TEXT ORIGINAL MEANING STRUCTURE PRECEDENT TRADITION Hugely important in substantive due process cases: deeply rooted in the

e tradition and conscience of the people NATURAL LAW CONSEQUENCES I. The Marshall Courts Nationalist Vision, 1801-1835 A. Marbury v. Madison, 1803: the power of judicial review the power to strike down federal statutes that violate the Constitution. Separation of Powers! (there is no Judicial review clause in the Constitution) B. Martin v. Hunters Lessee, 1816: the national Constitution and laws trump state laws and practices, and the Supreme Court was the final arbiter over all levels of government C. MCulloch v. Maryland, 1819: the Supreme Court must ultimately decide whether Congress exercise of authority was consistent with the Constitution, lest such matters become the source of endless and not peaceable contest among the political branches. (National Bank) II. States Rights, Slavery, and the Taney Court, 1836-1864 A. The new Court would give the states more leeway to regulate private interests than the Marshall Court had contemplated B. Dred Scott v. Sanford (1857): Chief Justice concluded that neither slaves nor their descendants, even if freed, could be considered citizens of any state for jurisdictional purposes III. The Labor Movement, Progressivism, and Rights for Woman and Blacks, 1896-1937 A. Beginning in the 1870s, Americas witnessed often violent strife between labor unions and management, first in the railroads and later across American industries. B. The Sherman Antitrust Act of 1891, expanded by the Clayton Act of 1914, subjected big business to unprecedented administrative and judicial scrutiny. The

Pure Food and Drug Act of 1906 created an inspection system for meats and other foodstuffs. C. Schenck v. United States (1919): some speech that is allowable in peacetime was not so during wartime. The requirement that the federal government had to show that, under the circumstances, the assertedly seditious words created a clear and present danger of national harm. D. Abrams v. United States (1919): Holmes endorsed the idea that the First Amendment protects the free trade in ideas as the best way to get at the truth E. United States v. Caroline Product Co. (1938): Footnote 4: whether prejudice against discrete and insular minorities may be a special condition, which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities, and which may call for a correspondingly more searching judicial inquiry. Chapter 2: An Introduction to Constitutional Decisionmaking A. The Fourteenth Amendment and Race: 1865-1912 1. Strauder v. West Virginia (1879): Court overturned a West Virginia statute excluding any but white male persons from juries 2. Plessy v. Ferguson (1896) challenged an 1890 Louisiana statue requiring railway companies to provide equal but separate accommodations for the white and colored races a. Justice Brown ruled that the Thirteenth Amendment was not violated because [a] statute which implies merely a legal distinction between the white and colored races a distinction which is founded in the color of the two races, and which must always exist so long as white men are distinguished from the other race by color has no tendency to destroy the legal equality of the two races, or reestablish a state of involuntary servitude b. There was segregation at the time that the 14th Amendment was enacted: reference to the established usages, customs and traditions of the people, and with a view to the promotion of their comfort, and the preservation of the public peace and good order. c. We consider the underlying fallacy of the plaintiffs argument to consist in the assumption that the enforced separation of the

two races stamps the colored race with a badge of inferiority. d. The argument assumes that social prejudices may be overcome by legislation, and that equal rights cannot be secured to the negro except by an enforced commingling of the two races B. The Road to Brown 1. Guinn v. United States (1915): NAACPs first amicus curaie brief Court struck down Oklahomas requirement of a literacy test for all voters, except those who were entitled to vote before 1866 (the year Congress assured former slaves the right to vote) or who were descended from persons entitled to vote before 1866 (the so-called grandfather clause) as inconsistent with the Fifteenth Amendment. 2. Missouri ex rel. Gaines v. Canada (1938): Missouri denied Lloyd Gaines admission to the state law school; the state argued that he could attend an outof-state law school and Missouri would provide him with financial aid. Court said the basic consideration is not as to what sort of opportunities other States provide, but as to what opportunities Missouri itself furnishes to white students and denies to negroes solely upon the ground of color. 3. Sipuel v. Board of Regents (1948): the Court struck down Oklahomas failure to provide legal education for its black citizens 4. Shelly v. Kramer (1948): the Fourteenth Amendment prohibited the judiciary from enforcing racially restrictive property covenants 5. Morgan v. Virginia (1946): states could not segregate interstate bus transportation UNDUE BURDEN 6. Sweatt v. Painter (1950): Heman Sweatt was denied admission to the University of Texas Law School, on the ground that the hastily assembled Prairie View Law School, a few rented rooms and two adjunct teachers, was a suitably equivalent facility. The Court ordered the University of Texas to admit Sweatt. C. The End of Separate but Equal 1. Brown v. Board of Education (1954) a. Does segregation of children in public schools solely on the basis of race, even thought the physical facilities and other tangible factors

may be equal, deprive the children of the minority group of equal educational opportunities? We believe that it does. b. To separate them from others of similar age and qualifications solely because of their race generates a feeling of inferiority as to their statues in the community that may affect their hearts and minds in a way unlikely ever to be undone. c. Segregation of white and colored children in public schools has a detrimental effect upon the colored children. The impact is greater when it has the sanction of the law; for the policy of separating the faces is usually interpreted as denoting the inferiority of the negro group. A sense of inferiority affects the motivation of a child to learn. Segregation with the sanction of law, therefore, has a tendency to retard the educational and mental development of negro children and to deprive them of some of the benefits they would receive in a racially integrated school system. d. Separate educational facilities are inherently unequal. 2. Bolling v. Sharpe (1954) Equal Protection applies to the federal government through the due process clause of the 5th Amendment. a. discrimination may be so unjustifiable as to be violative of due process. b. Segregation in public education is not reasonably related to any proper governmental objective, and thus it imposes on Negro children of the District of Columbia a burden that constitutes an arbitrary deprivation of their liberty in violation of the Due Process Clause. II. The Supreme Courts Role in Our Political System Stare decisis is usually the wise policy, because in most matters it is more important that the applicable rule of law be settled than that it be settled right . . . . But in cases involving the Federal Constitution, where correction through legislative action is practically impossible, this court has often overruled its earlier decisions. A. Bases for Judicial Review 1. Marbury v. Madison (1803) a. Marbury petitioned the Supreme Court for a writ of mandamus for the delivery of his

commission as justice of the peace in the District of Columbia. b. For Marbury to obtain this remedy, he had to show (1) that the Supreme Court had been vested with jurisdiction to adjudicate Marburys lawsuit; and (2) that Madison had in fact violated federal statutory or constitution rules when he withheld Marburys commission; and (3) that mandamus was an appropriate remedy to redress Marburys legal injury. i. Marbury had a right to the commission because all appropriate procedures were followed. ii. The judiciary could provide remedies against the executive when there is a specific duty to a particular person, but not when it is a political matter left to executive discretion. iii. The court can issue mandamus, but chose not to in this case. c. The act to establish the judicial courts of the United States authorizes the supreme court to issue writes of mandamus, in cases warranted by the principles and usages of law, to any courts appointed, or persons holding office, under the authority of the United States (Section 13 of the Judiciary Act) d. Thus, the particular phraseology of the constitution of the United States confirms and strengthens the principle, supposed to be essential to all written constitutions, that a law repugnant to the constitution is void; and that courts, as well as other departments, are bound by that instrument. 2. Notes on Marbury and the Power of Judicial Review a. Writing Marbury the way he did, Marshall was able to embarrass the President (by showing his Administration to be lawless), to assert judicial power over executive officials in appropriate cases (but without actually risking a Supreme Court order that Secretary of State Madison would probably have ignored), and to establish the authority of the Court to invalidate unconstitutional legislation (and proving the Courts impartiality as well, since it was Federalist legislation being struck down).

B. The Courts Supremacy in Constitutional Interpretation? 1. Cooper v. Aaron (1958) a. Claim by Arkansas that there is no duty on state officials to obey federal court orders resting on this Courts considered interpretation of the United States Constitution. b. the federal judiciary is supreme in the exposition of the law of the Constitution, and that principle has ever since been respected by this Court and the Country as a permanent and indispensable feature of our constitutional system. c. the interpretation 14th Amendment enunciated by this Court in the Brown case is the supreme law of the land and Art. VI of the Constitution makes it of binding effect on the States. d. No state legislator or executive or judicial officer can war against the Constitution without violating his undertaking to support it 2. Are Other Government Officials Required to Follow the Supreme Courts Interpretation of the Constitution? a. A central role for law is the authoritative settlement of what the rules are. b. It is better that things are settled finally than that they are settled correctly i. Reductio Arguments: Against the federal interest in uniformity, it should be remembered that where one will rules, there can be no freedom for the many. The imposition of uniformity is but another name or process for usurpation or tyranny. ii. Separation of Powers: Does the Constitutions separation of powers authorize or even require each branch to make its own constitutional determinations? iii. Ongoing Constitutional Dialogue: Deference to Supreme Court constitutional law might serve goals of consistency, stability, and reliance, but those goals are less important in public law than goals of justice, public debate and evolution. C. After Brown: Evaluation and Critique

1. From Brown II to Swann i. Watson v. Memphis (1963): the Court ordered immediate desegregation of municipal recreation facilities, holding Brown IIs formula inapplicable and further warning that Brown never contemplated that the concept of deliberate speed would countenance indefinite delay in elimination of racial barriers in schools. ii. Title IV authorized the Department of Justice to bring desegregation lawsuits, and Title VI prohibited racial discrimination in any program receiving federal financial assistance a. Swann v. Charlotte-Mecklenburg Board of Education (1971): approved a plan rezoning HS districts in ways that distributed black students to previously white schools, and required in addition that 300 African-American students be bused to nearly all-white Independence High School i. In a system with a history of segregation the need for remedial criteria of sufficient specificity to assure a school authoritys compliance with its constitutional duty warrants a presumption against schools that are substantially disproportionate in their racial composition ii. All things being equal, with no history of discrimination, it might well be desirable to assign pupils to schools nearest their homes. But all things are not equal in a system that has been deliberately constructed and maintained to enforce racial segregation. b. In Swanns Wake: Notes on Affirmative Remedies in Public Rights Litigation i. The traditional understanding of constitutional litigation is that an aggrieved plaintiff sues the government to redress her particular constitutional injury, through damages or a prohibitory injunction. The post-Brown understanding reflected in Swann is that a minority group sues to redress an

ongoing, pervasive constitutional injury, through an affirmative or even structural injunction. ii. A danger of the structural injunction and ongoing judicial involvement in the remedy phrase of Brown litigation is that the judge might be drawn into rulemaking and policymaking. 2. Drawing the Line: From Swann to Pitts i. Keyes v. School District No. 1 (1973): held that de facto racial desegregation (segregation resulting from purely private decisionmaking) in public schools does not violate the Equal Protection Clause; only de jure racial segregation (that attributable to the state) is actionable. ii. The constitutional baseline in such cases is that the local democratic process must be the primary decisionmaker; intervention from the judiciary can only be justified by extraordinary circumstances; and when the judiciary does intervene, it ought not intrude too deeply into local governance a. Milliken v. Bradley (1974) i. The Court held that busing between separate school districts is only justified when racially discriminatory acts of the state or local school districts, or of a single school district have been a substantial cause of interdistrict segregation ii. The Milliken decisions rested upon the principle that equitable remedies must be tailored to the violation. b. Freeman v. Pitts (1992) i. Returning schools to the control of local authorities at the earliest practicable date is essential to restore their true accountability in our governmental system. ii. It is the duty of the State and its subdivisions to ensure that such forces do not shape or control the policies of its

school systems. Where control lies, so too does responsibility iii. The Court of Appeals was mistaken in ruling that our opinion in Swann requires awkward, inconvenient, and even bizarre measures to achieve racial balance in student assignments in the late phases of carrying out a decree when the imbalance is attributable neither to the prior de jure system nor to a later violation by the school district but rather to independent demographic forces. iv. Racial balance is not to be achieved for its own sake. It is to be pursued when racial imbalance has been caused by a constitutional violation. c. Note on the Future of Brown I and II i. Everything is connected with state (educational and housing) policies Against this approach is the argument that ongoing judicial control of local school systems is inconsistent with federalism and separation of powers and, partly for that reason, a sisyphesian task for courts. Another counterargument is that white flight was caused by court-ordered busing rather than by the school systems decisions, but this link is subject to dispute, as we will see ii. Integration as a constitutional mandate? The state could operate a diverse assortment of institutions including historically black institutions open to all on a raceneutral basis, but with traditions and programs that might disproportionately appeal to one race or another So long as the state is neutral, there is nothing constitutionally or pedagogically wrong with singlerace public schools

3. Has Brown Made a Difference? A Good Difference? i. Numerous empirical studies have evaluated the effect of school desegregation on schoolchildren: none showed any harm to the educational experience of white schoolchildren, and many showed a statistically significant and positive effect on the educational experience of black schoolchildren. ii. The best results for students of color have come when they attend schools that are not only racially integrated, but predominantly middle class. iii. What is not contested is that American public schools have partially resegregated. iv. Desegregation decrees have been undermined by white flight a. Parents Involved in Community Schools v. Seattle School District No. 1. (2007) b. A Note on Constitutional Law and Legal Education III. Brown and Theories of Constitutional Decisionmaking A. Original Meaning Theories of Judicial Review 1. Constitutional Text - Text is the most relevant evidence when interpreting any legal documents a. Clause-Bound Textualism what is the plain meaning i. The key problem with textualism as a constitutional methodology: the text may not be clear ii. Inclusion unius est exclusion alterius inclusion of one thing implies exclusion of all others iii. An original meaning person would construe terms in accord with settled legal or constitutional meanings they had when added to the Constitution b. Holistic Interpretation read the provision in light of the whole document i. Also, a judge should not construe one constitutional provision in a way plainly inconsistent with another current provision or its underlying assumptions c. Structuralism read the text in light of overall constitutional principles

i. The broader point is that the original meanings of the Constitution of 1787 and the Bill of Rights must, as a matter of formal law, be updated by reference to the transformations of the Reconstruction Amendments 2. Original Context for Constitutional Text a. Robert H. Bork, The Tempting of America: The Political Seduction of the Law i. In Brown, the Court refused to admit forthrightly, that much of the originalist evidence cut against its holding. The opinions reliance on social science evidence about the alleged impact of segregation on black childrens selfesteem was nonsense. ii. What the ratifiers understood themselves to be enacting must be taken to be what the public of that time would have understood the words to mean. iii. Law is a public act the original understanding is thus manifested in the words used and in secondary materials, such as debates at conventions, public discussion, newspaper articles, dictionaries in use at the time, and the like. b. Problem 2-1: Is Brown Consistent with the Original Meaning of the Fourteenth Amendment? i. Originalist evidence that Brown was wrong . Segregationist attitudes and laws in or around 1868 . Drafting history and debates . Post-amendment practice and construction ii. Originalist evidence that Brown was right . State recognition that segregated schools violated the 14th Amendment . Congressional recognition that school segregation violated the 14th Amendment . The clear error of Plessy

iii. Methodological problems with original meaning scholarship . The problem of the counterfactual . Aggregation problems . Level of generality problems c. Note on Pragmatic Arguments for Original Meaning B. Legal Process Theories of Judicial Review not just a law of rules, but rather an institutional and procedural structure by which recognizable legal rules are made and changed in an orderly way 1. Neutral Principles and representation-Reinforcement Theory a. John Hart Ely, Democracy and Distrust: A Theory of Judicial Review i. The original Constitution was principally, indeed, overwhelmingly, dedicated to concerns of process and structure and not to the identification and preservation of specific substantive values ii. Extension of the franchise to groups previously excluded has therefore been the dominant theme of our constitutional development since the 14th Amendment, and it pursues both of the broad constitutional themes we have observed from the beginning: the achievement of a political proves open to all on an equal basis and a consequent enforcement of the representatives duty of equal concern and respect to minorities and majorities alike iii. The Constitution has proceeded from the quite sensible assumption that an effective majority will not inordinately threaten its own rights, and has sought to assure that such a majority not systematically treat others less well than it treats itself Chapter 3: The Constitution and Racial Discrimination 1. Race and the Equal Protection Clause: The Equal Protection Clause does not mention racial discrimination. Its context and history, however, establish that it was intended to target discrimination against African Americans.

