CONSTITUTIONAL LAW EXAM OUTLINE
Libby Adler  -  2002

1.   WHERE DOES CONGRESS GET ITS POWER GENERALLY, AND HOW IS IT LIMITED?
	A.  Enumerated powers delegated to Congress by Article 1 § 8. 
				1.  Powers “implied” from the “Necessary and Proper Clause” (McCulloch v. MD).
				2.  Enumeration, but supremacy within the enumerated spheres. (McCulloch v. MD).   
		B.   § 5 of the 14th Amendment
				1.  Section gives Congress broad authority and discretionary power. 
				2.  Limitation: Action must be remedial (past wrongs). Must enforce, not interpret. (City of Boerne  v. Flores)
     	C.   § 2 of the 15th Amendment
	1.  Right to vote regardless of race. Gomillion – Outlawing sophisticated as well as simple-minded discrimination.
	D.   Commerce Clause (Article 1 § 8 cl. 3) – Plenary and pervasive but is also “non-exclusively” shared, to some 
		degree, w/ states.
	1.  Commerce = Intercourse, thus is broad enough to include all species of business and exchange between states 
	     (Gibbons v. Ogden).
	2.  Things in commerce:
			a.   Channels of Commerce (Gibbons v. Ogden – NY Ferry License) Travel 
			b.   Stream of Commerce (Swift – price fixing in meat industry, cattle w/ in the stream of  comm.)
			c.   Outlaws of Commerce (things thought to be harmful, i.e. prostitutes, adulterated foods, etc.)
			d.   Things bearing a “close and substantial” relationship
				i.    Shreveport Rate Case (1914) – Question of whether a federal agency can regulate intrastate 
				      travel rates. The ct. says yes, b/c the travel has a “close and substantial” relationship to 
				      interstate travel. 
				ii.    NLRB (1937). The ct. finds that the labor practices in the steal industry had a close and 
			substantial relation to interstate commerce. The ct. rejects the distinction b/t manufacturing and commerce. This is basically a rejection of E.C. Knight
			e.     Things affecting commerce in the aggregate (in any of the above categories).
			             i.   Wickard v. Filburn (1942) Congress can regulate if in the aggregate the production could pose 
				    a threat to interstate commerce.
		       ii.   Heart of Atlanta (1964) The ct. finds a “real and substantial relation” (an aggregate effect). 
			    That in the aggregate discrimination affects interstate commerce, even though this hotel alone 
			     might not. 
		      iii.    Katzenbach v. McClung – companion to H of Atl. ruling similarly on restaurants. 
		3.   Limits on commerce power:  (Consider whether the link is intellectually honest, or is the ct. just doing what 
		      it thinks it needs to do.)
			a.     US v. Lopez (1995) – (Rehnquist) Gun Free School Zone law fails b/c it lacks a substantial relation 
				     to inter. st. comm (ISC). Thus, educational well being will not implicate ISC. 
			i.    Dissents:  
				1. Souter – Sees it as a return to Lochnerian formalism. Since none of the Carolene FN 
				     4 classes are implicated, the statute should get rational basis review. 
					2.  Breyer wants greater deference shown to Congress. 
			b.      US  v. Morrison (2000). Violence Against Women Act (VAWA) at issue. The gov. argues that gender motivated violence substantially effects interstate commerce. Ct. rejects the argument. Rehnquist says the connection is too distant.
				          i.    When creating this law, congress had made substantial findings relating violence against women to commerce. Rehnquist says that those determinations are for the ct. (Even though he complained of their absence in Lopez). The question can only be settled finally by this ct, says Rehnquist. “In the aggregate, nearly everything touches interstate commerce.” 
				         ii.   Dissents:  Souter’s dissent: (On Commerce Clause) He cites Wickard v. Filburn as a precedent for looking at activity in the aggregate. Souter thinks it’s Congress’s job to make such determinations. Congress found that violence against women (in the aggregate) effects ISC, thus the ct. should apply rational basis review. The business of the ct. is to evaluate not for soundness, but for rationality.
		E.   Limits on Federal authority over the states			
			1.  10th Amendment reserves powers to the states that are not delegated to the fed. (nor prohibited to the states). 
			     Limitation on federal interference w/ state sovereignty. 
