I. ORIGINS OF AMERICAN CONSTITUTIONALISM

A. Background and Theory of the Constitution

1. Federalists--support centralization/constitution. Madison.

a. Federalist No. 10--Republican government and factions

i. Large republic ensures no majority factionCivic virtue can't solve inevitable factions, only a large republic can. Large republic makes it harder for a majority faction to take hold. Representative government solves factions by serving as a lens for public views to pass through.

ii. Bicameralism, the electoral college, and checks and balances are all assurances that the agent (government) will remain faithful to the principal (people).

b. Federalist No. 51—Separation of Powers"Ambition counteracting ambition." SOP prevents one branch from taking over the others. Legislative dominance justifies dividing it, executive needs fortification. Solves agency problem by preventing government from becoming independent of the public.

2. Antifederalists--oppose centralization/constitution. Jefferson.Oppose the constitution on republican grounds--takes too much power from the states. Government's first task is to facilitate civic virtue so citizens may rule themselves.

3. Legitimacy issueHow did the framers have the authority to speak for "We the people"?

a. Procedural legitimacy suspectPreexisting government does not legitimize the constitution. Framers were supposed to amend the articles of confederation and this required unanimous consent. Instead they wrote the constitution and only required ratification by 9 states to enact it.

4. Purpose of the constitution

a. Prevent tyranny--see federalist 10Factions are groups of people with similar interests who try to affect the government machinery to accomplish their ends. Madison was only concerned with factions, of the many, few or one.

b. Strengthen federal government

An article of confederation--Major drawback was weakness of national government. Can be understood more like treaty among sovereign states. Constitution solved this by taking more power from the states. (i) No power to raise revenue/tax, (ii) No energy in the executive in domestic affairs, (iii) Interstate conflict and protectionism, (iv) Inability to form treaties with foreign governments, (v) States' unwillingness to honor obligations. Constitution prevents states from free-riding.

c. Solution to agency problemWe need government to prevent individuals from defecting from the social contract and we need SOP and federalism to ensure the government pursues solutions to collective problems.

II. INTERPRETING THE CONSTITUTION

A. Judicial Review of Constitutionality of Legislation

1. Competing Conceptions of Judicial Review

a. Judicial review based on written constitution--Marbury v Madison

i. Facts: Adams’ midnight appointments. Jefferson refuses to deliver the commission; Marbury brings a direct action in the Supreme Court for mandamus to force Jefferson's secretary of state, Madison, to deliver. The Court dismisses for want of SMJ because Judiciary Act giving them original jurisdiction violated Article III.

ii. Significance of MarburyFirst case to exercise judicial review against an act of congress--it is the court's duty to say what the law is.

iii. Bases for judicial review

(a) Written constitutionPurpose of written constitution is to keep the agent faithful to the principal and, since we are worried about the legislature being unfaithful, only judicial review is consistent with the agency model.

(b) Notions of judicial role

(c) Supremacy clause

(d) Grant of jurisdiction

(e) Judge's oath

(f) Framers' intent.

iv. Function of judicial review

(a) Checking functionBest justification of the broad view of judicial review is the notion that it is necessary to keep the legislature within bounds.

v. Arguments in favor of Supreme Court review of states

(a) Objections are not unique because of other constitutional limits on states

(b) Other constitutional limits on states prove Supreme Court review is structurally consistent

(c) State authority to hear federal cases means Supreme Court review is necessary to avoid states having the last word on federal issues.

(d) State prejudices and conflicts mean they need the Supreme Court. State judges, elected, lack sufficient sympathy with federal rights.

(e) Need Supreme Court to unify. Everyone should have the same protections under the constitution

b. Scope of the Court's authority to interpret the constitution vis-à-vis other branches

i. Judicial deference to elected branches--Tie goes to the legislature since when they enact a law they assume it is constitutional. Combine with Hand's argument that judicial deference promotes legislative responsibility

(a) S. Ct. might have unique expertise on constitutional issues

(b) Test argument by contrasting legislative competence in areas where the court has and has not deferred. Impeachment might be a good example.

ii. Once the court has ruled, a few options as to how elected branches should treat the ruling

(a) Political branch may say an Act is unconstitutional after the Court finds it constitutional. Example: National Bank vetoed by Madison for unconstitutionality after the Court had approved it.

(b) Political branch may say an Act is constitutional after the Court finds it unconstitutional.

c. Answers to the countermajoritarian problem of judicial review

i. Remove judgment from judicial review--mechanical approachExample: US v Butler (hold the law up to the constitution and see if they square).

ii. Judges have superior democratic statusJudicial review was established at a time of heightened constitutional awareness, so judges might have superior democratic status to transient majorities.

iii. Thayer--Judicial review only when clear error

iv. Judicial review protects underrepresented political groups.

2. Methods of Constitutional Interpretation

a. If we fear judges imposing their own values then we need a way to determine what the constitution says.

i. Original understandingWhose understanding counts, drafters or ratifiers? Can we ascertain a collective intent if it exists? The issue might never have been considered--did the framers enact their conception or a concept? Did they mean what they said in debates? Remember Levy: how much of the convention was actually recorded?

ii. TextOften multiple outcomes consistent with the text, it is not outcome determinative.

iii. Precedent--legislative and judicial

iv. StructureLook to the structure of the institutions set up by the constitution.

v. Consequences/Prudentialist argumentsSlippery slope arguments, for example.

3. Review in Action: McColluch v. Maryland

a. Congress passes statute authorizing creation of U.S. Bank. State of Maryland wants to tax it. Does national government have power to create a bank, and does MD have power to tax it?

b. Madison and Jefferson opposed creation because no enumerated power. Hamilton said implied—looked to strength between mean and end. (Jefferson’s description of necessary)

c. Marshall writes that Congress has the power to create a national bank. “Let the ends be legitimate-let means be appropriate and adapted to that end, not prohibited, and consistent with letter and spirit of Constitution.” Power to create comes from necessary and proper clause as well as the related powers (tax, borrow, regulate commerce). Looks at structure and location of N&P clause.

d. Maryland doesn’t have the power to tax bank because of Supremacy clause. Power of taxation

given to state by consent of the people (Power to tax is the power to destroy). Cannot exercise that power over federal instrument because national populace didn’t approve.

e. Marshall created an immunity where Congress did not. Rather than waiting for Congress to pass restriction on taxation, wrote decision. JUDICIAL ACTIVISM.

B. Judicial Review and Natural Law Tradition

1. Protection of Property Rights: Fletcher v. Peck

a. Georgia legislature bribed to pass law for cheap land to sell to private companies. Pl, an innocent party, bought land from private investor. Georgia legislature rescinded contract.

b. Marshall wrote for court that legislature couldn’t repeal the law because it interfered with contract.

c. Contract Clause in Constitution, Art I, Section 10, says: No state shall pass any law impairing the obligation of contracts. Original understanding of contract clause was for debtor’s relief.

d. Marshall relies of natural law because the commerce clause doesn’t fit. Natural law relies on general principles common to free institutions. It is not based in statutes (positive law), but on human nature, divine justice. Natural law is higher than any human made law.

