Scarborough	1997

Constitutional Issues

I. Introduction : The Marshall Court and the Foundations of Judicial Review

I.  How do you propose an amendment?
  - 2 ways  
      a.) Congress - both houses by vote of 2/3.
      b.) legislative - by calling to the Constitution
   - all amendments have come from Congress.

II. How do you ratify?
     3/4 of Congress or 3/4 of conventions called by the states

III. Five different judicial arguments
     a.) historical - original intent of Constitution is used as a backdrop
     b.) textual - literalist argument - do not go beyond what is written or what words say
     c.) Structural - stresses particular principle or way government is set up.
     d.) Prudential - Particular doctrines that call on results for practical wisdom, political 
           issues
     e.) doctrinal - asserts principles derived from precedent; pieces together precedent and 
          judicial decision; may not recognize changed circumstances, social context.

IV. Meaning of Article 5
      -allows Congress to propose amendments
      -Congress doe not have control over what form proposed amendments take.
      
V.  Structure of the Political system
       - created by the Framers
       -reps in England were not chosen by people.  In Paigne’s Common Sense, over
        300,00 copies said that only legitimate reason for government is to protect freedom 
        of governed.
      -people @ time used to being governed locally.
      -Founding fathers created  classic republicanism - small, local, non-hierarchical,
        homogeneous population of people
      -democracy - widespread participation of people
      - Federalist Papers - political campaign used to get Constitution ratified.
      - factions - no threat of outside intervention ‘common good” was truly common.
      - Anti-federalists - came from agrarian, rural community.  Jefferson., participation,
         civic duty, education, they feared national govt., would take over local govt. causing
         decisions made by others who had no responsibility.
      - Madison and federalists - argues that no one faction will impose against another
         cause there are many factions; they believe that we can not trust the people, we need
         some representation. Everyone’s fear was Shay’s Rebellion - farmers felt that they were
         not represented. 
 
VI. Differences in opinion between Antis and Feds.
      - antis thought amendments were good- parti and local input, active and alive system
      - feds wanted status quo, constitution was not structured to be majoritarian.
      - most legal scholars say there are 3 times in which politics have defined us: Const. Fed 
        Convention, Civil War and Reconstruction, and the New Deal. - defining democracy.

VII. What is the role of the Supreme Court
       A. MARBURY v. MADISON: Issue is which branch of the federal government has the 
       final say in interpreting the Constitution? Against the backdrop of a political struggle b/n 
       John Adams and Federalists, and his successor Jefferson and the Republicans, Adams 
       appointed a number of new judges, including several justices of the peace for DC just before 
           leaving office. The commissions for the justices of the peace had been signed by Adams, 
           but not yet delivered by the time he left office. The Jefferson Administration the refused
           to honor the appointments for which commissions had not actually been delivered prior to
           the end of Adams’ term.  Marbury among others seeks writ of mandamus compelling
           Jefferson’s Secretary of State (Madison) to deliver commissions.
           Marshall sealed them, but did not deliver them.

       B. Marshall’s decision: raises 3 questions:  1.) Does Marbury have right to the commission?  
            yes, appointment made by the president. 2.) Does law provide Marbury with a remedy?  
            yes; He distinguishes b/n political acts, which are not revieweable by courts, and acts 
            specifically required by law, which are reviewable. The refusal to deliver was unlawful.
            3.) Is this right a remedy and can court issue it? He said that the Judiciary Act allowed 
            S.J.C. to have jurisdiction “to issue writs of mandamus to persons holding office under 
            the authority of the United States. But, this grant of jurisdiction was in conflict w/ Article       
            III. 2 which grants S.J.C. original jurisdiction only in cases affecting Ambassadors and 
            other public Ministers and Consuls ,and those in which a State shell be Party.” Since 
            issuance of mandamus is not among the types of cases as to which original jurisdiction is 
            conferred on the Supreme Court, Marshall, held, the congressional statute was at odds 
            with Constitution.
       C. Holding: If the Supreme Court identifies a conflict b/n a constitutional provision and
           a congressional statute, the Court has the authority (and duty) to declare the statute 
          unconstitutional and to refuse to enforce it.
          He basically says that the Constitution is the law and the Court shall interpret it. - 
          Criticisms follow . . .

VIII. When is it State Law?
         Supreme Court since Judiciary Act, may determine whether a state court has reached a
         decision that is not in conformity with the Constitution, but it may not review state court
         decisions that merely adjudicate questions of state law. How the court determines whether
         a state 

       D. Martin v. Hunter’s Lessee:
           I: Does a particular Virginia statue conflict with a federal treaty. Virginia said that since it
           started in state court, it should end there. 
           H: S.J.C. said no way, the Court could review the constitutionality of a decision by a 
           state’s highest court. Justice Story says 2 things: He rejects the sovereignty argument and
           that presumes state judiciaries are immune from this set of limitations. Secondly, he calls 
          for  need of uniformity in decisions throughout the nation interpreting the Constitution: “If
          there were no revising authority to control these jarring and discordant judgments, and 
          harmonize them into uniformity, the laws , the treatises and the constitution of the United
          States would be different in different states.”
       
IX. What is the doctrine of implied powers?
       Although the federal government may act only where it is affirmatively authorized to do so 
       by the Constitution, the authorization does not have to be explicit. That is, by the doctrine of
       implied powers, the federal government may validly exercise power that is ancillary to one 
       of the powers explicitly listed in the Constitution, so long as this ancillary power does not 
       conflict with specific Constitutional prohibitions, i.e. The Bill of Rights.
 A. McCullough v. Maryland:
      F: Congress chartered the second bank of the U.S. in 1816. Bank was designed to regulate the
      currency and help solve national economic problems. However, it soon encountered 
      substantial political opposition. mostly as the result of the Panic of 1818 and corruption 
      within various branches of the Bank. As a result, a number of states enacted anti-Bank 
      measures. What happened in Maryland was that one of these anti-banks statutes, enacted By
      Md, was at center of dispute. MD imposed tax upon all  banks operating in the state that were
      not chartered by the state. The measure was intended to discriminate against the national 
      bank, and its Maryland branch. State then brought suit against the Bank and its cashier to 
      collect  the tax. S.J.C. held that the tax was unconstitutional.
 B. Necessary and Proper Clause:
      This notion of implied powers is in clause of Article I, section 8. Congress may make all 
      Laws which shall be necessary and proper for carrying into Execution “the specific 
      legislative powers granted by Article I, section 8  or by other parts of the Constitution.
 C. Marshall says 2 things: 1.) determining the chartering of the Bank was within the constituti-
      tutionally-vested power of the federal government; and 2.) a finding that since the Bank was
      constitutionally chartered, Maryland’s tax upon it was unconstitutional.  Marshall concluded 
      that the powers come directly from the people, not the states. He also said that particular 
      powers could be implied from the explicit grant of other powers: “We must never forget that
      it is a constitution we are expounding.”  He also found that Congress could start a corporation
      to raise revenue. He rejected that necessary meant “indispensable’ or “absolutely”, instead he 
      argues that end smut be legitimate. and within scope of constitution.
 D. Support for Marshall: the power of punishment is not embedded explicitly in the 
      Constitution.  He brings in separation of powers argument- Supreme Court only strikes down
      when it is quite clear that no constitutionally-specified object was being pursued.
 E.  So What Happens Now.. Where Are We Going To: The modern Implication of Maryland.
      Courts will not strike down a congressional action so long as Congress has employed a
       means which is not prohibited by the Constitution and which is rationally related to 
       objectives that are themselves within constitutionally-enumerated powers.  Article 1, 8  
 F.  Miscellaneous:
      - S. C. had jurisdiction under Article 3, section 2
      - Structural argument made by Marshall -”we cannot imagine everything.”
      - Judicial branch wins again - makes up for defects in process, courts role is to make sure 
         political processes break down. Court weighs in to make sure pol. processes are not loaded.
      
 II.  Federalism and Racism : Who are the People?

    I. Principles
        - issue is put off in Constitution but returns to us in the 19th Century when it provokes the 
          fundamental realignment of federalism and state power which gave birth to a new strategy
          and an expansion of  individual rights. 
        - once you acknowledge who the people were, white property holders, issues of original
           intent  and first principles becomes problematic.
        - 1874 statute officially stated that you cannot deprive individuals of constitutional rights
        - judiciary tried to solve what Congress could not - the expansion of slavery.
        - Feeds said that states protected individual rights
   A. Prieg v. Penn 
        F. Penn passed an act that stated that no Penn officer can be used to help return a fugitive 
        slave. 
        R: unconstitutional under Article 4, section 2.
        Marshall in Marbury would have been skeptical on this outcome.
        The states challenge federalism with fugitive state laws.
   B. Dred Scott:
       Taney declared Missouri Compromise unconstitutional 
        H: Dred Scott was not a citizen cause black people (free or not) were not citizens and can 
        not sue in court.
        The Court throws out Compromise and Congress could not eliminate slavery in the 
        territories.
        - Taney was Jacksonian, opportunist, state-govt. lover cause allows lots of things.
   C. Reconstruction Amendments -
        13 - ratified in Dec. of 1865, restructured federal system and cause Constitution provided 
        for federal authority in area of personal liberty- an area that belonged to states,
        - huge shift in realignment- the product of the will of the people, the legislative branch
        - 13, 14, and 15, overruled Dred Scott, Congress declared property protected in past as no
        longer property. 
        - looking at language “no states shall make laws . . .”  there is a move to national citizenship
   D. Plessy v. Ferguson - separate is equal; legitimized separate treatment of blacks
        Calder v. Bull - natural law argument.
   E. Slaughterhouse cases
       F: Court was reluctant to decide whether Louisiana could give a monopoly on New Orleans-
       area slaughterhouses.  The court held that this monopoly did not violate the Due Process 
       Clause. Although one of the dissenters argued that a statute prohibiting a large group of 
       citizens from pursuing a lawful employment deprived them of both liberty and property 
       without due process of law, the majority curtly rejected this contention, apparently on the
       theory that the Due Process Clause protects against procedural unfairness.
       Privileges and Immunities Clause: The P+I clause of the 14th comes at beginning of 
       Section 1. Some members of Congress who participated in drafting of 14th  expected and
       hoped that this Clause would constitute a substantial restraint on state government action 
       against individuals.
       Application of P+I: S.J.C. held 5-4 that P+I clause merely forbade state infringement of 
       the rights of National  citizenship, not the rights of state citizenship.
       More Facts: Louisiana passed a law giving a monopoly on area slaughterhouses to a 
       particular company. Butchers not included in monopoly claimed that the statute deprived 
       them of the opportunity to practice their trade, and thereby violated 13 and 14. the plaintiff’s
       most serious argument was a denial of the P+I clause of Louisiana citizenship, including the 
       right to practice one’s calling.
       Real deal: Court sails no way- P+I distinguishes b/n U.S. citizen  and state citizenship. 
       “Fundamental” civil rights like practicing one’s calling, were domain of the states, not 
       federal govt.. So, look for LA for protection. If none, out of luck.
       Dissent: death to P+I; only applied to high seas, traveling from state to state, fed. elections.
       Field: What about right to engage in livelihood? , Article 4, 2 offers all citizens same basic
       protection as against slaves.
       Bradley: Employment is a basis fundamental right. 
   F. The Civil rights Cases - Interpretation of the Reconstruction Amendments and laws.
        A majority of the court held that, since only state action could violate the 14th A, Congress’ 
        enforcement power only permitted it to restrict state action, and not private conduct.
        consequences: Congress did not even have the power to prevent one private individual from
        forcibly blocking another’s exercise of the right to vote in state elections, the right to attend 
        public schools, or other exercises of state rights.