2. Current doctrine concerning discrimination against African Americans is derived in part from two cases involving Asian Americans. These cases articulated what has become known as the strict scrutiny approach to racial discrimination claims. a. Hirabayashi v. United States (1943) unanimously upheld the criminal conviction of an American citizen for refusing to obey a curfew order requiring all persons of Japanese ancestry to remain in their homes from 8:00pm to 6:00am daily. b. Korematsu v. United States (1944), by a 6-3 vote, upheld the criminal conviction of an American citizen who refused to leave the West Coast and be relocated. 3. Second Reconstruction the process whereby the state would not only recognize the full citizenship of a class of Americans who had been treated as second-class citizens by the state and stigmatized by racism, but would also attack the vestiges and effects of apartheid through an affirmative remedial program. a. Politics of recognition Brown I b. Politics of remediation Brown II and Green I. Racial Classifications After Brown A. Facial Racial Classifications that Disadvantage Minorities or Evidence Racial Hostility 1. Loving v. Virginia (1967) Warren opinion a. A mixed-race couple was prosecuted for violating the state anti-miscegenation law. They pleaded guilty in 1959, and the Virginia trial judge imposed a one-year jail sentence, but suspended it for 25 years on condition that the Lovings leave Virginia and not return together for 25 years. REVERSED. b. The state relied on Naim v. Naim (1955), in which the States legitimate purposes were to preseve the racial integrity of its citizens, and to prevent the corruption of blood, a mongrel breed of citizens, and the obliteration of racial pride, obviously an endorsement of the doctrine of White Supremacy. c. In the case at bar, however, we deal with statutes containing racial classifications, and the fact of equal application does not immunize

the statute from the very heavy burden of justification which the Fourteenth Amendment has traditionally required of state statutes drawn according to race. d. We have rejected the proposition that the debates in the Thirty-ninth Congress or in the state legislatures which ratified the Fourteenth Amendment supported the theory advanced by the State, that the requirement of equal protection of the laws is satisfied by penal laws defining offenses based on racial classifications so long as white and Negro participants in the offense were similarly punished. e. The fact that Virginia prohibits only interracial marriages involving white persons demonstrates that the racial classifications must stand on their own justification, as measures designed to maintain White Supremacy. We have consistently denied the constitutionality of measures which restrict the rights of citizens on account of race. There can be no doubt that restricting the freedom to marry solely because of racial classifications violates the central meaning of the Equal Protection Clause. f. These statutes also deprive the Lovings of liberty without due process of law in violation of the Due Process Clause of the Fourteenth Amendment. 2. Notes on Loving and Government Actions Classifying by Race a. The state faced at least three hurdles in defending the laws involved in Loving i. If the statutes embodies racial discrimination, Brown would subject them to close judicial examination under the Equal Protection Clause ii. Even if the statutes were not racially discriminatory, the state acknowledged that they violated equal protection of no rational basis could be discerned for the distinctions among persons found in them. iii. By burdening the liberty to marry, the statutes potentially violated the Due Process Clause.

b. Virginia contended that its statutes were not subject to close constitutional examination because persons of all races were equally disadvantaged. This argument attempts to distinguish statutes that classify on the basis of race from statutes that discriminate on the basis of race. c. In Palmore v. Sidoti, a judge removed a child from the custody of her (white) mother when she married a black man. The state judge said that, despite improvement in race relations, it was inevitable that the girl would suffer social stigmatization if she lived in the home of a racially mixed marriage. A unanimous Supreme Court held that the judges order violated equal protection. d. The Loving opinion emphasized the suspect classification, which had the effect of harming a subordinated class by reinforcing the ideology of white supremacy. e. Racial classifications are subject to the most exacting scrutiny; to pass constitutional muster, they must be justified by a compelling governmental interest and must be necessaryto the accomplishment of their legitimate purpose f. The antidiscrimination principle of Brown and its progeny has been implemented most broadly not by judges under the Constitution, but by Congress under its authority to pass civil rights legislation. g. The Civil Rights Act of 1964 i. Title VI: No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance ii. Title VII forbids certain employers from engaging in employment discrimination on account of race and other specified criteria, such as gender. 3. Problems Involving Racial Classifications in Law Enforcement and Adoption

B. Facially Neutral Classifications (Discriminatory Intent and Effect) 1. Yick Wo. v. Hopkins (1886) a. In 1880, San Francisco adopted an ordinance that stated that a laundry could not operate in a building made of wood without consent of the Board of Supervisors b. There were about 310 laundries in SF in wooden building at the time. All of the approximately 200 Chinese who applied for permits had been denied. All but one of the 80 or so permit applications of non-Chinese were accepted. c. The ordinances in actual operation, and the facts shown establish an administration directed so exclusively against a particular class of persons as to warrant and require the conclusion that, whatever may have been the intent of the ordinances as adopted, they are applied by the public authorities charged with their administration, and thus representing the State itself, with a mind so unequal and oppressive as to amount to a practical denial by the State of that equal protection of the laws which is secured to the petitions, as to all other persons, by the broad and benign provisions of the 14th Amendment. d. Thought the law itself be fair on its face and impartial in appearance, yet, if it is applied and administered by public authority with an evil eye and an unequal hand, so as practically to make unjust and illegal discriminations between persons in similar circumstances, material to their rights, the denial of equal justice is still within the prohibition of the Constitution. e. No reason whatever, except the will of the supervisors, is assigned why they should not be permitted to carry on, in the accustomed manner, their harmless and useful occupation, on which they depend of a livelihood. f. No reason for the discrimination exists except hostility to the race and nationality to which the petitioners belong, and which in the eye of the law is not justified. The discrimination is, therefore, illegal, and the public administration

which enforces it is a denial of the equal protection of the laws and a violation of the 14th Amendment of the Constitution. 2. Notes on Yick Wo and Discriminatory Intent a. There has been a longstanding debate throughout American constitutional history about whether enactment of legislation for bad reasons, standing alone, could justify judicial invalidation. b. Gomillion v. Lightfoot (1960): the Court considered an Alabama statute that altered the boundaries of the City of Tuskegee from the shape of a square to an irregular 28-sided figure, removing from the city almost all black voters, but no white voters. the Alabama Legislature has not merely redrawn the Tuskegee city limits with incidental inconvenience to the petitioners; it is more accurate to say that it has deprived the petitioners of the municipal franchise and consequent rights and to that end it has incidentally changes the citys boundaries. EFFECT IS ENOUGH c. Palmer v. Thompson (1971): Following a lawsuit in which Jackson, MSs segregated swimming pools were declared unconstitutional, the city simply closed down the pools. It is difficult or impossible for any court to determine the sole or dominant motivation behind the choices of a group of legislators. There is an element of futility in a judicial attempt to invalidate a law because of the bad motives of its supporters. d. Hawkins v. Town of Shaw (1971): Equal protection of the laws means more than merely the absence of governmental action designed to discriminate; we now firmly recognize that the arbitrary quality of thoughtlessness can be as disastrous and unfair to private rights and the public interest as the perversity of a willful scheme. e. Fletcher and Palumer suggest at least three reasons why courts should not inquire whether the adoption of such statutes was discriminatorily motivated: i. Deference to legislature

ii. Evidentiary problems iii. Remedial problems 3. Washington v. Davis (1976) a. Applicants for the D.C. police department sued, alleging that the departments hiring practices were racially discriminatory because they included a written personnel test, Test 21, that operated to exclude a disproportionate number of African-American applicants. b. The court of appeals held that Test 21 violated the 15th Amendment because a far greater proportion of African Americans than whites failed the test and defendants had not shown that the test was an adequate measure of job performance. c. An invidious discriminatory purpose may often be inferred from the totality of the relevant facts, including the fact, if it is true, that the law bears more heavily on one race than another. In various circumstances the discrimination is very difficult to explain on nonracial grounds. Disproportionate impact is not irrelevant, but it is not the sole touchstone of an invidious racial discrimination forbidden by the Constitution. d. Nor on the facts of the case before us would the disproportionate impact of Test 21 warrant the conclusion that it is a purposeful device to discriminate against Negroes and hence an infringement of the constitutional rights of respondents as well as other black applicants. e. The District Court correctly held that the affirmative efforts of the Metropolitan Police Department to recruit black officers, the changing racial composition of the recruit classes and of the force in general, and the relationship of the test to the training program negated an inference that the Department discriminated on the basis of race. f. A rule that a statute designed to serve neutral ends is nevertheless invalid, absent compelling justification, if in practice it benefits or burdens on race more than another would be far reaching and would raise serious questions about, and perhaps invalidate, a whole range of tax, welfare, public service, regulatory, and

licensing statutes that may be more burdensome to the poor and to the average black than to the more affluent white. g. However, in our view, extension of the rule beyond those areas where it is already applicable by reason of statute, such as in the field of public employment, should await legislative prescription. 4. Notes on Davis and Proving Discriminatory Intent C. Concluding Thoughts About Statues that Have Discriminatory Effects a. Statutes that on their face take race into account are subject to strict scrutiny, even if they equally disadvantage whites and blacks, at least so long as the use of race can be traced to hostility toward a racial minority or the view that the minority is inferior. b. Facially neutral statutes that have a disparate impact upon persons of color are subject to strict scrutiny only if Davis discriminatory intent can be shown; without that showing, such statutes are subject only to rational-basis review, the most minimal form of equal protection scrutiny. c. Foreseeable harmful effects upon a protected minority are not unconstitutional so long as the decision was made in spite of, not because of, them. d. Racially discriminatory motives result in harms to individuals that would not occur if the political process were cleansed of those motives. 1. Charles Lawrence, III, The Id, the Ego, and Equal Protection: Reckoning with Unconscious Racism a. The Court thinks of facially neutral actions as either (1) intentionally and unconstitutionally or (2) unintentionally and constitutionally discriminatory. b. Traditional notions of intent do not reflect the fact that decisions about racial matters are influenced in large part by factors that can be characterized as neither intentional nor unintentional. A large part of the behavior that produces racial discrimination is influenced by unconscious racial motivation.

c. Freudian theory states that the human mind defends itself against the discomfort of guilt by denying or refusing to recognize those ideas, wishes, and beliefs that conflict with what the individual has learned is good or right. d. The theory of cognitive psychology states that the culture transmits certain beliefs and preferences. e. Equal protection doctrine must find a way to come to grips with unconscious racism. 2. Problems Concerning Discriminatory Intent II. The Affirmative Action Controversy: Benign Racial Classifications or Reverse Discrimination? A. An Introduction to the Debate 1. Regents of the University of California v. Bakke (1978) a. UC-Davis Med School reserved 16 places in its class for minority group members. A rejected white applicant sued. The policy was struck down but for varying reasons no consensus on the constitutional issue. i. Nature of Discrimination and Level of Scrutiny the creation of intermediate scrutiny ii. Applying Strict Scrutiny: Justice Powell the Davis plan failed to be a constitutionally acceptable means of promoting a diverse student body iii. Applying Intermediate Scrutiny: The Brennan Four The objective is sufficiently important to justify the use of race-conscious admissions programs where there is a sound basis of the concluding that minority underrepresentation is substantial and chronic. 2. Thomas Sowell, Civil Rights: Rhetoric or Reality? a. Many Americans who supported the initial thrust of civil rights later felt betrayed as the original concept of equal individual opportunity evolved toward the concept of equal group results b. Those blacks with less education and less job experience the truly disadvantaged have been falling farther and farther behind their white counterparts under affirmative action,

during the very same years when blacks with more education and job experience have been advancing economically, both absolutely and relative to their white counterparts. c. Affirmative action hiring pressures make it costly to have no minority employees, but continuing affirmative action pressures at the promotion and discharge phases also make it costly to have minority employees who do not work out well. The net effect is to increase the demand for highly qualified minority employees while decreasing the demand for less qualified minority employees or for those without a sufficient track record to reassure employers. 3. Patricia Williams, Metro Broadcasting, Inc. v. FCC: Regrouping in Singular Times a. The evocation of a corrupt system of favoritism seesawing between the deserving and the preferred, caters to an assumption that those who are included by the grace of affirmative action systems are therefore undeserving. I want to underscore that I do mean that it caters to, rather than creates, and assumption of inferiority, for the assumption of inferiority has a life that precedes and, unfortunately, will probably outlive affirmative action programs. b. The question, then, becomes not how to undo the inclusionary affirmative action programs, but how to undo the stigma of inferiorty that resides not merely in the label or designation of race, but that, according to our national symbology, is actually embodied in black presence. c. Racial discrimination is powerful precisely because of its frequent invisibility, its felt neutrality. 4. Notes on Specific Arguments in the Affirmative Action Debate a. Formal versus Functional Equality b. Positive Values of Affirmative Action c. Affirmative Action, Allocation Politics, and the New Ethnicity B. The Evolution of Modern Case Law, 1980-1995 1. Fullilove v. Klutznick (1980)

a. Six Justices voted to uphold against a facial challenge a 1977 statute providing federal funds to state and local government building projects that required that, absent an administrative waiver, at least 10% of the money had to be spend procuring goods or services from minority business enterprises (MBEs), which were defined as businesses owned controlled by citizens of the United States who are Negroes, Spanish-speaking, Orientals, Indians, Eskimos, and Aleuts. i. Marshall +2 concluded that the statute survived the intermediate scrutiny approach they adopted in Bakke ii. Berger +2 stated that the use of racial or ethnic criteria, even in a remedial context, calls for close examination. He concluded that the objective of the statute which he defined as attacking the perpetuation of the effects of past intentional discrimination was constitutionally permissible. iii. Powell explained that the statute survived his approach in Bakke because it serves the compelling government interest in eradicating the continuing effects of past discrimination identified by Congress. b. Stewart and Rehnquist dissented, contending that the Constitution requires governmental colorblindness. Stevens also dissented. 2. Wygant v. Jackson Board of Education (1986) a. The Court struck down a collective bargaining agreement between a public school board and a teachers union that provided that layoffs be made on a seniority basis except that at no time will there be a greater percentage of minority personnel laid off than the current percentage of minority personnel employed at the time of the layoff b. Powell +3 rejected the school districts major defense that the protections ensured minority students with role models as having no logical stopping point c. He also rejected the contention that the school district was authorized to remedy societal

discrimination, as opposed to its own illegal practices. 3. City of Richmond v. J.A. Croson Co. (1989) OConnor Opinion a. Richmond had a Minority Business Utilization Plan, requiring non-minority prime contractors receiving city construction contracts to subcontract at least 30% of the dollar amount of the contract to one or more Minority Business Enterprises (MBE), for the purpose of promoting wider participation by minority business enterprises in the construction of public projects. b. There was no direct evidence of the race discrimination on the part of the city in letting contracts or any evidence that the citys prime contractors had discriminated against minorityowned subcontractors, and opponents expressed concern that there were too few MBEs in the Richmond area to satisfy the 30% requirement. c. The Richmond Plan denies certain citizens the opportunity to compete for a fixed percentage of public contracts based solely upon their race. d. There is simply no way of determining what classifications are benign or remedial and what classifications are in fact motivated by illegitimate notions of racial inferiority or simple racial politics. Indeed, the purpose of strict scrutiny is to smoke out illegitimate uses of race by assuring that the legislative body is pursuing a goal important enough to warrant use of a highly suspect tool. e. Like the role model theory employed in Wygant, a generalized assertion that there has been past discrimination in an entire industry provides no guidance for a legislative body to determine the precise scope of the injury it seeks to remedy. f. While there is no doubt that the sorry history of both private and public discrimination in this country has contributed to a lack of opportunities for black entrepreneurs, this observation, standing alone, cannot justify a rigid racial quota in the awarding of public

contracts in Richmond, Virginia. An amorphous claim that there has been in the past discrimination in a particular industry cannot justify the use of an unyielding racial quota. g. If a 30% set-aside was narrowly tailored to compensate black contractors for past discrimination, one may legitimately ask why they are forced to share this discrimination, one may legitimately ask why they are forced to share this remedial relief with an Aleut citizen who moves to Richmond tomorrow? The gross overinclusiveness of Richmonds racial preference strongly impugns the citys claim of remedial motivation. h. It is almost impossible to assess whether the Richmond Plan is narrowly tailored to remedy prior discrimination since it is not linked to identify discrimination in any way. i. First, there does not appear to have been any consideration of the use of raceneutral means to increase minority business participation in city contracting. ii. Second, the 30% quota cannot be said to be narrowly tailored to any goal, except perhaps outright racial balancing. i. Since the city must already consider bids and waivers on a case-by-case basis, it is difficult to see the need for a rigid numerical quota. j. STEVENS, concurring: I do not agree that a governmental decision that rests on a racial classification is never permissible except as a remedy for a past wrong. I do, however, agree with the Courts explanation of why the Richmond ordinance cannot be justified as a remedy for past discrimination. k. KENNEDY, concurring: The process by which a law that is an equal protection violation when enacted by a State becomes transformed to an equal protection guarantee when enacted by Congress poses a difficult proposition for me. l. MARSHALL, dissenting: argues that the Richmond Plan passes the intermediate scrutiny he would apply to affirmative action measures. 4. Metro Broadcasting, Inc., v. Federal Communications Commn (1990)