2. The Antelope

a. Ship with slaves owned by Portugal/Spain seized off Florida coast; slave trade illegal in the U.S. Slave trade was still legal in Portugal/Spain.

b. Marshall wavering between natural law, which had its own conflict between property and liberty rights, and the current positive law, which was that slavery wasn’t illegal in Brazil or Cuba, where the slaves were bound.

c. Ruled that the slaves must be returned to Portugal/Spain, that the U.S. cannot impose its laws on another country. Natural law (supporting the slaves’ liberty) has no legal effect unless secured by the positive law.

C. Regulation of Interstate Commerce

1. Gibbons v. Ogden

a. Ogden was given exclusive navigation rights on a watercourse between NY and NJ by the state of NY. Gibbons claimed a right to navigate the same watercourse under a federal licensing statute.

b. Commerce Clause, Art. I, Section 8: “Congress shall have power to regulate commerce with foreign nations, and among the several states, and with the Indian tribes.”

c. Congress has the exclusive power to regulate interstate commerce.

d. Completely internal commerce that only affects a particular state, is controlled by the state. Commerce affecting more that one state is controlled by Congress. Because NY monopoly is in direct conflict with federal power, must yield to federal authority.

e. Congressional power over commerce is plenary—acknowledges no limitations other than those prescribed in Constitution. Marshall finds conflict where there is none, in order to strengthen federal government.

2. Willson v. Blackbird Creek Marsh Co.

a. Blackbird Creek Marsh Co. built a bridge over the creek. Willson ran into it, damaged it.

b. Willson said only congress had power to regulate navigation, and that state statute authorizing bridge’s construction violated federal law. No federal statute regulating the creek.

c. In the absence of congressional regulation, in an area regulated by congress, a state statute is valid. Legitimate exercise of state police power.

III. THE TANEY COURT AND THE CIVIL WAR

A. Slavery

1. Dred Scott

a. Scott brought assault claim against owner. Scott claimed to have been freed from his slave status by his travels to free states with his master. Argued that because he was free, and considered a citizen of the state, he could sue in fed court

b. The court ruled that Scott was not a citizen. Taney argues that the framers of the Constitution did not intend for blacks to be considered citizens. They weren’t included in the word “citizen.” He said that the const should be interpreted just as the framers intended and not be a mere reflection of the popular opinion or passion of the day.

c. Terrible decision. Taney may have thought he was avoiding civil war, but decision is ahistorical, non-originalist. Southern morality is impetus for this decision.

2. President Trying to Avert War: Prize Cases

a. Lincoln issued a proclamation blockading all confederate ports. Shipowners said this was beyond his authority in absence of war.

b. Court held that president does have power to call out the forces under the congressional acts of 1795 and 1807. He doesn’t have to wait for congress to give permission.

c. Court says it’s not presidential supervisor. If president has one option, he has them all.

d. South argued that they had a constitutional right to secede, derived from their sovereignty. If South doesn’t have a right to succeed by the const and they succeed anyway, they have violated const; therefore, who has a right to stop Lincoln’s proclamation? Lincoln’s argument similar to Marshall’s in McCulloch: the states are a nation for the people, by the people. Should have strong national government.

IV. FROM RECONSTRUCTION TO THE NEW DEAL

A. The Thirteenth Amendment

1. Abolished slavery; passed in 1865

2. South reinstitutionalized the “Black Codes”

B. Civil Rights Act of 1866

1. Provided for civil, not political or social, rights for blacks. Narrow set of civil functions. Supporters of bill said that only rights given are those enumerated.

C. The Fourteenth Amendment

1. Understood to constitutionalize the Civil Rights Act of 1866

2. Also understood to shift balance of power to federal government.

3. The Text:

a. §1: "All persons born or naturalized in the United States, and subject to the jurisdiction hereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges and immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."

b. Three rights: (1) the right to due process; (2) the right to equal protection; and (3) the right to the privileges and immunities of national citizenship. (5th Amendment to Federal Gov’t)

c. One of the major functions of the 14th Amendment’s Due Process Clause is to make the Bill of Rights applicable to the states.

d. §5: Congress has the power to enforce, by appropriate legislation, the provisions of this article

D. Cases Relating to the Reconstruction Amendments

1. Strauder v. W. Virginia

a. A black man was convicted of murder in a state where blacks were excluded from juries by statute. Argued that he was denied equal protection because W. Virginia excluded persons of his own race from a jury

b. Strauder’s equal protection of the laws was violated because he couldn’t receive a fair trial under the condition that blacks were to be excluded from juries. Established two legal systems. Prohibited by spirit, if not the letter, of the 14th Amendment.

c. Representation reinforcement: (as explained in Carolene products footnote)—sometimes there should be judicial intervention when majorities cannot fairly deal with minorities.

d. Even though this was a race classification case, it was not subject to strict scrutiny (doesn’t apply to race until Korematsu (1944)).

2. Civil Rights Cases (1883)

a. Decides the constitutionality of the Civil Rights Act of 1875

b. Because the Reconstruction Amendments refer to government action, Act provided that discrimination in public accommodations, even those run by private individuals, was illegal.

c. Court held that the Fourteenth Amendment only prohibits the state from discriminating, not private individuals. (Thirteenth Amendment doesn’t apply) Civil rights act of 1875 is overruled.

d. Thirteenth Amendment addresses private persons and governments, but does not prohibit most racially discriminatory practices other than involuntary servitude. Fourteenth Amendment prohibits state, not private action. Congress cannot on its own ban private discrimination by using the 14th Amendment.

e. This is a non-originalist decision.

3. Plessy v. Ferguson (1896)

a. Louisiana statute for travel within the state required “equal but separate” cars for different races.

b. Exercise of state police power subjected to rational basis test. Means: segregation; ends: health or welfare (because using police power). Court says that “usage, custom” can be used to find rational basis.

c. Court adopts “separate but equal” doctrine—trying to create formal barrier between social and political rights. (Formalism) Everyone knew this decision was a lie at the time, and now. S. Ct. says that separate but equal facilities isn’t a “badge of inferiority,” that blacks “choose that construction.”

d. Police power is one of the states’ residual sovereign powers.

4. If the Fourteenth Amendment is about legal equality, how do we get to social equality?

5. Slaughterhouse Cases (1873)

a. Butchers in New Orleans sued because state law granted a state corporation a monopoly on approved locations to slaughter livestock.

b. Butchers argue that they are being deprived of their property (new concept of property=fruits of own labor), and that right to work is protected by the Privileges and Immunities clause of the Fourteenth Amendment.

c. Court held that it is within Louisiana’s police powers to take reasonable measures to protect health and welfare of public. Cites McCulloch. Privileges and Immunities protects rights of national citizenship; right to work attached to state citizenship. Civil War Amendments don’t give broad protection from state governments.

d. The majority decision is a radical interpretation of the Fourteenth Amendment that favors states. Dissent states that this decision makes the Privileges and Immunities Clause of the 14th Amendment NULL.

e. Note to self to be covered later: only rights covered by privileges and immunities clause are the right to travel, right to vote for national officers, petition Congress, and enter public lands

f. Potential response here: N&P Clause. Monopoly given to small number of vendors isn’t “necessary,” it’s convenient.

