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Wednesday, January 2, 2002 (Class 1)
Office Hours: Friday Afternoon, Room 77, sign up on door, or e-mail with a couple times. Will change hours when winter quarter ends.
- Start in 18th century. Need to know history, changes of constitutional law. (two weeks)
- Move to topical/doctrinal approach (three weeks).
- Structure of US government.
- Rights, complex issues.
"Crisis du jour" -- impeachment, election, this year--more somber crisis.
Problem with constitutional law as it's taught: as if it's for lawyers. E.g., Rule 11 is for lawyers, constitution should not be. Much more than set of legal rules.
Last year--constitution seemed controlled by courts, determining election. This year, so much going on without the courts.
Discussion of dystopia: how to create constitution from scratch, implement, etc..
For Friday, read handout and #2 on syllabus.
Friday, January 4, 2002 (Class 2)
US Constitution--we will assume it is supreme, supported, etc..
Brief History of Constitution
- First decade of Constitution (1787-1797) determined by politicians and the people; courts almost played no role. Constitution was second document people lived under; original colonies had lose confederation with national congress. No national executive or court system. Consensus that confederation wasn't working; colonies were vulnerable to outside attack and internal revolt. Constitutional convention drafted new consntitution from scratch. Everyone knew Washington would be first president, but by second term divisions started to appear. 1796 first contested election, John Adams won.
- 1800 glitch appeared. Drafters had not foreseen party system and candidates running as team, thought first place candidate would be president, second place would be vice-president. But with team both candidates got equal votes; leading to twelth amendment. First time new party came to power. Federalist Adams lost, Republican Jefferson won.
- In last couple of weeks before Federalists were out of legislative and executive, congress passed laws to stack the courts with federalists. Put John Marshall into Chief Justice position (was Adams' secretary of state). Wanted to put Marbury into power as Justice of the Peace, Marshall signed document night before leaving office to be replaced by James Madison as Secretary of State.
- Crucial turning point: First transition of power, war going on in Europe, Jefferson coming into power hatig Adams and Marshall, no one knowing what the courts did.
- Madison, succeeding Marshall, refuses to give Marbury the seal to become Justice of Peace.
- Marbury requesting writ of mandamus, to force Mr. Madison to hand over the seal. Claims supreme court has authority to issue writ by Judiciary Act of 1789
- Is Marbury entitled to commission for office?
- Is he entitled to writ?
- Does law give him a remedy?
- Can the Supreme Court issue the writ?
- Is legislation constitutional (Section 13)?
- Can Supreme Court find an act of congress unconstitutional?
- Is Marbury entitled to commission for office?
- Yes, commission was done properly (of course, Marshall is ruling, who made the commission originally as secretary of state).
- Is Marbury entitled to writ?
- Question is whether president subject to the law, i.e., can the president do whatever he wants?
- Not everything president does is 'political', i.e., not everything is above and beyond the law, when right are vested, issue becomes for judiciary to decide. Jefferson is still subject to the law (i.e., President is not truly sovereign).
- Is court then sovereign? Relationship between newly-ousted secretary of state and incoming president.
- Court has power to determine what are vested rights.
- Case decides that executive authority is limited by judiciary. Also decides that some things are purely political--"political question doctrine"--outside of purview of court.
- Does the law give Marbury a remedy?
- Marshall poses principle that 'where there is a right, there must be a remedy'.
- Marshall also holds that mandamus is the proper remedy for this right.
- Can the Supreme Court issue the writ?
- Marshall looks at Section 13, claims it gives Supreme Court ability to issue writ.
- Is Section 13 constitutional?
- Section 13 gives supreme court right to grant a writ of mandamus, but section is unconstitutional under Article III Section 2 of the constitution. Marshall reads Article III Section 2 as setting forth exclusive universe of Supreme Court jurisdiction.
- Marshall holds that not only is executive subject to constitution, but also that supreme court is subject to constitution, can only exercise jurisdiction as specified under the constitution.
- In making this ruling, Marshall gives court sense of authority, legitimacy, clearly defines court's jurisdiction.
- Marshall had reason to believe Madison would ignore writ, thus by not issuing writ preserves legitimacy. Did not want to test the boundary of the supreme court's power. Stepped back from the brink relying on jurisdictional argument.
- Could have stopped here, but Marshall continues to address judicial review.
- Can the Supreme Court find an act of unconstitutional?
- Could have just decided whether his action was constitutional, but goes on to ask whether an act of congress is constitutional.
- 'Traffic court interpretation': Marshall is just a judge, has to apply the law, but must look at all the law. If a law is invalid he can't apply it. Modest interpretation of Article III.
- Does not 'strike down' law, just says he won't apply it because it's invalid.
- More assertive interpretation: behind modesty of opinion, claiming that judges have duty to constitution and that judge's power comes from constitution. Gives us the sense that the courts are the guardians of the constitution.
- Act that Marshall is finding unconstitutional was passed by most of the drafters of the constitution; this is the more 'hubristic' view of Marshall's decision.
- Article III is superior to Section 13 because it 'comes from the people'. Since it is written, it must be paramount.
- Case is about constitutional supremacy as well as judicial supremacy.
- Marshall looks only to the text of the constitution; if power is not included within constitution itself, then that power does not exist. Reads constitution with 'presumption of narrowness'.
- Marshall does not look at intent, desire of people, etc.. There are many modes of interpretation, but he looks only at text.
- How does Marshall know court can find act unconstitutional? Essentially argues that it is 'self-evident'. Constitution only makes sense this way; almost a teleological argument. As if this is in the nature of the constitution.
- Maybe framer would have thought congress should interpret constitution, but Marshall finds objective basis for court's power to interpret constitution, not subjective interpreturt can find act unconstitutional? Essentially argues that it is 'self-evident'. Constitution only makes sense this way; almost a teleological argument.
- Looks only to 'objective basis', not subjective intent of framers. Extremely different mode of interpretation than his own interpretation of Article III Section 2--if he interpretted Article III Section 2 this way, he would not have found basis for judicial review.
- How important is judicial review?
- Why should court be more trusted in preserving constitution than other branchs?
- Whenever court declares law unconstitutional, it is claiming that the two elected branches were wrong.
- This was never done in the first years of the unconstitutional. Did not decide this again until Dred Scott.
Monday, January 7, 2002 (Class 3)
- Review of Marbury v. Madison
- In Marbury v. Madison [5 U.S. 137], Marshall was both close reader of text of constitution but also practical/pragmatic.
- Marbury proclaims courts power but also limits court's jurisdiction and the limits of political reality.
- Marbury was fundamentally about the separation of powers (legislative, executive, judiciary). Also dealt with issue of federalism; relationship between branches of federal government and states.
- Marbury established judicial review of congressional decisions, to find them unconstitutional. But more common form of judicial review is over acts of states.
- Issue of national uniformity--in this sense, review of state action is more important than review of federal action.
- Constitution needed to have stronger national government than the articles of confederation. Articles only had legislature, no executive or judiciary. Question becomes, how much stronger?
- Conflict became acute with enactment of the Bank of the United States.
- Shortly after Treasury was ratified, Hamilton (Secretary of Treasury) sought to charter national bank. Would help in collecting taxes, managing funds. Also understood that bank would influence money supply.
- Widespread concern about competition with state-chartered banks.
- Conflict in interest rates: bankers (Northeast) prefer high interest rates, agrarians (south) prefer low interest. Sectionalization.
- Jeffersonians argued vehemently against charter of bank, saw urbanization and capitalism as evil encroachment.
- First bank was chartered, expired, 20 years later second bank was chartered for expediency.
McCulloch? v. Maryland
[17 U.S. 316] U.S. Supreme Court 1819
- Maryland passed law imposing a tax on all banks operating in Maryland not chartered by the State of Maryland.
- Maryland sues McCulloch? (local bank officials) for failure to pay tax.
- McCulloch? claims tax is unconstitutional. Supreme Court of Maryland rules for Maryland.
- Maryland's basic argument is that Federal Government can only do what is specified explicitly in Constitution; no clause about chartering corporations, thus government cannot do this.
- Maryland's fundamental premise is State Sovereignty. United States is a Union of States; similar to NATO. States are free to leave union and are not bound by its decisions under this conception.
- People ratified Constitution, not States. Although people live in States, they were acting in their capacity as people of the Nation rather than of the States.
- Although people ratified constitution in conventions in their states, Marshall explains this as not being particularly important--they had to meet somewhere, after all.
- States that Government's powers are enumerated, but no constitutional prohibition on implied powers.
- Paragraphs 16-17: Constitution is outline, needs to last, unlike legal code which can change over time.
- Paragraph 16: "In considering this question, then, we must never forget, that it is a constitution we are expounding." Rule of interpretation: read the constitution 'so it works'. Read it as a broad outline of a powerful government that will last for generations. Read the document pragmatically, so it endures.
- Article I Section 8 provides ends of government, must imply means to accomplish the powers attributed to the federal government. What is implied is means to end, but not the end.
- Federal Government has plenary power with respect to its powers, Maryland is only 'sovereign' with respect to powers not given to Federal Government in constitution.
- "Necessary and Proper" Clause
- Maryland argues 'Necessary' is of absolute necessity, that it exists to limit federal government's power.
- Marshall does not locate the implied power in the 'necessary and proper' clause, that is pre-existing. Implied power is 'inherent' in sovereignty, powers given to the federal government.
- 'Necessary and proper' clause is in Section 8, which gives powers to the Federal Government, rather than Section 9, which restricts powers.
- 'Necessary' could mean absolutely necessary, or be more general. Marshall interprets necessary in a sense which makes document work and creates stronger National Government.
- Article I Section 8 does not say that there has to be a bank. In fact, Marshall does not peg the power to enact a bank to any specific section. It is either everywhere and nowhere. Could probably delete any section of Article I and still have this power.
- Constitution does not mandate a bank, but congress has power to establish a bank.
- Marshall's conception of intent is very 'objective'--does not cite outside sources, notes, legislative history, etc.. He finds in text intent for constitution to be interpreted to survive crises.
- In Marshall's time, Framers of constitution were not revered legends as they are today, thus would not support Marshall's arguments as much if he could refer directly to their intent.
- Marshall's reading of intent is unverifiable, goes back to Locke.
- End still needs to be legitimate (enumerated constitutional power), means still need be not prohibited by constitution elsewhere.
- Paragraph 42: Judiciary will still strike down means that are prohibited by Constitution (Judicial Review) but will also strike down laws that are not necessarily towards the stated end. I.e., is End merely stated pretext for another end that is actually unconstitutional.
Group 6 is 'on' for Wednesday.
Wednesday, January 9, 2002 (Class 4)
Methods and Sources of Interpretation
- Unending question of interpretation from Marbury until today.
- Idea that when it is constitution we interpret it in a certain way.
- Many theories of interpretation (so single predominant theory):
- Constitution as a text; interpretation is in plain language of text; read text narrowly; do not rely on extra-textual sources.
- "Grand Style" of interpretation; intentionalist but in objective way; look at text holistically to figure out its meaning/intentionality.
- Common Law: fairly conservative, not voice of "the people", thus some suspicion towards common law. But framers of Constitution, judges, etc., were trained in the common law. Not just the rules of the common law, but the reasoning of the common law. Deduction, looking to cases.
- Marbury: idea that document is official when sealed; when there is a right there is a remedy, etc., are common law principles.
- Natural Law: Divine, universal, indelible rights and norms. Framing generation was not all that religious, but found Natural Law important. Normative but not positive.
- Most important example of natural law reasoning in the Declaration of Independence. Way of challenging positive law (e.g., King George's law).
- More often than not assumed that common law and natural law were in harmony. What troubled the framers was mostly the statutory law of England, not so much the common law.
- How much should positive law influence Constitutional interpretation?
- Caulder v. Bow (sp?) (cb110), Justice Chase: Vested rights, from common law. Violation of Natural Law to take away vested right. Natural law in this case trumps positive law. If state takes property that is vested, this is violation of natural law and thus null and void.
- Justice Ardell's response: Court is not empowered to nullify legislature's action just because it violates natural law. Court is restricted to constitution, not to natural law.
- In 19th century, these issues arose continuously with respect to two major issues:
- Rights of property
What if you are a judge in 1840 having to rule on a Fugitive Slave Act case?
- Can you use Natural Law to justify a ruling that is ostensibly contradicted by Article IV, Section 2, Clause 3 which seems to support Fugitive Slave Act?
- Natural Law must be interpreted, may be interpreted differently by different judges.
- Could find some other techicality to make 'the right ruling'?
- Maybe find another constitutional basis, (bill of rights)
- Could rule according to Law, but include in opinion statement of injustice
- Federalism Issues
- States Rights: States should be able to determine slavery (would allow freedom in Massachusetts).
- Federalism: Natural law should apply everywhere; if it's wrong in Massachusetts it would be wrong everywhere.
- "Fidelity to federalism is fickle"--depending on circumstances interests align with States Rights or Federalism.
Dred Scott v. John Sandford
[60 U.S. 393] 1856 Supreme Court (cb183)
Donald Ferenbach (sp?) book about Dred Scott case in citations.
- Missouri Compromise: set line for slavery. Thought to ease the tensions but tensions increased with each new legislative act.
- Scott is slave who travels with Emerson, is taken North into territory which under Missouri Compromise would be devoid of slavery, and then is returned to Missouri. Emerson dies, Scott is sold to Sandford, sues for freedom.
- Scott sues in Missouri courts, loses, appeals to Federal Court.
- Case is diversity case. Could have been decided on res judicata (already decided by Missouri courts), or collateral estoppel (issue of citizenship already decided in other case; Scott is not a citizen under Missouri case, thus no diversity).
- Taney rejects States Rights notion of citizenship: States can make people citizens of the State, but not make them citizens of nation.
- What about National definition of citizen, including constitution?
- Taney looks at intent through 'historical documents' -- not looking at text (like Marshall did) but looking at extra-textual sources.
- Under Taney's view, no African-American, free or slave, can ever be a citizen of the United States under the Constitution.
- Theory of 'originalism' suggests meaning of Constitution is fixed; Supreme Court's job is to do what framers intended.
For Friday, look at second half of opinion, constitutionality of Missouri Compromise, civil war, Lincoln-Douglass debates.
Friday, January 11, 2002 (Class 5)
Next Week's Schedule:
- Monday, Assignment #6, Group 10 (Ryan P)
- Wednesday, Assignment #7, Group 15 (Ryan S)
- Friday, Assignment #8, Group 19 (Davida)
Dred Scott v. John Sandford
[60 U.S. 393] 1856 Supreme Court (cb183)
- Strong nationalist holding--not States' Rights approach
- Originalism: what did the drafters and people at the time think? Looks at extra-textual sources.
- How much of the Constitution is 'ours' and how much is a document we must follow?
- Ambiguity in Diversity provision of Constitution: cases and controversies between 'citizens' of one state and of another. Who decides what is a 'citizen'? Citizens as recognized by the states, or by the Federal Government?
- Taney could have said 'a citizen of Missouri is whoever Missouri says is citizen' and could have gone further and said 'Missouri does not recognize slaves as citizens', thus no diversity jurisdiction. But this would not have had an impact on African-Americans in free states. By interpreting citizenship to be national issue, Taney decides diversity clause (and privileges and immunities) uses federal definition of citizen.
- Thus citizen such as Frederick Douglass does not have privileges and immunities to travel to slave states and be guaranteed rights of citizens.
- Very powerful vision of Federalism. McColloch? established Congressional supremacy over States Rights; Taney here establishes Judicial supremacy over States Rights.
- Taney also goes further to find 1820 compromise unconstitutional, although should not necessarily have approached this after finding no subject matter jurisdiction. Although this may have provided alternative basis for Taney's ruling.
- Only second time that Supreme Court found act of congress unconstitutional (after Marbury).
- Missouri Compromise violates due process rights of slave owners (Fifth Amendment of Constitution).
- In McColloch?, Marshall wrote 'let the end be legitimate and the means not prohibited'--in this case, Taney finds the means are prohibited by the Fifth Amendment.
- Taney is concerned with 'substantive due process' rights, not procedural due process rights. Does not matter what opportunities for hearings Sandford might have to contest whether Dred Scott was brought North of the line, the problem, for Taney, is the conclusion that Sandford is deprived of his property if he has gone North of the line.
- Natural Law argument: laws that take from A to give to B are not law--'taking from Sandford and giving to Scott'. Not reading Natural Law as above the Constitution or Positive Law, but reading Natural Law into constitution.
- Court concludes that African-American cannot be citizens and that Congress cannot take steps to limit expansion of slavery in Western territories.
- Lincoln wants to change Dred Scott decision--will abide by decision, but decision is not by infallible platonic guardian. I.e., the Supreme Court's decision is not the Constitution.
- Not unconstitutional for Congress to pass legislation in contradiction to Supreme Court. We are only bound to follow letter of decision.
- Very dynamic view of Constitution.
- Douglas: "We must respect the court"--more typical lawyer's viewpoint.
- Taney had hoped that everyone would follow Douglas' viewpoint: "That's the law, thus we can stop fighting about slavery."
Although Lincoln lost the Sentorial race, he won the Presidency in 1860. Between Election and Inauguration, seven states seceded from the Union. Was this Constitutional?
- Seceding states saw Constitution as a voluntary partnership which they could walk away from, like a Contract.
- Northern states: union of people, not of states.
- Lincoln was not abolitionist, wanted Congress to prohibit expansion of slavery, thinking that eventually slavery would be diluted economically. Goal of war was preserving the union.
- No one argues secessionist argument anymore. This constitutional question was essentially decided on the battlefield.
- Question of whether Lincoln's war actions were Constitutional without congressional pre-approval
- Court holds that while President doesn't have power to declare war, does have power to respond to aggression.
- Looks at Act of Congress which gives President authority to resist force
- Interpretive style is similar to Marshall's; part of argument is to be guided by pragmatism. Not very concerned with textual interpretation.
- Taney in dissent accepts conclusion that President has right to fight back but not to take property. Cannot divest ship owners of rights.
Monday: Start with lawfullness of Lincoln's conduct and ask about Constitutionality of Suspension of Writ of Habeus Corpus and Emancipation Proclamation. Can one be unconstitutional without the other so being?
Monday, January 14, 2002 (Class 6)
Constitutionality of Lincoln's actions
Article I, Section 9: "can suspend habeas corpus in case of rebellion or invasion."
Early into Civil War, Lincoln suspends writ of habeas corpus.
Ex parte Merryman
[17 F. Cas. 144] 1861 (cb223)
- Taney is circuit judge in this case; Supreme Court justices used to 'ride the circuits'.
- Merryman is petitioning for habeas corpus; that his very arrest is illegal.
- Taney: only congress can suspend Habeas Corpus as per the constitution.
- Lincoln's response: the constitution is silent on President's ability to suspend habeas corpus, Article I Section 9 does not say only Congress can suspend habeas corpus.
- Lincoln ignores Taney's ruling. Essentially, there is an emergency, this is no time to worry about separation of powers.
- Was Lincoln's action constitutional? Do ends justify the means?
- Abolished slavery only in states which were in active rebellion (not New Orleans, for example, which was occupied by Union)
- Could Congress have abolished slavery in 1863? Would this have been constitutional?
- Lincoln still believed States were part of the union, run by rogue governments. Emancipation is being issued as a military act, in Lincoln's role as Commander in Chief.
- Historical trend in the United States: balance between States and Federal power vacillitates with peace and war (likewise, between Congress and the President).
- Is the problem lack of fidelity to the constitution or the specific actions being taken? (e.g., Emancipation Proclamation vs. President Bush's Military Tribunal)
- After war and Lincoln's assassination, Congress passes the 13th and 14th amendment.
- 13th amendment: abolishes slavery and involuntary servitude throughout the United States.
- 1866 Civil Rights Act (cb246). Questions as to whether Congress had authority to enact this legislation lead to 14th amendment.
- Congress did not recognize former Confederate States for ratification of 14th amendment. Problems with Article V of the Constitution, which requires 2/3 of each house and 3/4 of State Legislatures.
- Congress required States to ratify 14th amendment to be 'readmitted' into Congress, yet Union maintained that Confederate States never left Union.
- Meanwhile, South is under Military Rule, new governments are being constituted.
- Should 14th amendment be held constitutional, given its unusual adoption?
- States/country have 'acquiesced' over 100+ years.
- Policy arguments for keeping 14th amendment.
- "What is in constitution is what survives test of time."
- 14th amendment is most litigated and cited part of Constitution.
- Section 1
- Defines citizens: all persons born or naturalized in United States and subject to jurisdiction (overrules Dred Scot).
- "Privileges and immunities clause".
- Due process
- Equal protection
- Section 2
- Abolishes 3/5 compromise (where slaves are counted as 3/5 of a person)
- Limits congressional representation in those states that don't fully open their franchise--provides incentive for States to have universal suffrage (later, 15th amendment is supposed to create universal franchise, but this doesn't work either)
- Section 3 (legal disabilities of confederates)
- Section 4 (civil war debt)
- Section 5
- Gives Congress power to enforce provisions of this article.
The Civil Rights Case
[109 U.S. 3] 1883 United States Supreme Court (cb285)
- Congress in 1875 passes 'public accomodations act', prohibiting segregation on basis of race in places open to public. Case is challenging constitutionality of act. Pre-cursor to Civil Rights Act of 1964.
- Passed during Reconstruction period when Radical Republicans had control.
- Plaintiff claims Congress lacks authority to enact Public Accomodations Act. Previous cases where Congressional authority was challenged: McColloch? and Dred Scott.
- In this case, Congress has 13th-15th amendments to support its act.
- 13th amendment argument: whether public segregation/discrimination is badge of slavery, Section 2 of 13th amendment authorizes congress to eliminate slavery.
- Justice Bradley reads 13th amendment section 1 fairly narrowly, says this case has nothing to do with slavery.
- Foreshadowing of affirmative action debate: former slaves shouldn't have 'special treatment' since they have ceased to be slaves. Law prohibiting segregation is special treatment.
- Compare to Marshall's argument in McColloch?, where he finds means of establishing a bank 'necessary' in the sense that it helps achieve the end, rather than 'absolutely necessary'. Bradley is thus reading Section 2 narrowly as well (which empowers congress to take steps necessary to effect Section 1).
- Key holding: Section 1 of 13th amendment applies to private people. Congress can prohibit people from being slaveholder. But 14th amendment applies only to acts of the state, not private actors like inn-keeper or tavern owner.
Group 10 still on for Wednesday. Then we will go on to Plessy v. Fergusson (Group 15) and Slaughterhouse.
Wednesday, January 16, 2002 (Class 7)
Civil Rights Cases
[109 U.S. 3] 1883 United States Supreme Court (cb285)
- 13th amendment only applies to slavery and things closely associated with it (not discrimination)
- 14th amendment can only apply to state action, not to private discrimination. Section 5 limits congress to enforcing section 1.
- Bradley's approach to constitutional analysis. Can't look too closely at history, because Civil Rights Act was passed by mostly same congress as 14th amendment.
- 1876--reconstruction essentially ends in compromise in deadlocked election.
- Looks only as text.
- Harlan's Dissent:
- Need to read 13th amendment more broadly, it's not just about slavery qua slavery.
- Looks at intent and purpose of amendment. Not looking at intent in extratextual way (as Taney would).
- Looks at case law.
- Brings experience outside of legal world to bear on his interpretation.
Plessy v. Ferguson
[163 U.S. 537] 1896 United States Supreme Court
- Louisiana has statute that requires separate coaches by race and criminalizes sitting in the wrong coach. Plessy sat in the wrong coach and was arrested.
- Brown dismisses 13th amendment claim immediately (this is not about Slavery).
- 14th amendment: there is state action, but:
- Does not deny equal protection because it applies to all races equally.
- Relationship between people is governed by police power. To Justice Marshall, Police Power was whatever States had left after Constitution. To this court, Police Power is whatever States legislate.
- Brown says State can use Police Power as long as it is reasonable. Does not violate equal protection (because of application to all races).
- That people feel inequality is irrelevant to Brown, what matters is the language of the Statute. Formalistic analysis.