			2.  Garcia v. San Antonio (1985) - Same issue as Nat’l League of Cities. Is Δ obligated to comply with Federal 
			     labor law? Yes. The stat. did not infringe on a traditional state function.
				a.  State participation and the political process will help safeguard states. The basic limit on congressional 				     authority is process.  Thus the ct. should draw its line at protecting process. (Overrules the test in 
				     Nat’l.League of Cities).
				b.  Dissent: Powell rejects Blackmun’s argument. Marbury suggests that the ct. should be interpreting more 
				     than just the process. Here you’ve got Congress’s power to decide how much power congress has, it’s
 					 the cts. We tricked the states into ratifying this cons. on the grounds that the fed would not usurp the
 					  power and here were taking that power away. 
				1.   Note that separatist movements in other countries have developed as a result of 
				      taking state/provincial power away.
	 		3.   Commandeering State Government
			a.  NY v. US (US 1992) – Congress adopts a nuclear wastes act pursuant to commerce powers. Proposal based on a proposal from the national governor’s association. The idea was that unsighted states would have to assume responsibility for managing their own wastes. Two provisions were used to create incentives and penalties for abiding by the act (these get upheld). The third provision gets struck down – The “take title provision.” Provision states that basically if you make the waste you must take title to it and assume the liability coming from it. NY argues that this violates the 10th amendment. 
						1.  The take title position is on the order of coercion. States bears the political brunt. Congress 
						     passed the line from encouragement to commandeering. Take title provision struck down.
						2.  Ct. says no room for balancing on an absolute principal. Formal logic test.
					b.  Printz v. US (1997) - Is the enforcement of the Brady Bill an unconstitutional 
						  commandeering of state law enforcement? Yes.
				  1.   Scalia next argues using the structure of Federalism.  The power of the fed. would be 
				        increased immeasurably if it could enlist the services of local police free of charge. 
				        This is a fed. policy, thus the fed. gets all the credit with none of the expense.
		  2.   Scalia argues against the “this is a very important law” argument. Scalia 
    rejects the proposed balancing test. Balancing is inappropriate in absolute
    principles.
		  3.    Rule: “The federal gov. may not compel the States to enact or administer a 
		         federal regulatory program.”  
				c.  Reno v. Condon (2000) - The fact that a state may need to take administrative or 
    			     legislative action in order to be in  compliance w/ a federal statute is not a 
				     “commandeering.”

2. WHERE DO THE STATES GET THEIR POWER GENERALLY, AND HOW IS IT LIMITED?
	  A. First ask: Has congress already acted in that area? 
		1.  If YES, then does the statute conflict with the established law and raise a Supremacy Clause issue?
			a.   Express preemption (Art. 6 cl. 2. - Supremacy Clause.): When a federal law expressly 
			      preempts, “State law not withstanding.” Congress can also use a “savings clause” (“Such and 
			      such is prohibited except where allowed by state law”).  A savings clause may also “save” the 
			      state law against a DCC attack as well. Bottom line: If the Fed. Reg. is constitutional, and it 
			      says state is preempted, then the state law is preempted. 
			b.   Inconsistency:  Usually where compliance w/ both state and fed. regs. comes into conflict. 
   Ex. Where fed. food labeling regs. would cause mislabeling under state law (McDermott v. WI).
			c.   Occupying the field:  Where a federal statute is so comprehensive or the issue is so federal in nature that 
				   the congress can be inferred to have “left no room” for state legislation in that area. Note that generally 
				   there is a strong judicial presumption against field preemption. 
			d.    Cipollone v. Liggett Group, Inc. (1992) - Cancer stricken smoker and her husband bring suit. Cipollone wins and Ligget appeals on preemption grounds. The argument was that the federal act requiring labeling denied state tort suit. The USSC went through the 3 possibilities above. Ct. finds no congressional intent to preempt a tort claim; the fed labels could only preempt a state labeling initiative. Congress only wanted to insure a uniform law of labeling for each state. They did not mean to preempt state tort law on implied warranty and failure to warn.
			2.  If NO (congress has not acted), then it may call for a DCC (dormant or “negative” commerce clause) 
				 analysis.
					a.     NOTE THAT DCC IS PURELY A JUDICIAL INVENTION. 
				       b.    The DCC stands for the prop. that states can be prohibited from acting even where there is no federal law and where congress has been silent. Usually aimed at “protectionist” state legislation that disadvantages out-of-staters. Consider whether the statute violates the following principles: 
						i.     integrated economic union – allows goods to flow smoothly form state to state. 