E. Substantive Due Process

1. What the hell is substantive law and substantive due process?

a. Substantive law is the content of the law creating, defining and regulating rights, duties and powers of parties.

b. Substantive due process is the idea that the substance or content of legislation is required to be fair and to further a legitimate government objective. Derived from the Due Process clauses of the V and XIV Amendments. (There’s also a procedural due process, to be discussed).

c. Certain rights are so fundamental to our traditions of justice and inherent to those enumerated

rights in the Constitution, that no matter the procedural guarantees, the rights cannot be infringed upon by the government. (right to work, K, procreate, death)

d. Used SDP during the Lochner era to protect economic rights, and also to protect privacy and personal autonomy

2. Lochner v. New York (1905)

a. Lochner (baker) convicted of permitting employee work more than 60-hour statutory max

b. Court found that the state cannot prohibit private agreements to work more than a specified number of hours—not a fair or reasonable exercise of police power. The right to contract in business is a fundamental individual liberty protected by the Fourteenth Amendment.

c. Right to contract is not express—court created a right via Judicial Activism. Court not deferring to the means-ends rational relationship test. Found relationship to be too tenuous, arbitrary.

d. Substantive Due Process is really just judicial review of legislation’s content.

e. Harlan’s dissent: there is a rational relationship between the means and the end, and that should be the end of the discussion.

f. Holmes’ dissent: the majority decides its position on an economic theory that not everyone holds. A constitution is not designed to embody a specific economic theory; “the word liberty is perverted when it is held to prevent the natural outcome of a dominant opinion…” Should defer to legislature.

g. To be accused of Lochner-izing is like committing a judicial sin: to inject values into Constitution.

h. Perhaps looked to Due Process clause of Fourteenth Amendment to get some of the power back that was given to the states in the Slaughterhouse Cases (through Privileges and Immunities clause).

i. Dred Scott is actually first substantive Due Process case.

3. Survey of Court’s Work prior to 1937

a. Between 1890 and 1934, the S. Ct. struck down 200 statutory and administrative regulations, mostly under due process clause of fourteenth amendment.

b. Most health, safety or moral legislation was left alone, but looked at regulations that seemed to interfere with the free market. Maximum hours seemed okay (not above, but could be seen as health measure) but minimum wage? No way.

c. Begin to see use of commerce power to enforce substantive rights. Commerce Clause cases active in late 19th/early 20th Century.

F. Congressional Regulation of Interstate Commerce and of the National Economy

1. The Enumeration of Congressional Powers

a. Congressional power limited to enumerated powers in the constitution, one of which is the power to regulate commerce among the states. According to Marshall in Gibbons, this is a plenary power.

b. Prior to the Civil War, much of commerce clause legislation dealt with validity of a state legislation when Congress was silent.

2. Commerce Clause: “Power to regulate commerce…among the several states”

a. Commerce clause modified by the necessary and proper clause. Can invoke the necessary and proper clause to augment any enumerated power. See McCulloch (let the ends be legitimate and the necessary means are also legitimate).

3. Tension between Commerce Clause and Police Power

a. Determine whether subject of congressional regulation is within “interstate commerce”

b. Are purposes of regulation consistent with the purposes of Congress having the authority to regulate commerce among the states?

c. Whether particular piece of interstate commerce legislation runs against reservation of powers to states in 10th Amendment.

d. Tenth Amendment was source and symbol of DUAL FEDERALISM

4. Champion v. Ames (Lottery Case)

a. Def. arrested for shipping lottery tickets from Texas to California in violation of Federal Lottery Act that prohibited interstate carriage of tickets. Court considered whether regulation of interstate transportation of lottery tickets was an appropriate exercise of federal power to regulate interstate commerce.

b. Means-Ends: Ends are public morals; Means are outlawing transport of evil corrupting lottery tickets. If a state can suppress a lottery within its own territory, federal government is supplementing that action of the states. Congress alone has power to occupy the whole field of interstate commerce.

c. Court held that lottery tickets are subjects of commerce. When sold from state to state, they are regulated by federal government under commerce clause. The power to regulate includes the power to prohibit.

d. In this case, the power of Congress was analogous to a federal police power. Congress has full power over the facilities of interstate commerce (interstate carriers, roads) and may prohibit use of those facilities for any activity that it deems adverse to public health, welfare, or necessity.

e. Dissent says this situation is like shipping an insurance policy. Local transaction.

5. Hammer v. Dagenhart (Child Labor)

a. In 1916, Congress passed the Federal Child Labor Act in an attempt to reduce the abuse of child labor. The Act prohibited interstate shipment of products that were made by child laborers or young teenagers who worked long hours.

b. Father of children who were being fired from job so that company in compliance with Act brought suit, claiming that Congressional power under commerce clause not applicable.

c. Court found the law unconstitutional. Manufacturing is purely local activity; just because product is headed into the stream of interstate commerce, doesn’t mean the federal government can step in. Congress can regulate only those things that directly affect interstate commerce.

d. Court found that Congress was reaching too far into State’s sphere of authority; that real purpose of law was to legislate about hours worked, not commerce.

e. Hammer differs from Champion v. Ames because the interstate transportation itself was necessary to the accomplishment of the harmful results.

f. Is Congress using Commerce Clause as a pretext for reaching into State’s welfare, morality powers? Substantive Due Process is elephant in the room no one mentions.

g. Means: Ends. Toward a legitimate end, many ways are open. None open to illegitimate. Congress doesn’t have power to legislate for the general welfare. Court using formalism to prevent federal government from reaching into states’ spheres.

h. When anyone asks the source of Congressional legislative authority on a multiple choice test, general welfare is WRONG!

i. Holmes’ dissent: Federal power cannot be qualified by state’s exercise of police power. Statute is within power if consider only its immediate effects. (Plenary power)

j. Minority opinion becomes dominant after 1937. Previously, looked at geography: if task performed completely within the state=local=police power. Now, the court look at the effects of activity, no matter where occurred.

V. THE MODERN ERA: 1937-2002

A. Economic Regulation, Federalism, and Separation of Powers in the Modern Era

1. Decline of Judicial Intervention against Economic Regulation

a. Nebbia: Court said a state can impose price controls that inhibit making of contracts in “businesses affecting the public interest,” as long as means-ends is rational.

b. Home Building and Loan v. Blaisdell

i. Minnesota law that allowed for a delay in mortgage payment, granting temporary relief from foreclosures. Court asked if a state could change existing contractual obligations to respond to emergency conditions?

ii. Court did some gymnastics to find that this wasn’t an impairment of contracts in violation of Art. I, §10—counseled to evaluate law on whether addressed to legitimate end and whether means were reasonable.

iii. “Not all modifications impair a contract.” Questionable interpretation. Decision worked to eradicate the contract clause until the 1970s.

2. Commerce Clause Doctrine circa 1934

a. Congress may regulate the channels of interstate commerce only for the purpose of aiding interstate commerce. See Hammer (using the aiding requirement as a pretext check). It may prohibit the movement of goods if they are dangerous, noxious, or harmful (Lottery).

b. Congress may regulate intrastate activity that directly affects interstate commerce.

B. It’s All Coming to a Head: 1935-1937

1. West Coast Hotel (1937)

a. State imposed a minimum wage law (previously found constitutional in Adkins) and employer claimed a violation of due process. Court returned to the rational basis test.

b. Death knell for Lochner

C. The Modern Doctrine of Economic Due Process

1. Carolene Products (1938)

a. Federal law prohibiting shipment of “filled” milk. Court considered whether Congress could prohibit the interstate shipment of food products that it deems injurious to the public health?

b. The court solidifies the RATIONAL BASIS TEST. Federal law is constitutional if there’s a rational basis between means and legitimate governmental end.