III. POWERS OF CONGRESS UNDER ARTICLE 1 - THE COMMERCE CLAUSE
   
   A. What are the powers of Congress, if any? There are limits. Acts of Congress are invalid 
   unless affirmatively authorized. State action is also valid unless prohibited by the Constitution.

Amendment 10 - reserved powers to states 

Under Commerce Clause, is Congress intending on powers traditionally received for State.
Article 1, section 8, clause 3
Marshall interprets commerce, regulate, and among.

  B. Gibbons v. Ogden: Marshall - Commerce Clause as a limitation upon state 
       powers, its principal interest is for  its broadsweeping view of Congressional power under 
       that Clause.
       F: Ogden, acquired, by grant from New York legislature, monopoly rights to operate 
       steamboats b/n New York and New Jersey, in violation of Ogden’s monopoly; Gibbon’s
       boats were licensed, however, under a federal statute. Ogden obtained an injunction in a
       New York court ordering Gibbons to stop operating his boats in New York waters.
       H: Marshall found injunction against Gibbons invalid, on ground that it was based upon a
       monopoly that conflicted with a federal statute, and thus violated the Supremacy Clause.
  C. Commerce Power - Marshall says Congress could legislate with respect to all “commerce
       which concerns more States than one.”  “Commerce,” he concluded not only buying and 
       selling, but all “commercial intercourse.’
       May affect intrastate matters: Ogden apparently argued that insofar as his New York-granted
       monopoly affected his rights in New York waters , this monopoly was superior to any 
       federal rights regarding those New York waters. Marshall answered that to affect matters 
       occurring within a state, so long as the activity had some commercial connection with 
       another state. Thus, federal law could affect New York waters, if voyages beginning in NY 
       ended in New Jersey. Marshall conceded that “the completely internal commerce of a State . .   
       may be considered as reserved for the State itself.”
       Affects to the utmost extent: Marshall says no area of interstate commerce is reserved 
       for state control. The only limits are in the Constitution.
       He points out three requirements 1.) if intrastate and does not affect anyone; 2.)

       and 3.) not necessary to interfere with any powers of government.  
  D. 10th Amendment - Rejected by Marshall - The powers not delegated to the U.S. by Const.
        nor prohibited by the states, are reserved for states respectively acts as independent limit on
        Congress’ power.
   E. Aftereffects - until late 19nth century, S.J.C. never considered commerce clause power. Not
        scrutinized until Sherman Anti-trust Act in 1890.
   F.  State powers - Congress, b/n 1880-1937 struck down congressional legislation’s on a. 
        economic regulatory laws, and b.) police powers regulations and those directed at moral 
        issues.
   G. Dual federalism- b./n 1880-1937 Court felt that there were areas of economic regulation
        that belonged to states under 10th Amendment and others that properly belonged to
        Congressional regulation.
   H. Manufacture vs. commerce: U.C. v. E.C. Knight:
        Federal government sued used under Sherman Anti-trust Act to force major sugar refiner to
        divest itself of other refiners that it had recently acquired.
        H: Court says Congress could not under C.C. forbid a monopoly in “manufacture.” The 
        refinery was a manufacturing operation, and was therefore left to state control. The fact
        that the refined sugar was eventually sold “in commerce” was irrelevant, since the 
        manufacturing operation’s relation to commerce was only “incidental” and indirect.” What
        was required was a direct relationship with Commerce.
        R: protection for states to govern themselves. Court says “all contracts and combinations in
        manufacture, agriculture, mining, and other productive industries, whose ultimate result 
        may affect external commerce, comparatively little of business operations and affairs would
        be left for state control.”
   I.  Shrevport Rate Case:
        I.C.C., after setting rates for transport of goods b/n Shrevport, LA. and various points in
        Texas, sought to prevent railroads from setting rates for hauls Totally within Texas which
        were less per mile than the Texas-to-Shrevport rates. Commission’s theory was that Shrev.
        competed with certain Texas cities for shipments from other parts of  Texas, and that lower
        Texas intrastate rates were unfairly discriminated against the Texas-to -Shrevport interstate 
        traffic. Railroads said that it. was beyond Congress’ power to control intrastate rates of an
        interstate carrier.
        H: Court says commerce power necessarily includes the right to regulate “all matters having 
        a close and substantial relation to interstate traffic that control is essential. The Ultimate
        object is protection of interstate commerce.   
    J. Stafford v. Wallace:
        H: Court upholds constitutionality of Packards and Stockyards Act that regulated goods
        for interstate commerce.
        S.J.C combats act-disfavored for non-commercial use. 
         Swift: “Current commerce” theory ala Holmes. An activity can be regulated under 
         commerce power cause it had effect on commerce, and can be viewed as being “in”
         commerce or as being part of the “current” of commerce.
    K. Lottery case- Champion v. Ames: 
        Congress passes Federal Lottery Act prohibiting shipment of lottery tickets  and Court
         upholds the statute. 
         R: The majority rationale is assumption that lotteries were clearly an “evil” which it was 
         desirable for Congress to regulate; since Congress regulated only interstate shipment of 
         these evil articles, it could not be said to be interfering with intrastate matters reserved for
         state control, 4-justice dissent says only commerce itself could be regulated, and that 
         lottery tix were not “articles of commerce.”   Stockyard activities took place in different 
         states.

    L. Hammer v. Dagenhart: 
         H: 5-4, struck down federal statute that prohibited interstate transport of articles produced
         by companies which employed children younger than certain ages or under certain 
         conditions.
         R: Goods were harmless as opposed to tickets, employment may be evil, but does not affect 
         interstate commerce.
         Also, if this power is allowed, all manufacturing under states would be brought under 
         federal control.
         Holmes dissents - So long as the Congressional regulation falls within power specifically 
         given to Congress, the fact that it has a collateral effect upon the local activities otherwise 
         left to state control does not render the statute unconstitutional. rejects 10th Amendment.
   
M. The New Deal Cases: Weird time, Supreme Court’s view of Congressional power under 
         Commerce Clause was in ambiguous state. The “commerce-prohibiting” technique was of 
         doubtful validity, in view of Hammer. Validity of the ”effect upon commerce”  rationale
         was unclear: Shrev indicated intrastate activity had substantial practical effect on interstate 
         commerce. Within a few years, it was apparent that Knight would carry Court, and majority
         would strike down Congressional regulation of any area which majority felt was reserved
         by 10Th Amendment  to state control.  In Knight, direct and logical relationship b/n
        intrastate activity and interstate activity
         
         1. Schecter Poultry Case: (1935) caused uproar - -  stream of commerce argument
             F: Involved conviction of Schecter Poultry Corp. on charges of violating the wage and 
             hour provisions. Although vast majority of poultry sold in N.Y. came from other states,
             Schecter itself bought within N.Y. and resold exclusively to local dealers. Government
             argues that his conduct could be constitutionally reached under Commerce Clause, on 
             alternative theories that a.) his activities were within stream of commerce of the chicken(
             ala Swift) and b.) his activities, though local, affected commerce substantially.
             H: act was unconstitutional - his activities were not within stream of commerce cause 
             the interstate transactions ended when shipments reached his NY slaughter-houses(unlike
             cattle in Swift that was RESHIPPED OUT-OF-STATE.
             Affecting commerce rationale was dropped cause his wage and price policies had little 
             impact.  - indirect effect not enough.
             A: This striking down of New Deal legislation went on for a while, leading Roosevelt to
             propose court-packing plan. He lost, but right when court showed willingness to uphold
             commerce-based laws if the activity “substantially affects: interstate commerce.
         
            2. . The Modern Trend: NLRB V. Jones & Laughlin Steel Corp.: switch in time 
            saved nine:  more deference, “as long as it substantially effects”   (1937)
              F: tested constitutionality of NLRA of 1935. - attempt to prevent J&L from engaging in 
              ‘unfair labor practices” by the discriminatory firing of employees for union activity.
              H: Court upheld act as within commerce power cause J&L owned mines in 2 other 
              states even though they manufactured steel and iron only in Pennsylvania.  They sent
              lots of products outside PA. Court said that a labor stoppage would have “a substantial
              effect on interstate commerce.” Court denied “stream of commerce”theory used to strike 
              down and uphold laws was applicable here. Court rejected Knight distinction b/n manu.
              and commerce - so long as the activity has a substantial economic effect on interstate 
              commerce, Congress could regulate it regardless of when or where activity occurs.
              NOTE: for a long time “substantial effect” seemed to be just about any effect. But see 
              Lopez.
         
              3. Wickard v. Filburn: (1942)  Cumulative Effect
             “Cumulative Effect” Theory - eco as opposed to police power - farthest stretch in 
             upholding Commerce clause - Lopez majority said
             F: AAA of 1938 permitted Secretary of Agriculture to set quotas for the raising of wheat
             on every farm in the country. Act allowed not only the setting of quotas on wheat that
             would be sold interstate and interstate, but also quotas on wheat which would be 
             consumed on the very farm where it was raised. Wheat raised in excess of the quota
             was subject to a per-bushel penalty.
             R: Unanimous court upheld act cause consumption of home-grown wheat is a large and 
             variable factor in economics of wheat market. More wheat consumed on farm where
             grown, the less wheat that is brought in commerce.
             Cumulative effect- Plaintiff’s own effect might be trivial- but taken with others that are 
             similarly situated - not trivial. Protection of the interstate commercial trade in wheat 
             clearly falls within commerce power as long as it is reasonably related to protecting
             that commerce.
       
             4. U.S. v. Darby: ( 1941)
            Challenge to Fair Labor Standards Act of 1938, which set minimum
            wages and maximum hours. Made it a federal crime to employ workers in the production
            of goods at other than the prescribed rates and hours. Court upholds saying that Congress
            can prohibit anything crossing state lines if it deems injurious to public welfare. This is a 
            commerce prohibition a la Hammer and Champion and is substantially broadened in 
            this case, just as the “affecting commerce” type  cases Wickard , from Schecter etc.
            are broadened. Overrules Hammer. Ct. also gets into means/ends argument that goes 
            through many of these federalism cases, says Congress may “choose the means
            reasonably adapted to the attainment of the permitted end, even if they involve control
            of interstate activities. Means/ends returns in NY and others.
      
            5.  Perez v. U.S.:
            Cumulative effect rationale applied in decision sustaining anti-loansharking provisions of 
            the Consumer Credit Protection act.
            R: Effect cause organized crime dependent on it and took revenues from other localities.
       
            6.  Heart of Atlanta: (1946) follows Wickard
            F: Plaintiff was a motel that refused to rent rooms to blacks.
            H: Held that motel could constitutionally be reached by Civil rights Act under Commerce 
            Clause. Ct. took note of Congress’ findings that racial discrimination discouraged travel 
            on the part of a substantial portion of the black community. Further, Court held that “the 
            power of Congress to promote interstate commerce also includes the power to regulate
            the local incidents thereof, including local activities in both the States of origin and
            destination, which might have a substantial and harmful effect upon that commerce.”
            Court quoted a prior decision that “ if it is interstate commerce that feels the pinch, it 
            does not matter hoe local the operation that applies the squeeze.”
            Proof of advertising as well near highway shows discrimination affects commerce.
       
             7.  Katzenbach v. McClung: Ollies Barbeque (1964)
            Restaurant that denied service to blacks. No evidence of out-of state customers, although
            46% of food bought from supplier. Ct. upheld cause act applied here. This type of act 
            discourages tourism.
            Note: Court said that it would not go further if “legislator, in light of testimony,
            have a rational basis for finding a chosen regulatory scheme necessary to protection
            of commerce.
  