- Compare Brown's thinking to Marshall's: Marshall believed power of congress stemmed from people; as long as ends are reasonable and means are not prohibited. Relationship between Federal Government and States is malleable, wants to be deferential to legislature. In Civil Rights Case there is a clear dichotomy: individual relationships are subject to the State Police Power, State to Individual is subject to Federal Government.
- Boundaries between State and Federal government come from legal boundaries, enforced by the Court, static for Brown/Bradley? (not like Marshall's conception).
- Harlan's Dissent:
- Looks to experience again--knows this isn't about equality. Not satisfied with formalism.
- Claims Constitution must be colorblind.
- Harlan expresses strong racist views even if he believes races should be equal before the law. In particular believes in discrimination against Chinese immigrants.
- If we get rid of discriminatory statute, people might continue discriminatory conduct, but this is okay.
Court generally read reconstruction amendments narrowly, gave them little power to redress power imbalance between races, but did increase their reach in dealing with economic interests.
[83 U.S. 36] 1872 United States Supreme Court
- Louisiana passed law prohibiting slaughtering in city anywhere except in certain area, gave Crescent City Company monopoly.
- New Orleans was slaughtering capital of North America, given proximity to Mississippi River and Gulf of Texas.
- Sickliest city in the country with lowest life expectancy. Water supply came from where carcasses were dumped.
- During Civil War Union army limited slaughtering to certain locations, Yellow Fever decreased.
- 14th amendment, equal protection: segregation in Plessy was not violation.
- 13th amendment was all about 'free labor', thus this is form of servitude.
- Butchers claim denying them the fruit of their labor is violation of due process.
- Formal inequality: if crescent city gets monopoly then everyone is not being treated equally.
- Miller's Opinion:
- Sanitation and health laws are within police power. Regulating trade of butchering is among the most traditional, common, historic types of refulations.
- Reads all the amendments in the context of abolition. Civil War was not about butchers, it was about slavery.
- Methodology of intentionalism: we know what amendments are about.
- Equal protection is about racial inequality, not about butchers.
- Reads Due Process clause as concerning procedure, not content of rules.
Will start with Privileges and Immunities clause on Friday.
Friday, January 18, 2002 (Class 8)
Wednesday's class (assignment 9) group 20 (Iris) is 'on'.
Friday's class (assignment 10) group 23 (Sean) is 'on'.
[83 U.S. 36] 1872 United States Supreme Court (cb326)
- Privileges and immunities clause argument: Miller holds 14th amendment is about privileges of United States Citizenship, not about State citizenship.
- Baron v. Baltimore, 1830s case, addressed issue of whether States had to protect rights in Bill of Rights. Court held that it only applied to the Federal Congress and not to the States. Bill of Rights was intended to limit Federal Power.
- Rights citizens have against State are only the rights that citizens previously had against Federal Government.
- Miller lists rights that Federal Citizens have very narrowly. Appears to be the same rights people had before Civil War.
- Many of drafters of 14th amendment actually thought it would extend rights to States.
- Miller is very careful to define privileges and immunities in a way that it had little utility; after this case, this clause was dormant for about 100 years. Was worried that expanded language would have no end to application--everything become constitutional question.
- Field's dissent: reads 14th amendment much more expansively. Should provide butchers in Louisiana with Federal protection.
- 14th amendment has intrastate implications; State needs to respect it with respect to its own citizens.
- Natural Law appeal: taking from A and giving to B cannot be legal because it violates Natural Law.
- Bradley's dissent: Because one butcher is being favored to the disadvantage of another, Natural Law is being violated, using the 14th amendment as the justification. Bradley had previously held that Congress could not use the 14th amendment to prohibit discrimination.
Class will trace over time how 14th amendment is used with respect to race and how it is used with respect to economic regulation. Years after Civil War and after Reconstruction, profound social change, challenges, industrialization. People become wage laborers rather than farmers, rapid immigration. Movements to regulate increasingly large and impersonal corporations. Corporate bar began to understand that 14th amendment could be used to stop economic movements against them.
1886 Santa Clara case: corporations are persons for the purposes of the 14th amendment.
Munn v. Illinois: Court upheld regulation of Grain Elevator prices. Acceptable because Grain Elevators are vested in Public Interest. Starts to move towards allowing 14th amedment applicability to economic regulation, even though in this particular case the regulation is upheld. Suggests other industries that are less vital to public interest may be able to use 14th amendment to challenge regulation.
Most frequently litigated issue in this period is railroad rate regulation. Court holds that railroads can be subject to rate regulation, but only if it is reasonable as determined by court.
Lochner v. New York
[198 U.S. 45] 1905 United States Supreme Court
- Third in trilogy of 'infamous supreme court cases'.
- Is case wrong on facts, on theory? Question is why is this case so hated.
- New York Statute to impose a maximum number of working hours on bakers.
- Baker's argument: outside of police power, interferes with ability to make contracts.
- Constitutional argument: right to sell labor is part of liberties protected by 14th amendment.
- For Peckham, police power is small island in sea of island. Includes health, safety, morals, and public welfare and order.
- Compare to Marshall: whatever powers are not given to congress are the police powers.
- For Marshall, the Federal Government has enumerated powers, whereas Peckham believes State Government has enumerated powers.
- Hypothetical: if State decided all houses must be painted lavender for aesthetic purposes, Peckham would not allow this. Need to look very tightly between ends and means. Or "everyone must have donut for breakfast."
- Peckham worries it is going to be too easy for State to declare some connection between its legislation and some legitimate purpose.
- Peckham thinks this is really a 'labor' regulation, not 'health' regulation. Outside of legitimate police powers.
- To be legitimate police power, Peckham finds regulation needs to protect general public, not just baker. Doesn't find any basis for this, even though there are facts (used by dissent) that do sugest public health would be improved by this regulation.
- May be justifiable for State to protect those who can't protect themselves (miners, women).
- Allows common law categories to protect those who have traditionally been protected, but just seems to declare that bakers do not need protection.
- Harlan's Dissent:
- Agrees that police powers are limited, but willing to bring in outside sources to determine whether regulations are for health. Looks at studies, data, etc.., to find that regulation is legitimate.
- Holmes' Dissent:
- Rejects this conception of police power (at least in this case).
- Line between acceptable and unacceptable police powers is not fixed. Determined by the people; boundaries picked by social conventions which may change.
- Nothing is self-evident.
- Doesn't want to protect workers, nor does he want to protect businesses. Great adherent to social darwinism.
- Under Holmes' conception, Constitution imposes few restrictions on legislature, very little judicial review.
- Does make exception for 'fundamental rights'.
- Is problem treatment of Constitution (Peckham's lack of attention to framer's intent), treatment of Police Pwoer (as limited), misunderstanding of facts?
- Conservative jurists tend to criticize Lochner on basis of misapplication of Constitution.
Next class: one-half on New Deal (8), start Second Reconstruction (9).
Wednesday, January 23, 2002 (Class 9)
Office Hours Thursday morning this week (rather than Friday)
Lochner Era Judicial Characteristics
- Integration of common law doctrines/norms/baselines into interpretation of constitution
- Assumptions about dichotomies. Deduction from a priori categories is how you decide new cases.
- Job of court to make sure everything was put in proper category
- Court doesn't parse text. Not evident what is source of constitutional authority in Lochner.
- 14th amendment case about power of state but same reasoning used with respect to power of congress under 5th amendment
- Similar modalities for interpretation under Article I--moved away from deference to legislatures
- Under McColloch? Court allowed bank under broad definition of commerce; under Lochner commerce became very limited, defined, narrow category: e.g., railroads. But manufacturing, building, baking were not commerce. Thus shut down Sherman Antitrust Act as applied to sugar manufacturer.
- Struck down child labor laws. Congress tried to tax goods made by children. This too was found unconstitutional.
- Commerce, taxing, and spending powers of congress (and state legislatures) read very narrowly by Lochner era court.
- Mode of constitutional interpretation really came to a head during Great Depression. Previously criticism was more limited to academic and progressive communities.
- Congress (and states) passed a number of statutes that significantly impacted day-to-day lives of people and the economy.
- Nibia case: court upheld State Law setting minimum price for milk under 14th amendment due process challenge. State is free to adopt whatever economic policy may reasonably promote public welfare.
- 1935, ''Schechter Poultry Corporation v. United States (cb426): Court threw out an unconstitutional 'National Industrial Recovery Act' in 'Sick Chicken Case', act which prohibited sale of sick chickens. Non-delegation doctrine: NIRA gave too much power to administrative industrial boards for setting industry standards. Furthermore, congress had exceeded its authority because statute applied only within states (not interstate commerce).
- 1936, Morehead case: court invalidated New York's minimum wage law for women.
- NIRA concept: each industry would get together and determine industry standards to prevent deflation.
- Roosevelt won by very large margin in 1936, was concerned that Court would be hearing key cases on New Deal legislation. In particular, National Labor Relations Act and Social Security Act (old age insurance, survivors benefits, etc..).
- Roosevelt proposes plan for congress to past statute whereby there would be an additional justice for every judge over 70. Was this constitutional? Is constitution 'above the political fray'?
- Congress never passed the 'court-packing' scheme. The fact that this was even called a 'court-packing' scheme suggests that the idea of judicial independence at this stage was entrenched; supreme court had earned a degree of legitimacy and respect.
- Despite failure of Roosevelt's scheme, court switched its method of constitutional analysis to be more favorable to New Deal legislation.
West Coast Hotel
1937 United States Supreme Court (cb427)
- Case about minimum wage for women. Overruled earlier cases which invalidated minimum wage for women (e.g., Morehead from year before).
- Not just change of heart but also change of tone is notable in this case:
- Opinion states 'freedom of contract' is not in constitution. Sounds like Miller in Slaughterhouse cases.
- Community is not obligated to provide 'subsidy for unconscionable employers'.
- Baseline is not natural: denying minimum wage is subsidy for employer, enhances employer's bargaining power.
- Liberty is not some natural law phenomenon, it is part of social organization. Opinion switches the taking; now, by denying minimum wage, government is actually taking from employee to give to employer.
- Employer had no a priori right under God to choose what he wanted to pay (draws from Holmes), legal realism.
- Hughes is not simply putting things into categories. Social context is important in opinion.
- Another basis for State Action: taxpayers are going to have to support these women if they can't earn a minimum wage.
- About as close to socialism as Supreme Court will ever come, just one year after Morehead.
- Overrules Atkins, effectively overrules Lochner.
United States v. Carolene Products Co.
[304 U.S. 144] 1938 United States Supreme Court
- Challenge to act of congress under 5th amendment, regulating milk fat (Filled Milk Act).
- Equal protection clause: Stone argues that there is no equal protection clause under 5th amendment, thus there is no argument here.
- Stone differentiates a facial challenge to statute rather than a challenge to statute as applied. Carolene Products is challenging statute facially. When statute is challenged facially, Stone holds that court should be more deferential to congress.
- Stone applies 'rational basis' test. Police power must have legitimate rationales (public health, for example).
- Stone uses presumption of constitutionality, burden on party challenging statute to prove statute is unconstitutional. (unlike Lochner where there seems to be a burden to prove constitutionality.)
- Stone is open to looking at facts (again, unlike in Lochner, even though health challenge was probably stronger in fact in Lochner).
Williams v. Lee Optical
[ 348 U.S. 483] 1955 United States Supreme Court
- Similar challenge as Carolene Products, but this time relying on 14th amendment and equal protection against State Law.
- Opinion very similar to Stone's in Carolene.
- No legislative record in this case, however. Douglas finds that there could be a rationale for law, thus even despite lack of record or proof that these are good reasons, Douglas finds this can be a reasonable connection to public health.
- Fundamentally accepting idea that 'it is right of people to pass stupid laws'--put faith in democratic process.
Are these questions really for the court?
- Lochner: need to prove to court that legislation is constitutional.
- Carolene: constitution does not protect us from all the stupid laws in the world, this is okay. Legacy of New Deal due process reinterpretation.
- Decisions for voters to make--policy/political debates--that voters should decide.
Will pick up with Footnote 4 on Friday, and continue with Brown v. Board of Education. Group 23 is on for Monday (off from Friday).
Friday, January 25, 2002 (Class 10)
Next week's assignments:
- Monday, Assignment 10, Group 23
- Wednesday, Assignment 11, Group 5
- Friday, Assignment 12, Group 6
- Court has stepped back from reviewing substantive due process of legislative action. Still feels need to attach legislative action to public health, but in general give great deference to legislature.
- Coming close to 'rubber-stamping' what legislatures are doing, at least in the realm of due process.
- Started to come into conflict with Marbury v. Madison. If everything is deferred to legislatures, stupid and oppressive laws could be passed.
United States v. Carolene Products Co.
[304 U.S. 144] 1938 United States Supreme Court
- Footnote 4: There will still be some cases where court will apply strict scrutiny:
- Minorities. Presumption of constitutionality is to defer to legislature because this is the democratic political process. But in cases where legislature may not be representing the interests of all, the presumption may not be valid.
- Essentially turns table from twenty years before: now court will not give presumption of constitutionality with respect to race issues but will presume constitutionality for economic legislation.
- Bill of Rights and 14th Amendment: Courts had found 1st and 5th amendment to be incorporated into 14th amendment through due process clause--liberty includes freedom of speech and religion and right against uncompensated takings.
- Political Rights (related to concerns about minorities)
- Moves much more into policy outcomes. Job of constitution is to make sure the democratic process functions and allows for decisions to be made based on policy.
- Establishes two tiers of review (heightened scrutiny), but does not explain outcome in higher tier.
Brown v. Board of Education
[347 U.S. 483] 1954 United States Supreme Court
- Plessy had been read as giving green light to Jim Crow laws, segregation, etc..
- Even by early 20th century, as Court was becoming increasingly pressured to take cognizance of 'real world'. Court began to apply Plessy in less formalized way.
- Plessy began to be read as separate but equal, but that was not what Plessy meant at the time: equality for Plessy was a matter of whether statute was applied equally to all races (i.e., didn't ask if train cars were as good for blacks and whites, just if the statute separating races was applied to all races).
- With graduate school cases, equal began to mean more equal 'stuff'. Court notices that segregated institutions are almost never really 'equal'.
- World War II: consciousness of racism of fascists, migration of blacks to Northern cities where they could vote.
- Cold War: change in attitudes regarding segregation and Jim Crow in United States.
- NAACP decides that it will no longer challenge resource inequality; it will litigate case as if resources were equivalent. Challenges segregation itself.
- Method of Constitutional Analysis:
- Examine history. But finds this hopeless, fundamentally ambiguous. Schools were different at time of adoption of 14th amendment than in 1954.
- Departure from 'original intent': schools are different from what they were. Or: times are different. Original intent was to depart from that intent. AlternativelY?: intent of framers is found only in words, constitution is objective collective document.
- Conservative judges adhere to originalism, point to Lochner as court not holding to originalism.
- Looks at psychology/sociology: people are not equally protected by laws.
- Is it right to use sociology as a basis? If sociology is only basis, then might get different result if science points otherwise.
- Other possible basis (not explicitly mentioned): natural law. Was also used in Lochner, Dred Scott, and Plessy.
Monday, January 28, 2002 (Class 11) (Assignments 9-10)
Brown v. Board of Education
[347 U.S. 483] 1954 United States Supreme Court
- Questions about how was Brown decided, what does it mean, etc..
Bolling v. Sharpe
[347 U.S. 497] 1954 United States Supreme Court
- Question of DC public school system segregation; run by federal government this not under 14th amendment.
- Warren finds segregation unconstitutional under Fifth Amendment due process clause, even though in United States v. Carolene Products said no equal protection in constitution [304 U.S. 144] 1938 Supreme Court.
- Difficult to find basis for desegregation in Fifth Amendment: no textual evidence, no intent. Was difficult even under 14th amendment, but at least there the amendment was passed following the Civil War and the Civil Rights Act.
- Possible justification under Fifth Amendment: today, we know liberty means equality.
- Pragmatic justification--because Brown was so controversial, letting federal government off with segregation is big problem politically.
- Problem of history: what do we do when we see all the problems of history?
Overemphasis of Constitutional Analysis: too much reliance on constitution and courts to achieve social justice.
Brown did not change things all that much in reality, although it did provide some legitimacy to movement.
- Relationship between the federal government, the states, and the people
- Courts, congress, and the president
- Why should Courts figure out these relationships? Are questions of constitutional law all for the courts?
- What do we mean by liberty and equality?
- Similar problems arise at all times.
Course now will turn from history to doctrine...
Congress' Power under Article I
- Court's attitude towards power of congress has changed over time. Marshall was very concerned in McColloch? to read congressional power very broadly: though it is limited, it is plenary in its power. Taney interpretted congressional power very narrowly. Lochner-era court also read congress' power very narrowly.
- Switch in time that saved nine: not only a switch about substantive due process, but also a switch about reading congress' power under Article I.
National Labor Relations Board v. Jones & Laughlin Steel Corp.
[301 U.S. 1] 1937 United States Supreme Court
- Before the changeover, court would not allow federal government to regulate labor conditions because it was not found to be 'interstate commerce' -- manufacturing was not commerce, and workers in the factory were not interstate, and concerns about labor condition were not commerce. (Article I, Section 8 Commerce Clause).
- Court examined factory and industry and discovered that manufacturing plant was part of integrated unit that went across entire country.
- Jones is intermediate opinion: doesn't allow congress to regulate everything, but does open up the categories from precedent. Opinion could be limited to large plant doing business across states.
United States v. Darby
[312 U.S. 100] 1941 United States Supreme Court
- Fair Labor Standards Act.
- Statute does not allow shipment of goods that were produced in violation of the wage and hour limits set out by federal government.
- Also prohibits employers from making any goods in violation of standards.
- Shipment of goods is reachable by interstate commerce provision, even though basis of legislation is not necessarily commerce per se but labor standards.
- Second provision, prohibiting manufacture of these goods, is also constitutional because it substantially effects interstate commerce even if the manufacture and sale is entirely intrastate.
- Bootstrapping argument--15(b) becomes prophylatic method for enforcing 15(a).
- Court dispense with old arguments about manufacturing and commerce being separate activities.
- Deferential to congress, similar to Carolene Products (same judge, within a few years). Issue here is federal government rather than state, but similar analysis.
Wickard v. Filburn
[317 U.S. 111] 1942 United States Supreme Court
- Agricultural Adjustment Act restricted amount of wheat that could be grown in order to prevent wheat prices from dropping. Defendant grew wheat for own family past limit, quintessential intrastate case.
- Court allows Act to be enforced since even wheat grown for its own consumption effects market.
- Fifth amendment issue must be analyzed separate from Commerce Clause.
Wednesday, January 30, 2002 (Class 12)
Trend was to allow Congress to interpret Commerce Clause power of federal government.
Issue has been regulations on individuals and corporations (eating wheat, working hours, etc.) Thus Court has been ruling on balance between Congress and State in regulating individuals.
Another issue is individual rights, under Bill of Rights or 14th amendment.
Was the problem with Wickard individual rights or federalism? That federal government shouldn't have regulated person's consumption of wheat and that state should have, or that no one should be able to.
Third question: separation of powers. Who decides if it is state or federal?
New Deal Court was primarily grappling with Separation of Powers issue. They had lost faith in themselves; in the clarity, certainty, enduring nature of categories.
If Civil War decided anything, it was that the States were 'under' the union, not co-equal partners.
Arguments for and against federal power. Should federal government have power to regulate someone's consumption of wheat?
All laws limit rights; New Deal theorists and legal realists believed in the absence of a law there is an underlying law which is limiting other's rights.
Civil Rights Act of 1964
- Not until 1964 did Congress pass another national Civil Rights bill affecting public accommodations.
- 1883: 14th amendment only applies to State Action, Woolworth's is private actor.
- Ollie owns restaurant, wants to exercise 'individual rights' to exclude African-Americans from his restaurant.
- Title II of Civil Rights Action prohibits segregation in places of public accomodation (very similar to 1866 acts). Title VII prohibits discrimination in employment, includes gender (Title II does not include gender).
- Congress did not want to rely on 14th amendment because they were regulating things that were not state action, which is why they were found to have acted unconstitutionally in 1883. So they rely on Commerce Clause.
- Justice Douglas would prefer that Civil Rights Act rest on 14th amendment, because this is more authentic, genuine approach.
- Would have to overrule case law to rest on 14th amendment. Difficulties in establishing intention. Most importantly: would eliminate the intermediaries of Congress and the State between the people and the constitution. Would limit individual freedom significantly.
- Wickard Analysis: if everyone does what Ollie does, there will be an aggregate effect on the economy. Also, food comes from out of state, customers, etc.. Basis for finding grounding in commerce clause.
- Motivation of congress is irrelevant under this conception. Congress' power under commerce clause is plenary.
- Is the end of integration and ending oppression worth violating the 'principles' of limited federal government, etc.?
Spending/Taxing? Power vis-a-vis Federalism
- Power to spend is enormous. E.g., any restaurant that is segregated has to pay triple taxes.
- Before the 'switch in nine', court did not allow Congress to use taxing/spending to buy or cajole regulation.
Steward Machine Company v. Davis
[301 U.S. 548] 1937 United States Supreme Cout
- Court upheld taxing/spending an constitutional for achieving policy ends. Court is deferential to congress.
- Tight boundary of taxing/spending effecting only commerce is lifted.
- Social Security Act is based on spending power.
- Power of federal government is ultimately in able to do deficit spending, taxes.
By the 1980's, Congress could do almost anything it wanted to, with limitation of individual rights/Bill? of Rights.
1987 Rehnquist became Chief Justice, things started to change.
United States v. Lopez
[514 U.S. 549] 1995 United States Supreme Court (cb512)
- Federal issue is whether federal government can pass law prohibiting gun possession near school. (individual freedom is right of kid to bring gun to school).
Finish Lopez, Morrison on Friday, ask if Civil Rights Act is constitutional. Should get to New York v. United States.
Friday, February 1, 2002 (Class 13) (Assignments 11-12)
- Optional TA Review Session and Problem: Monday, February 11, Room 97, 3:15-4:30pm
- Monday 2/4: Assignment #13-Group #7
- Wednesday, 2/6: Assignment #14-Group #10
- Friday, 2/8: Assignment #15-Group #15
United States v. Lopez
[514 U.S. 549] 1995 United States Supreme Court (cb512)
- Holds Gun-Free School Zones Act of 1990 beyond the scope of congressional power under Commerce Clause
- Lopez was the first case since Roosevelt's 'court-packing' plan where Supreme Court strikes down congressional legislation under commerce clause objection.
- Sets up categories: congress is on 'surer ground' when it regulates something that is economic claiming it will have a substantial effect upon commerce.
- Problem: how do you know what is 'economic' and what is 'non-economic'?
- Child labor, for example--is that economic or non-economic?
- Rehnquist will allow more 'steps of separation' between an economic activity and commerce than between a non-economic activity and commerce. Of course, non-economic activity will rarely have a tight nexus with commerce.
- Non-economic seems to mean 'traditionally in the realm of the states'
- Compare to Warren's opinion in Brown: education is so different from framer's era that you can't look back to interpret constitution. Rehnquist, instead, finds education was traditionally in the realm of the states--but to what is he looking? The 1700's?
- Two readings of Marbury--one is to just apply the law, the other is to be the ultimate safeguard of the constitution.
Justice Rehnquist's Opinion
- First, Congress can regulate (1) channels of interstate commerce, (2) instrumentalities, (3) substantially affects interstate commerce. Previous courts did not use categories, just looked for rational basis.
- Channels--Darby--can regulate items in commerce.
- Instrumentalities--railroads, things that facilitate categories.
- Proper test is whether activity 'substantially effects' interstate commerce (claims this keeps with case law--looking back).
- Presumes that federal power must be read narrowly, otherwise 'anything goes'.
- Divides 'substantial effects' category into 'commercial/economic' and 'non-commercial/non-economic'.
- Court is more willing to find substantial effects in regulation of commercial/economic activity.
- Even Wickard (presumably the limit) involved 'economic activity' in a way school gun possession does not
- Seems to re-establish economic/non-economic categories
- Slippery slope: costs of crime/national productivity argument could go to all crimes
- No general police power. Would have to pile 'inference upon inference' to find this constitutional.
- Congress' powers must be enumerated!
