1

I. THE INTRODUCTION .......................................................................................................................... 3

II. 1UDICIAL REVIEW ............................................................................................................................. 6
A. THE BASIC FRAMEWORK ..................................................................................................... 6
Marbury v. Madison ........................................................................ 7
B. THE COUNTER-MA1ORITARIAN DIFFICULTY AND SOME POSSIBLE SOLUTIONS 12
1. INTERPRETATIVE ROLES FOR OTHER GOVT ACTORS ....................................................... 12
Cooper v. Aaron ............................................................................ 12
Dred Scott ..................................................................................... 13
2. TRADITIONAL MODES OF CON INTERPRETATIONS ........................................................... 13
McCulloch v. Maryland ................................................................. 13
Calder v. Bull ................................................................................ 13
3. POLITICAL CONTROL OF THE CT ..................................................................................... 16
Ex Parte McCardle......................................................................... 17
US v. Klein .................................................................................... 17
Ex Parte Yerger ............................... Error! Bookmark not defined.
C. THE ~CASE OR CONTROVERSY REQ`T AND THE ~PASSIVE VIRTUES ................... 18
1. ADVISORY OPINIONS, STANDING, RIPENESS, AND MOOTNESS ......................................... 18
2. THE POLITICAL QUESTION DOCTRINE ............................................................................. 20
Marbury v. Madison ........................ Error! Bookmark not defined.
Luther v. Borden ............................................................................ 21
Baker v. Carr ................................................................................. 21
Nixon v. US ..................................... Error! Bookmark not defined.
Powell v. McCormick .................................................................... 22
III. FEDERALISM: VERTICAL DISTRIBUTION OF GOVTAL POWERS ...................................... 23
A. GOVT OF ENUMERATED POWERS (WHY DOES FEDERALISM MATTER?) .............. 23
B. CONGRESS`S POWER TO REGULATE INTERSTATE COMMERCE ............................. 25
1. 100 YRS OF COMMERCE CLAUSE JURISPRUDENCE: THE LESSONS OF HISTORY ............... 25
Gibbons v. Ogden .......................................................................... 25
US v. E.C. Knight ............................ Error! Bookmark not defined.
Champion v. Ames .......................... Error! Bookmark not defined.
Houston East & West Texas Railway v. USError! Bookmark not defined.
Hammer v. Dagenhart ...................... Error! Bookmark not defined.
StaIIord v. Wallace .......................... Error! Bookmark not defined.
Coronado Coal v. United Mine WorkersError! Bookmark not defined.
2. THE NEW DEAL AND MODERN WELFARE STATES ........................................................... 28
A.L.A. Schechter Poultry Corp v. United States ............................. 28
Carter v. Carter Coal Co. ................. Error! Bookmark not defined.
NLRB v. Jones & Laughlin Steel Corp .......................................... 29
Wickard v. Filburn ......................................................................... 30
US. Darby ....................................... Error! Bookmark not defined.
Heart oI Atlanta Motel v. US ......................................................... 31
Katzenbach v. McClung (Ollie`s BBQ) .......................................... 32
3. TELL ME WHAT`S THE WORD A WORD UP! THE LATEST WORD ..................................... 32
US v. Lopez ................................................................................... 32
US v. Morrison .............................................................................. 34
Raich v. AshcroIt/Gonzalez ............. Error! Bookmark not defined.
C. OTHER POWERS OF CONGRESS: ..................................................................................... 35
1. THE TAXING AND SPENDING POWER ............................................................................... 35
2
US v. Butler ..................................... Error! Bookmark not defined.
Baily v. Drexel Furniture ................. Error! Bookmark not defined.
South Dakota v. Dole ....................... Error! Bookmark not defined.
2. THE POWER TO ENFORCE THE RECONSTRUCTION AMENDMENTS .................................... 38
The Civil Rts Cases ....................................................................... 39
Jones v. AlIred H. Mayer Co. ......................................................... 40
Lassiter v. Northampton Election Board ......................................... 41
Katzenbach v. Morgan ................................................................... 41
City oI Boerne v. Flores ................................................................. 43
U.S. v. Morrison ............................................................................ 45
D. STATE SOVEREIGNTY AS A LIMITATION ON FEDERAL POWER .............................. 45
(THE 10TH AMENDMENT) ........................................................................................................ 45
1. TRADITIONAL GOVT FUNCTIONS ..................................................................................... 45
National League oI Cities v. Usery................................................. 46
Garcia v. San Antonio Metropolitan Transit Authority ................... 46
2. PROHIBITION ON FEDERAL COMMANDEERING ................................................................. 47
New York v. U.S. .......................................................................... 47
Prinz v. U.S. .................................................................................. 48
Reno v. Condon ............................................................................. 49
IV. THE SEPARATION OF POWERS ................................................................................................... 49
A. THE DISTRIBUTION OF NATIONAL POWERS ................................................................. 49
(WHY DOES SEPARATION OF POWERS MATTER) ........................................................ 49
B. THE EXEC POWER ................................................................................................................ 57
1. EXEC-LEGISLATIVE CONFLICTS ...................................................................................... 57
a. control oI domestic aIIairs .................................................................................. 58
Youngstown Sheet & Tube Co. v. Sawyer...................................... 58
Dames & Moore v. Regan .............................................................. 60
b. control oI Ioreign aIIairs .................................................................................... 61
United States v. Curtiss-Wright Corp. ............................................ 61
Hamdi v. RumsIeld ........................................................................ 62
C. LEGISLATIVE POWER ......................................................................................................... 50
1. JUDICIAL CONTROL OF LEGISLATIVE ABDICATION: POWER/DUTY TO LEGISLATE ............. 50
a. the non-delegation doctrine ................................................................................ 50
Panama ReIining v. Ryan............................................................... 51
Schechter Poultry v. U.S. ............................................................... 51
Mistretta v. U.S. .............................. Error! Bookmark not defined.
Industrial Union Dept. v. American Petroleum Institute ................. 51
Whitman v. American Trucking ....... Error! Bookmark not defined.
b. the legislative veto ............................................................................................. 52
INS v. Chadha ............................................................................... 52
2. CONGRESSIONAL CONTROL OF EXEC FUNCTIONS: APPOINTMENT, REMOVAL, ................ 53
AND UNITARY EXEC THEORY .............................................................................................. 53
Parsons v. U.S. ................................ Error! Bookmark not defined.
Buckley v. Valeo ........................................................................... 54
Myers v. the U.S. ........................................................................... 55
Humphrey`s Executor v. The U.S. ................................................. 55
Bowsher v. Synar........................................................................... 56
Morrison v. Olson .......................................................................... 56
V. 1UDICIAL PROTECTION OF INDIVIDUAL RTS .......................................................................... 66
A. RACE AND SLAVERY ............................................................................................................ 66
3
1. SLAVERY AND THE CONSTITUTION.................................................................................. 66
Dred Scott v. SanIord ...................... Error! Bookmark not defined.
2. INTRODUCTION TO THE RECONSTRUCTION AMENDMENTS............................................... 68
The Slaughterhouse Cases ............................................................. 68
a. Iacial discrimination ........................................................................................... 69
Plessy v. Ferguson ......................................................................... 69
State oI Missouri et. rel. Gaines v. Canada ..................................... 70
Sipuel v. Board oI Regents............................................................. 70
Sweatt v. Painter ............................................................................ 71
McLaurin v. OK ............................................................................ 71
Brown v. Board oI Education oI TopekaError! Bookmark not defined.
Brown II .......................................... Error! Bookmark not defined.
Korematsu v. U.S. ......................................................................... 75
b. disparate impact ................................................................................................. 76
NY City Transit Authority v. Beazer .............................................. 77
Washington v. Davis ...................................................................... 77
Yick Wo v. Hopkins ...................................................................... 78
c. aIIirmative action ............................................................................................... 79
Regents oI the University oI CaliIornia v. Bakke............................ 79
Grutter v. Bollinger........................................................................ 80
Gratz v. Bollinger .......................................................................... 81
4. APPLYING THE EP CLAUSE TO CLASSIFICATIONS BASED ON SEX .................................... 81
Bradwell v. Illinois ........................................................................ 82
In re Lockwood ............................................................................. 82
Minor v. Happersett ....................................................................... 82
Reed v. Reed ................................................................................. 82
Frontiero v. Richardson ................................................................. 82
Craig v. Boren ............................................................................... 83
U.S. v. Virginia.............................................................................. 83
B. PRIVILEGES AND IMMUNITIES ......................................................................................... 85
CorIield v. Corvell ......................................................................... 85
The Slaughter-House Cases ........................................................... 85
C. SUBSTANTIVE DUE PROCESS ............................................................................................ 87
Lochner v. New York .................................................................... 88
West Coast Hotel v. Parrish ........................................................... 89
Ferguson v. Skrupa ........................................................................ 89
2. MODERN SUBSTANTIVE DUE PROCESS ............................................................................ 89
a. origins oI the rt to privacy .................................... Error! Bookmark not defined.
Meyer v. Nebraska ......................................................................... 89
Griswold v. Connecticut ................................................................ 90
Eisenstadt v. Baird ......................................................................... 91
b. abortion ............................................................... Error! Bookmark not defined.
Roe v. Wade .................................................................................. 91
Planned Parenthood v. Casey ......................................................... 93
c. sodomy ................................................................ Error! Bookmark not defined.
Bowers v. Hardwick ...................................................................... 95
Lawrence v. Texas ......................................................................... 96
d. assisted suicide .................................................... Error! Bookmark not defined.
Washington v. Glucksberg ............................................................. 96




I. THE INTRODUCTION: History and Theory of the Constitution
Stone pp. 1-22, Chemerinsky pp. 1-25
4

I. The Odyssey:
O A. Foundation- Want to spell out the rules oI the game in advance b/c:
4 Keeps us Irom having to make spot decisions.
4 Takes certain things oII the table.
4 Prevents tyranny oI majority.
4 Provides certainty. Tells us who we, the people, are. We set oII certain values. Not just rights,
but also structure.
4 DeIines us as a people.
O B. Why not do it by means oI statute?
4 Statutes are more easily changed than the Constitution. Concern that iI we don`t rope oII certain
items Irom majoritarian politics, that we might change them in the heat oI the moment. We
enshrine them in the C.
Long lasting. Constitution is diIIicult to amend: Article 5 requires 2/3 oI both houses
and ratiIication by / oI states OR by constitutional convention called by / oI states and
ratiIied by 2/3 oI states.
Why do we want it to be hard to change?
O There is value in deliberate decision-making in a time oI relative calm. DeIines
our long-term goals.
Pre-commitment makes it hard Ior our passions to overcome us in crisis. Even though it
might not always be in our short-term interests.
4 Legislation tends to be reactive rather than proactive.
4 Constitution is higher law set oI law by which to judge our later law.
Leads to conclusion that Constitution is inherently anti-majoritarian.
4 Why do we want Constitutive Iunction: values that this country holds as important. DeIines us
as a people.
O Related themes:
4 Social contract theory: is this meaningIul consent Ior ppl born into it?
4 C/B, iI it works maybe it`s best not to mess with it.
4 You can respond to it thru the political process once you`re oI age (tho it`s still very diIIicult to
do that)
4 Moral, normative component.
4 Provides a stable structure
4 Should deIer to when constitutional politics overcome normal politics.
O C. Constitutional Interpretation: Seven Steps
4 1. Text: what the text says goes. Probably the Iirst place where judges start.
4 2. History (parol evidence- things that helped inIormed Iramer`s decision) :
Language: History oI the words (18
th
century meaning).
Custom/Context: History surrounding the adoption/ratiIication oI the Constitution.
Contemporaneous Docs: e.g., Federalist Papers.
4 3. Tradition: What has the executive/legislature said about this or similar problems beIore?
Custom, habit oI American people wrt to the particular problem
4 4. Precedent: What have the courts said about this or similar problems beIore?
4 6. Structure: What does it mean that the constitution gives certain authority to certain
government actors? Who is the most appropriate decision-maker?
..All above are uncontroversial.
4 7. Prudence: What makes sense in protecting our higher purpose/long-term goals oI society?
What`s the intent oI this particular amendment? (More Controversial)
Justice Breyer likes this. (pragmatic approach)
Scalia has hints oI pragmatism
5
4 8. Values/Ethics/Morality: May be judge`s own sense. DiIIicult, b/c, 'who`s morality?

II. The Declaration oI Independence, the Articles oI ConIederation, the Constitution:
O The Declaration of Independence- Signed in 1776, hostilities w/ England ceased in 1781,
American Revolution Iormally completed in 1783 w/ signing oI Iinal peace treaty.
4 All men created equal, pursuit oI happiness no binding law
C answers many claims oI Declaration such as quartering oI soldiers, liIe tenure
salary protection, rt to trial by jury
Tone: List oI rts and wrongs
4 Why can`t we bring Declaration to ct?
Not purpose oI declaration
C was passed by Iormal ratiIication and Declaration was not.
O The Articles of Confederation February 1781, thirteen colonies ratiIied
4 Unicameral w/ all powers in Congress. Why no separation?
Weak Ied not so important
Avoid creating bureaucracy
States were already separated vertically thus no need Ior horizontal
Lower administration costs
Time oI great Iaith in legislature and representation
4 States remain sovereign
4 No power to tax, regulate interstate commerce, no exec authority, no natl judicial
authority
4 Problems
DiIIiculty oI raising revenue
Need Ior exec. to provide resolution in Ioreign and domestic aIIairs
Interstate jealousies
4 By 1786, agt to amend. In that year in Annapolis, agreed to meet in Philly to amend,
but went too Iar and created a new document
O The Constitution written in 1787, signed in 1789. Bill oI Rts added two years later.
4 Changed Framework:
Created Exec branch
Granted Congress power to tax and regulate commerce
Created Fed Judiciary (including SC and iI Congress chose, lower cts.)
10
th
Amendment: made more laws to eIIectuate enumerated powers
O Constitution v. the Articles of Confederation
4 Sovereignty: Need to give up sovereignty
AOC: Sovereignty in states
Con: Sovereignty in ppl, Ied govt (as given up by states)
4 imited and Enumerated Powers: Neither C or AOC give all power to central govt
AOC: Not a lot oI power to Ied b/c traumatized by England
Con: Art I, 8; 14
th
Amend, 5, lists 17 things Congress can do; gives power
to lay and collect taxes, power to regulate interstate commerce, etc.
4 Source of Residual Power
AOC: Art II Give remaining powers to states
Con: 10
th
Amendment: powers not given to Ied given to states or ppl.
4 Structure of Congress: Both C and AOC had Congress
AOC:
O Compensation in state control
O Allowed to appoint reps in any way states saw Iit
O As member oI Congress: One state, one vote
6
Con:
O Con Congress more powerIul than AOC Congress
O Compensated by National Treasury
O House elected by Ppl
O Senate members originally chosen by states but Art. 17

changed Senate
to election by ppl
O Every member oI Congress has a vote
4 Exec Branch:
AOC: No president. Just member oI Congress w/ power to administer
Con: Have President, powers deIined in Art 2
4 udiciary Branch:
AOC: Congress handles disputes b/w states, land, and maritime disputes
Con.: Set up SC and any inIerior cts to Iollow, deIined in Art 3
4 egality:
AOC: Unauthorized b/c authors were still under King`s rule. Independence
declared but war was not won illegal
Con.: Supposed to be ratiIied by unanimous consent but only ratiIied by 9 oI
11 states also illegal.
III. The Federalists and Anti-Federalists
O The Anti-Federalist Case:
4 Opponents oI the C who contended the document was betrayal oI principles underlying
Revolution
4 Civic Jirtue: Willingness oI citizens to subordinate private interests to the general good
4 Self-Rule: Selecting values that ought to control public and private liIe.
4 ecentrali:ation: wished to ensure homogeneity and dedication to the public good that
would prevent the govt Irom degenerating into tyranny.
O Federalist Response:
4 Synthesize elements oI traditional republicanism w/ an emerging theory that welcomed
heterogeneity and understood the reality that selI interest would be motivating Iorce
4 Federalist No. 10 (Madison): Need to avoid Iactionalism by controlling its eIIects
through majority control
4 Federalist No. 51 (Madison): Each dept should have will oI own and members should
have as little agency as possible in the appt oI members oI the other depts.
IV. Legitimacy oI the Constitution
O Why should we be bound by a document that bares little resemblance to how we are today?
4 Seems to workthe Constitution is a ship we have been sailing and it hasn`t sunk yet.
4 Provides a decision-making process.
4 DeIines our polity. America: Constition::Church:Bible
4 Reverence Ior the Iounding generation.
4 Appealing to universal truths that they seem to have gotten correct.
4 C made during 'constitutional moment 3 oI these were obvious that demands oI
Iuture took over.these decisions just better, made Ior common good oI ppl in Iuture.
Constitution
Civil War
New Deal

II. The Institution of 1UDICIAL REVIEW

THE BSIC FREWORK
Stone pp 29-43, Chemerinsky pp 33-49
7

I. Marbury v. Madison, Marshall, 1803
- Facts:
4 Election oI 1800: Adams (Federalist) on his way out. Tie between JeIIerson and Burr. Went to
House to decide (Article 2original C was decided in H oI R. Top two vote-getters: pres and vp
and mean there could be 2 ties. 2 votes cast), today it has been replaced by 12
th
Amendment:
changed the way that tied Presidents are elected. ). JeIIerson wins and Burr is VP.
4 In 1801, Adams made last minute nominations beIore his term ended.
Jan 20
th
, Adams nominated Marshall (Secretary oI State/Federalist) as ChieI Justice oI
USkept both positions.
O Note: not illegal b/c Art 1, 6 Cl 2 says only that you can`t be in Congress and
hold another oIIice, but says nothing about Judiciary Exec.
4 Expresio unius--- the thing expressed implies the exclusion oI others.
Could argue our system presumes liberty, all moves possible until
permission is taken away. Since it`s not mentioned, could just mean it`s
possible.
4 Exclusio alterius--- the thing excluded implies the inclusion oI something
else
O Traditionally, it would be considered unconstitutional because it creates a conIlict
oI interest. Argue: legitimacy. The people expect a checkthat`s the way we
expect the C to work. Our understanding governs.
O Note also: this illustrates the two Iaces oI the C
4 1. The actual text (as a legal matter, the textual arg is pretty good that
exec/jud is permitted)
4 2. The people`s expectations

4 Feb. 13, 1801: Congress, on its way out, passes a Circuit Court Actquickly nominates and
conIirms a bunch oI new Iederalist judges and reduced Supreme Court by one seat. This is so
Republican President couldn`t nominate a justice. Decreases number oI SC justices Irom 6 to 5
so that nobody would replace Cushing when he dies
Is this constitutional?
Constitution doesn`t speciIy the number oI justices that should be on the Supreme Court.
Legally Congress could change the number, but traditionally and politically it would be a
bad move.
4 Feb. 17
th
: JeIIerson elected, to be sworn in on March 4
th

4 Feb. 27
th
: Congress passes legislation that creates justices oI the peace. Marbury was to get one
oI those jobs.
4 March 2 and 3 (one day beIore JeIIerson is to be sworn in) Adams nominates the justices oI the
peace and John Marshall aIIixes the seal to their commissions. Some oI the commissions,
Marbury`s included, never were delivered to the recipients. Marshall`s subordinate and brother,
James Marshall, didn`t get them out in time so Marbury doesn`t get his commission.
4 JeIIerson nominates new Secretary oI StateMadison, and instructs him NOT to deliver the
remaining commissions.
4 Marbury then sues Madison Ior the delivery oI his commission.
4 March 8, new Congress repeals Circuit Court Act. This means JeIIerson gets to appoint new
Supreme Court. They also suspended term oI Supreme Court because they were worried about a
challenge oI the repeal. No Supreme Court sessions in 1802, so this case wasn`t heard until
1803.
- Jurisdiction: Ct doesn`t have power to decide this case.
4 Two Kinds (Art. 3 Sec 2 Clause 1):
8
Personal: power over the personhas to Iall w/in ct`s territory.
Subject Matter: power over the issueability to decide kind oI dispute
O Federal courts have limited subject matter jurisdiction.
O Need: (1) Constitutional Authority and (2) Statutory Authority.
O Most important: diversity and Ied q jx (~Arising Under)
4 SC has original and appellate jurisdiction.
Original: has the power to hear as a trial court.
O Nine heads (e.g. disputes b/w states).
Appellate: Lower Ied or state ct has heard beIore.
O State issues must exhaust state remedies
4 Jurisdiction should be discussed Iirst b/c iI no jurisdiction, then can throw out.
4 Outcome: Marbury does not get his commission.
- Issues:
4 1. Did Marbury have a right to his commission?
YES, all appropriate procedures were Iollowed.
Despite JeIIerson`s insistence that delivery was critical, Marshall said delivery is
irrelevant because Marbury`s position was Ior a deIinite term oI years. (Unlike
employment at the discretion oI the president.)
4 2. Do the laws oI the country give a remedy? YES, but.
There is a distinction as to when the judiciary could aIIord relieI:
Political vs. non-political acts. Political acts are only politically examinable. Non-
political acts have judicial remedy.
O SpeciIic duty to a particular person: remedy against executive is available.
(vested rights cases).
O Discretionary Acts: Pres has absolute discretion. Political matter leIt to executive
discretion: no remedy available. Only redress is to take it to the political process
(politically examinable)
But here, decision already madesigned and sealedall that was leIt was delivery, which
Marshall said was irrelevant, so his right has been vested and there is a remedy.
4 3. Is Marbury entitled to type oI remedy he sought? YES
Asked Ior writ oI mandamus: asking an oIIicer to be compelled to do a legal duty about
which he has no discretion.
Correct writ.
4 4. Does the court have the power to issue the writ? NO
Is there jurisdiction in the court? Statutory and Constitutional.
O Take statutory question Iirst because want to avoid constitutional questions.
Constitutional interpretations are very hard to undo. Poor statutory interpretations
are easy to undo because Congress just rewrites the statute and passes the new
one. II they mess up an interpretation oI the Constitution they have to overturn it
in a later decision or go through the amendment process, which is very diIIicult.
O Question is hether or not 1udiciary Act of 1789 gives SC statutory
jurisdiction to issue a rit of mandamus to officers of the United States as a
court in original jurisdiction? Does sec. 13 of the 1udiciary Act give
Marbury the right to hear the case? Does the statute grant original jx to the
court? Yes. Act plainly grants statutory jurisdiction in this case.
4 'The SC shall also have appellate jx Irom the circuit cts and cts oI the
several states, in the cases herein aIter specially provided Ior; and shall
have power to issue writs oI prohibition to the district courts, when
proceeding as courts oI admiralty and maritime jx, and writs oI
mandamus.. (p. 33)
9
4 Madison`s argument: 13 says appellate jurisdiction.
4 Marbury`s argument: interpret the sentence diIIerently Ior 13. The
'and and the semi-colon means that original jurisdiction applies to writs
oI mandamus.
4 Note: II the statute is susceptible to two plausible readings (original v.
appellate), cts place their thumb on the scale to read that it`s C so they can
avoid amending C costs. Could also be assuming that Congress intended
the constitutionality.
O What about Constitutional jurisdiction? Over which matters does the Supreme
Court have jurisdiction?
4 No Constitutional jurisdiction. See Article III 2 Clause 1. This sets
out all the kinds oI cases Iederal courts can hear. Most important one: all
cases in la or equity arising under the Constitution, las, and
treaties of the United States.
4 Clause 2 talks about what kind of cases the Supreme Court can hear.
Sets out the bounds.
4 SC has original jurisdiction over:
Ambassadors
Public Ministers
Councils
Cases in which a state shall be a party.
4 SC has appellate jurisdiction over:
Everything else.
4 Why isn`t James Madison a 'public minister? Because at the time public
ministers reIerred to Ioreign public ministers. (VOCAB INTERP AT
TIME)
Since it doesn`t count, SC doesn`t have original jurisdiction.
4 Marbury`s argument: iI the legislature grants SC original jurisdiction via
a statute, then why doesn`t the SC have it? See Article III 2 Clause 2
congress can by statute make an exception to the original jurisdiction rule
and it did with the statute.
4 Marshall ignores the exception clause, that the Iour categories are
absolute. He says to read the Constitution that way would mean there was
no point to allocating those matters in the Iirst placeCongress could just
alter everything in the Constitution.
UnC statute b/c it tried to squeeze in original jx.
Maybe the exceptions clause just means that Congress can divest
appellate jx and give it to the state cts.
O Actual Holding: SC is w/o pwr to direct Pres to deliver Marbury`s commission
- Holding: The Supreme Court has no jurisdiction over 'political questions. They have jurisdiction Ior
all cases arising under the Constitution. Constitution is superior to any act oI the legislature. SC has
pr to declare acts of Congress unC.
- Reasoning:
4 It cannot be presumed that any clause in the constitution is intended to be without eIIect.
4 An act oI legislature repugnant to the constitution is void.
4 Otherwise legislature would have omnipotence, but constitution creates limits.
4 Supreme Court has the power to declare acts unconstitutional.
potential rejoinder to Marshall`s reasoning
4 The categories oI original and appellate jurisdiction are not mutually exclusive. It`s C Ior
Congress to grant the Ct original jx over cases over which it had appellate jx under the C`s
provisional allocation.
10
4 C deIines an irreducible min oI original jx but permits Congress to expand original jx iI it
chooses to do so.

There is a presumption of constitutionality in legislation because members oI Congress and the president take
an oath oI oIIice to uphold the Constitution.

The Iirst Congress passed the Judiciary Act. The Iounders oI the Constitution were in the Iirst Congress.
Statutes passed in this Iirst Congress have a little bit extra presumption oI constitutionality.

Now we have a statute that gives more power to the judiciary than the Constitution allows.

The big question: what do we do when we have a statute that doesn`t conIorm with the Constitution?
- Marbury`s argument: enIorce it anyway.
4 The elected oIIicials created it. Why should the court have the Iinal wordCongress and the
President are elected and have both said this is constitutional. Elected oIIicials are closest to the
will oI the people. The case isn`t so cut and dry and Congress/President could be right.
- What does the Constitution say about statutes that are not in conIormity with the Constitution? Nothing.
- Madison`s argument: overrule the legislature.
4 The entire purpose oI the Constitution is to make it unchangeable by a single act oI the
legislature. We have limited governmentthey have boundaries and limitations. The judiciary
is a check on government. Without them the legislature could do anything and we`d have
unlimited government.
Marbury`s response: Congress is to do what people want. II they don`t do what the
people want, they`ll be kicked out at the next elections. Executive can veto legislature,
2/3 oI Congress can override executive, House can override Senate, etc.
Response: Congress is susceptible to Iaction. They will only have the people`s interest
in mind to the point that it`s not inIluenced by politics. Only the judiciary can stop the
Congress Irom passing statutes that aren`t square with the Constitution.
O This seems ok, except how likely is it that Congress will pass these statutes? Who
would stop Congress Irom doing this? Political climate?
O Maybe we really need judicial review where the law isn`t so clear. Ex: equal
protection clause, aIIirmative action, etc.
Why the judiciary? Marshall`s reasoning:
4 Structure/departmentalism: view that each branch has pwr to determine Ior itselI the C oI
legislation aIIecting its own Icns.
4 Judges have more proper training.
4 The Constitution is ritten, why would we write it down iI we didn`t want the judges to take use
oI it and interpret it. II it is written it was meant to be law and should be abided by. (Counter:
in Britain they rely on history and tradition to Iorm their constitution, but we didn`t have any, so
we needed to write it down to create a Iramework oI operation.)
4 Judges are insulated Irom politics because they have a liIe appointment and are not elected.
4 Judges take an oath to uphold the Constitution. Would conIlict with their oath oI oIIice iI they
enIorced unC things. (Counter: legislature and executive take the same oath.)
4 Text granting jurisdiction: says job as judge is to adjudicate cases arising under the
Constitution oI the U.S. How do I do that without interpreting the Constitution? The grant oI jx
would be meaningless iI the cts couldn`t examine the constitutionality oI acts oI Congress.
(Counter: the judiciary has jurisdiction over cases that don`t arise under the constitution
controversies between states.)
4 Supremacy clause (Article 6, Clause 2): Constitution and the laws made in pursuance thereoI
is the supreme law oI the land. A statute not made to conIorm to the Constitution can`t prevail as
supreme law oI the land. He reads it to mean that the C should be made in pursuance thereoI (oI
11
the C).in conIormity with the principles. (Counter: this could just mean procedural
conIormityas long as Congress passed it in the correct way or it could mean just in the spirit oI
the Constitution or it could just mean as long as it passed aIter the Constitution (under the
authority oI the C)..to exclude the Articles oI ConIederation)
Note: when Marbury was decided, the only kind oI judicial review that existed was
regarding laws passed according to procedures set out in the C. Substantive j.r. was
unknown.
Making Las: majority oI each house, have to agree on same bill and then present to
Pres to sign/veto. With a veto, Congress can override with a 2/3 vote in each house.
4 Counter-argument: Legislature should decide because they are elected and thereIore more in
touch with what the people want. Also, as a legislature their whole point is to make laws that the
Constitution doesn`t cover.
O Vie of the Framers and Ratifiers:
4 Clearly expected the Ied cts would assume a pwr to pass on the C oI actions oI Congress.
Federalists writings contemplated j.r.- tho maybe only oI state statutes.
4 Hamilton: tries to argue that judicial review is democratic by claiming that through such review,
cts vindicate the will oI the ppl (as expressed in the C) against the will oI mere representatives.
4 Kramer: argues that the C was a special Iorm oI popular law made by the ppl to bind their
governors. And saw the practice oI judicial review as an 'act oI resistance. Thought that the C
limits would be enIorced.

Why did Marshall rule the way he did? He was an Adams guy, not a JeIIerson guy.
- He doesn`t look partisan.
- SacriIiced Marbury in order to give more power to the Sup. Ct.
- He was worried JeIIerson just wouldn`t have listened to him. He couldn`t have done anything to Iorce
JeIIerson to deliver Marbury`s commission.
- Supremacy Clause
- Had a strained reading oI sec 13 oI the Judiciary Act


Why is judicial review good?
- A lot oI the guys Irom the Constitution were still aroundiI they really didn`t want judicial review they
could have put up a Iuss.
- 1udicial revie provides stability, stability provides prosperity.
- Protects the power oI the minority against the tyranny oI the majority
- Alternatives may be worse. Judicial review could be least objectionable because it`s decisive.
- J.R. impt to stand against majoritarian whims. Judges bind us to the mast instead oI elected
representatives. Maybe the courts are uniquely positioned b/c they don`t stand Ior reelection. Maybe
their incentives are better-aligned.

Arguments against Judicial Review:
O Could say the text doesn`t give the judiciary that power
O Judiciary is the least democratic oI the 3 branchesthe popularly elected branches had given their
assent. Could be in tension with democracy. We`re a representative democracy and the judiciary isn`t
elected.

What do we mean by the power oI judicial review? The next time they get around to exercising it again is the
Dred Scott case.

Hamilton, The Federalist No. 78
12
- No legislative act contrary to Constitution is valid.
- Courts designed to be intermediate body between the people and the legislature in order to keep
legislature within the limits assigned.
- Constitution is Iundamental and judges ought to regulate decisions by Iundamental laws, rather than
those which are not Iundamental.
- Constitution trumps diIIerent laws.


B THE COUNTER-ORITRIN IFFICUTY and SOE POSSIBE SOUTIONS

1 Interpretative Roles for Other Govt ctors
Stone pp 35-39 n1, 55-59, Thayer reading, Chemerinsky pp 28-32

Issue: Who should be the authoritative interpreter oI the Constitution?
- Marbury endorses the view that the Supreme Court should.
- This is the idea oI judicial review and gives rise to the counter-majoritarian diIIiculty.

Counter-majoritarian difficulty: the argument that judicial review is illegitimate because it allows unelected
judges to overrule the lawmaking oI elected representatives, thus undermining the will oI the majority. The
problem stems Irom the understanding that a democracy's legitimacy arises Irom the Iact that it implements the
will oI the majority (majoritarianism).

I. Counter-Majoritarian DiIIiculty in Marbury
- Arguments against counter-majoritarianism:
4 We have nine (but only need Iive), unelected, unaccountable judges who make decision in the
gray areas oI the Constitution that thwart the will oI the majority.
4 Nothing counter-majoritarian about this when the C speaks clearly. But a worry that when the C
isn`t so clear, the q becomes normative 'is it good?
4 Accountability:
No direct elections oI Iederal judges
Insulation: Allows unelected judges to impose own views.
O The idea is that this insulation gives the judges the Ireedom to get the answer
right, but insulation also gives them the Ireedom to get it wrong and impose their
own policy preIerences on us. They can make their own political decisions with
no recourse.
4 Another solution: give executive a place.
- Arguments for counter-majoritrianism:
4 Pre-commitment: someone has to make sure Congress does not abandon ideas oI the C.
4 Protects the minority Irom majority decisions.
4 Settlement Iunction: courts can say what the law is.

II. Authority oI Judicial Review oI State and Local Actions

Cooper v. Aaron, 1958
- Facts: A Federal District Court ordered desegregation oI Little Rock, AK public schools. State
disobeyed order based on 1) concern that compliance would lead to violence and 2) claim that not bound
to comply w/ the decree.
- Issue: are the branches oI Congress independent or do they have to listen to each other even iI they
think the other is wrong? II in good Iaith, the governor believes the case was decided wrongly and
inconsistent with the C, can he reIuse to enIorce it?
- Holding:
13
4 Supremacy Clause: Article 6 makes Constitution the Supreme Law oI Land. (Marbury). Fed
judiciary is supreme in the exposition oI law oI the Const.
4 Federal courts, not just the Supreme Court, have the authority to review the constitutionality oI
state laws and the action oI state oIIicials.
4 Exec has power to make sure laws are carried out using army iI states do not comply.
O Note: Technically, the pres, iI under an order to carry out the ct order, could choose not to comply. But,
he will prob. Still do it to maintain the support oI the public. Doctrinal point: nobody thinks that the pres
gets a matter oI right to deIy a Iederal ct order.