    8.   U.S. v. Lopez:(1995)EFFECT MUST BE SIGNIFICANT-limits commerce clause - 
          commercial . . . . . . 
            F: Gun Free School Zone Act of 1990, made it federal crime for individual to knowingly 
            possess a firearm in a school zone.  Court overruled- first time in 60 yrs. it invalidated a
            federal statute on grounds that it was beyond Congress’ power under Commerce Clause.
            Court found that 1.) the statute did not have a “jurisdictional nexus” meaning there was 
            nothing necessarily interstate about any given gun (whereas the law could have banned 
            all guns having traveled in interstate commerce. 2.) statute did not include explicit 
            findings by Congress that the activity being regulated affected commerce (this is different 
            from approach in Katzenbach. 3.) the activity regulated does not “substantially affect: 
            interstate commerce (this is the first time the word substantial is given any bite at all). 
            Court distinguished Wickard by noting that activity here was not itself commercial 
            activity, unlike wheat production. 4.) Gov. made a logical chain b/n guns at school and 
            interstate commerce. Majority used it to introduce parade of horribles, including saying
            Congress could call child rearing a commercial activity. Majority outlines three broad 
            categories that can be regulated by Congress: “channels” of interstate commerce - 
            reasonably related to highways, etc.; “instrumentalities” - people, things that are used in 
            carrying out commerce. trucks that need safety devices.;  “substantial relation to 
            commerce” - it has to have a “real bite” - Activity must be commercial, if not- has to have 
            obvious connection.   3 things are identified by Rhenquist, my favorite!!!
      
COMMERCE CLAUSE TESTS

NO interstate Commerce                                                                         Interstate commerce
state sovreignty                                                                                           Congress’ plenary     
unconstitutional                                                                                           powers, anything is 
no interstate commerce                                                                               interstate commerce
Lopez, Sick chix case                                                                                  Loose Nexus b/n state 
Indirect, not enough                                                                                     activity and interstate
too intrastate                                                                                                commerce N.L.R.B.
not in flow of commerce                                                                              Wickard nat. mkt.
Note Lopez supposedly                                                                                cummulative effect
upholds other cases but by                                                                           Heart of Atlanta, Darby
asking Congress for specific                                                                        Perez, Ollies BBQ
findings the court seems to
indicate it will not
defer to Congress’
legislative judgment on what commerce is                                     

           N.  Caveat: The Tax and Spending Power - Article 1, 8 gives Congress power to lay 
           collect taxes. Thus, Court digs more deeply into 10th Amendment, using spending power
           than with Commerce Clause. Usually, cases here come in context attached to federal 
           dollars. One question is whether states are given a real choice- another- is the string 
           programmatically related to the end Congress wants to accomplish. (nexus)
           Thus, these cases are apart from line of Commerce Clause cases.        
       
      1.  Usery: (1976) Tenth Amendment prevents Congress from regulating the states in a way
           that might impair their ability to function effectively in the federal system.
           S.J.C. gave 10th Amendment validity in this case. Court held that 10th Amendment 
           barred Congress from making federal minimum-wage and overtime ruled applicable
           to state and municipal employees, 5-4. Majority concede that minimum-wage/ over-time
           rules as applied to state employees, clearly affected commerce. Thus these wage 
           regulations could be applied to private employers, under commerce power. But when 
           these wage/hour rules were applied to state employees, they violated the independent
           requirement, imposed by 10th Amendment, that “Congress may not exercise power in a
           fashion that impairs the States’ integrity of their ability to function effectively in the
           federal system.” The regulation violates requirement cause it impairs state’s ability to 
           function effectively purely as a matter of cost: compliance would cost the states and their
           municipal subdivisions substantial sums and the new rules stripped the states of their 
           discretion to decide how they wished to allocate a fixed pool of funds available for 
           salaries.  Rhen liked 10th????
           To sum, there would be little for states to exist independently if Congress had right to
           make fundamental employment decisions.
      
      2.  Garcia: overruled Usery : When Congress, acting pursuant to its commerce clause, 
      regulates the states, the fact that it is a state being regulated has no practical significance-if
      the regulation would be valid where applied to a private party, it is also valid as to the state.
           Issue was whether the minimum-wage and overtime provisions of the federal Fair Labor 
           standards Act ( the same statute in Usery) should apply to employees of a municipally-
           owned and operated mass-transit system. Majority, 5-4, say that it is difficult to identify 
           an organizing principle that would distinguish b/n those functions that are “traditional 
           government functions” and those that are not. Court lamely says that states are represented 
           in Congress in our federal system, and this protection is enough against fed. intrusion on
           state rights. Powell’s dissent takes exception with this point and says it is not 
           distinguishable in principle from saying individual rights are protected because they can
           vote.
           O’Connor’s dissent: (author of NY) says states should not be treated only as individuals 
           would be cause this would allow Congress to choose state’s role. Also brought up direct
           elections of senators and national interest groups as contra the political process protection
           argument. - structural protection.
           Meaning of it all: appears to mean that once Congress, acting pursuant to its Commerce 
           power, regulates the states, the fact that it is being regulated has virtually no practical
           significance - if the regulation would be valid if applied to a private party, it is also
           valid as to the state.
      
      3.  New York v. U.S.: Congress may not simply force a state to regulate in  a certain way
          Federal act sets up incentives to get rid of waste :1.) states that set up system will get 
          federal money; 2.) access incentives(states that don’t deal don’t get access already existing
          sites; 3.) take title provision(states that do not deal will have to take title to the waste and
          liability resulting from it. Court found that the first tow did not violate the 10Th 
          Amendment and were allowable - the first as a valid conditional use of the federal 
          spending power, the second as a valid exercise of Commerce Clause power. The third 
          violated the 10th Amendment by “commandeering” the government of NY state into the
          service of the federal regulatory process. O’Connor says this regulates states, not waste
          (Commerce clause ?) and that feds cannot “coerce or commandeer” state legislative action
          (10th A.) There are lots of questions -why and do not regulate states and waste. One way 
          to see this is that the state legislative machinery is protected by the 10th Amd. -- the coerce
          or commandeer business, meaning feds cannot coerce legislative action. Garcia may
           remain generally applicable to federal lawmaking, but where force is used to enact state 
          legislation, this is directly specifically aimed at the state’s basic exercise of deciding what
         laws to pass and how.
         Difference b/n here and Garcia is that here feds try to force a state to adopt regulatory 
         scheme vs. Garcia where case was mainly applicable to federal law.
         Note: Congress will be allowed to do more under spending power than with commerce
         power.  It can supplu money, and make loss of money the penalty of not complying.
        
IV. State Interests and the National Market : Changing Definitions of  
                Federalism

  A. Intro: all cases here are really dormant commerce clause cases- meaning they are statutes 
  which have significant effects on interstate commerce. Question here is how much are the 
  assertions of local or state power infringing on Congress’ power to regulate commerce. The 
  commerce clause in these cases looms over states -- states can only go so far in passing 
  anything that is violate of Congress’ power to exercise it, including Congress not doing 
  anything to regulate commerce in a particular area or market. The problem is usually not
  usurpation, it is discrimination. States may exercise their police powers, but in doing so they
  violate the dormant commerce clause if the intent of the effect of law is to discriminate against
  some commercial actors (and benefit in-state actors)  -- it is said that such a law “discriminates
  against interstate commerce.” The mere existence of federal commerce power restricts the states
  from discriminating against, or unduly burdening interstate commerce.

Cooley Doctrine: states were free to regulate those areas of foreign commerce so local in 
character as to demand diverse treatment - balancing test almost- how desirable it was to permit
diverse responses to permit local needs. - could not discriminate

DCC TESTS

not ok                                                                                                          ok
PROTECTIONIST                                                                                 PECULIARLY LOCAL
Economic localism                                                                                  interest Maine v. Taylor
sweetheart deal                                                                                        cooley
Phil v. NJ
Exception to market participant doctrine                                                Market participant
is the P and I clause                                                                                 White OK
which prevents states from discriminating
against out of state individuals (not corps)
South Central Timber not OK
cause raw resource, broad effect, foreign commerce
So can’t use MKP if discriminating
against out-of staters.

B. City of Philadelphia v. New Jersey:
F: NJ statute says that we will not let any waste in from out of state- was unconstitutional per se
cause on its face it discriminates between in-state and out-of-staters- “where simple economic protectionism is effected by state legislation, a virtually per se rule of invalidity has been erected.” It did not matter whether the ultimate aim of the state was to protect the environment, cause “it may not be accomplished by discriminating against articles of commerce from outside
the State unless there is some reason, apart from their origin, to treat them differently.”  (this is a reference to the previously upheld quarantine laws - the Court said there is a danger in the movement of contagious livestock, these laws simply prevented traffic in noxious articles.)
H: violated Commerce clause- a projectionist measure rather than a way of resolving legitimate local concerns.
R: Purpose of statute was unclear- stabilize costs of disposal or protect state’s environment and health of inhabitants.
2 ways to run foul commerce clause: a) economic protectionism - if state violation is nothing more than protecting citizens @ expense of other citizens - per se violation
b.) if court does not find that it is projectionist, it will ask - are affects on  interstate commerce incidental?  no-invalid, if yes- balancing test. Is the burden on interstate commerce created by interstate commerce excessive and is it related to the benefit that flows from state regulation?
Purpose and effect analysis- state has the burden - must prove local benefit is not outweighed.
Stewart concludes that N.J. law was discriminatory on face and effect.
Dissent - why should N.J. take waste if it can not protect what is left? -worsens own problem.

C.  Maine V. Taylor: baitfish case:
F: law prohibits importation of live baitfish. It was facially discriminatory, so law must survive the strictest scrutiny -- the burden was on the state to show that the law served a legitimate local
purpose AND that the purpose could not be served as well by an available nondiscriminatory
means. (Nexus, means/ends question) In this case that burden was met. Maine clearly established a legitimate and substantial interest in excluding baitfish because of the problems surrounding the consequences of their importation.
-exception, probably a narrow one, to the per se rule.
R: there was no real, reasonable alternative to serve interest of the state.

D. Market Participation Doctrine:
When the state is not a regulator but is itself participating in the market as a buyer or seller, it may regulate interstate commerce free of DCC restrictions. This is best seem as an exception to the per se rule of  Philadelphia. The question is what is exactly and when does it apply. Depends on how court terms the market and state’s role in market.

E. Privileges and Immunities Clause:
- vehicle for limiting state power - parochial protection interests.
- repeated in 14th Am. and designed to ensure citizens in other states that they are not discriminated against cause they are from outside the state.
- does not require same treatment and does not impose ban on citizens from other states.

F. Baldwin v. Montana Fish and Game Comm’n:
F: Montana allows its residents to purchase a licensee for hunting elk and other animals for $30, while non-residents are charged $225.
H: Scheme did not violate P and I clause cause right to recreation is not a right that is fundamental to national unity.
R: Non-economic rights are not “fundamental to national unity,” and thus not protected by P&I.
Dissent: passing costs on own audience - protectionism.

G. Corfield v. Coryell:
1st time S.J.C. introduced P&I.
Washington had national rights 
-protected fundamental issues  which belong to right of citizens of all free governments
- police powers help safety and welfare.

H. Unit Building and Contruction Trades Council v. Camden: - recent P&I case
F: Camden a law requires 40% of contractors and subs on city projects be Camden residents.
H: Court finds that a.) P and I clause can apply to municipal ordinance cause a municipal law is merely a political subdivision of a state. Although other NJ residents ca not complain under the P and I clause, the ordinance burdens out-of-staters too. 2.) The ordinance does discriminate against  protected privilege - “the opportunity to seek employment with private employers is “sufficiently basic to the livelihood of the nation” as to fall within the purview of the P and I clause.
Court says now it must do balancing test, cause clause does not preclude discrimination against citizens of other states where there is “substantial reason” for the difference in treatment.” Here, the court said there is not enough in the record to make this determination - remands the case to lower court to evaluate Camden’s justifications.