- Structural reading of the constitution: court's job to determine federalist balance.
- Return to categorical kind of thinking that was present in pre-New Deal court.
Justice Kennedy's Concurrence (with O'Connor)
- Jones & Laughlin Steel, Darby, etc., are all still good law.
- Stare decisis, idea that commerce clause interpretation is so entrenched that court is not going to mess with it
- Still is role for court. Separation of powers, checks and balances, judicial review no one questions judiciary's role. Question is federalism.
- Discussion of 'double security' from having two governments, more liberty, federalist papers.
- One might think political process should take care of federalism.
- But--no structural mechanisms, 'momentary political convenience', thus the court has some role in federalism.
- Legislation is not dumb--reasonable end. But end is not constitutional for federal government.
- Policy argument: states need to experiment, serve local ends, different ways to prevent guns in schools.
- Only at very end does Kennedy mention lack of commercial nature.
- Seems to be based mostly on theory. Does look at Framers, but acknowledges change in commerce over time necessitates re-interpretation.
Justice Thomas' Concurrence
- Thinks all Commerce Clause Jurisprudence has gone too far.
- Strict textual-intentionalist argument: why would framers have included certain powers in section 8 if they thought federal government could just have everything necessary for interstate commerce?
- Intratextual analysis: looks at commerce and affect in other places in constitution.
- Tenth amendment has been 'turned on its head'
- 'Substantial effects' test should be reexamined
- The 'wrong turn' was the Court's dramatic departure in the 1930s from a century and a half of precedent
- Thomas would be willing to return to original understanding, although stare decisis/reliance might be problem.
- 'Today, it is enough to say Clause certainly doesn't empower congress to ban gun possession'.
Justice Stevens' Dissent
- Agrees with other dissenters, says Congress should be able to regulate a number of substances.
- Guns are articles of commerce, their possession is consequence of commercial activity.
- Look at reality: whatever the framers thought in 1789, it's a different world today with respect to guns.
Justice Souters' Dissent
- Brief review of history--supreme court was bad when it made highly formalistic decisions, good in New Deal and Civil Rights cases.
- Accuses majority of Lochnerizing.
- Analogy both to commerce clause and due process clause of fifth amendment.
- Rational Basis test--good test, no reason to change it. Stare decisis.
- No need for findings--judiciary's job is not to rethink legislative action.
- Slippery slope theory (witness slippery slope from Jones & Laughlin).
Justice Breyer's Dissent (joined by Stevens, Souter, Ginsburg)
- Court must judge whether congress could have had rational basis, not whether it would have made same decision
- Goes to great empirical lengths to prove rational basis for legislation, says rational basis test should still be applied
- Simply apply pre-existing law to changing circumstances
- Holding is contrary to modern Supreme Court decisions
- Problem of distinction etween "commercial" and "noncommercial" transactions
- Threatens legal uncertainty in area of law that is settled
South Dakota v. Dole
[483 U.S. 203] 1987 United States Supreme Court (cb533)
- Issue: Can federal government condition highway funds on drinking age?
- Majority Holding: Yes--congress can regulate indirectly what it can't regulate directly, unless not in pursuit of general welfare or conditions not related to the purpose and intent of the program funded (Rehnquist and six others)
- O'Connor's Dissent: Linkage between national interest and conditions is too attenuated. Both over- and under- inclusive.
- Brennan's Dissent: 21st amendment reserves alcohol regulations to states.
United States v. Morrison
[529 U.S. 598] 2000 United States Supreme Court (sp1)
- Differs from Lopez in that there is a significant congressional record supporting economic effects of gender-based violence.
Justice Rehnquist (Majority) Opinion
- Rehnquist still presumes constitutionality, allows for Jones & Laughin Steel standard
- Non-economic, criminal conduct was key in Lopez--not 'some sort of economic endeavor'
- Interstate violence is still constitutional
- 'Slippery slope' theory--if you can regulate this, what can't you regulate?
- Says this case is about family law or crime--neither of which is commerce.
- 'No civilized system of justice' would not provide a remedy for Brzonkala, thus everything is okay.
Justice Thomas' Concurrence
- Good decision, but we should throw out the 'substantial effects' test entirely
Justice Souter's Dissent (joined by Stevens, Ginsburg, Breyer)
- Again, not court's job to second guess congress.
- Mountains of data, findings, showing effects of violence against women on interstate commerce.
- Far more rationale here than in Heart of Atlanta Motel.
- Gives lots of evidence as to economic relevance
- Still thinks its a bad law, but that's not for court to decide
- Dissent not based on 'logic alone'--history also shows that categorical exclusions are unworkable.
- Lots of appeal to precedent
- 'necessary and proper'--indicates that power was not supposed to be limited
- Cites bad 19th-early 20th century decisions
- Laissez-faire economics motivated blind formalism before; Souter claims this is why current court rules as it does.
- Historical record indicates that framers did not actually intend to prevent federal government from infringing on State Police Power
- Politics should resolve federalism issues
- 17th amendment weakened state power, it was okay
- States don't even want this power; they support law
- Court's position is incoherent; decisions will be decided on an ad hoc basis.
Justice Breyer's Dissent (joined by Stevens, in part by Souter and Ginsburg)
- Highlights incoherence of economic/non-economic categorization
- Court emphasizes how 'economic' it is, but not how 'local' it is
- Congress' role to determine federal/state balance--they have incentive to do so. Too hard for court.
- Maybe solution will be congressional procedural for balancing interests, but majority's view is totally wrong.
National League of Cities v. Usery
[426 U.S. 833] 1976 United States Supreme Court (cb552)
- Challenge to Fair Labor Standards Act as applied to state governments as employer.
- Rehnquist holds law to be unconstitutional--although within commerce clause power, finds it violates 10th amendment and would leave the States without any separate existence.
Garcia v. San Antonio Metropolitan Transit Authority
[469 U.S. 528] 1985 United States Supreme Court (cb555)
- States don't need judiciary to protect them from congress, the structure of the constitution creates the protection they need from federal government.
- Current holding is that law still needs to pass Lopez test.
New York v. United States
[505 U.S. 144] 1992 United States Supreme Court (cb576)
- Congress passed law regulating how States dispose of radioactive waste, mandates directly how State has to comply
- Statute is directed specifically at States, rather than Garcia which applied to everyone
- Statute instructs state legislatures to handle radioactive waste in a certain way.
- O'Connor finds spending provisions to be legitimate; Congress can use its spending power broadly to achieve certain ends.
- Provision specifically commanding state legislatures violates structure of constitution. Not exactly 10th amendment or commerce clause; rather both: 10th amendment creates interpretive gloss on commerce clause. We should read commerce clause narrowly when congress is attempting to regulate states in this manner.
- When only state is regulated, accountability and political lines are defused.
Start on Monday with Printz.
Monday, February 4, 2002 (Class 14) (Assignments 11-12)
- Optional review Monday, February 11, 2002 at 3:15pm in 97 Cargill.
- Review problems are currently available in Jan McNew?'s office. Read all problems and all attached articles.
- We will be assigned one of the review problems for a smaller meeting with Professor Parmet.
Congress' options when acting under the commerce clause:
- No person shall...
- No person shall carry a gun into a school. In this case, congress is not directly regulating the states. Look to Lopez, Morrison. Set up scope of Congress' direct regulatory authority.
- No person or state shall...
- Congress defines regulated entity to include states. E.g., 'No employer shall', including public employer. In Usery, Court seemed to say Congress is barred from this activity, particularly when it is treading upon something that is traditionally a state function.
- Usery was overruled in Garcia, where Blackmun spoke for the majority, that if legislation is valid as applied to people, then it is valid applied to people and states. Blackmun argued in 5-4 opinion that is too hard to determine what is a traditional state function, and that the people and congress can determine the properly balance here.
- Dissent warned they would return. Since then, Court has not directly overruled Garcia, although it does seem to have circumscribed it.
- The State shall...
- O'Connor reads tenth amendment as an interpretive tool to understand Article I. Under this reading, Congress is not permitted to say the state shall or the state legislature shall. Congress cannot commandeer state and state legislature.
- In New York, regulating low-level radioactive is a legitimate activity of federal government, but it cannot be done in this way.
- Bases of opinion
- History: federalist papers
- Prior to the Constitution, Congress could only regulate States, but not individuals. O'Connor reads decision to add direct regulation of individuals to subtract direct regulations of states. Highly debatable interpretation.
- History creates a structure of federalism.
- Worried about accountability. If Congress tells States to regulate individuals, then the individual regulated doesn't know what political entity is responsible for regulation.
- Stevens' dissent, echoes Blackmun in Garcia: Federalism is protected by structure of constitution, not by judiciary creating doctrines.
- The State shall receive funds if it...
Printz v. United States
[521 U.S. 898] 1997 United States Supreme Court
- Federal law to control handguns, interim measure compels State Law Enforcement Officers to do background checks.
- Sheriffs challenging law on the basis of New York. In that case, Court ruled that congress could not 'commandeer' state legislatures; in this case, the challenge is to the commandeering of the executive.
- Scalia examines constitutional history, finds rare examples of federal government ordering state executives. In early days, judicial and executive functions were often blended. (Historically, State judicial was always bound to Federal Law--supremacy clause and full faith and credit clause).
- State officials routinely are instructed to apply Federal Law. e.g., 'No person shall labor for less than $5/hour'. This will be enforced by State Judges.
- Having judges enforce federal law, under Scalia's interpretation, is different from having Sheriffs enforce federal law.
- History, for Scalia, does not support a practice of federal commandeering of state executive branches.
- Scalia does not rest his argument on history, however, but finds that the answer is found in the structure of the constitution.
- Structure will not be properly realized if congress has press into service all the state officials.
- If Congress wants background checks, it could:
- Have federal government perform checks itself
- Federal government can also provide monetary incentives
- Justice Thomas' Concurrence:
- Raises problem of 2nd amendment--problem is individual rights, not States.
Reno v. Condon
[528 U.S. 141] 2000 United States Supreme Court
- States were selling State Driver License databases; Federal Government passed bill forbidding sale of this information.
- Concern that stalkers and others would use this information for bad ends.
- Attorney General of South Carolina, plaintiff, suing Janet Reno as United States Attorney General.
- States challenged Driver Protection Law, claiming it was analogous to Printz, which attempted to force States unconstitutionally.
- Congress is being very specific in compelling inaction, rather than Printz where they were compelling action.
- Case illustrates 'bluriness' between categories of federal regulation (i.e., regulation of people vs. state vs. both).
- Congress could have directly regulated people: 'it is illegal to buy or sell driver's license information'. But congress chose to regulate the States directly.
- Brady Bill (Printz) could be reworded to appear as inaction.
- Federal government can still require action, as well: States have to report kidnapping to FBI.
- Puts boundaries (though unclear) on Printz.
- For long period from the 1930's until the 1990's, Court almost never overruled Congress. Since then, there has been abrupt change of doctrine. Court is much less deferential to Congress.
Other Sources of Federal Authority--Post Civil-War Amendments
- 13th, 14th, and 15th amendment created new individual rights.
- Individual rights are protected from State Action, but problem with applying civil rights amendments to individual action, thus commerce power was generally used to protect civil rights of individuals against other individuals.
- One area that was not brought under commerce power: voting rights.
South Carolina v. Katzenbach
[383 U.S. 301] 1966 United States Supreme Court
- Congress passed Voting Rights Act of 1965, in response to lack of enforcement of 15th amendment.
- Voting Rights Act suspended literacy tests and required state voting regulations to be approved by the Federal Government.
- Chief Justice Warren, writing for Court, found that South Carolina should be barred from administering literacy test.
- Courts hadn't been able to insure uniform nationwide compliance with Voting Rights under 15th amendment. Thus Congress passed Voting Rights Act, allowing Attorney General to bring in Federal Marshalls and insure voting rights.
- Warren starts by citing McCulloch? v. Maryland, which usually means the Court will ask if the means justify the federal ends, and usually finding that they do.
- Black's dissent: concerned about Federal-State structure. Finds Voting Rights Act too intrusive.
Katzenbach v. Morgan
[384 U.S. 641] 1966 United States Supreme Court
- Challenges constitutionality of section of Voting Rights Act in Puero Rico; that knowledge of English is not required to vote.
- Much harder case than South Carolina for Court to decide.
- No record of New York's malfeasance.
- Court could see that Act was legitimate means for resolving problem in South Carolina, harder to see in New York.
- Court had specifically held that English Language Requirements was a constitutional voting requirement (discussed in Lasseter case in Harlan's dissent), presents further problem for Supreme Court.
- No judicial history of New York using language-based requirements to enforce racial disenfranchisement, unlike situation in South Carolina.
- Justice Branon starts, again, with McCulloch?, suggesting again that he will be deferential to congress.
- Congress can make its own vision of what constitutes commerce.
- There are some activities which clearly would be unconstitutional under 14th amendment, but a rational congress might think that if you have a literacy test and if you keep Puerto Ricans from voting because of language requirements, people might not be elected to represent their interests, and thus political actors might take unconstitutional actions applying to them. Circuitous route, similar to Darby and other rational basis decisions.
- Second alternative ground for decision: (cb491) Maybe Congress could disagree with Court in Lasseter. Congress has different facts, might see world differently; they might believe that English language requirements might violate equal protection clause.
- Suggests that Congress itself has coequal interpretative powers with Supreme Court. (see Lincoln-Douglas debates.)
Start on Wednesday with Footnote 8 on cb490. Continue with City of Boernes, Morrison, and preemption.
Wednesday, February 6, 2002 (Class 15) (Assignment 13-14)
- Research packet available outside Jan McNew?'s office.
- Review problem also there--be sure to get it for Monday's review session with TA.
Katzenbach v. Morgan
[384 U.S. 641] 1966 United States Supreme Court
- Court upholds Congress' ban on literacy tests on two bases:
- Puerto Ricans might not receive equal city services if they are not represented in government, which the court has found to be unconstitutional.
- Congress can decide for itself that literacy requirement is unconstitutional. Congress can disagree with court's decision in Lassiter.
- Court is essentially 'going out of its way' to find constitutional rationale for Congress' act.
- Increasing deference to congress brings with it this possibility of encroachment on States Rights.
- Reconstruction amendments: adopted specifically to give federal government power over states; states specific role for congress. Unlike commerce clause expansion cases which don't have this kind of basis.
- Commerce Clause was product of Constitution of 1787 which may have had a broader conception of States rights than post-Civil War amendments.
- Does this case seem like congressional invalidation of court's earlier decision in Lassiter?
- Brennan's second rationale comes quite close to saying that congress can tell the Court it was wrong in its prior holding.
- Footnote 10 (note a in book): congress cannot limit rights against Supreme Court, only expand them.
- Congress's ability is 'one way ratchet'. Problem: sometimes expanding one person's rights is seen as limiting another person's rights.
- Usually not the case that you can expand some people's rights without interfering with other people's rights; voting rights are peculiar (counterargument of other people's votes being diluted is weak).
- Under this interpretation, what if congress says: 'Supreme Court got it wrong in Roe v. Rade, fetus is really a person, we need to extend rights to fetus.' Is this an 'upwards ratchet'?
City of Boerne v. Flores
[521 U.S. 507] 1997 United States Supreme Court (cb536)
- City denied Archbishop right to expand church because of historical preservation/zoning issues. Archbishop sued under Religious Freedom Restoration Act, which set strict standard for government to limit religious practices.
- In Smith case, Supreme Court denied earlier 'balancing test', holding that neutral laws of general applicability may be applied to restrict exercise of religious freedom, unless the individual can show intent behind the law to limit religious freedom.
- RFRA was passed in response to Smith, very popular, denying governments the ability to limit religious freedom, even with facially neutral statutes that do not intend to abridge religious freedoms.
- Under Morgan standard, Supreme Court would probably be deferential to Congress, since it was extending protected rights (Free Exercise).
- Kennedy, writing for Court, strikes down RFRA, since it goes beyond being a remedial power and effects a substantive change in constitutional protections.
- Kennedy would allow federal government to only act to prevent unconstitutional state acts, as interpreted by the Court.
- To the extent that Morgan suggests that Congress has co-equal power of interpretation with Court, Court is rejecting that basis--other basis for decision was stronger basis.
- Congressional means have to be congruent and proportional to ends. Switches burden of proof from individual to the State.
- No rational basis test.
- Compares this case to South Carolina v. Katzenbach, there the means were proportional, because the Court had already found specific States to have violated constitution. In this case, not enough evidence of religious discrimination in all 50 states to warrnt this act.
What happens when Boerne meets Lopez?
- Gender-based violence is itself (perhaps) violation of equal protection. States may not be adequately remedying that.
- State Action Requirement under constitution--see Civil Rights Cases, Boerne.
- Rape, even if it is gender-based, is not violating of Equal Protection Clause.
- Congress thought that gender-based violence was so discriminatory that it deprived equality of women.
- Rehnquist: Even if Congress thought this, gender-based violence is not violation of 14th amendment, it is just a state crime, not a 14th amendment issue.
- Response: problem is not the rape, the problem is the State's inadequate response to the rape. Thus there is state action, according to proponents. Act is needed to remedy State action.
- Rehnquist: but consequence is not to state officials, but against the perpetrators of crimes themselves.l
- Again, Congress has not proven to the Court that all 50 States have discrimination based on gender-related violence.
- Shift to burden on Congress to demonstrate ubiquity of problem.
- 'Congress has not made prima facie case of section 1 discrimination in all fifty states.' Very heavy burden on congress.
- Breyer's dissent: Congress as legislature has different way of amassing evidence and reaching conclusions. Should not be judged as if it were a litigant in Federal Distirct Court. If Congress, in good faith, accepts Court's constitutional interpretation, then Court should defer to congressional fact-finding methods, which are different from Court's. Supreme Court is imposing a demand for 'court-like' evidece in this case.
- Technically, deals with sovereign immunity. Court has held that, in general, individuals cannot sue the state. States have immunity from people in Federal Court. Congress can abrogate sovereign immunity when it acts under reconstruction amendments (but cannot abrogate under Section 5 of commerce clause).
- Law prohibits discrimination on basis of age and employment.
- Question is whether State employee can sue State for age discrimination.
- Not the Heart of Atlanta question; just limited to whether law is based on 14th amendment.
- Court finds law overreaches: not congruent and proportional. Not sufficient evidence that States were engaging in widespread discrimination.
- Makes it extremely difficult for Congress to pass Civil Rights Laws. Three Civil Rights Laws have been struck down recently, all on the Boerne analysis.
- Court acknowledges that discrimination goes on, but wants to leave resolution to the States.
- All of these cases are decided 5-4, with same 5 justices on one side, same 4 on the other side. Dissent does not acquiesce, even on basis of stare decisis.
Generally, we see return to pre-New Deal concerns and standards. Deductive, formalistic methodology with clear rules and clear tests, rather than deference to Congress. Also, originalism and history (which were not present in pre-New Deal court).
Rehnquist Court has invalidated more legislation in last 5 years than all Courts in prior history.
What happens when congress passes statutes that apply to States that are, themselves, constitutional?
- Can only occur when and if Congress has authority to act. e.g., Congress cannot pre-empt on bringing guns to school, or criminal prosecution of violence against women. Act must be constitutional.
- Inevitably, when Congress acts constitutionally, it is doing something to displace State power.
- If State passes law under its police power, and Congress passes law under Article I power, what occurs?
Gade v. National State Wastes Management Association
- Federal government imposes standards for hazardous waste disposal. States also have their own standards. Can State still impose its standards? What if State standard is more stringent than Federal standard?
- O'Connor gives mode of interpreting pre-emption: pre-emption may be express or implied, by congressional intent. In one sense, pre-emption is in statutory interpretation.
- Constitutional issue: Supremacy Clause of constitution makes clear that congressional law is supreme.
- This is an example of implied pre-emption; not written into statute.
Friday, will pick up on 'how does Congress find implied pre-emption'. Will go on to talk about Horizontal Federalism.
Friday, February 8, 2002 (Class 16) (Assignments 14-15)
Next week's assignments:
- Monday, February 11, Assignment #16, Group #19
- Wednesday, February 13, Assignment #17, Group #20
- Friday, February 15, Assignment #18, Group #23
Gade v. National Solid Wastes Management Association
- Pre-emption is both constitutional and statutory, is also doctrine of federalism.
- If federal statute pre-empts state statute, then constitution says it overrules--Supremacy Clause.
- If you are concerned about state rights, one approach is to limit Congress' power under Article I; another is too interpret pre-emption more narrowly.
- O'Connor in Gade: there are two types of pre-emption, express and implied.
- Why not just have express pre-emption?
- Not practical; Congress doesn't expressly state pre-emption, but not possible for citizen to comply with both Federal and State statute (conflict pre-emption, when it as almost physically impossible to comply with both).
- Comprehensive Scheme. Sometimes Federal legislation seems to be intended to totally cover an area, pre-empting State law.
- O'Connor looks at Statute as a whole, finds that it was Congress' intent to protect workers and the public. Statue sets that if State does not want to adopt OSHA, they need to submit a plan (18(b)). Suggests this means that OSHA was meant to pre-empt State law.
- Also looks at 18(c); standard that State wants to set can't effect commerce.
- Reads all provisions of OSHA together to find congressional to pre-empt.
- Finds that this is conflict pre-emption. But is it physically impossible to have both standards?
- Impossible to conform with both sets of rules and have unifom system.
- Kennedy disagrees that this is conflict pre-emption, suggests it is expressed--'implied expressed pre-emption'.
- Unusual distribution of justices--seems to switch normal roles on Federalism questions
- This alliance occurs in pre-emption cases repeatedly.
- Souter: why not just read State Statutes narrowly? Traditional approach to read statutes so as to not create constitutional conflicts.
- O'Connor: Would rather have one regulatory scheme than two.
- Souter's constant references to Lochner include allusion to laissez-faire economics. O'Connor and Kennedy are worried about too burdensome a regulatory scheme on business.
- If highest principle was adherence to state sovereignty, probably would not find pre-emption in this case (could construct rule of construction that would only find pre-emption when expressly provided).
- Pre-emption is thus considered statute by statute.
- What happens when Congress has done nothing to regulate certain area between States?
- Very rare that Congress has actually done nothing, always ask if there is a federal law which pre-empts. In 1820 there was almost never pre-emption, now there almost always is.
- Are there limits on what States can do apart from pre-emption?
- Obviously: 14th amendment, Bill of Rights.
- What about limits within Article I? Article I has a few specific textual limits for what States can do:
- Article I Section 9-10: prohibits States from taxing each other's goods.
- Technically, no other textual restrictions.
- Court in early 19th century read grant of power in Article I Section 8 as preclusion of power from States.
- Early theory was that Congress' power of interstate regulation was something that Congress 'had', thus states did not have it.
- Problem with this theory: early on Congress did little to regulate interstate dealings.
- Overwhelming majority of constitutional cases before Civil War involved interstate regulation by the states, dormant commerce clause.
- Why have a dormant commerce clause?
- Congress can't do everything, Court should police interstate transactions.
- Could argue that Congress can pass laws when it wants to stop states from interfering with interstate tranactions.
- Justice Stone in Carolene Products: sometimes States can't be trusted, when they interfere with religion, etc. Uses similar reasoning for Court's power in horizontal federalism cases.
- Democratic theory idea: Tobacco farmers in North Carolina can't vote out politicians in Masachusetts who outlaw tobacco products. (but: can't Massachusetts citizens vote on whether or not they want health hazards associated with tobacco.)
- Where do you draw line between ostensibly health/safety regulations to protect state's citizens and that also interfere with interstate commerce?
City of Philadelphia v. New Jersey
[437 U.S. 617] 1978 United States Supreme Court (sp15)
- New Jersey passed law prohibiting waste from being imported into state
- New Jersey Supreme Court finds law constitutional
- First, Justice Stewart finds that waste is clearly commerce
- Then: is the Statute facially discriminatory?
- If we look at statute, and it 'sorts the world into two groups', in state from out of state, then it is facially discriminatory.
- Don't need to examine effect or purpose for this analysis.
- New Jersey's argument: purpose of statute is protect citizen's health and safety.
- Court finds that facial discrimination is per se unconstitutional (although this can't be found textually in constitution.)
