On reading a constitutional law case

1. What is the constitutional doctrine at issue in this case?

2. What is the reasoning of the court? majority opinion
a. Constitutional texts, history, precedent, structural support
b. Policy support
3. What criticisms of this reasoning might there be see concurrences, dissents, scholarly
critiques?
4. How might I apply the constitutional arguments (pro and con) to a future case?
UNIT 1:
I.

The Role of the Judiciary

Introduction to the constitution; the authority for judicial review

First apparent goal of the constition = create a federal government and then separate those into 3
different branches
Article I: Legislative Power branch that writes the law
Article II: Executive Power a president, single individual
Article III: Judicial Branch single supreme court, composition has varied throughout
history, currently 9
Marbury v. Madison1803
Facts: Marbury denied his commission by incoming Jefferson administration. As issue
before the court was (1) whether Marbury had right to commission, (2) if so, did law
afford a rememdy, (3) did inclusion of mandamus in Act violate Art. III and (4) could
court declare laws unconsitution?
Held: Judicial act is unconstitutional, so court not authorized to hear case or grant
mandamus
Why: Marbury has right to commission, so failure to deliver commission violated right
and writ or mandamus is property remedy. But, authority given to court by judiciary act
to issue mandamus is not warranted by constition, so right cannot be exercised. Under
Art. III, congress has right to regulate appellate jurisdiction of court NOT ORIGINAL
jurisdiction. Since Original jurisdiction is defined solely by consititution, it may only be
changed by formal amendment to constition, not ordinary act of congress. Constitiution is
supreme law of land, so law repugnant to constitution is void.
Note: Establishes judicial review of constitutionality of legislative and executive
actions. It is duty of judiciary to say what law is.
Note: Writ of mandamus = petition to court asking it to order government officer to
perform duty.
*** Marbury establishes the authority for judicial review of both federal executive and
legislative acts
Martin v. Hunters Lessee
Facts: Martin claimed title to piece of land based on inheritance from british citizen who
owned property. US and England entered into treaty protecting rights to British to own

land in US. Hunter claimed state took land before treaty so he did nto have valid claim to
property
Held: Court has authority to review state court decisions to ensure they are in compliance
with constitution
Extended supreme courts jurisdiction over state civil cases
Cohens v. Virginia
Extends supreme courts jurisidiction over criminal caes
Articulate the arguments raised by both sides
How did the court resolve the issues before it?
What were the implications of this decision for the propert constitutional role of the Court vis-vis the political branches (The president and the congress)
II.

Modern Application of Marbury: Bush v. Gore (1097-1119)

Bush v. Gore
Facts: Court stepped in to regulate a state dispute over the execution of a state power that
is reserved to the state in the constitution presidential election) The Florida State
supreme court issues an order for a targeted recount of presidential votes which was in
conflict with the FL secretary of state who is given power by the legislature to decide and
handle all election issues. Court saw the equal protection issue of only recounting certain
areas based on a supposedly non uniform procedure and used it as the basis of stepping in
to overrule state supreme court decision.
Renquist: because it is so difficult there should never be an assumption that the bad votes
are going to be read of grounded the scheme that the florida supreme courts opinion
attributed to the legislature is one in which machines are quested to be capable of
correctly counting votes but which nonetheless regularly produces electings in which
legal votes are predictably not tabulated so that in close elections manual recounts are
regularly require IS ABSURD. Safe harbor = firm deadline
Possible Limits on the judicial power: The method of constitutional interpretation; congress as a
possible limit (pg 11-34)
Limits On the Federal Judicial Power
Interpretive limits even among the justicies themselves they find that they do not have
as broad a power as we might think. F
o Raise the question of how the constitution should be interpreted
Narrow judicial power
Broad judicial power in deciding meaning of constitution
Congressional limits
o Ability of congress to restrict federal court jurisdiction
Justiciability limits

o Series of judicially created doctrines that limit the types of matters that federal
courts can decide.
Interpretive Limits justices differ on interpreting power in the constitution. From the
prospective of constitutional theory, two basic theories on how constitution should be interpreted
Originalism view that judges deciding constitutional issues should confine
themselves to enforcing the norms that are stated or clearly implicit in the written
constitution
o only looking at the TEXT strictly, not reading into it
o believe the court should find a right to exist in the constition ONLY if it is
expressly stated in the texts or was clearly intended by its framers
if the constitution is silent, originalists say it is for the LEGISLATURE to
decide
Nonoriginalism view that courts should go beyond that set of references and enforce
norms that cannot be discovered within the four corners of the document
o Ex. Argue that equal protection in the 2nd half of the 20th century must mean that
government mandated racial segregation is unacceptable yet there is strong
evidence that the framers of the 14th amendment approved this practice
o Think that it is permissible for the courts to interpret the constitution to protect the
rights that are not expressly stated or clearly intend.
What is the proper method for interpreting the second amendment? See Heller
District of Columbia v. Heller
Facts: DC law prohibited the possession of handguns and required all legally owned guns
be unloaded and disassembled even in the house.
Held: Law is unconstitutional
Why: Court red the 2nd amendment to guarantee a right to citizens for self-defense outself
of purely militia service. Does not indicate a specific standard of scrutiny but states that
under any standard the DC restrictions would be unconstitutional as infringing on that
right.
o Majority(Scaia): Rights are enshrined at the time they were enacted. Term
militia in 2A at time of ratification, meant all able bodied men, not just national
guard as it does today. Tradition of bearing arms by the citizen was wel
established tradition at the time of adoption and the 2D protects that traditional
right. Limits that gov. may place on rights are those that were contemplated at the
time of adoptionlike baring from the mentally ill, criminals, taking them into
gov. buildings.
o Dissent (Stevens/Breyer) term militia in the 2a applies to keeping arms in
preparation to be called up for military service to defend nation. This is outdated
and inapplicable in modern society with a fully functioning police force and
professional military. 2a spells out no inherent right to bear arms for self-defense.
Gov may make reasonable limitations on gun possession when viewed in the
contexts of the present based on balancing test.