2. New Mental Approach to Legislation

a. Presumption of constitutionality (mandatory inference from political process)

b. Burden of proof on party challenging the law.

c. Functional justifications for presumption

i. representative democracyii. federalism/10th Amendmentiii. judicial deference to legislative expertiseiv. legislature is constitutionally authorized to make these decisions

d. When is presumption rebuttable?

i. Carolene Products footnote #4. “map to escape the straightjacket of presumption”ii. Footnote calls for less scrutiny of economic regulations and more for fundamental rights

and discrimination cases, including discrete and insular minorities, the accused, and restrictions on the political process. These interests required the protection of a counter-majoritarian body, while economic restrictions did not.

e. How to justify judicial review after 1937?

i. Don’t use police power, or limits from common law categories

3. Williamson v. Lee Optical (1955)

a. Lee Optical challenged the constitutionality of a law that prevented opticians from fitting or duplicating lenses without prescription from optometrist. Is it within the Fourteenth Amendment to prohibit all state business regulation that’s not essential and directly related to the harm it intends to cure?

b. Legislation passes rational basis. As long as there’s an evil to be corrected, court will defer to legislature. The legislature should balance pros and cons of new regulations. The Court will not strike down state laws regulatory of business and industrial conditions merely because they’re unwise. Democracy is the protection against legislative abuse.

c. Court has left economic regulation to rational basis since 1937.

D. Relaxation of Judicial Restraints on Congressional Power

1. Commerce Power

a. NLRB v. Jones and Laughlin (1937)

i. The National Labor Relations Act of congress provided for union-employer collective bargaining. Def. argues Congress doesn’t have authority to regulate the industry.

ii. Congress can regulate a manufacturer if manufacturer’s activities significantly affect interstate commerce. If there were a labor conflict at the plant, it will definitely affect interstate commerce.

iii. Means: interference in local labor relations; End: healthy economy. Thumbs up.

b. United States v. Darby (1941)

i. Congress passed FLSA, which banned the interstate shipment of goods produced by employees who were paid less than a minimum wage or who had worked over 44 hours a week without overtime pay.

ii. Lumber manufacturer charged with violating FLSA. A federal district court threw out the indictment, stating that the act was unconstitutional because the manufacturing activity in question was not a part of interstate commerce.

iii. S. Court ruled that interstate commerce shouldn’t be instrument of competition among states. Activities affect interstate commerce (the “Darby bootstrap”). Overruled Hammer v. Dagenhart. Means: direct regulation; Ends: Reduce unfair competition. Court isn’t totally candid.

iv. Once it has been determined that Congress has positive legislative authority over commerce, power cannot be truncated by states. Power permits regulation or prohibition of activities that flow in and are instruments of interstate commerce.

v. Congress can regulate purely intrastate activity if it affects interstate commerce.

vi. Decision in keeping with spirit of Constitution’s Commerce Clause.

vii. Tenth Amendment called a truism here. Don’t consider states’ sovereign powers.

c. Wickard v Filburn

i. Farmer goes over his wheat quota and produces extra to use on own farm. He’s prosecuted, and argues that congressional quota is unconstitutional.

ii. Court held that commerce clause authorizes the congressional regulation despite the fact that we’re talking about home-grown wheat which is neither interstate nor commerce.

iii. Look at aggregate effects. Congress trying to regulate the interstate wheat market and if all farmers grew extra wheat for use at home it would have big interstate effects. Aggregate every possible application of the statute to determine if there are interstate effects.

iv. End: Price Stability; Means: Production Control

v. Farmer argues Due Process violation (natural right to enjoy fruits of one’s labor—West Coast Hotel and Carolene kick that), and argues lack of enumerated power—negated by Jones and Darby.

d. Heart of Atlanta Motel (1964)

i. Suit challenged Title II of the Civil Rights Act of 1964, which banned racial discrimination in public accommodations. A motel owner in Atlanta, Georgia who mostly served interstate travelers refused to allow blacks to stay at the hotel in violation of the act. He claimed that Congress lacked the authority under the Commerce Clause to regulate his private business.

ii. United States had to use authority of interstate commerce because of the Civil Rights Cases of 1883. Fourteenth Amendment not available in acts of private discrimination. Court found that there was link between interstate travel and commerce.

iii. Racial discrimination disrupts commercial intercourse. Affecting commerce rationale.

e. Ollie’s Barbeque

i. Private restaurant discriminating against blacks. Court finds sufficient amounts of food being purchased and moving within interstate stream of commerce to hold restaurant to constitutional standard.

ii. Instrumentalities of commerce. Rational basis; inquiry at its end.

f. Court adopts same methodological approach with Commerce as with Due Process!

g. Recap on Doctrinal Changes Happening with Commerce Power

i. “Affecting Commerce” Rationale. Court looks to effects on interstate commerce from economic activities inside territory of states. NLRB v. Jones (look at disruption of commerce from labor conflict. Stockyards, railroads, schools.

ii. Dual Federalism: Once considered dead, but resurrected in Lopez. Once decided that Congress has positive power through commerce clause, don’t truncate. Darby.

iii. Permitting regulation and/or prohibition of activities and instrumentalities that move in interstate commerce. Darby. Outer limit, this one. When economic in character, okay. When non-economic, court distrustful.

iv. Court relaxes categorical notions about what is national or local. Wickard.

v. Aggregation used to measure whether there’s a substantial effect. Wickard.

2. Taxing and Spending

a. Steward Machine v. Davis

i. Congress can reduce private employer’s federal taxes by crediting payments made only to federally-approved state plans. The spending (credit of payments) was clearly for the general welfare.

b. United States v. Butler

i. Congress passed the Agricultural Adjustment Act in order to control surplus production. Farmers paid to reduce production.

ii. Act invaded powers reserved to the states by trying to regulate agriculture. Federal money can’t be used for unconstitutional end. Federal government is purchasing submission to regulation that actually belongs to the states.

iii. Butler and Tenth Amendment basis for states’ rights to control their own businesses.

c. S. Dakota v. Dole

i. Federal highway funds withheld from SD because had a lower drinking age. Court questioned whether Congress had the authority to withhold money to encourage submission to federal will.

ii. Congress can seek uniformity in application of law. Dissent said regulation of drinking age was in 21st Amendment to Constitution.

d. Origin of Tax and Spending Clause

i. Art. I, §8

ii. Gives congress power to spend dinero to pay debts and to provide for the common good.

iii. Must be a national as opposed to a local issue.

iv. Spending program must also pass the rational basis test; spending must be for national concerns, rather than local.

v. Deference to congress in this area.

