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Constitutional Law

Wendy Parmet

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.

Course overview

"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


Monday, January 7, 2002 (Class 3)

McCulloch? v. Maryland

[17 U.S. 316] U.S. Supreme Court 1819

Group 6 is 'on' for Wednesday.


Wednesday, January 9, 2002 (Class 4)

Methods and Sources of Interpretation

What if you are a judge in 1840 having to rule on a Fugitive Slave Act case?

Dred Scott v. John Sandford

[60 U.S. 393] 1856 Supreme Court (cb183)

Donald Ferenbach (sp?) book about Dred Scott case in citations.

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:

Dred Scott v. John Sandford

(continued)

[60 U.S. 393] 1856 Supreme Court (cb183)

Lincoln-Douglas Debates

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?

Prize Cases

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)

Emancipation Proclamation

14th Amendment

The Civil Rights Case

[109 U.S. 3] 1883 United States Supreme Court (cb285)

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

(Continued)

[109 U.S. 3] 1883 United States Supreme Court (cb285)

Plessy v. Ferguson

[163 U.S. 537] 1896 United States Supreme Court

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.

Slaughterhouse Cases

[83 U.S. 36] 1872 United States Supreme Court

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'.

Slaughterhouse Cases

(continued)

[83 U.S. 36] 1872 United States Supreme Court (cb326)

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

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

New Deal

West Coast Hotel

1937 United States Supreme Court (cb427)

United States v. Carolene Products Co.

[304 U.S. 144] 1938 United States Supreme Court

Williams v. Lee Optical

[ 348 U.S. 483] 1955 United States Supreme Court

Are these questions really for the court?

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:

New Deal

United States v. Carolene Products Co.

[304 U.S. 144] 1938 United States Supreme Court

Brown v. Board of Education

[347 U.S. 483] 1954 United States Supreme Court


Monday, January 28, 2002 (Class 11) (Assignments 9-10)

Brown v. Board of Education

(continued)

[347 U.S. 483] 1954 United States Supreme Court

Bolling v. Sharpe

[347 U.S. 497] 1954 United States Supreme Court

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.

Persistent themes:

Course now will turn from history to doctrine...

Congress' Power under Article I

National Labor Relations Board v. Jones & Laughlin Steel Corp.

[301 U.S. 1] 1937 United States Supreme Court

United States v. Darby

[312 U.S. 100] 1941 United States Supreme Court

Wickard v. Filburn

[317 U.S. 111] 1942 United States Supreme Court


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

Spending/Taxing? Power vis-a-vis Federalism

Steward Machine Company v. Davis

[301 U.S. 548] 1937 United States Supreme Cout

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)

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)

United States v. Lopez

(continued)

[514 U.S. 549] 1995 United States Supreme Court (cb512)

Justice Rehnquist's Opinion

Justice Kennedy's Concurrence (with O'Connor)

Justice Thomas' Concurrence

Justice Stevens' Dissent

Justice Souters' Dissent

Justice Breyer's Dissent (joined by Stevens, Souter, Ginsburg)

South Dakota v. Dole

[483 U.S. 203] 1987 United States Supreme Court (cb533)

United States v. Morrison

[529 U.S. 598] 2000 United States Supreme Court (sp1)

Justice Rehnquist (Majority) Opinion

Justice Thomas' Concurrence

Justice Souter's Dissent (joined by Stevens, Ginsburg, Breyer)

Justice Breyer's Dissent (joined by Stevens, in part by Souter and Ginsburg)

National League of Cities v. Usery

[426 U.S. 833] 1976 United States Supreme Court (cb552)

Garcia v. San Antonio Metropolitan Transit Authority

[469 U.S. 528] 1985 United States Supreme Court (cb555)

New York v. United States

[505 U.S. 144] 1992 United States Supreme Court (cb576)

Start on Monday with Printz.


