously, so rejection of substantive due process for economic purposes but what happens then for noneconomic circumstances The political right says we should return to Lochner for economic, but keep modern approach for other rights. The political left says we should treat them differently, just as it is today (substantive due process not allowed for economic, but allowed for non economic) **yassss Some say reject both, there should not be substantive due process for either

Evolution of Strict Scrutiny - Race

(*note, there an unsettled nature of what our race jurisprudence is but everyone agrees Plessy is wrong, and brown v. board is write, so when you are thinking about it its best ot compare to these two to test the result) 1. Theories underlying EP: i. Anti-classification (Color-blindness) - about the face of the law ii. Anti-caste (subset of bad effects) - makes one group inferior, subordinates them iii. Bad purpose - legis adopted law for the wrong reasons iv. Bad message (denigration)- about what is expressed by the law or policy - no demeaning v. Bad effects - law is poorly effecting a certain group 2. Strauder v. WV (1880) - Strauder convicted by all-white jury bc WV laws only allowed white men to serve on juries. Ct emphasizes that 14th's purposes was to end racial discrimination and that this law falls right w/in its ambit. Singling out and expressly denying them the right to participate in admin of law brands black people as inferior. -note that this is a political right (our right to be part of the polis) vs civil rights (which get flesh out more later, 3. Plessy v. Ferguson (1896) - LA law required equal but separate accommodations for white and colored railroad passengers. Plessy was arrested for refusing to leave a white coach. Court says 14th amend. requires equality but was not intended to abolish distinctions based on race. Such laws do not necessarily imply the inferiority of either race, and have been recognized w/in the power of state legislatures as an exercise of police power. i. Political rights v. social rights. 14th's domain is political, not social. Social changes must occur naturally; not the Ct's role. **court was wrong in limiting it. Harlan dissent: i. Bad purpose - "[the law] had its origins in the purpose, not so much to exclude white persons from railroad cars occupied by blacks, as to exclude colored people from coaches [assigned] to white persons". CB 503 ii. Caste system / bad effects - "But in the view of the constitution, in the eye of the law, there is in this country no superior, dominant, ruling class of citizens. There is no caste here. Our constitution is color-blind, and neither knows nor tolerates classes among citizens." iii. Bad message, denigration - "common gov of all shall not permit the seeds of race hate to be planted under the sanction of law, " "state practically putting the brand of servitude and degradation" **** we see a move from and anticaste and bad effect here to anticlassifcaiton more later 3. Brown v. Board of Education (1954) - Ct overrules Plessy in determining that segregation of public schools is unconstitutional. Themes: i. Effect on black children - generates a feeling of inferiority, "affect their hearts and minds" - sociology/psychology data (Hellman thinks this strongest theory of case) ii. Segregation denotes/expresses inferiority or it is "inherently unequal" • Is segregation really INHERENTLY unequal? E.g. all-girls school. Probably not. In this context, tied to the history and social meaning of segregation based on racism in the US. If contextual/circumstantial, then not inherent. iii. Importance of education - to be a good citizen, education needed. Good for everyone. Education not a fundamental right, but so important to success in life, if state going to offer public education, needs to offer it equally. iv. Doesn't mention purpose of legis really. V. Mix of anti-cast, bad effects, and anti-degradation here -Bolling v. Sharpe -companion case to Brown, -desegregation in DC public schools -pulls it from a different place, look into 5th , rather than 14th amendment because 14th amendment doesn't apply in theory to the federal government. -important because the federal courts are telling all states the have to desegregate so the need to also tell dc it has to as well -They use the 5th amendment to pull from the 14th amendment a fusion of equal protection and due process. (maybe this was just being creative or maybe tis accurate)

Implementing Brown

Brown II- leave remedies to lower courts (partially for prudential reasons, knows there will be non-compliance and doesn't want to look like they can't enforce their own rulings), but SCOTUS still checking them. -court is an institution and it had to make some compromises on which it should enforce (like in Marbury & Casey) -part of the reason the court does this is because they are concerned about the enforcement achievement potential and also legitimacy After that we gradually see the court implementing more, feeling more assertive Green v. County School Board (1968) - strikes down "freedom of choice" plans. Remedy needs to create a unitary system and eliminate the vestiges of de jure segregation -*need to undo what was done in the mandated system. (if its freedom of choice that's not desegregating because there are social pressures not to move. Also the residential housing patterns are the result of the segregated system in a way, which means local schools reflect that.) iii. Swann v. Charlotte Board (1971) - housing areas highly segregated -> neighborhood schooling-> segregated schools de facto. SCOTUS affirms lower court order for more effective plan -there was busing and some zoning changes, but more was needed -cant just leave things as they are you need to undue damages iv. Keyes v. School District (1973) - Northern school where there was no de jure segregation, but evidence that there was purposeful segregation and Ct said Brown still applied to them. - this is not a justification where there has been segregation and it matters to some degree whether you are undoing something that was once de jure. -but also creates some means to analyze places that had de facto segregation (any purposeful/intentional segregation) -this requires a factual inquiry, such as seeing redlining, -unintended consequences would not count v. The Ct backs off: Milliken v. Bradley (1974) - "white flight" to the suburbs. School districts separated suburbs v. city. Lower ct orders remedy, SCOTUS reverses - deference to municipal boundaries. No bussing betw city and suburbs. Board of Ed OKC v. Dowell (1991) - "good faith compliance" for a reasonable period of time is all that is required. Marshall dissent says no, until effects have been eliminated, state on the hook to desegregate. - it's a temporary measure, its essential to reach the point of desegregation but no more after that. (before this there were cases that said you needed to show it wouldn't regress) **the effect of this would be the return to sperate races based on housing patterns, which raised questions if the remedy had been enough?) A later case we will see is whether schools can consider race when choosing students

Section 2. The requirement of state action / civil rights cases

Civil Rights Cases (1883) [Sec. 1 of the Civil Rights Act of 1875 provided: "All person within the jurisdiction of the United States shall be entitled to the full and equal enjoyment of the accommodations, advantages, facilities, and privileges of inns, public conveyances on land or water, theatres, and other places of public amusement; subject only to the conditions and limitations established by law, and applicable alike to citizens of every race and color, regardless of any previous condition of servitude." Sec 2 made violation a misdemeanor and also authorized aggrieved persons not recover $500 for every such office. This decision involved five cases, from Kansas, California, Missouri, New York and Tennessee. Four of the cases were criminal indictments; the fifth, an action for civil penalty. The cases grew out of exclusion of African Americans from hotels, theaters , and railroads. Question: does congress have the power to enforce a law regarding full and equal enjoyment of accommodations, inns, facilities, etc, when hotels, theatres, and railroads were excluding African Americans? Majority (Justice Bradley): No. the 14th amendment was supposed to protect the abrogation and denial of rights for which states alone were or could be responsible. The 13th amendment was supposed to apply to individuals but was only about slavery, we don't want to run that slavery argument to the ground to speak about every form of discrimination. If people want these kinds of remedies they should look to state laws. Dissent (Justice Harlan): This reads the amendments too narrowly, the 13th amendment was meant to destroy the institution of slavery and protect people against deprivation because of their race, and to protect their civil rights granted to other freemen in the same state. Second, public conveyances on land and water: a place like a public highway or a railroad are created for public purposes and are governmental agencies. Relatedly, inns are quasi public employments. The public nature of it forbids discrimination on account of race or color. Likewise places of public amusement get governmental licenses. (so he thinkgs its okay under the state action doctrine of the 14th ammentment) Third, 14th amendment doesn't wholly prohibit state laws and state proceedings, its first clause is affirmative. The citizenship this acquires by colored race may be protected not alone by the judiciary but by congressional legislation of a primary, direct character; this, because the power of congress is not restricted to the enforcement of prohibitions upon state laws or state action. It is, in terms district and positive, to enforce "the provisions of this article" all of the provisions - affirmative and prohibitive.