E. Rehnquist: Finding Limits on Federal Power

1. U.S. v. Lopez

a. Lopez took gun to school, violating the Gun-Free School Zones Act. Challenged the Act, arguing that it was beyond the scope of congressional power under the commerce clause.

b. This is the first limitation found on commerce power since 1937.

c. Court found that there was no rational relationship between education and ban on guns, and if there was, there would be no limit to federal government’s power over states.

d. Court also clarified congressional power under commerce clause.

i. Channels of commerce, as in Darby, Heart of Atlanta

ii. Instrumentalities of commerce, or persons or things in interstate commerce (even if the threat comes from intrastate activities, like Champion v. Ames

iii. Regulate activities having a substantial (when aggregated) relation to interstate commerce: Perez (class of activities), Jones & Laughlin Steel, McClung, Heart of Atlanta, Wickard

e. Issue in Lopez is the substantial relation test. Rehnquist brings in the CLOSE AND SUBSTANTIAL RELATION as the test for reasonableness.

f. Court says Lopez is essentially a criminal statute, and the link between statute and commerce is too attenuated (Perez— Court rules that aggregation of loan-sharking has effects on interstate commerce and the means are plainly adapted to the ends so the regulation is constitutional). Won’t convert congressional authority to regulate commerce into federal police power. Won’t expand power under commerce clause any further.

g. Lopez revived the Tenth Amendment—the court will enforce limits on federal power. Debate of how to reconcile essentially unlimited federal power under commerce clause with idea of enumerated powers w/r/t state power.

h. Interpret as commerce/non-commerce distinction, substantial effects is nebulous (Breyer in Lopez), so look for other things that can serve as proxies.

i. Other views

i. Kennedy/O’Connor Concurrence: Jones & Laughlin is correct conception of commerce power. Federalism has great utility: should have greater liberty, and also individual states can explore solutions to problems and pass on best practices.

ii. Thomas concurrence: examines text for definitions of commerce, affect, should return to narrower view of commerce power.

iii. Stevens dissent: There is a rational connection between education and commerce. “rational basis is paradigm of judicial restraint” Due Process and Commerce clauses linked by judicial jurisprudence? Both evolved to rational basis. Is Lopez decision a return to substantive due process? Commerce power is plenary

iv. Breyer dissent: Cumulative effect—does substantially affect commerce. Should allow congress leeway in determining linkage. Was there rational basis? Yes. 3 legal problems with decision: 1) contrary to case history, 2) cannot reconcile 1) by making distinction between commercial and noncommercial (moving back to formulistic approach of Hammer)

2. U.S. v. Morrison

a. Female student raped, and brought claim against rapist under VAWA, a federal statute, claiming that Congress had power to enact legislation under the commerce clause and section §5 of the Fourteenth Amendment.

b. Court cited Lopez for commerce argument, saying that gender-motivated crimes aren’t economic activity. For XIV Amendment, court stated that §5 doesn’t apply to enacting legislation against private individuals (Civil Rights Cases).

c. VAWA is encroachment on state’s police powers, “which the Founders denied the national government and reposed in the States, than the suppression of violent crime and vindication of its victims. ”

d. Souter’s dissent: Congress’ capacity to research connection exceeds the court’s. Rational basis exists. Gender-based violence in 1990s similar to racial discrimination in 1960s. At odds with case history for last 50 years—argues that “categorical formalism” is back—before helped court to impose economic theory [substantive due process], now is being used to impose conception of federalism.

e. Breyer’s dissent: Holding illustrates difficulty of a workable judicial commerce clause touchstone. Court has long held that only the interstate commercial effects, not the local nature of the cause, are constitutionally relevant. Court’s rules, even if broadly interpreted, are underinclusive—seem unlikely to secure protection of “areas of traditional state regulation” from federal intrusion.

F. State Regulation and Interstate Commercial Mobility

G. Executive Power

1. Steel Seizure (Youngtown)

2. Nixon

2. Morrison v. Olson

VI: THE MODERN ERA: DISCRIMINATION CLASSIFICATIONS AND EQUAL PROTECTION

A. Racial Equality

1. Brown v. Board of Education

a. Common law evolution to Brown: initially “separate but equal” was viable doctrine, but S. Ct. chiseled at Plessy. McClaren, Sweatt, Sippiel were all cases at university level. Road to Brown was carefully strategized.

b. Look at text of Fourteenth Amendment: No specific understanding that separate education was considered. Meant to constitutionalize Civil Rights Act. Neither text nor purpose of amendment supports conclusion that separate education for blacks and whites violate.

c. State argued police power, precedent, state choice, DuBois essay. What should court do when presented with competing evidence? Some might say, defer to political process.

d. To get away from rational basis, distill the core value of the Fourteenth Amendment—a jurisprudence of original values.

e. Brown written as a political opinion. Publicly enforced separation to reinforce supremacy of white race understood even by children. History: WWII given race discrimination a bad name; Soviets used U.S. race discrimination in Cold War to win allies. Rejecting caste system.

f. Bolling v. Sharpe interpreted Fifth Amendment to extend Brown to D.C. Originalist would argue that the Fifth Amendment less plausibly meant to prohibit segregated schools than XIV because it was drafted before abolition of slavery. Reinforces idea that text isn’t basis. Reverse incorporation.

B. Origins of Suspect Classification Doctrine

1. Loving v. Virginia

a. State statute against racially-mixed marriages. State argued that statute affects both whites and blacks equally.

b. Means: statutory classification, Ends: maintain white supremacy. Here, the motivation or ends is based on racism.

c. Typically, the court hasn’t inquired about the legitimacy of the end. With race, though, court requires inquiry into motivation.

d. Court takes original values and applies to current situation.

2. Korematsu v. United States

a. Internment camps for Japanese in WWII. Source of Strict Scrutiny and Compelling Interest.

b. Burden of proof in Rational Basis? Challenger. In Strict Scrutiny? Government.

c. Judicially-manufactured decision, because government didn’t prove its case. No evidence against the Japanese. Relationship between means: ends missing. Must mean that the ends are so important, any means acceptable as long as government chooses the least discriminatory.

d. Looking at a balancing act. Within the police power, there is a sphere of competing and compelling interests. Never been defined, but some examples: emergency, national security

C. Race-Dependent Decisions and Decisions with Disproportionate Racial Impact

1. Yick Wo: Laundry licenses denied to Chinese in California. Neutral statute, but discriminatory administration. Direct discrimination.

2. Griggs: Under Title VII, procedures that are facially neutral and have no discriminatory intent cannot be maintained if serve to freeze previous discriminatory practices.

a. Test given to potential employees unrelated to job performance had a disproportionate impact on people of color. “Touchstone is business necessity.”

b. Positive intent or absence of discriminatory intent doesn’t redeem employment procedures that operate as “built-in headwinds”

3. Washington v. Davis: Court takes a step back

a. Whether use of job-related skills test that disproportionately excludes blacks is violation of equal protection clause of Fifth/Fourteenth Amendment?

b. The employer cannot prove that the test helps select employees—no business necessity argument available. Legal question is whether proof of intent is necessary to find a violation of Equal Protection.

c. Just as the court was on the brink of having all power, it steps back. Says, YES, must be able to show intent. Judicial restraint—if move hurdle higher to prove constitutional violation, lessen judicial involvement. This is a FEDERALISM decision. If no intent was required, virtually all laws could be challenged. Leaves more issues in hands of legislatures.

b. Disproportionate impact doesn’t trigger strict scrutiny. Proof of intent is ESSENTIAL to trigger SS. De jure vs. de facto discrimination: difference is purpose/intent.

4. McClesky v. Kemp: Answers a question left from Davis

a. Whether statistical proof of race-based discrimination in capital-sentencing system establishes a racial classification banned by Equal Protection.

b. As a matter of law, statistics cannot be proof of purposeful discrimination.

c. But…original purpose of Fourteenth amendment was no dual criminal systems.