III. Is the Exec Bound by Oath to Take 1udiciary`s Interpretation?

Dred Scott, 1857
- Holding: Blacks, Iree or slave, are not citizens oI the U.S. even iI they are citizens oI a state.
- Despite this, Abe Lincoln told his secretary to continue to issue passports to Blacks. But, no one was
harmed so the SC would never hear the case. Did Lincoln violate his Constitutional oath hen he
disobeyed the Supreme Court`s order?
o Maybe this is the check on the Supreme Court`s power. They can`t enIorce their decisions
unless the Congress and the executive decide to.
o Maybe legislation comes with a super presumption oI Constitutionality.
o Means that the pres can expand but not retract rights, but maybe that`s ok.

Thayer: The Origin and Scope oI the American Doctrine oI Con Law :
O When the document is clearly unconstitutional, courts should enIorce the constitution against the wishes
oI the majority; when meaning is subject to reasonable doubt, should deIer to the interpretation adopted
by politically responsible branchesesp. Congress.
4 Thayer ould say Supreme Court should only exercise judicial revie hen there is a clear
error. 'reasonable doubt is the threshold.
4 Thayer thinks that a robust doctrine oI judicial review will encourage Constitutional laziness on
the part oI Congress. He thinks a narrower role Ior the Supreme Court would Iorce the
legislature and executive to consider the Constitution more.
o Thayer`s ideas about judicial review and the scope oI judicial review inIluence a whole
generation oI Supreme Court justices.
o The idea that Congress should take the lead. That when Congress passes a statute, both houses
give assent plus prez` assent, this ought to be dispositive except when C is very clear. Need
reasonable doubt.
o Recurring theme: idea that cts have limited political capital. The only thing they have to
reinIorce the public`s conIidence in them- Iear that the public will lose conIidence in them.
o Problem: could be unpredictable, subject to political whims.


2 Traditional odes of Con Interpretations
Stone pp 61-78, 55-72, Chemerinsky pp 15-28

Calder v. Bull, 1798: (Will contest)
- Will speciIies who gets property. Will probated and deemed invalid thereIore it`s as iI no will existed at
all. Property goes to Calder (heiress). CT passes statute that decides how will contests are to be
decided. Changes rule, which changes outcome in case. Will gets sent back to trial ct, probated again
deemed good. Property goes to Bull. Calder says unIair: Ex post Iacto law.
o Issue: whether cts are empowered to enIorce obligations that don`t exist in the text or aren`t
Iairly inIerable.
14
4 Held: Ct says that it`s not ex post Iacto. Civil legislation, so ok that it`s retroactive (the right
had never vested). Ex post Iacto is only Ior crim law.
- Point: Justice Chase v. Justice Iredell agreed on the ex post Iacto issue oI the case, but disagreed on the
appropriate rule oI 'natural law in Constitutional interpretation.
4 Article I, 9: says what Ied can`t do.
4 Article I, 10: says what sates can`t do.
4 Chase: Social compact endowed ppl w/ certain inalienable (natural) rts. No legislative act can
take those away. Any law taking these away would be void even iI you can`t point to C. An act
of Congress cannot be contrary to natural la. That you ought to have notice about what the
actions are. It`s good to have ex post Iacto prohibition. Courts are required to enIorce C stuII and
nat`l justice.
4 Iredell: Congress may not pass laws beyond the scope oI the Constitution, but they don`t have
to adhere to 'natural law unless it`s in the Constitution. Legislators Iree to do what they want.
Ideas oI natural law are not Iixedyou could argue a lot oI issues either way. The only
constraints on the legislature`s ability to pass la are those set out in the Constitution
hich the ppl have consented to and that`s hen the cts can step in.
- Isn`t the declaration oI independence itselI an expression oI natural law? 'We hold these truths to be
selI-evident.

McCulloch v. Maryland, Marshall, 1819:
- Facts:
o First bank oI U.S. was established in 1890. Established by Iirst Congress and lots oI debate over
its Constitutionality. Madison/JeIIerson against it. Hamilton Ior it.
o 1911: Charter expired, not renewed.
o War oI 1812 strains economy.
o 1816 Congress passes second bank oI U.S. Now Madison is in Iavor oI bank.
o Second bank didn`t do what it was supposed to do and states didn`t like it. Some states banned
the bank Irom operating within the state.Some states taxed the bank, Maryland included, which
is what this case is about.
o McCulloch, cashier oI U.S. Bank, is sued by Maryland Ior Iailure to pay the tax. SC oI MD rules
Ior MD, goes to SC oI U.S.
- Issue 1: Does Congress have power to create the bank oI the US? Yes.
4 Yes (Marhsall`s Arguments):
There are implied powers that are necessary Ior the execution oI enumerated powers. We
can`t read the Const. so tightly or else we can`t execute our power.
O Necessary and Proper (Art I 8 Clause 18) to carry out expressed powers.
Inclusio Unius.
O 'Necessary means useIul, helpIul, contributory, not indispensable. He gets this
Irom the common usage oI the term. He also looks to Article 1 10 where he
Iinds the word 'necessary being modiIied as 'absolutely necessary. II it is
modiIied in one place and not in another, then the one without modiIication must
be read more generally and perhaps expansively (Intent of Drafters). This is
intratextualism.
4 Maryland says no: power to create a national bank isn`t implied by any oI
the enumerated powers. That is reading the Const. too expansively. This
would remove the limitations put on Congress by enumerating their
powers and harm state sovereignty.
4 US response: maybe necessary just means a relationship b/w the means
and ends.
Look to Intent of Framers: deIerence to decisions by Iirst Congress.
15
O Maryland says no: JeIIerson and Madison were against it. Also, in Marbury,
Marshall says court make de novo judgment, not one with deIerence.
Structural Arg: look at where the grant is. It`s in section 8 Ior granting pwrs.
Practice: things in operation Ior some time, haven`t stuck to narrow restrictions, assumed
implied powers with express powers. Heavy thumb on scale thinking things are C.
First Congress Arg: 1
st
Congress passed the Bank oI the US. (though it wasn`t
renewed).
Thayer approach: Ct not taking primary responsibility Ior deciding what`s necessary.
Prudence: II you read it the way Maryland wants it to be interpreted, maybe you
couldn`t get stuII done.
Ordinary English ords: necessary or absolutely necessary How do they use it in
English?
Article 1 9 lists power Iorbidden by Congress and bank is not in there. This comes right
aIter Art 1 8 are all things that Congress can do. Art 1 10 lists things the states are
Iorbidden Irom doing.

4 Rebuttal (Maryland`s Argument):
Art I 8 lists the 17 things Congress can do and the power to create a national bank is not
expressly delegated.
Powers not delegated are reserved the states or people. (expresio unius)
Might be necessary, but not proper. Maryland wants to read 'necessary as being
absolutely necessary, indispensable, closely related, tight nexus.
II really useIul, would have been kept around in the Iirst place.
Compact Federalism: because the states ratiIied the Constitution and created the Iederal
government, it is subordinate to the states. Idea that the Ied govt exists to do the pleasure
oI the states.
O Marshall says no waythe people are sovereign, not the states. Constitutional
Theory Arg: that the source oI original sov Ior the Ied govt doesn`t come Irom
the states, but instead Irom the people.
- Issue 2: Does MD have the right to tax the bank? No.
4 Supremacy: State governments don`t derive power Irom the Iederal Constitution. Federal
governments derive power Irom the Iederal Constitution.
States have the power to do what`s leIt over by the Iederal Constitution and whatever is
within their own Constitutions (as long as it doesn`t conIlict with the C).
Sovereignty oI the states is subordinate to the Constitution. This is a rejection oI the idea
oI 'compact Iederalism.
4 Is there any explicit prohibition on states taxing the Iederal government? No.
Marshall concedes that Maryland has the power to tax and that nothing explicitly says
they can`t tax the Iederal government.
But why wouldn`t we let a state tax the Iederal government?
O (This Iinal opinion is based on constitutional theory and structural govt)
O Representation (Preconstitutional or Foundational Idea): Marshall: normally
we allow democracy to Ilourish and there are winners and losers, but it`s ok
because everyone is represented. Pwr to tax derives Irom the consent oI the govt.
It`s not ok when not everyone is represented. II Ohio tried to tax Michigan, that
would be political process Iailure because Michiganders are not represented in
Ohio. This argument is called 'representation reinforcement. Courts step in
where the political process Iails.
O Poer to tax is poer to destroy:
4 Why can`t we tax until the power to destroy becomes a real threat?
16
4 II we make a precedent that a 2 tax is ok, eventually all oI the states will
want to tax and we`ll have to keep the precedent. It will become too
expensive and the Courts are bad monitors of cumulative situations.
Can`t trust the political process to work here.
4 Supremacy Clause- textual hook about the idea oI a structural govt.
Improper to eert pwr over Ied govt; sees taxing as exerting pwr.
Pwr to create the bank is implied, so the pwr to preserve the bank
is a Iurther implication oI pwr. Maryland could tax the bank to
discourage the bank Irom operating within its borders, to destroy
the govt`s entity.
Art 1 Sec 10: limits on state gov`t pwr. Imposes limits on state taxing pwr. Can`t impose
taxes/duties on imports/exports. The section Iorbids states Irom imposing certain kinds oI
taxes, but not McCulloch`s taxes.
O Bill of Rights: also limits state pwr
4 Note: Marshall could`ve used , but didn`t, the natural law/positivist approach oI Calder v. Bull

Some Notes on Marshall in Marbury and McColluch:

Marshall in McCulloch: 'We must never Iorget it is a Constitution we are expounding. (II it were to spell out
everything, it would partake oI the prolixity oI a legal code.) This was called the most important line ever by
Felix FrankIurter (would say we should read it restrictively and that it`s supposed to bind us to the mast).
- Marshall in Marbury: to interpret the Constitution is the job oI the courts. It is their area oI expertise.
- Marshall say in McCulloch: statutes are easier to Iix iI misinterpreted. A Constitution is meant to
endure Ior the ages, we must read the document with some Ilexibility. There has to be give or it won`t
endure Ior the ages.
- So, who Iills in the gaps?
o Marshall in McCulloch: Congress gets to decide what`s necessary and proper, decides the extent
oI its own powers, but we`ll strike them down iI they go too Iar.
o Marshall in Marbury: Court decides whether statute is Constitutional.
- Sooo.Congress does have the power to create a bank.
3 Political Control of the Ct
Stone pp 72-84, Chemerinsky pp 148-65
FIAD 1HE S1AADIAC HAADOU1! 1usticiability doctrines

Constraints on the 1udicial Branch:
What are the political checks on judicial power?
- External:
4 Amend the Constitution
4 Impeachment oI justices by Congress
4 Presidential appointment (by and with advice and consent oI Congress)
4 1urisdictions stripping by Congress
Can Congress constitutionally limit the courts jurisdiction over certain types oI cases?
There`s an exceptions clause in Article 3 oI the Constitution where we talk about the
Sup. Ct.`s jurisdiction. This could mean that Congress could move something Irom
appellate original. Marshall said no, these categories are Iixed. II so, then what does
the exceptions clause mean? It could mean that you take something out oI the appellate
category all together.
O Ex: take out 'Arising under the Constitution. This would strip the Sup. Ct. oI
appellate jurisdiction Ior matters arising under the Constitution.
O Then who would hear these stripped cases? State courts, lower Iederal courts.
17
O Congress, however, created Iederal courts, so the idea is that Congress can abolish
them or limit their power. This would leave only the state courts to hear
arguments about Constitutionality. Maybe they would do a better job. Many
state courts are electorally responsible. II we`re looking Ior accountability, this
might be a better Iorum.
- Internal:
4 Preservation oI Political Capital: Because Courts perceive themselves as having limited power,
they give themselves inIormal checks and try not to get too Iar ahead oI popular consensus. II
they stray too Iar, they won`t have a means oI enIorcement because everyone would resist.

1urisdiction Stripping: Is it really Constitutional for Congress to take jurisdiction from the Supreme
Court? To cases

Ex Parte McCardle, 1869
- Facts:
4 McCardle wrote articles criticizing Reconstructionarrested. Filed writ oI habeus corpus, said
can`t be jailed Ior expression1
st
Amendment.
4 Filed writ in accordance with Judiciary Act oI 1867, which gave court jurisdiction over writs oI
habeas corpus oI Iederal and state prisoners.
4 As soon as this case was brought to Court, Congress repealed Act oI 1867 (limiting court`s
jurisdiction) because they are worried about the Supreme Court`s position on Reconstruction.
- Issue: Can Congress do this?
- Holding: Yes. They have the power to do this via the exception clause in Article 3.
4 Congress grants jurisdiction, so Congress can take away.
4 When are Congress`s motives important? Marshall in McCulloch says we should strike down
Congress when they do things with a pretextual motive. But in McCardle they didn`t look at
motive.
Maybe we need the court to check democracy.
- Take away: Ct`s jurisdiction is vulnerable to Congress EVEN when politically motivated.

US v. Klein, 1872
- Facts:
4 AIter the Civil War, an individual could get back property iI they could prove that they did not
aid the rebellion.
4 Supreme Court held that presidential pardon was enough prooI.
4 Congress passed a statute in response that said pardon was prooI you aided the enemy and that
jurisdiction ceases once a pardon is oIIered into evidence.
4 Klein had an indemniIication suit pending.
- Issue: Can Congress take away the Supreme Court`s jurisdiction in this way?
- Holding: Congress may not restrict the Supreme Court`s jurisdiction in an attempt to dictate substantive
outcomes oI cases.
4 How does Klein reconcile with McCardle?
O Congress is taking away access Ior a certain class oI individuals in Klein. Thre is not
other way to get to the Supreme Court. In McCardle there was a diIIerent statutory
avenue to the Sup. Ct.
O In Klein the Sup. Ct. had already decided the issue. Congress tried to revise the Court`s
interpretation. Sup. Ct. is saying Congress can`t legislate the deIinition oI a pardon.

Bottom line oI McCardle and Klien: Congress ability to strip jurisdiction is murky at best.

18
C THE 'CSE OR CONTROJERSY` REQT and THE 'PSSIJE JIRTUES`

1 dvisory Opinions, Standing, Ripeness, and ootness
Stone pp 85-92, 100-110

Four Justiciability Doctrines
- Political Question:
4 Focuses on the issue. Asks 'what? Is it appropriate Ior judicial review? Or is it better resolved
by the political branches? Ct could have sub matter jx but still say it`s a political q.
- Ripeness
4 Asks 'when? Is it too early? Nothing has happened yet, so you can`t challenge anything.
- Mootness
4 Asks 'when? Is it too late? Issue has already been decided or problem has been Iixed.
Ex: You are deIending a criminal and is imprisoned and he thinks he`s imprisoned
wrongly but then gets pneumonia and dies.
Ex: Parties settle
Ex: Statute that was repealed beIore taken to ct.
EXCEPTION: Capable of Repetition Yet bating Review: Trial takes long time to get to
SC. By the time it gets resolved, no longer applicable. Want the right to have an
abortion. Could happen again but cannot have case heard b/c takes too longRoe v.
Wade.
- Standing: Who is the right person to bring this claim? Is this the right P? Can be raised at any time
during litigation and you don`t have to raise all the issues.
4 Constitutional Requirements:
P must have ~injury in fact.
O Injury must be ~concrete and particularized.
4 Must happen to you. Not enough that the law is violated.
4 Ex: Sierra Club (p. 102): Wanted to stop construction oI a ski resort. Not
good enough to have an interest in preserving the environment. Have to
allege an injury suIIered by members. On remand, Sierra Club revised
complaint and said that members like to sit on the mountain and Ct said
that was good enough.
O Can`t be conjectural or hypotheticalmust be actual and imminent.
4 City oI Los Angeles v. Lyons (p. 110): Lyons wanted to get injunction the
LAPD Irom using chokeholds. He had been in one beIore and believed
they had some kind oI policy to put suspects in chokeholds. Ct said that
just b/c he experienced chokehold beIore doesn`t mean he can get
infunctive relieI b/c that would suggest he`d be in one againhe can`t say
that without admitting he`s a career criminal. He should have sued Ior tort
damages.
4 Side note: with declaratory judgments, you have to show something is
imminent and you want to avoid it. Advisory opinions not permitted and
they look similar.
Causation: is the injury 'Iairly traceable to D`s conduct
Redressability: Will a Iavorable decision by Ct. likely eliminate harm? Kind oI the
same as causationdiscussed as one.
O Allen v. Wright: parents oI black schoolchildren sue IRS. They say their children
have a right to go to an integrated public school. The IRS wasn`t enIorcing a
statute that takes tax breaks away Irom private schools that won`t desegregate.
P`s allege the IRS is subsidizing the private school which makes it easier Ior the
19
private school to attract white kids. Court says no standing because there are too
many third parties that could aIIect the redressability oI the problem. Too many
people could come in the way oI desegregation. Maybe the parents oI the white
kids have an inelastic preIerence Ior the private school and raising the price won`t
do anything. Also, we don`t know iI they would even raise tuition. Even iI the
private school complied with the IRS rule, presumably its purpose is to get blacks
in private school. The Ps don`t want to go to private school, they want to go to an
integrated public school. So the private school has incentive to just comply. The
issue is not redressable Ior the Ps.
O Why couldn`t they bring suit that said an unjustiIied reduction in taxes takes a
beneIit away Irom taxpayers? No generalized grievances.
O Same response Ior a claim that the injury was a stigmatic harm, sending a
message oI racial inequality Irom the govt and that is the harm they wanted to
stop. Though it`s a harm, it`s not a harm as to you.
O Would`ve been a harm iI they had applied to the private schools and been
rejected. Though, they would`ve needed a good Iaith intent to apply

4 Prudential Requirements: limits that either congress has imposed on the ct or that the ct has
imposed on itselI and they can be altered.
No third party standing. You must assert your own rights (related to injury in Iact), you
can`t assert someone else`s rights.
O Kowalski: Supreme Court kicked out a case where Michigan lawyer`s tried to
assert the rights oI indigent clients. They wanted to bring this case so that those
indigents could be assigned to the lawyer`s by the state as clients. Supreme Court
said iI you want to represent them, do it pro bono. But the real party in interest
gets to decide even iI a Iriend wants to keep Iightingno oIIicious intermeddlers.
O Court or Congress can make exceptions to this rule. A routine one is with respect
to children who are incompetent to litigate on their own behalI. Parents litigate
on behalI oI their children.
O Criticism: iI it`s pretty easy to jump through the hoop oI third party standing (just
Iind the right guy to represent), why even have this requirement? Because not
everyone will jump through the hoops and we want zealous advocacy.
No generalized grievances.
O Has been treated as a Constitutional category, too
O Unless Congress grants taxpayer standing (maybe, court hasn`t decided iI
Congress can do this).
O Establishment clause exception: no taxpayer standing unless your tax dollars
are being used to subsidize religion. Flast v. Cohen
4 Valley Forge Christian College: II government wants to give property to a
religious establishment, you don`t have standing. You only get taxpayer
standing hen government is giving actual money to a religious
organization.
one of interest: you have to be in zone oI interest oI the statute. Not important
constitutionally, important Ior administrative law.

Why do we have these standing requirements?
Advantages:
- Separation of poers:
4 Executive is charged with the responsibility oI enIorcement, not the judiciary.
20
4 Courts would be put in position oI overseeing administration oI executive branch. Political
process is way better.
- Disputes ill be real disputes between real parties.
4 Out oI this will come zealous advocacy.(binds all Iuture parties) con: interest group zealous
advocacy can`t tell us the whole story.
This justiIication strikes Larson as a terrible justiIication in some situations. Ex: Sierra
Club is a zealous advocate, but they don`t always have an actual stake. They might be
better suited to bring an action that the person actually aIIected.
4 Adminstrative: Conserves judicial resources.
4 Prevents oIIicious meddlers.
4 Represent minorities (tho sometimes they won`t be protected b/c oI standing doctrine)
4 Protect individual autonomy- protects against oIIicious intermeddlers
4 Redressability- iI the ct can`t really do anything about it, there`s no point.

Disadvantages:
- Standing is a barrier to litigation and the court won`t be open to address some real live harmillegal
actions won`t be redressed by courts.
- Only redress is political action that caused the problem in the Iirst place (Irom this comes Thayerdon`t
rely only on the court)
- There will be the possibility oI blatant statutory or C violations that you could prove beyond a
reasonable doubt that will go unremedied except by political process (lobbyists).

2 The Political Question octrine
Stone pp 129-144, 121-33, Chemerinsky pp 129-149

Political Question Doctrine: subject matter that the Court deems to be inappropriate Ior judicial review, even
though there is an allegation that the Constitution has been violated. The Iederal courts reIuse to rule and
instead dismiss the case, leaving the constitutional question to be resolved in the political process.
Chemerinsky

First seen in Marbury v. Madison (that there are some qs that are only politically examinable)
- ChieI Justice Marshall deIine political questions: (anything the govt can decide to do and C doesn`t give
us a rule)
By the constitution oI the United States, the President is invested ith certain important political poers, in the
exercise of hich he is to use his on discretion, and is accountable only to his country in his political character, and
to his own conscience. To aid him in the perIormance oI these duties, he is authorized to appoint certain oIIicers, who act
by his authority and in conIormity with his orders.
In such cases, their acts are his acts; and hatever opinion may be entertained of the manner in hich executive
discretion may be used, still there exists, and can exist, no poer to control that discretion. The subjects are
political. They respect the nation, not individual rights, and being entrusted to the executive, the decision of the
executive is conclusive. . . .
But when the legislature proceeds to impose on that oIIicer other duties; when he is directed peremptorily to perIorm
certain acts; when the rights oI individuals are dependent on the perIormance oI those acts; he is so Iar the oIIicer oI the
law; is amenable to the laws Ior his conduct; and cannot at his discretion sport away the vested rights oI others.
- Narrow: includes only matters where the president had unlimited discretion and there was thus no
allegation oI a constitutional violation. (no space b/w this and deciding case on the merits. For Marbury,
it was as iI the merits were already decided b/c pres had discretion. No legal rule given. For marshall, it
was a 'Iake political q case b/c it was really just a j on the merits)
4 Vetos
4 Appointments
- II there is a claim on inIringement oI an individual right and the plaintiII has standing no political
question. (diIIerent than Marbury)
21

But, is there something more to the political q doctrine than simply the ct saying you lose on the merits? re
there cases where the ct says you might win on the merits, but were not going to hear it b/c its a political q?
Its a q is whether political q is a fusticiability doctrine or whether its fust sayng you lose on the merits
Luther v. Borden, 1849: broadened the political question deIinition.
- Background:
4 RI didn`t have a state constitution. In 1840`s still governed by King`s charter. Legislature was
malapportioned.
4 1841: Dorr rebellion. Group oI revolutionaries got together and wrote and ratiIied a new
constitution. Old government made it a crime to vote in the new elections. Revolutionaries held
elections anyway. Borden (old government) broke into Luther`s house to see iI he had voted in
election. Luther sued Ior trespass. Borden said he had a warrant Irom the old government.
Luther`s claim is that the Iederal government isn`t upholding the Guaranty Clause (that`s how
they got to Iederal ct) (Article 4 4)guarantees a republican Iorm oI government. |A republic is
a Iorm oI government maintained by a state or country whose sovereignty is based on popular consent and whose
governance is based on popular representation and control.|
States decide q`s oI state law and the Ied govt will take state law as it comes to them. The only q is whether
the state law as construed would conIlict with the Cby violating a Republican Iorm oI govt.
O Issue: Who`s govt is ruling?
- Holding: The Supreme Court Iound that it was up to the President and Congress to enIorce this clause
and that, as an inherently political question, it was outside the purview oI the Court. This is one oI the
Iirst instances oI judicial restraint.
- Reasoning:
4 II the court had made a decision, it would have decided which government was validthis is
obviously a political question. Siding with P would have caused chaos because everything
instituted by the old government would have become illegitimate.
4 Under the Guaranty Clause it rests with Congress to decide what government is the established
one in a state, not with the judiciary.
Textually committed to Congress the idea about which govt is the real republic govt.
Congress the one who has to seat the senators Irom RI and when they seat them they`ll
have to pick. (that`s the textual part)
Tools Argument: Ct not properly equipped to decide what is a republican Iorm oI govt.
Standardless. (Larsen doesn`t believe this)
4 The president can send out troops to enIorce the laws oI whichever government Congress
decides is the right one. II the judiciary overturned this it would be anarchy.
4 Takeaway: this case looks more like a true justiciability doctrine. Even though the ct could
decide on the merits, they don`t.

Baker v. Carr, Brennan, 1962: Court deems justiciable claims that malapportionment violates the equal
protection clause.
- What makes a subject non-justiciable? Criteria laid out in Baker.
4 The BRENNAN TEST:
Textual commitment to diIIerent branch.
Lack oI judicially manageable standards.
Impossibility oI deciding w/o a policy determination.
Impossibility oI deciding w/o disrespecting other branches.
Need to stick by initial decision made by other branch.
One Voice: potential Ior embarrassment iI not uniIied opinion.
- Chemerinsky says these criteria are pretty useless. Instead, look to where the Court has previously
invoked the doctrine:
4 Republican Iorm oI government (Guaranty) clause.
Comment [LO1]: Larsen got pissed and
skipped this

22
4 Electoral process.
4 Formal aIIairs.
4 Congress`s ability to regulate its internal processes.
4 Process Ior ratiIying constitutional amendments.
4 Instances where the Iederal court cannot shape eIIective equitable relieI.
4 Impeachment process.
- Reasoning:
4 This case Ialls under the Equal Protection Clause, while Luther v. Borden Ialls under the
Guaranty clause. The equal protection clause is well developed and Iamiliar. The court has
precedent to go Iorward.
The guaranty clause has little room Ior interpretation.
The equal protection clause has been widely interpreted. (Judicially manageable
standards.) Text gives guidance.
- Who is more like Justice Marshall? FrankIurter or Brennan?
4 Marshall made the distinction between cases with vested rights and cases with discretionary acts.
Ones with discretionary acts are not reviewable.
4 Brennan is more like Marshall: this is not a political question case because there are
standards to apply. There is la to apply. The Guaranty clause does not have la to
apply. You can`t in on the merits of a Guaranty clause case.
4 FrankIurter says we have to think about our political capital and our reputation, not just about the
law. Just cause we have law doesn`t mean we should apply it in every case.

Nixon v. United States, Renqhuist, 1993
- Nixon is convicted oI lying to a grand jury.
- He is impeached and 'tried by the Senate.
- The senate hears evidence and they vote.
- Nixon says: 'That wasn`t a trial, I just got a subcommittee.
- Court says: 'This is not justiciable. It is a political question.
o Impeachment is one oI the checks on the judiciary. II we can second guess whether a judge has
been validly impeached, that is a conflict of interest. That is the only way we can be ousted, we
can be the Iinal decision maker on that. Separation oI powers problems.
o The word 'try is susceptible to diIIerent interpretation and what must Iollow Irom that is that
there are no judicially managed standards.
o Chaos could ensue, it`s not clear that we have remedy we could aIIord.
- Souter: while he agrees, he thinks iI Congress were impeaching an oIIicial in an unconstitutional way, it
would be proper Ior the court to intervene. It would be unconstitutional iI it was arbitrary, like a coin
toss.
o He agrees it`s a political question, but he thinks at some point we should get involved.
- Point: Impeachment is a non-justiciable political question.

Powell v. McCormack, 1963
- Facts: House reIuses to seat Powell as Rep even though elected by constituents. House subcommittee
Iound he deceived Congress by presenting Ialse travel vouchers Ior reimbursement and made illegal
payments to wiIe w/ govt Iunds. Powell sues saying that uncon not to seat b/c properly elected. House
says that they can do whatever they want.
- Holding: Not a political question, justiciable.
- Reasoning:
4 It is important to allow the people to select its legislators.
4 Article I 5 is a 'textually demonstrable commitment to Congress to judge only those
qualiIications listed in the Constitution.

23
Political Question Doctrine and Conducting Foreign AIIairs: Why would courts close themselves oII oI certain
kinds oI cases?
- Dangerous to have more than one voice speaking Ior US.
- There`s a lot oI secret stuII in Ioreign relations that the Court doesn`t know about.
- A large risk that the political branches won`t comply with the Court`s decision which can make the
country look bad (or it he court overturns the president, can make the president seem weak).
- Examples:
4 Goldwater v. Carter, 1979: Carter wanted to unilaterally rescind treaty w/ Taiwan so we could
recognize China. Congress isn`t happy. Goldwater argues that iI it takes 2/3rds oI Congress to
create treaty, you should need 2/3rds to get out oI it. Carter saysthe Constitution doesn`t say
how to undo a treaty.
Holding: Court says this is a non-justiciable political question.
Reasoning:
O Because there`s already a check Congress has against the president. The
interplay between those two branches should be enough. Congress won`t
establish an embassy or an ambassador or they`d ban trade, etc.
O 1udicial revie ould be bad for diplomatic relations across the orld.
Other nations need to depend on the president`s handshake.
4 Moore v. Reagan, 1981: Pres. Reagan ratiIies an agreement made by Carter with the government
oI Iran. He doesn`t want to sign a treaty, just to shake handsi.e. no Senate approval necessary.
Supreme Court says this is Iine.

Political Question Doctrine and Constitutional Amendments:
- They are reluctant to do this because the only way you can overturn a Sup. Ct. decision is by
Constitutional amendment. This creates a conIlict oI interest in the separation oI power.

Should we have political question doctrine?
- Yes:
4 Gives Iederal judiciary the ability to avoid controversial constitutional questions.
4 Limits the court`s role in a democratic society.
4 Preserves judiciary`s Iragile political legitimacy.
4 Allocates decisions to the branches oI government who have the expertise in that area.
4 Federal courts` selI-interest disqualiIies them Irom ruling on certain matters.
4 Separation oI Powers: minimizes judicial intrusion into the operations oI other branches.
- No:
4 Inappropriate to leave constitutional questions to the political branchesthis is the job oI the
judiciary.
Matters are placed in the Constitution to insulate them Irom majoritarian control.
Politically accountable bodies should not be entrusted to enIorce any part oI a document
that is meant to restrain them.
4 The credibility oI the courts is robust, there`s no evidence that rulings have an eIIect on
legitimacy, and the court shouldn`t worry about this anyway.
4 ConIuses deIerence with abdication.
They should have deIerence when they lack expertise, but not abdicate their power.


III. FEDERALISM: VERTICAL DISTRIBUTION OF GOVERNMENTAL POWERS

GOJT OF ENUERTE POWERS (WHY OES FEERIS TTER?)
Stone pp 137-43, 151-59

24
I. Why does Iederalism matter? Why do we have states?
- State governments are closer to constituents and Iit local needs.
4 Promotes democracy by allowing more opportunities Ior people to get involved; easier at the
local level. Political responsiveness results.
4 Allows people to choose a residence based on diIIerent tastes and preferences (this is also an
eIIiciency/responsiveness point). They`re closer to the ppl. Informational advantages. And,
states will be responsive b/c they`re competing Ior a tax baseexit costs are lower than at the
national scale.
- Checks on Fed Government by competing Ior aIIections. Fed can`t always coerce compliance with
states.
- Gives us a local identity.
- States were original entities.
- Brandeis` idea: laboratoriesallow states to experiment and then iI policy works, other states or the
Iederal government can adopt it. Promotes efficiency.
4 Desegregation oI decision making rather than one size Iits all solution

II. Why have a Iederal government?
- ess Responsive: can serve to protect against tyranny oI majority and 'diIIuses Iactions (Madison)a
small government is easier to capture, a large government is hard to capture because there are so many
opinions.
- Economies of Scale: national deIense and other similar big projects work better on national level.
Better coordination.
- imits Externalities: Allows states to have some power over externalities oI other state`s activities. Fed
govt`s policing helps to regulate and ensure that downstream consumers aren`t aIIected by upstream
states.
- Interstate Warfare: promotes trade, Iull Iaith and credit between states.
- Prevents a Race to the Bottom. States can`t take the bill oI rights away.
- Foreign ecisions: allows us to speak with one voice.