Race Preferences in Employment and Contracting

In Fullilove v. Klutznick , the court rejected a facial constitutional challenge to a requirement in a congressional spending program that 10% of federal funds granted for a coal public works projects must be used by the state or local grantee to procure services from businesses controlled by members of specified minority groups. Burger opinion:Says that the provisions would survive judicial review under either test articulated in the several bakke opinions. And are satisfied that congress had abundant historical basis form which it could articulate to conclude that traditional procurement practices, when applied to minority businesses could perpetuate effects of prior discrimination. Accordingly , congress reasonably determined that prospective eliminations of these barriers to minority firm access to public contracting permits generated by the 1977 act was appropriate to ensure that those businesses were give equal opportunity to participate in federal grants. Richmond v. J.A. Croson Co. (1989) (justice occonnor) - Program in Richmond said those given gov contracts must have 30% of subcontractors be minority. Ct says strict scrutiny applies to all racial classifications, both for affirmative action and invidious discrimination. In applying SS, the court acknowledged that remedying past discrimination was a compelling gov. interest, but that you need to show that the state actor is the one who was discriminating in the past. In this case, this was not shown so program invalid. "there is absolutely no evidence of past discrimination against Spanish speaking, oriental, Indian, eskimo or aleautit persons in any aspect of the Richmond commissions history. It may well be tat Richmond ash never had an aleut or ekimo citizen . the gross overinclusiveness of Richmond's racial preferences strongly impugns the program is not narrowly tailored to remedy the effects of prior discrimination" justice O'Connors opinion noted there does not appear not have been any condition of the use of racially neutral to increase minority businesses in city contracting, such as city financing for small firms, and no inquiry into whether any group in particular has faced such discrimination by city actors. i. Ways to view remedial justification: 1) Scalia - race classifications never justified to remedy past discrimination ("no creditor or debtor race"), only specifically identified victims of past discrimination get remedy, 2) Wygant - can be used broadly to correct social prejudice, 3) Croson - remedies for identified past discrimination, but not limited to particular victims. Adarand Constructors, Inc. v. Pena (1995) -Fed gov gives general contractors monetary incentive to hire subcontractors controlled by "socially and economically disadvantaged individuals" - uses race as a proxy for this. Does it make a difference if policy adopted at the national level vs. city/local level? Interpreting 5th Amend, not 14th. Ct says no. No deference to fed gov, strict scrutiny still applied. Reassures that SS is not "strict in theory, but fatal in fact" - Suggests that some race-conscious measures might survive SS in AA context, even though few could in other scenarios = SS minus? Three general propositions with respect to gov racial classifications: i. Skepticism/congruence - any preference based on racial or ethnic criteria must necessarily receive the most searching examination = strict scrutiny regardless if benign or negative. ii. Consistency/skepticism - the standard of review is not dependent on the race of those burdened or benefitted by a particular classification (also doesn't matter if its on state or national elevel) iii. Congruence - EP analysis same under 5th and 14th *so race based classifications are subject to strict scrutiny but only strict and not fatal in fact. Compelling governmental interest can combat it. There also need to be a "finding" of particular discrimination from the governmental agency. Thomas concurrence - drawing from Harlan dissent in Plessy v. Brown (which was a response to the language in Plessy majority)and Brown. "Benign/good intentions" do not allow for racial classification. Worried about racial paternalism and damaging effects . - especially the express effects of stigmatization/ a badge that would be hard to undo - also psychological effects that creates a dependency and expectation Stevens dissent - says affirmative action dismantles caste, has a good intent and a good meaning. -compares a welcome matt to a no trespass sign, so a bit about purpose but also dismantles case -this is also about what the policy expresses (so Thomas and Stevens here agree on the theory that expression is important , ) but justice stevens says this is more akin to dismantling the hierarchy rather than keeping it up.

Proving Discriminatory Purpose after Arlington Heights

In Rogers v. Loudge, Affirmed lower court finding of racially discriminatory vote dilution from circumstantial evidence surrounding an at-large election system in burke county, Georgia. - (so factual inquiry showing bad intent from effect). Found that the at-large system was being maintained for the individual purpose of diluting the voting strength of the black population. While they made a substantial majority of the pop in burkey county they are a minority of the registered voters. Overwhelming evidence of bloc voting along racial lines, which led to no black candidates elected. Hunter v. Underwood: struck down a facially neutral law, invalidating a section of the Alabama constitution disenfranchising al person convicted of crimes involving moral perpitude -court struck it down based on evidence found showing disparate impact and on circumstantial historical evidence from which discriminatory intent could be inferred. Disfranchised approximately 10 times as many blacks as whites. It also said that an additional purpose to discriminate against poor whites would not render nugatory the purpose to discriminate against all blacks , and it is beyond peradventure that the latter was a but-for motivation for the enactment of the section. Court also pointed to some historical fact that at the 1901 convention for the law they mentioned that such crimes were more commonly committed by blacks. (this shows purpose) Personnel Administration of Mass v. Feeney Facially neutral statute, preference for veterans that has a disparate impact on women -not under strict scrutiny, no bad intent ,serves compelling purpose Plaintiff claims who could you say not purposefully discrimination since you know that veterans are mostly men Court basically says that there are lots of men in this category too that will be impacted, so maybe not purposeful. (this is fairly narrow conception of intention, you only count as intentionally you pass the policy because of rather than in spite of preference. Ex: saying I want to keep out women); Discussion of Intent vs Effect Intent: Maybe both is more in line with intent (through effect --because intent usually leads to a bad effect One way to think about this is what is the EP clause trying to combat -maybe its directed to ineffective process for law (so maybe intent, like process of making law). In contrast effect based view focuses on the effect of the law Effect: maybe there's a good reason for a disparate effect -maybe something less than compelling would be able to combat this though Maybe you should focus on effect or something in the middle because intent is hard to prove though Brandon says: if we don't care about culpability, and care more about wrongfulness that effect matters more- professor thinks ep clause could go either way. Professor says in theory the law will recognize crafty policies to disadvantage racial minorities -this is the because of a aspect rather than in spite of.

The Civil Rights Statutes of the Reconstruction Era

This chapter broadens the focus beyond limits on governmental action to restraints on seemingly private conduct and beyond the courts role to that of Congress in enforcing the guarantees of the post-Civil War Amendments. 1st theme- the applicability of constitutional guarantees to seemingly private conduct- reflects that fact that the 14th and 15th Amendments, are addressed to government action , not private behavior. Ex: the central prohibitions of %1 of the 14th amend begin with "No State shall." From the beginning, the courts interpretation of that amend have reiterated "the essential dichotomy set forth in that Amendment between deprivation by the State, subject to scrutiny under provisions, and private conduct, 'however discriminatory and wrongful,' against which the 14th Amendment offers no shield." But the state- private distinction is deceptively simple. As gov involvement in the private sector has become more pervasive, tradititional notions as to what activity constitutes "state action" have become blurred. 2nd theme - the role of Congress- reflects that fact that each of the three post-Civil War Amendments grants Congress auth to protect civil rights. The final sections the 13th, 14th , and 15th Amen each give Congress the "power to enforce" such amend "by appropriate legislation." These are not the only sources of congressional power to enact civil rights laws: the commerce power has been invoked as a source for civil rights legislation forbidding private racial discrimination. But the post-Civil War additions, unlike the original grants, were born of a special concern with racial discrimination; and the civil rights powers they confer are potentially the most far- reaching.

10th Amendment (anti-commandeering) as an external limit

"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." There are two views of the 10th amendment, one that it is a tautology, thinking it simply repeats the construction of enumerated powers and it doesn't matter (O'connor), The other view is that it does something- even though something is under congress's power in the commerce clause it might be restricted in some other way. The two things that the federal government cannot do under the 10th amendment are , require the state to enact laws (new York v. Us) and require state officers to carry out federal laws . (Printz v. Untied States). This is an anticommandeering law, that limits impositions on state sovereignty. Ex: congress can order people to get background checks, but you cannot regulate the state/ local police officers to do it. -this ultimately is meant to protect individual liberty and state sovereignty Doctrinally: Congress ahs to power to regulate interstate commerce, congress can regulate state so long as it regulates them the same way it regulates individuals. You are regulating states the same way you are regulating all other employers.SO the anticommandeering principal that says you cant tell states how to do things but can regulate all public and private.