D. Affirmative Action

1. City of Richmond v. Croson

a. Questions to ask: Is strict scrutiny required? Does AA program violate the Fifth amendment? Does it meet strict scrutiny?

b. Arguments might go like this:

i. Strict Scrutiny is standard—Court has found no exception (cite precedent)ii. Text—Fourteenth amendment protects all persons, not groups. Should have one standardiii. History—History of quotas in U.S. unhappyiv. Ethics—Golden Rule, Laws for all or none, group rights vs. individual rights,

burden/penalty assigned on basis of responsibility.

c. State would argue that AA programs are remedies, that the city council voted on this, and the S. Ct. shouldn’t rebut. No constancy by interpreting Constitution this way. Carolene Products footnote. This may discriminate against whites, but discrimination against blacks is different.

d. Other side responds that AA isn’t a remedy but reparation, that remedy is general, not narrowly tailored.

e. Court ruled that, when establishing a quota program that sets aside a portion of public money for certain race, city must demonstrate a compelling interest narrowly tailored to remedy the effects of previous discrimination. Rights of Fourteenth amendment are individual rights.

2. Adarand Construction v. Pena

a. AA programs favoring people of color will receive strict scrutiny evaluation?

E. Sex Equality

1. Evolution of Intermediate Standard

a. Bradwell: uses natural law to say that God intended women to not go to law school

b. Craig v. Boren establishes intermediate scrutiny. Between Craig and VMI, argument is over how challenging it will be to meet the standard.

c. While race thought to always be irrelevant to government decisions, gender thought to be sometimes relevant.

2. Separate Facilities for Men and Women

a. The VMI Case

i. Gender classification must substantially further important government interest. (must be exceedingly persuasive).

ii. Gender discrimination is presumptively unconstitutional. Government bears burden of proof. Originalist might argue: if we needed the XIII and XIV Amendments to push racial equality, how can court decide to pass a constitutional amendment (ERA) that people have rejected?

b. Mississippi v. Hogan

i. State statute that excludes males from state-supported nursing school violates equal protection. O’Connor stated that this decision applied only to these facts.

c. Garrett v. Board of Education of Detroit

d. Personnel Administrator of MA v. Feeney

i. Statute granting preference to veterans in public employment doesn’t violate equal protection. Still at intermediate scrutiny. Statute is facially neutral (veterans); distinction is not a pretext for discrimination—no discriminatory purpose. Law supports preference of veterans of either sex over non-veterans of either sex.

ii. Marshall and Stevens dissented. Connection of means:ends, impact.

3. What is Sex Discrimination?

a. Michael M. – law punishing only males for statutory rape is substantially related to important interest of minor pregnancy prevention

i. Plurality opinion. No law here.

ii. Purpose of intermediate scrutiny is to allow for case-by-case balancing. Majority opinion wants to keep intermediate scrutiny diaphanous (Rehnquist). Court says that the legislature may provide for the special circumstances of women. Defer to legislature. Seem to say that challengers didn’t prove that a neutral law would be as effective—even though burden on government.

iii. Problem with balancing—always latitude for invasion of rights.

F. Other Suspect Classifications

1. City of Cleburne v. Cleburne Living Center

a. Zoning ordinance and home for people with disabilities.

b. Mental retardation is not a quasi-suspect class, but city’s ordinance doesn’t meet the rational basis test.

c. Court says it’s using rational basis, but more like rational basis with teeth.

VII: THE MODERN ERA: FUNDAMENTAL RIGHTS

A. Incorporation of the Bill of Rights

1. With fundamental rights, looking at different mechanism to trigger strict scrutiny. Looking at degree of invasion of ones liberty, as opposed to classifications hindering equality.

2. Text doesn’t get us to fundamental rights, nor does original understanding. Elevating some rights to strict scrutiny? How? Find those rights “implicit in ordered liberty.”

3. Selective incorporation, total incorporation

B. Methods of Fundamental Rights Adjudication

1. Sample: Griswold v. Connecticut

a. Court found a marital “zone of privacy.” No storm troopers in the bedroom

2. Justifications

a. Legislative process has defects (special interests)b. Rights of individuals vs. community majority; judges must defend rights independent of social

compactc. State’s interest

3. Critiquesa. No conventional moralityb. If there were morality, it’s not discoverable by the courtsc. Natural law doesn’t exist in form that helps solve disputes

d. Levels of abstraction probleme. Can reason about moral I ssues but usually perpetuate classist ideasf. Lochner!

C. Family and Tradition

1. Village of Belle Terre v. Boraas

a. Government can pass ordinance disallowing hippie communes—groups of people living together not related by marriage or blood.

2. Moore v. City of East Cleveland

a. fundamental right to keep the family together (against zoning ordinance prohibiting extended family members from living in same house.

3. Michael H. v. Gerald D.

a. Statute that presumed a child born during wedlock was husband’s where the alleged biological father to have a hearing about visitation rights was OK.

4. Troxel v. Granville

a. Parents have a fundamental right to make decisions regarding the care, custody and control of their children.

b. State law authorizing a court to grant visitation rights to “any person” was overbroad and a violation of parents’ rights.

c. Scalia says the Ninth Amendment argument is for political purposes only. To be debated legislatively. Wants textually declared rights only—get rid of substantive due proress

5. Other Precedent

a. Myer v. Nebraska: Parents have fundamental right to control their children’s education; same in Pierce v. Society of Sisters (can go to private school—state cannot force public education).

D. Abortion

1. Roe v. Wade

a. Woman has right to choose abortion in certain circumstances free from undue interference from the state. Trimester structure. State’s interest becomes compelling enough for regulation after the first trimester.

b. Weird case because the three interests states by Texas would pass rational basis. Underinclusive/overbreadth alone doesn’t fail. Under rational basis, when conflicting evidence, defer to legislature. But require Texas to prove when life begins—the burden was shifted by the court.)

c. Look at page 1176.

2. Ohio v. Akron Center for Reproductive Health

a. Minor can obtain consent from a judge; judge must decide whether minor is mature enough whether having an abortion without her parents knowledge is in her best interests.

3. Abortion and Equal Protection

a. Geduldig – stands in the way of using EP as abortion basis

i. A state law that excludes pregnancy from state insurance benefits was upheld because it didn’t classify by gender, and wasn’t intentional.

b. Planned Parenthood of SE Pennsylvania v. Casey

i. Statute will not impose an undue burden through incidental effects resulting in a more difficult or expensive time to obtain an abortion.

ii. Spousal consent was the only statutory requirement to be an undue burden. Informed consent, waiting period, parental consent—none were found to be an undue burden.

iii. Does undue burden trigger strict scrutiny or is this undue burden a new test for abortion only?

E. Sexual Orientation

1. Bowers v. Hardwick

a. Right of privacy doesn’t include consensual, private sodomy.

b. Two lines of argument to trigger strict scrutiny: privacy and equal protection.

c. Scalia’s tradition is the specific kind, as in Michael M. Break free from specific tradition problem by finding a more general tradition of privacy in sexual intimacy, equality and liberty for all or none. Dissent has a problem with the majority’s framing of the issue so narrowly.

2. Romer v. Evans

a. A state constitutional provision that identifies persons by a single trait and then denies them the right to seek any remedy from law is so outrageous as to imply animosity toward group and is not related to governmental interest.

b. Court doesn’t ever say why it uses rational basis. Slightly tougher test—asks Colorado to justify. State cannot.

c. Court resolves case without holding the tests paramount. Probably because Amd. II rigged the political system against homosexuals.