						ii.    representation reinforcement – the principle that out-of-staters lack representation and 
						       should not be made to pay for legislation that they have not had the chance to vote on. 
						iii.   protection of out-of-staters – Bad for free markets and inefficient.  
				       c.      Gibbons v. Ogden (NY ferry case) left open the possibility of DCC claims. If the commerce  clause has force in the absence of an act of congress, then the job becomes the cts. to determine/interpret whether the state’s act breaches the constitution.
				       d.     DCC TEST:  Strict Scrutiny v. Balancing Test 
						i.     If the statute is facially (overtly) protectionist, then it gets strict scrutiny.
						1.    City of Philly v. NJ (1978) - NJ prohibits the importation of waste from out of state. The law is challenged by land-fill operators in NJ who stood to loose business. NJ court rejects the claim on the grounds that it serves a health and safety function. Supreme ct. overturns on DCC grounds.
									a.   Rule: (SS) The ct. says that precedent provides a “virtually per se 
									      rule of invalidity” exists when it sees simple economic protectionism.
									b.   Rule: (Balance)  However, state laws which advance legitimate 
									      state objectives, and have an incidental effect on interstate commerce 
									      will be treated more flexibly.
						ii.    If it serves a legitimate state interest, it will get a balancing test (See Kassel v. Consolidated 
						       Freightways Co. (1981)).  
			3.  Exception:  Where the state acts as a market participant, the state can discriminate. The idea is that 
   the state is acting like a private company when they are buying things and should be treated as such. 
   Discrimination in purchasing causes less of a balkanization than does regulation.
					a.     Boston Construction Workers v. White. (State allowed to maintain hiring preference for 40% 
					        residents). Note that the opposite result is reached in Camden under a “P and I” claim.  See below. 
	B.  Privileges and Immunities Clause (Art. IV, § 2 has broad rights).  
			1.  Protects the citizens of each state. Individuals, not markets!
			2.  The standard of review: Substantial reason and close relation to it. Something like intermediate 
				  scrutiny. Overt (facial) discrimination must be present! 	
			3.  Corfeild v. Coryell (1823) – NJ makes it unlawful to collect oysters, clams and shells on NJ beaches. 
				  π sues under P and I in order to gain the right to do so. The ct. rules that the P and I does not extend 
				  so far. 
 					a.   To rule otherwise, the ct. says, would grant a co-tenancy to out-of-staters. NJ citizens should 
					      not have to share their clams. There are some things state citizens ought to be able to own. 
					b.   It only protects things that are fundamental rights. Things that are not fundamental can be 
					      regulated by the state.	
			4.   United Building and Const. Council v. Camden (1984) - Facts: Camden requires that 40% of employees be Camden residents. The union challenges on P and I grounds. The NJ Supreme Ct. upholds on the basis of municipal residency, not state. The USSC reverses. Issue: P and I applies in general. The ct. must then decide (1) whether the ordinance burdens a P and I under Art. IV. (2) is the interest fundamental to interstate harmony. Holding: (Rehnquist) Ct. rejects the NJ S. Ct. logic b/c it reaches people living both in and out of state.	 
						a. Is their such a thing as a citizen of Camden? No. The ct. reads citizen broadly to mean resident and 
			    therefore P and I applies. 
					b. The ordinance at issue infringes on interstate harmony.
					c. The pursuit of a common calling is fundamental. 
					d. Note that the ct. found no fundamental right to work under the 14th Amend. in the Slaughterhouse 
					    Cases.
					e.  Note the difference in outcome compared with the similar statute in White brought under the DCC 
					     claim.

3.  SUBSTANTIVE DUE PROCESS (SDP) 
	A.  SDP = The doctrine that the Due Process Clauses of the 5th and 14th require that legislation (1) be fair and 
	      reasonable in content and (2) to further a legitimate governmental objective. Most of the first 8 amends are 
	      included, especially the takings clause of the 5th.
	B.  Applies to States via the 14th and to the Federal government via the 5th. Same tests apply to both 
	      (incorporation/reverse incorporation). 
	C.  If a fundamental right is being implicated, then strict scrutiny will apply. 
		1.  Test for SS: (1) Promotes a compelling interest and (2) is narrowly tailored. 
		2.  Fundamental rights (although each is disputable): 
				    a.    Most of the enumerated rights of the first 8 Amendments. 
				    b.    Voting (Bush v. Gore), travel (Shapiro v. Thompson 1969), privacy (including marriage 
					    (Turner and Zablocki), marital relations (Griswold), birth control, and abortion (Roe, Casey), 
				   	    all 1st amendment rights. Note that each has limits. Do not take any for granted!
			          i.   Planned Parenthood v. Casey (1992) – Strikes down spousal notification as a hindrance on abortion access, but upholds a NEW STANDARD: In the first two trimesters, the state can’t impose an undue burden. So, the state can regulate within the first two trimesters. Thus regulations that may constitute obstacles, but undue burdens and outright bans will be overruled. 