- Exception to rule: quarantine laws. Not to discriminate against interstate commerce, but to prevent noxious items from entering. I.e., not about commerce, but about the good itself.
- Could create law to keep cattle who have been exposed to hoof and mouth disease out of state.
- Dissent: doesn't see why state can use quarantine law, but can't reject trash. New Jersey is doing all it can do--can't ban citizens from creating trash.
- Rehnquist is in Dissent (unusual from "States' Rights" point of view): should see tenth amendment as empowering New Jersey to do whatever it wants. States' Rights means letting some States do what other States don't want them to do.
- Burden is now shifted to State to explain why it is absolute necessary to discriminate against other States. Almost impossible for State to pass law that facially discriminate.
When law is not facially discriminatory and there is nothing 'fishy' going on, Court is generally deferential to State Legislature. (i.e., banning cigarettes entirely to protect lung health). If it appears that facially neutral is pretextual, court might be more willing to intervene (i.e., banning cigarettes so people will purchase Massachusetts Cigars.)
C & A Carbone, Inc. v. Town of Clarkstown
[511 U.S. 383] 1994 United States Supreme Court (sp21)
- Carbone ignored New York state law requiring all trash passing through town to go through town's waste processing center. Financing scheme for landfill.
- For Monday, why is this law unconstitutional?
- Look at problem in materials for Monday. May start Assignment #16, election issues: why the electoral college, and should we get rid of it?
Monday, February 11, 2002 (Class 17) (Assignments 15-16)
C & A Carbone, Inc. v. Town of Clarkstown
[511 U.S. 383] 1994 United States Supreme Court (sp21)
- Distinction between Facial Discrimination (Per Se) and Facially Neutral but disparate impact Discrimination between states/against states ('balancing test').
- Clarkstown policy requires all trash passing through city to go through city's processing center.
- Is Clarkstown policy facially neutral?
- Doesn't mention location of those who are subject to ordinance (in contrast to Philadelphia) -- would thus appear to be facially neutral.
- Kennedy: creates a local preference. Not discriminating 'against' but discriminating 'in favor'--outside waste procesing facilities are thus being discriminated against. So close to facial discrimination that it should be considered per se violation, thus unconstitutional.
- Souter's dissent: law is constitutional because it aids government, not private actors, through partnership with Clarkstown plant that the government is going to take over in a few year.
- Goal is not to discriminate against out-of-state plants, but to finance state's trash disposal.
- Question of 'financing policy'--if the town wants to finance its trash collection in this way, this is for the town to decide.
- Accuses court of Lochnerizing again.
- Hypothetical: people have to pay for public schools (usually through property tax), even if you don't have children who attend those schools. Does this violate dormant commerce clause? Note that Edison Corporation runs schools around the country.
- By forcing people to pay for public school (whether or not they have children, and whether or not they go to public school), make it harder for Edison Company to come in to state and open business.
- Compare fire departments--used to be only houses with fire department plaque (saying they had contributed to fire department) got fire protection. Not efficient.
Market Participation Doctrine
- When State wants to spend its money, it can choose to spend its money as it wants--e.g., can pay for education just in State. In Big Dig, can choose to only pay Massachusetts contractors.
- When State is acting like individual consumer (spending tax dollars), it can choose to favor its own.
- Exception to dormant commerce clause.
- Can create economic effects that are so overwhelming that they are in fact regulatory.
- E.g., State says to Hospitals in state--we will give you all health care money as long as you purchase all your medical supplies from Massachusetts companies. This 'choice' is then not really a 'choice' at all.
Privileges and Immunities Clause
- Also deals with burdens on out-of-state interests.
- Limited to people, not corporations.
- Issue of how States treat residents of other States.
- In Dred Scott, Justice Taney's conception of Citizenship denied all African-Americans privileges and immunities in all States.
- Article IV privileges and immunities are interstate vs. 14th amendment priveleges and immunities which are intrastate.
- New Hampshire would not permit non-New Hampshire residents from practicing law in New Hampshire.
- Supreme Court struck down New Hampshire law; priveleges and immunities clause protects rights which are fundamental to interstate harmony. Burden on State depriving these rights is to prove compelling state interests and no other way to do it.
- Court finds practicing law to be fundamental, even though voting is not (as isn't elk hunting). If voting were considered fundamental under this conception, anyone would be able to vote in State as they were passing through.
- Do State colleges violate privileges and immunities? Unclear from lower court decisions.
- New Hampshire could increase burdens on joining New Hampshire bar, as long as it is facially neutral.
- Focus on ambiguous issues, where resolution would not be clear.
- Argue both sides, applying the cases to the particulars.
- 'Bioterrorism Prevention Act': designed to enhanced nation's capacity to prevent/respond to bioterrorism.
- Title II: Requires every lab possessing bioterrorist agent to acquire license from state, must prove to state safety precautions. Every laboratory license by state shall be examined every six months.
- Does Congress have power/authority to enact this statute?
- Most likely source of authority is Article I Commerce Clause.
- Does Lopez standard put legislation within Congress' power?
- Channels, instrumentalities, and substantially effect commerce
- Does not seem to fit into channels or instrumentalities, but could it substantially effect commerce?
- Pro-argument: Laboratories are 'economic activity' -- more like businesses than like schools and the home. Then, bioterrorism has enormous impact on interstate economy.
- Con-argument: health and safety regulations seems to be at core of public police power, not given to Congress to regulate.
- Look at Katzenbach v. McClung?, just like diners are businesses, can pursue moral or public health goal.
- Under Prince: seems to commandeer state officials. Bioterrorism law seems to come very close to Prince.
- Title III: Does Congress have authority?
- 14th amendment.
- Not like Boerne. Statute requires state to 'remember 14th amendment', even when bioterrorism comes.
- Congruence and proportionality in Boerne and Morrison concerned Section 1.
- No New York or Prince issue under 14th amendment, only under commerce clause.
- Will do Atlanta statute on Wednesday and Bush v. Gore.
Wednesday, February 13, 2002 (Class 18) (Assignments 16-17)
Review Problem I
- Atlantis has health code that makes it illegal to possess anthrax bacteria. Atlantis company wants to acquire bacteria for research from laboratory supply company in state of Pacific.
- First Question: Is statute preempted by federal law?
- Federal statute can only preempt state statute if it is constitutional.
- Assuming federal statute is constitutional, look to see if there is any express pre-emption.
- Nothing in statute suggests an explicit pre-emption intent or language.
- Secondly, is there field pre-emption?
- Since federal government is regulating 45 pathogens, could find that they intend to occupy the entire field.
- Alternatively, federal government may only be creating federal floor. States could be free to supplement federal regulatinos.
- Since States are supposed to be part of enforcement of federal regulations, could be case is an example of cooperative federalism, not intended to pre-empt state action.
- Third, is there conflict pre-emption?
- (could argue both ways for either)
- Federal statute might empower states to take action; this could overcome any dormant commerce clause concern since federal government is authorizing states to license pathogen laboratories.
- If there is no pre-emption and no empowerment, then move to dormant commerce clause analysis:
- Is regulation facially neutral? Yes--does mention any other state.
- Protectonism? Doesn't appear to create local preference.
- Pike test: Burdens to interstate commerce vs. States' Interest.
- Seems to be limiting and negatively effecting interstate business in germ supply. Might also prevent shipment of bacteria through state as well (on interstate transportation).
- Compelling state interest can be argued--public health and safety of not having anthrax in state.
Selection of the President
- So far, we have been discussing relationship between congress, the states, and the courts. Now will introduce relationship with president: look at federalism issues and separation of powers issues.
- Marbury v. Madison established President as subject to judicial review, set up constitutional issues. Lincoln and Roosevelt also played large roles in constitutional evolution.
- From 1876 until last year, candidate who got the most votes won the election.
- 1876 election resulted in end of reconstruction.
- 2000 election demonstrated that it's not the voters who pick the president, but the electors.
- Justifications for Electoral College:
- 'Distrust of the common folk'--but in 1876 there was not widespread franchise anyway.
- Number of electors is not proportionate to population--every state gets at least three.
- Concern that if states expanded franchise they would get more votes. Would create competitive pressure on states to expand their franchise.
- Original idea was a 'deliberative democracy'--electors would get together and discuss who was the best candidate.
- Assumes voting block is the states.
- Do we want to conceive of the office of the Presidency as one created by the States or one created by the people of the nation?
- Problem with abolishing electoral college: would need to have 3/4 of states ratify constitutional amendment. But small states are benefited by electoral college, and each get 1 vote in constitutional amendments (even further exacerbating problem).
Bush v. Gore
[531 U.S. 98] 2000 United States Supreme Court (sp65)
- Review of decision of Florida Supreme Court to order state-wide recount.
- One week earlier Supreme Court had vacated an order of the Florida Supreme Court to do recount.
- Similar to dormant commerce clause causes--where Supreme Court reviews decisions of state courts.
- Per curiam decision--no specific claim of authorship--authored by 'court' (although generally thought to be authored by Kennedy). Very unusual to have a per curiam decision in such a contested split decision.
- Per Curiam opinion:
- Florida Supreme Court violated the constitution by ordering standardless recount--did not provide equal protection.
- Next question: can United States Supreme Court remedy this violation?
- Court concludes not to remand to Florida State Court consistent with their opinion. Not enough time to do this before safe harbor period.
- Congress had passed safe harbor--if electors are certified in time, they will be counted. 3 U.S.C. §5. Congress actually counts the vote, decides which electors will be selected.
- Court presumes that State of Florida wants to take advantage of the Safe Harbor deadline.
- But--Supreme Court was responsible for Florida not meeting deadline; also, did not give Florida a chance to express whether it wanted to meet deadline.
- Justices in majority were same justices who had consistently advocated for state sovereignty; dissent (who usually voted for federal authority) wanted State Court decision to rule.
- Justice Rehnquist concurrence (with Scalia and Thomas).
- State legislatures should chose method by which they want to pick electors.
- Article II says State Legislatures shall mandate method by which electors are picked. To the extent to which Florida Supreme Court violated legislature it is unconstitutional.
- But: one would think it was a question of State Constitutional Law to interpret legislation in this case.
- Rehnquist is saying that State Courts have no say in enforcing State Law with respect to presidential elections. Article II restricts the ability of State Courts to construe the State's election system.
- Challenges legitimacy of Supreme Court in deciding this issue
- Should courts intervene in times of crisis?
- Dissent claims that the State was on its way to resolving this issue
Will go on to address Presidential Power on Friday.
Friday, February 15, 2002 (Class 19) (Assignments 17-18)
- Wednesday, February 20, Assignment #18: Group 23 is on
- Friday, February 22, Assignment #19: Group 5 is on
- Pick research topic by next Friday
- Derive from Article II of Constitution
- Article I: Presidential veto, legislative power
Youngstown Steel Case
- Night before strike was called by the Steelworkers Union, President Truman ordered executive order for government to take possession of 85 steel manufacturing companies throughout country, claiming National Emergency to keep steel industry up and running because of presence in Korea.
- District Country issued preliminary injunction. Supreme Court granted writ of certiorari to consider constitutionality of executive order.
- Justice Black, writing for majority:
- No law explicitly gave president power to seize steel mills, nor implicitly.
- Since Nation is not at war, President cannot act as commander-in-chief.
- Thus only legislature has power to seize mills.
- All opinions appear to assume that this would be within power of congress.
- Did congress authorize this?
- In the absence of congressional authorization, can the president do this on his own?
- Congress could have convened to approve president's action, but did not (unlike in the Prize Cases, where it was harder to convene immediately).
- Truman has tremendous union support; steel companies are suing Truman.
- Justice Frankfurter:
- Truman's act implicitly violates Taft-Hartley act--Truman is violating a statute.
- Justice Douglas:
- Looks at issue in terms of individual rights -- individuals being steel manufacturers.
- Steel manufacturers have constitutional right against taking of property without just compensation.
- Can't take without compensation, but President isn't in position to take, because he can't raise revenue (requires congressional enactment).
- Clear delineation between lawmaking and execution of laws.
- Draws much brighter line--regardless of history of Taft-Hartley, President would not be able to take action unless congress explicitly authorized it.
- Administrative Law: Congress passes broad enactments, Executive goes in to fill the gap.
- Douglas was brought to Washington to be head of Securities and Exchange Commissions--somewhat unusual that he is then arguing bright line between legislation and implementation.
- Three justices suggest that implicit congressional disapproval is problem--statutory background.
- Justice Jackson--the most interesting and important:
- Dilineates three situations in which President has power.
- Enacting congressional laws (carrying out congressional policy.) -- president's power is strongest.
- No explicit grant of powers from congress--concurrent authority--gray area. Congress has not said yes or no.
- When President is going against policy of congress, needs constitutional power to do so.
- Jackson believes President is acting under third category--President is acting against Congressional policy (reading case like Frankfurter).
- Recognizes overlapping and concurrent powers; uncertainty and tension about division of powers, no clear boundaries.
- Talks about his political experience, and having been solicitor general. (also happens to be that he was a judge at Nuremberg Trials).
- Pragmatic opinion. Understands constitution in light of political experience.
- In this era, court was often filled with Justices with political experience--now Justices tend not to be comprised of people who have engaged in public life.
- President's 'real' power: political power. If President is popular, he can get congressional support he wants to accomplish his goals.
- Political Question Doctrine: might not be able to litigate at all if Court finds that matter is political question, not subject to judicial determination.
Wednesday, February 20, 2002 (Class 20) (Assignments 17-18)
- Need to sign up for research paper assignment by Friday
- Up until now, we have discussed federalism, balance of powers, etc., moving into individual and group rights now (for rest of course).
- Begin with State Action as gateway into individual rights.
- When there is State Action or Congressional Action, Courts can place limits.
- When there is only Individual Action, Congress or the States can regulate individuals.
- Congress can regulate individuals under commerce clause.
- States can regulate individuals under police power.
- Most state action cases involve whether the state is acting under its police power.
- Most difficult cases are those at the margin, where the defendant is claiming they are private person, not acting as state, while the plaintiff will claim that they are acting as state.
- Go back to West Coast Hotel: state 'inaction' is actually action--absence of a minimum wage requirement is a subsidy for sweatshop factories. i.e., absence of minimum wage is also law (common law is law).
- When parent instructs child, there are laws which support that right. Thus in some ways parent instructing child involves state action.
- However, extending state action this far begins to obliterate individual rights.
- On the other hand, overt state action seems to only occur when moving from status quo. In this understading, change is always subject to judicial review, but maintaining the status quo is never subject to judicial review. Would lead to very conservative court.
Shelley v. Kraemer
[334 U.S. 1] 1948 United States Supreme Court (sp31)
- Issue is whether state can enforce a private racially restrictive covenant--i.e., whether the equal protection clause of 14th amendment has been violated.
- Problem with state action is that conflict is between buyers and neighbors. Neighbors are claiming seller did not have right to sell to African-American buyer. Appears to be a private agreement rather than a state action.
- Justice Vinson: Property ownership is among civil rights protected by 14th amendment. Judicial enforcement and legislative action both constitute State Action. Focuses opinion on intervention of state court: Judge is state employee, acts as state.
- On the other hand, don't all private contracts and actions have some degree of judicial enforcement?
- Question: is this a theory of state action devoid of context, or is Vinson willing to see state action based on the context?
- Reasoning in Shelley is relatively rare.
- Other area where state action is always found without question--libel law. Private parties subject to constitutional restraints: states have to protect newspaper's rights to free speech. Area of especially highly regarded rights.
Rendell-Baker v. Kohn
[457 U.S. 830] 1982 United States Supreme Court (sp35)
- New Perspectives School, nonprofit school, school committee votes to fund public schol students there.
- Teachers claim they were discharged simply for speaking up, violation of due process.
- Plaintiff claims school is equivalent to state institution, even though it is nominally a private entity.
- Plaintiff doesn't make Shelley v. Kraemer argument--i.e., that state action creates the employment relationship--claim of school that it has the right to summarily dismiss its employment is inherent in state action, instead relies on fact that school is almost entirely publicly funded, functions like a public entity.
- Justice Burger: Start with assumption that private entities are private.
- For something to be public, it mut be something that has exclusively been a public function. But is there anything which has ever been exclusively public? Tax collection, judiciary, maybe (but tax collection has been contracted out, and private mediation exists).
- Burger's key holding: if state had compelled school to dismiss teacher.
- Would this case have come out differently if it had been brought by a student of school claiming discrimination?
Friday, will talk about Brentwood and then First Amendment.
Friday, February 22, 2002 (Class 21) (Assignments 18-19)
- Monday, March 4: Assignment #20, Group 7
- Wednesday, March 6: Assignment #21, Group 10
- Friday, March 8: Assignment #22, Group 15
Rendell-Baker v. Kohn
[457 U.S. 830] 1982 United States Supreme Court (sp35)
- Issue of whether private school whose income is primarily from public sources is subject to constitutional requirements under state action doctrine.
- What if plaintiff had been a student? Would result have been different?
- School's interaction with students was much more heavily regulated by State than its interaction with teachers.
- Students were placed in this school, generally had no choice.
- What distinguishes state actors from non-state actors? Defense contractors, the Federal Reserve Bank, private schools, etc.. Might it be the nature of the underlying issue be at stake?
Brentwood Academy v. Tennessee Secondary School Athletic Association
[2001 U.S. Lexis 964] 2001 United States Supreme Court (sp39)
- Is Tennessee Secondary School Athletic Association a state actor? TSSAA is a non-profit membership corporation formed to regulate interscholastic sports.
- Receives incomes from public schools by dues, no other authority for interscholastic regulation.
- 5-4 split, majority opinion written by Souter.
- Entwinement theory: sets up a number of criteria for entity to be considered to be entwined with government action.
- Distinguishes Rendell-Baker by suggesting that Rendell-Baker was about public function test, while this case is about entwinement test. Thus there is state action in this case, even though there wasn't in Rendell-Baker.
- Souter couldn't purport to overrule Rendell-Baker or he wouldn't have five votes.
- Can't make a decision based solely on formalism. 'Winks and nods'.
- Deciding vote is O'Connor--so Souter's opinion is essentially to convince O'Connor.
- Thomas' dissent: explicit about reading State Action narrowly. Worried about individual rights. In this case, two corporate entities are concerned (Brentwood and TSSAA). Of course, either reading impinges on individual rights.
- Concern also about state sovereignty. In the absence of State Action, TSSAA's action is private action subject to State Police Power. Thus this could impose requirements on States to act against individuals; i.e., limits State Sovereignty. Thus Thomas' dissent would give States 'broad power'.
- Can't really understand state action without understanding underlying rights.
- As we examine underlying rights, there will still be federalism issues.
- If person has a right to free speech, then Massachusetts doesn't have right to tell person not to speak.
- Also means that when court establishes individual rights it is limiting the legislature (vs. the state legislature vs. congress).
- After Roosevelt's court packing plan and switch in nine, Court adopts deferential standard. Rational basis test, applied in Carolene Products, includes presumption of constitutionality.
- Footnote 4 in Carolene Products points out possible exception to deferential attitude when issue is one of specific prohibition of Constitution and Bill of Rights.
- Unusual reading in that Bill of Rights was adopted in order to protect States from federal government, not to protect Individuals from States.
- First Bill of Rights amendment applied to States under 14th amendment was 5th amendment takings clause.
- Incorporation of property was part of substantive due process rights found by court in late 19th century.
- Next amendment incorporated is first amendment. Not a big leap for majority in 1920's, because of broad notion of substantive due process.
- Problem arises with New Deal, in 1937, with Pope.
- New Deal brings in presumption of constitutionality, gets rid of prior notion of Substantive Due Process (West Coast Hotel). Then why should States be subject to Bill of Rights?
- Cardozo splits Bill of Rights into those that are 'of the very essence of a scheme of ordered liberty' and those that are not.
- Black is concerned that Cardozo's formulation in Pope leaves question open-ended, subject to judicial determination. Doesn't trust judiciary. Black thus wants total incorporation, where first eight amendments will all be incorporated against the states. Black argued this was historically intended in 14th amendment.
- Frankfurter is concerned that if Bill of Rights is incorporated against the States, it will be diluted because federalism issues will enter; there will be less recourse against the federal government under the Bill of Rights.
- Theory of selective incorporation (happened particularly frequently in the 1960's): asks, in issue by issue, whether a particular right should be incorporated against the States.
- Application of first amendment is an example of 14th amendment substantive due process; nearly all rights are now applied jot-for-jot.
Spring Break (February 23-March 2)
Notes are continued in ClassNotesConstitutionalLawParmet2, for faster loading...
Monday, March 4, 2002 (Class 22) (Assignment 20)
- Why should a court that has concluded that it is not so good at policing boundaries, that has concluded that law and legal reasoning has not been good at coming up with clear answers, be responsible for protecting speech?
- Constitutional dilemma is not whether free speech is a good idea, but whether judiciary should be responsible for deciding?
- For first hundred years, Supreme Court never heard a first amendment case, even though congress did pass laws restricting speech, e.g., Alien and Sedition Act.
Shenck v. United States
[249 U.S. 47]
- First important first amendment cases came during World War I and red scare/Bolshevik? Revolution.
- Espionage Act of 1917: Holmes comes up with clear and present danger test. War makes a difference--what can be said during peace time may be prohibited during war. Circumstances matter.
Debs v. United States
[249 U.S. 211] 1919 United States Supreme Court
- Debs speech glorifying socialism and workers still interferes with war efforts
Abrams v. United States
[250 U.S. 616] 1919 United States Supreme Court
- Abrams is not well known, not as 'dangerous'. Holmes' dissent finds Abrams' speech doesn't constitute clear and present danger.
- Holmes adds sense of immediacy, looks at probability that speech will actually bring about evil.
- First the first time Holmes uses test, not as justification for conviction, but as an attempt to exculpate defendant. Congress can limit speech only when there is a clear and present danger.
- Speech in Abrams deals with Bolshevik revolution, rather than Debs' speech which dealt with war with Germany.
Gitlow v. People of New York
[268 U.S. 652] 1925 United States Supreme Court
- Incorporation of first amendment into fourteenth amendment
- Holmes Dissent: in some way consistent with dissent in Lochner--give people their way in competition of ideas.
- Holmes doesn't take into account 'fair fight' in battle of ideas.
- Sets Court as arbiter of clear and present danger.
- Still retains claim that evil must be remote or else speech can be prohibited.
- Could be analogous to Carolene Products footnote 4 -- protection of minorities. All of these cases were brought against ideological minorities (socialists) and frequently against ethnic minorities.
- Brandeis' dissent in Whitney: false ideas may become doctrine in absence of free speech.
- Brandeis is concerned about majoritarian tendencies, which may suppress individuals and harm democracy. Sense of individual freedom that we don't see in Holmes' dissents. Birthplace of 1960's idea of free speech.
- Brandeis' view has incipent libertarianism.
- Why is freedom of speech specifically protected but not other freedoms (e.g., freedom not to eat doughnuts)?
- Until 1920's, Supreme Court has still never found for individual; these views are all dissents. But in following years, Court cites more frequently to dissents, as if they were majority opinions.
- Next round of 1st amendment cases came during McCarthy? Era and second red scare, 1940's and 1950's.
Dennis et al. v. United States
[341 U.S. 494] 1951 United States Supreme Court (mat47)
- Leader of Communist Party of United States
- Majority opinion: even though chance of danger occurring is very small, harm itself is very great, thus conviction can stand.
- Can discuss Marx and Lenin as long as intent is not to provoke evil.
Wednesday, March 5, 2002 (Class 23) (Assignment 20)
- Trend in first amendment jurisprudence in first half of century of increasing lip service toward first amendment protection, even if Court is not generally finding for individuals.
- Trends in Holmes and Brandeis dissents:
- Holmes 'free marketplace of ideas', necessity to proper functioning of political system, clear and present danger test. Focus on body politic. We need free speech because then we can assume that majorities can benefit from contest of ideas. Closely connected with political speech.
- Brandeis, while not disagreeing with Holmes, has more libertarian conception. Not only is free speech a prerequisite to individual liberty it also part of individual liberty. Not only concerned about truth and marketplace of ideas, but also concerned about individual's rights to say what they want to say,as a component of liberty. Not necessarily limited to political speech.