3. Watkins v. U.S. Army

F. Death and Dying

Note: The right to refuse medical treatment is part of individual’s liberty interest of Fifth and Fourteenth Amendments. Has not ruled it a fundamental right and has not provided a test. Conflict between substantive due process and federalism.

1. Cruzan

a. Challenged on due process. There’s another line of cases that challenges on equal protection

—claiming irrational distinction between meds that give pain relief and those that hasten death.

b. Does a terminally ill patient have fundamental right to take medication knowing that it will hasten death? State argues slippery slope; family argues tradition in English and common law to not have invasion of person.

c. A mentally competent adult has the right to refuse lifesaving medical treatment.

2. Washington v. Glucksberg

3. Vacco v. Quill

a. state may grant relatives or guardian the power to decide whether to refuse lifesaving treatment if the individual is incapable of doing so. If state does grant, it can condition power on clear and convincing evidence that this is what person would have chosen.

G. Constitution in the Modern Welfare State

1. Lyng v. International Union, UAW

a. Does Congress’ denial of food stamps otherwise due to striking workers violate equal protection clause of the Fourteenth Amendment?

b. Government argues neutrality in labor disputes as ends. Presupposes government aid vs. presupposition of willingness to work.

c. Only way dissent wins is to argue that the law isn’t neutral (because Constitution doesn’t require us to choose between two competing visions)

d. Positive and negative Constitution. Previously, negative: freedom from…. Now positive, right to ….

2. Moreno

a. Quoted by dissent in Lyng. “A bare congressional desire to harm a politically unpopular group cannot constitute a legitimate government interest.”

3. Griffin

a. Government must provide a trial transcript or equivalent to an indigent criminal defendant appealing his conviction.

b. Talk about a discrimination against poverty (although wealth is not a suspect class!)

4. Boddie

a. Government cannot deny an indigent the right to marry or divorce because of her inability to pay the filing fee.

b. In Loving v. Virginia, recognized right to marry. Only means to obtain a divorce, and state had no sufficient justification for its action.

5. U.S. v. Kras

a. Bankruptcy hasn’t been raised to the same constitutional level as marriage; other options for debtor. No fundamental right to declare bankruptcy, so no denial of equal protection.

6. DeShaney

a. Due process confers no affirmative right.

b. States’ lack of action in protecting a victim from harm by private person does not mean that the harm was attributable to the state, at least when government doesn’t give the victim a right to governmental protection.

c. This is most dramatic example of negative constitution; court decides to rely on political process for accountability.

H. Procedural Due Process in the Modern Welfare State

1. Goldberg v. Kelly

a. Due process requires evidentiary hearing before termination of benefits. Doesn’t need to be official trial, but individual must receive timely and adequate notice, the right to confront witnesses, present own evidence and arguments. Counsel doesn’t need to be provided, but should be permitted. Decision must be based solely on info from hearing and should be made by an impartial party.

2. Mathews

a. Three factors to determine the process required:

i. Importance of individual interestsii. Value of specific procedural safeguards to that interest;iii. Government interest in fiscal and administrative efficiency

b. Disability benefits do not require pre-termination hearing, but need notice, opportunity to respond and a post-termination hearing. Ruled this way because disability benefits aren’t based on financial need.

3. Board of Regents v. Roth

a. “Property” is more that realty, chattels or money, but an abstract need or desire isn’t enough.

b. There must be a legitimate claim or entitlement to the benefit under state or federal law.

I. Conditioning Participation In the Welfare State

1. Difficult area!

a. Right/Privilege distinction

b. Court doesn’t always address. Here are a few factors.

i. Where is natural baseline? What could be expected without government involvement?

ii. Is government perpetrating oppression and giving money (like a spoonful of sugar to make the medicine go down?

iii. Is benefit really a penalty? If not, government has more discretion—if the regulation is

designed to leave a person better off.

a) Welfare mom with no options signing away right to vote—no wayb) NEA artist not receiving grant

iv. recap: a voluntary waiver or intentional, known relinquishment of right—not a great idea. If government says it’s using a “lesser included power” through bargaining—doing something more mildly indirectly than directly, might go.

v. balancing between individual and collective interest.

2. A few references for this area—no rules or standard!

a. Government is not required to subsidize existence of individual rights (political commercial, abortion)

b. Government cannot exact the forfeiture of constitutional rights as the price for a special advantage.

c. No good reason to believe that analysis is different because it’s a condition rather than direct regulation.

d. All cases seem to turn on factors intrinsic to the right at issue. Degree of burden sometimes important, other times, values..

i. Problem is caused by existence of welfare state that allows government to reach into private sphere.

2. Rust v. Sullivan

a. Federal funds cannot be used for abortion as family planning; cannot talk about abortion at all or refer patient to other providers (extreme interpretation of statute)

J. Welfare Rights under the Equal Protection Clause

1. Shapiro v. Thompson

a. Rule p. 1510

b. Suspect classification? No. Fundamental right? Yes. Fundamental right is well-established by precedent. Not in Constitution, but it’s an inference drawn from the structure and/or the relationship of the federal government to the individual.

c. Classification that isn’t inherently invidious can have an invidious impact. Statute burdens citizens who have exercised fundamental right to interstate travel.

d. To be seen as burdening of fundamental right, look for barrier to entry or a penalty imposed by law on those who exercise fundamental right.

2. Dunn?

3. Memorial Hospital

4. Zobel?

5. Saenz v. Roe

a. Individuals have a fundamental right to travel from state to state, which includes their right to leave one and go to another state, and to be treated equally if they become permanent residents of that state.

b. When states use a waiting period, usually use strict scrutiny—must show tailoring and compelling interest.

c. If there’s a difference in treatment of old and new residents, problems.

K. Selective Nonsupport of Constitutionally Protected Rights

1. Maher v. Roe

a. State or federal government are NOT required to grant medical benefit payments for abortions to indigent women, even if they do pay for childbirth services.

b. Undue burden? No. There are no more obstacles than previously.

c. What’s baseline?

2. Harris v. McRae

3. Webster

a. State may prohibit the use of public facilities for abortion and prohibiting public employees from performing abortions in the scope of their employment.

L. Status of Education in the Modern Welfare State – not fundamental right; precedent goes both ways

1. Rodriguez

a. Court found no violation of equal protection where the use of property tax to fund school districts where the tax base resulted in children getting a better education than the poorer districts with a smaller tax base.

2. Plyler v. Doe

a. Court held that state denied equal protection to undocumented children when it denied them state-supported education.

VIII: STRUCTURES OF CONSTITUTIONAL DECISIONMAKING

A. Congress’ Power to Provide Remedies for Constitutional Violations

1. South Carolina v. Katzenbach

a. Whether Congress has the power under §2 of the Fifteenth Amendment to forbid a practice previously declared to be constitutional by the Supreme Court, literacy and other voter eligibility tests, to enforce equality in voting under the Fifteenth Amendment?

b. Congressional Power, Fundamental Rights, Equal Protection and State Power Issue.

2. Katzenbach v. Morgan

a. Decision to ban literacy test as applied to Spanish-speaking citizens educated in Puerto Rico

b. This case is cited by Jesse Helms (for the right to life statute) and Jesse Jackson (No runoffs in primary elections). How could this happen? Theory = unless have the vote, will never get equal protection by government.

c. Voting is MEANS and ENDS

d. Brennan’s Two Theories on Congressional Power under §5 of XIV and §2 of XV:

i. Remedial Powerii. Interpretive Power (this is thrown out—can Congress interpret differently something the

court has said is constitutional? “Ratchet Theory” Congress can only ADD to individual rights protected—can SUBTRACT from state’s rights, though. Federalism implicated).

e. In future cases, states’ rights trump civil rights.