					   1.  What is an undue burden? “The statute has to be calculated to inform, not hinder the 
					        woman’s choice.”  It cannot be a substantial obstacle. 
						a.   Spousal notification is calculated to hinder, however 24 hour waiting period and 
						      parental notification are thought to inform.
			c.    Griswold v. Connecticut (1965) – Extending the right of privacy to the right to use contraception. Ct. develops the “emanations” and “penumbras” from the 1st, 3rd, 4th, and 5th amendments and these are placed along side the 9th amendment (which doesn’t make enumerated rights exclusive). See Harlan’s Dissent in Poe v. Ullman (1961). 			
		   		  i.  Black’s Griswold dissent:  Black sees no constitutional proof of a right to privacy. He’s concerned 
				      that judges may usurp the role of the legislature.
		3.  Rights that are not fundamental (only rational basis review and the statute will be upheld for any rational, 
		     legitimate government end): 
					a.    Welfare –  Just short of fundamental. There is a property interest, however. Goldberg, Saenz. 
					b.    Education (although a complete deprivation may warrant some elevated attention under 
					       Plyler v. Doe (1982 – TX statute allowing schools to bar children of aliens. struck down).  
					       San Antonio School District v. Rodriguez  (1973). 
					c.    Homosexual Relations - Bowers v. Hardwick (1986) – Status/Conduct distinction. 
					        i.    Ct. upholds on rational basis: morality.
		 	  	   ii.    Dissent: Blackmun sees the issue not as homosexuality but as “the right to be let alone.” 
				             1.  Beware: The danger of that position. The expansiveness of such a notion could create expansive barriers to intervention in areas such as child abuse, domestic violence, etc. Thus, going into your home would seem to extend an amnesty from all law.
			    d.     Zoning – Regulation and use of land is has found tolerance in the ct. Although, some “extreme”
				    regulation may be considered a Taking. 
			    e.     Economic Due Process – Dead! Lochner is mostly now cited for Holmes’s dissent.  
		4.  Takings (enumerated right in the 5th) - This amendment applies to the states via incorporation.
		      	    a.     Is it an unconstitutional “taking”?  Considerations:
i.     Not a grant of power, but a limitation. The power for a taking must arise out of another source, such as police power. 
ii.    No constitutional requirement that property have value. “Worthless” property is still property. 
iii.  Courts will not review underlying policy decisions of the taking. A use will be taken to be “public” as long as it is rationally related to a legitimate public purpose, e.g., health, welfare, safety, economic, political, or aesthetic ends. 
iv.   A physical invasion of any kind will almost always be considered a taking. (Loretto v. CATV).  
v.    Taking v. Regulation: 
1.    A denial of all economic land use is equivalent to a physical appropriation. Unless the limits existed at the time of purchase (line  drawing/baseline) Lucas v. S.C. Coastal Council (1992). BUT see Palazzolo!
2.    Regulation must be “closely related.” Nollan v. California  Coastline Commission (1987). Raises the bar from the balancing in Penn Central. 
3.    “Rough proportionality test.” Dolan v. City of Tigard (1994). Perhaps an even higher standard than Nollan. 
4.    Just b/c the statute pre-dates purchase it does not mean the owner cannot challenge it. Natural rights baseline. Palazzolo (2001).
5.    Economic diminution balancing test (regs. that merely decrease value do not necessarily result in a taking, as long as an economically viable property use remains:
a.  The social goals sought to be promoted;
b.  The diminution in the value to the owner; and 
c.  The owner’s reasonable expectations regarding the use of the property. Generally a taking will only be found if the reg. unjustly reduces the $ value of the property (and only slightly promotes public welfare. Penn. Central and Penn Coal. 
		vi.    Other considerations: 
					1.  Rehnquist, in Penn Central,  relies on “an unspoken baseline” that the owners  
					     automatically begin with air space rights. Why should they, unless  you  assume a 
					     naturalists perspective that the rights just are.
2.  Note that Holmes rejects the pretense of deduction from a single principle. Instead he e
     endorses the balancing of competing interests, as does Brennan in Penn Central. 

4.  PROCEDURAL DUE PROCESS (PDP)
	  A.  PDP provides that the government shall not take life, liberty, or property w/o due process of law. Due process contemplates fair process/procedure, which requires at least the chance to present objections to the proposed action to a fair and neutral decision maker (not necessarily a judge). 