Post New Deal - A Turn to Deference

- NLRB v. Jones and Laughlin (1937) - Court upheld application of National Labor Relations Act, which prohibited discrimination against union members, to nation's 4th largest coal steel producer. Reasoning • Simply because the statute says it is affecting commerce, it's about interstate commerce - highly deferential to Congress. (Constitutional hook) "Whether or not a particular action does affect commerce in such a close and intimate fashion as to be subject to federal control is left by the statute to be determined as individual cases arise • What ultimately matters is if it affects commerce -Not limited to transactions when can be deemed an essential part of a "flow" of interstate commerce. -when they have a close and substantial relation to interstate commerce that their control is essential or appropriate to protect the commerce from burdens and restrictions, congress cannot ne denied the power to exercise that control. -the activity can be those in the productive industry that is local when viewed serpately . the fact that they were engaged in production is not determinate. The -it is wrong to say that the effect of labor strife at their manufacturing operations would be indirect or removed on interstate commerce, they would be immediate and might be catastrophic. This is an industry organize don a national scale, so congress needs to step in to prevent industrial war. (Can regulate intrastate activities as long as they affect interstate commerce, they eliminate the distinction between production vs commerce (no more direct vs indirect), and dropped language of police power as a limitation/ didn't mention that. Dissent: any effect on interstate commerce by the discharge of employees would be indirect in the highest degree, maybe a little on factory but more and more disconnected futher out. -United States v. Darby (1941) (lumber manufacturer challenged indictment charging him with violating fair labor standards act of 1938 which regulated hours and wages of employees in local manufacturing acitivites0 - overrules Hammer, purpose doesn't matter. Rules that prohibition of the shipment of interstate of goods produced under the forbidden substandard labor conditions is w/in Constit. Authority of Congress - "While manufacture is not of itself interstate commerce the shipment of manufactured goods interstate is such commerce and the prohibition of such shipment by Congress is indubitably a regulation of the commerce." -the motive in the legislation was to make effective the congressional conception nof public policy that interstate commerce should not be made the instrument of competition in the distribution of goods produced under substandard labor conditions, which conception is injurious to the commerce and to the state from to which the commerce flows.( in any case motive doesn't matter) **"the power of congress over interstate commerce extends to activities interstate which have a substantial effect n the commerce or the exercise of the congressional power over it." - Discusses substantial effect on commerce and issue of Also "unfair" competition can be regulated labor conditions may drive those using good conditions out of the market - "competition by a small part may affect the whole and that the total effect of the competition of many small producers may be great" = "aggregation approach" -*essentially professor says that the effect of things in state would have to be national anyways since they would lead to changes in all the other states through competition. (deference to congress about purpose, purpose doesn't matter, officially overturns the hammer v. dagenhart) preludes the (new) substantial effect test, which gets filled out more in Wickard. - Wickard v. Filburn (1942) - individual farmer goes over wheat quota and uses extra for personal use, gets fined. Court upheld the law, and in doing so, flatly rejected the limits on the commerce power that were enforced in the earlier era. Court finds that: 1) wheat can spill into the market and can therefore effect the price - wheat is fungible and would have otherwise been in the market so econ activity 2) allowing him to grow his own wheat takes him out of the market While the effects of these two findings may be small in the individual sense, the court says that in the aggregate it could have a really big effect - The law affects lots of people and when we consider (new) substantial effects test, we need to add up all the possible effects from the people (SO brought into substantial effects because of aggregation, otherwise not) • If you think of it spatially - clearly the commerce clause doesn't cover it, it is completely intrastate and confined • If you think of it indirect/direct effects - clearly the commerce clause can't regulate, the effect on price of wheat is indirect (he wouldn't buy other wheat) (but we don't care about indirect / direct anymore) • Substantial effects test - clearly it fails as well, the effect would be very small • Under all of these tests the law should fail, and yet the court upholds the law Positive view: New interpretation met the new economy and if the CC was allowed to be interpreted given the facts of the world, then it must be given a broad reading Negative view: CC has been taken too far, it leaves no police powers to the states. iv. After Wickard, no law struck down until Lopez. ((New) substantial affects test, means you can aggregate all of the laws effects, don't have to just look ath idnvidiauls actions, needs to be commercial though). This also is impprotatnt in showing the susbtnation of another product counts. This is the outer limit of the comemre lasue 60 years pass after this till the SC would strike down a law under CC

Who is the best Guardian of Federalism?

-Weschler: Maybe the sheer existence of states protects states from national dominance by representatives from the states in congress and senate. So maybe no need for court to intervene to protect states. So essentially maybe only political activity should protect states. - In contrast, Justice Powell in Garcia v. San Antonio MTA thinks that with the 17th amendment which displaced state legislative control of the senate by providing or popular election of senate and the rise of national parties, nationally recognized constituencies, national media and the reduced role of the electoral college in selecting presidents, means that politics aren't adequate to protecting states and the court should step in. -others say that maybe the political parties are still protecting the role of states. They remain important institutions. How though? Over the course of American history the persistent institution in brokering state and federal regulations has been the political party, connecting through the fortunes of office holders and at state and federal levels, fostering mutual dependencies that protects state institutions by inducing federal lawmakers to take account of at least some desire of state officials.

Professor's Review of Civil Rights Cases

-when we are talking about rights most people think about freedom of speech, according to the state action doctrine it has to be the government violating your right to have a civil right action claim )not individuals but government actors). -Only exception to the state action requirement is the 13th amendment, which dealt with slavery. Civil rights cases briefly: the 13th and 14th amendment both have power components to the amendments, powers not just found in the original constitution but the 13th and 14th amendment are important for enforcing powers. Question in civil rights cases is 1). State action doctrine: The court says congress cant use the 13th and 14th amendments to do stop race discrimination by indiviudals ., because the 14th amendment is aimed at government action, the state cannot require similar behaviors by individual actors. Late civil rights legislation we've described were under the commerce power instead of civil rights power because of the civil rights case. Ex: heart of Atlanta 13 2) Exception to above through section 5 of the enforcement power - was not very powerful, but was used in FMLA later on. -if you can show that a state has repeatedly failed to vindicate those rights, that's problematic in that it is failing to protect rights *some exceptions where section n5 of the enforcement power can be used 3) What about the 13th amendment? - one argument made is race discrimination is a badge of the institution of slavery, so congress has ability to protect against it. But Maj/bradley court doesn't like this argument. Justice Harland disagrees and says it's a badge of servitude. Largely the ruling in the civil rights cases has watered down section 2 enforcement in the 13th amendment.

Congressional Constraints on Appointment and Removal of Executive Officers:

1. Appointment of executive officers. Art. II, $2, cl. 2, the Appointments Clause, provides the the President "shall nominate and b and with th advice and consent of the senate, shall appoint [ambassadors], Judges of the supreme court, and all other officers of hteu nited states whose appointments are herin otherwise provided for ,and which shall eb established by law: but the congress may by law vest the appointment of such inferior officers, as they think proper, I the President alone, in the courts of law, or in the heads of departments." - This clause specifies that the president shall appoint superior officer s (such as cabinet heads with he advice an consent of the senate but the clause allows congress to vet appointment of inferior officers 9ie.e., those who report some superior officer 0 in either the president action solo, the heads of departments (e.g. cabinet officers), or the "Courts of Law". The one body plainly excluded by that text from appointing executive officers is congress Buckley v. Valeo (1976), Court relied on the Appointments clause in holding unconstitutional, for most purposes the composition of the Federal election commission established by the federal election campaign act. In which a majority of the fec members was appointed by the president pro temprore of the senate and speaker of the house. The fec was given direct and wide ranging enforcement power such instituting civil actions against violations of the act as well as extensive rulemaking and adjudicative powers." -the court held that such powers could be exercised only by officers of the US appointed in accordance with appointments clause. -an agency with a majority of congressionally named personal could only exercise those powers that congress gith delegate to one of its own committees (e.g. investigatory and informative powers; since only "officers' appointed in the constitutionally provided manner could undertake exetive or quasi judicial tasks, the fec could not exercise such functions." -the court insisted that any appointee excising Signiant authority pursuant to the law of the us is an officer of the us and must therefore be appointed in the manner provided by the appointment clause. Although congress could vest appointment fo inferior officers in courts of law or heads of department in stead of the president providing for the appointment of must fec embers by congressional officials was impermissible since they could not be considered heads of departments.. Court said even though there might be fears if these appointment were decided by present that the presidential's appointee would be recungi presidential campaign / reelection stuff that didn't warrant congress ot appoint it. Recess Appointment Article II, %2 of the constitution provides the "the president shall have power to fill up all vacancies that may happen during the recess of the senate, by granting commission which shall expire at the end of their next session." NLRB v. Noe Canning (2014) President Obama made appointments to the NLRB on Jan 4, 2012, when the senate was in recess pursuant a dec 17, 2011 resolution providing for a series of brief recesses punctuated by 'pro forma sessions' with no business... transacted," every Tuesday and Friday though January 20, 2012. Bryer stuck down the appointment because the recess was too short and the senate preserved the capacity to transact business during the pro forma session. Breyer said both inter session and intra session recess may count as instances when the president can make appointments, the cosntitial text is ambiguous on that point. But if you look in the past 200 years, anything shorter than 10 days would not count. Tand so the three day rcess between the senates proforrm ma essiosn would not count. Also The senate is in sesiso nwhen it says it is (including these pro forma sesisons) , as logn as it retians the acapcity to transact senate business. Scalia concurs: Says there are textual litaitiosn on the recess appointment powers, this is meant to fill a narrow and specific need not a weapon to be wield y future presents against future senates Removal Power/ Removal of executive officers The appointments clause is silent as to removal of executive appointees from office. The only explicit constitution reference to the removal of executive personnel lies in the impeachment provisions. But form the outset, a power to remove subordinate executive official by routes other than impeachment has been assumed, but questions abound around it. Bowsher v. Synar (Chief Justice Burger) Facts:- dealt with the Gramm-Rudman-Hollings Deficit Control Act of 1985. Under the law, if maximum allowable deficit amounts were exceeded, automatic cuts, as requested by the Comptroller General, would go into effect. The constitutional challenges is that the comptroller general who is nominated by the president, is removable only by impeachment or by a joint resolution of congress (which is subject to presential veto) on the basis of reasons specified in the act. "we conclude that congress cannot reserve for itself the power of removal of an officer charged with the execution of the laws except by impeachment. To permit the execution of the laws to be vested in an officer answerable to only to congress would, in practical terms, reserve in Congress control over the execution of the laws. The structure of the Constitution does not permit Congress to execute the laws; it follows that Congress cannot grant an officer under its control what it doesn't possess" -the constitution explicitly provides for removal of officers of the united states by congress only upon impeachment by the house of representatives and consent by the senate. In article II, cl. 2, the Appointments clause president "shall nominate, and by the advice and consent of the senate shall appoint ambassadors, judges of the supreme court, and all other officers of the united states whose appointments are not herein otherwise provided for and which shall be established by law; but the congress may be law vest the appointment of such inferior officers, as they think prior, in the president alone, I nteh courts of law, or in the heads of departments. So president shall vest a superior offices with advice and consent of senate, and congress can vest appointments to inferior officers The Court found that the duties which the Congress delegated to the Comptroller General did violate the doctrine of separation of powers and were unconstitutional. A two step process led Chief Justice Burger to arrive at this conclusion. First, in exploring the statute defining the provisions of the Comptroller General's office relating to the Congress's power of removal, it was clear to Burger that this officer was subservient to the legislative branch. Second, in examining the functions that this officer would carry out under the Deficit Control Act, Burger concluded that the Comptroller General was being asked to execute the laws and, thus, was intruding on the prerogatives of the executive branch. Justice White, dissenting The effect of this feature in the legislative scheme is of minimal practical significance and present no substantial threat to the basic scheme of separation of powers. -the exercise of authority by an officer removable for cause by a joint resolution of congress not analogous to the impermissible execution of the law by congress itself. .. congress may remove the comptroller only through a joint resolution which must be passed by both houses and the senate. There's no threat to separation of powers really, the comptroller will still be independent. Ultimately, cosntition sawys removal power should be for the executive branch, except for instances of impeachment. Fettering executive removal power: -Myers v. United States -An 1876 law provided that postmasters of the first, second, and third classes shall be appointed and may be removed by the President with the advice and consent of the Senate. President Woodrow Wilson removed Myers, a postmaster first class, without seeking Senate approval. Question Did the Act unconstitutionally restrict the President's power to remove appointed officials? Holding Court (Taft, CJ): yes, "the president has the exclusive power of removal" -iit was a "reasonable impclication" form the presents power to execute the laws that "he should select those who were to act for him under his discretion in the execution of the laws." And it was an additional plausible implication that "as his selection of administrative offices is essential to execution of the laws b y him, so must be his power of removing those for whom he can not continue to be responsible." Humphrey Executor v. US President Hoover appointed, and the Senate confirmed, Humphrey as a commissioner of the Federal Trade Commission (FTC). Roosevelt fired him later because of his policy positions. However, the FTC Act only allowed a president to remove a commissioner for "inefficiency, neglect of duty, or malfeasance in office." This restriction from congress was allowed because the Federal trade commission was quasi-legislative/ quasi judicial, not purely executive. This is a modification of meyers Weiner v. United States (1958), applied Humphreys executor rule. Involved the removal of a member of the war claims commission. The statue establishing the commission, unlike the one in Humphrey's executor did not specify the grounds for removal. Bute the emphasized that the commissions function was of an "intrinsic judicial character" an held the removal illegal. As to officers who were not purely executive, power to remove existed "only if congress may fairly be said to have conferred it." The corut noted "This sharp differentiation derives from the difference n functions between those who are part of the executive establishment and those whose tasks require absolute freedom from executive interference.' The constitutionality of the independent counsel: Should the Humphrey's executor principle extend beyond the independent agencies to any other office calling as practical matter for independence from the present? = Does the national need someone to guard the guardians, who must be politically insulated from presidential power? How insulated? Morrison v. Olson Factual Background: The Ethics in Government act of 1978 required the attorney general, upon "sufficient grounds' to investigate, to conduct a preliminary investigation of possible official violations of federal criminal law. The attorney general then reported to special decision of the us court of appeals for the district of Columbia circuit, consistent of three circuit judges appointed by the chief justice for two year terms, as to whether there were "reasonable grounds to believe that further investigation is warranted" If the attorney general found such reasonable grounds" she was required to apply to the special division for the appointment of an independent counsel, and the special division appointed such counsel and defined his or her jurisdiction. Morrison v. Olson arose after independent counsel alexia morrison was appointed to investigate possible obstruction of congressional investigations ,and a grand jury issued subpoenas to future solicitor general ted olson, who moved to quash the subpoenas on the ground that the At was unconstitutional . Chief Justice Rehnquist's majority opinion first rejected the claim that vesting the appointment of the independent clause fo art . 2% 2 lc 2. He found the independent counsel to be an "inferior" officer for purposes of the Clause because she was removable by the Attorney general for "good cause" her duties were limited under the act , and her tenure of fo office was temporary" she was therefore not a principal officer who could be appointed only by the president with the advice and consent of the Senate. Olson argued further that, even if the independent counsel was an "inferior" officer, the appointments clause did not permit congress to place the power to appoint outside the executive branch. The court, however, recognized a limited congressional power to provide for interbranch appointments. Vesting of the appointment power I nteh courts" would be performed by the courts and the performance of their duty to appoint," bbtu there there was not such incongruity. Finally, the court turned to broader challenges resting on structural separation of powers principles." Practical Question (sorta underlying this case): whether congress is entitled to remove the executive branch from doing some wrongdoing or the is the political aspect a sufficient check? Real question; Is the power given to the independent counsel exceeding the appointments clause because he can only be removed for good cause? For superior officers maybe only executive can appoint, for inferiors officers congress can appoint. So in one since this is a question if the independent counsel is a superior or inferior office Court holds that this is a superior office. Next, does the president have to have the power to fire, or can congress limit it in some ways? A. does the provision of the act resisting the attorney generals power to remove the independent counsel to only those instances which he can show good cause taken by itself, impermissibly interfere with the presidents exercise of his constitutionally appointed functions? -determine that its not, limitation is only that he can only fire someone for cause. That's the only reason he should do so anyways. So no imposition and what we really care about is if the president is limited in performing his job - we simply do not see how the presidents need to control the exercise of that discretion is so central to the function of the executive branch as a matter of constitutional law that the counsel be terminable at will by the president -nor do we think that ht good cause removal provision at issue here impermissibly burdens the presents power to control or supervise the independent counsel as an a executive office, in the execution of his or her duties under the acct. B. The final question to be addressed is whether the act, violates the principle of separation of power by unduly interfering with role of the executive branch. - the attorney general still has several means of supervising or controlling the prosecutorial powers that may be wielded by an independent counsel and still remove him for good cause. . Even though this gives the counsel some independence from executive supervision , there is still sufficient control to ensure the president is able to perform is constitutionally assigned duties. Scalia (dissent) -makes a more formalist approach. Thinks the limitation is too much, he should the president should be able to do what he thinks is appropriate, and should be making his own judgment. - there is a political check to the president.. pays the cost of political damage to his administration. -It is not for us to determine how much of the purely executive power government must be within the full control of the president The constitution prescribed that they all are