The Division of power between the executive and legislature

the separation of powers and presidential authority (317-328)
Federal Executive Power
i.
issue of inherent presidential power and the question of when, if at all, the president may
act without constitutional or statutory authority
a. Youngstown, Nixon
ii.
ability of congress to expand presidential powers beyond those enumerated in the
constitution
a. Clinton
iii.
the constitutional problems posed by administrative agencies
iv. the allocation of decision making authority in the area of foreign policy
v. executive power and the war on terrorism
vi.
checks on the executive including civil suits for money damages and impeachment
Inherent Presidential Power
Youngstown Sheet & Tube Co v Sawyer
Facts: Steel workers planned nationwide strike. President believed stoppage of steel
production would jeopardize national defense, so gov seizure of mills necessary to ensure
available steel. Executive order directed gov to take possession of steel mills.
Held: President NOT acting within constitutional power when issued executive order to
take possession of steel mills
Why: Presidential power exerted cannot be sustained as exercise of presidents military
power under constitutional provisions that granted executive power seizure cannot be
sustained because congress had exclusive constitutional authority to make laws
necessary and proper to carry out powers vested by constitution
Model 1(Black) Formalism President may act only if he has constitutional or statutory
authority. No inherent presidential power.
Presidents power must stem form act of congress or constitution. Article II does not
allow president to take possession of private property (this is the legislatures job).
President cannot execute laws of his own making
President cannot be sole judge of scope of his constitutional and statutory powers
Supreme court will rule on these questions in matters of war, foreign affairs, national
security and national emergency
Model 2 Frankfurter President has inherent authority to act (so long as president does not
violate a statute or the constitution_ UNTIL he usurps power of another branch of government
[dispute what congresss silence means]
when constitution silent or there is ambiguity the president may act unless Congress steps
in to inform him otherwise substantive limits
executory agreements president can enter into agreement with foreign heads of state
that operate like treaties but dont require senate approval. Are not supreme annot conflict
with federal statutes or treaties.

Model 3 (Douglas) president has inherent and independent powers that he may exercise up to
the extend that he interferes or usurps the constitutional powers of the other branches. When the
president has exceeded authority it is up to the court (procedural limits)
Gov seizure of private property, even temporarily requires adequate compensation to
owners. Since providing this would require the president to raise and allocate revenues, a
legislative power, he has overstepped the constitutional boundaries of his authority
Executive privilege the president under Art. II is allowed to conduct his affairs by
consulting with his aides to gain advice and assistance which is implicitly private and not
subject review.
o US v. Nixon
Line Item Veto
o Unconstitutional because it usurps legislative power
o Clinton v. NYC
Model 4 (US. V. Curtiss-Wright) President has inherent foreign policy powers (and possibility
domestic) as his role as head of state and commander in chief, which cannot be abridged by
congressional action and may be exercised to the extend that they do not violate explicit
constitutional provisions. When the president has exceeds his authority it is up to the court
In Curtiss president was within his power to exercise the economic might of the US to
restrict arms sales to foreign power in order to achieve foreign policy goals. Semidomestic as well, it was an order to US arms manufacturers to cease action. Can apply to
domestic issues intertwined with foreign affairs.

Scopre of inherent power: The issue of executive privilege 327

329
US v. Nixon:
Facts: Subpoena direction president to produce tapes and documents of conversations
with aides. President claims he should not have to turn over information because of
executive privilege.
Held: Executive privilege is no absolute president must comply with subpeona
Why: when privilege is based only on generalized interest in confidentiality, it cannot
prevail over fundamental demands of due process in fair administration of criminal
justice. Use balancing test if privilege does not protect military, diplomatic or sensitive
national security it is not important interest that must be protected by confidentiality.
Weighing idea of executive privilege
Executive privilege does not appear in the consistuion
Without privilege people are going to be concerned that what they say are going to be
under scrutiny
Absent a claim of need to protect military, diplomatic, or sensitive security secrets
Clinton v. New York nothing to do with inherent power, everything to do with if congress can
increase presidents powercongress authority to increase executive power.

Facts: Congress passed balanced budget act to waive federal governments statutory
rights to be reimbursed for taxes imposed on Medicare providers. President used
authority under Line Item Veto Act to cancel provision of BBAforce NY to repay
certain funds to general government under medicare program
Held: Line item veto is unconsitutitonal
Why: Even though constitution authorizes president to veto bill it is silen on issule of
whether President may repal/ament PARTS of statutes. Silence should be construed as
prohibition. Changes to statutes must occur through amendment, not legislation
Note: Majority = formalism (focus on text and intent) dissent = functionalism (focus on
history policy, efficiency.)
Allocation of power in conducting foreign policy; Presidential power and the war on
terrorism I 369-381
Separation of Powers & Foreign policy 369
Are foreign and Domestic Affairs Different?
United States v. Curtiss-Wright
Facts: President issued proclamation to stop sale of arms to certain countries.
Held: President has power to regulate trade between US and foreign nations by
proclamation
Why: Idea that federal government only has powers enumerated in constitution and
implied powers necessary to carry them out is only applicable to internal/domestic affairs.
Sales of arms to foreign nations is foreign affairs. In foreign affairs, president does not
depend on affirmative grants of power. President has ultimate authority to speak as
representative of nation makes treaties with advice and consent of senate by the
negotiates (not senate)
Note: case expands presidential powers president has powers in foreign affairs that he
does not have in domestic affairs.
Treaties and executive agreements
Dames & Moore v. Regan
Facts: President made executive agreement with Irean. In consideration for releasing
hostages, US terminated all legal proceedings involving claims against Iran (dames
involved in litigation)
Held: Executive agreement is okay no need for treaty
Why: When settlement of claims is necessary to resolve foreign policy dispuates, it can
be concluded that congress has consented to presidents action and president has power to
settle such claims
Note: so longa s president is not violating another constitutional provision or federal
statute, little basis for challenging consititutionality of executive agreement

War Powers
War Powers Resolution
Congress attempt to determine who has war power purpose is to ensure that congress and
president will agree to enter into hostilities

President
May only enter into hostilities in 3 situations
o Declaration of war
o Specific statutory authorization of war
o National emergency created by attack on US or its allies
Must report troop deployment within 48 hours
Must withdraw troops within 60 days unless
o Congress approves of troops deployment
o Congress gives 30 day extension
o Congress is unable to meet because of national emergency
Congress
May cut off funds (that is within constitutional authority) but this would be unpopular if
US already involved in conflit
Unconstitutional?
Limits president as commander in chief
Gives congress more authority than granted to it by constitution
Contains legislative veto- congress can veto by inaction or joint resolution
Constitutional?
Major actions under constitution are meant to be approved by 2 branches of government
Reinforces separation of powers to have check on president
Presidential Power and the War on Terrorism II 381-418
Detentions 381
Hamdi v. Rumsfeld citizens
Facts: After 9/11, congress passed AUMF authorizing president to use all necessary and
appropriate force against those involved in attacks. Hamdi (US citizen in Afghanistan)
seized and turned over to US military. Hamdi filed writ of habeas corpus to have court
examine legality of detention. Non detention act = no citizen shall be
imprisoned/detained except pursuant to act of congress
Held: Detention of enemy combatants is authorized, but US citizen apprehended in
foreign country cannot be detained indefinitely as enemy combatant without due process.
Why: AUMF permits detention of US citizen as enemy combatant for duration of conflict
in which they were capture ok because congress authorized president to use necessary
and appropriate force. Hamdi must be given dur process meaningful opportunity to
contest factual basis for his detention before neutral decision maker
Matthews balancing test: to determine due process for detained citizen, weigh private
interests that may be affected by official actions v governemtns interest including
function involved and burden government would face in providing greater process.
Boumediene v. Bush non-citizens
Facts:
Held:

Majority: believed this parallel sysmte did not meet the requirement of habeas corpus
which would have to provide for meaningful review by the judiciary (per Marbury) by
the political branchs detention and trial process . This applies to both citizens and
foreigners detained.
Scalia Dissent Model 4 the right of habeas corpus does not extend to foreign cirizens and
therefore the president has power as commander in chief to detain foreign citizens
without having to invoke the consitutions suspension clause to deprive them of habeas
corpus
Military Tribunals
Ex Parte Quirin
As stated in Hamdi and Boumediene the president has inherent authority to act and detain
in emergency situations that would lead ot us of military tribunals model 2
Facts:
Held:
Why:
Checks on the President 419-429
Suing and Prosecuting the President
Nixon v. Fitzgerald
Facts: D testified that cost overruns on plane we $2 billion (bad for department of
defense) Ds job was eliminated. P admitted he approved decision to fire D, but later
retracted statement
Held: President has absolute immunity from civil suits predicated on his official acts
Why: President must be able ot impartially deal with duties of his job without fear of
being target for civil suits, chilling presidential discretion, or diverting energy from
demands of job. Absolute immunity does NOT leave us powerless against presidential
misconduct impeachment, formal and informal checks, scrutiny by press, reelection
Note: establishes absolute immunity (complete protection from civil suit) for presidents
actions while in office
Clinton v. Jones
Facts: P was governor of AK when he made sexual advances at D his employee. Then,
Clinton became president.
Held: President does not have immunity for acts that occurred before he took office
Why: Reasoning behind immunity is to enable officials to perform effectively without
fear that particular decision may give rise to personal liability. Immunity does not apply
to president when action taken extends beyond scope of official capacity. Clintons act
were unofficial litigation will not burden president nor hamper his performance of
official duties.
Impeachment
Impeachment and removal are ultimate checks on presidential power

Impeachment in constitution
o Art II 4 = president, vice president, and all civil officers of US shall be removed
from office on impeachment for conviction of treason, bribery or other high
crimes and misdemeanors
High crimes and misdemeanors (diff views)
Indictable crime
Conduct that exceeds constitutional bounds of powers of office in
derogation of powers of another branch
Behaving in a manner grossly incompatible with proper function
and purpose of office
Employing power of office for improper purpose or personal gain
Act that violates constitution
Whatever majority of house considers it to be

427
UNIT II: FEDERALISM THE DIVISON OF POWERS BETWEEN THE STATE AND
THE NATIONAL GOVERNMENTS
I.

Federal authority and state limitations upon it

Federal Authority
1. Does congress have authority under the constitution to legislate on the specific issue?
2. Does the act violate constitutional provision or doctrines by infringing on the other branches
or the state or individual liberties?
Scope of constitutional authority
Necssary and proper clausegives congress the power to make any laws that are necessary
and property to carry into execution any powers of any branch of the government. Not and
express power, but the means with which to carry out powers. l
Scope of Congressional Authority
McCulloch v. Maryland 117
Facts: US recreated Bank of US. Some states limited/prohibited banks operation but
Maryland taxed it. Bank refused to pay tax, so MD sued.
Held: Congress had authority to incorporate bank and state tax on bank is
unconstitutional
Why: Under necessary and proper clause, since congress has power to create national
bank, it can choose any constitutional means to achieve this legitimate government
objective. Necessary =convient/ useful/any means calculated to produce end. Bank is
useful means to handle national finances. Power of states to tax might lead to power to
destroy Bank even though MDs tax will not destroy bank, other states might decide to
tax. State cannot impose tax to be paid by federal government and cannot regulate if
significant budern on federal government.
Note: Necessarily DOES NOT mean indispensible/essential (plain meaning) this would
limit congress too much.

Commerce Power 159

1890s-1937 A limited Federal Commerce Power
What is Commerce? 163
What does Among the States mean?
Does State Soverignty limit congressional power?
Congressional Power and the 10th Amendment 1937-1990s 1680190
1937-1990: Broad Federal Commerce Power
Key Decisions Changing the Commerce Clause Doctrine 169
NLRB v. Jones & Laughlin Steel Corp 1937
Facts: National Labor Relations Act permitted employees to bargain collectively,
prohibited unfair labor practices and established NLRB to enforce Act. NLRB claimed
Jones violated act. Jones manufactured in PA but owned and conducted business in other
states and set 75% out of state
Held: Act is constitutional
Why: Labor disputes may give rise to strikes and other acts that directly affect interstate
commerce. Even though activites may be INTRAstate in nature, if they have a close and
substantial relationship to INTERstate commerce so that their control is essential to
protect that commerce from burdens/obstructions, congress has power to congrol it. Jones
has substantial commercial dealings on national scale, so labor stoppage would have
substantial effect on interstate commerce
Note: defines commerce power as broad first time court talks about effect on
commerce. Court does not rely on whether activity being regulated occurs before, during
or after interstate movement. Court implies that 10th amendment would no longer act as
limitation on commerce power.
United States v Darby 1941
Facts: Fair Labor Standards Act set minimum wages and max hours for employees
engaged in production of goods for interstate commerce. Darby acquired raw materials
finished lumber shipped to customers out of state.
Held: Act is constitutional
Why: While manufacturing is not commerce, INTERSTATE shipment of manufactured
goods is so prohibiting shipment between states is regulation of interstate commerce.
Congress may regulate INTRAstate activities if they affect interstate commerce OR when
it is appropriate means for congress to accomplish legitimate end. 10A sis but a truism
and does not limit congresss power to use all means to exercise enumerated power.
Note: Dagenhart overruled. Congress may impose conditions on engaging inactivity that
substantially affects interstate commerce, as long as conditions do not violate
independent constitutional provisions