	  B.  Two purposes: (1) Utilitarian: The government should not deprive a person of life, liberty, or property unless a correct understanding of the law allows for it. (2) Normative: “Dignitary” value that even if a person is to be deprived that the government give them a fair hearing prior to the deprivation, reducing psychological harm.
	  	       1.  DP does not require procedural protections against statutes b/c the electoral process is thought to encompass due process. BUT, those effected by laws retain the right of due process to show that they either are or are not within the scope of the rule. Example: Legislature passes a tax on owning two cars. The tax payer could not challenge the law’s passage on DP grounds, but they could challenge the fact that they have two cars.
	  	       2.  States have great leeway in determining such things as eligibility standards, but it is up to federal law whether to apply the life, liberty, or property labels and to determine if the procedures are adequate.  
	  C.  Goldberg v. Kelly (1970) - Held that the state cannot terminate welfare w/o an evidentiary hearing first. It is at the extreme in stipulating that a welfare recipient can retain an attorney (their own expense), receive timely and adequate notice, and a chance to confront adverse witnesses at a full hearing. The ct. held that welfare was a statutorily created property right. The next question was how much process was due. The decision was a balancing test weighing all the various factors. Deprivation to applicant weighed against societal costs.
	  D.   Board of Regents v. Roth (1972) - (1) Where reputation and honor are at stake, notice and a chance to be heard are essential (would infringe on liberty to get a new job). (2) To have a property interest in a benefit, a person must have a legitimate claim or title to it. Roth does reinforce that a bona fide expectation of work arising from state law is “property” for due process.
	  E.  Matthews v. Elderidge (US 1976) **Leading case defining due process requirements**	
		Facts: Disability benefits are to be terminated, the gov. make notification of termination. The recipient can then furnish new evidence of entitlement. If the gov. still elects to terminate, a federal official must approve. If terminated, there is a statutory right to an evidentiary hearing. If restored, the recipient is entitled to retroactive benefits. Here the claimant asserts that the absence of a pre-termination hearing violates due process. (Essentially a Goldberg argument.) Holding: (Powell) Deprivation a key concern in the type of due process required. Here, the level of deprivation (though relatively high and for a fairly long time) is not on par with welfare. Thus something less than an evidentiary hearing will be allowed prior to termination. Also, public policy considerations (the costs of providing such hearings).  Big balancing test. 
		1.    Test for adequate procedures: All that is necessary is that: (1)  The procedures be tailored to the decisions to 
		       be made, and (2) the capacities and circumstances of those who are to be heard.
		2.    The first test is whether there is state action. The next is whether the gov. deprivation is of life, liberty, or 
		       property. **If the answer is not YES to both questions, then NO Procedural Due Process analysis can 
		       follow!**
		3.    The Matthews test (how much process is due?): 
			a.  Private interest: The disruption of benefits in this case. 
•	The ct. acknowledges the hardship, but sees a distinction. The ct. doesn’t see the needs of 
					  Matthews as great as those of welfare recipients—which does seem baseless. 
			b. Risk of error in current procedures:  
•	Here the ct. says that the evidence is based on medical assessment and is thus less fallible. 
			c. Government interest: Administrative burden and expense. 
•	Here the ct. felt the burden was great, that the gov. wouldn’t be able to recoup funds 
				       dispersed during that period.		

5.  EQUAL PROTECTION
	A.   ASK: Is there state action? Sometimes ambiguous. 
		1.  Can be either state or federal. EP applies to the Federal Government via the DP of the 5th Amend (Bolling v. 
		    Sharpe (1954)).
			a.  Cases defining extent of state action: 
				i.   Bolling v. Sharpe (1954) – Outlaws school segregation in D.C., thus applying EP to federal action.
				ii.  Shelley v. Kramer (1948) –  State enforcement of racial covenants. “[That] the action of state courts and 
					 judicial officers in their official capacities is to be regarded as action of the State within the meaning of 
					 the Fourteenth Amendment, is a which has long been established by decisions of this Court.” 
				iii.  Moose Lodge No. 107  v. Irvis (1972) – (LIMIT) Irvis looses on the injunction but would have 
					  prevailed had he sued under the following condition: Had Moose Lodge served Irvis, and the liquor 
					  control board stopped the lodge from  serving him. Then, Irvis could have sued the board for enforcing 
					  that condition. In the latter case, the state is enforcing the racial rule – Shelley argument. 
	iv.  Marsh v. Alabama (1946) - The management of a company town refused permission for a Jehovah’s 
		  Witness to distribute religious literature.  Ct. finds state action for a 1st Amend. vioaltion: The more an 
		  owner looks like the government, the more it gets treated like the government.
	b.  Robin West, Constitutional Skepticism (1992) – Argues against the need for state action. West’s gist is that the 14th Amend ought to extend  beyond state action into spheres  traditionally considered private. She draws distinctions between liberal  feminists and progressive feminists, saying—in  part—that this “progressive” disposition will truly challenge racism where it hides.