a. The case concerned federal race-based preferences for increasing minority ownership of television and radio stations. Minority applicants for new broadcast licenses would receive a preference, and a limited number of existing stations could be transferred only to minority-controlled firms. b. Brennan, for the majority, upheld these measures, stating that Fullilove had not imposed strict scrutiny upon the federal program challenged there, and then adopted intermediate scrutiny. c. The majority stressed that intermediate scrutiny was appropriate regardless of whether the federal classification was remedial or was instead a forward-looking effort to diversify society. The majority concluded that the interest in enhancing broadcast diversity was an important governmental objective because the diversity of views and information on the airwaves serves important First Amendment values. d. OConnor, for the dissent, asserted that strict scrutiny applied to the FCC policies. In the circumstances the only interest that could be considered compelling is remedying the effects of identified racial discrimination, an interest that the FCC had conceded could not be shown. e. She found the means chosen to effectuate the governments interest equally infirm because they impermissibly equated race with belief and behavior. 5. Adarand Constructors, Inc. v. Pena (1995) OConnor opinion a. Mountain Gravel (contractor) chose Gonzales Construction Co instead of Adarand Contractors (the low bid), because Mountain Gravel would receive additional compensation from the federal government for hiring subcontractors certified as small businesses controlled by socially and economically disadvantaged persons b. We hold today that all racial classifications, imposed by whatever federal, state, or local governmental actor, must be analyzed by a

reviewing court under strict scrutiny. Such classifications are constitutional only if they are narrowly tailored measures that further compelling governmental interests. c. The principle of consistency simply means that whenever the government treats any person unequally because of his or her race, that person has suffered an injury that falls squarely within the language and spirit of the Constitutions guarantee of equal protection. The application of strict scrutiny, in turn, determines whether a compelling governmental interest justifies the infliction of that injury. d. SCALIA concurring opinion: Government can never have a compelling interest in discriminating on the basis race in order to make up for past racial discrimination in the opposite direction. To pursue the concept of racial entitlement is to reinforce and preserve for future mischief the way of thinking that produced race slavery, race privilege and race hatred. e. THOMAS concurring opinion: Government cannot make us equal. These programs undermine the moral basis of the equal protection principle. Such classifications ultimately have a destructive impact on the individual and our society. These programs stamp minorities with a badge of inferiority and may cause them to develop dependencies or to adopt an attitude that they are entitled to preferences f. STEVENS dissent: Remedial race-based preferences demonstrate a desire to foster equality in society. An attempt by the majority to exclude members of a minority race from a regulated market is fundamentally different from a subsidy that enables a relatively small group of newcomers to enter that market. 6. Notes on Croson and Adarand a. Croson provides that all state and local racial classifications are subject to strict scrutiny. b. The Constitution contains no Equal Protection Clause applicable to the federal governments

C. Revisiting the Diversity Rationale and Admission to State University Professional Schools 1. Grutter v. Bollinger (2003) a. The hallmark of UM Law School admissions policy is its focus on academic ability coupled with a flexible assessment of applicants talents, experiences, and potential to contribute to the learning of those around them. b. The policy requires admissions officials to look beyond grades and test scores to other critera that are important to the Law Schools educational objectives. The policy reaffirms the Law Schools longstanding commitment to one particular type of diversity, that is, racial and ethnic diversity with special reference to the inclusion of students from groups which have been historically discriminated against, like African-Americans, Hispanics and Native Americans, who without this commitment might not be represented in our student body in meaningful numbers. c. The admissions staff was not directed to admit a particular percentage or number of minority students, but rather to consider an applicants race along with all other factors. d. We find that the Law Schools admissions program bears the hallmarks of a narrowly tailored plan. We are satisfied that the Law Schools admission program does not operate as a quota. e. Here, the Law School engages in a highly individualized, holistic review of each applicants file, giving serious consideration to all the ways an applicant might contribute to a diverse educational environment. The Law School awards no mechanical, predetermined diversity bonuses based on race or ethnicity. f. What is more, the Law School actually gives substantial weight to diversity factors besides race. The Law School frequently accepts nonminority applicants with grades and test scores lower than underrepresented minority applicants (and other nonminority applicants) who are rejected.

g. Because the Law School considers all pertinent elements of diversity, it can (and does) select nonminority applicants who have greater potential to enhance student body diversity over underrepresented minority applicants. 2. Gratz v. Bollinger (2003) a. Out of a scheme with 150 total points and in which 100 points guaranteed admission, the program automatically awarded 20 points to any underrepresented minority applicant. The Court struck down the program as failing to provide the individualized evaluation of each applicant required by Grutter and the Powell opinion in Bakke b. OConnor concurred, stressing the differences between the mechanical, nonindividualized process for undergraduate admissions and the individualized approach her majority opinion approved in the law-school case. D. Student Assignment in K-12 Public Education 1. Parents Involved in Community Schools v. Seattle School District No. 1 (2007). Roberts opinion a. The school districts in these cases voluntarily adopted student assignment plans that rely upon race to determine which public schools certain children may attend. In each case, the school district relies upon an individual students race in assigning that student to a particular school. Parents of students denied assignment to particular schools under these plans solely because of their race brought suit, contending that allocating children to different public schools on the basis of race violated the 14th Amendment guarantee of equal protection. b. The Court of Appeals upheld the plans. Supreme Court reversed. c. The question is whether a public school that had not operated legally segregated schools or has been found to be unitary may choose to classify students by race and rely upon that classification in making school assignments. d. This must be reviewed under strict scrutiny. The school districts must demonstrate that the use of individual racial classifications in the assignment plans here under review is

e.

f.

g.

h.

i.

j.

k.

narrowly tailored to achieve a compelling government interest In the present cases, race is not considered as part of a broader effort to achieve exposure to widely diverse people, cultures, ideas, and viewpoints; race for some students is determinative standing alone. Seattle contends that its use of race helps to reduce racial concentration in schools and to ensure that racially concentrated housing patterns do not prevent nonwhite students from having access to the most desirable schools. Jefferson County has articulated a similar goal, phrasing its interest in terms of educating its students in a racially integrated environment. The plans are tied to each districts specific racial demographics, rather than to any pedagogic concept of the level of diversity needed to obtain the asserted educational benefits. Working backward to achieve a particular type of racial balance, rather than working forward from some demonstration of the level of diversity that provides the purported benefits, is a fatal flaw under our existing precedent. The districts have also failed to show that they considered methods other than explicit racial classifications to achieve their stated goals. Narrow tailoring requires serious, good faith consideration of workable race-neutral alternatives. The school districts in these cases have not carried the heavy burden of demonstrating that we should allow this once gain even for very different reasons. For schools that have never segregated on the basis of race, such as Seattle, or that have removed the vestiges of past segregation, such as Jefferson County, the way to achieve a system of determining admission to the public schools on a nonracial basis is to stop assigning students on a racial basis. KENNEDY, concurring: The school district has failed to explain why, in a district composed of a diversity of races, with fewer than half of the

students classified as white, it has employed the crude racial categories of white and non-white as the basis for its assignment decisions. As the district fails to account for the classification system it has chosen, despite what appears to be its ill fit, Seattle has not shown its plan to be narrowly tailored to achieve its own ends; and thus it fails to pass strict scrutiny. In the administration of public schools by the state and local authorities it is permissible to consider the racial makeup of schools and to adopt general policies to encourage a diverse student body, one aspect of which is its racial composition. E. Facially Neutral Classifications Designed to Benefit Racial Minorities 1. Introduction a. Even a facially neutral classification that disproportionately benefits racial minorities usually benefits a greater absolute number of whites. b. When legislators adopt such a statute, it is easy to view them as being motivated by a desire to help a class of people not defined by race (the poor), and not being motivated by a desire to harm anyone. c. In some situations, at least, it is possible to craft the legislation in a way that helps a larger aggregate number of minorities than whites. 2. The Context of Electoral Redistricting a. Shaw v. Reno (1993) i. When North Carolina redistricted its Congressional districts, they created a second majority-black district. ii. Strict scrutiny applied to this redistricting. What appellants object to is redistricting legislation that is so extremely irregular on its face that it rationally can be viewed only has an effort to segregate the races for purposes of voting, without regard for traditional districting principles and without sufficiently compelling justification. iii. When a district obviously is created solely to effectuate the perceived

common interests of one racial group, elected officials are more likely to believe that their primary obligation is to represent only the members of that group, rather than their constituency as a whole. This is altogether antithetical to our system of representative democracy. iv. DISSENT: Redistricting is inherently partisan, with politically salient factors such as race inevitably taken into account. Electoral districting calls for decisions that nearly always require some consideration of race for legitimate reasons where there is a racially mixed population. Chapter 4: Sex and Gender Discrimination and Other Equal
Protection Concerns

I. Minimal Equal Protection Scrutiny (The Rational-Basis Test) A. Railway Express Agency, Inc. v. New York (1949) 1. Section 124 of the Traffic Regulations of the City of New York states: No person shall operate or cause to be operated, in or upon any street an advertising vehicle 2. The Court of Special Sessions concluded that advertising on vehicles using the streets of NYC constitutes a distraction to vehicle drivers and to pedestrians alike and therefore affects the safety of the public in the use of the streets. 3. It is pointed out that the regulation draws the line between advertisements of products sold by the owner of the truck and general advertisements. 4. We cannot say that the judgment is not an allowable one. Yet if it is, the classification has relation to the purpose for which it is made and does not contain the kind of discrimination against which the Equal Protection Clause affords protection. 5. It is no requirement of equal protection that all evils of the same genus be eradicated or none at all. 6. JACKSON, concurring: Where individuals contribute to an evil or danger in the same way and to the same degree, may those who do so for hire be prohibited, while those who do so for their own commercial ends but not for hire be allowed to continue? There is a real difference between doing in self-interest and doing for hire, so that it is one thing to tolerate action from those who act on their own and it is

another thing to permit the same action to be promoted for a price. B. Federal Communications Commn v. Beach Communications, Inc (1993) 1. The Court upheld a federal statute requiring cable television systems to be franchised by local governmental authorities, but exempting facilities serving only subscribers in one of more multiple unit dwellings under common ownership, control, or management. 2. Whether embodied in the 14th Amendment or inferred from the 5th, equal protection is not a license for courts to judge the wisdom, fairness, or logic of legislative choices. Where there are plausible reasons for Congress action, our inquiry is at an end. This standard of review is a paradigm of judicial restraint. C. Note on the Courts Application of Heightened Scrutiny to Non-Race Classifications: A Double Standard? 1. Alienage: In Graham v. Richardson (1971), the Court held that states could not, without substantial justification, deny welfare benefits to noncitizens lawfully present in the country. The Court has attempted to apply a pragmatic distinction between state statutes that are economically protectionist that reserve economic benefits for citizens and ones that are deemed to be rationally related to reserving sovereign functions for citizens. 2. Illegitimacy: The Court has rejected the argument that statutes penalizing a child for the status of her parents are a justified means of encouraging marriage. The Court has held that a state may not categorically deny intestate inheritance to children born out of marriage, but may limit intestate inheritance to persons who, during the life of the deceased, were adjudged by a state court to be his children. 3. Age: the Court has been unwilling to apply any form of heightened scrutiny to age classifications. More recently, the Court found no equal protection violation in a municipal ordinance that allowed only persons between the ages of fourteen and eighteen to be admitted into certain dance halls. D. United States Department of Agriculture v. Moreno (1973) 1. The Food Stamp Act of 1964, amended in 1971, excluded from participation any household

containing an individual unrelated to any other member of the household. 2. The Court held that the statutory classification (households of related persons versus households containing one or more unrelated persons) is clearly irrelevant to the stated purposes of the Act, which were to assure minimal nutrition and alleviate hunger, as well as distribution of agricultural surpluses. II. Sex- and Gender-Based Discrimination A. Women Outside the Constitution: The Traditional Jurisprudence of Difference 1. Bradwell v. Illinois (1873) a. Myra Bradwells application for a license to practice law had been denied by the Illinois Supreme Court solely because she was a married woman. b. Admission to the bar of a state is not one of the privileges and immunities of United States citizenship, the 14th Amendment did not secure the asserted right either. 2. In Minor v. Happersett (1874), the Supreme Court ruled that the right to vote was not among the privileges and immunities of United States citizenship. 3. When Oregons law setting maximum hours for women was challenged by employers in Muller v. Oregon (1908), the Supreme Court unanimously upheld the law, based upon the states important interest in protecting women. 4. Accepting a 19th Amendment argument made by employers, the Supreme Court in Adkins v. Childrens Hospital (1923), struck down a federal statute fixing minimum wages for women and children in the District of Columbia. OVERRULED BY West Coast Hotel v. Parrish (1937) 5. in Goesaert v. Cleary (1948), the Court upheld a statute allowing a woman to work as a bartender only if she was the wife or daughter of the bar owner. B. The Jurisprudence of Equal Treatment and Heightened Scrutiny of Sex-Based Distinctions a. The Supreme Court held in Hoyt v. Florida (19610, that an opt-in system for women on juries did not clearly discriminate against women in the way the Court had criticized in Ballard. Hoyt cast into bold relief the fact that

the Supreme Court had never struck down a sex discrimination as unconstitutional. 1. Wendy Webster Williams, Equalitys Riddle: Pregnancy and the Equal Treatment/Special Treatment Debate a. The first proposition essential to this analysis is that sex-based generalizations are generally impermissible whether derived from physical differences such as size and strength, form cultural role assignments such as breadwinner or homemaker, or from some combination of innate and ascribe characteristics, such as the greater longevity of the average woman compared to the average man. b. The second essential proposition is that laws and rules which do not overtly classify on the basis of sex, but which have a disproportionately negative effect upon one sex, warrant, under appropriate circumstances, placing a burden of justification upon the party defending the law or rule in court. 2. From Rational Basis to Intermediate Scrutiny (and Beyond?) in Gender Cases: The ACLU lawyers maintained that sex was a suspect classification for the same reasons race was: Both were natural traits that the dominant culture has treated as a badge of inferiority and stigmatized legally, based upon inaccurate stereotypes about the group defined by the trait. a. Reed v. Reed (1971) i. Idaho statutes provided a tie-breaker preference for males over females of equal degrees of relationship to be appointed to administer an estate. A unanimous Supreme Court struck down the statute under the rational basis standard. ii. The state relied upon the justification of administrative convenience: In general, men are more likely than women to have the sophistication in business affairs needed to administer an estate, and by eliminating one area of controversy where two or more persons seek to be appointed administrator, probate courts avoid time-consuming issues.

iii. Rejecting this argument, the Court stated: To give a mandatory preference to members of either sex over members of the other, merely to accomplish the elimination of hearings on the merits, is to make the very kind of arbitrary legislative choice forbidden by the Equal Protection Clause. b. Frontiero v. Richardson (1973) i. A serviceman could claim his wife as a dependent without regard to whether she was in face dependent upon him for any part of her support. A servicewoman, on the other hand, could not claim her husband as a dependent under these programs unless he was in fact dependent upon her for over one-half of his support. The Supreme Court reversed. ii. Women still face pervasive, although at times ore subtle, discrimination in our educational institutions, in the job market and, perhaps most conspicuously, in the political arena. iii. Moreover, since sex, like race and national origin, is an immutable characteristic determined solely by the accident of birth, the imposition of special disabilities upon the members of a particular sex because of their sex would seem to violate the basic concept of our system that legal burdens should bear some relationship to individual responsibility. iv. Applying the analysis mandated by that stricter standard of review, it is clear that the statutory scheme now before us is constitutionally invalid. c. the Courts Sex-Discrimination Cases, 19731976 i. Stanton v. Stanton (1975) court reversed a statute under which females reached majority at age 18 and males at 21, on the ground that education was equally important to both sexes and that the statutes distinction was based upon

outmoded stereotypes about womens roles. ii. Schlesinger v. Ballard (1975) a statute providing that male officers had a shorter period in which to attain promotion or be discharged than female officers was upheld as a sex-based remedial law which arguably helped women overcome structural disadvantages and pursue nonstereotypical careers. d. Craig v. Boren (1976) i. An Oklahoma statute prohibited the sale of 3.2% beer to males under the age of 21 and to females under the age of 18; it did not prohibit the possession or consumption of such beer by males aged 18-20. A three-judge district court upheld the statute. ii. The justification for the law was that 1820 year old males were more likely to be arrested for driving under the influence and drunkness than females of the same age. Also, youths 17-21 were found to be overrepresented among those killed or injured in traffic accidents, with males again numerically exceeding females in this regard. iii. The showing offered by the appellees does not satisfy us that sex represents a legitimate, accurate proxy for the regulation of drinking and driving. In fact, when it is further recognized that Oklahomas statute prohibits only the sale of beer, not their drinking the beverage once acquired, the relationship between gender and traffic safety becomes far too tenuous to satisfy Reeds requirement that the genderbased difference be substantially related to achievement of the statutory objective. e. Califano v. Webster (1977) i. Until it was amended in 1972, the Social Security Act provided for old-age benefits to be calculated on the basis of the wage earners average monthly wage (AMW)

for a specified number of years. The AMW for male and female wage earners was calculated differently, such that female earners could exclude more lowearning years from the formula than male earners could. ii. Congress repealed the favorable treatment in 1972 prospectively, because statutes prohibiting sex discrimination in the workplace made remediation less necessary. f. J.E.B. v. Alabama ex rel. T.B. (1994) i. The Supreme Court declared the process of using peremptory challenges to strike jurors of a particular gender inconsistent with the Equal Protection Clause and extended Batson, prohibiting discrimintory use of race-based peremptory challenges, to prohibit sexbased peremptory challenges. g. Mississippi University for Women v. Hogan (1982) i. MUW remained all-female until Joe Hogan applied to its School of Nursing. The Supreme Court ruled that the exclusion of men violated the Equal Protection Clause. ii. Rather than compensate for discriminatory barriers faces by women, MUWs policy of excluding males from admission to the School of Nursing tends to perpetuate the stereotyped view of nursing as an exclusively womans job. h. United States v. Virginia (1996) i. VMI was the last remaining same-sex public institution of higher learning. ii. The US sued Virginia and VMI, alleging that VMIs exclusively male admission policy violated the Equal Protection Clause. iii. In response, Virginia proposed a parallel program for women: Virginia Womens Institute for Leadership, located at Mary Baldwin College, a private liberal arts school for women.