Wickard v. Filburn 1942

Facts: Agricultural adjustment act permitted sec. of ag. To set quotas for wheat on farms
(regardless of whether it was sold interstate, intrastate or consumed on farm) Filburn
grew wheat for home-consumption went over quota and incurred penalty
Held: Act is constitutional, even as it applies to home consumed wheat
Why: Protection of interstate commerce in wheat falls within commerce power
regulation of home-grown wheat is reasonably related to protecting commerce. Even
though filburns activities are local and cannot be regarded as commerce, they exert
substantial economic effect on interstate commerceconsumption of homegrown wheat
is prevalent and affects wheat market as a whole because less wheat bough in commerce.
Cumulative effect = while filburn effect on market is trivial, it is far form trivial when
taken together with others similarly situated.
Note: extends congressional regulation to production that is not intended for commerce
furthest court has gone in sustaining commerce power. Congress can now regulate any
activity, whether intrastate or interstate, that has substantial effect on interstate commerce
congress can even regulate activites that have little effect on interstate commerce if
activity, looked atcumulatelively, has substantial effect on interstate commerce
The meaning of Commerce Among the States
Civil Right Laws
Heart of Atlanta Motel v. United States
Facts: Civil right acts banned racial discrimination in public places. Motel refused to rent
rooms to African americans. Motel is close to interstate highways, advertises out of state
and 75% of guests form out of state
Held: Act is constitutional
Why: Congress can regulate INTRAstate activities that affect commerce as part of police
power to legislate against moral wrongs racial discrimination has disruptive effect on
commercial intercourse. Since motel received most customers form out of state,
participated in interstate commerce. Unavailability for African americans interferes with
interstate travel congress has power to remove obstructions to interstate travel as long
as means are reasonably adopted to end permitted by constititon.
Notes: Extends commerce power to racial discrimination. Heart of atlanda and
Katzenbach provided African americans with ammunition to contest segregation in
privately owned business since very few businesses were without some connection to
interstate commerce
Katenabch v. McClung 1964
Facts: Civil rights act banned racial discrimination in public places. McClung owned
restaurant locaed close to interstate highway, railroad, bus stop which purchased food and
had customers from out of state. Restaurant served only white customers inside00 african
mericans were served from window in back
Held: Act is constitutional

Why: cumulative effect discrimination in restaurants has negative effect on interstate

commerce because sell less interstate goods, obstruct interstate travel, reduce business
and prevent new businesses from establishing. Local activites can be reached by congress
if they exert substantial economic effect on interstate commerce extends to activities
that directly or indirectly burden/obstruct interstate commerce. Refusal of service to
African americans is burden on interstate flow of food and prodcuts. Congress may
regulate restaurant if they have raitonal basis for believing that discrimination will affect
interstate commerce no need to show actual effect on interstate commerce
Note: Congress cannot regulate activites if they are completely within particular state, do
no affect other states, and when it is not necessary to interfere for purpose of executing
some of general powers of governemtn
Regulatory Laws
Hodel v. Indiana 1981
Facts: Federal law regulating strip mining and requiring reclamation of strip-mined land.
Held: law is constitutional
Why: Court may invalidate legislation enacted under commerce clause only if (1) it is
clear that there is no RATIONAL BASIS for congressional finding that regulated activity
affects interstate commerce or (2) that there is no reasonable connection between
regulatory means selected and asserted ends.
Criminal Laws
Perez v. United States 1971
Facts: Consumer credit protection act prohibited loan sharking activities (intrastate
activies)
Held: act is constitutional
Why: loan sharking activites while purely intrastate, directly affect interstate commerce
provided organized crime with source of revenuse, extract millions from US citizens,
coerce victims into commission of crimes against property and take over legitimate
business
10th Amendment Between 1937-1990s
Garcia v. San Antonio Metropolitan Transit Authority
Facts: Fair Labor Standards Act regulated minimum wage and overtime pay in private
industry. Department of labor found that under USery, SAMTA state agency
undertaking local government activitesnot exempt from application of minimum wage
and overtime requirements
Held: Act is constitutional
Why: Applying requirements of act to SAMTA is not destructive of state sovereignty and
does not violate constitutional provision
Note: overrules useryimpossible to define zone of state sovereignty protected from
federal regulation (unworkable standard) and protection of state sovereignty is for
political process (not courts)
Test: to determine state immunity from federal regulation under commerce clause must
ask whether regulation as applied to state activity is destructive of state sovereignty or

violates any constitutional provision. Do not need to ask whether state activity regulated
is a traditional state function
Congressional power and 10th Amendment 1990s-??? 190-241
Narrowing of the Commerce Power and Revival of the 10th Amendment as a Constraint on
Congress 190
What is Congress Authority to Regulate Commerce Among the States
United States v. Lopez 1995
Facts: Gun- free school zone act made it federal offense to possess firearm in school zone
act does not regulate
Held: act is unconstitutional exceeds commerce power
Why: proper test for whether activity affects interstate commerce sufficiently to be within
congresss power to regulate under commerce clause requires analysis of whether
regulated activity substantially affect interstate commerce. Congress may regulate
intrastate activity that has substantial effect on interstate commerce
o (1) act does not regulate channels of interstate commerce and does not prohibit
interstate transportation of commodity through channels of interstate commerce
o (2) act does not concern instrumentality or thing in interstate commerce
o (3) substantial effects test
possession of firearm in school zone not economic activity
no jurisdictional element that would limit acts reach to discrete set of
firearm possession that have effect on interstate commerce
No congressional findings concerning effect of gun possession in schools
or interstate commerce
No link between firearm in school zone and interstate commerce
3 categories that congress may regulate under commerce power
1. Channels of interstate commerce (interstate highways, rivers, lakes, canals, RR, mail
a. Darby, Heart of Atlanda
2. Instrumentalities, persons or things in interstate commerce (cars, trucks, ships, planes
a. Shreverport rate cases
3. Activites that have substantial effect on interstate commerce
a. Economic activity
b. Jurisdictional element
c. Congressional findings
d. Link between regulated activity and interstate commerce
e. J&L steel, hodel, McClung, Heart of Atlanda, Wickard
United States v. Morrison 2002
Facts: Violence Against Women Act allowed citizens to bring federal civil suits against
perpetrators of crimes motivated by victims gender. Woman brough claims for rap under
VA techs sexual assault policy. VA Tech set aside punishment, so woman brough suit
under act

Held: Act is unconstitutional

Why: If act upheld there would be nothing left for state control
o SUBSTANTIAL EFFECTS TEST
Gender motivated crimes are not economic activity
No jurisdictional element establishing federl cause of action was in
pursuance of congresss power to regulate interstate commerce
Congress found that gender motivated violence affected interstate
commerce by deterring potential victims from traveling interstate,
engaging in employment in interstate business etc. this weak argument and
existence of congressional findings is insufficient to sustain act
Link too attenuated because it would allow congress to regulate any crime
as long as aggregate impact of crime ahs substantial effect ton interstate
commerce
AFTER LOPEZ
No definition of commercial or economic activity
Regulated activity must have substantial effect on interstate commerce
State zone of activities unclear because court does not overrule prior cases
Post Lopez Commerce Clause
Gonzales v. Raich 2005
Facts: Compassionate Use Act (state law) exempted patients who used medicinal
marijuana with approval form physician from criminal prosecution. Controlled
substances act (federal law) prohibited medicinal marijuana
Held: Federal law constitutional does no exceed congresss authority under commerce
clause
Why: Congress has power to regulate purely local activites that are part of economic
class of activities that have substantial effect on interstate commerce. Even if activity is
local and not regarded as commerce, it can be reached by congress if it exerts substantial
economic effect on interstate commerce. When congress decides that total incident of
practice poses threat to national market, it may regulate entire class. Congress had
rational basis for concluding that leaving home-consumed marijuana outside federal
control would have substantial effect on interstate price/market conditions and would lead
to enforcement difficulties in distinguishing between marijuana grown localy and
marijuana grown elsewhere
Note: analogous to wickard non commercial activity, fungible commodity with
interstate market, lack of federal regulation affects price and market conditions. When
there is large piece of regulation, it is okay ot have piece that has nothing to do with
interstate commerce.
Washington V. Guillen 2003 209)
Facts: Statute banned use of information about highway safety form being used as
evidence in suit
Held: Statute is constitutional unanimously reversed and upheld the federl law