2-part test for P and I
1.) the discrimination will violate P&I unless non-residents are a “peculiar source of the evil” which law was expected to remedy.
2.) Plaintiff will win if  the discrimination against non-residents does not bear a “substantial relationship” to the problem the statute is attempting to solve.

- where state is acting as market participant, it is not subject to commerce clause’s prohibition against interstate commerce. No Market exception in P&I.

G. NH v. Piper:
Rule that limiting bar admission to local residents violated P&I. Court found no substantial reason for the discrimination.
-fundamental right and privilege is the practice of law.

V. Preemption: Federalism Redux

A. Preemption: When congress does exercise its power, state law must yield. The Supremacy clause of Article VI provides that in case of a conflict, state law must yield to
federal law. Federal law is said to have “preempted” state law.

B. Gade v. National Solid Waste Management Association:
F: Osha regs are less strict than IL laws governing hazardous wastes, aimed at promoting job safety and protecting life and limb. Divided court says that there is no express preemption, but it can be implied through Congressional intent.
Kennedy says there is express preemption, but not implied.
Four others dissent saying that there is nothing in text of OSHA which preempts. Plurality said that dual objective statute may not avoid preemption simply because it serves several objections rather than just one - here the effect of the statute was already prescribed by OSIER, so regardless of objective - law is preempted.
Preemption arises where court decides whether something is applicable to what Congress has decided.
Either totally regulatory scheme or no ergs at all would have been better.
O’Connor - field is preoccupied, it is impossible to conflict. physically impossible.
3 ways Congress may preempt state regulations: 
express, implied: preemption found when intent is unmistakable, broad, and field is not one covered by state powers such as health and safety.

VI. Economic Substantive Due Process: Activism and Deference 

substantive due process:  doctrine relying on 14th Amendment to invalidate a substantive state regulation. DP clause sound like limitation that relates solely to procedures. However, clause came to be interpreted as a limitation on the substantive power of state legislatures to regulate various areas of economic and non-economic life.
- finding rights with no specific textual meaning - what was not available under P&I became available under SDP.
    
A. Introduction: The Due Process Clause of the 14th Amendment limits the substantive power
of the states to unreasonably interfere with or limit certain rights. SDP is the doctrine that relies on the 14th Amendment to invalidate a substantive state regulation. Often the threshold question is which rights the Court decides are Fundamental and which are non-fundamental -- the decision determines how strictly (strict scrutiny) or not (merely a legitimate objective with means rationally related to the objective) a court will test the regulation.

History; early on it seemed that 14Th  only would limit procedural powers of the states, especially after Slaughterhouse. But in late 1800 we encountered the theory of natural law and the rise of the economic laissez faire theory, which set the stage for what we will call “the Lochner era,” giving us the first substantive right to be protected by the due process clause-
liberty of contract.

Now, we see a limitation of states rights to regulate.

B. Lochner period
Lochnerizing - criticism that they are being overly-judicially-active
-because of the symbolism of the proper role of the court

The difference between the butchers and the bakers
- shift from slaughterhouse to 14th A - SDP.
- limitation of states rights to regulate

C. Lochner v. New York:
F: After Allegeyer defined liberty of k as encompassing “the right to be free in the enjoyment of his facilities, to use them in lawful was, to live and work where he will, to earn his livelihood by any lawful calling, to pursue any livelihood, to enter into all contracts necessary to carry out the above rights. But in this case
There was a NY statute that limited the hours of bakery employees.
Court struck down statute saying that it violated freedom of K. Says 1.) not a valid labor law; 2.) this is not a health and safety measure (within state powers) and 3.) we do not believe that the state’s interest(the legislative motive) was in health and safety. The legislature’s motives were
given no deference, meaning the court would reach its own conclusions -- and decide if there is a connection (a very close one) between the means and ends of the regulation, looking at the “natural effect” of the regulation.
Harlan dissents: the legislature should be deferred to -- that their determination was not irrational or unreasonable.
Holmes dissents: The court has no right to impose it’s own views about economic theory on the NY legislature.  “The 14th Amendment does not enact Mr. Herbert Spencer’s social static.”
Test used by majority: close fit and only certain legislative objectives were acceptable.

D. Legal Association v. Topeka:
F: Miller abandons slaughterhouse attitude and strikes down local args.
here, court uses D.P. as vehicle to check excess in legislation.

E. Lochnerism-
-critical of SDP
- decision began era of  3 decades in which court evaluated contractual liberty and property
-substance v. due process
- for reasonable intrusion upon economic freedom, there are three requirements: 1.) state’s exercise of police power has to respond to health and safety concerns; in interest of general welfare. 2.) had to be reasonably related; court substituted on what judgment was reasonable.

F. Criticisms
- strict objections that was judicial activism
- substantive - decision was unjust and based on outdated perceptions of role of state.

G. Muller v. Oregon (1908) 
F: OR law bars women from working in a factory or laundry for over 10 hrs. per day. Ct. sustained law, saying that unlike bakers, women are “disadvantaged in the struggle for subsistence,” and therefore in need of special protection. Court accepts Lochner and that this a
special class and is about health.
In Muller, there is famous Brandeis brief  - detailed factual support for the physical differences b/n the sexes and the dangers to overworked women. The idea of documentation to demonstrate the requisite link b/n the legislative end and the means used to achieve it has an importance well beyond this case, despite what Thomas says in modern desegregation cases.

H. The End of Lochner:

1. Nebia v. New York: rational relationship to legitimate state objective 
F: NY scheme for fixing milk prices. Court upholds it, noting that the DPC only requires that “the law shall not be unreasonable, arbitrary or capricious, and that the means selected shall have a real and substantial relation to the object sought to be attained.”  And we begin to see that the Lochner philosophy and activism is, as court changes and depression continues, on the outs. . .

2. West Coast Hotel v. Parrish: - major overruling of Lochner  (1937)
F: Ct minimum wage law for women. Court upholds it, says state can have an interest in
women’s unequal bargaining power (already a long way from Lochner) and gave deference to the
legislature. “Regulation that is reasonable in relation to its subject and is adopted in the interest of the community is due process.”  
R: legitimate limitation on freedom of  K.
M: Both Nebia and West maintained a “real and substantial” relation between an economic regulation and a legitimate state objective.  Not so much in Carolene
concern for protecting notions of economic liberty

3.  Lucas v. South Carolina Coastal Council:
F: Lucas, a developer, bought land and state government said no building after buying land on barrier Islands. It was another way of the government’s “Taking”. This regulation deprived him of all economic use that land was intended
H: resolution of ban is left to state. If P has truly been deprived of all economically viable use of his property, a “taking” has occurred.

4. U.S. v. Carolene Products: - judicial abdication in economic cases   (1935)
F: Federal law prohibiting shipment of filled milk. Court upheld law saying there is a presumption of constitutionality applied to economic regulations under due process attack. Laws will be okay (and the existence of facts to support the judgment behind them will be presumed) as long as there is nothing to” preclude the assumption that it rests upon some rational basis within the knowledge and experience of the legislators.” It would be fair to call this a minimum rationality test, if it can be called a test at all.
R: Court noted that Congress had acted upon finding of fact showing a public health danger from filled milk. But even in the absence of explicit legislative findings, the Court held, “the existence of facts supporting the legislative judgment is to be presumed, for regulatory legislation affecting ordinary commercial transactions is not to be pronounced unconstitutional unless . . .it is of such a character as to preclude the assumption that it rest upon some rational basis within the knowledge and experience of the legislators. This test might be characterized as a “minimum rationality” standard, coupled with a Presumption of constitutionality.
The big deal about Carolene footnote 4: Justice Stone outlines situations where courts should not defer to the legislature:
1.) where a right in the bill of rights is implicated.
2.) where a group is unable to get access to or participate in the political process to get its needs met and its point of view expressed.
3.) where a discrete and insular minority is involved.

5. Williamson v. Lee Optical: not even a mild case of scrutiny 
F: OK law against an optician to fit or duplicate lenses without a prescription. Here, the court says O.K. cause legislature “might have concluded” that this was a good idea. The quote will do : The day is gone when this court uses the due process clause to strike down state laws . . cause they may be unwise, or out of harmony with a school of thought.”

 VII. Traditional Equal Protection - Rational Basis Review

A. Introduction:
The doctrine of substantive due process, beginning with Lochner, is today the basis of what might be called modern rights theory - that is, it is the due process clause where we find the right to privacy (and other non-economic rights)  The other source of :rights” in the constitution is the Equal Protection Clause - it is the Constitution’s source of  “equality.”  It is about how the legislature classifies people and whether such classifications are or are not a denial of the equal protection of the laws. The question in such cases is - is the classification drawn along constitutional lines? Of course we will see that the important related questions are what is a classification (is a test that has a discrete impact on minorities?) and what level of scrutiny should the court apply to a given legislative classification (how and when should the court apply strict or mid-level scrutiny to the legislative action as opposed to a “mere rationality” test?

Where classification falls on this continuum of strictness is important because it turns on the allocations of proof. When will there be a presumption of validity to the classification? When will the P have to show only that he is a member of a “protected” class and that class has been drawn along class lines. In equal protection cases a good lawyer and student will always ask- what exactly is P’s Pfc., and if p makes out a case, who has the burden of proof to shoe that a class is rational or not?

The first set of cases we look at are classifications which are not suspect or quasi-suspect. (not race or gender based) Then the question is - Is there a rational relationship between the means selected by the legislature (the classification) and a legitimate state goal? Is the classification reasonable - this is the Rational basis test - traditional approach.
Some terminology to note: Overinclusiveness: means when a classification (that all people over .08 are breaking the law) includes people who are meant to be classified (that lots of people are .08 and not really drunk. Underinclusiveness: means that the classification does not reach all the people meant to be so classified (that lots of people are drunk before they reach .08) Obviously , many classifications can be both at the same time (there are people who are not drunk at .08 and there are people drunk well before .08)

-Homes refereed to equal protection as the last resort
-demise of substantive due process
- equal protection requires that similarly situated people be treated similarly
 
B. NYCTA v. Beazer:
F: Ny transit refused to hire methadone users, even though many could perform safely. Court held that public safety as a legislative purpose is a legitimate end and excluding users is rationally related - the legislature could have decided that it was important. Court said Congress can attack a problem slowly, one step at a time - no “requirement that all evils of the same genus can be eradicated or none at all.” Railway Express (see below)
NOTE: This is a model of extreme deference, and it is analogous to the latter-day substantive due process cases where an “economic “right is implicated. Of course the court decided to make this not a racial class - but it illustrates that one thinks about the outcome of a given case may determine level of scrutiny. Cleburne and other classes will get higher scrutiny.
Classification is also relative to achieving governmental end.

C. Railway Express Agency v. New York:
F: law banning ads on vehicles except owners advertising their own products.
H: Court said no violation, used one step at time argument. Legislature may deal with something one step at a time- another way of saying that a statute that is “under-inclusive” is not necessarily invalid. Concurrence said that there was a difference between doing for oneself and for hire.

D. Williamson v. Lee Optical:
F: Ok optometerists not allowed to make lenses.
R: equal protection clause no good here cause classification must be reasoned so that similar people are not being treated similarly and there was a rationally related legitimate state interest.

- the legislative judgment should be respected unless it is 1.) unreasonable or 2.)the right implicated is one more fundamental than an economic one (such as privacy or voting)

A little bit of more than minimum scrutiny . . .