III. Where in Constitution does this division come Irom?
- Article I 8: enumeration oI Iederal powers.
Anything unenumerated is reserved to states.
1. The Congress shall have power to lay and collect taxes, duties, imposts and excises, to pay the debts and provide Ior the common
deIense and general welIare oI the United States; but all duties, imposts and excises shall be uniIorm throughout the United
States;
2. To borrow money on the credit oI the United States;
3. To regulate commerce with Ioreign nations, and among the several states, and with the Indian tribes;
4. To establish a uniIorm rule oI naturalization, and uniIorm laws on the subject oI bankruptcies throughout the United States;
5. To coin money, regulate the value thereoI, and oI Ioreign coin, and Iix the standard oI weights and measures;
6. To provide Ior the punishment oI counterIeiting the securities and current coin oI the United States;
7. To establish post oIIices and post roads;
8. To promote the progress oI science and useIul arts, by securing Ior limited times to authors and inventors the exclusive right to
their respective writings and discoveries;
9. To constitute tribunals inIerior to the Supreme Court;
10. To deIine and punish piracies and Ielonies committed on the high seas, and oIIenses against the law oI nations;
11. To declare war, grant letters oI marque and reprisal, and make rules concerning captures on land and water;
12. To raise and support armies, but no appropriation oI money to that use shall be Ior a longer term than two years;
13. To provide and maintain a navy;
14. To make rules Ior the government and regulation oI the land and naval Iorces;
15. To provide Ior calling Iorth the militia to execute the laws oI the union, suppress insurrections and repel invasions;
16. To provide Ior organizing, arming, and disciplining, the militia, and Ior governing such part oI them as may be employed in the
service oI the United States, reserving to the states respectively, the appointment oI the oIIicers, and the authority oI training the
militia according to the discipline prescribed by Congress;
17. To exercise exclusive legislation in all cases whatsoever, over such District (not exceeding ten miles square) as may, by cession
oI particular states, and the acceptance oI Congress, become the seat oI the government oI the United States, and to exercise like
authority over all places purchased by the consent oI the legislature oI the state in which the same shall be, Ior the erection oI
Iorts, magazines, arsenals, dockyards, and other needIul buildings;--And
25
18. To make all laws which shall be necessary and proper Ior carrying into execution the Ioregoing powers, and all other powers
vested by this Constitution in the government oI the United States, or in any department or oIIicer thereoI.
- Tenth Amendment: unenumerated powers are reserved to the states or to the people.
4 'The powers not delegated to the United States by the Constitution, nor prohibited by it to the
States, are reserved Ior the States respectively, or to the people.

IV. How do we know when the Iederal government has crossed the line? Who decides?
- McCulloch v. Maryland:
4 What did Marshall tell us in this case about who should police the line between Iederal and state
power?
Congress decides what the appropriate allocation oI authority is through the Necessary
and Proper Clause.
4 When should the court step in?
II there is an explicitly 'Congress may not. then it should be the duty oI the court to
strike it down.
When Congress is acting under the pretext oI exercising one oI its enumerated powers.
- Pretextual Limitations on fed:
4 Internal imits: Court might deIine the extent oI an enumerated power.
Ex: Interstate commerce means X, anything outside X is Ior the states.
4 External imits:
Congress can exercise enumerated powers, but even so there are still limits:
4 Federalism Limits: things leIt to the state by
the 10
th
Amendment.
4 Education, crime, health, labor, Iamily
law, property law (zoning), commercial law/consumer protection, some
tax.
Inter-Constitutional Limits: Bill oI Rights.
4 Congress cannot pass a law that says
'It is unlawIul through interstate commerce to sell books about God across
state borders. 1
st
amend cuts out part oI Congress` commerce clause
power.

B CONGRESSS POWER TO REGUTE INTERSTTE COERCE

Article I 8 Clause 3: 'The Congress shall have the power.To regulate commerce with Ioreign nations, and
among the several states, and with the Indian tribes.

1 One-Hundred Years of Commerce Clause 1urisprudence. The essons of History
Stone pp 143-47, 160-66, 147-49, Chemerinsky 242-50

Gibbons v. Ogden, Marshall, 1824 |This is only in a weird way still good law. There is a big shiIt in 1936.|
- Facts: Federal government grants a charter to a steamboat operator (Gibbons) to operate Irom NJ to NY
that violates a monopoly on New York waters given to Ogden.
- Issue: Who is in the zone oI authority to control the operation oI steamboats on New York waters?
o New York will argue:
10
th
amendment cuts oII the Iederal government because the steamboats aren`t
commerce.
O Will argue that commerce has a very narrow deIinitionto buy and sell,
transactions across state lines, but not the moving oI people across water. This is
just transport, a step in a transaction.
Enumerated
Powers
10
th

Am
1
st
Am
Bill oI
Rights
26
No enumeration gives Congress the power to license anybody to operate a steamboat on
New York waters. NY should be able to make its own laws.
Will argue even iI it is commerce, it all happens in the state oI New York. The people
pay Ior and get on the Ierry in New York.
o Congress will argue:
Navigation is interstate commerce.
Will argue commerce is any kind oI transaction, not just exchanging goods and services
Ior money. It comprehends all parts oI the transaction. II you`re paying to get on the
Ierry that counts as commerce. II the Ierry transports goods that will eventually be used
in interstate commerce, that counts.
Commerce 'among the states should be read broadly. II you go Irom New York to New
Jersey, Congress has the ability to regulate.
It would be impracticable iI people had to switch ships in the middle oI the river where
New York met New Jersey. That is why Congress should rule.
- Holding: Commerce is commercial intercourse. It is more than buying/selling goods. Includes
navigation. It includes the transport oI people. It may have a temporal limit.
o 'Among the states is any interstate commerce intrastate commerce that aIIects interstate
commerce.
o 'Among the states is not exclusively internal commerce oI a state.
o Limits: Can`t regulate purely internal commerce oI the state. Can regulate those activities, the
intra-state activities that concern more states than one.
- Purpose: break up trade wars.

United States v. E.C. Knight Co., Fuller, 1895
- Facts: E.C. Knight is a sugar manuIacturer who acquired Iour reIineries leaving only one independent
reIinery in operation. Congress enacted the Sherman Act (every contract restraining trade is illegal) to
stop the acquisition.
o Source oI Congress` pwr to pass Sherman Act- Commerce Clause (pwr to regulate commerce)-
agts in restraint oI trade are void.
- Issue: Is it within Congress` interstate commerce power to regulate the monopoly?
o Congress` argument:
Even iI all the reIineries are all in one state, the monopoly aIIects the country`s market.
The price will go up everywhere. Demand is inelastic.
Court says no, what you`re regulating is all within one state. Not interstate commerce.
- Holding: The Sherman Act did not reach this monopoly because the Constitution did not allow
Congress to regulate 'manuIacturing. (Iormalist argument)
o Limit: Manufacturing is not commerce. Commerce comes aIter manuIacturing.
o Intent to introduce an item into interstate commerce does not make it interstate commerce.
- Dissent, Harlan: US shouldn`t sit idle while the Iorces conspire against the interests oI the public. Seems
weird to permit this when the point oI a monopoly is to extract rents in interstate commerce.

Champion v. Ames (The Lottery Case), Harlan, 1903
- Issue: Can Congress ban the transportation oI lottery tickets across state lines?
- Holding: Yes. Transportation of goods is commerce. Transportation from one state to another is
interstate commerce.
o Congress is Iree to exclude Irom the commerce articles whose use in the states Ior which they are
destined it may conceive to be injurious to the public health, morals, or welIare, even though the
states has not sought to regulate their use.
o Congress is doing this on pretext. Their real goal is to ban lottery tickets to express a moral
judgment which is leIt Ior states to decide.
27
Harlan said: iI it`s within Congress` Iormal power, Congress can regulate it. Marshall`s
argument (Irom McCulloch) about pretext is gone. Harlan says the idea that moral
decisions are reserved Ior states is baloney. If Congress can do it, it can do it-plenary
poer.a pr to regulate includes the pr to ban.
O One reason: Cts might not be very good at Iiguring out Congress` purpose. Maybe
better to just look at a formal rule.
- Dissent, Fuller: Just carrying something across a state line shouldn`t actually be commerce b/c then
anything becomes commerce. Ex: invitation to dine.

Houston, East & West Texas Railway v. United States (The Shreveport Rate Cases), Hughes, 1914
- Facts: Railroad within Texas (150 miles) has set a rate oI $0.37. Moving goods to Shreveport, a shorter
distance (42 miles), but outside the state, costs $0.56. This is to encourage commerce within the state.
Interstate commerce commission wants the railroad to increase the price oI the Texas-Texas ride.
Otherwise, it discriminates against the Iree-trade union and against goods Irom Louisiana and it directly
affects interstate commerce.
- Holding: Transportation is commerce. Congress may protect the instrumentalities of interstate
commerce.
o This is an example oI intrastate commerce that directly aIIects interstate commerce.
o Ne Limit: Congress may regulate intrastate commerce that has ~a close and substantial
relationship to interstate commerce.

Hammer v. Dagenhart (The Child Labor Case), Day, 1918
- Facts: State A has Iactories that employ children. They want to ship those products to State B.
Congress says no. II you use children you can`t take advantage oI interstate markets.
- Court says no. It`s not Congress`s place to interfere ith a state`s advantages. Can`t penalize a
water state because Arizona has a draught. Can`t penalize Arizona because Michigan has no sunshine.
Some states choose child labor, others don`t.
o Congress`s Argument: the Constitution gives us the power to regulate transportation oI goods as
interstate commerce. (Champion v. Ames)
The court distinguishes this case Irom Champion by saying the products manuIactured in
the present case are harmless, where as the lottery tickets are immoral. The means are
only ok when the moral qualm is with the goods. They have to be highly
dangerous.dangerous meaning immoral. This was just about how the good was
produced. Concern about the consumer, not the producer. The bad part here is
manuIacturing, and that can`t be regulated. (EC Knight)
Congress thinks products made by children are immoral, but Court disagrees.
- Takeaway: Production is not commerce. 'Race to the bottom is not a 'direct eIIect on interstate
commerce. Congress may ban transportation of harmful items, but regulation of hours and ages
is a purely local matter.

StaIIord v. Wallace, TaIt, 1922
- Issue: May Congress regulate rates and operation methods oI stockyards?
- Holding: Yes, a stockyard is 'but a throat through which the current Ilows. This is where we get
'stream of commerce. (saw it brieIly in Gibbons)
- Some transactions cannot be separated Irom the movement to which they contribute and necessarily take
on its character.

Coronado Coal v. United Mine Workers, TaIt, 1925
- Facts: Congress passes Sherman Anti-trust Act against striking miners.
- Issue: Can Congress regulate a strike by miners?
- Holding: Yes.
28
o Mining is commerce, rejects idea that mining is production and not commerce.
o Reduction in supply is usually an indirect eIIect on commerce, but striking means you are doing
it intentionally so it becomes a direct eIIect.
o When intent is to restrain or control supply, Congress may regulate.
The synthesized rule of interstate commerce jurisprudence:
- Congress can regulate things that directly affect interstate commerce. (Gibbons v. Ogden)
o It can regulate intrastate commerce that directly aIIects interstate commerce.
(Shreveport Rate)
o Can regulate instrumentalities oI commerce. (Shreveport Rate)
- ManuIacturing is not commerce. (Hammer/E.C. Knight). There is a temporal limit.
o Exception: Intent to disrupt commerce by limiting manuIacture may matter. (Coronado
Coal)
- Congress can regulate points along the stream oI commerce. (StaIIord)
o Can`t regulate at the Iront end (manuIacturing). (Hammer/E.C. Knight)
o New Deal (see below): Can`t regulate at the back end (Schechter Poultry)
- Congress can regulate goods crossing state lines. (Champion).
o Bans are ok. (Champion)
o But the banned goods must be inherently dangerous. (Hammer)

Ct doesn`t really care about pre-text anymore. Lottery case. Though Hammer calls it into some q.

2 The New eal and odern Welfare States
Stone pp 195-209, Chemerinsky 250-59
I. FDR and the New Deal Crisis:
- Congress passes a whole series oI legislative programs designed to alleviate the great depression. The
National Industrial Recovery Act (NIRA) was the centerpiece. It becomes an issue in Schechter
Poultry.

A. L. A. Schechter Poultry Corp v. United States, Hughes, 1935
- Facts: National Industry Recovery Act (NIRA) regulated labor practices by codes oI Iair competition.
Local boards set the standards and they were subject to the president`s veto beIore becoming law.
Approves live poultry code which establishes a IiIty hour work week, a $0.50 minimum wage, prohibits
child labor, allows Ior collective bargaining. Schechter is charged with criminal sanctions Ior violating
the New York poultry code.
- Arguments:
o Schechter`s Argument: The NIRA violates the commerce clause.
This is at the end of the stream of commerce. The chickens came in Irom CT, but
everything Schechter does is local. Her business is not within Congress` jurisdiction.
The connection between what Schechter does and interstate commerce is too remote. II
we were to Iind it directly aIIected interstate commerce then anything would aIIect
interstate commerce. ~To find it here is to find it everyhere. We don`t want a
slippery slope, then Congress can regulate anything.
o Government`s Argument:
II she violates the code, it creates a race to the bottom. The wages she pays and the
price she charges aIIects interstate commerce. The purpose oI the Act was to inIlate
wages.
- Holding: NIRA is struck down. Exceeds scope oI Congress` commerce power. The Ilow oI
commodities ends when the product arrives and becomes available Ior local use.
o Cardozo: 'Activities local in their immediacy do not become interstate and national because oI
distant repercussion. (Proximate cause argumentcausal chain is too long.)
o Schechter is after stream of commerce.
29
o Race to the bottom argument was rejected in Hammer.

Carter v. Carter Coal, Co., Sutherland, 1936
- Facts: Bituminous Coal Conservation Act oI 1935 intended to stabilize industry during periods oI
sustained industrial crisis. The Act permitted collective bargaining and set minimum prices Ior coal.
Local coal boards set up minimum prices with variations Ior particular mines. Allowed employees to
collectively bargain. P is a shareholder who brought suit to stop the company Irom having to Iollow the
Act.
- Holding: Labor provisions are unconstitutional and unseverable Irom the price provisions, so the whole
Act must be struck down.
4 Commerce is intercourse Ior the purposes oI trade.
4 A narrow deIinition oI commerce was essential to protect the states.
4 Mining is manuIacturing, not commerce. Mining is beIore the stream oI commerce.
4 Pretext arg: Labor relationships are q`s Ior state law, not Iederal law.
4 Government argues that the coal, unlike chickens in Schechter, is a big industry and what you
pay miners aIIects interstate commerce.
O Court rejects the aggregate effects testsize oI the business doesn`t change its
character (coal super essential to the economy.but still doesn`t matter). You can`t
accumulate a lot oI indirect eIIects Ior a direct eIIect.
- Dissent, Cardozo: wanted to reach the price-Iixing stuII. He said labor stuII wasn`t ripe, but that the
price-Iixing provisions could be addressed. Thought that the price provisions could`ve remained.

Morehead v. New York
- NY had a minimum wage just Ior women.
- Court says it violates the due process clause oI the 14
th
Amendment.

II. FDR`s Response to the Court
- Much oI the New Deal legislation is being held unconstitutional.
- In response, FDR devises a court packing planadding another justice Ior every justice over 70. He
wanted allies on the court to uphold his legislation.
4 Hugely opposed on the ground that it violated the spirit oI the Constitution.
- In response, Justice Roberts changes voting pattern in Westcoast Hotel v. Parrish to uphold laws oI the
type that previously were invalidated. 'The vote in time that saved nine.
- Court began ruling on New Deal legislation diIIerently.

NLRB v. Jones & Laughlin Steel Corp, Hughes, 1937
- Facts: National Labor Relations Act mandates a comprehensive system Ior regulating
labor/management relations. National Labor Relations Board charges Jones & Laughlin with the unIair
labor practice oI Iiring employees who want to unionize.
- Issue: Is the NLR Act Constitutional? Yes.
4 J & L argue that labor relations are not in the stream oI commerce (just manuIacturing: see
Schecter, Knight, Carter)
Court says: Jones & Laughlin is organized on a national scale. They have an eIIect on
commerce.
Court uses the direct effect test and abandons the stream of commerce test (doesn`t
matter here e are)..direct/indirect becomes the ne test.
Whether the activity is at the Iront or back oI the stream oI commerce is no longer
dispositive oI cases. Have to look Ior eIIect a case-by-case basis.
- Ne test: degree to which an activity burdens or obstructs interstate commerce must be close and
substantial such that it ould be essential or appropriate for Congress to regulate.
30
Distinguishing Schecter (CARTER!!!): Here, the business is operating on a national
scale and organized in a way that aIIects national commerce. When industries organize
on a nat`l scale, their labor relations become something that commerce can regulate.
Leaves open the question oI where to draw the line Ior 'big enough.

United States v. Darby, Stone, 1941- Shipment ban & direct regulation (and min wage/max hr regulation)
- Facts: Fair Labor Standards Act: Prohibits shipment in interstate commerce oI goods produced with
substandard labor. (Minimum wage, maximum hours violations in this case.) Not just a ban on
shipping. Says you can`t violate these things iI you intend to ship across state lines.
o ManuIacturing, like Hammer, still discussed. Overruled Hammer.
- Holding: Competition created by substandard working conditions is injurious to commerce and to the
states to and Irom which commerce Ilows.
o Court buys the ~race to the bottom argument rejected in Schechter.
Either, companies will relocate to IN because they can produce more cheaply, pay less
and produce more OR IL won`t be able to pass this law, won`t be able to b/c oI
legislative pressure
IL won`t be able to regulate b/c competition Irom IN will keep it Irom doing so. Solution
is Ior Congress to intervene.
So, the direct regulation is independently sustainable by the race to the bottom argument.
It`s the 'evil oI substandard labor
II it`s too diIIicult to keep the goods out oI the market later,
o Plenary Power: only subject to Con restraints (no protected state zone)
o The question oI intention: we don`t care why Congress wants to do the particular thing. We
don`t care that trying to regulate in the sphere oI morality. What has been delegated is ht epower
to ban the shipment oI interstate goods. Cts have no control over motive/purpose.
o Hammer v. Dagenhart is overruled.
o Ct says that regulating commerce is ok and it`s ok to ban goods unless they were made with
minimum wages. So, regulating minum wage/max hours is just a means that is plainly adapted to
the Iirst, otherwise legitimate end. (McCulloch)











Now:
Congress still can`t regulate the 1
st
Am stuII, but Darby changes the above model. Congress gets to decide now
what the appropriate Iloor Ior labor regulations is, it can be Ior purely humanitarian reasons. Pretext is gone.
10
th
Am stuII reserved to the states is just the stuII that`s leIt over. '10
th
Am is but a truism. States are Iree to
regulate things until Congress decides it wants to regulate something diIIerently.

Point: Congress can now regulate labor relationships. Is there anything Congress can`t regulate? Wickard v.
Filburn tells us.

Wickard v. Filburn, Jackson, 1942
Enumerated
Powers
10
th

Am
1
st
Am
Bill oI
Rights
31
- Facts: Filburn had a dairy Iarm in Dayton. He grew some wheat on his Iarm. He Ieeds the wheat to his
livestock. Uses some Ior seed, some Ior home consumption, and sells a little bit. But, the court
characterizes Filburn`s activities is Ior his own use, not as a seller. This is because they want to reach a
broader issue.
- Issue: May Congress regulate the production oI wheat grown Ior home consumption?
4 Filburn`s Argument: This is like Schechter. I`m not Jones and Laughlin. I`m not a multi-state
corporation. I`m a little guy who keeps some wheat. How can Congress get me?
4 Government: There are aggregate eIIects. All the little Farmer Filburn`s will aIIect interstate
commerce.
- Holding: Congress can regulate wholly intrastate, non-commercial activity iI such activity, viewed in
the aggregate, would have a substantial effect on interstate commerce, even iI the individual eIIects
are trivial.
4 Filburn's wheat competed with wheat sold in interstate commerce.
4 II Filburn had not used home-grown wheat, he would have had to buy wheat on the open market.
4 Congress's power to regulate commerce is not limited to the supply side oI commerce, it can
regulate demand as well.
4 Now Schechter is the same as Jones and Laughlin. Anything can be regulated if its
cumulative effect can have an affect on interstate commerce.
- Possible Explanations Ior the court`s shiIt:
4 Maybe ct responding to ct packing plan that its independence might be compromised by FDR?

Summary:

In 1936 in Schechter and Carter we see the court saying unanimously 'these are the tests.
- Stream oI Commerce
- Direct/Indirect
- Pretext
In 1942 in Wickard v. Filburn it is all gone. Now it is uncontroversially constitutional Ior Congress to
regulate how much wheat a Iarmer can produce Ior his own personal use. Why did the court abandon
its position?
- New test: Congress may regulate intrastate activity that substantially aIIects interstate
commerce.
- Maybe Thayer had it right and deIerence should be the rule.
- Does the court lose legitimacy by backing down?

Can Congress use its power to regulate intertate commerce to prohibit race discrimination by private owners oI
hotel services? Yes.

Heart oI Atlanta Motel v. US, Clark, 1964
- Facts: 1964 Civil Rts Act providing that all persons shall be entitled to Iull and equal enjoyment oI the
goods, services, and accommodations oI any place oI public accommodation w/o discrimination or
segregation on the grounds oI race, color, religion, or national origin.
- Holding: Upheld as valid exercise to regulate interstate commerce.
4 Black people are involved in travel which is interstate commerce. Discrimination is burden upon
commerce because it discourages travel.
4 Act was intended to combat moral problem, but that`s ok.
4 Power to regulate includes power to regulate local problems that aIIect interstate commerce.
Constitution requires no more than Ior regulation to be within Congress` power.
4 II the aggregate ould affect interstate commerce, then can regulate
32
- New test: The end has to be permitted by the C (here: allowing ppl to Ireely travel), as long as there`s a
connection b/w the thing being regulated and the legitimate end oI govt then the means is up to
Congress, has to affect interstate commerce.
4 What`s enough to know whether it will aIIect? Congress just has to rationally believe that there
would be a connection b/w interstate commerce and the thing they`re regulating. (just like
Thayer!)
4 Ct still doesn`t care about pretext. Just has to be a rational connection.
- Notes:
4 Why not the 14
th
Amendment? Only protects against state/national discrimination, not private
discrimination against people.
4 10
th
Amendment allows states to tell private citizens not to discriminate (police power).

Katzenbach v. McClung |Ollie`s Barbeque|, Clark, 1964
- Facts: 1964 Civil Rights Act is challenged. Restaurant discriminates against blacks. Restaurant is 11
blocks Iorm the interstate, it buys halI oI its Iood Irom local suppliers and halI Irom out-oI-state.
- Issue: Can Congress prohibit discrimination in restaurants based on the commerce clause?
- Holding: Yes. II you want to travel, you have to eat
4 Discrimination in restaurants has a direct and highly restrictive eIIect on interstate commerce.
4 Discrimination limits travel by blacks.

How does the Court go about Iiguring out whether the activities in these cases will have a substantial aIIect on
interstate commerce?
- They defer to Congress`s judgment. They think Congress is a better Iact-Iinder. It reviews Congress`s
Iinding deIerentially, using a rational basis standard. We`ll sustain iI we think the Congress was
reasonable in judging X is related to interstate commerce.


3 The atest Word
Stone pp 186-203, Chemerinsky pp 260-68

US v. Lopez, Rehnquist, 1995
- Facts: Gun Free School Zones Act oI 1990: Federal oIIense Ior any individual knowingly to possess a
Iirearm at a place that the individual knows or has reasonable cause to believe is a school zone.
- Contains no requirement that the possession be connected to interstate commerce.
- Lopez was 12
th
grader who was arrested Ior a gun to school. Charged and convicted under Act.
Appealed on ground that Act was an unconstitutional exercise oI commerce power.
o Court oI Appeals: inadequate Iindings by Congress as to suIIicient relationship to interstate
commerce.
4 Government`s Argument:
Violent crime is reIlected in the insurance market.
Crimes disrupt education lower worker productivity handicaps economy;
More gun violence at school discourages people Irom moving to those neighborhoods.
And reduces interstate travel.
AIIects resources used on education.
- Holding: Act is unconstitutional because relationship to interstate commerce as too tangential and
uncertain to uphold the law as valid exercise oI Congress` power.
4 To hold otherwise would give Congress plenary police power. Congress could then regulate
child-parent relationship as aIIecting education
4 1. No cash register (commercial) 2. No jx hook 3. No 'Iindings Irom Congress to show they
thought about this and had rational basis to believe their was a link
33
4 Kenndy (concurring): Problem with statute is that it touches an area oI traditional state
concern10
th
Am. We should be skeptical oI invading this sphere reserved Ior states.
States as Laboratories40 oI 50 states have outlawed guns near school. No need Ior
Iederal government to do it. States will learn Irom each other. Tenth Amendment leaves
education and crime to the states.
The Ct as an institution needs to worry about the Commerce Clause jurisprudence
4 Thomas (concurring?)- misreading. ??
4 Note: it`s not that Congress couldn`t regulate on the demand side, it`s that Congress passed a
region where the guns were not allowed which may have had an eIIect on the Ilow oI commerce,
but extremely marginal consumer. Ct could`ve said Congress passed it on a pretext, which Irom
Darby we saw we didn`t care about, but now that`s questionable.

- Dissent:
o The commercial/non-commercial rule looks like direct/indirect distinction b/w it`s not entirely
clear and things were pretty stable beIore, so why change? Having a gun in school isn`t that great
oI an idea anyway.
o Stevens:
Gun is an article oI commerce. Congress can directly regulate labor (Darby) to make
sure they don`t move across.
II Congress can regulate movement then can get to ends.
o Souter:
Not about iI Court thinks Congress thinks there is connection. It`s iI they could have
Iound a connection (Thayer). Formalistic vie.
Judicial Restraint: proper role is not to second guess. Should deIer to what`s already
decided. Saying the law is clear and now we`re making it unclear. Court shouldn`t make
policy (Thayer).
O Majority`s response: They understand the idea oI clear lines, but not iI that means
that Congress can do whatever it wants.
o Breyer: lots oI data to show link.
Commerce has grown and commerce power must grow with it.
Three main problems:
O Re-characterized prior precedent. Majority created new test out oI thin air.
O Commercial v. non-commercial act is unworkable.
O Legal uncertainty: law was stable beIore and now unstable.
- Note: There were no congressional Iindings on this subject. Maybe iI Congress actually did its work to
show that the problem needs a remedy, the court would show more deIerence to it. |Later we`ll see that
congressional Iindings alone are not enough.|

What is the ne test for interstate commerce?
- Congress can regulate three things:
o Channels oI interstate commerce (highways, internet, railroads, airways, etc.).
o Instrumentalities oI interstate commerce (people, goods, etc.).
o Intrastate activities that substantially affect interstate commerce.
Substantial means it must commercial or economic cash register principle. Look Ior
a transaction cha-ching!
Just like Wickard, except has to be 'substantial.
1urisdictional Hook: the addition oI something makes what would have been
unconstitutional, constitutional.
O Congress re-passed this act with the jurisdictional hook that says you can`t carry a
gun within 1000 Ieet oI a school iI the gun has moved in interstate commerce.
34

US v. Morrison, Rehnquist, 2000 |Tests idea oI whether Iindings are necessary.|
- Facts: Violence Against Women Act in 1994. Created a Iederal damage remedy Ior victims violence
motivated by gender. Case brought by P who allegedly was raped by Iootball players in college. Filed
suit against assailants under Act.
- Issue: Is this within Congress` power?
- Government`s Arguments as to how violence against women aIIects interstate commerce:
o Travel: Violence against women keeps women Irom traveling which hurts the economy.
(Maybe the woman lives in Iear.)
o Spending: Women may purchase things they wouldn`t otherwise purchase iI they weren`t
victims oI violence.
o Employment: Victims may not be able to work.
o In reality they want the legislation because (1) women are oIten ignored by police and (2) civil
remedies are insuIIicient, e.g. evidence oI past sexual experience is oIten allowed.
- Holding/Morrison`s Argument:
o Chain oI causation is just too Iar, just like Lopez.
o Doesn`t fit into any of the three categories. II we allow this reasoning, we allow Congress to
regulate anything.
o No cash registerrape and other violence is not commercial. No consensual transaction
involving money.
- The Government has one thing in this case that it didn`t have in Lopez: Iindings.
o They say there is a substantial economic aIIect Irom violence against women.
o Congress did a study and now have these Iindings documented. The government says now we`re
entitled to deIerence.
Court says, documentation alone on`t get the job done. The attenuated chain oI
causation goes too Iar.
- Dissent:
o Souter: congress has done its work in procuring Iindings, so we should give them deIerence.
They are in a better position to know things.
o 17
th
Amendment says we want to push things toward the Iederal power.

In both Lopez and Morrison, what`s leIt? Does the court actually overrule any cases? What does the court
overrule?
- The court is really careIul not to overrule Wickard.
- Preserves Darby, Jones Laugh, Wickard, Heart oI Atlanta, and Ollie`s.
- In lots oI those there was commercial activity

Gonzalez v. Raich, Stevens, 2005
- Facts: CaliIornia has a statute that allows medical marijuana. You won`t be prosecuted iI you have a
prescription and use locally produced weed. Two sick women grow weed Ior their own medicinal
purposes. Everything happens in CaliIornia.
- Issue: Does the statute protect you Irom Iederal prosecution?
4 PlaintiII:
Completely intrastate, nothing moves across state lines.
Like Morrison, the activity is not commercialits healthcare.
State should be able to act as a laboratory.
No market Ior marijuana that aggregate could aIIect (Wickard).
P doesn`t like the synthetic substitute. Real purpose oI statute was not synthetics, but war
on drugs.
No evidence
4 Solicitor-General:
35
Wickard: she is growing her own and not going to market to buy it.
Market Ior synthetic drug substitute. Doesn`t have to aIIect marijuana market, test is iI it
aIIects interstate commerce in general.
Darby: Congress says no pot just like in Darby when the wanted to stamp out market
products made with sub-standard labor.
Rational Basis- should be enough that Congress thought
Holding: Congress wins.
4 Court upholds an economic or a moral purpose, which we don`t see in Lopez.
4 Scalia thinks that it must be necessary and properct deciding what`s necessary.
Dissent:
4 O`Connor says this would gut Lopez and Morrison. Could they just reenact those two as part oI
an overarching scheme? Would that be constitutional? Would have to look at legislative intent.
But that isn`t what they looked at in Wickard.

O Distinguish Irom Lopez: this case is exercising pwr to ban the manuIacture and other things (necessary
and proper) just like wickard. Lopez wasn`t banning the shipment oI guns in IC.

C OTHER POWERS OF CONGRESS. RE THEY ORE (OR ESS) PENRY THN
THE COERCE POWER?

1 The Taxing and Spending Power
Stone pp 209-15, 217-19; Chemerinsky pp 268-75

Does the Commerce Clause and the jurisprudence that comes with it make the other powers in Article I 8
given to Congress irrelevant?
- Maybe, says Larsen.
- On to taxing and spending.

Article I 8 Clause 1: Congress shall have the power to lay and collect taxes, duties, imposts, and excises to
pay the Debts and provide Ior the common deIense and general welIare oI the US; But all duties, imposts, and
excises shall be uniIorm throughout the US.
- Articles oI ConIederation: Iederal government had no taxing power and thereIore no revenue to spend.
Issue: Are they broader than Congress` pwr to regulate IC. This was esp impt around 1935/36. But Irom `42 to
`95, the comparison in pwrs was trivial b/c Congress` pwr was virtually unlimited. As long as Congress could
regulate Commerce directly, it could always tax Ior exceeding the production quota. Pwr to ban became
necessary way to eIIectuate Congress` pwr to ban.

Hamilton v. Madison Interpretation:
- 4 Powers Reading:
The Congress shall have the power to:
1. lay and collect Taxes, Duties, Imposts and Excises
2. pay the Debts and
3. Provide Ior the common DeIense
4. |provide Ior| general WelIare oI the United States

- 1 Power Reading Hamilton Style
The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises |in order| to:
1. pay the Debts and
2. provide Ior the common DeIense and general WelIare oI the United States.
1. Congress should tax and spend Ior any purpose that it believes serves general elfare so long
as it does not violate any other constitutional provision.
36
2. Power separate and distinct Irom later enumerated and not restricted in meaning by the grant oI
them. Congress has substantive power to tax and to appropriate, only limited by requirement
that it be exercised to provide for general elfare.

- 1 Power Reading Madison Style
The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises |in order| to:
1. pay the Debts and
2. provide Ior the common DeIense and general WelIare oI the United States but Congress may
only ~provide for the general Welfare ithin the limits of other enumerated poers].
4 Congress is limited to taxing and spending to carry out other poers specifically granted by
Art I.
4 The US is a government oI limited and enumerated powers power to tax and spend Ior
general national welIare must be confined to enumerated legislative fields committed to
Congress.

I. Taxing

- The power to tax is the Iirst power given to Congress in Article I 8.
- Gives Congress the 'Power to lay and collect Taxes and to 'pay the Debts and provide Ior the common
DeIence and general WelIare oI the United States.
- Main Issue: Can Congress do through other means (taxing) things that it could not do through the
Commerce poer?
- United States v. Doremus, 1919
o IRS was taxing the sale oI narcotics. Thought to inIringe on state`s police power.
o Congress has the power to tax; other motives behind the tax don`t matter.
o 'The act may not be declared unconstitutional because its eIIect may be to accomplish another
purpose as well as the raising oI revenue.
Then came Bailey.
- Bailey v. Drexel Furniture, 1922
o Ct`s Iirst conIrontation with whether pwr to tax was broader than the pwr to regulate commerce
(responding to the Hammer case).
o Supreme Court struck down Child Labor Act that was amended aIter Hammer v. Dagenhart.
Since Hammer said it was unC to ban the shipment oI goods iI made with substandard
labor, congress decided to impose a tax. Employwer with child labor would pay a tax to
the Iederal govt.
o The so-called tax is imposed to penalize, not to generate revenue.
Holding: Congress can tax but can`t penalize.
Hasn`t been explicitly overruled. But, the line oI reasoning has been abandoned.
O Would be too diIIicult to tell iI it was just raising revenue or penalizing.
4 Could look at whether the rate was stamping out the behavior and still
raising revenue, or just stamping out behavior. Etc.
4 Could also look at the language oI the tax.
4 Look to motives
O Today: a lot oI taxes have a blended purpose and the distinction b/w regulatory
and penalty and motives have been eliminated. The problem then was that it was a
Ialse distinction b/w taxes that generate revenue and taxes that are penalties b/c a
tax can be BOTH at the same time. Distinction totally arbitrary.
Court distinguishes Doremus and Bailey.
37
- In Bailey, Court says so-called taxing act must be naturally and reasonably adapted to the collection oI
the tax and not solely to the achievement oI some other purpose plainly within state power. (Kind oI
answers the main issue (above) with a no while Doremus kind oI answers it with a yes.