Why: Congress could reasonably believe that adopting statute would allow for greater
safety on highways. Congress constitutionally regulated channels and instrumentalities of
interstate commerce (Congresss concern was that local governments would refrain from
conducting such investigations if they could be used as evidence against them in suits
arising from automobile accidents )
1) Post Lopez Commerce Clause 207-220, 129-151, but focus on the commerce clause and
the Necessary and proper clause analyses re: the individual mandate (as we wont be
studying the taxing and spending power cases)
National Federation of Independent Business v. Sebelius
Facts:
Held:
Why:
United States v. Comstock
Facts: Federal statute allows for civil commitment of federal prisoner past term of
imprisonment if he is mentally ill and would have difficulty refraining from sexually
violent conduct. State did not have such a requirement, raising question of what
constitutional basis could be cited for its enforcement
Held: Necessary and Proper Clause grants congress sufficient authority to enact federal
civil commitment statute statute
Why: (1) Necessary and proper clause is BROAD congress possesses broad authority
to enact laws to execute enumerated powers (2) History of federal involvement statue is
addition to longstanding gederal statutory framework form 1855 (3) sound reasons for
statutes enactment protection of public from mentally ill individuals and probability
that such prisoners would not be commited by state is rational basis for statute (4) statute
accommodates state interests (4) statute is narrow scopre statute is not too attenuated
from Art 1 powers and will only be applied to SELECT prisoners. These considerations
lead to conclusion that statute was necessary and proper for exercising federal authority
Note: Case expands Congresss Necessary and Proper Clause powers in federalism
cases
Note: Affirms McCulloch
Individual Mandate
Taxing Power
Medicad Expansion
Neessary and Proper Clause
2) Post Lopez 10th Amendment 220-238, 238-241
Post Lopez 10th Amendment 220-238 238-41

New York v. United States

Facts: Take title provision compelled states to accept ownership of waste or regulate
according to instructions of congress. Compliance meant that states would either contract
with disposal sit; build disposal site or permit priave disposal site all would impact
treasury
Held: Take title provision is unconstitutional
Why: congress cannot commandeer legislative processes of states by compelling them to
enact/enforce federal regulator program. When congress compels state regulation,
accountability of state officials is reduced because cannot regulate in accordance with
local electorate. Congress can, however, encourage states to provide for dispoal of
radioactive waste generated within borders (by conditioning federal funds). Constituion
divides authority between federal and state governments for protection of individuals.
When federal interest is so strong as to cause congress to legislate, must do so directly .
Printz v. United States
Facts: Brady Act requires state/local law enforcement official to perform background
checks on potential gun buyers
Held: Act is unconstitutional
Why: Congress exceeded authority under commerce clause in enacting Act and Act
violated 10th amendment. Federal government cannot command states to enact/administer
federal regulator program. President must take care that laws be faithfully execute act
transfer this responsibility to law enforcement officers in state who are left implement
program without presidential control
Reno v. Condon
Facts: Driver Privacy Protection Act prohibits disclosure of DMV records applies to
states and private persons who have obtained information from DMV
Held: act is constitutional
Why: Federal government cannot commandeer legislative/executive branches of
government but can prohibit state from engaging in conduct, particularly if it applies to
private individuals. Act does no conflict with federalism principles of NY and Printz.
Drivers information is article of commerce, so its release into interstate commerce is
sufficient to support congressional regulation. Act does no require states, acting in
sovereign capacity, to regulate citizens does no requires states to enact laws/regulations
(NY) and does not require state officials to assist in enforcement of federal statutes
regulating private individuals (printz). Act not imposing affirmative duty on states BUT
imposing prohibitions on states.
UNIT III: THE STRUCTURE OF THE CONSTITUTIONS PROTECTION OF CIVIL
RIGHTS AND CIVIL LIBERTIES
1) The application of the bill of rights to the states & requirement for state action, 531-548
(trhough paragraph c1 before Civil Rights Cases)
531-548

Incorporation of the bill of rights into the due process clause of the 14th amendment
Incorporation debate
Palco v. Connecticut
Facts:
Held:
Why:
Adamson v. California
Facts:
Held:
Why:
The current law as to whats incorporated
Duncan v. Louisana
Facts: D charged with simple battery (misdemeanor max 2 years presion $300 fine) judge
denied Ds request for jury trial because jury trials only allowed in cases in which capital
punishment or imprisonment at hard labor may be imposed. D argued that 14th
amendment due process guarantees right to jury trial
Held: 14th amendment guarantees right to jury trila for non minor crimes
Why: Due process now means essential to a fair trial. Right to jury trial is fundamental
to principles of liberty and justice. want peers to decide fate becaseu judges can be
corrupt. Every state must allow jury trial if punishment is 6+ months (look at max
punishment)
McDonald v. City of Chicago
10A by its terms, limit the federal governments power over states and so it inapplicable
to the sates
The application of the bill of rights and the consitiution to private conduct
Requirement for state action
UNIT IV: DUE PROCESS AND THE PROTECTION OF FUNDAMENTAL RIGHTS
Due Process Protection for Economic Rights
The Rise and Fall of Lochnerism
601-630
Economic Substantive Due Process
Loan association v. Topeka
Allgeyer v. Louisiana