iv. The lower courts found this parallel program provided substantively comparable benefits and held it met equal protection requirements. The Supreme Court reversed. v. Virginia asserted two justifications in defense of VMIs exclusion of women. The Court agreed that the first justification, diversity of educational benefits, is a benign goal, but not one of the actual state purposes that motivated the policy. vi. The states second justification is preserving the adversative method of education. vii.The notion that admission of women would downgrade VMIs stature, destroy the adversative system, and with it, even the self-fulfilling prophecies, once routinely used to deny rights or opportunities. viii. Justice Ginsberg found that the establishment of the VWIL did not practically remedy the discrimination, in large part because the womens program was qualitatively different and quantitatively inferior to that retained for males at VMI. 3. Deference to Traditional Gender Classifications Based Upon Real Differences a. Michael M. v. Superior Court of Sonoma County (1981) i. A statute in California made men alone criminally liable for the act of statutory rape. Michael M., a 17.5 year old male charged with statutory rape of Sharon, a 16.5 year old female, moved to have the statute invalidated as unlawful sex discrimination, and effort rebuffed by the California courts. The Supreme Court affirmed. ii. The statutory sex discrimination was substantially related to the goal of preventing illegitimate pregnancy, an important state interest.

iii. Because virtually all of the significant harmful and inescapably identifiable consequences of teenage pregnancy fall on the young female, a legislature acts well within its authority when it elects to punish only the participant who, by nature, suffers few of the consequences of his conduct. iv. Bennan, DISSENT: argued that California had presented no evidence that a gender-neutral statutory rape law (such as the laws adopted by 37 other states) would be less enforceable or less effective in deterring minor females from having intercourse than its males-only statute. b. Parham v. Hughes (1979) i. A Georgia law allowed the mother but not the father of a child born outside of marriage to bring suit for the childs wrongful death. Although the father acknowledged his paternity and had established a relationship with the child, the Court upheld the statute against a charge of sex discrimination. ii. The statutory classification does not discriminate against fathers as a class but instead distinguishes between fathers who have legitimated their children and those who have not. c. Rostker v. Goldberg (1981) i. The Selective Service act was challenged on equal protection grounds for its exclusion of women. ii. Congress saw registration under the MSSA a prefatory to a subsequent draft of those registered, to serve as combat troops in an emergency situation. Women as a group, however, unlike men as a group, are not eligible for combat. The restrictions on the participation of women in combat in the Navy and Air Force are statutory. iii. Marshalls DISSENT: The Courts reasoning focuses on the wrong question. The Government must show that

registering women would substantially impede its efforts to prepare for such a draft. The Defense Department and Congress believe that only about twothirds of those registered would be needed for combat; the other 1/3 would be needed to staff non-combat positions of the sort that women could fill. All four Service Chiefs agreed that there were no military reasons for refusing to register women, and uniformly advocated requiring registration of women. d. Nguyen v. INS (2001) i. The Supreme Court rejected a challenge to a federal statute that accorded American citizenship automatically, upon birth, to a child born out of wedlock in a foreign country to an American mother, but denied citizenship to such a child whose only American parent was her father, unless the child were legally legitimated. ii. The first governmental interest to be served is the importance of assuring that a biological parent-child relationship exists. Fathers and mothers are not similarly situated with regard to the proof of biological parenthood. Here, the use of gender specific terms takes into account a biological difference between the parents. iii. The second important governmental interest furthered in a substantial manner is the determination to ensure that the child and the citizen parent have some demonstrated opportunity or potential to develop not just a relationship that is recognized, as a formal matter, by the law, but one that consists of the real, everyday ties that provide a connection between child and citizen parent and, in turn, the United States. iv. OConnor, DISSENT: The Courts first justification (proof of parental relationship) as insufficient because (1)

there was scant evidence that this was the actual reason for the sex-based classification; (2) the requirements of that aspect of the statute add nothing to what is already required, namely, a blood test showing a parental relationship between the American father and the child claiming citizenship; and (3) sexneutral criteria, such as the blood-test requirement for the child-claimant whatever the sex of its American parent, would fully serve the asserted governmental interest. The Courts second justification was hypothetical and could be met by a more direct and ungendered statutory criterion. e. Note on Rostker, Nguyen, and Judicial Deference to Certain National Legislative and Executive Policies i. In both Rostker and Nguyen, the sexbased scheme also tracked traditional stereotypes. ii. The most plausible current justification for both statutory policies was that a simple sex-based scheme was easier or cheaper to administer but Craig and other precedents have specifically rejected ease-of-administration as a justification for sex-based classifications. f. Notes on the Militarys Exclusion of Women from Combat Roles i. The effects of excluding women from combat positions include their exclusion from some leadership positions, lower salaries and fewer opportunities, and a general need for fewer women in the armed forces. ii. The armed forces have traditionally maintained that men are better suited for combat roles than women, which seems increasingly inconsistent with the realities of modern warfare, which relies more and more on technology. iii. Today, the main argument for the combat exclusion is that women in the

foxholes would be a sexual force disrupting morale and unit cohesion. 4. Classifications That Have a Disparate Impact Upon Women a. Geduldig v. Aiello (1974) i. Californias disability insurance program paid benefits to persons temporarily disabled from work, but excluded pregnancy-related disabilities from coverage. ii. Men were privileged and women were denigrated in the public and private workplace sphere because of womens unique ability to bear children and the concomitant special responsibility for rearing them in the domestic sphere. iii. The Court reasoned that the pregnancy exclusion was rationally related to the insurance programs self-supporting goals. b. Personnel Administrator of Massachusetts v. Feeney (1979) i. A woman with high scores on a qualifying test for a civil service position was passed over because of a statutory preference for veterans. She challenged the veterans preference as a violation of equal protection. ii. The Court upheld the statute because it did not have a discriminatory purpose, despite the discriminatory effects. iii. Marshalls DISSENT: Given the armed forces longstanding exclusion of women from service and from combat and other positions, such an overwhelming impact was inevitable and foreseeable. c. Note on Statutory Rights Against Sex and Pregnancy Discrimination in Private and Public Employment i. Price Waterhouse v. Hopkins (1989): Court held that it is sex discrimination if an employer disadvantages an employee because she violates gender roles. ii. Nevada Department of Human Resources v. Hibbs (2003): Historically, denial or curtailment of womens employment

opportunities has been traceable directly to the pervasive presumption that women are mothers first, and workers second. This prevailing ideology about womens roles has in turn justified discrimination against women when they are mothers or mothers-to-be C. Critiques of Abstract Equality and the Emergence of a Jurisprudence of Difference a. Alimony and Child Support: The Court in Orr v. Orr (1979), invalidated state laws imposing alimony (or, by implication, child support) payments on husbands but not wives. b. Benefit and Tax Statutes: The major problem with social security was and is its treatment of ordinary women, women who are primarily responsible for domestic production and reproduction and who often participate, on a limited basis, in wage employment. c. Preferences for Women: Pregnancy, abortion, reproduction, and creation of another human being are special very special. Women have these experiences. Men do not. An equality doctrine that ignores the unique quality of these experiences implicitly says that women can claim equality only insofar as they are like men. 1. Note on Affirmative Action for Women in the Workplace a. The leading case on sex-based affirmative action is Johnson v. Transportation Agency (1987). Justice Brennan, writing for five Justices, upheld the Agencys decision based upon a flexible interpretation of Title VII to permit affirmative action when there is a manifest imbalance in the relevant workforce. 2. Catharine A. MacKinnon, Toward a Feminist Theory of the State a. Missing in sex equality law is what Aristotle missed in his empiricist notion that equality means treating likes alike and unlikes unlike. Why should one have to be the same as a man to get what a man gets simply because he is one?

b. The special benefits side of the sameness/difference approach has not compensated women for being second class. Its double standard does not give women the dignity of the single standard, not does it suppress the gender of its referent: female. c. Womens inequality occurs in a context of unequal pay, allocation to disrespected work, demeaned physical characteristics, targeting for rape, domestic battery, sexual abuse as children, and systematic seual harassment. Women are daily dehumanized, used in denigrating entertainment, denied reproductive control, and forces by the conditions of their lives into prostitution. II. What Level of Scrutiny for Other Suspicious Classifications? A. Wealth 1. Countless statutes have the effect of excluding or discriminating against people without much money. 2. The Court held that in most circumstances a poor person charged with a crime has a right to free counsel at trial and on appeal (Gideon v. Wainwright), and that the state may not impose appellate filing fees or a charge for a transcript on appeal if that would preclude access to the appellate process. 3. In the early 1970s, however, the Court rejected the proposition that wealth-based classifications and access fees are suspect. Wealth as a classification had none of the indicia of suspectness: the class is not saddled with such disabilities, or subjected to a history or purposeful unequal treatment, or relegated to such a position of political powerlessness as to command extraordinary protection from the majoritarian political process. 4. In United States v. Kras (1973), the Court held that you can be too poor to go bankrupt. 5. M.L.B. v. S.L.J. (1996): The Mississippi chancery court terminated the parental rights of MLB who was unable to appeal because she could not afford the fees required by the state to prepare a record for appeal. MLBs stakes were most severe and greatly outweighed the state pecuniary interest (further diluted by the state interest in correcting lower court errors). B. Language and Ethnicity

1. Hernandez v. New York (1991) a. Defense counsel objected to the prosecutors striking several Latino jurors. b. The prosecutors articulated basis for these challenges divided potential jurors into two classes: those whose conduct during voir dire would persuade him that they might have difficulty in accepting the translators rendition of Spanish-language testimony and those potential jurors who gave no such reason for doubt. Each category would include both Latinos and non-Latinos. c. If a prosecutor articulates a basis for a peremptory challenge that results in the disproportionate exclusion of members of a certain race, the trial judge may consider that fact as evidence that the prosecutors stated reason constitutes a pretext for racial discrimination. d. The trial judge believe the prosecutors raceneutral explanation for striking the two jurors in question, and the Court held that appeals courts must defer to trial court findings under Batson. The Court found such deference particularly appropriate because Batson cases will turn on the credibility of prosecutors and their explanations. C. Physical or Mental Disability 1. City of Cleburne v. Cleburne Living Center (1985) Rational basis with Bite a. Cleburne Living Center attempted to establish a group home for the developmentally disabled. The city required a special use permit for the construction of hospitals for the insane or feeble-minded (among others). b. The federal court of appeals overturned the citys denial of that permit, concluding that the developmentally disabled are a quasi-suspect class and that, under intermediate scrutiny, the citys zoning regulation was invalid both on its face and as applied. c. We conclude for several reasons that the Court of Appeals erred in holding mental retardation a quasi-suspect classification calling for a more exacting standard of judicial review than is

normally accorded economic and social legislation. d. The state may not rely on a classification whose relationship to an asserted goal is so attenuated as to render the distinction arbitrary or irrational. e. The city never justifies its apparent view that other people can live under such crowded conditions when mentally retarded persons cannot. The short of it is that requiring the permit in this case appears to us to rest on an irrational prejudice against the mentally retarded. D. Sexual Orientation 1. Romer v. Evans (1996) Kennedys opinion a. The Court has a commitment to the laws neutrality where the rights of persons are at stake. The Equal Protection Clause enforces this principle and today requires us to hold invalid a provision of Colorados Constitution. b. The enactment challenged in this case is an amendment to the Constitution of the State of Colorado, adopted in a 1992 statewide referendum. The parties and the state courts refer to it as Amendment 2 c. Amendment 2 repeals various city ordinances banning discrimination to the extent they prohibit discrimination on the basis of homosexual, lesbian, or bisexual orientation, conduct, practices, or relationships. It prohibits all legislative, executive or judicial action at any level of state or local government designed to protect the named class (homosexual persons) d. The trial court granted a preliminary injunction to stay enforcement of Amendment 2, and an appeal was taken to the Supreme Court of Colorado. Sustaining the interim injunction and remanding the case for further proceedings, the State Supreme Court held that Amendment 2 is subject to strict-scrutiny under the 14th Amendment because it infringed the fundamental right of gays and lesbians to participate in the political process. (Evans I) e. The Supreme Court of Colorado, in a second opinion, affirmed the ruling. (Evans II)

f. We granted certiorari and now affirm the judgment, but on a rationale different from that adopted by the State Supreme Court. g. The immediate objective of Amendment 2 is, at a minimum, to repeal existing statutes, regulations, ordinances, and policies of state and local entities that barred discrimination based on sexual orientation. h. The Amendment has the peculiar property of imposing a broad and undifferentiated disability on a single named group, an exceptional and, as we shall explain, invalid form of legislation. Its sheer breadth is so discontinuous with the reasons offered for it that the amendment seems inexplicable by anything but animus toward the class that it affects; it lacks a rational relationship to legitimate state interests. i. It identifies persons by a single trait and then denies them protection across the board. The resulting disqualification of a class of persons from the right to seek specific protection from the law is unprecedented in our jurisprudence. j. We must conclude that Amendment 2 classifies homosexuals not to further a proper legislative end but to make them unequal to everyone else. Amendment 2 violates the Equal Protection Clause, and the judgment of the Supreme Court of Colorado is affirmed. 2. Watkins v. United States Army (1990) a. When Perry Watkins enlisted in the Army in 1967, he marked yes in response to a question whether he had homosexual tendencies. b. In 1968, Watkins signed an affidavit stating that he had been gay form the age of 13 and that, since his enlistment, had engaged in sodomy with two other servicemen, a crime under military law. c. In 1981, the Army promulgated new regulation (AR) 635-200 which mandated the disqualification of all homosexuals from the Army without regard to the length or quality of their military service. Watkins challenges the Armys actions and new regulations on various statutory and constitutional grounds.