Monday, February 4, 2002 (Class 14) (Assignments 11-12)

Congress' options when acting under the commerce clause:

Printz v. United States

[521 U.S. 898] 1997 United States Supreme Court

Reno v. Condon

[528 U.S. 141] 2000 United States Supreme Court

Other Sources of Federal Authority--Post Civil-War Amendments

South Carolina v. Katzenbach

[383 U.S. 301] 1966 United States Supreme Court

Katzenbach v. Morgan

[384 U.S. 641] 1966 United States Supreme Court

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)

Katzenbach v. Morgan

(continued)

[384 U.S. 641] 1966 United States Supreme Court

City of Boerne v. Flores

[521 U.S. 507] 1997 United States Supreme Court (cb536)

What happens when Boerne meets Lopez?

Kimmel

(sp44)

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?

Pre-Emption

Gade v. National State Wastes Management Association

(materials)

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:

Gade v. National Solid Wastes Management Association

Horizontal Federalism

City of Philadelphia v. New Jersey

[437 U.S. 617] 1978 United States Supreme Court (sp15)

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)


Monday, February 11, 2002 (Class 17) (Assignments 15-16)

C & A Carbone, Inc. v. Town of Clarkstown

(continued)

[511 U.S. 383] 1994 United States Supreme Court (sp21)

Market Participation Doctrine

(cb617)

Privileges and Immunities Clause

Piper Case

Practice Problem


Wednesday, February 13, 2002 (Class 18) (Assignments 16-17)

Review Problem I

Selection of the President

Bush v. Gore

[531 U.S. 98] 2000 United States Supreme Court (sp65)

Will go on to address Presidential Power on Friday.


Friday, February 15, 2002 (Class 19) (Assignments 17-18)

Administrative Notes

President's Power

Youngstown Steel Case


Wednesday, February 20, 2002 (Class 20) (Assignments 17-18)

Administration

Individual Rights

Shelley v. Kraemer

[334 U.S. 1] 1948 United States Supreme Court (sp31)

Rendell-Baker v. Kohn

[457 U.S. 830] 1982 United States Supreme Court (sp35)

Friday, will talk about Brentwood and then First Amendment.


Friday, February 22, 2002 (Class 21) (Assignments 18-19)

Next Week

Rendell-Baker v. Kohn

(continued)

[457 U.S. 830] 1982 United States Supreme Court (sp35)

Brentwood Academy v. Tennessee Secondary School Athletic Association

[2001 U.S. Lexis 964] 2001 United States Supreme Court (sp39)

Underlying Rights


Spring Break (February 23-March 2)


Notes are continued in ClassNotesConstitutionalLawParmet2, for faster loading...

Monday, March 4, 2002 (Class 22) (Assignment 20)

Shenck v. United States

[249 U.S. 47]

Debs v. United States

[249 U.S. 211] 1919 United States Supreme Court

Abrams v. United States

[250 U.S. 616] 1919 United States Supreme Court

Gitlow v. People of New York

[268 U.S. 652] 1925 United States Supreme Court

Dennis et al. v. United States

[341 U.S. 494] 1951 United States Supreme Court (mat47)


Wednesday, March 5, 2002 (Class 23) (Assignment 20)

Brandenburg v. Ohio

[395 U.S. 444] 1969 United States Supreme Court (mat57)

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?

Review Problem II

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)

Review Problem II

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)


Monday, March 11, 2002 (Class 25) (Assignments 21-22)

Loving v. Virginia

[388 U.S. 1] 1967 United States Supreme Court (cb801)

Washington v. Davis

[426 U.S. 229] 1976 United States Supreme Court (cb851)

Washington v. Davis raises several questions:

Village of Arlington Heights

Start on Wednesday with Feeny and then move to affirmative action cases.


Wednesday, March 13, 2002 (Class 26) (Assignment 22)

Personnel Administrator of Massachusetts v. Feeney

[442 U.S. 256] 1979 United States Supreme Court (cb856)

United States v. Clary

[34 F.3d 709] 1994 8th Circuit Court of Appeals (cb873)

McCleskey? v. Kemp

[481 U.S. 279] 1987 United States Supreme Court (cb884)

'''.