The Incorporation Debate Generally

1. Because of the Slaughter House cases, the application of the BofR to the states could not be through the P&I clause. 2. In the early 20th century, SCOTUs suggested an alternative approach: finding that at least some of the BOR provisions are part of the liberty protected from state interference by the DP clause of the 14th amendment. 3. Once the court found that the DP clause of the 14th protected fundamental rights from state infringement, there was a major debate over which liberties are safeguarded. The question is when you are depriving without due process of law For criminal procedures we don't really worry if there is a process, but then may be deprivation of property, and question of sufficient process might come up. But one may wonder what is due process of law? Debate centered on three issues: i. History and whether the framers of the 14th amendment intended for it to apply the Bill of Rights to the states. • Ultimately, this issue was unresolvable, with both sides arguing that history supported their position ii. Federalism - Applying the bill of rights to the states imposes a substantial set of restrictions on state and local governments. • Total incorporation argued that states would not enforce liberties and rights on their own, opponents took the opposite view. iii. Proper role of the judiciary. • Defenders of total incorporation argued that selective incorporation gives judges far too much discretion deciding what rights are fundamental. Opponents saw total incorporation as being over-inclusive (beginning view) and then too rigid (view came later)

History of Federalism in US

1. Federalism in the Framer's view. The Framer's intended the separation of power between the national and state government to serve the common good while preserving liberty. a. In the federalist, Madison wrote that vertical separation would give "double security to the rights of the people by preventing the the concentration of power: "In the common republic of America, the power surrendered by the people is first divided between two distinct governments, and then the portion allotted to each subdivided among distinct and separate departments. Hence a double security arises to the rights of the people. The different governments will control each other, at the same time that each will be controlled by itself. i. Also believed that each level of gov had distinctive contributions to federal welfare. 2. Structural changes in the federal system. The civil war and its aftermath, including the later new deal, resulted in limits in state power and shift to national movement. Ex; 14th amendment eventually included the entire bill of rights. Seventh amendment provided for direct election of us senators by the people instead of state legislatures. 3. And following the new deal, the supreme court approved a vast expansion in federal regulation power over areas traditionally reserved to the police powers of the states Values promoted by State Autonomy: Why might preserving some state and local autonomy free of overriding national control be valuable as a matter of political and economic theory? Classic arguments include the following: 1. State and local autonomy can deal with problems that vary geographically by tailoring policies to fit locally varying circumstances. 2. State and Local Governments can compete for citizens and refinement by offering varying policies to accommodate diverse preferences and ideologies, enabling citizens to "vote with their feet" by choosing the locale where they will be governed in the manner they prefer. 3. State experimentation in social policy can yield new practices later adopted elsewhere. 4, The smaller scale of state and local government enables government to be closer to citizen preferences and needs while allowing citizens greater opportunity to participate in and in turn to influence public policy 5., particular federal power may prove especially danger at the national level because the are subject to particular abuse if one faction captures control: "For example, it might be better to have most policing done at the local level and avoid a national police force because of the dangers to civil liberties if there is a capture by autocratic rules at the national level." Values promoted by national policymaking 1. National regulation can respond to negative externalities (like air pollution) by which activities in one state impose costs on those residents in another state 2. The national government can provide certain public goods (such as common defense against foreign enemies) that any state government, left to its own devices will underproduce because it is subject to free riders and therefore cannot completely capture the benefits of its investment 3. Because of its larger scale and collective resource the national government can provide better social insurance against catastrophes that occur unpredictably and vary geographically in their incidence (ex: hurricanes, blizzards0 4. The national government can redistribute (for example education or health care) among the populations of different states whose citizens enjoy greatly unequal wealth and income 5. National regulation can prevent the disturbing aspects f competition among the states, ex where states seek to attract investment by allowing low cost child labor or adult labor. 6. Brandeis might have exaggerated the role of state experimentation in forming solutions to universal problems, as individual states will have no incentive to invest in an experiment that involve any substantive or political risk and will prefer to wait for other states to generate them 7. Also maybe in contrast to the typical states promoting liberty ideology, maybe in states there's prejudice to a minority group that would be protected on federal level

Spending Power

1. Spending clause power analysis focuses on 1) Any expenditure under the Spending Power must serve the "general welfare" and 2) not be coercive. When we have coercion, we have an unjustified use of the spending power. When we do not have coercion, it is just an offer (whether it is attractive or not), and we have a justified use of the spending power. 4. South Dakota v. Dole (1987) - Congress conditioned highway funds to states on the states' agreement to raise their respective drinking ages to 21 years old. The act directed the secretary of Transportation to withhold 5% of federal highways funds otherwise payable to states from any state that permitted the purchase of alcoholic beverages by any person less than 21 years old. South Dakota, which permitted persons 19 years of age to buy beer, sought a declaratory judgment that the act violated constitutional limits on congressional spending power. Court upheld the law as a valid exercise of congress's spending power. 4 Factor Test: 1) Does it have a purpose to serve the general welfare? - Defer substantially to congress on that . In this case purpose was safe intestate travel, goal was to make prevent people driving from one state to the next to be able to drink at a lower age. 2) Does it make a clear statement of the conditions placed on the funds? -not ambiguous or confusing so state knows what its choices are 3) Conditions must be related to the spending program Here, Rehnquist says that the condition imposed by congress was directly related to one of the main purposes behind the federal highway money: creating safe interstate travel. 4) Does the condition refrain from violating other constitutional provisions? - Cannot induce states todo something unonstitutional NOW GO TO COERCION The court recognized that at some point, "the financial inducement offered by Congress might be so coercive as to pass the point at which pressure turns into compulsion." But here, the Ct said that the condition of federal highway money was "relatively mild encouragement." 1) First factor - reasonable alternative? 5% of federal highways funds is too small, it is not enough to be considered coercion. There is a reasonable alternative available, 95% of state highway funds is a reasonable alternative to 100% of state highway funds. i. On the other hand, you could argue that 5% of federal highway funding does not really leave a reasonable alternative, as evidenced by the fact that every state took the deal. 2) Second Factor - wrongful threat? There is no legal entitlement to the funding. i. On the other side, you could argue that states are entitled to set their own drinking age, and Congress is trying to take away this power by linking it to highway funds. Dissent (O'Connor): Thinks there is a tangential relationship - Congress saying $ is for highways, but they're not giving $ for guardrails or concrete, rather they are connecting it to something only loosely connected to fed highway safety. Looks more like coercion when you have loose connection. States are entitled to set their drinking age b/c 21st amendment allows them to regulate alcohol (this is a state matter). Congress is trying to take this away by linking it to the highway (very attenuated relationship). Line btw permissible & impermissible conditions turns on whether the requirement specifies in some way how the $ should be spent. W/o a specification, you can't discern the true purpose, and it is a regulation which is valid only if falls under one of Congress's delegated regulatory powers. 4. NFIB v. Sebelius (2012)(Justice Roberts) - Medicaid expansion, which requires each participating state to give Medicaid coverage to every adult under 65 with income up to 133% of the federal poverty level. Under the Medicaid expansion of the health care law, if states decline to accept the new restrictions, they will not only lose the new money under the program, but will lose ALL Medicaid funds. These funds amount to as much as 10% of some states' total budgets. Majority says this is coercion: Purpose of expanding the availability of health care is fine but pressure has turned to compulsion / coercion - 1) No reasonable Alternative: price of 10% of total budge is v high. Bc federal government is taking away all of the Medicaid moneys owed to states - this is a huge burden - really really high percentage of the states' budgets, would be in deep shit if declined. 2) Wrongful Threat: They are entitled (expected) to receive this amount of money under a political understanding (expectation baseline) +/or no reasonable alternative. -lots of money for the state's entire budge would be lost, a "retroactive condition" When states signed on to orig Medicaid, had no idea that Medicaid would be so dramatically altered. Yes, the law said it could be altered/amended, but would have never expected such a huge change (unfair surprise). Note mentioned in this case specifically, but Removes accountability - State officials bear brunt of public disapproval for regulatory program devised by fed officials who are sheltered from criticism. Danger increased when Congress acts under Spending Clause, which gives it ability to act beyond enumerated powers. Dissent: i. Ginsburg (dissent) - uses legal entitlement baseline - state are not entitled to fed money. and they had notice (i.e., express text in legislation saying Medicaid could change). She doesn't care about reasonable alternative ("the altenrative to conditional feerral spending is not state autonomy ... is not state autonotmy but state marginalziiaion). ii. Scalia (he was dissenting to the whole Medicaid expandion, but in a way supported majority on this) - 1) No reasonable alternative and also didn't meet 2) Moral Entitlement baseline - since the federal govnement taxes state citizens to fund program, states are entitled to Medicaid or money back bc otherwise couldn't provide own program bc citizens would be overburdened (having to pay for that and for themselves in a way). 5. Coercion definition: 1) No reasonable alternative - This is the lack of choice 2) and a wrongful threat - If you decline, you will be worse off than some baseline. i. The baseline can either be worse off than you are entitled to be (legal or moral entitlements) or the baseline can be worse off than you expected to be (this comes from the contracts sense). ii. Temptation/Motive ≠ coercion, Must consider context at that point in history - Steward[JG1]