It remains an open question hether or not Congress`s poer to tax is limited by the Commerce Clause.

United States v. Butler, Roberts (beIore the switch), 1936
- Facts: The Agricultural Adjustment Act oI 1933 included a tax on processors oI agricultural
commodities iI they exceeded the quota. The proceeds were to be used to subsidize Iarmers who
agreed to restrict their production.
- Holding: Act is unconstitutional on the grounds Congress can`t tax where it bumps into a reserved area
oI state power, which is the regulation oI agriculture here (violates 10
th
Amendment).
o ManuIacturing is reserved to the states. Agriculture is reserved to the states.
o Congress also can`t tax where it bumps into the Iirst amendment rights.
o Madison vie: pwr to tax only Ior paying debts, common deIense and providing Ior general
welIare oI the US. But, the pwr to tax could only happen as an incident oI its other powers to
regulate. The pwr to tax had to be limited by other pwrs oI Congress. Otherwise, Congress would
have pwr to tax/spend Ior any purpose.
o Hamilton ins. Power to tax and spend was plenary as long as paying Ior debts, providing Ior
common deIense, or general welIare. As long as it`s taxing/spending, its pwrs are plenary. Power
to tax is conIined only in the clause which conIers it not by the enumerated powers oI 8. But,
the Court`s view reserves a cut-out Ior state powers, 10
th
amendment. Ct conceives oI regulating
production as something reserved to the statescan`t invade this traditional province.
o Note: this is very similar to the way they construed Congress` commerce pwr.
- Dissent (Stone): Congress`s power to tax/spend are not without constitutional restraints:
1. Must be truly national.
2. May not be used to coerce action left to state control.
3. The conscience and patriotism oI Congress and the Executive.
- Point: Congress has the power to tax as long as Ior the general welIare oI the United States and is not
limited by the enumerated powers. Just can`t violate another C provision.
4 'The clause conIers a power separate and distinct Irom those later enumerated |,| is not restricted in meaning by the
grant oI them, and Congress consequently has a substantive poer to tax and to appropriate, limited only by
the requirement that it shall be exercised to provide for the general elfare of the United States. It results
that the power oI Congress to authorize expenditure oI public moneys Ior public purposes is not limited by the direct
grants oI legislative power Iound in the Constitution.

II. Spending

Can Congress bribe states into using their own regulatory processes to enact laws (such as no guns in a school
zone)? So long as the conditions are expressly stated and have some relationship to the purpose oI the spending
program.

South Dakota v. Dole, 1987 (Rehnquist)
- Supreme Court upheld a statute that made it so Congress wouldn`t give 5 oI highway Iunds to states
that didn`t raise the drinking age to 21.
- Holding: Condition on Ied $ ok. Condition by Congress has to be directly related to one oI the main
purposes behind the Iederal highway $: creating saIe interstate travel. Here, the condition was relatively
mild encouragement so it was ok. The encouragement was a valid use oI spending pwr.
- Why didn`t Congress just pass a la that said you can`t drink unless your 21?
- They couldn`t have passed an act to ban, under commerce, the sale oI alcohol to ppl under 21 because
oI the 21
st
Am..21
st
Amendment. It has been construed to mean that state la is supreme ith
38
respect to alcohol. Regulation oI alcohol is in the hands oI the states. Note: this takes a bite out oI
commerce, not taxing/spending.
So instead oI directly regulating, they had to impose a 'stick to get states to do it themselves.
Spending pwr is broader..As long as the below conditions are met, Congress has more pwr to
tax and spend and do things that it couldn`t do directly.
This spending pwr is broader than Congress` other pwrs (Hamilton- pwr to tax/spend is plenary)
- II Congress is going to spend, these are the limits:
o Rehnquist:
Spending power should be limited by Iour (Iive?) things:
O There must be a nexusthe spending must be related to the Iederal interest in
particular national projects or programs.
4 Ex: Congress has pwr to regulate highways, and incident to that, they have
pwr to ensure they`re saIe by indirectly regulating the drinking age.
O II Congress wants to condition States` receipts oI Iederal Iunds it must do so
unambiguously. States have to know what they`re signing on Ior.
O Can`t be coercive. Can incentivize, but it has to be a choice. At some point
encouragement crosses over into coercion. But, we haven`t seen this yet, unclear
what`s too much.
O Must be a pursuit oI the general elfare. Ct not going to police this very much,
lots oI deIerence to Congress. But we haven`t seen the point oI coercion yet, don`t
know how much is too much.
O No independent Constitutional bar. Other constitutional provisions may bar the
grant oI Iederal Iunds (not to run aIoul oI other provisions). Has to be independent
oI the Iederalism constraints: like 1
st
Am rights.
o As long as the above conditions are met, Congress has more pwr to tax and spend and do things
that it couldn`t do directly.
o O`Connor:
Concerned about the nexus between condition and Iederal interest (like Lopez). Thinks
it`s too attenuated here: no causal connection b/w drinking age and highway.
O It assumes that the ban will aIIect this group oI ppl, and that iI they`re leIt
unregulated, they`ll drink/drive and this will have some aIIect on interstate
highways.
O But, O`C Irom AZ (Rehnquist Irom Wisconsin). OC doesn`t understand the
eIIects oI diIIerent drinking ages b/w border states.
Her Test: should be 'actually related not 'can`t be unrelated.
O Would`ve liked to see it like Butler: conditional $ that you can only spend Ior
certain things, like, 'according to Iederal standards.
- Note: Congress prob could`ve re-written the gun-Iree school acts to give money conditional on certain
laws.

2 The Power to Enforce the Reconstruction mendments
Stone pp 1501-06, 232, 220-26; Chemerinsky pp 281-94

Background: AIter Civil War, three vitally important Amendments added to Constitution. These three
Reconstruction Amendments empower Congress to enact civil rights legislation.

- 13
th
(1865): Prohibits slavery and involuntary servitude except as a punishment Ior a crime.
4 2: Congress has the power to enIorce by appropriate legislation.
39
- 14
th
(1868): Provides that all persons born or naturalized in the US are citizens and no state can abridge
the privileges or immunities oI such citizens. Nor may states deprive any persons oI liIe, liberty, or
property without due process oI law. Nor deny any persons equal protection.
4 5: Congress has the power to enIorce by appropriate legislation.
- 15
th
(1870): Rights oI citizens oI U.S. to vote shall not be denied or abridged on account oI race, color,
or previous condition oI servitude.
4 2: Congress has power to enIorce by appropriate legislation.

These three pwrs, in addition to Art 1 Sec 8 are a big source oI Iederal power Ior Congress- they give additional
pwrs to Congress to enIorce substantive grants.

Issue: Power to EnIorce
- Can Congress regulate private conduct or just government actions?
- What is the scope oI Congress` power under these Amendments?

The Civil Rights Cases, 1883: Tests Constitutionality oI Civil Rights Act oI 1875.
- Act said anyone who uses public accommodations (restaurants, hotels, theaters, etc.) cannot be
discriminated against based on race or color regardless oI any previous condition oI servitude. Broadly
prohibited private racial discrimination by hotels, restaurants, transportation, and other public
accommodations.
o Wiki: a group oI 5 similar cases consolidated into one issue. Ct held that Congress lacked the C
authority under the enIorcement provisions oI the 14
th
Am to outlaw racial discrimination by
private individuals and organizations, rather than state and local govts. Also the Civil Rights Act
oI 1875 was unC. The SC greatly limited Congress` ability to use its pwr under the
Reconstruction Amendments to regulate private conduct.
Issue: Does Congress have the power to regulate private entities?
- Holding: No, the Act exceeds Congress` power. Declared the Act unC and adopted a restrictive view as
to the pwr oI Congress and the provisions to regulate private behavior.
Congress` arguments, Court`s response:
4 13
th
Amendment Argument:
Congress can regulate directly on private individuals under the 13
th
Amendment.
O Slavery/Involuntary Servitude: This is the only way a private citizen can violate
the constitution.
Congress argues that discrimination is badge or incident oI slavery.
Court (Bradley) says no, not directly related enough. Regulating hotels is taking the
badge or incidence argument too Iar. Congress gets to choose its means but it has to be a
mean directed toward an end that the Ct recognizes.
O Also, that Congress could prohibit ppl Irom owning slaves, but couldn`t use its
power to eliminate discrimination.
O Said slavery was a thing oI the past and they didn`t need civil rights legislation to
protect blacks.
Harlan dissents, says a citizen should be able to do whatever citizens do and go
wherever citizens go. That the legal construct is only allowed to exist when still in the
social/civil political sphere. We have to undo the entire structure to Iix the legal
construct. Congress should be able to invade the private sphere and upset ppl`s social
expectations. And, Ior the 14
th
Am, he wants to read citizenship as social citizenship, too.
O Court says no, eating in a particular place is not a right that comes with
citizenship. In 1875, Congress doesn`t have pwr to regulate these businesses.
Takeaway view Irom this case Ior 80 years to come: that the 13
th
Am was intended only
to prohibit slavery and that blacks shouldn`t be protected by special legislation.
40
o 14
th
Amendment Argument: equal protection clause
5 only applies to states: 'No state shall deny to any person within its jurisdiction the
equal protection oI the laws.
Doesn`t apply to private entities and citizens.
'Individual invasion oI individual rights is not the subject matter oI the |Iourteenth|
amendment.
Also, this would apply equally to good state and bad states, which isn`t Iair.
O Bradley: maybe iI the bad states have Iailed to take care oI the problem, then
Congress could step in. But that`s not this case b/c the law applies all over the
country, good and bad states and no ability to regulate private actors.
o Commerce Clause: can`t use it because in 1875 things had to cross state lines in order Ior
Congress to have the power to regulate. This is all local.

With respect to.
- 14
th
Amendment: still good law about the Am only applying to govt action and not to private conduct.
- 13
th
Amendment: court backed down in the 60s. Saying that Congress may prohibit private racial
discrimination under the 13
th
.The Iirst case on this is Jones.


Civil Rights Act oI 1964: outlawed racial segregation in schools, public places, and employment. Conceived to
help blacks, was amended prior to passage to protect women, and explicitly included white ppl Ior the Iirst time.
To circumvent limitations on congressional pwr to enIorce the Equal Protection Clause imposed by the
SC in the Civil Rights Cases, the law was passed under the Commerce Clause, which had been
interpreted by the courts as a broad grant oI congressional pwr. Had long-term impacts on the whole
country.

Jones v. AlIred H. Mayer Co., 1968: Iinally broadened 13th Amendmentlets Cong. decide on
badges/incidents-
- Facts: Private real estate developer reIused to sell housing or land to AIrican Americans. Black couple
sued under 42 USC 1982 which provides that all citizens have 'the same right, in every State and
Territory, as is enjoyed by white citizens thereoI to inherit, purchase, lease, sell, hold and convey real
and personal property.
- Holding: 'Congress has the power under the Thirteenth Amendment rationally to determine what are
the badges and incidents oI slavery, and the authority to translate that discrimination into eIIective
legislation.. Held that 1982 applies to prohibit private discrimination and that Congress had the
authority under the 13
th
Am to adopt the law.

- Court decides: Is it reasonable/rational to say this is a badge or incident oI slavery? Yes. (Rational
basis test.) Court deIers to Congress since it seems reasonable (Thayer)
- Why does the court sustain Ollie`s Barbeque and Heart oI Atlanta Motel under the Commerce Clause
instead oI the 13
th
amendment?
o Those cases came beIore Jones, but it was still only 2 years later.
o Could be that the rights to own property and have a home are more tied to citizenship than the
right to be served in a restaurant.
o Under Commerce in 1964, you could do anything you want. So why Iight a hard battle in Ollie`s
Barbeque as a litigant by trying to do it under 13
th
?
o Maybe its tougher to sell all race discrimination under the 13
th
amendment against one race than
it is to sell more general discrimination. The statute here prohibited discrimination based on race
and religion. Congress probably wouldn`t have gotten the statute passed iI it were only wrt race.
It probably wouldn`t have passed without religion, too.

41
The Nationalist Perspective: Congress may use 5 authority to expand the scope oI rights. Adopted by
Katzenbach. (vs. the 'Iederalist perspective that Congress under 5 oI the 14
th
Am. Cannot create new rights or
expand the scope oI rights; Congress can act only to prevent or remedy violations oI rights, and such laws must
be narrowly tailored. Seems that the Ct has reaIIirmed and adopted this view over the last decade)

Lassiter v. Northampton Election Board, 1959
- Sup. Ct. upheld constitutionality oI English language literacy requirement Ior voting in North Carolina.
4 Said doesn`t discriminate on the basis oI race, applies equally to everybody. No allegations it
was applied discriminatorily, even though this was the reality.
4 Neutral on its Iace.
4 Court also said it`s a rational law because we want intelligent voters.
Test Ior Lassiter:
4 Can`t be discriminatory on its Iace.
4 Can`t be applied discriminatorily.
4 Must be rationally related to the exercise oI the Iranchise.

Katzenbach v. Morgan, Brennan, 1966, Nationalist Perspective
Takeaway: Congress, under 5 oI the 14
th
Am may independently interpret the C and even overturn the
Supreme Ct.
- Facts:
4 NC has a literacy statute based on the one in Lassiter. It was C because it was neutral on its Iace
and didn`t discriminate on basis oI race in its text. States have pwr to pass voting qualiIications
in Art 1, sec 2. It was declared reasonable and rationalstates have a legit interest in having an
inIormed electorate.
4 Congress passes the Voting Rights Act oI 1965.
Concerned the C oI 4(e) oI the Voting Rights Act oI 1965, which provides that no
person who has completed sixth grade in a Puerto Rican school, where instruction is in
Spanish, shall be denied the right to vote b/c oI Iailing an English literary requ.
This provision creates a carve out Ior the NY literacy requirement. It says no one who
has completed the 6
th
grade in Puerto Rican school can be denied the right to vote Ior
Iailing a literacy test.
Congress sought to overturn the Lassiter case by providing that Iailing a literacy test
couldn`t bar a person Irom voting iI the person was educ thru 6
th
grade in PR.
- Issue: How can it be that Congress has the power to carve out an exception Irom a literacy requirement
that the Court has already Iound to be Constitutional?
- Holding: Supreme Court says Congress can do this under 5 oI the 14
th
Amendment.
- NY could argue that Congress was inIringing on their state rights and that the Ct had already declared
that this was Constitutional. How can Congress use its authority?
4 Congress could have concluded.
Right to vote would empower Puerto Ricans and help eliminate Iuture discrimination by
giving them representation.
Congress could Iind that literacy test denied equal protection and that the practical eIIect
oI the regulation is discriminatory. The PR could be just as well-inIormed even tho they
don`t speak English. (compared to situation in `59 with blacks not as well educated and
illiterate. The statute then was rational)
4 Didn`t the Supreme Court already determine the Constitutionality oI the NC statute?
Yes, but the Supreme Court says Congress has broad powers to interpret the Constitution
under 5 oI the14
th
Amendment.
O Congress has the substantive power to enIorce the 14
th
: Congress has power to
interpret the 14
th
. When they have power to enIorce, that includes power to
42
interpret and even disagree with the Sup. Ct. There exists a permissible range oI
Constitutional interpretations. As long as it`s reasonable. Here: Congress could
Iind the literacy test denied equal protection (even tho contrary to Lassiter ruling).
4 Contradicts Marbury: Gives the right oI judicial review. Courts have duty
to say what law is.
BUT: 'Thayerian view oI Marbury: Ct may use best judgment to
say what Constitution means, but should then deIer to Congress.
Additionally, Congress through 5 gets the same broad pwrs
expressed in the Necessary and Proper Clause (not just limited to
abrogating the state laws that the judical branch was prepared to
adjudge unC. They can independently interpret the C)
O Contradicts Cooper v. Aaron: judiciary branch is supposed
to interpret Constitution.
O Dissent: II Congress has pwr to interpret what the C means,
it might undo Marbury (but, still the ct would be there to
ensure it`s reasonable), iI Congress could expand rights,
then surely it could contract, dilute, or negat them (possible
result..)
4 Majority`s response: Congress has no pwr to
restrict, abrogate or dilute these guarantees. Limited
to adopting measures to enIorce guarantees oI the
Am.
O Congress` power to enIorce is remedial and prophylactic: Denial oI rights is
based on race or national origin. This race has been discriminated against in past
and might be in Iuture. One way to remedy existing denial is to give Puerto
Ricans right to vote so they can stop the discrimination in public housing/public
schooling. This is an arg that the law is C b/c its a remedy for discrimination
4 BUT: Dissent says that iI you want to have remedies or be prophylactic,
Congress must indicate the real problem that Congress is trying to remedy.
Would have to show that the state oI NY was violating the C beIore
Congress could remedy the problem.
O The Lasstier Test Applied (The Telemundo arg):
4 Can`t be discriminatory on its Iace: NY`s law had discriminatory intent,
distinguished Irom effect (which the court says doesn`t matter).
4 Must be rationally related: Unlike in NC, in NY this test is not rationally
related to the exercise oI the Iranchise. You don`t need to be able to speak
English in NY because oI their thriving Spanish press.
BUT: Dissent wants to see Iacts that show they`re distinguishable.
O EXTRA REASON: Superior Fact-Iinding ability oI Congress
4 DeIer to them.
O Dissent: they showed no record.
O Majority response: it`s enough that Congress could`ve
thought this population was diIIerently situated and
Congress had superior Iact-Iinding ability.


The Federalist Perspective: Congress may not use its 5 power to expand the scope oI rights or create new
rights. Congress can act only to prevent or remedy violations oI rights, and such law must be narrowly tailored.
(In `97, the ct expressly rejected the view oI Katzenbach to use its 5 authority to expand the scope oI rights).

43
City oI Boerne v. Flores, Kennedy, 2000
- Facts: Church sued under RFRA and challenged the C oI a local zoning ordinance saying the church
could not remodel a historic building. Church said it violated their Iree exercise oI religion- upset with
city.
o The Act was adopted in `93 to overturn a recent SC decision that had narrowly interpreted the
Iree exercise clause oI the 1
st
Am (Smith), which lessened the protections oI the Iree exercise
clause. BeIore Smith: gov`t actions burdening religion would be upheld only iI necessary to
achieve a compelling gov`t purpose. Smith changed it so that Iree exercise clause couldn`t be
used to challenge neutral laws oI general applicability.
o RFRA was explicit in stating its goal was to overturn Smith. Wanted cts to require a compelling
purpose oI the govt actions beIore upholding them. Said that Smith stamped out religious
Ireedom.
- Holding: Ct declared RFRA unC as exceeding the scope oI Congress` 5 pwrs, namely, that Congress
may not create new rights or expand the scope oI rights. They`re limited to laws that prevent or remedy
violations oI rights recognized by the SC and they must be narrowly tailored- proportionate and
congruent- to the C violation.
o How is this case under the 14
th
amendment and not under the Iree exercise clause? Because the
14
th
amendment has the due process clause which says no person shall be denied liIe, liberty, or
property without due process oI law. That liberty provision incorporates the provisions oI the
bill of rights against the stateswhich includes the Iree exercise clause oI the 1
st
amendment.
o States can`t violate the bill oI rights (with the exception oI 2
nd
Amendment and some jury trial
and grand jury stuII).
- So, in this case we`re trying to enIorce the 1
st
amendment through the 14
th
.

There were two visions oI what the free exercise clause means.
Free exercise is kind oI like Iree speech.
- The government can`t stop you Irom
practicing your religion as you see Iit,
unless it has a really good reason.
Sherbert v. Verner, 1963, Test:
1. Gov. bares burden oI showing a compelling
interest Ior stopping you AND
2. that it was a means necessary/narroly
tailoredleast restrictive means possible.
* strict scrutiny, up until 1990
Religion doesn`t look like speech. Religion looks
like other equality.
- Unless government is targeting a religion,
government can apply its law Ior
everybody alike and doesn`t have to make
carve-outs.
Said the Iree exercise clause would operate like
the equal protection clause (non-discrim norm)
New test in Oregon v. Smith, 1990:
Gov. must have
1. a neutral la that is generally applicable
AND 2. a rational reason Ior the law.
(unless can show passed to target religion b/c oI
animus-religion)
* The gov. wins more oIten under this test.
*this lessens the protections oI the Iree exercise
clause
*rational basis test
Religious Freedom Restoration Act: reinstates Sherbert v. Verner.

- Issue: Is RFRA a valid exercise oI Congress` power to 'enIorce the 14
th
amendment?
4 Argument Irom Congress: Katzenbach said Congress is not limited to the
insigniIicant role oI striking down only those laws that it thinks the Sup.
Ct. would strike down. Congress has substantive power to interpret the
14
th
amendment, w/in reason. Reasonable to think Sherbert is the right
rule- that`s how it was Ior a long time.
44
Court says (overrules Katzenbach): iI Congress has that power, the Constitution is no
longer the supreme law oI the land. Congress could just go in and change the substantive
interpretation oI the Constitution. Support: Marbury v. Madison. It is the province oI
the judicial department to say what the law is. When a case comes to court, we say what
the law is. We just told you in Smith. Congress does not get to say we`re wrong in a
decision.
4 Congress says: We have the power to enIorce the 14
th
amendment via 5:
remedial power.
Court says: enIorce doesn`t mean change. Given the power to enIorce, not to determine
what constitutes a C violation. They only have remedial authority over violations oI
rights already recognized by the SC. (must be congruence and proportionality b/w the
injury and the remedy). Court gets to decide the bounds oI Congress` power- gets to be
the authoritative interpreter of the C.
- Why does the court strike down RFRA?
4 Substantive Argument: Congress doesn`t have the poer the
substantively change the Constitution. Court has the poer to
interpret, not Congress.
4 What is wrong with the remedial argument? There has to be congruence
ith the means used and the ends of achieved. Why isn`t this
congruent? Show the court that there is wide spread incidents oI the
government passing allegedly neutral laws that are really masks Ior
religious animus.
Why can`t Congress say, 'Well it could happen! Katzenbach said it could be remedial
and preventative and that under Smith it`s hard to prove, you have to prove a negative.
RFRA prevents cases that Smith can`t. RFRA would help stamp out all violations, and
the price oI stamping out neutral laws is worth it. The Court says, no. You can`t just
dream things up. You have to show the problem. You can`t use your 5 poer illy-
nilly. Then it looks like Congress is interpreting the Constitution, hich is the
Courts job.
O But Katzenbach! Brennan says you don`t have to show me the problem in this
case.
O No, says the court. Show us congruence and proportionality. You can`t drop a
'canon on a Ily. Sho us that the problem and the solution are congruent
and proportional. They overrule Katzenbach. Here, it was was too broad- no
space b/w remedial pwr and pwr they don`t have to interpret.
O Sooohen can Congress use 5 poer?
4 Not to reinterpret the Constitution.
4 Need to see a violation oI the F.E.C. FIRST.
4 Can Ior remedial purposes (NOT substantive)when it`s congruent and
proportional (RFRA was too broad- too many costs) to some identiIied
problem out there. A problem that the court itselI would recognize as a
problem. A way to determine this is through IindingsGonzalez. |We
want to see good state/bad state OR a nationwide problem. b/c it applies
to both equally| 21 states not enough. Or could legislate wrt to only the
bad states
o Dissents: thought Smith was wrongly decided and the Ct needed to reexamine the holding there.

What still violate the Iree exercise clause under Oregon?
- Targeting a certain religion or religion in general.
- Laws that are a mask Ior religious animus.
45


The 14
th
Amendment
U.S. v. Morrison, Rehnquist, 2000
- Facts: Congress made Iindings showing that there was a real problem when women call to report
charges oI sexual violencethey are not treated equally and men are sentenced lightly. The Violence
Against Women Act authorized victims oI gender-motivated violence to sue under Iederal law.
- Issue: Is the Violence Against Women Act constitutional? No.
4 What constitutional problem does Congress think it`s remedying?
Equal protectiona lot oI violence against women cases aren`t prosecuted. There is a lot
oI evidence that women are not as well protected by law enIorcement, states are
unresponsive to claim oI domestic violence, they don`t have rape shield statutes in
evidence codes, the men get lighter punishments iI the victim is Iemale, etc.
Congress tries to remedy this problem by creating a Iederal civil remedy Ior victims and
argue that the civil damages provision was C as an exercise oI both Congress` commerce
clause pwr and the authority under 5 oI the 14
th
.
- Holding: Court says NO! Who violates the Constitution in these situations? The police, the
government, etc. (People can`t, unless they own slaves.)
4 This Act lets Mary sue Joe, the remedy is aimed at Joe, but Joe didn`t violate the Constitution,
the police did! (STATES) So, this 'remedy is aimed at the wrong actor. You can`t aim at
citizens, you have to aim at the state. Not clear that this remedy will work.
o Also, this Iails the congruence and proportionality test. Congress is making this apply to every
state, but not every state has a problem with this.
Bottom-line:
- 13
th
is only amendment that speaks directly to individuals.
4 Means that some things are going to go unremedied unless Congress acts against states
(non-Black discrimination).
- 14 5: Can remedy/prevent Iuture violation
4 Remedy must be targeted at violator.
4 Violator must be state.
4 Remedy must be Congruent and Proportional to harm
Must be tailored to only target bad states.
Maybe time limits.
You can`t shoot Ily w/ cannon (Boerne).
- Factual Power:
4 Congress has power to distinguish Sup. Ct. precedent and apply it to a diIIerent Iact
base. (Katzenbach v. Morgan)
- NO SUBSTANTIVE 14
TH
POWER (Boerne)


STTE SOJEREIGNTY S IITTION ON FEER POWER
(THE 10TH ENENT)

1 Traditional Governmental Functions
Stone pp 153-57 233-36; Chemerinsky 304-18

Tenth Amendment: 'The powers not delegated to the United States by the Constitution, nor prohibited by it to
the States, are reserved Ior the States respectively, or to the people.

The 10
th
Amendment: Are there any limits on Congress` power to regulate states as states?
- Hammer v. Dagenhart: 10
th
Amendment limits Congress` power.
46
- Darby: No, 10
th
Amendment is just a truism. It just means whatever Congress can`t call interstate
commerce. 'All that is not surrendered is retained.

More cases that help answer this question.

National League oI Cities v. Usery, 1976- violated 10
th
Am.
- Historical Importance: Court invalidated a statute Ior inIringing on states` rightsthe Iirst time this
happened since Darby was passed (Iirst struck down in 35 yrs on Iederalism grounds).
- Facts: Congress passes Fair Labor Standards Act which applied national minimum wage and
overtime provisions through Commerce Clause power. Act included state employees and companies.
Drew its original justiIication Irom Darby- subst aIIects I.C.
- Holding: Although state wages and hours substantially aIIect interstate commerce, Commerce Clause
did not empower Congress to enIorce the minimum wage and overtime provisions oI the Fair Labor
Standards Act against the states 'in areas of traditional governmental functions.
o Impairs states` integrity and ability to function as sovereignties. In order to carry out their
policies, they have to employ workers in their own way.
States should get to decide their own allocation oI resources. II you raise the minimum
wage you are Iorcing states to either reduce services or increase taxes. They should
decide those things Ior themselves. Mkt conditions diIIerent- states allowed to have diII
mixes oI services/taxes w/in the state.
ALSO, this would take away Irom ability to control employee functioning- lose
mechanisms to enIorce good work ethic.
- Point: Well what is a traditional government Iunction? This is where the Congress can`t touch the
states. Even iI it`s within the scope oI commerce power.

Garcia v. San Antonio Metropolitan Transit Authority, Blackmun, 1985:
- Historical Importance: abandons ~traditional government function test.
- Facts: almost indistinguishable Irom National League oI Cities.
- Holding:
4 'Traditional governmental Iunctions test is 'unworkable.
Leads to inconsistent resultstoo subjective, allow court to pick and choose.
States should be able to choose their policies and shouldn`t be subjected to a judicial
opinion that it`s not 'traditional.
4 State sovereign interests are more properly protected by procedural saIeguards than by judicially
created limitations on Iederal power.
They can lobby congressmen, use their vote, create political parties, etc. to protect
states as states. Impt in terms oI electing nat`l reps. Lobbying groups also help. (tho the
way oI representation is now a bit diIIerent- 17
th
Am gave us the direct selection oI
senatorslost political check by state legislatures)
4 Cts can`t enIorce line anymore. As long as within congress` pwr, they can regulate.
- Dissent
4 Powell: Court could deIine the parameters oI the Tenth Amendment just as the Court has
deIined numerous other ambiguous constitutional provisions.
4 O`Connor: doesn`t think political process would adequately protect interests oI state
governments.

AItermath:
- Congress can regulate everyonemust be a statute oI general applicability. (tho can regulate when the
limits oI commerce pwr are reached)
4 Ex: minimum wage.
47
4 Under National League it would have only applied to individuals, but now it applied to
everyoneprivate entities and states.
4 Law oI General Applicabilityto states and NON-state entitiesupheld.
- Leaving 10
th
Am to political process
- Can Congress just target states in a law? Can they say minimum age is $X Ior public entities? We`ll
see in the next case.

2 Prohibition on Federal Commandeering
Stone pp 237-48

New York v. U.S., O`Connor, 1992 |Commandeering State Legislatures|
- Facts: 1985 Lo Level Radioactive Waste Policy Amendments Act created a statutory duty Ior
states to provide Ior the saIe disposal oI radioactive wastes generated within their borders. (Article I
10 Iorbids states Irom entering into agreements without the consent oI Congressthis is why Congress
had to authorize this Act. But, Congress didn`t want to make the big decisions.)
Act provided.
4 (1) States who have waste sites can charge other states to use the sitesmonetary incentive.
4 (2) States would have to 'take title to waste not properly dispose oI starting in 1996 (making
them liable Ior any harm that it causes).
- Issue: These leaves states two options.
4 Regulate according to Iederal provisions, make a Iederally acceptable waste Iacility.
4 States take title oI waste and have to be liable Ior tort liability.
- Holding: For 2
nd
time in 55 years and Iirst since National League court held that statute violates 10
th

amendment. Says that Congress could regulate, but take title provision as unconstitutional
because it gave state governments two impermissible choices.
4 Federal Commandeering: creates Hobson`s choice more like coercion. 10
th
amendment
says you can`t compel states to administer program.
- Reasoning:
4 Option 1: Regulate according to Fed provision.
Unconstitutional because the Iederal government can`t Iorce the states to pass laws. They
can`t commandeer the legislative process.
States aren`t branches oI the Iederal government.
Accountability: the Iederal government regulated, but the state is the puppetwho do
we blame when things go wrong?
Historical Reason: And, aIter the A.oI.C. Congress could no longer legislate the states
directly. New allegiance created: Ied govt to the ppl. No more Iocus on coercing states.
Fed govt doesn`t regulate individuals through states.
O Dissent (Stevens): Framers thought that regulating states only would be
disastrous but no indication that they couldn`t regulate states at all. This is not
said anywhere in the text.
O Could be ok b/c the states were agreeing to it.
4 Option 2: Take title and assume responsibility.
O`Connor says this is like the Iederal government reaching into the state treasury and
giving some cash to the citizens. Like a congressionally compelled subsidy. Fed govt
can`t spend state`s $.
They are being Iorced to take on a liability.
How is this distinguished Irom Garcia? Isn`t it the same where the government raises a
state`s minimum wage?
O The Waste stuII is not a statute of general applicability.
48
O With Garcia maybe the states are competing as market participants (so long as
IBM has to pay its secretaries $10/h), so the Ied. can reach them. The general
applicability levels the playing Iield Ior state actors and private actors. No
competition Ior wages. But as sovereigns, the gov. can`t reach them. The
diIIiculty is that this relates back to 'traditional government Iunction.
4 Maybe we don`t trust the states to protect their own sovereignty. But in
Garcia (O`Conner`s dissent), since it applies to private entities, we can be
surer they`ll resiststates and private entities will team up in Congress.
When it just targets the staes, we don`t think they can be properly
represented.
4 The commerce power is broader than the spending power? (This may be
true as a result oI this case, but it wasn`t true beIore then.)
Argument oI Congress: States consented
O Response: States aren`t the ppl who are supposed to be protected. It`s the
individuals. Federalism limitations are to protect individuals, not talking about
states rights.
O O`Conner: states can`t consent away their sovereignty. They don`t own it. The
Iederal structure exists Ior individuals.

Contrast New York to South Dakota v. Dole.
- Congress said: change the law so your drinking age is 21 |unconstitutional| OR lose 5 oI your
highway Iunds |constitutional|.
- Since one option is constitutional, its ok.
- In New York, both options are unconstitutionalregulate or take title. Couldn`t turn it down. Congress
can`t Iorce the states to do one oI these things.