E. City of Cleburne v. Cleburne Living Center:
Tx  city’s denial of approval to a group home for the mentally retarded. Court struck down the denial. Although they refused to say retardation is a “quasi-suspect” classification, it’s clear that they gave this more than “mere rationality” standard that it gave to purely economic regulations (Fritz and NYCTA). The court took into account 1) that mental retardation is an immutable trait, not volitional, and is traditionally disfavored class, and 2.) that D;s arguments , that the house was on a flood plain, that a junior high school was across the street, were simply lame. The point is that the county was applying something more than mere rational review, although they did not admit it.

F. Romer v. Evans:
F: Court struck down a Colorado constitutional amendment that would have prevented the state or any of its cities from giving certain protections to gays or lesbians. 
R: The court found that it failed “mere rationality” for two reasons” there was no legitimate state interest in fact being served, and the means chosen by the state were not rationally related to the possibly legitimate interest that the state asserted.
Supposed use of mere rationality, Kennedy says if law neither burdens fundamental right nor targets suspect class, we will uphold as long as bear rational relation to some end.’
The desire to harm here does not serve a legitimate interest and makes homosexuals unequal to everyone else.  illegitimate state animus

VIII. STATE ACTION

A. Intro:
Stuffed between EP and Race/gender EP on syllabus is State Action and Inter to Fist Amendment. These two have some logical relation cause often a threshold question in claims to free speech is whether there is state action or not, because private actors can limit speech in any way they want. Hurley.  State action is of course a part of the PFC in any constitutional claim, but one thinks that maybe any 1st A question on the final will have a state action component - not necessarily the case with EP or DP or CC. Anyway, this state action section has maybe two “doctrines” and lots of cases. I will outline it with a concentration on the facts of the cases, because we will conclude the way to get to state action is to analogize the facts of your case (and the rights implied) with another where the court has already found state action.

The civil rights cases point out that only public action can violate the constitution, that exclusively private behavior is not regulated by the 14th Amd. or any other part of the Constitution.

B. DeShaney 1989
F: child that was not protected by DSS.
H: no state action
R: There are limited circumstances where the state has an affirmative duty to care for individuals, this is not one of them. Rhenquist says that the purpose of the DPC is to “protect people from the state , not to ensure that the state protects them from each other.

C. Flagg Bros. v. Brooks 1978
F: evicted P had city arrange for storage of her stuff in a warehouse, law said warehouse could put lien on goods for storage charges, P says no Due process.
H: no state action. the resolution of private disputes is not “traditionally an exclusive government function.” An individual acting pursuant to a state law is not basis for state action.
D. Lugar 1982
F: Sheriff helped to get a debtor’s property
H: Here the private property and the state official jointly participated in the activity challenged

E. Shelly v. Kramer: 1948
F: racially restrictive covenants enforced by court
H: This is positive action. Court held that enforcement of the covenants constituted state action and therefore violated 14th Amd.

F. Burton v. Wilmington Parking Authority: 1961 
 F: Coffee shop that did not serve blacks, parking garage owned by state of DE, built by state subsidy and flying state flag above.
H: Court found state action on these facts, the profits earned by this discrimination benefited the state. 

G: Rendell-Baker: 1981
F: Private school fired some disagreeable teachers.
H: no state action even though education is a traditional state function and the state funded most of this school, the action was not coerced or compelled by state regulation.

H. Sf Arts v. USOC
     Moose Lodge V. Irvis:  1972   
F: Private lodge refused blacks, state had given club on of a discrete number of liquor licensees.
H: no state action- operation of a regulatory scheme enforced by the state that does not sufficiently implicate the state in the discrimination. 

I.  Pollack: 1952
F: privately owned corporation provided public transportation for DC experimented with music on the buses. experiment was ordered by federal government.
H: This was not only public utility and federally authorized monopoly, but it was directly under the regulatory supervision of federal agency.      
    
Now Contrast . . .

J.  Jackson v. Metropolitan Edison Co. 1974
F: monopoly utility shut off electricity. P said no hearing , no DP
H: A highly regulated industry is not sufficient to show state action, nor is monopoly, State had not really “granted” monopoly anyway.

The Public Function Doctrine

M.  Marsh v. Alabama: 1946
F: Company town disallowed leafletters.
H: Court fired out PFD: When facilities are built and operated primarily to benefit the public and since their operation is essentially a public function, they are subject to state regulation - - and their actions are subject to constitutional limitations. Town here was basically acting like a state.

NOTE: The question with PFD is how far does it go?
- how public is the place?
is it the only game in town? Marsh
what is the right being protected?
Is that right protected elsewhere?
               
 IX. THE FIRST AMENDMENT: SPEECH  V. EQUALITY

A.  Incorporation means that over time the court made the first 8 Amendments applicable to (incorporated) the states via the due process clause of the 14th Amendment. It was a very interesting controversy at the time, but it’s not anymore. Now almost all of the rights in the Bill of Rights are incorporated -- meaning states are limited (or shouldn’t one say enriched) by those enumerated individual rights. Some rights remain unincorporated for unimportant reasons: 2nd right to bear arms; 3rd free from quartering soldiers; 5th grand jury indictment; 7th right to civil jury trial.
When this all happened it was done by chipping away at the Amendments -- not all at once. The idea was that some rights were so “fundamental” that they should be incorporated.  Reverse incorporation means that the Equal Protection Clause incorporates into the 5th Amendment due process clause and therefore Equal Protection stuff applies equally to the feds.

“Congress shall make no law ...abridging the freedom of  speech, or of the press, or of the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

B. Intro:
-Court does not always make a distinction b/n high-value and low-value speech (political expression is high and commercial is low). In a sense, the First Amendment jurisprudence asks where the regulated speech falls on the spectrum or within the hierarchy of speech -- it is a balancing of the harm to a free society of allowing or not allowing the speech.

Another way of looking at content-based speech vs. content-neutral speech.
The theory is that forbidding content-based speech is as bad as restricting high-value speech.
Sometimes this distinction is not particularly helpful in looking at the cases-- it is obvious that we may disagree about what is content-based and what isn’t.
It is always worth asking - what is the core value that is embodied in the expression.
-political freedom, -freedom to advertise
how does the regulation interfere with the core value?
And all of this is about balancing the state interest in protecting it’s citizens or itself  against allowing speech. What is the interest of the government in regulating speech? -- to protect communities from riots, to win an election.

C. Parade case:
Glib was not allowed to march in the Evacuation Day parade
Here we have a clash of free speech and the right to be free from discrimination in public context.
-the guarantees of the 14th A were limited to state action.
State action concept - there has to be a sphere where private individuals are free in society.
State action is the line that gets crossed where one’s private rights raises issues where burden on individual private rights can be tolerated to protect government intrusion only to the extent necessary.
The issue here was is a parade speech?
Glib argues civil rights under public accommodations act while veterans say it is free speech.
H: Court unanimously held that Mass could not require a private group that conduct s St.Patricks Day parade in Boston to include gay and lesbian marchers marching under their own banner.
R: The “right not to associate” is closely related to the “right not to speak, “ which the Court has long recognized . The parade inevitable has expressive content, and gays marching under a banner would be sending a message that parade organizers had a right to refuse to endorse. “It boils down to the choice of a speaker to propound a particular point of view, and that choice is presumed to lie beyond the government’s power to control.

D. Roberts v. United States Jaycees:
Interest of not accepting women under First Amendment was outweighed by state’s compelling interest in banning discrimination in places of  “public accommodation.”
R: Rights not to associate is not absolute.

E. Schenk v. U.S.:
F: Flyer sent to all drafted men, “conscripts are convicts, don’t submit to intimidation and don’t fight in the war etc.”  Court says individuals do not have the right to encourage the breaking of law.
Case sets up clear and present danger test -”the character of every act depends on its circumstances.”

F. Gitlow v. New York:
F: NY statute punished the advocacy of criminal anarchy. Majority says we should defer to legislature that anarchy is inimical to the general welfare, upheld this regulation on speech, used the language of Holmes in doing so. Holmes dissents again saying the court must determine what is clear and present danger, and this is not one.
Note: 1st time that SC applies first amendment to states through 14th A’s DPC.

G. Twining v. New Jersey:
F: claim that state violated 5th Amendment
-jury was instructed that test was unfavorable - self-incrimination
- no guarantee of jury trial - 1st 8 amendments apply to federal - not states

H. Palko Doctrine:
F: The right of issue, the ban on double jeopardy was found to be sufficiently fundamental(at least in the way the ban was violated there, by permitting the state to appeal from an acquittal in a criminal case and then to retry the defendant.
Cardozo, proponent of selective incorporation/fundamental rights says: The test is whether the Bill of Rights guarantee in question is of “the very essence of a scheme of ordered liberty,” and whether it is one of those “fundamental principles of liberty and justice which lie at the base of all of our civil and political institutions.”- he implies there are rights out there that were fundamental even though courts found them and they are not explicit in the constitution.

I. Black’s theory of total incorporation in Adamson:
He views all of the guarantees in the Bill of Rights are applicable to the states by the Fouteenth Amendment’s Due Process Clause.-He argues in his dissent that the procedural guarantees applied to the federal government by the FiFth Amendment were automatically rendered applicable to the states via !4th Amendment. Black argued that this was the intent of the framers of the Fourteenth Amendment.

J. Misc.:
Speech may be punished if advocates breaking of the law.
-can be restricted based on conduct and if message causes social harm

K. Brandenburg v. Ohio clear and present danger and advocacy/incitement  
F: KKK rally speaker arrested under statute for advocacy of crime as a means of accomplishing political reform.
H: Court struck down statute and articulated new requirements which a statute proscribing speech must meet. Speech advocating the use of force or crime could only be proscribed where two conditions were satisfied: (1) the advocacy is “directed to inciting or producing imminent lawless action’; and (2) the advocacy is also “likely to incite or produce such action.”
Consequences: high standard for any government action to meet in regulating speech that induces lawless conduct. It is focused on the speaker and the speaker’s intent - every individual based test that does not worry about anybody else. The point is that it is a very useful test in political speech/demonstration type cases, but it becomes simplistic and reaches very little of the potential evil in speech in other kinds of cases. 
Individual wins big here if this is a balancing test between the government’s interest in regulating free speech and the individual’s right.

X. Race and the Equal Protection Clause

A. Introduction:
Big topic. Founded in the Fourteenth Amendment, it is the most important clause for ensuring a broad range of individual rights. Clause itself applies only to state and local governments (no state shall), but when the feds do something that would violate the EPC, the court treats it as violation of the 5th Amendment DPC. (reverse incorporation)
	Carolene Products and footnote Four, along with Korematsu and Warren paved the way for EPC to have impact on race discrimination. They way they did it was by making race-based classifications subject to strict scrutiny. Once strict scrutiny is applied to a law( that is, when a classification is deemed a suspect classification, the law is upheld only if necessary to achieve a compelling state interest. There are not many compelling government interests in constitution or anywhere. 
	So getting a court to apply strict scrutiny is crucial. Many of these cases are about when a classification is race-based and therefore suspect and when it is not. The key to a purposeful discrimination , as evidenced  by
- a facially discriminatory law
- a facially neutral law administered in a discriminatory way (with discriminatory impact)
- a facially neutral law enacted with a discriminatory purpose.
B. Sources of non-textual rights
1. substantive due process
2. equal protection analysis
     traditional rational basis standard 
     suspect classifications/heightened scrutiny

C. Issue of Judicial Review in nontextual rights cases
a. principle basis or judicial activism
- with demise of SDP, court still applied sources
rational - easy test; relationship b/n ends and means to achieve that end
court tries to give meaning to rational basis 

D. Advent of School Desegregation
- 2 tier strict scrutiny test applied to suspect classifications
- attempt was to analogize race to receive strict scrutiny
- because of strict scrutiny, other classifications tried to look like race; ie, gays, Carolene
- in pluralistic country - difficult to protect minorities; ie. Korematsu

E. Issue of Judicial Review
- purpose of law uncertain - legislative history or own purpose
- attempt to measure reasonableness, ie. Korematsu
- application of standards has usually led to validation of the legislative scheme.
    