Brandenburg v. Ohio
[395 U.S. 444] 1969 United States Supreme Court (mat57)
- Defendant, leader of Ku Klux Klan, convicted under state's syndicalism law prohibiting advocating violence, challenges conviction on frirst amendment grounds and wins.
- Court overturns defendant's conviction--first case so far where Court has found for individual against the State.
- Speech needed to be intended to incite. (element of intent, which was referred to in Dennis).
- Also needs to be likelihood of harm. (Dennis used 'gravity of evil' and the 'likelihood').
- Question now is whether imminent unlawfulness will occur (rather than whether people will eventually be persuaded by speaker's arguments).
- Case puts together prior pro-speech standards, establishing a very strong free speech standard.
- Explicitly overrules Whitney case, sets current standard.
- Court has been very supportive of Civil Rights Movement; by setting standard that allows Ku Klux Klan speech, justifies protection of Civil Rights speech as well.
- Although it doesn't specifically overrule Dennis, this standard overrules that set in Dennis.
- Issue is not necessarily judiciary's ability to set limits on speech, but rather legislature's, since speech in question here was prohibited by State Statute.
- Incorporation of first amendment is so assumed that court doesn't even need to address the issue of whether state is subject to first amendment.
Court has moved away from protecting just speech qua speech into speech qua communication--i.e., flag burning, commercial advertising for political candidates.
If United States threatened media with prosecution for airing bin Laden's speech, how would Supreme Court rule? How should they rule?
- Government argues that airing speech facilitates bin Laden's communication with his troops.
- Would court use Brandenburg standard, or go back to Dennis standard?
- National security issues.
Review Problem II
- First question: is Bay State College a state actor?
- Brentwood: School used to be state college, funding comes from state. Court gives great weight as to whether the institution is nominally private or public. But nominally private institutions may be found to be state actors under Brentwood when they are so entwined with the state. Several facts here similar to Brentwood.
- Rendall-Baker: State does not have influence or control over school--state did not compel particular action at issue. No evidence that State required school to pass this particular issue. No State Regulation of school, not directly funded by State. Much less funding for Bay State than school got in Rendall-Baker, where it was not found to be state actor. Higher education is not exclusive state function (even primary education was not exclusive under Rendall-Baker).
- Unlike in Brentwood, legislative change was not just 'wink-and-nod' or symbolic. Bay State is in different position than it was prior to privatization.
- Need to make arguments on both sides of state action, then analyze first amendment issue.
Will do 5-10 minutes on first amendment on Friday, then will do Korematsu case and Loving v. Virginia.
Wednesday, March 7, 2002 (Class 24) (Assignments 20-21)
- Monday, March 11, 2002: Assignment 23, Group 6
- Wednesday, March 13, 2002: Assignment 24 (p927-953), Group 19
- Friday, March 15, 2002: Assignment 24 (p953-973, 973-978, and supplement), Group 20
- TA: Rachelle Wills
- Phone: 617-347-1395
- Office Hours: Tuesday, 3:30-4:30pm, Thursday, 3:30-4:30pm (in commons).
- E-mail: firstname.lastname@example.org
Review Problem II
- First question to think about is State Action.
- Assuming there is State Action, would new policy violate the first amendment?
- Brandenberg standard: advocacy is protected, except when it is directed to inciting or producing imminent action (or is likely to produce).
- Rule prohibits joining organization, not just speech, which Court has always found to be protected activity. Dennis suggests that anyone who talks about communist ideas is not subject to Smith Act.
- Not content neutral restriction.
- Passes test: given facts, recent riots, imminency standard is met here.
- Fails to meet Brandenberg test: riot was isolated event, not likely to recur.
- Statute is potentially overbroad, makes presumption of intent on part of all students in organizations. Intent needs to be associated with individuals. (i.e., students might have joined for letter-writing campaign, mailing list, etc..)
- On exam, would need to examine language of rule carefully. Look at Brandenberg test, can look at Dennis to argue that gravity standard still exists. Need to be careful with language and text.
We've seen relationship between Court's standing on civil liberties has relationship with nation's sense of security. Speech has not been only right to be threatened in times of war. In addition to ideological minorities being targeted, racial, ethnic, and religious minorities have been targeted as well.
Korematsu v. United States
[323 U.S. 214] 1944 United States Supreme Court (cb810)
- Following Pearl Harbor, heightened fear around Japanese-Americans. Order was issued to inter Japanese-Americans on the West Coast.
- Korematsu was son of Japanese-born citizens, but born in the United States and thus a citizen of the United States.
- Case is not affirmative challenge of statute, rather appeal from criminal conviction.
- Korematsu claims statute is beyond Congress' war power, also violates 'equal protection' clause -- but fifth amendment doesn't necessarily have equal protection, so must rely on due process (later Supreme Court does 'reverse incorporation', including equal protection in fifth amendment).
- Justice Black's Opinion
- Curtailing civil rights of single racial group are immediately suspect--echoes footnote from Caroline Products that maybe presumption of constitutionality should not be made in case of rights of minorities.
- People sometimes argue that race merits heightened scrutiny because it is immutable.
- All statutes create ephemeral 'categories'--every law applies to some people, creates category that are transient for that law.
- Might want to specifically scrutinize regulation that effects 'sticky' categories--categories that are used over and over again.
- Sticky categories that persist throughout law: gender and age. Maybe these are the ones that might be used inappropriately.
- Other 'immutable' categories: left-handedness, fingerprints, etc.. Do these warrant strict scrutiny?
- After saying that these classifications are immediately suspect, Justice Black upholds regulation.
- Jackson's dissent: Supreme Court can throw out conviction, since it can't look into military operations. In times of war, Court's hands are tied, but they shouldn't make bad constitutional law. Non-doctrinal pragmatism.
- Murphy: Military action was unconstitutional, should be overruled.
Monday, March 11, 2002 (Class 25) (Assignments 21-22)
- Equal protection clause of 14th amendment: what does it mean to discriminate? What is equality?
- Laws that use race (facially classify on basis of race, as was case in Korematsu)
- Laws that aim to disadvantage one race
- Laws that on their face disadvantage one race
- Laws that lead to unequal outcomes (but say nothing on their face--disparate impact)
Loving v. Virginia
[388 U.S. 1] 1967 United States Supreme Court (cb801)
- Challenge of racial miscegenation statute. Couple was married in DC and returned to Virginia where they were prosecuted for miscegenation.
- Statue fits into first category (uses race) and aims to disadvantage one race, although on its face does not disadvantage one race, unless we take into account multiracial factors (i.e., law does not penalize blacks for intermarrying with other races other than whites).
- Justice Warren, writing for court, finds invidious racial intent in statute. White supremacy/racial attitudes will never constitute legitimate state ends, and this can be the only possible justification for the miscegenation statute.
- Clearest part of holding: law does not need to disadvantage one race on its face in order to trigger strict scrutiny.
- State claims marriage is within its police power under the tenth amendment, Warren responds that tenth amendment is not superceded by fourteenth amendment. State can only do what is in its police power as long as it is not prohibited by fourteenth amendment.
- Marriage and liberty: recalls Lochner opinion, where Court refers to something not explicitly included in the Constitution as fundamental to liberty--i.e., being able to work as many hours as you want.
- What triggers strict scrutiny? Do you use strict scrutiny to determine whether to apply strict scrutiny?
- Right to Marriage conception: individual right, prevents any one person the right to marry whomever they want. Due process emphasis.
- Equal protection mode--different narrative. Story about treatment of group.
- But why strict scrutiny? Are laws that categorize by race alone sufficient to trigger strict scrutiny? Although racial categorizations in law are problematic, Warren can't ignore context of white supremacy and disadvantaging on one race that is present in statute.
- When court uses strict (or rigid) scrutiny, it starts to put itself in the position of the legislature and ask whether the law is necessary to achieve a permissible state objective. No longer deferential, no longer asks could a reasonable legislature think this was necessary to achieve a permissible state objective.
Washington v. Davis
[426 U.S. 229] 1976 United States Supreme Court (cb851)
- Plaintiff claims police test leads to unequal racial treatment and thus should be struck down as violating equal protection.
- Claim seems to fit into category of "laws that lead to unequal treatment" rather than laws that aim to disadvantage one race or laws that on their face disadvantage one race.
- Argument for plaintiffs under Loving: the fact that law was aiming to disadvantage one race was part of a more general phenomenon of laws that maintain social racial hierarchy. Warren was not particularly concerned with subjective intent in Loving so much as result.
- Justice White: if a law is facially neutral there must be discriminatory purpose to trigger strict scrutiny.
- Every law will have disparate impact. People are not identically situated--there are always winners and losers. Cannot strike down law simply because there is a statistically determinable difference based on any number of categories, including race.
- Courts would have to second-guess legislature about every law (under White's view) since there is always a disparate impact.
- Thus, if claim is only disparate impact, review standard will be rational basis. But disparate impact coupled with aim to disadvantage one race will trigger strict scrutiny.
- Problem with not allowing for disparate impact is that it invites 'clever racism'.
- How do you know if you have aim to disadvantage one race without strict scrutiny?
- Holding seems to assume that status quo is acceptable.
- Won't address systemic injustice/differential pattern. Different schools, etc., lead to different ability to pass police test. Disparities thus replicate themselves.
- Puts focus on defendant rather than plaintiff--intent of person who framed law rather than effect on people.
- Stevens concurrence: rather than looking at state of mind, look at consequences of act. Statute has as its intent, its impact.
Washington v. Davis raises several questions:
- What is intent?
- How do you prove it? Particularly with respect to collective bodies, such as legislatures.
Village of Arlington Heights
- Claim was that zoning was racially discriminatory. Problem is how to determine racially motivated intent--who's intent do we examine?
- What if some members of zoning board had racial intent and other members did not?
- Court looks to see if any 'red flags' are raised by some change made by governing body.
- What if discrimination has always been present?
Start on Wednesday with Feeny and then move to affirmative action cases.
Wednesday, March 13, 2002 (Class 26) (Assignment 22)
- While strict scrutiny many not necessarily lead to law being overturned, rational basis test almost inevitable leads to law being upheld.
- Racial classification and some indication of racial intent--strict scrutiny will be triggered.
- Racial intent alone can trigger strict scrutiny.
- Disparate impact alone leads to rational basis review.
- Racial classification alone--??
- Two types of equal protection typically arise:
- State actor does something with clear racial motivation. e.g., sheriff is racist and beats up suspect because of suspect's race. Constitutional torts--easier case.
- Harder issue: intent of policies, ordinances, statutes. What is intent of law made up by multiple actors?
- Arlington Heights notion of intent is not clear meaning of words--rather calls into question extratextual evidence (rejecting Justice Stevens' notion of intent). Wants to look at what steps the zoning commissioners took in making their decision, what was said at meetings, etc..
- Arlington Heights also assumes status quo is okay (sounds like Lochner).
- Arlington Heights won't look at frenzy in town--only intent of legislators.
Personnel Administrator of Massachusetts v. Feeney
[442 U.S. 256] 1979 United States Supreme Court (cb856)
- Massachusetts statute giving preference to war veterans in employment challenged on basis of gender discrimination.
- Extremely few female war veterans--thus statute constituted enormous preference to male for civil service positions. Thus this meant that most sought after positions were filled with men.
- Court finds that if decision was made 'in spite of' rather than 'because of' discriminatory effect, then law is okay.
- Problem: how do you determine whether the right intent was in place? How do you determine whether statute triggers strict scrutiny or not?
- Comes close to specific intent required in some criminal actions.
- All legislation create categories and favor certain groups. But can we find some cases where impact is so disparate and so entrenched, that court can act in these cases?
United States v. Clary
[34 F.3d 709] 1994 8th Circuit Court of Appeals (cb873)
- Defendant, convicted for crack cocaine possession, challenges conviction of equal protection since penalty for crack is much higher than cocaine, resulting in harsher penalties for many black drug possessors than white drug possessors.
- Challenge is actually under 5th amendment, since this is federal case.
- Sentencing guidelines don't say anything about race.
- Court finds rational basis for sentencing, thus is deferential to legislature's action.
- Need to find intent in order to ratchet up to strict scrutiny.
- Strict scrutiny: has to be necessary for compelling state objective. Almost 'death to legislation'.
- Since standard is so strict, court may not want to use it, thus sets bar for strict scrutiny so high.
McCleskey? v. Kemp
[481 U.S. 279] 1987 United States Supreme Court (cb884)
- McCleskey? is African-American man, convicted of killing white victim, sentenced to death in Georgia.
- Claims he was denied equal protection under 14th amendment, since statistically people who kill white victims are much more likely to get death sentence than people who kill black victims. Also more likely to be sentenced to death if you are black.
- Strongest evidence: Baldus study.
- Problem: study shows lots of correlation, but can't show causation. McCleskey? hasn't shown racial discrimination in his particular case.
- Furthermore, no evidence that legislature enacted or maintained death penalty because of racial purpose (not despite). No way to prove thot legislature enacted death penalty to value white lives over black lives.
- Also, can't discover people's motives, particularly jury.
- Also, many individuals involved, too many intentions--legislators, thousands of jurors, district attorneys, etc..
- McCleskey? argues that he has empirical proof of discrimination, even if intent can't be discovered.
- Blackmun's Dissent: should look at acts of prosecutors. Also, look at history of Georgia capital sentencing process. Used to be facially discriminating statutes, racist comments on record, etc.. Current system builds on that history. Could be distinguished from Feeney or Clary in that historical link is much clearer.
- Problem is collective decision making to determine intent under equal protection standard.
- Very individualized treatment of racism--penalizes individual racist actors, rather than systemic racism.
- Leaves us with sense that intent is the overriding concern in equal protection claims.
- What about racial classification alone?
- First attempts at government assistance to erase racism was done by courts in remedial orders to desegregate schools.
- Simply erasing Jim Crow laws didn't, by itself, fix anything.
- In Brown doesn't talk just about categorization, but about actual practice of segregated education. Brown didn't simply say 'don't use a racial classification' but rather that the schools must integrate.
- Subsequently, executive branch adopted term affirmative action. Starts to say that employers receiving federal money need to take affirmative steps, under Title VI of the Civil Rights Act.
- First case where Supreme Court deals with constitutionality of affirmative action outside of context of continuing remedial order was Bakke (1978), dealing with admission to the University of Califorina Medical School.
- Bakke has no clear majority opinion.
- Four justices argued that where Medical School uses race as a criteria, court should use intermediate scrutiny--something in between rational basis and strict scrutiny.
- Intermediate scrutiny seems to resemble dormant commerce clause test--some sort of balancing test.
- Four justices argued that policy violated Title VI of the Civil Rights Act, thus don't need to reach constitution.
- Justice Powell wrote 'tie-breaker'--but was only person agreeing with himself. State can consider race as factor, but cannot use rigid numerical quotas.
- No justice argued that law should be given 'rational basis' review.
- A few years later, Court reviewed Federal Minority Set Aside Program.
- Law was 'complete mess' when Croson was decided.
Friday, March 15, 2002 (Class 27) (Assignment 22)
- Next Week's Schedule
- Monday, March 18, 2002: Assignment 25 (including problem), group 23
- Wednesday, March 20, 2002: Assignment 26, group 5
- Friday, March 22, 2002: Assignment 27, group 7
City of Richmond v. J.A. Croson Co.
[488 U.S. 469] 1989 United States Supreme Court (cb927)
- City of Richmond adopted Minority Business Utilization plan, which sets aside 30% of subcontracting for Minority Business Enterprises.
- Richmond statute was quite similar to statute upheld in Fullilove v. Klutznick, ostensibly Richmond City Council was trying to write statute that would be constitutional.
- Richmond argues case should not be treated with strict scrutiny because its intent is to remedy past forms of discrimination.
- Three different ways to think about intent:
- 'Race on the mind'
- To harm
- To help
- Feeney seems to state that problem is harmful intent--did not find intent to harm women in veteran's statute.
- If harmful intent is benchmark of strict scrutiny, then Richmond's statute should not be subject to strict scrutiny.
- O'Connor calls for strict scrutiny, 'heightened review', of Richmond's statute, in section 3a. Officially four justices sign on to this section, but Scalia's concurrence seems to also support strict scrutiny standard.
- Why strict scrutiny?
- Can't determine whether intent is benign or harmful without strict scrutiny. (could of course make the same argument for strict scrutiny in case of disparate impact).
- Different from other racial classifications in that you can foresee, predictably, that disadvantage goes to whites.
- Can't trust the legislature with respect to race issues, court must scrutinize these decisions, O'Connor seems to find basis in equal protection clause for judiciary's role.
- Marshall's dissent: reason to distrust legislature is when it acts in a certain way--when it follows historical patterns of discrimination.
- O'Connor: race is 'too hot to handle'. Will inevitably be stigmatizing, trigger animosity, in a way that other categorizations won't. Decontextualizing argument, doesn't try to bring into play historical circumstances of 14th amendment.
- Especially important to apply strict scrutiny when States taking racial action vs. congress--making this argument under 14th amendment since 14th amendment limits states, but mostly to distinguish Fullilove where nearly identical statute was upheld. Ironic in contrast to O'Connor in New York v. United States strongly advocating for states (saying federal government can't commandeer states).
- Kennedy's justification for strict scrutiny:
- Strict scrutiny will operate in a manner consistent with imperative of race neutrality
- Once strict scrutiny is applied, what follows?
- O'Connor allows for racial categorization when it 'remedies unconstitutional past discrimination by state actor'.
- Social discrimination is not violation of constitution, cannot be remedied by state.
- i.e., if court of law could have issued injunction with race-conscious remedy, then state can take that action without court order.
- Needs to be prima facie case of constitutional violation.
- Not enough evidence that Richmond itself committed discrimination in contracting.
- Possibility that blacks are not chosing to become subcontractors.
- Are there are any race-neutral alternatives?
- Need to tie remedy quite tightly with unconstitutional act in the past.
- Almost sense that individual victims need to be compensated.
Metro Broadcasting v. FCC
[497 U.S. 547] 1990 United States Supreme Court (cb951)
- Justice Brennan's opinion holds federal government racial categories to intermediate scrut. No one is actually advocating for rational basis test for racial categories.
- Compare Brennan's argument to his discussion in Katzenbach v. Morgan--congress has extraordinary remedial power--implicitly overruled in City of Boerne v. Flores.
Adarand Constructors v. Pena
[515 U.S. 200] 1995 United States Supreme Court (c953)
- Federal subcontracting provision gave additional payment to prime contractors who use minority business enterprises for subcontracts. Suit brought under 5th amendment, reverse incorporation of 14th amendment equal protection.
- O'Connor: 'jot-for-jot' incorporation. 14th amendment equal protection should be same as 5th amendment.
- Congruence -- same application of equal protection. (similar to congruence in City of Boerne where section 5 must be proportional to section 1 of 14th amendment--congress' power is limited to power 1).
- Skepticism -- strict scrutiny. Race is always suspect.
- Consistency -- races must be treated the same. Biracial conception.
- When race-based action is necessary to further compelling interest, can still be constitutional if it is narrowly tailored. Wants to challenge notion that strict scrutiny is fatal.
- Dissent is willing to admit that racial-based classifications can survive strict scrutiny, thus could find 'majority holding' that strict scrutiny is not fatal.
- Thomas' concurrence: all government classifications based on race are paternalistic. Inherently stigmatizing.
- Should judiciary be discussing whether affirmative action is stigmatizing or helpful?
On Monday, start with questions:
- Look at Boerne and Morrison, then look at Adarand, ask:
- Is there anything congress can do under section 5?
- What happens when congress tries to provide remedy for suspect vs. non-suspect class?
- Race neutral remedies and Washington v. Davis--can a State or Federal Government see a problem and intend to use a race-neutral remedy?
Monday, March 18, 2002 (Class 28) (Assignment 25)
- What can Congress do under Section 5 of 14th amendment?
- Adarand congruence rule: same restrictions apply to States and Federal government.
- But Section 5 gives congress the power to remedy violations of Section 1.
- If State passes 'doughnut-maker protection act', Court will apply Rational Basis test--Williamson v. Lee Optical, Carolene Products. Statute would probably pass constitutional muster in this case.
- Congress could not pass such a law under Section 5 of 14th amendment--Congress is limited to passing laws that remedy acts that would have been unconstitutional--City of Boerne and United States v. Morrison.
- If Congress acts to remedy non-suspect category, cannot show that it is remedying past violation of section 1, but if it acts on suspect category (i.e., race) will be subject strict scrutiny.
- Combination of Boerne and Adarand extremely limiting to Congress' power.
- Little attention to originalism in affirmative action decisions. Hard to argue that framers intended to ban racial categories in legislation.
- Separation of powers issue: seems like now Supreme Court finds discrimination and then Congress has to (or can) remedy it.
Hopwood v. State of Texas
[78 F.3d 932] 1996 5th Circuit Court of Appeals (cb973)
- Review of Texas Law School's affirmative action program that made it easier for African-Americans and Mexican-Americans to gain admission.
- By the time case gets to Court, school has changed system, although still applies ethnic/race-conscious system.
- School argues that Croson doesn't apply, because this is more about valuing diversity. Croson is only justified by remediation, not by the claim that the product will be different.
- Bakke suggests that diversity was a compelling interest. 5th Circuit found that diversity is not a compelling interest. Courts are split on the issue--11th circuit has agreed with 5th circuit. Eastern District of Michigan is split amongst itself.
- Courts still apply strict scrutiny to educational affirmative action programs, but may differ on whether measures pass scrutiny.
- Court's rationale for striking down rule: Texas Law School system doesn't actually help people who were discriminated against--they are all old now.
- Implication that non-racial rules with similar effects are still constitutional. I.e., Boston Latin limiting private school admissions.
- Race neutral remedies, however, seem to conflict with Washington v. Davis doctrine that invidious discrimination is still unconstitutional.
Review Problem III
- Majority population of kids in schools are minorites. Majority of faculty is white. Mayor proposes new ordination that 50% of new faculty hires will be reserved for graduates of schools with appropriate credentials, set to expire when 50% of faculty are graduates of school system.
- First question: is there State Action?
- Yes, assume there is because City is State Actor for 14th amendment.
- Is there a facial racial classification?
- No, appears to be facially neutral as to race.
- Is there a disparate impact?
- Is there a racial intent?
- If not, then subject rule to rational basis test.
- Who is actor? Whose intent do we look at?
- Chair of local branch of Rainbow Coalition may not be part of actor's intent, but who she influences might. What if politicians respond out of fear--is that impermissible?
- Is measure being taken because of or in spite of racial effect?
- What is racial intent? Is intent equivalent to intentionally harmful or also desire to help?
- Feeney seems to have concept of malevolence. Croson seems to say that race-neutral policies might be permissible even if it effects race-conscious ends. Adarand, however, suggests no racial intent is permissible.
- Plaintiff will have burden of showing racial intent, since result is disparate impact.
- Assuming racial intent is proved, then subject rule to strict scrutiny. What do you get under strict scrutiny and rational basis analysis?
First 15 minutes on Wednesday on Problem III, then will cover move to gender.
Preparation for Wednesday, March 19, 2002 Class (not in class notes)
Myra Bradwell Case
- Bradwell challenging Illinois law prohibiting women from practicing law.
- Bradwell argues right to labor fundamental to pursuit of happiness, analogized between race and gender.
- Court finds no link between citizenship and right to practice law, thus no privileges and immunities.
- Slaughterhouse Cases: license to practice law is State power, not transferred to federal government.
- Bradley/Swayne?/Field? concurrence: natural law-type explanation, women have duty to family, natural proclivity.
- 'Separate Spheres' ideology of late 19th century, obligations of each sex.
Frontiero v. Richardson
[441 U.S. 677] 1973 United States Supreme Court (cb988)
- 8-1 Decision:
- Majority opinion, drafted by Brennan, joined by Douglas, White, Marshall.
- Concurrence in judgment: Stewart.
- Concurrence: Powell, joined by Burger, Blackmun.
- Dissent: Rehnquist.
- Military benefits allow wife to be dependant regardless; husband is only dependent if it is proved.
- 5th amendment procedural due process claim: female is required to demonstrate dependency while male is not.