Prinz v. U.S., Scalia, 1997 |Commandeering State Executives|
- Facts: Brady Bill requires the chieI law enIorcement oIIicer (CLEO) oI a state to conduct a background
check when someone comes in to buy a gun.
4 Two CLEOs challenged act. They said 'No, you can`t make us enIorce Iederal law!
- Issue: Can Congress commandeer state executive oIIicials?
- Holding: Unconstitutional. This is more like New York. Can`t make state enIorcement oIIicers carry
out Iederal will (same as legislative oIIicers)
4 Allowing this would be giving the Iederal government too much power.
4 Violates the separation oI powers because:
UnIunded mandate.
Accountability: who do we blame when things go wrong?
But what iI it is Iunded?
O Accountability is still a concern. People will blame the states instead oI the Ieds.
Article 2 concern: it`s the president`s job to make sure that the law be IaithIully
executed.
O II they 'outsource the execution oI the Iederal law, there is no guarantee that the
law is IaithIully executed.
No guarantee that the Iederal law will be equally implemented among the states.
Pwr oI the Ied govt would be augmented immeasurably iI the Ied gov could enlist state
oIIicers.
- So iI the Iederal government wants to have a Iederal program, what can it do? How can the Brady Bill
be constitutionally implemented?
4 You`d have to have more Iederal oIIicials.
49
Stevens says this is an odd way to enIorce Iederalism because you are augmenting the
Iederal government.
4 You could also do it through incentives as in South Dakota v. Dole.
States can volunteer to enIorce Iederal law, they just can`t be compelled.

|Commandeering State 1udiciaries|
- Testa v. Katt, Black, 1941: Case beIore New York holding that Congress can Iorce state courts to
entertain Iederal statutes.
- Judges, unlike state legislatures in Printz, can be compelled because:
4 Supremacy clause (Testa v. Kat)this is the textual argument.
4 Constitution only creates the Supreme Court, and Congress can decide whether or not to make
new courts. Madison had the idea that state courts would adjudicate Iederal claims.



Reno v. Condon, 2000
- Holding: Upheld Driver`s Privacy Protection Act in which Congress told States they can`t sell your
personal inIormation to private actors.
o Court says we`re not commandeering them as states, we`re commandeering them as supplier in
the market oI inIormation (states and resellers). (Garcia) It`s a law oI general applicability.
like League oI Cities: can regulate when they`re in their employer Iunctions)
o Garcia: still good law
o Distinction with Printz: Feds are not telling the state to do something, but they are telling the
states not to do something. |action v. inaction| We`re not requiring state to enact laws
regulating private individuals.
o Doesn`t regulate states in their sov capacity b/c it doesn`t require states to regulate. Just
regulates them as a commercial commodity, as providers.

Quick and Dirty Commandeering:
- You can`t make a state pass a law. |New York|
4 BUT: you can ask them to voluntarily do it or use non-coercive enticement.
- You can`t make a state executive carry out a Iederal law. |Prinz|
4 BUT: you can ask them to voluntarily do it or use non-coercive enticement.
- You can require states to do something as long as it`s a law oI general applicability AND not
requiring the government to act aIIirmatively but to stop acting. |Condon|

IV. THE SEPARATION OF POWERS
(HORIONTAL DISTRIBUTION OF NATIONAL POWERS)

THE ISTRIBUTION OF NTION POWERS
(WHY OES SEPRTION OF POWERS TTER)
Stone pp 331-36
I. Background on Separation oI Powers:

Why do we care about the separation oI powers and where does it appear in the Constitution?
- There is no ~separation of poers clause in the Constitution.
- We infer it from the division of the vesting of poer in the ConstitutionArticle I (legislative
power), Article II (executive power), Article III (judicial power).
o 1s are the vesting clauses.
- Separation oI Powers: strict theory advanced by Montesquieu.
o We don`t have strict separation, we have separation ith checks and balances.
50
o Executive can recommend/veto, senate can conIirm judicial nominees, impeachment, etc.
- Why would you want separation oI powers? What good does it do us?
o Accountability: you know who to blame.
o Division of Labor: promotes eIIiciency by promoting specialization.
Counterargument: with one person in charge oI everything we can get things done more
quickly.
But bureaucracy is good Ior slowing down the process and making sure
justice/Iairness/accuracy/liberty is maintained and tyranny is discouraged.

The Federalist Papers:
O The Federalist No. 47 (Madison)
4 Three branches should be separate and distinct to avoid tyranny, but they should have equal
control over each other.
O The Federalist No. 48 (Madison)
4 Political apothegm oI 'separation oI powers does not require the branches be totally
unconnected.
4 Unless connected and blended as to give each control over others, cannot maintain government.
4 Provide some practical security Ior each against invasion oI others.
4 Need not mark boundaries exactlydeIense necessary Ior more Ieeble against powerIul.


B EGISTIJE POWER

1 udicial Control of egislative bdication. Power and uty to egislate

a The Non-elegation octrine
Stone pp 364-70

Article I vests legislative power in Congress. Can Congress give that power away? Why should we care iI
Congress gives that power away?

I. The Rise oI the Administrative State
A. Only in the last century has Congress routinely delegated legislative power to exec agencies.
1. Creation oI Interstate Commerce Commission (1887) ushered new era oI Ied government:
Creation oI Ied administrative agencies with broad powers.
2. Over course oI next century, array oI Ied agencies have been created: SEC, FDA, EPA, etc.
B. Constitution never mentions delegation, but delegation creates tension with our democratic principles.
1. Agencies have rule-making power exclusive to Congress, but Congress delegated.
C. Why has Congress delegated:
1. Some issues better handled by specialized agency.
2. Quantity exceeds capacity.
3. Political Accountability: Allows Congress to act but avoid political heat that speciIic regulations
might engender.
D. In addition to legislative power, agencies have executive power to enIorce.
E. II everyone is happy, we do we even care?
1. Can`t waive Iederalism- just b/c Congress and Pres are happy, doesn`t mean that a branch can
just check out. It`s not Congress` right to waive (NY v. US).

II. Advantages and Disadvantages oI Delegation
- Disadvantages:
4 No political accountability.
51
4 No state representation: when Congress regulates, states are represented, when an agency is
making law its not representing states.
4 Tyranny: accumulation oI powers in same hands. Also, iI Congress always delegates power to
X, it may never get it back.
4 Agencies can do things more easily: don`t have to undergo technicalities (checks).
- Advantages:
4 Congress doesn`t have time to worry about everything- improves efficiency and division of
labor.
4 Some decisions are very complex and members oI Congress are very generalized. Put people in
charge oI things that they are experts in. Faith in bureaucratic expertise- get the stupidness out
oI politics. II you isolate them, good decisions will be made. Insulates experts.
4 Frees up courts: b/c lots oI groups can settle their own claims.

III. The Non-Delegation Doctrine
- Non-Delegation Doctrine: Principle that Congress may not delegate legislative power to
administrative agencies.
4 Forces politically accountable Congress to make policy choices rather than leave to those choices
to unelected agencies.
4 Worried about accountability problem
4 Also protects against tyrnanny oI a single branch
- Height oI non-delegation in mid-1930`s involving invalidation oI New Deal legislation. Nat`l Industrial
Recovery Act (NIRA) authorized Pres. to approve codes oI Iair competition developed by boards oI
various industries.
4 Panama ReIining v. Ryan, Hughes, 1935
Ct declared unconstitutional provision oI National Industrial Recovery Act that
authorized president to prohibit shipment in interstate commerce oI oil produced in
excess oI state-imposed quotas.
Holding: Impermissible delegation oI legislative powerlacked standards to limit
discretion and guide President.
4 Schechter Poultry v. U.S., Hughes, 1935
Facts: Congress said 'set Iair labor standards Ior your industry and then listed the
industries. The industry boards had to decide on standards subject to the President`s
approval. Schecter said No, Congress! You have to make the la, not local industry
leaders. The Court agreed. Not enough inIo given to president Ior it to be Iair.
Holding: 'Congress is not permitted to abdicate or to transIer to others the essential
legislative Iunction with which it is thus vested.
O Intelligible Principle Standard: when Congress delegates legislative power it
must provide criteria (intelligible principles) to guide agency`s exercise oI
discretion.
IV. The Demise oI Non-Delegation
- Since 1935 the Court has not struck down a statute as being beyond the delegation authority. (In Iact,
Panama ReIining and Schechter are the only two decisions that have invalidated Iederal statutes on
nondelegation grounds.)
4 Congress still delegates a whole lot: EPA, FCC, etc.
4 Non-delegation doctrine is pretty much dead, although Schechter and other 1935 cases have
never been overruled.
- Came back a little in the 1980`s:
4 Industrial Union Dept. v. American Petroleum Institute, (The Benzene Case), 1980
Issue: Concerned Occupational SaIety and Health Act which gave Sec. oI Labor
instructions to set the exposure level oI benzene at a place where no employee will suIIer
material impairment oI health.
52
Majority Iound instructions were adequate.
Dissent by Rehnquist says he would have decided the case on nondelegation grounds.
Says there is no guidance Irom Congress on how to set the OSHA standards. No
intelligible principle.

b The egislative Jeto
Stone pp 370-78

Assuming Congress is going to delegate a large amount oI policy making to the executive, is there anything that
Congress can do to keep some control over the policy making Iunction?
- One thing they came up with was the legislative veto.
- Congress could enact law overturning an agency`s rule, but req`g legislative action limits the
circumstances in which Congress can or will exercise checking Iunction.
- 1930`s: Congress created legislative veto as check on actions oI admin agencies.
4 Statutes permitting Congress or one house to overturn agency`s decision by doing something less
than adopting new law.
Typically one house.
4 Many laws contained the provision.
O Virtues oI Delegation?
O Expertise, Allows Ior more regulation, Congress is too slow/this speeds it up, Iaster response
time
O Court doesn`t really know what constitutes 'intelligible standards and thus has been staying away Irom
using it

INS v. Chadha, Burger (FORMALIST), (1983)
- Facts: Chadha is E. Indian born in Kenya with British passport. AIter visa expired, req`d to go home
unless Attorney General Iinds (1) resident Ior 7 years, (2) oI good moral character, and (3) would suIIer
extreme hardship iI had to go home.
4 Attorney General says Chadha can stay.
4 Congress uses the legislative veto it reserved Ior itselI in the immigration statute. House adopted
resolution overturning decision and thereby ordering Chadha`s deportation.
- Holding: Supreme Court says the legislative veto is unconstitutional.
4 Congress can only legislate with bicameralism and presentment. They should have to go
through a parallel process to reverse a decision they delegated away. Can`t give it and then take
it back.
4 Congress must abide by its delegation oI authority until that delegation is legislatively altered or
revoked.
4 The legislative veto allows Congress to undertake judicial decisions.
4 Not enough checks.
- When does Congress have to comply with bicameralism and presentment?
4 Things that are legislative in nature (i.e. delegation to attny gen.) must undergo bicameralism
and presentment.
Things that are legislative in nature (1) alter the rights oI individuals (2) outside the
legislative branch.
The purpose oI the legislative veto was to alter 'the legal rights, duties, and relations oI
persons, including the Attorney General, Executive Branch oIIicials and Chadha.
When Congress is dealing with things that are legislative in nature,` Congress must go
through HSPlaw Iormulation.
53
Note: AG altered rights by saying stay w/o 3 step process. But that was b/c Congress
delegated to AG that pwr. AG didn`t need to go through that process b/c power was
already delegated to him.
- Powell, concurs:
4 Separation oI Powers argumentCongress stepping into judicial roleagencies make rules and
adjudicate cases. They weren`t making a rule about everyone, it was about Chadha,
individualized (problem was that this seemed that they were adjudicating). Legislation is
supposed to be prospective, not retrospective. No accountability Ior that.
4 Since administrative agencies have adjudication the courts must reviewmust give procedural
due process.
4 Private bills are a problem Ior Powell- not very accountable.
- White, dissent:
4 Need Ior a check on the broad delegations oI legislative power. Leaves Congress with Hobson`s
choice. Can either make hard choices itselI or wash hands oI delegated pwrs. Neither are good
choices. Allows Congress to come back and check at the back-end.
4 Functional: the legislative veto is an essential tool (especially since the nondelegation doctrine is
dead).
4 It is enough that the legislative veto section oI the statute passed the Art. 1 requirement.
4 Need more flexibility to help keep the branches balanced.
4 Any alteration needs to include both President and Congress, this legislative veto was contained
in statute so President did have a say
4 Even though only one house passes it, the other house gives its tacit consent by not vetoing it
- Rehnquist, dissent:
4 Legislative veto unseverable, iI it is unconstitutional, so is the entire statute.
- Comments:
4 Once Congress makes its choice in enacting legislation, its participation ends. Congress can
thereaIter control the execution oI its enactment only indirectly by passing new legislation (or by
doing one oI the things listed below). H S P!!!!!!!
4 Veto provisions are very prevalent, so Chadha eIIectively struck down more provisions in
statutes than any other decision in the history oI Sup. Ct.

How can Congress control administrative agencies aIter Chadha? |aIter the abolition oI the legislative veto|:
1. egislate
2. Oversight Hearings: can call administrative heads to testiIy and make public.Harass/embarras
3. Spending Power: appropriations rider (attachment to authorization that prohibits agency Irom engaging
in certain courses oI conduct) or increase/decrease budget.
4. Sunset Provisions: provisions oI Act expire unless we renew.
5. bolishment: abolish, narrow, or enlarge agency.
6. Create another agency.
7. Block nominations of agency heads.
8. Use agencies differently: as advisory boards.
9. Bicameralism and Presentment: override w/ ordinary legislation.
10.ore/ess instructions for creating regulations
11.gencies as advisors: Congress may use administrative bodies as advisory cmte and retain ultimate
legislative power in itselI
Note: Admin agencies can make rules AND adjudicate. (This is Chadha)
Art 1 sec 6 clause 2: can`t be a member oI either house and simultaneously be an oIIicer oI the US (exec
branch). Forbids congressional overlap.

3 Congressional Control of Executive Functions.
ppointment, Removal, and Unitary Executive Theory
54
Stone pp 378-87, Chemerinsky 337-50

I. Appointment and Removal Power:

Appointment
- Art II, 2: president 'shall nominate and by and ith the Advice and Consent of the Senate shall
appoint Ambassadors, other public Ministers and Consuls, Judges oI the SC, and all other Officers of
the U.S. . but the Congress may by Law vest the Appointment oI such inIerior OIIicers as they think
proper in the President alone, to the Courts oI Law.
4 Note: two classes oI oIIicers:
InIerior: can vest appointment
Principal: cannot vest appointment
4 How do we know what an oIIicer oI the United States is?
Court says: someone who exercises signiIicant authority under the law oI the United States.
O Someone who implements the policies oI the legislature.
O Someone who carries out a Iunction oI the government.
Removal
- Art II, 4: 'The President, Vice President and all civil oIIicers oI the United States, shall be removed
from office on impeachment for, and conviction of, treason, bribery, or other high crimes and
misdemeanors.
- What the text says about removal:
4 All oIIicers oI the United States are subject to impeachment.
4 Congress could abolish the oIIicethis is a big step.
4 Doesn`t speak at all about any other way to remove an oIIice oI the United States.
- Two theories about removal power:
4 The Hamilton Position: Removable only by impeachment. (President and Congress have to
agree.)
4 The At-Will Position: Serves at pleasure oI President. President can remove Ior any reason
suIIicient but not necessary grounds.
4 Debated as to whether need advice oI Senate.
4 Historical support Ior both theories:
The Decision of 1789 says only the President alone can remove these oIIices.
Hamilton says the Senate`s concurrence is required Ior removal.
Issue comes to head in 1867: Congress passes the Tenure of Office Act which says the Pres.
cannot remove cabinet oIIicials without the advice and consent oI the Senate.
O History: the wanted to make sure Johnson didn`t remove Lincoln`s cabinet and be
soIt on the Southern states.
O Johnson said buzz oII and did it anyway.
O Johnson got impeached. Acquitted by one vote.
Courts get involved in 1926: See Myers v. United States below.

II. Appointment Power Cases

Buckley v. Valeo, Per Curiam, 1976 |Congress can`t delegate power to itselI.|
- Facts: Federal law empowered Speaker oI the House and President Pro-tem to appoint Iour oI six
members oI the Federal Election Commission.
- Holding: Federal Election Commission is unconstitutional because the members were nominated by
Congress-violates the appointments clause.
4 Text oI Art II (which speciIies who may possess appointment power Ior inIerior oIIicers: Pres,
Heads oI Departments |Exec|, or lower Ied courts |Judiciary|.
55
4 Speaker and Pres Pro-tem are none of these could not possess appointment poer.
- Some FEC Iunctions could continue:
4 Could investigate and report to Congress because Congress can do so itselI. It can delegate its own
power.
4 In this sense, the FEC wasn`t acting as an oIIice oI the United States.
Doesn`t implement policy or carryout a Iunction oI the government.
DiIIerence between investigation and enIorcement
However, they also did have some enIorcement power in regards to campaign spending
Thus, Congress can`t control agencies by appointing people


III. Removal Power Cases

Myers v. U.S., TaIt, 1926 |President has the exclusive authority to remove executive branch officials.|
- Facts: Postmasters could not be removed without the advice and consent oI the senate. Wilson Iired
Myers without senate consent.
- Holding: Court says the law that required consent oI the senate is unconstitutional. Senate can`t limit
the president`s removal poer by requiring consent. President must IaithIully executeiI he can`t
Iire people who are directly responsible to him, then he can`t do his jobunitary executive theory.
4 Unitary Executive Theory: whatever the president gets to do, he has vertical control over. President
has to have command and control oI those in the executive branch. Isn`t the same as horizontal,
broad power.
4 'Take Care Clause: President must 'take care that the laws be IaithIully executed. Reviewing
debates in Iirst Congress, concluded that Iramers` intent was to place removal power in President.
- TaIt: 'the power to remove is incident with the power to create
- When Pres appoints, he alone has power to remove with advice/consent Irom Senate
- Dissent: II Congress has power to create, then has power to destroy. Same as jurisdiction stripping
argument. Exercise oI Congress` enumerated power.

Humphrey`s Executor v. U.S., 1935 |Limits Executive removal oI quasi-legislative and quasi-judicial
agencies- 'rise oI the headless 4
th
branch oI govt|
- Facts:
o FDR removes Mr. Humphrey`s Irom the FTC.
o There is a limitation on the Pres`s removal power oI members oI the FTC Ior efficiency, neglect
of duty, or malfeasance in office. (they were appointed with advice/consent oI Pres)
- Holding: The Court says this limitation is Constitutional. Good cause is required, all subordinates oI
the executive aren`t at-will employees.
o This is because the FTC is diIIerent Irom the postmaster. The FTC perIorms legislative/judicial
tasks, it is not solely an arm oI the executive branch (while the post-oIIice is).
o It depends what the oIIice doesthe 'what` aIIects who can remove the person Irom oIIice.
o Myers gives unitary executive power Ior removal oI purely executive oIIicials.
o FTC is quasi-legislative and quasi-judicial, so the members oI the FTC can be insulated Irom
presidential removal (esp. because we don`t want the president removing just because oI policy
disagreements). Can only remove members oI the FTC Ior cause.
- Point: Congress can condition the president`s power oI removal in these agencies.
o Court declared authority oI Congress in creating quasi-legislative agencies 'to require them to
act in discharge oI their duties independent oI executive control cannot be doubted. With this
authority includes power to Iix period in which they serve.
- Analysis: Why is Humphrey`s diIIerent Irom Myers?
4 Court is enIorcing New Deal theory oI administrative state that depends very much on expertise.
4 BelieI that experts are the way out oI Depression.
56
4 Rise of Independent gencies: Agencies don`t really answer to anyone. They can`t be removed
except Ior cause, policy disagreement is not cause Ior removal. This might be good because they
are insulated Irom political pressure.

Bowsher v. Synar (1986) |Legislative removal oI exec / ban on Exec removal oI exec|
- Facts: Balanced Budget and Emergency DeIicit Control Act oI 1985 prescribed max allowable budget
deIicit Ior each oI 5 yrs. II spending exceeded, Comptroller General oI US (head oI Congressional
General Accounting OIIice) was instructed to impose budget cuts.
4 Law empowered Congress to terminate the United States Comptroller General Ior certain
speciIied reasons.
- Holding: UnconstitutionalCongress can` t give itselI power to remove executive oIIicials.
4 Congress cannot reserve Ior itselI power oI removal oI oIIicer charged w/ execution oI the laws
except by impeachment.
4 Court says Comptroller is an agent oI Congress perIorming executive Iunctionsthis can`t be.
How do we know he`s perIorming executive Iunctions? Burger gives the deIinition: to
execute the law means to read the statute and to use your discretion carry it outthis is
what the comptroller was doing.
4 DiIIiculty oI Removal: must go through bicameralism and presentment. However, Congress has
sole power to initiate removal.
- Rule: II Congress holds the removal power, then that oIIicer is beholden to Congress and thereIore a
Congressional actor and can`t exercise executive or judicial power. The President can`t initiate the
removal, Congress can, but the president can block the removal. It would then take 2/3 oI congress to
overturn him.
4 Fall-back provision: Congress can do what it wants through bicameralism and presentment, but
it can`t just appoint a guy to do the stuII. So.when we say no to the Comptroller General, it
Ialls back on Congress to make the decisionseven though they are executive, because the
procedure is what matters more than the Iunction.
- Dissent (White): also dissented in Chadha.
4 Says the majority is way too Iormalistic.
4 The real problem is that Congress has a spending problem, and this is way to control that
problem. We need to allow them to solve these modern problems and stop using 18
th
century
rules. We should be more IlexibleIunctionalism.
4 He says the court should be making sure that no one branch has too much power, but allow them
to respond to the needs oI the modern world. The test should be whether any given act creates
such an imbalance that it threatens the separation oI powers.
4 This doesn`t work because courts decide like cases alike.

III. Appointment and Removal Case

Morrison v. Olson, Rehnquist, 1988
- Facts: Olsen, Attorney General Ior the OIIice oI Legal Counsel, is being investigated Ior giving Ialse
testimony. Morrison is appointed to investigate as an independent counsel Ior the Attorney General.
Olsen claims that Morrison`s position violates the Separation oI Powers because she is answerable to no
one.
4 The Independent Counsel is appointed via a special division oI the D.C. Circuit.
4 Can only be removed by the AG Ior good cause or by impeachment.
- Issue: Is the law limiting the Pres.`s removal oI the Independent Counsel only 'Ior cause
constitutional? Yes.
- Holding: Independent Counsel Act is constitutional.
4 Appointment: Doesn`t violate the appointments clause because oI the exceptions clause
Congress can make exceptions as they think proper.
57
4 Here, was appointed by the Court (cross-branch appointment issue). Which is ok b/c: the text
doesn`t say anything about cross-branch appointments, the cts know a lot about prosecution
(expertise model)
IC is not an inIerior oIIicer.
O This is relevant to the appointments process. (Art. II 2)
O Can be removed by AG Ior good cause, limited duties, limited jurisdiction,
limited tenurelimits make it inIerior.
IC exists to investigate/prosecute alleged wrongdoing in the executive branch. Ideally,
the IC should be independent Irom the presidentthe Iact that the IC can`t be Iired
except Ior good cause supports separation oI powers.
4 Removal: limitations on executive`s removal power is constitutional.
Distinguishing Bowsher: there, Congress had a role in removal, here it does not.
Test: whether or not the removal restrictions impede the president`s ability to perIorm
his constitutional duty.
O Abandon the quasi-legislative test (Irom Humphreys).
- Dissent (Scalia):
4 IC is not an inIerior oIIice because she is not subordinate to any other oIIicer in the executive
branch.
4 President`s constitutionally assigned duties include complete control over investigation and
prosecution oI violations oI the lawcannot call it 'suIIicient instead oI 'complete.
4 Separation oI Powers problem.
4 That it`s a slippery slope carving up all Ioreign aIIairs into little slices
4 (aIter this case, the court said Scalia was right. 'inIerior means subordinate to somebody and
that somebody can Iire you. (somebody other than the pres)

IV. The Principle That Emerges:
- In general.
4 The president has the power to remove executive oIIicials. (Myers)
4 But, Congress may limit the removal power iI it is an oIIice where independence Irom the
president would be desirable. (Morrison)
4 Congress cannot, however, completely prohibit all removal.
4 Congress cannot give the removal power to itselI (other than by exercising its impeachment
power). (Bowsher)

B THE EXEC POWER

1 Exec-egislative Conflicts
Stone pp 352-57

Where Does the President Get His Power?
- Article II:
o Section 1: The executive power shall be vested in the President.
Is this diIIerent than power 'herein granted that is given to the legislature?
Does that mean that the president has no limits in executive power?
o Section 2: Commander In ChieI
Armies and Navies
o Section 3: Take Care that the Laws be IaithIully executed.
Congress passes statute: President takes care to make sure laws are executed
Does the Commander have anything more? Or does it have to come Irom Congressional
Statute or Commander in ChieI power?
58

a Control of omestic ffairs
Stone pp 336-52

Youngstown Sheet & Tube Co. v. Sawyer, (The Steel Seizure Case), Black, 1952
Facts: Dispute between steel companies and employees over terms and conditions.
- Union gave notice oI nation-wide strike.
- Indispensability oI steel as component oI all weapons and other war materials led President Truman to
believe that proposed work stoppage would jeopardize national deIense and government seizure oI mills
necessary in order to assure the continued availability oI steel.
- President issued Exec Order, directed Sec. oI Commerce (Sawyer) to take possession oI most steel
mills and keep them running on Truman`s terms.
- Taft-Hartley Act: allows a labor injunction (Iorce workers to work and not strike iI it`s a necessity, but
no wage increase)Congress explicitly decides against this.
Issue: Since Congress didn`t authorize pres to do so and this seems to be against the 5
th
Am (taking private
property w/o just compensation). Did the president have the power to order the Secretary oI Commerce to
take possession and operate most oI the nation`s steel mills?
4 Truman`s Arguments:
Section 1: Vesting ClauseI have the executive power.
O Court says: executive power does not mean law-making power. Here he`s
creating rules oI conduct Ior private individuals- like legislating!
Section 2: Commander-In-ChieII need steel to wage the war in Korea.
O Court says: there was no express declaration oI war. Congress has the power to
raise armies and navies.
Section 3: Take Care ClauseI need to take care that the law be IaithIully executed.
O Court says: there`s no law to execute here. Needs to be turned on, Iirst.
- Holding: President`s seizure was unconstitutional.
4 Black: Formalist
Everything the president does must be traced either to the Constitution or to the
Congress. He gets his power Irom a statute or Irom the Constitution. He also has some
Commander-In-ChieI powers, but they have limits.
O Here, there is no act oI Congress, in Iact Congress explicitly decided against this
in TaIt-Hartley so, must rely on Constitution.
O Commander-in-ChieI: 'theatre oI war doesn`t stretch this Iar. No declaration oI
War Irom Congress and Korea is Iar away.
O Take care: need to point to a law. Pres stands still until wound up by a statute or
C. Can`t turn selI on.
4 Douglas:
4 -President can act without express statutory or constitutional authority so long as he isn`t
usurping powers oI another branch or preventing a branch Irom carrying out their duties
4 -This Act is spending Iederal Iunds to compensate steel mill owners and this is robbing Congress
oI the power to spend
4 Only Congress has power to authorize this since they are the only ones who can spend the
money
4 FrankIurter:
The Pres isn`t turned on by Constitution/Congress, he`s turned oII by prohibitions by
Constitution/Congress.
In this case, Congress prohibited this action when they reIused to withhold the power in
the TaIt-Hartley act. This is easier than passing a statute Iorbidding Pres` action. Easier to
deIeat legislation.
59
Frankfurter is giving the defeat of legislation the force of laeven though it didn`t
go through bicameralism and presentment. He`s reading the TaIt-Hartley act as iI it says
'President, you cannot seize. He`s reading Iailure to act as lawbut silence as law
raises problems.
Can the president act when Congress is silent? (seems so)
O FrankIurter is looking Ior a systematic executive practice never beIore questioned.
That would be a valid power.
O Adverse possession of poer. Does it seem right that the president can
adversely possess power?
4 iI he`s done it beIore it can be like a gloss on exec pr.
4 Should the President get to take power because Congress sleeps on its
right?
4 How long is the statute oI limitations?
4 Turns into a broad map oI allocating pwrs. History/practice help to Iill in
the gaps. As long as he`s being open/notorious and congress is ok with it.
O Is Congress properly incentivized to protect its own turI?
O Can this be reconciled with Chadha?? Seems that they`re altering rights/duties
but it`s not thru presentment.
4 Jackson:
Shares a lot with FrankIurter.
Has a three part scheme:
O President`s Power is at its enith: Congress says yes.
4 At this point the president can do anything except what the Iederal
government as a whole can`t do.
O President`s Power is at its Tilight one: Congress is silent.
4 Powers are arguably concurrent.
4 Depends on imperative oI the events and contemporary thought.
4 Test whether pres can do something or not: when the Iacts on the ground
make it look like a good idea.
O President`s Power is at its Nadir: Congress has said no. Can only do things that
belong to him by the C.
4 Pardon
4 Veto
4 Appointments
4 Commander-In-ChieI (tricky- contested space with Congress)
4 Foreign AIIairs (tricky- also contested)
Jackson says this situation Ialls under nadir because Congress has said no under the TaIt-
Hartley act.
Parts oI his opinion suggest Pres has emergency authority. Ex: geographical scope oI the
theatre oI war pwr, twilight zone. But also, suggests contrary. Nervous about giving
them.
Jackson to Congress: iI you say nothing, don`t expect the President to sit around and
twiddle his thumbs. II you don`t want him to do something, save the power Ior yourselI.
4 Vinson, dissent:
This is an emergency, its war.
President needed to act, so he did. That is what presidents should do.
He should go out and act until Congress tells him no.
O What about TaIt-Hartley? They didn`t say no.they didn`t know at the time
about the Iuture situation. Just general rules Ior Iuture.
How do we know iI it`s really an emergency?
60
O Assume the president is right; iI he isn`t bring evidence that he`s not.
O Trust the president unless you can disprove it.
AIter Youngstown: Re- emergency authority. II Congress hasn`t acted, Pres can act.
Dames & Moore v. Regan, Rehnquist, 1981
Background:
4 Carter negotiates with Iran to get hostages released. He agrees to unIreeze Iran`s assets and
transIer them to the bank oI England and also to dismiss any claims against Iran in courts oI the
United States. They would be dismissed and a new tribunal in the Hague would take care oI
them in arbitration. Hostages are let go, Reagan becomes president and ratiIies Carter`s order.
4 Dames & Moore had Iiled a suit against Iran and Iranian banks. They were owed money Ior
construction deals and sued Ior breach oI contract aIter the hostage incident Iroze everything.
- Issue: Does Carter have the right to do this under a statute or the Constitution?
4 UnIreezing assets? Yes, there is a Iederal statute that allows this. IEEPA- congressional statute.
The take care clause allows the president to do this under the statute.
4 Dismissing claims?
Doesn`t get the power Irom a Iederal statute.
What about the Constitution?
O Rehnquist looks at Youngstown, but not at Justice Black. He looks at FrankIurter
and Jackson.
O 1ackson`s three part test becomes the majority opinion-hen people talk
about Youngston today, they are talking about 1ackson`s test.
Where does this Iit in Jackson`s test?
O Rehnquist says it`s more oI a spectrum, but it Iits somewhere between category 1
(congress has said yes) and 2 (congress is silent).
O Congress had been involved in hearings and never said no. Congress has also
Irequently dealt with the International Claims Settlement Act, demonstrating
approval oI the president`s authority.
O Rehnquist cites FrankIurter`s ~a systematic, unbroken, executive practice, long
pursued to the knoledge of the Congress and never before questioned
may be treated as a gloss on Executive Poer` vested in the President by 1
of Article II.
How does this square with Youngstown?
O Presidents have done this in the past.
O Congress has been ok with the president`s authority in the International Claims
Settlement Act.
O Congress considered the issue in Youngstown and rejected it, they were silent
there.
O Dames and Moore said: In Youngstown Congress had done seizures 16 times, but
not in Youngstown. II Congress wanted to authorize it, they would have.
4 Rehnquist turns this around and says iI Congress has been ok with this is
similar situations, we can inIer its ok here.
Other Considerations:
O Maybe it was important in this case because the president had already made the
deal. We can`t go back now or else it would be a foreign affairs disaster. Iran
might even take more hostages.
O Maybe this was more oI an emergencyin that it was just really important to get
the hostages backthan in Youngstown.
O Maybe the court was being sensitive to contextthey wanted to support a
bipartisan deal that was supported by the public.
61
O Point: 1ackson and Frankfurter become the la. The presumptions tend to
go more toard the president. Rehnquist is careful to limit this opinion and
keep it narro.

Medellin
Facts look up: had to notiIy consulate oI these types oI cases. Never inIormed Medellin oI this right. He tries to
raise this in a postconviction proceeding. ICJ ppl say even tho it`s a post-conviction, you still have to do it. US
says no, not a selI-executing treaty. Other countries can sanction but no domestic rights.
Issue: Whether Medellin changes Dames and Moore again.
Holding: not selI-executing.
O Foice of Neuellin means that theie's a piesumption that the tieaty is non-self executing: it binus
us in the national spheie, but has no uomestic affect. You can asseit youi tieaty iights in a feueial
ct if it's a non-self executing tieaty.
O nly way to have uomestic effect is if Congiess has passeu a law to apply to the tieaty.
O ush says he has the Cuitis-Wiight powei (sole oigan of the nation) anu even though Congiess
haun't passeu a statute making it law, he thinks it woulu be goou foi inteinat'l ielations. Even
though Congiess haun't spoken to make it uomestically enfoiceable.
O C: no, Congiessional silence heie uiun't equate to Pies' ability.
O Foi tieaties: congiess speaks thiough its silence. Befault: non self executing.
O Coulu ieau Neuellin as flipping the piesumption again.
b Control of Foreign ffairs
Stone pp 375-380, 382-398
Comparing Art. 1 sec1 to Art 2, 'herein granted vs. 'THE executive pwr shall be vested. . is art 2 like art 1
where there are some unenumerated pwrs and those are leIt to the states? Or are the executive pwrs just
illustrative oI a greater spectrum oI pwr?