Affirmative Action


Friday, March 15, 2002 (Class 27) (Assignment 22)

City of Richmond v. J.A. Croson Co.

[488 U.S. 469] 1989 United States Supreme Court (cb927)

Metro Broadcasting v. FCC

[497 U.S. 547] 1990 United States Supreme Court (cb951)

Adarand Constructors v. Pena

[515 U.S. 200] 1995 United States Supreme Court (c953)

On Monday, start with questions:


Monday, March 18, 2002 (Class 28) (Assignment 25)

Hopwood v. State of Texas

[78 F.3d 932] 1996 5th Circuit Court of Appeals (cb973)

Review Problem III

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

(cb330-332)

Frontiero v. Richardson

[441 U.S. 677] 1973 United States Supreme Court (cb988)

United States v. Virginia

[518 U.S. 515] 1996 United States Supreme Court (cb1025)

Mississippi University for Women v. Hogan

[458 U.S. 718] 1982 United States Supreme Court (cb1044)

Vorcheimer v. School District of Philadelphia

[430 U.S. 703] 1977 United States Supreme Court (cb1048)

Newberg v. Board of Public Education

[26 Pa. D. & C. 3rd 682] 1983 (cb1049)


Wednesday, March 20, 2002 (Class 29) (Assignments 25-26)

Review Problem #3 Continued

Frontiero v. Richardson

[411 U.S. 677] 1973 United States Supreme Court (cb988)

Will do VMI case on Friday.


Frontiero v. Richardson

[441 U.S. 677] 1973 United States Supreme Court (cb988)

United States v. Virginia (the VMI Case)

[518 U.S. 515] 1996 United States Supreme Court (cb1025)

Personnel Administrator of Massachusetts v. Feeney

[442 U.S. 256] 1979 United States Supreme Court (cb1053)

Geduldig v. Aiello

[417 U.S. 484] 1974 United States Supreme Court (cb1065)

Think about birth control v. Viagra insurance coverage for monday.


Monday, March 25, 2002 (Class 31) (Assignments 27-28)

Hynson v. City of Chester Legal Department

[864 F.2d 1026] 1988 3rd Circuit Court of Appeals (cb1060)

Michael M. v. Superior Court of Sonoma County

[450 U.S. 464] 1981 United States Supreme Court (cb1089)

Tuan Anh Nguyen v. INS

[121 S.Ct. 2053] 2001 United States Supreme Court (sp103)

Kahn v. Shevin

[416 U.S. 351] 1974 United States Supreme Court (cb1114)

Schlesinger v. Ballard

[416 U.S. 496] 1975 United States Supreme Court (cb1114)


Wednesday, March 27, 2002 (Class 32) (Assignments 28-29)

City of Cleburne, Texas v. Cleburne Living Center

[473 U.S. 432] 1985 United States Supreme Court (cb1119)

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)

City of Cleburne, Texas v. Cleburne Living Center

[473 U.S. 432] 1985 United States Supreme Court (cb1119)

Board of Trustees of the University of Alabama v. Garrett

[531 U.S. 356] 2000 United States Supreme Court (sp45)

Equal Protection for Other Classifications: Sexual Orientation


Monday, April 1, 2002 (Class 34) (Assignments 30-31)

Romer v. Evans

[116 S. Ct. 1620] 1996 United States Supreme Court (cb1259)

Skinner v. Oklahoma

[316 U.S. 535] 1942 United States Supreme Court (cb1133)

Griswold v. Connecticut

[381 U.S. 479] 1965 United States Supreme Court (cb1134)


Wednesday, April 3, 2002 (Class 35) (Assignment 32)

Griswold v. Connecticut

[381 U.S. 479] 1965 United States Supreme Court (cb1134)

Eisenstadt v. Baird

[405 U.S. 438] 1972 United States Supreme Court (cb1145)

Village of Belle Terre v. Boraas

[416 U.S. 1] 1974 United States Supreme Court (cb1155)

Moore v. City of East Cleveland

[431 U.S. 494] 1977 United States Supreme Court (cb1156)


Friday, April 5, 2002 (Class 36) (Assignment 32)

Michael H. v. Gerald D.