3. Oregon v. Mitchell

a. Although Congress typically can’t regulate states or force states to act in a certain way, there are civil rights exceptions here. Congress can invalidate state laws establishing a literacy test as a prerequisite to voting in state elections.

B. Finding Limits

1. City of Boerne v. Flores

a. Supreme court had held that there was no violation of the First Amendment when state regulation incidentally burdens religious practice. Congress got irritated, passed RFRA under §5 of the Fourteenth Amendment, saying that states cannot burden religious practices without compelling government interest. Court took Congress down, saying that RFRA was unconstitutional because it went beyond the bounds already established by the court.

b. Court will look for “congruence and proportionality” in Congressional remedies. If RFRA constitutionally preempts application of state law to church, RFRA violates structural principles of constitution. Federal government is one of enumerated powers—lacks positive authority under §5 of XIV and Tenth Amendments.

c. Court says its power is Marbury. Originalist? No! Textualist? No! Look at XIV Amendment

2. National League of Cities v. Usery

a. Court struck down provisions of the FLSA, using argument of state sovereignty. Congress not only displacing state’s police power to regulate wages of state employees, Congress was regulating the states as states.

b. Looking at the “state’s freedom to structure internal operations in areas of traditional government functions.”

c. Dissent argued that it was political processes that protect state sovereignty, not enforcement of the X Amendment.

3. Garcia v. San Antonio Metro Transit

a. Overruled National League of Cities. Majority recognized that the holding was unworkable and inconsistent with ideas of federalism.

b. Protection of federalism is built into the political process. The constitution does impose affirmative limits on federal power—didn’t say what they were, but that they should be tailored to compensate for the possible failings in the political process.

c. Back to rational basis

4. Gregory v. Ashcroft

a. MO const says that all judges must retire at age 70; judges sue on violation of ADEA

b. Right of the sovereign state to establish their own qualifications. Looking at words of statute, ADEA doesn’t apply to judges. Clear Statement Rule: If Congress intends to interrupt the bal btw the state and fed gov’t they must make its intention to do this clear in the statute. Cannon of Constitutional Avoidance: An ambiguous law will be interpreted to avoid const conflict. Helps the court back away from intervention btw cong and states. Under Fourteenth Amendment, Age isn’t a suspect classification. Rational basis only. This statute meets rational basis.

5. New York v. United States

a. Congress cannot compel the States to enact or enforce a federal regulatory program. This would commandeer state governments into the service of federal regulatory purposes, and would be inconsistent with the separate spheres of authority in Constitution.

b. Distinguished Garcia by saying that legislation subjected state and private parties to same legislation; in this case, directed only at the state.

6. Printz v. United States

a. Brady Law, federal Handgun Violence Act required the chief law enforcement officer of each local jurisdiction to do a background check on prospective handgun purchasers. Two CLEOs challenge on basis that federal government cannot force them to participate.

b. The federal government may neither issue directives requiring the states to address particular problems, nor command the states’ officials to enforce a fed regulatory program. (but fed gov can generally require state judiciaries to enforce fed. laws. No text, no precedent—mainly tradition.

c. CLEOs argue: extra expense without compensation, unbalancing of federal and state power, violates Tenth Amendment, and incompatible w/ dual sovereignty

d. Federal government cannot force states to regulate their own citizens,

C. Eleventh Amendment

1. Text

a. The judicial power of the U.S. shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the U.S. by Citizens of another State, or by Citizens or Subjects of any Foreign State.

b. That means SOVEREIGN IMMUNITY2. Alden v. Maine

a. Like Garcia, Alden dealt with FLSA. Court followed Garcia in saying the FLSA didn’t violate the Constitution, but it also said that if the state violated the FLSA, it didn’t have to entertain suits of wronged private employees

b. Maine state court did not have to hear damage suits brought against the state of Maine itself, even if the state had indeed violated a valid federal law.

3. Ex parte Young

a. Even though a state itself cannot be sued bc of soveriegn immunity, an action can be brought by a citizen against a state official—cannot sue where the relief would come from the state treasury (state or an state official in their official capacity)

4. Kimel v. Florida Board of Regents

a. Professors’ employers (university) discriminate against them because of their age, in violation of ADEA. On appeal, the United States intervened to defend the act, stating that the Eleventh Amendment’s state immunity was abolished because of the Act.

b. The Act had a clear statement of Congress’ intent to abolish states sovereign immunity. But the abolition exceeded Congress’ authority under §5 of the Fourteenth Amendment. §5 is an affirmative power of Congress—use congruent and prop test to determine when §5 can abolish power.

c. Article I never gives power to abolish immunity! Congruence and proportionality: the Act confers far more rights than the XIV Amendment provides=unporportional. (legislation was unproportionate because age discrimination not widespread). The appropriateness of remedial measures must be considered in light of the evil presented.

d. Does the ADEA abolish state’s sovereign immunity? The Constitution does not provide for federal jurisdiction over suits against nonconsenting states. Congress may abolish the states’ constitutionally secured immunity from suit in federal court only by making its intention unmistakably clear in the language of the statute. This abolition from Congress must be a valid exercise of const. authority

3. Garrett

D. State Action

1. Burton v. Wilmington Parking Authority

a. State was responsible for actions of coffee shop in municipal parking ramp under EP of the Fourteenth Amendment—coffee shop was constructed by and leased from state. Maintenance of building paid for with public funds, and the coffee shop paid its rent with money earned from discriminatory behavior.

2. Flagg Brothers

a. To be a state action, the activity must be both a traditional and exclusive government function. State action exists and due process applies when creditor uses judicial or executive agencies to secure debtor’s property.

3. Shelley v. Kraemer

a. State court enforcement of restrictive covenants prohibiting sale of property to blacks is a state

action even in civil proceedings between private parties.

4. Marsh v. Alabama

a. The owner of a “company town” with all of the attributes of a public town cannot deny a person’s First Amendment rights, because the company “is” a municipality.

5. Hudgens v. NLRB

a. Owner of a shopping mall can deny people’s First Amendment rights, because different than a town. Brennan dissents: In suburbia, mall is new town square.

Internal Limits on Judicial Power

a. Justiciability

i. Case or controversy requirement

(a) Purposes of case or controversy requirement(i) Judicial restraint(ii) Focus on concrete disputes(iii) Autonomy(iv) Prevent collusive lawsuits(v) Time lag

ii. MootnessPl. had an injury in the past but events subsequent have deprived P of a stake in the lawsuit. Like standing, the question is whether the P has the right sort of injury.

(a) Exception for cases "capable of repetition yet evading review" (Roe v. Wade)

iii. Ripeness – deals with cases that are too premature or remote for judicial intervention.

iv. Political question, advisory opinions, and standing are all part of justiciability.

b. StandingPl must show actual or threatened injury that can fairly be traced to the challenged action and that is likely to be redressed by a favorable judgment.

i. Purposes of standing

(a) Respect autonomy of those actually involved in the case. (b) Judicial restraint

c. No Advisory opinions

d. No Political questions