d. The district court ruled both that Major General Elton lacked the regulatory authority to make supplemental findings and that the evidence presented at the discharge hearing could not support a specific finding that Watkins had engaged in any homosexual conduct after 1968. The district court enjoined the army from discharging Watkins on the basis of his statements admitting his homosexuality. e. In October, 1982, the Army rejected Watkins reenlistment application [b]ecause of self admitted homosexuality as well as homosexual acts. f. The district court enjoined the Army from refusing to reenlist Watkins because of his admitted homosexuality, holding that the Army was equitably estopped. The Army reenlisted Watkins for a six-year term on November 1, 1982, with the proviso that the reenlistment would e voided if the district courts injunction were not upheld on appeal. g. On appeal, the district courts injunction was reversed, under the reasoning that the equity powers of the federal courts could not be exercised to order military officials to violate their own regulations absent a determination that the regulations were repugnant to the Constitution or to the militarys statutory authority. On remand, the district court held that the Armys regulations were not repugnant to the Constitution or to statutory authority and accordingly denied Watkins motion for summary judgment and granted summary judgment in favor of the Army. h. Watkins appealed, an argued that the Armys actions in discharging him and denying him reenlistment violate the First Amendment and constitute due process entrapment in violation of the Fifth Amendment. i. Watkins argued that the Armys regulations must be subjected to strict scrutiny because homosexuals constitute a suspect class under equal protection jurisprudence. i. It is indisputable that homosexuals have historically been the object of pernicious and sustained hostility

ii. The discrimination faced by homosexuals in our society is plainly no less pernicious or intense than the discrimination faced by other groups already treated as suspect classes, such as aliens or people of a particular national origin. iii. This irrelevance of sexual orientation to the quality of a persons contribution to society also suggests that classifications based on sexual orientation reflect prejudice and inaccurate stereotypes the second indicia of a classifications gross unfairness j. The Armys argument rests on two false premises. First, the class burdened by the regulations is defined by the sexual orientation of its members, not by their sexual conducts. Also, little of the homosexual conduct covered by the regulations is criminal. k. We have no trouble concluding that sexual orientation is immutable for the purposes of equal protection doctrine. Scientific research indicates that we have little control over our sexual orientation and that, once acquired, our sexual orientation is largely impervious to change. Also, the social, economic, and political pressures to conceal ones homosexuality commonly deter many gays from openly advocating pro-homosexual legislation, thus intensifying their inability to make effective use of the political process. Our analysis of the relevant factors in determining whether a given group should be considered a suspect class for the purposes of equal protection doctrine ineluctably leads us to the conclusion that homosexuals constitute such a suspect class. 3. Notes on Strict Scrutiny for Sexual Orientation a. As of 2008, no federal appellate court has found that sexual orientation discrimination requires strict scrutiny. b. Several state appellate courts have interpreted their state constitutions to treat sexual orientation as a suspect classification. 4. Goodridge v. Department of Public Health (2003)

a. Seven lesbian and gay couples sued the state to invalidate its exclusion of same-sex couples from marriage. The court struck down the discrimination under the Massachusetts Constitution. b. The Court did not reach the issue whether to apply heightened scrutiny, for the discrimination had no rational basis. c. The department posits three legislative rationales for prohibiting same-sex couples from marrying: (1) providing a favorable setting for procreation; (2) ensuring the optimal setting for child rearing, which the department defines as a two-parent family with one parent of each sex; and (3) preserving scarce State and private financial resources. d. Fertility is not a condition of marriage, nor is it grounds for divorce. People who have never consummated their marriage, and never plan to, may be and stay married. It is the exclusive and permanent commitment of the marriage partners to one another, not the begetting of children, that is the sine qua non of civil marriage. e. Protecting the welfare of children is a paramount State policy. Restricting marriage to opposite-sex couples, however, cannot plausibly further this policy. The best interests of the child standard does not turn on a parents sexual orientation or marital status. There is thus no rational relationship between the marriage statute and the Commonwealths proffered goal of protecting the optimal child rearing unit. f. An absolute ban on same-sex marriage bears no rational relationship to the goal of economy. Recognizing the right of an individual to marry a person of the same sex will not diminish the validity or dignity of opposite-sex marriage, any more than recognizing the right of an individual to marry a person of a different race devalues the marriage of a person who marries someone of her own race. 5. Notes on the Massachusetts and the Same-Sex Marriage Case

a. The favorable-setting-for-procreation argument was inconsistent with the marriage statutes, which have never made procreation a condition of marriage b. The optimal-setting-for-childraising argument was not supported by evidence showing that the exclusion of same-sex couples induces more people to enter into and raise children within heterosexual marriages. c. The economy argument was found to be both over-inclusive (many straight couples do not need the states support) and under-inclusive (many lesbian and gay couples do need such support) d. The supporting evidence was weak and the classification seemed driven by stereotypes rather than good policy. Chapter 5: Protecting Fundamental Rights I. Should Courts Ever Enforce Unenumerated Rights? A. The Slaughter House Cases (1873) 1. A Louisiana law banned slaughter houses within the New Orleans city limits but made an exception for the Crescent City Company, which was thereby essentially given a monopoly. 2. The Supreme Court rejected a broad-gauged attack on the statute brought by New Orleans butchers, who asserted that the Privileges or Immunities Clause of the Fourteenth Amendment protected their fundamental right to work at their trade. The Court held that this clause protected only a limited set of national privileges. B. Palko v. Connecticut (1937) 1. Palko had been indicted for first-degree murder. The jury found him guilty of second-degree murder, and he received a life sentence. 2. The state appealed, arguing that the judge had erred in several ways, and requested (and was granted) a new trial. Palko objected that a new trial would place him twice in jeopardy for the same offense, which he claimed would violate the 14th Amendment. 3. The Court concluded that allowing the state to appeal, when a defendant had been acquitted due to a legal error at trial, did not violate any fundamental principle of justice.

4. **Not all of the Bill of Rights are incorporated. Those that are are implicit in the concept of ordered liberty. Fundamental.** C. Adamson v. California (1947) 1. Adamson was convicted of murder in a California court. He challenged the constitutionality of California provisions that allowed the judge and the prosecutor to point out to the jury that he did not testify and thus made no effort to explain or deny the evidence against him. 2. Nothing in the 14th Amendment intends its due process clause to draw within its scope the earlier amendments to the Constitution. Therefore, it does not apply the Fifth Amendment to the States. D. McDonald v. City of Chicago (2010) in supplement. Alito opinion 1. We have previously held that most of the provisions of the Bill of Rights apply with full force to both the Federal Government and the States. We hold that the Second Amendment right is fully applicable to the States. 2. Under our precedents, if a Bill of Rights guarantee is fundamental from an American perspective, then, unless stare decisis counsels otherwise, that guarantee is fully binding on the States and thus limits (but by no means eliminates) their ability to devise solutions to social problems that suit local needs and values. E. Skinner v. Oklahoma ex rel. Williamson (1942) 1. Oklahomas Habitual Criminal Sterilization Act allows for repeat offenders determined to be habitiual criminals may be surgically rendered sterile, if the operation can be done without detriment to his or her general health. 2. The Act fails to meet the requirements of the equal protection clause of the 14th Amendment. 3. Strict scrutiny of the classification which a State makes in a sterilization law is essential, lest invidious discriminations are made against groups or types of individuals in violation of the constitutional guaranty of just and equal laws. For example, sterilization of those who have thrice committed grand larceny, with immunity for those who are embezzlers, is a clear, pointed, unmistakable discrimination. II. Protecting Economic Liberty and Property

A. The Rise and Decline of Liberty of Contract and Substantive Due Process Review a. Allgeyer v. Louisiana (1897): The Court struck down a Louisiana law requiring all insurance on Louisiana property to be issued by insurers registered to do business in the state. b. Holden v. Hardy (1898): the Court upheld against due process attack a Utah statute which limited mining and smelting workers to eight-hour days. 1. Lochner v. New York (1905) a. The general right to make a contract in relation to his business is part of the liberty of the individual protected by the Fourteenth Amendment of the Federal Constitution. b. There is no reasonable ground for interfering with the liberty of person or the right of free contract, by determining the hours of labor, in the occupation of a baker. c. Viewed in the light of a purely labor law, with no reference whatever to the question of health, we think that a law like the one before us involves neither the safety, the morals, nor the welfare of the public, and that the interest of the public is not in the slightest degree affected by such an act. The law must be upheld, if at all, as a law pertaining to the health of the individual engaged in the occupation of a baker. d. Under such circumstances the freedom of master and employee to contract with each other to their employment, and in defining the same, cannot be prohibited or interfered with, without violating the Federal Constitution. e. Holmes, DISSENT: A constitution is not intended to embody a particular economic theory, whether of paternalism and the organic relation of the citizen to the state. I think that the word liberty in the Fourteenth Amendment is perverted when it is held to prevent the natural outcome of a dominant opinion, unless it can be said that a rational and fair man necessarily would admit that the statute proposed would infringe fundamental principles as they have been understood by the traditions of our people and our law.

f. Harlan, DISSENT: the statute must be taken as expressing the belief of the people of New York that, as a general rule, and in the case of the average man, labor in excess of sixty hours during a week in such establishments may endanger the health of those who thus labor. Whether or not this be wise legislation it is not the province of the court to inquire. 2. West Coast Hotel v. Parrish (1937) a. Upheld a state law establishing a minimum wage for women b. The opinion stressed that the legislature was clearly entitled to consider the situation of women in employment, the fact that they are in the class receiving the least pay, that their bargaining power is relatively weak, and that they are the ready victims of those who would take advantage of their necessitous circumstances. c. The exploitation of a class of workers who are in an unequal bargaining position with respect to bargaining power and are thus relatively defenseless against the denial of a living wage is not only detrimental to their health and well being but casts a direct burden for their support upon the community. 3. Williamson v. Lee Optical (1955): An Oklahoma statute prohibited opticians from duplicating or replacing lenses without a written prescription from an ophthalmologist or optometrist, even though opticians have the expertise and equipment to take a whole (or, frequently, even broken) lens and determine that prescription for it. The statute did not violate due process (no matter how nonsensical it is). II. Equal Protection and Fundamental Interests A. Voting 1. Reynolds v. Sims (1964) a. In a suit by residents of a large Alabama county against state officials and political party officers, the federal district court concluded that the population inequality among districts violated the Equal Protection Clause, rejected as inadequate two reapportionment plans proposed by the legislature, and developed its

b.

c.

d.

2. Bush a.

b.

c.

d.

e.

f.

own reapportionment plan for the 1962 elections. The right to vote freely for the candidate of ones choice is of the essence of a democratic society, and any restrictions on that right strike at the heart of representative government. If a State should provide that the votes of citizens in one part of the State should be given two times, or five times, or 10 times the weight of votes of citizens in another part of the State, it could hardly be contended that the right to vote of those residing in the disfavored areas had not been effectively diluted. The Equal Protection Clause demands no less than substantially equal state legislative representation for all citizens, of all places as well as of all races. v. Gore (2000) Having once granted the right to vote on equal terms, the State may not, by later arbitrary and disparate treatment, value one persons vote over that of another. The question before us, however, is whether the recount procedures the Florida Supreme Court has adopted are consistent with its obligation to avoid arbitrary and disparate treatment of the members of its electorate. The recount mechanisms implemented in response to the decisions of the Florida Supreme Court do not satisfy the minimum requirement for nonarbitrary treatment of voters necessary to secure the fundamental right. The problem inheres in the absence of specific standards to ensure its equal application. When a court orders a statewide remedy, there must be at least some assurance that the rudimentary requirements of equal treatment and fundamental fairness are satisfied. Because it is evidence that any recount seeking to meet the December 12 date will be unconstitutional for the reasons we have discussed, we reverse the judgment of the Supreme Court of Florida ordering a recount to proceed. STEVENS, dissent:

i. When questions arise about the meaning of state laws, including election laws, it is our settled practice to accept the opinions of the highest courts of the States as providing the final answers. ii. We have never before called into question the substantive standard by which as State determined that a vote has been legally cast. iii. Although we may never know with complete certainty the identity of the winner of this years Presidential election, the identity of the loser is perfectly clear. It is the Nations confidence in the judge as an impartial guardian of the rule of law. 3. Notes on Bush v. Gore a. By mandating that none of the votes be counted unless all can be counted alike, the Court vindicates the fundamental right to vote. b. Defenders of the Court tend to proclaim that the Florida vote-counting process had become unconscionably arbitrary or biased and that the Court properly stepped in to end what was becoming a national political catastrophe. Opponents argue, among other things, that the Court should have remanded the case so that the Florida trial courts could have attempted to achieve compliance with the new requirements. 4. Crawford v. Marion County Election Bd (2008) a. A challenge to an Indiana law that required persons seeking to vote to present a government-issued photo identification. b. The statute was facially justified by the states interest in preventing voter fraud and instilling confidence in the electoral process (Stevens opinion) c. Dissent: Justice Souter maintained that the statute failed the balancing test because it threatens to impose nontrivial burdens on the voting right of tens of thousands of the States citizens, and a significant percentage of those individuals are likely to be deterred from voting B. Basic Rights for the Least Advantaged

1. San Antonio Independent School District v. Rodriguez (1973) a. A class action suit was brought on behalf of schoolchildren throughout the State who are members of minority groups or who are poor and live in school districts having a low property tax base. b. Substantial interdistrict disparities, largely attributable to differences in the amounts of money collected through local property taxation, led the District Court to conclude that Texas dual system of public school financing violated the Equal Protection Clause. c. The Court rejected the wealth-discrimination argument for two reasons: appellees have made no effort to demonstrate that it operates to the peculiar disadvantage of any class fairly definable as indigent, or as composed of persons whose incomes are beneath any designated poverty level; the argument here is not that the children in districts having relatively low assessable property values are receiving no public education, but that they are receiving a poorer quality education than that available to children in districts having more assessable wealth. d. Whatever merit appellees argument might have if a States financing system occasioned an absolute denial of educational opportunities to any of its children, that argument provides no basis for finding an interference with fundamental rights where only relative differences in spending levels are involved and where as is true in the present case no charge fairly could be made that the system fails to provide each child with an opportunity to acquire the basic minimal skills necessary for the enjoyment of the rights of speech and of full participation in the political process 2. Plyler v. Doe (1982) a. The Texas legislature refused to provide state funds to local school districts for the education of children not legally admitted into the United States. In several class actions brought by school-age children of Mexican descent living in Texas who could not document legal

immigration status, the lower courts concluded that this statute violated the Equal Protection Clause. b. The Court rejected the claim that illegal aliens are a suspect class for two reasons: Illegal entry is a voluntary action, and it is not in general a constitutional irrelevancy c. But their children are not comparably situated, having no control over the situation; thus, the legislation violated the fundamental premise that no child is responsible for his birth and penalizing the child is an ineffectual as well as unjust way of deterring the parent. d. No legitimate state interest. 3. Edgewood Independent School District v. Kirby (1989) a. The language of Article VII, Section 1 of the Texas Constitution imposes on the legislature an affirmative duty to establish and provide for the public free schools. b. By express constitutional mandate, the legislature must make suitable provision for an efficient system for the essential purpose of a general diffusion of knowledge c. It is apparent from the historical record that those who drafted and ratified the section never contemplated the possibility that such gross inequalities could exist within an efficient system. d. Although we have ruled the school financing system to be unconstitutional, we do not now instruct that legislature as to the specifics of the legislation it should enact; nor do we order it to raise taxes. e. The legislature is duty-bound to provide for an efficient system of education, and only if the legislature fulfills that duty can we launch this great state into a strong economic future with educational opportunity for all. III. Fundamental Privacy Rights A. Meyer v. Nebraska (1923) 1. A Nebraska law prohibited teaching young children in any public or private school in any language other than English. The Court ruled this law inconsistent with the Due Process clause.