	B.  Is the law or policy drawing a classification? (NOTE that laws that govern ALL people engaged in a certain 
	      activity tend to raise a Substantive Due Process claim. Where a law treats certain people differently, there is
	      generally an EP claim. Very often claims can be raised on both theories!
	C.  What is the classification? 
	1.  Carolene Products FN 4:  J. Stone states what he thinks warrants aggressive judicial scrutiny: (1) Bill of  rights; 
		  (2) Rights of a discrete and insular minority at issue; (3) flaw in the political process. 
		2.  Suspect Classifications (strict scrutiny):
		        a. Race and national origin. Palmore v. Sidoti (1984) – Court removes a child from (white) mother’s custody when she remarries a black man. Held: Reversed. Supreme Ct. Law cannot give effect to private stigmas. These biases may be outside the reach of the law, but we cannot give these biases the power of law.   
			b. Exception:  Korematsu v. US  (1944) War time incarceration of Japanese upheld; ct. grants deference to the 
			    military.	
		3.  Quasi-Suspect Classification (intermediate scrutiny)
a.  Gender – US v. Virginia (1996) – After losing in the first round on gender integration, VMI appeals to USSC and defends on the grounds that their model (1) preserves the diversity of educational choice and (2) preserves the adversative method. Holding: Ginsburg rejects the plan on the basis of Sweatt, when separate but equal was still the rule—issues of the tangible and intangible benefits. Ginsburg rejects the defenses.  On defense (1) , she holds that this defense is rooted in the state historical belief that only men benefit from higher education. On defense (2), she notes that this is akin to antiquated thinking.
			i.   REAL differences will not count! Real difference is one case in which the state can legislate.  Michael 
	  M. v. S. Ct. of Sonoma (1981) - Facts: 17 ½ male and a 16 ½ female have sex and the male is  
 prosecuted under the a statute that prosecutes only males. Make an equal protection claim. Holding: 
 (Renquist writing) The Ct. affirmed, reasoning that “where gender classification is not invidious, but 
 rather reflects the fact that the sexes similarly situated in certain circumstances” such laws are 
 constitutional.
			b.  Legitimacy - Trimble v. Gordon banned all distinctions on legitimacy, although state can require paternity 
			     tests.
			c.  Alienage – Were once entitled to strict scrutiny, but now The real test seems to be economic protectionism—
			     that the state can’t simply be trying to deprive aliens from staying in the job market. It is important to 
			     distinguish between state and federal laws which make a distinction between aliens and citizens; such fed. 
			     regs. are always treated to rational basis.
		    4.  Non-Suspect (rational basis)
			a.  Age – Gregory v. Ashcroft (1991) Upholding a state law forcing judges to retire at 70. 
b.  Wealth – M.L.B. v. S.L.J. (US 1996) Facts: Parental rights case in which the plaintiff sought to appeal the  
     termination of parental rights, but could not afford the 2.3K fee for appeal. Holding: B/c the due process 
     cause does not guarantee the right of appeal, Ginsburg (writing for majority) held that fee violated EP, citing 
     the importance of parental rights over the states interest in claiming the fee. 
   i. Dissenters Kennedy, Rehnquist, Thomas, and Scalia held that the EP guarantees equal treatment, not 
equal results.
		 	c.  Education – Rodriguez v. San Antonio School District (1973) – EP claim is brought due to funding disparity 
				 b/t poor and wealthy neighborhood. USSC upholds the funding scheme on the basis that education is not a 
				 constitutionally guaranteed right. 
	   i. Dissenters Marshall and Douglass argued that two tiered approach to EP should be abandoned in favor 
	      one which considers: (1) the character of the classification, (2) the relative importance to the class of the 
       benefits deprived, (3) and the state interests in support of the classification. Similar to his Cleburne 
		dissent.
			d.  Sexuality – Bowers v. Hardwick (1986) Fundamental rights case signaling rational basis review only. But 
			     see Watkins, where the original panel of the 9th Cir. used strict scrutiny (Carolene argument).