F. Korematsu v. U.S.  1944
F: FDR executes order of internment of Japanese from West coast.
Upheld cause law was necessary to serve a compelling government interest. The funny thing is that this case sets up a new way of looking at race-based cases. It technically holds that
1.) shift of burdens: P only has to show that classification is based on race, in order for the court to apply strict scrutiny. D then must either show it is not, or convince the court that there is a compelling state interest for the classification.
2. Strict scrutiny - it had always been some version of rationality (which you know had a spectrum of meaning) but now, following footnote 4, the government must prove a compelling justification.
Korematsu is the only time a court has found a “compelling state interest.”
- must be compelling state interest narrowly tailored to be least burdensome on civil rights.
Murphy: Individualized loyalty hearings could have been held.
Jackson: No attempt was made anywhere to exclude other races such as German or Italian-so this was indeed racial.
2 ways to violate equal protection: overinclusive and underinclusive.

G. More Equal Protection
 major theme is the difference b/n EPC and SDP
EP guarantees applies to both state and federal government although they have distinct base.
14th -state and local
-there is no EPC that guides actions of federal government
- courts use EP analysis where federal statutes is used to find violation of DPC.
-if it does not classify person- DP with rational basis
-when fundamental rights are involved - govt. has higher standard and state must have compelling interest.
- incorporation of rights through 14th Amendment allowed those rights to be used
1.) on its face -obvious disc. 2.) impact 3.) intent and purpose
-when G regulates economics - law only need be rational related to government purpose.
- federal classifications under EP are suspect

The Fall of Jim Crow 
Plessy v. Ferguson said that separate schools are equal. And it goes without saying that because of Plessy, schools in 1950 in many many places were separated by race. Then Came Thurgood.

H. Brown I: 1954
Topeka had separate schools . 
H: Court overturned Plessy saying that separate schools are inherently unequal. Warren said that education is a vital prerequisite to all opportunities in society. So was this about education or about the 14th Amd?  After Brown the court started striking down segregation laws that had nothing to do with education. The injury P had to show in such cases was disparate treatment -- and at this point about all the laws were facially discriminatory, so at least for a while, Ps enjoyed a PFC that was pretty easy. But it gets complicated.

I. Brown II
Topeka did not change
In the first of many implementation decisions, the court called on Topeka to implement desegregation “with all deliberate speed.” It gave lower fed courts primary responsibility for supervising desegregation, although it gave no real guidelines but general equitable principles , and noted that it understood that instant desegregation in some places was difficult. It put the burden of proving any need to delay on school boards (it was to the lower fed courts that it actually said “with all deliberate speed.”

J. Cooper v. Aaron
Still no guidance
F: Court refused to allow school 2 and a half years to desegregate
R: even though school had used good faith- nine justices said that they will not compromise the rights of African American children
C: court does not realize the limits in Brown.

K. Hypo on 545
22 yrs. of pre-occupation with remedies and failure to delineate clear substantive right
gerrymandering - drawing lines as to achieve unnatural or illogical purposes
P- deliberate gerrymandering
D -safer, always done, citizen segregate themselves

-PFC: 1.) unlawful design and 2.) intent to discriminate
-if deliberate gerrymandering, school board must show that it was not intended
de facto - just happened that way.

L. What are the goals of Heightened Scrutiny?
- to ensure legitimate purpose?
- the effect that they are trying to get at?
- to get everyone at starting line?

M. Swann 1971 - important case that gave guidance to schools
F: Severe imbalance in schools was challenged
H: Courts made ruling in giving guidance to lower courts:
P must show deliberate official state action caused a racial imbalance in the schools. In other words, the court is now concerned with de jure segregation, not de facto. Court says if there is a history of segregation, court will infer a presumption against imbalanced schools.
REMEDY NOTE: Swann says that “the remedy cannot exceed the violation.” if your remedy is no longer a unitary school system (if one was always or is now in place), you no longer have the positive right to a unitary school system (only right to not have the government act to deliberately affect the racial composition of the schools. The right is defined by the practicability of the remedy-not the harm.
- busing may be a remedy if causes no major problems.
- 2 things for PFC 1.) du jure segregation and 2.) intent issue - statistical dis play is insufficient for intent, but can help du jure.
- if under color of law, state affected outcome - du jure
- no claim if no du jure.

N. Jeff v. Hackney:
F: AFDC families received less aid and support
H: Renqhuist with traditional standard of review rejected naked statistical argument cause stats alone are not enough.

O. Washington v. Davis:
F: DC cop test is failed by black cop four times as much as whites, Ps claim differential impact violated EP. Evidence introduced that test had little to do with job performance. Court holds that racial discrimination must be motivated by a discriminatory purpose. Disproportionate impact  can be a factor in ascertaining intent, but it can never be a sufficient factor by itself. The act is discriminatory only if it is motivated by racial animus. In other words, Davis redefines the PFC for race discrimination claims. P must show intent, and that the act was done , maintained, or enacted because it was discriminatory. If P cannot meet this burden of  persuasion, (P has the risk of non-persuasion), then the court says that this is not a race case.
Note on the problem of Proof: The practical question: how can a P show intent?
Does a dramatic disparate impact do the trick? No, accept in a few particular cases. JURY CASES like Batson, the court is more willing to infer intent from effect, or impact. School Cases were once certainly the kind  where Ps need only to show impact, but if this is till around after Swann, it is only in places where there was two different school systems and the dual system has not been dismantled.
In GENERAL, intent is not inferable from purpose in race discrimination claims. Problem with proof is that you basically need after Davis Marcel’s smoking gun to prove it. BUT WAIT UP, cause proof is not going to be so difficult a matter for those white Ps who are bringing affirmative action claims. There will be plenty of time to ponder why this is so, and what it means for the future of affirmative action plans (and question on the test) and what it shows about what the current court thinks about discrimination.

P. Non - Race Specfic Classification - 
- must prove purposeful intent
- districts were being used to minimize voting powers of certain groups.

CROSON:
F: Richmond had a Fullilove-type statute, 30% MBEs including blacks, Hispanics, Asians, and Indians, Eskimos, and Aleuts, passedby a majority black council, evidence that .67% of prime construction Ks were minority businesses in the prior five years. But no hard evidence that the city itself had ever discriminated against minority businesses, only that almost none were getting any business, and almost none were in the busines associations. Congress had found that there was extensive discrimination against minority construction concerns nationwide. 
H: Court said “any governmental action that is explicitly race-based must be necessary” to acieve a “compelling” governmental interest.  No way to see what is benign and what isn’t there is a danger of stigmatic harm to the group “benefitted.”  the remedy must be necessary to remedy past discrimination against the same people that are benefitted by it.
An “amorphous calim of past discrimination” is not justification for  a racial classification-- the discrimination must be indentified “with some specificity before [the city] may use race-conscious relief.
NOTE: In dicta, O’Connor says that it may not be that states may employ facilly neutal statutes designed to remedy past discrimination. It would appear that this is about the only hope for affirmative action.
- use of set aside funds was not narrowly tailored.
- compelling state interest that was narrowly tailored to accomplish those purposes.
- justices would have ben more comfortable if is had been 1.) court-ordered and 2.) Congress legislated

Q. Fullilove v. Klutznick:
F: 10% MBEs in Federal contracts 
H: court upholds, treats Congress with deference. 
overruled in ADARAND
Sandra distinguihes here cause there was a limited duration of the program, no non-minority was injured. It was thought of as a remedy to eradicate the continued effect of past discrimination.

R. ADARAN:  (possible deference to Congress) ha! Ha!!!!! Sandra (we believe you!!!)
F:  Construction firms get a financial incentive to hire disadvantaged subs, which could be white-owned, but a minority firm was automatically, though rebuttably, presumed to be disadvantaged . P did not get status as a disadvataged firm, lost out to one that did. Court overturbned system, applying strict scrutiny. Overrules Metro Broadcasting and (Fullilove) saying “Congressionally authorized race-conscious affirmative action programs must be subject to strict scrutiny.” (necesarry to get compelling interest) O’Connor goes out of her way to say strict scrutiny is not fatal. Thomas and Scalia concur and say that race-consciuous remedies can never constitute a compelling government interest.
NOTE: Remedy here was injunctive relief -- stop the further use of the subs incentive system.
NOTE 2: This is a nail in the PFC coffin for affrirmative action programs: aggrieved party must seemingly show 1) state action; 2.) Act: race-conscious system; 3.) Injury: denial of right to compete in a very abstract Bakke/Lochner sense.
NOTE 3: P does not need to show intent. Even the system in Adarand was something less than facially neutral, so in the point of fact the court has not spoken on this exceedingly important doctrinal point (whether in a facially neutral affirmative action system a P msut show intent). However, Judy’s take is that the voting cases (Miller and Shaw) (note that they becoem affirmative action cases and not vote dilution cases) appear to mean taht white Ps do not have to demonstrate intentional discrimination as would be required of  a black or minority under Davis.

S.  Bakke:
F: The admissions procedure at UCAL-Davis Med reserved 16 seats in each entering class of 100 dor disadvantaged minority students.
H: Bren, white, Marshall, and Blackmun allowed quota . Stevens, Burger, and Stewart says was unlawful on statutory grounds. Powell agreed that university should take things into account but not reserve a quota-thus system was struck down.
Big Question: what is the level of scrutiny the court will give to benign discrimination cases?
Strict Scrutiny
Question left over from Croson: what is the white PFC or does the white P have to prove intent as required by Davis: Croson says no whites do not have to prove particularized intent. But question is unanswered here cause case was facially discriminatory.
Fallout of case is as follows:
1.) Strict Scrutiny will be given to any racial preference, benign or otherwise.
2.) Quotas are probably never going to be necessary or “narrowly tailored” to serve a “compelling state interest.” 
3.) Diversity is probably not a compelling interest either. Any plan has to probably have race be one factor among many, or even better, have a preference for disadvantaged individuals and include some whites in that group.
could be a factor but not the factor.

T.  Hopwood:
F: University of Texas Law School had different system for admitting minority applicants.
H: law school’s scheme was struck down.
R: State’s goal in achieving diversity was not a compelling goal. Used Croson and other cases that called for redress of past discrimination.
Case stood for proposition that there could be no legitimate government interest to create a diverse student body.

U. What arguments exist that government programs should not trigger strict scrutiny?
- under 14th Amendment with race-based classes.

- argument under 5th where EP would apply to states
- 5th A strict scrutiny race-based classification
- history stems from gov. taking 
- a concern about overreaching offered govt. specific enactments to ensure protection against central government.
- argument that Congress’ authority comes from 5th A to produce Affirm. Action.
- 3 guiding principles for standard of review under 5th A
1. congruence - state and fed should treat the same.
2. skepticism
3. consistency - need to make consistent decisions.

O’Connor leg vs. illegal -distinguish b/n permissible and impermissible

V. Redistricting Questions
When does it deserve strict scrutiny?
 A brand new kind of EP claim! A long line of vote dilution cases held that EP claims could be brought when a group of Ps has been weakened by a drawing of lines and they could show 1) the legislature’s purpose was to disadvantage them, and 2.) the effect was in fact to disadvantage them. The court made it very difficult to satisfy these requirements, and in fact upheld a plan that disadvantaged white Hasidic Jews but had no intent to injure white voters, only to aid African American voters.  UJO v. Carey But that was in the past.