2. The established doctrine is that his liberty may not be interfered with, under the guise of protecting the public interest, by legislative action which is arbitrary or without reasonable relation to some purpose within the competency of the state to effect. 3. Evidently the Legislature has attempted materially to interfere with the calling of modern language teachers, with the opportunities of pupils to acquire knowledge, and with the power of parents to control the education of their own. 4. The protection of the Constitution extends to all, to those who speak other languages as well as those born with English on the tongue. A desirable end cannot be promoted by prohibited means. 5. We are constrained to conclude that the statute as applied is arbitrary and without reasonable relation to any end within the competency of the state. B. Note: What Kinds of Liberty Are Substantively Protected by the Due Process Clause? 1. Pierce v. Society of Sisters (1925): the state could not require all children to attend public schools. The Due Process Clause barred the state from using compulsory education laws to suppress private, especially religious, schools. C. Contraception, Marriage, and Family 1. Poe v. Ullman (1961) a. The plaintiffs included married women who allegedly had a medical need for, but could not receive, birth control because of the Tileston statute. b. The undeviating policy of nullification by Connecticut of its anti-contraceptive laws throughout all the long years that they have been on the statute books bespeaks more than prosecutorial paralysis. (AKA, Connecticut is deliberately not enforcing the statute so the Court doesnt need to act.) 2. Griswold v. Connecticut (1965) a. Two individuals who gave information, instruction, and medical advice to married couples about birth control were charged as accessories to using any drug, medicinal article or instrument for the purpose of preventing conception. b. The Fourth and Fifth Amendments protect against all governmental invasions of the

sanctity of a mans home and the privacies of life. c. NINTH AMENDMENT: allows us to tie together rights from the First (right of association & privacy), Third (privacy), Fourth (protection against search and seizure), and Fifth (zone of privacy to protect against self-incrimination) Amendments that arent explicitly enumerated, but are indicated. d. GOLDBERG, concurring: i. This Court, in a series of decision, has held that the Fourteenth Amendment absorbs and applies to the States those specifics of the first eight amendments which express fundamental personal rights. ii. The 9th Amendment shows a belief of the Constitutions authors that fundamental rights exist that are not expressly enumerated in the first eight amendments and an intent that the list of rights included there not be deemed exhaustive. 3. Notes on Griswold and the Right of Privacy a. Eisenstadt v. Baird (1972): the Court struck down a law prohibiting the sale of contraceptives to unmarried individuals. b. Although Griswold articulated the privacy right in family governance terms, Eisenstadt rearticulated it in terms of the individuals life choices. c. Carey v. Population Services International (1977): The Court considered the sale of contraceptives to minors. While they did not believe that minors had a constitutional right to be sexually active, but that denying them access to birth control was an inappropriate means of deterring sexual activity. D. Abortion 1. Roe v. Wade (1973) a. Jane Roe, an unmarried pregnant woman, brought a class action challenging the constitutionality of the Texas criminal abortion laws. b. The Court has recognized that a right of personal privacy, or a guarantee of certain

areas or zones of privacy, does exist under the Constitution. Only personal rights that can be deemed fundamental or implicit in the concept of ordered liberty are included in this guarantee of personal privacy. c. This right of privacy, whether it be founded in the Fourteenth Amendments concept of personal liberty and restrictions upon state action, as we feel it is, or, as the District Court determined, in the Ninth Amendments reservation of rights to the people, is broad enough to encompass a womans decision whether or not to terminate her pregnancy. d. The Courts decisions recognizing a right of privacy also acknowledge that some state regulation in areas protected by that right is appropriate. e. We, therefore, conclude that the right of personal privacy includes the abortion decision, but that this right is not unqualified and must be considered against important state interests in regulation. f. With respect to the States important and legitimate interest in the health of the mother, the compelling point, in the light of present medical knowledge, is at approximately the end of the first trimester. With respect to the States important and legitimate interest in potential life, the compelling point is at viability. The decision leaves the State free to place increasing restrictions on abortion as the period of pregnancy lengthens, so long as those restrictions are tailored to the recognized state interests. 2. Reva Siegel, Reasoning from the Body: A Historical Perspective on Abortion Regulation and Questions of Equal Protection a. Roe holds that the state has an interest in potential life which becomes compelling at the point of viability. b. Because Roe analyzes an exercise of state power from a medical, rather than a social, point of view, it authorizes state action against the pregnant woman on the basis of physiological criteria, requiring no inquiry into the states reason for acting against the

pregnant woman, or the impact of its actions on her. c. When a state invokes an interest in potential life to justify fetal-protective regulation, the proposed use of public power concerns not merely the unborn, but women as well. Abortion-restrictive regulation is sex-based regulation, the use of public power to force women to bear children. 3. Planned Parenthood of Southeastern Pennsylvania v. Casey (1992) a. Pennsylvania required a woman seeking an abortion to wait 24 hours (except in a medical emergency), so that she could consider information regarding the nature and risks of the procedure and the probable gestational age of the fetus, which the law required the physician to provide. Married women were required to notify their spouses. b. The Joint Opinion upheld the informed consent, 24-hour waiting period, and one-parent consent provisions of the Pennsylvania law. In holding that the state can require the physician to provide the woman seeking abortion with truthful information about the procedure, the health risks, and the probably gestational age of the fetus, the Joint Opinion overruled Akron and Thornburgh to the extent they held to the contrary. The Joint Opinion ruled that the spousal notification provision was an undue, and therefore unconstitutional burden on the right to abortion. 4. Notes on Casey and the Fundamental Right to Abortion a. The husbands interest in the life of the child his wife is carrying does not permit the State to empower him with this troubling degree of authority over his wife. 5. Stenberg v. Carhart (2000) a. At issue was Nebraskas ban on partial birth abortion, defined as a procedure in which the doctor partially delivers vaginally a living unborn child before killing the unborn child. The statute was aimed at a procedure called dilation and extraction (D&X), where during

the later stages of pregnancy the fetus is withdrawn intact. b. The Court struck down the statute, concluding that the statute could not constitutionally be applied even post-viability. Any regulation of abortion, whether pre- or postviability, must allow abortions necessary, in appropriate medical judgment, for the preservation of the life or health of the mother. c. The Court held that the statute imposed an undue burden on a womans ability to choose an abortion because the wording of the ban reached beyond the D&X to illegalize the most common procedure for previability second trimester abortions, the dilation and evacuation (D&E). 6. Gonzalez v. Carhart (2007) a. After Stenberg, Congress passed a national Partial-Birth Abortion Ban Act of 2003. The federal statute prohibits knowingly performing a partial-birth abortion that is not necessary to save the life of a mother. There is no exclusion for the mothers health. b. Respondents contend the Act is unconstitutionally vague on its face. The Act satisfies the requirements of sufficient definiteness that ordinary people can understand, and in a manner that does not encourage arbitrary and discriminatory enforcement. c. Unlike the statutory language in Stenberg that prohibited the delivery of a substantial portion of the fetus, the Act defines the line between potentially criminal conduct on the one hand and lawful abortion on the other. d. We next determine whether the Act imposes an undue burden, as a facial matter, because its restrictions on second-trimester abortions are too broad. The Act prohibits intact D&E; and, not withstanding respondents arguments, it does not prohibit the D&E procedure in which the fetus is removed in parts. e. Partial-birth abortion, as defined by the Act, differs from a standard D&E because the former occurs when the fetus is partially outside the mother to the point of one of the

Acts anatomical landmarks. In sum, we reject the contention that the congressional purpose of the Act was to place a substantial obstacle in the path of a woman seeking an abortion. f. The Act is not invalid on its face where there is uncertainty over whether the barred procedure is ever necessary to preserve a womans health, given the availability of other abortion procedures that are considered to be safe alternatives. g. Respondents have not demonstrated that the Act, as a facial matter, is void for vagueness, or that it imposes an undue burden on a womans right to abortion based on its overbreadth or lack of a health exception. h. Ginsburg, DISSENT: i. Todays decision is alarming. It refuses to take Casey and Stenberg seriously. It tolerates, indeed applauds, federal intervention to ban nationwide a procedure found necessary and proper in certain cases by the American College of Obstetricians and Gynecologists (ACOG). And, for the first time since Roe, the Court blesses a prohibition with no exception safeguarding a womans health. ii. Legal challenges to undue restrictions on abortion procedures do not seek to vindicate some generalized notion of privacy; rather they center on a womans autonomy to determine her lifes course, and thus to enjoy equal citizenship stature. iii. Ultimately, the Court admits that moral concerns are at work, concerns that could yield prohibitions on any abortion. iv. The Court deprives women of the right to make an autonomous choice, even at the expense of their safety. v. In candor, the Act, and the Courts defense of it, cannot be understood as anything other than an effort to chip away at a right declared again and again by this Court and with increasing

comprehension of its centrality to womens lives. E. Consensual Sexual Activity 1. Bowers v. Hardwick (1986) a. Respondent brought suit in the Federal District Court for Georgia, challenging the constitutionality of the statute insofar as it criminalized consensual sodomy b. The issue presented is whether the Federal Constitution confers a fundamental right upon homosexuals to engage in sodomy and hence invalidates the laws of the many States that still make such conduct illegal and have done so for a very long time. c. Respondent insists that majority sentiments about the morality of homosexuality should be declared inadequate. We do not agree, and are unpersuaded that the sodomy laws of some 25 states should be invalidated on this basis. d. To hold that the act of homosexual sodomy is somehow protected as a fundamental right would be to cast aside millennia of moral teaching e. DISSENT written by Justice Blackmun i. This case is about the most comprehensive of rights and the right most valued by civilized men, namely, the right to be left alone ii. It is revolting to have no better reason for a rule of law than that so it was laid down in the time of Henry IV (quoting Justice Holmes) iii. The fact that individuals define themselves in a significant way through their intimate sexual relationships with others suggest, in a nation as diverse as ours, that there may be many right ways of conducting those relationships, and that much of the richness of a relationship will come from the freedom an individual has to choose the form and nature of these intensely personal bonds f. DISSENT written by Justice Stevens i. the fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient

reason for upholding a law prohibiting the practice; neither history nor tradition could save a law prohibiting miscegenation from constitutional attack. Second, individual decisions by married persons, concerning the intimacies of their physical relationship, even when not intended to produce offspring, are a form of liberty protected by the due process clause of the 14th Amendment.this protection extends to intimate choices by unmarried as well as married persons ii. From the standpoint of the individual, the homosexual and the heterosexual have the same interest in deciding how he will live his own life, and, more narrowly, how he will conduct himself in his personal and voluntary associations with his companions. State intrusion into the private conduct of either is equally burdensome. iii. A policy of selective application must be supported by a neutral and legitimate interest something more substantial than a habitual dislike for, or ignorance about, the disfavored group 2. Commonwealth of Kentucky v. Wasson (1992) a. A Kentucky statute criminalized deviate sexual intercourse with another person of the same sex and specifies that consent of the other person shall not be a defense. b. Justice Leibsons opinion invalidated the statute as a violation of state right to privacy and equal protection guarantees for three reasons: i. Textual differences the bill of rights in Kentuckys Constitution is more supportive of a right to privacy than the one cobbled together from the federal bill of rights. ii. Kentucky precedent iii. Flaws in Bowers 3. Lawrence v. Texas (2003)

a. Liberty protects the person from unwarranted government intrusion into a dwelling or other private places b. The petitioners were adults at the time of the alleged offense. Their conduct was in private and consensual. c. After Griswold it was established that the right to make certain decisions regarding sexual conduct extends beyond the marital relationship d. The issue is whether the majority may use the power of the State to enforce their views on the whole society through operation of the criminal law. e. When homosexual conduct is made criminal by the law of the State, that declaration in and of itself is an invitation to subject homosexual persons to discrimination both in the public and in the private spheres. f. Bowers was not correct when it was decided, and it is not correct today. It ought not to remain binding precedent. Bowers v. Hardwick should be and now is overruled. g. JUSTICE OCONNOR, CONCURRING i. Texas treats the same conduct differently based solely on the participants ii. This case raises a different issue than Bowers: whether, under the Equal Protection Clause, moral disapproval is a legitimate state interest to justify by itself a statute that bans homosexual sodomy, but not heterosexual sodomy. iii. Moral disapproval of a group cannot be a legitimate governmental interest under the Equal Protection Clause because legal classifications must not be drawn for the purpose of disadvantaging the group burdened by the law 4. Note on the Relationship of Carhart to Lawrence a. Justice Kennedy, the author of five-Justice majority opinions in both cases, overrules (Lawrence) or narrowly construes (Carhart) recent precedents; abandons the fundamental rights rhetoric and treats privacy as simply a due process liberty that can be regulated in a

number of ways, but not too much; and follows the moral consensus reached by large majorities of the states, which had repealed their sodomy laws (Lawrence) and adopted partial-birth abortion statutes (Carhart). F. The Right to Marry 1. Zabloski v. Redhail (1978): The Court invalidated Wisconsins law precluding the issuance of marriage licenses to people with outstanding support obligations to children from a previous marriage. 2. Turner v. Safley (1987): the Court struck down a state regulation barring the ability of prisoners to marry 3. In re Marriage Cases (2008): Six cases where lesbian and gay couples sough recognition of their committed relationships as marriages. The California Supreme Court decision was the first appellate decision in the United States to recognize a fundamental right to marry for lesbian and gay couples. IV. The Right to Die A. Washington v. Glucksberg (1997) 1. Washington States prohibition on causing or aiding a suicide was upheld by the Supreme Court. 2. We must exercise the utmost care whenever we are asked to break new ground in this field, lest the liberty protected by the Due Process Clause be subtly transformed into the policy preferences of the members of this Court. 3. Respondents contend, however, that the liberty interest they assert is consistent with this Courts substantive-due-process line of cases, if not with this Nations history and practice. 4. Our decisions lead us to conclude that asserted right to assistance in committing suicide is not a fundamental liberty interest protected by the Due Process Clause and the ban is rationally related to legitimate government interests. Washingtons assisted-suicide ban implicates a number of state interests. 5. We therefore hold that the Washington law does not violate the 14th Amendment, either on its face or as applied to competent, terminally ill adults who wish to hasten their deaths by obtaining medication prescribed by their doctors.

6. OConnor: CONCURRING: I join the Courts opinions because I agree that there is no generalized right to commit suicide. I agree that the States interests in protecting those who are not truly competent or facing imminent death, or those who decisions to hasten death would not truly be voluntary, are sufficiently weighty to justify a prohibition against physician-assisted suicide. 7. Souter: CONCURRING: I am satisfied that the State interests are sufficiently serious to defeat the present claim that its law is arbitrary or purposeless particularly in protecting terminally ill patients from involuntary suicide and euthanasia, both voluntary and nonvoluntary. Chapter 6: Civil Society, Political Action, and The First Amendment I. Free Speech and Competing Values A. Note on the Original Understanding of Freedom of Speech 1. Dissident political groups can vehemently attack the government and other groups, so long as a communication does not pose an imminent risk of violence or constitute a true threat. 2. The media, as well as other groups , can criticize public officials and public figures without restraint, so long as they do not make knowingly false statements of fact. 3. Some forms of economic influence on the political process are subject to significant government regulations (such as direct candidate contributions), whereas others (such as independent expenditures to support a candidate) are constitutionally protected from regulation. B. Texas v. Johnson (1989) 1. After publicly burning an American flag as a means of political protest, Johnson was convicted of desecrating a flag in violation of Texas law. This case presents the question whether his conviction is consistent with the First Amendment. We hold that it is not. 2. Texas claims that its interest in preventing breaches of the peace justifies Johnsons conviction for flag desecration. However, no disturbance of the peace actually occurred or threatened to occur because of Johnsons burning of the flag. 3. If there is a bedrock principle underlying the First Amendment, it is that the Government may not

prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable. C. R.A.V. v. City of St. Paul (1992) 1. Several teenagers built and burned a cross inside the fenced yard of a black family that lived across the street from the house where petitioner was staying. The petitioner was charged under the St. Paul BiasMotivated Crime Ordinance. 2. Even as narrowly construed by the Minnesota Supreme Court, the ordinance is facially unconstitutional. Displays containing abusive invective, no matter how vicious or severe, are permissible unless they are addressed to one of the specified disfavored topics (race, color, creed, religion, or gender = fighting words). D. United States v. OBrien (1968) 1. The Court upheld OBriens conviction for burning his draft card at an anti-war rally, on the ground that the government had valid reasons for protecting draft cards that had nothing to do with OBriens message. 2. A government regulation is sufficiently justified if it is within the constitutional power of the Government; if it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest. II. Regulation of Political Expression A. Defamation, Privacy and Political Speech 1. Bartnicki v. Vopper (2001) a. Vopper played a tape of an intercepted cell phone conversation of Bartnickis on his radio talk show. Bartnicki sued under a federal antiwiretapping law. Section 2511(1)(a) of the statute prohibits interception of certain communications, including cell phone calls. Section 2511(1)(c) prohibits disclosure of the contents of any illegally intercepted material. The statute provides a private cause of action b. Vopper had nothing to do with the interception and did not even know the name of the person responsible; the tapes were obtained legally by the radio station; and the tapes involved a matter of public concern.