- Substantive claim: similarly situated female doesn't get same benefits.
- No legislative record. But District Court seems to apply rational basis test; since 99% of uniformed service is male and wives are usually dependent, maybe wanted to save administrative expense and manpower by only making females prove dependency.
- But why not look at possibility of removing requirement for women?
- Court agrees that sex classifications should be subject to 'close judicial scrutiny'.
- Cites Reed v. Reed for support of scrutiny: Idaho statute provided that males would get preference to be appointed estate administrator. Violated the Equal Protection Clause of 14th amendment.
- Rational basis argument: reasonable to reduce workload on courts. Men are more conversant with business. Idaho legislature might have reasonably concluded that men are better qualified.
- Court departed from 'traditional' rational-basis test, instead said that this sort of arbitrary legislative choice is forbidden by constitution.
- Historical sexism, similar limitations to slavery, current lack of female representation in government.
- Sex is immutable and also bears no relation to individual ability; treats people as group rather than individuals.
- Congressional intent to redress sexism--evidence of problem.
- Thus, apply stricter scrutiny. Then--scheme is invalid.
- Applies sex as sole criteria, serves purpose of administrative convenience.
- Administrative convenience does not outweigh due process.
- Government's evidence as to cost-savings is not even very convincing to court.
- Powell's concurrence: decide on basis of Reed v. Reed, don't use strict scrutiny, particularly since ERA is up for amendment, issue should be decided 'democratically'.
- Rehnquist's Dissent: agrees with district court, seems to want rational basis test.
- Standard fluctuated until Craig v. Boren [429 U.S. 190] in 1976 where court adopted intermediate scrutiny: 'must serve important governmental objectives and must be substantially related to achievement of those objectives.'
- cb998-999 Text and History: 14th amendment framers intent was not to change status of married women, although did seem to benefit single women.
- cb999-1001 Reasoning from Race: Differences between racial and gender discrimination. Gender--role differentiation. Paternalistic rather than disdainful.
- cb1001 Sylvia Law: Only categorical sex-based difference is capacity to reproduce.
- cb1002-1003 Richard Wasserstrom: Gender is more central than race to identity, more complex in social signification, more invidious. People are willing to admit to sexism but not racism.
- cb1003-1005 John Ely: Discriminatory process is passed; hard to argue for substantive discrimination that is entwined in society because gender stereotypes are widely attacked and publicized.
- cb1005 Reva Siegel: Women's progress is (falsely) perceived as customary/consensual, not legal struggles liek civil rights.
- cb1005-1007 Catharine MacKinnon?: contradiction between 'equality' and 'difference' of sexes. Treating like cases alike may contribute to subordination, since it ignores differences. Argues for 'domination' analysis.
United States v. Virginia
[518 U.S. 515] 1996 United States Supreme Court (cb1025)
- 7-1 decision.
- Majority Opinion, drafted by Ginsburg.
- Thomas absent.
- Concurrence in judgment: Rehnquist.
- Dissent: Scalia.
- United States suing Commonwealth of Virginia and VMI, alleging violation of equal protection of 14th amendment by only admitting men.
- Ginsburg: I. VMI produces leaders; nothing inherently unsuitable to women.
- A. 'Rat line' 'dyke system' 'adversative model' etc.. Women have no opportunity anywhere to gain benefits of system.
- B. District Court: Although VMI could have 10% women, which would benefit program some, it would also eliminate 'diversity' of having single-sex schol, and force modifications in program. Court of Appeals: diversity must not just favor one gender. Virginia can: admit women; establish a parallel institution; or abandon state support.
- C. VWIL at Mary Baldwin, different, task force found VMI model 'wholly inappropriate'
- D. District Court approved plan, different means to same end. Court of Appeals affirmed.
- Gender categories must demonstrate "exceedingly persuasive justification." Burden is on state. Must serve important governmental objectives and be substantially related to achievement of objectives.
- Since 1971 Reed v. Reed Court has recognized equal protection applies to gender.
- Inherent differences do exist, but cannot be used to create or perpetuate inferiority.
- Virginia has shown no exceedingly persuasive justification; remedy does not fix; therefore court reverses.
- A. 'Diversity' explanation is pretextual--look to history of single-sex schooling. Also, how can one institution that does not effect others give effect to state policy of diversity?
- B. Court does not belive Virginia's argument that drastic changes would be needed that would ruin VMI. Looks to history, again, to show skepticism. Also, education does not need to serve all women, just as it currently is not appropriate for all men. Must look at individuals, not broad generalizations of gender.
- A. VWIL response uses same stereotypes that Court complains of, thus is no remedy. Doesn't capture 'essential' elements of VMI.
- B. VWIL does not confer benefits of VMI--alumni, prestige, etc.. Recalls Univerity of Texas' attempt to set up segregated Law School in Sweatt v. Painter [339 U.S. 629] (1950).
- Decision fits in with history of constitution in extending rights/protections to people previously ignored.
- Rehnquist's Concurrence
- Doesn't like "exceedingly persuasive justification" -- was supposed to be description of test, not the test itself.
- Court should not look to history before 14th amendment and before Equal Protection was applied to women. State should have opportunity to reconsider and come up with new justifications then.
- Institution that received equal resources for women might be constitutional, even though it wouldn't have network of connections of VMI.
- Constitutional violation is not exclusion of women but failure to provide comparable (or any) institution for women.
- Scalia's Dissent
- Objects to court's subverting democracy, counter-majoritarian 'elitist' tendencies. First Amendment allows for speech to change these issues.
- Court has no basis for striking down time-honored practices; should not ratchet up equal rights values.
- Change in military academies occurred because 'the people' wanted it
- Accuses court of using strict scrutiny, says better test would be rational basis in keeping with Carolene Products, women are not "discrete and insular minority" nor is there problem with political process. Let voters change this if they want.
- A. Explains why single sex school is substantially related to State's important educational interests.
- Private institutions include four all-female and one all-male college, suggesting that private sector is helping for females. (??)
- B. Changes would be substantial (??), also absence of analogue is irrelevant under Hogan.
- A. Strict scrutiny is now indistiguishable from intermediate scrutiny, decision is very broad.
- B. Concern about private institutions losing charitable tax status.
- 'Code of gentleman', melodramatic finish.
Mississippi University for Women v. Hogan
[458 U.S. 718] 1982 United States Supreme Court (cb1044)
- MUW all women's school, Joe Hogan was registered nurse without bachelor's degree, was denied admission by gender.
- Majority Opinion, O'Connor:
- Exceedingly persuasive justification, important governmental objectives/substantially related, fixed notions are invalid. Must make sure statutory objective does not reflect archaic stereotypes.
- State argues school is educational affirmative action.
- No evidence of past discrimination in nursing, though.
- Fact that men can audit reveals that presence of men is not adverse.
- Dissent, Powell joined by Rehnquist:
- That male had to 'travel'--inconvenience--is not sufficient harm to justify overturning school.
- Diversity of options, choice of single-sex school are important.
- Not even this court wants strict scrutiny.
- Other dissents: Burger, Blackmun.
Vorcheimer v. School District of Philadelphia
[430 U.S. 703] 1977 United States Supreme Court (cb1048)
- Separate equal facilities did not violate constitution
- Dissent analogized to Plessy v. Ferguson.
Newberg v. Board of Public Education
[26 Pa. D. & C. 3rd 682] 1983 (cb1049)
- Second challenge to Philadelphia seperate sex schools--found policy to be unconstitutional because of unequal facilities.
Wednesday, March 20, 2002 (Class 29) (Assignments 25-26)
Review Problem #3 Continued
- Issue of whether or not you could establish the intent to discriminate on the basis of race sufficient to get to strict scrutiny.
- Statute is facially neutral on basis of race, potentially disparate impact.
- Some evidence that statute would be enacted with a race-conscious goal in mind.
- Once we figure out what intent means, still have to ask whose intent?
- If we determine there is sufficient racial intent to trigger strict scrutiny, how to analyze under strict scrutiny?
- What is compelling state purpose?
- Remediation--count dissenting votes as well as majority who agrees with remediation, this could be compelling state purpose (not joined by Scalia or Thomas).
- Diversity is generally not compelling state interest, unclear. Hopwood says no. Bakke said yes but Powell was only vote that believed that.
- Is education a compelling state interest?
- Could argue for remediation?
- Need to show that city discriminated against these particular victims.
- Remedy may not be good fit to problem because we are not now giving jobs to teachers to people who previously didn't get the jobs.
- Not strong enough evidence of discrimination by schools. No court ruling showing discrimination. No evidence that past state action was unconstitutional.
- Will be difficult to show past racial intent, might only be able to show disparate impact.
- May see current actor's intent in racial terms, while we don't see past disparate impact as motivated by racial intent.
- Other issue: problems under Commerce Clause and Privileges and Immunities Clause. Discriminates against residents of other states.
- Is this fundamental to interstate harmony? Look to Piper for horizontal federalism issued.
- Focus will now shift to gender. Analagous questions: What is discrimination? What is equal protection? What does constitution do about it?
Frontiero v. Richardson
[411 U.S. 677] 1973 United States Supreme Court (cb988)
- Federal Statute that gives automatic benefits to female partners of male soldiers but not vice-versa.
- What if court applies rational basis test?
- District Court found rational basis for policy. Reasonable argument can be made that policy passes test since most soldiers are men, most of their partners are dependent, etc..
- Should we use heightened scrutiny test?
- Reed struck down gender-discriminatory law, claiming it was applying a rational basis test but seeming to apply a higher standard.
- Gender may be overbroad classification. But all classifications are overbroad.
- Could argue that women are political minorities even if they aren't 'actual' minorities, thus are not sufficiently represented in political process.
- John Ely argues that women have equal vote, they can change the situation if they want.
- Social inequality, however, could obstruct achievement of political equality.
- Maybe reason women haven't changed situation is they don't all want situation to change.
Will do VMI case on Friday.
- Next Week's Schedule
- Monday, March 25, 2002: Review Problem 1, 9:30am Room 10
- Monday, March 25, 2002: Assignment 28, Group 6
- Wednesday, March 27, 2002: Assignment 29, Group 10
- Friday, March 29, 2002: Assigmnet 30, Group 15
- Con Law Review: Wednesday, March 27, 1-2pm in Moot Courtroom (Room 10). Review problem available today.
Frontiero v. Richardson
[441 U.S. 677] 1973 United States Supreme Court (cb988)
- Why protect gender if it is immutable?
- Many other characteristics are also immutable, but not protected.
- Should people experience discrimination over something they have no control over?
- On the other hand, because differences are immutable, differences are 'real', 'essential', and thus it is no irrational to treat different people differently.
- 14th amendment was clearly not written with gender discrimination in mind.
- Gender, like race, keeps appearing as categorization--this is what 14th amendment is about.
- Text of 14th amendment section 1 is gender neutral--section 2, on the other hand, explicitly mentions male citizens. Thus could conclude that section 1 was meant to apply to gender or at least to keep that possibility open.
- Powell's Concurrence: ERA is being considered by legislature. This could be considered politically more legitimate basis; could be less effective for gender rights in the long run for court to decide rather than democratic process.
- Ultimately, majority decides on standard in Craig v. Boren [429 U.S. 190] 1976 United States Supreme Court: intermediate scrutiny. Standard is 'important' rather than 'compelling'; and 'substantially related' rather than 'necessary' (or 'rationally' in rational basis test).
United States v. Virginia (the VMI Case)
[518 U.S. 515] 1996 United States Supreme Court (cb1025)
- Woman wants to enroll in VMI, which has been all male since 1830's. Denied along with 347 other inquiries from women seeking admission.
- Ginsburg's opinion: defendants need to show exceedingly persuasive justification. Puts burden on the state. Interesting since intermediate scrutiny could come down either way.
- Seems closer to strict scrutiny because of burden--burden is often outcome-determinative.
- Can't argue about 'diversity' of educational options: VMI was not set up to be diverse. This battle has already been lost with respect to University of Virginia which was all male.
- Rehnquist's Concurrence: wouldn't look back to original history of VMI; it's okay to come up with diversity reason after single-sex education becomes unconstitutional.
- Would allow separate facilities if they are more 'equal'--resources are too inequitable.
- Would it be okay if Virginia set up two entirely 'equal' but separate law schools for men and women?
- (see other notes above)
Personnel Administrator of Massachusetts v. Feeney
[442 U.S. 256] 1979 United States Supreme Court (cb1053)
- Why is Feeney disparate impact? Why isn't it an explicit gender classification?
- If classification were 'people who liked to play with trucks as children', there might be some disparate impact but due to social discrimination rather than being due to legal discrimination, since membership in the male was restricted to males by law.
Geduldig v. Aiello
[417 U.S. 484] 1974 United States Supreme Court (cb1065)
- California excluded disabilities incident to normal pregnancies from insurance scheme.
- Court upheld scheme on 'rational basis' test, holding that this was just a disparate impact case, not a gender-based classification.
- Not all women are pregnant, not all women can be pregnant, thus this is not a gender-based classification.
Think about birth control v. Viagra insurance coverage for monday.
Monday, March 25, 2002 (Class 31) (Assignments 27-28)
- Geduldig held that pregnancy discrimination is not gender discrimination. Feeney: preference for veterans is not gender discrimination.
- Most gender discrimination cases are not decided by United States Supreme Court, most are lower court decisions, such as Hynson:
Hynson v. City of Chester Legal Department
[864 F.2d 1026] 1988 3rd Circuit Court of Appeals (cb1060)
- Decedent of victim of domestic violence claiming unconstitutional gender discrimination because police give less serious attention to domestic disputes as other sorts of crime.
- Court finds this is just 'disparate impact', thus not gender-based discrimination.
- No policy that uses gender-explicit term.
Michael M. v. Superior Court of Sonoma County
[450 U.S. 464] 1981 United States Supreme Court (cb1089)
- Challenge of California's statutory rape act, which only applies to males who have intercourse with underage females.
- Supreme Court of California found statute was discriminatory on the basis of gender, applied strict scrutiny, upheld conviction and statute.
- Supreme Court affirms California Supreme Court's judgment, but does not apply strict scrutiny standard.
- Rehnquist says 'apply rational basis with a sharper focus' not strict scrutiny, does not use 'exceedingy persuasive' language that majority used in VMI case.
- Discussion of intent comes very close to rational basis test. Not really concerned with whether a particular justification was the actual reason a legislature made a decision.
- In Geduldig, court found pregnancy wasn't equivalent with gender, thus statute was constitutional. In Michael M., statute referred explicitly to gender, but because gender is linked to capacity to become pregnant, it is thus legitimate for state to differentiate between men and women on this basis.
- Michael M. seems to be the opposite of Hynson: Hynson gender-neutral statute was not found unconstitutional even though victims were women; in Michael M. gender-explicit statute is supposed to protect women adn is found also constitutional.
Tuan Anh Nguyen v. INS
[121 S.Ct. 2053] 2001 United States Supreme Court (sp103)
- Nguyen's mother is Vietnamese, father is American. Arrested for sexual assault on minor, INS began deportation proceedings, claiming that Nguyen was not a citizen since statutory provision requires mother to be citizen if you are born outside of country. More requirements if father is US citizen but not mother, including establishing paternity before child turns 18.
- Statue includes explicit gender classification, court uses 'intermediate scrutiny' standard.
- Kennedy finds governmental interests are important and the means are substantially related to the achievement of those objectives.
- Scrutiny is weaker than VMI case; because women and men different with respect to childbirth, they can be treated differently.
- In VMI none of State of Virginia's arguments have to do with pregnancy, instead have to do with physiological gender differences.
- Gender neutral terms would be 'hollow' neutrality, would have same disparate impact. Neutral language can also mask discrimination. Somewhat at odds with Geduldig where language was not gender-specific but had gender disparate effect.
- Explicit gender classifications and disparate impact policies seem to be upheld when based on differences relating to ability to give birth; unlike race discrimination which would not be upheld even if based on 'physiological' differences.
- Birth Control vs. Viagra coverage issue
- 'Hollow neutrality' argument from Kennedy's opinion in Nguyen.
- Equal protection law seems to get really caught up and has a lot of problems with gender issues--hard to find a 'baseline'
- 'Consistency' has almost always been applied with respect to gender; even Justices who routinely reject 'consistency' doctrine with respect to race still apply it to gender.
- Difficulty with 'reverse discrimination': sometimes hard to determine who is being hurt (e.g., Frontiero.)
Kahn v. Shevin
[416 U.S. 351] 1974 United States Supreme Court (cb1114)
- Challenging tax exemption for widows but not widowers.
- Court upheld statute because of women's traditional economic dependency on men.
Schlesinger v. Ballard
[416 U.S. 496] 1975 United States Supreme Court (cb1114)
- Challege of Navy practice which made it easier for women to stay in service without promotion than men.
- Court upheld classification against challenge saying it was directly related to outweighing disadvantages women have in Navy (can't participate in battle).
- Decided after Frontiero, where plurality endorsed heightened scrutiny.
Wednesday, March 27, 2002 (Class 32) (Assignments 28-29)
- Arguments for applying heightened scrutiny to cases where men are discriminated against
- Same stereotypes may underly these cases, could continue to perpetuate these stereotypes and possibly stigmatize women.
- Hypothetical: fire department is overwhelming white men. Has two tests: written test which disproportionately disqualifies people of color, and physical strength test which disproportionately disqualifies women. Department decides to lower standars for people of color and women on respective tests, in order to diversify firefighting force.
- For racial classification, court would apply strict scrutiny.
- For gender classification, intermediate scrutiny. (same standard of review applied in Hogan as in VMI, even though gender being discriminated against is different in each).
- Strict scrutiny: would have to be compelling state interest to remedy past racial injustice committed by fire department (i.e., under Croson would have to be past constitutional violation). If there is no evidence of prior discrimination, hard to establish. Disparate impact will not be sufficient to justify race explicit remedy. Even if past discrimination is discovered, must be a 'tight fit' between remedy and violation.
- Intermediate scrutiny: must be important state interest. O'Connor in Hogan: in limited circumstances, a gender-based classification favoring one sex can be justified if it intentionally and directly assists members of the sex that is disproportionately burdened. Does not actually have to be people who were disproportionately burdened--could be 'members of sex'. Suggests that past discrimination does not necessarily in and of itself have to be unconstitutional.
- Under intermediate scrutiny, could argue that past strength test discriminated against women.
- Thus, easier to justify affirmative action on gender than on race, emerging from consistency. Since racial minorities have been the most clearly disadvantaged historically, strict scrutiny applies, thus affirmative action is usually impermissible. Women, who have perhaps been less disadvantaged, are easier to benefit.
- Unclear whether diversity would ever consistute a compelling state interest for race.
- Advantages to consistency doctrine: more predictable, gives clear norms, appears to be less political.
- Both race and gender doctrines are problematic on issues of multi-racial and non-binary gender statuses.
- Other classifications that are included in heightened scrutiny: national origin, religion. Possible illegitimacy and alienage (for intermediate scrutiny). Note that alienage is very different from immigration issues.
- What about other classifications?
City of Cleburne, Texas v. Cleburne Living Center
[473 U.S. 432] 1985 United States Supreme Court (cb1119)
- CLC purchased group home for mentally retarded, City decides to require special use permit and then denies permit to CLC.
- 5th Circuit Circuit Court of Appeals reversed District Court, holding that mental retardation is a quasi-suspect classification, triggering intermediate scrutiny, which city could not pass.
- Justice White's opinion: mental retardation does not trigger heightened scrutiny. Says people who are mentally retarded 'really are different'. But--mentally retarded people's differences are immutable. In other cases, we have said that differential treatment should not be justified by differences people can't do anything about and which are not just social constructs. Flip side of immutability argument being used in this case.
- Legislature is addressing issues of mentally retarded, hence they are not 'discrete and insular minorities'--i.e., they're not politically powerless anymore, thus court doesn't need to protect them. But, again, this wouldn't be valid with other forms of discrimination: simply because Civil Rights Act was passed does not mean court no longer needs to apply strict scrutiny to racial discrimination.
- Marshall's dissent points out that in this case classification is actually disenfranchised--mentally retarded can't vote.
- Consistency -- if strict scrutiny were applied, then legislature would not have flexibility to pass legislation beneficial to mentally retarded people.
- White also argues that it is hard to figure out who is in the class and where to draw the lines, there is spectrum of disabilities. This doesn't seem to be a problem for race/gender issues, however.
Start on Friday with next question: if there is no heightened scrutiny, what does White do with case? Then move on to Garrett. Compare with Adarand.
Friday, March 29, 2002 (Class 33) (Assignments 29-30)
- Next week's schedule:
- Monday, April 1, 2002: Assignment #31 Group #19
- Wednesday, April 3, 2002: Assignment #32 Group #20
- Friday, April 5, 2002: Assignment #33 (Casebook Only) Group #23
City of Cleburne, Texas v. Cleburne Living Center
[473 U.S. 432] 1985 United States Supreme Court (cb1119)
- Group home for mentally disabled people, denied zoning permit by city, although apparently any other similar use would have gotten permit.
- Court does not hold that mentally disabled people are suspect class, but says that zoning ordinance can be struck down on rational basis test.
- Two possible readings:
- Court is taking first step towards 'semi-suspect' classification for mentally disabled people.
- Rational basis test will act as 'rubber stamp' except where there might be animus--then rational basis test will be a little harder.
- Sense that legislature might be in better place to decide about these sorts of issues.
Board of Trustees of the University of Alabama v. Garrett
[531 U.S. 356] 2000 United States Supreme Court (sp45)
- Issue: can congress abrogate the 11th amendment with respect to Title I of the American with Disabilities Act?
- Congress cannot abrogate State's immunity under Commerce Clause; must be done under Section 5 of the 14th amendment.
- Plaintiffs have been discharged ostensibly because of their disabilites.
- Under Section 5: is legislation congruent and proportional to section 1? And does discrimination in question fall into section 1?
- Rehnquist holds that disabled people are not suspect class, only subject to rational basis review.
- ADA Title I: employers need to make reasonable accommodations to known disabilities.
- Really disparate impact case: if employer has several steps to entrance and no ramp. No discriminatory intent, just impact. Reasonable accommodations are thus remedying something which is not a constitutional violation.
- Under this interpretation, it may not make much of a difference if someone is in suspect classification status.
- Under Cleburne, argument for rational basis test is that sometimes legislature needs to have the leeway to make special provisions for disabled people, since they 'really' are different. In Garrett, doctrine is turned upside down to limit legislature from remedying the problem in the first place. I.e.: disabled people can't be suspect class, because then they would be subject to strict scrutiny, and legislature couldn't act to benefit them; however, since Congress is not acting under 14th amendment section 5, then they can't abrogate sovereign immunity of 11th amendment.
- How are reasonable accommodations similar to and different from affirmative action?
- Reasonable accommodations generally act on individual-by-individual basis, whereas affirmative action is entire program. On the other hand, reasonable accommodations can be system-wide, i.e., MBTA accessibility.
- Reasonable accommodations generally not perceived as 'zero sum game' the ay affirmative action is--i.e., doesn't always seem to 'hurt' the majority as much.
- On the other hand, hard to bring reverse discrimination cases under ADA, since only rational basis test will be applied.
- Thus: group that 14th amendment was most designed to protect (racial minorities) is the hardest to legislate remedies for.
Equal Protection for Other Classifications: Sexual Orientation
- Arguments for and against sexual orientation as suspect classification:
- History of discrimination
- May be immutable--but not as obvious as gender or race. But immutability can work both ways--could mean people really are different.
- Sexual orientation, like gender, may not be useful proxy for anything, thus never rational to discriminate.
- Could be rational to distinguish between homosexuals and heterosexual, since they choose to act differently.
- Issue of status vs. conduct.
- Court likes to elevate classifications that it believes are dichotomous: to the extent that we believe there is a spectrum of sexual orientation, may not fit into suspect classifications.
- Are gays and lesbians discrete and insular minorities?
- Argument for sexual orientation being classified with gender. See Baehr v. Lewin [852 P.2d 44] 1993 Hawaii Supreme Court (cb1313), interpreting Hawaii's constitution, which treats gender as suspect class, finding prohibition on gay marriage to be unconstitutional (later overturned by referendum).