[491 U.S. 110] 1989 United States Supreme Court (cb1157)

Roe v. Wade

[410 U.S. 113] 1973 United States Supreme Court (cb1172)

Focus on Casey for Monday.


Monday, April 8, 2002 (Class 37) (Assignment 33)

Roe v. Wade

(continued)

[410 U.S. 113] 1973 United States Supreme Court (cb1172)

Planned Parenthood of Southeastern Pennsylvania v. Casey

[505 U.S. 833] 1992 United States Supreme Court (cb1202)

Stenberg v. Carhart

[530 U.S. 914] 2000 United States Supreme Court (cb132)

For Wednesday: five minutes on Carhart:

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)

Bowers v. Hardwick

[478 U.S. 186] 1986 United States Supreme Court (cb1243)

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)

Bowers v. Hardwick

(continued)

[478 U.S. 186] 1986 United States Supreme Court (cb1243)

Baker v. State

[744 A.2d 864] 2000 Vermont Supreme Court (sp139)

Boy Scouts of America v. Dale

[530 U.S. 640] 2000 United States Supreme Court (sp145)


Wednesday, April 17, 2002 (Class 40) (Assignments 35)

In Re Quinlan

Cruzan v. Director, Missouri Department of Health

[497 U.S. 261] 1990 United States Supreme Court (cb1326)

Washington v. Glucksberg

[117 S. Ct. 2258] 1997 United States Supreme Court (cb1340)

Vacco v. Quill

[521 U.S. 793] 1997 United States Supreme Court (cb1354)

Voting Rights

Harper v. Virginia Bd. of Elections

[383 U.S. 663] 1966 United States Supreme Court (cb1373)

Bush v. Gore

(redux)


Friday, April 19, 2002 (Class 41) (Assignment 36)

Bush v. Gore

(in light of equal protection)

Shapiro v. Thompson

[394 U.S. 618] 1969 United States Supreme Court (cb1505)

Saenz v. Roe

[526 U.S. 489] 1999 United States Supreme Court (cb1518)

San Antonio School Independent School District v. Rodriguez

[411 U.S. 1] 1973 United States Supreme Court (cb1543)

Plyler v. Doe

[457 U.S. 202] 1982 United States Supreme Court (cb1560)


Monday, April 22, 2002 (Class 42) (Assignment 37)

DeShaney? v. Winnebago County Department of Social Services

[489 U.S. 189] 1989 United States Supreme Court (cb1384)

Maher v. Roe

[432 U.S. 464] 1977 United States Supreme Court (cb1526)

Procedural Due Process


Wednesday, April 24, 2002 (Class 43) (Assignments 38-39)

Goldberg v. Kelly

[397 U.S. 254] 1970 United States Supreme Court (cb1400)

Matthews v. Eldridge

[424 U.S. 319] 1976 United States Supreme Court (cb1406)

Board of Regents v. Roth

[408 U.S. 564] 1972 United States Supreme Court (cb1409)

Cleveland Board of Education v. Loudermill

[470 U.S. 532] 1985 United States Supreme Court (cb1412)


Friday, April 26, 2002 (Class 44) (Assignment 39)

Regan v. Taxation With Representation of Washington

[461 U.S. 540] 1983 United States Supreme Court (cb1450)

FCC v. League of Women Voters of California

[468 U.S. 364] 1984 United States Supreme Court (cb1452)

Rust v. Sullivan

[111 S. Ct. 1759] 1991 United States Supreme Court (cb1457)

Legal Services Corporation v. Velazquez

[531 U.S. 533] 2001 United States Supreme Court (sp151)

Review Problem IV

Question A: Constitutional Claims of Manufacturer

Question B: Constitutional Claims If Bill Revokes License and Prohibits Sale

Question C: No Facility That Receives Money Shall Prescribe Mifepristone



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