2 Theories of Due Process

1. Total Incorporation: Hill of rights applies as against states 2. Selective Incorporation: it is subjectively up to judges to decide what is a basic right in our system (protects fundamental fairness / natural rights);; could be broader or lees broad than the bill of rights 3. No incorporation/ Substantive Due Process - Bill of rights does not apply to states. Due process just means a fundamentally fair process - We look at the process that you got, and then we decide if it was just and fair ex post. Case by case inquiry. Policy: No incorporation would provide better state autonomy: Fundamental fairness still provides protection but it offers more flexibility. Total incorporation would reduce fundamental fairness to a list, judiciary should be able to make these determinations rather than simply be given a list. Judicial power is restrained by precedent and tradition so not giving judiciary too much discretion.

Themes from Declaration

1. Where do rights come from?: a. There are rights that people have - natural rights b. Respect owed in governing to people (we owe people an explanation when we do things) Side note: only power in judiciary comes from our respect to court, because it gives reasons. c. The people can come together to protect their rights 2. People can assess governments (what is it supposed to be even? (which of the concepts most important?) 3. There is potential for tension between 2 forms of liberty/ concepts of freedom i. individual liberty/ the libertarian side (negative liberty) (which we emphasize today) - though Scalia thinks: Individual Liberty robs people of freedom to govern themselves ii. ability to self-govern, the affirmative part of liberty (was more important in the past)

Breathing new life into P&I Clause for distinctions among state residents based on duration of residence

2. Saenz v. Roe (1999) Stevens - distribution of welfare benefits based on if resided in CA over a year (if resided under a year, get the same benefits in previous states). Fed law doing same thing. Majority - Constitution protects the right to travel in three ways by: 1) allowing citizens to move freely between states, 2) securing the right to be treated equally in all states when visiting, and 3) securing the rights of new citizens to be treated like long-time citizens of a state. This law impedes on right to travel under third category. Different from education and divorce bc those are portable (people can get them and leave, welfare is not. -States can inquire into residency status - ferret out false residency claims, which are more likely with portable benefits. CA has interest in not being a "welfare magnet," but not enough to allow them to make two classes of residents. Dissent (Rehnquist) -Think that it just as portable, an investment in oneself like education. This is a states way of protecting its resources, the national legislature has recognized the need to protect state resources in time of experimentation and welfare reform.

The Commerce Power

Art 1, Section 8, Clause 3: "To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;" As developments occur, two things to consider: 1) substantive issue of the appropriate division of regulatory authority between the fed gov and states 2) institutional q of whether the courts are capable of setting workable boundaries to fed reg power. History of commerce clause jurisprudence can be divided up into three stages: i. First stage: court wrestles with tests to limit commerce ii. Second stage: post- New Deal, give up on the tests articulated in the previous stage and acquiesce to a somewhat "unlimited" conception of what Congress can do under the CC. After this stage, no law struck down until the modern case. iii. Modern cases starting under the Rehnquist court (Lopez, etc.) Proved to be a central basis for assertion of national regulatory power When is Congress regulating commerce among the several states, and when is it infringing on the rights of the states to regulate local issues? Will depend on the approach you take: i. What is "commerce" - must define. Transport & Sale; NOT manufacturing/production ii. Is the "commerce" only w/in the state or does regulation touch something that moves outside (spatial idea)? iii. Does the activity you're regulating have an effect on interstate commerce? Is the effect direct or indirect? iv. Degree matters? Degree of harm on the national economy. v. Is what is being regulated actually economic stuff OR is the purpose something else? \

Heightened Scrutiny Under RR

Ct worried about degree of proxy (e.g. male characteristic) and target 1. Reed v. Reed (1971) - struck down law under rationality review that had preference for men over women in the appointment of admins of estates in order to eliminate a bunch of hearings on the merits/ intrafamily controversy. Ct says arbitrariness is the issue - admin convenience not a enough of a legitimate gov purpose to allow the sex preference. • Cant just arbitrarily keep out women to limit all the trials about appoitnemtn of estates. Too arbitrary. But what about a coin flip? Ct is discussing arbitrariness more as the fit between the means and ends, rather than a "random" means. • Said applying RR, but not really, probably a heightened form at least. 2. Frontiero v. Richardson (1973) - married male service members presumed to have dependent spouses so automatically got benefits for them, but required women to prove spouse was dependent before getting benefits. Ct strikes it down based on sex being immutable and also that statutory distinctions relegate women to "inviably inferior" legal status w/o looking at them as individuals. Concern about stereotypes. Also just generally unfit to the administrative conscience goal • How important is mutability? "moreover, since sex, like race and action origin is an immutable characteristics the imposition of special disabilities upon the members of particular sex because of their sex would seem to violate the basic concept of our system that legal burdens should bear some relationship with individual responsibility." It also is different than nonssuspect classifications because it bears no relation to ability to perform or contribute to society." • What's the difference between a stereotype and a generalization? Seems that stereotype may be the negative version of a generalization (going to assume this for our discussion). As we will see its when its not based in biology (pregnancy) Concurrence: thought we should expand passed rational basis review, thinks they should follow reed, any changes might come through the pending equal right amendment. • Brenan plurality tried to adopt SS, but couldn't get the fifth vote.

Executive Power, Generally

Framers sought to safeguard against tyranny by combatting excessive concentration of power , but also intended to promote efficiency by giving Congress power over the national market and placing executive power n the singular person of the president -but constitutional provision reveals that separation was not intended to be airtight. Powers blended & intermixed Article II vests the "executive power" in the president without qualification. In this respect, it differs from Article I, which delegates to Congress "all legislative powers herein granted." This disparity ahs given rise to argument that the President has certain inherent powers beyond those specified in the constitution. Because the president is the only elected official who has a national constituency and leads his or her policy party, the actual influence of the presidency on national policy is obviously great. Two sources of presidential power: -when congresss has given the power through a statute - from the consittion (ex: maybe emergency power? Sources of Power from Constitution -> - Vesting clause (article II): executive power shall be vested in a president -" He Shall take care that all laws be faithfully executed" - court says that means congress decides, and executive takes care - He shall be Commander in chief -while "theatre of war" could be broad, court decided to limit it, otherwise this would take all the power from congress - Article I says legislative powers herein for congress but doesn't say that for executive powers, so maybe the executive powers are more broad? Article II Powers and Issues -Inherent Power -appointment and removal powers -Foreign affairs and war powers -Pardon Powers -immunities and evidentiary privileges

Congressional Power (Historical Context

Historical Context: The US Const. designed to replace weak fed. government provided for in the Article of Confed. w/ a stronger federal government, while maintaining a robust governmental role for states. • The Articles of Confed., Art. IV, gave US Congress enumerated powers, and then emphasized the limits of those national powers: Article II stated that each State retained "every Power, Jurisdiction and right, which is not by this confederation expressly delegated to the United States." The Framers agreed the new Constitution should strengthen national powers, but there were several ways to do so. • The Virginia plan suggested general formulations for any situation involving multiple states. (this ultimately wasn't followed) • Article I, %8 as finally adopted, however followed New Jersey Plan, (actually the Connecticut plan compromise) and set forth a specifically enumerated list of granted powers, it increased the range of Congress's powers over those conferred by the Articles.. • The most important new powers were the powers to levy tax, to borrow money, to declare and conduct war, and to regulate interstate and foreign commerce. • Article I, %8, cl. 18,, the N&P clause also gave Congress the power "To make all laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof." • To assuage fears of unlimited national power, the Tenth Amendment to the new Constitution later clarified that "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." (in contrast to the article of confed, this pointedly ommitted the adverb expressly in assuring that the power not delegated to the US were so reserved.