Facts: statute prohibited foreign business from operating in LA unless place of business
and agent in LA. LA made it illegal for residents to enter into insurance contracts with
companies operating outside of LA. Allgeye (LA) made insurance contract with NY
insurance company (could not do business in LA pursuant to state). Contract made and
performed in NY NOT LA.
Held: statute is unconstitutional because it infringes liberty (right to contract)
Why: Cannot prohibit citizen from making and performing contracts outside of state.
Statute is not due process because it prohibits act that citizens have right to perform under
cosntition. Liberty interest is very broad and includes (1) right ot be free to enjoy
faculties/use them in lawful way (2) right to pursue any livelihood/live and work where
one chooses and (3) right to contract to pursue any of these purposes
Note: Right to make contracts must not interefere with right of state to enact legislation in
legitimate exercise of its police or other powers and must not infringe upon rights of
other citizens
Lochner v. New York
Facts: Law limits working hours of bakes. NY argues that any legislation that tends to
amek citizens healthy is valid as health law (police power) because state has interest in
healthy citizens
Held: Law is unconsitutional
Why: Limit working hours DOES NOT involve safety, morals or welfare of public. Right
to purchase/sell labor is part of liberty protected by 14th amendment. Law interferes with
right to contract between employer and employees concerns number of hours employees
may work law must have more direct relationship to public health to interfere. Must be
matiral danger to publish health or health of employees to regulate work hours. State
regulation must be necessary to achieve result. If allow state legislature to ocontrol work
out s according to health, state could control all jobs because hey have relationship which
is too extreme
Three themes from lochner
1. Freedom of contract was right protect by due process clause of 5th/14th amendments
2. Government could interfere with freedom of contract only to serve valid police purposes
of protecting healthy, safety or morals
3. Judiciary would carefully scrutinize legislation to ensure it served police purpose
Laws Protecting Unionizing
Maximum Hours Law
Lochnerism The freedom to contract fundamental right protected by due process clauses of
both the 5th (federal actions) and 14th amendments (state actions) and required the government
shoulder a heavy burden of proving that regulation of economic activity was necessary to serve a
valid police purpose (public health, safety or morals) determination was up to the judiciary.
Muller v. Oregon
Diverted from lochner finding that maximum work hour laws for women were
constitutional because at the time women were not in a position to freely negotiate

equally with employers for reasonable wages and hours. Therefore, in the interest of
public healh, the state had necessary purpose of steeping into regulate.
Minimum Wage Law
Adkins v. Childrens Hospial
Court struck down a later minimum wage law for women and children in DC, claiming
that because of the process woman had made in society, they were in a much better
position than when muller was decided to freely contract and negotiate with employers.
Also the court claimed the link between working conditions (maximum hours) and the
health of women was much closer than between her wage and eventual health.
Consumer Protection Legislation
Weaver v. Palmer Bros Co
Facts:
Held:
Why:
Nebbia v. New York
Facts:
Held:
Why:
Economic Substantive Due pRocess since 1937
Pressures for Change
West Coast Hotel Co. v. Parrish 1937
Facts: Law authorized fixed minimum wage for women
Held: Law is constitutional
Why: Constitution is silent on right to contract only speaks of deprivation of liberty
without due process. Due process must be reasonable in relation to its subject and
adopted in interest of ocmmuniyt. Here interest is health of owmen and protecting them
form employeersminimum age requirements are legitimate means to an end (protection
of women)
Note: demise of lochner era constitutional liberty interest does not include freedom of
contract equalization of bargaining is legitimate goal
United States v. Carolene Products Co. 1938
Facts: Filled milk act prohibited shipment in interstate commerce of filled milk
Held: act is constitutional
Why: Legislatures job to regulate economy must have legitimate purpose and rational
approach. Act does not infringe 5th amendment because risks of malnutrition and
consumer fraud posed by filled milk were sufficient and dangerous to public health
Foot note 4 declares that only those rights specifically enumerated in the constitution plus
selected rights associated with political processes (voting) or protection of minorities
would be judicially enforced other rights would be enjoyed at pleasure of government,

inviting opportunity for government intervention. Establishes 2 standards of review if

economic regulation, sustain unless it violates specific constitutional provision; if noneconomic regulation, court will not defer to legislature.
Note: lochner era over liberty of due process NOT protect right to contract, state may
infringe liberty to achieve ANY purpose, state regulation must be reasonable to achieve
police purpose.
Economic Substantive Due Process since 1937
Williamson v. Lee Optical of Oklahoma
Court found that if there is any rational basis at all for a state to create economic
restrictions to protect the health and safety of the public, then it is presumed
constitutional. In this case it was the restriction on who is qualified to refit and replace
glasses lenses.
Rebirth of Economic Due Process
BMW of North America v. Gore
FACTORS
Reprehensibility of the defendants conduct
o Should only take into account the harms inflicted on persons who are actual
parties to the litigation, not hypothetical parties who might be injured class
(phillip morris v. Williams)
Ration of the punitive damages to the compensatory damages
o The ration of the punitive damages to compensatory damages in the single digits
is presumed to be constitutional, over that will typically require judicial review
State farm v Campbell
Civil sanctions to comparable conduct as done by defendant.
Facts: P purchased a new car that had been repainted by D but p was not informed,
claiming that the repaint substantially lowered the value of his new car. Court saw that a
$4mil. Punitive damage award was grossly excessive and possessed no rational basis (did
not use the Carolene products footnote 4) because the large damage aware had the effect
of forcing D to change nation-wide standards that would be legal in other states. Court
formed the 3 part standard of analysis. Importance of not allowing 1 state to dictate or
affect the internal policies of another.
State Farm Mutual Automobile Insurance v. Campbell
Ps insurance company D acted recklessly in handling a car-crash lawsuit for P resulting
in P being liable for more than he would have originally. P won large punitive damage.
Court adopted Gore factors but found that a punitive damage award whose ration to
compensatory damages that is above the single digits may require judicial review for
excessiveness.
Philip Morris USA v. Williams
P won a huge punitive damage against D, cigarette company for ds past history of hiding
the health risks of smoking from the public for many years. Court found that the

reprehensibility of Ds conduct could only be evalued in reference to the harm done to

parties in the actual litigation, not based on the harm potentially caused to unknown
number of person. To do so would allow too much speculation by a jury that might lead
to a standard-less determinations.
The rebirth of economic due process
630-646
I.