Nondelegation doctrine from `35: can`t delegate away legislative authority

United States v. Curtiss-Wright Corp., Sutherland, 1936 |Stands Ior BROAD DELEGATION to Pres in Ioreign
aIIairs|
Facts: Congress adopted joint resolution authori:ing president to prohibit sale oI arms iI Iound that prohibition
would contribute to establishment oI peace in the region. Lower court held that joint resolution was
unconstitutional delegation oI legislative power to president. Curtiss-Wright is indicted Ior selling arms
prohibited by President.
- Holding: Joint resolution is constitutional.
4 No non-delegation problem because it`s a power to deal with Ioreign nations. International
power came Irom Great Britain and were not given to the states. They were given to the Iederal
government.
4 Also, no non-delegation problem because even tho Congress could`ve legislated here, the pres is
acting in the Iield oI Ioreign aIIairshe has his own authority. 'pres as sole organ oI nation
4 Normally, some things are carved out Ior the Iederal government and everything else goes to the
states, but poer over foreign affairs never belonged to the states.
To say that the Iederal government can exercise only enumerated powers is only true iI
you`re talking about domestic aIIairs.
4 But.Curtiss-Wright`s argument isn`t that the power belongs to the states, it says it belongs to
Congress. Why would Justice Sutherland be so non-responsive to the question? When Justice
Sutherland was an undergraduate he wrote his thesis on whether or not the states had Ioreign
aIIairs authority.
62
- Sutherland doesn`t claim the text gives the president this power, but could he have? He could have
argued that 'pres as sole organ oI the nation..
o Commander in ChieI.
o Negotiate and Agree to Treaties.
o Appoint/Welcome Ambassadors.
- What about Congress` Ioreign aIIairs powers?
o International commerce regulation
o Express power to declare war.
o DeIine and punish oIIenses against law oI nations.
o Letters oI mark and reprisal (pirates).
o Raise armies and navies.
- Sutherland: this isn`t about delegation. Not a turI battle. All we need to know is that everyone has pwr
and as long as pres has enough oI his pwr to have done this independently, it`s not such a big deal.
- Why is it important the president have this power? (functional arguments)
o International relations are unique and the President must have some degree oI discretion to make
these decisions (avoid embarrassment)
o Secrecy issues.
o Sometimes these decisions must be expedient, Congress takes Iorever.
4 President is the sole organ oI the nation in Ioreign aIIairs- Iace oI the nationusually goes Iirst.
4 Accountability argument: only entity oI the Iederal govt that can represent ALL oI the people.
- Notes:
4 Non-Delegation: at time, Schechter`s non-delegation ruled.

Hamdi v. RumsIeld, O`Connor, 2004
- Hamdi, an American citizen, was arrested in AIghanistan and held as an enemy combatant. He was
held without being charged and without given counsel.
- He Iiled a petition Ior a rit of habeas corpus, a request that the prisoner be taken to court to argue that
he`s being held in violation oI the law.
o Hamdi`s dad Iiled the writ. You can`t Iile law suits on behalI oI other people, but you can have
next Iriend standing iI the person is mentally incapable or a minor or being held in
incommunicado (as Hamdi was).
- Holding: Due process demands that a citizen held in the United States as an enemy combatant be
given a meaningful opportunity to contest the factual basis for that detention before a neutral
decision maker.
o The plurality and Justice Thomas say the AUMF (Authorization Ior Use oI Military Force)
authorizes the actiontaking prisoners is an ordinary action oI war and president is using
appropriate Iorce.
- Souter and Ginsberg (concurrence/dissent):
o Relevant statute is the Geneva Convention. Thinks there is an inconsistency in the way the
prisoners are being treated. Thinks Hamdi qualiIies as a prisoner oI war because they say his
arrest is an incident oI war, but then they say Geneva doesn`t apply.
o Title 18 4001(a): criminal code that says no prisoner can be detained except by an act oI
Congress. AUMF doesn`t suIIice because it`s not suIIiciently clear. AUMF says 'use all
necessary and appropriate Iorce. This is ok Ior non-citizens, but not Ior citizens oI the U.S.
Congress should have made this point very clear, so the statute is too vague.
o According to Souter and Ginsberg this Iits into category 3. Congress has spoken via Geneva
Convention, AUMF isn`t speciIic enough, there are statutes that dictate how Hamdi should be
treatedthe president`s poer is at its nadir.
o They think he can act in a moment oI genuine emergency when the government must act with no
time Ior deliberation the government can detain when there is an imminent threatHamdi has
been locked up Ior two years.this is not an imminent threat.
63
- Scalia and Stevens (dissent): President does not have the authority to detain the enemy combatant.
They put it in category 2Congress is silent.
o AUMF doesn`t speak to citizens so it doesn`t apply. Even iI the AUMF did speak to citizens,
it`s not enough. They need to use the suspension clause. (Article I, Section 9, Clause 2).
Suspension clause suspends the writ oI habeas corpus.
o Scalia says e have a ay to deal ith people ho take up arms against his country-
treason. There is only one way to try treason. All that other detention stuII that is being used
Ior non-citizens, Iine, but we have treason Ior citizens and it should be used. We have
established the evidentiary hurdles Ior the crime. Because he`s a citizen, that`s the way you deal
with it. He`s entitled to a criminal trial in an Article III court.
Government isn`t willing to do this because they don`t want to bring certain evidence into
court Ior national security reasons. They`d have to reveal human intelligence, etc. They
also don`t want to give these guys lawyers because then the Ilow oI inIormation will be
cut oII.
Scalia says iI you want to cut oII this guy`s civil rights, you have to suspend the writ.
You can curtail civil rights but you have to do it openly and notoriously and
according to the rules. We can`t say hether or not these tools are good enough to
in the ar on terror, but those are hat you`ve got.

More on Hamdi.

II Hamdi is an enemy combatant does the president have the power to detain him? Yes.

Who has the power to decide iI he is an enemy combatant and where does that power come Irom?
- Court deIines enemy combatant in the opinion.
- A citizen can`t be an enemy combatanthe`s a traitor.
- A court might decide who is an enemy combatanthow would they get jurisdiction oI that question? A
next Iriend would Iile a habeas corpus petition.
- A military tribunal could decide who is an enemy combatant, but in the absence oI a military tribunal,
the courts will be available.

What do you get in a criminal trial?
- ConIrontation
- Counsel
- Speedy trial
- Jury
- Beyond a reasonable doubt
- Presumption oI innocence
- SelI-incrimination
- Public trial
- Compulsory process
- Neutral incrimination
What do you get Ior the wartime trial?
- No presumption oI innocence
- No conIrontation
- No jury
- Neutral decision maker
- No beyond a reasonable doubt
- No public trial
- No Miranda
- Counsel?
- Speedy trial?
- Compulsory process?
- SelI incrimination?
- Uses the Matthews balancing test. How much oI a burden would it
be on government, what is the risk you would get it wrong?


Hamdi ended up getting released and sent back to Saudi Arabia. He was stripped oI his U.S. citizenship and
isn`t allowed back in the United States.

Kieran, A case in 1942: status as a citizen doesn`t mean anything iI you`re an enemy combatant.

64
More opinions.
- Breyer says that detention is ok iI Hamdi gets all the rights listed above.
- Souter says no Scalia and Stevens, even though he doesn`t think Congress has authorized the detention
at all, he goes with the plurality. Why?
o II congress had authorized, then maybe Souter doesn`t think you need the whole criminal
process. He`s willing to balance.
o Or, maybe he just knows he`s not getting his way and he`d rather have minimal process than no
process. He doesn`t want a Iractured decision.
- Thomas says no process at all.

2 Executive-udicial Conflicts
a Executive Privilege
Stone pp 405-409
United States v. Nixon, Burger, 1974
- Facts:
o Nixon wants to keep some evidence secrethis tapes Irom Watergate.
o President has prosecutor Iired.
o New prosecutor gets appointed; Nixon goes to court to quash the indictment.
- Issue: Does the president have to turn over the tapes?
o Yes.
o Tapes show he ordered the FBI not to investigate Watergate, he resigns.
- What is Nixon`s claim?
He says this is between him and his prosecutor. It is an in-house dispute, a political question that the
court doesn`t get to decide. C concerns about indicting a sitting president`s immunity.
o Court says no: president delegated an authority to the special prosecutor (judiciary) and gave
him the power to subpoena stuII. Once you delegate poer, it`s not an inter-branch dispute,
its something e can decide on unless you revoke the delegation (hich is a bad political
move).
He says it`s a personal conversation, he has an executive privilege. It would be against the public
interest to disclose the tapes because it`s with his personal advisorsiI it`s disclosed it could aIIect
how candid they are in the Iuture which is bad Ior the whole nation.
Couit iesponus: that's iight, you can seek confiuential auvice fiom auviseis. Ct
iecognizes the claim anu even thinks it has a C- home (tho no text suppoit).
4 , the piivilege has to yielu sometimes. Like, when it tiumps someone's iight.
(Right to a faii tiial-C also.) Except, that's weiiu bc it's foi the B anu heie the B's
uon't want a "faii tiial."
4 C inteiest on the othei siue: Cts have an inteiest in the tiuth coming out anu this
piotection woulu impeue the ability to make suie the tiuth comes out. Response:
yeah, but so uoes all the iest of ciim pioceuuie which is all slanteu in favoi of the
B.
o Marbury v. Madison (judicial review): No, Nixon, you don`t get to decide what inIormation is
privileged, the court does. The countervailing concerns winhe`s the president and can`t
misuse the oIIice. That needs to be brought outits worse Ior the president to abuse our trust
than it is Ior him to lose his privacy. Also, his claim is undiIIerentiated, he has no speciIic claim
oI privilegenational security, Ioreign aIIairs, etc. He`s just saying in general I get my privacy.
o What Burger is really getting at: that the pres owes a duty other than the duty to himselI. He
stands in a special place b/c something else tells the Pres how he has to behave. Not just the law.
This is really just a special case- pres gets privileges but also has responsibilities. Resp here: to
reveal criminal wrong-doing. Responsibility that we uncover criminal wrong-doing BECAUSE
he`s the prez.
65
o Note: general priv might attach to civil litig b/c it`s not that impt.

b Executive Immunity
Stone pp 410-411

Can you sue the president civilly Ior actions taken in the course oI duty?
- No. Mississippi v. Johnson Can`t enjoin Prez in the conduct oI his oIIicial duties.
- Case arises during Reconstruction when Mississippi didn`t like the way Johnson was carrying out
Reconstruction. Ct said no jx to enjoin Irom certain duties.
Alternatives: could sue the subordinate oIIicial who`s tasked with doing the thing Ior equitable relieI.

Can you sue the president Ior damages?
- No. Nixon v. Fitzgerald Fitz dismissed, can`t get reinstatement (equitable relieI). Tries to sue Prez Ior
wrongIul discharge- violates 1
st
Am: should be illegal to get Iired Ior speaking out against the Prez.
- There are alternative measures Ior policing the president`s conduct.
- It will divert the president`s attention.
- Hiring/Iiring subordinate is art oI your official conduct. We want the president to act vigorously in
oIIicial dutiesnot cautious oI liability.
- Can`t be read simply Ior the division oI time/energy (Iades in Clinton)

What about Clinton v Jones? (DiIIerent Irom Nixon v. Fitz)
- Court unanimously held Clinton could be sued by Paula Jones.
- Why? Same rationales were there with Nixon.
o UnoIIicial conduct that took place beIore the president ever became president.
o Sexual harassment is outside the line oI duties

Soo.can`t sue the president for official conduct hile he`s in office, but you can sue him for unofficial
conduct committed out of the office.
- Lower oIIicials are qualiIied immunitycan be held liable iI their conduct violated a clearly established
constitutional right or Iederal law.

Can you prosecute a sitting president in Iederal court?
- Nixon was not actually indicted. He was an un-indicted co-conspirator.
- You can impeach a president. Once he`s impeached and convicted then he can be prosecuted in criminal
court.
- Once you are not the president anymore you can be criminally indictedso maybe iI you resign and
aren`t impeached you can be prosecuted.

Why do we want to draw a line between oIIicial and unoIIicial conduct?
ecause we want to piotect Piez' official action. We want to immunize the piez bc we uon't want
him woiiying about his liability.
uea of an immunity: we want the piez to be vigoious anu act iight up to the bounuaiy of
legalillegal. ut, if you want piez to go up to uncleai lines, theie will be times when he steps ovei.
he immunity doctrine says this is bettei than the alteinative: foi the piez to be cautious anu
stay within a safe haiboi.
4 f you want to push haiu on "no man is above the law" notion, then you won't like the
immunity uoctiine. ut if you think the alteinative is that the piez acts too timiuly, then it's
the piice you pay.

66
mmunity Doctrine: assuming official action, as long as you'ie uoing youi piesiuential job, you
uon't have to woiiy about uoing it illegally. ut youi peisonal life is outsiue of the immunity.
4 uzzy places: woikplace haiassment- uncleai wheie it falls.
4 he ieason we'ie peimitting piez immunity is bc NENE the line is uncleai.
4 ualified mmunity: suboiuinate officials can be sueu when the line is cleai but not when
the line is fuzzy.
en can you sue te Prez?
4 hings aie pietty uncleai. We just uon't know
4 Bon't know about ciiminal L uuiing officialnon-official uuties while in office
4 f you uon't get impeacheu you piob can't get inuicteu while still in office.

V. 1UDICIAL PROTECTION OF INDIVIDUAL RIGHTS

RCE N SJERY

1 Slavery and the Constitution
Stone pp 447-450, 453-457

Race Discrimination and Slavery beIore the 13
th
and 14
th
Amendments
- Con Amendments Protecting Slavery
4 BeIore 1865 (13 and 14), slavery was constitutional despite Declaration that 'all men created
equal.
4 Many provisions oI Constitution protected aspects oI slavery:
Art I, 2: apportionment oI legislators on basis oI the whole number oI Iree persons in
each state and 3/5 to all other persons.
Art I, 9: prohibits Congress Irom outlawing slave trade until 1808.
Art IV, 2: req`d states to deliver up escaped slaves.
4 Southern States reIused: many draIters (Washington, Madison, Rutledge) owned slaves.

All people born or naturalized are citizens of the United States and citizens of the state in hich they
reside.-MOST IMPORTANT PART OF THE 14
th
AMENDMENT.

The equal protection clause oI the Fourteenth Amendment is the primary source oI constitutional requirements
oI equal treatment.

Missouri Compromise: Miss entered as a slave state, states north oI a certain parallel entered as Iree and states
south at their own option

Dred Scott v. SandIord, Taney, 1857
Facts: Dred Scott was a slave Irom Missouri, he goes with his master to Illinois and then to Wisconsin territory.
Master then returns to Missouri and dies. The widow leaves aIIairs to brother SanIord who claims ownership oI
Scott. In 1847 Scott Iirst goes to state court in MO Ior his Ireedom. The law in MO was 'once Iree, always
Iree. So iI he had been a resident oI a Iree state, then he was entitled to his Ireedom. There was a mistrial.
There is a retrial in 1850 and the state court in MO says he`s Iree. The problem is in the three years, Scott is
still held by SanIord as a slave. In that time his 'wages were put in escrow in case it turned out he was Iree.
SanIord doesn`t want to pay so he appeals. By 1852 the mood had changed, the South was starting to Ieel
pressure, they are concerned about slavery. The court changes the law retroactively to 'once slave, always
slave. Next, Scott sues SanIord in Iederal court Ior trespassa tort action. II Scott is Iree, then SanIord can`t
hold him in shackles and he can`t lay hands on him. False imprisonment, battery. This creates a property
question.
67
- Why did he think he could sue in Iederal court?
o Diversityhe`s a citizen oI MO and SanIord is a citizen oI NY.
- Issue 1: Is Scott a citizen oI MO Ior purposes oI Iederal diversity jurisdiction?
- Holding: No.
o Blacks are not regarded as citizens.
o Historically, slaves and their descendants are not included as citizens oI the United States. The
Constitution does not conIer citizenship on them. Rests on Ied govt to conIer citizenship.
o What about state law?
Taney says Congress has the right to establish a uniIorm rule oI naturalization and that is
an exclusive power to grant citizenship. II you want to be a citizen oI a state you have to
be a citizen oI the United States (at least Ior Iederal purposes). MO can`t confer federal
citizenship-that`s exclusive to Congress. What about blacks living in Iree states that
made them citizens? Taney just took it away.
No African-American free or slave can be a citizen of the United States unless
Congress says so.
o Curtis`s dissent:
Power to naturali:e belongs to congress, but power to conIer citi:enship on the natural-
born belongs to states. Scott is a natural-born person, so MO law should hold. It doesn`t
make a diIIerence Ior Scott because oI MO law, but it matters Ior all the other Blacks out
there living in states where iI you`re natural-born you are a citizen.Taney just took all
oI these people`s citizenship away.
- This is the second time the court decides to rule on the merits of the case despite not having
diversity jurisdiction. The Iirst was Marbury v. Madison.
- Issue 2: Was Congress authorized to pass the law that says slavery is prohibited in the Louisiana
Purchase? Was Scott made Iree by residing there?
- Holding: No.
o Where did Congress get the power to decide no slavery above the 36/30 line?
Commerce Clause? No. We haven`t Wickard v. Filburn, yet. Its not the broad.
Article 4 3: Congress has the power to make all needIul rules over territory.
Where do the Federal Territory Power and the Due Process Clause oI the 5
th
Amendment
coincide?
What do you need to have due process?
O Laws have to be published Ior you to be put on notice. (everyone knew)
O It has to be a real lawbicameralism and presentment. (yes)
O Laws can`t be retroactive.
O You get a hearing. You get to state your case and contest Iacts.
O SanIord isn`t claiming any oI these things. What is he claiming?
4 Regulatory takingmaybe he wasn`t just compensation Ior the
government taking his slave? No.
4 Full Iaith and credit? No.
4 What is Taney saying then? The reason Congress can`t do this is
because you just can`t do this-substantive due process. Procedurally,
everything was Iine. Substantively, it`s just not Iair. The question is did
the government have a good enough reason to take aay my life,
liberty, or property? Here, Taney says Congress`s moral outrage against
slavery is not a good enough reason to overcome the property relationship
created by the state oI Missouri. He simply crossed boundary.
Maybe Iear oI abolitionist Iederal govt was an issue
Maybe wanted to prevent slaves escaping to the N Ior Idm
unC to abolish slavery in Ied territory- can`t prop like that
68
the Ied govt has police pwr, but doesn`t run this broadly- states get
to decide what their property law is.
Why don`t we like this ruling?
- Ct is racist and passive.
- Ct reached out to decide on an issue not presented (a la Marbury).
- Ct believed it would settle an issue by taking it out oI politics. (It really just Iueled the Civil War.)


2 Introduction to the Reconstruction mendments
pp 457-464

Ct passed three Amendments aIter Civil War
13
th
prohibited slavery and involuntary servitude.
4 Black Codes passed in South preventing blacks Irom exercising basic rights like owning property
or getting jobs
4 Civil Rights Act: All persons born in US is citizen given same rights as all citizens. Punish
those who do not abide.
BeIore passed, doubt about power to enact.
14
th
Amendment:
4 Section 1:
All persons born or naturalized in the United States, and subject to the jurisdiction
thereoI, are citizens of the United States and of the State herein they reside.
|Overrules Dred Scott|
No State shall make or enIorce any law which shall abridge the privileges or
immunities oI citizens oI the United States;
nor shall any State deprive any person oI life, liberty, or property, without due process
oI law;
nor deny to any person within its jurisdiction the equal protection oI the laws.
4 Section 5: The Congress shall have the poer to enforce, by appropriate legislation, the
provisions oI this article.
15
th
prohibits US and any other state Irom denying or abridging right to vote on account oI race.

The Slaughterhouse Cases, Miller, 1873: Iirst pass at the reconstruction Amendments.
- Facts: LA granted a monopoly to one slaughterhouse. P`s claim is that they are now subjected to
involuntary servitude (13
th
Amendment) as a result oI the monopoly. Basically they are accusing the
government oI taking their liberty to be butchers. They also claim a 14
th
Amendment violation oI equal
protection.
- Holding: These amendments were created to end slavery and black codes. The butchers are not slaves
nor do they have a race claimthey can go out and get new jobs or be butchers elsewhere.
- What does the court say?
o The 13
th
amendment was designed to end the property relationships created by slaverythe
ownership oI one person by another.
o Why doesn`t this claim Iit within the language oI the Amendment? The amendment doesn`t say
anything about race, so why can`t this Iall under it?
Involuntary Servitude was put in to take care oI those who might try to get tricky about
slavery. These butchers are Iree to go out and Iind new jobs, they are not servants.
- What about the equal protection claim? (14
th
Am)- they do a narrow read
o P is saying a monopoly is inherently unequal. Some citizens can be treated diIIerently.
o Court says purpose oI 14
th
amendment is to end unequal treatment oI Ireed slaves. Its purpose
was to eliminate the black codes.
69
o They say they don`t even have to decide this issue because the butchers don`t have a race claim.
The butchers can still be butchers, just somewhere else.
- Two minds:
o On 13
th
amendment claim it`s clear the court believes it applies to anyone, not just Iormer slaves.
o On 14
th
amendment they choose not to address whether or not it`s just Ior Ireed slaves, but they
say that they doubt it would apply to other classes other than Ireed slaves.

3 pplying the Equal Protection Clause to Classifications Based on Race
a Facial iscrimination
Stone pp 464-483, 523-543

I. Laws Requiring Separation oI the Races
Background:
During Reconstruction Era, South under military rule and Congress enacted many laws to protect Civil
Rights.
By the 1880s, Reconstruction was over
4 Compromise oI 1877: Democrats agreed to the election oI Republican RutherIord Hayes in
exchange Ior an end oI military rule oI the South.
4 Civil Rights Cases oI 1883: Ct declared unconstitutional Civil Rights Act oI 1875 that
prohibited discrimination in public accommodations.
States adopted laws that discriminated against blacks.
More private violence.
Jim Crow Laws: Created system oI apartheid.

Plessy v. Ferguson, Brown, 1896 Separate but equal is just fine!
Facts: Statute in 1890 required RR companies to provide equal but separate accommodations Ior
whites and blacks; required separate coaches, divided by partition, Ior each race. In 1892, LA
prosecuted Plessy (7/8 white) Ior reIusing to leave RR car assigned to whites.
Holding: Separate but equal is constitutional. Same as separation oI schools. Court said that
separation does not imply a badge of inferiority. Cannot Iorce commingling. Has to be socially
constructed. Every exercise oI police power must be reasonable and out oI good Iaith.
Badge oI InIeriority: EP is about legal not social equality. Not designed to undo
preexisting social equality.
Slippery Slope? Plessy argues that iI you can separate people by race, you can separate
by any Ieature. Court gives great deIerence to legislature as long as it`s acting in good
Iaith Ior public good rather than out oI animus. Here, legislature is reIlecting will oI
people. Altho the 13
th
acts on individuals, it doesn`t stamp out their bad thoughts.
Why is it constitutional on an equal protection theory?
4 Laws separating the races do not necessarily imply the inIeriority oI either race.
4 Law is in good Iaith Ior the promotion oI the public good, and not Ior the annoyance or
oppression oI a particular class.
4 Stigma is created by the reader oI the law, not the writer. Social meaning is constructed by the
culture, not the law.
4 Seems like hes saying that its ok to embrace local custom when the lack of enforcing it would
lead to social unrest When its designed in good faith and not designed to oppress
4 Ct painted it as society fust being separated and the law reflecting
What does the court say in response to Plessy`s list oI horribles? (separating based on hair color,
separating sidewalks, etc.)
4 Separate does not violate equality. The law is just enIorcing the decision oI the people not to
commingle.
4 Standard is reasonableness:
70
(1) Must be reviewed with reIerence to established usages, customs, and traditions oI the
people with the view oI their comIort and the preservation oI the public peace and good
order.
(2) Not Ior annoyance or oppression.
Court deIers to the legislature to decide what will maintain the public order, but they`d step in iI it was
unreasonable.
Why doesn`t the court spend a lot oI time on the issue oI equality?
4 Plessy doesn`t want equality oI Iacilities; he wants to get rid oI separation.
Dissent, Harlancolor blind constitutional line/ purpose-based test proponent:
4 He says everybody knows this statute wasn`t intended to keep white people out oI the black car,
but to keep blacks out oI the white car. In Iact, black are allowed in the white car iI they are
nannies. OI course this was to annoy or oppress.
4 Our Constitution is colorblind and doesn`t tolerate classes among citizens.
No legislator should consider race when making a law.
4 Thinks this opinion will one day be regarded with as much contempt as Dred Scott.
4 Note: Strangely has contempt Ior Chinese, counts them as a separate class- apparently
sometimes can draw lines based on race. They`re non-citizens and they can ride.
4 If turning on the realities of social views, it would invite cts to become intimately unfamiliar with
reality on the groundhard to administer the reasonableness test.
4 Purpose-based test proponent: iI laws are designed to keep one race in a position oI
inIeriority..which seems to suggest govt can draw lines based on race when purpose is
otherwise. But, still administrability problem: have to inquire into legislative space- same prob

II. Initial Attack on 'Separate but Equal: Road to Brown...

Several cases between 1938 and 1954, Court Iound that states denied EP by Iailing to provide educational
opportunities Ior blacks that were available to whites. Involved opportunity not the question oI separate but
equal.

Cumming v. Board oI Education, Harlan, 1899
- Blacks have to pay taxes, but their children don`t get to go to the high school. They want to stop paying
those taxes.
- Harlan says you didn`t bring the right challenge. You don`t want to take high school away Irom the
white kids; you want to bring high school to the black kids. Bring a claim about the maintenance oI the
black Iacility.

State oI Missouri et. rel. Gaines v. Canada, Hughes, 1938
- Gaines wants to go law school but is denied Irom St. Univ. oI MO because he`s black. State agrees to
send him to a law school in Iowa. Brings a 14
th
amendment claim.
- Issue: Is separate law schools equal?
- Holding: Outsourcing black students does not remove discrimination.
o They kind oI overrule the practice of deferring to the legislature on equal protection like
they did in Plessy. Now the court is going to decide on what`s equal, internally.
o Even iI quality oI education equal, Gaines points to intangible things.
- It`s an individual, not a collective right, so the state can`t say 'sorry it`s ineIIicient, we`re outsourcing
to Iowa. Even iI Mr. Gaines was the only black guy in Missouri to ever want to go to Law School, they
have to accommodate him.
- Provide to whites, have to provide to blacks
- Note: court doesn`t tell HOW they need to accommodate. Doesn`t tell us whether he has to be admitted
to that school.

71
Sipuel v. Board oI Regents, 1948:
-Blacks due a right to a sound legal education under state law iI it`s provided Ior other races.
-Ct completely ducks issue. Court says need to admit blacks or build new school.
-P said that new school wouldn`t be equal, but Supreme Court says that this is not question at issue.

Sweatt v. Painter, 1950: UT set up law school Ior blacks while letting the case play out in Courts
-Library at Black Texas Southern Law was inIerior and UT had more/better proIessors
-says that intangible Iactors must be considered as 'substantive quality-not want to be isolated Irom peers
- Court said it`s not the same because there isn`t the same library, Iaculty, alumni, prestigequalities that make
Ior greatness in a law school. Looked at the intangibles. Ct finally embraced implications of logic from Plessy
about separate being ok- has to be equal protections of the laws

McLaurin v. OK State Regents, 1950 (Same day as Sweatt):
-Black man wanted to go to Oklahoma graduate school even though integrated classrooms were illegal
-COA allowed him, SC aIIirmed
-Then Ok State made him sit in special seat, at special table at lunch, at special table in library.
-Argued that this violated his protection under 14
th
Amendment
-Court said no, once blacks admitted to previously all white school, university cannot make them segregate
because it hinders student`s ability to learn. More to education than the tangible, objective things.
-Irrelevant that he may be no better oII iI restrictions are removed
-State school, blacks must receive same treatment as whites
Summary: Equal protections are individual rights (Gains) and how states respond is irrelevant- ct won`t deIer to
legislative decisions about reasonableness. Ct taking on role oI policing Ior equality by examining educational
experiences that individual Ps are getting in their schools. BeIore Brown, it was an individual right and separate
could never be equal.
-STARTS POLICING WHAT CONSTITUTES 'EQUAL

Brown v. Board oI Education oI Topeka, Brown I, Warren, 1954:
- Facts: Black minors seeking aid oI courts in obtaining admission to public schools. Denied admission
under laws requiring segregation. Claim is that it deprives Ps oI equal opportunity.
- What does history tell us about school segregation?
o Public school has Iully developed to become an integral part oI society. When the Constitution
was written public school wasn`t as prevalent or important. In the South it was mostly private
school and sometimes against the law Ior blacks to be educated. In the North the curriculum was
rudimentary and sometimes only held Ior 3 months out oI the year. Times have changed and
now education is perhaps the most important Iunction oI the government.
- Issue: Does segregation oI children in public schools solely on the basis oI race, even though the
physical Iacilities and other 'tangible Iactors may be equal, deprive the children oI the minority group
oI equal educational opportunities?
- Holding: Yes.
o Separating black children solely because oI race makes the Ieel inIerior which aIIects them
detrimentally emotionally and intellectually.
o RULE: Separate education facilities are inherently unequal.
Analysis:
4 EIIects Test: court implements test to look at results oI segregation to determine equality.
Problem with segregation is that it produces sense oI inIeriority poor results.
BUT: what iI it can be proven that separate is better? Would that make it Con?
This is a criticism oI the opinion: why didn`t they just say that separate was immoral?
Under their logic, iI you can prove separate leads to good results then it would be
Constitutional.
4 Legislative Intent: we don`t allow line drawing when it creates sense oI inIeriority.
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4 Social Stigma: when government draws line based on race, it creates social stigma.
4 Equality: how does the ct look at equality?
Abandoned equality: no good metric Ior equality, so just gave up.
Promote Equality Through Back Door: iI we assume legislature is dominated by white,
they`ll give good Iacilities to white students. To get equality, we should take down the
wall and Iorce them to spend money on all.
4 Looking at Brown:
Result Based
Functional Based
- Does Brown overrule Plessy?
o II separate can never be equal, then Plessy is overruled.
o But, the court spends a lot oI time talking about education.
This is because they think education is really important and segregation produces bad
outcomes. But do separate train cars produce bad outcomes?
This is effects test. The means are not important it`s the ends that are. Sooo.iI in
today`s world segregation would produce good eIIects, is it constitutional?
- AIter Brown, a bunch oI desegregation per curiam decisions took placegolI courses, beaches,
bathhouses. Court just cited Brown. We had a long discussion about how to square this. Where does
the court say anything in Brown about golI courses? How did they extend this when the Brown opinion
was so narrowly tailored to talk about education? I think it was more about badges oI inIeriority that are
not helpIul to society.
- Overall: (1) Brown was less about separate, more about equal
- (2) Maybe Iorced integration
- (3) Maybe just getting rid oI segregation

Thomas (even part oI the case??): buys results not reasoning oI Brown. Doesn`t think it has to do with the
outcome, but rather, a color blind C. That`s the problem with Brown. Doesn`t matter who losers are. Just
matters that they drew a line.

Ginsberg (where`d he come Irom?) : maybe we read the 14
th
to say govt can`t draw lines on basis oI race when
lines are intended to perpetuate existing caste system. II that`s the rule, then it`s ok Ior govt to draw lines based
on race even wrt education as long as intention isn`t to keep one class inIerior.

Court can`t decide how to Iix the problem so they wait a year on the remedies question.

Brown v. Board oI Education oI Topeka, Brown II, Warren, 1955
- Issue: What does Brown require? What does Brown hold?
- Schools must make a prompt and reasonable start to admit students non-discriminatorily with all
deliberate speed.
- Must be a good faith attempt to comply with Brown I.
o What might they have done?
II only 2 schools in a jx, could assign by neighborhood; lottery system; Ireedom oI choice
plan (deIault to old school, Iree transIer available)..as long as all are race-neutral
Another view is that they had to do something to solve the problem. What iI taking down
the line isn`t the solution? Under obligation to produce integration?
o Two readings oI Brown 1:
1. Remove segregation- probably iI you read a narrow holding that sep but equal is no
longer C, but nothing said about actual segregation. II the harm is a stigma Irom govt,
then once the govt has removed its line, maybe all you have to do is take down the line.
2. Produce actual integration- probably iI you Iocused on the eIIects oI segregation.
4 What did they have to do?
73
Do they have to take aIIirmative measures or just remove barriers?
O Removing lines is simple and less demanding than enIorcing integration.
O Immediate integration may have created civil striIe.
O As a result oI delay, none oI Ps got any relieI. Thus the individual right didn`t get
vindicated.
What happens aIter Brown?
4 Political opposition: thumbed noses at Brown.
4 Massive conIusion as to what Brown required.
4 White Flight: Supreme Court has held you can`t do cross-district remedies. You can`t Iorce a
suburb that has never segregated to cross-bus. II there is no de jure segregation, you can`t do a
cross-district remedy.
4 Really, the SC doesn`t tell what was meant until 10 years later.
4 Civil Rights Act oI `64: is when Congress Iinally steps in. Upholds Heart oI Atlanta on
commerce clause grounds/spending provision. II you`re an entity that gets Iederal Iunding, you
can`t discriminate on the basis oI race. Almost all school districts take Ied Iunding.
Executive: in 65implements regulation that you actually have to produce ground
results. Whether there`s actually integration is how it will be measured.
1968: SC blessed what exec had done in a direct C challenge.
Freedom oI choice plan- assign to original school but you could transIer (Green). Only
resulted in 15 less at black school- not enough.