c. The Court held that the First Amendment shielded the radio station from liability. B. Campaign Expenditures 1. Introductory Notes on Campaign Finance a. Buckey v. Valeo (1976) i. Held the validity of public funding for campaigns, even when subject to some conditions on candidates who chose to accept the funds. ii. The Court found the interests invoked by the government to be insufficient to justify the spending restriction. iii. The Court found that a contribution limitation places little direct restraint on a persons political communication, for it permits the symbolic expression of support evidenced by a contribution but does not in any way infringe the contributors freedom to discuss candidates and issues. b. Austin v. Michigan Chamber of Commerce (1990): The Court upheld a state prohibition on corporate expenditures in political campaigns except through special political action funds. IT was supported by the compelling state interest in preventing corporations from channeling funds obtained from consumers and investors into political campaigns. c. Bipartisan Campaign Reform Act (2002): the BCRA is a massive, complex piece of legislation. Section 323 attempts to eliminate soft money donations. It prohibits national political parties from soliciting, receiving, or spending any money except in compliance with federal funding limits. Section 203 expanded the ban on the use of corporate and union funds for campaign ads to include all electioneering communications, whether or not they explicitly told the audience to vote for or against a candidate. 2. McConnell v. Federal Election Commission (2003) a. The evidence connects soft money to manipulations of the legislative calendar, leading to Congress failure to enact, among other things, generic drug legislation, tort reform, and tobacco legislation. To claim that

such actions do not change legislative outcomes surely misunderstands the legislative process. b. The record is replete with similar examples of national party committees peddling access to federal candidates and officeholders in exchange for large soft-money donations. c. There is substantial evidence to support Congress determination that large soft-money contributions to national political parties give rise to corruption and the appearance of corruption. d. Under BCRA, corporations and unions may not use their general treasury funds to finance electioneering communications, but they remain free to organize and administer segregated funds, or PACs, for that purpose. 3. Citizens United v. Federal Election Commission (2010) KENNEDY opinion. a. Section 441b makes it a felony for all corporations including nonprofit advocacy corporations either to expressly advocate the election or defeat of candidates or to broadcast electioneering communications within 30 days of a primary election and 60 days of a general election. b. We find no basis for the proposition that, in the context of political speech, the Government may impose restrictions on certain disfavored speakers. c. There is simply no support for the view that the First Amendment, as originally understood, would permit the suppression of political speech by media corporations. d. The fact that a corporation, or any other speaker, is willing to spend money to try to persuade voters presupposes that the people have the ultimate influence over elected officials. e. STEVENS, Dissent: i. The real issue in this case concerns how, not if, the appellant may finance its electioneering. ii. All that the parties dispute is whether Citizens United had a right to use the

funds in is general treasury to pay for broadcasts during the 30-day period. iii. The Framers took it as a given that corporations could be comprehensively regulated in the service of the public welfare. Unlike our colleagues, they had little trouble distinguishing corporations from human beings, and when they constitutionalized the right to free speech in the First Amendment, it was the free speech of individual Americans that they had in mind. iv. At bottom, the Courts opinion is thus a rejection of the common sense of the American people, who have recognized a need to prevent corporations from undermining self-government since the founding, and who have fought against the distinctive corrupting potential of corporate electioneering since the days of Theodore Roosevelt. Chapter 7: Federalism: Congressional Power and Statue Authority I. Enumerated Federal Power, Reserved State Authority: Introduction A. McCulloch v. Maryland (1819) 1. Maryland argued that the charter of the Second Bank of the United States was invalid legislation, but that if it were allowed to exist, states have the authority to tax national instrumentalities such as the Bank. 2. There is no phrase in the Constitution excluding incidental or implied powers or which requires that everything granted shall be expressly and minutely described. 3. Although, among the enumerated powers of government, we do not find the word band or incorporation, we find the great powers to lay and collect taxes; to borrow money; to regulate commerce; to declare and conduct a war; and to raise and support armies and navies. It may be contended that a government entrusted with such ample powers must also be entrusted with ample means for their execution. 4. The sound construction of the constitution must allow to the national legislature discretion with respect to the means by which the powers it confers are to be carried into execution, which will enable that body to

perform the high duties assigned to it, in the manner most beneficial to the people. 5. 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. 6. The act incorporating the band is constitutional; and that the power of establishing a branch in the State of Maryland might be properly exercised by the bank itself. 7. The States have no power, by taxation or otherwise to retard, impede, burden, or in any manner control the operations of the constitutional laws enacted by Congress to carry into execution the powers vested in the general government. We are unanimously of opinion that the law passed by the legislature of Maryland, imposing a tax on the Bank of the United States, is unconstitutional and void. B. U.S. Term Limits, Inc. v. Thornton (1995): In 1992, Arkansas voters amended the state constitution to prevent certification as a candidate for the U.S. House from Arkansas any person already elected to three or more House terms, and as a candidate for the U.S. Senate from Arkansas any person already elected to two or more Senate terms. Stevens rejected the proponents arguments on the grounds that the power to add qualifications was not within the original powers of the preConstitution states, and that the Framers intended that the Constitution be the exclusive source of qualifications for members of Congress. DISSENT: state powers remain plenary, unlimited except insofar as the Constitution limits them. C. United States v. Comstock (Supreme Court, 2010). Breyer opinion. 1. Determine if the Federal Government has the authority under Article I of the Constitution to enact this federal civil-commitment program or whether its doing so falls beyond the reach of a government of enumerated powers. 2. Five Factors a. The Necessary and Proper Clause grants Congress broad authority to enact federal legislation, if the statute constitutes a means that is rationally related to the implementation of a constitutionally enumerated power.

b. This is a modest addition to a set of federal prison-related mental-health statutes that have existed for many decades. c. The Federal Government is the custodian of its prisoners. As federal custodian, it has the constitutional power to act in order to protect nearby (and other) communities from the danger federal prisoners may pose. d. The federal intervention took sufficient account of state interests. e. The statutory provision is not too sweeping in its scope. 3. ALITO, concurring: It is a necessary and proper means of carrying into execution the enumerated powers that support the federal criminal statutes under which the affected prisoners were convicted. 4. THOMAS, dissent: The law must be directed toward a legitimate end, and there must be a necessary and proper fit between the means (the federal law) and the end (the enumerated power or powers) it is designed to serve. Under the Courts precedents, Congress may not regulate noneconomic activity (such as sexual violence) based solely on the effect such activity may have, in individual cases or the aggregate, on interstate commerce. II. Congressional Power Under the Commerce Clause A. Gibbons v. Ogden (1824) 1. In 1803, New York granted an exclusive license to operate steamships in New York waters (Ogden). Gibbons, a competing ferry operator, technically violated the New York license because it entered into New York waters. But his vessels were licensed via federal statute. Ogden obtained an injunction in New York state courts, prohibiting Gibbons from operating his vessels in New York waters. Gibbons appealed, claiming the judgment was inconsistent with the Commerce Clause. 2. Commerce, undoubtedly, is traffic, but it is something more; it is intercourse. 3. The power of Congress, then, comprehends navigation, within the limits of every state in the Union; so far as that navigation may be, in any manner, connected with commerce with foreign nations or among the several States. It may, of consequence, pass the jurisdictional line of New York,

B.

C. D. E.

F.

G. H. I. J. K.

L.

and act upon the very waters to which the prohibition now under consideration applies. United States v. E.C. Knight (1895): The Court refused to apply the Sherman Anti-Trust Act to break up the Sugar Trust (a monopoly of the production of sugar), on the ground that it was a regulation of manufacturing, rather than commerce. Adair Case: RR Corp requiring yellow dog contracts (no Sherman Act violation) Loewe v. Lowder: Union hatters boycotting (Sherman Act violation) Addyston Pipe & Steel Co. v. United States (1899): The Court upheld a Sherman Act suit against iron pipe companies conspiring to fix prices, which the Court characterized as not only a manufacturing restraint, but also a direct restraint upon interstate commerce. Coronado Coal Co. v. United Mine Workers (1908): the Court affirmed a Sherman Act injunction against a local labor strike, on the ground that there was an intent to restrain interstate commerce, and the means employed were calculated to carry that intent into effect. Champion v. Ames (The Lottery Case) (1903): Upheld the constitutionality of the federal Lottery Act, which outlawed carrying lottery tickets across state lines. Hipolite Egg cant ship impure food and drugs Hoke cant ship women for prostitution Caminetti cant ship women for a tryst Swift & Co. v. United States (1905): upheld a Sherman Act injunction against price-fixing by meat-packers. Against objection that this was federal regulation of intrastate commerce, Holmes responded: When cattle are sent for sale from a place in one State, with the expectation that they will end their transit, after purchase in another, and when in effect they do so, with only the interruption necessary to find a purchaser at the stockyard, and when this is a typical, constantly recurring course, the current thus existing is a current of commerce among the States, and the purchase of the cattle is a part and incident of such commerce. Houston, East & West Texas Railway v. United States (The Shreveport Rate Case) (1914): The Interstate Commerce Commission directed the railway to equalize its rates between Dallas and Marshall, Texas and Marshall and Shreveport, Louisiana, because the authority that the Federal government has over the interstate carriers when

M.

N.

O.

P.

they cross state lines allows regulation of the intrastate activity as well. Hammer v. Dagenhart (The Child Labor Case) (1918): Congress had no Commerce Clause power to prohibit interstate transportation of goods made by child labor it was linked primarily to production. Note on the New Deals Early Difficulties Meeting Commerce Clause Scrutiny, 1934-1936 1. Railroad Retirement Board v. Alton Railroad (1935): Court struck down the Railroad Retirement Act of 1934. The power to regulate did not extend to establishment of a mandatory retirement plan for railroad workers. 2. Schechter Poultry Corp. v. United States (1935): invalidated the National Industry Recover Acts labor rules for the New York poultry market. 3. Carter v. Carter Coal Co. (1936): struck down the Coal Conservation Act. National Labor Relations Board v. Jones & Lauglin Steel Corp. (1937): because the steel company was a large, vertically integrated enterprise, disruption of manufacturing operations would disrupt the stream of interstate commerce (Swift) and, in the alternative, that disruption of intrastate manufacturing by labor strife would directly affect commerce and that Congress can act to prevent obstructions to the overall free flow of commerce (the Shreveport Rate Case). If they have such a close and substantial relation to interstate commerce that their control is essential or appropriate to protect that commerce from burdens and obstructions, Congress has the power to exercise that control. Unites States v. Darby (1941) 1. Darby, who manufactured lumber in Georgia and shipped some of it to customers in other states, was indicted for violating the Fair Labor Standards Act, but the district court quashed the indictment on the ground that the statute was unconstitutional under Hammer v. Dagenhart. 2. We conclude that the prohibition of the shipment interstate of goods produced under the forbidden substandard labor conditions is within the constitutional authority of Congress. 3. Hammer v. Dagenhart was a departure from the principles which have prevailed in the interpretation of the Commerce Clause both before and since the

Q.

R.

S.

T.

decision and that such vitality, as a precedent, as it then had has long since been exhausted. 4. The power of Congress over interstate commerce is not confined to the regulation of commerce among the states. It extends to those activities intrastate which so affect interstate commerce or the exercise of the power of Congress over it as to make regulation of them appropriate means to the attainment of a legitimate end. Wickard v. Filburn (1942): A quota on the production of wheat is upheld because the regulation is the federal governments effort to stabilize national wheat prices by limiting the supply. Heart of Atlanta Motel v. United States (1964) 1. The Heart of Atlanta Motel was a 216-room motel located close to posh Peachtree Street in Atlanta, as well as major state and national highways. The motel refused to accommodate African Americans and sought an order invalidating Title II of the Civil Rights Act of 1964 as applied to its business. 2. The determinative test of the exercise of power by the Congress under the Commerce Clause is simply whether the activity sought to be regulated is commerce which concerns more States than one and has a real and substantial relation to the national interest. 3. Congress was not restricted by the fact that the particular obstruction to interstate commerce with which it was dealing was also deemed a moral and social wrong. Katzenbach v. McClung (1964): Title II constitutionally applied to Ollies Barbecue because discrimination in restaurants had a direct and highly restrictive effect upon interstate travel by Negroes. Where we find that the legislators, in light of the facts and testimony before them, have a rational basis for finding a chosen regulatory scheme necessary to the protection of commerce, our investigation is at an end. Note on the Commerce Clause After the New Deal and Civil Rights Act Decisions 1. Perez v. United States (1971): the Court upheld a federal statute prohibiting extortionate credit transactions. Where the class of activities is regulated and that class is within the reach of federal power, the courts have no power to exercise, as trivial, individual instances of the class.

U. United States v. Lopez (1995) Rehnquist opinion 1. Federal agents charged Alfonso Lopez with violating the federal Gun-Free School Zones Act of 1990, which made it a federal offense for any individual knowingly to possess a firearm at a place that the individual knows, or has reasonable cause to believe, is a school zone. 2. At trial and on appeal, Lopez challenged the authority of Congress to legislate concerning local gun possession. The Court of Appeals held that Congress did not have this authority under the Commerce Clause. 3. There are three broad categories of activity that Congress may regulate under its commerce power: a. Use of the channels of interstate commerce b. Regulate and protect the instrumentalities of interstate commerce, or persons or things in interstate commerce. c. Power to regulate those activities having a substantial relation to interstate commerce. 4. The statute has nothing to do with commerce or any sort of economic enterprise, however broadly one might define those terms. 5. The statute contains no jurisdictional element which would ensure, through case-by-case inquiry, that the firearm possession in question affects interstate commerce. 6. Neither the statute nor its legislative history contains express congressional finding regarding the effects upon interstate commerce of gun possession in a school zone. 7. The Government argues that possession of a firearm in a school zone may result in violent crime and that violent crime can be expected to affect the functioning of that national economy in two ways. Violent crime reduces the willingness of individuals to travel to areas within the country that are perceived to be unsafe. 8. KENNEDY, Concurring: a. The Court as an institution and the legal system as a whole have an immense stake in the stability of our Commerce Clause jurisprudence as it has evolved to this point. b. Although it is the obligation of all officers of the Government to respect the constitutional design, the federal balance is too essential a

part of our constitutional structure and plays too vital a role in securing freedom for us to admit inability to intervene when one or the other level of Government has tipped the scales too far. c. It is well established that education is a traditional concern of the States. 9. SOUTER, Dissenting: The Court gestures toward two other considerations that it might sometime entertain in applying rational basis scrutiny (apart from a statutory obligation to supply independent proof of a jurisdictional element): does the congressional statute deal with subjects of traditional state regulation, and does the statute contain explicit factual findings supporting the otherwise implicit determination that the regulated activity substantially affects interstate commerce? 10. BREYER, Dissenting: a. The power to regulate Commerce encompasses the power to regulate local activities insofar as they significantly affect interstate commerce. b. In determining whether a local activity will likely have a significant effect upon interstate commerce, a court must consider, not the effect of an individual act (a single instance of gun possession), but rather the cumulative effect of all similar instances (i.e. the effect of all guns possessed in or near schools). c. Courts must give Congress a degree of leeway in determining the existence of a significant factual connection between the regulated activity and interstate commerce both because the Constitution delegates the commerce power directly to Congress and because the determination requires an empirical judgment of a kind that a legislature is more likely than a court to make with accuracy. d. Having found that guns in schools significantly undermine the quality of education in our Nations classrooms, Congress could also have found, given the effect of education upon interstate and foreign commerce, that gunrelated violence in an around schools is a commercial , as well as a human, problem.

e. The evidence of (1) the extent of the gunrelated violence problem, (2) the extent of the resulting negative effect on classroom learning, and (3) the extent of the consequent negative commercial effects, when taken together, indicate a threat to trade and commerce that is substantial. f. The majoritys holding runs contrary to modern Supreme Court cases that have upheld congressional actions despite connections to interstate or foreign commerce that are less significant than the effect of school violence. g. The Court erroneously believes that it can reconcile its holding with earlier cases by making a critical distinction between commercial and non commercial transactions h. More importantly, if a distinction between commercial and noncommercial activities is to be made, this is not the case in which to make it. The majority clearly cannot intend such a distinction to focus narrowly on an act of gun possession standing by itself, for such a reading could not be reconciled with possession standing by itself, for such a reading could not be reconciled with McClung or Perez in each of those cases the specific transaction the race-based exclusion, the use of force) was not itself commercial i. The third legal problem created by the Courts holding is that it threatens legal uncertainty in an area of law that, until this case, seemed reasonably well settled. III. Congressional Authority to Promote Civil Rights A. The Reconstruction Amendments and Federal Statutes Adopted Under Them 1. The Civil Rights Cases (1883) a. The Court reasoned that 5 of the 14th Amendment allowed Congress to adopt appropriate legislation for correcting the effects of prohibited State law and State acts, and thus to render them effectually null, void, and innocuous. b. In those cases where the Constitution seeks to protect the rights of the citizen against discriminative and unjust laws of the State by

prohibiting such laws, it is not individual offenses, but abrogation and denial of rights, which it denounces, and for which it clothes the Congress with power to provide a remedy (state action, not private conduct). c. The 13th Amendment abolished slavery, and established universal freedom. d. We are forced to the conclusion that such an act of refusal has nothing to do with slavery or involuntary servitude, and that if it is violative of any right of the party, his redress is to be sought under the laws of the State; or if those laws are adverse to his rights and do not protect him, his remedy will be found in the corrective legislation which Congress had adopted. 2. Notes on The Civil Rights Cases a. Plessy bears many similarities to The Civil Rights Cases. Both decisions denied any state responsibility for redressing private discrimination against the freed slaves, and both found Justice Harlan in solo dissent, arguing that the remedial agenda of Reconstruction was betrayed. b. United States v. Guest (1966): The Court ruled that 5 authorized Congress to make it a crime for white supremacists to conspire to deprive African Americans of their civil rights. 3. Jones v. Alfred H. Mayer Co. (1968) a. The Court held that the Civil Rights act of 1866 bars all racial discrimination, including private discrimination, in the sale or rental of property. The question here is whether Congress has power under the Constitution to prohibit all racial discrimination, private and public, in the sale and rental of property. B. The Violence Against Women Act 1. United States v. Morrison (2000) a. Petitioner was raped by Morrison and Crawford while all three were students at Virginia Tech. She filed a complaint against respondents under Virginia Techs Sexual Assault Policy. The Judicial Committee found insufficient evidence to punish Crawford, but found Morrison guilty of sexual assault. Morrisons