Modern substantive Due process: Privacy, Family autonomy, procreation, and

personhood
*** framework for analyzing fundamental rights; privacy: Constitutional protection for family
autonomy

1) 933-954 (framework as applied in zablocki; stanely and Michael H (footnote 20)

FUNDAMENTAL RIGHTS UNDER DUE PROCESS AND EQUAL PROTECTION
Ninth Amendment
Procedural Due Process

FRAMEWORK FOR ANALYZING FUNDAMENTAL RIGHTS

1. IS THERE A FUNDAMENTAL RIGHT?
2. IS THE CONSTITUTIONAL RIGHT INFRINGED?
3. IS THERE A SUFFICIENT JUSTIFICATION FOR THE
GOVERNMENTS INFRINGMENT OF A RIGHT
4. IS THE MEANS SUFFICIENTLY RELATED TO THE PURPOSE?
Fundamental rights
Some libertis are so important that they are deemed fundamental right
o Most fundamental rights are not mentioned in text of constitution
Fundamental rights can be protected by court using due process or equal protection (or
both)
o DUE PROCESS
Issue is whether governments interference is justified by sufficient
purpose
If law denies right to everyone, due process is best grounds for
analysis
Procedural due process
Government must follow certain procedures before depriving
individual of life, liberty or property
Substantive due process

Government must have sufficiently strong reason to interfere with

individuals right to life, liberty or property
o EQUAL PROTECTION
Issue is whether governments discrimination as to who can exercise right
is justified by sufficient purpose
If law denies right to some while allowing it for others, equal
protection is best under grounds for analysis
th
9 Amendment
o Enumeration in constitution of certain rights shall not be construed to disparage
others retained by the people
o used to provide textual justification to protect non-textual rights/unenumerated
liberties
levels of scrutiny
o Strict scrutiny
Law necessary to achieve compelling government purposes
Ex. Fundamental rights, race
o Intermediate scrutiny
Law substantially related to achieving important government purposes
Gender
o Rational basis
Law rationally related to legitimate government purpose
Economic regulations
Originalist
o Fundamental rights limited to liberties explicitly state in constitution or clearly
intended by framers
Non-originalist
o Permissible for court to protect fundamental rights that re not enumerated in
constitution or intended by framers
o Look to history/tradition for what un-enumerated rights are fundamentalrights
that are deeply rooted in hisoty/tradition and implicit in concept of ordered liberty
such that neither liberty nor justice would exist if sacrified.
ANALYZING FUNDAMENTAL RIGHTS
1. Is there a fundamental right?
Yes government will only prevail if it meets strict scrutiny (necessary to achieve
compelling purpose)
No government will prevail if it meets rationale basis (rationally related to
government tinterest
2. If there is a fundamental right, has this right been infringed?
Court considers directness and substantiality of interference
3. Is there a sufficient justification for governments infringement of a right?
If right is fundamental, government must present compelling interest to justify
infringement
If right is not fundamental, only legitimate purpose is required for law to be sustained
4. Is the means sufficiently related to the purpose?

Under strict scrutiny, not enough for government to prove compelling purpose behind
law must also show that law is necessary to achieve objective
o Requires that government prove that it could not attain goal thgouth any
means less restrictive of right
Under rational basis, means only have to be reasonable way to achieve goal and
government is not required to use least restrictive alternative.

Constitutional Protection for Family Autonomy

Right to Marry
Not every right to marry is considered infringement of right
o Must be direct and substantial interference with right
o Being deterred by law is not same as being interfered with
Loving v. Virginia 1967
Facts: Lovings legally married in DC and returned in VA to live together charged with
violating statute banning interracial marriages
Held: Statute is unconstitutional
Why: equal protection violated statute is impermissible racial discrimination. Due
process violated statute deprives Lovings of liberty (freedom to marry) without due
process. Marriage is fundamental right because it is necessary for existence and survivial.
Freedom to marry individual of another race is up to couple and cannot be infringed by
state.
Zablocki v. Redhail 1978
Facts: Statute did not allow residents of WI who did not have custody of child, but had to
pay child support, to marrywihtout obtaining court order granting permission to marry.
Permission not granted unless applicant submitted proof of compliance with child
support/proof that children would not become public charges. D did not make child
support payments and was denied marriage licenses
Held: Statute is unconstitutional
Why: statute directly interferes with right to marry no WI resident affected class can
marry without court order, marriages in violation of statute are void and punishable as
criminal offenses and some persons are prevented form ever getting married. While state
has legitimate interest in ensuring parents fulfill support obligations and protect welfare
of children, means selected to achieve these interests unnecessarily infringe on right to
marry
o Is there a fundamental right to marry? Yes.
o Is this fundamental right infrindged? Yes.
o Is there sufficient justification for infringement Yes, child welfare
o Are means sufficiently related to ends No.
Right of Custody of Ones Children
Natural parents right to companionship, care and custody of children is an interest more
precious than any property right
o Must have very substantial reason to terminal parental custody

Stanley v. Illinois 1972

Facts: State law required children of unwed fathers to become wards of state upon death
of mother. When stanleys partner (not married) died, children were taken by state
Held: Stanley is entitled to hearing to determine his fitness before his children are taken
Why: if Stanley is fit father, state hurts own goals when it unnecessarily separates him
from family. While some fathers may be unfit, not all fall under this category nothing
indicates that Stanley is unfit father who has not carred for children
o Fundamental right? Yes.
o InfringeD? Yes, lack of marriage irrelevant
o Sufficient justification for infringement? Yes, separate kids from unfit parents
o Means sufficiently related to ends? No.
Michael H. v. Gerald D. 1989
Facts: State law stated that child bron to married woman living with husband is
presumed to be child of marriage presumption of legitimacy may be rebutted ony by
husband or wife in limited circumstances. Woman has affair and conceives child not her
husbands baby. Other man sued for visitation rights
Held: Law is constitutional
Why: fundamental right has not been infringed no specific right of unmarried fathers to
custody of children
Right to Keep the Family Together
Moore v City of East Cleveland 1977
Facts: Law limits number of unrelated people who can live together. Under law,
grandmother cannot live with 2 grandsons who are cousins
Held: Law is unconsitutional
Why: extension of right of family privacy
o Fundamental right? Yes
o Infringed? Yes.
o Sufficient justification for infringement? Yes overcrowding and traffic
o Means sufficiently related to ends? No. tenuous relationship
Right of Parents to Control the Upbringing of their children
Meyer v. Nebraska 1923
Facts: State law did not allow any person to teach in any language other than englsih
Held: law is unconstitutional
Why: Right to control upbringing of children is fundamental right protected by libery of
due process clause. It is natural duty of parent to give children education suitable to their
station in life. Knowledge of german does not injure health, morals or understanding of
child. Fundamental rights of 2 parties involved teachers and parents
Note: Court used rational basis test because did not have strict scrutiny at time
Pierce v. Society of the Sisters of the Holy Names of Jesus 1925