74
What is the actual holding oI Brown?
- Government can establish racially discriminatory schools.
What is the actual holding oI Brown II?
- School districts have to make a good Iaith attempt to comply with Brown I. They have to make
a prompt and reasonable start to end segregation with all deliberate speed.
- What does that mean?
o Give every student a choice oI which school?
o Create a sorting mechanism?
o Draw district lines without taking race into account?
o Do e have to achieve integration? Do we have to create a school district that reIlects
the racial make-up oI the community?
Neither Brown I nor Brown II answers this question.
Maybe you need some time to Iigure out how to Iigure everything out, but how
much time?
O Last school was desegregated in 1972. Do you need 20 years? Probably
not, but maybe you need 20 years to let the idea oI segregation settle in.
Could Congress have used 5 oI the 14
th
Amendment to do this in the 1950s?
O Boerne: Congress can`t determine the substantive meaning oI the 14
th

Amendment.
O Boerne raises questions, but on the other hand we`ve got a whole series
oI cases in the education context post-Plessy (McLuarin, Sweatt, etc.).
Congress could have looked at the school district and said the schools are
not equal and done it Madison style on a remedial basis.
Congress didn`t do this, so it took a while Ior the public to catch up the Court`s
holding.
O There was massive Southern resistance.
O President has to send in the troops.
O Ultimately, in 1964, Congress ends up getting involved to encourage
compliance in the South. Civil Rights Act gives the attorney general the
right to sue districts who don`t comply. Also uses spending clause
districts who don`t desegregate don`t get Iederal Iundsthis is what
Iinally causes the schools to get moving.
O Then Health, Education and WelIare departments says no money until
you integrate. Then a bunch oI litigation comes in about what the
Constitution requires.
O Green v. County School Board, Sup. Ct. says 'choice plans may not be
ok. This particular one is not ok because there is no real choice. There
were a whole bunch oI legal and social impediments keeping black
students Irom enrolling in the white school. Also, equal protection might
be violated iI it Iails to produce integration.
O Is there a Morrison/Civil Rights Cases problem? The court can`t target
good and bad states, but have to target only the bad states.
Strauder v. West Virginia, 1880
Facts: Black man convicted oI murder beIore an all white jury. (statute about only white males to serve on
juries). Strauder claimed that his conviction by a jury chosen pursuant to this provision violated the 14
th
Am.
Issue: whether by the C every citizen has a right to a trial oI an indictment against him by a jury selected and
impaneled w/o discrimination against his race or color.
Purpose oI 14
th
: was to protect blacks when eventually they`d be Iree
Ct: West Virginia statute about juries totally discriminatory
75
Ct: doesn`t make sense to say that every white man is entitled to a jury without discrimination against his color,
why a Black man is not

Korematsu v. United, States, Black, 1944 |** announces the SS test!; anti-cannon|
Facts: Middle oI WWII and there`s an executive order authorizing military commanders to prescribe military
areas Irom which all persons may be excluded and can only enter subject to restrictions. Then Congress made a
law that said nobody can violate an order oI a military commander. Government made all Japanese report to
assembly center. Korematsu was tried and convicted Ior remaining in home contrary to exclusion order. He
sues saying you can`t convict me cause it`s against the equal protection clause.
Language oI the amendment says 'No state shall deny.
So the equal protection clause does not apply to the Iederal government. The only case that reads the
14
th
amendment into the due process clause is Bolling v. Sharpe making it somewhat applicable to the
Iederal government. The case incorporates the 14
th
through the 5
th
to apply to govt. even though really
THIS case was before Bolling. nd this case clearly applies fed equality norm to fed govt
Issue: What is the test Ior the validity oI statutes that discriminate on the basis oI race?
Holding: Justice Black`s test.
4 Race based classiIications are immediately suspect and will be looked at with SS.
4 They can be ok sometimes iI the ends are closely tied to the means
~All legal restrictions which curtail the civil rights oI a single racial group are immediately
suspect. That is not to say that all such restrictions are unC. It is to say that cts must subject them
to the most rigid scrutiny.
4 Strict Scrutiny:
(1) Compelling governmental interest (~pressing public necessity)
O This is a pressing public necessity in preventing invasion/sabotage.
(2) Government must use the least restrictive means necessary to achieve the interest.
Definite and close relationship b/ the means and interest.
O Court deIers to the military`s judgment that at least some citizens oI Japanese
descent are going to be disloyal. There is no way to sort them, so we have to
round them all up.
Note: govt carries the burden oI convincing ct that it`s a compelling govt interest.
This case is part of the anti-cannon! In the anti-cannon is also Dred Scott and Lochner.
This opinion goes against the prevailing orthodoxy.
O Category Ior Japanese ancestryboth over/under inclusive.
O Doesn`t draw a close relationship
O Germans/Italians were given process to prove loyalty. (tho process still doesn`t
make the Iirst cut C).
4 What is the sin oI Korematsu?
Maybe they shouldn`t have deIerred to the military`s opinion that it was necessary.
Maybe they shouldn`t have deIerred to the military`s opinion that it was too hard to
distinguish between loyal and disloyal.
4 During this time Italians and Germans were also interned. But they were given a chance to
denounce their other citizenship and were given a minimum individualized process.there had to
be some reason to expect disloyalty.
Does it make Korematsu ok to say that at least you get a minimum oI an individualized
process?
O Maybe the problem is they are using race at all.
4 It`s not that we can never look at race, but there are deIinitely certain
places where we can`t.
O Maybe Congress has to suspend the writ in anticipation oI invasion.
76
4 Suspending the writ means they don`t have to deliver the body and the
courts won`t look into the reason oI detention.
O One possibility: treat everyone equally.round everyone up OR do it randomly
Or don`t do it al all. Though none likely, it would be equal.
Dissent (Murphy):
4 'It is essential that there be limits to military discretion, especially where martial law has not
been declared.
4 Necessary that the action have some reasonable relation to the removal oI the dangers oI
invasion, sabotage, and espionage.This had no reasonable relation b/w group characteristic oI
Japanese Americans and dangers oI invasion, sabotage, and espionage.
4 Motivated by prejudice/racial antagonismcompare to Germans, Italians, etc.
Dissent (Jackson):
4 A military order, however unconstitutional, is not apt to last longer than military emergency (by
1944 the emergency was over).
4 Not the judiciary`s role to approve military orders.
What does Justice Jackson think the military should have done?
O Maybe it shouldn`t have been ordinary Article 3 court.
O Maybe should have had a military tribunal or suspended the writ.
Lesson oI Korematsu:
Government can`t take account oI race without a compelling reason.
II government draws distinction on race, must undergo strict scrutiny.
O Compelling governmental interest.
O Narrowly tailored.
Government has the burden on both prongs.

Why Strict Scrutiny Ior classiIications based on race:
4 Immutability: Constitution Iorbids discrimination over something a person cannot
control/change'accident oI birth.
4 Irrelevance: Race is rarely relevant to any legitimate govt. purpose.
4 History/purpose oI the 14
th
: trying to protect blacks Irom unIriendly actions in the states where
they were residents.
4 Political process concerns: Carolene Products Iootnote 4court should step in to protect
'discrete and insular minorities who have no representation in the political process.
4 Moral norms: the prohibition against racial classiIications goes against Iundamental moral
norms.
4 History oI disadvantage/racism.
4 Minority/majority groups might switch.

Loving v. Virginia, Warren, 1967
Issue: whether a statutory scheme adopted by the state oI Virginia to prevent marriages b/w persons solely on
the basis oI racial classiIications violates the Equal Protection and Due Process Clauses oI the 14
th
Am.
Supreme Ct oI Appeals upheld statute`s constitutionality: that the statute served legit state purposes oI
preserving racial integrity oI citizens and preventing corruption oI blood.
State argues that by equal protection, they just have to punish equally.
Holding: The Court declared Virginia's anti-miscegenation statute, the "Racial Integrity Act oI 1924",
unconstitutional, thereby ending all race-based legal restriction on marriage in the United States.
'There can be no doubt that restricting the Ireedom to marry solely because oI racial classiIications
violates the central meaning oI the Equal Protection Clause.

b isparate Impact
77
Stone pp 542-543

The Req`t of a Reasonable Relationship
- II no classiIication based on race, then you get rational basis revieP has to prove elements:
4 Legitimate Governmental Interest. (ask: within police pwr? Within congress` ability to
regulate IC?... usually hard to Iail unless maybe trying to regulate something beyond commerce
pwr. Loving could`ve been decided under this test)
4 Line drawn must be Rationally Related (b/w means and ends. Just need a close-enough Iit.)
- NY City Transit Authority v. Beazer, 1979
4 Facts: NYTA Iires all narcotics users, blanket policy applying to all jobs at transit. Beazer is
heroin addict in methadone clinic, there is evidence that he is recovering. Beazer Iired Ior
methadone use.
Beazer argues that the law is (1) overinclusive: applied to all jobs (where concern is Ior
saIety) and draws line between narcotics and non-narcotics users and (2) underinclusive.
4 Holding: SCOTUS says not unreasonable to exclude these people iI there`s a rational
relationship between law and government`s purpose. Here there is rational relationship between
narcotics use and saIety. The government is ALLOWED to be over and underinclusive.
Allowed to make broad overgeneralizations as long as they don`t Iall under certain categories,
i.e. race. Means-ends Iit is close enough Ior rational basis.
Government doesn`t have to micromanage every single decision.

Why doesn`t this apply to race? Why does the government have to micromanage with respect to race?
- History or Race Discrimination: 14
th
amendmentrace occupies a special place in our constitutional
scheme while other categories (such as age) do not. Pervading purpose was to ensure a system oI
equality oIr newly Ireed slaves/descendants.
- Morality: 14
th
Amendment makes a moral judgment about drawing lines based on race.
4 Maybe the Constitution is color blind (Harlan).
- Immutability: we don`t think the govt should be able to draw lines based on things ppl can`t change.
a. but, what about other immutable characteristics? High IQ? Athletic ability?
- Irrelevance oI Race: Race as a classiIication is not rationally related to many legitimate government
interests.
- Race has a lot oI social teeth: historically has doled out beneIits Ior bad results.
- Political Process Rationale: normally we trust the political process to dole out burdens and beneIits.
Court doesn`t get involved when groups are represented in the political process, because we trust the
political process. But we`re worried about political process Iailure with discrete and insular minorities.
4 Requires us to (1) assess the relative political strengths oI groups and (2) that groups are united
and vote together.
4 Powell in Bakke: maybe the law changes when the political process/power works itselI out.
4 Carolene Products, Iootnote 4: Discrete and insular minorities might deserve extra
protection by SCOTUS.
Must be discrete and insular in way that you have no access to channels oI political
power.
NO COALITION BUILDING: insularity has to do w/ not being able to associate or no
one wanting to associate w/ you.
- Creates social ineIIiciencies: you might cut out the best people Ior the job.
- Social salience: maybe it`s stigmatic to draw lines based on race, while other lines aren`t so stigmatic.

ClassiIications That are Facially Neutral with a Discriminatory Impact or Administration

When is strict scrutiny triggered?
Washington v. Davis, 1976
78
- Facts: Applicants Ior DC police Iorce are required to take entrance teststatistics revealed that blacks
Iailed exam more Irequently than whites. Because oI this, P said administration of test is racial
classification, thus strict scrutiny should be applied here.
- Holding: Court says test is constitutional. Not enough that one race Iails test more oIten, even iI
minority race. Disparate impact does not trigger SS. Facially neutral laws as to race and national
origin will receive more than rational basis review only if there is prooI oI discriminatory purpose.
- Rational Basis test: educated work Iorce is a rational relation.
4 Rationale:
Purpose oI EP is stopping discriminatory acts not bringing about equal results.
Anytime you have Ilat Iee, will have disparate impact on minorities. Turns presumptions
oI capitalism on head iI we were to base EP on disparate impact.
Awareness and purpose hard to prove.
O DISPARATE IMPACT MAY BE evidence.
Point:
- II there`s intent to burden a particular racial group, that will give rise to strict scrutiny.
- The mere fact that there`s a disparate impact is not enough.

Village oI Arlington Heights, 1977
- Facts: City wants to build multi-unit, low income housing and applied Ior rezoning. At the rezoning
hearing people claimed that the new housing was inconsistent with the housing plan they relied on,
would cause a loss in property value, and would attract poor blacks. Rezoning Iails.
- Issue: Does strict scrutiny apply?
- Holding: No. The Iact that some people made racial comments is not suIIicient to show that they
reIused to rezone on the basis oI racial discrimination. Knowing there will be a racial impact still isn`t
enough. There were a lot oI diIIerent Iactors that made rezoning a bad idea.

II the law is neutral on its Iace, then P has to overcome the Washington v. Davis assumption that rational basis
standard applies by showing that the law has a discriminatory intent. Has to be a motivating factor. II there are
5 reasons but race is not the main reason, that might not be enough.
- This is very diIIicult to do. Could look at legislative record. Sometimes intent can be inIerred Irom
impact, sometimes it`s so stark.
- Unclear whether it`s unC iI there`s a race motive but no disparate eIIects. Ex: case that closed all the
swimming pools. aIIected everyone equally. Ct argued there that intent w/o eIIect isn`t enough.
- Is this rule correct?
4 This probably allows the government to get away with a lot because intent is very hard to prove.
4 On the other hand, iI the impact on the racial minority is great, then you might be able to inIer
intent Ior eIIect.

You can also have an equal protection claim iI the law is applied discriminatorily. Discriminatory application
on racial lines ill also trigger strict scrutiny.

Yick Wo v. Hopkins, 1886
- Facts: City ordinance requiring laundries be located in brick or stone buildings unless waiver obtained
Irom board oI supervisors. P showed that over 200 petitions by Chinese rejected while all petitions Iiled
by non-Chinese granted. Yick Wo convicted Ior violating ordinance.
- Holding: Conviction reversed. SCOTUS says whatever the intent, ordinance was applied by state with
mind 'so unequal and oppressive as to amount to practical denial by State oI EP oI law.
- The guarantees oI equal protection 'are universal in their application to all persons within the territorial
jx, w/o regard to any diIIerences oI race, oI color or oI nationality; and the equal protection oI the laws
is a pledge oI the protection oI equal laws.

79
Why do we have a rule that says even when the law creates a disparate impact its ok, so long as its not
intentional and equal in application?
- Because otherwise we couldn`t have taxes or social security.
- A flat tax would be unconstitutional because oI the correlation between wealth and race.
- On the other hand, isn`t it true that wealth inequality in this country is in Iact a creation oI government?
It was created by slavery, Jim Crow, etc. So maybe Washington v. Davis is wrong, as it assumes that
wealth inequality is just the way it is, and in actuality its really government created.
- Which rule will lead us to where race doesn`t correlate with wealth?
4 One camp thinks the only way to get rid oI race saliency is to take account oI race aIIirmative
action.
4 The other camp thinks only way to get rid oI race saliency is through Harlan`s color blind
Constitution.
c ffirmative ction
Stone pp 578-589, 594-611

Regents oI the University oI CaliIornia v. Bakke, Powell, 1978
- Facts: Bakke applied to UC Davis Medical School twice and both times rejected. Special program
saved 16 out oI 100 seats only Ior minority students. Bakke brought case to court claiming he was
denied equal protection of la and argued that special program oI UC Davis was unconstitutional
under the Civil Rights Act of 64.
- Holding (Powell): CA Sup. Ct. court enjoined University Irom ever using race and ordered that Bakke
be admitted. SCOTUS held that Bakke needed to be admitted.
4 Stigma: any person denied admission on base oI race will have stigma. Bakke shouldn`t have to
compensate Ior things that are no Iault oI his own.
4 Strict scrutiny should be used because any racial distinction is suspect. Emphasizes that the
problem is classiIication (doesn`t matter who`s on what side oI the line), not the class. (**current
doctrine)
Compelling State Interests:
O meliorating past discrimination: No. Remedying past societal discrimination is
not a compelling state interest. You can only remedy past discrimination iI there
was past discrimination at your particular institution. Can`t remedy past societal
discrimination. Not compelling because it discriminates against people like the
deIendanthe has an individual right and shouldn`t have to pay the price Ior
society`s past discrimination. Powell says race can be taken into account in
certain ways:
4 School desegregation: can remedy past discrimination, but it has to be
past discrimination by the particular institution. We don`t have that here.
Court buys this argument in later cases.
O Serving underserved minority communities: no evidence that race can be used as
proxy Ior serving underserved communities. Not a tight Iit.
O iverse Student Body: Yes``` (important for Grutter case), b/c the selection oI
its student body is special concern oI First Amendment. Race can be a Iactor,
BUT this set-aside scheme is no good. Powell really likes Harvard`s plus system.
4 BUT: fit isn`t tight enough. Harvard plus system is TOTALLY
GOLDEN.
4 Diversity in education is a compelling end oI gov`t
4 This program isn`t suIIiciently narrowly tailored
4 There`s more to diversity than just race
4 Should beneIit Ior other Iorms oI discrimination
- Dissent (Brennan): Brennan wants intermediate scrutiny which requires:
80
4 Serves important governmental interest.
4 Substantial relationship between means and ends.
Wants less than strict scrutiny because he says there is no stigma and the purpose is
benign. No suggestion that univ drew line to send message oI racial inIeriority.
Thinks it can be used as a remedial purpose Ior past discrimination (end oI govt). Ask
WHO.
Burdened class (whites) don`t bare any indicia oI suspect-ness. No history oI purposeIul
discrimination, no history oI political powerlessness, iI majority brought it on itselI, court
doesn`t need to step in to correct the political process like it does when the minority is
stepped on. |Whites are not discrete and insularthey`re a well-represented minority.|
Also says that this is not a Iundamental right and that Bakke can take care oI himselI
(Carolene). Thinks judiciary is capable oI drawing hard lines.
O Powell: Carolene may apply, but judiciary has no principled basis Ior deciding
which groups would merit 'heightened judicial solicitude and which would not.
- Note: Rational basis standard requires:
4 Legitimate government interest.
4 Rational.

Note: ** aIter Bakke, we get a case saying the rule is SS whenever govt draws a line based on race. For strictly
scrutinizing the CLASSIFICATION, not the class.

Grutter v. Bollinger, O`Connor, 2003
- Facts: U oI M law school admissions oIIicers were directed to take into account grades and LSAT
scores, but nothing makes automatic admission or rejection. Instead, look at recommenders, course
selection, and stress diversity. Grutter denied to law school. Argued rejection was based on race and
violated EP.
- Holding: Policy does not violate 14
th
Amend. Applied SS. According to Bakke, diversity in schools is
compelling state interest. This is tailored enough because it`s just one consideration when judging
applicants.
4 Taking race into consideration when doing an individual holistic review
4 An individual can have many attributes considered, sometimes we want race to be taken into
account as part oI diversity oI liIe experiences
4 We have no idea to how much stock law school is putting in
4 Court does not want individuals to be pigeonholed into a race slot, Iorbidden my strict scrutiny
4 MLaw says we need to have than only a Iew members oI a minority, people might assume that
that one person represents entire group
4 Can`t transparently draw racial classiIications around people
4 Also don`t use speciIic numbers 16 bad, 13-20 good
4 Court gives deIerence to the law school`s position that diversity in education is compelling, that
it`s about the composition oI the classroom/robust exchange oI ideas, not remedying past societal
discrimination.
4 Similar to how they gave deIerence to the military in Korematsu.
4 Critical mass ok. more than a token amount. Flexible.but Iixed?
- Dissents:
4 Rehnquist: Disproportionate # Blacks v. # Hispanics. Strong correlation b/w applied and
admittedshows some sort oI strategy. Obscureused enrolled rather than admitted stats. No
precise time limit (sunset).
4 Kennedy: Narrow Iluctuations imply program subverted individualized determination. Lose
talent by doing so. Consideration oI race is against Constitution.
4 Scalia: Will be so many suits iI permit diIIerent kinds oI racial discrimination.
4 Lawsuits will Iocus on the right thing
81
4 'Critical mass could turn into quota-like system
4 Law schools say they want diversity but don`t Ioster it within the school
4 Thomas: Need pressing public need. NO need in maintaining elite school or a law school in
general. Gives too much deIerence. Berkeley did it, why can`t U oI M? Stigma to blacks, Ialse
hope, etc. Doesn`t have to be elite school, iI they really cared they`d drop standards and have it
be truly diverse. Not merit based as it is (legacy). Should stop using the LSAT which
discriminates

Gratz v. Bollinger, Rehnquist, 2003
- Facts: U oI M undergrad admissions program ranked according to 150 point scale. Students over 100
admitted while students under 75 rejected. Up to 110 points Ior grades, 40 Ior nonacademic. Residents
10, alum 4, essay 3, achievement 5, and 20 iI underprivileged minority.
- Holding: Does violate 14
th
amend. While diversity is compelling, point system is not narrowly tailored
enough. Like a quota system. Need individualized review. QuantiIying race in any was is
unconstitutional.
- Concurrence (O`Connor): Does not individually assess.
- Dissent (Souter): How is this diIIerent Irom assigning points to other things? Only diIIerence is that
there is candidness on how they are admitting.
- Dissent (Ginsburg): Can Iind other ways to see iI minority. Will achieve same goal but more discretely.

Parents Involved, Roberts, 2007
O oluing: piohibiteu assigning stuuents to public schools solely foi puipose of achieving iacial
integiation anu ueclineu to iecognize iacial balancing as a compelling state inteiest.
4 Compelling state inteiest. Aigueu that they weie looking foi class balancing, so it lookeu
like eattle. Looking to iacial uiveisity. Anu looking to inculcate citizenship values.
. not a compelling state inteiest that woulu justify assignment of school states on
basis of iace.
aiu the way to get iace out of consciousness is to take iace out of oui consciousness
aiu it makes ppl feel bau anu has to be facially neutial.
O Concuiience- Kenneuy: moie naiiow inteipietation, that schools may use "iace conscious" means
to achieve uiveisity in schools but that the schools at issue in this case uiun't sufficiently naiiow
tailoiing of theii plans to sustain theii goals.
4 Case uiffeient fiom iown, bc it uiun't iesult fiom VWa^Wstate sponsoieu) actions.
4 hinks we shoulu uistinguish bw VWa^Wv. VWXSU`[ segiegation (can't iemeuy that).
4 he only one who likes uiuttei
O Bissent: acknowleugeu that the C uoesn't impose a uuty to uesegiegate the uistiicts if they have
not piacticeu iacial uisciimination. ut, the C uoes peimit uesegiegation even though it uoesn't
iequiie it.
4 Wanteu nteimeuiate ciutiny, but applieu .
4 aiu the way to take iace out of oui consciousness was to use a iace means to uo so.
4 houlu be able to iemeuy the ue jue segiegation.

B pplying the EP Clause to Classifications Based on Sex
Stone pp 622-649

Standards oI
Review
Rational Basis Intermediate
Scrutiny
Strict Scrutiny
What Interest? Legitimate Important Compelling
What Relationship? Rational Substantial Necessary
82
Whos Burden PlaintiII`s Government`s Government`s

How is sex discrimination like or unlike race discrimination?
- Immutable and not relevant.
4 Maybe more relevance in diIIerences between men and women.
- Framers oI 14
th
did not enIranchise women.
- Stigma: when gov`t draws line based on race, sends message that one race is inIerior. But when gov`t
draws line based on sex does not immediately lead to suspicion.
- Women and men not always similarly situated
4 Some characteristics have relevance to some government actions. Not necessarily passed out oI
animus but passed as result oI diIIerence between genders.
- History oI discrimination is similar.
- Political Process: Carolene Products
4 Not discrete and insular minority and all men have women in lives. HOWEVER just because
majority in number, doesn`t mean majority as Iar as political power. They may not be insular as
there might be coalition building.
- Title VII: Congress thinks sex discrimination is bad. We should read that into our understanding oI EP.

Early Cases: Ior most part Rational Basis Review
For the most part, they were decided against the backdrop oI the Slaughter-House Cases, which gave an
extremely narrow reading to the 14
th
Am`s due process and equal protection clauses. The ct resisted application
oI these clauses to gender discrimination.
- Bradwell v. Illinois (1873): Sup. Ct. upheld IL law that prohibited women Irom being licensed to
practice law, said that practicing law was not a privilege or immunity oI national citizenship protected
under 14
th
Am..P/I.
4 Bradley concurring (dissenting in Slaughterhouse) said that women belong in domestic sphere.
- In re Lockwood (1894): Ct said ok Ior VA to exclude women Irom practicing law even though admitted
to bars oI SC and DC.
- Minor v. Happersett (1874): Upheld constitutionality oI excluding women voting (no woman`s vote
until 1920). But did acknowledge that women were 'persons and 'citizens within the meaning oI the
14
th
am.
4 Later overturned by the 19
th
amendment: the right oI citizens to vote shall not be denied or
abridged by the US or by any State on account oI sex.

The Road to Intermediate Scrutiny
Reed v. Reed, Burger, 1971 (RB)
O Facts: Idaho law speciIied hierarchy oI persons to be appointed as administrators oI estate when person
died intestate. Said iI there were two competing applicants in same category, male preIerred over
Iemale. Said that the law was just to settle the dispute, not to discriminate.
O Holding: Violated equal protection clause. Struck down law using rational basis. Said that
classiIication must be reasonable and not arbitrary. Must rest upon some ground oI diIIerence having
Iair and substantial relation to object oI legislation so that all persons similarly circumstanced shall be
treated alike. No relationship b/w gender and ability to administer estate. Ease oI administration not a
valid reason.
Frontiero v. Richardson, Brennan, 1973 (SS)
O Facts: Federal law allowed men to automatically claim wiIe as dependent and receive greater allowance
Ior medical beneIits, but Ior women to get beneIits, had to prove spouse was dependant.
O Holding (Brennan):
4 4 justices took position that gender classiIications be subjected to strict scrutiny. Sex is
immutable, like race, immediately visible and underrepresented in political process. Romantic
83
paternalism practiced in country which put woman not on pedestal but cage. Talks about Equal
Rights Amendment. Uses ERA as reason Ior heightened scrutinysex discrimination is
invidious. ERA and Civil Rights Act (Title VII) show that 14
th
Amendment should be read
broadly. There is an emerging awareness in the U.S. that women need special protection in
politics and we should read the EP clause expansively.
O Concurrence (Powell): Would invalidate on rational basis standard. Brennan jumped gun by talking
about ERA. The Iact that Congress proposed the ERA and that it didn`t get ratiIied shows that Congress
doesn`t already think gender equality is included in the EP clause. The ERA itselI would, iI adopted,
solve the issue. aybe Congress was fust making sure the Cts knew how to interpret it

Note. No one thought states couldn`t choose to enIranchise women, the q was whether they were compelled to
enIranchise women.

The Emergence oI Intermediate Scrutiny
- Requirement: State must prove
4 Important gov`t interest.
4 Substantial relationship.

Craig v. Boren, Brennan, 1976: (first case to recognize intermediate scrutiny for gender)
- Facts: OK law that allowed women to buy low alcohol, 3.2 beer at age 18, but men couldn`t until age
21.
- Holding: Sup. Ct. invalidates law, agreed upon intermediate scrutiny as appropriate level of revie
for gender classifications and declared that to withstand constitutional challenge, previous cases
establish that classiIication oI gender must serve important gov`t objectives. Although traIIic saIety is
important interest, Court concluded that gender discrimination is not substantially related. 0.18
Iemales and 2 males arrested Ior drunk driving. Correlation oI 2 must be tenuous Iit.
- Concurrences:
4 Powell: Stats don`t support position. No question oI legitimacy or importance oI asserted gov`t
objective.
4 Stevens: Statute not intended to deal with problem because men can still consume easily.
UnIairness in putting limits on 100 oI males when only 2 oI them drink and drive.
- Dissent (Rehnquist): (1) Men challenging get more stringent standard? (2) Standard never used beIore.
EP says nothing about important gov`t interest and substantial relation. Court is making argument about
due process regarding statistics not EP. No way to single out people who drink and drive which is only
option. Not just administrative convenience here.
- Note: Ior race we don`t care iI whites or blacks are being discriminated against, the same standard oI
review appliessame here. Whenever line is drawn based on sex, doesn`t matter whether burden Ialls
on men or women, same intermediate scrutiny applies.

U.S. v. Virginia, Ginsburg, 1996
- Facts: VMI is sole single sex school among VA`s 15 public institutions oI higher learning. US sued,
saying it was unconstitutional Ior state to maintain a male-only school. As result oI Ct. App order that it
violated the EP clause, established VA Women`s Institute Ior Leadership at Mary Baldwin College.
- Holding (Ginsburg): Formation oI VMIL insuIIicient to excuse gender discrimination. Women still
denied opportunity given to men. Applied intermediate scrutiny (Brennan`s idea Ior Bakke about
benign racial classiIication), said to deIend gender-based gov`t action, must demonstrate 'exceedingly
persuasive justiIication and must not rely on overbroad generalizations about diIIerent talents,
capacities, or preIerences. Based entirely on gender stereotypes. Single sex school may be good Ior
some situations. Might have to make some changes, but that`s Iine. Sweatt.
4 VA important interests (639/40):
1. Single-sex opportunities Ior higher education.
84
2. Having single-sex institution allows Ior diverse education opportunities.
3. BeneIits oI adversarial teaching: break down the male ego and bring it back up,
complete lack oI privacy.
4 Ct. responses:
12: while important, you haven`t proved that they are not post-hoc rationalization and
actually the real reason. (tho would`ve been ok Ior RB)(640-A)
3. Ct says you can maintain adversative method. Yes, you`ll have to make some changes
regarding privacy, housing, and physical requirement, but that`s ok since it wasn`t an
important governmental interest. Letting women participate is a more important interest.
- Note: in intermediate scrutiny, the gov`t is allowed to make a Iew broad generalities a/b sex, not none as
in strict scrutiny, or many as in rational basis. But here, the Court does not allow the generalization that
all women wouldn`t like VMI`s method.
- Grutter is diIIerent b/c they were classing out ALL women, MLaw was doing indiv assessment. For
Ginsburg, it`s about GROUPS. II there`s one woman who can make it, you have to let her.
- Concurrence (Rehnquist): Craig set up test. Sup. Ct. says need to show exceedingly persuasive
justiIication to support gender based classiIication, but test is really uncertain. Only way to get out
would be to create institute oI same quality and caliber. Cannot assume demand based on stereotypes.
VMIL Iails because inIerior to men`s institution.
4 Thinks that state can take advantage oI broad generalities, iI they are correct. DiIIerent is okay as
long as you put equal resources into it. II VWIL at UVA would serve more women than VMI,
then this is something to consider. In other words, serving the most women is something worth
consideringnot pure Iormal equality.
4 Problem: provides no remedy Ior those who would beneIit Irom adversative training and leaves
intact gender stereotypes that reinIorce existing gender roles.
- Dissent (Scalia): Rejecting Iinding oI gender based development diIIerences. Takes away tradition.
Deprecating closed mindedness with regard to women`s education but removing democratic process
written in Constitution. Inscribing current preIerences on all. No value to all men`s education, but
Constitution does not Iorbid.
- DiIIerent Visions oI Equality.
4 Ginsburg: color-blind. II one woman can succeed, state has to let her. Gaines. This is very
individualized and it is model oI equality that says: women have to be allowed the same thing
that men have.
4 Rehnquist: One possibility is to construct something diIIerent but just as good. VWIL is not
just diIIerent, it`s worse.
- Some argue that Ginsburg applied strict scrutiny in this case.

Mississippi University v. Hogan, 1982:
- The exclusion oI men Irom enrollment in Mississippi University Ior Women's nursing school violated
the EP Clause oI the Fourteenth Amendment.
- Ct. was very clear that even though there were other med schools available to the male applicant,
unequal b/c those schools were Iarther away.
- But also it disserves women b/c it reinIorces horizontal segregation in the work Iorce/nursing
women`s job.


Why Intermediate Scrutiny?
- Maybe gender is relevant to some things (like a bathroom), while race is never relevant.
4 Privacy reasons.
- Gender diIIerence may be real, while race diIIerences are not.
4 Biological reasons.
- Women are not discrete and insularthey make up at least the population.
85
- Adoption oI the 14
th
Amendment did not address gender classiIications. It`s main purpose was to aIIect
racial discrimination.
4 Originalist theory oI the 14
th
Amendment.
- Doesn`t an intermediate classiIication allow more benign discrimination Ior women than Ior blacks?
Yes, and the point oI the greater standard Ior blacks was to remedy past discrimination. But we think
that there`s a legitimate reason to discriminate on the basis oI gender in some circumstances. |?|

Note: rational basis group based; vs. strict scrutiny right to be seen as individual; question here is whether
we think gender should be a group right or an individual right?


C PRIJIEGES N IUNITIES CUSE OF THE 14
TH
ENENT
Stone pp 724-733

I. Background
4 14
th
Amend, 1: No state shall make or enIorce any law which shall abridge P or I oI citizens oI US.
4 Some argued that meant to apply Bill oI Rights to states.
4 Slaughterhouse cases read it into dormancy.
4 Rest oI 1 oI 14
th
:
4 Citizenship- oI US & State; overrules Dred Scott
4 P/I: has no meaning
4 Due Process
4 EP: in application to race/sex based variables

II. Debate over Framer`s Intent:
- Protect Iundamental rights Irom state and local interIerence.
- Already in Constitution (Art IV, 2): prevents state from denying citizens of other states P&I it
accords to on citizens.
4 CorIield v. Corvell (1823): Washington said P/I are meant to deal with protected rights which
are in their nature Iundamental which belong, oI right, to the citizens to all Iree governments.
That a
- All agree that meant to protect basic rights Irom state interIerence.
- Debate as to whether or not meant apply Bill oI Rights to the states.
4 Studied and said not the Iramer`s intent.