1. Shaw v. Reno:
F: NC district had bizarre shape. 5-4 Court seemed to concentrate on the shape-said it was “so irrational on its face that it can only be understood as an effort to segregate voters into separate voting districts because of their race.” Applied strict scrutiny, said it must be “narrowly tailored to further a compelling government interest.” 
R: Racial gerrymandering is bad, and constitutionally suspect policy.
Two reasons why: 1.) The drawing of district lines base mainly on race would have a socially-divise impact on voters and 2.) sends out wrong message to elected officials.

2.  Shaw II :
A compelling state interest in gerrymandering requires that the state take steps to remedy discrimination in access to state’s property and 2.)it will be held liable if it does not
The creation of 3 minor/major jurisdictions
1.) dilutes major voters in those states
2.) or are these cases about separation of powers
#.) is this about federalism?
- who is more competent - national uniformity or are local states in better position?

3. Bush v. Vera:
looks at demographics and sees if everyone has equal access to political process
H: no Compelling state interest. Race is not enough of a factor.

4. Miller v. Johnson
F: Ga district
H: court kills it saying  as long as race is a”predominant factor” in the drawing of lines, it will apply strict scrutiny. “Just as the state may not segregate citizens on the basis of race in it sparks, buses, etc., the state may not separate its citizens into different voting districts on the basis of race.” 
What does this all mean: States are not prevented from being “race conscious” when they draw lines, as long as race does not become the “predominant factor.” O’Connor says that plaintiff’s will have to show that state “relied on race in substantial disregard of customary and traditional districting practices.”

XI. GENDER AND THE EQUAL PROTECTION CLAUSE

The Road to Heightened Scrutiny

A. Reed v. Reed:
F: Statute preferring men over women as administrators of estates, meant to reduce hearings
H: Court struck down statute, but in doing so claims to be applying mere rationality standard. It was obvious that it was a higher standard, more bite. It admitted it in next case
rational - rational means serving state interest related to that intent

B.  Frontiero:
F: Men in armed services can claim spouse as dependent, women had to demonstrate dependence in fact. Court explicitly rejects mere rationality standard, even says classifications based on sex, “like classifications based upon race . . .are inherently suspect and must therefore be subjected to strict judicial scrutiny.” The court then proceeded to retreat from this high standard to middle ground in Craig.

C. Craig v. Boren:
F: OK statute forbidding the sale of 3.2 beer to males under the age of 21, and to females under the age of 18. Claim was that male between 18 and 21 were denied EP. Court strikes down law, in doing so articulates a new standard “classifications by gender must serve impotent governmental objectives and must be substantially related to achievement of those objectives.”  There was here an insufficient correlation between males and drunk driving, and fit between the means and ends was simply “too tenuous “ to constitute a “substantial relation” between means and ends.
Intermediate Scrutiny was decided: compelling important government interest that must be substantially related to achieving interest.
“Classifications by gender must serve important governmental objectives and must be substantially related to achievement of those objectives.”
Dissent -Rhenquist: Mere rationality good enough. Would not object to intermediate for women, but mean should not be given any greater scrutiny than given to great majority of other statutes attacked on EP grounds.

D. VMI:
F: Virginia had operated a men-only institution since its founding in 1839; the school’s purpose was and is to develop “citizen-soldiers.”  VMI was the only single-sex school among Virginia’s 15 public universities. Virginia’s principle defense of its single sex policy was three aspects of its approach- its extremely rigorous physical training, its technique of depriving students of privacy, and its “adversative” approach (under which entering students are extensively hazed, in a manner comparable to Boot Camp) - would have to be materially changed if the school were co-ed. Instead, the state sought to create a less rigorous program for women - but still one in theory devoted to developing citizen-soldiers- at a pre-existing all-women private liberal arts college, Mary Baldwin College.
H: 7-1 Court held that (1) Virginia’s policy of excluding women from VMI was a violation of women’s equal protection rights; and (2) the program was not sufficiently comparable to the VMI program to redress the injury. 
R: Ginsberg noted that gender-based classifications “must not rely on overbroad generalizations about the different talents, capacities or preferences of males and females. Gender-based classifications can not be used to create or perpetuate the legal, social, and economic inferiority of women.”
Would only be upheld if state demonstrated an “exceedingly persuasive justification” for any gender-based government action.”
Dissent: Scalia says that it is not  strict scrutiny case which is review sought out and that VMI would win under intermediate review. He also alludes to the possible end on single-sex education.

E. Romer v. Evans: 
F: state amendment in Colorado was overturned
flunked mere rationality, but was it mere rationality that was used???
 - if it failed on its face- like Reed
- singled out class of citizens based upon homosexuality.

XII.  Other Candidates For Heightened Scrutiny: Alienage and Disability

A. Review:

- Level of scrutiny is instruction on how Court will balance interest
- Romer  was low level scrutiny.
- Bowers passed with low-level scrutiny with a morality test
- intermediate - substantially related to importunate governmental agencies - not just achieving purposes

Heightened scrutiny - compelling state interest; means must be narrowly tailored
-Reed - rational with a bite

B. Intro:
Some groups have “maybe” or “once upon a time” been subject to heightened scrutiny. Dealing with this topic will require a more than competent student to say there is an equal protection claim here, today’s court is not very willing to expand the existing list of what kinds of classifications get heightened scrutiny, even so sometimes the court can apply a heightened scrutiny even when they say they are applying a “mere rationality.” test, so it’s worth noting that the EP claim, BUT the more important claim is probably one that sounds in SDP - is this a fundamental right(if there is such a thing)? - where would the court come out on these facts if id does a simple balancing SDP test? Well then. . . 
C. Alienage - Does alien mean citizen vs. non-citizen? Does it mean non-anglo race , and is it therefore really a race classification?

alien - “not having U.S. citizenship.”  Thus, term is not co-extensive with “national origin”
since (1) discrimination against a person because he is of a particular national origin might occur even if he is a citizen

- The Court has generally purported to apply strict scrutiny to classifications disadvantaging aliens. Court has given substantial weight to whether the class is disadvantaged is a “discrete and insular minority,” ie. a minority that is politically powerless and which has been historically discriminated against.
- they are politically powerless but not immutable.

1. Mayor of NY v. Miln:
F: city of NY tried to differentiate b/n paupers and those who were gonna make it.

2. In re Griffiths: aliens can not be prevented from practicing law. 
H: Court held that none of the states interests supposedly served by the ban was sufficiently closely linked to exclusion of aliens to overcome strict scrutiny.

D. Problems with alienate
- federalism- who is authority to regulate non-citizens: states or fed.
- to what extent does court have role and what are the judicial rights of citizens not granted by Congress
- what rights under the Constitution do non-citizens have
-under 14th A - due process 
person -yes they are
citizen - no they are not

E. Which groups claim needs for EP ?
1. aliens
2. Non-Marital children
3. aged
4. mentally retarded
5. poor
6. gay men and women

F. What are fundamental rights?
- right to vote and the right to access to judicial system

Carolene says we need to protect “discrete and insular minorities”
- CTS. looked at these cases ad asked if there were any fundamental rights that were denied.
-cts. definition of fundamental rights sounds like substantive due process
- a new EP analysis emerged in 60’s and 70’s -travel, privacy
- they were non-text based rights; under the penumbra - rites that are not in direct light but are there.

G. Back to Alienage

- 2 lines of cases
race and gender   vs. alienage and non-marital kids
- court begins to identify non-textual based rights

Alienage - aliens are non-citizens that do not receive constitutional guarantees that are given to citizens; in theory where it says persons, rights are available to citizens.
- P&I is not available to aliens
- citizenship is defined in 14Th - born in U.S. and subject to jurisdiction of U.S.
- Congress’ ability to set standards for naturalized citizens has never been challenged by the court
- Congress is without power to deprive citizenship a ala 14th.

- the line of alienation cases has been divided into 3 categories - where people are classified as aliens.

1. attempt to classify aliens vs. U.S. citizens with regard to economic bases and the private sector. These case receive Strict Scrutiny

ie. Griffith

 a. Sugarman v. Dougall:
F:  Ny statute excluding aliens from civil service exam and employment.
H: Court claims  SS but then talks about “close scrutiny.”  Court held that the statue was invalid -
state may not bar aliens from holding positions in the state civil service. However, the court said in dicta that there is a substantial state interest in having employees of undivided loyalty. The problem here was that the policy was indiscriminate. There is an exception to the rule , so narrowly drawn barring aliens from certain “functions that go to the heart of representative government” would be okay. Including but not limited to “the establishment and operation of its own government,” “qualifications of an appropriately designated class of office holders,”  “participation in the democratic political institutions.”
PREEMPTION NOTE: All regulation of aliens by states implicates the principles of preemption, because the Constitution grants Congress power over immigration and naturalization. This could explain why some state alienage classifications are invalid -- because these policies are best pursued at the federal level in a unified way. It could also mean that Congress could have more power to restrict the rights of aliens in ways that states can not.

2. When classifications that distinguish b/n citizens and aliens relates to allocating positions of power or political process
This is treated under Rational basis test.

3. When non-citizen classification with respect to federal law only subject to low-level review when subject to Congress’ law.

A. Plyler v. Doe:
F: Texas statute which (1) denied local school districts funds for education of illegal-alien children; and 2.) allowed school districts to deny free public education to such children.
H: Court struck down as violative of EP.
R: Illegal aliens are not suspect class but applied intermediate -level scrutiny cause powerless nature of group and importance of education. No substantial interest of state to burden this class with life-long illiteracy.
There is no fund right to education and not suspect class.
Public education is already offered, however, and you can’t deny them cause does not bear substantial relationship to legitimate state power.

B. Rodriguez:
F: P’s claim that Texas’ system of financing public education violated EP cause it relied principally on local property taxes. Although there were other state and federal funds which remained available to each school district, districts with a high property tax base per pupil consistently spent more on education than those with a low base were able to do.
H: P’s arguments were rejected: The residents of property-base-poor districts formed a “suspect class,” especially since (the plaintiff’s contended) poorer families tended to live in districts with smaller property taxes; and (2) that education was a fundamental right, inequalities in the distribution of which must be strictly scrutinized.
R: Wealth is not a suspect class, Education is not a fundamental right.
Classification was those districts that have high property values. Education is offered to everyone. Taxing power and distribution of those taxes is a legislative issue to be addressed at the ballot box.

H. Some Thoughts from Jane:

1. if exclusion of non-cit from political process, is it reasonable that judiciary should step in when states make classifications based on cit - should there be deference for that court.

2. if rights to vote are limited to cit, why not limit things to cit.

Carolene says strict scrutiny is made when political rather than economic rights are at stake.
insular minorities - no protection unless court provides it.

- in cases where states attempt to regulate cit/non-cit issues, preemption and federalism comes into play.

I.  Proposition 187

-passed by majority in California -never into effect
-federal ct. used 3 tests to pre-empt 187 or not to?

1. had to determine whether state statutes is regulation of immigration
if so, preemption, Congress regulates immigration.

2. even if state law not impermissible, it can be preempted if stands as obstacle if it conflicts with federal law making compliance with both laws impossible.

3. even if state law is not impermissible , can be preempted if Congress intended that no states would regulate in field

Section 2:
criminalizes documents - not preempted cause crim. is state power

Section 3:
criminalizes use - again state powers

Section 4:
co-op with INS
court preempts cause affects who can do what with respect to arresting person
- field argument - you can not deputize every law officer in CA to help INS.