- If we let too many groups being suspect classification status, are we diminishing power of status?
- Once a group becomes suspect classification, can no longer use affirmative action as well--consistency issue.
- In Romer, Court did not address this question as to whether sexual orientation should be suspect classification, instead uses rational basis. For Monday: since rational basis test was applied, why was amendment 2 found to be unconstitutional?
Monday, April 1, 2002 (Class 34) (Assignments 30-31)
Romer v. Evans
[116 S. Ct. 1620] 1996 United States Supreme Court (cb1259)
- Sexual orientation is not a suspect classification for the purposes of this case.
- Challenge to amendment to Colorado constitution which prohibited the state or local government from providing anti-discrimination protection to gays and lesbians. Cannot be challenged in Colorado, but supremacy clause allows challenging state constitution under federal constitution.
- Since sexual orientation is not suspect classification, Court would apply rational basis test to an equal protection claim on discrimination on basis of sexual orientation, thus giving great deference to legislature.
- If school denies hiring on basis of homosexuality, no equal protection claim under rational basis test.
- If people lobby for law prohibiting discrimination against gays, law ends up losing by one vote. No equal protection claim, though: hard to prove state action; still not suspect classification; can't show discriminatory intent on part of legislature.
- So what's different when State passes law preventing legislature from passing antidiscrimination law? Isn't this the same effect as the two hypotheticals above?
- Much harder to make change when you need to change constitution. Hint of Carolene Products footnote 4--discreet and insular minority (although not suspect classification) is disadvantaged in political process.
- Is Romer inching us towards a higher level of scrutiny for sexual orientation discrimination?
- If there is a higher standard, when and why does it apply?
- Because it deals with sexual orientation?
- Because it deals with state constitution?
- Perhaps linked to effect on democratic process--stops one group, as a group, from going to state house to lobby for legislation.
- Animus issue--Kennedy can't see that there is not malicious intent, because it is so broad and such a high level of generality. Maybe if you pass laws whose only basis is animus, then that is irrational.
- Are we redefining rational to mean any reason except hatred? Without respect to class?
- On the other hand, if a state fails to pass legislation or fails to act, hard to believe that Court would invalidate result, even though it might still be motivated by animus.
- Constitutional amendment in question suggests that there is a 'sticky' classification--i.e., that it may be creating caste, and thus troubling.
- Unclear exactly what Romer means, under majority opinion.
- Scalia's dissent: Amendment is not discrimination, just puts groups on equal footing.
- Operates with baseline assumption of rational basis.
- Ten years earlier, Supreme Court upheld statute making homosexuality a crime in Bowers v. Hardwick, why can't amendment do less than criminalizing by removing barriers to discrimination?
- State could prohibit anti-discrimination measures being taken to protect illegal drug users, for example, why is that different?
- Perhaps court's opinion actually undermines Bowers--particularly if Scalia's dissent relies heavily on Bowers.
- Kulturkampf argument: there is a big social argument/debate going on, the court should not impose its values on popular will. Very similar to argument in VMI case. Profoundly anti-democratic.
- What values need to be uniform across all states, and what can states decide by themselves?
- Issue of discrimination claims being 'diluted' by too many protected classifications. Would it be unconstitutional to add all sorts of protections, thereby diluting the suspect classifications?
- Under Carolene Products and Lee Optical, Court read equal protection against protecting against classification rather than protecting certain activities. When Bill of Rights was incorporated into 14th amendment, activities began to be protected. Illustrates how incorporation is form of substantive due process.
Skinner v. Oklahoma
[316 U.S. 535] 1942 United States Supreme Court (cb1133)
- State law mandating sterilizing for certain types of felons but not others, roughly along 'class' lines.
- Classification itself (white collar vs. other crimes) is not objectionable, but using this distinction for sterilization is irrational. Similar to Romer: not that you can never use classification, nor that the classification will usually be subject to scrutiny (like gender), but something about the activity (sterilization) which is unconstitutional.
Griswold v. Connecticut
[381 U.S. 479] 1965 United States Supreme Court (cb1134)
- Planned parenthood clinic in Connecticut, in violation of criminal statute that fined people for aiding in distributing birth control.
- Statute facially doesn't have any classification, only regulates conduct.
- Could argue that women will be most effected by statute, since they are the ones who will get pregnant. Thus there is a disparate impact.
- Also disparate impact on the poor. Upper and middle class people would drive to New York to get contraception.
- Also discriminates against teenagers, who can't leave the state as easily.
- Douglas' (Majority) Opinion: Constitution does not need to spell out every protection people have. Reading the Constitution and especially the Bill of Rights, there is a general sense that Constitution protects privacy.
- Similar to Marbury v. Madison: altogether you get a 'picture' that judicial review makes sense. Federalism cases similar rely on 'flavor' of constitution--not actually in 10th amendment, but rather overall sense of constitution.
- For Wednesday, what other approaches could be used? How do you actually determine content in these approaches?
Wednesday, April 3, 2002 (Class 35) (Assignment 32)
Griswold v. Connecticut
[381 U.S. 479] 1965 United States Supreme Court (cb1134)
- Should there be any unenumerated rights? Should the Constitution be read as protecting the right of an individual to engage in activity that is not explicitly sanctioned in the Constitution?
- How do we interpret the constitution to determine the content of unenumerated rights?
- What are they unenumerated rights?
- In Griswold v. Connecticut, Justice Douglas reads the Constitution similarly to Justice Marshall in Marbury v. Madison--no explicit mention anywhere in the text, but some sort of overall sense from the way the document fits together in context, that suggests protection of privacy rights. Penumbral approach.
- Allows for living or evolving Constitution.
- Problems: engages in 'picking and choosing' from portions of text. Major federalism problems. Lots of leaps from 'quartering of soldiers' to 'use of contraceptives'.
- Goldberg's Concurrence: Relies on 9th amendment as a canon of interpretation. Often criticized for misinterpretting 9th amendment.
- 9th amendment suggests that there are other rights not mentioned in he Constitution. Used as canon of interpretation--reminds us not to read the bill of rights to imply exclusion of other rights.
- Federalism problem here, too, because 9th amendment was not intended to be used against the States. Acts as a 'contra-Carolene Products footnote 4' argument.
- Unenumerated rights that are fundamental to our traditional/collective conscience should be protected.
- Harlan's Concurrence (relying on dissent in earlier review of this statue): 14th amendment substantive due process. Let's not pretend this has anything to do with 'quartering of soldiers', instead this is a case of applying 14th amendment against the states.
- No 'magic formula' for determining due process, court has to struggle it out to figure out substantive due process.
- Black, Stewar Dissent: Claims court is Lochnerizing. Doesn't matter which approach you use, what you're really doing is substituting judiciary's judgment for that of the people.
- Where Constitution is not clear, decision should be left to politics.
- Penumbral approach seems best suited for capturing idea of individual autonomy--recall Brandeis' opinion in Whitney: free speech is not just political right, but also part of individual right to self-expression.
- Cultural norms were changing--why not just let norms work themselves out in politics? 48 states allowed birth control, other two would probably follow. Connecticut wasn't enforcing this law, except against Planned Parenthood.
- Underlying church and state issue, but no one made establishment clause argument. Is political acceptance of moral teaching by the church impermissible because of church and state separation?
- Catholic Church's strength in Massachusetts, for example, might be reason we don't have capital punishment--so is this violation of establishment clause?
- When asking, why is it fundamental, we may need to ask, what is it?
- Decision to procreate
- Right to be left alone in the bedroom
- Doctor/Patient? Relationship
- Marriage Relationship
Eisenstadt v. Baird
[405 U.S. 438] 1972 United States Supreme Court (cb1145)
- In case you thought Griswold was about marriage (as suggested by the text of the opinion), in this case Boston University was distributing contraception but not only to married couples.
- Planned Parenthood won--Griswold is now applied to unmarried people as well.
- Griswold wasn't about marriages, it was about individuals. Can't treat married people differently from unmarried people.
- Unmarried people, however, are not suspect classification.
- Similar to Romer in that Court is using Equal Protection, without finding suspect classification. Denying access to fundamental right to one group and giving it to another group. Of course, court imposed the access to the fundamental right to begin with.
- Similar to post-Brown cases, too, in that subsequent cases just applied precedent in Brown without having to re-explain it.
Village of Belle Terre v. Boraas
[416 U.S. 1] 1974 United States Supreme Court (cb1155)
- Six unrelated college students wanted to live in one-family dwelling, prohibited by local ordinance.
- Justice Douglas found there was no fundamental right to live in group dwelling arrangement, upheld ordinance.
Moore v. City of East Cleveland
[431 U.S. 494] 1977 United States Supreme Court (cb1156)
- In this case, grandmother was living with her grandson and nephew, but prohibited under local ordinance's definition of single family.
- Court struck down this ordinance. Preserving 'sancitity of family', even if it is broadening definition of family somewhat.
- Some discriminatory impact (although not mentioned in opinion): along wealth lines, race lines, and divorce status.
- Is the distinction between Moore and Belle Terre case of court itself defining family, part of what it is saying the state cannot do?
- Are fundamental rights 'fundamental' or are they really 'majoritarian'? Is the court only upholding the rights when only a few towns don't allow them?
- Should the court weigh the rationality of the ordinance against other interests? This certainly moves away from rational basis test. Looks more like Cleburne Living Center case--already heightened standard of review.
- Possible natural law explanation--is natural law part of tradition? Is it appropriate to use natural law? (see Dred Scott and Lochner.)
Friday, April 5, 2002 (Class 36) (Assignment 32)
- Next Week's Schedule
- Monday, April 8, 2002: Research Problem #2 9:30am Room 10
- Monday, April 8, 2002: Supplement for Assignment #33, Assignment for #34, Group #5
- Wednesday, April 10, 2002: Supplement 139-150, Group #6
- Thursday, April 11, 2002: Con. Law Review Session, 4:15-5:15pm Room 94
- Friday, April 12, 2002: Assignment #35, Group #7
- Although Loving v. Virginia seemed to be about equal protection, Warren's opinion mentions marriage as fundamental right.
- How do we determined fundamental rights? Is the zoning ordinance in East Cleveland unconstitutional because it's out of line with other jurisdictions?
- Why shouldn't Virginia and East Cleveland be able to decide for themselves what is family?
Michael H. v. Gerald D.
[491 U.S. 110] 1989 United States Supreme Court (cb1157)
- Biological father suing for visitation rights with daughter who was result of extra-marital affair, which were denied by California Statute.
- Michael claims procedural due process, since he wasn't able to present evidence as to his paternity, and is being treated as if he is not the father.
- Scalia's response: California defines father differently--biological fathers are not fathers if child was born while woman is in marriage to someone else. Doesn't matter what evidence Michael presents.
- Second claim: deprivation of liberty without substantive due process under 5th amendment.
- Scalia allows for liberty to be defined beyond physical confinement, but Court must be very careful in extending definition.
- Looks to historical tradition to determine what things really constitute liberty.
- Harlan: tradition is something that 'move with the times' ws. Scalia's characterization which is more static.
- Scalia: resolution of different traditions should not be played out in court.
- Footnote f (joined only by Rehnquist): use narrowest possible interpretation of tradition--this is about rights of adulterous fathers, not about parental rights in general.
- Narrow interpretation, however, prevents juidiciary from addressing unjust exceptions to generally held traditional values.
- If we don't use the narrowest possible interpretation, then what do we use?
- Assumes one tradition, however. In multicultural society, however, whose tradition do we use?
- Brennan's Dissent, on the other hand, relies on case law. Seems to assume, almost implicitly, that Michael H. is in some sense a real father. Assumes that biology is incredibly important to analysis, not just legal definition.
- Why should court and not states decide these questions?
Roe v. Wade
[410 U.S. 113] 1973 United States Supreme Court (cb1172)
- Is there anything distinct about abortion?
- Once Griswold and Eisenstadt were decided, it was clear that abortion was going to come up in Court soon.
- Blackmun's opinion: Starts with very long history of abortion.
- Can't find tradition of right to abortion--under Scalia's conception, this would mean it is not a protected right. Blackmun uses it in the opposite way, however, to find that there is no tradition of prohibition on abortion.
- Looks at State's Rationale: State did not make moral argument. Argues that law was to protect fetuses, and protect the health of women.
- Question, then, is what is the standard we are going to apply?
- Relies on 14th amendment--goes with Harlan, not Douglas. Griswold talked about marriage and tradition, but what is basis in this decision?
- Looks at Doctor-Patient relationship. But why does health have to be essentialized?
- Problem in Roe that was not present in Griswold: here you have an already existing fetus; there is obviously biological difference between preventing conception and ending pregnancy, because now there is an 'interest' on 'the other side'.
- Fetuses have never been people in the history of the United States under 14th amendment--they were never counted in census, etc..
- But why is preventing abortion not compelling state interest just because fetuses have never been protected under 14th amendment?
Focus on Casey for Monday.
Monday, April 8, 2002 (Class 37) (Assignment 33)
- Research Paper 2 has been returned, available with Jan McNew?.
- Research Paper 3 due next Tuesday.
Roe v. Wade
[410 U.S. 113] 1973 United States Supreme Court (cb1172)
- Is the right to have an abortion/decision to terminate protection a liberty protected by the due process clause?
- Even if it is, does the state have a compelling state interest to prohibit exercise of that right?
- Blackmun finds the right to have an abortion is a part of due process, relies on Griswold line of cases. Does not draw from history or tradition, but does show that history is not necessarily opposed to it.
- No detailed discussion of compelling state interest in abortion cases (unlike privacy, birth control cases).
- Maybe it doesn't matter what compelling state interest is, if strict scrutiny is fatal in fact. But jumps from finding protecting fetus is not compelling state interest in second trimester, but becomes compelling state interest in third trimester.
- Protecting woman's health is always compelling state interest, however, which allows state to regulate process in first two trimesters.
- Court may have seen trimester framework as a compromise that would settle the issue, but decision hardly had that effect.
- Like Brown v. Board of Education, was met by significant resistance from the States.
- Court responded to resistance by articulating right in broader, more emphatic terms, between 1973-1980.
- Decisions post-Roe continued to broaden abortion rights, perhaps started to turn around at Webster.
- One exception was that court always allowed minors to be treated differently.
Planned Parenthood of Southeastern Pennsylvania v. Casey
[505 U.S. 833] 1992 United States Supreme Court (cb1202)
- Provisions of Pennsylvania challenged:
- Consent requirement for minors
- Consent requirement for wife
- Reporting requirements
- 24 hour waiting period
- Requirement to read materials, be informed of 'gestational age', etc..
- Focus on spousal consent and 24 hour waiting period, since they most significantly limit actual ability to get abortion.
- Stevens and Blackmun find 24 hour waiting period unconstitutional.
- O'Connor, Kennedy, Souter, Stevens and Blackmun find spousal consent unconstitutional.
- Rehnquist, Scalia, White, and Thomas find entire statute constitutional, essentially want to overrule Roe in toto. (Rehnquist and White were in dissent in Roe.)
- Only three justices write for modified Roe; four want to overrule Roe, yet joint opinion becomes doctrinal framework.
- Since Casey, Blackmun and White have retired; replaced by Ginsburg and Breyer, generally believed to be in support of upholding Roe.
- Joint Opinion
- Abortion right arises out of due process clause of 14th amendment.
- Job of the courts to exercise reasoned judgment. No formula to get answer.
- Doesn't focus on doctor-patient relationship as in Roe, more concerned with 'woman's ability to choose her destiny'.
- Can't separate Roe from other privacy cases such as Griswold, Eisenstadt, Carey.
- Even if justices might not have voted in the same way as Roe court, stare decisis weighs heavily here.
- Reliance on Roe is substantial.
- Need to not change back and forth, would undermine court's legitimacy.
- Nation needs to see court's consistency--odd to admit this, because it may in and of itself undermine court's legitimacy.
- But, there are politics on both sides of issue--either way they may be seen as 'caving in' to political forces.
- In the past, when the court overruled major doctrines, 'giving in' to political pressure, it was the right decision: West Coast Hotel (overruling Lochner), Brown v. Board (overruling Plessy).
- Court reasons that in West Coast Hotel, Brown v. Board, situation was different--facts changed.
- But, Lochner and Plessy are also famous for their dissents--these ideas were not unknown at the time they were decided. Also, did facts really change that much?
- Despite stare decisis concerns, court does overrule part of Roe, and wholly overrules case like Akron. Why are some cases so big they can't be overruled, but others aren't? (they don't even really discuss Akron).
- Court believes there is a core of Roe, which they will keep, even though they overrule the 'periphery'.
- Core seems to be that woman has the right to have an abortion prior to viability.
- State can regulate abortion, but cannot place an undue burden on woman's ability to decide to have an abortion. Throws out trimester framework.
- Court proceeds to apply undue burden analysis to 24 hour waiting period:
- Waiting period does not present undue burden.
- Not so concerned with 'in the world' sociological burdens, rather is the state imposing legalistic undue burdens.
- Analysis of spousal consent provision
- Look at burden this places on battered women.
- Even though most women inform their husbands, for those that don't the provision may present substantial obstacle.
- Contrast between spousal consent and waiting period analysis: court has long history of examining gender discrimination but not class discrimination--which is where respective burdens are felt.
- Blackmun's Concurrence/Dissent?
- Seeing issue in much more of a gender focus than in Roe
- Equal protection focus
- Criticized for being too 'personal', too 'emotional'
- Scalia's Dissent
- Claims his is more about personal predilection than constitutional issues.
- Not judiciary's role--should be decided by legislature.
- By trying to make abortion less political, has in fact made it more political, has become 'litmus test' for Supreme Court justices.
- Analogizes to Dred Scott: when Court steps in to constitutionalize controversial issues, actually makes it much worse.
- Criticizes stare decisis component of joint opinion, seems to be 'new' version of stare decisis. Would go back to constitution rather than precedent in deciding this case.
- Much more critical of joint opinion than of Stevens and Blackmun concurrence: at least Roe framework was not incoherent.
- In Brown, local governments eventually stopped trying to overtly undermine decision (about 15 years), but in Roe thirty years has not brought any reduction in resistance to ruling.
- Would politics of Roe be different if it had been decided under equal protection rather than substantive due process?
Stenberg v. Carhart
[530 U.S. 914] 2000 United States Supreme Court (cb132)
- Regulation prohibiting certain abortion procedure
For Wednesday: five minutes on Carhart:
- What insight does it give us on undue burden standard?
- Can state legislate for no other reason that it detests something?
Then move on to Bowers and Baker v. State.
Wednesday, April 10, 2002 (Class 38) (Assignment 34)
Stenberg v. Carhart
[530 U.S. 914] 2000 United States Supreme Court (sp132)
- Statute prohibiting 'partial birth abortion', contained no 'health exception'. Found unconstitutional, in part, because the woman's health may be harmed by having the choice of procedures limited. State had 'life' exception but no 'health' exception.
- Discussion as to whether deference should be given to legislative finding as to health and safety dimensions of procedure; if legislature finds procedure is not more safe, should doctors be able to contradict the legislature?
- Other problem: vagueness--difficult to determine permitted from prohibited procedure.
- What if state corrected vagueness problem and provided health exception for D & X procedure?
- Does the 'intent' of the legislature to limit abortion rights effect result?
- Is fundamental right to have abortion by method of one's own choice, or right to terminate the pregnancy?
- Three Different Rationales for Legislation
- Paternalism (government acting in 'interest' of individuals it is regulating)
- Good for Others (John Stuart Mills would say this is where the state can justify action) -- frequently paternalistic arguments are restated under this category
- Morals (can also be converted into good for others).
Bowers v. Hardwick
[478 U.S. 186] 1986 United States Supreme Court (cb1243)
- Plaintiff and male companion violated Georgia sodomy statute.
- Question: is sodomy prohibition unconstitutional under due process clause of 14th amendment?
- Statute is facially neutral with respect to sexual orientation.
- Justice White narrows issue before the court, however, only to homosexual sodomy (defines issue by status).
- Justice White then shows the history of disapproval of homosexual conduct to suggest that it is not a fundamental right.
- Since this is not a fundamental right, in Justice White's view, he then subjects legislation only to a rational basis test.
- Finds that basis for law is that state finds activity to be immoral; if courts had to strike down all moral legislation, they would be very busy.
Friday, talk about Baker and Dale. Think about Dale not only as a 1st amendment case, but also as public accommodation/anti-discrimination laws as morals laws, and as fundamental rights as expressive rights.
Friday, April 12, 2002 (Class 39) (Assignments 34-35)
- Next Week's Schedule
- Tuesday, April 16, 2002: Research Problem #3, Room 10
- Wednesday, April 17, 2002: Assignment #36, Group #10
- Friday, April 19, 2002: Assignment #37, Group #15
Bowers v. Hardwick
[478 U.S. 186] 1986 United States Supreme Court (cb1243)
- In all of these opinions, court is deeply divided--keep this in mind in understanding rulings.
- View of substantive due process that equates fundamental rights with traditional morality.
- Rights that are fundamental seem to be the ones that people would generally have anyway, since they are 'traditional'.
- Could read Romer as saying that legislation motivated by antipathy is irrational.
- Reluctance to go 'too far' with substantive due process; court upholds Roe and Griswold, but don't want to venture into new areas.
- Access to political, civil rights in Romer is different from rights in this case.
- Bowers had effect of disabusing public interest lawyers of idea that progressive work couldn't necessarily be accomplished through the court system--sometimes you end up making 'bad law', as in this case.
- Also raised issues of which court you seek for public interest law--Bowers suggests gay/lesbian rights cases should not be brought before Supreme Court. Also, should you go to Court or Legislatures?
Baker v. State
[744 A.2d 864] 2000 Vermont Supreme Court (sp139)
- Same sex couples who had been together for many years, applied for marriage license from towns and were denied, sought declaratory judgment against state and town that refusal violated both state marriage laws and state constitution.
- Constitution includes 'common benefits' clause: all residents of Vermont are entitled to same benefits, etc., of the law.
- 'Common benefits' clause has some similarities to the equal protection clause, but it has some important differences.
- Issue in Moore and Belle Terre -- who defines what is a family.
- Court does not hold that people have fundamental right to marry--allows marriage to be defined by state legislature.
- Court finds unconstitutional that certain civil and political rights are denied to some individuals.
- Did not decide case on the basis of gender discrimination or sexual orientation discrimination.
- Doesn't have flavor of Griswold cases, which focus on fundamental rights or privacy--decision doesn't address one's 'fundamental right to choose one's partner', etc.. More about 'public rights'.
- Court finds 'status quo' unconstitutional, but doesn't actually mandate remedy, instead instructs legislature to deal with it.
- Under Court's interpretation, options left to legislature:
- To expand marriage
- To give benefits to same-sex couples as well
- Get rid of all benefits of mariage
- Interactions between social movements, the courts, etc..; unclear whether this is a 'victory' or 'defeat' for movement.
- Although states can expand people's rights, what happens when some people's rights interfere with other people's rights?
Boy Scouts of America v. Dale
[530 U.S. 640] 2000 United States Supreme Court (sp145)
- New Jersey passed statutory expansion of rights, public accommodation law that prohibits discrimination on part of sexual orientation.
- Supreme Court held (5-4) that law could not be applied to Boy Scouts of America.
- Boy Scouts claim federal 1st amendment right that conflicts with New Jersey statute.
- Asymmetry of situation: Dale (expelled scout leader) has no constitutional right:
- Boy Scouts are not state actor.
- Sexual orientation is not a suspect classification.
- Rehnquist holds that right to associate also includes right to exclude.
- Why is exclusion 1st amendment right?
- Boy scouts are expressive organization. By forcing Boy Scouts to allow Dale to be a member of the group, New Jersey is changing expression of organization.
- But does 'everything' fall under 1st amendment, then? Can someone's interest in marrying someone of their own gender be covered by their 1st amendment right to express their love in a certain way?
- Does 1st amendment become paradigm for issues of freedom and individual rights in this information age?
Wednesday, April 17, 2002 (Class 40) (Assignments 35)
In Re Quinlan
- First 'right to die' case, discussing whether family could remove life support from woman in irreversible coma.
- Many cases leading up to this, in State Courts, suggesting that right to privacy extended to some degree to being able to control medical care at the end of life.