III. The Slaughterhouse Cases (Part 2), Miller, 1873
- Facts: LA enacted statute which (1) incorporated the 'Crescent City Live-Stock Landing and Slaughter-
House Company and (2) granted company exclusive right to engage in the livestock landing and
slaughterhouse business in geographical area that included New Orleans. Several butchers were
restricted by state and sued. Claimed restriction created involuntary servitude (13
th
Amendment),
deprived them oI property without Due Process (14
th
Amendment), denied EP (14
th
Amendment) and
abridged their P/I as citizens (14
th
Amendment) (the privilege to practice a trade or proIession).
- Holding:
4 State citizenship is diIIerent than Iederal citizenship.
4 Miller says Justice Washington was talking about privileges and immunities oI state citizenship,
not Iederal citizenship.
4 Miller says the privileges and immunities oI Iederal citizenship include the right oI protection, to
use courts, to use seaports, to use navigable waters, etc. (bottom p. 721/22)
4 That the right to practice trade/proIession is P/I under STATE citizenship but not guaranteed
under the 14
th
.
4 What is the problem with his logic?
86
The states were already prohibited Irom interIering with those rights via the supremacy
clause (beIore the enactment oI the P/I clause.
Basically, Miller drew a black line through the privileges and immunities clause in the
Constitution.
4 Article IV: privileges/immunities oI STATE citizenship. II a state grants privileges and
immunities to its citizens, it also has to grant them equally to citizens oI other states.
Ex: Ohio can`t deny Michigan residents who want to practice law in Ohio the right to
take the Ohio bar.
Why have in-state tuition: access to education is not a privilege and immunity oI
citizenship.
What is a privilege and immunity oI citizenship?
O See Justice Washington`s blurb on page 726.
4 14
th
Amendment: privileges/immunities oI UNITED STATES citizenship.
- Dissent (Field): Interpreted P/I clause in way that robbed it oI all meaning. II P/I interpreted as majority
says, it is a vain and idle enactment which accomplished nothing and most unnecessarily excited the
court.
4 Thinks should use supremacy clauseIed law supreme over conIlicting state law.

Criticisms:
- Some say the butchers in the Slaughterhouse cases were right.
- The 14
th
amendment was meant to protect Iundamental unenumerated rights.
- Some oI the Iramers thought the privileges and immunities oI the United States were the Bill oI
Rights and wanted to incorporate them against the states via the 14
th
amendment. (justice black) it
would be nice to just apply the entire time, but it`s hard to make the case that that`s what the Iramers
intended.
- Ultimately, the SC, through a series oI complicated cases Irom 1930 to 1970, take all oI the
individual provisions oI the bill oI rights and apply them against the states:
4 Exceptions:
2
nd
amendment right to bear arms.
3
rd
amendment right Irom quartering oI soldiers.
7
th
amendment right oI a jury trial
5
th
amendment grand jury provision.
8
th
amendment right against excessive Iines, but this is basically incorporated by
dictum.
- But the privileges and immunities clause, hich as originally thought to define
unremunerated rights of the bill of rights, has no meaning. It is an empty set.

- Analysis:
4 Why do we care?
Support that Iramers thought that was incorporating Art IV`s rights to 14
th
cannot treat
citizens diIIerently oI diIIerent states.
Nice Symmetry:
O P/I: legislatures.
O Due Process: courts.
O EP: executive.
4 II is substantive limit, what can`t legislatures do?
Whatever`s in Article IV.
Make valid Civil Rights Act oI 1866: guaranteed that P/I cannot be abridged on account
oI race.
Meant to include some undeIined natural rightscould grow.
87
Meant to incorporate Bill oI Rights to states.

SUBSTNTIJE UE PROCESS
Stone pp 741-755

I. Background:

Due Process Clause oI the 14
th
Amendment:

No state shall take liIe, liberty or property without due process oI law.
- LiIe, liberty or property is Iirst trick.
- We`re not talking due process unless liIe, liberty or property is involved.
4 LiIe: can`t execute without due process.
Tricky: right to die cases, abortion cases.
4 Property: real and personal, might mean labor welIare or state job.
4 Liberty: can`t lock you up without due process.
Hardest to deIine:
O Core: Ireedom Irom bodily restraint
O May include: Ireedom oI contract, Ireedom oI seeing how children are schooled,
reproductive autonomy.
- Some stick to original meanings, others say the Constitution can grow.
- Next, are we talking about procedural or substantive?
4 Procedural due process claim: Gov took away liIe, lib, or prop and didn`t give proper
procedures.
Law passed was not passed through proper procedures (bicameralism and presentment).
I didn`t get notice.
I didn`t get a hearing.
I didn`t get counsel or conIrontation or a jury, etc. Ex: Hamdi.
O In criminal law, Bill oI Rights tells us what we get.
4 Substantive due process claim: Did government have a good enough reason to take away your
liIe, liberty, or property? (Ex: Dred Scott- claimed Congress didn`t have a good enough interest)

- DeIining the Rt:
4 Originalism: what Iramers and ratiIiers meant by liIe, liberty, property.
4 Positivism: state creates additional property rights.
4 Textualism: Irom text.
4 Natural/Fundamental Rights: judges decide on natural rights.
4 Traditionalism: Traditions oI the American ppl should inIorm

4 Strict Scrutiny: when ct says govt interIered w/ FUNDAMENTAL RT
4 Rational Basis: when ct says govt interIered w/ NOT FUNDAMENTAL RT

Fundamental Right: Strict Scrutiny
- Compelling
- Necessary
* We saw some oI this in Dred Scott. Why
can`t government conIiscate SanIord`s
property? Moral opposition to slavery is not a
good enough reason to deny SanIord`s
property interest in Scott.
Non-Fundamental Right: Rational Basis
- Legitimate end oI government.
- Rational relationship between means
and ends.
* Not usually a hard hurdle, so your game plan
is to get the thing you want to be declared a
Iundamental rightstricter standard.
88


1 The Protection of Economic iberties

II. Lochner v. New York, Peckham, 1905 (SDP)
- Facts: NY law provides no employee shall work in biscuit, bread, or cake bakery Ior more than 60
hours in one week or more than 10 hours in one day. P said the law was unconstitutional because it
violated due process oI 14
th
Amendment because interIered w/ Ireedom oI K (liberty).
- What is at stake? Freedom oI contract.
- What is the constitution authority on this?
4 Not contracts clause. Ogden, Court held contracts clause only applied to pre-existing contracts.
But employment-at-will is a new contract everyday.
4 Common law has recognized this sphere oI individual autonomy.
Post-civil war ideas oI Ireedom to contract labor (anti-slavery).
4 This stuII inIluenced the justices even though some oI it isn`t in the Constitution (nat`l law
thinking)
- What is the compelling state interest?
4 SaIety
4 Health
4 II workers are too tired they could injure themselves or others.
4 Bakers have less bargaining power
4 II workers are overworked they will be less careIul with their product.
4 Court through Peckham says: no, this is purely and simply a labor law. You can`t just regulate
labor without a good reason. Your end can`t be 'to regulate labor. Why.
- Holding: You have to have a compelling interest to regulate labor because it infringes on the
fundamental right of freedom of contract.
4 Freedom of K is fundamental right: it gets strict scrutiny.
Allgeyer: SCOTUS accepts that the DP clause protected the right oI contract. (Seven
years earlier.)
Natural law theory.
Art I, 10 ('No State shall impair any obligation oI K which has been taken out by
judiciary).
Anti-slavery movement: north inIluenced by social mobility.
History: body oI precedent starting to recognize liberty oI K.
Laissez-Faire economics (John Locke Adam Smith) Ct actually just uses economic
view.
4 Gov`t can only interfere when serving valid police poer purpose (to protect public saIety,
health, morals).
Health: protecting health oI public and bakers not suIIicient. No relationship to public
health wholesome bread doesn`t depend on hours oI bakers.
O Distinguishes Hodel v. VA SurIace Mining: hrs important Ior saIety oI miners
Class that cannot contract for selves. Bakers are not wards oI state. They can protect
themselves in market place.
As Ior health concerns, no evidence that dirty bakers are making unhealthy bread
Even iI it was, other ways oI achieving this ie. Inspection oI break
Baking isn`t mining, not that inherently dangerous, iI you can regulate bakers you can
regulate almost every other proIession
- Dissent (Harlan): Need Ior judicial deference to legislative choices. Legislation was reasonable to
protect the health oI bakers who suIIered serious medical problems b/c oI exposure to Ilour dust and
intense heat. Average liIe expectancy is 50.
89
- Dissent (Holmes): No. We shouldn`t meddle in the public opinion oI New York. A reasonable person
could deIinitely make the connection between a shorter work week and health/saIety. Common sense
can see this connectioncites statistics and scientiIic evidence oI the dangers oI the proIession. He also
says reasonable minds could diIIer on this point. Let the legislatures do their work. II reasonable minds
could diIIer the court should stay outchanneling Thayer (he was Thayer`s student).
4 Peckham ignores this because he says iI we accept those connections then there would be no end
to the regulation oI labor. Slippery slope in evaluating the danger oI every proIession.

III. The Demise oI Lochner
- Lochner produced three main ideas:
4 Freedom oI K a Iundamental right.
4 Gov`t could interIere only to serve police power.
4 Judiciary careIully scrutinize legislature to ensure that truly served police purpose.
- Lochner era hand-in-hand with pre-New Deal jurisprudence (1905-1936).
4 Fed statutes being struck down Ior being against commerce clause.
4 At same time, state statutes being struck down b/c against due process.
- Shift in Ne Deal commerce clause jurisprudence puts enormous pressure on Ct. to abandon
laissez-faire philosophy of Lochner era because of Depression.
- Intellectual foundations under attack: legal realists attack premise that freedom of K is natural
liberty. La reflected political choices favoring employers over employees and corporations over
consumers
- West Coast Hotel v. Parrish (1936): Constitution does not speak oI Ireedom oI contract, only oI liberty.
So since 1937 the court has rejected giving heightened scrutiny to any economic legislation
Should be able to regulate exploitation oI class oI workers who have unequal bargaining power.
4 Overrules Adkins v. Children`s Hospital (1923) which invalidated a minimum wage Ior women.
- Ferguson v. Skrupa (1963): ct upheld Kansas law which made it unlawIul Ior person to engage in
business oI debt adjusting, except incident to practice oI law. Held that it`s up to legislature not courts
to decide on legislation. Ct no longer interpret DP clause to protect right to practice trade/proIession or
Ireedom to K.
TODAY: economic liberties don`t get special scrutiny. It`s like Harlan Holmes rational basis review.

POINT:
Lochner, along with Korematsu and Dred Scott is considered one oI the anti-cannons oI Constitutional law.
- Court is substituting its own judgment Ior that oI the legislature.
- No textual basis Ior the substitution.
4 14
th
amendment was about ensuring Iull citizenship Ior blacks, not about bakers.
4 Contracts clause was restricted in Ogden.
4 Lochner should have been treated as non-Iundamental law.
- Point: decision not tied to constitution text, history, or understanding.
- They shouldn`t be speciIying non-Constitutional rights.
- Privileges and immunities clause was supposed to do something, maybe this is it? Maybe not? You
have to decide iI judges should be elaborating/enIorcing rights that don`t have a Constitutional home.

2 odern Substantive ue Process
Stone pp 845-869, 994-904, 930-949, 957-965

Meyer v. Nebraska, McReynolds, 1923 (parent`s right to make decisions for their kids)
- Facts: State law prohibited teaching in school oI any language except English.
- Holding: Law is unconstitutional. Ct broadly deIined liberty in DP clause to protect basic aspects oI
family autonomy. Said that ~liberty does not merely denote freedom from bodily restraint, but
also (1) right of individual to contract not anymore-Ferguson], (2) engage in any of the common
90
occupations of life, (3) acquire useful knoledge, (4) establish a home and bring up children, (5)
orship god according to on conscience, and (6) enjoy those privileges long recognized at
common la as essential to orderly pursuit of happiness by free men.

Contraceptives:

Griswold v. Connecticut, Douglas, 1965 (rt to purchase and use contraceptives, DP violation of Right to
Privacy)
- Facts: Criminal prosecution oI Estelle Griswold, exec director oI Planned Parenthood oI CT, and
physician who openly ran clinic. Prosecuted Ior providing contraceptives to a married woman.
- Holding (Douglas): Held that law prohibiting use and distribution oI contraceptives unconstitutional.
Right to privacy is a fundamental right: declined to use liberty under DP. (b/c that only gets RB
and they wanted to use SS as a Iundamental right)
- Where do we Iind the right to privacy?
4 Majority: It`s not liberty, it`s the.
4 Not using Due Process Clause to protect 'liberty
First AmendmentIreedom oI association. (NAACP v. Button).
Third Amendmentquartering oI soldiers.
Fourth Amendmentright against unreasonable searches and seizures.
FiIth AmendmentselI-incrimination.
Basically, there is a speciIic guarantee in each oI these amendments to some degree oI
privacy. There must be penumbras and emanations Irom these that extend to create a
right to privacy in general.
Douglas Iinds right to privacy in the penumbra of Bill of Rights. He goes out oI his
way to avoid using substantive due process by Iinding it in the Bill oI Rights.
Found in right to privacy NOT right to reproductive autonomy.
4 Goldberg: Ninth Amendmentenumeration oI certain rights shall not be construed to deny or
disparage other rights retained by the people.
No Supreme Court has ever touched on the ninth amendment.and the 9
th
has never been
incorporated against the states. And, here we have state law.
Rationale is Ior discouraging extra-martial aIIairs- 'how dubious- also used Ior
protection against STDs
This end could be served by a more tailored piece oI legislation
Doesn`t this give us the answer? Well the question is.what are the other right retained
by the people? Freedom oI Contract? Contraceptives?** deIining the rt is key!!
State vs. Federal retained rights: the Federal Constitution might give you a jury oI 9, but
your state constitution might give you a jury oI 12. The Ied. Constitution might not give
you the right oI assisted suicide, but the state government might. That just b/c the govt
has been prohibited Irom certain things, doesn`t mean states can`t secure other things Ior
themselves. (one view)
4 Dissent (Black and Stewart): You are doing the same thing you did in Lochner.
There`s no privacy in Constitution just like there`s not Ireedom oI contract. No emanation
Irom one or more Constitutional provisions.
Attenuation: we are building privacy Irom a Ireedom oI association.
4 Harlan, Concurring: It`s liberty, not privacy.
Right to privacy should be protected under 'liberty oI due process clause. Proper
inquiry is whether CT statute inIringes DP Clause oI 14
th
b/c the enactment violates basic
value implicit in concept oI ordered liberty.
14
th
Amendment doesn`t just protect Bill oI Rights, it embraces all rights which are
Iundamental
Tradition should be the guiding light
91
This attacks a complicated moral issue, should be careIul about saying Constitution
precludes Conn`s decision on the matter
BUT, choice oI means becomes constitutional question, this isn`t narrowly tailored
enough
Privacy oI the home is traditionally protected
Privacy oI home isn`t just property distinction, it`s what happens within
II a right is traditionally trampled over, then it`s not really a right
This law is novel
Too much to invade privacy oI married couples when enIorcing this
Privacy is a Iundamental right and strict scrutiny is necessary
THE CLEAN-UP FUNCTION: This case served as a clean-up Iunction: let`s look to the
other states. II other states ban it, then we know it`s not a part oI the tradition and history
oI the country to protect the right.
O Doesn`t square with the laboratory Iunction oI the Iederalism systemwhat iI
only one state does it to try it out?
O Harlan is worried about the counter-majoritarian diIIicultyworried about the
justices imposing their policy preIerences on the nation. Wants some help
Iiguring out what should be protected, won`t deIer to an individual state, 1/50
isn`t trustworthy, but iI a lot do, then maybe it`s the view oI the people.
ONE WAY RATCHET? we can expand rights through tradition, but you can`t take
away rights.
4 White, Concurring: Did not even meet rational basis test. Failed to see how ban on use oI
contraceptives is in any way reinIorcing state`s ban on illicit sexual relations.

Lochner and Griswold
- Conventional wisdom: Lochner wrong, Griswold right.
4 The court made the wrong substantive choice in Lochner
Right oI workers to be protected by legislature is thrown to the wayside Ior right oI
'Ireedom oI K.
Court should have deIerred to legislature.
4 Can we reconcile this wisdom seeing as though both actually did the same thing?
Right to marital privacy is a necessary corollary to Iirst 8, but right to Ireedom oI K is
not.
O COUNTER: you could easily say that K Ialls w/in penumbra and is a
Iundamental right.
The Means/End Fit: Griswold doesn`t pass rational basis review. The states` asserted
interest in preventing extra-marital aIIairs is not reasonably related to preventing condom
use. In Lochner you can believe Harlan to be right in his approach is 'that when
reasonable minds disagree, deIer to the legislature. Is this just a judicial sham to
approve/disapprove oI laws they like?
- Eisenstadt v. Baird (1972): SC declared unconstitutional a MA law prohibiting distribution oI
contraceptives to unmarried individuals and only allowed physicians to distribute them to married
persons. Ct Iound that the law denied EP b/c discriminated against non-married couples.

Abortion:

Roe v. Wade, Blackmun, 1973
- Where are we?
4 We`re back to substantive due process.
4 We now think privacy is a part oI liberty.
92
Precedent on this:
O Meyers v. Nebraska (overturned prohibition on teaching Ioreign language).
O Pierce v. Society oI Sisters (overturned prohibition on sending kids to private
school).
O Skinner, about sterilization.
O Loving, about marriage.
O Livingston v. VA: Interracial marriage
O Griswold v. CT: Contraceptives to married
O Eisenstat, about contraception outside oI marriage (extends Griswold).
Court has decided when you`re locating unenumerated constitutional rights they are in
liberty.
4 Where does abortion Iit in?
You might say these cases are about preserving the right to make a Iamily the way you
want to. About child rearing, Iamily relationships, privacy, etc.
Maybe abortion Iits into this right.
What would Justice Harlan say? More than halI the states have criminal laws against
abortion, so it`s obviously not a protected right. (Clean-up Iunction.)
So, what is the right then? II its not just privacy, what is it?
O Maybe they are saying it`s a historical rightan originalist argument. That,
women have had this right, we can`t start taking it away.
O What about Ireedom Irom bodily restraint (liberty) Ireedom oI bodily integrity.
O Maybe it`s the Ireedom to make personal and proIound decisions about your liIe.
Marriage, bear a child, etc.
- Facts: Challenge to TX law that prohibited all abortions except those necessary to save liIe oI mother.
- Analysis:
4 Fundamental right, so we get: Strict Scrutiny
State can`t inIringe on your right unless.
Compelling Governmental Interest
Narrow Tailoring
4 What is the scope oI this Iundamental right?
Decisional autonomy?
Freedom Irom psychological and physical burdens?
O But what iI child is physically handicapped? That is a burden, but we don`t allow
killing that (but then the liIe right oI the child is Iully Iormed.)
State using woman as incubator.
Disparity b/w rich and poor.
O Then shouldn`t we use EP instead?
Burden only on women. (EP)
Intermediate scrutiny
O Gov`t only has to have important interestdon`t worry about tailoring.
O Only question is strength oI right (important/not important).
Autonomy in Iamily choices? Griswold, Meyers, Pierce.
Autonomy in personal and proIound choices?
Sexual autonomy?
Bodily integrity?
O What is the scope?
4 Can`t do drugs.
4 Can`t kill yourselI (at common law they`d take your property).
4 Can`t sell organs.
4 No prostitution.
93
Doctors and patients should make medical choices, not the state?
O What is the scope? Things we don`t let you do:
4 Euthanasia
4 Medical marijuana
4 Experimental drugs/surgery.
Common law? Quickening.
LiIe oI the child.
O Blackmun says no, we don`t consider an unborn child a person. Only persons are
entitled to constitutional rightsliIe, liberty, property.
O It is a legitimate government interest, but it isn`t compelling in the Iirst stages
oI liIe. It becomes compelling when the Ietus reaches viability.
O Who gets to decide when liIe begins? Court says we let individuals make the
choice Ior themselves.
- Holding: What does the court say? Need to balance competing interest: Right to liIe oI Ietus and right
to liberty Ior women.
4 First trimester: neither the interest in fetal life nor the interest in the mother`s life is
compelling. At this point, having the kid is more dangerous than the abortion, so can`t regulate
to protect mother. The only regulations the state can make are the ones they make Ior all
medical procedures.
4 Second trimester: State can regulate Ior the health oI the mother. Abortions have become more
dangerous than childbirth. Health of the mother becomes compelling.
4 Third trimester: State can ban abortions, except Ior the health oI the mother. Health of both is
compelling.
- The Court says that the state`s interest to protect potential liIe only becomes compelling and outweighs
the woman`s liberty right at viability. As science progresses, viability keeps pushing back closer and
closer to conception.
- Rehnquist: iI there are so many diIIering opinions, how can it be a Iundamental right?
4 We should have used rational basis.
4 Point: this whole game is won or lost on whether or not we can deIine something as a
Iundamental right.
So Iar in due process, iI you get Iundamental right, then you win.

One theory:
- Roe should have been an EP claim.
- Only women need thiscan you think oI a medical procedure that only men need that men can`t get?
No. The government is drawing gender lines and this should be given intermediate scrutiny.

Planned Parenthood v. Casey, O`Connor, Kennedy, Souter, 1992
- Facts: PA law regulated abortions by creating 24-hr waiting period Ior abortions, requiring MDs to
inIorm women oI availability oI inIo about Ietus, requiring parental consent Ior unmarried minors`
abortions, requiring reporting and record keeping, and spousal notiIication.
- Holding: Undue burdens on abortion rights are unconstitutional. Essential holding in Roe v. Wade
should remain.
4 Ct Iirst goes into theory oI stare decisis holding that Roe should be upheld. Then overruled
trimester system, and SS Ior evaluating government regulation oI abortions. Test hether
places undue burden on oman. Held that 24 hr waiting period, detailed inIo, and recording
provisions should be upheld. Spousal and parental notiIication unconstitutional.
4 Undue burden standard 'conclusion that the state regulation has the purpose or eIIect oI
placing a substantial obstacle in the path oI a woman seeking an abortion oI a nonviable Ietus.
94
State can regulate beIore viability so long as there is no undue burden, balance between
state`s interest and woman`s rights. AIter viability, state can PROHIBIT abortions as long
as there are carved out exceptions Ior women`s health.
'What is at stake is the woman`s right to make the ultimate decision, not a right to be
insulated Irom all others in doing so.
'Unless it has that eIIect on her right oI choice, a state measure designed to persuade her
to choose childbirth over abortion will be upheld iI reasonably related to that goal.
4 Fundamental right must be profound and personal.
- Blackmun, concurs in part, dissents in part
4 Problem with woman`s bodily integrity, substantial physical intrusions, risk oI bodily harm,
decisions about reproduction and Iamily planning, right to privacy, gender equality
- Stevens, concurs in part, dissents in part
4 The state`s interest must be secular
- Rehnquist, concurs in part, dissents in part, White, Scalia, Thomas join
4 'We believe that Roe was wrongly decided, and that it should be overruled consistently with our
traditional approach to stare decisis in constitutional cases.
4 Abortion 'involves he purposeIul termination oI potential liIe.
- Scalia, concurs in part, dissents in part, Rehnquist, White, Thomas join
4 Abortion is not a liberty protected by the Constitution b/c the constitution says nothing about it
and traditions oI society.
- Analysis:
4 Why do we need to rely on doctrine oI stare decisis?
Only invoke when think that decision was wrong
Stare decisis tells us that even iI we think it`s wrong, reasons to keep it. Why?
O Reliance: were women really relying on it?, ppl act knowing abortion is legal.
O Predictability
Traditionally: Stare decisis for constitutional holdings is eaker than stare decisis
for statutory interpretations. Why? Because it is easier to change a statute you don`t
like than to change the Constitution. To change Constitution you need to Amend.
When do you overrule a precedent (statutory or Constitutional)?
Reasons to overrule:
O II the Iacts have changed.
O II the rule has become unworkable.
Reasons to keep it anyway:
O II there is reliance at stake.
4 Here they say reliance was at stake.
Court says this isn`t traditional contract reliance (where only
pregnant women could claim reliance).
Instead, their notion oI reliance is that its inIormed values. The
ability Ior a woman to participate in the world was Iacilitated by
the rule giving them a right to an abortion.
4 Justice Kennedy: we need to be super careIul with the big cases.
From Plessy to Brown we had more time and more incremental decision making.
Lochner was exactly the same.
But Schechter to Wickard was the same time period as here.
Maybe because there is no social catalyst here like there was Ior the New Deal and Civil
Rights decisions.

II you go into court to litigate an abortion case today on behalI oI a plaintiII do you use Roe? Do you use the
trimester Iramework? Is it a Iundamental right?
95
- No!
- Trimesters are gone, viability is the line. BeIore viability, states can`t place an undue burden on a
woman`s right to choose. (Undue Burden: husband`s right to be inIormed.) (Things that aren`t undue
burdens: 24 hour waiting period, providing inIormation with the intent to persuade, parental consent.)
What is the diIIerence? An undue burden is something that attempts to keep the woman Irom making an
ultimate decision.

Stare decisis is the rule oI the day, overrules some cases, comes up with undue burden test, gets rid oI
trimesters, doesn`t overrule the essential holding in Roe.

Sodomy:

Bowers v. Hardwick, White, 1986 (A Georgia law prohibiting sodomy was valid because there was no
constitutionally protected right to engage in homosexual sodomy.)
- Facts: Hardwick arrested Ior engaging in homosexual sex in his bedroom violating GA sodomy law.
Hardwick challenges constitutionality oI law. Not prosecuted, so goes to Fed Dist Ct saying statute is
unconstitutional. Has standing b/c likely to do again. Hardwick makes 14
th
amend claim (substantive
DP): rt to privacy oI (1) in own home (Griswold) and (2) bodily autonomy.
- Holding (White): Precedents have nothing to do w/ homosexual sexcases about marriage, Iamily, or
procreation. White reIuses to expand right: hen e define fundamental right, guided by (1)
implicit in ordered liberty; or (2) deeply rooted in nation`s history. Based on this, there exists no
Iundamental right Rational Basis Review. The state`s interest in morality is legitimate and
criminalizing homosexual sex is rationally related to that end.
4 Why aIraid to expand Iundamental rights?
Concerned about countermajoritarian diIIiculty.
Will delegitimize the ct: ct needs to conserve political capital.
Where would he Iind right?
O Text
O History
O Tradition
4 Precedents: Petitioners argues that right to privacy in Griswold, Eisenstadt, and Roe is
Iundamental
White: those were about Iamily/procreation/etc.
O Petitioners: no, they were about stay out oI our bedroom. The strategy is to
deIine the right narrowly w/o excluding your claim. II you deIine right broadly
(Blackmun) ct will laugh you out oI court. Instead, you want to make pointed
inclusive argument.
- Concurrence (Burger): Goes Iurther and talks about ancient teachings oI homosexuality, and Judeo-
Christian belieI. Goes on to talk about 8
th
amendment: Poell: cruel and unusual punishment. Needs
to be proportional. B/c not prosecuted, this isn`t issue.
- Dissents:
4 Blackmun: Right is the right to be let alone. Reads Griswold and Eisenstadt very broadly
sexual autonomy as right within private homes.
4 Stevens: Heterosexuals have right to engage in whatever sexual behaviorcannot regulate.
Cannot just apply to homosexuals because have same liberty interest. Treats as claim oI
equality. Cannot apply to both gays and straights On his reading oI precedent, would be only
Iorbidden and no rational basis to distinguish
- Takeaay points:
4 How might Bowers tell us how to deIine right?
96
SpeciIic: Right to engage in sodomy (hard to justiIy based on tradition and precedent):
WHITE
General: Right to be leIt alone: BLACKMUN
4 Justices diIIer widely on how to tell iI Iundamental.
Tradition: WHITE
Importance to personhood: BLACKMUN

Lawrence v. Texas, Kennedy, 2003
- Facts: Lawrence and Garner challenged TX law, which makes it crime Ior same-sex couples, but not a
man and woman, to engage in sodomy, arguing that it violates their right to privacy and 14
th
`s guarantee
oI EP since it applies only to same-sex couples.
- Holding (Kennedy): Central holding oI Bowers demeaned the lives oI homosexual persons. Petitioners
were adults at time oI alleged oIIense. Their conduct was in private and consensual. Petitioners were
entitled to respect Ior their private lives. Ct. also noted that reasoning and holding oI Bowers had been
rejected in other nations. No shoing by US governmental interest as legitimate or urgent.
- Concurrence (O`Connor): Do not overturn Bowers. Instead, rely on EP and raise question oI whether
moral disapproval oI legit state interest can justiIy statute that bans homosexual sex but not heterosexual
sex. Moral disapproval is not enough to get there.
- Dissents
4 Scalia: Should use stare decisis consistently. Here, there is dependence on Bowers. Irrelevant
iI had longstanding tradition but criminalized and thereIore not deeply rooted in Nation`s history
and tradition. Not Iundamental right just b/c done in privatemany things done in private
(bigamy, bestiality, etc). Rational basis is that TX Ieels it is immoral and unacceptable. To
promote agenda, use political process.
What about Carolene? No one wants to associate with homosexuals in the political
process.
4 Thomas: law is silly, but nowhere in C gives right to privacy. Duty is to decide cases with the
Constitution.
- Analysis:
4 Possible interpretations oI holding:
Right oI sexual autonomy (oI consenting adults) (in private) (when in a relationship).
Right oI homosexuals and heterosexuals to equal treatment.
Right to have relationship
Seems more like EPstigma, demeaning certain group oI people, etc.
DeIine right broadly: right to have a relationshipsex is one part oI gay relationship.
Harlan: SC cleans up and makes slower states catch up.

Assisted Suicide

Washington v. Glucksberg, Rehnquist, 1997
- Facts: Facial challenge to state law saying person is guilty oI promoting a suicide attempt when he
knowingly causes or aids another person to attempt suicide. Washington`s Natural Death Act states that
withholding or withdrawal oI liIe-sustaining treatment at patient`s direction 'shall not, Ior any purpose,
constitute a suicide.
- Arguments:
4 P`s 14
th
Amendment argument: liberty interest in having the assistance oI a doctor in
committing suicide. What is this based on?
Basic intimate choices about personal autonomy. (Caseyyou should be able to decide
the personal and proIound choices about your body.)
Also cite Cruzan, suggests that you have a constitutional right to withdraw liIe sustaining
treatment.
97
This case is about my body, my integrity and it`s the only liIe that is at stake. This
should Iollow straight Irom Casey.
- Holding: No constitutional right to physician assisted suicide. Not in tradition. In almost every State,
crime to assist. Despite changes in medical technology and notwithstanding increased emphasis on
importance oI end-oI-liIe decision making, we have not retreated Irom prohibition.
4 Because not a Iundamental right Rational Basis.
4 Law served many legitimate purposes: preservation oI liIe, protecting integrity oI medical
proIession, protecting vulnerable groups, and in stopping the path to voluntary and even
involuntary euthanasia.
4 Distinguish Cruzan by saying you have a right to Iorgo medical treatment. Forced medication is
a battery. Here, they are actually asking Ior help.
4 Not ALL intimate, personal, important decisions are protected. What is suIIicient to pull
something into the liberty category?
Those deeply rooted in the nation`s history and tradition.
O At common law suicide was criminally prohibited. While it is no longer criminal
to commit suicide, assisting suicide is criminal in most (maybe all) states.
Court here deIines the right at the most speciIic level oI generality.
O It is narrow look at what a Iundamental right is. Personal, intimate, important,
and deeply rooted.
4 Here, rule against assisted suicide: ancient, modern, universal. Deeply
rooted.
4 Griswold, rule against sodomy: ancient, not modern, not universal. Not
deeply rooted.
- Concurrences:
4 O`Connor: No generalized right to commit suicide, court need not address narrower question
whether a mentally competent person who is experiencing great suIIering has only cognizable
interest in controlling circumstances oI his/her death.
4 Stevens: Room Ior Iurther debate. Although rejected Iacial challenge, does not Ioreclose
possibility that some applications oI statutes might be invalid. In particular cases, individuals`
claim oI such right might be strong and state interest less.
4 Souter: Stresses idea oI subjecting terminally ill patients to involuntary suicide and euthanasia.
Hard to allow reasonable legislative consideration. States currently debating topic and issue is
emerging. Not Ioreclosing possibility that at some point, there is Iundamental right but at some
point have to let states work it out.
Looks like Powell decision in Frontiero: let legislative process work itselI out Ior ERA.
But why do people have to wait to Iind relieI?
4 Breyer: core oI person`s claim would be avoidance oI severe physical pain (connected w/
death). Constitutional because we do not prohibit doctors Irom providing patients w/ drugs
suIIicient to control pain despite risk that drugs will kill.
- Analysis:
4 Casey: Right to make Iundamental decisions. That interest trumps state interest in protecting
liIe oI another person, how is this not just as easy a case?
4 Court said right is not right to bodily integrity. Rather it`s a right to engage in physician assisted
suicide. DeIines right at very high level oI speciIicity:
Decide iI its Iundamental by deciding iI right is deeply rootedcourt looks back to
history and sees no protection.
Looked like end oI substantive due process. DeIined speciIically and look at what is
rooted in tradition/history. Maybe only decisions can be clean-up Iunction (catch state up
to everyone else).
THEN ALONG COMES LAWRENCE.
98

History oI Substantive Due Process:

Dred Scott Lochner Griswold Roe Bowers Casey Glucksberg Lawrence