punishment was set aside as excessive punishment. b. Petitioner dropped out of the university and sued it and the male students under the Violent Against Women Act, which provides a federal cause of action for the victim of a crime of violence motivated by gender against the perpetrator. c. The Court considered whether either the Commerce Clause or 5 of the Fourteenth Amendment authorized Congress to create this new cause of action (civil damages). d. Gender-motivated crimes of violence are not, in any sense of the phrase, economic activity. We accordingly reject the argument that Congress may regulate noneconomic, violent criminal conduct based solely on that conducts aggregate effect on interstate commerce. e. Petitioners 5 argument is founded on an assertion that there is pervasive bias in various state justice systems against victims of gendermotivated violent. This assertion is supported by a voluminous congressional record. f. The language and purpose of the 14th Amendment places certain limitations on the manner in which Congress may attack discriminatory conduct. g. Court determined that the Act was too broad and beyond the scope of Congresss authority. h. SOUTER, Dissent: i. Like racial discrimination, gender-based violence bars its most likely targets women from full participation in the national economy. ii. Thus the elusive heart of the majoritys analysis in these cases is its statement that Congresss findings of fact are weakened by the presence of a disfavored method of reasoning 2. Notes on Morrison and the Values of Federalism IV. Beyond the Commerce Power and the Civil Rights Enforcement Power A. Spending Power Could Congress regulate anyway? 1. South Dakota v. Dole (1987) a. In 1984, Congress directed the Secretary of Transportation to withhold 5% of the federal

highway funds otherwise payable to states from any state which permits purchase or public possession of any alcoholic beverage by a person less than 21 years old. South Dakota sought a declaratory judgment that the statute violates constitutional limits on the congressional spending power and also violates the 21st Amendment. b. We find this legislative effort within constitutional bounds even if Congress may not regulate drinking ages directly. c. The Spending Power must be (1) in pursuit of the general welfare; (2) made unambiguously (in clear language); (3) related to the federal interests in particular national projects or programs; and (4) not otherwise barred by an independent condition. B. Powers Granted to Congress Outside of Article I: A Look at the Treaty Power 1. Missouri v. Holland (1920) Holmes opinion a. State of Missouri sued to prevent a game warden of the United States from attempting to enforce the Migratory Bird Treaty Act and the regulations made by the Secretary of Agriculture in pursuance of it. A motion to dismiss was sustained by the District Court on the ground that the act of Congress is constitutional. The State appeals. b. The Act prohibited the killing, capturing, or selling any of the migratory birds included in the terms of the treaty except as permitted by regulations compatible with those terms, to be made by the Secretary of Agriculture. c. Article II expressly delegates the power to make treaties, and Article VI declares those treaties the supreme law of the land when made in pursuance of the Constitution. d. The treaty in question does not contravene any prohibitory words to be found in the Constitution. e. The treaty and statute must be upheld. V. Intergovernmental Immunities and Congressional Power A. State Immunity from Direct National Regulation 1. National League of Cities v. Usery (1976): in order to be unconstitutional, a statute must meet all of the following requirements: (1) there must be a showing

that the challenged statute regulates the States as States; (2) the federal regulation must address matters that are indisputably attributes of state sovereignty; (3) it must be apparent that the States compliance with the federal law would directly impair their ability to structure integral operations in areas of traditional governmental functions. 2. Garcia v. San Antonio Metropolitan Transit Authority (1985) a. Is the SAMTA subject to the minimum-wage and overtime requirements of the FLSA? Yes. b. We therefore now reject, as unsound in principle and unworkable in practice, a rule of state immunity from federal regulation that turns on a judicial appraisal of whether a particular governmental function is integral or traditional. We accordingly return to the underlying issue that confronted this Court in National League of Cities the manner in which the Constitution insulates States from the reach of Congress power under the Commerce Clause. c. We perceive nothing in the overtime and minimum-wage requirements of the FLSA, as applied to SAMTA, that is destructive of state sovereignty or violative of any constitutional provision. SAMTA faces nothing more than the same minimum-wage and overtime obligations that hundreds of thousands of other employers, public as well as private, have to meet. d. POWELL, Dissent: More troubling than the logical infirmaties in the Courts reasoning is the result of its holding that federal political officials, invoking the Commerce Clause, are the sole judges of the limits of their own power. In rejecting the role of the judiciary in protecting the States from federal overreaching, the Courts opinion offers no explanation for ignoring the teaching of the most famous case in our history. B. State Immunity from National Commandeering 1. Printz v. United States (1997) Scalia opinion a. Brady Act/Gun Control Act of 1968 can the federal government compel state law enforcement to take certain actions?

b. The Federal Government may not compel the States to enact or administer a federal regulatory program. The mandatory obligation imposed on CLEOs to perform background checks on prospective handgun purchasers plainly runs afoul of that rule. Accordingly, the Court invalidated those parts of the Brady Act requiring CLEOs to make background checks and to accept notice of the contents of, and a copy of, the completed Brady Form, which the firearms dealer is required to provide to him. c. STEVENS, dissent: There is not a clause, sentence, or paragraph in the entire text of the Constitution of the United States that supports the proposition that a local police officer can ignore a command contained in a statute enacted by Congress pursuant to an express delegation of power enumerated in Article I. This was no accident, because a key goal of the Constitution was to empower the national government. Chapter 8: Separation of Powers I. Issues of Executive Aggrandizement (The Imperial Presidency) A. The General Post-New Deal Framework 1. Youngstown Sheet & Tube Co. v. Sawyer (The Steel Seizure Case) (1952) a. During the Korean War, a three-way dispute broke out among the government, the steel companies, and the unions: the unions wanted a wage increase, which the companies wouldnt grant without a hefty price increase, which the government resisted. b. On April 4, 1952, the union announced a nationwide strike to start on April 9. Hours before the strike was to commence, the President issued Executive Order 10340, which directed the Secretary of Commerce to take possession of the steel industry and to keep the mills operating in order to assure the continues availability of steel and steel products during the existing emergency. On April 30, the steel companies obtained a preliminary injunction against the Secretarys action. The Court announced its decision affirming the injunction on June 2, 1952.

c. There is no statute that expressly authorizes the President to take possession of property as he did here. Nor is there any act of Congress to which our attention has been directed from which such a power can fairly be implied. (No Inherent Presidential Power) d. When the Taft-Hartley Act was under consideration in 1947, Congress rejected an amendment which would have authorized such governmental seizures in cases of emergency. e. The order cannot properly be sustained as an exercise of the Presidents military power as Commander in Chief of the Armed Forces. f. The Presidents order does not direct that a congressional policy be executed in a manner prescribed by Congress it directs that a presidential policy be executed in a manner prescribed by the President. g. FRANKFURTER, Concurring (No Interstatial Executive Power): i. It is an inadmissibly narrow conception of American constitutional law to confine it to the words of the Constitution and to disregard the gloss which life has written upon them. In short, a systematic, unbroken, executive practice, long pursued to the knowledge of the Congress and never before questioned, engaged in by Presidents who have also sworn to uphold the Constitution, making as it were such exercise of power part of the structure of our government, may be treated as a gloss on executive Power. ii. However, it suffices to say that the three isolated instances relied upon by the President do not add up, either in number, scope, duration or contemporaneous legal justification, to a systematic and longstanding executive construction of the Constitution. Nor do they come to us sanctioned by longcontinues acquiescence of Congress giving decisive weight to a construction by the Executive of its powers. h. JACKSON, Concurrence (Legislative Accountability): Three practical situations in

which a President may doubt, or others may challenge, his powers: i. When the President acts pursuant to an express or implied authorization of Congress, his authority is at it maximum, for it includes all that he possess in his own right plus all that Congress can delegate. ii. When the President acts in absence of either a congressional grant or denial of authority, he can only rely upon his own independent powers. iii. When the President takes measure incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter. **THIS IS WHERE JACKSON THINKS THE ACTION FALLS i. CHIEF JUSTICE VINSON, Dissent (Broad Inherent Authority): Presidents have taken prompt action to enforce the laws and protect the country whether or not Congress happened to provide in advance for the particular method of execution. The fact that Congress and the courts have consistently recognized and given their support to such executive action indicates that such a power of seizure has been accepted throughout our history. 2. Note on Framework for Thinking About Separation of Powers Issues a. Formalist Categories: because the Presidents action falls under the legislative power defined in Article I and under none of the executive powers defined in Article II, the President was acting beyond his authority. b. Constrained functionalism: Draws constitutional lines flexibly so as to allow the President to take action in emergencies, but not so flexibly as to ignore congressionally directed procedures for action. c. Evolutive functionalism constitutional adverse possession: essentially defers to the political

branch taking the challenged action, so long as it has some historical precedent. II. Issues of Legislative Overreaching A. Excessive Congressional Delegations and the Article I, Section 7 Structure for Lawmaking 1. The Decline and Potential Revival of the Nondelegation Doctrine that doctrine posts that Congress cannot, consistent with Article I, delegate lawmaking powers to other groups (the executive, agencies, courts, private groups). a. Mistretta v. United States (1989): The Supreme Court unanimously rejected a nondelegation challenge to the Sentencing Reform Act of 1984, which charged the United States Sentencing Commission with developing Sentencing Guidelines to assure greater predictability and uniformity in the sentences received for violations of federal criminal law. The Court found that Congress had set forth its goals and also limits when tasking the Commission with the specifics. 2. Legislative Veto typically a legislative veto provision of a statute provides that an agency or department must inform a congressional committee of specified actions, that those actions cannot have operative legal effect for a specified period of time, and that they can be nullified by vote a committee, or of one chamber, or of both chambers of Congress. NOW UNCONSTITUTIONAL. If Congress wants to overturn an executive action, there must be bicameralism, passage by both houses of Congress, and presentment, giving the bill to the president for signature or veto. a. Immigration & Naturalization Service v. Chadha (1983) i. Chadha, an East Indian born in Kenya who held a British passport, was lawfully admitted to the US on a nonimmigrant student visa. After his visa expired and he was subject to deportation, an immigration judge concluded that he had met the statutory grounds for a suspension of deportation: he had resided continuously in the US for over 7 years, was of good moral character, and

would suffer extreme hardship if deported. ii. In December 1975, the Judiciary Subcommittee on Immigration, Citizenship, and International Law, introduced a resolution opposing the granting of permanent resident in the United States to six aliens, including Chadha. It was the feeling of the committee that the aliens did not meet these statutory requirements, particularly as it relates to hardship; and it is the opinion of the committee that their deportation should not be suspended. The resolution was passed without debate or recorded vote. iii. The Ninth Circuit held that the House action was unconstitutional. The Supreme Court affirmed. iv. Congress made a deliberate choice to delegate to the Executive Branch, and specifically to the Attorney General, the authority to allow deportable aliens to remain in this country in certain specified circumstances. v. POWELL, concurrence: When Congress finds that a particular person does not satisfy the statutory criteria for permanent residence in the country it has assumed a judicial function in violation of the principle of separation of powers. III. Separation of Powers, Due Process, and the War on Terror A. Hamdi v. Rumsfield (2004) OConnor opinion 1. Hamdi, an American citizen, was captured in Afghanistan and after some intermediate stops was detained at a naval brig in Charleston, SC. No charges were filed against him. His father filed a habeas corpus petition on his behalf. 2. We consider the legality of the Governments detention of a US citizen on US soil as an enemy combatant and address the process that is constitutionally owed to one who seeks to challenge his classification as such. Due process demands that a citizen held in the US as an enemy combatant be given a meaningful opportunity to contest the factual

3. 4.

5.

6. 7.

8.

9. 10.

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basis for that detention before a neutral decisionmaker. The threshold question before us is whether the Executive has the authority to detail citizens who qualify as enemy combatants. The Government maintains that no explicit congressional authorization is required, because the Executive possesses plenary authority to detain pursuant to Article II of the Constitution. We do not reach the question whether Article II provides such authority, however, because we agree with the Governments alternative position, that Congress has in fact authorized Hamdis detention through the Authorization for Use of Military Force (AUMF). We conclude that the AUMF is explicit congressional authorization for the detention of individuals in the narrow category we describe (assuming, without deciding, that such authorization is required), and that the AUMF satisfied the requirement that a detention be pursuant to an Act of Congress. Hamdi contends that the AUMF does not authorize indefinite or perpetual detention. We hold that a citizen-detainee seeking to challenge his classification as an enemy combatant must receive notice of the factual basis for his classification, and a fair opportunity to rebut the Governments factual assertions before a neutral decisionmaker. Enemy combatant proceedings may be tailored to alleviate their uncommon potential to burden the Executive at a time of ongoing military conflict. We necessarily reject the Governments assertion that seperation of powers principles mandate a heavily circumscribed role for the courts in such circumstances. Plainly, the process Hamdi has received is not that to which he entitled under the Due Process Clause. SOUTER, concurrence: The government had failed to show that it was detaining Handi in accord with the laws of war. Its compliance with the Geneva Convention was questionable, because the Convention seems to give detainees in Hamdis position the right to a hearing before a neutral tribunal, which the government had not provided. SCALIA, dissent: Citizens aiding the enemy have been treated as traitors subject to the criminal

I.

process. Hamdi is entitled to a habeas decree requiring his release unless (1) criminal proceedings are promptly brought, or (2) Congress has suspended the writ of habeas corpus. If civil rights are to be curtailed during wartime, it must be done openly and democratically, as the Constitution requires, rather than by silent erosion through an opinion of this Court. B. Notes on Hamdi and the War on Terror 1. Does the federal government have the authority to detain American citizens indefinitely without a criminal charge or a congressional suspension of habeas? 2. Does the President have the authority to detain American citizens? 3. What process is constitutionally owed to detain citizens who dispute their enemy combatant status? Cases or Controversies A. Raines v. Byrd (1997) 1. Challenge to federal legislation authorizing a line item veto. 2. The suit was brought by legislators who had voted against the bill and argued that it violated the Presentment Clause of Article I 7. The Supreme Court ordered the complaint dismissed for lack of standing. 3. The Court noted that the plaintiffs alleged no injury to themselves as individuals and the institutional injury they allege is wholly abstract and widely dispersed. B. Notes on Raines v. Byrd C. Allen v. Wright (1984) 1. A class of African-American parents alleged that the IRS was not complying with its obligations to investigate potentially discriminatory private schools and to deny tax-exempt status to those found to discriminate. The parents did not allege that their children had applied and been denied admission to the schools. Rather, they contended that the IRS had effectively encouraged segregation. 2. Respondents allege two injuries in their complaint to support their standing to bring this lawsuit. First, they say that they are harmed directly by the mere fact of Government financial aid to discriminatory private schools. Second, they say that the federal tax exemptions to racially discriminatory private

schools in their communities impair their ability to have their public schools desegregated. Both Points Fail. 3. The illegal conduct challenged by respondents is the IRSs grant of tax exemptions to some racially discriminatory schools. The line of causation between that conduct and desegregation of respondents schools is attenuated at best. 4. BRENNAN, Dissent: in these cases, the respondents have alleged at least one type of injury that satisfies the constitutional requirement of distinct and palpable injury. In particular, they claim that the IRSs grant of tax-exempt status to racially discriminatory private schools directly injures their childrens opportunity and ability to receive a desegregated education. Respondents have alleged a direct causal relationship between the Government action they challenge and the injury they suffer: their inability to receive an education in a racially integrated school is directly and adversely affected by the tax-exempt status granted by the IRS to racially discriminatory schools in their respective school districts. 5. STEVENS, Dissent: we have held that when a subsidy makes a given activity more or less expensive, injury can be fairly raced to the subsidy for purposes of standing analysis because of the resulting increase or decrease in the ability to engage in the activity. D. Northeastern Florida Chapter of the Associated General Contractors of America v. Jacksonville (1993) 1. An MBE ordinance was challenged by an association of individuals and firms in the construction industry who did business in Jacksonville and did not qualify under MBEs under the citys ordinance. The Eleventh Circuit held that the association lacked standing, because it has not demonstrated that, but for the program, and association members would have bid successfully for any of these contracts. The Supreme Court reversed. 2. When the government erects a barrier that makes it more difficult for members of one group to obtain a benefit than it is for members of another group, a member of the former group seeking to challenge the barrier need not allege that he would have obtained the benefit but for the barrier in order to establish standing. The injury in fact in an equal

protection case of this variety is the denial of equal treatment resulting from the imposition of the barrier, not the ultimate inability to obtain the benefit.