N&P Clause, Limits and Values of Federalism (historically)

History: Virtually no discuss of N&P clause at constit convent. Hamilt & Madis thought such a clause was assumed -turned out to be important & highly debated (At one extreme, Hamilton and Marshall argued for a broad construction, and accordingly broad reading of the clause, thereby deepening the powers available to the national movement, on the other hand was Jefferson's strict constructionist view, which sought to limit the scope of the powers exercised by the national government as closely as possible to the power enumerated in the constitution, and thus advocated for a narrow reading of the clause. Madison had a structuralist interpretation, in which the N& P clause was essentially superfluous, because any given power that was fully necessary to the exercise of an express power had to be implied with or without the clause. And it should be limited to those incidental to express powers, otherwise, things like making the bank would have eliminated the necessity of the enumerated powers in the first instance). -from this formed two camps, the federalists led by Hamilton, and the democratic republicans, led by Jefferson and Madison.

2. National "police" regulation in the late 19th century -

Instead of regulating intrastate local activities directly, Congress began prohibiting interstate transport of certain items or persons. This technique was used for moral reasons. Champion v. Ames (1903) aka The Lottery Case - Justice Harlan - man indicted for shipping a box of Paraguayan lottery tockets from texas to California. The federal lottery act prohibited importing, mailing, ior intestate transporting of lottery tciets,. The majority opinion began with the assumption that lotteries were an evil which it was desirable for Congress to regulate; since Congress regulated only the interstate shipment of these evil articles, it could not be said to be interfering with intrastate matters reserved for state control. "lottery tickets are subjects of traffic and therefore are subjects of commerce, and that prohibition of commerce law within the regulatory power of congress. The suppression of nuisances injurious to public health or morality is among the most important duties of government Just as a state may, for the purpose of guarding the morals of its own people, forbid all sales of lottery tickets within its limits, so congress can congress for this purpose Exclusion for harmful items continued (scene set by Lottery case): Hipolite Egg Co. v. US (1911) - preserved eggs with bad ingredient seized after being in interstate commerce, Ct upholds 2) US Hoke v. US (1913) - Ct upholds Mann Act prohibiting transport of women in interstate commerce for immoral purposes "the principle established by the cases is the simple one that congress has power over transportation among the several states a; that the power is complete in itself, and that congress, as an incident to it, may adopt not only means necessary but convenient to its exercise, and the means may have the quality of police regulations."

Supreme Court Authority to Review State Court Judgements

Martin v. Hunter's Lessee (1816) - Facts: Land dispute instituted in 1791 concerning vast land holdings of Lord Fairfax. Procedural Facts: After SCOTUS overrules VA SC, VA SC says SCOTUS had no power to review because of Section 25 of Judiciary Act, which prevents SCOTUS review of state court determinations that involve federal law, is unconstitutional. Virginia believes they are equal to SCOTUS in power to interpret the Constit. Holding (Justice Story): SCOTUS comes back and says no, SCOTUS is the final word on what the Constitution means and has the power to review a state's highest court's decisions. Four justifications for Supreme Court Authority (over state courts): 1. Judicial power attaches to the case, not the court. It is the power of appellate review power (Article III, Section 2, Clause 2: "in all other cases before mentioned the Supreme Court shall have appellate jurisdiction") that determines fit for jurisdiction, doesn't matter if case is coming from state or fed court 2. State judges might be persuaded by state interests & prejud., this may prevent proper admin of justice 3. Uniformity of interpretation of federal law across states - can't have every state interpreting the Constit differently. The absolute right of decision, in the last resort, must exist somewhere (the supreme court). 4. Constitution has removed state's sovereignty "it is crowded with provisions which restrain or annul the sovereignty of the states in some of the highest branches" (unlike the articles of confederation) -raises a question of which aspects of sovereignty were given up? Ultimately, Martin v. Hunter's Lessee is an extension of Marbury vs. Madison but actually more significant in terms of when court strikes opinions down from lower courts. (striking down state judgments/law has been more important than striking down federal laws) Cohens v. Virginia (Marshall) -Established that the supreme court could hear criminal cases decided in state courts -(here Marshall is giving his full harshness out on state judges), judges depend "for office and for salary" on the will of the legislature, so they may not always be trusted to adequately protect federal rights

Recent Case on Anti-commandeering, anti-authorization Murphy v. National Collegiate Athletic Assn (2018)

Professional and Amateur Sports Protection Act (PASPA0 enacted in 1992, makes it unlawful for states "to sponsor, operate, advertise, promote, license, or authorize by law or comtact.. a lottery, sweepstakes or other betting , gambling or wagering scheme based. .on" competitive sporting events 28 usc %3702(1). New jersey tried to permit gambling. Fed government said no. Then supreme corut said that was unlawful commandeering. Limits from congress the power to issue orders directly to states. In this case, it is as if federal officers were installed in state legislative chambers and were armed with the authrotiy to stop legislatures from voting on any offending rpoposals. A direct affront on state soverieignty. Unlike Prinz and New York, this case is showing that the federal government cannot prohibit actions by state legilsation, just as it cannot command affirmative action by the state. This is an anti-authorization provision. In order for the paspa proviso not preempt sate law, it must represent the excersize of a power conferred on congress by the constitution, pinning to the supremacy clause will not do. This provision isn't regulating their inerests (such as giving federal permits or not) of private actiors, but is a direct command to the states.

3. Court goes on the offensive striking down many Congressional acts :

RRB v. Alton Railroad (1935), Congress lacked power to establish ha compulsory retirement and pension plan for all carriers subject to the insterstate commerce act. He rejected the argumet that pensions were related to efficiency of transpsortion. They are really and essentially related solely ot the social welfare of the worker, and not from any regulation of commerce as such. (police power/ social welfare are not legimiate interests. that lies with states) Schechter Poultry Corp v. US (1935) aka "Sick chicken case," Court rejected regulation for violations wage and hour and trade practice provisions of a federal act, saying the transactions regarding poultry ended when the shipments reaches the slaughterhouse. Rejected the affecting commerce theory of Shreveport and the stream of commerce rationale of swift. . rejected that this led to demoralization of wage structure. Thinks it would step into al l aspects of production and distribution of a business,.didn't find it important to maintain wage distribution Concurrence (Cardozo) there's a view of caution in this that would obliterate the dincito nbetween what is national and what is local in the activity of commerce. Law is not indifferent to perceptions of degree. Carter v. Carter Coal Co (1936), court rejected a regulation for the bituminous coal industry, the bituminous coal conservation act - direct vs. indirect emphasis -says the direct of labor provisions of the act primarily falls upon production and not upon commerce . production is a purely local activity. It follows that none of these essential antecedents of production constitutes a transaction in or forms any part of interstate commerce. Local character of mining. The matter of degree has no bearing upon the question here ,the question is what is thee relation between activity or condition and the effect not the extent of the local activity or condition

Privileges and Immunities of National Citizenship:

Resurrection of the privileges and immunities of national citizenship: the right to travel and durational residency requirements. One of the cases that Justice Miller cites to identify what rights are included in the "privileges and immunities of national citizenship is Crandall v. Nevada (1867). In Crandall, the Court invalidated a tax on passengers leaving the state via seat of the national government. That holding came to serve as the basis for later cases identifying a right to travel between states. In Edwards v. California, 314 US 160 (1941) , for example, the court invalidated a law making it a misdemeanor to bring into California "any indigent person who is not a resident of the state, knowing him to be an indigent person" this so-called anti-okie law became especially controversial during the great depression. California argued that the huge influx of migrants into California in recent years has resulted in problems of health, morals ,and especially finance. The court was unanimous in striking down the law, but the judges differed about the proper reasoning . Justice byrons's majority opinion relied solely on the commerce clause. Justice Douglas's concurrence, argued that the right of persons to move freely from state to state occupies a more protected in our constitutional system than does the movement of cattle, fruit, steel and coal across state lines, and suggested that the right was an incident of national citizenship protected by the privileges and immunities clause of the fourteenth amendment against state influence .