Cruzan v. Director, Missouri Department of Health
[497 U.S. 261] 1990 United States Supreme Court (cb1326)
- Family wanted to remove feeding tube for woman in permanent vegetative state.
- Supreme Court held there would need to be clear and convincing evidence of woman's intentions before tube could be removed, affirming State Court decision.
- Rehnquist treated case as procedural due process. If there is a right to terminate treatment, it is a right of the individual, not of the family.
- O'Connor has been critical justice for substantive due process cases. In this case, she suggests that the state might be oliged to respect the wishes of the person expressed in living will.
Washington v. Glucksberg
[117 S. Ct. 2258] 1997 United States Supreme Court (cb1340)
- Challenge to Washington statute prohibiting aidig and abetting of suicides.
- Claim that statute violates due process clause of 14th amendment.
- Unanimous decision in judgment, but far from unanimous in decision.
- Rehnquist (opinion of the court)
- Looks to history, as in Bowers and Michael H., finds no basis for suicide being legal.
- Applies rational basis test, outlines many interests state has:
- Interest in protecting life
- Preventing improper suicide, etc..
- Doesn't look at prior case law/precedent--just distinguishes Cruzan.
- Focuses on 'slippery slope' theory, hard to draw lines
- Agrees that there is no generalized right to commit suicide
- Doesn't want to foreclose possibility that truly competent person could make this decision--maybe an individual has a right if there is uncontrollable pain--the state may not be able to insist upon one's bearing pain.
- Ginsburg and Breyer concur with O'Connor.
- 'No man is an island'. Suicide effects others.
- Privacy is not pure libertarianism; but is not willing to unequivocally prohibit assisted suicide. Won't buy into Rehnquist's 'static approach'.
- Primary issue is current Oregon case:
- Pre-emption issue. Drugs used for physician-assisted suicide prohibited by federal government.
- 10th amendment challenge of Congress's ability to regulate this through commerce clause.
- Instead of a fundamental rights analysis, court should use a balancing test, as Harlan advocated in Poe'.
- Finds State's interest outweighs individual's in this case, but in certain cases individual's interest could be stronger.
- If we are waiting for more legislatures to decide to allow physician assisted suicide before declaring it a Constitutional right, then what is the point of the Constitutional Right?
Vacco v. Quill
[521 U.S. 793] 1997 United States Supreme Court (cb1354)
- Equal protection companion case to Glucksberg.
- Claim that people who want lethal medication are not being treated equally to people who want to terminate treatment.
- No suspect classification here, however. Thus use rational basis test.
- Eisenstadt: Griswold says contraception is protected, thus heightened scrutiny, here suicide is not protected, thus no heightened scrutiny.
- Glucksberg becomes main opinion--since there is no due process protection, then no heightened scrutiny for equal protection.
- How to fundamental right effect distribution of goods or services? Up until now, fundamental rights have mostly been about right to be left alone. Are there fundamental rights to resources?
- 15th amendment prohibits denial to voting on the basis of race.
- 19th amendment prohibits denial of voting on the basis of gender.
- 24th amendment prohibits poll tax for elections of federal officers.
- 26th amendment gives 18 years old right to vote.
- All of these amendments say right to vote shall not be abridged... But, is there a right to vote?
Harper v. Virginia Bd. of Elections
[383 U.S. 663] 1966 United States Supreme Court (cb1373)
- Virginia has poll tax for state elections. Not direct violation of 24th amendment, since that only applies to federal elections.
- Court finds tax unconstitutional, which charges people for right to vote.
- Does poll tax act as a wealth qualification?
- Not an explicit facial wealth qualification, but has a clear disparate impact on wealth.
- Should wealth be a suspect classification?
- Court doesn't find voting to be such a fundamental right that it must always be present, but rather if voting is present at all, the distribution of franchise will be subject to strict scrutiny.
- Voting right is right to something not right to be left alone.
Bush v. Gore
- Is there a right to vote for President?
- No, no right to direct vote.
- Does this follow from Harper?
Friday, April 19, 2002 (Class 41) (Assignment 36)
- Next Week:
- Monday, April 22, 2002: (Assignment 38) (Group 19)
- Wednesday, April 24, 2002: (Assignment 39) (Group 20)
- Friday, April 26, 2002: Review Problem
- Wednesday, May 1, 2002 1:45pm: Review Session with Parmet (Room 97)
Bush v. Gore
(in light of equal protection)
- Does Bush v. Gore follow from Harper' naturally?
- Court finds equal protection when there is a fundamental right and sort of a suspect classification.
- How does Bush v. Gore differ from Harper?
- Both explicitly and implicitly in Harper, there were 'questionable classifications'. Although wealth is not actually a suspect classification, it is still 'troubling' (similar to Romer, where Court didn't find sexual orientation to be suspect, but still examined).
- Justices in Bush v. Gore who supported the per curiam are ones who, in most cases, favor going back to history to determine fundamental rights, rather than looking at precedent. But Bush v. Gore does not look at historical nature of voting rights, i.e., don't use Michael H. approach.
- Per curiam opinion also suggests that this ruling only applies to this case, suggesting that they may not be comfortable with this mode of fundamental rights interpretation.
- Is Government obligated to provide certain rights to people? Positive rights: rights to benefits, goods, and services vs. right to be left alone.
Shapiro v. Thompson
[394 U.S. 618] 1969 United States Supreme Court (cb1505)
- Invalidates statutory provisions which deny welfare to people who have not lived in state for at least one year
- Claim is brought under 5th amendment, since statute is in Washington, D.C., not subject to 14th amendment.
- Problem with Federal Claim: Congress has plenary power over interstate commerce (Privileges and Immunities deals with States).
- Court does not hold that there is a right to welfare.
- How does durational residency requirement violate a right to travel? If D.C. had no welfare system, this would also discourage people from moving to D.C., but would not be unconstitutional.
- Hard to identify doctrine exactly, seems to be something like:
- Equal protection when you have a fundamental right (which is some 'important thing' (welfare) and 'travel') and a 'sort of suspect classification' (poverty).)
- Unlike California v. Edwards, D.C. did not erect a barrier around the City. Can only be seen as a barrier if you believe that welfare is so important that it deters travel.
- Of course there are many other barriers to travel which are not unconstitutional.
- If this were just about right to travel, why deal with equal protection at all?
- Methodology is very different from substantive due process cases, doesn't ask whether right to travel is historical based right.
- Somehow 'denial of welfare' is like 'penalty for traveling' or 'border tax'.
- Shapiro followed by similar cases, e.g., Memorial Hospital v. Maricopa County. Arizona was only state in the union that didn't participate in medicare, court found Arizona's refusal to pay for indigent medical care violated right to travel.
- Doctrine does not explain, however, what is the 'important thing' that might be protected. Why welfare and health care, but not education and housing?
- Might deter states from experimenting to find the best solution (policy argument).
- Might 'semi-suspect classification' end up worse off because states will only want to provide the minimum support so they don't have to provide it for others.
- Might Court be Lochnerizing?
- Justices spent first part of their career criticizing substantive due process, which was used previously to undermine social welfare legislation.
Saenz v. Roe
[526 U.S. 489] 1999 United States Supreme Court (cb1518)
- Stevens goes beyond 'right to travel' but focuses more on 'right to be treated equally'.
- Uses privileges and immunities clause of 14th amendment, reconceptualizes Shapiro.
- Fundamental Rights (rights to travel)
- Implicit in federalism: right to enter and leave a state
- Rights of privileges of home state when you are in another state (Article 4, Piper v. New Hampshire)
- Shapiro problem persists: when is something 'important' enough to be protected? What are the things the state can differentiate about?
San Antonio School Independent School District v. Rodriguez
[411 U.S. 1] 1973 United States Supreme Court (cb1543)
- Local school system funded based on property taxes. District that had less valuable land was thus getting much less funding, district claimed this violated Equal Protection.
- Is this discrimination on the basis of wealth?
- Even if wealth were a suspect classification, this isn't a classification on the basis of wealth (according to Powell).
- Based on real property assessments: there may be poor people living in communities with high property values and vice-versa.
- Wealth is not a suspect classification anyway.
- Is there a Fundamental Right being infringed upon in an unequal way?
- Education, like voting, is preservative of other rights--Brown v. Board.
- Justice Powell holds that, just because it is 'important' doesn't necessarily means it's 'fundamental'. It must be implicit or explicit in Constitution.
- Powell is essentially declaring end of Warren Court Era. There will be no more 'new' rights. Education is not fundamental right.
- Distinction with Michael H.:
- Look to history when trying to determine meaning of due process clause--Michael H. was about due process clause, not about equal protection.
- Equal Protection Clause will not be used to create 'new' rights; if you want to find a 'new' right, argue it under due process clause, and show how it is rooted in history.
Plyler v. Doe
[457 U.S. 202] 1982 United States Supreme Court (cb1560)
- Given Rodriguez what is Texas doing in Plyler?
- State law denied education to illegal aliens.
- Court will not hold illegal aliens to be suspect classification.
- Education is not a fundamental right.
- Brennan uses rational basis test, but says State needs to show that it is furthering some substantial state interest.
- Holds that statute is irrational, thus unconstitutional.
- Something about 'complete deprivation of education', which seems to trouble the Court more than in Rodriguez.
- Sounds more like rational basis with teeth.
Monday, April 22, 2002 (Class 42) (Assignment 37)
- Review Sessions
- Tuesday, Room 203, 4:15pm-5:15pm
- Same problem as last Thursday, re: Cigarette Law
- Thursday, Room 94, 4:15pm-5:15pm
- Problem, re: Startford state University
- Plyer: although educational is not a fundamental right, it's not necessarily altogether rational to deprive someone of an education. Majority is not comfortable with absolute deprivation of education.
DeShaney? v. Winnebago County Department of Social Services
[489 U.S. 189] 1989 United States Supreme Court (cb1384)
- Thus far: when government creates a benefit, how do we determine the allocation of that good under equal protection clause?
- DeShaney? raises question under due process clause.
- Joshua DeShaney? was abused by his father, taken out of custody of father temporarily but returned to father for lack of cause for permanent removal.
- Caseworker suspected abuse but did nothing, eventually Joshua is severely disabled for life.
- Mother, plaintiff, suing DSS on theory that Joshua was deprived of 14th amendment right to liberty, fundamental right to live as a health, intact person, by allowing abuse to go on.
- If this were equal protection clause claim, would be: DSS allocates services, has misallocated services by denying Joshua sufficient services.
- Under Rodriguez, would have to show that Joshua was member of suspect classification, and then discriminatory intent, for heightened scrutiny.
- If no suspect classification, have to show that Fundamental Right implicit or explicit in Constitution.
- Rodriguez puts burden back on due process clause to find implicit Fundamental Right--has there been a substantive due process violation?
- Rehnquist finds no due process clause violation:
- Due process is about limiting government, not compelling government to act.
- No Michael H. analysis, because question is not about whether bodily integrity or right not to be beaten is fundamental right, because people only have right to protection from Government, not from other individuals. No fundamental right to have government intervene between son and father.
- Case is very intimately connected with State Action--Joshua's mother could not sue father under due process clause.
- Brennan's Dissent: DSS created laws which gave father dominion over child and established DSS as sole protector. There is positive causal action by the state.
- Shelley v. Kraemer (1948) court sees state action implicit in private action.
- Rehnquist doesn't hold that mother has no cause of action, just no Constitutional Claim (may have a tort).
- Idea of state of nature--that Joshua's father's dominion over Joshua is 'natural'. Even though there wa s disputed custody and the state actually granted the father custody.
- Blackmun's Dissent
- Widely criticized for being too emotional, for appealing to empathy to Joshua.
- Antebellum analogy: court is not realizing justice, as it refused to find rights for slaves.
Maher v. Roe
[432 U.S. 464] 1977 United States Supreme Court (cb1526)
- No right to care and protection of the State. But we live in world with no 'state of nature' or black-and-white 'default' circumstances.
- Complex interplay between government services provided and rights recognized in Constitution.
- Connecticut Welfare Department limits Medicaid benefits to medically necessary first trimester abortion. DSS must authorize abortion before it is covered.
- Harris v. McRae?: federal prohibition on funding abortions except where life of mother is in danger, rape, incest.
- Plaintiffs claim equal protection for both abortion and child birth; fundamental right to abortion.
- Rodriguez said fundamental rights are those that are explicit or implicit in Constitution.
- Like Harper, claim is that this is an unequal allocation of a fundamental right to have an abortion.
- Powell (Court) Opinion:
- State doesn't erect barrier that isn't there already.
- In DeShaney?, Court says there is no fundamental right to protection.
- Fundamental right is not to have an abortion but for the state not to deprive you of right to have abortion.
- Woman's inability to pay for abortion is not state action.
- Now need to ask 'what does it mean to have fundamental right deprived '?
- State can require that person get abortion from licensed practioner, make abortion very expensive, and then refuse to subsidize.
- Highly formalistic line between inaction and action.
- Fundamental Rights line of cases has stark libertarian--negative constitution overtone.
Procedural Due Process
- Historically, wealth was held in real property. Caulder v. Bull, Dred Scott: Court found it was a violation of substantive due process to take away liberty. Real property can't be taken without due process of law.
- Charles Reich observed in 1960's: one's wealth is no longer held in real property. Lots of other stuff is source of wealth other than real property.
- Framers believed that independent financial means = independent political rights. Protections of property are protections of political independence going back to magna carta.
- King can seize my property, but I need to have procedure to make sure deprivation of property (substantive rule) is correctly applied.
- Reich argued new sources of wealth needs to be treated like old sources of wealth for procedural due process purposes.
- Start on Wednesday by looking at Supreme Court's understanding of Procedural Due Process.
- What good is Procedural Due Process without Substantive Due Process? What is the relationship between the two?
Wednesday, April 24, 2002 (Class 43) (Assignments 38-39)
- State of nature as hypothetical construct. Problem: we have tendency to think what is traditional and commonplace is natural.
- We tend not to think, for example, that it is the law that gives father custody of his son. Holmes' dissent in Lochner points out this problem.
- West Coast Hotel: state of affairs between employers and employees is not necessarily 'natural'--state gives employers powers over employees, thus minimum wages are not necessarily disrupting state of nature.
- Doughnut a day act: everyone gets a doughnut every day.
- Advantages some people, disadvantages other
- Standard of review for this act: rational basis.
- If you don't like the act, exercise your political rights to fix it.
- What if we now want to abolish the act?
- Again, rational basis review--Carolene Products.
- If legislature says only member of certain groups gets donuts, and group is discrete and insular minority (racial, religious, ethnic) then general presumption of constitutionality may not be warranted (Justice Stone, Footnote 4).
- Suspect classification line, certain groups warrant heightened protection.
- What if everyone gets doughnuts, except one person?
- Procedural due process: the application of law to the individual.
- Problematic, because in some sense person has no right to doughnut at all--law can be abolished.
- On the other hand, in footnote 4 terms, if 'catholics' are minority, then lone individual is also 'minority'.
- What Goldberg v. Kelly attempted to do, building on Charles Reich's insight, is to suggest: even when we're talking about doughnuts, then procedural due process may still apply.
Goldberg v. Kelly
[397 U.S. 254] 1970 United States Supreme Court (cb1400)
- Brennan didn't deal with question of whether welfare was rational, but held that there needs to be some process before welfare is taken away from the individual.
- Footnote: it may be realistic to regard welfare entitlements more like 'property' than 'gratuity'.
- Justice Black's Dissent:
- Government chose to give away benefit and recipients. Didn't have to create benefit.
- Issue may not be deference to the legislature, but rather about deference to caseworker.
- Not about substantive due process, rather about making sure the law is being properly applied. Coming from common law tradition of application of law to particular individuals.
- Two problems that procedural due process raises:
- How much procedure is due?
- Which benefits are protected?
Matthews v. Eldridge
[424 U.S. 319] 1976 United States Supreme Court (cb1406)
- Determinations of social security/disability benefits. How to determine what process is due for this benefit? No one denies that some process is required.
- How important is benefit?
- Court asserts that disability benefits are not as important as welfare benefits.
- Next question: what is potential that caseworker will be wrong?
- Court holds that it is less likely that caseworker will make mistake.
- What is the cost of additional process?
- In series of cases in 1970's, court attempted to define which things would receive procedural due process.
Board of Regents v. Roth
[408 U.S. 564] 1972 United States Supreme Court (cb1409)
- Roth had one year contract with public university, contract was not renewed after one year, sued to require reasons for non-renewal and opportunity for hearing.
- No fundamental right to be state university professor, so how do you decide if process is due?
- Stewart holds that there needs to be 'justifiable claim of entitlement'--deviates from Goldberg.
- Thus, look to state law to see if it gives person mandatory claim of entitlement.
- I.e., what is property? That which is defined by state law as entitlement.
- Under this standard, don't ask if thing is important, just ask if it's entitlement.
- If positive law gives you an entitlement, then you have a right to procedural due process in the application of that entitlement.
- Does not look to constitution for source of procedural due process/property rights.
- 'Life, liberty, or property' from the text. These are protecting by 5th amendment, can ask what framers thought property was.
- Distinction is between property protected by Constitution vs. property protected by good graces of legislature.
- What is liberty?
- Quoting Myers: Liberty is 'liberties protected by Constitution'.
- 1st amendment rights, etc..
- Sometimes used in colloquial sense--fundamental right of movement.
- If the right to property is solely dependent on legislative determination, could the legislature give the right in such a way as to alter or change the process right?
- I.e., can statute define entitlement contingent on a process? 'Do you have to take bitter with the sweet?'
Cleveland Board of Education v. Loudermill
[470 U.S. 532] 1985 United States Supreme Court (cb1412)
- Only give deference to legislative determinations of entitlement, not to legislative determinations of process
- Otherwise there is no role for judicial review of process
- Last question to deal with on Friday: what if entitlement is tied to some liberty interest? I.e., you only get doughnut if you don't read Catcher in the Rye.
- Look at Regan, FCC, Review Problem...
Friday, April 26, 2002 (Class 44) (Assignment 39)
- Review Problems
- Not a substitute for doing problems on your own
- Process of putting materials together on your own is best review
- Dale and Raquel will be doing Question #3, Parmet will be reviewing Question #4 (and then #2).
- Research Problem #3 should be available for pick-up on Monday from Jan McNew?.
- Constitutional law is not so much a set of rules but a conversation, set of questions and way of talking about things.
- How do interpret our basic rules?
- Who interprets our rules? Who has power to make decisions?
- Relationships: individuals and government, federal and state governments, groups of people and government, branches of government.
- Individuals and the State under the 14th amendment
- 14th amendment is most clearly read as 'charter of negative liberty'; 'right to be left alone in the state of nature'.
- Although there might not be fundamental right to something, if something is given in a discriminatory basis, may be subject to strict scrutiny.
- If the government gets into business of statutory entitlement, then process applies. The Constitution says that some process may be given with respect to deprivation of right, because entitlement becomes property under 5th/14th amendment. Property does not come from state of nature but is defined by law.
- Today, question when 'carrots and sticks' come together.
- What good are procedural protections, if government can substantively control access to fundamental rights with entitlements?
- Myer and Roe: government isn't taking away your right to have abortion, just not granting benefit that it has no duty to grant. Question of what is 'baseline' entitlement.
- What about 1st amendment rights vis-a-vis legislative entitlements?
- Willingness on part of Supreme Court to limit government when it comes to 1st amendment.
- In some sense, 1st amendment is epitome of negative right, in other sense, epitome of political right.
Regan v. Taxation With Representation of Washington
[461 U.S. 540] 1983 United States Supreme Court (cb1450)
- Question of 501(c)(3) status--goal of many non-profits (allows them to be tax-exempt and for donations to be tax-deductible).
- Government could eliminate 501(c)(3) status entirely; no fundamental right to not be taxed.
- If Government said 'if you lobby, you will be fined', would be struck down as unconstitutional under 1st amendment.
- Congress forbids 501(c)(3) organizations from lobbying.
- Equal Protection Argument: some organizations can lobby, some can't. E.g., veterans organizations.
- Rehnquist holds that government can choose who is exempt and who is not; no protected class here, no content regulations on lobbying.
- 1st amendment argument: government is 'buying away' free speech rights.
- No state of nature right to tax-exemption
- Not that onerous a condition--can create two affiliated corporate entities, one that lobbies and one that doesn't.
- Depends on whether we see this as an additional benefit not being conferred or a coercive penalty.
- What if government conditioned federally subsidized loans on not criticizing government?
- No fundamental right to education, no education in state of nature.
FCC v. League of Women Voters of California
[468 U.S. 364] 1984 United States Supreme Court (cb1452)
- Government threatens to withhold money if Pacifica station editorializes.
- How does this differ from federal loan condition above?
- Public Radio station can only exist if publicly funded, thus this completely shuts down station. Education can still occur absent federal loans, in state of nature.
- Government is 'buying a lot more silence' than money they're giving--i.e., can silence station entirely, when it editorializes occasionally.
Rust v. Sullivan
[111 S. Ct. 1759] 1991 United States Supreme Court (cb1457)
- Title X of Public Health Services Act provides funding to family planning services, but forbids recipients to mention abortion as option.
- First claim: undue burden on abortion (Casey).
- Response: No fundamental right to be given abortion, rather right is to have state interfere with abortion. (Myer v. Roe, Harris v. McRae?).
- Second: infringes on 1st amendment rights. Act allows clinic to talk about anything except abortion.
- Rehnquist holds that government is not denying free speech but insuring that government funds are being used what they are allocated for.
- Doctor or nurse still has right to do what they want, to talk about abortion. Clinic can separate itself into two entities, one of which can talk about abortion.
- If person wins grant to do scientific research on human genome and instead uses money to do exegesis on legal case, government could take money away since that is not what they were funding.
- On the other hand, this could lead to all fundamental rights being 'bought away'.
Legal Services Corporation v. Velazquez
[531 U.S. 533] 2001 United States Supreme Court (sp151)
- Statute prohibited legal services that received government money from bringing constitutional challenges to welfare regulations.
- Right to counsel is just fundamental negative right--government can't stop you from getting counsel.
- Court holds that speech is 'speech of the client' here, thus restriction constitutes unconstitutional restriction on speech.
- But how is this different from doctor-patient relationship?
- Might this be different from abortion because it is about litigation and access to courts--balance of powers issue. Might also skew infomation that counsel can give to court (almost an Article III problem).
- Hard to distinguish from Rust--why can't government say legal services is the 'regulatory services' office, and that government pays for regulatory litigation, not constitutional litigation.
- Issue of baseline assumption: if there is no constitutional theory of welfare state, hard to find basis for conditional rights cases.
Review Problem IV
Question A: Constitutional Claims of Manufacturer
- FDA is considering revoking Mifepristone's license. Commissioner says drug which shortens life is not effective.
- Procedural due process
- Is there a life, liberty, or property interest to trigger procedural due process?
- Property Interest: is here a justifiable claim to entitlement under positive law? (Board of Regents v. Roth)
- License itself, pursuant to regulation, could be property interest.
- Alternatively, statute says manufacturer is entitled to license if it is safe and effective. Statutorily-created property interest.
- Matthews v. Eldridge: is there a risk of error, consequences of mistake.
- Liberty interests include interests recognized substantively under due process clause.
- Does this create an undue right on the fundamental right to an abortion?
Question B: Constitutional Claims If Bill Revokes License and Prohibits Sale
- Senator wants to prohibit sale of drug.
- Can no longer make procedural due process argument on property interest.
- Does Congress have authority to pass law? Strong claim under commerce clause.
- Strongest claim: places undue burden on abortion. Does prohibition of RU486 create undue burden on right to have abortion?
- Structurally similar to Carhart partial-birth abortion case.
- Opposing argument: Roe doesn't say state needs to facilitate abortion; women are no worse off than they used to be pre-RU486.
Question C: No Facility That Receives Money Shall Prescribe Mifepristone
- Is this an unconstitutional condition?
- Senator would argue that there is no right to facility funding. If you chose not to accept federal money, you're no worse off than you would be in state of nature.
- Alternatively, this is really penalty--too severe. Like FCC case--facility can't do anything if it prescribes drug.