				i. Romer v. Evans (1996) – Strikes down a CO amendment that denies gays any EP status. The ct. strikes 	   down on the basis that no one can be denied a fundamental right. Animosity toward a group is not a 
				   “legitimate” state objective. Scalia dissents: “mistaking culture war for a fit of spite. Cts. should not 
				   interfere in culture wars.
	e.  Physical or Mental Disability – City of Cleburne v. Cleburne Living Center, (US 1985) Facts: Group home 
		 attempts to establish a facility in a neighborhood zoned against facilities for the “feeble-minded” and 
	     demanding a special permit. City denies permit; Home makes an EP claim. They win at the Federal district 
		 level, where intermediate scrutiny imposed b/c the handicapped were held to be a “quasi-suspect” class. 
		 Holding: White (writing for the majority) holds that rationale basis should have been used b/c imposing a 
		 stricter standard may undo consequences for legislation passed in order to protect the handicapped. 
		 However, the regulation is still struck for failing to meet even the lower rationale basis standard: (1) 
		 Appearance of private bias in the regulation (2) similar housing is not prohibited (3) proximity to a junior 
		 high school is moot since 30 handicapped individuals attend there (4) location within a flood plain not 
		 compelling since it would not have been relevant otherwise. SEE DISSENT UNDER EDUCATION. 
	D.  How does the law discriminate?  Discriminatory effect is not enough to trigger strict scrutiny. There must be 	      intent on the part of the government. Intent can be shown in three ways:
		1.  facial discrimination – When the language of the law makes explicit racial distinctions. Ex.  All jurors be white males, aged 21 or more. Exception: In Shaw v. Reno, the court found that the abnormal voting district could not be explained in any but racial terms. Thus it was considered facially discriminatory. 
		2. discriminatory purpose – Ex.  A law prohibits operating a laundry in wooden buildings, but gives gov. 
 administrations the right to grant exceptions. In practice, the agency does not grant exceptions to people of 
 Chinese descent. The law was invalidated as applied. (Yick Wo v. Hopkins (1886)).  
		3.  disparate impact – When a law appears neutral on its face and in its application, but is found to have a  disproportionate effect on a particular class of people. Such a law will be subject to the appropriate level  of scrutiny for the effected class ONLY if the court finds that the law making body that adopted or  maintains it does so for a discriminatory purpose. Statistical evidence alone will rarely be sufficient. Ex. A  police dept. uses a written test. Members of a protected racial class scored consistently lower on the test.  B/c of the absence of non-statistical proof of discriminatory purpose, the law was upheld. Washington v.  Davis (1976). Keyes held that accidents of school segregation were not actionable. In Massachusetts v. Feeney (1979), a woman raised an EP claim after being refused employment b/c of a civil service preference for veterans (who are almost always men); ct. held that f/s of the statute’s affects alone could support the claim – intent must be proven as well.
	E.  Is the discrimination benign or invidious (i.e. affirmative action)?  
		1.  Special notes on this issue: Under Adarand v. Pena  (1995) it doesn’t matter. Laws which facially favor one race over another will automatically receive strict scrutiny. Adarand overruled Metro Broadcasting (1990), which applied only intermediate scrutiny to such laws. Note that Fullilove (1980), which allowed a 10% set aside of federal grants for public works, was upheld. Fullilove has not been overruled (b/c congress may have more authority under the enabling clause of the 14th to make such law), but it’s validity is in question. 
				a.  Consider the dissents on these cases. Most decisions have been split and several justices do not want 
					 to treat benign and invidious the same. 
	F.  What is the test based on the level of scrutiny? 
		1.  Strict Scrutiny – Law must (1) serve a compelling state purpose and (2) be a necessary means for 
 			 achieving that purpose. The law is automatically thought to be invalid. 
		2.  Intermediate Scrutiny – Law must (1) serve an important government interest and (2) be substantially related   
                to achieving interest. 
		3.  Rational Basis – The law will survive unless it is found to (1) not have rational relationship to (2) any 
			 conceivable legitimate governmental end. 

6. 1st AMENDMENT
	A.  Holy Grail: State neutrality towards content. 
	B.  The 1st amendment usually merits strict scrutiny review.
	C.  Intersection of speech and equal protection:
1.  Dale v. Boy Scouts - Facts: NJ courts found a violation of their state public accommodations law. BSA offered a 1st amendment defense but the NJ ct. didn’t buy it. BSA appeals to USSC. Holding: The USSC finds for the BSA on the grounds of freedom of expressive association. Implicit in the 1st amendment is a right to associate and exclude. Freedom of association presupposes a right to exclude. First cited in Roberts v. US Jaycees.
	a.   It appears to be the avowedness that created the problem for Rehnquist. Under this ruling, a closeted 
      or non-avowed homosexual could likely be a member of the BSA.