Individual Rights Before the Civil War

The ratification debates soon revealed demand for additional constitutional protection of individual rights. iIn response to these pressures, James Madison introduces proposals at the first session of Congress for a series of constitutional amendments protecting specified individual rights, the First Congress proposed them as the first ten amendments, and they were ratified in 1791. In the Barron case, which follows, the Marshal Court held that the Bill of Rights restricted only the national government, not the states. The state court of New York, Illinois and Mississippi had applied portions of the Bill of Rights against their states; similar approaches were advected in Ohio and later Georgia. Yet Marshall - ordinarily not averse to nationalist interpretations -refused to find the amendments applicable to the states. 1. Barron v. Baltimore (1833) - state taking from Barron's Warf by dumping masses of sand that limited its use. Barron claimed that the state action violated the Fifth Amendments guarantee that provide property shall not be "taken for public use, without just compensation" Barron tries to invoke 5th amend, SCOTUS says there's no juris bc Bill of Rights only applies to fed gov, not states bc: i. States have own constitution - fed constitution creates gov between fed gov and individual people, not between fed and states. ii. 10th Amend directly addresses states - if Framers had wanted other ones to apply, would have said so. In contrast, for example he said the 5th amendment was addressed directly to the federal government. Thus with these enumerated powers it seems that they would have said more if they intended to create some sort of rule against the states. -professor thinks this is a weak argument because in the 5th amendment they really didn't say anything, didn't specify federal or state. iii. Also when they wrote, and also created the amendments constitution they were creating limits on federal powers, it's a constitution for the general government, so we should assume its for the general government unless they expressly say otherwise - By limiting fed, this was thought of as really about protecting positive liberty, the liberty of self government (which at the time was a more important value) vs today where negative liberty (aka freedom from interference from other people). It was thought that individual liberties don't need protections from state government because state governments were closer to the people. Care more about federal government impositions. Overall, Barron helps us understand the vision of civil rights in the pre-civil war constitution, what comes after the amendments but before the civil war and the 13th, 14th, and 15th amendments.

RR review with Bite

analyze the fit between the means and the ends more carefully - more means focused and Ct less willing to supply justifying rationales. Higher level of scrutiny for classifications that don't quite reach strict scrutiny, but are still more suspect than economic classification. Allegheny Pittsburgh Coal v. Webster County (1989) - Ct finds no real connection between aspects of WV property tax statute (which overvalued and thus overcharged this company compared to other properties because tax system was based on valuations), and purposes iv. Genuinely look at ends to see if actual rational reason. E.g. Brenan Dissent in Fritz vs majority who just basically says legitimate = not bad. Seemed to discriminate on recently vs not recently purchased Compare: Nodlinger v. Hahn Permitted a law that based on purchase price, even though created disparities between those recently and not recently purchased.

The cabining of suspect classfciations , age and wealth

i. Cleburne v. Cleburne Living Center, Inc. (1985) - TX city denies special use permit to group home for mentally retarded. Should mentally retardation be a suspect class? Factors court considers: 1) Mutability - state has legitimate interest in dealing w/ and providing for them 2) Already have protection through federal and state laws so not politically powerless (D& I minority) 3) There are good reasons for making distinctions between MR and not MR e.g. special ed classes 4) History of discrimination (or lack thereof)/animus 5) Slippery slope argument - don't want to keep adding traits to list • Is this bad? Yes - legislators need to know how to write laws, too much judge discretion (mechanical tiers cabin discretion and there is still discretion of when you put a class in a certain tier to a certain extent) No - let judges do a more fact-based inquiry to flesh out issues (e.g. if Moreno had been reviewed under regular RR, would have been upheld), suspect classes can change over time - the real issue is about groups who have been historically discriminated against. *With all of these things the court comes out applying rationality review with bite Stevens concurring - EP review is on a continuum, no rigid tier structure** This is a key alternative Marshal dissent - wants higher level of scrutiny, says the ordinance is too broad to "dispel the suspicion that it rests on a bare desire to treat the retarded as outsiders."

3. Court goes on the offensive striking down many Congressional acts :

i. Hammer v. Dagenhart (1918) aka The Child Labor Case - Ct strikes down fed legis restricting products from child labor from interstate commerce. Said purpose of legislation was to standardize child labor laws (which is for the states to decide) & the goods themselves were harmless. "the mere fact that they were intended for interstate commerce transportation does not make their production subject to federal control." Says that the commerce clause was not inteded to give to congress a general authority to equalize conditions (limit bad conditions in one state that would lead to a competitive advantage) . says this just regulates the hours of labor in the states, and we shouldn't look at congressional intent. -something a little different about the product itself not being bad but the means produced were Dissent saw effect on child labor laws as an indirect effect and thus legis did not need to be invalidated. Thought courts dotn have power to assess the moral judgments of a decision (to put down this case but allow others) ad that congress really should be given its full wpwoers to regulate such an interstate activity that's as wrong as thus *lottery is exception to rule of hammer

Eliminating other vestiges of segregation:

i. McLaughlin v. FL (1964) - invalidated a criminal adultery and fornication statute prohibiting cohabitation by interracial unmarried couples. ii. Loving v. VA (1967) - (law, a bit like brown, applies equally to whites and blacks but still discriminatory) Ct strikes down ban on interracial marriage between white person and other race. Decided case on EP grounds, but also used DP to say right to marriage - but does not say it is fundamental. Fusion case overall Still an open question bc Strauder (jury selection case) and Korematsu specifically to disadvantage racial minority. This law applies equally to whites and blacks (still not facially neutral though). How do we compare this to brown? Could say the effects in brown only on black children, whereas here effects are on both partners. Could say that Brown is about education only. So this was maybe more of a focus on marriage which is a special right whereas brown was more on education. • Rationale - Anti-classification focus, anti-caste (anti-white supremacy) in the background • Says racial classifications, especially in criminal cases, should be subjected to the "most rigid scrutiny" - finds no purpose other than racial discrimination. iii. Palmore v. Sidoti (1984) - divorce, custody to mother, mother remarries black man, father now says he should get custody bc in "best interest of the child" to be in single race home based on how others perceive dual race homes - child will endure hardships/discrimination. Trial ct buys it. SCOTUS overrules. Why? • Bad meaning - recognizes that prejudice is out there, but the State should not sanction it by allowing it to factor into legal decisions • Bad effects - stigmatizing group = lower status in community (anti-caste) • Stigma has two meanings: 1. Expressive view 2. Effects view • Mother's view of policy: Remove children from interracial homes • Father's view of policy: Best interest of child *difference between this and Loving is not about the law, custody given based on intent of the child. Facially neutral law (doesn't contain any classification) facially neutral sounds like it means no classification but what it means is no suspect classification (classification based on sex, race, alienage) . the problem is in the administration of it, like in yik wo. -somewhat neutral, court says still it should be overturned because then it would give the courts imprimatur (approval) to private places (in a way this is a step removed from loving v. Virginia, the court is avoiding taking race into its judgement based on the bias of others)

Three Levels of Scrutiny

i. Strict scrutiny of race and its analogues - law must serve a compelling gov interest and be necessary/essential to those interests (i.e. least restrictive means) ii. Intermediate scrutiny for gender - law must serve an important gov interest and be substantially related to those interests. iii. Rationality review for all other classifications - law must serve a legitimate gov interest and be rationally related to those interests. 4. Level of scrutiny could be more of a spectrum (standard) since RR can be heightened (e.g. when animus is at work) and SS can be lowered (e.g. AA). Stevens concurrence in Cleburne. Ct never says in majority opinions say that we have a continuum, but what they do may belie this statement. i. EP scrutiny continuum: RR------RR w/bite (e.g. Romer, Cleburne) -----------IS------------AffirmAction----------SS 5. Heightened levels of scrutiny must be evaluated on their actual purpose, while RR allows for a conceivable gov purpose even if hypothesized after the fact.

Exceptions for classifications based on animus:

i. US Dept of Agriculture v. Moreno (1973) - struck down provision in federal good stamp program limiting assistance to "households" defined as groups of related persons. Law said purpose was to raise nutritional levels of low-income households and to increase consumption of food so as to strengthen agricultural econ. Ct says provision is irrelevant to meet this purpose. Just trying to harm hippies. Found the animus by analyzing the fit and finding a loose fit, if one at all. ii. But in NYC Transit Auth v. Beazer (1979), Ct upheld exclusion of all methadone users from TA employment saying that there is some uncertainty in how well they could perform job. Dissent thought this just animus towards (previous) drug-users. -purpose legitimate, and reasonable fit