Facts: Compulsory education act required parents to send children to public school in
school district where child resides
Held: act is unconstitutional
Why: act unreasonably interferes with libery of parents to direct upbringing and
education of children. States cannot force dhilren to accept instruction from public
teachers only.
o Fundamental right? Yes.
o Infrindged? Yes.
o Sufficient justification? No.
o Means sufficiently related to sends? N/A because justification is insufficient
Note: Court used rational basis test because it did not have strict scrutiny at time
Traxel v. Granville 2000
Facts: Statute permitted any person to petition court for visitation rights and authorized
court to grant visitation whenever it would serve best interest of child
Held: Statute is unconstitutional
Why: Statute unconstitutionally infringes on fundamental right to care, custody and
control of children because it does not allow parents to make visitation decisions. As long
as parent adequately cars for shildren, no reason for state to infringe.
o Fundamental right? Yes.
o Infringed? Yes.
o Sufficient justification? No.
o Means sufficiently related to ends? N/A justification is insufficient
3. 967-979 esp Griswold
Constitutional Protection for Reproductive Autonomy
Right to Procreate
Buck v. Bell 1927
Facts: State law permitted sterilization of institutionalized, mentally ill individuals. Busk
is institutionalized, mentally ill and has family history of mental illness. Bell ordered to
sterilized Buck
Held: Law constitutional
Why: 3 generations of imbeciles is enough.
Skinner v. Oklahoma 1942
Facts: State law requires sterilization of all individuals convicted of 2+ offenses involving
moral turptidue, but exempted those convicted of embezzlement
Held: Law is unconstitutional under equal protection clause
Why: Marriage and procreation are fundamental to existence/survival of human race
sterilization would have devastating effects. Skinner would be forever deprived of basic
libery to procreate. Strict scrutinity used even though no dealing with suspect
classification (embezzlement v. moral turptitude) beaucse court says legislation involves
marriage and procreation.

Note: Implicitly overrules buck

Right to Purchase and Use Contraceptives
Griswold v. Connecticut 1965
Facts: Statute prohibits use of contraceptives and threatens prosecution for those who
assist, counsel, hire or command other to use contraception
Held: statute is unconstitutional because it infringes marital privacy
Why: right to privacy protects freedom from government intrusion into home. Statute
operated directly on intimate relationship between husband and wife, and physicians role
in that relation. This relationship lies within zone of privacy created by fundamental
constitutional guarantees and seeks to achieve its goals by having maximum destructive
impact on that relationship
Note: Bill of rights contains privacy in multiple amendments (penumbra)
Eisenstadt v Barid 1972
Facts: Law restricted sale/distribution of contraceptives to unmarried people
Held: law unconstitutional
Why: Deterrence of premarital sex cannot reasonably be regarded as purpose of statute.
Effect of band on sale/distribution of contraceptives to unmarried persons has very small
relation to its proffered objective. Equal protection analysismarried and unmarried
people are being treated differently should have same rights to contraception. Court
uses rational basis test
Note: This is NOT privacy right of Grisvold not privacy of home where government
cannot intrude.
New fundamental right of personal privacy right of individual married or unmarried, to be free
from unwarranted government intrusion into individuals decision to reproduce
Note: Court never had to demonstrate that this right was fundamental.
4. 979-1000 (Roe Casey
Right to Abortion
Divided into 5 parts 979
Roe v. Wade
Facts: State law restrictied legal abortions to those necessary to save life of mother
Held: Law is unconstitutional
Why: 14th amendment liberty/right to privacy is broad enough to encompass womans
decision whether or not to terminate pregnancyuse strict scrutiny. However, privacy
right not absolute. State mya assert important interest in safeguarding health, maintaining
medical standards and in protecting potential life. Cannot terminate pregnancy at
whatever time, in whatever way, and for whatever reason women chooses. Where
fundamental right is involved, right can be regulated only by compelling state interest and
legislative enactments must be narrowly tailored to express only legitmate state interests
at stake.
Trimester framework
o First: Womans interest overrade all others

o Second: reasonable state laws to protect health and medical standards

o 3rd: states interest compelling but must allow to preserve health/life of mother.
Planned Parenthood v. Casey
Facts: Act required (1) woman seeking abortion to give informed consent prior to
abortion and be provided with certain information 24 hours before abortion (2) for
minors, informed consent of parent, although there is judicial bypass option if minor does
not want to/cannot obtain parent consent (3) for married women, must sign statement
indicating she has notified husband (4) reporting requirements on facilities that provide
abortions (5) medical emergies exempted
Held: Essential holding reaffirms Roe but abolishes trimester framework
Why: Right to abortion before viability and to obtain with without undue interference
fmor state. Constitutional protection of womans decision to terminate pregnancy derivce
form due process clause liberty of woman at stake. Only where state regulation imposes
undue burden on womans ability to make decision does power of state infringe liberty.
Under undue burden test, cannot allow spousal notification because it might keep some
women form being able to exercise right to abortions. Roes trimester frameowkr is
abolished because it is unnecessary, misunderstansds nature of pregnant womans interes
and undervalues states interest in potential life. Viability still marks earliest point at
which states interest in prenatal life is constitutionally adequate to justify legislative ban
abortions. After viability may prohibit abortion with exception of when they are
necessary to preserve health/life of mother.
Note Undue burden : state regulation of places substantial obstacle in way of woman
seeking abortion of nonviable fees.
5. 1000-1014 (Carhart)
Government Regulation of Abortions
Gonzales v. Carhardt partial birth abortion case.
Facts:
Held: Partial birth abortion ban act of 2003 is NOT a constitutional violation of personal
liberty protected by the 5a because the act
Why:
II. Privacy: Consitutional Proection for Medical Care Decisions

1. 1030-1046 Cruzan; Glucksberg; Vacco

Constitutional Protection for Medical Care Decisions
Right To Refuse Treatment
Cruzan v. Director
Facts:
Held:

Why:
Right to Physician Assisted Death
Washington v. Glucksberg
Facts:
Held:
Why:
Vacco v. Quill
Facts:
Held:
Why:
III Consitutional Protection for Sexual Orientation and Sexual Activity
Constitutional Protection for sexual orientation and sexual activity
Bowers v Hardwick 1986
Facts: State law prohibited sodomy (whether between homosexual or heterosexual
couple) hardwick arrested for homosexual activity in his bedroom
Held: law is constitutional
Why: no fundamental right to engage in homosexual sodomy. Since no fundamental
right, use rational basis test law passes, so upheld. Privacy cases pertain to matters of
family and reproduction, which have no connection to homosexual activity. Right to
privacy does not protect right to engage in private consensual homosexual activity right
does no exist because no supported by constitutions text, framers intent or tradition
Romer v. Evans 1996
Facts: State constitutional amendment prohibited legislative, executive or judicial branch
form protecting homosexuals
Held: amendment unconstitutional
Why: equal protection apply rational basis test. Cannot single out group for disfavored
legal status (animosity)
Lawernce v. Texas
Facts: law prohibited homosexual sex
Held: law is unconstitutional
Why: homosexual conduct is exercise of liberty and right to privacy protects right to
engage in private consensual homosexual activity. State cannot demean individuals
existence or control their destiny by making private sexual conduct a crime. Law has no
legitimate interest to justify intrusion into personal and private life of individual
Note: overrules bowers
Note: court does not state that homosexual activity is a fundamental right, so do not use
strict scrutiny.

REVIEW SESSION
1.