J.  Two models of EP Analysis 

1. class - race                                                           class - economic and social
                suspect                                                                                     no suspect criteria

a third possibility - the second model has to do with fundamental rights
- both text-based rites and privacy and education have no clear basis.
what are fundamental rights
Marshall’s sliding test - 
sliding test on 928 looks at whether class is suspect but also the importance of the right implicated

Wealth is not a class for heightened scrutiny. The important point is that because both Plyer and Rodriguez decided that wealth is not s suspect class, the court can still look at the nature of the right that is being denied - travel, privacy, education, and so is it “FUNDAMENTAL” enough for the court to scrutinize it  more. This is why these cases are no longer simply equal protection cases- they are now SDP cases.

XII. SUBSTANTIVE DUE PROCESS AND NON-ECONOMIC RIGHTS

A. What rights are fundamental?
      1.) P&I clause
      2.) In the old days when incorporation was big - those incorporated were fundamental
      3.) The 1960’s Warren Court -- The EP clause protects certain fundamental rights e.g.
VOTING, TRAVEL, and PRIVACY
3 is the subject of this section. rather then reiterate this throughout cases, it should be said now that Judy says “there are No fundamental rights.”  This theory was huge and in many ways was a replay a Lochner -- SDP rights, but today’s court sure isn’t expanding the list of fundamental rights and seems to be not really affording rights that were called fundamental ones the level of the scrutiny they once got.

Those rights that are fundamental for purposes of the EP clause are subject to this test: The law must be narrowly drawn to achieve a compelling state interest.

First up is the intersection of Ep clause and Fundamental rights-- these are cases about travel, voting, and welfare. Next will be modern SDP and it’s purported death -these cases are within the bundle of so-called “privacy rights” and include contraception, marriage, abortion, and the right to DIE.

B.  Shapiro v. Thompson:
F: Dc denied welfare to residents for less then a year
H: Statute was invalidated, court applies SS to a law that penalizes the right to travel  (or migrate interstate), calling such a right fundamental. It’s important to note that the court noted that welfare is such a thing of “extreme importance,” because probably not every restriction on travel is unconstitutional. Some thought this case might mean the “necessities of life” were fundamental rights, but that fear was dispelled . . .

C. Dandridge v. Williams:
F: MD law caps welfare benefits regardless of family size.
H: Court uphold law, saying that it is in the area of economics and social welfare and calls only for mere rationality review. This scheme satisfies standard - welfare is not a fundamental right.
DISSENT By MARSHALL: He calls for the sliding scale - he says look at the type of classification, the importance of the benefits not received, the state interest in support of the class. Marshall stays with this - he dislikes the rigid fundamental equal strict scrutiny, non-fundamental equals mere rationality of these cases.

D. The Privacy Right - What is the source of the privacy right?
What makes a fundamental EP right different from a fundamental DP right?
- 2 basic  models of EP analysis 
1. race or suspect groups -SS
2. economic or social - diff. standard of review.

3rd model under EP - fundamental rights- does degree of scrutiny increase with importance of right.  echoes Marshall’s sliding scale
Rodriguez - Powell claims rational basis level.
White, Douglass, and Brennan - penumbra
at what level of generality do u frame what fundamental right is being implicated.

E. Skinner: 1942
F: Ok law sterilizing some habitual criminals. Court kills the law, says it does not like the discrimination (it did not punish white collar criminals), but makes clear that it is applying SS. (even though they could’ve just killed it for being irrational) because “marriage and pro-creation are fundamental to the very existence and survival of the race.
R: Ep was good cause law did not treat similarly situated individuals in the same manner.
-still difference b/n EP and DPC
EP rites must be given equally and are done on eP basis different from DP rites that are protected under the Constitution which are text based.

Note: in Lochner-era - there were fund. rites 
- govt. had to have powerful justification. Skinner could not be decided on DP - would debunk Lochner.

F. Griswold: Why is the rite of offspring const. Fundamental?
F: Ct law (1965) against giving married couples contraceptive advice.
H: Court holds that this violates a right to privacy - making this the first real substantive DP case with a new “Right” Found the privacy right as emanating from a number of the Amendments, creating a Prenumbra or zone of privacy.
This penumbra could seem broad, but at least in Griswald we only know it extends to married couples making contraceptive decisions.
Douglass calls for penumbra.
Harlan does not get into amendments- deals with DP.

G.    DP vs. EP

DP analysis                                                       EP analysis
traditional means/ends                                   2 tiered level of review 
rational basis                                                    rational basis or heightened scrutiny

Sub. Due Process <---------- fundamental rites ----------> Sub. E.P. analysis

-Ep appears in the 14th A originally in connection with the enforcement of the Recosntruction amendments; it repeated DP clause from 5th A- both apply to persons.

if federal law, the DP analysis read into 5th A; EP through 5th and then 14Th.

DP analysis means/ends similar to Ep analysis (2 tiered)
                                                                strict Korematsu or qausi-suspect class Intermediate
Ep was to do away with race.

In Lochner period, court began to scrutinize acts in terms of whether they agreed with outcome.

Sub Due Process gave meaning beyond the procedural
- Lochner period dealt with economic freedoms, New Deal discredited it , turned away from SDP and gave deference to Congress
- EP does not ensure right, but if govt. offers it, it cannot do so in an impermissible way.

H. What are Fundamental Rights?
-rites given in the text of the Constitution
-those not explicitly guaranteed and not nec. seen by the framers.
-Dpc was better home for privacy
only White and Harlan recognize D.P.
-Gris returns to Lochner dep. on political view.
Gris not intrusive, in Lochner intrusion was not freedom

I. Eisenstadt 1972
F: Law prohibited distributions of contraceptives to unmarried persons
H: Court invalidated the law relying on Gris and Skinner -- here a hybrid equal protection/substantive due process analysis. This appears to establish a right to reproductive autonomy, at least insofar as the use of contraceptives is concerned.

NOTE: Judy says these cases look a lot like a classic balancing of means/ends given a substantive due process right -- but if you are arguing you try to say a right is fundamental first (and get strict scrutiny) , then you argue EP.

 J.  Roe: 1973
Court finds a woman’s right to privacy is violated - a liberty interest protected under the 14th Amendment. Court applies a balancing test throughout the pregnancy, setting up the trimester system. First trimester seemed like no real estate interest but the woman’s health (although we see that this was not such an empty interest after all). Second preservation and protection of maternal health (this is lower scrutiny although it does not appear that the state can ban abortions in the second trimester). Third, state interest in woman’s health and in morality (quickening) matures -- “state may regulate ven proscribe except to preserve life or health of mother.”

K.  Harris v. McRae: 1980
Hyde Amendment prohibits fed, funds for abortions except health, rape, incest. Court applies Maher and says that state has no affirmative obligation to provide funding for abortions.

M.  Maher v. Roe: 1977
No medicaid for non-theurapeutic abortions.
 Court upholds that law is not unduly burdensome - places no obstacles, absolute or otherwise in the pregnant woman’s path to abortion. Court says a state may not punish for exercising a fundamental right, but this is not a punishment cause state did not have to provide health care in the first place.

N.  Casey:
Pa anti-abortion law
Court upholds most of the law, referring to abortion as a “liberty interest” and not a fundamental right. Court says it is upholding Roe but it isn’t - certainly not the trimester framework, and probably the interests here are much different. Upholds 24 hr. waiting period, parental consent for minors, overturns spousal notification provision.
New test: “Only where a state regulation imposes an undue burden on a woman’s ability to make decision does the power of a state reach into the heart of liberty protected by the due process clause.” An undue burden is defined as one that has the purpose or effect of placing a substantial obstacle in the path of a woman. After this case, it is clear that abortion is no longer a fundamental right, and restrictions on it are no longer scrutinized.
R: no need for compelling state interest here; decision needed 3 things 1.) interest in state, 2.0 health of fetus, and 3.) woman’s ability

Note: When analyzing an abortion problem, remember to say that Casey now says that standard is whether regulation unduly burdens woman’s interest 

O.  Thornburg:
White attacks the premise of Roe
improper under standing

P.  Bowers:
No fundamental right to homosexuality.
Court does not go down Ep road - not suspect under Carolene

Q.  Cruzan: Right to Die 1990
F: Nancy was comotose, MO did not want to pull plug absent clear and convincing evidence of her wishes. 
H: Court says this MO law is O.K. even though there is a LIBERTY INTEREST in refusing unwanted medical treatment, there is here a state interest in preserving life, and such an interest extends only to competent persons. Here the MO law was O.K. cause state has an interest in preserving life and stopping situations where a family will not act in the best interests of the patient.
Also, this could be a PDP case - Mo has sought to advance an interest with a clear and convincing standard, and this is O.K.
balancing of D.P. here -policy vs. individual
A competent person under 14th Amendment may not be forced to undergo unwanted medical procedures.  It must be clear and convincing however.

XIV. PROCEDURAL DUE PROCESS

A. Intro: PDP comes up when there is SPD claim, and also hover around many state action issues -you should understand why. There are two questions:
1. What kinds of rights are so important that the government must adhere to certain procedures to deny it from its citizens?
2. What kind of process is due?
 
There are 2 kinds of rites for first question: property and liberty
unless the interest implicated is similar to those in cases below (employment, employment with reason to believe you can stay, welfare, social security) , you can do the Matthews test to determine a PDP question. Matthews merges 2 questions into weighing of the different interests at stake and the cost of the challenged or requested process.

balancing test in Matthews - when govt. action deprived ind. of interest set up 2 factors in terms of the ind. interest.

1. individual interest in the liberty at stake
2. extent to which the required procedure would ensure possibility of erroneous decision making 
will it prevent erroneous decision-making.

B.  PDP receives heightened scrutiny- each person shall be afforded a certain process- when the power of the government is used against person, there is process to abate that action.

-government cannot take away rites but it does not have to give privileges.

C.  State cannot do indirectly what it can do directly
 PDP- all about deprivation

1. Goldberg v. Kelly:
Court argued that welfare was a privilege and that it was statutory entitlement, But when a person is entitled to a benefit, that person has a property interest in that benefit.

2. Roth:
The court held that a non-tenured professor did not have a liberty or property interest in his job - -the terms of his employment did not specify that he would be rehired absent sufficient cause.

-people have both a procedural and sub. rights

3 categories of Liberty
1. restraint on physical freedom
2. exercise of certain fundamental rights
3. 

XV. POWERS OF CONGRESS UNDER THE FOURTEENTH AMENDMENT

A. Katzenbach v. Morgan: 1966
F: section of voting rights act saying that non-English speaking persons can vote.
Court says this is Ok exercise of congressional power- in doing so lays out two theories -
1.) attenuated federalism theory that boils down to this is such an important right (voting) that Congress can interfere with the state (specifically reserved!) Power to regulate it. 
2.) Separation of powers theory: Congress can engage in interpretation of the EP clause, at least in order to increase rights and as long as its not depriving rights. This depends on S.J.C. silence.
Question remains: does this mean that Congress can, in absence of Supreme Court decisions on a specific right, define and interpret the EP clause. Opinion apparently gives Congress unbounded authority under 5, “it is enough that we perceive a basis upon which Congress might resolve the conflict as it did.” It is not clear how far this can go today, but given Lopez, 5 of the 14th A is going to be looked at a lot more closely as a source of Congressional authority. Right now it has not been used often, so that may explain why in this case there are no real rules about how Congress can use this authority.
Probs here are both federalism and separation of powers theory:
1.) States do have 10th Amendment, but Congress may provide remedies for violations of rights that the courts have found or would themselves find protected by the Constitution
2.) Congress has to protect Carolene groups so that they have rights and are treated similarly. The needs of the community are so great that it is necesarry to intervene
If states are not doing their jobs with health, morals, safety, and general welfare, then state can regulate. 
3.) parallel to necessary and proper.
But sep prob as well. . . . . .
1.) ratchet theory - cannot take away rights- can only expand them!
2.) Congress does not need facts, it is trusted by the Court
3.) Court may defer.
4.) may be racism.