2.  Hurley v. GLIB, 515 US 557 (1995) – Facts: Hurley wants a reversal of the Mass SJC’s ruling that GLIB could march in the St. Patrick’s Day parade. The SJC points to MGL 272 (public accommodations law) and says that the statute applies to the parade as soliciting to the general public. The Allied war vets raised a 1st amend. defense, invoking their right to freedom of association. The message of the parade argued the vets were traditional religious and social values; GLIB’s participation would violate their message with sexual themes. SJC rejects this, noting that the parade had no specific message. SJC justice Nolan dissented. He believed there was a 1st amendment argument and that excluding GLIB didn’t compromise the statute b/c people who were gay could still march, just not under their message (their message was separable from their status). USSC grants cert. Issue: Whether Mass. may require citizens who organize a parade to include among the marchers a group imparting a message the organizers disagree with. Holding: The message of a parade, accd. to the USSC, is based on the selection of different groups. The relevant difference here, accd. to the ct., is that stated in Nolan’s SJC dissent. The issue here is about GLIB, not about public accommodation. The speech itself, accd. to SJC, was the Public Accommodation. The USSC rejects this, saying that any group with a message would be permitted to march. The USSC says that if the statute is attempting to free Mass of bias, then that is a flawed objective.
   D.   War 
	  	1.  Balancing test: Speech can be limited when action is imminent and presents a clear and present danger.
2.  Although, Cohen (where the guy was busted for wearing a “fuck the draft” t-shirt) signaled the demise of the 
 conduct/speech distinction. What has retained potency is the absolutists critique of the clear and present danger 
 test—allows judges to decide when rights can be sacrificed for protection which is essentially inadequate.

7.  OTHER CONSIDERATIONS
		A. Holmes’s Lochner dissent - Holmes’s opens by noting that Lochner is decided upon a laissez-faire economic theory, which most of the country does not support—the idea being that economics are not the court’s job (whereas dues process is).  (Note that economics are now considered more scientific, less political and thus within the realm of the judiciary.) Holmes says that his opinion of the economics is irrelevant and that the court is overstepping its bounds by imposing its theory on the voters of NY. The constitution doesn’t enshrine any economic theory and thus the court is not empowered to make such determinations. Holmes notes that other state laws exist such as usury laws and Sunday laws which are not banned by the 14th—thus showing that the police power is expansive enough to enough to protect the statute in Lochner. He further notes that the right to K should not decide a concrete case. The general proposition of the freedom of K could not have decided this case; what is going to decide this case is not an articulate major premise but something more subtle—the court’s intuition, something that defies articulate premises. In other words, conventional sound-bite rules won’t work here.
              1.  This statement is both powerful and threatening: He is saying that making decisions based on intuitions is 
	 certainly not supported by Article 3. They are supposed to be applying neutral principles. The majoritarian  
	 branches are supposed to listen to intuition. Judges must stand for something else: timeless, neutral 
 	 principles. Holmes is calling into question the legitimacy of the ct.
		2.  The implication is that when issues such as this, which rest on a political theory or intuition, we should defer 
		     to the legislature. 
		3.  There is a flaw in the founders vision that counsels in favor of deference to the congress. “I think the  
 		     liberty is perverted when it is held to prevent the outcome of a dominant opinion.”
		B. John Hart Ely – Democracy and Distrust  (p. 102) – Thinks the constitution is concerned with substance and 
			  process.
1.  Ex. 1st amendment is not there for speech’s sake, it’s there as a check on our government. 
2.  Just b/c we disagree does not mean the government is not working. The gov. isn’t working when there’s a 
     process problem—when it’s not deserving of trust. Ex. When minorities are being systematically excluded. 
3.  Ely’s view is in line with FN 4 of Caroline. 
4.  The role of judges is to protect the process and make sure it is fair. Judges role is not to give us the verdicts 
     we like.
	C.  Carolene Products FN 4 –  (J. Stone) states what he thinks warrants aggressive judicial scrutiny: (1) Bill of  
		   rights; (2) Rights of a discrete and insular minority at issue; (3) flaw in the political process.
	       D.  Formalism v. Realism 
	       E.  State v. Federal powers